PUBLIC LAW REVISION NOTES
GDL (University of Law)
Essay Question Plans
Flexibility of Constitution
Separation of Powers
Parliamentary Supremacy
Flowcharts
Judicial Review
Judicial Review Based on Human Rights
Conflict of Human Rights
Contempt of Court
Key Authorities
UK Constitution
Separation of Powers
Parliamentary Supremacy
Judicial Review
Human Rights
Conflict of Human Rights
Contempt of Court
All notes correct and Distinction worthy as of
academic year 2019/20
, Flexibility of Constitution
Introduction
Explain that we don’t have a written constitution and why
Introduce debate about whether this means our constitution is flexible and easier to change than
written constitutions
Constitutional Conventions
Define conventions i.e. non-legal rules which interact with legal rules to enhance operation of
government
Marshall and Moodie “rules of constitutional behaviour”
Provide examples: monarch will always grant Royal Assent, Ministers must be MPs, collective cabinet
responsibility, individual ministerial responsibility
No legal mechanisms in place to ensure they are followed – Madzimbamuto 1968, Miller 2017
But treated as binding and would have drastic consequences if ignored
Statute
Define statute i.e. legislation of constitutional significance that has been passed by Parliament,
fulfilling the functions of a codified constitution
Provide examples: Scotland Act 1998, Human Rights Act 1998, European Communities Act 1972
Legally binding and can be enforced by the courts
Can be repealed and altered at any time with the consent of Parliament and without any kind of
special procedure/super majority
But many would certainly be politically difficult/impossible to repeal e.g. Scotland Act 1998, Acts of
Independence throughout twentieth century
Case Law
Define case law i.e. because we have a common law system, case law has established some of our
constitutional rights and rules
Provide examples: residual freedoms e.g. you may do anything that is not expressly prohibited by
law, legal disputes must be resolved by the judiciary (Case of Prohibitions)
Case law can be inflexible and difficult to change as many courts are bound by previous decisions
The Supreme Court is not bound by precedent but in practice rarely rules against itself
Many of the rights established by case law are entrenched in our society e.g. habeas corpus – an
individual detained by the state has the right to have the legality of that detention tested by a court –
confirmed recently in Belmarsh case 2005
Royal Prerogative
Define RP i.e. the remaining legal powers which were once exercised by the monarch alone but which
are now largely held by the government
Provide examples: power to declare war, sign treaties, grant mercy
These powers are slowly changing and being reduced by new conventions and statutes so in a way
are flexible e.g. emerging convention that PM should seek Parliament’s consent to declare war,
Fixed-term Parliaments Act 2011
Courts now demonstrating that they will review exercise of the RP in some cases e.g. CCSU
Conclusion
Constitution does have more flexibility than a written constitution
However, bringing about change remains a sometimes difficult and/or slow process
GDL (University of Law)
Essay Question Plans
Flexibility of Constitution
Separation of Powers
Parliamentary Supremacy
Flowcharts
Judicial Review
Judicial Review Based on Human Rights
Conflict of Human Rights
Contempt of Court
Key Authorities
UK Constitution
Separation of Powers
Parliamentary Supremacy
Judicial Review
Human Rights
Conflict of Human Rights
Contempt of Court
All notes correct and Distinction worthy as of
academic year 2019/20
, Flexibility of Constitution
Introduction
Explain that we don’t have a written constitution and why
Introduce debate about whether this means our constitution is flexible and easier to change than
written constitutions
Constitutional Conventions
Define conventions i.e. non-legal rules which interact with legal rules to enhance operation of
government
Marshall and Moodie “rules of constitutional behaviour”
Provide examples: monarch will always grant Royal Assent, Ministers must be MPs, collective cabinet
responsibility, individual ministerial responsibility
No legal mechanisms in place to ensure they are followed – Madzimbamuto 1968, Miller 2017
But treated as binding and would have drastic consequences if ignored
Statute
Define statute i.e. legislation of constitutional significance that has been passed by Parliament,
fulfilling the functions of a codified constitution
Provide examples: Scotland Act 1998, Human Rights Act 1998, European Communities Act 1972
Legally binding and can be enforced by the courts
Can be repealed and altered at any time with the consent of Parliament and without any kind of
special procedure/super majority
But many would certainly be politically difficult/impossible to repeal e.g. Scotland Act 1998, Acts of
Independence throughout twentieth century
Case Law
Define case law i.e. because we have a common law system, case law has established some of our
constitutional rights and rules
Provide examples: residual freedoms e.g. you may do anything that is not expressly prohibited by
law, legal disputes must be resolved by the judiciary (Case of Prohibitions)
Case law can be inflexible and difficult to change as many courts are bound by previous decisions
The Supreme Court is not bound by precedent but in practice rarely rules against itself
Many of the rights established by case law are entrenched in our society e.g. habeas corpus – an
individual detained by the state has the right to have the legality of that detention tested by a court –
confirmed recently in Belmarsh case 2005
Royal Prerogative
Define RP i.e. the remaining legal powers which were once exercised by the monarch alone but which
are now largely held by the government
Provide examples: power to declare war, sign treaties, grant mercy
These powers are slowly changing and being reduced by new conventions and statutes so in a way
are flexible e.g. emerging convention that PM should seek Parliament’s consent to declare war,
Fixed-term Parliaments Act 2011
Courts now demonstrating that they will review exercise of the RP in some cases e.g. CCSU
Conclusion
Constitution does have more flexibility than a written constitution
However, bringing about change remains a sometimes difficult and/or slow process
