Public Law Cycles 9 - 10 - Flashcards in University Law

What is said in Entick v Carrington [1765] that showed the Common Law's commitment to the Rule of Law?

Public bodies must have legal authority to interfere with people's rights

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Which is the phone tapping case?

Malone v Metropolitan Police Commissioner [1979]

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What are the 3 main sources of legal authority?

Statute law; Preoperative Powers; Third-Source Power

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What is the difference of the source of Prerogative Powers and Statutory powers?

SPs are created by Parliament whereas PPs are residual powers predating development of Parliament in its modern form

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Can any new prerogative Powers be made?

No

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What is the legal status of Prerogative Powers?

Part of the Common Law, may be abolished/restricted by an AoP

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Since when have Prerogative powers been subject to Judicial Review?

1984

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In what circumstance are Prerogative Powers NOT subject to Judicial Review?

When they are 'non-justiciable'

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Can Parliament alter Prerogative Powers?

Yes

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In which century were Prerogative powers established?

17th Century

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What were the main reasons for adopting prerogative powers?

To change the law without going through Parliament; to disapply the law; and to tax without P's consent

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In which case was it asserted that the King cannot make law without Parliament?

Proclamations

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What was said specifically in Proclamations about the King's law-making powers?

"the King hath no prerogative, but that which the law of the land allows him"

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What amendments did the Bill of Rights 1689 make to the Prerogative Powers?

No taxation can be made by prerogative; no power under the prerogative to suspend or dispense with laws

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What is Blackstone's definition of the nature of the Prerogative?

"special pre-eminence which the king hath over and above all other persons" - only things the King alone can do

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Dicey

"residue of discretionary or arbitrary authority, which at any given rime is legally left in the hands of the crown"

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What are the 3 main categories of Prerogative Powers?

The Crown's Legal Prerogative; The 'Personal Prerogatives'; and The 'Executive Prerogatives'

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What was the common principle that drove the Crown's prerogatives?

The principle taht 'the crown can do no wrong'

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Which AoP reversed the practice that the Crown could not be sued in Tort?

The Crown Proceedings Act 1947

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Does the monarch still have criminal immunity?

Yes

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What is the Crown's legal immunity?

Any speech or debate in Parliament is not liable for criminal proceedings. However, this is only in P, cannot go outside and say the same (the place is immune, not the people)

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In what situation does statute bind the Crown?

When express words or necessary implications are used

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What are some of teh 'personal; prerogatives' exercised by the monarch personally?

Appointment of PM and otehr ministers; Assent to legislation; Right to advise, encourage and warn

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Which was the most recent monarch to refuse Royal assent and when was this done?

Queen Anne in the early 18th century

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What are the 'executive prerogatives'?

Powers exercised on the day-to-day basis by ministers, in the name of the crown

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Is the Crown the same as the Monarchy?

No - The monarchy is the family, the Crown is the office

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What are some examples of 'executive prerogatives'?

Foreign affairs; making and ratification of Treaties; conduct of diplomacy; Governance of British overseas territories; declaration of war and deployment of armed forces; grant and revocation of passports

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Who said "it is 350 years and a civil war too late for the Queen's courts to broaden the Prerogative"?

Diplock LJ

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Name an example of a statute which limited prerogative

T%he Bill of Rights 1689

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Which Act gives statutory basis to the prerogative powers to dissolve Parliament?

Fixed-term Parliaments Act 2011

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What was said in AG v De Keysewr's Royal Hotel Ltd by Lord Dunedin?

"What use would there be in imposing limitations, if the crown could at its pleasure disregard them and fall back on prerogative?"

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In which case was it highlighted taht statutory powers must prevail over the prerogative if they conflict?

Burmah Oil Company Ltd v Lord Advocate

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Can the executive use PPs in a manner which means an AoP would not be brought into force? Which case shows this?

No - Fire Brigades Union

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What was said in Northumbria Police Authority?

"the scarcity of reference in the books to the prerogative of keeping the peace within the realm does not disprove that it exists. Rather it may point to an unspoken assumption that it does"

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What was review of the prerogative like pre-GCHQ?

