Common Professional Examination (CPE) Public Law (Constitutional and Administrative Law) Syllabus

What is the doctrine of implied repeal, and which case illustrates it?

Where two statutes conflict, the later impliedly repeals the earlier to the extent of inconsistency, so Parliament cannot bind its successors. Illustrated by Ellen Street Estates v Minister of Health (1934) and Vauxhall Estates v Liverpool Corporation (1932). Constitutional statutes are exempt (Thoburn).

How did the European Communities Act 1972 and the Factortame litigation challenge traditional sovereignty?

In R v Secretary of State, ex p Factortame (No 2) (1991), the House of Lords 'disapplied' part of the Merchant Shipping Act 1988 because it conflicted with directly effective EU law given priority by the ECA 1972. This showed EU law supremacy over later inconsistent UK statutes while the UK was a member (explained as Parliament's voluntary acceptance under the ECA).

How does the 'manner and form' theory challenge Diceyan sovereignty?

The manner and form theory (e.g. Jennings) argues Parliament can bind its successors as to the procedure/form for future legislation (redefining itself), so a later law not made in the prescribed manner is invalid. Supported by Commonwealth cases like Attorney-General for New South Wales v Trethowan (1932).

What did the obiter remarks in Jackson v Attorney General (2005) suggest about the limits of sovereignty?

Several Law Lords (notably Lord Steyn, Lord Hope, Baroness Hale) suggested obiter that parliamentary sovereignty is a common law construct and that in extreme circumstances (e.g. abolishing judicial review or the courts) the courts might not recognise an Act as valid, implying possible limits to absolute sovereignty.

What is devolution, and how does it differ from federalism?

Devolution is the statutory transfer (delegation) of powers from the central Westminster Parliament to subordinate elected bodies in Scotland, Wales and Northern Ireland. Unlike federalism, it is not constitutionally entrenched: Westminster retains sovereignty and could legally legislate for, or even abolish, the devolved institutions.

Distinguish the 'reserved powers' and 'conferred powers' models of devolution.

Under a reserved powers model (Scotland Act 1998; Wales now under Wales Act 2017; Northern Ireland 'reserved/excepted'), the body can legislate on anything except specified reserved matters. Under a conferred powers model (the original Welsh model under GoWA 2006), the body could only legislate on matters expressly conferred.

Which Acts established devolution in Scotland, Wales and Northern Ireland?

Scotland Act 1998 (Scottish Parliament); Government of Wales Act 1998 (later 2006, amended by Wales Act 2017) (Senedd Cymru/Welsh Parliament); Northern Ireland Act 1998 (Northern Ireland Assembly, implementing the Good Friday/Belfast Agreement).

Can the courts strike down devolved legislation? Explain.

Yes. Unlike Acts of the Westminster Parliament, devolved legislation is subordinate; courts can hold it ultra vires and invalid if it exceeds legislative competence (e.g. legislates on a reserved matter or breaches Convention rights). See AXA General Insurance v Lord Advocate (2011) and the UNCRC Bill Reference (2021).

Define the royal prerogative.

The royal prerogative is the body of residual common-law powers and privileges historically belonging to the Crown, now mostly exercised by ministers in the Crown's name without statutory authority. Blackstone defined it as powers unique to the Crown; Dicey as the 'residue of discretionary or arbitrary authority' legally left in the Crown's hands.

Give examples of prerogative powers exercised by the executive.

Foreign affairs: making treaties, declaring war and deploying armed forces, recognition of states; conduct of diplomacy; the issue/revocation of passports; the grant of pardons (mercy); appointment of ministers; and historically the dissolution and prorogation of Parliament.

What is the relationship between statute and prerogative, per Attorney General v De Keyser's Royal Hotel (1920)?

Where statute and prerogative cover the same ground, the statute prevails: the prerogative is held in abeyance (suspended) and the executive must act under the statutory power and its conditions. Reaffirmed in R v Home Secretary, ex p Fire Brigades Union (1995).

Which case established that the exercise of prerogative power is, in principle, reviewable by the courts?

