Week Two

Question 1

What are some facts about constitutions?

Answer 1

Constitutions are not contained in a single document.

Even written constitutions are just a starting point.

Fundamental principles are often expressed in vague language.

Question 2

What does it mean by the sources of the constitution?

Answer 2

Sources are where we find the rules and principles of a constitution

Question 3

What are the main sources of the UK Constitution?

Answer 3

Legislation (Acts of Parliament)

Constitutional Conventions

Judge-Made Law (Common Law)

International Law

Question 4

How to identify constitutional legislation?

Answer 4

If it concerns a constitutional principle such as Organising and allocating powers to institutions of government

Question 5

What is the nature of constitutional legislation?

Answer 5

Although constitutional in nature, these legislations have the same value as any other legislation.

Question 6

What is AV Dicey’s view on Constitutional Legislation?

Answer 6

That there is no hierarchy between constitutional and ordinary statutes

Question 7

What is Laws LJ’s View on constitutional legislation?

Answer 7

He suggests a hierarchy exists between ‘ordinary’ and ‘constitutional’ statutes

Question 8

What is Implied Repeal?

Answer 8

Typically, more recent laws prevail over older ones, i.e new legislation that contradicts older statutes can impliedly repeal them

Question 9

What does Law LJ argue regarding implied repeal?

Answer 9

That it should not apply to constitutional statutes

Question 10

What is a constitutional convention as defined by AV DIcey (1885)?

Answer 10

Conventions are not laws as they are not enforced by courts but regulate the conduct of sovereign power.

Question 11

What is a constitutional convention as defined by Adam Tomkins (2003)?

Answer 11

A non-legal but binding rule of constitutional behaviour.

Question 12

What are some key characteristics of a constitutional convention?

Answer 12

Non-legal (political) and not enforceable by courts.

Distinction between enforcement and recognition.

Question 13

Are Constitutional conventions binding?

Answer 13

Binding due to political consequences, not judicial sanctions.

I.e politically binding not legally

Question 14

How to identify constitutional conventions?

Answer 14

Three-pronged test for conventions (Jennings Test):

Precedent

Sense of Obligation

Reason

Question 15

What is precedent within a constitutional convention?

Answer 15

This refers to the historical practice of the convention. For a rule to be considered a constitutional convention, it must have been followed consistently over time. This historical continuity helps establish the practice as a norm.

Question 16

What is a sense of obligation in regard to constitutional conventions?

Answer 16

This element emphasizes the psychological aspect of conventions. The actors involved (e.g., government officials, political parties) must feel a duty or obligation to follow the practice. It’s not just about what has been done in the past, but also about the belief that it should continue to be done.

Question 17

What is the reason when identifying constitutional conventions using the three-pronged test?

Answer 17

There must be a logical or functional reason for the convention. This reason often relates to the effective operation of the constitution or the political system. For example, a convention might exist to ensure a balance of power, to protect democratic principles, or to maintain the integrity of governmental processes.

Question 18

What type of constitutionalism would constitutional conventions come under?

Answer 18

They are political in nature as they are not enforceable in a court

Question 19

What is judicial interpretation?

Answer 19

Judges interpret laws, which can change their meanings

Question 20

What are some aspects of common law?

Answer 20

Judges can create new law and principles through:

Good administration principles developed through judicial review.

Ensuring processes are fair, reasonable, and rational.

Establishing common law constitutional principles, e.g., the rule of law.

Not binding as they can be overridden by statutes.

Question 21

What are UK treaties and how are they implemented domestically?

Answer 21

UK treaties are agreements with other states that are binding in international law. They often require domestic legislation to be implemented

Question 22

How was the European Convention on Human Rights (ECHR) implemented in the UK?

Answer 22

The ECHR was implemented domestically in the UK via the Human Rights Act (HRA)

Question 23

How should national laws conform to treaties in the absence of domestic legislation?

Answer 23

Even without domestic legislation, national laws should conform to treaties where possible.

Question 24

How did UK courts use the ECHR before the Human Rights Act (HRA) was enacted?

Answer 24

Prior to the HRA enactment, UK courts used the ECHR as an interpretative aid.

Question 25

How are international treaties usually given effect in domestic law?

Answer 25

International treaties are usually given effect in domestic law through legislation.

Question 26

What should happen when international treaties are not enacted into domestic law?

Answer 26

When not enacted, domestic law should align with international treaties where possible.