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UNI > Consti > Flashcards

Consti Flashcards

1
Q

entick v carrington

A

kings men trespassed on his land- wasn’t legal- gov must act within the law- absolute supremacy

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2
Q

ag v Fulham corp

A

needed to give poor people washhouses but instead made a commercial laundry- not within the power so illegal

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3
Q

liversidge v Anderson

A

during ww2 the Home Secretary had the power to arrest anyone- authority is too wide- powers should be justified and spelt out

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4
Q

R v IRC

A

a warrant was issued and a search carried out before the legality of the warrant was checked- delegated legislation- too wide power

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5
Q

shaw v dpp

A

found guilty of attempting to corrupt public morals even though that wasnt a crime- individuals should know where they stand in relation to the law

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6
Q

Burmah oil co

A

retroactive legislation- war damages act- didn’t get a pay out- no certainty of the law

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7
Q

re M

A

home sec failed to stop someone being deported who was sure to be tortured- all citizens are subject to the jurisdiction of the ordinary courts- held in contempt of court

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8
Q

partygate

A

compare with re M- parliamentary privilege

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9
Q

r on the application of miller

A
  • prerogative powers- “a power recognised by the common law and exercised by the crown (gov and king)
  • PM asked queen to prorogue parliament- SC held it was a justiciable decision
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10
Q

BBC v Johns

A

no new prerogative powers can be established- the limits of obligations/restraints the executive can impose on citizens without statutory authority are incapable of extension

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11
Q

fixed term parliaments act 2011

A
  • dissolution put onto statutory footing
  • 5 year term max
  • an end to the prerogative power? NOPE replaced by dissolution and calling of parliament act 2022
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12
Q

prerogative powers examples

A
  • appointment and dismissal of ministers
  • power of mercy- Alan Turing
  • royal assent needed to make a bill a law
  • power to summon, dissolve and prorogue parliament
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13
Q

constitutional reform and governance act 2010

A

prerogative power of management of the civil service was put onto a statutory footing
- but reform never really happens

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14
Q

ag v de keysers royal hotel

A

if there is a statute and prerogative overlap the statute takes precedent

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15
Q

laker airways v dep for trade

A
  • 1970 civil aviation act- other airlines can apply for
    licenses to do UK/US flights- laker airways got one and
    then gov withdrew landing rights
    -Held- gov couldn’t use prerogative powers to
    withdraw landing rights- contradicted aims of
    1970 act- was ultra vires
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16
Q

GCHQ case

A

Where a persons ‘private rights or legitimate expectations’
are affected by the execution of prerogative power then that
should be amenable to review

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17
Q

independent review of admin law

A

there should be caution in any attempts to limit the judiciary’s powers

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18
Q

montesquieu

A

SOP intended to guard and preserve liberty
- major institutions should be divided and dependent on each other so one power will not be able to exceed that of the others

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19
Q

exec, judiciary, legislature

A
  • exec- power to enforce law- cabinet/police
  • judiciary- power to adjudicate- SC
  • leg- power to make law- parliament
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20
Q

wade

A

pure separation- no overlap of personnel, function or interference

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21
Q

E and L personnel overlap

A

MPs must be members of HOL OR HOC, PM must be member of HOC
- lord halisham- elective dictatorship

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22
Q

E and L function overlap

A
  • secondary/delegated legislation- laws and regs made by gov depts (e) under the authority of an act of P (L)- eg lockdown regs
  • Henry 8th clause- a clause that allows E to repeal/amend a statute without scrutiny from L
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23
Q

e and l controls

A
  • parliament act 1949- reduced power of HoL can only delay the passing of bills by a year, not veto them
  • vote of no confidence- hoc can call for a vonc in gov- but not a great control because if gov has a large majority it is unlikely to lose
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24
Q

e and J- personnel

A

AG- member of both- Dominic Cummings driving to durham- ag said he did nothing wrong- favouritism?

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25
Q

e and j function

A

judges as chairmen of tribunals of inquiry- phone hacking- issues, judges may be scared to criticise the gov

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26
Q

e and j- controls

A

not really any, GCHQ case- sets out the test for which areas of E and judicable and where they need to hold back

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27
Q

l and j- personnel

A

HOL used to be the highest domestic court but the SC was made to remedy this

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28
Q

L AND J CONTROLS

A
  • sub judice resolution
  • ups cant discuss matters awaiting adjudication
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29
Q

l and j functions

A

parliamentary privilege
- judges as lawmakers- Shaw v DPP- convicted of conspiracy to corrupt public morals despite there not being a statutory offence
- p has the power to regulate its own internal composition and structure- art 9 bill of rights

