Public Law Spring Flashcards
(57 cards)
1
Q
What is the role of courts in the UK constitution?
A
The role of courts is to:
- Interpret and apply the law.
- Ensure government actions comply with the law.
- Protect individual rights.
- Uphold constitutional principles like rule of law and separation of powers.
2
Q
What are Judicial Appointments? How are they made in the UK?
A
- A judicial appointment is the process of selecting and appointing someone to a position within the judiciary.
- These are largely handled by independent bodies, such as the Judicial Appointments Commission (JAC), who select candidates based on merit, and not political loyalty.
3
Q
What is Judicial Independence and why is it important?
A
- Judicial independence is the idea that the Judiciary should be largely independent from the legislature and the executive branches of the government (separation of powers in the UK).
- This is important to allow judges to make decisions free from the pressures of external source (such as political) and make decisions purely based on law and facts. It also increases public confidence.
4
Q
Why is diversity in the judiciary important?
A
- Diversity in the judiciary improves public trust, bringing a broader range of experiences to legal interpretation, helping to reflect the society it serves and supporting fairness and legitimacy in the legal system.
- This could also lead to fairer outcomes due to diverse life experiences and a fulfilment of democratic values.
5
Q
What constitutional powers are most relevant to the judiciary under the UK constitution?
A
- Rule of Law: Everyone, including the government, is subject to the law.
- Separation of Powers: Judiciary must be separate from executive and legislature to avoid conflicts of interest.
- Judicial Independence: Safeguards ensure judges are free from external pressures.
- Parliamentary Sovereignty: While Parliament is supreme, courts interpret its legislation within the bounds of constitutional norms.
- Accountability: Although independent, judges are accountable through reasoned judgments and appeal processes.
6
Q
What is the constitutional role of the judiciary?
A
- Dispute resolution: Courts resolve civil and criminal cases fairly and impartially.
- Interpret legislation: Applying the will of Parliament through statutory interpretation.
- Develop the common law: Through precedent-setting decisions, courts evolve legal principles.
- Constitutional adjudication: Courts decide on the constitutionality of executive actions (e.g., judicial review cases).
- Uphold rights: Ensuring rights under domestic law and, where applicable, international obligations.
7
Q
What major changes did the Constitutional Reform Act 2005 introduce?
A
- Creation of the Supreme Court (2009): Replaced the Appellate Committee of the House of Lords.
- Redefined the role of the Lord Chancellor: No longer head of the judiciary or speaker of the House of Lords; now mainly a political role as Justice Secretary.
- Established the Judicial Appointments Commission (JAC): Made judicial appointments more transparent and merit-based.
- Strengthened the independence of the judiciary:
- Formalised protections for judges against political interference.
8
Q
How did the Constitutional Reform Act 2005 change the “architecture” of the judiciary, and why?
A
How:
- Structural Separation: Judges no longer sat in Parliament (House of Lords).
- Institutional Independence: Supreme Court given its own building, budget, and administrative structures.
- Reduction of political influence: The Lord Chancellor’s judicial powers curtailed.
Why:
- To make the separation of powers more real and visible.
- To align with democratic principles (clearer division between lawmakers and judges).
- To modernise and clarify constitutional roles for public understanding.
9
Q
Should the UK have greater involvement in judicial appointments? For/against.
A
On one hand:
- Enhances democratic accountability.
- Public input may improve confidence in appointments.
On the other hand:
- Risks politicising the judiciary (seen in US Supreme Court confirmation hearings).
- May undermine public perception of judicial neutrality.
10
Q
What is meant by judicial review?
A
- Judicial review refers to the process by which courts supervise the exercise of public power, ensuring that decision makers act within the limits of their legal authority.
- Judicial review supports the separation of powers, protects fundamental rights and freedoms, maintains public confidence, etc.
11
Q
What are the competing models of judicial review as identified by Craig?
A
According to Craig, the competing models of judicial review include:
- The Red Light Model views Judicial review as a constraint on state power and attempts to emphasise individual rights, limiting government intervention.
