Topic | Quotes/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" |