Constitutional Law Unit 1 Flashcards

Question

What case/s captures the principle "no punishment without law?"

Answer 1

Entick v Carrington [1765] EWHC KB J98 "If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.” R v Somerset CC, ex parte Fewings [1995] 1 All ER 513 If you cannot point to specific authority, then it is unjust to take someone's freedom.

Answer 2

ties into no punishment without law. Legal rules are two way, you either break it or you do not, these can be articulated by "you cannot be a little bit dead" you are either dead or alive. Legal principles articulate general considerations, it is generally not a good idea to expand the criminal law too quickly, the law should be able to be followed and understood. Shaw v DPP [1962] AC 220 - advertising soliciting, how do we judge crimes which haven't been explored? you can have general propositions to law to new cases is not reinventing the law, it is adapting it to something new. We do not have to wait for parliament to judge on the case, judges can figure it out themselves. however, one must remember that there is certainty that comes when parliament legislates. so if it is contentious then the courts might be equipped to deal with it before parliament decides unequivocally.

Answer 3

“not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.” treat cases alike, also no man can be the judge in his own cause (Dr Bonham)

Answer 4

A collection of Legal presumptions about the nature of legislative intent informed by background constitutional principles and fundamental common law rights. What the executive intends to do while enacting legislation. Built up gradually over time into a body of fundamental protections embedded into the legal system by case law, not just abstract ideas. Focus on procedure, remedies, and concrete legal rules, and not articulations of broad political statements. They are nevertheless difficult to remove. Harder to remove than abstract rights.

Answer 5

powers... never really unlimited, for they are confined by the words of the Act itself and, what is more, by the interpretation put upon the statute by the judges. - Dicey says, the judiciary are just as inclined to interpret legislation through fundamental principles of law as well as the intention of parliament. - Parliament does not intend to disregard the principles of law. - Parliament is attempting to make law in accordance to the rule of law.

Answer 6

"there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy … That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea." Sweet v Paisley [1970] AC 132 AG v Lockwood (1842) 9 M&W 378,398 * You take the plain meaning of the words unless the plain reading of the words breaks the fundamental principles of the rule of law.

Answer 7

in ‘the ordinary case, where the presumption of innocence has been recognized at common law long before its embodiment in the Convention’, he would be reluctant ‘to construe a criminal provision so as to impose a persuasive burden’ on the defendant: ‘While the Act uses the word “prove” it is perfectly possible to construe that as implying an evidential burden rather than a persuasive one. If it is possible that something might mean this and the fundamental principles support this so it could be foreseeable that this is the right intention.

Answer 8

"Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law." "Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law …" Modern articulation of Dicey's spirit of legality.

Answer 9

Held: No. General words cannot remove fundamental rights. If you are going to remove fundamental rights, you need to be very clear that that is your intention. courts, if they can, will interpret legislation to be subject to the basic rights of the individual. Implies that the basic rights of the individual are sovereign, they are the starting point. also links to statutory interpretation... But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words

Answer 10

Relates to rule of law There is no rule of law if you cannot go to court. You cannot live under the rule of law if it is not implemented in cases. In considering this matter the court "must consider not only the text of [the legislative] provision, but also the constitutional principles which underlie the text

Answer 11

relates to Parl sov v Rule of law and courts consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question That does not mean that every time the courts don’t like a decision, they can alter it. "the interpreter must be impartial, independent both of the legislature and of the persons affected by the tests … Only a court can fulfil the role”

Answer 12

relates to rule of law v Parl Sov “The rule of law is of the first importance. But it is an integral part of the rule of law that courts give effect to Parliamentary intention."

Answer 13

Neither in principle nor in authority can I see any justification for this view, and I reject it it can lawfully be done simply because there is nothing to make it unlawful. The question, of course, is whether tapping can be carried out without infringing the law.” Entick was about trespass, this is not trespass, entick the court said trespass cannot be committed by the eyes, merely looking into someone's house is not a trespass, so does that apply for ears? Public authority do need to point to public law authority only when they interfere with your rights. Public authorities must point to legal authority when interfering with common law rights. But no common law right to privacy and no trespass here.

