Constitutional Law

Rule of Law - Diceys PrinciplesPunishment for breach of law only - No secret laws or wide discretion etc. Entick v Carrington 1765 - "If it is law, it will be found in our books. If it not be found there, it is not law" - Statement suggests courts are reluctant to enforce what is not law. Contradicted by power to detain a suspected terrorist without charge - S10 Anti-terrorist, Crime and Security Act 2001 Contradicted by retrospective laws where the act was not illegal at the time of committing etc - R v R 1991, S2 War Damage Act 1965. Everyone subject to the same laws - Government under the law, no special courts etc. M v Home Office 1994 - Secretary of State not entitled to claim crown immunity. Everyone should have equal access to justice - Assisted by Article 6 ECHR and Access to Justice Act 1999. Not same laws and courts for all - Parliamentary Privilege, Crown immunity, special tribunals, access to justice limited.

Ordinary law before ordinary courts - common law protection of liberties. R v Horseferry Road Magistrates' Court, ex parte Bennett 1994 - Judiciary will 'refuse to countenance behaviour that threatens either basic human rights or the rule of law'.

Parliamentary SovereigntyDicey proposed: 'the sovereignty of parliament... is the dominant characteristic of our political institutions'. Based on three principles.

No body, including the British courts, can question an act of parliament Coke LJ in Dr Bonham's Case 1610 suggested that the common law could adjudge an act to be void. Bill of Rights 1689 - Denied the right of the courts to overrule acts. BRB v Pickin 1974 - Lord Reid said that owing to the Bill of Rights, Coke LJs suggestion has become obsolete. Jackson v Attorney General 2005 - Lord Steyn, Hope and Lady Hale all reasoned as obiter that the common law should limit parliament's power.

Parliament cannot be bound by a predecessor nor can it bind a successor Ellen Street Estates v Minister of Health 1934 - Legislation can be repealed impliedly if a later parliament legislates on the same subject matter. Thoburn v Sunderland City Council 2002 - 'constitutional legislation' must be repealed expressly and accordingly demonstrates an extent of entrenchment.

Parliament can make any law whatsoever regardless of subject, time and geographical limits Cheney v Conn 1968 - 'What the statute enacts cannot be unlawful, because what the statute says is itself the law that is known to this country. It is the law which prevails over every other form of law' as per Ungoed-Thomas J. Constitutional legislation: Magna Carta 1215, Act of Settlement 1700, Parliamentary Acts 1911 & 1948, European Communities Act 1972, Human Rights Act 1998, House of Lords Act 1999. Demonstrated by retrospective legislation such as S2 War Damage Act 1965.

Separation of PowersMontesquieu identified three organs of the government which should be functionally independent: Executive (Crown + Government) - Enforces policy and law. Legislature (Parliament + Crown) - Creates the law. Judiciary (Courts) - Interprets and applies the law. It's suggested that this prevents tyranny and safeguards the liberty of individuals.Fusion of the executive and legislature in the UKWalter Bagehot proposes that there is a 'nearly complete fusion of power of the executive and legislative powers'. Party in power of government hold a majority in parliament. Prime Minister largely controls the agenda within parliament. Majority of the ministers of government sit in parliament - although this was limited in number by the House of Commons (Disqualification) Act 1975. Parliament retains formal power to dismiss executive officers. Ministerial code establishes accountability of government to parliament. This integration is said to provide stability and efficiency in the operation of government. Parliament can delegate law making powers to government - liberates parliaments need to scrutinise small technical details while maintaining safeguard of parliamentary approval.

Independent Judiciary Said to be most independent judiciary in the world. Supreme Court formed by Constitutional Reform Act 2005. Judges of the highest court are no longer allowed to sit in parliament. Supreme Court justices are elected from within the judiciary. Judges are prohibited from standing for election to parliament under House of Commons (Disqualification) Act 1975. Judges interpret in line with intention of parliament. Judges responsible for development of common law. High Court judges and above require a resolution of both houses to be removed from office. Judges cannot challenge validity of acts but have leeway when interpreting statutes. Parliamentary privilege prevents contravening coming from the judiciary. Parliament cannot interfere in cases currently before the courts.

Royal PrerogativeDicey said that it is 'the remaining portion of the Crown's original authority, and is therefore... the name for the residue of discretionary power left at any moment in the hands of the crown'. Shell of power - Power lies with the government as delegated from the crown whereas the crown has powers to use in emergencies (known as personal prerogatives). Monarch acts formally on advice from ministers - legal action taken against a minister is against the crown as per M v Home Office and another 1993. Not regulated or restrained (apart from conventions) - Can be subject to judicial review as per CCSU v Minister for the Civil Service 1985. Does not rely on law for its legitimacy but on the authority of the crown. Identifying a prerogative often rests on an 'unspoken assumption' - R v Northumbria Police Authority 1988. BBC v Johns 1965 - Cannot create new prerogative powers.

Personal Prerogatives Defined by Jennings as 'certain prerogative powers which she exercises on her own responsibility, and which may fitly be called the personal prerogatives'. Appointment of Prime Minister - Convention as there is a procedure in place to determine who the PM should be (Leader of elected party). Royal assent to legislation - Convention - last refused in 1708 - if rejected it may cause uproar as it would undermine the principle of democracy - Could be used to protect the public in the case of legislation prolonging parliament infinitely. Dissolution of parliament - Done on advice of Prime Minister - but Fixed Term Parliaments Act 2011 provides that this prerogative may not be useable as it is now law that the term of parliament will last exactly 5 years.

Conventions Applies to: MP's, ministers, civil servants, judges and the monarch. Unwritten - sometimes elucidated upon in writing e.g. Ministerial Code 2010. Recognised through Jennings' three stage test: What are the precedents? - Did the actors in the precedent believe they were bound by the rule? - Is there a reason for the rule? The Supreme Court of Canada in Regerence re Amendment of the Constitution of Canada 1982 - "the main purpose of conventions is to ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period". Not legally binding - politically enforced. Said to be "the flesh which clothes the dry bones of the law" by Jennings. AG v Jonathan Cape 1975 - Courts recognise existence of conventions but because of parliamentary privilege it is not legally binding because no court can enforce them.

Should conventions be codified as laws? For: Clarity, certainty, legal enforceability, transparency, accountability and procedure for change. Against: Flexible usage, 'Quiet' adaptability, evolution and judges might become embroiled in political matters.

Nolan Principles (Ethics code for public office members) Selflessness - do not act solely in terms of public interest. Integrity - do not place self under financial obligations to outsiders. Objectivity - makes choices on merit. Accountability - be accountable. Openness - always give reasons for decisions unless in wider public interest. Honesty - duty to declare any private interests relating to their public duties. Leadership - promote and support principles by example.

Rule of Law

Parliamentary Sovereignty

Separation of Powers

Royal Prerogative

Conventions