Constitutional Law Revision Notes PDF

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Notes taken from revision classes ahead of the exam...

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Constitutional Law Revision Sources of the Constitution Key Dates:  1189 – Start of common law in England  1215 – Magna Carta  1200’s – Wages introduced after black death  1600’s – English Civil Wars  1689 – Bill of Rights o Division between Parliament and Monarch o Statute law will always overrule common law  1776 – Rule of Law introduced Important Acts:  1679 – Habeas Corpus Act  1707 – Act of Union (Scotland)  1800 – Act of Union (Ireland)  1832 – Great Reform Act o Sorted out MP issues o Start of popular democracy  1949 – Parliament Act  1972 – European Communities Act  1998 – Human Rights Act Important Cases:  1607 – Case of Prohibitions (Prohibitions Del Roy)  1610 – Case of Proclamations  1637 – Ship Money Case  1765 – Entick v Carrington  1976 – AG v Jonathan Cape  1978 – Madzimbamuto v Ladner-Burke  2005 – R (Jackson) v AG  2005 – A v HO (Belmarsh Detention and Torture cases) EU (EC) Law:  Regulations  Treaties  Directives Conventions:  Not enforceable by courts  Not legally binding

The Rule of Law

Definition:  Everyone is subject to the law o Including governments o Including monarchs Philosophical History:  Aristotle – “the Rule of Law is preferable to that of any human being” Natural Law:  Ancient Greeks  Cicero – “One eternal and unchangeable law will be valid for all nations and for all times”  Thomas Aquinas – Christian Natural Law Political Theory:  John Locke – “Wherever law ends, tyranny begins”  Thomas Paine – “In America, law is king” The Nature of Law:  Is law always good  Waldron – The Rule of Law nothing more than “Hooray for our side!”  Morally Neutral Rule of Law – Knife analogy; can cut a cake or kill a man Qualities of the Rule of Law  The law should be perspective, open, clear and stable  The making of particular law should be guided by stable and clear rules  The independence of the judiciary must be guaranteed  The principles of natural justice must be observed Arising Obligations  Do we have to abide by unjust laws  Is there a right to destroy law  Is there a duty to disobey law in extreme cases Practical Effects – AV Dicey:  No person is to be punished except for a distinct breach of law  No detention without trial  No arbitrariness  No retrospective application of law  Government action can be reviewed (Judicial Review)  Entick v Carrington  Legal process should be accessible and procedurally fair  Equality of all persons before the law o Children cannot commit crime o Diplomatic immunity o MP privileges o Crown privileges Parliamentary Sovereignty Definition:

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Parliament is the supreme authority and nothing can challenge it

Political Constitutionalism:  Elected politicians should be the ones deciding principles of the state  Judges are not elected and have an agenda of their own  Parliamentary Sovereignty is the decisive principle Legal Constitutionalism:  Courts are essential to limit the power of government  Democracy is important but could equal a dictatorship if not controlled properly  Rule of Law is the decisive principle Earl of Shaftesbury:  “The Parliament of England is that supreme and absolute power which gives life and motion to the English Government” Principles:  Each Parliament is sovereign during its lifetime  Parliament can enact any law concerning any matter  Parliament can repeal or amend any existing law  Parliament can enact retrospective legislation (War Damages Act 1965)  Courts can only interpret legislation and apply it  Parliament is not bound by international law domestically  Constraints on Parliament are political, not legal  Parliament can decide its composition and length What can the courts review:  Resolution by one House of Parliament  Secondary Legislation on the grounds of o Exceeding authority o Incorrect procedure Expressed Repeal:  Each Parliament must be able to unmake any laws  No Parliament is bound by its predecessors Implied Repeal:  Logical extension of principle  Parliament can pass a new act which impliedly repeals any conflicting acts Problems:  Act of Union (Scotland) – England and Scotland will forever be Great (could change)  McCornick v Lord Advocate – Parliamentary Sovereignty was debated European Union Institutions:  The European Council – Heads of member states

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The European Commission – Legislation proposers The Council of the European Union – Ministers The European Parliament – Makes law

Principles:  Principle of Conferral – EU is allowed to do anything within the confines of the treaty  Principle of Subsidiarity – EU should only do things which are necessary European Court of Justice:  1 Judge per member state  9 Advocate-Generals  1 President Role of ECJ:  Interprets the law after being referred to a specific case  Bulmer v Bollinger – Denning said o Only when necessary and conclusive to a case o Keep in mind delay, cost and burden to ECJ  Samex – Bingham said o ECJ has panoramic view o ECJ is better with languages Sources of UK Constitution:  Primary Legislation o The Treaty on the Functioning of the European Union 1953 o The Treaty on the European Union 1993  Secondary Legislation o Regulations – Binding on all Member States o Directives – Binding on Member States which it addressed o Decisions – Binding to whom it is addressed Direct Effect:  Regulations o Vertical Direct Effect – Van Gend en Loos o Horizontal Direct Effect – SABENA  Directives o Vertical Direct Effect – Van Duyn v Home Office o Horizontal Direct Effect – Marshall v Southampton Area Health Aut Supremacy  EC Law is Supreme – Costa v ENEL  Factortame Case – UK finally accepted supremacy of EC Law (dis-applied Merchant Shipping Act)...