Council of Civil Service Unions (CCSU) v Minister for the Civil Service (1985) (the GCHQ case): the House of Lords held that prerogative powers are reviewable depending on their subject matter, though some (e.g. treaty-making, national security, mercy, dissolution) may be non-justiciable.

What did R (Miller) v The Prime Minister (Miller No 2 / Cherry) (2019) decide about prorogation?

The Supreme Court unanimously held that the prerogative power to prorogue Parliament is justiciable and is unlawful if it has the effect of frustrating or preventing, without reasonable justification, Parliament's constitutional functions of legislating and holding the executive to account. The 2019 prorogation was void and of no effect.

Distinguish individual ministerial responsibility from collective ministerial responsibility.

Individual ministerial responsibility: each minister is personally accountable to Parliament for their own conduct and the conduct of their department. Collective ministerial responsibility: the Cabinet is collectively accountable to Parliament, ministers must publicly support government policy or resign, and Cabinet discussions remain confidential.

What are the two main stages of the legislative process for a Public Bill in each House?

In each House: First Reading (formal introduction), Second Reading (debate on general principles), Committee Stage (detailed line-by-line scrutiny and amendment), Report Stage (further amendments), and Third Reading (final approval). The Bill then goes to the other House, and finally receives Royal Assent.

What do the Parliament Acts 1911 and 1949 provide?

They limit the power of the House of Lords. The Lords cannot block a 'Money Bill' (delay max 1 month); for other public Bills the Lords' veto is reduced to a power of delay of about one year (one session), after which the Bill can receive Royal Assent without Lords' consent. The 1949 Act reduced the delay from two years to one.

What is delegated (secondary) legislation and what is the main check on it?

Delegated legislation is law (e.g. statutory instruments, byelaws, Orders in Council) made by the executive under powers granted by a 'parent' or enabling Act. It is checked by parliamentary scrutiny (affirmative or negative resolution procedure) and by judicial review for being ultra vires the parent Act.

Define judicial review.

Judicial review is the procedure by which the courts (the Administrative Court) supervise the lawfulness of decisions and actions of public bodies, ensuring they act within their legal powers and fairly. It reviews the legality and process of a decision, not its merits.

What is the procedural exclusivity rule, and which case established it?

O'Reilly v Mackman (1983): public law challenges must generally be brought by judicial review (CPR Part 54) rather than by ordinary private-law action, to protect public bodies via JR's safeguards (permission, time limits). Subject to exceptions where private rights are at stake or the issue arises collaterally.

What is the time limit for bringing a judicial review claim?

A claim must be brought promptly and in any event within three months of the grounds first arising (CPR 54.5). Some areas have shorter limits (e.g. planning challenges, 6 weeks; procurement, 30 days). 'Promptly' means a claim can be too late even within three months.

What must a claimant show to have 'standing' (locus standi) in judicial review?

Under s.31(3) Senior Courts Act 1981, the claimant must have a 'sufficient interest' in the matter to which the application relates. The test is applied flexibly, considering the merits, the importance of upholding the rule of law, and whether anyone else is better placed to challenge.

Which case adopted a liberal approach to standing for public-interest/pressure groups?

R v Secretary of State for Foreign Affairs, ex p World Development Movement (1995): a pressure group had standing given the importance of the rule of law, the likely absence of any other challenger, the merits, and the group's expertise. Contrast the stricter approach in R v IRC, ex p National Federation of Self-Employed (Fleet Street Casuals) (1982).

What is the test for whether a body is amenable to judicial review (a 'public body')?

Amenability depends on the source AND nature of the power. Bodies exercising statutory or prerogative powers are reviewable; bodies exercising public functions can be reviewable even without a statutory source if the function is governmental (the 'but for' test). See R v Panel on Take-overs and Mergers, ex p Datafin (1987); contrast R v Disciplinary Committee of the Jockey Club, ex p Aga Khan (1993).

State Lord Diplock's three traditional grounds of judicial review from the GCHQ case.