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30
Q

e, l, j personnel and reform

A
  • personnel- king is head of all of them
  • reform- Lord chancellor used to be part of them all until Constitutional Reform Act 2005- also means LC and gov ministers aren’t allowed to influence judicial decisions
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31
Q

1 body that monitors and enforces the provisions of the ECHR

A
  • European court of human rights
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32
Q

ECHR who it applies to and admissibility criteria

A
  • anyone within the territory of the state which has ratified the echr- not dependent on nationality or status- article 1
  • article 35- admissibility criteria
  • all domestic remedies have been exhausted
  • within 6 months from final decision date
  • won’t deal with something anonymous
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33
Q

airey v ireland

A
  • victim of domestic violence
  • couldn’t afford a divorce lawyer so art 6 infringed
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34
Q

Tyler v uk

A
  • birched at school for assaulting a pupil
  • inhuman and degrading punishment in breach of art 3
  • living instrument- breached because of current circs
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35
Q

types and classification of echr rights

A
  • unconditional- no conditions- right to life
  • conditional- certain defined limitations- right to liberty
  • qualified
  • is there an infringement of the right
  • is the infringement prescribed by law
  • is the restriction imposed for one of the specified aims in the article
  • is the restriction necessary in a democratic society
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36
Q

handyside v uk

A

little red schoolbook
might deprave and corrupt some readers
prosecuted
- no violation of the right to freedom of expression because it wasnt necessary

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37
Q

sunday times v uk

A

test for necessary
- was the interference PROPORTIONATE to the legitimate aim pursued
- did the interference correspond to a PRESSING SOCIAL NEED
- were the reasons given by the national authority “RELEVANT AND SUFFICIENT”

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38
Q

vertical and horizontal effect

A

vertical- binds states- individual rely against the state
horizontal- doesnt bind individuals directly so doesn’t have horizontal effect- but the state may be liable for not protecting an individual from the actions of another that infringe his rights- A v UK- a beaten by step father who relied on the defence of reasonable parental chastisement- art 3 was breached

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39
Q

chahal v uk

A

echr can impose pos obligations on states to protect human rights- uk had duty not to deport Sikh nationalist

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40
Q

can derogate from the treaty in times of war

A
  • brogan v uk- NI terrorism- detained for questioning for 4-7 days- violated ECHR
  • Brannigan v uk- same circs but the derogation was justified
  • art 15- can derogate
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41
Q

processions where to look in statute

A

s12
s11 for notice requirements

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42
Q

Flockhart v robinson

A

a procession is a body of persons moving along a route

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43
Q

assemblies statute

A

s16 POA- definition
s14

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44
Q

obstruction of highway statute

A

s137 highways act

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45
Q

hirst v cc West Yorkshire

A

defence of reasonable user- obstruction of highway- handing out fur is murder leaflets outside a fur shop

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46
Q

public order act s4/s4a/s5 and defence

A

s4- conduct with intent that violence follows
s4a- has to be intent to harass/cause someone fear- needs to be a victim
s5- using threatening words- doesnt need intent or a victim
defence
- hammond- has to be reasonable protest- his wasnt cuz it said stop homosexuality

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47
Q

r v Howell

A

breach of the peace definition
- harm is done or likely to be done to a
- person/property/
- or person is in fear
- through an assault, unlawful assembly or other disturbance

cant be charged with it- arrest power only

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48
Q

Laporte v cc gloustershire

A

focus of preventative action should be on these about to act disruptively not peaceful protesters

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49
Q

human rights application- ECHR- public order

A

art 10- freedom of speech
art 11- freedom of peaceful assembly
both qualified so
- right infringed
- for a legit aim
- prescribed by law
- necessary in a democratic society

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50
Q

HRA public order sections for infringement

A

police caused the infringement- s6 HRA
legislation caused the infringement- s3 HRA

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51
Q

rr v sec of state for work and pensions

A

courts have a duty to read legislation in a. way that makes it compatible with convention rights- this includes disregarding parts that dont comply

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52
Q

Mendoza

A

courts read the legislation as inclusive of people in a homosexual relationship to stop it from being incompatible with art 14

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53
Q

bellinger v bellinger

A
  • Post op transexual were married but because of legislation saying that marriage had to be between a man and a woman, it was void
  • Sought a declaration that said their marriage was valid but instead the courts sought a declaration of incompatibility for the legislation
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54
Q

belmarsh case

A
  • Detainees held at belmarsh waiting to be deported- they were thought to be terrorists- incompatible with art 5 ECHR- but Home secretary didn’t have to release them- the provision under which they were being held had the effect of discriminating between foreign nationals and nationals of the state so made a dec of incompat
  • Ground breaking ruling because it shows a willingness of the judiciary to check the powers of the executive in matters concerning national security
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55
Q

step 1 of a HRA question

A
  • consider if any convention rights are engaged
  • take each in turn and — explain using the facts why it might have been infringed, and if it is a qualified right go through the 4 stage test
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56
Q

step 2 of a HRA question

A

application of HRA
- does the infringement have its basis in some legislation?

