ELS Flashcards
Define the following features of a constitution:
1. Written/codified
2. Republican
3. Monarchical
4. Federal
5. Unitary
6. Rigid
7. Flexibile
- Constitution is written out in a single document
- Usually has a president as its head of state
- Unelected monarch as head of state
- Will have a division of power between the central and regional government
- Has a single, sovereign legislative body
- Constitution can be said to be entrenched; can change only following special procedures
- Constitution is comparatively flexible and no special procedures need to be followed
What would the UK and American constitutions be described as?
UK:
- Unwritten
- Unitary
- Monarchical
- Parliamentary executive
American:
- Written
- Federal
- Republican
- Presidential executive
What is the procedure for getting a bill through Parliament?
- First reading
- Second reading
- Committee stage
- Third reading
- Proceedings in HoL (and goes through all 3 readings before being passed back to HoC with any amendments made)
- Royal assent
Define the Salisbury Convention
HoL will not reject a bill giving effect to a major part of the democratically elected government’s manifesto
Define the Enrolled Act rule
Once an Act of Parliament has been entered into the Parliamentary role, the courts will not question the validity of the Act or hold the Act to be void
What is the implication of the unlimited legislative competence of Parliament?
Statute may override international law and constitutional conventions
Statute may alter the constitution
Statute may operate retrospectively
Statute may abolish or curtail aspects of the royal prerogative
Define implied repeal with regards to an Act of Parliament
Where there are any inconsistencies between two Acts of Parliament, the later Act will repeal the provisions of the former Act
What limitation has been suggested for implied repeal of an Act of Parliament?
Has been suggested that constitutional statutes cannot be impliedly repealed
Test for constitutional statutes:
1. The statute must condition the legal relationship between citizen and state in some general, overarching manner; or
2. The statute must change the scope of fundamental constitutional rights
Can be repealed by express words or words so specific that make Parliament’s intention to repeal very clear
What is the effect of HRA 1998 on Parliamentary Sovereignty?
Gives the court the power to:
- Interpret UK law in a way that is compatible with the ECHR
- Declare legislature incompatible with the ECHR
What are the 2 main Parliamentary privileges? Define them
Freedom of speech = aim is to allow Parliamentarians to carry out their function without fear of civil proceedings or criminal prosecutions
- Also applies to parliamentary officials and non-members (eg: witness before a committee of one of the Houses)
- Extends to official reports of proceedings and to committee proceedings
Exclusive cognisance = Parliament has sole control over all aspects of its own affairs
Define the Sewel Convention
Westminster will not normally legislate on devolved matters without the consent of Scottish/Welsh/Irish Parliament
What falls outside of the legislative competence of the Scottish Parliament?
- Those that would form part of the law of any territory other than Scotland
- Reserved matters (foreign policy and defence)
- Those that modify certain enactments (eg: EU(W)A 2018, HRA 1998 etc.)
- Those that are incompatible with ECHR and, until transition period ends, with EU law
- Those that would remove the Lord Advocate from their position as head of the systems of criminal prosecutions and investigations of deaths
Devolution: Who can refer a bill/its provisions to the Supreme Court on the grounds of legislative comeptence?
Advocate General
Lord Advocate (Scotland)
Attorney General (UK)
What was a consequence of the Wales Act 2017?
Senedd has the power to pass legislation on all matters that are not explicitly reserved to the Westminster model
Reserved to Westminster model:
- Defence
- Foreign affairs
- Immigration
What were the 3 main outcomes of the Good Friday Agreement?
- A democratically elected assembly with a power-sharing executive
- North/South Ministerial Council
- Co-operates and develops policies on matters of mutual interest within Ireland - British-Irish Council
- Comprises representatives from the devolved administrations, the Isle of Man, Guernsey and Jersey
What are the main features of the rule of law?
Legal certainty
Personal liberty
Due process of law
Equality before the law
Courts are the protectors of the law
Define Henry VIII powers
Enables ministers to amend/repeal the relevant statute by delegated legislation
Excessive use of these powers risks undermining parliamentary sovereignty
What is the literal rule?
Words are to be given their plain and ordinary meaning
What is the golden rule?
Narrow = when there are 2 meanings to one word, you can choose between them
Wider = can be used to avoid a result which is obnoxious to principles of public policy, even where words only have one meaning
What is the mischief rule?
Court looks at the defect in the existing law that the statute was intended to remedy
What was the legislator’s intention when passing the Act?
