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

24 sample cards from the Constitutional and Administrative Law and EU 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 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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).

10. 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.

11. 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.

12. 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)?

13. 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.

14. 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).

15. 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.

16. 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).

17. 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.

18. 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).

19. 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).

20. 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.

21. 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.

22. 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).

23. 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.

24. 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.)

What this deck covers

Constitutional and Administrative Law and EU Law flashcards FAQ