Chapter 5 - Constitutional Fundamentals & Sources of the Constitution

Question 1

What is a constitution, and what does it establish?

Answer 1

• A constitution is the set of rules by which a state operates.
• It grants powers to various branches of the state and defines the rights and freedoms of citizens. It outlines fundamental political principles, the framework of government, and citizens’ basic rights and freedoms.

Question 2

What are the three main functions of a constitution for a state?

Answer 2

1. Defines the fundamental political principles of the state.
2. Establishes the framework of government, including the powers of the executive, legislative, and judicial branches.
3. Guarantees rights and freedoms to the citizens, such as free speech and the right to vote.

Question 3

What is a written or codified constitution, and what does it typically include?

Answer 3

A written constitution is set out in a single authoritative document that contains the fundamental laws of the constitution, defines the powers of the state’s branches, and may include a Bill of Rights that guarantees citizens’ civil liberties.

Question 4

What is an unwritten or uncodified constitution?

Answer 4

An unwritten constitution is not contained in a single document. Instead, it is made up of various sources such as statutes, case law, and conventions. The UK is one of the few countries with an unwritten constitution.

Question 5

Which countries, besides the UK, have an unwritten constitution?

Answer 5

Israel and New Zealand are the only contemporary examples of countries with an unwritten constitution.

Question 6

What is the key difference between a republican and a monarchical constitution?

Answer 6

In a republican constitution, the head of state is typically a president, often elected directly or indirectly. In a monarchical constitution, the head of state is an unelected monarch, often with a ceremonial role.

Question 7

What is a federal constitution?

Answer 7

A federal constitution divides power between central and regional governments, with each level having defined powers. The central government cannot legislate on matters reserved for regional governments.

Question 8

What is a unitary constitution, and does the UK have one?

Answer 8

• A unitary constitution has a single sovereign legislative body, with power concentrated at the center.
• The UK has a unitary constitution, where Parliament at Westminster is the supreme law-making body. Regional authorities like the Scottish Parliament derive their powers from Westminster.

Question 9

What defines a rigid constitution?

Answer 9

A rigid constitution is entrenched, meaning it can only be changed through a special procedure, often involving lengthy or complex processes. Most written constitutions are rigid.

Question 10

What defines a flexible constitution, and is the UK constitution flexible?

Answer 10

• A flexible constitution is comparatively easy to change because** no special procedures are required for amendments**.
• The UK constitution is flexible due to its unwritten nature, allowing it to be amended without formal, complex processes.

Question 11

What is a formal separation of powers in a state’s constitution?

Answer 11

A formal separation of powers involves a clear separation of both functions and personnel between the executive, legislative, and judicial branches of government. There is minimal overlap in roles or functions between these branches.

Question 12

What is an informal separation of powers in a state’s constitution?

Answer 12

An informal separation of powers involves overlaps in functions and personnel between the executive, legislative, and judicial branches of government. There is no strict mechanism to keep these branches entirely separate.

Question 13

How is the separation of powers classified in the UK constitution?

Answer 13

The UK has an informal separation of powers. While the executive, legislative, and judicial branches can be identified, there is no formal system to keep them entirely separate. Overlaps exist both in functions and personnel.

Question 14

How does the US differ from the UK in terms of its constitutional make-up?

Answer 14

1. US enshrines a formal separation of powers with no overlap in functions between executive (President), legislature (Congress) & judiciary (supreme court). UK has information separation
2. US has written constituton with bill of rights
3. A Republican system with elected president
4. Federal system of government with power divided between national & state governments
5. It is rigid and entrenched, requiring special procedures for amendments

Question 15

What are the three core constitutional principles of the UK constitution?

Answer 15

1. The rule of law
2. The separation of powers
3. The sovereignty of Parliament

Question 16

What are the 6 key elements of the rule of law?

Answer 16

1. No arbitrary exercise of power by the state or government.
2. Laws should be made properly following a set procedure.
3. Laws should be clear and accessible.
4. Laws should be certain and not operate retrospectively.
5. There should be equality before the law.
6. The judiciary should be independent and impartial.

Question 17

What does the principle of certainty mean in the rule of law?

Answer 17

The principle of certainty means that laws should not be applied retrospectively, and a person should not be punished for an act that was not a crime at the time they carried it out.

Question 18

Why is judicial independence important in the rule of law?

Answer 18

Judicial independence is important to ensure that courts can uphold the law without fear of repercussions from the other branches of government. This allows judges to make impartial decisions based on law, free from executive or legislative influence.

Question 19

What did Montesquieu argue regarding the separation of powers in 1748?