  • if yes,
    s3 HRA- try and read the legislation compatibly with the convention right—- rr v sec of state for work and pensions and Mendoza case

if they cant do this- s4 HRA- declaration of incompatibility—- bellinger v bellinger and belmarsh case

  • if no,
    s6 HRA (has a public authority done something that is incompatible with the convention right?) so basically parliament can make primary or secondary legislation that is incompatible with HRA but no one else can- so if it is not legislation go to s6 and it says its illegal to do that
  • s7 HRA proceedings
  • s8 HRA remedies
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57
Q

what is a constitution?

A
  • written document that sets out the laws, rules and practices which identify and explain
  • the institutions of gov
  • the distribution of powers within those institutions
  • how those powers are exercised and controlled
  • the relationship between the institutions of gov and the citizens, including the provision of basic human rights and liberties
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58
Q

prescriptive constitution

A

written document- rigid/difficult to change/ entrenched- codified

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59
Q

descriptive const

A

no complete written doc where everything is in one place, flexible/easier to change/ no special procedure to deal with
- may have multiple sources- uncodified

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60
Q

rigid v flexible

A

rigid- difficult to change- entrenched

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61
Q

federal v unitary

A

federal- division of power between central (federal) gov and individual states/provinces/regions
unitary- central gov which retains control

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62
Q

parliamentary v presidential

A

parl- leg and executive functions are merged
pres- sep of leg and exec

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63
Q

monarchy v republic

A

monarchy- head of state is monarch
republic- head of states elected by parl or people

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64
Q

separation v fusion

A

sep- leg/exec/jud all separated- to avoid abuse of power
fusion- concentration of power in the hands of one of the institutions- dictatorship

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65
Q

how do consts develop?

A

defining moments
- achievement of independence- US const 1787
- imposition following military defeat- Germany 1949

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66
Q

does the uk have a constitution?- Ridley

A

Ridley- the dangerous case of the emperors clothes- the uk doesnt have a constitution

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67
Q

does the uk have a constitution?- lord Bolingbroke

A

by constitution we mean… that assemblage of laws, institutions and customs… that compose the general system
we have that

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68
Q

sources of uk consti and examples

A
  • statutes- bill of rights, Magna Carta, NI act
  • case law- courts must interpret legislation which may be unclear AND the lawmaking role of the courts extends beyond interpretation to judge made law- DPP v Shaw
  • prerogative powers- mercy, dec of war, proroguing of parliament
  • conventions- doctrine of individual ministerial responsibility, monarch will always give assent to bills of parliament
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69
Q

what type of consti does UK have?

A
  • uncodified
  • flexible
  • monarchy
  • unitary (devolution of powers but all still subject to Westminster parliament)
  • separation
  • parliamentary
  • descriptive
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70
Q

codified pros and cons

A

pros- certainty, accessibility, better guarantee of rights
cons- only clear if well drafted, difficult to change (gun laws America), can become outdated

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71
Q

uncodified pros/cons

A

pros- adaptive, flexible
cons- difficult to find/less clear/less public awareness

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72
Q

definition of a convention

A

Mill- the unwritten maxims (established principles) of the constitution

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73
Q

characteristics of a convention

A
  • not in writing
  • binding
  • can be difficult to determine their existence
  • statutes overrule conventions where there is conflict
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74
Q

jennings test (conventions)

A
  • is it possible to point to precedents?
  • did the actors in the precedents believe they were bound by a rule?
  • is there a reason for the rule?
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75
Q

re amendment to the constitution of Canada

A
  • statues overrule conventions
  • said there was a convention (Jennings test)
  • but because they’re not enforceable at law they didnt have to get provincial approval to amend the constit
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76
Q

examples of conventions

A
  • appointment of PM
  • by prerogative power the monarch appoints PM but by convention they choose the leader of the party that commands a majority in HoC
  • dissolution and calling of parliaments act 2022
  • by prerogative power the monarch dissolves parliament but by convention they act on the advice of PM
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77
Q

sewell convention

A

UK will not legislate for matters devolved to the devolved Govs without consent
- a convention that regulates parl proceedings

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78
Q

should conventions be written down?