Political rather than legal accountability. Courts would review the existence, scope and extent of the PPs.

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In which case was its stated that "teh King hath no prerogative, but that which the law of the land allows him"

Proclamation

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Are Conventions legally enforceable? If the Queen decided she wanted Corbyn instead of May, could May take the Queen to court under the convention?

No

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In which case was it confirmed that accountability for the exercise of PPs is political, not legal?

China Navigation Company v AG

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What was said by the HoL in Gouriet v Union of Post Office Workers?

The AG's decision to not consent to bringing of a relator action against the post office was not reviewable.

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What was teh Government's argument in the GCHQ case?

PPs weren't subject to judicial review and even if they were, but was applicable in this situation because the actions taken were a matter of national security.

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What was said by Lord Fraser in GCHQ? (part 1 of quote)

"If the order in Council of 1982 had been made under the scrutiny of statute, the power...would have been construed as being subject to an obligation to act fairly"

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What was said by Lord Fraser in GCHQ? (part 2 of quote)

"I am unable to see why the words conferring the same powers should be construed differently merely because their source was an order in council made under the prerogative"

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Did Glidewell J agree or disagree with Lord Fraser in GCHQ?

He agreed

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What was the outcome of GCHQ?

Although teh Union did have a legitimate expectation of consultation and exercise of PP would normally have been held to be unlawful, it was agreed that national security required consultation not to take place.

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Under what circumstances did Lord Scarman say it was determined whether or not a PP is reviewable?

"the controlling fcator in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter"

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What are the examples Lord Ruskill gave of non-reviewable subject matters (of PPs) for judicial review?

Mercy; Grant of honours; Dissolution of Parliament; Appointment of Ministers

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What happened in the case of R v S of S for foreign and commonwealth affairs ex parte Everett [1989]?

Refusal to grant a passport to a man, living in Spain, in respect of whom an arrest warrant was outstanding.

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What was the question for the Court in ex Parte Everett?

Can courts review the PP to issue passports?

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What was O'Connor LJ's decision in ex parte Everett?

"If for some reason a passport is wrongly refused for a bad reason, the court should be able to inquire into it. I would reject the submission made on behalf of the Secretary of State that the judge was wrong to review the case"

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What was the deciison in Regina v Secretary of State for the Home Department ex parte Bentley [1994]?

The actual grant of pardon can (probably) not be reviewed, but the Home Secretary's failure to recognise that there are multiple forms of pardon could be.

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What happened in R v Ministry of Defence (ex parte Smith) [996]?

Challenge to the legality of homosexuals serving in the armed forced. Argued there was no review of PP of defence of the realm on the grounds of rationality. This was rejected. Even broadly non-reviewable powers raise reviewable issues.

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What are the case facts from Bancoult?

Establishment of US military base on Diego Garcia. Island depopulated for this. Residents were promised they'd be allowed back, but this was not followed through with.

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What was determined in Bancoult [no. 1]? Did the Government follow through with this decision?

Allowed challenged of Immigration Order 1971 which the government agreed to, but did not follow through with.

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What did the Government do after Bancoult [no.1]?

Re legislated, making 2 new prerogative orders in Council.

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What exactly was in that Mr Bancoult was challenging in Bancoult [no.2]?

The orders themselves - breach of fundamental rights (right of abode)

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What did Lord Hoffman say about Orders in Council being reviewed?

"I see no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action"

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What did the majority decide in Bancoult?

There are certain rights which the prerogative cannot override, but the right of abode was not one

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What are the main pros for formalising Parliamentary involvement in light of Conventions?

Increased legitimacy; increase accountability of decision-making; 'better' decision making; positive impact on military morale

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What are the main cons for formalising parliamentary involvement in light of conventions?

Undermining effectiveness of operations; maintaining executive responsibility for action should be maintaines; difficulties of informed decision-making; legal impact of legislation; undermining morale

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What is the new approach to war powers? Who started it?

