Combo with public law 2,3 and 11 others

What are constitutional statutes? NOTE: In theory, however, none of these has a formal constitutional status: they can be amended at Parliament's will without any special procedure.

-define the membership of Parliament (e.g. the House of Commons (Disqualification) Act 1975) -provide for national representative assemblies (see the Northern Ireland Act 1998, Scotland Act 1998, Government of Wales Act 1998) -enable the reception of European Community law into domestic law (see the European Communities Act 1972) -protect civil and political rights (e.g. the HRA 1998)

Individual Ministerial Responsibility Ministerial Code

-expected to uphold highest standard of propriety uphold collective responsibility -accountability to Parl. for their department -accurate and truthful information to Parl. else expected to resign -as open as possible to Parl and public, unless not in public interest. - no conflict between private lives and public interest.

Pickin v British Railways Board [1974]

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TEU Treaty on European Eunion TFEU Treaty on the functioning of the EU

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Individual ministerial responsibility: 2 aspects

1. expected to conduct himself or herself in an appropriate manner. Any financial or sexual misconduct may lead to demands for resignation. 2. accountable to Parliament for the management of his or her government department. It used to be the case that any serious failures in policy or administration would result in a minister's resignation

Ministerial responsibility, why?

1. government acts in accordance with the principles of the constitution 2 is fully accountable to the electorate through Parliament

differences between conventions and rules of law

1. origin of law in act or judicial decision, convention comes as a result of practice at undefined time. 2. certainty in legal rules, but not all conventions (e.g. ministerial responsibility) 3. change in law identifiable from statue or decision 4. break of law=> legal sanction, convention=> possible political repercussions. 5. serious breach of convention can lead to its destruction, not for law.

individual responsibility for personal conduct ex:

1963 Profumo affair: Christine Keeler sexual relationship also with Russian Navy attache. resigned due to contempt of the House, lyiing. 1973 Lord Lambton resigns after had been revealed his association with prostitutes.

What are the principal sources of the constitution?

Acts (bill of rights, human rights act ) Common Law:custom of Parliament, royal prerogative European: ECHR, European Community and Union (Treaties) constitutional Conventions Ministerial Responsibility : collective and individual Authoritative Works:Blackstone, Dicey, Jennings.

Legislature and judiciary

Constitutionally, judges have no power to question the validity of legislation: question of whether the judges 'make law'. This aspect of the judicial role is enhanced under the Human Rights Act 1998 (see Chapter 15) which imposes a duty on the judges to interpret legislation 'as far as possible' in a manner to make it compatible with Convention rights.

European Convention on Human Rights

Court of Human Rights in Strasbourg (France) has the ultimate jurisdiction

Scotland case sep of P Starrs v Procurator Fiscal, Linlithgow [2000] D claimed that his trial before a temporary sheriff violated his right under Art.6 (1) to a trial before an independent and impartial tribunal. Temporary sheriffs are appointed by the Lord Advocate (a member of the Executive) as a first step on the road to a permanent judicial appointment.

Court of Session ruled that the independence of the judiciary was impaired, and hence the right to fair trial violated, through the dependence of temporary judges for reappointment on the office of Procurator Fiscal. Judicial independence can be threatened not only by direct interference, but also by a judge being influenced (consciously or unconsciously) by his hopes and fears about his future career.

Individual ministerial Responsibility examples of breakdowns

Crichel Down 1952 1954-1982 no notable resignations 1968 :Foreign Secretary George Brown does not resign over Sachsenhause affiar (wrong denial of compensation to victims of Nazi) 1984 Prior does not resign following escape of terrorists from Maze prison (cites failure of others should not=>resign of minister) 1994 Michel Howard does not resign over prison escapes (cites Prior)

Executive:

Crown, central government (PM+cabinet) civil servants, armed forces, police. formulate and implement government policy across all governmental activities. The elected government of the day is accountable to Parliament, which has the ultimate power to dismiss a government and force a general election through which the people will decide on who will run the next government. Members of government are primarily elected Members of Parliament who sit in the House of Commons, although a number of government ministers also sit in the House of Lords. limits imposed on the number of salaried ministers who sit in the Commons under the House of Commons

Parliament

Crown, elected house of commons and HL. HOC: elected, law making powers 1 election at least every 5 years Parliament Act 1911

Attorney General v Jonathan Cape Ltd 1976

For injunction: 1.breach of confidence 2 public interest requiring restraint of publication 3. no other contrary public interest of greater priority. Disclosure would be permitted later though, when the material ceased to be confidential, the precise time being left to the courts discretion. With the Crossman Diaries being over ten years old, disclosure was subsequently allowed. collective responsibility and the doctrine of confidence which seems to be inconsistent with principles of open and accountable Government. Constitutionally, the decision reaffirmed that conventions are not enforceable, but is a factor in resolving relevant cases.

R v Bow Street Stipendiary Magistrate ex parte Pinochet

HL overturned its own previous decision relating to the extradition of General Pinochet to face allegations of human rights violations during his period as Head of State in Chile. Lord Hoffmann, who had participated in the earlier decision, held office as a Director of Amnesty International which had been allowed to present evidence. The earlier decision was set aside because it gave rise to an appearance of bias

judicial independence

High Court and above have tenure under the Act of Settlement 1700, which protects their independence from both the executive and Parliament. Superior judges can only be dismissed by an address to the Crown from both Houses of Parliament.

European Convention on Human Rights: ECHR

Human Rights Act 1998 now enables most Convention rights to be enforced within the domestic legal system rather than in Strasbourg.

conclusions of cases showing relationship between legislature and judiciary

In the Burmah Oil case Parliament reacted and nullified the decision; in Shaw's case Parliament did not react; whereas in R's case Parliament eventually endorsed the decision by redefining the offence of rape in legislation.

The executive and judiciary

Judges must be seen to be politically impartial. The judicial function is to interpret Parliament's intentions as expressed in legislation and to ensure - through judicial review. validated delegated legislation.any delegated legislation is consistent with the scope of power granted by Parliament. The rule of law also requires that judges ensure the legality of government action;

cases showing relationship between legislature and judiciary

Magor and St Mellons RDC v Newport Corporation Burmah Oil Co Ltd v Lord Advocate [1965] Shaw v Director of Public Prosecutions [1962] R v R [1992] :

Devloution Act 1988

Scotland Act 1988

sources of constitution : European sources

The European Convention on Human Rights The law of the European Community and Union

Right to strike constitutional?

The right to strike involves the right to withdraw one's labour. This is a fundamental right and is recognised as such by the European Convention on Human Rights (Article 11) which provides for the right of association

matters that an ideal constitution should cover

They will identify the principal institutions of the state - the executive, the legislature and the judiciary. In relation to each of these, the constitution will specify their functions and powers. In addition the constitution will identify the rights and freedoms of citizens, through a Bill of Rights which operates both to protect citizens and to restrict the power of the state.

Common law and constitution ex:

cases which: uphold the sovereignty of Parliament define the scope of the royal prerogative rule on the legality of actions of public bodies through judicial review define civil liberties decisions made under the Human Rights Act 1998

components of collective responsibility confidentiality

-cabinet meetings -Cabinet papers include previous govt unless in public domain from other sources (letters) -memoirs (security, inter country relations, destructive to confidential relationships)

law and custom of Parliament

claims for itself certain rights and immunities which are not only enjoyed by the Houses of Parliament collectively but also confer rights and immunities on individual Members of Parliament. unique form of common law, peculiar to Parliament and enforced by Parliament. If an issue of parliamentary privilege is raised before a court of law, the judges can determine whether the matter is one of parliamentary privilege but will decline jurisdiction to rule upon the merit of a claim. This is an illustration of the separation of powers, with the judges declining to regulate a matter which is regarded as falling within

common law: royal prerogative

collection of rights and immunities which belong to the Crown. They represent the residue of common law powers enjoyed by the Crown before the settlement of 1689(Bill of Rights)covers a range of disparate matters relating to domestic and foreign affairs. judges exercise self-restraint in relation to the prerogative, which covers many areas of high policy that the courts regard as more appropriately regulated by the executive in the name of the Crown.

Thoburn v Sunderland City Council 2003

use of metric units

Channel Island case, separation of P McGonnell v United Kingdom (2000) ECHR right to a fair trial

violated by the participation in a planning decision of the Deputy Bailiff of Guernsey both a senior judge in the Guernsey Royal Court and a senior member of Guernsey's legislative body, the States of Deliberation.

Europen Communities Act 1972

gives European law effect in UK

ECHR

given effect in UK by HRA 1998

waiving of convention and agreement to differ examples

1. 1931-1932: levy of tariff duties 2. 1975 UK's continues membership Mr Wilson announced temporary waiver limited to issue of continued membership of European Community. 2010: no clear majority=> coalition between Conservatives and Liberal Democratic Party, requires rules to be relaxed.

unitary

Britain has been a unitary state, with one Parliament having ultimate law-making power over all the constituent nations - England, Northern Ireland, Scotland and Wales.

Merkur Island Shipping Corp v Laughton (The Hoegh Anapa).

JOHN DONALDSON openly criticizes the language used in statues stating that it is not easy to understand and not always clear.

Judiciary

all the judges in the courts of law, and also those who hold judicial office in tribunals, and the lay magistrates who staff the magistrates' courts. Senior judicial appointments are made by the Crown

Parliament Acts 1911-1949

limit the HL HL has a delaying power for legislation.

Constitutional conventions

non legal sources of the constitution.

Act of Settlement

provided that succession to the Crown was limited to adherents of the Protestant faith and excluded Roman Catholics or those married to Roman Catholics.

House of Lords Act 1999

first stage of reform. The government established a Royal Commission, chaired by Lord Wakeham.

Select Committees: Select Committees provide the forum for the most in-depth scrutiny of government administration. Areas:

fn:examine the expenditure, administration and policy of the department with which they are concerned and associated public bodies'. public accounts Consolidation Bills statutory instruments privileges of Parliament members' interests European Community legislation domestic matters relating to the House procedure of the House selection (of members to Committees of the House) broadcasting.

What conclusions can you draw from the above regarding the convention? Would there be any advantage in codifying the convention?

focus on the meaning of ministerial responsibility for the department: does it mean total responsibility for all aspects of administration? Or does it mean that the minister must account to Parliament for the work of the department? Consider also whether the meaning of ministerial responsibility has changed from the classic case of Crichel Down to the present day.

Voting system used in EU Council TEU from 2014

55% member states (15 of 27) states represent 65 % of population also if <4 states oppose.

EU courts: telelogical interpretation

focuses on purpose of law, not the individual words. domestic courts must adopt this approach.

treaty of Lisbon

following treaty of Lisbon there are 2 main treaties: TEU,TFEU

Privy Council

forerunner of the Cabinet, advises Sovereign.

Beach v Freeson 1972 solicitors sue MP

held that forwarded letter with defamatory information was protected on basis of public interest.

Constitutional Reform and Governance Act 2010

puts civil service on a statutory footing. previously employment and conditions under prerogative.

Walter Bagehot role of Crown

right to advise, encourage and warn government

Constituencies

646 constituencies constrained by the Parliamentary Constituencies Act 1986. The overriding objective is to ensure that each constituency contains an approximately equal number of voters. largest=Isle of Wight smallest =Western Isles in Scotland.

House of commons

650 MPs, each represents an area

Name two initiatives that have increased the openness and public accountability of government.

'Citizen's Charter' introduced under the Major government 1990-1997, and through the Freedom of Information Act 2000 which requires information to be given to the public, subject to a number of exceptions.

strong commitment to rule of law in EU.

-EU only has powers conferred to it by treaties -principles of subsidiary and proportionality

Parliamentary voting and constituencies act 2011

-allows for reducing MPs to 600 -redraws constituencies

HL historical composition

-hereditary peers and representatives of the Church of England. -The judges of the House of Lords were appointed under the Appellate Jurisdiction Act 1876. Life Peers were introduced in 1958 under the Life Peerages Act.

Commission v United Kingdom 2000

Commission v United Kingdom 2000 UK fails to comply with directive on population of waters from nitrates used in agriculture. directive required identification of all surface freshwaters not just those for drink. UK was taking action, but still liable for breach.

When, in theory and practice, will the Crown be justified in refusing a request for dissolution?

SEE TEXT

EX: Discuss the importance of parliamentary privilege to the working of the House of Commons.

-individual/collective privileges -individual=> arrest, speech (discuss in detail) Bill of Rights term 'proceedings in Parliament' problem of lack of definition. Members' outside interests: why they are allowed, and how they are controlled and enforced. weaknesses in the workings of the rules - in particular the 'cash for questions' affair the reforms introduced following the Nolan

composition of HL

-members are peers -appointed (hereditary and life peers Life Peerages Act 1958) House of Lords Act 1999 removes most of hereditarty, only 92 now 25 bishops

EC and the issue of democracy

-no sep of powers Council of Ministers involved in legislation, occasionally making laws without the need for Parliament's approval. European Commission acts as an executive but also has a great deal of power to propose legislation and, also, some quasi-judicial powers. 1979 MEPs directly elected and its powers role in the process of creating EC law varies from co-decision powers alongside the Council of Ministers which apply in a majority of cases, including approval of the EC's annual budget, to mere consultation, according to the subject matter of the proposed law. Clearly, enhanced democracy within the EC involves expanding the law-making and executive-checking capacities of the Parliament.

select committees: issues

-probem getting full evidence from civil serants and ministers. no power to compel a minister to attend, or to sanction. A reform has been introduced which requires that witnesses before Select Committees give evidence on oath, raising the possibility that charges of perjury may be brought against witnesses.

fns of HL

-revising and debating -complements HC scrutinizes gov 40%, and legislation 60% -also introduces BIlls (5 of 23 in 2009) -ammendments may no be accepted by HC, but delays -reviews delegated legislation -debating decisions of gov -debate on any topic (2 per week on any issue) scrutiny of European legislation

TEU Art 3 activities of EU

-tariff free internal market, 4 freedoms: capital, goods, services, people -common agriculture, fisheries, commerce, transport -consumer health -increase international trade, promote eco-social dev -research and dev

1. outline some differing interpretations of the rule of law 2. explain the constitutional importance of the rule of law in society 3. explain the relationship between the rule of law and the concept of responsible government.

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1.discuss A.V. Dicey's approach to the rule of law 2. illustrate the practical applications of the rule of law 3.identify aspects of law and the legal system that pose challenges to the idea of the rule of law.

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Chilcot inquiry

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HLsimilar approach in Henn and Darby v DPP [1981]

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Henn and Darby v Director of Public Prosecutions [1981]: direct effect in UK

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Les Verts Case 294/84

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Litster v Forth Dry Dock Ltd [1990]

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Outline the relationship between the office of Prime Minister and the Crown, in theory and in practice. SEE TEXT

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P is supreme lawmaker, can make or unmake any law.

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R v SSHD ep Hosenball 1977

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R v SSHD ep Ruddock [1987]

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R v Secretary of State for Employment 1995

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R v Secretary of State for Transport 1991

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SSHD v MB 2007 claim that Secret Evidence against right to free trial

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Should local authorities be free, as some argue, to raise local taxation to fund any activities which the local people desire?

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Vauxhall Estate Ltd v Liverpool Corporation 1932

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Von Colson v Land Nordrhein-Westfalen

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constitution may no longer recognise P as supreme Jackson v Attorney General 2005

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doctrine of acte clair in the case of CILFIT [1983]

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limits of judiciary to challenge Acts which may be inconsistent with treaties of Union. MacCormick v Lord Advocate 1953

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Special debates

1. Applications for emergency adjournment debates : urgent matters ONLY ,a substantive three‑hour debate will be arranged for the following day. only 1 or 2 per session. 2. Debates in the chamber and in Westminster Hall The most public form of scrutiny takes place both at question time and in debates on the floor of the House. It is here that the government is required to defend its policies and to answer its critics. govt determines subjects except 20 days 3.Early day motions (EDMs): Early day motions are written requests by Members of Parliament for a debate to be held at an 'early day' on particular matters. It is a procedure for airing views and attracting support for any matter, and should significant support be given it may lead to a formal debate.

Parliament Supremacy challenged

1. European Communities Act 1972. cannot repeal EU law 2. HRA 1998 3. Devolution within UK Scotland Act 1998 4. P can redefine itselt Parliament Acts 1911-49 (Jackson v Attorney General 5. consistent with rule of law? Is idea of limited govt compatible with sovereign P. 6. political reality.

Marshall v Southampton and South West Hampshire Area Health Authority 1986 Mrs Marshall challenges legality of law requiring women to retire at 60 alleging contrary to EC Equal Treatment DIRECTIVE

2 issues: could individual challenge Area Health Authority? and are different retirement ages in breach. Held that Area health Authority was a public body and bound by EU law.ECJ made it clear that directive did NOT apply to non state actors.

Voting system used in Council of Ministers (EU Council) Treaty of Nice

255 of 345 votes in favor needed 62 % of population majority of states.

ex:To what extent do the conventions of collective and individual responsibility ensure the accountability of government ministers to Parliament?

1. analyse the conventions of ministerial responsibility and to discuss the parliamentary procedures that exist to ensure accountability. explain the distinction between conventions and law discussing its relationship to the idea of responsible government and government under the law and the doctrine of separation of powers which requires that exercises of power be scrutinised by Parliament. On collective responsibility identify the rules relating to confidentiality and unanimity. Give illustrations (e.g. 1932 and 1975) of circumstances in which the convention will be waived individual responsibility: personal conduct and responsibility to department. Discuss parliamentary accountability through debates, through question time and through Select Committee enquiries. Use as many examples as you can to demonstrate how the convention has been interpreted differently over time. Explain why it is that ministers no longer feel that resignation is required for administrative/operational failures within their departments. Discuss Finer's criteria for resignation. Discuss also Sir Richard's Scott's analysis of ministerial responsibility and the now accepted distinction between 'responsibility' and 'accountability'.

Institutional balance

1. difference interests represented: Council: States, Commission : EU interests, EP, EU citizens. 2. no gov. exec between Council, Commission law making between Council, Commission and EP

CILFIT case 1983: ECJ clarifies when cases should be referred A dispute over health regulations. Wool is not expressly listed in the appropriate part of the Treaties as being a product of animal origin. Referred to the ECJ.

1. no duty to refer if EU law irrelevant 2. no duty if question already answered by ECJ in similar case 3. no duty if no real doubt exists BUT domestic courts should take into account if matter is equally obvious to OTHER states.

