Consti Flashcards
entick v carrington
kings men trespassed on his land- wasn’t legal- gov must act within the law- absolute supremacy
ag v Fulham corp
needed to give poor people washhouses but instead made a commercial laundry- not within the power so illegal
liversidge v Anderson
during ww2 the Home Secretary had the power to arrest anyone- authority is too wide- powers should be justified and spelt out
R v IRC
a warrant was issued and a search carried out before the legality of the warrant was checked- delegated legislation- too wide power
shaw v dpp
found guilty of attempting to corrupt public morals even though that wasnt a crime- individuals should know where they stand in relation to the law
Burmah oil co
retroactive legislation- war damages act- didn’t get a pay out- no certainty of the law
re M
home sec failed to stop someone being deported who was sure to be tortured- all citizens are subject to the jurisdiction of the ordinary courts- held in contempt of court
partygate
compare with re M- parliamentary privilege
r on the application of miller
- prerogative powers- “a power recognised by the common law and exercised by the crown (gov and king)
- PM asked queen to prorogue parliament- SC held it was a justiciable decision
BBC v Johns
no new prerogative powers can be established- the limits of obligations/restraints the executive can impose on citizens without statutory authority are incapable of extension
fixed term parliaments act 2011
- dissolution put onto statutory footing
- 5 year term max
- an end to the prerogative power? NOPE replaced by dissolution and calling of parliament act 2022
prerogative powers examples
- appointment and dismissal of ministers
- power of mercy- Alan Turing
- royal assent needed to make a bill a law
- power to summon, dissolve and prorogue parliament
constitutional reform and governance act 2010
prerogative power of management of the civil service was put onto a statutory footing
- but reform never really happens
ag v de keysers royal hotel
if there is a statute and prerogative overlap the statute takes precedent
laker airways v dep for trade
- 1970 civil aviation act- other airlines can apply for
licenses to do UK/US flights- laker airways got one and
then gov withdrew landing rights
-Held- gov couldn’t use prerogative powers to
withdraw landing rights- contradicted aims of
1970 act- was ultra vires
GCHQ case
Where a persons ‘private rights or legitimate expectations’
are affected by the execution of prerogative power then that
should be amenable to review
independent review of admin law
there should be caution in any attempts to limit the judiciary’s powers
montesquieu
SOP intended to guard and preserve liberty
- major institutions should be divided and dependent on each other so one power will not be able to exceed that of the others
exec, judiciary, legislature
- exec- power to enforce law- cabinet/police
- judiciary- power to adjudicate- SC
- leg- power to make law- parliament
wade
pure separation- no overlap of personnel, function or interference
E and L personnel overlap
MPs must be members of HOL OR HOC, PM must be member of HOC
- lord halisham- elective dictatorship
E and L function overlap
- secondary/delegated legislation- laws and regs made by gov depts (e) under the authority of an act of P (L)- eg lockdown regs
- Henry 8th clause- a clause that allows E to repeal/amend a statute without scrutiny from L
e and l controls
- parliament act 1949- reduced power of HoL can only delay the passing of bills by a year, not veto them
- vote of no confidence- hoc can call for a vonc in gov- but not a great control because if gov has a large majority it is unlikely to lose
e and J- personnel
AG- member of both- Dominic Cummings driving to durham- ag said he did nothing wrong- favouritism?