Tony Blair had a debate in P before committing troops to Iraq (advisory rather than a vote). In 2013, Cameron sought approval.

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What is 'The Government'?

Prime Minister (1); Cabinet Minister (21); Other Ministers (99)

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How often does there have to be an election in the HoC? What's the authority?

Fixed Term Election Act - every 5 years

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What is the Convention of Individual Ministerial Responsibility?

Individuals are bound by ministerial responsibility- ministers are accountable for policy and operational matters

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What is the scope of Individual Ministerial Responsibility?

"a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies"

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How does R. Brazier describe Collective Responsibility?

All ministers "must accept cabinet decisions, or dissent from them privately while remaining loyal to them publicly, or dissent publicly and resign, unless collective responsibility is waived by the cabinet on any given occasion"

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When recently was collection responsibility suspended by the PM and why?

During the referendum campaign in order to keep various Euro-sceptics in the Government.

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What is the specific requirements set out by the Fixed Term Parliaments Act 2011?

ss2(1)/(2) - 2/3 of MPs must vote to have an earlier election. ss2(3)/(4)/(5) (i) specific motion "that this House has no confidence in Her Majesty's Government"

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How many days are there then to stop the requirement for a general election and what must be done?

14 days - pass a new motion by majority "that this House has confidence in Her Majesty's Government"

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What are oral questions in Parliament?

Monthly appearance of Minister before the HoC for oral questions about issues relating to the specific portfolio. Also, weekly appearance (weds 12pm) of the PM.

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What are written questions in Parliament?

Getting down to specifics (certain restrictions on what can be asked)

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What are Parliamentary debates?

Government of the day are often able to cut short debates on issues because it determines the business of the HoC

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What are e.petitions?

New procedure - can provoke debate in Parliament if they get at least 100,000 signatures online.

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What is the Departmental Select Committees' role?

Shadow the work of Government departments

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Why is the Committee system important for 'accountability'?

Made up of back bench MPs and position of the chairperson is not in the party whips. They call for evidence, complete careful witnesses and produce a report. Public visibility, important people are compelled to attend.

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What is T.Wright's conclusion on the control of Parliament over the Government?

"A strong executive centre has not wanted to share power with Parliament, other parties, Judges, or local governments and has restricted proposals [...] that would check and circumscribe its governing authority"

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What is the basic idea of Judicial review?

It is statutory procedure which represents the way that courts control the exercise of the Government's power. Courts are concerned with the legality of a decision rather than with its merits.

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What was said about Judicial Review on R v Cambridge Health Authority, ex parte B [1995]?

"We have one function only, which is to rule upon the lawfulness of decisons. That is a function which we should strictly confine ourselves"

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How can Judicial review be seen to be protecting Parliamentary Supremacy?

It ensures that those acting on delegated powers conferred by Parliament stay within those powers.

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What can be challenged under Judicial Review? Relevant case law?

Secondary/delegated legislation, prerogative powers (GCHQ) and decisions & acts of 'public bodies'

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Is primary legislation subject to judicial review? Case law?

No - Jackson

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What is the outcome accountability of Judicial Review?

AoP are interpreted correctly; discretion conferred by statute has been lawfully exercise; the decision-maker has acted lawfully (and fairly); exercise of power doesn't violate EU law; exercise of the power is compatible with the HRA

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What remedies may be granted after Judicial Review?

Quashing order (often remitting case back to the original decision-maker); order a duty must be performed (mandatory order); prohibition order; make a declaration on a question of law; secure temp. relief pending outcome of proceedings; payment

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What is question of standing?

Whether or not you are the right person to bring the case

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What did the Senior Courts act 1981 clarify about standing?

Teh court must not grant leave for an application for judicial review "unless it considers that the applicant has sufficient interest in the matter"

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What are the limitations on judicial review?

Justiciability (GCHQ says the subject matter of the decision be judicially reviewed, however, not definite); matters of public policy cannot; deference; exclusions (ouster clauses- P providing that a particular subject cannot be judicially reviewed)

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Public Law Cycles 9 - 10

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