A.V. Dicey and the rule of law 3 principles

1. no punishment if no breach 2. all people equal under law 3. rights and freedoms best protected under common law

power to legislate on any topic, examples of practical limits

1. removing independence from a former colony 2. abolish right to private property. would require martial law...

minister individual responsibility (convention)

1. required to conduct himself or herself in such a manner as not to cause embarrassment to the government or political party 2. responsible for the conduct of their departments.

Two main factors contribute to inadequate scrutiny in the Commons

1. strong majority in the Commons, this will be reflected in the membership of Standing Committees. 2. insufficient time, scrutiny cut short at a date.

Arms to Iraq affair provides an illustration of the weakness in the convention. No resignations following scott report

1.change in policy guidelines which had not been reported to Parliament in order to prevent public debate. 2.Foreign Minister had misled MPs over the policy change, although Scott found that he had not intended to mislead. 3. The Attorney General had interpreted the law relating to Public Interest Immunity Certificates incorrectly and had accordingly given inaccurate information to ministers. 4. The directors of the Matrix Churchill should never have been prosecuted, and evidence which was excluded from the court should have been made available.

examples of Parliament placing privilege under statute

1770 Parliamentary privilege Act: withdrew freedom from arrest from servants of MPs 1689 Bill of Rights article IX: freedom of speech 1868 Administration of justice act: disputed elections=> courts

Use of parliamentary Acts

1911: Welsh Church Act 1914, under which the Welsh part of the Church of England was disestablished in 1920, becoming the Church in Wales. Government of Ireland Act 1914, which would have established a Home Rule government in Ireland; its implementation was blocked due to the First World War. Parliament Act 1949, 1949: War Crimes Act 1991, which extended jurisdiction of UK courts to acts committed on behalf of Nazi Germany during the Second World War (the only time that the Parliament Acts have been used by a Conservative government). European Parliamentary Elections Act 1999, which changed the system of elections to the European Parliament from FPP to a form of proportional representation. SOA 2000, age of consent for homosexual and sexual = 16 Hunting Act 2004, which prohibited hare coursing and (subject to some exceptions) all hunting of wild mammals (particularly foxes) with dogs after early 2005.

EU/EC initial developments: goal :pursuing the goal of European stability and peace in different ways

1948 the Organisation for Economic Co-operation and Development (OECD). 1949 NATO: military alliance 1949: Council of Europe =>ECHR 1950: (ECSC established under treaty of Paris 1951 1957: Treaty of Rome (EC Treaty): creation of a European trading are, establishes EEC and EURATOM

History of EU

1952 - Treaty of Paris, establishing the ECSC 1957 - Treaty of Rome, founding the EEC 1965 - Merger Treaty, establishing a Single Council and Single Commission of the previously three distinct European Communities 1979 - first direct election of the European Parliament 1986 - Single European Act, giving new powers to the European Parliament, and setting 31 December 1992 as the deadline by which the Community should have established the internal market 1992 - TEU (Maastricht Treaty), establishing the EU 1997 - Treaty of Amsterdam 2000 - Treaty of Nice, changing the composition of the Commission and the European Parliament and extending qualified majority voting and altering the allocation of votes in a bid to make decision making more flexible in view of the EU's expanded membership.

examples of use of privilege

1955 Kim Philbywas named in HC as a Sovite spy, also 1960's Christine Keeler's association with Minister of War and Soviet Attaché. 19856-86 session, ministers were accused of involvement with Johnson Matthey Bank following its collapse.

law of the European Community and Union

1973 before Britain became a member of the Community. Membership requires that states comply with the whole body of Community law as comprised in the Treaties and as defined by the Court of Justice, which sits in Luxembourg Parliament may not pass laws which violate Community law

stages of passing a bill

1st reading: formality, no debate 2nd reading: main purpose discussed and voted public Bill Committee: Standing committee. Detailed examination of drat legislation take place, amendments. minority of Bills debated by whole House Bill returned to full chamber to consider final amendments (3rd reading). Bill goes to HL, similar procedure. Royal Assent: Bill becomes Act.

To what extent is separation of powers: a. evident and b. desirable under the constitution?

A good example in relation to (a) is the fact that the executive sits in the legislature: a clear breach of separation of powers. However, you will also note that there are restrictions which prevent an abuse of power (see the House of Commons Disqualification Act 1975). On 'desirability' (part (b)), note that while the close relationship between the executive and legislature violates separation of powers, it also facilitates the accountability of the executive to Parliament.

What advantages, if any, can you identify in having a hereditary head of state?

A hereditary head of state offers a great deal of continuity; governments may come and go but the figurehead remains the same. The monarch may also develop much expertise and experience of government and successive Prime Ministers have paid tribute to the present Queen's knowledge of domestic and international affairs. The Queen also has personal contact with many heads of state overseas and, as head of the Commonwealth, represents a uniting figurehead. Offset against this, however, is the fact that the hereditary principle runs counter to democracy and perpetuates class stereotypes. And, as history has shown, the hereditary principle does not always provide a monarch of quality!

Supreme and subordinate

A supreme constitution is not subject to any external superior force. A subordinate constitution is one where - as with former British colonies - the constitution is drafted and introduced in a country by an external sovereign power, and theoretically may be amended or repealed by that external power.

Control Orders

A v SSHD 2005 HL indicates that detention without trial is unlawful. SEE Recent Development CASES!!!

membership of EU and HRA 1998 mean that supremacy is qualified

Act can be challenged as contrary to EU law.

Legal controls over local government

All the powers and functions exercised by local authorities are determined by Acts of Parliament 60% of funding from central gov. tight control over expenditures.

Doctrine of Implied Repeal

An Act will repeal an earlier Act inconsistent with it. E.g. Vauxhall Estate Ltd v Liverpool Corporation 1932

Rivlin v Bilainkin [1953] The defendant in an action for libel and slander, against whom an interlocutory injunction had been granted restraining him from further publication of the alleged defamatory statements, delivered to an attendant at the House of Commons a document in a sealed envelope addressed to a member of Parliament, to whom it was handed the same day. The document contained a repetition of the statements which were the subject of the interlocutory injunction.

As the publication was not connected with any proceedings of the House, its delivery to a member of Parliament was not privileged, and the defendant was guilty of contempt of court.

Composition and procedure of P

Ashby v White 1703; Paty's Case 1704 Bradlaugh v Gosset 1884 British Railways Board v Pickin 1974

1949 UK rejects Churchill attempt to create EU instead EFTA

Austria, Denmark Norway Sweden, Portugal and CH idea is to fend off EEC. UK later admitted in 1973

EU judicial System

Bothe EU courts and domestic courts are responsible for applying EU law. mostly for domestic courts to apply EU law.

State, in your own words, the ECJ's view of the EC in Costa v Enel.

By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law. loss of national sovereignty asserted by the ECJ and the EC's capacity of self representation in the international plane. which binds both their nationals and themselves.

Why do you think no minister resigned following the Arms to Iraq affair? Do you think that any should have resigned?

By the time the Scott Report was published, much of the political heat had gone out of the matter. In addition the issues were many and confusing to the general public. The report also came towards the end of the Major administration and a general election was soon to be held. Significantly, the ruling Conservative Party suffered a massive defeat

Bulmer v Bollinger [1974]

CA considered the question of when references to the ECJ should be made, and Lord Denning laid down guidelines for English courts to apply when a reference is a matter of discretion. DETAILS NEEDED

direct effect

CJEU confirms that provisions and directives can have direct effect. Note: regulations directly applicable (immediate). directives : becoming operative when they are implemented BUT Marshall v SOuthampton & South West Hampshire Are Health Authority

R v secretary of State for transport ex parte Factortame 1991

CJEU: Spanish fishermen challenge UK 1988 act claiming that it discriminates, also request injunction. creates problem since courts in UK have no power to create an injunction against an Act and Acts cannot be suspended. But CJEU states the supremacy of EU law, and intermediate solution is needed. HL then confirms decision of CJEU.

Seizure of property

Cash intended for use or which is the property of terrorist organisations may be seized and forfeited (ss.25 and 26).

evolution of parliamentary sovereignty

Charles I 1625-49 abuses royal prerogative,civil war, execution 10 years Cromwellthen monarchy 1660 James II placed catholics in power. William and Mary

ECSC 1951 establishes 4 institutions still in use today

Commision (executive interests of EU) Council (executive ,interests of Member states) Assembly Parliament ECJ

Treaty of Lisbon, co-decision procedure extends EP powers

Commission propsed to Council Council to EP for opinion (1sr read) Parliaments submits back to COuncil which adopts common position by QMV back to EP 2nd read -if approved adopted by Council -else rejects _Conciliation Committee from COuncil and MEP draft agreed text _ QMV and mmajority of EP => adopt _if no agreement Council may reinstate common position by majority vote, measure adopted unless EP veto.

Employment and sponsorship, Before 1911 Members of Parliament received no salary, and it has always been the case that MPs are entitled to hold employment outside Parliament but possible conflicts of interest .: cases

Committee of Privileges: Brown's Case in 1947 Yorkshire Area National Union of Mineworkers' Union case in 1975

Bradlaugh v Gosset (1884) : elected Member (Bradlaugh) refused to swear the oath on the Bible,

Commons excluded him from sitting and the court declined to rule on the issue, stating that it fell within the privileges of Parliament.

leading CJEU cases for SUpremacy: trilogy

Costa v ENEL 1964 Simmenthal Case 1978 R v secretary of State for transport ex parte Factortame

EP fns

Council of EU is obliged to seek advice of EP can adopt its ideas and persuade Commission to adopt by initiative report. decision making powers EU budget, received proposals from Commission, EP accepts/rejects or amends

regulators are exclusively which EC institutions?

Council of Ministers, the European Commission, the Parliament and the ECJ

Official Secrets Act 1989

Covers both particular persons and material, restricts publication of

examples of incidents which led to resignation

Crichel Down 1954 in which the minister resigned even though he had no personal involvement. The Falklands War 1982-83 Foreign Secretary Inefficiencies in the Transport Department and the failure in transport policy 2002. Transport Secretary Problems in education :Education Secretary (Estelle Morris) resigned in 2002. The Iraq war 2003. The International Development Secretary (Clare Short) resigned in protest against the war, as did the Leader of the House of Commons (Robin Cook). The release of foreign criminals who should have been deported, 2006. The Home Secretary, Charles Clarke, refused to resign and was sacked by the Prime Minister.

R v SSHD defining prerogative powers significant in constitutional terms for its ruling on the extent of Ministerial prerogative powers

Criminal Injuries Compensation Scheme was set up under Ministerial prerogative powers to provide ex gratia compensation payments to victims of crime. Compensation was assessed on an individual basis by the Criminal Injuries Compensation Board The Criminal Justice Act 1988 was to introduce a statutory scheme for criminal injuries compensation with several sections coming into law (by statutory instrument) on a date of the Home Secretary's choosing. However, the government rather than implementing this legislation amended a non-statutory tariff based scheme under the royal prerogative.tariff based scheme would save . A trade Union sought judicial review HL rules 3-2 that home secretary acted unlawfully.

examples of Conventions

Crown appoints leader of the political party with most seats. 2. Parliament dissolved on request of PM rules regulating Cabinet collective responsibility, ministers and their individual responsibilities. 3.Royal assent will NOT be refused to bills passed in both houses 4. members of P must not criticize decisions of judges government must resign if it loses the confidence of House of Commons.

constituent parts of gov

Crown, Privy Council, the Prime Minister and Cabinet, other ministers, government departments and the Civil Service which together comprise the executive, armed forces and police which uphold the powers of the state are also a part of the executive wing of the state

Case Law

Decisions of the CJEU and General Court (1st instance): EU "common law": e.g. Human rights, proportionality, administrative. court has incorporated into EU law as fundamental principles.

Democracy and rule of law in EU

Democratic Deficit in the EU Lisbon treaty national parliaments can show yellow or orange cards on draft EU legislation. yellow:1/3 reject then EU must reconsider orange: 1/2 reject then requires a complete revision by EU Council. gives a bigger role to national Parliaments, better since these are directly elected.

Select Committee

Departmental SC examine expenditure, administration and policy. chairman's were chosen by whips, but since 2010 elected by MPs.

Separation of Powers What checks are available to avoid abuse of power by executive (checks from Parliament)

Disqualification Act 1975: judicial office, civil servants police, armed forces,+ foreign legislatures cannot serve in parliament. limitation to 95 ministers from govt. 2. vote of losee of confidence in Parliament causes govt to fall. e.g. Callaghan 1979 Labour party Parliamentary procedures are designed to scrutinise bills in 1986 forced to abandon plans to deregulate Sunday trading despite majority. Opposition: role is to propose alternatives, challenge 20 days set aside to debate subjects chose by Oppotisiton HL has power to delay non Money bills for 1 year until Royal Assent, can be used to pressure compromise elections/by-elections delegated legislation: delegate law-making powers to the government through powers to draft subordinate or delegated legislation.

freedom of speech cases

Duncan Sandys' Case (1938) Rivlin v Bilainkin [1953] Strauss v London Electricity Board [1958] R v Rule [1937] 2 KB 375 and Beach v Freeson [1972] Hamilton v Al Fayed [2000] Buchanan v Jennings [2004]

Duncan Sandys' Case (1938) asked questions in the House of Commons on matters of national security. He was subsequently approached by two unidentified men, presumably representing the secret services attempt to get him to disclose who had given information about the inadequate state of the air defences, and threatened with prosecution under section 6 of the Official Secrets Act 1920.

Duncan Sandys' Case (1938) The threat to prosecute a Member of Parliament for an alleged breach of the Official Secrets Act 1911 was a breach of privilege: Decision of Committee of privileges.

Treaty of Lisbon 2007

EC=> EU European COuncil comprises heads of state or gov, presidents of the European Council, and common security and defence policy. Use of army requires unanimity, objectives are peace keeping, conflict prevention and strengthening security. by 2014, measures passed if <4 states oppose, abolishes national vetoes, mostly majority voting -yellow card/ orange card for proposal of draft legislation Citizen's Initiative=> id 1,000,000 petitions legal effect to charter of Fundamental Rights (UK cannot be bound by a higher court on this, no new rights in UK from this) -legal right to withdraw.

Van Gend en Loos 1963: direct effect of Treaty Provisions reclassification of a chemical, by the Benelux countries, into a customs category entailing higher customs charges. Independently of the legislation of member states, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where expressly granted by the Treaty, but also upon reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon member states and upon the Institutions of the Community.

ECJ considered Article 12 of Treaty of Rome (now Article 25 of TFEU) of the EC Treaty. The Court found that the Article in question was clear and unconditional and, therefore, it required no legislative intervention by the member states and a member state had no power to subordinate it to its own law.

Macarthys v Smith [1979] : equal pay for men and women. CA rejects claim based on fact that claim was made omparing PAST work of a man. sent to ECJ.

ECJ diretive on equal pay is directly applicable in the member states. Lord Denning said "Community law is now part of our law: and, whenever there is any inconsistency, Community law has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it."

R v Secretary of State for Transport ex parte Factortame Ltd [1991] D, the UK government enacted the Merchant Shipping Act 1988. C, Spanish fishermen claimed this act affected UK fisheries policy and was contrary to EC Law. sought an order directing the Secretary of State not to enforce the Act pending a full trial of the issue. The Divisional Court referred the substantive question to the ECJ, but ordered by way of interim relief that the Regulations should not be applied as against C. The Court of Appeal and House of Lords held that no national court had the power to suspend the operation of an Act of Parliament.

ECJ explained to the English judges not only that EC law is supreme but also that, pending a preliminary ruling by the ECJ, the application of the national law, which is suspected of contravening EC law, must be suspended. In other words, the ECJ 'authorised' the British court to 'set aside' a valid law passed by the sovereign UK Parliament. The full effectiveness of Community law would be impaired if a rule of national law could prevent a court seized of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judicial decision to be given on the existence of rights claimed under Community law

Powers of the ECJ:appeals against from the CFI

ECJ has jurisdiction to rule on the legality of acts of the institutions of the Community. Article 230 is thus of fundamental importance to the manner in which the various institutions are kept within their legal powers. Article 232 EC provides the means whereby member states and institutions of the Community can challenge the Council and Commission on the basis that they have failed to act as required under the Treaty.

Van Duyn v Home Office [1974]: directives and direct effect, teleological method case involved a Directive that had been issued under the authority of Article 48 of the EC Treaty, which provides for the free movement of workers between member states.

ECJ held that, in some cases, Directives - as well as Regulations and Treaty Provisions - may have direct effect, depending on their subject matter, wording, clarity and whether or not member state action is required as a prerequisite to implementation. As there is nothing in the original EC Treaty to suggest that Directives may have direct effect, the decision in Van Duyn is a perfect example of the ECJ's boldness in using its teleological method. Less controversial when a deadline has been set for implementing the diretive.

relation between ECJ and national courts

ECJ insistent on EU law supremacy AND uniform implementation in member states however balance must be attained between making references to ECJ and domestic courts applying EU law without delay.

Francovich and Bonifaci v. Italy (1991):

ECJ pointed out that a state can liable to an individual for losses caused by non-implementation of a directive.

Defrenne v SABENA horizontal effect of Provision Defrenne worked as a stewardess for the airline Sabena. The airline paid her less than her male colleagues who did the same work. Ms Defrenne complained that this violated her right to equal treatment on grounds of gender under article 119 of the Treaty of the European Community,

ECJ rules that Belgian state must enforce equal pay protected by TFEU. example of horizontal effect since against employer. The European Court of Justice held that article 119 of the Treaty of the European Community was of such a character as to have horizontal direct effect, and therefore enforceable not merely between individuals and the government, but also between private parties.

1951 3 communities.

ECSC: Coal and Steel Community EEC 1957: Economic (goods, services, workers, capital) France, Germany, Italy+BeneLux EC :

Primary sources of EU law

EEC Treaty (the Treaty of Rome 1957) amended by the following later treaties: Merger Treaty 1965 Acts of Accession (1972, 1979, 1985) Budgetary Treaties 1970, 1975 Single European Act 1986 Treaty on European Union (Maastricht) 1992 Treaty on European Union (Amsterdam) 1997 Treaty of Nice 2000.

