Public Law Flashcards
“all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state” Dicey (conflict of laws) what is this a definition of?
Constitution
What are the key sources of the UK’s uncodified constitution
Statute, Conventions, Case Law, Retained EU Law, Royal Prerogative, Authoritive Works
What is the meaning of the central state?
Core executive, Civil Service, Parliament (The government)
Where is power perceived to lie in the UK?
The Central Executive (The Crowns powers exercised by the Government)
Who is the non-partisan source of administration led by ministers?
The Civil Service
Which body creates statutes and legislation?
Parliament
Which case sets the precedent for a ‘constitutional statute’?
Thoburn v Sunderland CC (Laws LJ)
Can Parliament expressly amend or repeal constitutional statute?
Yes, by simple majority through ordinary parliamentary procedure
What is IMR?
Individual Ministerial Responsibility (cabinet or junior rank) owe a responsibility for effectively what happens in their area or responsibility. They are accountable to parliament.
The Crichel Down Affair?
The minister of agriculture resigned, the degree of knowledge or involvement would determine the responsibility of the minister involved.
The Maze prison affair?
Minister (James Prior) did not resign, as it was a ‘matter of operation’, not policy
Whitemoor Prison?
Michael Howard (HomeSEC) sacked the Director General of the prison service. A failing of that executive and not of home office policy. Director General claimed unfair dismissal and won his case.
Convention of CMR?
Collective Ministerial Responsibility: Confidentiality in Cabinet, Unanimity (united front) building the confidence of parliament in Government.
Name one supplement to the conventions of CMR and IMR?
Ministerial code (broadly shadows CMR). Is written down so can be used more precisely.
Who polices the Ministerial code?
The PM
Internal accountability within parliament?
Select Committee system
Shadow govt departments
Oversight roles eg Public accounts Committee, Liason Committee (chair of each committee on a committee), Human Rights committee
Legislative committees?
Appointed ad hoc to scrutinised individual bills
Is the UK constitution entrenched?
No, it is has no ‘protected’ constitutional rules and rights.
Is the Supreme court a constitutional court?
No, the Supreme Court can interpret case law and statute to withhold the rule of law, but it cannot quash primary legislation put forward by the legislative as a constitutional court can.
What are the ‘3 organs of state’ as defined by Montesquieu?
Legislature (deliberates and makes the law)
Executive (implements the law and administers the State)
Judiciary (Interprets and enforces the law)
What did Lord Hailsham describe the fact that the party with a functioning majority control parliament and the government as?
Elective dictatorship
What are the key constitutional principles of the UK?
Rule of Law
Separation of powers
Parliamentary Sovereignty
Who is the Legislature?
The Monarch in Power (The Crown, The House of Commons, The House of Lords) Parliament has the sole power to make law, by voting a bill through with an ordinary majority.
The Executive?
The Crown, Prime Minister, Cabinet and Civil Service. Tasked with guiding and executing the functions of the state through it’s policies and departmental structure.
The Judiciary
The courts
What are the functions of the Courts?
Interpret statutory law (Primary and secondary legislation)
Created and developed common law principles and rules (case law) (The principle from Entick v Carrington)
Entick V Carrington?
The then SoS for northern Ireland was deemed to have no legal authority for granting a general search warrant of Enticks house so had acted ultra vires and the warrant was found unlawful
Gillick v West Norfolk
Victoria Gillick objected on moral grounds to a circular by the Norfolk health authority stating that they may provide medical advice and sexual health advice to those under 18. The courts rejected her argument. Some people felt at the time that the courts intruded on moral or ethical concern that the courts shouldn’t be involved in.
Airedale N.H.S. Trust v Bland (Tony Bland?)
One of the last victims of the Hillsborough tragedy, the claimant sought permission from the court to turn off life support, which was granted by Court. Some criticised this as an overly active decision of the court.
R v R?
The Court held that marital rape was illegal and that the presumption of consent could no longer apply to married couples. Judges ‘made’ the law, the court made the decision without statutory guidelines
Burma Oil Company (Burma trading) v Lord Advocate
Parliament retrospectively changed the law on Crown compensation for war property damage following a decision of the courts to compensate.
R (Unison) v Lord Chancellor?
The Supreme Court quashed the greatly increased employment tribunal fee; they unlawfully prevented claimants from accessing justice. Lord Reed noted ‘The right of access to justice…has long been deeply embedded in our constitutional law’. The case sets a precedent for common law constitutionalism.
Areas where the courts are deferential? (2 examples, not scientific, a general approach)
National security Ethically contentious (R (Nicklinson v AG- assisted suicide)
What is Rule of Law according to Professor Joseph Raz?
The law must be clear
Legal procedure must be clear and certain
Law must not be retrospective
Judiciary must be independent
What is parliamentary legitimacy?
The place of Parliament as the sovereign body. Parliament is the democratic forum, as well as being historically sovereign.
Does secondary legislation need to be approved by the ‘parent act’?
Yes. There needs to be authority given in the parent act.
The courts will be deferential to orders by the police?
Not per se- The Courts are not likely to get involved in matters of national security (wartime, diplomatic relationships) an order by the police is not necessarily national security, but more domestic and the courts are likely to weigh in if the order compromises the rights of the public.
