BPP Study Guide Chapter 2: Sources of the UK Constitution

Question 1

What is the primary source of constitutional law?

Answer 1

Acts of Parliament created by the “Queen in Parliament”

Question 2

What happened in Stockdale v Hansard? What were the consequences?

Answer 2

Plaintiff sued the D for libel in respect to the contents of an official Parliamentary report.
Court refused to recognise a Parl resolution that publications were privileged and could not be used as evidence.

Question 3

What is the Council of Civil Service Unions v Minister for Civil Service? What is it also known as? Why is it significant?

Answer 3

• the GCHQ case
• courts reviewed whether a minister’s prerogative power could prevent staff at GCHQ forming a union
• significant b/c the HoL decided that prerogative power was subject to judicial review

Question 4

What happened in A and Others v Sec of State for the Home Department?

Answer 4

• suspected terrorists in Belmarsh challenged detention without charge or trial under EU law.
• the HoL felt the detention of the terrorists did not match the criteria requried for a derogation order, and quashed one isseud by Parl
• they therefore issued a declaration of incompatibility with the ECHR

Question 5

From what point did EU law become part of UK consitutional law?

Answer 5

after the European Communities Act 1972

Question 6

What primary legislation derives from EU?

Answer 6

treaties

Question 7

What secondary legislation comes from the EU?

Answer 7

• regulations
• directives
• decisions

Question 8

Describe regulations.

Answer 8

“having general application, binding in its entirety and directly applicable on all member states

Question 9

Describe directives.

Answer 9

binding as to the result to be achieved, upon each
Member State to which it is addressed, but [leaving] to the national authorities
the choice of form and methods’.

Question 10

Who are decisions addressed to?

Answer 10

specific member states, companies or individuals

Question 11

What case demonstrates that ECJ decisions are binding?

Answer 11

R v Sec for Transport ex p Factortame (No 2)

Question 12

What was Dicey’s view on conventions?

Answer 12

that they are descriptive rules of behaviour which are not binding in law

Question 13

How did Jennings view conventions?

Answer 13

As binding rules of behaviour that are not nevertheless legally enforeceable

Question 14

Who agreed with Jennings about conventions? What did they say?

Answer 14

Marshall & Moodie - conventions are binding on those who operate the constitution but not enforced by courts or Parliament’s presiding officers

Question 15

What are the general characteristics of conventions?

Answer 15

• unwritten rules of political practice
• usually develop in an evolutionary way
• do not have a clear source in legislation or case law

Question 16

What are the four main areas conventions relate to?

Answer 16

legislature, executive, judiciary, Commonwealth

Question 17

What is the purpose of conventions?

Answer 17

• flexible means of informally developing the constitution
• define powers, regulate Crown’s authority and underpin the Cabinet system
• regulate relations between Commons and HoL
• regulate relations between Parl and other Commonwealth nations
• help to provide control and accountability of executive

Question 18

What is Jenning’s test for identifying a convention?

Answer 18

1) What are the precedents?
2) Did the actors in the precedents believe they were bound by a rule?
3) Is there a reason for the rule?

Question 19

What takes priority between a convention and a statute? According to what?

Answer 19

Madzimbamuto v Lardner-Burke. UK statute takes priority over UK conventions.

Question 20

What form are the consequences of a breach of convention likely to take?

Answer 20

they are likely to be political consequences rather than legal ones.

Question 21

What are customs?

Answer 21

rules of conduct recognised by the judiciary as having binding force

Question 22

What four authors are regularly cited as non-legal but persuasive sources?

Answer 22

Bagehot, Dicey, Jennings and Erskine May