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Consti & Admin > Basics > Flashcards

Basics Flashcards

1
Q

What are the two core concepts of consti & admin law

A

The distribution of power to make rules, and accountability for those who exercise power

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2
Q

What’s a constitution

A

Fundamental rules by which society governs itself

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3
Q

Which countries don’t have a written constitution?

A

UK, IL, NZ

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4
Q

What are the institutions of government?

A

Legislature, Judiciary, Executive

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5
Q

What does the legislature do

A

Create law

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6
Q

What does the judiciary do

A

Interpret law

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7
Q

What does the executive do

A

Administer/enforce law

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8
Q

What is a prescriptive constitution

A

A document with a special legal status above all others

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9
Q

What is a descriptive constitution

A

An assemblage of laws, institutions and customs

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9
Q

What are 4 terms used to describe UK’s constitution

A

Unwritten, uncodified, flexible, descriptive

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10
Q

What are 5 terms used to describe US’s constitution

A

Written, codified, rigid, prescriptive, entrenched

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11
Q

What does it mean if a constitution is entrenched

A

Special procedure is involved to make changes; if there’s inconsistency between constitution and law, constitution wins out

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12
Q

What is a federal constitution, and what are some examples

A

Division of power between central government and states. Each can exercise power independently. Examples: US, CA, AU

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13
Q

What is a unitary constitution, and what are some examples

A

A central government retains control, even if they delegate some powers to regional bodies. Examples: UK, JP, IS, CN

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14
Q

Which system has a merged executive and legislative function when determining the executive

A

Parliamentary

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15
Q

Which system has a separation of legislative and executive functions when determining the executive

A

Presidential

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16
Q

Who is the head of state in a monarchy

A

The monarch

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17
Q

Who elects the head of state in a republic

A

The parliament or the people

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18
Q

What does it mean if there are fused or separate powers?

A

With fused power, the power is concentrated in the hands of one institution. In a separate power situation powers are separated between gov bodies to avoid abuse of power.

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19
Q

When do constitutions typically develop

A

Achievement of independence (US); revolution (FR); military defeat (DE); amalgamation of states (DE); peaceful constitutional change (CL)

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20
Q

Who’s definition do we rely on for ‘descriptive constitution’

A

Lord Bolingbroke

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21
Q

What are the sources of the UK constitution

A

Statutes, case law, prerogative powers, conventions, writers of authority, other sources like EU conventions, cabinet manual, etc

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22
Q

What are prerogative powers

A

Common law derived powers belonging to the Crown/executive

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23
Q

What are constitutional conventions

A

Non-legal rules/principles that can’t be enforced in courts but are considered binding

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24
Q

Who are some writers of authority?

A

Prof Dicey; Lord Bingham

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25
Q

What are the main details of parliamentary sovereignty?

A

(1) Parliament can make and unmake any law (2) No other body can set aside an Act of Parliament (3) Parliament cannot bind its successors

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26
Q

Can legislation be entrenched in the UK?

A

No - Parliament cannot bind its successors, and an Act of Parliament can’t be set aside (no higher document to refer to)

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27
Q

How have human rights historically been viewed in the UK?

A

No positive rights - instead the idea of ‘residual’ freedoms - you have whatever isn’t unlawful

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28
Q

How is power divided under a constitution?

A

Law making (legislative); implementation and administration (executive); adjudication (judiciary)

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29
Q

Who wrote about “pure separation of power”?

A

Professor Wade

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30
Q

What does “pure separation of power” entail

A

No overlap of personnel, no overlap of function, no interference

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31
Q

What’s a negative to a pure separation of power

A

No checks and balances - leads to potential for abuse of power

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32
Q

Who wrote that the protection of liberty and security within the State depended on achieving and maintaining equilibrium between the Crown, Parliament and the people?

A

Viscount Bolingbroke

33
Q

Who makes up the legislature in the UK?

A

House of Commons, House of Lords, Monarch

34
Q

Who makes up the executive in the UK?

A

Prime Minister, Cabinet, Local Authorities, Law Enforcement

35
Q

Who makes up the judiciary in the UK?

A

Courts and judges

36
Q

What did the Reform Act of 1832 do?

A

It abolished tiny districts, gave representation to cities, gave the vote to a more expanded group of upper class folks (landowners, business owners)

37
Q

Who provides personnel for the Executive in the UK?

A

The legislature (House of Commons)

38
Q

Who provides personnel for ministers in the UK?

A

Either House of Parliament

39
Q

Who provides the PM & Chancellor of Exchequer?

A

House of Commons

40
Q

What is secondary legislation?

A

Statutes and regulations made by government departments under the authority of an Act of Parliament (like the Coronavirus legislation)

41
Q

What’s a Henry VIII clause?

A

Act of Parliament that allows the government to repeal or amend it via secondary legislation

42
Q

What’s a vote of no confidence?

A

House of Commons can call for this when they’re unhappy with the government. It dissolves Parliament and leads to a general election.

43
Q

What are examples of parliamentary controls?

A

Vote of no confidence, Opposition, Question Time, Debate, Select Committees, House of Lords

44
Q

What is Prime Minister’s Question Time?

A

Prime Minister’s Question Time, also referred to as PMQs, gives MPs the chance to question the Prime Minister. Happens every Wednesday and is televised.

45
Q

What is the Minister Question Time?

A

Daily time dedicated to give MPs the chance to question government ministers.

46
Q

Can the House of Lords block legislation?

A

No, they can only delay it for up to a year.

47
Q

Which branch does the Attorney General fall under?

