Constitutional Law Flashcards
What is a statute?
A law passed by the House of Commons and House of Lords.
Who is sovereign?
Parliament
According to Lord Hailsham in Johnson v Moreton in 1980 AC 37, what is the courts workload mainly about?
‘probably as many as 50% of High Court cases and 90% of cases heard by the Court of Appeal and the House of Lords turn upon or involve the meaning of words contained in statute or secondary legislation.’
What are the 4 things a judge aims to interpret with statute
-Give effect to the will of parliament.
-Mitigate between different understandings of the law within the population.
-Provide clarity to the population on the law’s meaning.
-Set precedent for future decisions.
What is delegated/secondary legislation
‘Secondary legislation’ (also called ‘subordinate legislation’) is delegated legislation made by a person or body under authority contained in primary legislation.
Typically, powers to make secondary legislation may be conferred on ministers, on the Crown, or on public bodies.
Give some examples of delegated legislation
-By Laws
-Statutory Instruments
-Orders in Council
-Private law arrangements
What are statutory instruments
Statutory instruments are the most common form of secondary (or delegated) legislation.
The power to make a statutory instrument is set out in an Act of Parliament and nearly always conferred on a Minister of the Crown. The Minister is then able to make law on the matters identified in the Act, and using the parliamentary procedure set out in the Act. SIs may follow affirmative or negative procedure, or have no procedure at all, but which to use is fixed by the Act.
What is affirmative procedure
Affirmative procedure is a type of parliamentary procedure that applies to statutory instruments (SIs). Its name describes the form of scrutiny that the SI receives from Parliament.
An SI laid under the affirmative procedure must be actively approved by both Houses of Parliament. Certain SIs on financial matters are only considered by the Commons.
What is negative procedure
Negative procedure is a type of parliamentary procedure that applies to statutory instruments (SIs). Its name describes the form of scrutiny that the SI receives from Parliament.
An SI laid under the negative procedure becomes law on the day the Minister signs it and automatically remains law unless a motion – or ‘prayer’ – to reject it is agreed by either House within 40 sitting days. Certain SIs on financial matters are only considered by the Commons.
How is an act of parliament composed? IN ORDER
-Short Title
-Citation-
-Long Title
-Date of Royal Assent – look for commencement orders/dates in force
-Enacting Formula
-Main Body
-Commencement
-Schedules
What are the 3 general ways judges can use interpretation? Not specific rules
1) Rules of Interpretation
2) Aids
3) Rules of language
What is the literal rule
Words must be given their plain, ordinary & literal meaning (sometimes natural meaning)
What is the golden rule
When the literal interpretation would result in an absurd outcome, the court departs from that outcome. The courts are to assume that Parliament intended that its legislative provision have a wider definition than its literal meaning,
What is the mischief rule
This allows the court to look behind the statute’s wording and allows them to solve the ‘mischief’ the statute was intended to remedy.
What do judges look for with the mischief rule?
Heydon’s Case (1584) 76 ER 637 I
1. What was the common law before the making of the Act.
2. What was the mischief and defect for which the common law did not provide.
3. What remedy Parliament hath resolved and appointed to cure the disease of the Commonwealth.
4. The true reason of the remedy; and then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy.
What is the purposive approach (EU way?)
Look beyond specific words and consider wider sense of meaning.
To give effect to Parliament’s purpose
What aids can judges use to interpret the law?
Intrinsic aids – within the statute eg preamble, examples
Extrinsic aids– outside the statute
-Explanatory notes
-Interpretation Act 1978
-S2 European Communities Act 1972
-Dictionaries
-Hansard – Pepper v Hart [1993]
-Law Commission papers
-Academic writings
What are the rules judges must follow when using Hansard
Ministerial statements only. Other members’ speeches to be excluded.
(a) legislation is ambiguous or obscure, or leads to an absurdity;
(b) the material relied upon consists of one or more statements by a Minister or other promoter of the bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; and
(c) the statements relied upon are clear.
What are some rules of language judges can use
Noscitur a sociis – a word is known by the company it keeps ie read in context
Ejusdem generis - general words that follow specific words – the general word is interpreted as a continuation of the specific words eg hats, coats, gloves and other articles = outdoor clothing and not all clothing
Expressio unius est exclusio alterius – express one thing to exclude another eg tax on coal mines excludes a tax on other types of mine
What are the rules around making a legal presumption
Inference established by law as universally applicable to certain circumstances
Eg against retrospective operation of statute & criminal liability without mens rea
What are the 2 stages of judicial review
Procedural and then substantive
What are the stages in procedural judicial review
- Public body?
- Reviewable issue?
- Ouster Clauses?
- Standing?
What are the stages in substantive judicial review
- Illegality
- Irrationality
- Procedural ultra vires
- Natural justice
- Human Rights Act 1998
What does Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 409 say about public body review
For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties)
What does the reviewable issues clause of review require
The issue(s) to be one of law - political issues are not applicable, and issues of national security are handled carefully
What is an Ouster clause
Ouster clauses are provisions inserted into legislation to prevent judicial review challenges that target particular decisions by public bodies. They exclude the common law supervisory jurisdiction of the courts
What does Anisminic Ltd 1969 say about ouster clauses
Courts will not exclude judicial review by implication, must expressly state so. Draws distinction between things ‘inside’ and ‘outside’ power.
What does standing mean
An individual or organisation must have sufficient interest, or “standing”, in the matter to which the judicial review relates in order to be bring a judicial review claim or be involved in it.
What does the Senior Courts Act 1981 say about standing
- “No application for judicial review shall be made unless leave of the High Court has been obtained in accordance with rule of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates”.
What are the 3 categories in deciding whether a review has standing
- Personal interest
- Constitutional / national interest
- Representative interest
What is illegality in judicial review
Challenging a law based on the idea that is goes beyond that bodies powers and is ultra vires, ie a council making changes to a law passed by parliament affecting the whole country
Give examples of when Illegality can be raised for judicial review
Errors of law/fact
Improper purpose
Unlawful delegation
Simple or narrow UV
Irrelevant considerations
Fettering of discretion
Public sector equality duty
What is irrationality
A decision can be overturned on the ground of irrationality if it is so unreasonable that no reasonable person, acting reasonably, could have made it. This is a very high bar to get over, and it is rare for the courts to grant judicial review on this basis.
What is procedural ultra vires
Legal procedure goes beyond the powers given to them.
The courts distinguish between those procedural requirements which are mandatory, the breach of which will render a decision void, and those which are directory, which may not invalidate the decision taken
What is the concept around Natural Justice raised in Peter v Magill 2001
The question is what the fair-minded and informed observer would have thought, and whether his conclusion would have been that there was real possibility of bias.
Why is considering the HRA 1998 important to judicial review?
Because a law can be revised by the courts if it is incompatible with the HRA
Who can bring an infringement against HRA
The victim
True or false- does the hr convention provide that ember countries uphold these convention rights for everyone in their jurisidiction, no matter country of origin?
TRUE- IE a national from a pro torture country who is living in the uk would not be deported for fear of torture