- The Green Light Model views the law as a facilitator on government action, and therefore, judicial review should recognise the positive functions of administration.
- The Amber Light Model is a balanced model, stating that judicial review should check power and acknowledge the complexities of governance.
12
Q
What is the importance of the Council of Civil Service Unions v Minister for the Civil Service (1985) case (a.k.a the GCHQ case)?
A
The GCHQ case is important because:
- It established that prerogative powers are subject to judicial review.
- It demonstrated that the form of power does not exempt it from being scrutinised legally.
- It expanded the judicial willingness to scrutinise executive discretion, whilst recognising areas where review might be limited.
13
Q
What are the advantages and disadvantages of setting eligibility rules?
A
Advantages:
- Leads to legal certainty
- Accountability - easier to monitor compliance.
- Promotes transparency.
Disadvantages:
- Inflexibility - cannot quickly adapt.
- Administrative burden - increased complexity in drafting and enforcement.
14
Q
What are the advantages and disadvantages of giving an agency wide discretion (doing as they see fit)?
A
Advantages:
- Flexibility
- Efficiency
- Expertise-based decisions.
Disadvantages:
- Reduced accountability
- Potential for Bias
- Legal uncertainty.
15
Q
What is the relationship between discretionary powers and judicial review?
A
- Discretion is reviewable if exercised illegally or irrationally.
- In this case, courts will intervene.
16
Q
What are ‘grounds’ in judicial review?
A
- Grounds are the basis for which one might be able to challenge a decision made by a public authority.
- These are important to structure judicial review and to ensure challenges are based on recognised principles and not dissatisfaction, helping to assess if a public body acted irrationally or illegally.
17
Q
What is the meaning of ‘intra vires’ and ‘ultra vires’?
A
- Intra vires - within the powers - when a public body acts within the legal powers granted to it.
- Ultra vires - beyond the powers - when a public body acts outside the scope of its legal authority.
- An action that is ultra vires can be subjected to judicial review.
18
Q
What kind of flaws in decision making by public bodies give rise to a challenge on the ground of illegality?
A
- Acting ‘ultra vires’ - outside of the law.
- Misunderstanding or misapplying the law.
- Considering irrelevant or unimportant things when making a decision (such as refusing to help someone based on their political views)
- Using powers for the wrong reasons.
19
Q
Why might cases concerning the allocation of resources be difficult for the courts?
A
Courts might be reluctant to interfere when public bodies spend money or allocate resources because:
- These decisions involve big picture judgements, and courts don’t have the expertise or democratic legitimacy to second-guess these choices.
- Judges want to avoid stepping into areas that parliament is supposed to control.
However, courts might still interfere if:
- A resource decision is irrational.
- There is discrimination or gross unfairness.
20
Q
What is procedural impropriety in judicial review?
A
- Procedural impropriety refers to unfairness in the decision making process.
- This might mean that a public body has failed to observe procedural rules expressly laid down by law or the broader common law requirements of fairness.
21
Q
What are the constitutive elements of procedural impropriety?
A
- Failure to comply with mandatory procedural requirements (such as statutory duties).
- Breach of the principles of natural justice, including the right to a fair hearing and the rule against bias.
22
Q
What is the purpose of procedural fairness?
A
Procedural fairness is important because it:
- Protects individuals from arbitrary power.
- Enhances public confidence in the administration process.
- Encourages thorough and legitimate decision making.
23
Q
What is the importance of natural justice and the significance of Ridge v Baldwin (1964)?
A
- Natural justice secures basic human dignity, by requiring that individuals be heard before decisions affecting them are made.
- Ridge v Baldwin marked a revival of natural justice in administrative law.
- It was held that administrative decisions affecting rights must adhere to fair procedures.
- It was recognised that dismissals of public officers without a hearing was unlawful, even if the statutory framework was silent on procedural protections.
24
Q
What is meant when it is said that fairness is context dependent? Is this the right approach?
A
- The requirements of procedural fairness vary according to the circumstances.
- These circumstances might include the nature of the decision, the role of the decision maker, the impact of the decision and urgency and practicality.
