1. Government Decision Making And The Law - Public Law 2

Front 1

What is discretionary power?

Back 1

1. Freedom to act or judge on one's own

2. Decision maker 'may' rather than 'should' or 'must'

Front 2

What types of discretionary powers are employed in UK governance?

Back 2

1. Express powers

2.Implied powers
3. Prerogative powers

Front 3

What are express discretionary powers

Back 3

Usually statutory provisions which confer powers to make discretionary decisions. i.e. 'If the minister has reasonable grounds to believe that...'

Front 4

What are implied discretionary powers?

Back 4

Powers which require an administration to make choices as to their meaning through discretion, such as what is in the 'public interest'.

Front 5

What are prerogative discretionary powers

Back 5

Powers which are exercisable by the crown (or rather its representatives) which have not yet been put in abeyance by statute. Some powers, such as foreign relations, are unreviewable, some may now be under judicial control.

Front 6

Why is discretionary power necessary?>

Back 6

1. Legislation cannot cover all eventualities or nuances.

2. Modern life is complex and may not be anticipated

3. Complex issues require flexibility and relevant expertise.

Front 7

What limitations do discretionary powers generally have?

Back 7

1. Uncertainty or arbitrariness

2. Inconsistency

3. Discrimination

4. Corruption

5. Abuse of power

Front 8

How may injustice best be minimised in terms of discretionary powers?

Back 8

1. Eliminate unnecessary discretionary powers

2. Control, structure and check necessary discretionary powers.

Front 9

What are the forms of the rule of law?

Back 9

1. Procedural (Raz)

2. Substantive (Fuller, Dworkin, Bingham)

Front 10

What qualities are inherent in a procedural rule of law?

Back 10

1. Formality

2. The existence of the law is separate from its merits

3. Focus is given to how law is made, rather than its substance

4. Justice, social dimensions or consequences are irrelevant

5. Role of judges confined to legal interpretation

Front 11

What qualities are inherent in a substantive rule of law?

Back 11

1. Merits or quality of outcome of laws are vital

2. Substantive rights are considered

3. Focuses on what law should be, over what it is

4. Requires an interventionist judiciary.

Front 12

What is legitimacy?

Back 12

The idea that law has an implied rightness or morality behind it. It equates democratic pedigree.

Front 13

How does legitimacy differ from legality?

Back 13

1. Government decisions may be legal, bu not legitimate (Nazi Germany; Apartheid, etc.)

2. Illegitimate government undermines popular acceptance of decisions

3. Legitimacy encompasses both procedural and substantive rule of law, legality only encompasses procedural.

Front 14

When is a discretionary power legitimate?

Back 14

When it conforms to both aspects of the rule of law

Front 15

What will impact the legitimacy of a decision?

Back 15

1. The specific mechanisms for the control of the process and outcomes

2. The power of courts to intervene and hold government to account.

Front 16

What ways may discretionary decisions be controlled?

Back 16

1. Political controls

2. Judicial controls

3. Alternative controls

4. External controls

5. HR based controls

Front 17

How may the idea of responsible government be broken down?

Back 17

Responsible government requires ministerial responsibility. Ministerial responsibility contains both collective and individual responsibility. Individual responsibility may be further broken down into personal and departmental responsibility.

Front 18

What now contains the standards to which UK minister must be individually held?

Back 18

The ministerial code (Cabinet officer, 2015)

Front 19

What is stated by the ministerial code in terms of individual responsibility.

Back 19

1. Ministers are expected to behave in a way that upholds the highest standards of propriety

2. Ministers must ensure no conflict arises, or appears to arise, between their public duties and private interests

3. Ministers must not accept gifts which might, or might appear to, compromise their judgement of place them under an improper obligation.

4. Ministers must not use government resources for party political purposes.

Front 20

What were the circumstances, and outcomes of Crichel Down 1954?

Back 20

Crichel Down had been compulsorily purchased during WWII. The original owner later asked if he could buy the land back, and was (wrongly) told by the commission no administering it that they had no power of sale. An inquiry found that there had been 'inaccuracies in the report on the land, muddle and inefficiency in handling the matter' inter alia. The minister responsible for that department resigned.

Front 21

How may Crichel Down be summarised?

Back 21

Inefficiencies in his department ultimately fell on the responsible minister, who resigned.

Front 22

What factors, according to Prof. SE Finer will be relevant to whether a minister will likely resign over a scandal?

Back 22

The minister must be compliant, the PM firm and the party clamorous.

Front 23

What does to the ministerial code 2015 state in terms of departmental individual responsibility?

Back 23

1. Minister have a duty to parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies.

2. Ministers must give accurate and truthful information to parliament, correctly any inadvertent error at the earliest opportunity.

3. Ministers who knowingly mislead parliament will be expected to resign.

Front 24

What recent examples are there of ministers resigning due to personal responsibility?

