LAW1035 · Week 1

Root
Topic
Theme
Sub-theme
Detail
Case
The Westminster Constitution
What is a Constitution?
Defining Constitutional Law
Laws, rules, practices of state
HoL Select Committee definition
*Case: R (Miller) v Prime Minister* (Miller 2)
No single constitutional document
Raz: Thin v Thick
Thin Idea
Rules of the game
Who has power, how exercised
Every state has one
Thick Idea
Distribution of powers
Enduring, canonical, supreme
Judicial review, entrenched
A 'people's law'
Controlled v Uncontrolled
McCawley v The King
Controlled: special amendment procedure
Uncontrolled: ordinary legislation suffices
UK historically uncontrolled
UK as Hybrid
Uncodified, evolving
Parliamentary sovereignty
Common law rights + HRA
Conventions central
Historical Foundations
Glorious Revolution 1688
Bill of Rights 1688
Parliamentary democracy born
Parliament: institution not event
Crown limited: legal monarchy
Scottish Claim of Right 1689
Act of Settlement 1701
Judicial independence secured
Judges removable only for cause
Foundation of Rule of Law
Evolutionary Development
Reform Acts 1832–1928
Universal franchise by stages
Parliament Act 1911: HofC primacy
Practice & custom: responsible govt
Sources of the Constitution
Common Law
Parliamentary Sovereignty
Dicey's definition: make/unmake any law
Jackson v Attorney General
Common law construct (Lord Steyn)
Prerogative Powers
Case of Proclamations
Miller 1* and *Case: Miller 2
War powers, treaty-making
Judicial Review
Supervisory jurisdiction of High Court
Controls lawfulness of public bodies
Common Law Rights
Habeas corpus, jury trial
Entick v Carrington
Leach v Money
Cooper v Wandsworth Board of Works
AG v Guardian Newspapers (No 2)
Osborn v Parole Board
Constitutional Statutes
Thoburn v Sunderland City Council
Laws LJ: cannot be impliedly repealed
Citizen-state relationship or rights
Constitutional Treaties
Acts of Union 1707, 1800
Anglo-Irish Treaties 1921, 1985, 1998
ECHR 1950; HRA 1998
EU Treaties: accession to withdrawal
Constitutional Conventions
Unwritten political rules
Responsible government
Sewel Convention
s 28(8) Scotland Act 1998
Non-justiciable: *Case: Miller 1*
Fundamental Principles
Parliamentary Supremacy
*Case: Miller 1* at [43]
Cardinal constitutional principle
Responsible Government
R (Miller) v Prime Minister
Ministers accountable to Parliament
Separation of Powers
Qualified: executive in legislature
Complete for judicial power
Ex p Fire Brigades Union
Constitutional Reform Act 2005
Principle of Legality & Rule of Law
Ex p Simms
Express words to override rights
CRA 2005, s 1
R (Privacy International) v IPT
R (Anufrijeva) v SSHD
R (Cart) v Upper Tribunal
Models of Constitutionalism
Political Constitutionalism
Griffith: constitution is what happens
Parliament sovereign, courts deferential
Wednesbury paradigm
Accountability via elections/conventions
Dilemma: 'elective dictatorship'
Legal Constitutionalism
Courts enforce higher law
Entrenched rights, separation of powers
Substantive rule of law
Weinrib: postwar paradigm
Intermediate Constitutionalism
International Transport Roth GmbH v Home Secretary
UK between two poles
HRA as 'soft' Bill of Rights
Bi-polar sovereignty model
Engines of Change
Judges: New Public Law
Spycatcher saga
Anxious scrutiny doctrine
Common law rights: *Case: Derbyshire*
Legality: *Case: Ex p Simms*
Twin sovereignties: *Case: X v Morgan-Grampian*
Parliament: Reform by Statute
European Communities Act 1972
Factortame (No 2)
Devolution 1998
Human Rights Act 1998
Constitutional Reform Act 2005
The Pushback
ECA 1972 repealed (Brexit)
Cart reversed: JRCA 2022, s 2
Safety of Rwanda Act 2024
Basic Constitutional Tenets
Structure
Uncodified, flexible, organic
Constitutional monarchy
Union state
Power
Sovereignty of Crown in Parliament
Pre-eminence of Parliament
Parliamentary control of tax & forces
Governance
Qualified separation of powers
Judicial independence
Rule of law, checks and balances
Responsible government
Politically neutral civil service