A

yes- politicians would have a list of codified rules governing their behaviour so easy to spot a breach
no- would need to be constantly updated and would be difficult to draft

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79
Q

collective ministerial responsibility

A
  • gov is collectively accountable to parl for its actions- cabinet manual 2011
  • gov ministers must support decisions made by the cabinet- cm 2011

3 strands to the convention
- confidence principle- a gov can only remain in office for so long as it retains the confidence of HoC
- unanimity principle
- confidentiality principle- recognises that unanimity is a constitutional fiction but one that must be maintained

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80
Q

collective ministerial responsibility examples

A
  • BJ years- over 50 resignations on 5th July 2022
  • a lot resigned in disagreement with gov policy over Brexit
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81
Q

individual ministerial responsibility and egs

A
  • should take responsibility for
  • conduct in their public role as minister and for the actions of their department officials- Hancock resigning after breach of social distancing rules- kissing colleague
  • conduct in their private life- Jeremy pincher- groped 2 men in a club and resigned
  • all depends on whether or not they have support of PM- priti Patel didnt resign despite a breach
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82
Q

kings men trespassed on his land- wasn’t legal- gov must act within the law- absolute supremacy

A

entick v carrington

83
Q

needed to give poor people washhouses but instead made a commercial laundry- not within the power so illegal- ref to judicial review

A

ag v Fulham corp

84
Q

during ww2 the Home Secretary had the power to arrest anyone- authority is too wide- powers should be justified and spelt out

A

liversidge v Anderson

85
Q

a warrant was issued and a search carried out before the legality of the warrant was checked- delegated legislation- too wide power

A

R v IRC

86
Q

found guilty of attempting to corrupt public morals even though that wasnt a crime- individuals should know where they stand in relation to the law

A

shaw v dpp

87
Q

retroactive legislation- war damages act- didn’t get a pay out- no certainty of the law

A

Burmah oil co

88
Q

home sec failed to stop someone being deported who was sure to be tortured- all citizens are subject to the jurisdiction of the ordinary courts

A

re M

89
Q

compare with re M- parliamentary privilege

A

partygate

90
Q
  • prerogative powers- “a power recognised by the common law and exercised by the crown (gov and king)
  • PM asked queen to prorogue parliament- SC held it was a justiciable decision
A

r on the application of miller

91
Q

no new prerogative powers can be established- the limits of obligations/restraints the executive can impose on citizens without statutory authority are incapable of extension

A

BBC v Johns

92
Q
  • dissolution put onto statutory footing
  • 5 year term max
  • an end to the prerogative power? NOPE replaced by dissolution and calling of parliament act 2022
A

fixed term parliaments act 2011

93
Q
  • appointment and dismissal of ministers
  • power of mercy- Alan Turing
  • royal assent needed to make a bill a law
  • power to summon, dissolve and prorogue parliament
A

prerogative powers examples

94
Q

prerogative power of management of the civil service was put onto a statutory footing
- but reform never really happens

A

constitutional reform and governance act 2010

95
Q

if there is a statute and prerogative overlap the statute takes precedent

A

ag v de keysers royal hotel

96
Q
  • 1970 civil aviation act- other airlines can apply for
    licenses to do UK/US flights- laker airways got one and
    then gov withdrew landing rights
    -Held- gov couldn’t use prerogative powers to
    withdraw landing rights- contradicted aims of
    1970 act- was ultra vires
A

laker airways v dep for trade

97
Q

Where a persons ‘private rights or legitimate expectations’
are affected by the execution of prerogative power then that
should be amenable to review

A

GCHQ case

98
Q

there should be caution in any attempts to limit the judiciary’s powers

A

independent review of admin law

99
Q

SOP intended to guard and preserve liberty
- major institutions should be divided and dependent on each other so one power will not be able to exceed that of the others

A

montesquieu

100
Q
  • exec- power to enforce law- cabinet/police
  • judiciary- power to adjudicate- SC
  • leg- power to make law- parliament
A

exec, judiciary, legislature

101
Q

no overlap of personnel, function or interference

A

wade

102
Q

MPs must be members of HOL OR HOC, PM must be member of HOC
- lord halisham- elective dictatorship

A

E and L personnel overlap

103
Q
  • secondary/delegated legislation- laws and regs made by gov depts (e) under the authority of an act of P (L)- eg lockdown regs
  • Henry 8th clause- a clause that allows E to repeal/amend a statute without scrutiny from L
A

E and L function overlap

104
Q
  • parliament act 1949- reduced power of HoL can only delay the passing of bills by a year, not veto them
  • vote of no confidence- hoc can call for a vonc in gov- but not a great control because if gov has a large majority it is unlikely to lose
A

e and l controls

105
Q

AG- member of both- Dominic Cummings driving to durham- ag said he did nothing wrong- favouritism?