Back 24

1. Andrew Mitchel, 2012, 'Plebgate'

2. Chris Hune, 2012, perverting the course of justice

3. David Laws, 2010, expenses

4. Liam Fox, 2011, access given to a friend to MOD operations

5. Brooks Newmark, 2015, sexual impropriety

Front 25

In respect of departmental responsibility, what difficulties do agencies give rise to?

Back 25

While the agencies are part of a department they operate separately meaning if a failure is operational, rather than policy based there may not be a redress for the public against the CEO of that agency.

Front 26

What are the key tennets of collective responsibility?

Back 26

1. All minister are responsible for decisions made in parliament.

2. Decisions made in cabinet are binding on all ministers

3. A minister should resign if he/she disagrees with a decision

4. Public confidence is maintained in the government speaks with one voice

5. Collective responsibility requires confidentiality of cabinet discussions

Front 27

What exceptions may there be to collective responsibility?

Back 27

1. In coalition governments, disagreements under certain circumstances may be allowed. (1931-1932; 1975;2010-2015)

2. Free votes where the government has no policy may be allowed

3. Free votes due to political sensitivity may be allowed (2016 EU vote)

Front 28

What are the rules concerning Cabinet papers?

Back 28

1. Governments of a different political persuasion may not have the cabinet papers of the previous government disclosed to them.

2. Successive governments may ask the previous prime minister of the same party for access to the papers.

3. Members may not disclose cabinet discussions.

Front 29

What exceptions arise to the confidentiality of cabinet papers?

Back 29

1. Papers in the public domain (i.e. sent by a former minister to trade unions etc.) may be disclosed

2. Papers which are known to foreign governments (i.e. around negotiations) may be released in some circumstances

3. Written opinions by law officers, as they are legal rather than political.

Front 30

What requirements must be satisfies in order for a former minister to release their memoirs?

Back 30

1. They must not reveal anything which is sensitive to national security.

2. They must not release anything which may injure the relations with other nations.

3. They must not breach confidentiality conventions

4. They must submit a draft to the cabinet secretary.

Front 31

What was held in Attorney general v Jonathan Cape ltd 1976?

Back 31

As the convention of confidentiality was not enforceable by the courts an injunction to stop executors of a former minister's estate from publishing his diaries was denied.

Front 32

What document provides for the standard of behaviour of Scottish Ministers?

Back 32

The Scottish ministerial code 2011 (expired until may 2016)

Front 33

What controls mechanisms does parliament employ?

Back 33

1. Oppositions days

2. Questions

3. Debates

4. Inquiries

5. Select committees

Front 34

How do departments appear at question time?

Back 34

On a rota as decided by the executive.

Front 35

How does questioning proceed at question time?

Back 35

The speaker will call the member based on their position in the order of business to ask their question, the minister will respond and then be asked a supplementary question by the member.

Front 36

How may questions be put to ministers?

Back 36

Either orally or in writing.

Front 37

How may answers to questions be refused?

Back 37

Due to a disproportionate cost in finding the answer.

Front 38

How much notice must members give when asking questions?

Back 38

3 days.

Front 39

How does Prime Minister's questions differ from departmental questions?

Back 39

Questions simply ask the PM's engagements for the say, with politically urgent follow up questions. The PM was decline an answer if it is more relevant to a certain department. The opposition does not need to table questions for oral answer and may ask up to 6.

Front 40

What manner of questions may not be asked at question time?

Back 40

1. Questions reflecting on the sovereign.

2. Questions on matters where the PM has given advice to the Crown in relation to the prerogative.

3. Questions not relating to the individual responsibility of the relevant minister.

Front 41

What is an urgent questions?

Back 41

A question which is of an urgent character in the speaker's opinion. They take priority over other business and must be put to the speaker before noon on the day they are intended to be asked.

Front 42

What forms of debates are used in parliament?

Back 42

1. General debates

2. Adjournment debates

3. Urgent debates

4. Opposition days

Front 43

What are general debates?

Back 43

Normal business of parliament: relating to bills etc.

Front 44

What are adjournment debates?

Back 44

A ballot is held in the speaker's officer for a chance for a member to speak on any topic for 15 minutes at the end of the day on any topic. The minister is given 15 minutes to reply.

Front 45

What are emergency debates?

Back 45

Debates on urgent matters raised by a member

Front 46

How may emergency debates be granted?

Back 46

By application to the speaker.

Front 47

What is an Early Day Motion?

Back 47

A written motion tabled in parliament to which MPs can sign their names asking for a debate on a matter 'at an early day', of at the earliest convinience.

Front 48

What is the general use of EDMs?

Back 48

The feel the mood of the house or give a view on a matter.

Front 49

What types of HoC select committees are there?

