Constitutional & Administrative Law Revision

  • Created by: 10dhall
  • Created on: 01-05-18 20:03
What are constitutional conventions?
A set of unwritten rules that are recognised by courts but are not legally enforceable
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What are the qualities of conventions?
Unwritten, flexible (as they aren't written), and they apply to the executive, legislative and judiciary
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What is the CC of Ministerial responsibility?
A key CC which applies to the government cabinet and individual ministers
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What are the rules for individual ministers?
They must be competent in office and have an impeccable behaved private life
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What is the Royal Prerogative?
Powers that were once enjoyed by the monarch, which are now dealt with by the Crown
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Facts about the Royal Prerogative?
Dates back to Henry VIII, least flexible source of UK Constitution, the shift of power from the monarch to Parliament happened in the 17th century, only a few remain today
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What case is involved in PP's?
The Case of Proclamations 1611
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What happened in the Case of Proclamations?
Chief Justice Coke established that no new PP can be created, as well as they cannot be widened or extended
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What case followed the Case of Proclamations?
BBC v Johns 1965 (income tax, bbc)
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Facts about the relationship between the RP & Parliamentary supremacy?
Statue and Parliament prevails over RP
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What are examples of Parliament prevailing RP's?
The Crown Proceedings Act 1947, A-G v De Keyser's Royal Hotel 1920
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What are key statutes to include in a Separation of Powers exam question?
The Constitutional Reform Act 2005 and the House of Commons Disqualifications Act 1975
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What is the relationship between the executive and legislature?
Separation is the weakest here
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What is the Rule of Law and who gave the definition?
Dicey - nobody can be punished until proven guilty, nobody is above the law so everyone should be treating equal, courts provide remedy for breach of individual rights
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What are some academic views on the rule of law?
Herbert Hart, Joseph Raz - the purpose of the rule of law is that it is there merely to provide a clear framework of the law so that individuals can be aware of where they stand
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What are a list of advocates with viewpoints on the ROL?
Dicey, Dworkin, Lord Bingham
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What does Dworkin argue?
He argues that the ROL demands more than just a clear set of rules, and that the judges should interpret the law in terms of consistent moral principles, especially justice and fairness - not just the process
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What are Lord Bingham's rules?
The law should be accessible and clear, legal issues should be resolved through legal processes, the law should be equal to all, and it should afford adequate protection for human rights
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How does ROL sit with PS?
Dicey said they are the 2 fundamental principles of the UK Constitution, the ROL operates as a check on the executive by requiring that it acts in line with parliamentary authority
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What are examples of Parliamentary Supremacy?
Statute overrides international law, conventions, case law and RP
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What are the acts that mean Parliament have full powers for Scotland and Wales?
The Devolution Acts 1998
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What are some facts about the ECHR 1950?
Came as a result of WW2, only 3 countries aren't a part of, no updates in 50 years, based in Strasbourg
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Wha was life like before the ECHR came into place?
The only possibility of bringing a claim of breach of ECHR was to go to Strasbourg
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What is dualism?
A dualist takes an approach which means for treaties such as the ECHR to be incorporated into UK law, there are two events which need to take place
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What are the two events?
1. UK Gov must sign the treaty 2. UK Parliament must implement their own statute
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Evidence of the effectiveness of the statute?
Genocide in Bosnia, events in Europe; however the countries were not part of the COE at the time
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What are the requirements to bring a claim under the ECHR?
You have to be a victim; stated in Klass v Germany where the court interpreted 'victim' to mean directly affected
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What are the exclusions to this?
A parent can bring a claim on behalf of their child, or a relative of a deceased person
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Rules on claims from a country outside Europe?
Does not matter where someone is born, it only matters where the incident took place
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What is an absolute right?
A right that can never be taken away or changed such as Article 3
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What is a qualified right?
A qualified right can be changed or edited / excused with 3 requirements, such as Article 8 and 10
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What is a case example of a qualified right?
Sunday times v UK 1970 (newspaper, interference with jury trial)
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What is another case example of a qualified right involving article 8?
Malone v Met 1979 (phone tapping, Article 8 private life, Strasbourg agreed and overturned UK)
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What is a case example of the Strasbourg court agreeing and overturning a UK decision?
Gillan v Met 2006 (s44 Terrorism Act stop and search, too loosely written)
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What is ECHR's version of the proportionality test?
Two stage test: 1. Asking if there was even a need to carry out the restriction in the first place 2. Was the action the defendant took proportionate?
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What case demonstrates how the ECHR came up with the test?
Handyside v UK 1976 (copies of taboo books, ECHR upheld UK's decision)
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What is dualism?
Requires that UK Parliament needs to pass its own UK statute to incorporate a treaty into UK law even after UK gov have signed the treaties
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What two articles did the ECHR feel did not need to be incorporated?
Article 1 and 13
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What are some of the Articles?
Article 3; torture, Article 8; private life, Article 10; freedom of expression, Article 6; right to a fair trial
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What is the difference within the details of ECHR and HRA?
ECHR has Articles and the HRA has sections
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What are some important sections of the HRA 1998?
Section 2; impact of ECHR decisions on UK courts, section 3; obligation of UK courts to give effect to ECHR, section 6; duty on public authorities to respect ECHR
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What changes has the HRA 1998 made to UK citizens in terms of the geographical locational of the court in which they can imitate a claim of ECHR rights?
1. Prior to 2000, UK citizens had to travel to Strasbourg. 2. Since 2000, UK citizens can bring ECHR claims in UK courts, UK citizens can still turn to ECHR but only as a last resort
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What changes has the HRA 1998 made to UK citizens in terms of the UK's ECHR jurisdiction?
Irrelevant where you are from, only matters where the incident occurred. Article 1 ECHR; security to everyone within their jurisdiction
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Who was the ECHR 1950 drafted by?
The COE
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Who drafted the HRA 1998?
The UK
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What section of the HRA 1998 states that domestic courts must take into account the ECHR's decisions?
Section 2
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What Article was not incorporated into UK law?
Article 1 because they already have it covered within S2 of the HRA
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What is Dicey's view on Parliamentary sovereignty?
1. Parliament is competent to pass laws on any subject 2. Parliament can regulate the actives of anyone anywhere 3. Laws passed by Parliament cannot be challenged by the courts
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What did the ECA 1972 do?
It made EU law precede over UK law and ensures that some types of EU law take direct effect into the UK's legal system
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What case is relevant within PS?
Factortame 1990 -EJC held that the English courts could not apply the Merchant Shipping Act as it contravened the Treaty of Rome 1957
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Other cards in this set

Card 2

Front

What are the qualities of conventions?

Back

Unwritten, flexible (as they aren't written), and they apply to the executive, legislative and judiciary

Card 3

Front

What is the CC of Ministerial responsibility?

Back

Preview of the front of card 3

Card 4

Front

What are the rules for individual ministers?

Back

Preview of the front of card 4

Card 5

Front

What is the Royal Prerogative?

Back

Preview of the front of card 5
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