constitutional sources Flashcards
(28 cards)
what are the 4 sources of constitution
-statutes
-case law
-conventions
-royal prerogative
how is case law a constitutional source
-it interprets statutes to recognise, establish or debelop the important principles of the constitution
what does S.Sedley (1994)” say
- ‘our constitutional law remains a common law ocean dotted with islands of statutory provision’
-‘ the common law is the main crucible of modern constitutional law’
who says ‘our constitutional law remains a common law ocean dotted with islands of statutory provision’
S.Sedley in ‘The Sound of Silence: Constitutional Law Without a Constitution’ (1994)”
who says ‘the common law is the main crucible of modern constitutional law’
S. Sedley, ‘The Sound of Silence: Constitutional Law Without a Constitution’ (1994)
give 4 cases related to case law as a constitutional source
-Entick v Carrington (gov officials cannot act without legal authority)
-Burmah Oil Co
-M v Home Office 1994 (courts can enforce law against Crown/ministers via injunctions)
-Miller No 1 (EU law supreme over UK as long as parl wanted)
what was the principle in Entock v Carrington
gov officials cannot act without legal authority
what was the legal principle in M v Home Office 1994
courts can enforce law against Crown/ministers via injunctions
what was the legal princple in Miller no 1
EU law supreme over UK as long as parl wanted
what did W Bagehot ‘The English Constitution’ 1963
say
‘A republic has insinuated itself beneath the folds of a Monarchy’
-monarchy only exists in formal sense so it is overall democratic
what are constitutional conventions
-non-legal sources but still regarded as binding
what are 2 things constitutional conventions do
-shape exercise of legal powers
-establish constitutional standards
give 3 ways constitutional conventions shape exercise of legal powers
-Brazier ‘cardinal convention’ where the monarch acts on ministerial advice as they are elected democratic leaders
-appointment of PM
-Sewel Convention (limit on PMs law making)
give 2 examples how constitutional convention establishes constitutional standards
-ministerial responsibility (individual and collective)
-ministerial code shows convention can be written
what was said in Miller no 1 concerning constitutional conventions
-‘judges are neither the parents nor the guardian of political conventions;they are merely observers’
-‘cannot give legal ruling on its operation or scope because those matters are determined in the political world’
explain constitutional statutes
-developed in case law and given extra legal weight
give 4 key cases for constitutional statutes
- Thoburn v SCC 2002
-Robinson v SoSNI [2002]
-Imperial Tobacco Limited [2012]
-HS2 Action Alliance [2014]
what was the principle in Thoburn v SCC
-distinguished between normal and constitutional statutes
what is the principle in Robinson v SoS for NI
-Lord Bingham judgement that statutes of constitutional character must be interpreted ‘generously and purposively’
give 3 criticisms of constitutional statutes
-questionable authority as it is not binding (they are obiter)
-courts lack authority, legislating is the role of parliament
-leads to inconsistency
give 2 examples of royal prerogatives being subject to statutory reform
-judicial appointmnets –> Constitutional Reform Act 2005
-dissolution of parliament –> FTPA 2011 and then Dissolution and Calling of Parl ACt 2022
what does Miller No 1 say concerning the relationship between royal prerogative and statutes
‘The 1972 Act according has a constitutional character, as discussed by Laws LJ in Thoburn… and by Lord Reed and Lords Neuberger and Mance in HS2’
give 3 case examples of royal prerogative being challenged by judicial review
-GCHQ case
-Bancoult No 2
-Miller No 2
Gordon Brown, ‘Proposal for UK People’s Constitutional Convention’, 2016
“we need wholesale reform because today the United Kingdom appears united in name only”
