1
Q
What’s legality?
A
Those who exercise exec power can identify source of power to govern, i.e. AoP, common law, convention, prerogative, etc.
2
Q
What’s legitimacy?
A
Those who govern make an implicit/express claim as to why their powers to govern ought to be accepted, and such claim must be accepted by most of the people most of the time.
3
Q
What do legal constitutionalists believe?
A
Prefer prominent role for law, legal processes, and judges in regulating const.
4
Q
What do political constitutionalists believe?
A
Prefer prominent roles for politicians and political process -> believe power of making law is and should be legitimised by Parliament.
5
Q
What did Laws LJ in ex p Witham say about legal constitutionalism?
A
Though Parli has power to interfere with common law rights (i.e. those logically prior to Parliament) due to Ps, courts will only permit it if done via clear words in AoP.
6
Q
Courts and democracy
What did Jowell say about legal constitutionalism?
A
Whether supreme law is the common law or a written constitution, the courts should be democracy’s referees.
7
Q
Judge’s backgrounds
What did Griffith say about political constitutionalism?
A
Judge’s not neutral/guardians of individual liberty against the state -> largely due to upper-class backgrounds
8
Q
What did Tomkins say about political constitutionalism?
A
Politics the vehicle to hold gov accountable -> it’s democratic and can stop govs from abusing authority.
Judges never as democratically legitimate as politicians.
9
Q
What was similar about Miller 1 and 2?
A
They were concerned with the exercise of a prerogative power;
The court looked to the consequences of exercising the PP.
10
Q
Two-fold implication of Miller 1?
A
- Made constitutional reminder courts’ occasionally offer that AoP only source that can change domestic law
1.1 In that, recognised EU law an independent and overriding source of domestic law – brings into Q entire notion of Ps.
1.2 Then returned to Dicey’s Ps principles.
- Symbolises fact that courts’ no longer shying away from reviewing exercise of exec power and highlights growing remit of authority for them to review Parli’s power.
11
Q
Dicey - three things
What is Ps?
A
- Crown-in-Parliament free to enact legislation on any area it chooses, and AoPs take precedent over other legislation
- Parliament can’t bind its successors – whatever CiP enacts today can amend or repeal anything enacted before, but can’t bind a future Parliament.
- No other institution, no court, no exec body, no authority, can undo or repeal Parliamentary legislation – only Parli can authorise it.
12
Q
Parli interfering with rights
What did Lady Hale in Jackson say?
A
Courts won’t hold Parli to have interfered with fundamental rights unless they made their intention explicit
13
Q
Democracy of judiciary
Why was Goldsworthy against the courts interfering with Ps?
A
Because the democratic nature of the judiciary not supported by the idea of majoritarianism.
14
Q
What did Weber argue about why Ps is accepted?
A
Authority is conferred from below
15
Q
What was Dicey’s distinction between law and convention?
A
Distinction between const. conventions and laws ‘in the strictest sense’
Strictest sense = regardless of its ‘source’, they’re enforced by courts.
Other rules = conventions, understandings, habits, practices -> aren’t laws because not regulated by courts.
16
Q
What two things did Jennings say about conventions?
A
- Practice of conventions alone isn’t enough, it must be normative.
- Conventions accord with the prevailing political philosophy.
17
Q
What did Barber say about conventions?
A
They’re not separate categories but a spectrum of rules - become laws over time due to increased formalisation.
18
Q
What did Dicey think would happen if a convention was broken or ignored?
A
Conventions can’t be reviewed by courts but failing to follow a convention would result in legal consequences
e.g. if Parli weren’t to meet for two years, contrary to the convention they meet annually, taxes couldn’t be collected so every collector would expose themselves to legal action.
19
Q
What did Jennings think would happen if conventions were ignored?
A
Plenty of examples where a breach of convention wouldn’t = breach in law.
20
Q
What did Munro argue Dicey meant about conventions?
