Constitution Flashcards
What’s legality?
Those who exercise exec power can identify source of power to govern, i.e. AoP, common law, convention, prerogative, etc.
What’s legitimacy?
Those who govern make an implicit/express claim as to why their powers to govern ought to be accepted, and such claim must be accepted by most of the people most of the time.
What do legal constitutionalists believe?
Prefer prominent role for law, legal processes, and judges in regulating const.
What do political constitutionalists believe?
Prefer prominent roles for politicians and political process -> believe power of making law is and should be legitimised by Parliament.
What did Laws LJ in ex p Witham say about legal constitutionalism?
Though Parli has power to interfere with common law rights (i.e. those logically prior to Parliament) due to Ps, courts will only permit it if done via clear words in AoP.
Courts and democracy
What did Jowell say about legal constitutionalism?
Whether supreme law is the common law or a written constitution, the courts should be democracy’s referees.
Judge’s backgrounds
What did Griffith say about political constitutionalism?
Judge’s not neutral/guardians of individual liberty against the state -> largely due to upper-class backgrounds
What did Tomkins say about political constitutionalism?
Politics the vehicle to hold gov accountable -> it’s democratic and can stop govs from abusing authority.
Judges never as democratically legitimate as politicians.
What was similar about Miller 1 and 2?
They were concerned with the exercise of a prerogative power;
The court looked to the consequences of exercising the PP.
Two-fold implication of Miller 1?
- Made constitutional reminder courts’ occasionally offer that AoP only source that can change domestic law
1.1 In that, recognised EU law an independent and overriding source of domestic law – brings into Q entire notion of Ps.
1.2 Then returned to Dicey’s Ps principles.
- Symbolises fact that courts’ no longer shying away from reviewing exercise of exec power and highlights growing remit of authority for them to review Parli’s power.
Dicey - three things
What is Ps?
- Crown-in-Parliament free to enact legislation on any area it chooses, and AoPs take precedent over other legislation
- Parliament can’t bind its successors – whatever CiP enacts today can amend or repeal anything enacted before, but can’t bind a future Parliament.
- No other institution, no court, no exec body, no authority, can undo or repeal Parliamentary legislation – only Parli can authorise it.
Parli interfering with rights
What did Lady Hale in Jackson say?
Courts won’t hold Parli to have interfered with fundamental rights unless they made their intention explicit
Democracy of judiciary
Why was Goldsworthy against the courts interfering with Ps?
Because the democratic nature of the judiciary not supported by the idea of majoritarianism.
What did Weber argue about why Ps is accepted?
Authority is conferred from below
What was Dicey’s distinction between law and convention?
Distinction between const. conventions and laws ‘in the strictest sense’
Strictest sense = regardless of its ‘source’, they’re enforced by courts.
Other rules = conventions, understandings, habits, practices -> aren’t laws because not regulated by courts.
What two things did Jennings say about conventions?
- Practice of conventions alone isn’t enough, it must be normative.
- Conventions accord with the prevailing political philosophy.
What did Barber say about conventions?
They’re not separate categories but a spectrum of rules - become laws over time due to increased formalisation.
What did Dicey think would happen if a convention was broken or ignored?
Conventions can’t be reviewed by courts but failing to follow a convention would result in legal consequences
e.g. if Parli weren’t to meet for two years, contrary to the convention they meet annually, taxes couldn’t be collected so every collector would expose themselves to legal action.
What did Jennings think would happen if conventions were ignored?
Plenty of examples where a breach of convention wouldn’t = breach in law.
What did Munro argue Dicey meant about conventions?
Argued Dicey was supposed to mean that conventions aren’t enforced or recognised as legal rules by the courts, not that they’re not recognised whatsoever by the courts.
Two kinds
What distinction did Taylor make about conventions?
Foundational and regulatory types.
RA and that monarch exercises PP on advice of ministers = foundational;
Sewel convention and ministerial responsibility = regulatory.
I’d develop argument to be one of foundational, regulatory, and behavioural.
When was the last time RA was refused?
1707
What did Dicey believe about the gov exercising Parli’s power?
That gov exercises Parli’s power but Parli performs political checks on efficacy of political performance.
What is the Sewel Convention?
Westminster Parliament won’t normally legislate on devolved matters without consent of the devolved legislature.
Enshrined into the Scotland Act 1998, as amended by the Scotland Act 2016.
What did Lord Greene, Carltona v Works Commissioners say about ministers?
Decisions made by officials are the decision of the minister, and the minister is who’s responsible before Parliament.
In Miller 2, what was Lady Hale and Lord Reed’s view on the Queen’s obligation under convention to accept Bojo’s advice?
Expressed no view on whether the Queen was obliged by convention or not to accept Johnson’s advice to prorogue Parli.
What did the UKSC say in Miller 1 about conventions?
Court can recognise the operation of a political convention in the context of deciding a legal question but can’t give legal rulings on its operation or scope because those are matters for politics.
What’s a modern const?
Big-C Constitutions’ - created from const. moment, often during political flux.
Consists of a constitutive power binding itself to avoid dysregulation and going ‘astray’ – i.e. avoids racism & hyper-nationalism.
What’s an older view on the const?
‘Small-C Constitutions’ – constitutions develop organically over time.
E.g. Civil Rights Act – women/minorities have rights against discrimination.
Conventions – normative culturable habits that constitutional subjects do – i.e. royal assent
The four sources of the UK const?
AoP
Convention
Common law
Intl. law
In theory vs reality
What did King say about written consts?
Constitutions might in principle be written down, but in practice, never are.
Written docs called ‘Constitutions’ exist, but they’re never extensive enough to cover everything
What’s the main reason the UK hasn’t adopted a codified const?
Codified consts. usually emerge out of revolution or independence
But arguably UK hasn’t experienced significant revolution since 18th century.
Even in eras where a const. could’ve been adopted, e.g. suffragette movement in 1930s, existing govs able to deal with unrest/avoid revolution through gradual/incremental changes.
Three praises of UK’s const?
- Extreme flexibility - no formal/special process for amending const. systems -> enables practical problems to be resolved a lot quicker and individual reforms/changes made.
- Suggests success of Westminster Parli
- It’s very ‘British’
Why is flexibility of uncodified const. a good thing?
Fundamental changes via AoP (fairly quick process) and done by elected Parliamentarians (supports notions of majoritarianism in democracy).
What two things did Blackburn/HofC Const. Reform SC say about the const’s flexibility?
- Flexibility easily manipulated by govs of their time for own political agenda.
E.g. Blair gov introduced major const. changes via devolution that arguably created even more uncertainty than already existed and actually reduced flexibility.
- Codified would improve transparency –> key idea of RofL.
Unify often unprincipled and incohesive common law judgements, identify what rules and institutions govern those who exercise exec functions and what the people must abide by.