A

e and J- personnel

106
Q

judges as chairmen of tribunals of inquiry- phone hacking- issues, judges may be scared to criticise the gov

A

e and j function

107
Q

not really any, GCHQ case- sets out the test for which areas of E and judicable and where they need to hold back

A

e and j- controls

108
Q

HOL used to be the highest domestic court but the SC was made to remedy this

A

l and j- personnel

109
Q

parliamentary privilege
- judges as lawmakers- Shaw v DPP- convicted of conspiracy to corrupt public morals despite there not being a statutory offence
- p has the power to regulate its own internal composition and structure- art 9 bill of rights

A

l and j functions

110
Q
  • personnel- king is head of all of them
  • reform- Lord chancellor used to be part of them all until Constitutional Reform Act 2005- also means LC and gov ministers aren’t allowed to influence judicial decisions
A

e, l, j personnel and reform

111
Q
  • European Commission of human rights
  • European court of human rights
  • the committee of ministers
A

3 bodies that monitor and enforce the provisions of the ECHR

112
Q
  • anyone within the territory of the state which has ratified the echr- not dependent on nationality or status- article 1
  • article 35- admissibility criteria
  • all domestic remedies have been exhausted
  • within 6 months from final decision date
  • won’t deal with something anonymous
A

ECHR who it applies to and admissibility criteria

113
Q
  • victim of domestic violence
  • couldn’t afford a divorce lawyer so art 6 infringed
A

airey v ireland

114
Q
  • birched at school for assaulting a pupil
  • inhuman and degrading punishment in breach of art 3
  • living instrument- breached because of current circs
A

Tyler v uk

115
Q
  • unconditional- no conditions- right to life
  • conditional- certain defined limitations- right to liberty
  • qualified
  • is there an infringement of the right
  • is the infringement prescribed by law
  • is the restriction imposed for one of the specified aims in the article
  • is the restriction necessary in a democratic society
A

types and classification of echr rights

116
Q

little red schoolbook
might deprave and corrupt some readers
prosecuted
- no violation of the right to freedom of expression because it wasnt necessary

A

handyside v uk

117
Q

test for necessary
- was the interference PROPORTIONATE to the legitimate aim pursued
- did the interference correspond to a PRESSING SOCIAL NEED
- were the reasons given by the national authority “RELEVANT AND SUFFICIENT”

A

sunday times v uk

118
Q

vertical- binds states- individual rely against the state
horizontal- doesnt bind individuals directly so doesn’t have horizontal effect- but the state may be liable for not protecting an individual from the actions of another that infringe his rights- A v UK- a beaten by step father who relied on the defence of reasonable parental chastisement- art 3 was breached

A

vertical and horizontal effect

119
Q

echr can impose pos obligations on states to protect human rights- uk had duty not to deport Sikh nationalist

A

chahal v uk

120
Q
  • brogan v uk- NI terrorism- detained for questioning for 4-7 days- violated ECHR
  • Brannigan v uk- same circs but the derogation was justified
A

can derogate from the treaty in times of war

121
Q

s12
s11 for notice requirements

A

processions where to look in statute

122
Q

a procession is a body of persons moving along a route

A

Flockhart v robinson

123
Q

s16 POA- definition
s14

A

assemblies statute

124
Q

s137 highways act

A

obstruction of highway statute

125
Q

defence of reasonable user- obstruction of highway- handing out fur is murder leaflets outside a fur shop

A

hirst v cc West Yorkshire

126
Q

s4- conduct with intent that violence follows
s4a- has to be intent to harass/cause someone fear- needs to be a victim
s5- using threatening words- doesnt need intent or a victim
defence
- hammond- has to be reasonable protest- his wasnt cuz it said stop homosexuality

A

public order act s4/s4a/s5 and defence

127
Q

breach of the peace definition
- harm is done or likely to be done to a
- person/property/
- or person is in fear
- through an assault, unlawful assembly or other disturbance

cant be charged with it- arrest power only

A

r v Howell

128
Q

focus of preventative action should be on these about to act disruptively not peaceful protesters

A

Laporte v cc gloustershire

129
Q

art 10- freedom of speech
art 11- freedom of peaceful assembly
both qualified so
- right infringed
- for a legit aim
- prescribed by law
- necessary in a democratic society

A

human rights application- ECHR- public order

130
Q

police caused the infringement- s6 HRA
legislation caused the infringement- s3 HRA

A

HRA public order sections for infringement

131
Q

courts have a duty to read legislation in a. way that makes it compatible with convention rights- this includes disregarding parts that dont comply