Secondary Sources

EU legislation, Regulations, directives, decisions,non-legal Acts, The ECJ's interpretations of EC law are also binding.

rule of law: cases

Entick v Carrington (1765): held that warrant of SOS to search was void Rv R v Inland Revenue Commissioners ex parte Rossminster Ltd [1980]: Taxes Management Act 1970 right to search under suspicion (upheld, after CA refuses requiring specific info) Malone v Metropolitan Police Commissioner 1979 suspicion of dealing in stolen goods, interception of calls=> no trespass, but requires legislation Malone v United Kingdom 1984: re M 1993 R v Secretary of State for the Home Department ep Fire Brigades'Union 1995 A v SOS for the Home Department 2004

The franchise

Entitlement starts at the 'age of majority', which is 18 and is dependent upon residency in a constituency. Registration may take place at any time in the year. People with no fixed abode, but with a 'local connection' may register that connection and become entitled to vote. Postal votes are also available. non residents can vote for 20 years

European Community (EC) (originally EEC) is the result of years of evolution of the original three European Communities

European Communities, the European Coal and Steel Community (ECSC), the European Atomic Energy Community (Euratom) and the European Economic Community (EEC) established by the Treaty of Paris 1951 and Treaty of Rome (EC Treaty), renamed TFEU 1957.

EU institutions

European Council (Not an institution, but recognized by SEA 1986 and TEU 1992). EU council European Commission European Parliament Court of Justice of the EU --- European Central Bank Court of Auditors

Treaty of Lisbon, Institutional balance is altered

European Council proposes candidate for election to Presidency of Commission, EP selects elects president. EP codecision powers EP power over budget EP can initiate treaty revision.

R v MAFF ex parte Hedley Lomas (Ireland) Ltd [1996] Hedley Lomas brought action following that Ministry's refusal to issue a license for the export of live sheep to Spain requested by Hedley Lomas. Between April 1990 and January 1, 1993 the Ministry systematically refused to issue licenses for the export to Spain of live animals for slaughter on the ground that their treatment in Spanish slaughterhouses was contrary to Directive on stunning of animals before slaughter.

Following assurances given by the national and regional authorities in Spain regarding the application of the Directive, the Commission decided in 1992 not to take any action under Article 169 of the EC Treaty. The Commission informed the UK authorities that it considered the UK's general ban on exports of live animals to Spain to be contrary to Article 34 of the EC Treaty and not justifiable under Article 36

Directives not implemented=> damages. cases

Francovich case [1992] IRLR 84Brasserie du Pecheur SA v Federal Republic of Germany [1996] 2 WLR 506 R v HM Treasury ex parte British Telecommunications plc [1996] QB 615 R v MAFF ex parte Hedley Lomas (Ireland) Ltd [1996]

Individual privileges

Freedom from arrest Freedom of speech and debate

EX: What is the explanation for the apparent conflict between judges and some academics? Are these two views capable of being reconciled?

From the perspective of the judiciary it is exceedingly important that they stress their independence from both Parliament and the executive: public confidence in the legal system could not be maintained without such independence. From an academic perspective, it is undeniable that the separation of powers under the United Kingdom's constitution is weak when compared with countries with a written constitution. However, it must also be remembered that most of the 'violations' of separation of powers are regulated by constitutional conventions which operate to avoid an abuse of power. breaches/regulations by convention

European Union: The key question is: where does sovereignty lie?

From the standpoint of the European Court of Justice of the Community, the treaties that establish and define the community and Union are supreme, and sovereign. Thus the sovereignty of all EU member states is limited by membership. From the standpoint of the British judges, however, the sovereignty of the British Parliament remains intact: we voluntarily accept Union law because an ordinary Act of Parliament - the European Communities Act 1972 - provides for its reception and enforcement within the domestic courts of law.

UK court doctrine of parliamentary supremacy requirements of EU law cases:

Garland, 1983 Lister 1990 Factortame 1991

Specific Political COntrol

HC Intelligence and Sec Committee Office of PM

Ashby v White 1703 Plaintiff denied the right to vote by Mayor of Aylebury. HL awards damages.

HC regards decision of HL as interfering with Commons which has jurisdiction for disputed elections. other voters who were denied rights come forward, committed to prison by HC and refused writ of habeas corpus.

HRA 1998 must construe legislation compatible with EU

HL can challenge inconsistencies in legislation.

Hamilton v Al Fayed [2000]

HL held that the truthfulness or otherwise of statements made to a parliamentary committee could not be tested by way of cross-examination in court in a subsequent defamation action. Defamation act sec 13 waiving P Privilege overrode privilege belong to P as a whole. allows other party to adduce evidence from normally privileged sourced.

Magor and St Mellons RDC v Newport Corporation [1952]

HL rejects the approach of Lord Denning MR, in the Court of Appeal, who had stated that, where gaps were apparent in legislation, the courts should fill those gaps.

R v Secretary of State for the Home Department ex parte Fire Brigades' Union

HS decided that he would introduce a new tariff for compensation by using the royal prerogative to amend the Criminal Injuries Compensation Scheme, which had been introduced under the royal prerogative rather than through an Act of Parliament. However, in 1988, Parliament had passed the Criminal Justice Act which in part provided for amendments to the Criminal Injuries Compensation Scheme, although the relevant provisions had not yet been brought into force. The question was whether the Home Secretary could use the prerogative rather than statute. CA and HL rule that if there is a status cannot use prerogative.

The Sheriff of Middlesex's Case (1840) Commons imprisoned the Sheriff, who had attempted to levy execution of property due under an order of a court.

He sought a writ of habeas corpus to determine the legality of his detention. The court declined to intervene.

Francovich v Italy [EC Law effect of Directives - direct effect] A Directive required Member States to make provision for compensation schemes for employees of failed businesses, but Italy failed to do so. CC were employees of a company that collapsed, and claimed against their government for their losses.

Held: A Member State can be required to make good any losses resulting from its own failure to implement a Directive, providing there was a link between the non-enactment and the loss, and that the directive gave specific rights to individuals.

political sovereignty theories:

Hobbes, Rousseau, Locke and Paine

Garland v British Rail Engineering Ltd [1983]

House of Lords adopted the 'rule of construction' There had been an unlawful discrimination. Article 119 of the EEC Treaty (equal pay for men and women) was directly applicable and conferred enforceable rights upon individuals. The Sex Discrimination Act 1975 ought so far as possible to be construed so as to carry out the obligations of and not to be inconsistent with the EEC Treaty.

Shaw v Director of Public Prosecutions [1962]

House of Lords ruled that the publisher of a directory of prostitutes' services was guilty of the offence of conspiracy to corrupt public morals - an offence previously unknown to law. Parliament did not invalidate the decision.

R v R 1992

House of Lords ruled that a husband who had raped his wife at a time when it had been lawful for him to do so was guilty of rape. The European Court of Human Rights upheld the House of Lords' decision, despite the fact that it imposed retrospective criminal liability in violation of Article 7 of the European Convention on Human Rights

Indirect effect by interpreting national law in the light of Community directives

In Marleasing SA v. La Comercial Internacionale de Alimentacion SA the Court had to decide about such indirect effect in a case between individuals in a preliminary ruling. The ECJ repeated its statement in von Colson that national law has to be interpreted in the light of the directive concerned. Advocate General van Gerven pointed out that this "does not mean that a provision in a directive has direct effect in any way as between individuals. On the contrary, it is the national provision themselves which, interpreted in a manner consistent with the directive, have direct effect."

rule of law interpretations: political , Marx

In Marxist theory, for example, the rule of law is a false ideology: it lulls people into thinking that law is both necessary and good, while in fact the concept masks the reality that law protects the interests of the privileged classes at the expense of the masses

authoritative works as sources of constitution

In addition to the above sources of the constitution, the writings of respected constitutional authorities such as Sir William Blackstone (right), A.V. Dicey and Sir Ivor Jennings may on occasion be relied on in courts of law to aid interpretation.

direct effect horizontal/vertical

In general, the ECJ has tended to find that the direct effect of Treaty Provisions and Regulations is both vertical and horizontal, but it has never recognised the horizontal direct effect of any Directive.

Official Secrets Act 1989

In place of the blanket prohibition against unauthorised disclosure, the 1989 Act prohibits disclosure of information under various categories. Security and intelligence

Conventions and the separation of powers: in general, allegations of 'unconstitutional conduct' are rare. The explanation for this anomaly lies in constitutional conventions. ex of convention rules

In relation to the judiciary: Members of Parliament will not criticise judicial decisions. Where proceedings are before a court, or imminent, Members of Parliament are barred from raising the issues in debate. In relation to the executive: The convention of ministerial responsibility (both collective and individual: see Chapter 8) ensures the accountability of government to Parliament.

courst do not enforce conventions, help though in explaning their role:

Jonathan Cape 1976 Reference Re Amendment to the constitution of Canada 1982

HL debating chamber

Less controlled by the party whip more individual freedom unelected, whether hereditary or appointed, and do not continue to hold their seats at the mercy of government Once appointed, a Member's position is secure. HC time controlled by gov agenda, need to get legislation through, in HL time used by HL according to needs of public interest. gov may want to avoid sensitive issue, but not HL since not elected.

Protection of Human Rights

Lisbon treaty gives Charter of Fundamental Rights

Jackson v Attorney-General 2005: Parliament Acts challenges Hunting act and Parliament Act 1949 was passed without the consent of the Lords after a proscribed delay. The use of the Parliament Act was contested by the claimants. 1911 restricts HL power from veto to delay. used to pass 1949 Act. It was submitted by the appellant that legislation passed using the 1911 Act is delegated.

Lord Bingham was in agreement with the Divisional Court that Acts passed under 1911 act not delegated but primary references. 1911 Act creates a new way of enacting primary legislation. Pickin v British Railways Board [1974 courts have no right to invalidate enacted law. However, notes that the bill was not enacted by both houses as in Pickin, and that "the appellants have raised a question of law which cannot, be resolved by Parliament... so it seems to me necessary that the courts should resolve it, and that to do so involves no breach of constitutional propriety.

rules for Cabinet minister appointments

Lord Chancellor, Chancellor of the Exchequer, Home Secretary, Foreign Secretary and the Leaders of the House of Commons and House of Lords are always members of Cabinet. Cabinet generally comprises 20 to 24 ministers, although the number is nowhere fixed by rules. The Cabinet is serviced by the Cabinet Secretary, the most powerful office in the Civil Service.

Pepper v Hart 1993 and privilege Article IX

Lord Templeman declares that reference to Hansard under limited circumstances involed no questioning of Parliament, but only clarification of intention.

NO HORIZONTAL INDIRECT EFFECT Duke v GEC Reliance Ltd [1988] CONTRAST MASHALL required by contract to retire at 60, whereas men in her company 65. The Sex Discrimination Act 1975 was not passed to give effect to EC Law and could be relied upon.

Lord Templeman: "S.2 (4) ECA 1972 does not...enable or constrain a British court to distort the meaning of a British statute in order to enforce against an individual a Community Directive which has no direct effect between individuals."

Security Services

MI5, MI6, SOCA and GCHQ Originally governed by Royal Prerogative Security Services Act 1989 Intelligence services Act 1994

Financial Probity

MPs must declare $ in Register of Member's interests. must declare conflicts of interests declare shares, directorships, Minister should not be involved in decision making related to interest. Advisory Committee on Business Appointments for 2 years after leave of office.

backbenchers

MPs not appointed to senior positions required to support their political party and the disciplinary procedures within the House are designed to ensure that Members of Parliament are present to vote when required for party policy.

UK courts giving effect to EU law, supremacy of EU law EC law and parliamentary sovereignty cases which challenge parliamentary sovereignty

Macarthys v Smith [1979] Garland v British Rail Engineering Ltd [1983] 2 AC 751 Pickstone v Freemans plc [1989] AC 66 Marshall v Southampton Area Health Authority [1986] Duke v GEC Reliance Ltd [1988] Litster v Forth Dry Dock Ltd [1990] R v Secretary of State for Transport ex parte Factortame Ltd [1991]

Examples of Constitutional Acts

Magna Carta 1215† which aimed to protect citizens against arbitrary power and guaranteed the right to a fair trial and trial by jury. The European Communities Act 1972 which provided for the reception and enforcement of Community law in the United Kingdom. The Human Rights Act 1998 which incorporates most of the rights and freedoms guaranteed under the European Convention on Human Rights into domestic law. The Constitutional Reform Act 2005 which reforms the office of Lord Chancellor and provides for the establishment of a Supreme Court separate from Parliament.

Following controversial arguments (Defrenne and Marshall) towards horizontal direct effect of directives the European Court of Justice developed other possibilities to grant rights to individuals in those cases

Marshall (1986):"where a person involved in legal proceedings is able to rely on a directive as against the State he may do so regardless of the capacity in which the latter is acting, whether employer or public authority." State organs or administrations which are not directly involved in the implementation of a directive shall also be bound by the directive provisions. A. Foster and Others v. British Gas plc (1990): a body, which has been responsible [...] for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals, is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon.

EC Directive C commands that member states adopt the kilogram as their common weight measure by the year 2004. In 2007 the UK has still not taken measures to implement the Directive. Sanjay, a British citizen who owns a bakery, attempts to rely on the Directive in his suit against the British state. He claims that when he first read Directive C, he bought expensive new weighing instruments in anticipation of the switch to the kilogram and these remain useless. Will the court find that Directive C has direct effect?

Maybe. It was accepted in Van Duyn v Home Office that, under certain conditions, Directives may have vertical direct effect. Directive C does not seem to have clearly created rights for individuals but, given that it contains a deadline for its implementation, Sanjay may claim that he only bought the new weighing machines because he had a legitimate expectation that the Directive would have been implemented in time. The court will first decide whether the wording of the Directive was sufficiently clear to create Sanjay's expectation that he will, in due course, be entitled to sell his products using the kilogram. As stated in Ratti, 'a member state which has not adopted the implementing measures required by the Directive in the prescribed period may not rely, as against individuals on its own failure to perform the obligations which the Directive entails'. The court will also decide whether the state acted in bad faith and should therefore compensate Sanjay for his financial loss: see the Francovich case, but also R v HM Treasury ex parte British Telecommunications plc.

Primary sources of EU law

Merger Treaty 1965: combined the executive bodies of (ECSC),(Euratom) and (EEC) into a single institutional structure. Acts of Accession (1972, 1979, 1985) Budgetary Treaties 1970, 1975 Single European Act 1986 Treaty on European Union (Maastricht) 1992 Treaty on European Union (Amsterdam) 1997 uu Treaty of Nice 2000.

crichel down affair: land was purchased compulsorily in 1938 by the Air Ministry for use for bombing practice by the Royal Air Force. The purchase price when it was requisitioned was £12,006. In 1940, the owner died on active service in the RAF, and the Crichel Estate passed in trust to his only child, Mary Anna Sturt[2] (then aged 11), who married Commander Marten in 1949. Churchill gave a promise in Parliament that the land would be returned to its owners, after World War II, when it was no longer required for the purpose for which it had been bought. This promise was not honoured.

Ministry of Agriculture resisted, wanting to use the land for experimental farming in a time of rationing and agricultural development. Dugdale announced that Martin could buy the land back and told the House of Commons he was resigning. example of an over powerful state.

Explain the powers of the Crown, in theory and in practice.

Monarch is the constitutional Head of State and that all actions of the executive, legislature and judiciary are undertaken in the name of the Crown. specific prerogative powers of the Crown personal/ exercised by the government in the name of the Crown. prerogative controlled by constitutional conventions discuss

HL delay of Bills:

Money Bills must be approved in month (Parliament Acts 1911,1949) else may delay a Bill for up to 12 months over two parliamentary sessions, suggesting and negotiating amendments to the Bill. After this period, if the Lords has rejected a Bill twice, or amended it gov may use Parliament Acts to go to Royal Assent

DIRECT EFFECT of TREATY Provisions R v HM Treasury ex parte British Telecommunications plc [1996] QB 615

No compensation payable because breach was not sufficiently serious and Provisions not clear and UK's interpretation and MISTAKEN implementation of directive was reasonable.

EC Directive B commands that member states introduce measures, in their own time and manner, to protect wildlife. Edvard, a citizen of Sweden, wishes to bring administrative proceedings against the Swedish government for not implementing the Directive 'urgently'. Is it likely that the court will find that Directive B has direct effect?

No. EC Directive B does not appear to bestow rights on individuals and, moreover, the Swedish government has not breached any deadline for its implementation.

Official Secrets Act 1989.

Official Secrets Act 1911, s.1 - which is still in force - provides penalties for espionage. provided penalties for the unauthorised disclosure of any official data, even where no damage was intended or caused by the disclosure.

affirmative resolution

Only 10%. requires positive approval Accordingly, it is used where the delegated legislation may be more controversial. The parent Act may require that the proposed Statutory Instrument is approved by both Houses of Parliament timing of approval is given by Act. e.g. of approval not granted. 1969 when the House rejected four draft Orders relating to parliamentary constituencies.

Simmenthal 1978: Italian judge faced with conflict beween laws enacted after certain EU reglations which were in conflict.

Only Constitutional Court could overrule, so judge refers issue to ECJ which confirms that National must be set aside.

examples of Acts where P used statutes to regulate privilege

P Privilege Act 1770 : withdraws freedom from arrest for MPs 1689 IX Bill of Rights recognizes freedom of speech 1868 Administration of Justice Act : P ends its own jurisdiction to determine disputed elections.

DIcey and sov of P

P can legislate on any subject P can make/unmake any law no body above P, cannot be challenged

Jennings on Dicey

P could and had bound its successors: e.g. manner and form. P may make a law today and defines how it can be changed. a future P will be breaking rules if it changes it.

Delegated legislation:

Parliament delegates the task of drafting detailed rules to government ministers, local authorities and other public bodies. authority comes from the enabling, or parent, Act. Delegated legislation is only valid if its subject matter falls within the power conferred by the parent Act. scrutinized by Parl., but less in depth than Bills.

where does the ultimate law making power lie

Parliament, the House of Commons, House of Lords and the Crown. As A.V. Dicey expressed it, parliamentary sovereignty, or supremacy, is the cornerstone of the constitution.

Pickstone v Freemans plc [1989] AC 66 D, a mail order company employed C (and 4 others) in a warehouse where they claimed they did work of equal value to male colleagues, but were paid less. They claimed equal pay, relying on the Equal Pay Act 1970, which had been amended by Equal Pay (Amendment) Regulations 1983. RULE: use of Hansard- EC Law takes precedence over UK law

Parliamentary debates could be used in interpreting delegated legislation. UK legislation should be interpreted in accordance with EC Law. There is a presumption that Parliament will not pass legislation that would conflict with the UK's international obligations.

Secret Evidence and Secret Trials

Permits decisions on material not shown to the person whom it affects. Advocate can see material, but cannot discuss with client

Pickin v British Railways Board [1974] allegation was made that the House of Commons had been misled during the course of passing a Bill.

Pickin v British Railways Board [1974] The court ruled that it could not intervene.

Direct Effect of Treaty Provision: vertical, against state Henn and Darby v DPP 1981 conspiracy to import obscene materials contrary to law of UK.

