Public Law 3

Question 1

What is a constitutional principle?

Answer 1

A fundamental rule or concept that serves as the foundation for the governance of a country.

Question 2

What are the 3 purposes of constitutional principles?

Answer 2

1. explain constitutional arrangements.
2. influence the constitutional arrangements politically or legally.
3. provide benchmarks for evaluating constitutional actors.

Question 3

What are examples of constitutional principles?

Answer 3

• The rule of law (legality).
• The separation of powers (responsible government).
• Parliamentary sovereignty (democracy).

Question 4

What is the definition of the rule of law?

Answer 4

“A fundamental principle that ensures all individuals and institutions, including the government, are subject to and accountable under the law”.

Question 5

What is the importance of the rule of law?

Answer 5

It provides clarity, certainty, and accountability

Question 6

Why is there disagreement regarding the rule of law?

Answer 6

• Highly contested concept
• Disagreement over definition and scope
• Bare principle of ‘legality”
• The formal conception of the rule of law (Fuller)
• The substantive conception of the rule of law (Bingham)

Question 7

What is the bare principle of legality?

Answer 7

If something is enacted following the law-making procedure prescribed in that legal system, it must be regarded as a law.

Question 8

What is Entick v Carrington?

Answer 8

In issuing warrant to authorise agents to break into the claimant’s house
Minister had acted illegally as no law authorised him to do so.

Question 9

What is Jackson?

Answer 9

The legal question was whether a law had been enacted in conformity with the relevant procedure.

Question 10

What is Unison?

Answer 10

The Minister had exceeded his legal power in imposing fees that made it too difficult for people to access employment tribunals (he had no such legal power).

Question 11

What is the formal conception of the rule of law?

Answer 11

1. be public and clear
2. not have retroactive effect
3. not change too often
4. Not concerned much with the ‘content’ of law

Question 12

Is the formal conception of the rule of law judicially recognised?

Answer 12

Yes, the formal conception judicially recognised in UK.

• Legal certainty – Anufrijeva
• Non-retroactivity – Pierson
• Access to independent courts and tribunals – Unison
• Access to judicial review of government action – Privacy International

Question 13

What is the substantive conception of the rule of law?

Answer 13

As well as formal qualities, also requires good ‘content’ of law, such as:

• respect for the freedom of expression
• respect for the principles of equality

Question 14

Is the substantive conception of the rule of law judicially recognised?

Answer 14

Some judicial recognition in the UK but complicated.

• Are they recognised as a constitutional principle or as a matter of law?
• e.g. basis: the rule of law or the Human Rights Act?

Question 15

What is the courts general opinion of the rule of law?

Answer 15

1. Courts will strike down government action that is inconsistent with the rule of law
   * but judges will have different views as to the extent of the rule of law
2. Courts try, whenever possible, to give legislation a meaning that is compatible with the rule of law
3. Courts generally hold legislation (except Acts of Parliament) to be invalid if it cannot be interpreted compatibly with the rule of law

Question 16

Can parliament override the requirements of the rule of law?

Answer 16

Parliament is sovereign – so, legally, it can override all the requirements of the rule of law and even say it is not a constitutional principle.

Question 17

When did parliament recognise the requirements of the rule of law?

Answer 17

Parliament recognised the principle in statute in the Constitutional Reform Act 2005, s 1.

Question 18

What is the theory behind the separation of powers doctrine?

Answer 18

One of the Two: “Great Pillars of Western Political Thought”.

The other pillar is “Representative Government”.

Question 19

What did James Maddison state (1788) about the separation of powers?

Answer 19

“one person (or branch) holding all powers is “the very definition
of tyranny”

Question 20

What did Lord Acton (1887) say about the separation of powers?

Answer 20

“power tends to corrupt and absolut power corrupts absolutely”

Question 21

What do certain commenters label the current constitution as?

Answer 21

An elective dictatorship

Question 22

To what extent are the three branches distinguishable (Legislative)?

Answer 22

• Westminister and devolved legislatures possess all law-making authority.
• But not all new laws created by these e.g. delegated legislation.

Question 23

To what extent are the three branches distinguishable (Executive)?

Answer 23

• Broad authority to govern.
• Historic break from monarchy to ministers and public authorities (The UK central government and devolved governments).

Question 24

To what extent are the three branches distinguishable (Judiciary)?

Answer 24

• Resolve disputes in private and public law.
• Exercised in civil and criminal courts and tribunals.

Question 25

To what extent are the functions exercised separately in the UK?

Answer 25

They do exist separately, however, the public usually will say they see "no difference between the Government and Parliament". The separation of powers is not as clear-cut as it is in the US.

Question 26

What case shows the difficulty of the separation of powers?

Answer 26

Fire Brigades Union case (1995). Home Secretary refused to bring in the scheme to compensate victims of crime (Criminal Justice Act 1988, s 171(1)) – tantamount to repealing the Act. Majority (3-2) of the House of Lords held that Home Secretary had exceeded his powers.

Question 27

What is the Constitutional Reform Act 2005 and what did it do?

Answer 27

A significant piece of legislation in the UK that brought about major changes to the UK's constitutional framework (constitutional law). Put the rule of law and judicial independence on statutory footing. Significant move towards a more defined separation of powers in the UK which led to: * Alterations to Lord Chancellor’s position * New Judicial Appointments Commission * Elimination of Law Lords  new Supreme Cour

Question 28

What is the definition of parliamentary privilege?

Answer 28

"Parliament can make and unmake any law and no other state body (including courts) can set these laws aside".

Question 29

What are the two limbs A.V Dicey introduced regarding parliamentary sovereignty?

Answer 29

- Positive limb = "Parliament can make or unmake any law whatever". - Negative limb = "No person or body is recognsed by the law of England as having a right to override or set aside the legislation of Parliament".

Question 30

What is entrenchment of a law?

Answer 30

The process by which certain laws or legal provisions are made difficult or impossible to repeal or amend.

Question 31

Why is there no entrenchment of law?

Answer 31

Express and Implied repeal means entrenchment is not possible. The courts are required to apply the most recent act of parliament in any given subject.

Question 32

What are the two types of parliamentary sovereignty?

Answer 32

Self-embracing sovereignty: * Parliament can enact any legislation, including making laws that would destroy parliamentary sovereignty. Continuing sovereignty: * The only thing Parliament legally cannot do is to entrench legislation. * Historical basis: political agreement between the monarch, Parliament, and the courts following the Glorious Revolution of 1688; political agreement is ongoing, hence continuing sovereignty.

Question 33

What is the Manner and Form Theory?

Answer 33

A concept that addresses whether Parliament can impose procedural requirements on itself or its successors. Special procedures can be created for legislation, such as a Bill on a particular subject requiring a referendum, special majority in both Houses of Parliament: * Then, if any special procedure is not followed in passing a Bill * an injunction could be sought from courts to prevent further passage of the Bill, or * the monarch would be justified in refusing Royal Assent, or * if the Bill has been passed, courts could declare the enactment void.

Question 34

Are there legal constraints as to what parliament can do?

Answer 34

Traditional view: no However TRS Allan: challenges the historical basis for parliamentary sovereignty and argues that it is based on democracy – if Parliament attempts to destroy democracy by legislation, courts will not enforce it. The principle of democracy legally limits Parliament’s power.