Qualified Lawyers Transfer Scheme (QLTS) Constitutional and Administrative Law and EU Law Syllabus

What is the Sewel Convention and where was it placed on a statutory footing?

The convention that the UK Parliament will 'not normally' legislate on devolved matters without the consent of the devolved legislature. It was placed on a statutory footing in s.28(8) Scotland Act 2016 and s.107(6) Wales Act 2017, but Miller (No 1) held it remains a non-justiciable political convention.

What are the two main components of parliamentary privilege, and which instrument protects freedom of speech in Parliament?

(1) Freedom of speech in parliamentary proceedings; (2) the exclusive cognisance/exclusive right of each House to regulate its own internal affairs and proceedings. Freedom of speech is protected by Article 9 of the Bill of Rights 1689 — proceedings in Parliament may not be impeached or questioned in any court.

What is the test for 'standing' (sufficient interest) in judicial review, and under what statutory provision?

Under s.31(3) Senior Courts Act 1981, the claimant must have a 'sufficient interest' in the matter to which the application relates. The leading case is R v IRC, ex p National Federation of Self-Employed (Fleet Street Casuals), which treats standing as a mixed question of fact, law and the merits/context, applied generously for public-interest bodies.

What is meant by 'amenability' to judicial review?

Whether the body and the decision are subject to judicial review at all — i.e. whether the body exercises a public function. Per R v Panel on Take-overs and Mergers, ex p Datafin, amenability depends on the nature/source of the power and function (the public function test), not merely whether the body was created by statute or prerogative.

What is the rule of procedural exclusivity established in O'Reilly v Mackman?

Public law challenges must generally be brought by judicial review under (now) CPR Part 54, not by ordinary private law action, to benefit from JR's protections (permission, time limits). It is an abuse of process to evade those safeguards by proceeding otherwise, subject to exceptions where public law issues arise collaterally or by consent.

Name the three traditional grounds of judicial review identified in the GCHQ case.

(1) Illegality, (2) Irrationality (unreasonableness), and (3) Procedural impropriety. Lord Diplock in GCHQ also suggested proportionality might develop as a fourth ground.

What forms can the ground of 'illegality' take in judicial review?

Acting ultra vires (beyond statutory powers), error of law, error of material fact, using a power for an improper purpose, taking into account irrelevant considerations or ignoring relevant ones, fettering discretion, and unlawful delegation of a power (delegatus non potest delegare).

State the test for Wednesbury unreasonableness/irrationality.

A decision is irrational if it is so unreasonable that no reasonable authority could ever have come to it — 'so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it' (Associated Provincial Picture Houses v Wednesbury Corporation; reformulated by Lord Diplock in GCHQ).

What two duties make up procedural impropriety (natural justice)?

(1) The right to a fair hearing (audi alteram partem — the right to be heard, to know the case against you, and to make representations); (2) the rule against bias (nemo iudex in causa sua — no one a judge in their own cause), covering actual, automatic/direct interest, and apparent bias.

State the test for apparent bias in Porter v Magill.

Whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal/decision-maker was biased.

What is the doctrine of legitimate expectation in judicial review?

Where a public body, by a clear and unambiguous promise or established practice, leads a person to expect a benefit or procedure, the body may be held to it. It can be procedural (expectation of consultation/a hearing) or substantive (expectation of a benefit), enforced where frustrating it would be so unfair as to amount to an abuse of power (R v North & East Devon Health Authority, ex p Coughlan).

List the remedies available in judicial review.

The prerogative/quashing remedies: quashing order (certiorari) to nullify a decision; prohibiting order (prohibition) to prevent unlawful action; mandatory order (mandamus) to compel a duty. Plus the private law remedies available in JR: declaration, injunction, and (exceptionally) damages. All are discretionary.

What is an ouster clause and how do courts treat it? Cite the leading case.

An ouster clause is a statutory provision purporting to exclude or limit judicial review of a decision. Courts construe them very narrowly. In Anisminic v Foreign Compensation Commission, the House of Lords held a clause stating a 'determination shall not be called in question' did not protect a decision that was a nullity (made on an error of law/jurisdiction), as such a 'determination' was no determination at all.

