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Flashcards in Public Law Second Term Deck (229):
1

Ex p Daly

Correspondence with lawyer

1

Article 13 ECHR

Right to an effective remedy

1

What violation was found in Goodwin v UK?

Art.10

2

R (Chester) v SoS for Justice

Sumption: 'truly fundamental principle of law or the most egregious oversight'

2

Hutchinson v UK

Refused to follow Vinter, finding MacLoughlin correct

2

Inability to make statute compatible has what effect?

None

3

Osborne v Parole Board

Oral hearings for early release

4

Begum

Muslim girl - no process review at HRA

6

What case shows a clear disregard for intention of P under s.3 HRA?

Ghaidan v Mendoza

6

Derbyshire CC v The Times on Art.10

CL matches Art.10 so look no further

7

Why was there concern over Venables v News Groups?

Overdevelopment of breach of confidence into a virtual tort of invasion of privacy

8

Why is Ridge considered a landmark case for JR?

Extended doctrine of natural justice into administrative decision-making

8

Bank Mellat v HM Treasury (No.2)

P has not resolved all WU difficulties

8

Al-Khawaja v UK

Cross-examination, hearsay

8

Ghaidan v Mendoza

Tenancy, 'as if they were'

8

Duncan v Jones

Obstructing constable

9

Why was Art.13 excluded from HRA?

To avoid arguments over s.3 and s.4 not being sufficient

10

What is s.4 HRA?

Declaration of incompatibility

11

R (Greenpeace) v SoS for Trade and Industry

'no longer a privilege' at least in the environmental sector (Sullivan J)

12

Which case used Leech to enforce a fundamental right of access to courts?

Ex p Witham --> Court fees

13

R (McDonald) v Kensington & Chelsea

Ballerina

13

What Article was not incorporated from ECHR?

Article 13

13

Ullah v Special Immigration Adjudicator criticism

Eurocentric and damaging to integrity of HRA

14

Who criticises Wednesbury for setting the 'default hurdle... so high that no case can come close'?

Craig

14

What case said there is no need to look to Art.6 as CL notions of fairness match?

Osborne v Parole board

15

What argument in particular does s.3 and R v A question

Continuing PS by Wade

15

What category of expression does Steel & Morris v UK fall under?

(2) Civil or political interest

16

What case suggested Art.10 mirrors CL?

DCC v Times

17

Which case showed that GC had failed to understand domestic law in UK?

Hutchinson v UK

19

Huang v SoS for the HD

Overarching fourth element on proportionality

19

What are the two traditions of rights?

International human rights and natural/civil rights

20

What word was read into the statute in WDM?

'Sound'

20

Who thinks all substantive review 'entails some view of the merits'?

Craig

21

What are the two impacts of s.4 HRA?

Political pressure on G and s.10 Henry VIII Power to ministers to fast-track remedial order for amendment/repeal of legislation

21

Why was the injunction in Observer and Guardian v UK not found to be necessary?

Info no longer confidential

21

What previous ECtHR decision provided an issue in ADI?

Vgt Verein v Switzerland

22

What two factors led to the outcome in Nottinghamshire CC v SoS for the E?

Judicial deference on democratic grounds and an acceptance of institutional competence (Barber: efficiency idea)

23

Anisminic v Foreign Compensation Commission

QUANGO, nationalised

23

R (Corner House Research) v Director of the SFO

Saudi Arabia

23

Who said (2 people) RoL requires legal protection of fundamental rights?

Bingham/Joel

24

Who believes HRA preserved PS and in what case?

Steyn in Ex p Kebeline

25

What did Lord Keith say in Derbyshire CC v Times?

No need to resort to Art.10 as CL constitutional right of freedom of expression

26

Why was there no violation of Art.6 in Al-Khawaja v UK?

Minor part of case and margin of appreciation

27

What are the four suggestions by the Conservatives on HRA and ECHR?

(1) Repeal HRA and remove binding nature of ECHR and ECtHR, (2) legislate BoR, (3) New BoR only to serious cases and (4) withdraw completely if not accepted by Council of Europe

28

Helow v SS for the HD

Lady Cosgrove, IAJLJ

29

R (Doherty) v Birmingham CC

Bingham: room to consider if P 'has a role in conventional JR', so close hard to see 'daylight'

30

What constitution suggests natural/civil rights are protected because they are fundamental to human dignity?