In CCSU v Minister for the Civil Service (1985), Lord Diplock classified the grounds as: (1) Illegality; (2) Irrationality (Wednesbury unreasonableness); and (3) Procedural impropriety. He suggested proportionality might develop as a fourth ground.

Define 'illegality' as a ground of review and list its sub-categories.

Illegality means the decision-maker must understand and give effect to the law regulating its power. Sub-categories: acting ultra vires (beyond powers); errors of law/fact; using power for an improper purpose; taking into account irrelevant considerations / ignoring relevant ones; unlawful fettering of discretion; and unlawful delegation of power.

Explain 'fettering of discretion' as an aspect of illegality.

A body given discretion must genuinely exercise it in each case and not blindly apply a rigid policy or act under another's dictation. It may adopt a policy but must be willing to consider exceptions. See British Oxley/British Oxygen Co v Minister of Technology (1971) and R v Port of London Authority, ex p Kynoch (1919).

State the Wednesbury test for irrationality.

From Associated Provincial Picture Houses v Wednesbury Corporation (1948): a decision is unreasonable/irrational only if it is 'so unreasonable that no reasonable authority could ever have come to it.' Lord Diplock in GCHQ restated it as a decision 'so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it.'

What is proportionality, and what four-stage test applies (per Bank Mellat v HM Treasury (No 2))?

Proportionality asks whether interference with a right is justified. The four questions are: (1) Is the objective sufficiently important to justify limiting a right? (2) Is the measure rationally connected to the objective? (3) Could a less intrusive measure have been used? (4) Does a fair balance strike between individual rights and community interests (proportionality stricto sensu)?

How does proportionality differ from Wednesbury unreasonableness as a standard of review?

Proportionality involves more intensive, structured scrutiny: the court assesses the balance struck and whether less restrictive means existed, going further than Wednesbury (which only asks if the decision was within the range of reasonable responses). Proportionality applies in HRA and (formerly) EU cases; Wednesbury remains the domestic common-law default (see R (Daly) v Home Secretary (2001)).

What are the two principal rules of 'procedural impropriety' under natural justice?

(1) The rule against bias (nemo iudex in causa sua) — no one may be a judge in their own cause; and (2) The right to a fair hearing (audi alteram partem) — a person must be given notice of the case and an opportunity to be heard. Procedural impropriety also covers failure to follow statutory procedures.

Distinguish actual bias, automatic disqualification, and apparent bias; state the apparent bias test.

Actual bias: proven prejudice (rare). Automatic disqualification: a direct pecuniary or relevant interest in the outcome (Dimes v Grand Junction Canal (1852); R v Bow Street Magistrate, ex p Pinochet (No 2) (1999)). Apparent bias test (Porter v Magill (2002)): whether a fair-minded and informed observer would conclude there was a real possibility of bias.

What is a 'legitimate expectation' and the two types?

A legitimate expectation arises where a public body's clear representation or established practice leads a person to expect a benefit or procedure. Procedural legitimate expectation: expectation of a hearing/consultation before a decision. Substantive legitimate expectation: expectation of a benefit itself, protected where reneging would be an abuse of power (R v North and East Devon Health Authority, ex p Coughlan (2001)).

Name the principal remedies available in judicial review.

The prerogative remedies: quashing order (quashes an unlawful decision), prohibiting order (prevents unlawful action), and mandatory order (compels performance of a duty). Plus declarations, injunctions, and (rarely) damages. All remedies are discretionary.

What is an ouster clause, and how have the courts traditionally treated it?

An ouster clause is a statutory provision purporting to exclude or limit judicial review of a decision. Courts construe them very narrowly to preserve access to justice. In Anisminic v Foreign Compensation Commission (1969), a clause that a determination 'shall not be questioned' did not protect a decision that was a nullity due to error of law (effectively no 'determination' at all).

How did R (Privacy International) v Investigatory Powers Tribunal (2019) treat a strong ouster clause?

The Supreme Court held that even an apparently comprehensive ouster clause did not exclude judicial review for errors of law, reaffirming Anisminic. The majority indicated that, given the rule of law and the courts' constitutional role, Parliament's ability to wholly oust review of legal errors is doubtful and requires the clearest words.

