Academics quotes Flashcards
Academics on the House of Lords
Griffith
- ‘a House of Lords with gretaer powers to restrain government’ would restrict the executive
- This is because he argues that politicial decisions should be made by ‘people who are removeable’, so are held accountable
vs. Lord Bingham = as they are not political, have ‘excelled in the work of its select committees’ and scrutiny of the Commons.
Lord Hailsham
- ‘Elected Dictatorship’
- checks and balances and seperation of powers ‘diffuse power’ to prevent tyranny
- ‘the will of the majority will always prevail’
Henry VIII powers
Barber and Young =
‘a rise in the use of broad Henry VIII clauses in legislation, and, additionally, an increasing use of prospective clauses.’
— VS. ‘The clause may be required to allow for flexibility’ due to tight timetabling issues in the Commons
K + C
King and Crewe - ‘almost pure fantasy’ of accountability in the English parliament due to the dominant executive
- ‘they [PMs] can almost always count on the support of a majority in Parliament’
- vs. ‘the very strength and decisiveness of the British government may be a curse as well as a blessing’ as it results in efficiency but also a dominant executive
Human Rights
- Wade = the law must be explicitly clear when dealing with the infringement of rights [PoL]
- Dworkin = argues that there must be some fundamental rights
- Hobbes and Locke argue that the state of nature is without rights, H = govt. creates laws + commonwealth under Leviathan vs. L = limted govt.
- Elliott questions whether rights can be ‘regarded as fundamental within’ a system ‘of legislative supremecy’
PS v RoL
- Allan = ‘Parliament retains its unfettered sovereignty, in principle, but must submit to the constraints of the rule of law, in practice’
- Lord Hope in Jackson = “Parliamentary sovereignty is no longer, if it ever was, absolute”
- Elliott questions whether rights can be ‘regarded as fundamental within’ a system ‘of legislative supremecy’
- Jowell argues that the RoL is superior to parliament = in extreme circumstances the rule of law may even trump the sovereignty of Parliament should Parliament fail to uphold the rule of law. [Rwanda showdown?]
- Dicey = ‘[t]he supremacy of law necessitates the exercise of parliamentary sovereignty.’
The type of court
- Graham argues that the Supreme Court has become more conservative since Lady Hale resigned in 2020, under ‘Lord Reed, the Supreme Court has become more restrained’ – ‘a commitment to a kind of legal conservativism’
- Vs. Ekins noted with approval the Court’s recent ‘more disciplined approach’ which he sees as ‘pushing back against [the] judicial activism’
Judicial Review
Rawlings and Harlow on striking back and clamping down:
SB = where th egovernment attempt ‘to rid itself of a judicial decision’ [Rwanda]
vs. CD = govt. attempts to protect itself from future rulings [ouster clauses]
Rule of Law
- McWhinney = ‘legal history from the great constitutional battles’
- Dicey = ‘no man is above the law’
- Raz: ‘All laws should be prospective, open and clear’ = he argues for a ‘thin’ rule of law
= thin is where procedures are fair but it is not a critic of the substantive law and whever that is fair
vs. thick looks at the substantive content of laws and their impact on individual rights and social justice [Dworkin]
Rights as a part of the Rule of Law
- Lord Bingham argues that Human Rights are part of the Rule of Law
- vs. Raz argues that fundamental rights are not a part of the rule of law [thin rule of law argued for]
Territorial Constitution
- Dickson – The strength and type of devolution ‘depend[s] on local circumstances’ [Scottland are more patriotic, so stronger devolution]
- This has resulted in an ‘ad hoc approach to territorial government’ [Tierney]
- Kilbrandon Commission = England has a far bigger population than S and W, so an English parliament would dominate Wesminster
The UK and EU
- Wade argues that by recognising the primacy of EU law, this ‘amounts to a legal revolution’ [as Wade took a fixed approach to parliamentary sovereignty, P is so S that it cannot retrain itself]
The consititution
Payne:
- ‘The UK’s constitution is obscure’
- This means that judges do not have a codified consitiution to base thier decisions on, which makes them ‘especially vulnerable to criticism when dealing with intensely disputed political matters’
- Payne argues that a written constitution would ‘transform the Supreme Court’s status and improve the clarity’ of the law
