Public Law

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Author:
ericburger
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274346
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Public Law
Updated:
2014-05-14 21:56:52
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public law UK
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Undergraduate Public Law
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  1. Constitution
    • 1) Written+Unwritten (Uncodified)
    • 2) Rigid+Flexible
    • 3) Republican+Monarchical
    • 4) Unitary+Federal (Multilayered)
  2. Westminster model
    • 1) Gov. from House of Commons
    • 2) Parliament apex, unchecked by const. court
    • 3) ministers are accountable to Parliament

    • Delegated leg: affirmative, negative procedures
    • back-bench MPs, draft Bills
  3. Hirst v UK (2005)
    Complete ban on voting by prisoners (Representation of the People Act 1983) breaches Protocol 1, Art.3 ECHR
  4. Madzimbamuto v Lardner-Burke (1969)
    affirmed by Lord Bingham in R(Jackson) v Attorney General (2005)
    Southern Rhodesia Act 1965: Lord Reid: Southern Rhodesia remained a British colony - Parliamentary supremacy
  5. Edinburgh and Dalkeith Railway Co v Wauchope (1842)
    affirmed by Lord Reid in British Railways Board v Pickin (1974)
    Enrolled Bill Rule: Lord Campbell: Act of Parliament will not be challenged by courts due to defects or procedural irregularities
  6. Ellen Street Estates Ltd. v Minister of Health (1934)
    Doctrine of implied repeal
  7. Thoburn v Sunderland City Council (2002)
    Constititutional Statutes, defining fundamental rights must be repealed expressly (and not impliedly): EC Act 1972, Magna Carta, Bill of Rights 1689, Acts of Union, Reform Acts, Scotland/Wales Act 1998, HRA 1998
  8. Minister of the Interior v Harris (1952)
    manner and form argument
  9. Parliament Acts 1911 and 1949
    • Money Bills must be approved without amendment within one month
    • Government of Ireland Act 1914
    • War Crimes Act 1991
    • Hunting Act 2004
  10. MacCormick v Lord Advocate 1953
    Parliamentary supremacy not part of Scottish Law
  11. Jackson v A-G (2005)
    Supremacy of Community Law restricts absolute authority of Parliament
  12. Bingham's 8 sub-rules
    • 1) accessible, intelligible, clear, predictable
    • 2) solve questions by applying the law not discretion
    • 3) equal to all (except objective differences)
    • 4) ministers/public officials excersise powers in good faith, fairly, for the purpose, without exceeding limits, not unreasonably
    • 5) fundamental rights
    • 6) dispute resolution: without prohibitive cost or undue delay
    • 7) fair adjudicative procedures
    • 8) compliance with international law
  13. Dicey's 3-part
    • 1) no punishment/loss except for breach of law established in court, no arbitrary/discretionary power
    • 2) no one is above the law
    • 3) general principles of constitution are results of judicial decisions determining rights of private persons
  14. Entick v Carrington (1765)
    warrant to seize powers not justified by statute/common law
  15. M v Home Office (1994)
    Home Secretary guity of contempt of court for deporting an asylum seeker
  16. A v Secretary of State for the Home Department (2005)
    detention of non-UK security threat individuals under the Antiterrorism, Crime and Security Act 2001 discrimination under Article 14 ECHR
  17. R (Corner House Research) v Director of the Serious Fraud Office (2008)
    decision to drop prosecution of an arms company for corruption on grounds that national security was threatened was lawful
  18. A v Secretary of State for the Home Department (2004)
    -public emergency threatening life of nation-ACTSA 2011 detention not proportionate-discrimination
  19. A,D,C v Secretary of State for the Home Department (2005)
    acceptability of evidence that may have been obtained by torture
  20. ECtHR: Chahal v UK (1996)
    Article 3 ECHR may prevent the forced deportation
  21. Re P and others (2008)
    • unmarried northern irish couple may adopt, even though ECtHR Frette v
    • France (2003) permitted discrimination against single homosexual
  22. Ghaidan v Godin-Mendoza (2004)
    • a person living with the original tenant as his or her wife or husband
    • may be interpreted as including same-sex partners under s.3 HRA
  23. Associated Provincial Picture Houses v Wednesbury Corporation (1948)
    Irrationality: Wednesbury unreasonableness
  24. Procedural Fairness
    Instrumentalism: correct outcomeProcess Values: respect to dignity and autonomy of individuals