A

Executive and judiciary

48
Q

Can judges be part of the legislature?

A

No

49
Q

Which case sets out a test for whether a power of the executive can be affected by the judiciary?

A

Council of Civil Service Unions v Minister of State for the Civil Service (1985) “GCHQ” case

50
Q

What are some advantages/disadvantages to first past the post voting?

A

Advantages: Simple, cheap to administer, quick, just one rep for the constituency, so theoretically easier for the constituent

Disadvantages: Makes it harder for minority parties to form/get traction

51
Q

What’s the Privy Council?

A

Formal body of advisors to the Monarch. Appointments made by the Crown on the advice of the Prime Minister.

52
Q

What’s the maximum number of ministers a government can have?

A

Limited to 109 paid ministers

Maximum number of ministers sitting in HoC limited to 95

53
Q

What’s the Sewell Convention?

A

The UK Parliament will not legislate for matters devolved to the devolved governments of Scotland, Wales and Northern Ireland without the consent of the devolved legislature affected.

54
Q

What’s a parliamentary summons?

A

When Parliament is summoned after a general election

55
Q

What’s a parliamentary term?

A

Period between general elections

56
Q

What is dissolution?

A

The act of bringing a Parliament to an end before a general election

57
Q

What’s a Parliamentary session?

A

Each Parliamentary term is usually split into 5 yearly sessions

58
Q

What is prorogation?

A

Brings Parliamentary session to an end. All Parliamentary business is suspended during a prorogation.

59
Q

What’s another way to describe secondary legislation?

A

Delegated legislation

60
Q

How is most secondary/delegated legislation made?

A

Statutory instrument

61
Q

How does a parent Act provide for secondary legislation?

A

The parent Act will either provide that the delegated legislation:

  1. is not required to be laid before Parliament.
  2. will be laid before Parliament, but that no parliamentary action or approval is required.
  3. will be subject to the ‘negative resolution procedure’ - it goes into effect immediately, but Parliament has 40 days to annul it
  4. will be subject to the ‘affirmative resolution procedure’ - comes into immediate effect subject to approval by Parliament
62
Q

What are the three limbs to Dicey’s definition of Parliamentary Sovereignty?

A
  • Parliament can make or unmake any law
  • No other body can override or set aside Act of Parliament
  • Parliament cannot bind its successors
63
Q

How are Acts of Parliament undone?

A

Express repeal or implied repeal

64
Q

Does procedural entrenchment exist in the UK?

A

Yes - See HRA 1998, and later, Jackson v AG 2006

65
Q

What are examples of challenges to parliamentary sovereignty?

A

Grants of independence, devolution, EU membership, HRA 1998, challenges to rule of law, politics

66
Q

What counts as the Crown?

A

The Crown embodies the Monarch and the government of the day (‘Her Majesty’s Government’).

67
Q

What’s a prerogative?

A

Discretionary authority at the hands of the Crown

68
Q

What are examples of prerogative powers?

A

Appointment and dismissal of ministers
Summoning, prorogation, dissolution of Parliament
Royal assent to bills
Mercy/pardons
Granting honours
Making treaties
Declaring war
Deployment of armed forces overseas
Recognition of foreign states
Accreditation/reception of diplomats

69
Q

Can Parliament control prerogative powers?

A

The legislative supremacy of Parliament means that Parliament can abolish or restrict the operation of prerogative powers.

70
Q

Can the Judiciary control prerogative powers?

A

Yes, if it’s justiciable. GCHQ Case.

71
Q

What are non justiciable prerogative powers?

A

Non-justiciable - where the question is political

i) Making of treaties
ii) Defence of the Realm
iii) The prerogative of mercy
iv) The granting of honours
v) Dissolution of Parliament
vi) Appointment of Ministers

72
Q

What’s a convention?

A

Rules guiding political practice

73
Q

What are characteristics of conventions?

A
  1. Not in writing
  2. Developed over time
  3. Add flexibility to the constitution
  4. Can be difficult to determine
  5. Can be binding
  6. Aren’t enforced by the court
  7. In the event law and convention conflict, court must enforce the law
  8. They can be enacted into statute
74
Q

Are the Monarch’s prerogative powers conventions?

A

Yep. Appointment of PMs, royal assent to legislation, summoning/dissolution/prorogation of Parliament are all governed by convention (for example)

75
Q

What are the three strands of the Collective Responsibility convention?

A

Confidence principle: Government can only remain in office if it has confidence of House of Commons
Unanimity principle: All members of Government speak and vote together in Parliament
Confidentiality principle: These principles are a constitutional fiction, but must be maintained to allow for frank discussion within the government

76
Q

What is the Crichel Down guidance?

A

When a minister should take responsibility for their personal actions

  1. If the official was following direct instructions from the Minister
  2. If the official acts in accordance with policy
  3. When official makes a mistake but not on an important issue of policy and not where a claim to individual rights is seriously involved
77
Q

In the event of a dispute between the House of Lords and the House of Commons, who wins?

A

House of Commons

78
Q

What’s the Salisbury Convention

A

The House of Lords will not oppose the 2nd or 3rd reading of any Government legislation which complies with commitments which were made in the governing party’s election manifesto

79
Q

What are examples of conventions?

A

Salisbury Convention

Sewell Convention

Proposals on the expenditure of public money may only be introduced by a Government Minister in the House of Common

Parliament should meet at least once a year

Judges shall not play an active role in political life

Members of Parliament shall not criticise members of the Judiciary

Consti & Admin (2 decks)

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