A
Argued Dicey was supposed to mean that conventions aren’t enforced or recognised as legal rules by the courts, not that they’re not recognised whatsoever by the courts.
21
Q
Two kinds
What distinction did Taylor make about conventions?
A
Foundational and regulatory types.
RA and that monarch exercises PP on advice of ministers = foundational;
Sewel convention and ministerial responsibility = regulatory.
I’d develop argument to be one of foundational, regulatory, and behavioural.
22
Q
When was the last time RA was refused?
A
1707
23
Q
What did Dicey believe about the gov exercising Parli’s power?
A
That gov exercises Parli’s power but Parli performs political checks on efficacy of political performance.
24
Q
What is the Sewel Convention?
A
Westminster Parliament won’t normally legislate on devolved matters without consent of the devolved legislature.
Enshrined into the Scotland Act 1998, as amended by the Scotland Act 2016.
25
What did Lord Greene, Carltona v Works Commissioners say about ministers?
Decisions made by officials are the decision of the minister, and the minister is who’s responsible before Parliament.
26
In Miller 2, what was Lady Hale and Lord Reed's view on the Queen's obligation under convention to accept Bojo's advice?
Expressed no view on whether the Queen was obliged by convention or not to accept Johnson’s advice to prorogue Parli.
27
What did the UKSC say in Miller 1 about conventions?
Court can recognise the operation of a political convention in the context of deciding a legal question but can’t give legal rulings on its operation or scope because those are matters for politics.
28
What's a modern const?
Big-C Constitutions’ - created from const. moment, often during political flux.
Consists of a constitutive power binding itself to avoid dysregulation and going ‘astray’ – i.e. avoids racism & hyper-nationalism.
29
What's an older view on the const?
‘Small-C Constitutions’ – constitutions develop organically over time.
E.g. Civil Rights Act – women/minorities have rights against discrimination.
Conventions – normative culturable habits that constitutional subjects do – i.e. royal assent
30
The four sources of the UK const?
AoP
Convention
Common law
Intl. law
31
# In theory vs reality
What did King say about written consts?
Constitutions might in principle be written down, but in practice, never are.
Written docs called ‘Constitutions’ exist, but they’re never extensive enough to cover everything
32
What's the main reason the UK hasn't adopted a codified const?
Codified consts. usually emerge out of revolution or independence
But arguably UK hasn’t experienced significant revolution since 18th century.
Even in eras where a const. could've been adopted, e.g. suffragette movement in 1930s, existing govs able to deal with unrest/avoid revolution through gradual/incremental changes.
33
Three praises of UK's const?
1. Extreme flexibility - no formal/special process for amending const. systems -> enables practical problems to be resolved a lot quicker and individual reforms/changes made.
2. Suggests success of Westminster Parli
3. It's very 'British'
34
Why is flexibility of uncodified const. a good thing?
Fundamental changes via AoP (fairly quick process) and done by elected Parliamentarians (supports notions of majoritarianism in democracy).
35
What two things did Blackburn/HofC Const. Reform SC say about the const's flexibility?
1. Flexibility easily manipulated by govs of their time for own political agenda.
E.g. Blair gov introduced major const. changes via devolution that arguably created even more uncertainty than already existed and actually reduced flexibility.
2. Codified would improve transparency –> key idea of RofL.
Unify often unprincipled and incohesive common law judgements, identify what rules and institutions govern those who exercise exec functions and what the people must abide by.
36
Two key reasons why convention of ministerial accountability fails?
1. Blurred distinction between leg and exec
2. Limited resources
37
Core reason for exec's existence?
Protect individual rights and liberties
38
# Scrutiny of Parli
Why is Ps a consequence of an uncodified const?
No court exists which enables proper review into gov’s const decisions – results in seemingly unfettered Parli power.
39
What is a potential risk to the judiciary if const was codified?
It'd be politicised – they’d provide judgements on constitutionality of gov. legislation despite being unelected.
## Footnote
Criticisms obsolete considering our current PM was unelected, as is our current Foreign Sec.
