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Flashcards by cbarrass-evans, updated more than 1 year ago
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Created by cbarrass-evans
almost 11 years ago
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| Question | Answer |
| R v Felixstowe Justices, ex p Leigh | locus standi; post-IRC; possible 'citizens action' test readopted; held, C had standing because he was the "guardian of the public interest", and that "any spirited citizen" would have standing |
| R v Monopolies and Mergers Commission, ex p Argyll | locus standi; post-IRC; standing should be considered at leave stage and then fused with merits later on |
| Rose Theatre Trust | locus standi; post-IRC; remains of theatre; trust set up to preserve; bought action for SofS to list it; dealt with locus standi after merits; held that they didn't have sufficient interest and so possibly no one could. NB: policy-oriented: didn't allow because no merit to the claim? |
| Pergau Dam (standing) | locus standi; Post-IRC; applied IRC to find that standing shouldn't be a preliminary issue, but rather it should be judged in the factual and legal context of the whole case: the merits of the case are a dominant factor. Attached importance to two factors also in Rose Theatre but attached with no weight there, strengthening the suspicion that no standing because no merits |
| Schmidt v Secretary of State for Home Affairs | legitimate expectations; government expressed dislike for scientology, imposed a ban on non-British citizens studying at the HQ in Britain: no new or renewed permissions; court rejected C's right to a hearing, stating that C only had the legitimate expectation to stay until current licence expired, not to have a renewal |
| Melnnes v Onslow Fane | legitimate expectations; with licences, most fair hearing rights where existing licence revoked, least where applying for first licence |
| Attorney General for Hong Kong v Ng Yuen Shiu | legitimate expectations; general policy that applicants from Macau awarded hearing, despite not being proscribed in statutes etc; court found legitimate expectation |
| R v Secretary of State for the Home Department, ex p Khan | legitimate expectations; HO general policy detailed criteria for adoption which the C had met; informed that the letter wrongly described the policy and he hadn't actually met them; CA found a legitimate expectation that the policy in the letter would be followed |
| Re Findlay | legitimate expectations; govt policy for eligibility of prisoners for parole; changed from 1/3 of sentence to 1/2; prisoners already incarcerated argued a LE that they'd be eligible after 1/3; held, only a LE that they'd be dealt with under whatever policy happened to be in place; otherwise hampered discretion of home secretary |
| Coughlan | legitimate expectations; CA avoided tricky substantive LE Q by adopting terminology of 'unfairness or abuse of power'; severely disabled C promised a home for life, had to move; 3 part analytical framework: (i) change of policy, confined to unreasonableness; (ii) LE of being consulted (procedural); (iii) substantive LE, which requires the court to "decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power, unless overriding interest |
| Ware v Regent's Canal | locus standi; C sought declaration that D had carried out unauthorised work on his land; held, strict test for declarations and injunctions of proving "injury has been occasioned to any individual, or is imminent and of irreparable consequences" otherwise noone but the AG has locus standi |
| Boyce v Paddington BC | locus standi; declaration; held, needs affected private legal right or the claimant was atypically and intensely affected by the decisions adverse effect on a public right |
| Blackburn v Attorney-General | locus standi; C challenged UK's accession to Rome Statute; Denning accepted that didn't pass test in Paddington, but dealt with standing later in judgement, stating that "...he feels very strongly and it is a matter in which many persons in this country are concerned. I myself would not rule him out on the ground that he has no standing" |
| R v Thames Magistrates' Court, ex p Greenbaum | locus standi; certiorari and prohibition; C allowed leave on ground that he was a 'person aggrieved' because of pecuniary interest as a ratepayer; Denning: could be granted to a stranger if in public interest |
| R v Paddington Valuation Officer, ex p Peachey Property | locus standi; certiorari and prohibition; seemingly 'citizens action' test in Greenbaum applies to everyone but 'a mere busy body who was interfering in things which did not concern him' |
| Section 31(3) Supreme Court Act | standing will be found where C has a "sufficient interest in the matter to which the application relates" |
| Inland Revenue Commissioner v National Federation of Self-Employed and Small Businesses | locus standi; SCA; IRC had granted tax immunity to some workers if they kept up to date from then on; sought mandamus that illegal; majority held that standing should no longer merely be preliminary: merits are an "important, if not dominant, factor"; Lord Diplock: "it would be a grave lacuna in our system of public law if a pressure group, or even a single spirited taxpayer, were prevented by outdated technical rules of locus standi... from vindicat[ing] the rule of law" |