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

Under CPR 54.5, a JR claim must be filed promptly and in any event not later than 3 months after the grounds first arose. (Special shorter limits apply, e.g. 6 weeks for planning and 30 days for procurement.) The court may refuse permission for undue delay even within the three months.

What is the purpose of the Pre-Action Protocol for Judicial Review?

It requires the claimant to send a letter before claim identifying the issues and the relief sought, and the defendant to respond (normally within 14 days), to enable parties to settle or narrow the dispute before issuing proceedings. It does not stop the 3-month time limit running; failure to comply may attract costs sanctions.

What is the two-stage permission procedure in judicial review?

JR requires the court's permission. The claimant files a Claim Form (N461); permission is usually decided on the papers. The court grants permission only if there is an arguable case with a realistic prospect of success and the claimant has standing, brought the claim in time, and exhausted alternative remedies.

What is the scheme/purpose of the Human Rights Act 1998?

It gives further effect in UK domestic law to the rights in the European Convention on Human Rights, allowing individuals to enforce Convention rights in UK courts rather than only at Strasbourg ('bringing rights home'). It largely came into force on 2 October 2000.

What does s.2 HRA 1998 require of UK courts?

Courts determining a question involving a Convention right must 'take into account' the case law of the European Court of Human Rights. This is not strictly binding — UK courts follow a clear and constant line of Strasbourg jurisprudence (the 'mirror principle', Ullah) but may depart in dialogue with Strasbourg.

What interpretive obligation does s.3 HRA 1998 impose, and what is its limit?

So far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way compatible with Convention rights. The limit (Ghaidan v Godin-Mendoza) is that the reading must not go against the grain or against a fundamental feature of the legislation; courts cannot legislate.

What is a declaration of incompatibility under s.4 HRA 1998, and what is its effect?

Where a court (High Court and above) cannot read legislation compatibly under s.3, it may declare the provision incompatible with a Convention right. The declaration does NOT invalidate, repeal or disapply the legislation — it remains in force; it signals to Parliament, which may amend via a remedial order under s.10.

Who is bound by s.6 HRA 1998 and what does it make unlawful?

Section 6 makes it unlawful for a 'public authority' to act in a way incompatible with a Convention right (unless required by primary legislation). 'Public authority' includes core public authorities (e.g. courts, police, government departments) and 'hybrid' bodies in respect of their public functions, but not Parliament.

Distinguish absolute, limited and qualified Convention rights, giving an example of each.

Absolute rights cannot be interfered with under any circumstances (e.g. Art 3 — prohibition of torture/inhuman or degrading treatment). Limited rights may be restricted in specified circumstances set out in the article (e.g. Art 5 — liberty, with listed exceptions). Qualified rights may be interfered with where prescribed by law, in pursuit of a legitimate aim, and necessary in a democratic society (e.g. Arts 8–11).

What does Article 6 ECHR guarantee?

The right to a fair trial: in the determination of civil rights/obligations or any criminal charge, a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. It includes the presumption of innocence and minimum rights for those charged with a criminal offence.

What is the three-part structure of permissible interference with a qualified right (e.g. Art 8(2))?

An interference is justified only if it is (1) 'in accordance with the law'/'prescribed by law' (lawful and accessible/foreseeable); (2) in pursuit of one of the legitimate aims listed in the article (e.g. national security, prevention of crime, protection of the rights of others); and (3) 'necessary in a democratic society' — answering a pressing social need and proportionate.

State the four-stage proportionality test (Bank Mellat v HM Treasury (No 2)).

(1) Is the objective sufficiently important to justify limiting a fundamental right? (2) Is the measure rationally connected to that objective? (3) Could a less intrusive measure have been used without unacceptably compromising the objective? (4) Does the measure strike a fair balance between the individual's rights and the interests of the community (proportionality stricto sensu)?

What is the 'margin of appreciation' and how does it differ from domestic deference?

The margin of appreciation is the latitude the European Court of Human Rights grants national authorities in assessing how to secure Convention rights, recognising their better position to judge local conditions and morals. It is a doctrine of international/supranational review and does not apply between domestic UK courts and decision-makers; instead domestic courts apply analogous 'deference'/discretionary area of judgment.

What is the difference between horizontal and vertical effect of the HRA 1998?

