Public Law Cycles 5-8

What is direct effect?

When citizens are able to enforce EU rights and obligations in National Courts

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What did the case of Van Gen den Loos confirm?

CJEU held the rights created for in individual Treaties, Regulations and (subsequently) directives could, under certain conditions, be relied upon directly by individuals in pleadings before national courts.

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What are the ECJ's 3 conditions which must be met before a Treaty Provision can have direct effect?

(a) Provision must be clear and precise (b) Unconditional (c) its operation must not be dependant on further action being taken by EU or national authorities

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What does Costa v ENEL assert in relation to the primacy of EU law?

EU law must take precedence over inconsistent national law.

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What does the European Communities Act 1972 contradict the idea of and why?

Contradicts the idea that Parliament cannot bind its successor, saying that Parliament isn't allowed to legislate contrary to EU law

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Who said in 1971 that by joining the EEC, Parliament would be acting unlawfully as they would be surrendering 'the sovereignty of the Crown in Parliament'?

Raymond Blackburn

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What does s1(1) ECA '72 show?

Reception of all EU law which is directly applicable (Regulations and Treaty Articles) without any further legal enactment by Parliament.

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What does s2(2) ECA '72 show?

Makes provisions for non-directly applicable laws (Directives) to be enacted by delegated legislation.

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What does s(4) ECA '72 show?

All legislation and future legislation is to be in accordance with EU law.

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What does s3 ECA '72 show?

UK should apply the legal principles of primacy and direct effect developed by the CJEU

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Which Lord confirms that National Law overrides Community law?

Lord Diplock

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What did Lord Denning say in Felixstowe Docks Railway Co v British Transport Docks [1976]?

Once the bill was passed by Parliament and becomes a statute, there will be no need to refer to the treaty for it is now the law.

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What did Lord Denning say 2 years after Felixstowe in Shields v E. Coombes (Holdings) ltd?

He recognised that decisions and opinions of ECJ were binding on National Courts by s3(1) E. Communities Act 1972.

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What does Macarthy's v Smith [1979] show about the construction approach?

Majority: UK statute could only be interpreted literally by courts. However, if CJEU confirmed the EU treaty article evisaged protection for the actual circumstances then national law would "give way" and court apply EU law.

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What was the dissenting opinion in Macarthay's v Smith [1979]?

(Denning LJ) EU law should be seen as part of National Law after ECA '72- courts must interpret in an 'expansive' way. Give effect to broad purposes of EU law on equality.

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What dis the HoL say in Pickstone v Freemans?

Said the current approach was inefficient. Proposes that courts say that the UK can be viewed literally, but, looking at the EU law, it can be seen that the law is much more expansive.

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What did the CoA say in Factortame?

UK court cannot grant interim relief - AoP cannot be disapplied or operation suspended because Crown Proceedings Act 1947 s21(2) prevents injunctions being made for compensation against the crown in civil proceedings + EU rights not yet proven

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What did the CJEU say in Factortame (no. 1)?

Emphasised importance not to see EU law as separate system of law. COmmunity law also take precdence over national law which prevents it from being properly enforced.

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What does Part 1 of the EU Act 2011 show?

If a treaty extends the exclusive competences of the EU then this will trigger a referendum in the UK before it becomes law through an AoP.

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What is the famous Thoburn quote?

"ordninary statutes may be implicitly repealed, constitutional statutes may not"

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What does HS2 v S of S for Transport say about resolving a 'clash' over sovereignty claims?

Where there is a clash between EU law and a constitutional statute, then "that conflict has to be resolved by our courts as an issue arising under the constitutional law of the United Kingdom" - Per Lord Reid (OD) (contradicting the idea of primacy)

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When did the EU Referendum Act receive Royal Assent?

2015

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Which areas was a significant factor in the vote to leave the EU alongside economic depression?

Those areas with low skilled work force

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When did the European Union (notification of withdrawal) Act receive Royal Assent?

March 16th 2017

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What did the Treaty of Rome 1957 assume about the EEC?

Assumed it would be governed by public international law, thought they were 'masters of the treaties', their sovereignty was intact and they would be able to determine the depth and scope of integration.

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What are the main ideas that Van Gend den Loos and Costa v ENEL set out about teh essential components of EU legal order?

1. Does more than create rights between states, creates legal rights for individuals to enforce directly before national courts. 2. EU law is to be applied in preference over competing provisions of national law - primacy/supremacy.

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What is the German Constitutional Court called?

Bundesuerfassungsegericht

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What did the German case of Brunner say?

Only constitutional legitimacy of the EU is derived from nation-states.

