Law Notes Constitutional Law Notes
Constitutional Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB public law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London). Please note that all previous edition authors gained 1st class marks in their exams, and the 2016 notes are also of a high 1st standard, but the author just happened to become seriously ill befor...
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UK CONSTITUTION AND CONSTITUTION LAW
Abbreviation index
Consti = Constitutional
RoL = Rule of Law
Parl = Parliamentary
Sov = Sovereignty
Unwritten nature of the UK constitution
Unwritten constitution: no authoritative document that describes, establishes or regulates the structures of the state and the way in which these relate to the people
Bradley & Ewing (2010): unwritten constitution = body of legal rules, without special legal status, + binding political rules or constitutional conventions, concerning the government of the country
Does not mean that the UK has no constitution:
The Cabinet Manual (2011): consti order has evolved over time and continues to do so – “consists of various institutions, statutes, judicial decisions, principles and practices … commonly understood as ‘constitutional’”
Feldman (2005): constitution as machinery through which we give authority to choose between and accommodate conflicts between visions, rather than a set of settled rules
Two key characteristics:
Flat constitution ( hierarchical): no body of constitutional law occupying a hierarchically distinctive or superior position within the legal order
Fundamental rights not legally guaranteed
Un-entrenched leads to immensely flexible system as constitution can easily be amended
Legal and political constitutionalism
Debate about what makes the exercise of government power legitimate – closely related to idea of public compliance or consent – and accountability – how should those who wield public power be limited and/or held to account?
Political constitutionalism
Focuses on political mechanisms of accountability politics and particularly the parliamentary process should create, structure and define the authority of the governing institutions
Political process as most legitimate means of guarding against unconstitutional behaviour
Ultimate focus on parliamentarians and the public to whether gov behaving acceptably
General elections every four to five years, public enquiries + investigations by parl committee
Griffith: “law is not and cannot be a substitute for politics” – argues for highly positivist view of constitution
The Politics of the Judiciary (1979): argues that judges because of upper-class background + institutional position in society have a strong ideological bias towards established authority – politicised judiciary cannot act as effective guardians of ind liberty against the State
Tomkins: whether democracy is understood in terms of representativeness of the personnel or openness and accessibility, “Parliament will always enjoy greater democratic legitimacy than courts”
Legal constitutionalism
Sees the courts and legally enforceable rights as keys to limit government power
Gov controls Parliament – principle of parliamentary supremacy too weak to be an effective restraint on gov – provides no guarantee for fundamental rights or the right of minorities
Counter-majoritarian view of Democracy – governing in the interests of the whole and not just the majority represented in the political process
Laws (1995): Parliament possesses a political sovereignty, a sovereignty which cannot be objected to, save at the price of assaulting democracy itself
Ultimate sov rests not with those who wield gov power but in the conditions under which they are permitted to do so the Constitution, not the Parliament, is sovereign
Judicial power, last resort, ensure that this framework is vindicated
Political constitution | Legal constitution |
---|---|
|
|
A false dichotomy?
Loughlin (2006): basis questions is not whether we have a legal or pol constitution: it is how the idea of law within the political constitution (“the constitution of the polity”) might best be conceptualised
SOURCES OF THE CONSTITUTION
Judge-made law
Common law = binding rules formulated and applied by judges in decided cases has made a vital contribution to dev of constitutional law
Interpreting constitutional legislation
Judges, in practice, can make constitutional law through their interpretation of such legislation
Meaning of “possible” in s3(1) HRA 1998
Meaning of UK statute “shall be construed and have effect subject to” mean in s2(4) ECA 1972
Interpreting legislation by reference to constitutional principles
Courts have no power to override an Act of Parliament but have jurisdiction to interpret and apply statutory provisions in accordance with rules and presumptions of statutory interpretation
L Nicholls in ex parte Spath Holme (2000) on constitutional role of the courts: courts seek to ascertain the intention of Parliament and give effect to it – objective concept based on meaning of words
Through medium of statutory integration, courts will give effect to fundamental constitutional principles:
L Steyn in ex parte Pierson (1998): assumption by courts that “Parliament does not legislate in a vacuum” but “for a European liberal democracy founded on the principles and traditions of the CL”
Assumption only has prima facie force, can be displaced by clear + specific contrary provision
Ex Parte Witham (1998): broadly worded legislation read down to ensure it did not authorise the making of secondary legislation that would infringe CL-constitutional right of access to courts
Feldman (2014): constitutions are not to be interpreted with mechanical literalness but to “foster, develop and enrich” rather than undermine democratic institutions
Golden rule: statutes normally to be given their natural meaning unless would have an absurd result
Applicable generally to allow courts to produce...
Buy the full version of these notes or essay plans and more in our Constitutional Law Notes.
Constitutional Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB public law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London). Please note that all previous edition authors gained 1st class marks in their exams, and the 2016 notes are also of a high 1st standard, but the author just happened to become seriously ill befor...
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