Constitutional law—overview

Source of the doctrine of the separation of powers The roots of the doctrine of the separation of powers are commonly linked to John Locke’s Second Treatise of Government (1689), where he argued that the executive and legislative functions ought to remain distinct. This set out a clear insistence on their proper institutional separation. He warned that human frailty, ever prone to clutch at authority, makes it unsafe for those who draft the laws to hold in their hands the power to enforce them, since they might exempt themselves from obeying the measures they create. The doctrine’s most influential formulation, however, is that of Baron de Montesquieu, reflecting on the English constitution in L’Esprit des Lois (1748), where he identified judicial authority as a third branch of government. He contended that when legislative and executive powers are concentrated in a single person, or within one body of magistrates, liberty cannot survive; fears will arise that the same monarch or senate could enact oppressive laws and carry them out oppressively. Likewise, there is no freedom if the judiciary is not separated from the legislative and executive, undermining genuine liberty. If it were combined with the legislative, the life and liberty of...

Introduction to statutory interpretation The aim of statutory interpretation is to determine the legal meaning of a statute, that is, the sense that expresses the legislator’s intention. The clearest guide to that intention is the statutory wording itself, read in its context and with its overall purpose in mind, and its broader legislative setting. Courts should seek to fulfil the purpose of legislation by construing its language, so far as they can, in the manner that most effectively serves that purpose. Put differently, the courts’ default method is purposive, and every enactment is to be construed with that end in view. There is a starting presumption that the grammatical and ordinary sense of an enactment reflects the meaning intended by the legislator. Where an enactment reasonably bears only a single meaning, and no other interpretative tools or considerations cast real doubt upon it, the provision is to be applied according to its plain meaning. In such a situation, the plain meaning will correspond with the legislative purpose...

In brief The British constitution is uncodified, meaning it does not spring from a single constitutional document or code. It draws on a wide range of written and unwritten sources. Alongside the principal written sources of law in England and Wales—legislation (which has also introduced international and human rights principles into our constitution) and the common law—the constitution also rests on two further unwritten bases within this system: the prerogative, and non-legal constitutional conventions. In addition, on one view the basic or prevailing principle of our constitution, Parliamentary sovereignty, is ultimately grounded in political fact rather than in law. Legislation Legislation is the foremost source of constitutional law. Acts of Parliament may set out detailed constitutional rules, or even pass authority to create them to ministers or to others. Under the doctrine of Parliamentary sovereignty, legislation is traditionally regarded as taking precedence over any other form or kind of constitutional rule. For example, statutes providing for constitutional matters include the Bill of Rights 1688, the Act of Settlement (1700), the Union with Scotland Act 1706, the Parliament Act 1911 and the Parliament Act 1949, the Scotland Act 1998, the Human Rights Act 1998 (HRA 1998), the House of Lords Act 1999 and...

When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...