German constitution: basic law is unrepealable

31

WM (DRC) v SoS for the HD

Insufficient consideration to fresh evidence

31

What did Denning say of Art.11?

'history is full of warnings against suppression of these rights'

32

Debyshire CC v Times

corruption in DCC

32

R v A (No.2)

Cross-examination of V's prior relationship with D

33

What Article covers freedom of assembly?

Article 11

34

Who strongly challenged the UV principle as the source is from common law?

Craig and Bamforth, "Constitutional Analysis"

34

Osborne v Parole Board

Oral hearing; right to fair trial

34

What is a major problem with s.3 HRA, despite Kebeline?

PS

34

What are three arguments for keeping Wednesbury?

P would have to decide to allow proportionality because more assertive, WU is relatively simple and been used for 50 years, and judicial restraint needed for separation of powers

35

Why is it possible there was a high watermark of restraint in Wednesbury?

War-like state of mind and controversial nationally

36

What are the four subheadings of procedural fairness?

Fair haring, no bis, reason-giving and a duty to consult

37

Observer and Guardian v UK

Injunction against Spycatcher

39

SoS for the HD v AF

Followed A v UK on control orders even though some judges thought it wrong (Hoffman)

40

What case acknowledged a CL right to peaceful public assembly?

DPP v Jones; Beatty v Gillbanks with qualification in Duncan v Jones

41

What articles were engaged in Ghaidan v Mendoza?

Art.14 and 6

43

Why is the judgment in Osborne important?

If G repeals HRA or withdraws from ECHR

45

What is the justification for proportionality in EU and ECHR law?

From ECA and HRA

46

Boddington v British Transport Police

Not 'watertight compartments'

46

What statute recognises freedom of expression?

Contempt of Court Act 1981, s.2, 5 and 10

47

Who did not agree that P and WU are 'equally suitable', against Craig?

T Hickman, "Problems with Proportionality"

48

Who gave two different senses of unreasonableness in Wednesbury?

Lord Greene

48

What are the three generations of international rights?

(1) civil and political, (2) social, economic and cultural and (3) group rights

48

what is the view of human rights which sidesteps the undemocratic view that judges overrule MPs?

Instrumentalist view

49

Why was the decision in British Oxygen not unreasonable?

Not fettered discretion, just administrative rules

50

What case did Mustily develop on in Doody?

Baldwin

51

What is a different justification for natural/civil rights that isn't from an instrumentalist view?

Fundamental to human dignity

52

What did they read as supporting CL notions of fairness in Smith and West?

Art.6(1)

54

Beatty v Gillbanks

Skeleton Army

57

What do restrictions on Art.10 need to be?

Prescribed by law and necessary to achieve democratic ends

58

What two judges in Daly considered if Wednesbury will continue at all?

Steyn and Cooke

60

What did the court decide in S (Children) and Re W (Care Orders)?

S.3 is not a legislative drafting power so s.4 only

61

Who said protection of natural/civil rights is necessary for democracy?

Dworkin/laws

61

What case involved 'super-injunctions'?

Venables v News Groups

63

What case gave five main criteria for considering mandatory relevant issues?

R (Brown) v Work and Pensions Secretary

64

What case showed incitement to violence/religious hatred is not covered under Art.10 and merits no protection?

Garaudy v France

65

Ex p Brind

Broadcasting of IRA

66

what are jus cogens rules?

binding without a treaty

66

Name at least two departments which conducted pre-legislative scrutiny of the Communications Act 2003?

JSC on Human Rights (1st Report Session 2002-03); Dept of C, M and S Memo; Counsel's Advice to SoS on Compatibility with Art.10

67

Why did courts refuse to use s.3 in ex p Anderson?

Despite ECtHR saying HS could not set sentence, couldn't interpret legislation to give themselves this powr

68

In what case did Hoffman inject substantive conception of RoL?

Ex p Simms

68

What Articles of the French Declaration of Human Rights show historical context of document?