- On one hand, context-dependence allows for flexibility in accommodating a wide variety of decision making environments, recognising that not all decisions demand the same level of process.
- On the other hand, there is a risk of unpredictability, as well as people in power arguing for reduced procedural safeguards under the guise of ‘efficiency’.
25
What is the rule against bias?
- The rule against bias states that decision makers must not be influenced by personal interest or prejudice. This is to ensure public confidence in the integrity of the decision making process.
26
What are the different types of bias and disqualification?
- Automatic Disqualification: Where the decision-maker has a direct financial or proprietary interest in the outcome
- Presumed Bias: Where connections (e.g., family, organisational ties) makes equality unlikely
- Apparent Bias: Where a fair-minded and informed observer would perceive a real possibility of bias, even without actual bias being proven.
27
What are the tests for bias (old and new) in judicial review?
- Old - 'real likelihood' test - focused on the likelihood of bias - rejected for being too subjective.
- New - established in Porter v Magill - Looking at whether a fair minded observer would conclude that there was a real possibility that the decision maker was biased.
28
How is administrative law evolving alongside procedural impropriety?
- Increased judicial recognition that fair procedures must adapt to human rights standards.
- Greater attention to proportionality and substantive fairness alongside traditional procedural fairness.
29
What is Wednesbury unreasonableness?
- Wednesbury unreasonableness refers to a ground of judicial review in which a decision is so irrational that no reasonable authority could have ever made it.
- This concept originated in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948).
30
How is irrationality defined in judicial review?
- Irrationality is when the decision is beyond the range of reasonable responses open to a decision maker.
- These are decisions that are outrageous in their defiance of logic or accepted moral standards.
31
What is meant by discretionary powers?
- Discretionary powers allow for public bodies to choose different lawful courses of action.
- Even when discretion exists, it must be exercised rationally; judicial review can be present if discretionary powers are exercised improperly.
32
How does judicial scrutiny vary?
Judicial scrutiny can vary based on:
- The nature of the right at stake (stronger scrutiny for when fundamental rights, such as free speech or liberty are violated)
- Type of decision maker - there might be more deterrence to elected bodies and less to administrative tribunals.
- Can range from minimal scrutiny to intensive scrutiny.
33
What is judicial deference to public bodies? What are its pros and cons?
- Judicial deference to public bodies is when courts give the weight of a judgment to a public decision maker, such as another part of government.
- Pros - Shows respect for the separation of powers, and demonstrates recognition for policy expertise.
- Cons - Risks tolerating unlawful rights-infringing decisions if courts defer too much.
- Courts must balance a respect for democratic choice against the need to uphold the rule of law and separation of powers.
34
What is proportionality review?
Proportionality review is a process in which a court examines whether a decision is excessive. It requires that:
- A measure pursues a legitimate aim.
- The means used are suitable to that aim.
- The means are necessary - the least restrictive option.
- There is a fair balance between individual rights and public freedom.
35
What are the key differences between Wednesbury unreasonableness and proportionality according to R v Secretary of State for the Home Department, ex parte Daly [2001]?
According to R v Secretary of State for the Home Department, ex parte Daly [2001]:
- Wednesbury unreasonableness is a broad, low intensity review, where intervention is only present if a decision is absurd or outrageous.
- Proportionality involves a more structured, intrusive analysis, where courts weight purposes against the rights infringed, and requires evidence that the least restrictive means were chosen.
36
What are some arguments for and against irrationality being replaced by proportionality?
For:
- The Wednesbury approach is too vague and deferential. Proportionality offers clearer analysis focused on rights, especially the HRA 1998.
Against:
- Wednesbury remains important where no fundamental rights are engaged, and total abandonment risks courts overstepping their constitutional role.
37
What are the views of Lord Reed and Lord Sumption about the irrationality vs proportionality debate in Pham v Secretary of State for the Home Department [2015] UKSC 19?
Lord Reed:
- Emphasised that proportionality involves greater judicial intrusion and must respect constitutional boundaries.
- Proportionality is not universally applicable, and should be confined to contexts where the rights protection demands it.
