Constitutional Law

Notes, cases, and materials on constitutional law

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Barack Obama

"For in the end laws are just words on a page - words that are sometimes malleable, opaque, as dependent on context and trust as they are in a story or poem or promise to someone, words whose meanings are subject to erosion, sometimes collapsing in the blink of an eye."

Sir Ivor Jennings

"If a constitution means a written document, then obviously Great Britain has no constitution. In countries where such a document exists, the word has that meaning. But the document itself merely sets out rules determining the creation and operation of governmental institutions, and obviously Great Britain has such institutions and such riles, The phrase 'British constitutions' is used to describe those rules"

Past Papers & Questions

Essay Questions:

Essay Questions

1. ‘[Judicial deference] has two distinct sources. The first is the constitutional principle of the separation of powers. The second is no more than a pragmatic view about the evidential value of certain judgments of the executive, whose force will vary according to the subject matter.’ R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60, [22] (Lord Sumption)

Critically discuss the role judicial deference plays in judicial review decisions, and the implications, or even dangers, it might pose.

2. ‘I suggest that the non-enforceability of conventions by the Court[s] is of only marginal importance, at least in nearly all situations. In nearly all cases, the power authoritatively to identify and declare the terms of established constitutional conventions will be enough to attract voluntary compliance from the political actors.’ - W R Lederman ‘The Supreme Court of Canada and Basic Constitutional Amendment An Assessment of Reference Re Amendment of the Constitution of Canada (Nos 1, 2 and 3) (1982) 27 McGill LJ 527, 537-538.

Critically discuss the importance of conventions for the UK constitution.

3. ‘The United Kingdom does not have a constitution to be found entirely in a written document. This does not mean there is an absence of a constitution or constitutional law. On the contrary, the United Kingdom has its own form of constitutional law...’ R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) [18]

Critically discuss whether there are now legal arguments in favour of codifying the UK Constitution.

4. ‘[I]t could be said that the British Constitution does not know of any rule of law since no superior law puts limits to what Parliament may legislate.’ Phillips, Jackson and Leopold, Constitutional and Administrative Law (Sweet & Maxwell 2001)

Critically discuss whether this statement remains applicable today.

5. ‘The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes). A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority.’ Laws LJ in R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, [50].

With reference to the quote above, critically evaluate whether the judicial practice of enforcing legitimate expectations can be accurately described as being grounded in the principle of fairness.

6. Constitutional Reform Act 2005, section 1, states ‘This Act does not adversely affect [...] the existing constitutional principle of the rule of law’.

Critically discuss the role of the ‘existing constitutional principle of the rule of law’ in the British constitution and particularly its importance in relation to the constitutional position of the judiciary.

7. Critically evaluate the methods of enforcement and accountability for breaches of constitutional conventions.

8. Critically evaluate the legal significance and utility of the Human Rights Act 1998 within the UK Constitution.

9. Critically discuss the continued relevance of Wednesbury review.

10. Critically discuss whether the UK’s accession to the European Union has triggered a constitutional revolution and resulted in the demise of parliamentary sovereignty.

11. Critically evaluate the notion that the UK constitution is principally enforced, protected and upheld by processes that are distinctly political, rather than legal.

Problem Question 1

The (fictional) Immigration Centres Act 2016 was recently enacted. It was passed using the Parliament Acts 1911 and 1949 because of strong opposition from the House of Lords to some of the powers it confers on the Home Office.

Under the Immigration Centres Act 2016, new facilities will be opened:

  • s. 5 ‘the Secretary of State may (if necessary) change the use of other state owned facilities to use as Detention Centres.’
  • s. 6 ‘the UK Border Agency (UKBA) will invite tenders from private companies for any contract to manage any facility designated as a Detention Centre under this Act.’

In addition,

  • s. 11 ‘the Secretary of State may extend a person’s detention indefinitely if he believes such an extension to be necessary. The person is free to leave the United Kingdom if they choose.’

In April, the Home Secretary, Ms North, made a public statement that a new Detention Centre would shortly be opened on premises currently used by a publicly owned school for children with special learning needs. Alice, one of the children at the school, has severe learning difficulties and her doctors have warned that changing schools may be seriously detrimental to her wellbeing. Her mother contacted their MP, Mr South, who said ‘there will be a consultation and very likely, this change will not happen.’ Alice’s social worker also assured her on at least three occasions that the closure would not happen and Alice would always be able to go to school there. The plan has gone ahead and an Order has been made to close the school without consultation. Ms North says that the social worker had ‘no right’ to make the assurances she did.

Clive works for the UKBA and has been asked to invite tenders from private companies for the contract to run the Detention Centre. The contract is awarded to ‘Lock and Key’, a company run by a close friend of his wife, who had dinner with them the weekend before the decision was made. ‘Prison People’, another company, is unhappy to have missed out.

Daniil has been held in another Detention Centre for the past 6 months. He cannot return to his home country because of armed conflict which makes him afraid for his life. The Home Secretary, Ms North, however, is persuaded based on intelligence she has received that Daniil is involved with an organised criminal group. She has extended his detention ‘until such a time as he can be charged. We are still gathering the evidence. But he is free to leave the country if he chooses.’

Advise Alice, ‘Prison People’ and Daniil.