Plaintiff states that UK law goes against EU law which prohibits quantitative restrictions on import. however failed because lawful restrictions could be imposed by member states, however confirms that defendents (Henn and Darby in original case) could raised claim based on direct effect of Article 28.

Scott: accountability

absolute duty of minister to report all information to Parliament and public concerning activities of his department, acts/omissions, should never withhold info. <> responsibility!! complexity of gov means that it is unrealistic for minister to be responsible for everything under his dept.

Police powers

Police may arrest without warrant a person who is reasonably suspected of being a terrorist (s.42), and the Act specifies conditions of detention (Schedule 8) and the length of detention. Extended detention must be authorised by warrant. The search of premises must be under warrant (s.42), but the police may search a suspected terrorist, whether under arrest or not, to discover evidence of terrorist activity (s.43).

European Council

President of the European COuncil and EU High representative (EU foreign minister. comprises heads of state and gov overall charge of direction of EU meet twice a year decisions are political rather than legal makes , synbolic, but still the highest decision maker.

Buchanan v Jennings [2004]

Privy Council case and accordingly of persuasive rather than binding authority. The Court ruled that the Member of the New Zealand House of Representatives was liable in defamation if, when outside the House, he confirmed the original statement made in the House even though he did not repeat the precise words.

Terrorism act structure

Proscription of organisation provision for various criminal offences, e.g. for membership or support of proscribed organisations. Seizure of property More extensive police powers, detention for 28 days

Privy Council members

Queen and Prime Minister, all Cabinet members past and present, ambassadors, senior judges, and the leaders of the opposition parties, together with leading figures from the Commonwealth.

Scrutiny of government administration, methods?

Question time special debates select committees

No protection for criminal activities

R v Chaytor, R v Morley 2000, false accounting

recent tendency is that judicial review is allowed more often

R v SSHD ep Hosenball 1977 Javed v SSHD [2002]

Legal powers to Protect National Security

RIPA 2000: interception of communications consolodites interception of communications Act.

Ghaidan v Godin-Mendoza (2004) Court and Other Decision-Making Bodies--Human Rights Act 1998 FACTS: The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy

RULE: 'Reading in' okay to make compliant with ECHR, but meaning must be 'consistent with the fundamental features of the legislative scheme'

Starrs v Procurator Fiscal, Linlithgow (2000) Separation of Powers--Judicial Independence FACTS: Temp sherriff in case violated rights because they are appointed by Lord Advocate Sherriff had possibility of advancement

RULE: A conflict of interest lies in a case where someone in one branch might hashave opportunity to move to another branch

McGonnell v United Kingdom (2000) Separation of Powers--Judicial Independence FACTS: Judge in hearing was also member of exec and legislature; determined the appeal of McGonnell

RULE: A judge who also holds functions in the executive and/or legislative undermines right to fair trial and seperation of powers.

R (Barclay) v Lord Chancellor (2009) Sources of the Constitution--Separation of Powers FACTS: Separation of powers issue, 2 unelected members in Channel Islands legislature; as within margin of flexibility with 28 elected members (but provision that denied aliens standing for election was incompatible)

RULE: Art 3 ECHR contained enough flexibility that not all members of a legislature be elected

R v R (1991) Rule of Law, Separation of Powers--Public Policy FACTS: HL rejected idea that husband was precluded from raping his wife

RULE: HL read the Act in light of changing social views, against the plain meaning from a past age.

Dimes v Grand Junction Canal Proprietors (1852) Separation of Powers--Judicial Independence FACTS: Lord Chancellor held shares in a canal company which was involved in litigation

RULE: Judge should not sit in case where there is a financial interest.

R v Bow Street Stipendiary Magistrate ex parte Pinochet (No2) (1999) Separation of Powers--Judicial Independence FACTS: unprecedented setting aside of a House of Lords judgment based upon the possibility of bias. Lord Hoffmann's failure to declare links to Amnesty International meant that a previous House of Lords judgment on the immunity of former Chilean dictator General Augusto Pinochet had to be set aside.

RULE: Judges must be without bias in affiliation, against persons/groups, in financial interests

Council of Civil Service Unions v Minister for the Civil Service (the GCHQ Case) (1985) Royal Prerogative--Judicial Control FACTS: GCHQ (intelligence service) staff could belong to trade unions. PM (as Minister for Civil Service) issued oral order that this should no longer be allowed.

RULE: RP is generally subject to JR, but courts have no jurisdiction to intervene in matters of national security.

Pickin v British Railways Board (1974) Parliamentary Sovereignty, Parliamentary Privilege and Standards--Other Bodies Cannot Question, Individual Privileges FACTS: allegation that HC had been misled during passing of a bill; court ruled it could not intervene.

RULE: function of the court is to construe and apply Acts; not concerned with the manner in which Parliament carries out or performs.

Powers of security services subject to all legislation in particular.

Regulation of Investigatory Powers Act 2000 RIPA

Secondary sources

Regulations are binding in their entirety and take effect immediately without need for incorporation by the member states. Directives :binding as to objective,, but leave a discretion to state to implement. They may require member states to take measures (legislative or other) to achieve the common objective. Decisions are binding on those to whom they are addressed. The ECJ's interpretations of EC law are also binding.

National Law and EU Law, how can law enter national law

Regulations: operate directly legislation passed under s.2(2) of 1972 Act CJEU decision under sec3 interpretation of statutes to be compatible.

cases where new EC legislation is proposed: proportionality

Roughly defined, this requires a reasonable relationship between an EC objective and the particular legislative or administrative means used to attain that objective.

What are the principal differences between Select Committees and Standing Committees?

SEE TEXT

examples of incidents which did not lead to resignation

Sachsenhausen 1968 in which the Foreign Secretary refused to resign over the denial of compensation to victims of Nazi persecution. The Vehicle and General Insurance Company 1971, in which the minister did not resign following the collapse of the company for which the Department of Trade and Industry had supervisory powers. A breach of palace security in 1982 over which the Home Secretary did not resign. Escapes from the Maze Prison in Northern Ireland in 1984 over which the Northern Ireland Secretary refused to resign, claiming a distinction between policy and administration. Escapes from prison 1994, over which the Home Secretary refused to resign, citing the 1984 Maze Prison precedent.

Proscribed organisations

Section 3 of the 2000 Act provides for proscription of organisations involved in terrorism by the Secretary of State (the Home Secretary). Proscribed organisations are listed in Schedule 2 to the Act. An organisation is concerned in terrorism if it commits or participates in acts of terrorism, prepares for terrorism, promotes or encourages. terrorism, or is otherwise concerned in terrorism.

How can conventions be distinguished from understandings, habits, practices and legal rules?

See text

R v Shayler [2003]

Shayler publishes official secrets. courts will not gainsay Minister's general assessment of national security.

supremacy of EC law

Simmenthal [1978]: duty to set aside provisions of national law which are incompatible with Union law. Internationale Handelsgesellschaft [1972]

Stockdale v Hansard 1839: example of courts reluctance to cross boundaries of P privilege. Sheriff pleads habeus corpus after levying execution on Hansard's property to pay damages for ïmproper books" (publiched by Stockdale) in circulation in Newgate prison

Speaker issues certificate stating that Sheriff was guilty of contempt and a breach of privileges of HC. court conceded jurisdiction. illustrates how agent of the court was incarcerated while trying to enforce court order by overrule of HC.

breach of privilege and contempt how are they regulated:

Speaker of the House and the Committee on Standards and Privileges. Speaker has the power to reprimand a Member, and to 'name' him (requires him to leave) -decides if allegations are serious enough to go to committee, financial issues go to Commissioner HC decides on penalty and can depart from Committee Not possible to go to judicial review as it is part of self regulation. R v Parliamentary Commissioner for Standards ex parte Al Fayed [1998] CA held that the courts had no jurisdiction to review decisions by the Parliamentary Commissioner for Standards

urgent question rules

Standing Orders define urgent questions as raising matters which are of an urgent character. discretion of Speaker of the House. must give notice to the Speaker before noon on the day s/he wishes to put the question. few applications granted (1 per week).

important treaties for EU

TEU and TFEU treaty on functioning of European Union.

primary sources of EU Law

TEU,TFEU treaties of Accession : e.g. between the UK and the other member states 1972

role and fn backbenchers

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role and fn govt

TEXT

role and fn opposition

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role and fn speakers

TEXT

role and fn whips

TEXT

Terrorism acts

Terrorism Act 2000 AntiTerroristm, Crime and Sec. Act 2005 Terrorism Act 2006 Terrorism Act 2008

Parliamentary Papers Act 1840 following Stockdale v Hansard (1839)

The Act provides privilege protection for papers produced on the authority of Parliament, and for accurate reports of parliamentary proceeding and papers. This covers newspaper and television reporting, provided the reports are bona fide and made without malice. Correct copies of such publications also enjoy absolute privilege (s.2); burden of proof is on the defendant to show that the publication was without malice

broadly expressed objectives of the EC found expression in Article 2 of the EC Treaty

The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing the common policies , to promote throughout the Community a harmonious and balanced development of economic activities, sustainable and non-inflationary growth respecting the environment, a high degree of convergence of economic performance, a high level of employment and of social protection, the raising of the standard of living , and economic and social cohesion and solidarity among member states.

Webb v EMO 1995 EMO Air Cargo had an employee called Mrs Stewart who had taken maternity leave. Mrs Webb was hired to replace Mrs Stewart, though it was envisaged that she would stay on working after Mrs Stewart came back.

The Court of Appeal held that a sick man, who was the appropriate comparator, would have been treated similarly. The House of Lords referred to the ECJ. HL 1st concludes impossible to construe UK law as compatible with directive. following CJEU decision, in second case says it is possible.

ECJ

The Court of Justice shall ensure that in the interpretation and application of this Treaty, the law is observed. highest court within the Community and its decisions are final. The circumstances under which the ECJ will review its own decisions are limited.

The EC courts

The EC judiciary consists of two courts, both of which are based in Lux: the Court of First Instance (CFI) and the European Court of Justice (ECJ). The 27 judges of each court are appointed by 'common accord of the governments of member states' and are 'chosen from persons whose independence is beyond doubt'. + six Advocates-General, non binding advice.

indirect effect limitations:

The ECJ has also made it clear that the doctrine is subject to the general principles of law such as legal certainty and non-retroactivity : Kolpinghaus and cannot be applied where it would give rise to or aggravate criminal liability : Criminal Proceedings against Luciano Arcaro.

Doctrine of Direct Effect

capacity of EU law to create rights and duties for individuals which are directly enforceable before national courts.

Horizontal effect, uncertainties in law

The ECJ has exempted from the principle of indirect effect cases where finding indirect effect may frustrate the 'legitimate expectations of individuals'. One such case is where applying the principle would have the effect of aggravating the liability in criminal law of persons who act in contravention of the provisions of the Directive. -difficulties in accepting the indirect effect principle, mainly because they are not versed in the teleological method of interpretation. Exemplifying this is the case of Webb v Emo [1993] HL originally finds it impossible to construe UK law to be compliant, but after ECJ ruling changes its mind.

INDIRECT EFFECT Marleasing 1991: no legislation had been passed to comply with directive

The ECJ held that the Spanish Courts were under a duty to interpret national law in a way that gave effect to European law. Von Colson principle: the domestic court must interpret law in accordance with EU law.

NO horizontal effect for directive Marshall v Southampton Area Health Authority [1986] dismissed from her post at Southampton Area Health Authority on the basis that she was over 60 years of age. This, she contended, was in breach of EC Directive

The ECJ, however, held that Directives, in general, did not have horizontal direct effect. Ms Marshall did succeed in her action, however, as the ECJ held that the Health Authority was an organ of the state, and the Directive in question could have vertical direct effect.

David Maxwell-Fyfe: following Crichel Down

The Minister is not bound to defend action of which he did not know, or of which he disapproves. But... he remains constitutionally responsible to Parliament for the fact that something has gone wrong, and he alone can tell Parliament what has occurred and render an account of his stewardship.

ex of judicial leaving some powers to executive to decide: Council of Civil Service Unions v Minister for the Civil Service [1985] GCHQ

The Prime Minister had ordered that workers at the Government's Communication Headquarters (the signals intelligence body) should no longer be allowed to be members of trade unions, a right which had been enjoyed for several decades. The Union challenged the legality of the ban. The Court of Appeal and House of Lords ruled that where national security was in issue, the courts would not interfere. NOTE: judges had jurisdiction to rule on the legality of executive action.

The Butler Inquiry

The accuracy of intelligence data on weapons of mass destruction was the subject of this inquiry. The inquiry found no wrongdoing on the part of the government and no evidence that, as claimed, the government was in part motivated by the desire to control Iraq's oil supplies.

Walker v Unison 1995 : wo Conservative candidates in the Scottish local elections of 1995 brought a petition for an injunction to prevent Unison, a trade union, from placing advertisements on billboards and in newspapers throughout Scotland seeking to persuade voters not to vote Conservative in the elections. The advertisements were not authorised by an election agent.

The application was refused. Following the reasoning in R v Tronoh held that the provisions of section 75 of ROPA 1983 are not contravened by advertisements in the form of a generalised attack on one or more of the policies of a political party at the time of a general election or local government elections throughout Scotland.

Prison escape move to accountability instead of responsibility

The distinction between operational and policy issues has been used by ministers to defend themselves from criticism for failures within their departments; this can be seen most clearly where previous Home Secretary's have sought to emphasize that prison escapes are the result of operational failings within the Prison Service rather than any policy decision for which they can be held personally responsible.

Article 234 establishes a partnership between the judges within the national legal systems and the ECJ.

The ideal is that national judges should not be dictated the 'meaning' of EC law by the ECJ when they consider the matter sufficiently clear.court emphasised that the general purpose of Article 177 (as it then was) was to ensure the proper application and uniform interpretation of Community law in all member states and to prevent divergence occurring within member states. NOTE: once the ECJ accepts jurisdiction and gives a ruling, the matter is then returned to the domestic court for application - thus preserving the partnership ideal. Therefore, it is essential not to mistake the ECJ for a kind of Appeal Court from the national courts.

Between 1909 and 1910 the House of Lords, in breach of convention, refused to agree to the government's budget. Had the House of Lords acted unlawfully in refusing to agree to the budget? Did the House of Lords 'break' the convention, or merely introduce an exception to it?

The key to this question lies in the distinction between law and convention. In refusing to agree the government's budget the House of Lords was acting lawfully since it had broken no law. However, the House of Lords clearly broke a long-standing convention based on the need to respect the superiority of the elected House of Commons in relation to matters of finance. As such the House of Lords could be said to have acted unconstitutionally.

DICEY parliamentary soverignty

The principle of Parliamentary sovereignty mean neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

Waddington v Miah [1974]

The relevant acts took place before 1 January 1973. The offences were offences against the Immigration Act 1971 ss 24, 26 which came into force on 1 January 1973. His conviction was quashed by the Court of Appeal. On appeal: Held it was hardly credible that Parliament would pass retrospective criminal legislation in view of the strong feeling against such legislation, the Declaration of Human Rights of the United Nations of 1948 and the Convention for the Protection of Human Rights 1950 (ECHR).

Dicey 3. Rights and freedoms are best protected under the common law (rather than by a formal Bill of Rights)

The rights to liberty and to assembly are determined by the courts in the course of ordinary legal proceedings. This reflects the traditional view that citizens are free to do whatever the law does not prohibit - rights and freedoms are what remains of the notion of 'freedom unrestrained by law'. However citizens must know all the common law.

What is the role of the minister in relation to his or her department?

This question requires you to explain the theory and practice of ministerial responsibility. While theoretically ministers are accountable and responsible for every activity undertaken by their department, the realities of large government departments and the frequent changes in ministerial posts makes this theoretical position unrealistic.

Webb v Emo 1993 D employed C as as a clerk, initially to cover the maternity leave of an existing employee. D intended that C should stay on after the other employee returned. Two weeks after starting work C found she too was pregnant; since she would be unable to work during the maternity leave period, she was dismissed.

This was direct discrimination on the grounds of C's sex: pregnancy could not be likened to other illnesses, and since C had been employed on a permanent basis she would not be absent for the whole of the intended employment period.

Which involves the greater hypocrisy, collective ministerial responsibility or individual ministerial responsibility?

To suggest that two dozen Cabinet members agree on everything is absurd—yet they have to pretend that they do. The charade is made plain by the leaks that reveal their divisions. Equally to suggest that a minister is in command of everything that happens in his department is just as absurd. Again, the charade is made plain by leaks from below and scape-goating from above.

source of law which have direct effect

Treaty Articles, Regulations, Decisions and ECJ rulings

European Parliament

Treaty of Lisbon: max seats 250, no state has more than 96 elected for term of 5 years members sit as parties, vote by absolute majority. meet 12-14 times a year represents interests of EU citizens through political parties.

SUpremacy of EU law in the UK requires that Act be made in the UK to give effect.

Treaty of Rome=> European Communities Act 1972 read sec 2.1,2.2,2.4,3

Commission v Italy [1979] Commission v UK [1979]

UK: ECJ ruled that UK had to implement a Regulation on the use of mechanical recording equipment in road vehicles used for the carriage of goods. ITALY:

essential differences between a written and an unwritten constitution.

Under a written constitution it is possible to identify the principal institutions and their powers and the allocation of power between central and local government. The constitution will be the supreme source of power and a Supreme Court will be vested with authority to interpret the constitution. difficult to amend By contrast, the British constitution can only be understood by studying the sources (statutes, common law and conventions: see Chapter 3) and studying the roles and relationships of and between the differing institutions, principally Parliament,the executive and the judiciary. The British constitution is easy to amend.

interception of communications

Until 1985 there was no statutory basis on which warrants for the interception of communications were granted. It was assumed that warrants were legitimated under the royal prerogative power to defend the realm.

EX: To what extent do the rules of parliamentary privilege ensure that ministers and Member of Parliament avoid conflicts of interest in relation to their parliamentary duties?

Use the case law here on sponsorship, starting with Brown's Case in 1947 and the Yorkshire Area NUM case. Discuss the rules relating to paid employment and the holding of consultancies and directorships. A crucial aspect is the manner in which outside interests are registered and monitored to avoid any perception of wrongdoing by Members of Parliament. Discuss the 'cash for questions' affair and its aftermath, the Nolan inquiry and the Report on Standards in Public Life. Discuss also the reforms made and the introduction of the office of Commissioner for Standards in Public Life.

examples of breakdown in collective responsibility convention

Westland helicopter 1986 Mr Heseltine disagreed with Thatcher over whether a bid for Westland should be given to Europe or the US. Thatcher rejected a second cabinet meeting on the topic and Heseltine resigned. 2. 2003 Iraq wars 2 Cabinet ministers resigned: Robin Cook (could not accept decision to go to war) Clare Short (could not accept government's position on establishing a legitimate Iraqi govt post war.