40
Why might a codified const. improve scrutiny?
Would create a constitutional court – offers alt. method of accountability and scrutiny and aims uphold idea of SoP.
Lord Hope, Jackson – courts have a role in defining limits of Ps.
## Footnote
E.g. the Supreme Court in USA is reserved for dealing with exclusively const. issues
41
What type of principle is the SoP?
Normative - makes claims about what should be
42
What did Tomkins argue about the SoP concept?
Traditional tripartite separation not reflective of reality - 'SoP' should be used to consider balance/separation between Parli and Crown (Crown-in-Parliament)
43
# Concerned with Crown immunity
What did the HofL hold in M v Home Office?
Home Sec held in contempt of court -> removed asylum seeker before JR proceedings finished.
Crown usually immune from injunctions.
44
# About court's role in SoP?
What did the HofL say in ex p Fire Brigades Union?
1. Courts act as a ‘check and balance’ upon executive to ensure execution of laws in line with fairness intended by Parli.
1. But courts only do so if Parli’s ‘checks and balances’ on Executive fail – courts fill the vacuum.
45
# About SoP
What did Lord Bingham in A v Secretary of State for the Home Dept say?
Political questions are meant to be solved by Parli and executive; legal questions by the courts
46
What was the issue and judgement in ex p Anderson?
Concerned Home Sec's power to determine sentence lengths for murderers.
Incompatible with Art. 6 of HRA – Home Sec stepped into legislative role.
47
What did Lord Diplock in Duport Steels v Sirs say about the SoP?
Parliament makes the laws, the judiciary interprets them
48
What was the judgement in Miller 1?
UKSC held Minister can usually use PP re-entering/exiting intl. treaties – but exiting EU would have significant const. change due to fact EU law has been ratified into domestic law.
49
What did Lord Steyn in Jackson say about Ps and SoP?
Ps is the general principle of our constitution.
However, if there was ever an attempt to abolish JR/ordinary role of courts, the HofL would have to consider whether this is a constitutional fundamental that even a sovereign Parliament acting on behalf of the HofC can’t abolish.
50
What did Dahrendorf say about the SoP?
SoP is a concept, not a fact.
51
Two rationales behind SoP?
1. Concerned with legality/liberty
2. Concerned with institutional efficiency.
52
Why did Barendt think UK reluctant to recognise SoP?
It risks undermining Ps because it’s a constraint on legislative supremacy.
53
Example of blurred distinction between judiciary and legislature?
Until 2009, judges with peerages could vote on HofL’s legislative work -> two did during the passing of the Hunting Bill, though controversial.
But in Jackson, Lords Scott and Hoffmann weren’t part of bench – would’ve breached Art. 6 ECHR which prohibits a person who participated in legislative process from adjudicating on issues under that legislation.
54
What three things did the Const. Reform Act 2005 change?
1. Reformed role of LC
2. Created UKSC
3. Created JAC
55
What was the Lord Chancellor's role pre and post-2005?
Pre-2005 - head of judiciary, a Cabinet minister and a judge in HofL.
Post-2005 - removed the Lord Chancellor as head of the judiciary and appointed the role to the Lord/Lady Chief Justice.
56
# Related to SoP
What did Bogdanor say about the redistribution of power?
There’s been an achievement in const. reform by redistributing power, but it’s redistributed power between the elites -> downwards to local politicians/mayors, sideways to life peers in the HofL and sideways to the judiciary.
56
# SoP
What did Hazell say about 2005 reforms re judicial independence?
2005 reforms led to greater judicial independence.
57
What two things did Dicey say about Ps?
1. Parliament has the right to make or unmake any law whatever – no legal limitations on the power of the Parliament to enact a law (positive definition).
1. Main duty of the judiciary is to precisely apply the AoPs
58
# Three-fold
What did Dicey say about the RofL?
1. Law is set of rules, and these rules are general standards that apply to all equally -> that’s the essence of law.
1. However, sometimes, Parli uses its power to give broad power to officials.
1. We appeal to our liberties to convince Parli not to pass law to infringe our liberties -> the lesser law we have, the better it is.