| Steeples v Derbyshire County Council | locus standi; private stream; SCA; held, would be to "make an ass of the law" if the tests were different in declarations |
| Barrs v Bethell | locus standi; private; SCA; held, just because C had standing under s31 didn't mean that they had standing in private stream, where Boyce would still apply (atypical, intensely affected) |
| Barrs v Bethell | locus standi; private; SCA; held, just because C had standing under s31 didn't mean that they had standing in private stream, where Boyce would still apply (atypical, intensely affected) |
| R v Metropolitan Police Commissioners, ex p Parker | delegated power to revoke taxi licences; no entitlement to hearing because privilege not a right, administrative not judicial (because 'disciplinary') |
| Ridge v Baldwin | hearings; HL appeared to reject need for judicial nature as in Parker etc; the decision significantly increased the scope of the principle; not the content |
| Re HK | hearings; quick hearing in airport because of disagreement as to child's age; Parker followed Ridge v Baldwin, stating that duty to "give the immigrant an opportunity of satisfying him on the matters... and for that purpose let the immigrant know his immediate impression is so that the immigrant can disabuse him" |
| Dimes v Grand Junction Central | bias; where direct pecuniary interest, likely to be allowed JR |
| R v Sussex Justices, ex p McCarthy | bias; solicitor acting as part-time clerk on case that C is claimant for her firm in separate action based on same incident; held, nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice |
| Gough | bias; restricted test in McCarthy, now needs to be asked whether the interest created a "real danger of bias" in the eyes of the reasonable man |
| R v Bow Street Magistrates, ex p Pinochet | ideological bias; HL ruled to extradite Pinochet; Hoffman director of a charity and active member of Amnesty; judgement set aside because of bias although no evidence of actual bias |
| Porter v Magill | ideological bias; held, "the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased ... then ask whether those circumstances would lead a fair-minded observer to conclude that there was a real possibility that the tribunal was biased" |
| Pett v Greyhound Racing Association Ltd | right to representation; held, "it is not every man who has the ability to defend himself on his own. He cannot bring out the points in his favour, or the weaknesses on the other side. He may be tongue-tied or nervous, confused or wanting in intelligence. If justice is to be done he ought to have the help of someone to speak for him. And who better than a lawyer?" |
| Enderby Town Football Club v Football Association Ltd | right to representation; held, whilst allowed to restrict right, each case needs considering on its facts |
| Cunningham | duty to give reasons; held, no general duty to give reasons for a decision |
| R v Higher Education Funding Council, ex p Institute of Dental Surgery | duty to give reasons; extended Cunningham; right to reasons where the decision affects personal liberties or where decision seems aberrant in its substantive terms |
| R v Governors of Denbigh High School | proportionality; jilbab girl refusal of attendance; CA held that structured approach to decision making should have been followed (procedural proportionality) but HL overruled; CA misunderstood role of proportionality; no reason to belive that it could be used procedurally |
| Steiner (on proportionality) | "...puts the burden on the administrative authority to justify its actions and requires some consideration of alternatives. In this respect, it is a more rigorous test than one based on reasonableness" |
| Manchester City Council v Pinnock | SC suggested that prop. as a 'new' level of review would only affect 'exceptional' cases |
| Burmah Oil Company v Lord Advocate | RofL; British govt had ordered to destroy oil refineries, to stop Japanese getting them; brought action for damages, won |
| Anisminic v Foreign Compensation Commission | concerned a provision that said "determination by the Commission... under this Act shall not be called into question in any court of law". Held, such a provision is only effective where the determination is free from mistakes of law |
| War Damages Act | Was passed in response to Burmah Oil case out of fear of many cases; retrospective effect; HL tried to remove, HC used PA1911 |
| The Scott Report | Matrix Churchill; unearthed forgotten piece of legislation that had been relied on "... a minister doesn't have to resign simply because there has been a failing in their department. However, they should resign if they intentionally misled parliament" |
| Nolan Committee (on Standards in Public Life) | 7 principles: selflessness; integrity; objectivity; accountability; openness; honesty; leadership |
| R v Secretary of State for the Home Department, ex p Al-Fayed | ouster clauses; Woolf: inference that parliament didn't intend to exclude JR in cases alleging unfairness or discrimination |
| Hamilton v Al-Fayed | concerned allegations of non-registration of hospitality received and payments of consultancy fees |
