Graduate Diploma in Law (GDL) 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 time limit for bringing a judicial review claim?

   The claim must be filed promptly and in any event not later than 3 months after the grounds first arose (CPR 54.5); some statutory regimes (e.g. planning) impose shorter limits (e.g. 6 weeks).

2. What are Lord Diplock's three classic grounds of judicial review in GCHQ?

   Illegality, irrationality (Wednesbury unreasonableness), and procedural impropriety. Diplock also noted proportionality might develop as a further ground.

3. Give examples of the ground of 'illegality' in judicial review.

   Acting ultra vires (beyond powers); error of law; error of fact; fettering of discretion; unlawful delegation; using a power for an improper purpose; taking into account irrelevant considerations or ignoring relevant ones.

4. State the test for Wednesbury unreasonableness/irrationality.

   A decision so unreasonable that no reasonable authority could ever have come to it (Associated Provincial Picture Houses v Wednesbury Corporation 1948); described in GCHQ as 'so outrageous in its defiance of logic or accepted moral standards'.

5. What is 'procedural impropriety' as a ground of review?

   Failure to observe procedural rules — either statutory procedural requirements laid down for the decision, or breach of the common-law rules of natural justice / duty to act fairly.

6. What is proportionality and when does it apply in UK public law?

   A structured test asking whether a measure pursues a legitimate aim, is suitable and necessary (least intrusive), and strikes a fair balance. It applies in Human Rights Act and (formerly) EU law cases, and is increasingly influential generally.

7. What are the two limbs of natural justice (rules of fairness)?

   (1) The rule against bias — nemo iudex in causa sua (no one a judge in their own cause); (2) the right to a fair hearing — audi alteram partem (hear the other side).

8. State the test for apparent bias. (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 was biased (Porter v Magill 2002).

9. What is the rule on automatic disqualification for bias? (Dimes; Pinochet)

   A decision-maker with a direct pecuniary or proprietary interest, or a relevant non-pecuniary interest in the cause's outcome, is automatically disqualified (Dimes v Grand Junction Canal; R v Bow Street Magistrate, ex p Pinochet (No 2)).

10. What does the right to a fair hearing typically require?

    Prior notice of the case to be met; an adequate opportunity to make representations (oral or written); disclosure of relevant material; sometimes reasons for the decision; and an unbiased decision-maker. The content varies with context.

11. What is a 'legitimate expectation' and what protection may it attract?

    An expectation, arising from a clear representation or settled practice by a public body, of a benefit or procedure. It may be protected procedurally (a right to be consulted before change) or, exceptionally, substantively (R v North & East Devon HA, ex p Coughlan).

12. Name the remedies available in judicial review.

    The prerogative (quashing) orders: quashing order (certiorari), prohibiting order, mandatory order (mandamus); plus declarations, injunctions, and (rarely, with another ground) damages. All remedies are discretionary.

13. What does a 'quashing order' do, and what new flexibility was added in 2022?

    A quashing order nullifies an unlawful decision. The Judicial Review and Courts Act 2022 allows suspended quashing orders (taking effect later) and prospective-only quashing orders (no retrospective effect).

14. Which Articles of the ECHR are 'absolute', 'limited', and 'qualified' — give examples.

    Absolute (no derogation/limitation): Art 3 (torture), Art 4(1) (slavery), Art 7. Limited: Art 5 (liberty) — restricted in defined situations. Qualified (Arts 8–11): may be interfered with if prescribed by law, for a legitimate aim, and necessary in a democratic society (proportionate).

15. What is the structure of a 'qualified right' analysis under Articles 8–11 ECHR?

    An interference is justified only if it is (1) in accordance with / prescribed by law, (2) pursues one of the legitimate aims listed in the second paragraph, and (3) is necessary in a democratic society (i.e. proportionate, meeting a pressing social need).

16. What does the 'margin of appreciation' mean in ECHR jurisprudence?

    The latitude the European Court of Human Rights affords national authorities in assessing the necessity of an interference with qualified rights, recognising states are better placed to judge local conditions. It is a Strasbourg doctrine, not applied domestically as such.

17. What does section 3 of the Human Rights Act 1998 require?

    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 (a strong interpretive obligation that can read words in/out, but not against the grain of the statute).

18. What is a 'declaration of incompatibility' under section 4 HRA 1998?

    Where a court cannot read legislation compatibly under s.3, certain higher courts may declare a statutory provision incompatible with a Convention right. It does not invalidate the legislation or bind the parties; it signals to Parliament, which may amend via s.10.

19. What is the duty on public authorities under section 6 HRA 1998?

    It is unlawful for a public authority to act in a way incompatible with a Convention right, unless required to do so by primary legislation. 'Public authority' includes courts and bodies with functions of a public nature.

20. What does section 2 HRA 1998 require of UK courts regarding Strasbourg case law?

    Courts must 'take into account' relevant judgments and decisions of the European Court of Human Rights; they are required to consider, but not strictly bound to follow, Strasbourg jurisprudence.

21. What does Article 10 ECHR protect, and what is the test for restricting it?

    Freedom of expression, including holding opinions and receiving/imparting information and ideas. As a qualified right, restrictions must be prescribed by law, pursue a legitimate aim (e.g. national security, public safety, protection of reputation), and be necessary/proportionate in a democratic society.

22. Why is freedom of expression regarded as especially important, and what scope does it cover?

    It is a foundation of democracy and self-fulfilment. Strasbourg (Handyside v UK) held it protects not only inoffensive ideas but also those that 'offend, shock or disturb'. It covers political, artistic and commercial expression, with political speech given the highest protection.

23. What is the 'public order' framework restricting protest/assembly, and which Convention right is engaged?

    Article 11 ECHR protects freedom of peaceful assembly (a qualified right). Domestically the Public Order Act 1986 (as amended) lets police impose conditions on, or restrict, processions and assemblies for reasons such as preventing serious public disorder, damage or disruption.

24. Compare a 'declaration of incompatibility' (s.4 HRA) with the disapplication of legislation under EU law (Factortame).

    Under s.4 HRA the court cannot strike down or disapply an incompatible Act — it merely declares incompatibility, leaving the statute valid and preserving parliamentary sovereignty. Under EU law (Factortame) courts could disapply conflicting UK statutory provisions. The HRA was deliberately designed to avoid that, respecting sovereignty.

What this deck covers

Public Law (Constitutional and Administrative Law) flashcards FAQ