Public Law Cycles 11-12

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  • Created by: jmuller99
  • Created on: 24-04-18 16:34
When was the ECHR signed?
1953
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When were individual decisions allowed to be brought to Strasbourg?
In the 1960s
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When was the adoption of the Human Rights Act? When did it become effective?
Adopted in 1998, came into effect on 2000
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Before 2000 how did a case get up to Strasbourg?
Had ot go through the entire English Judicial system before an appeal could be heard
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What is the context of the Bill of Rights 1689?
Followed teh Glorious Revolution - James II kicked out and William, and Mary invited to be rulers
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What was the Bill of Rights 1689 primarily concerned with?
The role of Parliament and the King (James II)
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What was the very little said on individual rights in the Bill of Rights 1689?
Prohibition of cruel & unusual punishment & excessive bail and Rights of Protestants to bear arms in their defence
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What did Lord Coke claim in Dr Bonham's case [1610]? Which case followed this decision?
Claimed the right to declare an AoP to be void if it was "against common right and reason, or repugnant, or impossible to be performed". This was followed in the case of Pickin.
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What were the main reasons for the creation of the ECHR?
Post WW2; protect against the rise of new dictatorships; avoid another European war; provide hope for those in central and Eastern Europe living under Soviet totalitarian regimes
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What were the Government's early concerns of the ECHR?
It was vague; can't know what they would decide in Strasbourg; Judicial review would undermine PS; P wouldn't entrust legislative power in domestic courts, so why international?
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What is Art 2?
Right to life
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What is Art 3?
Prohibition of torture
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What is Art 4?
Prohibition of forced labour
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What is Art 5?
Right to liberty and security
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What is Art 6?
Right to a fair trial
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What is Art 7?
No punishment without law
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What is Art 8?
Right to respect for private and family life
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What is Art 9?
Freedom of though, conscience and religion
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What is Art 10?
Freedom of expression
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What is Art 11?
Freedom of assembly and association
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What is Art 12?
Right to marry
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What is Art 13?
Right to effective remedy
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What is Art 14?
Prohibition of discrimination in the enjoyment of rights and freedoms
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What is Art 33?
Matter being taken to ECHR: State v State
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What is Art 34?
Matter being taken to ECHR: Individual petition
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Who can be found to have breached the ECHR?
The executive, the legislature and the judiciary
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Is there such thing as an absolute limit to free speech?
No
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What are some limits on free speech?
Fraud; libel; obsecnity; sedition; "hate speech"; speech that threatens national security (e.g Official Secrets Act)
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What limits did the Public Orders Act (starting in 1936) place?
Largely limits on assembly. Prohibition on wearing uniforms as an expression of political opinion. s5 - use of threatening, abusive or insulting language.
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What was decided in Jordan v Burgoyne?
'Take your audience as you find them'
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Until the adoption of the ECHR, there was n way to contest limits on speech, unless?
A. Argument that officials were acting ultra vires. B. Extreme cases - jury nullification (see Cive Pointing - leaked info to press about a general)
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What are some examples of censorship ending?
Theatres Act 1968 (ended official censorship of plays); Licensing Act 2003 (ended censorship of films)
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What is the right to assembly?
Right to demonstrate, march, meeting etc to express opinions to let the Government know what you think
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What happened in DPP v Jones?
Group of marchers outside Stonehenge (weren't protesting, given right to peaceful assembly)
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What are the limits of assembly in common law?
obstructing the highway; public nuisance; trespass
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What are the limits of assembly in statute law?
Public Order Act 1936: Prohibition of wearing uniform as political message; prohibited abusive & insulting language; allowed police orders to ban/control processions. Public Order Act 1986: Requires written notice of processions; allows restrictions
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What happened in Westminster City Council v Haw?
Demonstration in front of HoP, council wanted him to move on but he challenged their order. No-one had been inconvenienced therefore no obstruction
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In what case was it held that police have the right to prevent a breach of the peace?
Duncan v Jones
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What was determined in Entick v Carrington in relation to the right to privacy/trespass?
Right of the public to be secure from search of their homes, even by the King's men
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What was decided in Thomas v Sawkins [1935]?
Police can enter a private hall if they anticipate a breach of public order
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What was the consequence of the ECHR decision in Malone v Metropolitan Police Commissioner?
ECHR said the nation courts were wrong and that there must be a law on wiretapping. Parliament subsequently passed a law on wiretapping requiring a warrant for it to take place.
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What was the decision in R v City Panel on Takeover and Mergers, ex parte Datafin Ltd [1987]
Private group but governing issues of takeovers etc in London. Court held that the panel were acting as if they were a government agency.
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In which case was it decided that the care home, although taking over from the government, was acting under contract and was therefore still treated as a private body?
R v Servite Homes and Wandsworth ex parte Goldsmith [2000]
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What did R v S of S for the Environment, ex parte Rose Theatre [1990] say about 'sufficient interest' meant (Senior Courts Act)?
(i) does not necessarily entail a direct financial or legal interest; (i) that the assertion of an interest does not mean sufficient interest exists (restrictive view)
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What was the liberal approach taken in the Greenpeace case?
It was in the interest of justice to allow Greenpeace, an organisation with over 400,000 supporters in teh UK, to bring an action for those concerned about the project
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Why was the Council of Europe set up? (quote)
"to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress"
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How many members of the Eu are there currently?
28
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How many members are there in the Council of Europe currently?e
47
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What are the exceptions to art 8?
unless in accordance with teh law and is necessary in democratic society in teh interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, protection of health & morals or rights
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What are the implications of the UK being a signatory to the ECHR?
Individuals enjoy rights; individuals enjoy rights as a matter of international law only; grant of; individual petition' in 1966;
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How many cases against the Uk were there in the 1960s?
