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University Degree: Public Law
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In this essay I will define the constitution, its main elements and its aim. Moreover I will explain the structure of the British constitution and its sources which are divided as legal rules and non legal rules. Then I will explain the constitutional con
establish and regulate or govern the government'.2 The main elements of the constitution are the establishment of the institutions of the state and the powers of those institutions, setting out the relationship between different institutions and between the institutions and individuals. The aim of a constitution is to ensure stability and order, the legitimacy of government institutions, to establish the break with the past, to limit the government's powers and to reach the principles and goal which underlie in it.
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Using case law illustrations, explain how the literal rule of statutory interpretation operates and how the golden rule modifies the literal rule
* The object or circumstance may have only existed after the parliament1 for example if legislation was out to ban vehicles from entering London and skateboards were invented after it was introduced. Would it include it? In all these situations the court will try to figure out what the parliament was intending. As part of the judiciary, they are supposed to implement law so it would be wrong for them to make their own decision. Once this is done, then this becomes part of case law, but it will not be the final decision, a higher court may decide it is wrong.
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Judicial review, as described by Lord Diplock, provides the means by which judicial control of administrative action is exercised. In order for the clients to apply for judicial review, the claimants must have either a direct or personal interest in the d
Firstly, Andy is faced with the issue of the failure to conduct a consultation properly. Secondly, the issue of the Secretary of State for Transport's failure to give each party an opportunity to be heard. Essentially, procedural unfairness occurs when the decision-maker fails to carry out: the relevant statutory procedures, e.g failure to consult, as well as abide by the principles of natural justice when they arriving to that decision, e.g failure to give each party an opportunity to be heard. Firstly, there are several cases in which Andy can rely his case on the Secretary of State's failure to conduct a proper consultation, such as R v Liverpool Corporation, ex parte Liverpool Taxi Operators Association1 as well as that in R v North and East Devon Health Authority, ex parte Coughlan2.
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Striking a balance - What GC & C v Commissioner of Police of the Metropolis tells us about the protection of human rights in the United Kingdom.
This particular case has relevant points of public interest which serve to enlighten us on the way the UK courts have interpreted the HRA, yet cannot give us a full indication of how and to what extent human rights have been protected in the UK. Thus, in this work, we will focus primarily on Article 8 of the ECHR and, using the above mentioned case as our basis, the doctrine of proportionality, which has become an essential component in the reasoning of the courts regarding human rights.
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It is correct to say that the United Kingdom does not have a constitution. Critically evaluate this statement.
1 From this definition I could acknowledge that a constitution is a structure planned for government which is codified as a written document; this document includes fundamental laws and principles. Furthermore it generally comprises basic political principles, and establishes the structure, actions, powers and duties of a government. These rules and regulations together amount to its individual distinct existence. When such values are written into a single or set of legal documents, those documents may be said to comprise a written constitution.
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This means that its interest will not be greater than the ordinary person and will not have standing in regards to challenging the decision of ASA to the AAT. TAS may seek rely on the broader terms of S(27)(2)4 to have standing in the AAT. The section specifies that an organisation shall be taken to have interests, if the decision relates to a matter included in the objects of the organization. The object of TAS is to merely promote air safety. By challenging the decision it is taking on a more prohibitive role that goes beyond the description of promoting.
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that consulates' must be given a reasonable amount of time to response as in Lee and Dredger, (were the court rule that the question as to whether the time given to respond was a matter of fact and degree);4 (d) that the responses to the consultation must be properly considered as in Rollo, were the court rule that general information was enough in given consultation.5 It could be seen that even when the Gunning Criteria is used there are always exceptional cases were consultation could not be properly applied.
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Bill and Sachin are keen amateur archaeologists who live two hundred miles away in London. To further the wider preservation of antiquity they have set up the Roman Antiquities Foundation as a charity to promote the excavation and study of Roman remains. Advise both the Roman Antiquities Foundation and Bill and Sachin as individuals whether they would be in a position to challenge the decision of the Secretary of State under the judicial review procedure. (i) The main issue which must be discussed in relation to whether or not Val's claim is amenable for a judicial review is whether the claim involves a public law matter.