59
# Two things
What did Montesquieu say about the SoP?
1. Key to political liberty lies in separation of legislative, executive and judicial power.
1. Must check on each other to ensure not abused.
60
# Three-fold
What did Lord Reid say in Lardner-Burke about the judiciary's attitude towards Ps/AoPs?
1. May be unconstitutional for Parli to do certain things, but that doesn’t mean that it’s beyond their power to do such things.
1. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid.
1. The judiciary doesn’t have any authority to second-guess the legitimacy of Acts of Parliament
61
# SoP
What did Locke say?
Arguably first scholar to recognise beginning of formal institutional SoP between different functions of gov.
Proposed we give portion of our rights collectively to gov to get balance of order and liberty, but to ensure balance, the gov must be institutionally divided between leg and exec.
62
What did Blackstone say about the idea of checks and balances?
True excellence of English gov is that all parts form a mutual check upon each other.
63
# Two types of thought
What did Bagehot say about the British const?
Two obsolete doctrines dominate English const. thought:
1. Dignified – how we want it to be presented to the world.
2. Efficient – modern and simple because British const. isn’t based on SoP or balance in gov.
The efficient secret of the const. is the almost complete fusion of exec and leg powers, particularly in Cabinet.
64
Three roles of the exec in Parli?
1. No separation between legislature and executive in parliamentary government.
2. Role of UK Parliament is reactive – scrutinises and approves proposals.
3. Some limited legal constraints – i.e. limit on no. of MPs that can be ministers.
S.1 HofC Disqualification Act 1975 – some civil servants can’t be MPs.
65
What phrase did Lord Hailsham term and what's it meaning?
‘Elective dictatorship’:
Once gov has majority in HofC, there’s no limitation on what they can achieve.
Only real limitation is what backbenchers categorically won’t vote for – Lords can’t do anything about it.
66
How do the Parliament Acts 1911 and 1949 support the idea of elective dictatorship?
1949 Act amended 1911 to declare that if HofL delayed enactment of legislation for 1yr+, a Bill could become an AoP without being passed in the HofL.
67
What was the issue in Jackson?
Whether Parli’s passing of the Hunting Act 2004, without the assent of the HofL, was lawful.
68
What was the HofL's judgement in Jackson?
Dismissed appeal and held the 1911 Act a restriction on legislative power to HofL by creating new way to enact primary leg.
69
# Theory v reality
What was the consequence of Jackson?
In reality, it upheld blurred distinction between exec and leg, and arguably concentrated exec and leg power further into just one body i.e. HofC;
In theory, was the first demonstration of judicial activism against Ps and first time that courts acknowledged that idea of Ps may not be unequivocally absolute.
70
What two justifications did the Dept. of Const Affairs provide for reason behind UKSC?
1. HofL decisions not always, in practice, purely decisions of Appellate Committee - LC sat on Appellate & Judicial Committees.
2. HofL engaged with political issues regarding legislation it’d later adjudicate on.
71
# SoP
What did Lord Templeman in M v Home Office say?
Judges enforce the law against the Crown as executive and against the individuals who represent the Crown.
72
# Seven key principles
Bingham's definition of the RoL?
1. Accessible – i.e. clear and predictable;
2. Qs of law should be resolved by its application not discretion;
3. Law should apply to everyone equally;
4. Ministers must exercise powers fairly and not ultra vires
5. Law must afford adequate protection of fundamental rights;
6. Disputes must be resolved without undue delay or prohibitive cost;
7. Adjudicative procedures offered by state should be fair;
8. Intl. treaties should be complied with in same manner.
73
What was Fuller's definition of the RoL?
Content rich - law must have inner morality to function properly.
74
What was Craig's definition of the RoL?
Content rich conception too closely affiliated with an ideological set of rights
75
What was Dworkin's definition of the RoL?
