Graduate Diploma in Law (GDL) Public Law (Constitutional and Administrative Law) Syllabus

Public Law (Constitutional and Administrative Law) syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Public Law (Constitutional and Administrative Law) in Graduate Diploma in Law (GDL), not a summary of it.

1. 1

   Foundations of the Constitution

   4 topics

   • Nature and Sources of the UK Constitution
     • Unwritten and uncodified character
     • Constitutional conventions
   • Parliamentary Sovereignty
     • Dicey's orthodox theory
     • Express and implied repeal; manner and form debate
   • The Rule of Law
   • Separation of Powers
2. 2

   Institutions and the Royal Prerogative

   4 topics

   • The Executive and the Royal Prerogative
     • Scope of prerogative powers
     • Judicial control (Miller No 1 and No 2)
   • Parliament and the Legislative Process
   • Devolution
     • Scotland, Wales and Northern Ireland settlements
   • Parliamentary Privilege and Accountability
3. 3

   Judicial Review

   4 topics

   • Preliminary Issues
     • Amenability, standing and time limits
     • Ouster clauses and procedural exclusivity
   • Grounds of Review
     • Illegality and ultra vires
     • Irrationality and proportionality
     • Procedural impropriety and legitimate expectation
   • Natural Justice
     • The rule against bias
     • The right to a fair hearing
   • Remedies in Judicial Review
4. 4

   Human Rights Law

   4 topics

   • The European Convention on Human Rights
   • The Human Rights Act 1998
     • Sections 3 and 4: interpretation and declarations of incompatibility
     • Sections 6 to 8: public authorities and remedies
   • Substantive Convention Rights
     • Articles 2, 3 and 5: life, torture, liberty
     • Articles 8 to 11: qualified rights and proportionality
   • Freedom of Expression and Public Order

Public Law (Constitutional and Administrative Law) flashcards for Graduate Diploma in Law (GDL)

20 of 58 cards from the Public Law (Constitutional and Administrative Law) deck — real questions with worked answers.

1. What does it mean to say the UK has an 'uncodified' constitution?

   The UK's constitutional rules are not contained in a single written document. They are drawn from multiple sources (statute, common law, conventions, etc.) and developed over time, rather than being codified into one entrenched 'Constitution'.

2. List the principal sources of the UK constitution.

   Acts of Parliament (statute); case law/common law; the royal prerogative; constitutional conventions; works of authority (e.g. Dicey, Bagehot, Erskine May); and retained/assimilated EU law and international treaties.

3. What is a 'constitutional convention' and is it legally enforceable?

   A non-legal, binding political rule of constitutional behaviour (e.g. the monarch grants Royal Assent on advice). Conventions are obeyed for political reasons but are NOT legally enforceable by the courts.

4. In the Jackson case (2005), what did obiter comments suggest about parliamentary sovereignty?

   In R (Jackson) v Attorney General, some Law Lords (e.g. Lord Steyn, Lord Hope) suggested parliamentary sovereignty might not be absolute and that courts could conceivably review legislation abolishing fundamental constitutional principles such as judicial review or the rule of law.

5. State A.V. Dicey's classic definition of parliamentary sovereignty.

   Parliament has the right to make or unmake any law whatever; no person or body has the right to override or set aside Parliament's legislation; and no Parliament can bind its successors.

6. What is the doctrine of 'implied repeal' and which case illustrates it?

   Where two statutes conflict, the later one impliedly repeals the earlier to the extent of inconsistency, since no Parliament can bind its successors. Illustrated in Ellen Street Estates v Minister of Health (1934).

7. What are 'constitutional statutes' and how do they differ regarding implied repeal? (Thoburn)

   In Thoburn v Sunderland CC (2002), Laws LJ held certain statutes (e.g. Magna Carta, Bill of Rights 1689, ECA 1972, HRA 1998, devolution Acts) are 'constitutional' and cannot be impliedly repealed — only by express words or unavoidably clear implication.

8. What is the 'enrolled bill rule'? (Pickin v British Railways Board)

   Once a Bill has passed both Houses and received Royal Assent, courts will not investigate alleged irregularities in its passage or question the validity of an Act of Parliament. Pickin v British Railways Board (1974).

9. How did the Factortame litigation affect parliamentary sovereignty?

   R v Secretary of State for Transport, ex p Factortame (1991) saw UK courts 'disapply' a provision of the Merchant Shipping Act 1988 that conflicted with directly effective EU law, showing a qualification of sovereignty while the UK was in the EU.

10. State Dicey's three elements (limbs) of the rule of law.

    (1) No punishment except for a distinct breach of law established before ordinary courts (no arbitrary power); (2) equality before the law — all subject to ordinary law and ordinary courts; (3) the constitution is the result of ordinary law (rights from judicial decisions, not an abstract code).

11. Distinguish 'formal' and 'substantive' conceptions of the rule of law.

    Formal (procedural) theories (e.g. Raz) focus on how law is made — clarity, prospectivity, certainty — without judging its content. Substantive theories add requirements about the content of law, including the protection of fundamental human rights and justice.

12. Where is the rule of law given statutory recognition?

    Section 1 of the Constitutional Reform Act 2005 expressly preserves 'the existing constitutional principle of the rule of law', though it does not define it.

13. What is the separation of powers and who articulated the classic tripartite version?

    The division of state functions among three branches — legislature, executive, judiciary — to prevent concentration of power. The classic tripartite model is associated with Montesquieu (De l'Esprit des Lois).

14. Give two ways the UK constitution departs from a strict separation of powers.

    The executive (government ministers) sit in and are drawn from the legislature (Parliament); historically the Lord Chancellor and Law Lords blurred judicial/legislative/executive roles. The UK has 'checks and balances' rather than strict separation.

15. How did the Constitutional Reform Act 2005 enhance separation of powers regarding the judiciary?

    It created the UK Supreme Court (separating top judges from the House of Lords legislature), reformed the office of Lord Chancellor, and established the Judicial Appointments Commission to bolster judicial independence.

16. What is the royal prerogative?

    The residue of discretionary/arbitrary common-law powers historically vested in the Crown and now largely exercised by ministers — e.g. making treaties, deploying armed forces, granting pardons, appointing ministers, and the conduct of foreign affairs.

17. Can statute and prerogative coexist, and what happens when they conflict? (De Keyser's Royal Hotel)

    Where statute covers the same ground as a prerogative power, the prerogative is held in abeyance and the statute prevails; the executive must act under the statute. Attorney General v De Keyser's Royal Hotel (1920).

18. What did the GCHQ case establish about judicial review of prerogative powers?

    Council of Civil Service Unions v Minister for the Civil Service (1985) held that the exercise of prerogative powers is in principle reviewable by the courts, depending on subject matter (some, e.g. defence/foreign affairs, may be non-justiciable).

19. What did Miller (No 1) (2017) decide about the prerogative and triggering Article 50?

    R (Miller) v Secretary of State for Exiting the EU held the government could NOT use the prerogative to trigger Article 50 because doing so would remove statutory rights; an Act of Parliament was required.

20. What did Miller (No 2) / Cherry (2019) decide about prorogation?

    The Supreme Court held the advice to prorogue Parliament was justiciable and unlawful where prorogation frustrates or prevents Parliament from carrying out its constitutional functions without reasonable justification; the prorogation was void.

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