Public and EU Law SQE FLK 1

Carltona Doctrine

When Parliament grants a power to the Secretary of State in an Act, that power could be exercised by a civil servant within the Secretary of State's department.
Carltona v Commissioners of Works 1943

Ponsonby Rule now codified in Constitutional Reform and Governance Act 2010

Requires that every treaty signed by the United Kingdom subject to ratification should be laid before Parliament for 21 sitting days (although they need not be continuous).

Uncodified constitution

A constitution that has several sources, which may be written or unwritten.

Sources of the Constitution

Statute
Case Law
Conventions
Authoritative Works
ECHR via HRA 1998
International Treaties
EU assimilated law

The Rule Of Law (basics)

No punishment without breach of the law
Equality of the Law
Law is not retrospective
The law should be clear, predicable and intelligible.
Respect for the Human Rights Act and Fundamental Rights
The ability of Judicial Review.

Parliamentary Sovereignty basic definition

Grants the legislature the power to make or overturn any law and permits no veto from the courts which means that Parliament cannot bind itself.

Power of the Court

Power of interpretation of statute
Development of common law
No veto power
Higher courts can make declarations of incompatibility under the HRA 1998 section 4 for human rights matters.

Ram Doctrine

Government shall have the power to carry on ordinary business even if the power is not explicitly set out by statute or royal prerogative

Conventions definition

Political rules which help regulate the constitution (no legal implications from breaking)

Devolution

The transfer of powers and responsibilities from the government to other states.

Three elements of Parliamentary Sovereignty

Parliament can make and unmake any laws
Parliament cannot bind itself
Only Parliament can override itself

Enrolled Bill Rule

Once a bill passes a legislative body and is signed into law, the courts assume that all rules of procedure in the enactment process were properly followed. COURTS DO NOT QUESTION VALIDITY.

Implied repeal

Under PS where two Act conflict, the latter will take precedent.

The Separation of Powers

Checks and balances of the Institutions against each other.

What are the Institutions of Governance?

The Legislature
The Executive
The Judiciary

The Legislature

Parliament - make the law
Bicameral - House of Commons (elected) and House of Lords (unelected)

The Executive

The Cabinet. - implement the law and govern.
Made up of members of The Legislature.

The Judiciary

Interpret the law and ensure The Executive is acting within the law prescribed by Parliament.
Independently selected.

House of Commons

650 elected members
1 Speaker
Elections after 25 days of dissolution either five years after the first meeting or earlier by the Monarch under the royal prerogative.

Recall of MPs Act 2015

Allowed constituents to sack their MP in the event of wrongdoing. Requires 10% of the constituents to sign a petition then a bi-election is held. MP can still stand in the bi-election

House of Lords

800 members
Hereditary Peers - House of Lords Act 1999 - 92 left
Life Peers - Appointed by the Monarch on guidance of the PM.
Lords Spiritual - 26 Bishops from Church of England
Law Lords - some remain after 2009

Legislative Process

First reading
Second reading
Committee stage
Report Stage
Third Reading
Consideration Amendments
Royal Assent

First Reading (HoC)

Introduces the bill

Second Reading (HoC)

principles of the bill are debated

Committee Stage (HoC)

line by line walk through
Public Bill Committee - 16-30 MPs proportional party representation.
Committee of The Whole House - urgent or uncontroversial bills heard by the whole chamber.

Report Stage (HoC)

received from committee and amendments are made.

Third Reading (HoC)

Final review of the Bill before being passed to the Lords.

Third Reading (HoL)

Final opportunity for the Lords to make amendments.

Salisbury Convention

The convention whereby the House of Lords does not delay or block legislation that was included in a government's manifesto.

Parliament Acts 1911 - 1949

Two acts that limited the power of veto of the House of Lords by allowing the House of Commons to pass legislation by itself when it reintroduces a bill rejected by the Lords in the following session of Parliament, a year needs to have passed.

Sunset Clause

A component of an Act that defines an expected end date for its applicability.

Two types of secondary legislation procedure

Negative
Affirmative

Explain negative resolution procedure in secondary legislation

A draft is laid before both chambers. It will take effect in 40 days unless there is a vote contrary. It cannot be amended.

