Public Law - Sources of UK Constitution III - Case Law I (Common Law)

?
  • Created by: Alasdair
  • Created on: 12-11-20 20:20
View mindmap
  • Sources of UK Constitution III - Case Law I (Common Law)
    • Actions of the State must have legal authority
      • Established through common law actions taken by state officials (such as police officers) must have legal basis if they are to be lawful
        • Links to principle of rule of law
      • Entick v Carrington [1765] 19 St TR 1030
        • Secretary of State issued general warrant for arrest and search of Entick
          • Entick allegedly publishing seditious material
        • Court found no legal authority enabling Secretary of State to issue such general warrants and any authority for lawful exercise of power by state had to be found 'in the [law] books. If it not to be found here, it is not law'.
        • Case established
          • principle state officials could not act in an arbitrary manner and exercise of power by state had to have clear legal authority.
          • Law did not provide state officials with any form of exemption or 'get out' from legal accountability for  their actions.
    • Legal disputes should be resolved by judiciary
      • Case of Prohibitions (Prohibitions del Roy) (1607) 12 Co Rep 63
        • Early example of common law setting out constitutionally important principle
        • Concerned dispute over land which King sought to settle by making ruling
        • Court held monarch had no power  to decide legal matters by way of arbitrary rulings
          • Legal disputes should properly by resolved by Courts
        • Lord Coke ruled
          • King couldn't judge any case
          • Court must deterine cases
      • Another aspect of rule of law
    • Habeas corpus and individual liberty
      • Remedy of habeas corpus
        • individual who has been detained by state has right to have legality of detention tested before court
        • developed originally through common law
      • A and others v Secretary of State for the Home Department [2005] 2 AC 68
        • Example of case law setting out principles of constitutional importance
        • Belmarsh
        • Provisions in Anti-terrorism, Crime and Security Act 2001 challenged
          • Act permitted foreign nationals suspected of being involved in terrorist activities (but against whom there was insufficient evidence to bring criminal proceedings) to be detained indefinitely without trial.
        • House of Lords held such detention was unlawful and breach of ECHR
    • Right to fair hearing
      • Courts have repeatedly stressed importance of right as fundamental constitutional principle
      • Important part of rule of law
      • Also contained in Article 6 of ECHR
        • Now forms part of UK Law following Human Rights Act 1998
    • Parliamentary supremacy
      • Common Law doctrine accepted by judiciary
      • Edinburgh and Dalkeith Railway Co v Wauchope and Pickin v British Railways Board
        • Developed and applied common law 'Enrolled Act' rule at centre of Parliamentary supremacy
          • States once Act of Parliament has entered onto Parliamentary roll, courts will not question validity of Act or hold Act to be void.

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all Public Law resources »