Public Law Flashcards
Constitutional law
body of legal rules and political arrangements; puts country and gov together; contains ground legal rules which regulate it
UK Constitution
(1) unwritten, (2) flexible, (3) monarchical, (4)unitary, (5) subordinate to legislature, (6) based on partial degree of separation of powers
Flexible
there are no special procedures for making or amending constitutional law, can be adapted quickly with minimum of formality
Unitary
all gov power originates in central or national gov; powers of local authorities is subordonate; Westminster parliament is central and devolves power to others (Scotland, Northern Ireland, Wales, London)
Localism Act 2011
local powers can do anything unless forbidden by law
Monarchical
Queen is head of state; hereditary principle
Subordonate to legislature
UK gov system is based on parliamentary sovereignty
Representative parliamentary system
different political parties can contribute to law-making
Parliamentary accountability
gov is accountable to parliam
Judicial review
gov is accountable to judiciary
Liberal idealism
equality, non-discrimination, fair and impartial judicial procedures
R v AG (2006)
no constitutional principle which prohibits parliam altering the constitution
R v SofS of Foreign and Commonwealth Affairs (2003)
court has no jurisdiction to set aside any provision of Act of Parliament due to being unlawful, save in circumstances set out in ECA 1972
Sources of constitutional law
(1) common law (2) acts of parliam (3) EU law (4) ECHR (5) law and custom of parliam
R v SofS for the Environment, Transport and the Regions (2001)
courts identify meaning of statutes in context to ascertain parliam’s intention
Thoburn (2003)
Laws LJ: constitutional statutes - those conditioning legal relationship btw citizen and state; or enlarge/diminish scope of fundamental const rights; i.e. (1) Magna Carta; (2) Bill of Rights 1689; (3) Union with Scotland Act; (4) Representation of the People Acts; (5) Human Rights Act 1998; (6) Scotland Act; (7) Gov of Wales Act; (8) European Communities Act 1972 - EU law prevail over UK law
EU law
incorporated by ss 2 and 3 ECA 1972; s 18 - superior to UK law subject to will of parliam
The law and custom of parliam
made up of practice and precedents (documentary records of parliam; journals of HoC and HoL; and Acts in art.9 Bill of Rights 1689)
Contitutional conventions (Dicey)
(1) Laws are enforceable, conventions - not; no remedies for breach
(2) Some conv are as important as law; obeyed as political rules
(3) conv are not legal rules cuz courts have no jurisdiction to enforce them
(4) conv has no legal effect in limiting legislative power of parliam
Contitutional conventions (JDB Mitchell)
(1) both conv and laws are based on precedent and can overlap; distinguishing is senseless
Contitutional conventions (Munro)
(1) conv and law - both rules operating in society; appear to be similar
(2) there should be two-class approach to conv
Contitutional conventions (KC Wheare)
(1) conv - usage and conventions, 1st non-binding, 2nd - yes
Contitutional conventions (Brazier)
conv - forms of political behaviour regarded as binding; distinguishable from non-binding
Royal assent
Law: necessity of Royal Assent for bill to become AoP
Conv: Q will give assent under Parliam Acts 1911 and 1949
Appointment of PM
Law: Q has unlimited power to chose from
Conv: Usually chooses leader of political party with majority of seats in HoC
Hung parliam
Convs: (1) PM can continue office (2) If can’t leader of opposition is appointed (3) no royal involv inter-party negotiations for gov
Appointment of ministers
Law: only 95 ministers can be appointed from HoC (HoC Act 1975)
Conv: (1) Q appoints minister upon PM’s advice (2) ministers are individually responsible to parliam
Cabinet
Committee of senior ministers, responsible for controlling gov policy
conv: collective Cabinet responsibility - Cabinet do not voice dissent on gov policy once a decision is taken
Liversidge (1942)
(1) courts may take conv into account and give opinion as to their existence and extent; (2) courts stand btw citizen and attempt to encroach his liberty
Test for existence of conv
Sir Ivor Jennings: asking (1) what are the precedents? (2) do actors in the precedents believe that they are bound by the rule? (3) is there a good reason for this rule
Supported in Reference re Amendment to the Constitution of Canda (1982)
Madzimbamuto (1969)
conv have no legal effect to limit legislative supremacy of parliam
Manuel v AG (1982)
conv cannot be a part of common law in the same way as customs are
Rule of law (Dicey)
meaning: (1) predominance of law over discretionary prerogative power (2) everyone is equally subject to law (3) principles of UK const law come from ordinary law defining rights and obligations of individual and state
Rimmington (2006)
Lord Bingham: conduct forbidden by law should be clearly indicated; law does not work backwards
Sharma (2007)
Lord Bingham: rule of law requires that criminal law applies alike
Rule of law (Marxist’s view)
tool used by ruling class to promote its interest and guarantee dominant position
Rule of law (Jenning)
(1) state must be regulated by law (2) implicit separation of powers (3) clear and general rules applied and interpreted by courts (4) equality and liberty are important
Rule of law (Raz)
any political ideal to be realised in legal terms
Rule of law (Lord Bingham)
Principles of rule of law: (1) accessible, intelligible, clear and predictable; (2) application of law prevails exercise of discretion (3) protection of fundamental human rights (4) reasonable exercise of conferred powers in good faith (5) fair procedures (7) compliance with international law
Stroud (1952)
Lord Goddar: public bodies exercising duties must act in accordance with statute
Congreve (1976)
Lord Denning: Courts exercise independent jurisdiction to correct abuse of power by the executive,
R v Immigration Appeal Tribunal (2005)
Lord Philips MR: common law rules governing access to judicial system and judicial review form cornerstone of rule of law
Matthews (2003)
Lord Hoffmann: (1) civil rights must be determined by independent and impartial judicial system; (2) executive must never effectively decide a case
Constitutional principle of rule of law
s 1 Constitutional Reform Act 2005
SofS for Home Department v Rehman (2003)
Lord Hoffmann: (1) judicial non-intervention in the process of executive decision-making;
(2) what is conducive for public good is a matter for the executive discretion of SofS
Secretary of State
Cabinet minister in charge of a gov department
R v Director of the Serious Fraud Office (2009)
national security and other public considerations can outweigh the rule of law
Privileges and immunities ex.
