5481065
Description
Flashcards by Dina Storz, updated more than 1 year ago
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Created by Dina Storz
almost 8 years ago
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| Question | Answer |
| The rights revolution and the rise of common law constitutionalism | Paul Craig "public law, political theory and legal theory" 2000 major academic exponent: TRS Allan "constitutional justice: a liberal theory of the rule of law": exposition of the view that the constitution protects fundamental constitutional right as a matter of common law extrajudicial writings by prominent judges: Sir John laws: "the one democracy" 1995, "the constitution: morals and rights" 1996 Lord Woolf "Droit public – English style" 1995: subscribes to the view that it might be constitutionally impossible (hence unenforceable) to remove the High Court's power of judicial review altogether S Sedley, "human rights: a 21st-century agenda" 1995 Lord Phillips, BBC radio 4, 2 Aug 2010 "far-reaching dicta" in Jackson v attorney general AXA general insurance Ltd v Lord Advocate 2011 UKSC |
| Paul Craig, "public law, political theory and legal theory" 2000 | "the last 10 years have witnessed a challenge to what I have termed the modern vision of constitutional and administrative law. Commentators have drawn directly on political theory in order to understand the nature and content of public law. They have also been drawn to political theory through legal theory itself. The vision of law and adjudication advanced by Dworkin records theories of justice a central place in the determination of what the law actually is." |
| Sir John laws "law and democracy" 1995 | "ultimate sovereignty rests, in every civilised constitution, not with those who wield governmental power, but in the conditions under which they are permitted to do so. The constitution, not the parliament, is in this sense sovereign. In Britain these conditions should now be recognised as consisting in a framework of fundamental principles which include the imperative of democracy itself and those other rights, prime among them freedom of thought and expression, which cannot be denied save by a plea of guilty to totalitarianism. |
| Sir John laws "law and democracy" 1995 | for its part judicial power in the last resort rest on the guarantee that this framework will be vindicated. It consists in the assurance that, however great the Democratic margin of appreciation (to use Strasbourg's language) that must be accorded to the elected arm of the state, the bedrock of pluralism will be maintained. We have no other choice. The dynamic settlement between the powers of the state requires, in the absence of a constitutional scripture, just such a distribution of authority. The judges are rightly and necessarily constrained Not only by a prohibition against intrusion into what is Parliament's proper sphere, by the requirement, and the truth, that they have in their duty no party political bias. Their interest and obligation in the context of this discussion is to protect values which no Democratic politician could honestly contest: values which, therefore, may be described as apolitical, since they stand altogether above the rancorous but vital dissensions of party politicians." |
| Lord Woolf "Droit Public - English Style" 1995 | Subscribes to the view that it might be constitutionally impossible (hence unenforceable) to remove the High Court's power of judicial review altogether "both Parliament and the courts derive their authority from the rule of law. […] There are limits on the sovereignty of Parliament which is the courts' inalienable responsibility to identify and uphold". |
| S Sedley "human rights: a Twenty-First-century agenda" 1995 | "the historians conclusion may well be that the last two decades of the 20th century have seen a judicial recession and, with popular support sufficient to meet political opposition to it, of our organic constitution. If so, its consequence is that we have today both in this country and in those with which it shares aspects of its political and judicial culture in new and still emerging constitutional paradigm, no longer of Dicey's supreme parliament to whose will the rule of law must finally bend, but of a bipolar sovereignty of the Crown in Parliament and the Crown in its courts, to each of which the Crown's ministers answerable – – politically to parliament, legally to the courts." |
| Lord Phillips BBC radio 4, 2 August 2010 | "if Parliament did the inconceivable, we might do the inconceivable is well". |
| AXA General Insurance Ltd v Lord Advocate [2011] UKSC | Lord Hope: "the question whether the principle of the sovereignty of the United Kingdom Parliament is absolute or may be subject to limitation in exceptional circumstances is still under discussion. For Lord Bingham, writing extrajudicially, the principle is fundamental and in his opinion, as the judges did not by themselves establish the principle, it was not open to them to change it: The Rule of Law (2010). Lord Neuberger of Abbotsbury, in his Lord Alexander of Weedon lecture, now? (6 April 2011), said at paragraph 73 that, although the judges had a vital role to play in protecting individuals against the abuses and excesses of an increasingly powerful executive, the judges could not go against the will of Parliament as expressed through statue. Lord Steyn on the other hand record at the outset of his speech in Jackson, the warning that Lord Hailsham of St Marylebone gave in the dilemma of democracy 1978 about the dominance of a government elected with a large majority of the Parliament. |
| AXA General Insurance Ltd v Lord Advocate [2011] UKSC continued | This process, he said had continued and strengthened inexorably since Lord Hill sham warned of its dangers. This was the context in which he said in paragraph 102 that the Supreme Court might have to consider whether judicial review or the ordinary role of the courts was a constitutional fundamental which even a sovereign parliament acting at the behest of complaisant House of Commons could not abolish." |
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