Art 17 (property) and Art.13 (equally apportioned tax)

69

Ridge v Baldwin

Dismissal in breach of natural justice

71

What did G do in response to Malone v UK?

Interception of Communications Act 1985

72

Ex p Simms

Interview; denial violated right of access to justice

72

Otto Preminger Institut v Austria

Film offending Catholics

74

Who said courts will regard ECtHR decisions as binding usually?

Bingham in Ullah v Special Immigration Adjudicator

75

Bellinger v Bellinger

Transgender marriage

77

Where does the original conception of judicial restraint come from?

Wednesbury

78

R v MacLoughlin

Refused to follow Vinter

79

Sunday Times v UK

Thalidomide

80

In what two courts did the judiciary show deference to the legislature in Animal Defenders?

High Court [2006] and HoL [2008]

81

What case shows a significant development in substantive review?

GCHQ --> Prerogative

82

What case shows the height of the Ullah principle?

SoS for the HD v AF

82

Why, perhaps, does Art.10(2) require restrictions to be publicly promulgated and sufficiently clear?

RoL, autonomy idea (Dworkin; TRA Allen)

83

In what country did proportionality originate?

Germany

83

Belfast CC v Miss Behavin'

Sex shop - no process review at HRA

85

Who warned against requiring perfectly reasoned justifications from decision-makers?

Craig

86

Who recognised Art.11 might have had positive value as a constitutional right and in what case?

Denning, Hubbard v Pitt

88

GCHQ case

Trade unions, royal prerogative

89

Ex p Witham

LC set court fees; no legal aid for defamation

90

R (Crompton) v Wiltshire Primary Care

'well-established', Cranston J

91

Who said that we have 'residual liberties'?

Dicey ("The Law of the Constitution")

93

What is s.1 of HRA?

Rights are not part of domestic law

94

What case shows the high water mark of s.3 HRA?

R v A (No.2)

96

Under what principles of review did McDonald fail?

Both proportionality and WU

97

Name three breaches found with ECHR before HRA

Malone v UK; E p Brind; Ex p Smith

98

Why does the dicta in DCC v The Times not match up to subsequent cases?

First violations of HRA/ECHR were through common law

99

What are some of the justifable restrictions given i Art.10(2)?

National security, public safety and maintaining authority

100

Why was the decision of the minister in Padfield considered unreasonable?

Inappropriate input of political reasons.

102

What section of the Equality Act in particular shows relevant considerations?

S.149

103

Kennedy v Charity Comission

Inquiry, exempted disclosure under FOIA

104

Ex p Brind

Sinn Fein; radio

105

Name at least three categories of expression

(1) political, (2) civil or political interest, (3) artistic, (4) commercial, (5) press and journalistic freedom

106

What happens if a devolved institution legislates in violation of ECHR?

Taken outside of devolved competence and struck down

108

What article was engaged in ex p Smith?

Art.8

109

What did Bingham say of the Ullah principle?

'No more but certainly no less' than the ECtHR

110

What are the two Goodwin cases?

Goodwin --> Transgender and Goodwin --> Company information

110

what is the most radical approach to s.3?

R v A (No.2)

112

De Freitas v Permanent Secretary

Three questions of proportionality

113

Who argued that P and WU should coexist else the 'public terrain' would again be flattened, which is a 'step backwards'?

T Hickman

114

What section of HRA makes it clear P intended to preserve PS?

S.19 (statement of incompatibility)

115

what case first recognised a right of access to courts in common law?

Ex p Leech (No.2)

116

What case showed the CoA refusing to follow Vinter v UK and why?

R v MacLoughlin; examined domestic law and thought it enough with safeguards

117

Ex p Bugdaycay

Africa refugee

118

DPP v Jones

Stone henge druids

119

What case referred to Horncastle to show margin of appreciation and proportional?

Al-Khawaja v UK

121

Who termed the way irrationality creeps into HRA as 'leakage'?

Le Sueur "The Rise and Ruin of Unreasonableness"

122

Before the HRA, what was the effect of the ECHR?

No direct effect, references made and abide by rulings (Art. 46)

123

What were the three reasons for refusing s.4 in HoL ADI case?