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Where is the protection of national identities laid out?

Art. 4(2) TEU

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What does declaration 17 of the Lisbon Treaty ?

Included a statement about primacy, giving treaty recognition to primacy as a key doctrine of EU law

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Do Regulations have horizontal and vertical direct effect?

Yes

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What was said in Munoz (case c-379/04)?

"regulations operate to confer rights on individuals which the national courts have a duty to protect"

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What was the CJEU worried about in Van Duyn v Home Office?

If direct effect wasn't given to directives, it would weaken their ability to be relied upon by individuals.

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What was the outcome of Van Duyn v Home Office?

Directives given direct effect

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What was decided in Ratti [1979]?

'estoppel' argument. Directives given a time for implementation, after which, and if there is inadequate implementation of the directive, direct effect can take effect.

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What was the problem in Marks and Spencer [2002]?

Inadequate implementation of a directive

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Which case stated that MS must refrain from passing any measure which seriously compromise the prescribed result of the directive?

Inter-Environment Walloine [1997]

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What was said by the CJEU in Mangold about enforcement of EU law in national courts?

Indicated MS must set aside any provisions national law, even where the transposition period has not yet expired, where the national provision conflicted with a 'general principle' of EU law.

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Who extended direct effect to EU Acts?

The ECJ

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Where is it stated that regulations are directly applicable?

Art 266(2) TFEU

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Do directives have horizontal direct effect?

No

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What happened in Foster v British Gas?

Dispute between individual and company but British Gas was still state-owned at the time so direct effect could be used. It was decided that the court will look into the degree of state control on the private company.

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What did the cases of CIA Security [1996] and Unilever [2000] argue about the direct effect of directives?

Parties shouldn't be disadvantaged because of the state. Failure of state to comply with procedural requirements of Directive (83/189) in both had an incidental effect on contractual disputes by indirectly imposing burdens on that private party.

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What did the case of Region Wallone clarify?

If a MS passes legislation advance of the deadline, they are obliged to refrain from adopting measures that might compromise the directive's result.

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What is indirect effect?

Created by the CJEU to use national courts as a vehicle to ensure directives would be as effective as possible and could be relied upon in disputes even though they don't have horizontal direct effect.

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What did Von Colson [1984] have to say about the duty of indirect effect? Who did Art 4(3) TEU say this applies to?

MS are under obligation to interpret national law in light of the wording and purpose of the Directive. Applies not just to the state, but all bodies of the state (e.g courts)

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What did Marleasing SA v LA internacional de Alimentacion say about what other way indirect effect can be used?

Can be used as a way of interpretation and altering national law when there's a dispute between two private parties

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What questions did Adeneler raise in light of Marleasing SA?

When does the duty arise? Takes effect after transposition period has expired.

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Which two Ancient Greeks used the idea of Separation of Powers?

Artistotle and Montesquieu

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What are the 3 types of separation of powers?

Functional separation; Personnel; 'Checks and Balances'

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What is functional separation of powers?

one branch avoids carrying out the activities of another branch.

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What is the personnel separation of powers?

Where the same individual is not permitted to be a member of more than one branch. E.g Judges shouldn't be members of the legislature.

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What are the 'checks and balances' of the separation of powers?

Requires each branch to have some control or check on each other to ensue they do not creep beyond their allocated powers.

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What are the 3 main purposes for separating powers>

Liberty, accountability and efficiency

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What is one current 'fusion' of power within the UK?

Members of the executive are members of the legislature (drawn from HoC or HoL) - fused in personnel terms.

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What was Adam Tompkins' explanation for separation of powers and 'fusion' in the UK?

There was a separation of 2 important functions and institutions (result of conflict over religion, civil war, resolved by Bill of Rights 1986). P on the one hand, Crown on the other. Judges/courts conceived as 'part of the Crown'

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What were the criticisms of Adam Tompkins' ideas about the separation of powers in the UK?

His ideas were over-generalised. He didn't take into account the current realities about how judges see their role

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What was the dissent against decision in Fire Brigades Union?

It was not for the Judiciary to make this decision, it should be brought to Parliament.

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What was the argument against the dissent in Fire Brigades Union?

Parliament is often not able/unwilling to check the power of the executive, therefore it is lawful for the judiciary to step in.

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What is the famous quote from R (Evans) v AG [2015]?

"decisions and actions of the court are reviewable by the court"

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What is the case of R (Evans) v AG also known as?

The 'Black Spider Memos'

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What was the overall decision in R (Evans) v AG?