e and j function
judges as chairmen of tribunals of inquiry- phone hacking- issues, judges may be scared to criticise the gov
e and j- controls
not really any, GCHQ case- sets out the test for which areas of E and judicable and where they need to hold back
l and j- personnel
HOL used to be the highest domestic court but the SC was made to remedy this
L AND J CONTROLS
- sub judice resolution
- ups cant discuss matters awaiting adjudication
l and j functions
parliamentary privilege
- judges as lawmakers- Shaw v DPP- convicted of conspiracy to corrupt public morals despite there not being a statutory offence
- p has the power to regulate its own internal composition and structure- art 9 bill of rights
e, l, j personnel and reform
- personnel- king is head of all of them
- reform- Lord chancellor used to be part of them all until Constitutional Reform Act 2005- also means LC and gov ministers aren’t allowed to influence judicial decisions
1 body that monitors and enforces the provisions of the ECHR
- European court of human rights
ECHR who it applies to and admissibility criteria
- anyone within the territory of the state which has ratified the echr- not dependent on nationality or status- article 1
- article 35- admissibility criteria
- all domestic remedies have been exhausted
- within 6 months from final decision date
- won’t deal with something anonymous
airey v ireland
- victim of domestic violence
- couldn’t afford a divorce lawyer so art 6 infringed
Tyler v uk
- birched at school for assaulting a pupil
- inhuman and degrading punishment in breach of art 3
- living instrument- breached because of current circs
types and classification of echr rights
- unconditional- no conditions- right to life
- conditional- certain defined limitations- right to liberty
- qualified
- is there an infringement of the right
- is the infringement prescribed by law
- is the restriction imposed for one of the specified aims in the article
- is the restriction necessary in a democratic society
handyside v uk
little red schoolbook
might deprave and corrupt some readers
prosecuted
- no violation of the right to freedom of expression because it wasnt necessary
sunday times v uk
test for necessary
- was the interference PROPORTIONATE to the legitimate aim pursued
- did the interference correspond to a PRESSING SOCIAL NEED
- were the reasons given by the national authority “RELEVANT AND SUFFICIENT”
vertical and horizontal effect
vertical- binds states- individual rely against the state
horizontal- doesnt bind individuals directly so doesn’t have horizontal effect- but the state may be liable for not protecting an individual from the actions of another that infringe his rights- A v UK- a beaten by step father who relied on the defence of reasonable parental chastisement- art 3 was breached
chahal v uk
echr can impose pos obligations on states to protect human rights- uk had duty not to deport Sikh nationalist
can derogate from the treaty in times of war
- brogan v uk- NI terrorism- detained for questioning for 4-7 days- violated ECHR
- Brannigan v uk- same circs but the derogation was justified
- art 15- can derogate
processions where to look in statute
s12
s11 for notice requirements
Flockhart v robinson
a procession is a body of persons moving along a route
assemblies statute
s16 POA- definition
s14
obstruction of highway statute
s137 highways act
hirst v cc West Yorkshire
defence of reasonable user- obstruction of highway- handing out fur is murder leaflets outside a fur shop
public order act s4/s4a/s5 and defence
s4- conduct with intent that violence follows
s4a- has to be intent to harass/cause someone fear- needs to be a victim
s5- using threatening words- doesnt need intent or a victim
defence
- hammond- has to be reasonable protest- his wasnt cuz it said stop homosexuality
r v Howell
breach of the peace definition
- harm is done or likely to be done to a
- person/property/
- or person is in fear
- through an assault, unlawful assembly or other disturbance
cant be charged with it- arrest power only
Laporte v cc gloustershire
focus of preventative action should be on these about to act disruptively not peaceful protesters
human rights application- ECHR- public order
art 10- freedom of speech
art 11- freedom of peaceful assembly
both qualified so
- right infringed
- for a legit aim
- prescribed by law
- necessary in a democratic society
HRA public order sections for infringement
police caused the infringement- s6 HRA
legislation caused the infringement- s3 HRA
rr v sec of state for work and pensions
courts have a duty to read legislation in a. way that makes it compatible with convention rights- this includes disregarding parts that dont comply
Mendoza
courts read the legislation as inclusive of people in a homosexual relationship to stop it from being incompatible with art 14
bellinger v bellinger
- Post op transexual were married but because of legislation saying that marriage had to be between a man and a woman, it was void
- Sought a declaration that said their marriage was valid but instead the courts sought a declaration of incompatibility for the legislation
belmarsh case
- Detainees held at belmarsh waiting to be deported- they were thought to be terrorists- incompatible with art 5 ECHR- but Home secretary didn’t have to release them- the provision under which they were being held had the effect of discriminating between foreign nationals and nationals of the state so made a dec of incompat
- Ground breaking ruling because it shows a willingness of the judiciary to check the powers of the executive in matters concerning national security
step 1 of a HRA question
- consider if any convention rights are engaged
- take each in turn and — explain using the facts why it might have been infringed, and if it is a qualified right go through the 4 stage test
step 2 of a HRA question
application of HRA
- does the infringement have its basis in some legislation?