5
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By the 200s, roughly how many cases are there against the UK each year?
20-50
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What happened in Sunday Times v UK [1979]?
Injunction against publication of thalidomide story in the newspaper. Breach of Art 10.
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What happened in Dugeon v UK [1981]?
Criminalisation of male homosexual conduct in Northern Ireland. Breach of Art. 8
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What happened in Soering v UK [989]?
Extradition to US to face death penalty. Breach of Art 3.
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What happened in Smith and Grady v UK?
Ban on homosexuals inthe armed forces. Breach of Art 8.
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When was there a strong push to create a Bill of Rights?
1980s
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Why was there a push for a Bill of Rights?
Fears of excessive P power and excessive executive control over P; sense of common law's inadequacy as regards to right (e.g Smith and Grady)
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What were the limitations of the pre-1998 position?
No direct effect in domestic law; requirement that domestic remedies be exhausted; cost and timing issues
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What did the Labour party promise in the 1997 election in regards to Human Rights?
Promised to enact Human Rights legislation
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What resistance was there to the incorporation of Human Rights?
Concern of transfer of power from political actors to judges, can we trust judges?
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What did the case of Griffith, The Political Constitution [1979] highlight and how?
The power of the Courts over legislation - SC said workers only being allowed to work 13hrs a day under statute violated the constitution as it prevented the workers from entering into any contract with their employers and struck down the state law.
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Is the 1998 HRA entrenched?
No, it can be repealed at any time.
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What was the aim of the HRA? (quote)
"to give further effect to the rights and freedoms guaranteed under the European Convention on Human Rights"
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What are the standards of review for decision of the ECHR?
Illegality and procedural impropriety are general parts of common law (dealt with in Public 2). Irrationality and proportionality are important considerations in HR cases.
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There is a tension between the review on rationality grounds with what and why?
The purpose of judicial review - it considers the substance (the outcome of the decision-making process) and risks being a question of merit
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How strict is Wednesbury Unreasonableness?
very strict, court is unlikely to overrule local government because when we are not dealing with a HR problem, it can be dealt by legislation (petition, vote out of office etc)
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What is Wednesbury unreasonableness?
"so unreasonable that no reasonable authority could ever have come to it"
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What example was given by Warring LJ in Short v Poole Corporation of something which would be considered unreasonable by Wednesbury standards?
Red-haired teacher dismissed because she has red hair
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What was said in GCHQ about Wednesbury Unreasonableness?
"By 'irrationality' i mean what can now be succinctly be referred to as 'Wednesbury Unreasonableness'. It applies when a decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person...could have arrived"
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What is the logic of Wednesbury?
Reflects SoP, esp. P's choice as to who should be entrusted with decision-making power; reflects the 'relative institutional competence' of courts as opposed to original decision-maker; courts have developed themselves
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In what was can Wednesbury Unreasonableness be seen as inadequate? (Jowell and Lester)
Doesn't supply sufficient justification for Judicial intervention. Intellectual honestly requires a further and better explanation as to why the act is unreasonable
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In what was can Wednesbury Unreasonableness be seen as unrealistic? (Jowell and Lester)
Teh courts are will to question decision that are far from absurd and are actually rational
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In what was can Wednesbury Unreasonableness be seen as confusing? (Jowell and Lester)
allows the courts to interfere with decisions that are unreasonable and then defines an unreasonable decision as one which no reasonable authority would take
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What is heightened or 'anxious' scrutiny?
A more demanding standard of review (i.e one less hesitant to call it into question)
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What was considered in R v Ministry of Defence, ex parte Smith [1996]?
Challenge to blanket ban on homosexuals in the armed forces. Unreasonable under Wednesbury? Probably not
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What test was adopted in ex parte Smith?
"the court may [only interfere when] the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker"
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What are the 4 stages of the Proportionality test?
Has a protected interest been interfered with?Does the this take place in pursuit of some 'legitimate aim'? Was the interference necessary to achieve this aim? Is there a relationship of proportionality between interference &the positive consequence
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What was decided in Strasbourg (Smith and Grady v UK)?
Agreed there was a breach of Art 8 and Art 13. Even the anxious scrutiny was insufficient to protect the convention right
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What was the decision in R (Daly) v SSHD [2001]? (blanket policy of searching cells in prisoners' absence)
Held unlawful at common law and would be same under HRA. Need is not strong enough to outweigh the rights of prisoners.
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What's the first of Lord Steyn's 3 differences between the traditional grounds of review and proportionality (Daly)?
Proportionality may require the court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions
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What's the second of Lord Steyn's 3 differences between the traditional grounds of review and proportionality (Daly)?
Proportioanlity test may go further than traditional review as it may require attention to be directed to the relevant weight accorded to interests and considerations
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What's the third of Lord Steyn's 3 differences between the traditional grounds of review and proportionality (Daly)?
Even the heightened scrutiny test (Ex Parte SMith) may not be necessarily appropriate to the protection of human rights
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What is deference?
Polite submission and respect
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When might deference be exhibited by courts?
In questions of necessity and proportionality?
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In which case was there an exhibit of deference by the courts?
Farrakhan - Home Secretary is "far better placed to reach an informed decision as to the likely consequence of admitting Mr Farrakhan to this country than is the court"
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What are the 3 contexts that proportionality now operates in?
Review of actions by public authorities which interfere with common rights of the individual, qualified rights that individuals enjoy under ECHR and in EU law contexts
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What test remains elsewhere?
Rationality review
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When were individual decisions allowed to be brought to Strasbourg?

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In the 1960s

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When was the adoption of the Human Rights Act? When did it become effective?

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Preview of the front of card 3

Card 4

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Before 2000 how did a case get up to Strasbourg?

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Preview of the front of card 4

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What is the context of the Bill of Rights 1689?

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