Public law refresh session 1 Flashcards
What is stare decisis?
This is the doctrine of binding precedent- higher courts bind lower courts.
What is the special rule to prevent court of appeal being bound by predecessor courts of the equivalent rank?
The court of appeal can depart from its own decisions (Young v Bristol Aeroplane) Alongside that, the UK supreme court binds the court of appeal.
Or the Court of appeals previous decision was made ‘per incuriam’ (flawed)- this gives them scope to change their decision.
Alongside that, UK supreme court can use the 1966 practical statement to depart from their own previous decisions
What is statutory law?
1) primary legislation- i.e acts of Parliament- can override common law rules. It cannot be invalidated by the courts
2) secondary legislation- usually takes form of a statutory instrument or regulation- can be quashed if a court deems that it falls outside this authority
What are the different rules of statutory interpretation?
Main approach:
1) Literal- ordinary, plain and natural meaning
2) golden- to avoid unnatural or absurd outcomes
3) mischief- archaic- now subsumed within…
4) purposive- to achieve the underlying purpose of legislation; teleoological method
What are the linguistic presumptions?
These go down down to the nature of the language in a statute- 1)whether the set of terms form an open or closed list (eg finishing with ‘other similar objects’)
2) non-exhaustive list- only other objects to the ones stated are the ones that should be caught
3) Word is known by the company it keeps- interpretation of similar provisions with the same words assist with the interpretation.
Where are the sources of our constitutional ‘rules’
1) common law
2) Statute
3) constitutional conventions
What is the basic orthodox position of sovereignty?
1) Parliament is the supreme law making authority
2) Today’s parliament cannot bind future parliaments
3) No one can question the validity of an act of parliament.
However, could be argued that things like EU puts pressure on the operation of implied repeal.
What is the process of a bill becoming an act?
can start in either house- first, second readings then committee state, reporting state, third reading. They require HOC, HOL and monarch approval to become an act.
Exceptions- Parliament act procedure- if the House of Lords refuses to pass a bill, over a year, house of commons can ask the speaker to bypass the lords
What is Parliamentary Privalige
This gives MP’s and house of lords free speech- cannot be impeached or questioned in any court or place out of parliament.
how is the central government accountability?
1) the ministerial code
2) coventionally- Independent ministerial responsibility and Collective mininsterial responsibility
3) Through internal parlimentary mechanisms- eg select committees, PMQs
4) in the courts, through judicial review and HRA claims- in accordance with the prinicple of legality - “rule of law”
What is the seperation of powers?
Historically, the UK has had a ‘fused’ form of Seperation of Power
Continued fusion still evident between central executive (Govt) and Parliament.
However there was reforms in Constituional reform act 2005
Created UKSC
Judicial Appointments Commission
Role of Lord Chancellor simplified- now essentially policial
Head of judiciary is now the lord Cheif Justice
Lastly, the importance of having independent courts and tribunals- reflected in Artcle 6 ECHR
What is Prerogative power?
These are powers directed by government ministers or by the king on advice from the prime minister. These were powers the monarch would use but now is exercised on behalf of the government.
The courts can determine whethere a PP exists and the its scope.
The De Keyser principal- if a new statutory powers is introdcued on exactly the same grounds as an older PP- the Statutory power takes precedent.
Alongside that, GCHQ principal- possible to Judicially review the way in which PP have been exercised