Explain affirmative resolution procedure in secondary legislation

The houses must vote in favour of passing the legislation. The house of lords can veto this type of legislation. It can debated but no amendments can be made to it.

Henry VIII powers

power for minsters to amend not only secondary but also primary legislation without parliamentary scrutiny

Secondary legislation

Law made by ministers, who have been granted this authority by an Act of parliament, rather than by parliament. Can be struck down by courts if outside of power granted by statute or courts can apply limitations if actions conflict with the rule of law.

Parliamentary privilege

The right of MPs or Lords to make certain statements within Parliament without being subject to outside influence, including law.

Sub Judicie Rule

requires that MPs do not refer to cases that are currently before the courts

What is the exception to parliamentary privilege?

Hansard debates may be referenced in court cases as an aid to interpretation.

What are the limits to the royal prerogative

- No new prerogatives can be made
- Statute can override the prerogative
- The crown cannot use the prerogative to thwart the intention of parliament
- The prerogative cannot be used to change the law
- Statutes do not bind the crown unless expressly stated or by necessary implication

Name four key ministerial prerogative powers

1. Negotiation and (subject to CRAG 2010) the ratification of international treaties. (See Ponsonby Rule)
2. The deployment of armed forces and declarations of war.
3. The Prime Minister's appointment of the Cabinet and removal of ministers.
4. The grant and revocation of passports.

What is a ministerial prerogative power?

A power exercised by the government on behalf of the crown.

What are the key personal prerogative powers of the monarch?

Royal Assent
Proroguing Parliament
Dissolution of Parliament
Appointing the PM

Legislative Prerogative Powers examples

Royal Assent
Passing Orders in Council

Judicial Prerogative Powers examples

Granting pardons
'Advised' on appeals by the Judicial Committee of the Privy Council which hears appeals from some Commonwealth Countries. (Privy council makes the decision)

What happens when an international treaty is voted against within the 21 days?

Government explains why ratification. House of Commons additional 21 days to vote in against. If no vote is held then it passes automatically.

The Cardinal Convention

Monarch always acts on advice of ministers

Convention over going to war

Ministerial power under the prerogative but convention means it should be supported by parliament

The Prime Minister

Convention - the leader of the house majority.
Constitutional role.
Power over the Organisation of the Government
Responsible for the
- Civil Service.
- Armed Forces
- Security and Intelligence
- International relations

PM and a hung Parliament

PM remains in office until clear they have lost the confidence of the house.
When decided who can command a majority the PM resigns and the Monarch appoints the new person.

Government Ministers

MPs appointed by the Prime minister. They are responsible for important areas of government (called portfolios), such as employment, Indigenous affairs or the Treasury.
By convention they must be members of one of the Chambers of Parliament.

The Cabinet Ministers

Senior government officials.
determining domestic policy
Solving constitutional issues
Deciding on military action
Setting the legislative agenda

Two rules of the Cabinet.

Collective responsibility
Confidentiality

When can collective responsibility be set aside?

When the PM decrees it.

individual responsibility

The principle by which ministers are responsible for their personal conduct and for their departments.

Duties of Ministers

- Not to mislead Parliament
- Duty to give account
- Duty to take responsibility for their department.
- Abide by the Ministerial Code

When should a minister give account?

when there is an operational failure in their department.

When should a minister take responsibility?

When there is a policy failure or serious breach of conduct.

How is the government accountable to parliament?

Prime Ministers question time
Ministerial Questions
Opposition Business (20 Opposition days)
Urgent Questions
Select Committees

What are the things you cannot ask about during ministerial questions?

Local authorities
The Monarch
The affairs of other countries
Matter of devolved states
Cases currently in the courts

Devoltion

A process in which powers from the central government in a unitary system are delegated to subnational units

What is needed to abolish devolution in Scotland and Wales?

Act of Parliament and a referendum in that country which agrees.

Sewel Convention

The Westminster Parliament will not normally legislate with regard to devolved matters in Scotland, Wales or Northern Ireland without the consent of the devolved administration

When can a devolved court refer something to the supreme court for a decision?

When they have acted outside of their legislative competence
Legislates contrary to the ECHR

When else can the supreme court give an opinion on a devolved matter?

