Solicitors Qualifying Examination (SQE) Public Law and Legal System (FLK1) Flashcards

24 sample cards from the Public Law and Legal System (FLK1) deck

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

1. What is a declaration of incompatibility under section 4 of the HRA 1998?

   Where a court cannot interpret legislation compatibly under s 3, higher courts may declare the provision incompatible with a Convention right. It does NOT invalidate or disapply the legislation; it signals to Parliament to consider amendment.

2. What does section 6 of the HRA 1998 make unlawful?

   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 (s 6(2)). Courts and tribunals are public authorities; Parliament is excluded.

3. What does section 7 of the HRA 1998 provide regarding who may bring a claim?

   A person who is (or would be) a 'victim' of an unlawful act by a public authority may bring proceedings or rely on the right. The 'victim' test is narrower than the 'sufficient interest' test in ordinary judicial review.

4. What remedies can a court grant under section 8 of the HRA 1998?

   Any relief or remedy within its powers that it considers just and appropriate, including damages — but damages only if necessary to afford 'just satisfaction', taking account of ECtHR principles under Article 41.

5. Classify Convention rights into absolute, limited, and qualified, with an example of each.

   Absolute (no derogation/balance, e.g. Art 3 prohibition of torture); limited (subject to express exceptions, e.g. Art 5 right to liberty); qualified (may be interfered with if legitimate aim, prescribed by law, and necessary/proportionate, e.g. Arts 8–11).

6. What does Article 2 ECHR protect and what are its two duties?

   The right to life. It imposes a negative duty (not to take life unlawfully) and a positive duty (to protect life, including operational measures where there is a real and immediate risk — Osman v UK).

7. What does Article 6 ECHR guarantee?

   The right to a fair trial — a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, including (in criminal cases) the presumption of innocence and minimum defence rights.

8. State the structured test for a justified interference with a qualified right (e.g. Article 8).

   (1) Is the right engaged? (2) Is there an interference? (3) Is it 'in accordance with / prescribed by law'? (4) Does it pursue a legitimate aim? (5) Is it 'necessary in a democratic society' (proportionate)?

9. What are the four limbs of the proportionality test (Bank Mellat v HM Treasury (No 2))?

   (1) Is the objective sufficiently important to justify limiting the 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?

10. What is the 'margin of appreciation' in ECHR law?

    The latitude the European Court of Human Rights affords to national authorities in how they secure Convention rights, reflecting that domestic bodies are better placed to assess local needs. It is a Strasbourg doctrine, not strictly a domestic one (domestically: 'discretionary area of judgment').

11. How is the European Court of Human Rights (Strasbourg) reached and what is its enforcement power?

    An applicant must first exhaust all effective domestic remedies (Art 35) and apply within (currently) 4 months. The Court delivers binding judgments; states are obliged under Art 46 to abide by them, with execution supervised by the Committee of Ministers, though the Court cannot strike down national law.

12. What is the difference between the European Court of Human Rights and the Court of Justice of the European Union?

    The ECtHR (Strasbourg) enforces the ECHR for the 46 Council of Europe states; the CJEU (Luxembourg) is the EU's court. They are entirely separate institutions; the UK remains in the Council of Europe/ECHR after leaving the EU.

13. Outline the structure of the senior courts in England and Wales (civil), from lowest to highest.

    County Court / High Court (three divisions: King's Bench, Chancery, Family) → Court of Appeal (Civil Division) → Supreme Court. The Supreme Court replaced the Appellate Committee of the House of Lords in 2009.

14. Outline the criminal court structure in England and Wales from first instance upwards.

    Magistrates' Court (summary/either-way) and Crown Court (indictable/either-way) at first instance → appeals to the Crown Court or by case stated to the High Court (KBD Divisional Court) → Court of Appeal (Criminal Division) → Supreme Court.

15. What is the doctrine of judicial precedent (stare decisis) and which courts bind which?

    Lower courts are bound by the ratio decidendi of higher courts. The Supreme Court binds all below and may depart from its own decisions (Practice Statement 1966); the Court of Appeal binds itself (subject to Young v Bristol Aeroplane exceptions).

16. Distinguish ratio decidendi from obiter dicta.

    Ratio decidendi is the legal reasoning essential to the decision and is binding; obiter dicta are statements 'by the way' not necessary to the decision and are only persuasive.

17. What are the three traditional rules of statutory interpretation?

    The literal rule (ordinary, plain meaning of words), the golden rule (modify the literal meaning to avoid absurdity), and the mischief rule (Heydon's Case — interpret to suppress the mischief the Act aimed to remedy).

18. What is the 'purposive approach' to statutory interpretation?

    Interpreting a statute to give effect to its underlying purpose or object, looking beyond the literal words. It is the dominant modern approach, reinforced by EU-derived law and s 3 HRA, and by Pepper v Hart use of Hansard.

19. What did Pepper v Hart (1993) permit regarding statutory interpretation?

    Courts may refer to Hansard (parliamentary debates) as an aid to interpretation where the legislation is ambiguous or obscure, the material consists of statements by a minister/promoter, and those statements are clear.

20. Name three internal (intrinsic) and three external (extrinsic) aids to statutory interpretation.

    Intrinsic: long/short title, preamble, headings, marginal notes, definition/interpretation sections, schedules. Extrinsic: dictionaries, the Interpretation Act 1978, Hansard (per Pepper v Hart), Law Commission reports, prior case law, and international treaties.

21. List three rules of language used in statutory interpretation.

    Ejusdem generis (general words following a list take their meaning from the genus); expressio unius est exclusio alterius (expressing one thing excludes others not mentioned); noscitur a sociis (a word is known by the company it keeps).

22. What is the hierarchy and primacy of UK legal sources after the literal text?

    Acts of Parliament (primary legislation) are supreme; delegated/secondary legislation (e.g. statutory instruments) must be intra vires the parent Act and can be struck down by courts; common law fills gaps but yields to statute. Statute overrides conflicting common law.

23. What is delegated (secondary) legislation and how is it controlled?

    Law made by a body (e.g. a minister) under authority delegated by a parent Act — e.g. statutory instruments, byelaws, Orders in Council. Controlled by Parliament (affirmative/negative resolution procedures, scrutiny committees) and by courts via judicial review for ultra vires.

24. After Brexit, what is the status of retained/assimilated EU law in the UK?

    EU law ceased to have supremacy as a living source; the European Union (Withdrawal) Act 2018 converted EU law into 'retained EU law', renamed 'assimilated law' from the end of 2023 by the Retained EU Law (Revocation and Reform) Act 2023, with the principle of supremacy of EU law abolished.

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