EC Directive D commands member state governments to enact measures, by 2006, to ensure that male and female employees receive the same benefits for their dependants from their employers. In Portugal, which has not yet implemented Directive D by 2007, the national law states that married male employees may receive salary increments to help them support their families, but married female employees do not. Maria, a married Portuguese civil servant, wishes to rely on the Directive before Portuguese courts to seek the benefits. Stella, a married Portuguese employee of a private company, is hoping for the same. Is it likely that the court will find that Directive C has direct effect? If yes, is it applicable to both Maria and Stella?

Yes, in the case of Maria. No, in the case of Stella. EC Directive D appears to meet the ECJ criteria for direct effect of Directives as set out in Van Duyn. The Directive clearly creates a right for individuals and even commands that the state should implement the Directive in a given time. However, the direct effect of Directives can only be 'vertical', in other words evoked against the state. Therefore, unfair as this is, Maria can invoke the Directive but Stella cannot. On the other hand, Stella might get the same benefits under the principle of indirect effect, whereby the Portuguese courts could interpret their national law in the light of the wording and purpose of Directive D in order to achieve the result of the Directive, as per Marleasing SA [1990] ECR I-4135. But this is an uncertain area of the law -

Marinos, a Greek national, applies for an academic post at a British university but his application is rejected because 'he is not British'. He protests that the rejection is contrary to Article 39 EC, which provides for the free movement of workers. Is it likely that the court will find that Article 39 EC has direct effect?

Yes. Article 39 EC is sufficiently clear in its content and creates rights for individual workers who are nationals of EC member states such as Greece. Therefore Article 39 EC meets the direct effect test laid down by the ECJ in Van Gend en Loos and Costa, in other words it is part of national law without a need for special legislation within the UK. Moreover, the ECJ has asserted, in the same cases, the supremacy of EC law and UK judges are under an obligation to respect the ECJ's rulings under the European Communities Act 1972. Therefore, Marinos can rely on Article 39 EC before a British Court in order to assert the unlawfulness of the university's discriminatory decision. See also Defrenne v Sabena [1976]

EC Regulation A stipulates that male and female employees in member states must receive equal pay for the same work. Leila, a French employee, attempts to rely on Regulation A in a suit against her employers. Is it likely that the court will find that Regulation A has direct effect?

Yes. Regulation A seems clear in that male and female employees in member states are entitled to receive equal pay for the same work. Therefore Regulation A EC meets the direct effect test laid down by the ECJ in Van Gend en Loos and Costa. Moreover, EC law is supreme and overrides conflicting national legislation.

EX: Explain, in a brief note, the relationship between the EU and the EC.

Your note should first state that the two organisations are not identical but that the EU is an 'umbrella' entity that contains the EC. Second, you must explain that the EC evolved from the three original Communities and that the EU was created by the Treaty of Maastricht (TEU 1992). Finally, it would also be useful to explain the 'three pillar' system, indicate that while the EC pillar is about a set of institutions with policy- and law-making capacities for the benefit of which the member states have partly relinquished their sovereignty, the other two pillars are areas of inter-governmental co-operation between member states under ordinaryinternational law principles.

Stourton v Stourton [1963]

a Member of the HL was held to be immune from arrest because of privilege when he failed to pay maintenance to his wife only exception where debt => imprisonment, anomaly since was recommended that right is abolished, but no action taken.

R v Tronoh Mills Ltd [1952]

a distinction was drawn between an advertisement placed in The Times urging voters not to vote for a political party (which was lawful) and an expenditure designed to promote the interests of a particular candidate (which would have been unlawful).

Dicey's analysis of sovereignty: 3 points

a. Parliament - the supreme law-making body - may legislate on any subject-matter. b. No Parliament can be restricted by a predecessor or restrict the power of a future Parliament. c. No body, including a court of law, may question the validity of Acts of Parliament.

The whips

about 12 per party communicate between leadership and members of party. A 'three-line whip' indicates that a Member of Parliament must be present, and failure to attend may result in disciplinary proceedings being taken. Note that the whips are agents of political parties, and not of Parliament itself.

select committees reports

about 25% debated more time than before no specific Parliamentary procedure,but 8 days per session

Dicey: 1. no punishment if no breach

absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government. Jennings: insistence on lack of arbitrariness is unrealistic. e.g. powers during war (taking of property, prohibit to deal with countries)

directives: vertical effect Marshall v. Southampton and South-West Hampshire Area Health Authority (1986)

according to Article 189 of the EEC Treaty [now Art. 249 EC-Treaty], the binding nature of a directive [...] exists only in relation to 'each Member State to which it is addressed'. It follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person." arguments for vertical effect: horizontal would totally blur the distinction between regulations and directives -"the obligations imposed by such a directive are on the Member States. Such a directive does not have to be notified to the individual and is only published in the Official Journal by way of information - in my view far too tenuous a link with the individual concerned to create a legal obligation".

CFI

acts as the EC's administrative court for the less controversial issues.

EX: List the functions of the House of Lords. Briefly explain why a second chamber may be considered desirable.

adequacy of the House of Commons in relation to legislation and scrutiny of government administration. Particularly in relation to legislation, consider the shortcomings of scrutiny in the Commons - the problem of time and the government's control over the legislative timetable, and the use of allocation of time motions to curtail debate. Where a Bill is not fully considered in the Commons, the House of Lords becomes all the more important. Consider also whether the fact that the Lords is (as yet) unelected gives it an independence which is lacking in the Commons.

Treaty of Amsterdam 1997

adjusting the EU structure with a view to increasing membership of the Union. On the one hand, it extends the principle of free movement of goods and persons by abolishing border controls within continental Europe (the UK decided to retain its border controls). On the other hand, justice and home affairs were significantly truncated, with matters relating to free movement of people - including immigration. and asylum - transferred to the EC pillar enlargement to 27 members. 1 pres 5 vice 785 MEPs WMV voting instead of unanimous (EXCEPT taxation, social security, most immigration policies and trade in audiovisual products)

Representation of the People Act 1983 (ROPA)

aims to ensure that votes are freely cast without any pressure from candidates or political parties electoral offenses: bribery and 'treating limits expenditures.

Disqualifications

aliens, minors, peers who sit in HL (others can vote) people serving a sentence of imprisonment for a criminal offence (this exclusion is to be reformed as a result of the Court of Human Rights' judgment in Hirst v United Kingdom (2005) people detained in a mental hospital as a result of criminal activity (but other mentally ill people may register and vote).

Crown

all actions taken in name of crown. hereditary monarchy.

The European Commission:legislative initiation, lower executive and quasi-judicial.27 members, appointed by the governments of member states in consultation with one another. Commissioners must be nationals of one of the member states and no more than two may be nationals of the same member state.

all aspects of decision making 'civil service' of the EC. power to initiate, in other words to propose legislation, and also some quasi-judicial powers. For example, it can penalise member states which disobey certain parts of EC law, or investigate European companies that break EC competition rules. power to initiate legislation lies with the unelected Commission, rather than with Members of the Parliament,=>DD

1974 the House of Commons introduced a Register of Members'

all outside interests must be recorded. A similar register exists for the House of Lords.

sec 2.4 ECA 1972

all statutes shall be construed and have effect subject to EU law.

Peerage Act 1963

allows right to disclaim peerage allows female peers

Treaty of Amsterdam 1997

amended pillar structure of TEU 1993 incorporates free borde Schengen Agreement (except Denmark, Ireland and UK) Introduces Framework Decision similar to directive, leaves discretion to member states reaffirms EU citizenships as complementary to national citizenship. provided right of access to Commission and Council documentation adopted a protocol on principle of subsidiarity

1st pillar

amends the EEC Treaty, making it the EC Treaty. regulated by the institutions of the Community - the Council of Ministers, the European Commission, Parliament and the ECJ.

Contempt of Parliament: areas

any action that damages the authority of the House. It cover such matters as unjustified pressures by newspapers which damage Parliament's reputation, unauthorised disclosure of reports and draft reports. misconduct in the House, disobeying orders of the House, and obstructing wok of ministers/MP Members or officers of the House

European Commission: initiative powers and enforcement: constitution

appointed by EUropean COuncil, with consent of EP renewable 5 year term, cannot be dismissed. divided into Directorates General each headed by Director reporting to a Commissioner.

appointment of commissioners

appointed for a renewable four-year term of office and cannot be dismissed during their term of office by governments. Once appointed, Commissioners must act entirely independently of the governments that appointed them: they are not representatives of the governments of member states. A President, appointed from among the Commission's members in common agreement with member states, heads the Commission. This office is held for a renewable two-year term. EP has the power to pass a motion of censure to remove the Commission en bloc (almost in 1999) and the ECJ can demand the retirement of a Commissioner on the grounds of serious misconduct or failure to fulfil his or her duties

subsidiarity

areas which do not fall under exclusive competence of EU, EU shall act only if objectives cannot be achieved by state

Parliamentary privileges

aspect of parliamentary sovereignty or supremacy. sole judge of its own composition and procedures collective (relating to both Houses of Parliament) and individual (relating to individual members of the House of Commons and the House of Lords) enjoyed by both houses and essentially the same. protects against accusation of defamation from outside. protects individuals in freedom of speech from exeutive.

'Metric Martyrs' case (Thoburn v. Sunderland City Council [2002]

attempts were made, but rejected, to run the proposition that the legislative and judicial institutions of the EU may set limits to the power of Parliament to make laws which regulate the legal relationship between the EU and the UK. It was argued that, in effect, the law of the EU includes the entrenchment of its own supremacy as an autonomous legal order, and the prohibition of its abrogation by the Member States. This argument was rebutted by the High Court, who noted that Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the European Communities Act 1972.

The Council of Ministers: legislative and higher executive.

authorises the Commission to implement EC legislation, take decisions acts alongside EP. President rotates every 6 months, the Committee of Permanent Representatives (COREPER) acts as the permanent body engaged in Council work.

examples of extent of Parliamentary power to legislate

beyond territory: Aviation Security Act 1982, hijacking cases retrospective: War Crimes Act 1990 alter its own power Parliament Acts 1911 and 1949 which reduced the powers of the House of Lords in relation to legislation, and the House of Lords Act 1999 which removed most of the hereditary peers from the Upper House.

European Council President roles elected by QMV

chairs council ensures preparation and continuity of work endeavouring to facilitate cohesion reports to EP ensures the representation of the Union on issues concerning its common foreign and security policy.

Election expenditure

candidates can spend up to limit determined by size of constituency, rural/urban. must be through an election agent full accounts of expenditure must be made, irregularities can => void election offence for expenditure to be made in support of a candidate by third parties and made without the authority of the candidate

Ministerial Code:

cannot a lobby govt for 2 years must consult advisory committee for 2 years for business before accepting business appointment

role of the main opposition party

challenge the government of the day and ensure its accountability to the people through Parliament. The Opposition party is structured in the same way as government - having its own inner core of members and other 'shadow' ministers; it acts as a 'government in waiting'. opposition parties are allocated 20 days per parliamentary session on which they dictate the subject matter for debate.

Malone v Metropolitan Police Commissioner [1979]

challenged the power to intercept telephone calls, the defendant in criminal proceedings arguing that intercepts violated a right to privacy and amounted to a trespass to property. Both arguments failed, the judge holding that there was no right to privacy and that no trespass had been committed. There being no violation of law, the intercepts were lawful. Malone then took his case to the European Court of Human Rights (see Malone v United Kingdom (1984) 7 EHRR 14). The Court held that the United Kingdom authorities had violated Malone's right to privacy, protected under Article 8 of the Convention.

In re M [1993]

citizen of zaire seekeing asylum, deported, but application for judicial review. required that departure should be delayed. not folloed by Home Office, court order Home Secretary to return M, but decides that court lacked jurisdiction against Crown. HL ruled that injunction cannot be issued against Crown, it can be issued against exec and persons representing C. Home Sec (HS) was not in contempt since he acted on legal advice.

voting system: Elections for the European Parliament

closed party list system

sources of constitution: The royal prerogative

collection of rights and immunities which belong to the Crown. They represent the residue of common law powers enjoyed by the Crown before the settlement of 1689 (Bill of Rights) covers a range of disparate matters relating to domestic and foreign affairs. For example, the Prime Minister and other ministers are appointed under the prerogative and Parliament is summoned and prorogued (suspended) under the prerogative. In relation to foreign affairs, declarations of war and peace fall under the prerogative, as does control of the armed forces in overseas operations. International treaties are signed under the prerogative.

monitoring systems for MPs

committee on business appointments Register of Member's public life Parliamentary Commissioner for Standards Standards Authority and Compliance Officer

DIRECT EFFECT of TREATY Provisions Brasserie du Pecheur SA v Federal Republic of Germany [1996] ECJ rules on principles regarding compensation when ther is damage as a result of State breach of EU law:

compensation required equal to loss when: 1. when national legislature exec or judiciary responsible for breach 2. rule of law breached is intended to confer rights on individual 3 breach is serious, grave disregard for State's discretion 4. direct link between breach and damage seriousness evaluated by (intention, clarity of measure breached, measure of discretion left by rule,whether error was excusable, repeated breach despite judgement).

The Wakeham Commission Report recommendations

comprise a majority of nominated members and a minority of selected or elected members representing regional interests, no consensus on details. model A:65 members selected regionally based on proportional representation of party model B,C: 87 , 195 members elected during European Parliamentary elections under proportional representation. -nominations by Appointments Commission (8 people,3 from parties, 1 cross bencher and 4 independent. Commission: ensure that at least 20% not affiliated with parties,30 per cent of new members are women,ethnic+religious diversity,regional members serve for 3 electoral cycles while appointed members serve for fixed 15 years. remuneration: should be adequate, based on attendance, not more than MP average per session

Court of Justice of the EU

comprises: CJEU, general court and specialised courts judges and advocates general Direct Actions : brought before court in Luxembourg. Applications from national courts for preliminary rulings

A v Secretary of State for the Home Department [2004]

concerned the power conferred on the Home Secretary (under the Anti-terrorism, Crime and Security Act 2001, s.23) to detain foreign (i.e. non-British) terrorist suspects indefinitely. The underlying reason for the power was that the suspects could not be put on trial because much of the evidence against them was acquired by the security services through intercepts and further that they could not be deported because deportation would violate Britain's international obligation not to return people to their state of nationality if they would be at risk of torture or other inhumane treatment. In a robust judgment the House of Lords ruled that the power violated Article 5 (the right to liberty) of the European Convention on Human Rights. The ruling led to reform of the law.

Directives and Direct Effect Van Duyn v Home Office 1975 enters UK accepting job with church of Scientology, however immigration officials refused admission on basis that job was undesirable. => action against Home office on the basis of Article 45 of TFEU treaty provides for freedom of movement

concluded Directive had direct effect since: 1. did not require intervention of State 2. laid down obligation which was not subject to any exception or condition 3. must be precise

Dicey retrospectivity

condemned. To make a person liable for an offence which at the time the act was committed was not an offence contravenes the rule of law. The European Convention on Human Rights, Article 7, prohibits the retrospective imposition of criminal liability. e.g. R v R 1991

Treaty of Amsterdam 1997

confirms EU attachment to liberty, democracy HR and freedom, rule of law, seeks to achieve monetary union, promotion of economic/social progress.

Vauxhall Estates Ltd v Liverpool Corporation [1932]

conflict between a provision in a 1919 Act of Parliament and a 1925 Act. The court ruled that the later Act applied, and thereby impliedly repealed the conflicting earlier statutory provision.

Non-Legal Sources

conventions are non-legal (and therefore cannot be enforced by courts of law), that they are binding (in that they impose obligations), and that they regulate the conduct of all actors on the constitutional stage - the Crown, Parliament, the executive and the judiciary. To breach a constitutional convention is to act unconstitutionally but not unlawfully, since these are non-legal rules

Rost v Edwards [1990] :The Guardian newspaper alleged in an article that a Member of Parliament, Mr Rost, had failed to declare certain financial interests as required under the rules of the House of Commons. Following publication of the article Mr Rost was informed that he was not to be a member of a parliamentary committee and that he had not been selected for the chairmanship of a Select Committee. Rost sued The Guardian for libel. Mr Rost wished to introduce evidence into court, including the Register of Members' Interests and correspondence with an official of the House of Commons. This raised a matter of privilege.

court determines :Register of Members' Interests was a public document=> allowed BUT correspondence was a matter fully within the jurisdiction of the Commons => NO

CND v The Prime Minister [2002]

court has no jurisdiction, cannot judge legality of war

Van Gend en Loos 1963: CJEU direct effect. was importing glue from Germany at 3% Dutch govt raised to 8% they protested claiming direct effect of TFEU which prohibited custom duties on imports and exports

court ruled that in order for Treaty provisions to have direct effect, they must be sufficiently clear, precise and unconditional, not give substantial latitude to state, apply to States and individuals within the state

courts and privilege

courts adopt in the interests of separation of powers and deference to parliamentary supremacy - a cautious approach to privilege. -courts will recognise and declare the existence and scope of privilege but decline jurisdiction where a matter is found to be within Parliament's privileges.

courts and national sec.

courts do not abandon jurisdiction just because a case presents issues of national security. R v SSHD ep Ruddock [1987] R v SSHD ep Rehman [2003]

1992 Mastricht treaty

creates EU, EEC redesignated EC proposal for single currency. controversies concerning competencies of EU with respect to member states

2nd pillar

creates mechanisms for inter-governmental co-operation aimed at a common foreign and security policy (remember that in these matters, member states retain their full sovereignty).

Acts of Unions 1701 and 1801

creating GB and the UK:which united England and Scotland under a single Parliament.

objectives of EU

creation of European single market aim to remove barriers to trade (custom duties) removal of disparities to trade (e.g. unfair wages) -trade: 1 external policy for external relations -protection of environment

The Maastricht Treaty 1992; TEU

creation of the EU includes EC 2nd part :new areas of activity, namely common foreign and security policy and police and judicial co-operation in criminal matters. The whole edifice is 'topped' by a common roof, the EU, which is headed by the European Council. expanded the aims and objectives of the EC to include economic and monetary union, environmental issues, consumer protection, civil protection, research and technological development and health protection.