- if yes,
s3 HRA- try and read the legislation compatibly with the convention right—- rr v sec of state for work and pensions and Mendoza case
if they cant do this- s4 HRA- declaration of incompatibility—- bellinger v bellinger and belmarsh case
- if no,
s6 HRA (has a public authority done something that is incompatible with the convention right?) so basically parliament can make primary or secondary legislation that is incompatible with HRA but no one else can- so if it is not legislation go to s6 and it says its illegal to do that - s7 HRA proceedings
- s8 HRA remedies
what is a constitution?
- written document that sets out the laws, rules and practices which identify and explain
- the institutions of gov
- the distribution of powers within those institutions
- how those powers are exercised and controlled
- the relationship between the institutions of gov and the citizens, including the provision of basic human rights and liberties
prescriptive constitution
written document- rigid/difficult to change/ entrenched- codified
descriptive const
no complete written doc where everything is in one place, flexible/easier to change/ no special procedure to deal with
- may have multiple sources- uncodified
rigid v flexible
rigid- difficult to change- entrenched
federal v unitary
federal- division of power between central (federal) gov and individual states/provinces/regions
unitary- central gov which retains control
parliamentary v presidential
parl- leg and executive functions are merged
pres- sep of leg and exec
monarchy v republic
monarchy- head of state is monarch
republic- head of states elected by parl or people
separation v fusion
sep- leg/exec/jud all separated- to avoid abuse of power
fusion- concentration of power in the hands of one of the institutions- dictatorship
how do consts develop?
defining moments
- achievement of independence- US const 1787
- imposition following military defeat- Germany 1949
does the uk have a constitution?- Ridley
Ridley- the dangerous case of the emperors clothes- the uk doesnt have a constitution
does the uk have a constitution?- lord Bolingbroke
by constitution we mean… that assemblage of laws, institutions and customs… that compose the general system
we have that
sources of uk consti and examples
- statutes- bill of rights, Magna Carta, NI act
- case law- courts must interpret legislation which may be unclear AND the lawmaking role of the courts extends beyond interpretation to judge made law- DPP v Shaw
- prerogative powers- mercy, dec of war, proroguing of parliament
- conventions- doctrine of individual ministerial responsibility, monarch will always give assent to bills of parliament
what type of consti does UK have?
- uncodified
- flexible
- monarchy
- unitary (devolution of powers but all still subject to Westminster parliament)
- separation
- parliamentary
- descriptive
codified pros and cons
pros- certainty, accessibility, better guarantee of rights
cons- only clear if well drafted, difficult to change (gun laws America), can become outdated
uncodified pros/cons
pros- adaptive, flexible
cons- difficult to find/less clear/less public awareness
definition of a convention
Mill- the unwritten maxims (established principles) of the constitution
characteristics of a convention
- not in writing
- binding
- can be difficult to determine their existence
- statutes overrule conventions where there is conflict
jennings test (conventions)
- is it possible to point to precedents?
- did the actors in the precedents believe they were bound by a rule?
- is there a reason for the rule?
re amendment to the constitution of Canada
- statues overrule conventions
- said there was a convention (Jennings test)
- but because they’re not enforceable at law they didnt have to get provincial approval to amend the constit
examples of conventions
- appointment of PM
- by prerogative power the monarch appoints PM but by convention they choose the leader of the party that commands a majority in HoC
- dissolution and calling of parliaments act 2022
- by prerogative power the monarch dissolves parliament but by convention they act on the advice of PM
sewell convention
UK will not legislate for matters devolved to the devolved Govs without consent
- a convention that regulates parl proceedings
should conventions be written down?
