LW1120 Comprehensive Guide PDF

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Warning: TT: undefined function: 32 Warning: TT: undefined function: 32LW1120 – CONSTITUTIONAL AND ADMINISTRATIVE LAW2019-2020 COMPREHENSIVE EXAM GUIDE – SEMESTERONE AND SEMESTER TWOPREPARED BY S.SEMESTER ONECase of R (Miller) v The Prime Minister [2019] and conjoined case of Cherry and Ors v Advoca...

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LW1120 – CONSTITUTIONAL AND ADMINISTRATIVE LAW 2019-2020 COMPREHENSIVE EXAM GUIDE – SEMESTER ONE AND SEMESTER TWO

PREPARED BY S.T.

SEMESTER ONE

CONSTITUTIONAL LAW LECTURE 1- September 30, 2019 • • • •

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Constitution ‘Unwritten’- Meaning there is no one Constitution document, so it is referred to as ‘not codified’ Large reliance on political rules and practices, referred to as ‘Conventions’, which are not formally legal- no legal enforceability ‘Brexit’ Referred to as an example of a Constitutional ‘crisis’ Constitutional Law is concerned with the role and the powers of the institutions between the State and with relationships between the citizen and the State- Quoted Barnett- This is a two-part definition and described as follows: o 1. Concerned with role and powers of institutions within State o About role and power of those who make law- Law making body- The Parliament o It is also about those who interpret the laws- Judges- Courts o It is also about the people who govern us- Ex. Boris Johnson the PM o Also those who rule and are not elected- The Queen o 2. Concerned with Citizen and the State- Relationship that we have with State o Public Law: Deals with relations between individuals and the State- This is the same thing as Constitutional and Administrative Law. Function of Constitution: o Function 1: Show how a particular country works- Instruction manual o Constitution reveals who governs (President, PM, Monarch) o How they govern (President terms, dismissal procedures) o State’s Institutions- ex. Parliament, courts, civil service and the powers of these institutions o Rights and duties of Citizens o Function 2: Checks and Controls (Balances)

Does a Constitution guarantee democratic governance? NO. o Joseph Stalin: People were so scared of him, terrified. He was not subject to checks and balances o Saddam Hussein, Gaddafi, Hitler- All had in common that they were all killers, their nationals ALL had Constitutions o Constitution is worthless without checks and controls on those who are in power Constitution must have ‘democratic principles’ that prohibit: • Human Rights violations, Corruption, Social evils (racism), and Abuses of Power (Closing Parliament down) Prorogation: Term that refers to describing the end of a Parliament session and beginning of the next session

Case of R (Miller) v The Prime Minister [2019] and conjoined case of Cherry and Ors v Advocate General for Scotland • UK Supreme Court held, Sept 19 that Government’s prorogation of Parliament for 5 weeks was unlawful UK has an independent judiciary, and all are subject to the law. As compared to the Nazi regime, the judges were Nazi’s themselves which means they definitely were not independent at all, political rather.

Constitutional Law Lecture 2- October 1, 2019 •

What is a Constitution? o 1. A written document- with special legal status, setting the framework for government within a country and declares the principles by which the branches of government must operate § Written Constitutions (Codified), are also referred to as being ‘rigid’ § Ex. United States, Canada have these § Whereas the United Kingdom does not have a written Constitution o 2. Unwritten Constitutions- UK, New Zealand and Israel have unwritten Constitutions, so they are not codified. Hence, they are known as being ‘flexible’

Albert Van Dicey influential commentator on the British Constitution- especially on Parliamentary Sovereignty- Late 1800’s- Father of British Constitution Dicey: a ‘rigid’ Constitution is one that is ‘written’ and under which certain laws cannot be changed in the same manner as ordinary laws Written Constitutions- Some laws are more important than others, some have special legal status, whereas, a flexible Constitution in the UK, can be changed with the same ease and in the same manner with one body (Dicey) Rigid (Written) Constitution: • Codified in a single document • Entenched, meaning it is protected against repeal • Amendments, any changes would require special procedures to take place, not easily changed • Provides checks on power • Features a ‘Bill of Rights’ a full list of basic human rights US Constitution: Presuppose a big union, while preserving their individual identity • Framed in 1787, rich White men- not representative of the society but developed in a way to adapt to changing societies over time, although several amendments made • Federal Constitution, opposite of this is Unitary, and several provinces and states are joined under one Constitution, while they have their own separate matters within their own jurisdiction • Under Federal Constitution- Government powers are divided by National Government and their separate units, the States • Offers guidance on how the system works, Art 1. Lawmaking branch- Congress, Art 2.Executive- The President, and Art 3.Judicial Branch- US Supreme Court – System of checks and balances US President Donald Trump- Absolute power allows for absolute corruption- ordinary people will suffer- necessary to have checks and balances in power