Lord Sumption:
- Proportionality provides a more rational, structured method for assessing the lawfulness of administrative decisions.
- Suggested that the line between Wednesbury and proportionality is blurred, especially where the fundamental rights are concerned.
38
What is the rule of law?
What are its 3 main elements according to A.V. Dicey?
What are some criticisms of A.V. Dicey's definition?
The Rule of Law states that nobody is above the law. According to Dicey, its 3 elements include:
- Supremacy of regular law - nobody can be punished unless there is a clear breach of law.
- Equality before the law - everyone is subject to the ordinary courts and the same law.
- Constitution is a result of the ordinary law - rights derive from common law decisions, not a written constitution.
Criticisms:
- This view ignored the political reality of government power and discretion.
- Reflected the 19th century class bias.
- Not aged well - modern rule of law requires a need for administrative law, human rights and proportionality, rather than just 'ordinary law'.
39
What is the difference between the content-free and content-rich understandings of the rule of law? Which one did Lord Bingham follow?
- Content-free - focuses on the form and structure of law, stating that law must be clear, public, stable and applied equally.
- Content-rich - requires that laws protect fundamental rights and achieve substantive justice - not only should courts uphold procedure but they should also protect human rights.
- Lord Bingham followed a content-rich approach, stating that the rule of law needs to include a fundamental protection of human rights, not just procedural fairness.
40
What is the principle of legality?
- The principle of legality is a common law doctrine which states that Parliament must contain clear, express language if they wish to repeal or limit fundamental rights.
- In R v Home Secretary, ex parte Simms [2000], it is stated that 'fundamental rights cannot be overwritten by general or ambiguous words'.
41
What is the relationship between parliament sovereignty and principle of legality?
- Traditional doctrine (Dicey) places Parliamentary sovereignty as absolute: Parliament can legislate on anything.
- The modern view (post-Human Rights Act 1998), suggests that the rule of law imposes limits on how Parliament can exercise its sovereignty.
- Courts increasingly recognise constitutional principles (like the rule of law, access to justice) that even Parliament must respect unless it is absolutely explicit.
- Thus, a balance is struck: Parliament retains formal sovereignty, but the rule of law acts as a constitutional constraint on interpretation and application.
42
What are common law fundamental rights?
- Common law fundamental rights are basic legal protections recognised and developed by the courts prior to and alongside statutory human rights instruments like the Human Rights Act 1998.
- Examples might include right to personal liberty, right to a fair trial, freedom of expression, access to courts, property rights, etc.
43
What is the European Convention on Human Rights (ECHR and European Court of Human Rights (ECtHR)?
- The European Convention on Human Rights (ECHR) is an international treaty drafted by the council of Europe to protect civil and political rights, such as right to life, right to a fair trial, freedom from torture, etc.
- The European Court of Human Rights (ECtHR) is responsible for interpreting and enforcing the ECHR through binding judgements against states.
44
What is the relationship between the ECHR/ECtHR and the Human Rights Act (HRA) 1998?
- Before the HRA 1998, right laid out in the ECHR were not directly enforceable in domestic UK courts. They might refer to them in interpretation, but were not bound by it.
- Many argued to incorporate ECHR into UK law due to accessibility, modernisation and legal certainty.
- Therefore, in 19988, the HRA was created to 'bring rights home', allowing individuals to assert ECHR rights into UK courts.
45
What does section 2 of the HRA say?
- Section 2 of the HRA states that UK courts should take into account ECtHR case law when determining a question involving a Convention right.
- Although courts are not bound by ECtHR decisions, they must consider them strongly and are free to depart from them for strong reasons.
- For example, in R v Horncastle 2009, the UK Supreme Court refused to follow a ECtHR decision which they deemed misunderstood English legal traditions.
46
Can UK courts extend the protection of rights beyond the level recognised by the ECHR?
- Yes.
- The HRA 1998 sets a floor, not a ceiling - UK courts can develop and extend protections under common law, or interpret convention rights more generously.
- For example, in Osborn v Parole Board (2013), common law procedural fairness offered greater protection than the ECHR minimum.