Vertical effect: rights are enforced by individuals against the state/public authorities. Horizontal effect: the impact of Convention rights on disputes between private parties. The HRA has at most 'indirect horizontal effect' — because courts are public authorities under s.6, they must develop and apply the common law compatibly with Convention rights (e.g. developing breach of confidence/misuse of private information in Campbell v MGN).

Who can bring a claim under the HRA 1998 (the 'victim' requirement, s.7)?

Only a person who is (or would be) a 'victim' of the unlawful act may bring proceedings under s.7 HRA. The victim test mirrors Article 34 ECHR — the claimant must be directly affected by the act or at real risk of being affected. This is narrower than the 'sufficient interest' standing test in ordinary judicial review, so public-interest groups generally cannot sue under the HRA in their own right.

What are the principal institutions of the European Union and their broad roles?

European Commission (executive; proposes legislation, 'guardian of the Treaties'); European Parliament (directly elected; co-legislator and budgetary control); Council of the European Union/Council of Ministers (co-legislator; member-state ministers); European Council (heads of state/government; sets political direction); and the Court of Justice of the European Union (interprets and enforces EU law).

Distinguish the main sources of EU law: Treaties, Regulations, Directives and Decisions.

Treaties (TEU and TFEU) are primary law. Regulations are directly applicable and binding in their entirety in all member states without transposition. Directives bind member states as to the result but leave choice of form and method, requiring national implementation by a deadline. Decisions are binding only on those to whom they are addressed.

State the principle of supremacy of EU law and the case that established it.

EU law takes precedence over conflicting national law of member states. Established in Costa v ENEL (1964): member states have limited their sovereign rights and created a body of law binding on them, which national courts must apply over inconsistent domestic provisions (extended to constitutional provisions in Internationale Handelsgesellschaft and applied in the UK in Factortame).

Explain direct effect and the conditions in Van Gend en Loos.

Direct effect is the principle that EU law provisions can create rights individuals may enforce directly in national courts. The Van Gend en Loos conditions: the provision must be clear and precise, unconditional, and not dependent on further implementing measures. Treaty articles and regulations can have both vertical and horizontal direct effect; directives have only vertical direct effect (against the state), after the implementation deadline (Marshall v Southampton AHA).

What are the 'four freedoms' of the EU single market?

The free movement of (1) goods, (2) persons (including workers and freedom of establishment), (3) services, and (4) capital. These underpin the internal market by prohibiting discriminatory and (subject to justification) non-discriminatory barriers to cross-border movement.

Outline the prohibition on quantitative restrictions on goods and the Dassonville/Cassis principles.

Article 34 TFEU prohibits quantitative restrictions and measures having equivalent effect (MEQRs) on imports. Dassonville defined an MEQR as any trading rule capable of hindering, directly or indirectly, actually or potentially, intra-EU trade. Cassis de Dijon established mutual recognition and that indistinctly applicable measures may be justified by 'mandatory requirements' if proportionate, alongside the Art 36 derogations.

What is the preliminary reference procedure under Article 267 TFEU?

A mechanism by which national courts may (and courts of last resort must) refer questions on the interpretation or validity of EU law to the Court of Justice of the EU. The CJEU gives a ruling on the law, which the national court then applies to the facts, ensuring uniform interpretation across member states (subject to the acte clair doctrine, CILFIT).

What is 'retained EU law' under the EU (Withdrawal) Act 2018?

At the end of the transition period (31 December 2020) the EU (Withdrawal) Act 2018 converted the body of EU law applicable in the UK into domestic 'retained EU law' — snapshotting EU-derived domestic legislation, direct EU legislation (e.g. retained regulations), and other rights/obligations — to provide legal continuity after Brexit, with the European Communities Act 1972 repealed.

What did the Retained EU Law (Revocation and Reform) Act 2023 change, including terminology and supremacy?

It renamed 'retained EU law' as 'assimilated law', abolished the principle of supremacy of EU law and general principles of EU law within UK law from the end of 2023 (so domestic law now takes precedence), removed directly effective rights, gave courts greater power to depart from retained EU case law, and provided powers to revoke or reform assimilated law. (It replaced the original 'sunset' of all retained EU law with a specific schedule of revocations.)