Content-free - RoL not only about form and procedures of law, but also about moral and political rights of citizens.
76
Raz's definition of the RoL?
Content-free - RoL has a negative role -> only there to mitigate harm, not establish rights
77
Three principle's of Dicey's RoL?
1. Punishment only for breaches of law as ruled by ordinary courts of the land;
2. Everyone equally subject to the law – ‘no man is above the law’;
3. Brit const. a result of the rights of the Brit people (common law) – Brit const. ‘pervaded’ by RoL.
78
# Six criticsms
What did Griffith's think of the RoL?
1. RoL not useful.
1. Confusing to follow.
1. Lacks clear definition.
1. Is an aspirational slogan.
1. Tough to feasibly implement it practically.
1. Rather than being useful principle, it’s used to maintain status quo.
79
Jenning's criticism of Dicey's RoL?
Disagrees that const. is the result of the ordinary law of the land – rather it’s the result of a const. code.
Argues the law is what makes the const, not the other way.
80
Three liberties Blackstone thought the const. protected?
Personal security;
Personal liberty;
Private property
81
Four criticisms of common law as a protector of RoL?
1. Only protects existing rights -> slow to evolve
2. Weak protection - can't uphold RoL where Act expressly limits rights recognised by CL
3. Rigid - only protects classical liberal 'freedom to' rights not new liberalist 'freedom from' rights
4. Inconsistent judgements in case law
82
Two cases that demonstrate the CL slow to evolve thus not best protector of RoL?
1. Entick v Carrington – vindicated Entick’s rights as they existed already.
2. Malone v MPC – judges didn’t vindicate Malone’s right as there wasn’t one to vindicate, despite clear immorality.
83
Statute that shows CL a weak protector of RoL?
Criminal Evidence (Witness Anonymity) Act 2008 abolishes right to confront your accuser.
84
Four examples of cases that show CL poor protector of RoL?
1. Inconsistency between Malone and Entick (morally speaking).
2. Liversidge v Anderson [1942] – HofL denied right to liberty -> defence regulations permitted detention without trial.
3. ex parte Hague [1991] – HofL held prisoner couldn’t rely on false imprisonment regarding condition of detention unless it resulted in injury – prisoners have no residual liberty against prison officers.
4. ex parte Brind – HofL held that where Parli confers broad powers on ministers and public authorities, there’s no presumption that Parli intended those powers to be exercised in accordance with ECHR.
85
In response to the legal aid budget being cut by 1/6, what did Lord Bingham say?
In HofL Const. Committee - denial of legal protection to the poor litigant is one enemy of the RoL.
86
Three cases of the judiciary interpreting legislation to align/contradict RoL?
1. Evans – upper Tribunal ordered disclosure, but AG issued certificate under s. 53 stating right to refuse disclosure.
UKSC ordered disclosure upon further appeal - Hughes – integral part of RoL [is] courts give effect to Parliamentary intention.
2. ex p Witham, Laws LJ – access to the courts a const. right – but it can be denied by the gov if it persuades Parli to pass legislation which specifically permits the exec to turn people away from the court door.
3. M v Home Office – the first occasion on which a gov minister had been found guilty of contempt of court. Decision underlines the point that nobody, not even a member of the executive, is above the law.
87
How is A v Sec of State for Home Dept an example of the courts ruling aligning with the RoL?
HofL concluded that s. 23 of the Anti-terrorism, Crime and Security Act 2001 was discriminatory and in breach of Arts. 5 and 14 of ECHR.
Quashed 2001 derogation order and issued declaration of incompatibility under s. 4 of HRA in respect of s. 23 of 2001 Act.
88
What case demonstrated that Parli can be averse to RoL principles and what happened in it?
Davis – trial judge granted anonymity order to victim, despite the right to confront your accuser a long-established principle in common law.
HofL held trial judge had no power to make anonymity order – infringed right.
Parliament responded with Criminal Evidence (Witness Anonymity) Act 2008 – permitted anonymity orders.
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Decks in class (7)
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