Term
| The UK constitution is made up from a number of written and unwritten sources. Generally these sources can be classified into two groups, what are they? |
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Definition
| Legal and non-legal sources. |
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Term
| What are the legal sources of the UK constitution? |
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Definition
i) Legislation
ii) Royal Prerogative
iii) Judicial Precedent (Common Law)
iv) European Community Law |
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Term
| What are the non-legal sources of the UK constitution? |
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Definition
i) Conventions
ii) Customs
iii) Academic Writers |
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Term
| Legislation is a legal source of the UK constitution. However, what is the difficulty w.r.t this? |
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Definition
| As all legislation is passed and repealed in the same way, it is difficult to determine which statutes are constitutional (and which are just general law). |
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Term
| Which case can be used as an example of where a judge has recognised an Act as having constitutional status? |
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Definition
| Thoburn v Sunderland City Council [2003] |
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Term
| Thoburn v Sunderland City Council [2003] |
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Definition
JUDGE STATED THAT THERE IS A HIERARCHY OF ACTS (WITH SOME BEING 'RIGHTLY' CLASSIFIED AS CONSTITUTIONAL OR FUNDAMENTAL). A CONSTITUTIONAL ACT CANNOT BE IMPLIEDLY REPEALED, MUST = ACTUAL & EXPLICIT FOR A CONSTITUTIONAL ACT TO BE REPEALED
C = a 'Metric Martyr' campaigner who was prosecuted for refusing to weigh in metric measures on his market stall.
C argued that the Act which enforced the metric system was illegal because it derived power from an Act which had, the C argued, been repealed.
HELD - the Act which the C claimed had been impliedly repealed was defined by the judge as being a constitutional act, therefore, it could not be impliedly repealed. |
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Term
| What is significant about the case of Thoburn v Sunderland City Council? |
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Definition
The facts of the case aren't that significant, it is what the judge said that is significant...
JUDGE STATED THAT THERE IS A HIERARCHY OF ACTS (WITH SOME BEING 'RIGHTLY' CLASSIFIED AS CONSTITUTIONAL OR FUNDAMENTAL). A CONSTITUTIONAL ACT CANNOT BE IMPLIEDLY REPEALED, MUST = ACTUAL & EXPLICIT FOR A CONSTITUTIONAL ACT TO BE REPEALED |
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Term
| In Thoburn v Sunderland City Council [2003], Lord Justice Laws gave his opinion on what a constitutional law does (how to identify one). What did he say? |
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Definition
A constitutional statute:
a) conditions the legal relationship between citizen and state in some general overarching manner
or,
b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights |
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Term
| What is 'The Royal Prerogative'? |
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Definition
| It is a legal source of the constitution and comprises all the privileges and immunities recognised at common law as belonging to the crown. (See chapter 6 on The Royal Prerogative) |
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Term
| What are the key cases which show that 'Judicial Precedent' is a legal source of the UK Constitution? |
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Definition
Entick v Carrington [1765]
Stockdale v Hansard [1839]
GCHQ case [1985]
Factortame (No.2) [1990] |
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Term
| In what way does GCHQ show that judicial precedent (common law) is a legal source of the UK constitution? |
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Definition
| As in this case, the court decided that the exercise of prerogative power was subject to judicial review = FUNDAMENTAL = accountability etc... clearly this decision has a huge impact on the relationship between the state and the individual. |
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Term
Entick v Carrington [1765]
Stockdale v Hansard [1839]
GCHQ case [1985]
Factortame (No.2) [1990]
A and Others v Secretary of State for the Home Department [2004] |
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Definition
| Four cases which can be used to show that 'Judicial Precedent' is a legal source of the UK constitution (common law has created constitutional principles) |
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Term
| How can Factortame (No.2) [1990] be used to show that Judicial Precedent is a source of the UK constitution? |
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Definition
NEW CONSTITUTIONAL PRINCIPLE - GOVERNING RELATIONSHIP BETWEEN CITIZEN AND STATE
RECOGNISED THAT EU LAW CAN BE SUPERIOR TO DOMESTIC LAW |
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Term
| How can Stockdale v Hansard [1839] be used to show that Judicial Precedent is a source of the UK constitution? |
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Definition
EXAMPLE OF COURT CREATING A CONSTITUTIONAL PRINCIPLE - RECOGNISED A NEW WAY IN WHICH CITIZENS COULD HOLD GOVERNMENT LIABLE - THEREFORE AFFECTED THE CITIZEN-STATE RELATIONSHIP
C sued for libel in respect of the contents of Hansard
D used the defence of an 1839 resolution that all such publications should be treated as absolutely privileged & so couldn't be used as evidence in court proceedings
HELD - Court refused to recognise the resolution as having any legal effect & the C won |
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Term
| How can Entick v Carrington be used to show that Judicial Precedent is a source of the UK constitution? |
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Definition
SEARCH WARRANT CASE - COURT HELD THAT GOVERNMENT ARE GOVERNED BY THE RULE OF LAW & CANNOT ACT ULTRA VIRES
CONSTITUTIONAL PRINCIPLE AFFECTING THE STATE-CITIZEN RELATIONSHIP |
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Term
| Is European Community Law a legal source of the UK constitution? |
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Definition
| YES - governs the state-citizen relationship |
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Term
| What are the 5 types of EU law? |
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Definition
i) Treaties
ii) Regulations
iii) Directives
iv) Decisions
v) EU case law |
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Term
| Do 'conventions' play a large role in the UK constitution? |
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Definition
YES, they play quite a large role (in comparison to other countries)
Many of the UK constitution's most important features are governed by conventions alone. |
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Term
| Which case can be used as an example of how EU law forms the UK constitution? |
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Definition
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Term
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Definition
| Hard to define precisely - many different definitions. |
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Term
| Despite 'conventions' not having a precise definition, they are accepted as havingcertain general characteristics. What are they? |
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Definition
i) They are unwritten rules of political practice
ii) They usually develop in an evolutionary way
iii) Unlike rules of law, conventions do not have a clear source in legislation or case law; this make it difficult to specify the existence and scope of them. |
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Term
| Jennings three stage test for identifying a convention. Discuss... |
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Definition
(a) Are there any precedents?