Answer 14

Executive free to act except where it is unlawful. Entick and Malone: unlawful to violate common law rights. Being a minister or executive does not immunise yourself from the law. So similar to private individuals. But executive is unlike private individual: 1. Sometimes the executive can use prerogative powers which the private individual could never had. 2. Subject to judicial review which the private individual does not experience. Fewings and Ex p C: Public bodies (established by statute) can only act under statutory authorisation

Answer 15

There are certain core maxims which are what basic justice is. They circle around common law values like fairness and impartiality. * Nemo iudex in sua causa - you cannot be a judge in your own case (Bonham) * Audi alteram partem - here the other side, requires courts to fairly listen to what both sides of the case have to say. * The rule against bias Fairness, impartiality and equality.

Answer 16

Gaidan v Godin-Mendoza [2004] UKHL 30 : [d]iscriminatory law undermines the rule of law because it is the antithesis of fairness. It brings the law into disrepute Threat to rule of law because biased decision making will damage the rule of law, the rule of law requires legal reasoning, not personal bias.

Answer 17

case of proclamations is one

Answer 18

Matadeen v Pointu [1999] 1 AC 98 This refers to the foundation of legal reading and precedent, but further, it is used a lot by the courts to prove that an act has been irrational/unreasonable decision. And vice versa, if different cases are treated the same. However, this doesn't automatically refer to lawfulness.

Answer 19

British Railways Board v Pickin [1974] AC 765 The function of the court is to construe and apply the enactments of Parliament. The court has no concern with the manner in which Parliament or its officers carrying out its Standing Orders perform these functions. It is just not the courts job to do so.

Answer 20

Ellen Street Estates v Minister for Health [1934] 1 KB 590: “Parliament can alter an Act previously passed, and it can do so by repealing in terms the previous Act … and it can do it also in another way – namely, by enacting a provision which is clearly inconsistent with the previous Act” “The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal.”

Answer 21

Parliament can decide what is needed to pass legislation and look into the proceedings in parliament and look for legal validity. "The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based." - Lord Hope Jackson seems in a narrow reading that Parliament can establish new ways, manners and forms to pass legislation but cannot override existing manners and forms. In a wider way, it is the subtle establishment of the sovereignty of the rule of law over parliament.

Answer 22

R v. Secretary of State for the Environment ex p Spath Holme, (2001) 1 All ER 195, per Lord Nichols: the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House Parliamentary intention is not a factual thing that can be found from individual members of Parliament. It is a legal construct created by the courts.

Answer 23

Doctrine of implied repeal is engaged when two statutes, properly interpreted, conflict. Interpretation of statute is a judicial task. Parliament can create new rules for interpretation of legislation and for gov amendment of legislation (s2 ECA) Some caselaw suggest ECA limited Parl Sov but constitutionally appropriate because Parl did so voluntarily. You need to expressly repeal constitutional acts in the later statute to repeal it.

Answer 24

1. Remedy would require positive action from a court to disapply an Act of Parliament: if this was not a breach of EU law, House of Lords would have “conferred upon them[selves] rights directly contrary to Parliament’s sovereign will” if it was not a breach of EU law, then the courts could not give themselves power of Parliamentary Sovereignty. 2. Courts have no jurisdiction to grant interim injunction against the Crown. That is position in domestic law but unclear of position in European Community law (and obligation in European Community Act to give effect to EC law). So, needed to request additional preliminary ruling from ECJ on this point.

Answer 25

Thus whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom court ECA can limit Parl Sov since it consented to being limited.

Answer 26

Statutes prevail over international treaties. Courts cannot declare a statute unlawful, as Parliament’s laws are the highest form of law in the country.

Answer 27

The Supreme Court ruled that requiring courts to interpret legislation to be compatible with the UNCRC would undermine Parliamentary Sovereignty. Courts deciding cases in ways that create political pressure to change the law could also be seen as undermining sovereignty.

Answer 28

A challenge to Queen Elizabeth II using “II” in Scotland, arguing a breach of the Act of Union 1707. The case was dismissed, but obiter dicta questioned whether Parliamentary Sovereignty was an exclusively English principle. Suggested that some provisions of the Act of Union could not be repealed.