Back 49

1. Committees concerned with the administration of the house.

2. Committees relating to procedures of the house

3. Departmental committees.

Front 50

What are the permanent join committees?

Back 50

1. JC on HR

2. JC on Statutory Instruments

Front 51

How is membership of select committees decided?

Back 51

Members are elected by each party individually, from their back benchers in proportion to their number of seats with 11 members in each committee.

Front 52

How may chairs be chosen in select committees?

Back 52

By a vote of the house.

Front 53

What powers do select committees have?

Back 53

1. To send for persons, papers and records

2. To sit notwithstanding any adjournment of the house

3. To adjourn from place to place

4. To appoint specialist advisers.

Front 54

What committee coordinates the work of select committees, and who are its members?

Back 54

The liaison committee, comprising the chair-people of the departmental committees, the public accounts committee and the European legislation select committee.

Front 55

For whom is it to decide the matter for investigation for committees to investigate?

Back 55

The committees themselves.

Front 56

What aspects of government administration are susceptible to committee inquiry?

Back 56

All.

Front 57

For whom do committees not have the power to compel appearance?

Back 57

Ministers.

Front 58

What examples are there of non-cooperation from the government to committees?

Back 58

1. Westland

2. Salmonella in eggs (Edwina currie)

3. The maxwell pension fund.

Front 59

What will be the end goal of a committee's inquiry?

Back 59

A unanimous report.

Front 60

What arguments are put forwards for the effectiveness of committee's reports, even though they may not be debated in the house?

Back 60

1. Successive governments have undertaken to respond to reports.

2. while ministers may decline to appear before committees, the political ramifications if they do so tend to lead to cooperation.

3. Reports are available to the public

4. Debate may not be preferable as members of committees will have a wealth of information on the matter which other members may not.

Front 61

What are the advantages of committees generally?

Back 61

1. They provide an in depth examination of subject matters

2. They gain invaluable expertise/specialisation

3. They have investigative discretion

4. They give a voice to back-benchers

5. They are non-partisan

6. They are a valuable source of information.

Front 62

What is the general impact of parliamentary control mechanisms?

Back 62

While they have no way or directly changing policy, democratic legitimacy depends on the government reacting to informed and public opinion. While the executive is in control, mechanisms give a large amount of information on what the government is doing, allowing further political discourse and accountability.

Front 63

What is the definition of an election?

Back 63

A vote to determine where the populace chooses, by whatever means used in a constituency/state, where to put their political sovereignty.

Front 64

What principles are vital to the electorate enjoying equality in constitutional participation?

Back 64

1. There is a full franchise, subject to exceptions

2. The value of each vote is equal to each other vote

3. The conduct of campaigns is regulated to ensure fairness

4. The voting system is such that it may produce both a representative legislature and a government with a sufficient mandate to govern.

Front 65

What was held in Fox v Stirk 1970

Back 65

A student living in halls was able to register to vote from his residence provided there was a reasonable degree of permanence to his residence.

Front 66

Who is able to vote in elections, and due to which Act?

Back 66

1. People over the age of 18

2. British, commonwealth and ROI citizens who have the right to remain in the country.

3. Must be resident in or have a local connection to a constituency, and is registered to vote.

Front 67

What was held in Hirst v UK 2009?

Back 67

A blanket ban on prisoners voting is unlawful

Front 68

What was held in R(Chester) v Secretary of State for Justice 2011?

Back 68

It is for parliament, not the courts to change the laws on prisoner voting.

Front 69

What was held in Scoppola v Italy (No. 3) 2012?

Back 69

There is no violation of HR in removing a prisoner's vote if it was not automatic and indiscriminate.

Front 70

Which act now governs the timing of UK elections?

Back 70

The fixed term parliament act 2011

Front 71

When must general elections now take place?

Back 71

Every 5 years on the first Thursday in may

Front 72

How may an early election be called under the FTPA 2011?

Back 72

S.2

1. Resolution calling for early election passed by 2/3 majority of the house of commons.

2. Motion of no confidence passed with a simple majority in the house

Then wait 14 days to see if government can win a vote of confidence.

Front 73

Which act governs which classes of people are disqualified from representing in parliament?

Back 73

House of Commons Disqualification Act 1975

Front 74

What is a referendum?

Back 74

A direct vote on a specific question

Front 75

What are the benefits of referendums

Back 75

They allow a more direct input from the populace on fundamental issues.

Front 76

What is the downside to a referendum

Back 76

They are usually non-binding, though there are exceptions (AV 2011)

Front 77

Which act controls the administration of referendums?

Back 77

The Political Parties, Elections and Referendums Act 2000

Front 78

What is required by the EU Act 2011, Part 1

Back 78

Ratification of some EU treaties requires referendums

Front 79

What are the general advantages of referendums?

