These notes are comprehensive, not only do they elaborate the terms and topics under review, they also include notes on key cases and also key statutes. These notes helped me to get a first class mark in this module with distinction, hopefully you can too.
1. INTRODUCTIONS TO CONSTITUTIONS – pg. 2
2. GOVERNANCE AND SOURCES OF THE CONSTITUTION – pg. 2
a. SEPERATION OF POWERS – pg. 3
3. CONSTITUTIONAL PRINCIPLES: - pg. 4
a. THE RULE OF LAW – pg. 4
b. PARLIAMENTARY SOVEREIGNTY – pg. 5
4. THE STRUCTURE OF GOVERNMENT AND THE ROYAL PREROGATIVE – pg. 5
5. INTERNATIONAL LAW IN THE UK – pg. 6
a. THE EUROPEAN CONVENTION ON HUMAN RIGHTS – pg. 7
6. INTROUCTION TO JUDICIAL REVIEW – pg. 8
7. PARTIES TO JUDICIAL REVIEW – pg. 9
a. STANDING – pg. 10
b. REMEDIES – pg. 10
c. JUSTICIABILITY – pg. 11
8. GROUNDS OF JUDICIAL REVIEW – Pg. 11
a. ILLEGALITY – pg. 11
b. IRRATIONALITY – pg. 12
c. PROPORTIONALITY – Pg. 13
d. PROCEDURAL IMPROPRIETY – pg. 13
9. JUDICIAL REVIEW AND HUMAN RIGHTS IN THE UK – pg. 15
a. PRE-HUMAN RIGHTS ACT PROTECTION IN UK LAW – pg. 15
b. THE ECHR – pg. 15
c. THE HRA 1998 – pg. 15
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INTRODUCTION TO CONSTITUTIONS
- “Public law is the study of the law that regulates the relationship between the individual and the
state, and organisations and the state” (Webley and Samuels, 2018:5).
- Constitutions are the outcome of: Usurpation and conquest (Hume), voluntary consent
(Jefferson), Contract between the between the citizens and their rulers (Rousseau and Locke),
constitutional moments (Ackerman).
- Distinct but shared characteristics: Allocation of powers, separation of powers, between state
powers and individual freedoms, legitimacy through consensus, enduring.
- A constitution is a thing antecedent to a government, and a government is only the creature of a
constitution. The constitution of a country is not the act of its government, but the people
constituting its government. (Paine, 1791).
- Characteristics of a constitution:
o (1) it establishes the system of government.
o (2) it involves an authority outside and above the order it established. In democracies that
power is attributed to the people, on whose ratification the legitimacy of a constitution
depends and with it, the legitimacy of the gov system
o (3) It is a form of law superior to the law
o (4) It is entrenched.
- The UK constitution: the country’s constitution is a body of rules – some laws, some conventions
– which regulate its system of government.
o Uncodified, (partly) unwritten, flexible, unitary despite devolution, religious,
constitutional monarchy, parliamentary executive, liberal democracy, political and legal
nature.
SOURCES OF THE CONSTITUTION
- Domestic Law: acts of parliament, second legislation, developed from assemblies.
- International law: treaty provisions
- Non-legal sources: Constitutional conventions
- Judicial interpretation: Case Law.
- Royal Prerogative: Royal Assent to legislation, appointment of PM and ministers
o Evolving area - Prerogative Power of Ministers - Ministerial executive Powers e.g.
decisions on armed conflict and the conclusion of international treaties – exercisable
without parliamentary approval or scrutiny.
- EU Law: 31 Jan 2020 (“exit day”)-11 pm 31 Dec 2020 (“IP completion day”): a transition or
implementation period, during which time EU law, unless otherwise provided for in the
Withdrawal Agreement, continues to apply in the UK.
- International law: international agreements introduced into the UK (Geneva Conventions Act
1957).
- Legislation (or enacted law)
- Judicial precedent = case law/ common law: Decisions of the courts expounding the common law
or interpreting legislation – “stare decisis” (duty of courts to observe decided cases = to follow
precedent established by previously decided cases with similar facts and issues)
- Constitutional conventions: “Certain rules of constitutional behaviour which are considered to be
binding by and upon those who operate the constitution, but which are not enforced by the law
courts (although the courts may recognise their existence), nor by the presiding officers in the
Houses of Parliament.” (G. Marshall & GC. Moodie, Some Problems of the Constitution,
Hutchinson, 1968)
- The development of constitutional conventions: Three-pronged test of Jennings endorsed by the
Supreme Court of Canada in Re Amendment of the Constitution of Canada (1982) 125 DLR 3d 1;
[1982] 2 SCR 793: Criteria:
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o (1) What are the precedents for the rule? (2) Do the persons creating the precedents
believe themselves to be bound by the rule? (3) Is there a reason for the rule?
SEPARATION OF POWERS
- A theory that describes the way in which a state organises the distribution of power and function
between its different branches.
- Three branches of power:
o Legislature: “The Queen in Parliament” – House of Commons, HOL, Queen
Adopts law which is binding on all
o Executive: PM, Cabinet and other ministers, and the Civil Service
Implements the adopted law
o Judiciary: judges appointed by the LORD Chancellor after the selection process by an
independent Judicial Appointments Commission
To interpret the law, to apply for individual disputes between private, public,
state parties.
- Separation of powers seeks to regulate and limit exercise of power by state institutions or organs
to prevent abuse of power – not an end in itself, but a mechanism by which power may be
limited.
o Prevents arbitrariness, provides checks and balances, agreement for an independent
judiciary.
- Relations between the Executive and the Legislature:
o Executive is drawn from within the ranks of the legislature.
o By convention ministers of the crown must be members of either House of Parliament:
o By convention, the Prime Minister must be a member of the House of Commons.
- The executive’s ability to dominate the legislature.
- Relation between the Legislature and Judiciary
o Judiciary has to be independent of both parliament and the executive
o Constitutional conventions protect judges against criticism by the other branches
o MPs are barred from raising pending court proceedings in parliamentary debates.
- Relations between the Executive and the Judiciary
o Before 2006: appointment made on the recommendation of the Lord Chancellor, who
was a Government Minister
Reform by the Constitutional Reform Act 2005:
o Candidates for judicial office have to meet specific requirements regarding professional
experience
o Judicial appointments commision makes proposals as to selection of judges (example of
check)
o Appointment of judiciary by the Lord Chancellor who has a very limited power of veto
(compare US, where President nominate’s and Senate approves)
o Judicial review – the authority to control the way the power is exercised by the
government (Term 2)
o Judges frequently are appointed chairmen of inquiries into sensitive issues
- A complete separation is impossible, but a certain fusion is natural: collaboration, checks and
balances between the three branches
- Devolution (1) Variations in degree of devolution: Scotland most, Wales least
- Devolution (2) On 22 October 2015, the House of Commons agreed to changes to its Standing
Order: a new law cannot be imposed only on England by a majority of all MPs if a majority of
English MPs are opposed. However, a proposed new law can still be vetoed by a majority of all
MPs even if a majority of English MPs are in favour.
CONSTITUTIONAL PRINCIPLE
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