GDL Law Notes GDL Constitutional and Administrative Law Notes
A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of applications from mostly first class students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
...
The following is a more accessible plain text extract of the PDF sample above, taken from our GDL Constitutional and Administrative Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Public Law Revision Summary
Challenges to the Orthodox Theory 4
Judicial Control of the Royal Prerogative 17
Part II: Administrative Law 22
Amenability to Judicial Review (Public Bodies) 26
S.2 – Strasbourg Jurisprudence 42
S.3 & S.4 – Interpretation of Legislation 43
Constitutional (1 from 3); Administrative – (1 from 3); Human Rights (1 from 2)
Colin Turpin: ‘‘a body of rules, conventions and practices which regulate or qualify the organisation and operation of government in the United Kingdom”
Stanley de Smith: “a central, but not the sole feature, of the rules regulating the system of government”
Vernon Bogdanor: “a code of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government, and defines the relationship between these and the public”
Madison in the Federalist Papers argued some values were too important for ordinary politics
Entrenchment
Procedural Entrenchment - procedurally protected law (e.g. a super majority required)
Substantive Entrenchment – laws that cannot be repealed.
West Virginia on v Barnette US Supreme Court (1943)
Justice Robert H. Jackson: forceful defence of free speech and constitutional rights generally as being placed “beyond the reach of majorities and officials.”
US the the sovereign lawmaker is 'the people'
The people are: 2/3 majority in Congress or 2/3 of States to propose and 3/4 of state legislatures to ratify
Sovereignty in the UK – four ideas:
1) The Crown (cf. James I)
2) Parliament (Parker – tripartite structure represents estates of the realm)
3) Common Law (Dr Bonham’s Case (1610))
Coke LJ “When an Act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it”
4) Natural Law
Day v Savadge (1615) per Hobart CJ: “even an Act of Parliament, made against natural equity, as to make a man judge in his own case, is void in itself”
Post 1688 there was a presumption that Parliament was sovereign lawmaker (Blackstone (mid C17) and Dicey (late C19))
Civil War (1688) and Declaration of Right settled this dispute
Alleged James II had infringed upon liberties by levying taxes and suspending laws without Parliaments consent. Implication people naturally possess these liberties.
James was deposed and replaced by William of Orange and Mary
A condition of doing this was accepting that sovereign legal power lay with Parliament.
Blackstone’s Theory (1765)
American revolutionary time - If [the legislature] will positively enact a thing to be done, the judges are not at liberty to reject it – Judges not above legislature
Bernard Bailyn argues Americans wanted to search for the seams along the fabric of
Diceyan Orthodoxy
Two elements to his statement of constitutional parliamentary sovereignty.
1) The positive limb: Parliament can enact legislation on any subject matter whatsoever;
2) The negative limb: no court possesses the legal power to overturn or refuse to apply an Act of Parliament
Therefore
There is no distinction in substantive terms between ordinary and fundamental laws enacted by Parliament
There is no distinction in procedural terms between ordinary and fundamental laws enacted by Parliament
City of London v Wood [1701]
“an Act of Parliament can do no wrong, though it may do several things that look pretty odd".
The Enrolled Bill Rule (Wachope; Lee v Bude and Pickin)
Edinburgh Railway v Wauchope (1842)
Landowner affected by a private Act of Parliament authorising compulsory purchase of land for the construction of a railway, tried to argue court should declare act void for failing to give sufficient notice.
Lord Campbell thought that judging the constitutional adequacy of proceedings in either the Commons or the Lords was entirely beyond the court’s powers.
Lee v Bude and Torrington Railway (1871)
Wile J: “if an Act of Parliament has been obtained improperly it is for the legislature to correct it by repealing it: but so long as it exists as law, the Courts are bound to obey it”
British Railways Board v Pickin.
Mr Pickin alleged that British Rail had steered a private Bill through Parliament without giving the necessary notices to affected landowners.
Lord Reid explicitly denied that the courts had any power to question the legality of a Bill’s passage through Parliament.
Enrolled bill Rule: once a bill is on the statute books it cannot be altered by anyone other than parliament.
The Doctrine of Implied Repeal
Vauxhall Estates Ltd v Liverpool Corpn [1934] and Ellen Street Estates Ltd v Minister of Health [1934]
Acquisition of Land Act 1919 s.7
The landowners affected sought to have compensation assessed on the basis used in the 1919 Act.
Housing Acts of 1925 and 1930 made these provisions less generous.
Cannot procedurally entrench act - 1919 Act: “as inconsistent with this Act those provisions shall cease or shall not have effect”
Distinguished express and implied repeal - ‘functionalist’ approaches to parliamentary sovereignty
Summarily rejected at appeal: the judges adopted instead a formalist approach that the courts unquestioningly obey the most recent Act of Parliament.
Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590
Scrutton LJ: “Parliament can alter an Act previously passed…by enacting a provision which is clearly inconsistent with the previous Act”
Thus Parliament can impliedly...
Buy the full version of these notes or essay plans and more in our GDL Constitutional and Administrative Law Notes.
A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of applications from mostly first class students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
...
Ask questions 🙋 Get answers 📔 It's simple 👁️👄👁️
Our AI is educated by the highest scoring students across all subjects and schools. Join hundreds of your peers today.
Get Started