Back 79

1. Confers legitimacy

2. Gives acceptance

3. Builds Consensus

4. Informs Citizenry

5. Resolves disputes

6. Reduces Dependence

7. Decision making quality is improved

8. Entrenches changes

Front 80

What are the general disadvantages of referendums?

Back 80

1. Simplifies complex issues

2. Expense

3. Delay

4. Can undermine legitimacy

5. Non-binding

6. Abdicates governmental responsibility

7. Populist

Front 81

What is participative democracy

Back 81

A form of direct democracy which encompasses a range of activities in which citizens engage, usually through organisations, in order to influence government.

Front 82

What is a consultative exercise?

Back 82

A way of government finding public opinion on a matter, or allowing public participation in decision making.

Front 83

What are the benefits of consultation?

Back 83

1. Gives a voice to those with an interest

2. Improves quality of decision making

3. Gives legitimacy and acceptance to decisions

4. Shows transparency

5. Shows errors or gaps and areas of controversy

6. Shows unforeseen issues

7. Informs citizens

Front 84

What regulates consultations guidelines?

Back 84

Cabinet office consultation principles 2012

Front 85

What issues are covered by consultation guidelines?

Back 85

1. Subjects of consultation: Why, when not to

2. Timing of consultations: At which stage, for how long

3. Making information useful and accessible

4. Transparency and feedback: process must be open to public scrutiny, must show how previous feedback was used and future plans.

Front 86

What was held in R v North and East Devon Health Authority ex parte Coughlan 2001?

Back 86

1. Consultation must start early when proposals are at the formative stage

2. There must be sufficient reasons for a proposal to allow an intelligent response

3. There must be adequate time allowed for consultation

4. The product of consultation must be conscientiously taken into account.

Front 87

Whats was held in R(Greenpeace ltd.) v Secretary of State for Trade and Industry 2007?

Back 87

The secretary of State's decision after a 12 week consultation was unlawful. The document produces had been inadequate and misleading. The process has also been unfair as it breach the 'legitimate expectation' that a full public consultation would occur. NO consultee would know it was their last chance to have their voice heard.

Front 88

What is the significance of information in a participative democracy?

Back 88

Transparency and information are vital to inform democratic participation.

Front 89

Which recent developments have drastically changed participative democracy?

Back 89

1, Technology allows access to documents and information on a far bigger scale.

2. Freedom of information has lead to a shift in legal approach from secrecy to openness

Front 90

Which acts governs FOI?

Back 90

FoI Act 200

FoI (Scotland) Act 2002

Front 91

What right of access is granted to citizens under the Freedom of Information Act?

Back 91

To data held by public authorities

Front 92

How must FoI requests be lodged?

Back 92

In Writing

Front 93

What time limit is imposed on authorities tto respond to FoI requests?

Back 93

20 days from their receipt

Front 94

What are public authorities according to the FoI sch 1?

Back 94

Central Governmental Departments, NDPBs, NHS, police, schols, unis

Front 95

Which information is exempt from the duty of disclosure?

Back 95

1. Information which is otherwise available, or is about to be published

2. Information relating to the security services or the royal household.

3. Personal information or information giving to an authority in confidence

4. Information to which professional privilege applies

5. Information which might prejudice national security, the county's standing with otters, national finances etc.

Front 96

What was held in BBC v Sugar (No 2) 2012

Back 96

The BBC was under a duty to disclose on a request only if it was 'held for the purposes other than journalism, literature or the arts'

Front 97

How are qualified exemptions of the duty to disclose dealt with?

Back 97

Check if the duty is in the listed categories of exemption and balance the public interest in disclosure with the public interest in maintaining the exemption.

Front 98

Whom may override a decision of a data commissioner?

Back 98

A minister after informing Parliament s.53

Front 99

What is stated by FoI 200 s.49(4)

Back 99

Where the commissioner decides that a public authority has failed to supply information, or to provide confirmation or denial, he may issue a decision notice specifying steps to be taken by the authority in order to comply.

Front 100

What was held in Browning v Information Commissioner 2014?

Back 100

The first tier tribunal, when hearing an appeal against a decision by the information commissioner may adopt a closed material procedure where both a party and their representatives are excluded.

Front 101

What was held in R (Evans) v Attorney General 2014?

Back 101

The attorney general must have reasonable grounds to override a decision of the upper tribunal, not simply disagree with their decision.

Front 102

Who may appeal against a decision notice from the information commissioner, and to whom?

Back 102

Either the complainant of the authority to the first-tier tribunal.

Front 103

What decision may be made by the tribunal in an appeal against a decision notice?

Back 103

Allow the appeal or substitute such other notice which could be served by the commissioner or must dismiss the appeal.

Front 104

Where do appeals from a first tier tribunal on decision notices go on a point of law, and where on a point of fact?

Back 104

Either the high court or court of session, depending on jurisdiction on a point of law, the upper tribunal on a point of fact