Legal Mechanisms In Uk Courts And Cjeu Procedures

(a) Declarations of incompatibility refer to the declarations made by the courts in England and Wales under Section 4(2) of the Human Rights Act 1998 on the ground that the law made in England or Wales is incompatible with any of the provisions of the European Convention of Human Rights. The rights under the European Convention of Human Rights have been recognised as legal rights in the Human Rights Act 1998, thus becoming applicable to England and Wales. However, considering that parliament in the UK is supreme and can repeal laws, the possibility of implied repeal of rights under the Human Rights Act 1998 through legislation is restricted by Section 4. Therefore, if Parliament makes a law that restricts the rights protected by the 1998 Act, courts in England and Wales can declare incompatibility between such laws and the ECHR rights. An example of such declaration is seen in the House of Lords judgment in A & Others v. Secretary of the State for the Home Department. Impugned in the case was a counter-terrorism legislation that allowed the state to indefinitely detain foreign suspects. However, the House of Lords declared that such indefinite detention would be contrary to established jurisprudence under Article 5 of the ECHR. The provision was eventually repealed by the Parliament.

(b) Cases to the CJEU can be brought by member states, the European Commission, and national courts. National courts can bring cases to the CJEU under the preliminary ruling procedure under Article 267 of the Treaty on the Functioning of the EU (TFEU). References to the CJEU can be made under two different provisions: (i) under Article 267 (2), national courts may refer case to the CJEU if there is a case before the court that involves a question relating to the EU law, and the court has a doubt regarding meaning or scope of the provision for which it needs the interpretation by the CJEU; (ii) national court may refer the case under the mandatory jurisdiction under Article 267 (3), which arises when a question on EU law interpretation is raised before a national court from where there is no appeal in the national law. Cases that the CJEU can hear may involve questions on whether states have breached any obligations under EU law; such cases can be brought by the European Commission to the CJEU (Article 258); cases against EU institutions can be brought by member states for annulment of decision, regulation or directive of that institution (Article 263); cases against EU institutions for their failure to act (Article 265); cases involving compensation to individuals can be brought before the CJEU (Article 268); and appeals from the General Court can lie to the CJEU (Article 256).

The Horses (Protective Headgear for Young Riders Act 1990), Section 1 is applicable to determine the potential liability of Karen, Jay, and Ann. Under Section 1 of the Act, a person is liable for the offence if they have responsibility for a child under 14 years of age and lets that child ride a horse on the road without the requisite head gear. For such liability to arise, the person should either be the owner of the horse or have custody of the horse just before the child rode the horse. Moreover, the horse can include a mule or a donkey as well. For the liability to arise, the horse should be ridden on the road and not on the pathways or bridleways. Karen is not liable for an offence under Section 1 because it provides that the law is applicable when the child is under 14 years of age. As Paul is 14 years old, this Section will not apply to Karen to hold her liable. Jay is not liable under Section 1 even though Leila is under 14 years of age because the provision is applicable where the child is taken riding on a road. Section 3 (1) of the Act clearly provides that the term road does not include footpaths or bridleways. In this situation, the children were taken riding on the bridleway and then country lanes and woods. A question may arise whether country lane is a road for the purpose of Section 1 because it is not expressly excluded from Section 3. However, as road is defined as not including bridleway, and bridleway is defined as a path for the riding of the horses and this may apply to country lanes as well which are narrow and not meant for driving. Similarly, the woods are also not roads for the meaning of the Section 3 (1). Ann is liable under Section 1 because she is a person having responsibility for Shaun who is 7 years old. Shaun is under 14 years old Shaun rode a donkey which is covered under the description of ‘horse’ under Section 3 (1). Ann and Shaun also rode on the road, which is covered under Section 3 (1) of the Act. Therefore, Ann’s liability is clearly made out as per the provisions of Horses (Protective Headgear for Young Riders Act 1990), Section 1 read with Section 3 (1).

(a) For writing question 2, I first read the problem question thoroughly. I had to read it a few times in order to understand the problem as well as the ways in which the three parties were impacted by the law. Second, I noted down the facts on a sheet of paper because I realised that there were three problems contained in the single problem question. This step was important for me to understand that none of the facts was missed by me and that each and every relevant fact was noted down in reference to the relevant individual for me to assess. Third, I assessed how the Section 1 was related to the three different people by considering the facts related to them and also read on Interpretation Act.

(b) The two most difficult steps for me in answering question 2 were: (i) formulating the structure for writing the essay because there were different components involved; and (ii) research on the three different areas. Regarding the first point, I gor confused as to how to approach writing on three different components in such a short essay. The first draft was longer than 500 words. I realised that this problem was because I was not efficient with the space allocated and was wordy with explanations that were not needed. Then I realised that I could simply use the IRAC method to answer the question in a more efficient manner. Next time, I will follow the IRAC method. Regarding the second point, I will use textbooks for problem questions.

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