(b) Did the actors in the precedents believe they were bound by a rule?
(c) Is there any reason for the rule referable to the needs of constitutional
government? |
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Term
| Reference Re Amendment to the Constitution of Canade [1982] |
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Definition
CASE IN WHICH THE COURTS INDIRECTLY ENFORCED A CONVENTION
Convention existed whereby before requesting that the UK made a change to the Canadian constitution, Canadian central government would acquire the consent of all the federal governments
This convention was not followed
HELD - it was unconstitutional for the Canadian central government not to follow the convention |
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Term
| Give three examples of conventions relating to the legislature? |
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Definition
i) The HoL always defers to the HoC
ii) Parliament must be summoned to meet at least once a year
iii) Financial bills are only introduced in the HoC and then only by a Cabinet Minister |
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Term
| Give three examples of conventions relating to the executive? |
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Definition
i) The monarch MUST NOT exercise her legal right to refuse to give Royal Assent to bills passed through Parliament
ii) The Prime Minister chooses the Cabinet
iii) The Prime Minister and the Chancellor of the Exchequer must be members of the HoC |
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Term
| Give three examples of conventions relating to the judiciary? |
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Definition
i) Judges must not be politically active
ii) A Judge's professional conduct should not be criticised in Parliament except on a motion of dismissal |
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Term
| Give the KEY purpose for conventions? |
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Definition
| They are a flexible means of changing and developing the constitution informally. They 'fill the gaps' in the UK's constitution. |
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Term
| Are conventions legally enforceable? |
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Definition
| Technically NO> However, courts have been willing to recognise them & in some cases, indirectly enforce them. |
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Term
| Liversidge v Anderson [1942] - on Conventions |
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Definition
| IN THIS CASE, THE COURTS RULING GAVE RECOGNITION TO A CONVENTION |
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Term
| Carltona v Commissioner of Works [1943] |
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Definition
| IN THIS CASE, THE COURTS RULING GAVE RECOGNITION TO A CONVENTION |
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Term
| What are two cases in which the courts have acknowledged the existence of a relevant convention, and have allowed it to have some bearing on their ruling? |
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Definition
Liversidge v Anderson [1942]
Calrona v Commissioner of Works [1943] |
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Term
| Where there is a conflict between a convention and the law, what do the courts do? |
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Definition
| They must enforce the law. |
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Term
| What case can be used to illustrate the rule that the where a convention and the law conflict, the law takes precedence. |
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Definition
| Madzimbamuto v Lardner-Burke [1969] |
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Term
| Madzimbamuto v Lardner-Burke [1969] |
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Definition
| WHERE THERE IS A CONFLICE BETWEEN A CONVENTION AND THE LAW, THE LAW TAKES PRECEDENCE |
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Term
| Which two cases can be used as an example of the courts indirectly giving effect to a convention? |
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Definition
Attorney General v Jonathan Cape Ltd [1976]
Reference Re Amendement to the Constitution of Canada [1982] |
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Term
| Attorney General v Jonathan Cape Ltd [1976] |
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Definition
EXAMPLE OF A CASE IN WHICH THE COURT INDIRECTLY ENFORCED A CONVENTION
Judge recognised an existing convention. Whilst the judge acknowledged that he could not enforce the convention, he used the existence of the convention to assit in the development of a new common law duty (an existing cause of action was enlarged in order to incorporate the convention rule) |
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Term
| HM Treasury v Information Commissioner [2009] |
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Definition
| COURT INTERPRETED AN ACT IN A WAY WHICH MEANT THAT EXISTING CONVENTIONS WERE NOT DISPLACED (NOT NECESSARILY FOR THIS PURPOSE THOUGH) |
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Term
| If conventions are not legally enforceable, why are they followed? |
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Definition
a) So that everyone is your friend (more of a political issue than a legal issue)
b) Breach of a convention could have quasi-legal consequences Attorney General v Jonathan Cape Ltd [1976] |
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Term
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Definition
| Customs represent rule of conduct recognised by the judiciary as having binding force |
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Term
| R v Chaytor and Others - on customs |
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Definition
COURT INTERFERED WITH THE SCOPE OF A CUSTOM
Expenses scandal
Ds argued that 'Parliamentary privilege' meant that they could not be prosecuted for any proceedings in Parliament
HELD - Parliamentary privilege could not be used to prevent criminal proceedings (therefore, court ruled on the scope of a custom) |
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Term
| Do the courts have any jurisdiction over customs? |
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Definition
| Technically no. However, see R v Chaytor, where a court ruled on the scope of a custom. |
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Term
| Which case can be used to show that the courts can/have interfered with 'customs'? |
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Definition
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Term
| In what way are 'academic writers' a non-legal source of the UK constitution? |
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Definition
| Some constitutional academics are regularly cited in court, and as such have persuasive value. e.g. Dicey. |
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