| Liam Fox Scandal | admitted to breaches of the Code; Cabinet secretary found a "blurring of the lines between [his] private and official responsibilities"; recommended that where discussions take place with external organisations which raise substantive issues relating to departmental decisions or contracts and where an official is not present, ministers should inform their department |
| R v Medical Appeal Tribunal, ex p Gilmore | finality clauses; would be contrary to rule of law to allow tribunals to determine their own jurisdiction; the word 'final' not enough to prove that parliament intended to exclude JR |
| Crichel Down Affair | army taking land during war; not giving back; inquiry found civil servants acted in a "high handed and deceitful manner"; minister resigned; turned out it was an official policy |
| Hansard Commission (2002) | there should be a culture of greater scrutiny, and parliament should be 'at the apex' through committees etc |
| DPP v Shaw | ladies' directory publisher convicted of 'conspiracy to corrupt public morals'; argued that it wasn't an offence at the time; HL: legitimate to fashion new common law concepts |
| Salisbury Doctrine | The HL will not delay bills which were included in the majority party's manifesto |
| R v Secretary of State for the Environment, ex p Olster | partial ousters; rejected suggestion in Anisminic that time limit clauses would be ineffective; Denning: may be necessary for efficient administration or economics |
| R v R (Marital Rape Exemption) | not technically an offence to rape one's wife; HL overruled retrospectively, found D guilty; felt entitled to change the law to adapt to social and moral standards |
| Parliament Act 1911 Parliament Act 1949 | provides for passage of Bill without Lords' assent where: (i) money bill and not passed in one month; (ii) other bill and refused by Lords in 2 successive sessions (one year) |
| House of Lords Act 1999 | removed all but 92 hereditary peers, replaced by life peers |
| Attorney-General v Fulham Corporation | power granted to build facilities to bathe and launder clothes; offered a home delivery laundry service, subsidised by ratepayers; ultra vires because not "incidental to, or consequent upon" authorised acts |
| 'Declaratory' theory | when overruling 'retrospectively', judges aren't actually making new law; rather they are merely declaring what it always has been |
| Wakeham Commission (2000) | recommended long-term HL reform in the shape of: complementarity of HL; veto of secondary legislation replaced by delay; removal of remaining hereditary peers; better representation; 10-35% elected |
| Dicey's theory of Parliamentary Sovereignty | +ve limb - can make/unmake any law -ve limb - no one can declare statute invalid |
| 2006 HL Reform Proposals | reduce size by 1/3; remove life peers; elect 50%; barring from peers being MPs for 5 years after step down |
| Lee v Bude and Torrington Junction Railway | "...if an Act of Parliament has been obtained improperly, it is for parliament to repeal it, but so long as it exists in law, the courts are bound to obey it" |
| Ellen Street | doctrine of implied repeal; where a new Act is inconsistent with an old Act, older one is impliedly repealed |
| Edmund Burke | on whether MP is delegate or representative: "...owes you, not his industry only, but his judgement and he betrays, instead of serving you, if he sacrifices it to your opinion..." |
| Thoburn v Sunderland City Council | implied repeal is restricted; can't apply in cases of important constitutional statutes, e.g. the European Communities Act |
| Factortame (No 2) | british law that was inconsistent with Community law was disapplied by the HL |
| Jenning on entrenchment | since the 'rule of recognition' is a common law concept, and statutes are superior, can pass statute changing it |
| Roberts v Hopwood | Act allowed council to set wages; set a minimum wage; illegal because of fiduciary duty; applied in Bromley v GLC (subsidised travel) |
| Doughmore Committee (1932)'s conclusion | Baron de Montesquieu's vision of separation of powers non-existent in the UK |
| Ministerial Code 1.5 | personal responsibility of ministers to conduct themselves in light of the code; PM ultimate judge of standards and consequences of breach |
| Pergau Dam | ultra vires; SofS' power to provide financial assistance to overseas projects; Overseas Development Agency 'at the margin of economic viability; costs increased (no longer economically viable - ODA); SofS had given aid so as not to diminish reputation |
| Pergau Dam | ultra vires; SofS' power to provide financial assistance to overseas projects; Overseas Development Agency 'at the margin of economic viability; costs increased (no longer economically viable - ODA); SofS had given aid so as not to diminish reputation |
| Ewing and Bradley - 3 principles for separation of powers | 1) same person shouldn't hold position in more than one organ; 2) one organ shouldn't control or interfere with work of another; 3) one organ shouldn't exercise functions of another |
| Harlow and Rawlings | 'traffic light' metaphor: Green - less control by judiciary Red - more constrained executive |
| Duport Steel Ltd v Sirs | Diplock: constitution is firmly based on the principle that the judiciary is limited to interpretation |