A

rr v sec of state for work and pensions

132
Q

courts read the legislation as inclusive of people in a homosexual relationship to stop it from being incompatible with art 14

A

Mendoza

133
Q
  • Post op transexual were married but because of legislation saying that marriage had to be between a man and a woman, it was void
  • Sought a declaration that said their marriage was valid but instead the courts sought a declaration of incompatibility for the legislation
A

bellinger v bellinger

134
Q
  • Detainees held at belmarsh waiting to be deported- they were thought to be terrorists- incompatible with art 5 ECHR- but Home secretary didn’t have to release them- the provision under which they were being held had the effect of discriminating between foreign nationals and nationals of the state so made a dec of incompat
  • Ground breaking ruling because it shows a willingness of the judiciary to check the powers of the executive in matters concerning national security
A

belmarsh case

135
Q
  • consider if any convention rights are engaged
  • take each in turn and — explain using the facts why it might have been infringed, and if it is a qualified right go through the 4 stage test
A

step 1 of a HRA question

136
Q

application of HRA
- does the infringement have its basis in some legislation?

  • if yes,
    s3 HRA- try and read the legislation compatibly with the convention right—- rr v sec of state for work and pensions and Mendoza case

if they cant do this- s4 HRA- declaration of incompatibility—- bellinger v bellinger and belmarsh case

  • if no,
    s6 HRA (has a public authority done something that is incompatible with the convention right?) so basically parliament can make primary or secondary legislation that is incompatible with HRA but no one else can- so if it is not legislation go to s6 and it says its illegal to do that
  • s7 HRA proceedings
  • s8 HRA remedies
A

step 2 of a HRA question

137
Q
  • written document that sets out the laws, rules and practices which identify and explain
  • the institutions of gov
  • the distribution of powers within those institutions
  • how those powers are exercised and controlled
  • the relationship between the institutions of gov and the citizens, including the provision of basic human rights and liberties
A

what is a constitution?

138
Q

written document- rigid/difficult to change/ entrenched- codified

A

prescriptive constitution

139
Q

no complete written doc where everything is in one place, flexible/easier to change/ no special procedure to deal with
- may have multiple sources- uncodified

A

descriptive const

140
Q

rigid- difficult to change- entrenched

A

rigid v flexible

141
Q

federal- division of power between central (federal) gov and individual states/provinces/regions
unitary- central gov which retains control

A

federal v unitary

142
Q

parl- leg and executive functions are merged
pres- sep of leg and exec

A

parliamentary v presidential

143
Q

monarchy- head of state is monarch
republic- head of states elected by parl or people

A

monarchy v republic

144
Q

sep- leg/exec/jud all separated- to avoid abuse of power
fusion- concentration of power in the hands of one of the institutions- dictatorship

A

separation v fusion

145
Q

defining moments
- achievement of independence- US const 1787
- imposition following military defeat- Germany 1949

A

how do consts develop?

146
Q

Ridley- the dangerous case of the emperors clothes- the uk doesnt have a constitution

A

does the uk have a constitution?- Ridley

147
Q

by constitution we mean… that assemblage of laws, institutions and customs… that compose the general system
we have that

A

does the uk have a constitution?- lord Bolingbroke

148
Q
  • statutes- bill of rights, Magna Carta, NI act
  • case law- courts must interpret legislation which may be unclear AND the lawmaking role of the courts extends beyond interpretation to judge made law- DPP v Shaw
  • prerogative powers- mercy, dec of war, proroguing of parliament
  • conventions- doctrine of individual ministerial responsibility, monarch will always give assent to bills of parliament
A

sources of uk consti and examples

149
Q
  • uncodified
  • flexible
  • monarchy
  • unitary (devolution of powers but all still subject to Westminster parliament)
  • separation
  • parliamentary
  • descriptive
A

what type of consti does UK have?

150
Q

pros- certainty, accessibility, better guarantee of rights
cons- only clear if well drafted, difficult to change (gun laws America), can become outdated

A

codified pros and cons

151
Q

pros- adaptive, flexible
cons- difficult to find/less clear/less public awareness

A

uncodified pros/cons

152
Q

Mill- the unwritten maxims (established principles) of the constitution

A

definition of a convention

153
Q
  • not in writing
  • binding
  • can be difficult to determine their existence
  • statutes overrule conventions where there is conflict
A

characteristics of a convention

154
Q
  • is it possible to point to precedents?
  • did the actors in the precedents believe they were bound by a rule?
  • is there a reason for the rule?
A

jennings test (conventions)

155
Q
  • statues overrule conventions
  • said there was a convention (Jennings test)
  • but because they’re not enforceable at law they didnt have to get provincial approval to amend the constit
A

re amendment to the constitution of Canada

156
Q
  • appointment of PM
  • by prerogative power the monarch appoints PM but by convention they choose the leader of the party that commands a majority in HoC
  • dissolution and calling of parliaments act 2022
  • by prerogative power the monarch dissolves parliament but by convention they act on the advice of PM
A

examples of conventions

157
Q

UK will not legislate for matters devolved to the devolved Govs without consent
- a convention that regulates parl proceedings

A

sewell convention

158
Q

yes- politicians would have a list of codified rules governing their behaviour so easy to spot a breach
no- would need to be constantly updated and would be difficult to draft

A

should conventions be written down?