United Kingdom • Unitary State, power concentrated in one body/unit • Dicey: Power has been historically concentrated/vested in the Parliament UK- Margaret Thatcher won 3 elections, you can go on and on and on, PM not constrained from being PM forever But in US, you cannot run more than 2 terms in the elections- Constitutional provision If Trump wanted to ban news article stations that pose ‘Fake news’, he would not be able to do so, since under Amendment 1 “Congress shall make no law… abridging the freedom of speech, or of the Press” – Such a law would be struck down • If Trump wanted to amend 1st Amendment, a) Congress would need a 2/3 majority in House of Representatives and Senate OR be called for by 2/3 of the State legislatures, although a) has been the procedure adopted so far for constitutional amendments • Thus, proposed amendment becomes part of Constitution once ratified by 3/4 of the state legislatures • In 1971, Penultimate the 26th Amendment reduced the voting age to 18 from 21 because the Vietnam War Conscription was taking place, to fight for their nation, average age of soldiers was 19 years old • 2nd Amendment in the US- Rule of Gun, the right to keep and bear arms- this right shall not be infringed Constitution- Supreme Law in the US • Constitution rules, it is supreme law, any law found in conflict, then that law will be held invalid against the Constitution • Special legal sanctity • Thus, Constitution requires a special amendment procedure

Constitutional Law Lecture 3- Oct 2, 2019 •

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US Supreme Court- 9 Supreme Justices, each justice has a single vote, and tenure is for life- typically remain in court until they resign, retire, or die- job for life o US Supreme Court has a lot of power o Case of Marbury v. Madison [1803]: Supreme Court gave itself power to declare an act of Congress void, a law in the United States, is contrary to Constitution, to strike it down- deeming it inconsistent with the Constitution Brown v. Board of Education [1954]: Supreme Court case, holding that racial segregation in schools was unconstitutional o Segregation had contravened principle of the 14th Amendment- ‘equal protection of the laws’ o They struck down local laws, they were held unconstitutional, regardless of what those elected said Roe v. Wade [1973]: Case prohibiting many State and Federal restrictions on abortions in the US – Women’s right to choose whether she has abortion or not, prior to Roe case, there were many restrictions in the US regarding abortion- they would have to go to legal abortionists- since it was illegal to perform an abortion at the time- this case struck down the restrictions state and federal wide Obergefelle v. Hodges [2015]: US Supreme Court case, ultimately deciding in a 5-4 decision that the Constitution guarantees the right to same-sex marriage o Regarding racism, same sex marriage, abortion, US judges have a lot of power to strike down laws that are contrary to the Constitution

US President appoints the Supreme Court judges, with advice and consent of Senate o Brett Kavanaugh controversial appointment by Trump- Sexual allegations made against him when he was a student, is it appropriate for him to be part of the Supreme Court? – Senate narrowly confirmed his votes, 50-48, Conservative judge- political commentators claim he is ‘Trump’s people’ o Point to draw from this, US Supreme Court judges, you can tell how they vote and their political preferences- Republicans, Democrats, etc. Supreme Court is politicized- increasingly tarnished, not independent as such >If UK Constitution codified, they will become more like the US Supreme Court judges, in the UK, the Justices political preferences cannot be drawn, while in the US we can tell who is a Republican/Democrat •

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UK judges cannot strike down any laws, Parliamentary Sovereignty = Parliament is Supreme, even if acts are contradictory to human rights, they cannot be struck

United Kingdom comprises: England, Wales, Scotland (which together comprise Great Britain) and then Northern Ireland – Interpretation Act, 1978 Schedule 1. o Great Britain = England, Scotland, Wales o UK = North Ireland + Great Britain