| House of Commons (Disqualification) Act | limits number of ministers appointed from Commons to 95 |
| Padfield v Minister of Agriculture, Fisheries and Food | illegality; farmers had to sell to regional marketing boards; complaints that prices too low; wanted complaint heard by consumers' committee because of fear of bias; held, purposively wide discretion to SofS, but fear of embarrassment was irrelevant consideration |
| Cooper v Wandsworth Board of Works | power to demolish house because no notice of construction; no hearing under the statute, but the "justice of the common law" supplied the "omission of the executive"; implicit in the statute that no man should be deprived of his property without the right to a full hearing |
| Constitutional Reform Act 2005 | separates the former-Lord Chancellor's roles between secretary of state for Justice and the Speaker of the HL; established Ministry of Justice |
| Board of Education v Rice | really broad early statement that "anyone who decides anything" has a duty to provide a hearing |
| Board of Education v Rice | really broad early statement that "anyone who decides anything" has a duty to provide a hearing |
| Congreve v Home Office | issuing TV and radio licences; consumers could've saved by buying new one before existing ran out; department tried to demand every one buy new one at increased price; Denning saw as property right, no reason can't own two - illegal |
| Local Government Board v Arlidge | distinction made between judicial/administrative decisions and rights/privileges |
| traditional remedies under public law | certiorari; mandamus; prohibition; declaration; injunction |
| Fire Brigade's Union | Mustill: role of judiciary is to verify executive's powers' accordance with the substantive law created by parliament, and ensure the manner in which they are exercised conforms with the standards of fairness which parliament must have intended |
| Section 8 Human Rights Act 1998 | JR; gives power to award damages for unlawful action under s6(1) if necessary for "just satisfaction" |
| Barry | irrelevant considerations; financial considerations were relevant in application regarding claimant's needs by social services |
| Act of Settlement 1700 | judges no longer hold position at King's pleasure, but on good behaviour |
| Tandy | irrelevant considerations; financial considerations weren't relevant where choosing what was a 'suitable' education |
| Section 3(1) Constitutional Reform Act | positive duty for members of executive to uphold the judiciary's independence |
| David Blunkett (JR) | "... judges now routinely use judicial review to rewrite the effects of a law that parliament has passed" |
| Westminster Corporation | improper purposes; granted power to build toilets, built underground toilets that amounted to a subway; true purpose to build subway so illegal |
| Porter v McGill | improper purposes; properties sold to gain political advantage in certain areas |
| Carltona v Commissioner of Works | delegation; held powers of minister can be delegated and exercised by his department, only requires his personal involvement where explicit |
| Dicey (on conventions) | "... conventions, understandings, habits or practices which, though they may regulate the conduct of officials, they are not in reality laws at all since they are not enforced in the courts" |
| 3 branches of Collective Ministerial Responsibility | confidence; unanimity; confidentiality |
| HL First Report Select Committee on the Constitution, definition of | "the set of laws, rules and practices that create the basic institutions of the state and its component and related parts, and stipulate the powers of these institutions and the relationship between the institutions and the individual" |
| The Crossman Diaries | Crossman kept comprehensive diaries of cabinet affairs; was to publish, died; widow tried to publish; injunction granted, common law grounds |
| Barnard v National Dock Labour Board | delegation; power delegated to port managers to suspend employees illegally delegated |
| Raymond v Honey | presumption of illegality where interference with basic rights |
| Westland Affair | unanimity of CMR; Heseltine stepped down amid disagreement with the cabinet policy |
| R v Judge of the City of London Court | "...if the words of the Act are clear, you must follow them, even though they lead to 'manifest absurdity' |
| Whiteley v Chappell | statutory interpretation; crime to impersonate someone entitled to vote, D impersonated a dead person, not guilty because not entitled to vote |
| R v Allen | statutory interpretation; definition of 'marry' was said to be to go through the ceremony of marriage rather than the legal process; allowed conviction for bigamy |
| Corrie | fettered discretion; prohibition of selling in park without licence; decided to issue no new licences; illegal - had to consider applications on their merits |
| Jones v Wrotham Park Settled Estates | statutory interpretation; mischief rule allowed where (i) possible to determine the mischief; (ii) apparent that parliament failed to deal with it; (iii) possible to state the required extra words |