What is the purposive approach?
Court looks at why the statute was passed and its purpose
They will interpret the statute on that basis
Questions of wider economic or social nature should be considered by the courts when assessing the impact of legislation on disputes
Widely used when interpreting (retained) EU law
The Court of Appeal and the High Court are bound by its own decisions. What are the exceptions to this?
- Where its own previous decisions conflict
- Where its previous decision has been implicitly overruled by the SC
- Where its previous decision was made through carelessness (per incuriam)
- Where it is an interim decision
- Where its previous decision is inconsistent with a subsequent decision of ECHR
Is the Crown Court bound by its previous decisions?
No
For criminal matters, it is strongly persuaded by them
Define:
a) Overruling
b) Departing
c) Reversing
a) A principle laid down by a lower court is declared incorrect and not followed by a higher court in a different case
b) Court can depart from an earlier case from the same court
c) A decision of a court in the same case is altered by a higher court on appeal
Define the difference between direct effect and directly applicable in relation to retained EU law
Direct effect = EU law gives rights to individuals which they can then enforce in their national courts
- Vertical = EU law can be enforced against the state/government/public sector
- Horizontal = EU law can be enforced against a private organisation
Directly applicable = EU law automatically forms part of national law without the member states having to do anything
What are the 3 main categories of retained EU law?
- EU-derived domestic legislation = includes Acts of Parliament and secondary legislation, enacted to implement the UK’s EU obligations
- Direct EU legislation = converts direct EU legislation into domestic legislation at IP completion day
- Rights arising under s 2(1) ECA 1972 = ensures any remaining EU rights and obligations become part of retained EU law
- Directives, as a general rule, are excluded from the scope of retained EU law
What are the 2 categories of direct EU legislation?
- Retained direct ‘principal’ legislation = can only be amended/repealed by primary legislation
- Cannot be declared invalid under HRA 1998
- Can be repealed by secondary legislation if:
a) Primary legislation has granted Henry VIII powers
b) Where ministers are using their powers under EU(W)A 2018 to correct deficiencies in retained EU law - Retained direct ‘minor’ EU legislation = can be repealed or amended in the same way as ordinary domestic secondary legislation
Is retained EU case law binding?
CJEU judgements from pre-IP completion day remain binding on all UK courts below the level of CoA
Can have regard to post-IP completion day case law, but the UK courts are not bound by it
How were deficiencies in retained EU law corrected?
UK government ministers and devolved administrations were granted temporary powers to make secondary legislation that corrects ‘deficiencies’ in retained EU law
Can only correct deficiencies arising from UK’s withdrawal from EU, not a power to make changes to the substance of retained EU law
Power expired 31 December 2022
Describe the supremacy of retained EU law
A provision of retained EU law will prevail over a piece of pre-IP completion day legislation that is not retained EU law
Legislation enacted after IP completion day will prevail over retained EU law
Define the constitutional conventions of individual and collective ministerial responsibility
Individual ministerial responsibility = government ministers are responsible for the proper administration of their department and for their own personal conduct
Collective ministerial responsibility = all government ministers must support government policy in public
- If they cannot do so, they should resign
What happens if Parliament uses the procedures set out in the Parliament Acts 1911 and 1949?
These Acts enable the House of Commons to override the House of Lords when enacting legislation
What is the relationship/overlap between the executive and legislature?
Certain members cannot be MPs
- Eg: civil servants, armed forces, police
Checks on executive’s exercise of power through PM questions, debates, select committees etc.
What is the relationship/overlap between the executive and the judiciary?
Independence of judiciary
- Ministers should not seek to influence particular decisions
What is the relationship/overlap between the legislature and the judiciary?
Article 9 Bill of Rights (and parliamentary privilege) secures freedom of speech in Parliament
Judiciary accepts that statute takes precedent over common law
Judiciary is unable to prevent Parliament from legislating in any given area
Define the sub-judice rule
Prevents discussions of ongoing Court proceedings by either House of Parliament
Define the doctrine of habeas corpus
The doctrine that no one can be detained without lawful reason
Define the rule noscitur a sociis
Recognition from associated words
Word derives their meaning from surrounding words
Define the rule eiusdem generis
If a general word follows 2 or more specific words, the general word will only apply to items of the same type as the specific words
Define the rule expression unius est exclusion alterius
The mention of one or more specific thing may be taken to exclude others of the same type
Define the presumption against the alteration of common law
Unless the statute expressly states an intention to alter the common law, the interpretation which does not alter the existing law will be preferred
Define the presumption against the operation of retrospective statutes
When an Act of Parliament becomes law, there is a presumption that it will only apply to future actions
Define the presumption against the deprivation of the liberty of the individual
Any ambiguity in a penal or criminal statute will be interpreted in favour of the citizen
Define the presumption against binding the Crown
Unless there is a clear statement to the contrary, legislation is presumed not to apply the Crown
Is the High Court bound by their own decisions?