yes- politicians would have a list of codified rules governing their behaviour so easy to spot a breach
no- would need to be constantly updated and would be difficult to draft
collective ministerial responsibility
- gov is collectively accountable to parl for its actions- cabinet manual 2011
- gov ministers must support decisions made by the cabinet- cm 2011
3 strands to the convention
- confidence principle- a gov can only remain in office for so long as it retains the confidence of HoC
- unanimity principle
- confidentiality principle- recognises that unanimity is a constitutional fiction but one that must be maintained
collective ministerial responsibility examples
- BJ years- over 50 resignations on 5th July 2022
- a lot resigned in disagreement with gov policy over Brexit
individual ministerial responsibility and egs
- should take responsibility for
- conduct in their public role as minister and for the actions of their department officials- Hancock resigning after breach of social distancing rules- kissing colleague
- conduct in their private life- Jeremy pincher- groped 2 men in a club and resigned
- all depends on whether or not they have support of PM- priti Patel didnt resign despite a breach
kings men trespassed on his land- wasn’t legal- gov must act within the law- absolute supremacy
entick v carrington
needed to give poor people washhouses but instead made a commercial laundry- not within the power so illegal- ref to judicial review
ag v Fulham corp
during ww2 the Home Secretary had the power to arrest anyone- authority is too wide- powers should be justified and spelt out
liversidge v Anderson
a warrant was issued and a search carried out before the legality of the warrant was checked- delegated legislation- too wide power
R v IRC
found guilty of attempting to corrupt public morals even though that wasnt a crime- individuals should know where they stand in relation to the law
shaw v dpp
retroactive legislation- war damages act- didn’t get a pay out- no certainty of the law
Burmah oil co
home sec failed to stop someone being deported who was sure to be tortured- all citizens are subject to the jurisdiction of the ordinary courts
re M
compare with re M- parliamentary privilege
partygate
- prerogative powers- “a power recognised by the common law and exercised by the crown (gov and king)
- PM asked queen to prorogue parliament- SC held it was a justiciable decision
r on the application of miller
no new prerogative powers can be established- the limits of obligations/restraints the executive can impose on citizens without statutory authority are incapable of extension
BBC v Johns
- dissolution put onto statutory footing
- 5 year term max
- an end to the prerogative power? NOPE replaced by dissolution and calling of parliament act 2022
fixed term parliaments act 2011
- appointment and dismissal of ministers
- power of mercy- Alan Turing
- royal assent needed to make a bill a law
- power to summon, dissolve and prorogue parliament
prerogative powers examples
prerogative power of management of the civil service was put onto a statutory footing
- but reform never really happens
constitutional reform and governance act 2010
if there is a statute and prerogative overlap the statute takes precedent
ag v de keysers royal hotel
- 1970 civil aviation act- other airlines can apply for
licenses to do UK/US flights- laker airways got one and
then gov withdrew landing rights
-Held- gov couldn’t use prerogative powers to
withdraw landing rights- contradicted aims of
1970 act- was ultra vires
laker airways v dep for trade
Where a persons ‘private rights or legitimate expectations’
are affected by the execution of prerogative power then that
should be amenable to review
GCHQ case
there should be caution in any attempts to limit the judiciary’s powers
independent review of admin law
SOP intended to guard and preserve liberty
- major institutions should be divided and dependent on each other so one power will not be able to exceed that of the others
montesquieu
- exec- power to enforce law- cabinet/police
- judiciary- power to adjudicate- SC
- leg- power to make law- parliament
exec, judiciary, legislature
no overlap of personnel, function or interference
wade
MPs must be members of HOL OR HOC, PM must be member of HOC
- lord halisham- elective dictatorship
E and L personnel overlap
- secondary/delegated legislation- laws and regs made by gov depts (e) under the authority of an act of P (L)- eg lockdown regs
- Henry 8th clause- a clause that allows E to repeal/amend a statute without scrutiny from L
E and L function overlap
- parliament act 1949- reduced power of HoL can only delay the passing of bills by a year, not veto them
- vote of no confidence- hoc can call for a vonc in gov- but not a great control because if gov has a large majority it is unlikely to lose
e and l controls
AG- member of both- Dominic Cummings driving to durham- ag said he did nothing wrong- favouritism?