MPs are sensitive to measures necessary for democracy, P knew possibly of violation but important and legislation draws general rules, so P decides where to draw the line

124

R v Horncastle

Hearsay evidence and safeguards

125

British Oxygen Co v Ministry of Technology

Investment grant

127

What judge thought A v UK was wrongly decided on control orders?

Hoffman

128

What does procedural fairness link with?

Art.6(1) ECHR

130

Ex p Armah

Reid, 'jurisdiction to go right... jurisdiction to go wrong'

131

What did the court decide in R v A (No.2)?

P could not have intended to deny D defence of consent

132

What are the two issues with s.3 HRA?

RoL (not clear or transparent law) and beyond ordinary rules of statutory interpretation

135

What article was engaged in Brind?

Art.10

136

Why was a s.4 declaration given in Bellinger v Bellinger?

Known to be against ECtHR (Goodwin v UK), but statute was clear and P researching how to give effect

137

What were the three questions of proportionality given in De Freitas?

Objective important enough, measures meet that objective and means are not more than necessary

138

What are two issues with common law and statute protecting civil liberties?

No specific legal protection means it can be breached, and parliamentary sovereignty (can enact any legislation)

139

Padfield v Minister of Agriculture

Centralised system

140

Ex p Doody

SoS refusing release after minimum term without revealing why

141

What case gave a presumption for oral hearings?

R (Smith and West) v Parole Board

142

Ex p Simms

Journalists

144

what case shows the difference between proportionality and wednesbury unreasonableness?

Ex p Smith

145

What legislation was challenged in Animal Defenders International v UK?

Communications Act 2003, s.321

146

Ex p Leech (No.2)

Solicitor correspondence

147

Handyside v UK

Obscene publication ban

149

Steel & Morris v UK

MacLibel case

151

What is s.2 HRA?

'Take into account' judgment of ECtHR

152

What were the two difference idea of unreasonableness in Wednesbury?

Umbrella sense (grounds of review) and substantive sense (individual ground)

153

R (Litvinenko) v SoS for the HD

Reasons insufficient

154

R (Bancoult) v SoS for F and CWA

Archipelago

155

What was the split in ADI in ECtHR?

9:8

156

Is there a type of process review for HRA?

NO

158

Goodwin v UK [1996]

stolen damaging information

160

What Article covers freedom of expression?

Article 10

160

What did the majority in ADI in ECtHR say?

Vgt decision was weak; legitimate objective; great deference to P and extensive pre-legislative consultation

162

R (Hasan) v Trade and Industry Secretary

If under FOIA, do not push for reasons

162

What is not covered under Art.10?

Incitement to violence/religious hatred/freedom of information

163

Ex p Simms on CL protection despite Sunday Times v UK etc

Protection very high - HS 'not authorised' to ban interviews

164

What is s.2 HRA unlike?

Binding nature of judgment in s.3 ECA

165

What were they trying to make the statute comply with in R v A (No.2)?

Art.6 subparagraph 3

166

How did Labour incorporate ECHR?

Word for word in HRA

167

In what case was it considered that there is an irreducible minimum for procedural fairness?

A and others v UK

168

What made Nottinghamshire CC justiciable in theory?

GCHQ; prerogative

169

R (Smith and West) v Parole Board

Predisposition in favour of oral hearing

170

What case shows proportionality vs anxious scrutiny?

Smith & Grady v UK

171

World Development Movement

Purgao Dam

171

Venables v News Groups

Murder at 11, injunction

172

BromleyLBC v GLC

Subsidise tube and bus

173

What two cases explicitly show judges recognising that courts will almost always follow ECtHR?

R (Chester) v SoS for J; Ullah v Special Immigration Adjudicator

174

What type of review was conducted in Bugdaycay?

Anxious scrutiny

176

Ex p Anderson

HS power to set life sentences

178

What category of expression does Handyside v UK fall under?

(3) Artistic

179

Why did the minority in ADI decide it was disproportionate?

Other measures available

180

What category of expression does Sunday Times v UK fall under?

Press and journalists freedom

181

What Article of the ECHR requires courts to abide by rulings involving the UK?