- This can happen because Parliament remains sovereign.
47
What is defined as a public authority according to section 6 of the HRA?
According to section 6 of the HRA, a public authority can refer to:
- Government departments
- Police forces
- Courts and tribunals
- Publicly funded bodies such as the NHS.
48
What is meant by a 'public function' according to section 6 of the HRA?
A public function is:
- Something that provides public services, such as healthcare or education.
- Involves the exercise of powers by a public nature
- Is funded or heavily regulated by the state.
49
What does section 3 of the HRA say?
- Section 3 of the HRA states that any legislation or law must be interpreted in a way that is compatible with human rights.
- Therefore, s3 gives judges the power to reinterpret legislation to make it compatible with human rights, however, courts cannot rewrite legislation in a way that contradicts a fundamental feature of the legislation.
50
What was the R v A (2002) case about and what was the significance of section 3 HRA?
R v A (2002):
- This case concerned a rape trial, where the claimant's sexual history could not be used as evidence.
- The defendant argued that this violated his right to a fair trial under Article 6 of the ECHR.
- Therefore, the House of Lords used s3 of the HRA to allow evidence where necessary to ensure a fair trial.
51
What was the Ghaidan v Godin-Mendoza (2004) case about and what was the significance of section 3 HRA?
- Ghadian v Godin-Mendoza concerned succession rights to a rent-controlled tenancy.
- This was under the Rent Act 1977, which referred only to 'living with the tenant with his or her wife or husband' - no mention of same-sex couples.
- Therefore, the House of Lords interpreted s3 of the HRA to interpret the statue as including same-sex couples as well - section 3 allows for modifying the meaning of a statute when needed, but not changing its fundamental features.
52
How are the strengths and weaknesses for section 3 of the HRA?
Strengths:
- Prevents breaches of rights without legislative amendment.
- Empowers courts to correct rights-violating outcomes.
- Strengthens individual rights protections
- Overall protects human rights.
Weaknesses:
- Raises concerns about separation of powers and judicial overreach.
- Excessive interpretation might risk judicial law making, undermining parliamentary sovereignty.
53
What is section 4 of the HRA?
How do section 3 and 4 of the HRA relate to one another?
- Section 4 of the HRA states that courts are allowed to issue a declaration of incompatibility when legislation cannot be interpreted compatibly with convention rights.
- Therefore, section 3 is the primary remedy, requiring courts to strive for convention-compatible interpretation, whereas section 4 is the secondary remedy, where interpretation would go beyond judicial function into rewriting legislation.
54
What are declarations of incompatibility?
- A declaration of incompatibility refers to a formal statement by a court stating that provision of primary legislation is incompatible with a convention right.
- These are used rarely, as courts often prefer to use section 3 interpretation to avoid direct conflicts with parliament.
55
How do governments respond to declarations of incompatability?
- Although it is not legally required to do so, the government will swiftly act to amend or repeal the incompatible law.
- They can use a remedial order under section 10 of the HRA or do nothing.
56
What was the case study of Bellinger v Bellinger and how did it relate to section 3 and 4 of the HRA?
- A transgender woman, Mrs Bellinger, sought to have her marriage to a man recognised, challenging the legal definition of male and female.
- The Matrimonial Causes Act 1973 required marriage to be between a man and a woman, without recognising gender reassignment.
- The court refused to reinterpret a man and woman under section 3, and instead issued a declaration of incompatibility for Parliament to legislate to recognise transgender rights.
57
How do section 3 and 4 of the HRA affect constitutional principles such as rule of law, parliamentary sovereignty and separation of powers?
- Separation of powers: heavy reliance on section 3 might result in judicial overreach, whilst section 4 maintains clear boundaries between judiciary and legislature.
- Parliamentary sovereignty: Section 4 respects parliamentary sovereignty, as parliament can amend or ignore a declaration. Section 3 might indirectly pressure parliament into changing the effect of legislation.
- Rule of law: Both s3 and 4 upholds rule of law by ensuring a rights protection and promoting government accountability.
