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

24 sample cards from the Public Law (Constitutional and Administrative Law) deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. 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).

2. 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.

3. 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.

4. 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).

5. 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.'

6. 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)?

7. 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)).

8. 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.

9. 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.

10. 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)).

11. 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.

12. 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).

13. 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.

14. 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.

15. 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.

16. 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)).

17. 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.

18. 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.

19. 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).

20. 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.

21. 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.

22. 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.

23. 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.

24. 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)).

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Public Law (Constitutional and Administrative Law) flashcards FAQ