159
Q
  • gov is collectively accountable to parl for its actions- cabinet manual 2011
  • gov ministers must support decisions made by the cabinet- cm 2011

3 strands to the convention
- confidence principle- a gov can only remain in office for so long as it retains the confidence of HoC
- unanimity principle
- confidentiality principle- recognises that unanimity is a constitutional fiction but one that must be maintained

A

collective ministerial responsibility

160
Q
  • BJ years- over 50 resignations on 5th July 2022
  • a lot resigned in disagreement with gov policy over Brexit
A

collective ministerial responsibility examples

161
Q
  • should take responsibility for
  • conduct in their public role as minister and for the actions of their department officials- Hancock resigning after breach of social distancing rules- kissing colleague
  • conduct in their private life- Jeremy pincher- groped 2 men in a club and resigned
  • all depends on whether or not they have support of PM- priti Patel didnt resign despite a breach
A

individual ministerial responsibility and egs

162
Q

bibby v chief constable of Essex police

A
  • arrested for breach of the peace
  • not a lawful arrest as bibby had acted lawfully throughout
163
Q

Harvey v dpp

A
  • swore at the police and that was fine
164
Q

dudgeon v UK

A

ECHR ruled criminalisation of homosexual acts between consenting adults in private violated art8- right to respect for private and family life

165
Q

how ECHR is interpreted by the ECtHR

A
  • in light of its object and purpose
166
Q

effectiveness principle ECHR

A
  • practical and effective- airey v Ireland
  • autonomous- interpretation is independent of the jurisprudence and legal systems of contracting states- umlauft v Austria
  • living instrument- Tyler v uk
167
Q

Umlauft v Austria

A
  • Refused breath test Art 6(1) applied despite charge not ‘criminal’ under Austrian law (‘administrative sentence order’). Nature of conduct and penalty imposed looked at.
168
Q

malone v uk

A
  • qualified right
  • prescribed by law
  • phone tapping without warrant violated art 8
169
Q

McCann v UK

A

state is under a duty under art 2 to investigate deaths
- positive duty that convention rights can impose on states

170
Q

wernhoff v germany

A
  • detained 3 years until trial
  • said it was in breach of art 5 and 6
  • no violation because hadn’t exceeded “reasonable time” period as if he was released he could have suppressed evidence
  • length of proceedings had been determined by rhe complexity of the case
171
Q

salabiaku v france

A
  • convicted of drug trafficking
  • D argued that evidence was found during an illegal search and his rights were violated
  • court agreed and france had to pay damages
  • art 6 right to fair trial violated
172
Q

ireland v uk

A
  • distinction between degrading treatment and torture
  • evolves over time
  • flexible
173
Q
  • arrested for breach of the peace
  • not a lawful arrest as bibby had acted lawfully throughout
A

bibby v chief constable of Essex police

174
Q
  • swore at the police and that was fine
A

Harvey v dpp

175
Q

ECHR ruled criminalisation of homosexual acts between consenting adults in private violated art8- right to respect for private and family life

A

dudgeon v UK

176
Q
  • in light of its object and purpose
A

how ECHR is interpreted by the ECtHR

177
Q
  • practical and effective- airey v Ireland
  • autonomous- interpretation is independent of the jurisprudence and legal systems of contracting states- umlauft v Austria
  • living instrument- Tyler v uk
A

effectiveness principle ECHR

178
Q
  • Refused breath test Art 6(1) applied despite charge not ‘criminal’ under Austrian law (‘administrative sentence order’). Nature of conduct and penalty imposed looked at.
A

Umlauft v Austria

179
Q
  • qualified right
  • prescribed by law
  • phone tapping without warrant violated art 8
A

malone v uk

180
Q

state is under a duty under art 2 to investigate deaths
- positive duty that convention rights can impose on states