What is the constitutional significance of the Human Rights Act 1998?

The HRA 1998 gives 'further effect' in UK law to most rights in the European Convention on Human Rights, allowing them to be enforced in UK courts (rather than only in Strasbourg). It came into force on 2 October 2000 and balances rights protection with parliamentary sovereignty.

What does s.2 of the Human Rights Act 1998 require of UK courts?

Section 2 requires UK courts and tribunals to 'take into account' (but not necessarily follow) the case law of the European Court of Human Rights when determining a question involving a Convention right. The 'mirror principle' (Ullah) suggested keeping pace with Strasbourg, no more and no less.

Explain the interpretive obligation under s.3 of the Human Rights Act 1998.

Section 3 requires that, so far as it is possible to do so, primary and subordinate legislation be read and given effect in a way compatible with Convention rights. This is a strong interpretive duty allowing courts to 'read in' or 'read down' words (Ghaidan v Godin-Mendoza (2004)), but not to legislate or go against a fundamental feature of the statute (limit set in R v A (2001)).

What is a 'declaration of incompatibility' under s.4 HRA, and what is its effect?

Where legislation cannot be read compatibly under s.3, the higher courts may issue a declaration of incompatibility under s.4. It does not invalidate or disapply the legislation (preserving parliamentary sovereignty) and does not bind the parties; it signals to Parliament, which may amend the law via a 'fast-track' remedial order under s.10.

What duty does s.6 of the Human Rights Act 1998 impose, and on whom?

Section 6 makes it unlawful for a 'public authority' to act in a way incompatible with a Convention right (unless required to do so by primary legislation). It covers 'core' public authorities and 'hybrid' bodies exercising functions of a public nature (s.6(3)(b)); courts are themselves public authorities. Excludes Parliament.

Classify the Convention rights into absolute, limited, and qualified, with examples.

Absolute rights cannot be interfered with at all (e.g. Art 3, prohibition of torture; Art 4(1) slavery). Limited rights may be restricted in defined circumstances (e.g. Art 5, liberty; Art 6, fair trial). Qualified rights may be interfered with where prescribed by law, for a legitimate aim, and necessary/proportionate in a democratic society (e.g. Arts 8, 9, 10, 11).

State the structured test for justifying interference with a qualified Convention right (e.g. Articles 8-11).

Interference is lawful only if it is: (1) 'prescribed by law' / 'in accordance with the law' (legal basis, accessible and foreseeable); (2) in pursuit of a legitimate aim listed in the second paragraph of the Article; and (3) 'necessary in a democratic society' — answering a pressing social need and proportionate to the aim.

Identify the rights protected by Articles 2, 3, 5, 6, 8, 10 and 11 ECHR.

Art 2: right to life; Art 3: prohibition of torture, inhuman or degrading treatment; Art 5: right to liberty and security; Art 6: right to a fair trial; Art 8: right to respect for private and family life, home and correspondence; Art 10: freedom of expression; Art 11: freedom of assembly and association.

What remedies can a court grant under s.8 HRA for breach of a Convention right by a public authority?

Section 8 allows a court to grant any relief or remedy within its powers that it considers just and appropriate, including damages. Damages are awarded only where necessary to afford 'just satisfaction', taking into account ECtHR principles under Art 41, and are not awarded as readily as in tort.

What is the 'margin of appreciation' and at what level does it operate?

The margin of appreciation is the latitude the European Court of Human Rights gives to national authorities in how they secure Convention rights, recognising that domestic bodies are often better placed to assess local needs and morals. It is a doctrine of the international (Strasbourg) court and does not apply between UK courts and other domestic bodies.

What is the domestic analogue to the margin of appreciation used by UK courts?

UK courts apply a 'discretionary area of judgment' (or 'due deference'): they accord respect to the considered judgment of the legislature/executive, especially on matters of social, economic or security policy, while applying closer scrutiny where fundamental rights or matters within judicial expertise are engaged (R v DPP, ex p Kebilene (2000)).