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Similarly, a contractual exclusive jurisdiction clause in favour of one European State will "trump" other factors. The ruling of the European Court of Justice in Owusu v Jackson (t/a Villa Holidays Bal Inn Villas)1 "(ironically made in the interests of certainty) has served only to exacerbate the problems, leading to further litigation."2 Owusu v. Jackson Case C-281/02 Mr. Owusu was a British national domiciled in the UK and he brought a suit in the UK against Mr. Jackson and some other defendants for injuries he sustained while vacationing in Jamaica.
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The common law rules of natural justice or fairness are still developing and what is required depend on the nature of interests affected, the power to be exercised and nature of sanctions, if any, in an individual case.4 Substantial issues pertaining to the substance of Regulations and legitimate expectations will also be relevant. The Ombudsman investigates maladministration causing injustice,5 involving matters of administrative processes such as avoidable delay, wrong advice, unfairness, and bias among others.6 Firstly, general guidance will be given to all clients on the availability, procedures and effectiveness of judicial review, private law actions and the Ombudsman.
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The unwritten nature of the British Constitution is not simply an accidental failure to codify. It expresses a commitment to keeping the law subordinate to politics" Discuss.
Together these changes have led many to believe that there is no longer a convincing argument as to why Parliament should be unlimited in its power. Leading many to question the legitimacy of Parliamentary Sovereignty or with regards to the lattermost development whether Parliament is even still sovereign. Cases such as Factortame2 and Jackson3 will need to be explored in more detail to assess this assumption. Moreover many submissions have been made by various legal writers in light of these modifications as to how Britain should now be governed.
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This doctrine mainly divides the government into branches and distributes the power amongst these branches. In most of the governments these branches are: executive, judicial, and legislative. Almost every democratic government uses the separation of power to a certain degree. However, different countries use this doctrine to a different extent. In order to demonstrate this I will talk about two different jurisdictions, the Republic of Uzbekistan and the UK. History: Aristotle was the first person to identify the three elements of the constitution. According to him these elements were: * The deliberative: discusses everything of common importance.
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has retained its importance in the English Legal System. The doctrine of precedent is based on the principle of stare decisis, which means to stand by things decided. It might be true that the sovereignty of Parliament is more complete in England than anywhere else. However, does it really mean that the rigidity of doctrine of precedent in this country is of no particular importance? Moreover, can we actually say that the doctrine of precedent is rigid? The main aim of my work is to show the importance of the doctrine of precedent and to prove that it is not rigid.
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Those prerogative powers are not written down, due to the unwritten constitution of the country and are based in common law. The prerogative has always remained an important source of Governmental power. Principles are: the conduction of foreign affairs (making treaties), the patronage power, commandment of armed forces, summoning and dissolving of Parliament, giving Royal Assent to legislation and the prerogative of mercy. BBC v Johns 5and Dumbarton District Council v Lord Advocate6 have two contrasting views of prerogative. Due to lack of documentation in BBC v Johns, has leaded to being unable to find out to what extent the royal prerogative has been used "...
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Too often, secrecy prevails in sensitive areas such as security, intelligence and surveillance for understandable reasons but with few effective safeguards against abuse. Discuss.
defence would have been that the person did not know and had no reasonable cause to believe that the information related to security or intelligence ("a virtual impossibility for security and intelligence personnel").2 Was it because of the fear of criminal penalty that no one came forward to say that intelligence was faulty? Moreover, although not technically illegal but highly unethical (in David Shayler's view)3 act of the MI6 of bugging the office of Kofi Annan in UN was, by virtue of OSA 1989, supposed to be concealed and any unauthorised reporting of such an act was likely to prompt criminal prosecution against the reporter.
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Critically assess the extent to which the present mechanisms available to Parliament to call the government to account can be said to have a meaningful ability to affect governmental decision-making.
The Prime Minister answers questions every Wednesday from 12.00 to 12.30pm. The questions simply request the PM to list his engagements for the day. This potentially allows opportunity for supplementary questions to be asked, which is limited to only 2 questions per member. To some extent this is an apt method of scrutiny as there is a lack of notice given and so the PM must demonstrate his abilities across the whole of government policy1. This also coupled with the success of question time in scrutiny as supplementary questions can often expose weaknesses in government policy/actions.