  25. Legitimate Expectations
    • Council of Civil Service Unions v Minister for the Civil Service (1985):
    • past practice of consulting unions over changes to t'n'cs: expectation,
    • however: non-justiciable nat. securityR v North and East Devon Health Authority, ex p Coughlan (2001): stay in nursing home for life.
  26. Representation must not conflict with statute
    R v Department of Education and Employment ex p Begbie (1999): no assisted place, since scheme abolished by statute
  27. Representation must be clear and unequivocal
    R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (2001): not a clear and unambiguous promise to Chagos Islanders to return (foreign affairs non-justiciable)
  28. Constitutional Basis for Judicial Review
    • Forsyth: expressly/implicitly Parliament
    • Jowell: unwritten
  29. Carltona v Commissioner of Works (1943)
    delegate to departments, retain ministerial responsibility
  30. British Oxygen Co v Ministry of Technology (1971)
    unfettered excersise of discretion
  31. Padfield v Ministry of Agriculture, Fisheries, and Food (1968)
    Ministry must act in accordance with general purpose of Act, not improper purposes.
  32. Magill v Porter Magill v Weeks
    improper purpose: sale of council housing stock to give Conservative Party an advantage
  33. R v Secretary of State for Foreign Affairs, ex p World Development Movement Ltd. (1995)
    Standing
  34. R (Broadway Care Centre Ltd) v Caerphilly County Borough Council (2012)
    R (Bevan & Clarke LLP & others) v Neath Port Talbot County Borough Council (2012)
    Amenability (Caerphilly Contract, not amenable)
  35. JMC
    Joint Ministerial Committee, agreements: concordats (referendum Scottish independence)
  36. Direct Effect
    ECJ: Van Gend en Loos (1963): precise, clear, unconditional, no further measures
  37. Felixstowe Docks Railway Co v British Transport Docks Board (1976)
    later statute and overriding EU law
  38. Construction approach
    Macarthy's v Smith (1979): presumption: Parliament intended no EU conflict
  39. Disapplication approach
    R v Secretary of State for Transport, ex p Factortame Ltd and others (No 2) (1991)
  40. Jackson v A-G (2005)
    Hunting Act 2004 passed under Parliament Act 1949 is not delegated legislation, but primary legislation under the Parliament Act 1911
  41. Salisbury-Addison Convention
    House of Lords should not oppose proposals put before the electorate (manifestos, coalition agreement)
  42. Henry VIII clause
    enables ministers to amend Acts of Parliament using SI
  43. Pepper (Her Majesty's Inspector of Taxes) v Hart (1995)
    Hansard tool for statutory interpretation
  44. Ram doctrine
    Malone v Metropolitan Police Commissioner (1979)
  45. A-G v De Keyser's Royal Hotel 1920
    complete overlap prerogative-statutory, statutory wins
  46. R v Secretary of State for the Home Department, ex p Northumbria Police Authority (1989)
    no clear overlap prerogative/statutory, courts may follow one or other
  47. R v Jones and others (2006)
    Chandler v Director of Public Prosecutions (1964)
    courts reluctant to challenge prerogative power to go to war and deploy troops
  48. Prerogative Powers
    • Government/Civil Service
    • Justice/Law+Order
    • Foreign Affairs
    • Armed Forces, Wars, Emergencies
    • Miscellaneous
    • Archaic
  49. Duport Steels Ltd. v Sirs (1980)
    R v Secretary of State for the Home Department, ex p Fire Brigades Union (1995)
    separation of powers
  50. ECtHR: McGonnell v UK (2000)
    separation of legislative/judiciary
  51. R (Wheeler) v Office of the Prime Minister (2008)
    courts do not judge on political issues
  52. European Council
    Heads of State/Government
  53. Council of the EU
    QMV
    • One ministerial representative from each MS government
    • Qualified Majority Voting: number of MS, proportions of total population represented by MS
  54. European Commission
    • appointed, not accountable to MS gov
    • initiate and draft legislation
  55. European Citizen's Initiative
    improve social acceptance by engaging EU citizens
  56. UK Parliament Accountability Committees
    • Commons: European Scrutiny
    • Commons: Foreign Affairs
    • Lords: EU Select
  57. Treaties: opt-outs
    • TEU
    • TFEU
  58. EU Act 2011
    requirement to hold referendum after future significant treaty change
  59. Judicial Review: Illegality
    • Delegating discretion
    • Fettering discretion
    • Relevant and irrelevant considerations and improper purposes

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