constitution思维导图
U534561445
2023-05-16
constitution
宪法
constitution
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constitutional alw
3 key principles
parliamentary sovereignty (or supremacy): highest form of law is Act of Parliament
rule of law: government should comply with law, law should applied fairy, not retrospective effect
separation of powers
executive
government
legislature
parliament
judiciary
court
declaration of incompatibility: the court cannot strike down (declare unconstitutional) an Act of Parliament, but only make "declaration of incompatibility"
Parliament
composition
house of commons
elected - 650 Members of Parliament - MPs
Her Majesty's Loyal Opposition - Shadow Cabinet
term: five years
house of lords
unelected - around 800 members
hereditary peers
life peers (majority)
lord spritual
law lords
monarch
legislation
a parliamentary session lasting 12 months, starting each May.
a bill must pass HC, HL, receive royal assent before end of the session
prorogation (suspend parliament during sessions) by Monarch on advice of PM
legislative process
first reading: introduce
second reading: debate
committee stage: scrutinised line by line by committee
public bill committee: 16-30 MPs
committee of whole house - only important bills
report stage
third reading: brief and final review
House of lord repeat above, and may send back to House of Commons
Royal Assent
Salisbury convention:
if a bill is implementing a commitment the party elected made in their manifesto, House of Lord will grand a second reading
suspensory veto
if House of Lord block a bill passed by HC, which is then reintroduced in next session, it will sent to Monarch for Royal Assent
parliamentary privilege
absolute freedom of speech within parliament
Sub Judicie Rule
do not refer to cases currently before courts
exception
court may use parliament debate record to interpret legislation
Acts of Parliament
international treaty need be incorporated in domestic law by Act of Parliament to be effect
Enrolled Bill Rule: court do not question the validity of legislation, do not consider procedures of parliament
no parliament can bind its successor
European Communities Act 1972 have EU law automatically binding
EU law overrides Act of Parliament
secondary legislation:
Acts of Parliament grant government power to make laws
enactment
negative resolution procedure: lay before parliament. if no motion is passed within 40 days, it becomes law.
affirmative resolution procedure: vote in favor of secondary legislation for it to become effective
Henry VIII Powers: powers granted to government to amend primary legsilation
challenging in court: it is made by government not parliament, so it can be struck down by court if made beyond the power granted to government
royal prerogative (a part of common law)
basic
a collection of powers which common law recognises as belongint to the Crown
no new prerogative powers can be created
relation with statutes
can be abolish or replace by statute (Act of Parliament)
when overlap, statutes prevail
statutes do not bind crown unless expressly stated or by necessary implication (e.g. tax not on government)
groups
ministerial
diplomatic related
personal
personally exercised by Monarch
miscellaneous or archaic
right to mine precious metals, etc.
government
crown includes Monarch, PMs, and others collectively form the government
cabinet
prime Minister
"First Lord of the Treasury"
appoints all other ministers
Secretary of State : the most senior ministers
other senior ministers
cabinet committees
allow for matter discussed without need to go full cabinet. decisions made have same authority with cabinet
privy council
main business: entirely formal, pass Orders in Council, a form of legislation
appointed for life by Monarch on advice of PM
Judicial Committee of Privy Council: hear appeals on points of law from commonwealth nations
devolution
institution
Welsh Parliament
Scottish Parliament
Northern Ireland Assembly
Sewel Convention
if UK parliament is to legislate on a matter devolved to Scotland, Wales or NI, the consent of affected institutions is reqired.
review of legislation by court
Advocate General/Attorney General may refer to legislation to Supreme Court
cardinal convention: Monarch always acts on advice of her ministers
Ram Doctrine (third party power): give government power to carry on ordinary business that not authorised by statute or royal prerogative.
hung parliament: when election does not result in an overall majority for one party
PM remains in office
political parties negotiate
judicial review
only review legality (whether proper procedures are followed) but not the merits of decisions
excepion
matter involving both private law and public law can be resolved in private law
condition
decision made by government
of a public nature(not private disputes)
claim bring per correct procedure within reasonable time limit
good standing
last resort (other possibilities should have been exhausted )
procedure
pre-action protocol
send letter to defendant
permission stage
apply to permission to continue claim
grounds
illegality
ouster clause (exclude court jurisdiction)
Public sector equality duty： consider equality when make decision
procedural impropriety
right to hear (by common law): when act against a person, should hear his response
bias
actual bias
apparent bias: fair-minded and informed observer test
unreasonableness
breach of legitimate expectation
raised by
an explicit promise or assurance
previous action by public body
usually procedural
exceptionally substantive expectation will be considered
grounds for refusal
outcome would not change substantially
time limit
promptly, within 3 months
remedy
quashing order
original decision void
mandatory order
order defendant act in a particular manner
prohibiting order
order defendant not act in a particular manner
injuction
preventing acting in certain manner or acting according to court instruction
declaration
declare decision complained or unlawful
human rights law
convention rights
absolute rights
right to life
prohibition of torture
prohibition of slavery and servitude
prohibition on retrospective criminal offences
limited rights
(can be limited only by article itself)
right to liberty and security
right to a fair trial
qualified rights
(can be limited by state)
proportionality test
object: so important that may limit fundamental rights
measures: reasonable
degree:no unnecessary interference
ECtHR
living instrument principle
not bound by previous decisions
consistent approach of contracting states
accessible to all individuals
margin of appreciation
only grant states a narrow margin of appreciation. states have little discretion
derogation
if derogated, no need to comply with relevant part of ECHR
absolute right cannot be derogated
can derogate in public emergency
HRA in UK
mirror principle: make ECtHR case law an important source of law
interpret in a way as interpreted by ECtHR
declaration of incompatibility
a signal to government and Parliament
two fast-track procedure to correct
non-urgent matter: remedial order, allow both Act of Parliament and secondary legislation to be amended via secondary legislation
urgent matter : minister make a order with immediate effect. must be laid before parliament, if not passed within 120 days, will cease to have effect
public authorities unlawful action
public authority including court
victim
representative standing is not allowed. victim means only directly affected
discrimination
can only be brought attached to breach of another convention right
Equality Act 2010
can raise freestanding claim of discrimination
direct and indirect discrimination
public order law
must follow ECHR and HRA
breach of Queen's Peace
verbal threats need together with physical conduct
either public or private premises
procession
6 clear days before
inform police station
date, time, route, PIC information
condition: senior police offer may impose condition to prevent disorder
ban: chief constable can ban up to 3 months
exception: no need for commonly or customarily held event
assemblies
similar to procession
traspassory assemblies: 20 person
ban: chief constable apply to local council to ban
EU law
key principle
supremacy
direct effect
laws
treaties
only source of primary legislation
secondary legislation
regulations
automatically binding
directives
need incorporate in domestic law
Act 2018-Retained EU Law
Section 2- EU-Derived domestic legislation (directives) - remain as UK law
Section 3- Direct EU Legislation (regulations) - converted into UK law
Section 4- directly effective EU law (treaties) - converted in UK law
Section 5 - retained EU law's supremacy - before yes/after no
Section 7A- Withdrawal Agreement's supremacy and direct effect
Section 6 - retained case law-before/after
retained EU case law-SC&CA
retained domestic case law-SC
Section 7-retained EU law can be repealed
Section 8 - give government power to make logical amendments-expire at the end of 2022 / five years after enter into force
Section 12- Devolution to Socottish, etc.
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