Constitutional Reform Act 2005

creation of the Supreme Court

Offences relating to membership and support of terrorist organisations

criminal offence to belong to a proscribed organisation (s.11). It is also an offence to solicit support - whether financial or otherwise - for a terrorist organisation, and to arrange or assist in arranging meetings in support of the organisation (s.12). Section 13 makes it an offence for a person to wear an item of clothing or wear or display articles (such as badges, banners, etc.) that gives rise to a 'reasonable suspicion' that he or she is a member or supporter of a proscribed organisation. The Act extends jurisdiction to try offences to acts of terrorism by bombing to actions outside the United Kingdom if such actions would be an offence under domestic law (s.62).

formal powers of Select Committees

defined in Standing Orders, which provide that Committees have the power to send for papers and persons and to appoint specialist advisers where necessary. each select committee each has a permanent staff of some three to four people, and some have the power, under Standing Orders, to establish sub‑committees.

Hutton Inquiry

death of Dr David Kelly, a government scientist, United Nations' weapons inspector in Iraq Dr Kelly feared that he would be identified by the Ministry of Defence or a journalist as the source of information disclosed in a BBC interview. He had also given evidence before a House of Commons Select Committee. The advice given to the government on weapons of mass destruction was central to the decision to attack Iraq. One central issue was whether the dossier on weapons of mass destruction had been 'embellished' by the government to make its case for war more convincing.

Brown's Case in 1947 Yorkshire Area National Union of Mineworkers' Union case in 1975

decided that where a Member of Parliament had entered into a contract to represent the interests of a trade union, the union's threat to terminate that contract did not constitute a breach of the rules. Conversely, however, in the Yorkshire Area National Union of Mineworkers' Union case in 1975 the union had threatened to withdraw its sponsorship of a number of MPs unless they voted in line with union policy. That was ruled to be a contempt of the House in that the union was attempting to limit freedom of speech

second and third pilar regulation

decision-making is quite different from pillar 1. In both foreign and security policy and co-operation in policing and judicial matters, decisions are to be reached by way of inter-governmental co-operation. This means that decisions will be reached through agreements to co-operate and co-ordinate policy - agreements need to be ratified at national level no jurisidiction for ECJ other than where the Council of the EU decides that it should have. require ratification or implementation at a national level.

The European Council: informal political leadership.European Council heads the EU and, informally, the EC. Although the SEA 1986 and the TEU 1992 both recognised it, the Council does not have the status of an EC institution heads of government of the member states and their foreign ministers meet twice a year to formulate major policy decisions

decisions are political rather than legal. Moreover, it functions without rules of procedure, published agenda or principles of decision-making. Its operations, therefore, are not transparent. Nevertheless, because of its symbolic importance, the European Council has become de facto the highest decision-maker in the EU, though without a legal foundation for this role.

Common law and constitution

decisions of judges through the interpretation of statutes or through development of the common law are a source of constitutional law where they affect the powers of the state, the relationship between institutions of the state and the protection of citizens' rights and freedoms.

EX: To what extent is it possible or desirable to define clearly the conventions of individual and collective ministerial responsibility?

define constitutional conventions, illustrate distinguish rules of law from conventions show interaction: royal prerogative on the Royal Assent, appointment of Prime Minister and the dissolution of Parliament. Key conventions here are that a government must resign if it loses the confidence of the House of Commons and that ministers are collectively and individually responsible to Parliament. address issue of clarity and certainty: some conventions are clear and certain (as with the Royal Assent) and others - such as ministerial responsibility - have an inherent vagueness and lack of clarity codification: need to consider the differing forms that codification can take. It could be a legal code, as in a statute, or it could alternatively be an authoritative statement of the rules, as with the Australian example. consequences of codification? separation of powers is relevant here, for if conventions were placed on a statutory basis, judges would have the jurisdiction to rule on conventions. Would that be a desirable extension of judicial power or rather a dangerous step which would involve judges in matters of high policy?

EX: To what extent is it possible or desirable to define clearly the conventions of individual and collective ministerial responsibility?

define ministerial responsibility and conventions. Explain the constitutional reason for the concept, namely its role in ensuring government according to law and the principles of the constitution. Also discuss the fact that conventions allow for flexibility and adaptation of the rules in order to meet particular circumstances. While the convention of collective responsibility is relatively clear, you also need to demonstrate your understanding of the uncertainties inherent in individual responsibility. Use some of the many illustrations discussed in the textbook, starting with the 'classic' position in Crichel Down and showing how over the decades the convention has been differently understood.

Terrorism

defined as the use of force and violence directed towards undermining the authority of the state and its agents. It is to be distinguished from peaceful protest, which is aimed at raising public awareness about a particular cause and seeking a change in the relevant law

What reforms to HC can be recommended?

definition of proceedings in Parliament, the adequacy of the Register of Members' Interests and its enforcement, and more generally the overall ability of Parliament to police its own rules - whether there needs to be some outside body with jurisdiction to enforce parliamentary standards.

When does a resignation occur (Finer 1956)

depends on minister compliance Prime Minister firm Party clamorous

R v SSHD ep Rehman [2003]

deportation of an individual. possibility of judicial review exists even in sensitive cases of national security.

indirect effect Colson 1984 Marleasing 1991

developed for directives. TEU 4(2) national law MUST construe all national law to be compatible with EU law INCLUDING provisions and directives.

matters that do not fall within the competency of the EC (EXAMPLES) EU member states retain full sovereignty and are free to co-operate and coordinate policies or not.

development of common defence, foreign and security policies, and police and judicial co-operation in criminal matters,

Greater London Authority Act 1999.

devolution, London wide gov London now has an elected Mayor and Assembly with wide-ranging functions relating to transport, development, planning, the environment and the provision of cultural and sporting facilities.

Dicey 2. Irrespective of rank and status all are equal under the law: which groups of people have immunities

diplomats , the police have powers over and above those of other citizens, Members of Parliament have immunity from the law of defamation , judges have immunity from things said or done in the course of their duties. These limited immunities, however, are not the central thrust of Dicey's principle - that those with powers are accountable to law.

indirect effect

directives: need to be transpoed first to national law.

EX: Giving examples, discuss the practical implications of the rule of law for the English legal system.

discuss availability of legal aid and representation (essential to the right to fair trial protected under Article 6 of the European Convention on Human Rights); the accessibility of the courts and whether the procedures are 'user-friendly'; consider also the problem of evidence which has been obtained unlawfully (perhaps through the use of force). The right to silence and not to incriminate oneself is also important: how absolute is this right under English law?

Critically consider the constitutional relationship between local authorities and central government. Do local authorities have sufficient autonomy to be an effective form of local democracy?

discuss the need for local government and outline its role and functions, pointing out that local government represents a vital form of local democracy. Your attention could then turn to the powers of central government that intrude upon local authority independence. These include educational and health policies which aim at ensuring uniformity across the country as a whole, and also the financial controls that are imposed through grant allocations and through the requirements of Best Value targets and auditing. This discussion of centralised control relates directly to the second part of the question. What is meant by 'an effective form of local democracy' is a key element here. Should local authorities be free, as some argue, to raise local taxation to fund any activities which the local people desire? Should central government be setting national standards rather than leaving local authorities to decide the most appropriate manner in which to run various services? Clearly there is no straightforward answer to these questions and the tension between central versus local government lies at the heart of political debate. You must demonstrate that you have considered these issues clearly, even if you do not feel competent to offer a definitive view.

sources of Human Rights

domestic law ECHR law of EU specific Treaty articles EU charter of Fundamental Rights and Freedoms law of EU which regards Rights protected under ECHR as part of general principles of EU law=> enforceable in ECJ

conventions governing how government is appointed

e.g. Queen choosing the leader of the majority party as prime minister.

European central bank ECB

economic and monetary policy. Since the start of 1999 much of the EU, the so-called 'Eurozone', has had a common monetary policy and a single currency, the euro (not all member states have adopted the euro). The ECB defines and implements the monetary policy of the Eurozone.

The Speaker of the House of Commons

elected MP, chairs sessions, neutral, controls debates and rules on procedures. The Speaker also has disciplinary powers.

Local Councillors

elected democratically -demonstrated local connection with the area.

Civil servants

employees of Crown, not gov must be politically neutral regulated under the royal prerogative permanent character of the civil service ensures continuity regulation mostly by convention Senior civil servants are prohibited from standing for Parliament

Lord Hunt proposals

enable peers to retire permanently. previous session non-attendance <4 should be contacted by Clerk and invited to take leave of absence for forthcoming session. Code of conduct 2010: Commissioner to investigate breaches of code including financial matters.

CJEU

enforcement actions annulment actions

How EC law enters the UK legal system

enters into UK domestic law under the European Communities Act 1972 Rights and duties derived from EC provisions that have direct effect are to be given full legal effect within the UK. -The UK executive has the power to implement EC law without the need for parliamentary approval. This covers EC laws both adopted prior to 1972 and, The meaning or effect of EC legislative provisions is to be interpreted by the executive and the judiciary in accordance with EC law, which includes the jurisprudence of the ECJ. crucially, in the future.

Human Rights Act 1998

finally made the civil and political rights guaranteed by the European Convention on Human Rights enforceable in the domestic courts. Since the 1960s these rights could be protected, but only by making an application to the Court of Human Rights in Strasbourg, a slow process in which it could take up to five years to reach a decision.

Committee on Standard in public life: Nolan inquiry Report on Standards in Public Life

established after Cash for Questions affair ad resignation of 2 MPs for receiving cash for questions. 1995: concluded no evidence for growth in corruption. 70% of members had financial relationship with external party, however should NOT be banned. "would not serve best interests of democracy" need of people with experience. propose ban on general consultancies (lobby groups, should require the name of client for whome they are lobbying). -contracts involving MP to act in P need to be disclosed in full - full statement of remuneration, and if contracts do not involve MP acting in P, should be stated clearly. active disclosure of interests by members. no gifts (already in Questions of procedure for ministers). enforced by Parliamentary Commissioner for Standards.

office of PM

established by Convention, not law.

European Union

established by the Treaty on European Union 1992 (the Maastricht Treaty) includes the EC, but also has wider objectives than the EC, allowing member states to work towards adopting common foreign and security policies and allowing their police and judiciaries to co-operate in criminal matters. I

sovereignty of P

established in 1688/89 in Glorious Revolution and Bill of Rights doctrine is a creation of the common law.

The Court of Auditors

established in 1975, following amendments made by the TEU, became the fifth EC institution. Its main task is to audit the accounts and the implementation of the EC budget. Its members are appointed by the Council of Ministers but it is independent of the other EC institutions

Costa v Enel [1964]: Costa owned shares in an electricity company and opposed to the nationalisation of the electricity sector in Italy. He refused to pay his electricity bill, in protest and was sued for nonpayment by the newly created state electricity company, ENEL. he argued that the nationalisation of the electricity industry violated the Treaty of Rome (EC treaty) and the Italian Constitution. he Italian government believed that this was not even an issue that could be complained about by a private individual, since it was a national law decision to make.

established the supremacy of European Union law over the laws of its member states. ECJ disagreed with the Italian government. It ruled that EC law would not be effective if Mr Costa could not challenge national law on the basis of its alleged incompatibility with EC law. However Treaty rule on an undistorted market was one on which the Commission alone could challenge the Italian government.

ad hoc Committees

established to enquire into a particular subject, and, most importantly, the departmentally‑related Select Committees and the related Liaison Committee. The majority of these Committees are established under Standing Orders of the House co‑ordinating the work of Select Committees falls to the Liaison Select Committee, first established in 1967, the membership of which comprises all the chairmen of the departmentally‑related Select Committees, and the chairmen of the Public Accounts Committee and of the European Legislation Select Committee.

Treaty of Rome 1957

establishes EEC and Euratom. regulation of non military use of atomic energy EEC:creation of European trading area, four freedoms persons, goods capital and services 1992 TEU later creates the EU Treaty of Lisbon 2007 => EU replaces EC

Serious Organised Crime and Police Act 2005

establishes SOCA.Serious Organised Crime Agency

Javed v SSHD [2002]

even ground of review of irrationality, not completely excluded for cases raising issues of national policy.

Re Parliamentary Election for Bristol South East [1964]: elected Member Tony Benn was refused permission to take his seat - despite being elected twice - because he had inherited the title of Viscount Stansgate and was entitled to sit in the House of Lords;

excluded from membership of the Commons.

relationship exec and legislature

executive is chosen directly from ranks of legislative. so the 2 are deeply connected. note in the USA president is elected separately.

examples of the 'separation of powers' under the US constitution.

executive power in the President article 2 vests legislative power in the Congress Article 3 vests supreme judicial power in the Supreme Court

Institutions of the british state

executive, Parliament judiciary

factors in analysis of the role and effectiveness of Select Committees

extent to which media and hence public attention is focused. sensitivity of matter degree of political consensus within the committee extent to which governments are prepared to make time on the floor of the House to debate Select Committee reports extent to which Select Committee inquiries result in improved efficiency in government extent to which government and other witnesses co‑operate with the committees in the provision of information.

2004 EU member states propose to have constitution

fails because no referendums in France and Netherlands

federal

federal state power is diffused rather than concentrated in any one body. constitution has overriding force and any conflicts between the federal government and state governments will be determined according to the constitution

What advantages you think there are in a federal as opposed to a unitary constitution?

federal: bringing lawmaking closer to the people it is designed to regulate. Certain powers will be reserved to the central government: matters such as foreign affairs, national security and defence and common aspects of taxation. unitary constitution, by contrast, the principal law-making power is Parliament. However, there are similarities with a federal constitution in that Parliament delegates power to local government and with devolution to the Northern Ireland Assembly, Scottish Parliament and Welsh Assembly However key difference: all power devolved may be recalled by the sovereign national legislature without any special constitutional procedures.

Bill of Rights settlement of 1689

finally established the supremacy of Parliament over the Crown. during reign of William and Mary establishes the modern constitution.

PM:primuse inter pares

first among equals , but in practice much more power than cabinet. hire/fires members. (In theory done by Sovereign on advice of PM). PM : restructures govt, decision of policies.

Van Gend en Loos v Nederlandse Administratie der Berlastingen [1963] teleogical approach

found little in the relevant Treaty Article 25 to back its view that the EC Treaty conferred enforceable rights on the individual citizens of its member states. To support this position the Court looked, instead, at the Preamble to the Treaty which 'refers not only to governments but also to the peoples' of Europe.

Freedom from arrest

free from arrest in relation to civil matters for a period of 40 days before and after session Stourton v Stourton [1963]

principal privileges

freedom of speech of Parliament -arrest in civil matters

Why is COuncil of ministers considered to contribute to Democratic deficit. DD

fusion of exec and legislative. members, who are ministers in national governments, are either unelected or elected to national office, in other words they are elected on a national rather than a European agenda. Moreover, what goes on in the meetings of the Council of Ministers, in other words how it reaches its decisions, is secret - another worrying instance of lack of transparency within the EC. members vary depending on topic on agenda. defend the interests of their national states. EC's main political and legislative institution is fragmented along both policy sectors and national interests.

majority system

generally results in a party gaining a majority of seats, but not necessarily a majority of popular votes cast.

Privy Council functions

gives effect, through Orders in Council, to decisions made by Cabinet under statute or under the royal prerogative. The Privy Council's discussions are completely confidential, and each member takes an oath of secrecy on appointment.

concept of responsible government

government is accountable to the people through Parliament. Judicial review

Scrutiny of gov admin and policy.

govt must command support of Parl and electorate: 1. Question Time PMQs ministers questions about once a month. 2. Special Debates: Adjournment : introduced by backbenchers , local issues 30 minutes Westminister Hall Debates Early Day Motions:formal motion submitted for debate, publicize causes, helps indicate Parliament support for a matter.

rationale for collective responsibility convention

govt which exhibits public disagreements will be regarded as weak. 2 rules: 1.Cabinet members and many outside are bound to support internal decisions. 2. records of Cabinet discussions are secret.

proportional representation systems -

have the unifying characteristic of aiming to ensure that the number of seats won at an election is directly proportional to the percentage of popular votes cast for that party.

Malone v UK

he European Court of Human Rights court found the principle clearly set out in Art 8 and ruled that a lack of any legislation on phone-tapping in Britain meant the UK could not claim any of the justifications in Art 8(2) (that any interference with the right to privacy should only be if it is "in accordance with the law and is necessary in a democratic society in the interests of national security etc"). => Interception of Communications Act 1985, which laid out when it was legitimate to undertake phone-tapping - but it was prompted by the pressure emanating from the Convention right to privacy

M v Home Office 1994 M was to be deported. The Home Secretary's counsel gave an undertaking that this would not happen until after the hearing of the appeal. However, M was deported. The court ordered that M should be taken off the plane when it stopped at Paris. The Home Secretary did not consider himself bound by the order and M was not taken off the plane.

he Home Secretary was held in contempt of court but no punishment imposed. The "rule of law" requires even government ministers to accept and obey the orders of the courts. The decision is significant in that the House of Lords distinguished between two aspects of 'the Crown': the Crown as monarch and the Crown as executive. The courts cannot enforce the law against the Crown as monarch, but can enforce the law against the Crown as executive and against those who represent the Crown. While an injunction could not be issued against the Crown, it could be issued against a government minister.

Duport Steels Ltd v Sirs [1980] Lord Diplock separation of powers

he role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion. opinion of Parliament is paramount.

roles of Sovereign

head of the established church: the Church of England. represents British interests overseas. Head of the Commonwealth of Nations. above party politics. She needs to be able to deal with Prime Ministers from different political parties and to be seen to be politically neutral at all times. Queen appoints the Prime Minister and ministers following the Prime Minister's advice summon and dissolve Parliament. The Royal Assent is required for all Bills before they become Acts of Parliament

PM roles

head of the political party that wins the largest number of seats at a general election. The Prime Minister is also an ordinary Member of Parliament representing his or her own constituency. He or she chooses who will fill ministerial posts, Cabinet and has the power to reorganise the structure of government departments. The Prime Minister may, in the name of the Crown, dismiss a minister. responsibility for the government's success or failure lies with the Prime Minister. He or she accounts to the House of Commons weekly at Prime Minister's Questions. office of Minister for the Civil Service and First Lord of Treasury, head of the nation's financial affairs.

A v UK 2002 ECHR Article 6 fair trial 8 repsect for private life article 13 right to an effective remedy defamatory remarks made about her and her children in debate> newspapers

held : references regrettable but no violation rules on privilege were necessary to protect free speech.

Allason v Haines 1995 Haines a journaliest applies to have a libel action stayed since to defend himself D wished to show that Early Day Motions were inspired by improper motives.

held action would be stayed since D needed evidence which would be in breach of P privilege. enforcing P privilege would cause injustice to D.