e and J- personnel
judges as chairmen of tribunals of inquiry- phone hacking- issues, judges may be scared to criticise the gov
e and j function
not really any, GCHQ case- sets out the test for which areas of E and judicable and where they need to hold back
e and j- controls
HOL used to be the highest domestic court but the SC was made to remedy this
l and j- personnel
parliamentary privilege
- judges as lawmakers- Shaw v DPP- convicted of conspiracy to corrupt public morals despite there not being a statutory offence
- p has the power to regulate its own internal composition and structure- art 9 bill of rights
l and j functions
- personnel- king is head of all of them
- reform- Lord chancellor used to be part of them all until Constitutional Reform Act 2005- also means LC and gov ministers aren’t allowed to influence judicial decisions
e, l, j personnel and reform
- European Commission of human rights
- European court of human rights
- the committee of ministers
3 bodies that monitor and enforce the provisions of the ECHR
- anyone within the territory of the state which has ratified the echr- not dependent on nationality or status- article 1
- article 35- admissibility criteria
- all domestic remedies have been exhausted
- within 6 months from final decision date
- won’t deal with something anonymous
ECHR who it applies to and admissibility criteria
- victim of domestic violence
- couldn’t afford a divorce lawyer so art 6 infringed
airey v ireland
- birched at school for assaulting a pupil
- inhuman and degrading punishment in breach of art 3
- living instrument- breached because of current circs
Tyler v uk
- unconditional- no conditions- right to life
- conditional- certain defined limitations- right to liberty
- qualified
- is there an infringement of the right
- is the infringement prescribed by law
- is the restriction imposed for one of the specified aims in the article
- is the restriction necessary in a democratic society
types and classification of echr rights
little red schoolbook
might deprave and corrupt some readers
prosecuted
- no violation of the right to freedom of expression because it wasnt necessary
handyside v uk
test for necessary
- was the interference PROPORTIONATE to the legitimate aim pursued
- did the interference correspond to a PRESSING SOCIAL NEED
- were the reasons given by the national authority “RELEVANT AND SUFFICIENT”
sunday times v uk
vertical- binds states- individual rely against the state
horizontal- doesnt bind individuals directly so doesn’t have horizontal effect- but the state may be liable for not protecting an individual from the actions of another that infringe his rights- A v UK- a beaten by step father who relied on the defence of reasonable parental chastisement- art 3 was breached
vertical and horizontal effect
echr can impose pos obligations on states to protect human rights- uk had duty not to deport Sikh nationalist
chahal v uk
- brogan v uk- NI terrorism- detained for questioning for 4-7 days- violated ECHR
- Brannigan v uk- same circs but the derogation was justified
can derogate from the treaty in times of war
s12
s11 for notice requirements
processions where to look in statute
a procession is a body of persons moving along a route
Flockhart v robinson
s16 POA- definition
s14
assemblies statute
s137 highways act
obstruction of highway statute
defence of reasonable user- obstruction of highway- handing out fur is murder leaflets outside a fur shop
hirst v cc West Yorkshire
s4- conduct with intent that violence follows
s4a- has to be intent to harass/cause someone fear- needs to be a victim
s5- using threatening words- doesnt need intent or a victim
defence
- hammond- has to be reasonable protest- his wasnt cuz it said stop homosexuality
public order act s4/s4a/s5 and defence
breach of the peace definition
- harm is done or likely to be done to a
- person/property/
- or person is in fear
- through an assault, unlawful assembly or other disturbance
cant be charged with it- arrest power only
r v Howell
focus of preventative action should be on these about to act disruptively not peaceful protesters
Laporte v cc gloustershire
art 10- freedom of speech
art 11- freedom of peaceful assembly
both qualified so
- right infringed
- for a legit aim
- prescribed by law
- necessary in a democratic society
human rights application- ECHR- public order
police caused the infringement- s6 HRA
legislation caused the infringement- s3 HRA
HRA public order sections for infringement
courts have a duty to read legislation in a. way that makes it compatible with convention rights- this includes disregarding parts that dont comply
rr v sec of state for work and pensions
courts read the legislation as inclusive of people in a homosexual relationship to stop it from being incompatible with art 14
Mendoza
- Post op transexual were married but because of legislation saying that marriage had to be between a man and a woman, it was void
- Sought a declaration that said their marriage was valid but instead the courts sought a declaration of incompatibility for the legislation
bellinger v bellinger
- Detainees held at belmarsh waiting to be deported- they were thought to be terrorists- incompatible with art 5 ECHR- but Home secretary didn’t have to release them- the provision under which they were being held had the effect of discriminating between foreign nationals and nationals of the state so made a dec of incompat
- Ground breaking ruling because it shows a willingness of the judiciary to check the powers of the executive in matters concerning national security
belmarsh case
- consider if any convention rights are engaged
- take each in turn and — explain using the facts why it might have been infringed, and if it is a qualified right go through the 4 stage test
step 1 of a HRA question
application of HRA
- does the infringement have its basis in some legislation?