art. 9 Bill of Rights 1689 - absolute immunity for MPs for defamation during parliam proceedings
Trade Union and Labour Relations Act 1992 - some immunities for trade unions
Role of executive within rule of law
(1) enacting legislation and decision making (2) evaluating and deciding upon appropriate measures
Role of judiciary within rule of law
A v SofS for the Home Department (2005):
(1) supervising executive’s adherence to ECHR; (2) giving latitude to executive; (3)intervening in case of breach of ECHR
Shaw v DPP (1962)
creating offence of conspiracy to corrupt public morals; courts have duty to protect safety, order and moral welfare of the state
Entick (1765)
Executive can do nothing without legal authority
M v Home Office (1993)
Lord Templeman: Judiciary enforces law against individuals, institutions and executive; parliam makes laws and executory carries the laws into effect
R v SofS for Home Department ex p Fire Brigades Union (1995)
Lord Mustill: courts ensure that powers are lawfully exercised by those to whom they were entrusted; executory, legislative and judges have largely exclusive domains of power
Separation of powers
No statutory definition; same persons should not form part of more than one of gov organs and should independently act as check against the others (Lock and then Montesquieu)
Legislative function
(1) drafting, making, publication, amendment of laws; (2) consists of monarch, HoL, HoC
Executive function
(1) enforcing law through formulation of policy, discretionary decision making and action (2) consists of monarch, PM, Cabinet, SofSs, ministers of the Crown, departments of state, non-departmental public bodies, devolved administrative organisations, local authorities, police and armed forces
Judicial function
(1)interpretation and application of law, resolving disputes, providing remedies, determining punishment (2) consists of all the judges who preside in the lower or senior courts and tribunals
R v SofS for the Home Department (2003)
Lord Steyn: (1) separation of power is a strong principle of UK gov system, but UK const has never embraced a rigid doctrine of separation of powers; (2) decision to punish with imprisonment should be made by court (importance for rule of law and separation of powers)
s 2 House of Commons Act 1975
no more than 95 holders of ministerial offices can sit and vote in HoC
Constitutional Reform Act 2005
(1) duty on gov ministers to uphold independence of judiciary (2) judicial functions of the Lord Chancellor were transferred to the President of Courts of England and Wales; the executive - to SofS for Justice who heads the Ministry of Justice (3) established Supreme Court of UK (4) selection commission appoints judges
s 10 HRA 1998
ministers of the Crown can make remedial orders amending legislations incompatible with human rights
Primary legislation
Acts of Parliam creating powers for executive to somehow make laws
Ex of lack of rigid separation of powers in UK
Monarch - head of executive, legislative and judicial
Privy Council & Cabinet - contain members of each organ of gov, each power (as above)
Ex of partial separation of powers in UK
Legislature - judiciary + executive (limited statute)
Executive - under supervision of legislature and judiciary
Judiciary - independent but subject to Parliam sovereignty
Bagehot
close fusion of executive and legislature in UK what makes gov works better
Amery
executive and legislature have different and distinct functions
Lord Hailsham
UK gov system - an elective dictatorship; parliam has absolute and unlimited legislative powers
Dismissal of judges
can be removed by permission of both HoL and HoC in a petition to monarch when they do not behave well
Civil Procedure Rule Committee
non-dep public body which makes rules for Civil Division of the Court of Appeal, the High Court and country courts; executive body but largely staffed with judiciary and legal professionals
Sentencing Council for England and Wales
independent, non-del public body of Ministry of Justice; promotes greater transparency and consistency in sentencing and maintaining independence of judiciary; issues guidelines to sentencing; again executive but many legal professionals
sub judice rule
what is under judicial consideration cannot be in public discussion; judges are not accountable to parliam; parliam may only legislate to reverse the effect of judicial decision
Duport Steels Ltd (1980)
British const is firmly based on separation of powers in that parliam makes laws and judiciary interpret them
R v SofS for Foreign and Commonwealth Affairs (2007)
Executive can make decisions where it has access to special info or expertise where necessary accountability to legislature; judiciary make sure that principle of proportionality and human rights are obeyed