Does the UK have a Constitution? o No document to prove it, although not codified o “Assembly of laws, institutions, and customs, composing the general system according to which the community has agreed to be governed”- Bolingbroke o UK claims they have a Constitution based on having rules of Sovereign, rules on being a PM, rules about Parliament and what MP/HL members can do, Judges rules and their tenure, also there is the Human Rights Act, 1998 document o UK Constitution exists because of all these rules around it Sources of UK Constitution: • Mixture of legal and non-legal sources, forming backbone of Constitution o Legal Sources: § Acts of Parliament- Constitutionally Significant: • Magna Carta, 1215: o King John agreed to a Peace Treaty with rebel barons who captured London- it established the principle that everyone is subject to the law, even the King o Human rights laws traced back to this, individuals should have access to justice, the right to trial by jury, right to have a fair trial • Bill of Rights, 1689: o Placed limits on the Monarch’s powers o Sets requirement for regular Parliaments and freedom of speech o Legal basis for Parliamentary Privilege – Members of Parliament can criticize/ say what they like without being penalized, no consequences for this freedom of speech • Act of Settlement, 1701: o Excluded Catholics from succession to the ThroneCatholics seen as a threat to the Protestant Order o Catholics still cannot be a Sovereign o Succession to the Crown Act, 2013- removed disqualification of a person who married a Catholic from line of succession- it also altered laws of succession to reflect gender equality- eldest child inherits the Throne, regardless of gender o Parliament could alter succession- unlikely to happen since, Royal Assent- Queen must approve • Acts of Union, 1707: o Merged English Parliament and Scottish Parliament o Led to the creation of United Kingdom of Great Britain- UK Parl. Met for first time in October 1707

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Other Key Statutes: • Parliament Acts 1911, 1949: Established primacy of the Commons over the Lords • European Communities Act 1972: Incorporated European Community law into the UK • The European Union (Withdrawal) Act 2018: Repeal of the European Communities Act, 1972 • Human Rights Act, 1998: Incorporated ECHR into the UK § Further: • Scotland Act 1998, Government of Wales Act 1998, Northern Ireland Act 1998- These all devolved power to regional assemblies and regional Parliaments o Important Legal Sources: § Acts of Parliament- Source 1 § The Common Law- Source 2 • Existing Constitution relies on these legal sources primarily Ø Can the Queen, herself, cancel Brexit or make other laws? o Case of Proclamations [1610]: Monarch can only make laws through the Parliament- Legal ruling during reign of King James o Queen cannot seize control according to this, she cannot reverse history, Monarch cannot govern unilaterally, there are Constitutional checks on a Monarch Ø Can the PM, introduce a tax to buy a Prime Minister Airplane? Like, US Air Force 1 ? o No, according to Attorney-General v Wilts United Dairies Ltd [1921], there is no taxation without approval from the Parliament o Taxes can only be introduced through and with consent of Parliament R v S of S ex parte Factortame [1991] § As long as the UK is in the EU, EU law shall remain supreme, it takes precedence R (Jackson) v Attorney General [2005] § § §

Courts cannot strike down an Act of Parliament Challenge to Hunting Act 2004, outlawed hunting of foxes with hounds Failed to strike down law, Parliament is supreme

A and others v Secretary of State for the Home Department [2004] (Belmarsh Case) § UK anti-terror legislation, post 9/11, provided indefinite detention of foreign prisonersheld to be unlawful, House of Lords held that the Act Parliament passed contravened HRA Act, 1998, this Act unfairly discriminated between foreign nationals and British nationals who couldn’t § Unfairly discriminated between foreign nationals and UK nationals

CONSTITUTIONAL LAW LECTURE 4- OCT 7, 2019 PRO/CONS OF CODIFYING THE CONSTITUTION •

R (Miller) v The Prime Minister [2019] o Government’s decision to prorogue Parliament held unlawful o Boris Johnson argued that it was standard practice to close down Parliament for 5 weeks, arguing he has a good plan in mind for future plans, 5 weeks is too long

2. Sources of the UK Constitution (Continued): • Non-Legal Sources o 1. Advisory Sources (Writings of legal academics): § A.V. Dicey: • Dicey said British Constitution runs on two principles, o Which is Parliamentary Sovereignty- idea that Parliament, that passes a law, become an Act, that Act cannot be challenged in the courts or overturned ALSO • Dicey and Rule of Law: o Everyone is equal before the law o Everyone subject to the law of the land, irrespective of status and class o Penalties can only be imposed when a law is breachedArbitrary power is prohibited o Remedies for illegal action are sought and obtained in the ordinary courts o 2. Constitutional Conventions § Although not legally binding, they are very important § There is NO legal rule that there must be: • 1. A Prime Minister • 2. Royal Assent for bills to become law • 3. After losing an election, a Prime Minister resigns Ø These rules are all Conventions Arguments for Codification of UK Constitution: Discussion • Clarity: You can pinpoint the exact law, one written law, which can be pointed out, making it easier to make references to a particular law o Drawback here is that it would be difficult to make amendments however • Replace Conventions: Hold people accountable for breaking Conventions, have the law enforce them in this case, since Conventions traditionally and currently have no legal status o Thus, they will no longer be Conventions, it would have legal status