Article 46

182

What did fears of freedom of press curtailment due to clashes lead to?

S.12 HRA

183

Under what generation of international rights would you find jus cogens rules?

Group rights

185

Who said that JR is a 'supervisory, inherent jurisdiction directed on grounds of legality to the decisions and other public functions of public bodies'

Sir William Wade, "Administrative Law"

187

Hirst v UK

Prisoner's votes; G refuses to give effect to incompatibility

188

What is s.3 HRA?

'Insofar as it is possible to do so' interpret legislation to make it compatible

189

What case shows a devolved institution violating ECHR?

Recovery of Medial Costs for Asbestos Disease (Wales) Bill

190

Ex p Kebeline on HRA

Steyn: 'carefully and subtly drafted 1998 Act preserved the principle of PS'

191

What case said that CL is first , then HRA?

Osborn v Parole Board

192

What was an issue with the introduction of the ECHR?

Treaty is not binding unless incorporated due to dualist legal system

193

Ex p Pierson

Extending tariff

194

What Article did Recovery of Medial Costs for Asbestos Disease (Wales) Bill violate?

Art.1 Protocol 1

195

Ex p Institute of Dental Surgery

Inexpressible judgments (Sedley J)

196

Porter v Magill

Hope: 'fair-minded and informed observer... would conclude there is a real possibility of bias'

196

what two cases show the courts stating that s.3 is not a legislative provision?

Ex p Anderson and S (Children) & Re W (Care Orders)

197

Communications Act 2003, s.321

Blanket ban on political adverts and wide definition of 'political advertising' under subsection 2 excluded NGOs

198

what was the split in Bancoult between the judges?

3:2

199

Who argues strongly against a BoR for he believes it will make UK less democratic?

J Waldron, "A Rights-Based Critique of Constitutional Rights"

200

Ex p Smith

Homosexuals

201

Ex p Begbie

Sliding scale of 'Wednesbury unreasonableness' according to Laws LJ

202

What was said about defamation in Derbyshire CC v Times?

Public authority cannot sue for defamation

203

According to Anthony Matthews, what is the irreducible minimum for a fair hearing?

Free from bias and affected party has a right to be heard

205

Nottinghamshire CC v SoS for the Environment

Grant favours Conservatives

206

Vinter and others v UK

No real possibility of reviewing life sentence

207

What did Hale say in Belfast CC v Miss Behavin'?

No incentive to consider convention rights if not subject to process review, so said if they do then they may be more deferential

208

What did the judges refuse to do in Brind?

Consider proportionality before HRA

209

Ex p Smith

Homosexuals

210

R (Plantagenet Society) v SoS for Justice

Richard III

212

What was the overarching fourth element from Huang v SoS?

Fair balance between individual and community interests

213

Malone v MPC

Tab on post office; no tort of invasion of privacy, so not unlawful and no need for statutory power

214

What case is the leading one on AS for asylum immigration

WM (DRC) v SoS for the HD

215

Although GCHQ allows review of prerogative, what does Bancoult show?

Careful in international relations/national security

216

S.12 HRA

Ensures freedom of press is not disregarded for other rights; s.12(4) requires regard to Art.10 before injunction

217

Who argued that WU is still often used post-HRA?

Craig

219

Malone v UK

Unregulated phone tapping contrary to Art.8

220

What did the High Court say in ADI?

Exec and legislative had a better grasp of states need 'in such matters of social and political jugdment' than Strasbourg

221

Who criticised the WDM case?

J Sumption in "Judicial and Political Decision-Making: The Uncertain Boundary"

222

what did Steyn say in Ex p Leech?

RoL demands right of access to courts, requiring an ability to communicate with a lawyer

223

Why did the Ullah principle come about?

To avoid frustrating the main objective of HRA

224

Who argued for WU in McDonald?

Hale

225

What is s.4 HRA unlike?

S.2(4) ECA

226

In what case did the HoL refuse to apply art.10 and legislate 'via the back door'?

Brind

227

What was said of s.4 in R v A?

'Measure of last resort'

228

S (Children) and Re W (Care Orders)

Little information to parents

229

What Act gives mandatory relevant considerations?

Equality Act 2010