In the appellate jurisdiction, they are bound by their own decisions
- Same exceptions in the CoA apply
Decisions of individual High Court judges in first instance are binding on the County Courts, but are not binding on the High Court
The High Court has 3 divisions. What types of cases are suited for each division?
Kings Bench Division = contractual and tort matters (eg: PI, landlord and tenant disputes, clinical negligence claims etc)
Chancery = IP matters, wills and trusts, property loans and mortgages, partnership and business disputes
Family Division
Criminal court: what is a defendant’s right of appeal from the MC to CC?
D has an automatic right of appeal to the Crown Court
Pleads guilty = can only appeal against sentence
Pleads not guilty = can appeal against conviction and sentence
Civil court: how can a defendant appeal from the County Court?
There is no automatic right of appeal, but they must obtain permission
Permission will be granted if:
- There is reasonable prospect of success; or
- There is some other compelling reason for the case to be heard
Permission can normally be sought:
a) At the end of trial; or
b) Can apply for permission from the appeal court within 21 days
Civil court: where and how can a leapfrog appeal be made?
Can be made from the High Court to the Supreme Court where the appeal is on a point of law of general public importance
Criminal court: how can a defendant appeal by way of case stated/on a point of law from the MC?
The appeal is made to the Administrative (Divisional) Court of KBD of the High Court
Application to the MC must be made within 21 days
- If the MC refuse, D can still apply to the High Court for a mandatory order for the case to be stated
Criminal court: how can a defendant appeal from the CC to the CoA
- CC grants leave of appeal
- Trial judge grants a certificate that the case is fit for appeal
D should serve notice of appeal within 28 days of conviction/sentence
Conviction = need to show that conviction is unsafe
Sentence = need to show that it is manifestly excessive
If appealing against sentence, the appeal is confined to legal submissions
Criminal court: how can an appeal be made to the Supreme Court?
Can be made from:
- CoA
- Administrative Court
Appellate has 28 days to apply for an appeal
Right of appeal = it must be a case of exceptional public importance
When was IP Completion Day?
31st December 2020
What does the exclusion of state liability from retained EU law mean?
EU law gives individuals the right to claim damages from Member States for their failure to implement a Directive within the time limit/at all
This has been excluded by retained EU law
Claims were able to be brought within 2 years of IP completion day, if the claim related to something before IP completion day
What are the general principles that form part of retained EU law and to what extent are they binding?
- Proportionality
- Equality
- Fundamental rights
- Subsidiarity
While these general principles are retained, failure to comply with them does not give rise to a right of action
European Charter of Fundamental Rights does not form part of retained EU law
What does the EU Withdrawal Agreement 2019 set out?
Sets out the terms of the UK’s exist from the EU
Legally binding in international law
Protects citizens’ rights = EU citizens living in the UK and UK citizens living in the EU
These provisions have direct effect
=> Citizens will be able to rely on them in UK courts
Criminal court: from the CC, where can D make an appeal to?
- Summary only offence = High Court, as of right, on a point of law
- Triable on indictment = CoA, with permission, on a point of law
Define the right of audience
The right to appear before a court and to address the court
- eg: the right to call and examine witnesses
This is a reserved legal activity
Barristers have the right of audience in all courts
Solicitors have the right of audience in the magistrates and County courts
- To have the right of audience in higher courts they must have completed the appropriate higher courts advocacy qualification
- Exception: Can represent clients in the Crown Court if they are appealing from the MC and they represented them in the MC
What are the requirements of a district judge in the magistrates?
5 years of right of audience
Typically have served as a deputy district judge for 30 days
What are the requirements to be a circuit judge in the High Court?
Right of audience for 10 years
Should also have either served:
- Part-time as a recorder; or
- Full time as a district judge
What is a recorder?
Most junior level of circuit judge, usually to reside on a part-time basis