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Bill of Rights: Parliament could not have passed the anti-terrorism case, we would not have the Belmarsh case, this would mean that we would have entrenched human rights Codified Constitution: We would not have the Miller case- Because the PM could not have done this in the first place, we would get rid of the Constitution’s uncertainty Case for a Codified Constitution: It would offer clarity and certainty- It would be clear Attract reverence and public loyalty- Alluding to previous mentioned points Be superior to other laws, so it could check governments- Curbing executive powers Offer guidelines for devolution and or UK and EU relations- What powers should Scotland have, Northern Island have, Wales have, and also lay down framework for Brexit before and after

Ø Have arguments for and against having a codified Constitution Arguments against Codification of UK Constitution: Discussion • Problems reflecting traditional century-based history • Who would codify? Brexit already an issue, who would be accountable to devise a wellstructured Constitution? • No room for mistakes, not easily amendable, must do it right otherwise it can prove to be disastrous- ex. The right to bear arms, the Americans are stuck with the right to have firearms • If we codify, we may give judges too much interpretational powers- ex. US Supreme Court • Financial Downfall: Will not come cheap, it will be expensive since it would have to be drafted from scratch Case against a Codified Constitution: • Difficulties in drafting- what rights would it protect? Who would draft it? • Judges would interpret, do we want to give judges more power/ do we trust judges? • Constitutional flexibility would be lost • Financial cost of reform- Could public spending be made use of here?

CONSTITUTIONAL LAW LEC 5- OCT 8, 2019 INTRODUCTION TO CONVENTIONS Conventions are political ethics ‘expected norms of behaviour/codes’, rather than actual informed laws – Parallel with social norms, how we interact with everyone else o Inappropriateness will start to increase tensions among others o Expected do’s and don’ts- Conventions • Conventions are usually obeyed- not legally binding o Several practical reasons why they are obeyed o Ex. The serious consequences of not obeying them – Convention of Parliament meets annually, if this Convention was broken, the country would run out of money since taxation is determined by bills through Parliament, and we would not be able to pay for public services, no working hospitals, no police force in operation, and no universities or schools operational Ø Conventions are ‘the flesh that clothe the dry bones of the law’ – Professor Jennings o Basis are the bones, Acts of Parliament, and Common law decisions o Skeleton needs something more than bones, and the flesh, is akin to Constitutional Conventions- allows organs to work, blood to flow, muscles to work – illustrates the relationship

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Key Purposes of Conventions • 1. Prevent out-dated Constitution: o Flexibility, they allow the Constitution to change and evolve over time, Conventions are this mechanism to allow social and political change in attitudes • 2. Provide mechanism for those in power: o Control mechanism on those in government, accountability practice o Lord Acton: “Absolute power, corrupts absolutely” – The common man will suffer without a control mechanism, therefore Conventions are necessary and important o Conventions observed by Prime Minister, Judges, Sovereign, and Civil Servants 4 Examples of Different Forms of Conventions: 1. Conventions and the Royal Prerogative (ancient inherited powers of Crown): a. Convention of Sovereign inviting the Leader of the political party, who has the confidence of the House of Commons, usually after an election- Queen can invite the leader of the party who has the ‘confidence’ of House of Commons to form a government and become PM – does not mean the one who has majority Queen may not refuse Royal Assent to Bills passed through House of Commons and House of Lords: b. It become an Act of law, but traditionally, the Queen does not refuse Royal Assent 2. Conventions regulating House of Lords and House of Commons relations: a. Parliament must meet at least once a year- annually

b. In cases of conflicts, unelected House of Lords must give way to elected House of Commons- must yield to elected HoC (dominant house) c. Bills relating to public finance (taxation) must conventionally be introduced by a Minister in the House of Commons 3. Conventions: UK relations with the Commonwealth: a. Regulating Britain’s relationship with the Commonwealth b. Westminster may not regulate for other countries in Commonwealth, Convention that we do not interfere with their affairs, former colonies c. Appointment of Governor General, Queen appoints someone as her representative – acting on advice of the PM of that particular state d. Any change to UK’s succession – change of Prince William or Prince Charles, if Parli...