BCL Law Notes Comparative Public Law Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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1. Process Rights
UK
Hearings – Ch 12
Rationale for procedural rights
Instrumental rationale – link to correct outcome
Non-instrumental rationale – protection of human dignity
R v Secretary of State for Home Dept; ex parte Doody (1994) (HL)
Reasons should be given for sentence – human desire to understand decision | potential to point out errors in review
Development of scope of hearing rule (audi alteram partem)
Limited in early 1900s
Court-like requirement for oral hearing cannot be grafted onto administration where not required by statute: Alridge (1915) HL (refused access to housing inspector’s report – parliament taken to have intended that board could follow its own procedure).
Confined to ‘judicial or quasi-judicial’ not administrative decisions: Errington v Minister for Health (1935) CA (Minister conferred with local authority & received further evidence after close of public inquiry—inquiry lis inter partes acting quasi-judicially—breach); cf Offer v Minister for Health (1936) (lis had not yet been joined not inter partes, not judicial in character, not subject to hearing rule)
Limitation to rights (not privileges): Nakkuda Ali (1951) PC (cancellation of licence = withdrawal of privilege); Parker (1953) (cab licence = ‘permission’)
Lord Shaw — “But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded.”
Note does not reflect current position
Revisited in Ridge v Baldwin (1964) HL (Chief Constable dismissed entitled to opportunity to be heard).
Reid LJ resurrects NJ pointing out reasons for narrowing:
Limits on NJ in context of discretion applied to other areas
Limits in wartime continued past war
Misconceived ‘superadded duty to act judicially’ for relief by certiorari
Requirement for NJ dependent on nature of power & effect on individual
Limitations above not decisive
Applicability – criterion
Character of function performed by body subject to judicial review (administrative, judicial, legislative)
Disapproved of post-Ridge
Good for certainty/predictability – but lines between categories are blurred
Nature of applicant’s interest
Currently favoured approach: whether there is some right, interest or legitimate expectation so as to warrant procedural protection: Schmidt v Secretary of State (1969) CA
Right
Proprietary or personal right – eg real property: Cooper (1863)
Interests in the nature of property eg employment: Bagg’s Case (1615); Fisher (1891)
Liberty: R v Parole Board; ex parte Wilson (1992)
Interest
ie direct opposite to distinction between rights & privileges
even in absence of substantive right to particular benefit
absence of substantive right may make procedural rights more important: Malloch (1971) per Wilberforce LJ
eg officers dismissed for cause / at pleasure
Legitimate expectation, including where—
Akin to future interest – application for substantive interest: McInnes v Onslow-Fane (1978) per Megarry VC (eg applicant licence holder seeking renewal / elected person seeking confirmation of appointment)
Where clear & unequivocal representation
Without which interest would not warrant protection – representation provides foundation: AG of HK v Ng Yuen Shiu (alien entered territory illegally – government announced illegal immigrants would be interviewed protected but would not have been without unequivocal representation)
Augments existing warrant for protection of interest: Liverpool Taxi case (1972) (council capped taxi licence numbers – assured drivers would not be increased w/out consultation proprietary interest in licence enhanced by representation)
Defendant institution seeks to deviate from established criteria for application of policy: Khan (1984) (applicant sought to adopt brother’s child from Pakistan – criteria used by Home Office published breach)
“civil rights & obligations”: ECHR Art 6(1) incorporated by Human Rights Act 1998
ECHR & HRA generally
Courts must interpret legislation consistently w rights: s 3
Acts of public authorities inconsistent with rights are unlawful: s 6
Strasbourg court’s jurisprudence persuasive: s 2
Art 6:
Trigger standard: ‘in the determination of his civil rights and obligations or of any criminal charge against him’
‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’
judgment to be publicly; parts of trial may be closed in interests of
morals,
public order,
national security,
interests of juveniles,
protection of private life of parties, or
in interests of justice
Scope of ‘civil rights and obligations’
Rights adjudicated in civil law courts = private law rights: Feldbrugge v Netherlands (1986) ECtHR; Runa Begum v Tower Hamlets (2003)
Not so restricted: rights under art 14 of ICCPR
ECtHR: includes such rights as
Disputes concerning land use: Ringeisen v Austria
Monetary claims against public authorities: Editions Periscope v France
Applications for & revocation of licences: Benthem v Netherlands
Claims for social security benefits: Feldbrugge
Professional disciplinary proceedings: Le Compte v Belgium
Applies in initial proceedings if they influence later proceedings: R v Governor of X School (2011) UKSC
Questionable distinction drawn between substantive entitlement and discretionary benefit as criterion
Examples (UK courts)
Husain (2001) (withdrawal of financial asylum support some social security payments = civil right – but not discretionary social welfare payments)
Begum (2002); Ali (2010) (statutory body required to provide crisis accommodation if criteria met – had some discretion as to manner of provision dependent on evaluative judgments in determining whether satisfied statutory criteria – therefore no art 6 right)
Content of...
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A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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