A minister cannot set aside a decision of a tribunal because they do not agree with it.

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What was the case of M v Home Office [1994] generally about?

The importance of the executive following a court order

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What was decided in M v Home Office in the HoL?

Ministers must obey the injunctions given by the law, and by not following it, he was in breach of the law.

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Which section of the HRA is the declaration of incompatibility found?

S4

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What do the Belmarsh cases show?

Example of declaration of incompatibility (Arts 5 and 4- discrimination and right to liberty)

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What was said under s19 Immigration Act 2014 that questions judicial independence?

Less weight should be placed on the personal life formed when living in the UK when considering whether to grant asylum- P telling the courts how to do their job

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Did the CRA 2005 improve or reduce Judicial independence?

Improve

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Where is there statutory guarantee of Judicial independence

S3 CRA 205

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Which role was reformed by the CRA?

Lord Chancellor's

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When was the Supreme Court established?

2005

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What was the process of appointing judges prior to the CRA?

Formally by Queen; LC appointed district judges, lay magistrates and members of certain tribunals; no open competitions; failed to satisfy fundamental principles

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What are the fundamental principles of the Judiciary?

Independence, Transparency, Effectiveness, Diversity and Accountability

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What is the process of appointing judges under the CRA?

Vacancy arises, JAC start selection process. Combination of activities e.g role play. JAC reports selection to LC. If HC or above, Lord Chief Justice (courts) or Senior President of Tribunals (Tribunals)

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Who are the members of the JAC?

5 judges; 2 practising lawyers; 5 lay magistrates; legal tribunal member; lay judicial member

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What is the process for appointment to SC?

By the Queen ss25-31 CRA. Acts on recommendation of PM (s26(1)) who is advised by LC. s7 CRA- Commission conducts a confidential consultation exercise to gather views about candidates. s27(5) must be on merit. s28 Commission report selection to LC

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Does s159 Equality Act 2010 apply where there are two candidates of equal merit?

No

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Where is the Judiciary's commitment to diversity laid out?

s64 CRA 2005

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What did the HoL Select Committee on the Constitution, Judicial Appointments, Chapter 3: Diversity say?

"It is necessary for judges to understand the wide array of concerns and experiences of those appearing before them"

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What is the Rule of Law?

"Natural Justice" when litigating, "Due Process" in some jurisdictions

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Which Lord stated that one cannot be charged with something that wasn't illegal when it was done?

Lord Bingham

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What kind of Rule of Law did Joseph Raz argue for?

Negative, content-free 'thin' version

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What could be the possible negative ramifications of Raz's idea of RoL?

Could mean an evil legal system which could be regarded as respectful of the RoL if it conformed to required forms and processes. Takes little account of social and economical equality between people.

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What are the 3 main versions of the Rule of Law?

Formal/thin view; Stronger Version; Extended/Substantive

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What is the formal/thin view of the RoL?

Requires that ricedure for making law valid have been gone through only e.g AoP passed all legal stages. Content of no relevance to validity.

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What is the Stronger version of the RoL?

It is necessary for the law to adhere to certain standards in the way it is made/applied. Access to courts; independent legal advice; law is clear and publically stated; shouldn't be retrospective.

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What is the extended/substantive view of the RoL?

Ambitious version, the exercise of political and legal power must be restrained according to overarching values of moral principles to be found in the political community. Must have fair content.

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What was Dicey's understanding of the Rule of law?

Thin/procedural view. No man is above the law.

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What did the case of Malone v Metropolitan Police Commission [1979] show about Dicey's idea on the RoL?

It does not always work. Disputes between individuals and the government are not always resolved in the 'ordinary courts'

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What were Prof. Sir Ivor Jennings' criticisms of Dicey?

"Seemed to think that the British constitution was concerned almost entirely with the rights of individuals"

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What does s1 CRA 2005 show?

The Lord Chancellor has a positive duty to uphold the Rule fo Law in cabinet discussions and decisions (this was the first time this duty was written in a statute)

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In which recent case was there an attack on the Judiciary?

Miller [2017]

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What did the case of Anufrijeva [2003] show about the relationship between RoL and principle of legality?

Principle of legality also applies to common law.

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What did Lord Steyn say in Anufrijeva [2003]?

"notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so."

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What happened in Simms?

Court chose to interpret a statute so as to apply the principle of legality and enforce the rule of law even if it wasn't precise.

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What did Lord Steyn say in Jackson v AG?

"the supremacy of Parliament is still the general principle of our constitution" it is for the Supreme court to decide whether the RoL or an AoP should prevail.

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Public Law Cycles 5-8

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