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1. Nature and Source

TopicQuotes/Juris
Political and Legal Constitutionalism - Quotes Laws LJ - "intermediate stage" / Tomkins - "political characterised by open government, ministerial accountability and electoral sovereignty"
Uncodified v Codified - all fine - Quotes Gamble - "locking in" / Barber - "works passably well" / Neuburger "no other country can point to such stability" / Barber "lack of clarity is self-defence mechanism"
Uncodified v Codified - need change - Quotes Scarman J "constitution is hidden" --> Allen "this furthers disengagement/ Halisham L "elective dictatorship"/ Baker - should have courts in supreme position
Constitutional conventions - what are they - Quotes Jaconelli "social rules of a character which regulate the manner in which gvmt is to be conducted" / Dicey "morality of the constituton" / Marshall "rules one ought to feel obligated by"
Constitutional conventions - pros and cons - Quotes Woodhouse - "imprecision works to the advantage of politicians" --> Bogdanor "lacks a referee" / Widgery L - "obligation founded in conscience only" / Barber "conventions aren't laws because of the lack of enforcement" / Allan "recognition = approval"
Enforceability of conventions - line of jurisprudence Madzimbamuto - no; legality =/= constitutionality however --> Partition Reference - no, but still produced political result --> Crossman, same deal, indirectly enforcing convention (Loveland) --> Evans, same deal = public interest --> Miller = square one?
Constitutional statutes - line of jurisprudence Origins in fund cons rights i.e Simms, Daly, Osborn and UNISON --> Thoburn, two categories of cons and non-cons leg --> Laws used as springboard for HS2 (different heirarchies)
Diceyan Conception of RoL 1. prevent arbitrary power, 2. enforce legal equality
Formal RoL - Definition Raz (negative value theory and "only one virtue") 1. all ruled by and obey law, 2. must be clear, 3. open courts and access, 4. no retrospectivity, 5. respect human dignity
Substantive RoL - Quotes Laws LJ - "higher law" / Dworkin "law should capture and enforce moral rights" / Barber - formal conception is based on substantive
Other ways of categorising RoL - Quotes Barber - "legal and non-legal" / Kramer "little sense and big sense" / weak and strong substantive conceptions
Formal RoL - line of jurisprudence All should be ruled - M v Home Office , Entick v Carrington, Cornerhouse v SFO / clear law - Reilly, Purdy, Walumba Lumba / free + ind - UNISON, constitutional protections / no retrospectivity, Reilly 2
Devolution - Quotes Rawlings - "lopsided" / Elliot - "supply and demand" / McHarg "bespoke arrangements" / Denning "freedom, once given, cannot be taken away - legal theory must give way to practical politics"
WLQ and EVEL - Quotes Rawlings "spectre at the feast" / Elliot - "no voice for England" / Trench "stop asking the question"
What next devolution - Quotes Mac Amhlagh - constitutional convention / Gardener "piecemeal reform" / Smith Commission - make SP permanent
Interpreting constitutional statutes - line of jurisprudence Robinson - generous and purposive, in effect a constitution --> Byelaws and Imperial Tobacco 'lol nope'
Common law rights - quotes Clayton - we should not always turn to common law (could be unusual rights needed) / Reed in Osborn - consideration does not "begin and end" with Strasbourg
S2 HRA - quotes Bingham - "not binding, just take into account" / Mance "some fundamental principle/misunderstanding"
S3 and S4 - quotes Nicol - courts are now using s4 more to promote dialogue / Rudger L - "go with the grain" / Millet L "fundamental feature" / Lord Hope "linguistically strained is fine" / Nicholls L "will not change policy"
When to use S3 - quotes Allan - courts have role as fundamental protectors of human rights / Kavanagh - should not challenge fundamental meaning
Common law rights - cases Daly - unlawful searches breached protection of privilege / Osborn - common law should not be first recourse / Kennedy - FOI request granted under common law rights
S2 HRA - line of jurisprudence - should mirror SS v AF - UK is reluctantly bound; Strasbourg has spoken / R v Chester - sets a higher benchmark 'truly fundamental principle' or "egregious oversight or misunderstanding"
S2 HRA - line of jurisprudence - can change Horncastle - and ADI - does not take British circumstances into account / Ullah + Rabone - opportunity to go beyond --> Nicklinson and Re P- importance of the margin of appreciation (but Re: G still inclined...)
Reasons to favour S4 - line of jurisprudence 1) Fundamental feature - Anderson / 2) matter of policy - Bellinger v Bellinger / 3) impact too big to be knock-on - Re S
S3 - line of jurisprudence Ghaindan - go with the grain (Rodger), fundamental feature (Millett) - difference between maj and min is application --> R v A - linguistically strained is fine
Parl Sov - quotes Blackstone - Parl can do anything which is not naturally impossible / Young - sovereignty lies with the courts / Jennings - Parl should be capable of making binding manner and form provisions
R v Jackson - judicial opinions Bingham - nothing to preclude use of one act to pass other. Parl chosen to redefine itself / Steyn - Parl can bind itself to manner and form, functional redistribution of legislative power / Hope - act is now political reality due to general acceptance
The future of sovereignty - quotes Allen - sovereignty is qualified / Jowell - courts are becoming more and more important / Sedley "bipolar sovereignty" / Bingham - "sovereignty still at apex"
Created by: bethysav