When a bill is in the process of being passed which may or may not breach their legislative competence.

Who in a devolved power may make a reference to the Supreme Court on a Devolved Government Bill. (Scotland)

Attorney General
Advocate General
Lord Advocate

Who in a devolved power may make a reference to the Supreme Court on a Devolved Government Bill. (Wales)

Attorney General
Counsel General

Who in a devolved power may make a reference to the Supreme Court on a Devolved Government Bill. (NI)

Attorney General
Advocate General

Requirements for Judicial Review.

1. claim must be against a public body
2. correct protocol
3. within time limits (no later than three months or six weeks for planning permission)
4. Is the issue reviewable (of law not fact)
5. is the issue live?
6. does the claimant have sufficient interest?
7. is it a last resort

Grounds for refusing judicial review

If the outcome would not change substantially is successful.

Grounds for judicial review

illegality, irrationality, procedural impropriety, legitimate expectations.

Illegality as a ground for judicial review

Errors of law, ultra vires, failure of specific duty (due regard), unlawful delegation of power, irrelevant considerations.

Procedural impropriety as a ground for judicial review

Mandatory/Directory requirements, right to be heard, rule against bias, duty to consult, duty to give reasons.

Explain the key features of the rule against Bias.

Actual Bias
Automatic disqualification rule - where there is financial interest from the decision maker
Apparent Bias - would a fair minded person think there would be bias?

Legitimate expectations

The principle that public officials who create the expectation of a certain result, or an expectation that a certain practice or procedure will be followed, should not be able to change that result, practice, or procedure where the change will have an adverse effect without first notifying those who will be affected & giving them an opportunity to comment on the proposed change

Two types of legitimate expectation

1. procedural (promise or assurance has been made to follow a certain procedure)
2. substantive (small number and specific important promise)

Unreasonableness and Irrationality as a ground for Judicial Review

Available where the outcome is utterly outrageous in its defiance of logic.

Test used for judicial review involving human rights

The proportionality test.

Remedies for judicial review

Quashing order
Mandatory Order - Prohibiting Order, Injunction.
Declaration

Features of remedies in JR

They may be combined and are discretionary.

Human Rights Act 1998

Act of Parliament that incorporated the European Convention on Human Rights into UK law, making it enforceable in UK courts

What are absolute rights?

rights that can't be compromised or diminished in any way

List the four absolute rights

A2 - right to life
A3 - right to be free from torture
A4 - Prohibition of slavery
A7 - prohibition on retrospective criminal offences

Limited Rights

Limited only in the circumstance prescribed within the Article.

Qualified Rights

Rights limited by the state to pursue a legitimate interest as outlined in the article.

The tests for a restricting a qualified right.

Legitimate Aim
Prescribed by law.
Necessary in a democratic society
Proportional

Margin of Appreciation

doctrine that posits that because states have more knowledge about their own social context, a court ought to defer to states when applying legal standards

When where there be a wide margin of appreciation?

Where there is no or little consensus among the states.

When where there be a narrow margin of appreciation?

Where there is agreement from the states.

Feature of the ECHR

Living Instrument
Not bound by previous decisions
Will likely follow consistent approach from contracting states
Must be Accessible

Derogation from the ECHR

Cannot derogate from absolute rights
Only in the event of war or threat to the life of the nation.
Must only be to the extent strictly required by the situation.

HRA section 2

UK court must take into account decisions of the EctHR (The mirror principle)

HRA section 3

UK court must so far as possible interpret legislation in line with the ECHR

HRA section 4

Declaration of incompatibility

Who can make a declaration of incompatibilty?

High Court
Court of Appeal
Supreme Court.

HRA Section 10

fast track procedures for parliament to correct statute that is incompatible. Urgent and Non-Urgent

HRA Section 6

Definitions of a public authority and illegal for a public authority to act contrary to a protected human right unless Statute gave no other option.
Cannot be House of Commons or House of Lords.

HRA Section 7

Proceedings against public authorities for an action under Section 6.

What are the requirements of JR for Human Rights.

Found in s6 and s7.
Must be a Public Authority
The Victim Test
Within a year of the complained act.

HRA Section 8

Allows all remedies of normal JR where it is just and appropriate for an action under section 6. Also allows for damages.