The Constitutional Context
Constitutional law is necessary for understanding
- Sources of domestic law
- How they relate to each other
- Scope of the courts power to develop the law
Elements
- Legal rules
o Statutes & common law
- Non legal rules
o Conventions
- Rules & practices governing the workings of the political system
- Institutions of the British government
- Doctrines underpinning the workings of the constitution
Rule of law
- Requires that
o Government should proceed according to the law rather than on the
arbitrary exercise of discretion
o There should be a system for identifying rights & liabilities & for reassessing
grievances
Legislative supremacy
- Parliament has the freedom to make any law it chooses
- When conflict arises, statute prevails over common law
- No act of parliament can be challenged in the courts on the grounds of invalidity or
constitutionality
Separation of powers
- Doctrine of separation of powers states that political power is of 3 types
o Legislative
o Executive
o Judicial
- Each type of power should be exercised by separate people/ institutions
- The uk involves a partial separation of powers
Role of international law
- Most international law regulates relationships between states
- Some also give rights or imposes obligations on individuals
Effect of Brexit
- Withdrawal of the European union act 2018
o Ends supremacy of EU law
o Already existing directly applicable EU law changed into uk law as a new
category of domestic law
Retained EU law
Direct applicability & direct effect
- Eu law is a special type of international law
- Article 288 tfeu – some types of EU law become part of domestic law automatically
- Chief judge – ‘any type of eu law which creates clear rights for individuals can be
relied on in domestic courts’
Supremacy of EU law
- If provisions of national legal systems are inconsistent with EU law, EU law prevails
Constitutional law is necessary for understanding
- Sources of domestic law
- How they relate to each other
- Scope of the courts power to develop the law
Elements
- Legal rules
o Statutes & common law
- Non legal rules
o Conventions
- Rules & practices governing the workings of the political system
- Institutions of the British government
- Doctrines underpinning the workings of the constitution
Rule of law
- Requires that
o Government should proceed according to the law rather than on the
arbitrary exercise of discretion
o There should be a system for identifying rights & liabilities & for reassessing
grievances
Legislative supremacy
- Parliament has the freedom to make any law it chooses
- When conflict arises, statute prevails over common law
- No act of parliament can be challenged in the courts on the grounds of invalidity or
constitutionality
Separation of powers
- Doctrine of separation of powers states that political power is of 3 types
o Legislative
o Executive
o Judicial
- Each type of power should be exercised by separate people/ institutions
- The uk involves a partial separation of powers
Role of international law
- Most international law regulates relationships between states
- Some also give rights or imposes obligations on individuals
Effect of Brexit
- Withdrawal of the European union act 2018
o Ends supremacy of EU law
o Already existing directly applicable EU law changed into uk law as a new
category of domestic law
Retained EU law
Direct applicability & direct effect
- Eu law is a special type of international law
- Article 288 tfeu – some types of EU law become part of domestic law automatically
- Chief judge – ‘any type of eu law which creates clear rights for individuals can be
relied on in domestic courts’
Supremacy of EU law
- If provisions of national legal systems are inconsistent with EU law, EU law prevails