- if yes,
s3 HRA- try and read the legislation compatibly with the convention right—- rr v sec of state for work and pensions and Mendoza case
if they cant do this- s4 HRA- declaration of incompatibility—- bellinger v bellinger and belmarsh case
- if no,
s6 HRA (has a public authority done something that is incompatible with the convention right?) so basically parliament can make primary or secondary legislation that is incompatible with HRA but no one else can- so if it is not legislation go to s6 and it says its illegal to do that - s7 HRA proceedings
- s8 HRA remedies
step 2 of a HRA question
- written document that sets out the laws, rules and practices which identify and explain
- the institutions of gov
- the distribution of powers within those institutions
- how those powers are exercised and controlled
- the relationship between the institutions of gov and the citizens, including the provision of basic human rights and liberties
what is a constitution?
written document- rigid/difficult to change/ entrenched- codified
prescriptive constitution
no complete written doc where everything is in one place, flexible/easier to change/ no special procedure to deal with
- may have multiple sources- uncodified
descriptive const
rigid- difficult to change- entrenched
rigid v flexible
federal- division of power between central (federal) gov and individual states/provinces/regions
unitary- central gov which retains control
federal v unitary
parl- leg and executive functions are merged
pres- sep of leg and exec
parliamentary v presidential
monarchy- head of state is monarch
republic- head of states elected by parl or people
monarchy v republic
sep- leg/exec/jud all separated- to avoid abuse of power
fusion- concentration of power in the hands of one of the institutions- dictatorship
separation v fusion
defining moments
- achievement of independence- US const 1787
- imposition following military defeat- Germany 1949
how do consts develop?
Ridley- the dangerous case of the emperors clothes- the uk doesnt have a constitution
does the uk have a constitution?- Ridley
by constitution we mean… that assemblage of laws, institutions and customs… that compose the general system
we have that
does the uk have a constitution?- lord Bolingbroke
- statutes- bill of rights, Magna Carta, NI act
- case law- courts must interpret legislation which may be unclear AND the lawmaking role of the courts extends beyond interpretation to judge made law- DPP v Shaw
- prerogative powers- mercy, dec of war, proroguing of parliament
- conventions- doctrine of individual ministerial responsibility, monarch will always give assent to bills of parliament
sources of uk consti and examples
- uncodified
- flexible
- monarchy
- unitary (devolution of powers but all still subject to Westminster parliament)
- separation
- parliamentary
- descriptive
what type of consti does UK have?
pros- certainty, accessibility, better guarantee of rights
cons- only clear if well drafted, difficult to change (gun laws America), can become outdated
codified pros and cons
pros- adaptive, flexible
cons- difficult to find/less clear/less public awareness
uncodified pros/cons
Mill- the unwritten maxims (established principles) of the constitution
definition of a convention
- not in writing
- binding
- can be difficult to determine their existence
- statutes overrule conventions where there is conflict
characteristics of a convention
- is it possible to point to precedents?
- did the actors in the precedents believe they were bound by a rule?