Hirst v United Kingdom (2005):serving a sentence for manslaughter, was prevented from voting by section 3 of the Representation of the People Act 1983, which prohibits convicted prisoners from voting during their incarceration in a penal institution. In 2001 Hirst brought a case to the High Court, but the case was dismissed. appeal to the European Court of Human Rights at Strasbourg later in 2001.

held that if the franchise was to be removed, then the measure needed to be compatible with Article 3 of the First Protocol, thus putting the onus upon the UK to justify its departure from the principle of

Grieve v Douglas-Home 1965: Alec Douglas-Home's election was alleged to be void ft the basis that he had participated in a national Party Political broadcast on behalf of the Conservative Party and had not declared the cost of this expenditure within his election expenses.

held that no offence had been committed either by the candidate. or by the broadcasters. The court accepted the contention that the intention behind the broadcast was not to promote the candidature of Douglas-home in his own constituency but to provide general information about the party to the general public

Marshall v SOuthampton & South West Hampshire Are Health Authority. problem is that when directives were not implemented by states as many were not, what could be done?

held that provisions and directives can have directive effect, but only vertical (enforceable against state) not horizontal.

A v SSHD 2005 free from from arbitrary detention. demonstrates how courts provide a check on legislation

held that the indefinite detention of foreign prisoners in Belmarsh without trial under the section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the European Convention on Human Rights.

Strauss v London Electricity Board [1958]

held that there was no protection from defamation when a Member of Parliament forwarded allegedly libellous information to a minister for investigation. HOWEVER Parliamentary Commissioner Act 1967 now provides that such communications are privileged.

Act of Parliament

highest form of law within the United Kingdom. Over the centuries there have been many Acts of Parliament which have been of fundamental constitutional importance

The Queen on the application of: International Air Transport Association and European Low Fares Airline Association v Department for Transport

if Community act is contested in national court not sufficient to stay proceedings if arguments unfounded but On the other hand, where such a court considers that one or more arguments for invalidity of a Community act which have been put forward by the parties or, as the case may be, raised by it of its own motion are well founded, it must stay proceedings and make a reference to the Court for a preliminary ruling on the act's validity.

principle of subsidiarity

in areas of concurrent, i.e. shared, competence with its member states, the EC acts only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states acting independently.

Anti-terrorism, Crime and Security Act 2001

increased the powers of enforcement agencies to co-operate in investigations, introduced detention without access to a court of law in respect of suspected international terrorists (s.23) suspending Article 5 of the ECHR,

SEA 1986

increases powers of EP, makes it active in adoption of EU legislation increase use of qualified majority vote in Council of Ministers making it more difficult for a member state to blocklegislation. extends EU competence to environment and regional dev

4 options available for minister required to be responsible

inform apologise take action resign

RB 2009

international prohibition on torture means that UK could extradite

proprtionality

intervention of EU should be not exceed what is necessary to fulfill objective of Treaty.

Registration of Political Parties Act 1998

introduced a system of formally recording the identities of political parties for electoral purposes.

private member's bills

introduced by members which are not gov ministers. only a minority become law, but raise publicity for issues.

Implied repeal

judges give effect to the most recent expression of Parliament's will.

rule of law interpretations: philosophical

law must have some higher meaning laid down by God or must take the form of 'natural law', which humans can discern through the use of their rationality and which guides the content of man-made law.

some issues cannot be subject o judicial review

legality of war

select committees membership

life=> stable, expertise usually backbenchers The only ministers who are members are the Leader of the House, the government Deputy Chief Whip and the Financial Secretary to the Treasury. not appointed from opposition. may be chaired by a member of any political party, negotiated by govt and Opposition.

Parliament Acts 1911 and 1949

limit amount of time Bills can be delayed. ensure the supremacy of the elected House of Commons over the House of Lords. rarely used, there being conventions and practices that regulate relations between the two Houses

Wakeham Royal Commission Report 2000

little agreement on options

local gov services

local authorities compete with private firms for best value for customer. Councils prepare Best Value Performance Plans for each financial year Audit Commission : applies to High Court if irregularities are found.

European Commission

main executive body legislative, exec and judicial fns responsible for EU budget, but approved by Parliament. guardian of treaties: ensures that EU law is complied with. can bring enforcement actions before ECJ comprises the EU commissioners one for each state. President appointed by member states and approved by Parliament.

Parliament : freedom and rights v common law

nowadays it is principally Parliament that defines freedoms and rights, as for example in the Equal Pay Act 1970, the Sex Discrimination Act 1975 and the Race Relations Act 1976. Another example relates to employment rights, many of which are created under European Community law,

Speaker of the House of Commons powers to enforce privilege

maintaining order in the House, and for disciplining members who flout the rules of Parliament; -to exclude a Member or suspend him or her subject to the approval of the House. expel a Member. The Committee on Standards and Privileges hears formal complaints about breach of privilege and contempt of Parliament.

Treaty of Rome (the EC Treaty) establish powers of European Commission

make legislative proposals and to ensure that Community law is applied within the Community

Powers of the ECJ breach of the Treaties by a member state

may rule on matters brought before it by the Commission alleging breach of the Treaties by a member state. Prior to bringing the matter to the ECJ, the Commission exercises a quasi-judicial function. First, it must consider that a member state has failed to fulfil a Treaty obligation and, secondly, it must give a reasoned opinion to that state and advise as to the action that must be taken - and the time frame for action - to comply with the opinion. Only if a member state fails to comply with the opinion will the matter be taken to the ECJ Commission v Italy [1979] Commission v UK [1979]

direct effect

means that nationals of member states may invoke certain provisions of EC law, and any rights conferred on them by those provisions, in their own national courts.

3rd pillar

means that the TEU provided for inter-governmental co-operation in the areas of justice and home affairs. This has now been amended and limited to co-operation in criminal matters. Again, this is not within the competence of the EC.

ECJ teleological approach

means that, whenever it is confronted by ambiguity or gaps in the Treaties or in secondary sources of EC law, the Court will choose the interpretation that appears to further the ultimate aims of the EC, even if these are only generally mentioned in the EC Treaty.

shadow cabinet

members of the opposition party front benchers and HL who shadow the corresponding cabinet minister. govt in waiting, can take job of cabinet.

Central government delegated legislation

ministers, local authorities and other public bodies. Central government delegated legislation includes Orders in Council made by the Queen in Privy Council and Regulations made by ministers.

breach of privilege and contempt of parliament act or ommission which obstructs H to perform fns or obstructs M or officer of H.

misconduct in presence of HC or committees. disobedience to rules forged or falsified docs misconduct premature disclosure, misrepresentation of debates obstructing witnesses, officers and members.

Direct effect of other forms of Community legislation

more or less expressly provided for in Art. 249 II, IV EC-Treaty and recognized by the ECJ. But Art. 249 III EC-Treaty does not say anything about direct effect of directives,

independence of HL

more than HC 200 cross benchers not party constrainted not elected. specialist committees can leverage independent expertise on specific issues.

ECJ :1970's

most active of the EC institutions. introducing the major doctrines and principles of EC law and furthering the pace of integration. Critics believed that the ECJ was being too proactive, creating a coherent EC constitution out of the original. Treaties.

Minister, consider whether there is any truth in the idea that PM is 'primus inter pares'. What reasons can you give to indicate that this is a false picture?

must look at the distinction between the theory of the Prime Minister's role and the reality of the power held by the Prime Minister. When considering the relationship between the Prime Minister and the Crown, you need to consider the prerogative powers that the Crown has and the manner in which conventions control their use.

state security

necessary that the state has sufficient powers to counter threats to the security of the nation, it is also important that the powers granted are confined to real threats to the state and do not impinge more than is necessary on individual freedoms and rights. In order to be able to evaluate the work of the security forces it is therefore necessary to have a definition of state or national security. Democracy: powers must be limited to the extent strictly necessary to achieve legitimate objectives.

2000 Treaty of Nice

need for institutional reform to cater for growth of EU to 27 member states

1986 single European Act

new legislative procedure,, more power to european Parl

Committee of Privileges report 1986-87

no clear line freedom of speach and abuse.

Official Secrets Act 1989 R v Shayler [2001] claimed his disclosures had been necessary to ensure that certain malpractices were to be ended.

no defence of disclosure in the public interest. The Court of Appeal rejected the contention that such a defence existed The defence of necessity is available only where the defendant's act was a reasonable and proportionate response to a threat of some greater evil directed towards the defendant or towards another person or persons for whom the defendant was in some way responsible. It is not available where the defendant claimed merely that someone, somewhere might some day have suffered if he had not acted as he did.

definition of powers of EC

not clear separation between EC powers and states limited by the principle that its actions must have a legal basis or may be annulled due to lack of competence.

Supremacy of EU law

not in treaties. adds Declaration 17 to the TEU concerning primacy of EU Law.

Picki v British Railways Board 1974

not possible to challenge Act on any ground once it is recorded in Statue books.

back benchers

not senior members of Parliament.

separation of powers

not strict, system of checks and balances which ensures that powers are not abused. The fundamental purpose of the separation of powers is to avoid the abuse of power and thereby to protect the rights and liberties of citizens.

4 types of Bills

public or govt bills private member's private hybrid

Question time

once a month each minister will answer questions put by Members of Parliament on matters for which he or she is responsible. Note that while few oral answers are given, because of shortage of time, all questions receive an answer, either oral or written, and all answers are recorded in the Official Journal of the Commons. Prime Minister's Questions takes place once a week for 30 minutes. 2-10 days notice for question, max 8 pending and max 2 per day per minister.

European Parliament

originally European Assembly directly elected since 1979, called EP since Single European Act 1986 Can Veto proposed legislation appoints commissioners and President of European Council Decisive role in approving budget.

EU council

originally council of Ministers one of primary legislative bodies in EU along with Parliament comprises ministers from member states matters decided either by unanimity or qualified majority voting works through committees (COREPER)Committee of Permanent Representatives :decides of main issues to be decided at the meeting.

EP (Assembly) legislative, consultative to the executive.

originally designed to have only consultative and supervisory rather than lawmaking powers. extended by the SEA 1986, and TEU 1992 (co-decision procedure whereby, in certain policy areas, Parliament and the Council of Ministers must jointly approve new legislation. Therefore, the Parliament's role in the process of creating EC law, alongside the Council of Ministers, depends on the subject matter of the proposed law.)

public bills

originate out of gov policy, introduced to parliament by gov, general, affect population in general.

legal status of privilege

part of the law and custom of Parliament which is recognised by the courts and accordingly a part of the common law. cannot create new privileges only by statute

cases where new EC legislation is proposed, subsidiarity:

permits all EU institutions to act in areas of concurrent competence with member states 'only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the member states'. This is a fundamental concept in federal states and the approach to subsidiarity taken in the EC has been compared to that taken in Germany between the national government and the various federal Länder.

ECSC goal

placing of war materials coal and steel under control of supra national organisation.

judicial bias forms, must be free from bias "justice must manifestly be seen to be done"

political affiliation with person or organization personal bias against persons or groups financial dealings

civil service

political neutrality, anonymity and permanence are the principles underpinning the civil service.

3 principles underlying civil service

political neutrality, anonymity and permanence.

Political Parties, Elections and Referendums Act 2000 (PPERA)

political parties that intend to run candidates in a general election must be registered. The Electoral Commissioner has responsibility for the Register of Political Parties. imposes limits on national expenditure. All donations to political parties above prescribed limits must be declared. There are prohibitions on donations from persons or bodies other than those permitted under the Act

Electoral Commission's proposals on funding

political party, £20 million recommend to reduce to 15 individual 9,000 increase candidate spending limits proportionately to almost double the existing amount and require greater transparency. channel more of their funds into local campaigns by focusing on candidate expenses. influence the way that money is spent. encourage parties to receive donations.

Internationale Handelsgesellschaft [1972]

possible conflict between EC regulations and the German Constitution. Applicant argued that the EC regulation should be invalidated. ECJ rejected possibility ofEU law being judged against constitution

A v SSHD [2005]

powers of detention conferred under the Act were challenged successfully potentially indefinite detention without trial violated Article 5 (the right to liberty) and Article 14 (the right to non-discrimination in the enjoyment of Convention rights), and it granted a Declaration of Incompatibility. leads to: implementation : Prevention of Terrorism Act 2005 which replaced the detention powers with Control Orders

2009 Treaty of Lisbon

president of EU legal force to charter of fundamental rights wipes away 3 pillar architecture 1 EU based on TEU and TFEU (mainly the ECE treaty with some amendments). limitations of powers of EU in law.

The Lord Chancellor

prior to the Constitutional Reform Act 2005, the office of Lord Chancellor: head of judiciary! member of cabinet presided over HL => legislative role violates separation of P. exex, judicial and parliament in one person

DPP v Luft (1977) antifascist group had distributed leaflets in three constituencies urging voters not to vote for National Front (extreme right wing) candidates. NOTE: decision applies to a constituency!

prosecuted under section 75 of the 1983 Act for incurring expenditure with a view to promoting the election of a candidate without the authority of an election agent. It was held that an offence had been committed, even though the promoters were seeking to prevent election of a candidate, rather than directly promote the election of a preferred candidate. Diplock: So in anyone sophisticated enough politically to want to intermeddle in a parliamentary election at all, an intention to prevent the election of one candidate will involve also an intention to improve the chances of success of the remaining candidate if there is only one, or of the other of the remaining candidates if there is more than one, although the person so intending may be indifferent as to which one will be successful."

Human Rights in EU

protected by ECHR in Strasbourgh ECJ in Lux and domestic law

MPs protection

protection from defamation from outside P and also from executive.

Power of ECJ: one member state may bring a fellow member state before the Court

provides that when the ECJ finds that a member state has failed to fulfil its obligations, that state shall be required to take the necessary measures to comply with the judgment of the Court.

Costa v ENEL 1964 Simmenthal Case 1978

provisions in EU law have supremacy over national law. overrides domestic law.

European Commission role

puts forward proposals for decisions by council of the EU. Council of EU may request draft of legislation. charged with enforcement of law -delivers opinion to State if in violation, usually they comply, else can take matter to ECJ, may request financial penalty. gather support for proposals from states, important that new laws passed have the support of states! Commission v United Kingdom 2000

Voting system used in Council of Ministers (EU Council) original EC Treaty (TFEU)

qualified majority voting, largest states weighted at 10, then 855,4,3,2. 62 votes required.

Ministers, civil servants and Parliament civil servants are required to avoid giving evidence to Parliamentary committees (Select Committees) on the following matters:

questions which are politically controversial sensitive information of a commercial or economic character matters which may be the subject of sensitive negotiations matters which are sub judice. Civil servants are under a duty to give honest and impartial advice to ministers and to implement government policy.

Is it possible to distinguish between ordinary law and constitutional law?

recall the definition of a constitution and to ask yourself the question does X or Y relate to the constitution or is it a matter of ordinary law? As an example, think about the difference in importance between the European Communities Act 1972 and the Road Traffic Acts.

Security Services Act 1989

recognised MI5, providing a definition of the functions of the service and authorisation for warrants for operations. MI6 and GCHQ remained outside of statutory control until 1994 when the Intelligence Services Act was passed.

Parliament Acts 1911/1949

reduce power of HL -circumstances for Bills to be passed without HL -conventions and practice govern working of chambers Salisbury Convention : HL will not vote down a bill in 2nd or 3rd reading when bill was mentioned in election manifesto.

right to produce and publish pornographic material constitutional?

regulated by the obscenity laws - ordinary Acts of Parliament. In the United States of America, by contrast, pornography has been considered as an aspect of the fundamental right to freedom of speech and hence a constitutional matter.

House of Commons Act 1975 Representation of People Act 1983

regulates election matters

Procedure

regulates proceedings through Standing Orders of the House, which are the formal rules. The Select Committee on Procedure and the Modernisation Select Committee keep procedures under review. The Sheriff of Middlesex's Case (1840) Pickin v British Railways Board [1974]

Regulation of Investigatory Powers Act RIPA 2000

regulates the issuing of warrants and controls over operational matters, including the use of agents. agents. The Act defines surveillance (s.26). Where authorisation has been given and action taken within the scope of the authorisation, the conduct is lawful. Part IV of RIPA provides for a tribunal to hear complaints against action taken by or on behalf of the intelligence services.

attempt to create constitution due to growth of EU

rejected by France and Netherlands.

rule of law interpretations: oriental thought

reliance on law to regulate interests and to resolve disputes represents a breakdown in social relationships which should ideally be governed by mutual trust and respect rather than formal law. I

reformed Lord Chancellor, Constitutional Reform Act 2005

removed the judicial functions of the Lord Chancellor and his former role as head of the judiciary is now filled by the Lord Chief Justice. removed the judicial functions of the Lord Chancellor and his former role as head of the judiciary is now filled by the Lord Chief Justice.

HL Act 1999

removes most hereditary peers

Fixed term Parliaments Bill 2011

removes power to choose date. fixed term 5 years BUT: vote of no confidence 2/3 of House agrees to general election.

Treaty of Lisbon: ECJ

renamed to Court of Justice of European Union -comprises Court of Justice, General Court and specialised courts one judge from each state -preliminary ruling on interpretation of Union Law or validity of acts adopted by instituions. no jurisdiction for foreign+security policy

TEU (Maastricht Treaty 1993)

represents a compromise between federalist and inter gov motivations (UK). sets up pillar structure introduces ECB (law making powers) and Court of Auditors (scrutinize admin)

TEU and TFEU

require member states and all national authorities to comply with EU law and treaty obligations. duty of loyal complicance Marleasing 1991

Collective ministerial responsibility

requires all ministers to support a policy once it has been adopted by the Cabinet. 2 aspects: 1. cabinet discussions must remain confidential 2. once the decision is taken, every minister - even if he or she dissents or was not even party to the decision - must outwardly support that decision.

indirect effect'

requires national courts to interpret national law in the light of nondirectly effective provisions of Directives. The ECJ invokes this principle by interpreting teleologically the obligation on member states, under Article 10 of the EC Treaty, to 'take all appropriate measures...to ensure fulfilment of their Community obligations' to mean that this obligation also binds the courts of the member states.

The Interception of Communications Act 1985 superseded by the Regulation of Investigatory Powers Act 2000 (RIPA). RIPA

response to Malone makes it a criminal offence to intentionally and without lawful authority intercept, anywhere within the United Kingdom, any communication being transmitted by the postal service or public telecommunications system. Complaints regarding suspected unlawful interceptions may be made to a Commissioner and a Tribunal.

Defence Advisory Notices: non statutory

restricts publication of sensitive data by media.

abortion constitutional?

right to abortion is in Britain a right conferred by an ordinary Act of Parliament and could therefore be amended or repealed. By contrast, in the United States of America the right to abortion has been defined as being an aspect of an individual's right to privacy and is therefore clearly a constitutional issue.