A

McCann v UK

181
Q
  • detained 3 years until trial
  • said it was in breach of art 5 and 6
  • no violation because hadn’t exceeded “reasonable time” period as if he was released he could have suppressed evidence
  • length of proceedings had been determined by rhe complexity of the case
A

wernhoff v germany

182
Q
  • convicted of drug trafficking
  • D argued that evidence was found during an illegal search and his rights were violated
  • court agreed and france had to pay damages
  • art 6 right to fair trial violated
A

salabiaku v france

183
Q
  • distinction between degrading treatment and torture
  • evolves over time
  • flexible
A

ireland v uk

184
Q

monarchs legal prerogatives

A
  • crown is not bound by statute unless it expressly includes the crown
  • crowns immunity from prosecution- though partly removed by the crown proceedings act 1947
185
Q

prince of bombay v municipal corp of Bombay

A

court determined the crown was not bound by the bombay municipal act

186
Q

mcwhirter v AG

A

court held the prerogative power to make treaties could not be challenged in court

187
Q

BUT chandler v dpp

A

the courts wouldn’t sanction an excessive use of prerogative powers against activists from the campaign for nuclear disarmament

188
Q

GCHQ case- non judiciable areas

A
  • natioanl security
  • mercy
  • appointment of ministers
  • dissolution of parl
189
Q

prerogative powers that used to not be justiciable

A
  • banning homosexuals from the army (smith and grady v uk)
  • preroging parliament- miller
190
Q
  • crown is not bound by statute unless it expressly includes the crown
  • crowns immunity from prosecution- though partly removed by the crown proceedings act 1947
A

monarchs legal prerogatives

191
Q

court determined the crown was not bound by the bombay municipal act

A

prince of bombay v municipal corp of Bombay

192
Q

court held the prerogative power to make treaties could not be challenged in court

A

mcwhirter v AG

193
Q

the courts wouldn’t sanction an excessive use of prerogative powers against activists from the campaign for nuclear disarmament

A

BUT chandler v dpp

194
Q
  • natioanl security
  • mercy
  • appointment of ministers
  • dissolution of parl
A

GCHQ case- non judiciable areas

195
Q
  • banning homosexuals from the army (smith and grady v uk)
  • preroging parliament- miller
A

prerogative powers that used to not be justiciable

196
Q

parl sovereignty- dicey 3 limbs

A
  • parliament can legislate on any matter
  • no person or body can override or set aside the legislation of parl
  • parl cannot be bound by its successors
197
Q

parl can legislate on any matter- examples

A
  • retrospective legislation- burmah oil co (war damages act)
  • parliament overriding international law (cheney v conn)- whatever parl enacts is the highest form of law, even when it goes against the Geneva convention
  • however- UKs membership of eu challenged parls ability to override international law as they were bound by eu laws- even after Brexit the retained EU laws will still prevail over any laws made in the uk before the end of 2020 (Eu withdrawal act 2018)
198
Q

devolution of powers

A
  • still parl can legislate on any matters
  • transfer of powers from central gov to parliaments in the devolved areas
  • technically parl no longer has the power to legislate on any matter
  • sewell convention- means the devolved institutions have to pass a legislative consent motion to allow parl to legislate in that area
  • but it is just a convention so dont need consent really- eu withdrawal act 2018- no consent so doesnt prove a big challenge
199
Q

no other body can override or set aside legislation of parl

A
  • enrolled bill rule
  • edinburgh and Dalkeith railway- respondent claimed act of parl was invalid as they had been misled when passing the bill but held that once a bill had been passed, judges have a duty to follow it
  • factortame case- uk overruled 1988 legislation as it conflicted with european communities act 1972
200
Q

paliament cannot be bound by its successors

A
  • each parl is supreme in its own right
  • can be achieved by express repeal or implied appeal
  • express repeal (where the new act expressly states that previous acts or provisions have been repealed by the new act)
  • implied repeal (new act contradicts a previous act but does not expressly repeal it- the contradicting parts of the previous act become legally inoperable)- eg ellen street estates (housing act 1925 impliedly repealed the acquisition of land act 1919)
201
Q

ECA- parl sov

A

Students could have referred to:
S.2(1) ECA – that EU law is directly incorporated into UK law.
S.2(4) ECA – future legislation will continue to be subject to the supremacy of EU law.
The significance of ex parte Factortame Limited (no 2) [1991] AC 603).
Impact of EU (Withdrawal) Act 2018 and EU (Withdrawal Agreement) Act 2020 on the ECA and place of EU law in the UK going forward.

202
Q

hra parl sov

A
  • preserves- s3(2)(b), s4(6)
  • challenges- s3(1)
203
Q

Connection between HRA and ECHR

A

The HRA insists that public authorities such as Government departments, local councils, police, schools, certain care providers, and prisons, must act in a way that is compatible with the Convention rights

UNI (14 decks)

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