What is the primary source of constitutional law?
Acts of Parliament created by the “Queen in Parliament”
What happened in Stockdale v Hansard? What were the consequences?
Plaintiff sued the D for libel in respect to the contents of an official Parliamentary report.
Court refused to recognise a Parl resolution that publications were privileged and could not be used as evidence.
What is the Council of Civil Service Unions v Minister for Civil Service? What is it also known as? Why is it significant?
- the GCHQ case
- courts reviewed whether a minister’s prerogative power could prevent staff at GCHQ forming a union
- significant b/c the HoL decided that prerogative power was subject to judicial review
What happened in A and Others v Sec of State for the Home Department?
- suspected terrorists in Belmarsh challenged detention without charge or trial under EU law.
- the HoL felt the detention of the terrorists did not match the criteria requried for a derogation order, and quashed one isseud by Parl
- they therefore issued a declaration of incompatibility with the ECHR
From what point did EU law become part of UK consitutional law?
after the European Communities Act 1972
What primary legislation derives from EU?
treaties
What secondary legislation comes from the EU?
- regulations
- directives
- decisions
Describe regulations.
“having general application, binding in its entirety and directly applicable on all member states
Describe directives.
binding as to the result to be achieved, upon each
Member State to which it is addressed, but [leaving] to the national authorities
the choice of form and methods’.
Who are decisions addressed to?
specific member states, companies or individuals
What case demonstrates that ECJ decisions are binding?
R v Sec for Transport ex p Factortame (No 2)
What was Dicey’s view on conventions?
that they are descriptive rules of behaviour which are not binding in law
How did Jennings view conventions?
As binding rules of behaviour that are not nevertheless legally enforeceable
Who agreed with Jennings about conventions? What did they say?
Marshall & Moodie - conventions are binding on those who operate the constitution but not enforced by courts or Parliament’s presiding officers
What are the general characteristics of conventions?
- unwritten rules of political practice
- usually develop in an evolutionary way
- do not have a clear source in legislation or case law
What are the four main areas conventions relate to?
legislature, executive, judiciary, Commonwealth
What is the purpose of conventions?
- flexible means of informally developing the constitution
- define powers, regulate Crown’s authority and underpin the Cabinet system
- regulate relations between Commons and HoL
- regulate relations between Parl and other Commonwealth nations
- help to provide control and accountability of executive
What is Jenning’s test for identifying a convention?
1) What are the precedents?
2) Did the actors in the precedents believe they were bound by a rule?
3) Is there a reason for the rule?
What takes priority between a convention and a statute? According to what?
Madzimbamuto v Lardner-Burke. UK statute takes priority over UK conventions.
What form are the consequences of a breach of convention likely to take?
they are likely to be political consequences rather than legal ones.
What are customs?
rules of conduct recognised by the judiciary as having binding force
What four authors are regularly cited as non-legal but persuasive sources?
Bagehot, Dicey, Jennings and Erskine May
