Public Law 2 Flashcards
(21 cards)
What are the 4 sources of the UK constitution?
- Legislation (Acts of Parliament)
- Constitutional conventions
- Judge-made law
- International law
What is the function of legislation as a source of the UK’s constitution?
- organising and allocating powers to institutions of government.
- regulating the relationship between the individual and
the state
What did Law Lj argue?
Implied repeal should not exist in relation to constitutional statutes. This means constitutional statutes hold a greater value than ordinary statutes as they are exempt from implied repeal (hierarchy).
What is implied repeal?
Where a later statute effectively repeals an earlier statute without expressly stating so.
This occurs when the provisions of the newer law are inconsistent with or directly contradict the provisions of the earlier law, making it impossible for both to coexist.
What is express repeal?
Express repeal occurs when a newer statute explicitly states that an older statute, or specific provisions of an older statute, are repealed.
This is a clear and direct method by which Parliament indicates that the older law is no longer in force or has been replaced by the new legislation.
Is there support for the idea of hierarchy between constitutional and ordinary laws in the constitution?
Yes, this hierarchy has seen some recognition and support from the UK Supreme Court.
Can judges create/amend laws?
In the UK, judges do not have the power to create or amend laws in the way that Parliament does.
Judges cannot strike down laws, but interpret laws in a way
that changes their meaning.
How do judges create common law?
Judges create common law by making decisions in individual cases that become precedents for future cases.
Developed through judicial review of government action and considered to be procedurally fair, reasonable, and rational.
Is common law made by judges legally binding?
Yes and No, common law made by judges is binding. When judges make decisions, particularly in higher courts such as the Supreme Court or the Court of Appeal, those decisions create legal precedents.
However, they are not truly binding as can be overridden by statute.
How is international law considered a source of the UK’s constitution?
Usually, international treaties are given effect in domestic law through enactment of legislation.
How has international law been enacted into the UK’s constitution?
The European Convention on Human Rights (ECHR) was incorporated into UK law by the Human Rights Act 1998.
What is a constitutional convention?
An unwritten rule or practice that guides the behaviour of political actors and institutions.
(Political)
Are constitutional conventions binding?
Technically yes, however, they are NOT recognised by courts.
These conventions are not legally enforceable but are considered binding due to their established acceptance and importance in ensuring the smooth functioning of government.
How are constitutional conventions considered binding?
NOT due to a threat of judicial sanction.
- Political Consequences (e.g. ministerial responsibility – which includes that ministers must not knowingly mislead Parliament – not a legal wrong but a constitutional wrong).
- Weight of its own authority (e.g. the appointment of Prime Minister).
- Mutual Understanding (conventions are based on a mutual understanding among political actors about how certain aspects of the constitution should operate).
- Historical Precedent (many conventions have been followed consistently over long periods, becoming entrenched in the political culture).
Is every political practice a constitutional convention?
No. While constitutional conventions are specific, binding norms that ensure the smooth functioning of the constitutional framework, political practices encompass a broader range of activities that may not hold the same level of importance or consistency.
How to determine if a political practice is a constitutional convention?
The three-pronged test:
- precedent
- sense of obligation
- reason
3 limitations of constitutional conventions?
- Lack of Legal Enforceability: The fact that conventions are not legally binding means that there is no formal mechanism to enforce them. Breaches of conventions can lead to political consequences but not legal penalties.
- Ambiguity: Conventions can sometimes be ambiguous or open to interpretation, leading to disagreements about their application or scope.
- Reliance on Political Culture: The effectiveness of conventions depends on the political culture and the willingness of political actors to adhere to them. If political actors choose to ignore conventions, it can undermine their effectiveness.
Is there an authoritative list of constitutional conventions?
Some conventions are written down:
* Ministerial Code
* Cabinet Manual
But these are merely ‘snapshots’ and not a source of a legal rule.
Do both constitutional conventions and laws require royal assent?
Law: Every bill must receive a Royal Assent after it has
passed its necessary parliamentary stages in order to become law
Convention: The monarch will give the Royal Assent to every bill which has passed successfully through Parliament when advised to do so by ministers
Do both constitutional conventions and laws appoint the Prime Minister in the same way?
Law: At common law the monarch has unlimited power to appoint ministers including the PM (this is a prerogative power)
Convention: The gov’t must have the confidence of a majority in the HoC, which means that PM is appointed from the HoC – normally the leader of the political party with the majority of seats in the HoC
Why are constitutional laws so important (cannot be impliedly repealed)?
- Foundation of Governance: Constitutional laws establish the fundamental structure and functioning of government institutions.
- Protection of Fundamental Rights: Constitutional laws often enshrine fundamental rights and freedoms, ensuring they are protected against arbitrary actions by the state.
- Stability and Continuity: Constitutional laws provide a stable and predictable legal framework, which is essential for the orderly functioning of society and governance.