| British Oxygen | fettered discretion; investment grant had a lower limit on purchases; minister didn't allow on multiple purchases of small quantities; held, general policies are ok as long as individual applicants are allowed to make their case |
| Liversidge v Anderson | HS could detain those whom he had 'reasonable cause to believe' was of hostile origins or associations. Held not to be illegal power, but strong dissent from Atkin who said that his colleagues were being "more executive minded than the executive" |
| Wednesbury Corporation | unreasonableness; decision to ban kids from cinema on sundays; unreasonable if "something so absurd that no sensible person could ever dream that it lay within the powers of the authority" |
| Venables and Thompson | fettered discretion; general policy ok under British Oxygen only where it is lawful and hasn't taken irrelevant considerations into account |
| A.V. Dicey's 3 elements of the rule of law | 1. law is preferred over wide discretionary powers, punishment only in event of breach of law 2. everyone equally subject to it 3. constitutional principles come from the ordinary law, which determines the rights and obligations of individuals |
| GCHQ | unreasonableness; threshold high: "something so absurd that no sensible person could have arrived at it" |
| Order 53 of the Rules of the Supreme Court Section 31 Supreme Court Act 1981 | dual procedure whereby declaration and injunction available through private law procedures or new combined heading: 'application for judicial review' |
| Smith | unreasonableness; decision to ban homosexuals from serving in armed forces; held not to be unreasonable, because there were reasons for it; despite strong reasons against |
| Jenning's critique of Dicey (RofL) | his preference for liberty, certainty and limited discretion outdated; now paramount are state regulation, implicit separation of powers, clear defined police powers, prohibition of retrospective and uncertainty |
| R v Goldstein | Bingham: laws can't be breached retrospectively, and forbidden conduct needs to be clearly indicated as being so |
| Daly v Secretary of State for the Home Department | proportionality; reg passed by SofS interpreted by Governor of prison as allowing him to search cells in absence of prisoner; including their legal correspondence; aim of policy to stop intimidation etc during searches; disproportionate method: compared to other prison - sealed correspondence in prisoner's presence. Daly: more intense form of review but not merits based |
| R v Disciplinary Committee of the Jockey Club, ex p Aga Khan | public body?; origin, history, constitution, members; if origin owes nothing to exercise of government, need to look for: woven into system of stat regulation; carrying out government functions; doing something which an organ of government would do if body didn't exist |
| O'Reilly v Mackman | Diplock: would be abuse of process if brought public law matter through private stream because public stream affords protection to public bodies |
| Rye v Sheffield City Council | public/private; if unsure of whether it is a public law matter, use JR stream to avoid abuse of process accusations |
| Doherty v Birmingham City Council | Hope: "it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds" Scott: is act "so unreasonable and disproportionate as to be unlawful" - he sees them as interchangeable? |
| Wandsworth LBC v Winder | abuse of process; not an abuse of process to bring public law matter up as a defence in private action - 'collateral challenge' |
| Matrix Churchill Affair | restriction of arms; junior ministers changed policy after Iraq-Iran war, allowing to Iraq in particular; company supplying claimed department of trade encouraged trade; told them to lie |
| Roy v Kensington and Chelsea | abuse of process; some retreat?; court willing to allow C to use ordinary procedure for public matter where it can be demonstrated that the public interest of protection against frivolous claims hasn't been breached |
| Raz (RofL) | rule of law doesn't protect human rights so even a totalitarian regime can abide by RofL |
| Ministerial Code 5.2 | duty to give fair consideration to impartial and informed advice from civil servants |
| Ministerial Code 6.1 6.2 | 6.1 - governs facilities available at expense of government 6.2 - shouldn't generally use for constituency or party reasons |
| Section 12 Tribunals and Inquiries Act 1992 | controls acts of parliament stating that an order or determination shall not be called into Q by a court |
| Jones (RofL) | social democratic approach known as 'Butskellism': govt should play extensive role, and accordingly citizens should accept significant limits on autonomy if in public interest.. |
| Ministerial Code 7.1 | ministers must ensure that there is no conflict between their public duties and private interests, financial or otherwise |
| Entick v Carrington | RofL; action of trespass against King's messengers; general warrant illegal because no probable cause; against rule of law otherwise: wide discretionary power |
| M v Home Office | HO deported a foreign national whose appeal was pending before HL; contempt of court and injunction against Minister; if unable to enforce injunction against ministers, would "establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity" |
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