Collective privileges of HC

right to determine its own composition and procedure. -right of access to Sovereign -exclude member on basis on the basis that he or she refuses to comply with the requirement to take the oath of allegiance to the Crown, or does not fulfil the eligibility requirement for membership. Bradlaugh v Gosset (1884) Re Parliamentary Election for Bristol South East [1964]

sources of constitution: law and custom of Parliament

rights owned by parliament and its members If an issue of parliamentary privilege is raised before a court of law, the judges can determine whether the matter is one of parliamentary privilege but will decline jurisdiction to rule upon the merit of a claim. This is an illustration of the separation of powers,

rule of law interpretations: political democratic

rule of law is generally accepted as insisting that law is generally obeyed by all citizens and that all public bodies and officials, irrespective of rank and power, are accountable to the law.

bases for EU

rule of law, individual rights, and common EU citizenship.

Burmah Oil Co Ltd v Lord Advocate [1965]

ruled that compensation was payable to oil companies whose property had been destroyed during war time in order to prevent it from falling into enemy hands. The government quickly proposed and Parliament passed the War Damage Act 1965 which effectively nullified the decision.

procedure for public Bills

scrutinised by Parliament at second reading in chamber of Commons, general principles debated Bill will be sent to a Standing Committee for detailed scrutiny and amendment back to commons for approval sent to the HL for scrutiny and approval

ministers conventionally refuse to answer which questions

see TEXT

1996 Code of Conduct incorporates 'seven principles of public life' identified by Lord Nolan in his report,

selflessness, integrity, objectivity, accountability, openness, honesty, leadership.

Barclay v Lord Chancellor 2009

separation of powers, how does it apply to Channel Islands

constitution definition

set of rules, generally in written form, which identify and regulate the major institutions of the state and govern the relationship between the state and the individual citizen. In most countries the written constitution is the ultimate source of legal authority; all actions of government and the law-making body (the legislature) must conform to the constitution.constitution is the ultimate authority, any action which contravenes the rules of the constitution will be both unconstitutional and unlawful.

ECJ initial rulings

should have been the product of political, rather than legal, reasoning. For example, the legal nature of the entire EC as a 'unique entity, which creates law applicable to member states and their citizens' has been defined within preliminary rulings (Van Gend en Loos [1963] Costa v ENEL [1964] The same goes for the principle that EC law has supremacy over conflicting national laws of member states and that they must be uniformly applied within member states (Internationale Handelsgesellschaft [1972] ; Simmenthal [1978])

Single European Act (SEA) 1986

significant amendments to the original treaties of Rome, including giving new powers to the European Parliament, and set 31 December 1992 as the deadline by which the Community should have established the internal market.

compare majority and proportional system in practice

simple majority system favours two main political parties at the expense of smaller parties in the United Kingdom, and usually returns a government with a secure majority. The advantage of this is that the government can then carry out its manifesto promises. A proportional system all political parties are represented, but may not have majority.

voting system:general elections

simple majority system, FPP

European Parliament and the Court of Justice

since 1979 Members of the European Parliament (MEPs) have been directly elected., but so far

voting system: Northern Ireland Assembly

single transferable vote system

MEP:

sit in political groups and not national delegations. MEPs have been elected directly since 1979, and under a system of proportional representation since 1999. enhanced democracy within the EC involves expanding the law-making and executive-checking capacities of the Parliament. Nevertheless, many European voters are not interested in the Parliament's activities and the electoral turnout is consistently low in some member states. =>DD

Treaty of Amsterdam realignment of voting

smaller states lost voting power, others maintained their status quo, while Britain, France, Germany, Italy, Spain and the Netherlands secured increased voting power. The realignment of voting power means that any three of the largest states in combination will be able to block decisions.

Prime Minister questions

sometimes: list agenda of day, and then add real question, else PM may redirect to competent minister. relevant question areas : general government policy in relation to matters such as the economy, unemployment, European or other international affairs.

sources of constitution: common law

source of constitutional law where they affect the powers of the state, the relationship between institutions of the state and the protection of citizens' rights and freedoms. Of particular relevance are cases which: uphold the sovereignty of Parliament define the scope of the royal prerogative rule on the legality of actions of public bodies through judicial review define civil liberties decisions made under the Human Rights Act 1998

EX: statutory provisions and constitutional conventions that support the concept of separation of powers.

statutory provisions and constitutional conventions that support the concept of separation of powers.

2. Consider the constitutional relationship between the Monarch and the office of Prime Minister. In what circumstances, if any, would the Monarch be entitled to reject Prime Ministerial advice that a general election be held?

theoretical powers of the Crown under the royal prerogative and the convention that for the most part the prerogative is exercised by the government in the name of the Crown. When, in theory and practice, will the Crown be justified in refusing a request for dissolution?

ECA 1972

strikes a balance between the principles of parliamentary sovereignty and supremacy of EC law. On the one hand, the ECA 1972 is not entrenched - that is, it is not immune from amendment or repeal. There is no statement in the Act purporting that EC law is a 'higher form of law', which cannot be repealed, or could be repealed but only by some specified 'manner and form'. On the other hand, the Act's provisions have been understood by the British judiciary essentially to allow that, for as long as the Act remains in force, British judges should resolve conflicts between UK law and EC law by assuming, in their interpretations, that the UK Parliament does not wish to contradict EC law.

Act of Settlement 1700

succession to members of the Protestant faith and excludes Roman Catholics. The cost of the monarchy is financed through the Civil List which is drawn from the Consolidated Fund - a fund voted on by Parliament without debate.

Parliamentary privilege definition Erskine May

sum of rights of each House collectively as a constituent of High court of Parliament and individual Members rights without which they could not discharge their fns .= exemption from general law.

Local authority delegated legislation

takes the form of bye-laws

Van Gend en Loos: analysis of how the ECJ reached its conclusions in either case and a critical commentary on how the ECJ exercised its jurisdiction.

teleological method in Van Gend en Loos should include the fact that the ECJ based its reasoning that the 'the Community constitutes a new legal order...the subjects of which comprise not only member states but also their nationals' partly on the fact that that the Preamble to the EC Treaty addresses the 'peoples of Europe'. Then reflect on the opinion that, in doing so, the ECJ 'went too far'. Van Gend en Loos is perhaps the most cited, because it invokes the principle of direct effect of much of EC law.

Von Colson v Land Nordrhein-Westfalen

the ECJ ruled that national courts should interpret national law in line with the directive, "in so far as it is given discretion to do so under national law".While Von Colson dealt with a situation where a member state had failed to implement a directive correctly, in Marleasing v La Comercial Internacional de Alimentacion the ECJ extended indirect effect to situations where the member state concerned had not implemented the directive at all.

ECSC established 4 institutions still active today

the High Authority, being the executive body serving the interests of the Communities the Council, being the executive representing the interests of member states the Assembly, a non-elected Parliament the Court of Justice. NOTE: On the introduction of EURATOM and the EEC, separate high authorities and councils were established, all three Communities sharing the Assembly and the Court. 1965: merger of institutions,Treaty Establishing a Single Council and Single Commission of EC , the Merger Treaty

Francovich case protection of employees in the event of the insolvency of their employer is to be interpreted as applying to all employees, .

the Italian government had breached its obligations to comply with EU directive, and was liable to compensate the workers' loss resulting from the breach. The Court further held that the damages for such breaches should be available before national courts, and that to establish state liability on the basis of the failure the implement a directive, claimants must prove that the directive conferred specific rights on them, identifiable in its wording, and that there is a causal link between the state's failure to implement the directive and the loss suffered.w.

financial bias Dimes v Grand Junction Canal Proprietors (1852)

the Lord Chancellor held shares in a canal company which was involved in litigation. The House of Lords ruled that the Lord Chancellor should have disqualified himself from sitting. Even though it was accepted that he was not influenced by the interest, the court ruled that it was of the utmost importance that 'the maxim that no man is to be judge in his own cause should be held sacred'

Scottish voting system and National Assembly for Wales

the additional member system

R v Rule [1937] 2 KB 375 and Beach v Freeson

the court ruled that the forwarding of allegedly defamatory information in the interests of the public interest attracted qualified privilege and was therefore immune unless malice could be proven.

Montesquieu's De l'esprit des lois (1748) †

the executive, legislature and judiciary - should each have a discrete and defined area of power and that there should be a clear demarcation of functions between them: this is true 'separation of powers'.

security services

the internal service (MI5), and the external service (MI6 or the Secret Intelligence Service - SIS). The Serious Organised Crime Agency (SOCA) has responsibilities in relation to terrorism, drug and people trafficking and money laundering. In addition there is the government's communications Headquarters, GCHQ, which receives and analyses signals. -established under the royal prerogativeintelligence from around the world.

2007 White Paper :The House of Lords: Reform principles on which the reform would be based are: (Jack Straw)

the primacy of the House of Commons the complementarity of the House of Lords a more legitimate House of Lords no overall majority for any political party a non-party political element a more representative House of Lords continuity of membership. 540 members, 30% appointed, 20% non party One third of the elected element would be introduced at each of the European Parliament elections in 2014, 2019 and 2024. Retired Law Lords should be appointed as part of the non-political cohort. Appointments will be made by the statutory appointments Commission.

Defrenne v. Sabena arguments for horizontal effect of directives

the prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals."

Van Gend en Loos 1963 Direct Effect conditions An importer who had not paid a customs tariff, contrary to the national law of the Netherlands,

the provision must be clear and unambiguous it must be unconditional it must be intended to be operational in members states without further implementation.

Thoburn v Sunderland City Council 2003

there exists a hierarchy of Acts of Parliament, whereby those Acts affecting "the legal relationship between citizen and State" or "fundamental constitutional rights" form a special and superior category known as "constitutional statutes" and can only be expressly repealed or abrogated by Parliament and therefore immune from the doctrine of implied repeal. Included within this category is the European Communities Act 1972.

To what extent is it correct to speak of Parliamentary government, Cabinet, government or Prime Ministerial government?

to answer this question you need to define the terms, and to do this you need to consider the role and powers of Parliament, Cabinet and Prime Minister. Parliament - the Crown, House of Commons and House of Lords - clearly cannot 'govern': so what is meant by 'parliamentary government'? Think here about Parliament's law-making role and its role in scrutinising all actions of government. To discuss Cabinet government you need to understand the reality of the way Cabinet works. Discuss also the doctrine of collective ministerial responsibility and how it binds all members of Cabinet and ministers outside Cabinet, irrespective of whether or not they participated in the decision-making process. To discuss Prime Ministerial government you need to know the powers of the Prime Minister and discuss the Prime Minister's powers and influence in relation to Cabinet and Parliament

objectives of the EC Article 2 EC

to create and maintain the internal market to create and maintain a common commercial policy with respect to non-EC countries to preserve competition to create and maintain an economic and monetary union to work in parallel with national governments in such fields as social policy, culture, education, vocational training, public health, consumer protection, trans-European networks, industry, research and development, environment and development cooperation, establishing and strengthening regional co-operation across member states, and some aspects of visas, asylum and immigration.

Nolan report establishment of a Parliamentary Commissioner, what are responsibilities

to maintain the Register of Members' Interests and to advise MPs on registration to advise MPs and the Committee on Standards and Privileges as to the interpretation of the Code of Conduct of MPs to monitor the working of the Code to investigate complaints about MPs' conduct.

July 2007 the Secretary of State for Justice and Lord Chancellor: proposals for constitutional reform The Governance of Britain

to surrender or limit it prerogative powers to: deploy troops abroad request the dissolution of Parliament request the recall of Parliament ratify international treaties without decision by Parliament determine the rules governing entitlement to passports determine the rules for the granting of pardons restrict parliamentary oversight of the intelligence services choose bishops have a say in the appointment of judges direct prosecutors in individual criminal cases establish the rules governing the Civil Service. The government will also: work to increase parliamentary scrutiny of some public appointments review the role of the Attorney General develop further reforms for the House of Lords.

Legal sovereignty

ultimately dependent upon the acceptance of its authority by the people, who - if the legislature abuses its trust - may overthrow that authority and replace it. Judges are subordinate to Parliament, and Parliament may overturn a judicial decision.

freedom of speech: Article IX of the Bill of Rights 1689 provides for the freedom of speech of Members in the course of 'proceedings in Parliament'.

uncertain in its scope, since the term 'proceedings in Parliament' has never been authoritatively defined. It is clear that the freedom applies to debates in the Chamber and in committees, questions. It may apply to communications which are closely connected to an impending proceeding.

Delegated legislation

under parent Act lacks detailed scrutiny, solves time problem.

Defamation act 1996

under sec 13 a person may waive protection over proceeding in parliament MP can then bring an action for defamation provided that he waives Article IX protection allowing D to adduce evidence.

Accountability: security services, MI5 and MI6,

under the authority of the Home Secretary and the Foreign Secretary respectively, although ultimate control lies with the Prime Minister. The Joint Intelligence Committee oversees the work of the services and coordinates operations. Data from GCHQ are analysed by the Committee.

EC law and parliamentary sovereignty

unwritten UK constitution, the highest principle is that of parliamentary sovereignty, whereby the UK Parliament is free to pass any laws and cannot bind its successors. This creates the possibility of conflict between UK law - which British judges must always respect - and EC law, which is recognised as supreme across the member states of the EC. Macarthys v Smith: Denning's Dictum and reaffirmed in Thoburn.

classifications of constitutions 'written' or 'unwritten rigid, flexible republican or monarchical Unitary and federal Supreme and subordinate classified according to whether the powers and functions of the principal institutions of the state - the executive, legislature and judiciary - are separated or not. UK?

unwritten, flexible: supreme law-making body within the United Kingdom - may theoretically alter the constitution at will, although in practical terms this can only be done with the support of the people contrast US requires majorities in house, senate and states (3/4) in UK: separation of powers is not so clear.

Treaty of Lisbon 2007 subsidiarity

use of Union Competences is governed by subsidiarity and proportionality

Negative Resolution

used to introduce SI (statutory instruments) Negative resolutions are more common than affirmative resolutions. Under the negative procedure the new regulations will become law unless they are rejected by a resolution within 40 days. The criticism of the negative resolution procedure is that the government readily use this procedure when introducing the vast majority of statutory instruments. This means that in turn the majority of legislation of this kind is not debated by Parliament. Any member of either House can put down a motion that an Instrument should be annulled, although in the Commons unless the motion is signed by a large number of Members, or is moved by the official Opposition, it is unlikely to be debated, and in the Lords they are seldom actually voted upon. If a resolution to annul an Instrument is passed, it will be revoked by the Queen through an Order-in-Council. e.g. Greater London Election Rules 2000 annulled, but rare

parliamentary timetable

usually runs from November to the following October. begins with Queen's speech, outlines the government's policies and legislative proposals for the forthcoming session. most bills presented early with intent to become law at end of session. recess at Christmas, Easter and during the summer

criteria for the direct effect of a Treaty provision

van Gend & Loos (1963): "clear and unconditional" not conditional upon a positive legislative measure enacted under national law, Costa v. ENEL (1964) : an absolute prohibition [...] an obligation to refrain from doing something" was unconditional and not dependent on national legislative acts Reyners v. Belgium (1973) : Direct effect is possible if the Community's legislative institutions fail to fulfil the Treaty provisions. → "sanctioned [...] with direct effect" Defrenne v. Sabena (1976) :the fact that certain provisions of the Treaty are formally addressed to Member States does not prevent rights from being conferred at the same time on any individual who has an interest in the performance of the duties thus laid down" The ECJ argued against the strict argument of a clear and unconditional provision and considered the core principle of equal payment for men and women in Art. 119 EEC-Treaty as directly effective.

Indirect effect by interpreting national law in the light of Community directives

von Colson and Kamann v. Land Nordrhein-Westfalen (1984): "in applying the national law and in particular the provisions of a national law specifically introduced in order to implement Directive No 76/207, national courts are required to interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the result [..

2008 White Paper

vote in March 2007, 2008 more detailed proposals, 80% elected/20% appointed preference in HC was for fully elected chamber, but HL preference is for fully appointed. HC primary/ dominates (since it is elected) HL reduce to around 400 members 12-15 years non renewable change name to senate

MacCormick v Lord Advocate 1953 sovereignty of Parliament

was a Scottish legal action in which John MacCormick contested the right of Queen Elizabeth II to style herself 'Elizabeth II' within Scotland. They claimed it was a breach of the Act of Union 1707 between England and Scotland, since Queen Elizabeth I had been Queen of England but not of Scotland. challenge to Parliament's sovereignty which represents a 'fundamental' restriction on what Parliament can enact. treaty had no provision concerning the numbering of monarchs — it was part of the royal prerogative, and that they had no title to sue the Crown

Power of ECJ: hears 'preliminary references' from the EC's member states' national courts.

when a judge in national law proceedings is confronted with an ambiguity regarding EC law that she or he is unable to resolve, he or she is able to ask the ECJ for an authoritative ruling. Most important jurisdiction in terms of the harmonisation of laws within the EC. Because the Court may rule authoritatively on the interpretation of the Treaty and other elements of EC law, Article 234 directly raises the issues of the nature of the legal system of the Community and the relationship between EC law, the ECJ and domestic law and the role of judges in national courts. Article 234 is, therefore, crucial to the development of EC law.

Bulmer v Bollinger (1974) D described Babycham as "champagne perry". C, Champagne makers sought to prevent use of "champagne". It was suggested that questions arising from Regulations governing the labelling of wine should be referred to the ECJ.

when should reference be made: Lord Denning -court cannot reach decision without refernce -issue central to the case -consider tradeoff in delaym expense difficulty of point of law and burden on ECJ when deciding

Roquette Freres v The Council 1980

where a key requirement had not been complied with than any result is null and void in this case consultation laid down in the EC Treaty Consultation to EP is represents institutional balanced, and part of democratic nature that people should take part in the exercise of power.

doctrine of implied repeal

where an Act of Parliament or an Act of Congress conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed

direct effect of directives :van Duyn v. Home Office (1974)

where the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts" It is necessary to examine, in every case, whether the nature, general scheme and wording of the provision in question are capable of having direct effects on the relations between Member States and individuals Direct effect of directives cannot be granted in general but each direction provision has to be examined independently. the provision lays down an obligation which is not subject to any exeption or condition and which, by its very nature, does not require the intervention of any act on the part either of the institutions of the Community or of Member States

intra vires-ultra vires

within or outside of the granted powers. challenge may be made by individuals who are affected by the delegated legislation as to intra vires.