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None of the members of the House of Lords are elected by the electorate. When discussing the appointed nature of the House (albeit when discussing the possibility of a totally appointed chamber) Phillipson states that: 'an appointed House is derided as a giant quango, representing rule by an elite, lacking any democratic legitimacy and therefore ultimately ineffectual.'2The argument that the chamber is undemocratic is a valid one. Although the appointments are made largely by an elected Prime Minister, this is certainly a diluted and far more indirect sort of democracy. This method of appointment also leaves room for a certain amount of corruption, whereby peers are elected on financial basis rather than in the interests of the electorate.
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and of course an implied term stating that the goods supplied under the contract are of satisfactory quality (s.14(2)). There are many more implied conditions which are concerned with the quality, purpose and defects of the goods, which along with the sections mentioned above are for the protection of consumers rather than the intention of the parties. This growing concern for 'consumer protection' in relation to the consumer-welfarism theory, is further emphasised with the Unfair contract Terms Act 1977, which places strict limitations upon the ability of sellers to exclude the operation of these implied terms.
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It cannot be too strongly emphasized that the British constitutionis firmly based on the separation of powers. (Lord Diplock in Duport Steels v Sirs). Discuss.
The separation of powers doctrine, in both of these forms, has had a substantial influence on the UK constitution, especially on judicial independence. But it is not unified, clear, or enforceable enough to form a constitutional base. The main principle dominating the UK constitution of the 18th century was that of the balanced government, where each branch was drawn from three social classes - the wealthy commoners, the aristocracy, and the monarchy. They shared in the performance of several functions; for example, the Commons, Lords, and King all participated in the enactment of legislation.
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This resulted in the government, deciding on a radical reform called the Constitutional Reform Act 2005 (CRA) without any consultation. They had the desire to increase separation of Powers between judges and government and to comply with article six of the European Court of Human Rights (ECHR) on judicial independence. The decision in the ECHR in McGonnel v United Kingdom2 distributed the Lord Chancellor's judicial role. This was because the court held that a breach in Article 6(1) of the ECHR (the right to a fair trial)
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If the local council is an authorised delegated power the three claimants when seeking judicial must fulfil essential criteria. Firstly, there needs to be an existence of a prima facie case to ensure that there appears to be a case to answer. Secondly, the claimants must have Locus Standi. This means that they must have the right to bring the case and have sufficient interest in the disputed matter. The court held in R v. Inland Revenue, ex parte National Federation of Self-Employment and Small Business2 that as taxation arrangements did not apply to the individual members of the Federation then they did not have the right to bring the case.
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How far is the survival of the royal prerogative a standing affront to the principles of democratic constitutionalism?
This view presents a serious conflict with the rule of law, as it suggests that the prerogative can be used to make moral and ethical decisions without the full consent of Parliament, the body which is meant to represent the electorate. Indeed, this is recognised in R v Somerset CC exp Fewings 4 where Laws LJ notes that "public bodies are subject to the rule of law" and the government cannot use prerogative powers "to an end for which they were never given" (although this underlying purpose is often unclear itself).
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When and to what extent should judges defer to Parliament or to the Executive in the protection of fundamental rights?
As Jowell notes, there "will be occasions where other bodies, whether Parliament, the executive or a non-departmental public body containing specialist expertise, will be better equipped to decide certain questions"2 than the courts. However, this decision should not be made on the basis that courts should not decide what is in the public interest and they should bow to Parliament or the Executive just because of their status. Rather, the decision maker's reasoning should be examined and used to inform the court's decision.
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be found in law reports and parliamentary enactments, it remains true to say that no comprehensive attempt has ever been made to collect and codify these into a single defining instrument.5 As has been the case for centuries, therefore, the constitution's principal contents may still be traced to what may sometimes seem to be a myriad of judicial decisions, Acts of Parliament and established conventions. It is in this sense, therefore, that the constitution of the United Kingdom may be defined as 'unwritten'.6 Perhaps one of the most obvious arguments put forward against the adoption of a written constitution in the United Kingdom today is that, 'If it isn't broken, then don't fix it'.
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This is supported in Macarthys Ltd v Smith3 by Lord Denning's dictum, where he states that 'it would be the duty of our courts to follow the statute of our Parliament' if their 'intention of repudiating the treaty' is represented in 'express terms'. Hence, there is a form of parliamentary sovereignty. However, there are reasons to suggest that Parliament's legislative authority does not represent the constitutional realities today. Firstly, Community law has been well accepted by the courts as an 'overriding force'4 on domestic legislation.
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