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.