- is there a reason for the rule?
jennings test (conventions)
- statues overrule conventions
- said there was a convention (Jennings test)
- but because they’re not enforceable at law they didnt have to get provincial approval to amend the constit
re amendment to the constitution of Canada
- appointment of PM
- by prerogative power the monarch appoints PM but by convention they choose the leader of the party that commands a majority in HoC
- dissolution and calling of parliaments act 2022
- by prerogative power the monarch dissolves parliament but by convention they act on the advice of PM
examples of conventions
UK will not legislate for matters devolved to the devolved Govs without consent
- a convention that regulates parl proceedings
sewell convention
yes- politicians would have a list of codified rules governing their behaviour so easy to spot a breach
no- would need to be constantly updated and would be difficult to draft
should conventions be written down?
- gov is collectively accountable to parl for its actions- cabinet manual 2011
- gov ministers must support decisions made by the cabinet- cm 2011
3 strands to the convention
- confidence principle- a gov can only remain in office for so long as it retains the confidence of HoC
- unanimity principle
- confidentiality principle- recognises that unanimity is a constitutional fiction but one that must be maintained
collective ministerial responsibility
- BJ years- over 50 resignations on 5th July 2022
- a lot resigned in disagreement with gov policy over Brexit
collective ministerial responsibility examples
- should take responsibility for
- conduct in their public role as minister and for the actions of their department officials- Hancock resigning after breach of social distancing rules- kissing colleague
- conduct in their private life- Jeremy pincher- groped 2 men in a club and resigned
- all depends on whether or not they have support of PM- priti Patel didnt resign despite a breach
individual ministerial responsibility and egs
bibby v chief constable of Essex police
- arrested for breach of the peace
- not a lawful arrest as bibby had acted lawfully throughout
Harvey v dpp
- swore at the police and that was fine
dudgeon v UK
ECHR ruled criminalisation of homosexual acts between consenting adults in private violated art8- right to respect for private and family life
how ECHR is interpreted by the ECtHR
- in light of its object and purpose
effectiveness principle ECHR
- practical and effective- airey v Ireland
- autonomous- interpretation is independent of the jurisprudence and legal systems of contracting states- umlauft v Austria
- living instrument- Tyler v uk
Umlauft v Austria
- Refused breath test Art 6(1) applied despite charge not ‘criminal’ under Austrian law (‘administrative sentence order’). Nature of conduct and penalty imposed looked at.
malone v uk
- qualified right
- prescribed by law
- phone tapping without warrant violated art 8
McCann v UK
state is under a duty under art 2 to investigate deaths
- positive duty that convention rights can impose on states
wernhoff v germany
- detained 3 years until trial
- said it was in breach of art 5 and 6
- no violation because hadn’t exceeded “reasonable time” period as if he was released he could have suppressed evidence
- length of proceedings had been determined by rhe complexity of the case
salabiaku v france
- convicted of drug trafficking
- D argued that evidence was found during an illegal search and his rights were violated
- court agreed and france had to pay damages
- art 6 right to fair trial violated
ireland v uk
- distinction between degrading treatment and torture
- evolves over time
- flexible
- arrested for breach of the peace
- not a lawful arrest as bibby had acted lawfully throughout
bibby v chief constable of Essex police
- swore at the police and that was fine
Harvey v dpp
ECHR ruled criminalisation of homosexual acts between consenting adults in private violated art8- right to respect for private and family life
dudgeon v UK
- in light of its object and purpose
how ECHR is interpreted by the ECtHR
- practical and effective- airey v Ireland
- autonomous- interpretation is independent of the jurisprudence and legal systems of contracting states- umlauft v Austria
- living instrument- Tyler v uk
effectiveness principle ECHR
- Refused breath test Art 6(1) applied despite charge not ‘criminal’ under Austrian law (‘administrative sentence order’). Nature of conduct and penalty imposed looked at.
