Constitutional Theory Flashcards
Dicey rule of law - 3 core elements
1 Absolute supremacy of regular law as opposed to arbitrary power
2 no man is above the law and subject to the law of the realm
3 general principles of the constitution develop as a result of judicial decisions
Explain rule of law principles 5 of them
Core principal of UK constitution
No one accepted definition - dicey - j raz - Lord Bingham
Narrow sense - distinguishes law
Wide sense- prescribe content and application
At its heart - conduct government according to law -proper legal basis for exercise of power over citizens- note legal basis Entick v Carrington
Diceys three core elements provide important constitutional values
Three are
1 need for legal certainty - individuals can rely on clear laws and due process - right to fair procedures
2 equality before the law- state officials gave no exemption from legal control
3 courts are the protectors of individual liberty- great importance to development of right and freedoms through cases
Criticism of dicey
1 failed to anticipate need for discretionary powers in complex modern state
2 third element overlooked role of parliament in defining rights - HRA
3 Lord Bingham - proper protection of human right / compliance with international law but dud agree with dicey in most respects
Lord Bingham - rule of law - definition and eight sub rules
All persons / authorities bound by and entitled to benefit of laws publicly and prospectively administered by courts - broke down by eight sub rules
1 law must be accessible, intellible clear and predicatable
2 legal right and liability should be resolved by application of the law
3 laws should apply equally to all
4 law must afford adequate protection
5 means provided for resolving disputes without excessive cost delay
6 ministers and public officers must exercise powers conferred on them reasonably and in good faith without exceeding powers
7 adjudication powers provided by the state should be fair
8 state must comply with obligations in international law
Parliamentary Sovereignty- definition
Dicey 4 points
- Bill of rights 1689
Parliament = queen in parliament / queen HOL and HOC
It has the right to make any law whatsoever
Legislation made by parliament cannot be overridden by any other body - as in pickin.
the people’s wish expressed through parliament
Bill of rights 1689- art 9 proceedings in parliament not impeached or questioned in any court
Link or conflict between rule of law and parliamentary sovereignty
2 things parliament can do and 1 view
1 Regular law is formed by parliament therefore conflict for example
Parliament can legislate with retrospective effect - Burmah oil / war damage act 1965
2 parliament could abolish judicial review - unconstitutional not illegal
3 Conflict considered in Jackson - Lord hope rule of law ultimate controlling factor - in extreme circumstances courts could override parliamentary supremacy
Definition of separation of powers
Montesquieu and Locke - identifies 3 branches of state being legislature-parliament / executive-government/ judiciary - courts
To Guard against abuse of power these branches separated
Creates checks and balances avoiding dominance
In unwritten very important as some overlap between exec / legislature
Independant judiciary essential for rule of law and separation of powers
Ideally each branch have own personnel
Statutory acknowledgement of rule of law and it did
Constitutional reform act 2005
Independant judiciary lord chancellor replaced by Lord Chief Justice
Judicial appointments commission
Supreme Court
Rule of law examples through judicial review
Illegality - ccsu. Public bodies act with legal limits
Discretion retained in decision making - British oxygen
Lloyd McMahon fair hearing .
Significance of jr in rule of law
Jr key protector of hr s6 HRA - a (fc)
Sufficient standing - greenpeace
Ouster clauses anisminic - courts attitude
Separation of powers - unsystematic
Yes as unwritten unlike U.S. constitution which has constitutional doc laying out what everybody does
No formal separation- as it evolves therefore incomplete
Despite this separation can still be identified
Sepofpowers. Exec v legislature
Clear separation of personnel - civil servants, police armed forces are disqualified from hoc under hoc (disqualification) act 1975
However, gov ministers operate within parliament - incomplete separation
May promote accountability - but voting system first past the post / clear majority.
Note law making via delegated legislation - enabling acts . Little scrutiny
Constitutional conventions exist for ministerial responsibility
Prime ministers questions - enable parliament to examine policies
Work is overseen by parliamentary committees and debates
Very weak separation powers here as really in same hands
Lord Hailsham - elective dictatorship
Sep of powers - exec v judiciary
Independence partially safeguarded by constitutional reform act 2005
Created Lord Chief Justice and Independant appoints commission
Only queen can remove judges - on address by both houses
Constitutional convention judges and ministers should not get involved in politics or criticise decisions
Sub judice rule mp’s cannot discuss cases proceeding / pending before courts
Very important is judicial review
Some overlap- exec appoints administrative tribunals
Quasi function in planning
Judiciary publicised by HRA
Sep of powers - Judiciary v legislature
Judges can’t be mp’s - hoc (disqualification) act 1975
Law lords no longer sit in court as part of legislature - const reform act 2005
Judiciary - statutory interpretation quasi legislative role -some overlap but constrained by parliamentary sovereignty in test if they don’t like it change it - Burmah oil / war damage act 1965
Judges cannot declare legislation unconstitutional or invalid only make declaration on incompatibility.
Purpose of constitution
Governs the manner in which state organised
Establishes legal order
Gives effect to value of society
Legitimises government
Professors analysis of modern constitutions
Professor Kenneth wheare Written/unwritten Rigid/flexible Supreme/subordinate Federal/unitary Republican/monarchical
A written constitution
Single authorities constitutional document
USA constitution 1789 and the U.S. bill of rights
Found in one place/entrenched / bill of rights
Federal / republican / rigid / formal separation of powers
Courts Power to declare legislation invalid considerable power in unelected body
Clear separation of powers and certainty ,citizens aware if rights
An unwritten constitution
UK is elements
Sources
EU
The UK - flexible, supreme, unitary, informal separation of powers, monarchical,
No single authoritive document developed over time
Sources - legislation, common law, royal prerogative, constitutional convention. Makes it difficult for individual to identify rights, values and check and balances.
Parliamentary supremacy - courts cannot strike down legislation
Bill of rights 1689, parliament acts 1911 and 1949, ECA 1972, HRA 1998 - flexible is not always good as constant change adds uncertainty
Considerable power in government
Actions of state - must have a legal basis- Entick v Carrington
Conventions not very democratic
Royal prerogative - exercises by crown but really by government
In UK EU law included - parliamentary remains - incorporate by ECA 1972 - doctrine of supremacy and direct effect
Relying on cases to develop constitution can be haphazard and expensive
S2 of HRA jurisprudence of ecthr. Taking to account in UK law
Legal principles - purpose of an constitution
4 things-examples
Governing a state - principle of separation of powers - checks and balances
Examples of values - rule of law - Lord Bingham
Values of society - rights protected by HRA
Particularly - sets out checks and balance on executive, legislature judicial branches through judicial review, declaration of incompatibility sec 4 of the HRA
Constitutional reform act 2005