Umlauft v Austria
- qualified right
- prescribed by law
- phone tapping without warrant violated art 8
malone v uk
state is under a duty under art 2 to investigate deaths
- positive duty that convention rights can impose on states
McCann v UK
- detained 3 years until trial
- said it was in breach of art 5 and 6
- no violation because hadn’t exceeded “reasonable time” period as if he was released he could have suppressed evidence
- length of proceedings had been determined by rhe complexity of the case
wernhoff v germany
- convicted of drug trafficking
- D argued that evidence was found during an illegal search and his rights were violated
- court agreed and france had to pay damages
- art 6 right to fair trial violated
salabiaku v france
- distinction between degrading treatment and torture
- evolves over time
- flexible
ireland v uk
monarchs legal prerogatives
- crown is not bound by statute unless it expressly includes the crown
- crowns immunity from prosecution- though partly removed by the crown proceedings act 1947
prince of bombay v municipal corp of Bombay
court determined the crown was not bound by the bombay municipal act
mcwhirter v AG
court held the prerogative power to make treaties could not be challenged in court
BUT chandler v dpp
the courts wouldn’t sanction an excessive use of prerogative powers against activists from the campaign for nuclear disarmament
GCHQ case- non judiciable areas
- natioanl security
- mercy
- appointment of ministers
- dissolution of parl
prerogative powers that used to not be justiciable
- banning homosexuals from the army (smith and grady v uk)
- preroging parliament- miller
- crown is not bound by statute unless it expressly includes the crown
- crowns immunity from prosecution- though partly removed by the crown proceedings act 1947
monarchs legal prerogatives
court determined the crown was not bound by the bombay municipal act
prince of bombay v municipal corp of Bombay
court held the prerogative power to make treaties could not be challenged in court
mcwhirter v AG
the courts wouldn’t sanction an excessive use of prerogative powers against activists from the campaign for nuclear disarmament
BUT chandler v dpp
- natioanl security
- mercy
- appointment of ministers
- dissolution of parl
GCHQ case- non judiciable areas
- banning homosexuals from the army (smith and grady v uk)
- preroging parliament- miller
prerogative powers that used to not be justiciable
parl sovereignty- dicey 3 limbs
- parliament can legislate on any matter
- no person or body can override or set aside the legislation of parl
- parl cannot be bound by its successors
parl can legislate on any matter- examples
- retrospective legislation- burmah oil co (war damages act)
- parliament overriding international law (cheney v conn)- whatever parl enacts is the highest form of law, even when it goes against the Geneva convention
- however- UKs membership of eu challenged parls ability to override international law as they were bound by eu laws- even after Brexit the retained EU laws will still prevail over any laws made in the uk before the end of 2020 (Eu withdrawal act 2018)
devolution of powers
- still parl can legislate on any matters
- transfer of powers from central gov to parliaments in the devolved areas
- technically parl no longer has the power to legislate on any matter
- sewell convention- means the devolved institutions have to pass a legislative consent motion to allow parl to legislate in that area
- but it is just a convention so dont need consent really- eu withdrawal act 2018- no consent so doesnt prove a big challenge
no other body can override or set aside legislation of parl
- enrolled bill rule
- edinburgh and Dalkeith railway- respondent claimed act of parl was invalid as they had been misled when passing the bill but held that once a bill had been passed, judges have a duty to follow it
- factortame case- uk overruled 1988 legislation as it conflicted with european communities act 1972
paliament cannot be bound by its successors
- each parl is supreme in its own right
- can be achieved by express repeal or implied appeal
- express repeal (where the new act expressly states that previous acts or provisions have been repealed by the new act)
- implied repeal (new act contradicts a previous act but does not expressly repeal it- the contradicting parts of the previous act become legally inoperable)- eg ellen street estates (housing act 1925 impliedly repealed the acquisition of land act 1919)
ECA- parl sov
Students could have referred to:
S.2(1) ECA – that EU law is directly incorporated into UK law.
S.2(4) ECA – future legislation will continue to be subject to the supremacy of EU law.
The significance of ex parte Factortame Limited (no 2) [1991] AC 603).
Impact of EU (Withdrawal) Act 2018 and EU (Withdrawal Agreement) Act 2020 on the ECA and place of EU law in the UK going forward.
hra parl sov
- preserves- s3(2)(b), s4(6)
- challenges- s3(1)
Connection between HRA and ECHR
The HRA insists that public authorities such as Government departments, local councils, police, schools, certain care providers, and prisons, must act in a way that is compatible with the Convention rights