Answer 19

Montesquieu argued that to prevent oppressive government, the legislative, executive, and judicial branches must be kept separate in terms of functions and personnel.
* Without separation, there can be no liberty.

Question 20

What are the three branches of state identified by Montesquieu, and what do they do?

Answer 20

1. Legislature: Makes the law (in the UK, it’s Parliament, including the Monarch, House of Lords, and House of Commons).
2. Executive: Implements the law (in the UK, it includes the Monarch, Prime Minister, government ministers, civil service, police, and armed forces).
3. Judiciary: Resolves disputes about the law (in the UK, it includes the Monarch, judges, and magistrates).

Question 21

What is the concept of ‘checks and balances’ in relation to the separation of powers?

Answer 21

Checks and balances refer to the system where each branch of the state is given powers to limit or check the others, ensuring that no branch can dominate or abuse power.

Question 22

What is the doctrine of parliamentary sovereignty, and how does it relate to the UK constitution?

Answer 22

• Parliamentary sovereignty means that Parliament is the supreme law-making body in the UK.
• It can make or repeal any law, and no other person or body, including the courts, can override or set aside its legislation.

Question 23

What are the two parts of Dicey’s definition of parliamentary sovereignty?

Answer 23

1. Parliament can pass any legislation it wishes (e.g., it could hypothetically ban smoking in Paris)
2. No other person or body, including the courts, can challenge or override legislation passed by Parliament.

Question 24

How does parliamentary sovereignty in the UK differ from the USA’s system?

Answer 24

• In the UK, courts cannot declare Acts of Parliament unconstitutional.
• In the USA, the Supreme Court has the power to strike down an Act of Congress if it is deemed unconstitutional.

Question 25

What are the four principal sources of the UK constitution?

Answer 25

1. Acts of Parliament
2. Case law
3. Royal prerogative
4. Constitutional conventions

Question 26

What is the significance of the Magna Carta 1215 as a source of the UK constitution?

Answer 26

The Magna Carta 1215 established key constitutional principles:
1. Limited the powers of the Monarch in embodying the principle that government must be conducted according to the law with the consent of the governed.
2. Introduced rights such as trial by jury and protection from unlawful imprisonment.
3. No one is above the law

Question 27

What was the significance of the Bill of Rights 1689 as a source of the UK constitution?

Answer 27

The Bill of Rights 1689 imposed limitations on the powers of the Monarch:
1. It removed the power to suspend Acts of Parliament
2. Prevented the Monarch from imposing taxation without Parliament’s consent.
3. Established principle of regular meetings of Parliament & freedom of speech in Parliament

Question 28

What did the Acts of Union 1706–07 accomplish in terms of the UK constitution?

Answer 28

The Acts of Union 1706–07 united England and Scotland under a single Parliament at Westminster. They also preserved the separate Scottish church and legal system.

Question 29

What is the significance of the Parliament Acts 1911 and 1949 in the UK constitution?

Answer 29

• The Parliament Acts of 1911 and 1949 reduced the power of the House of Lords by allowing legislation to be enacted without its consent, ensuring the will of the elected House of Commons would prevail.

Question 30

What powers does the Police and Criminal Evidence Act 1984 (PACE) provide, and what safeguards does it include?

Answer 30

PACE provides the police with powers of arrest, search, and detention but includes procedural safeguards to prevent the abuse of these powers.

Question 31

What civil liberties does the Public Order Act 1986 regulate, and how does it impact public gatherings?

Answer 31

It allows limitations on the right of citizens to hold marches and public meetings in public places.

Question 32

How does the Human Rights Act 1998 change the protection of human rights in the UK?

Answer 32

The HRA 1998 incorporates the European Convention on Human Rights (ECHR) into UK law, allowing citizens to raise human rights breaches in domestic courts.

Question 33

What did the Acts of devolution, such as the Scotland Act 1998, achieve within the UK’s constitutional framework?

Answer 33

These Acts decentralised government by creating devolved administrations in Scotland, Wales, and Northern Ireland, giving them greater autonomy.

Question 34

What significant changes were introduced by the Constitutional Reform Act 2005?

Answer 34

It reformed the office of Lord Chancellor, established the UK Supreme Court, and created the Judicial Appointments Commission to oversee the appointment of judges.

Question 35

What were the key provisions of the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020?

Answer 35

These Acts repealed the European Communities Act 1972, ended the supremacy of EU law, and introduced the concept of retained EU law in the UK after Brexit.

Question 36

How can Parliament repeal or amend significant constitutional Acts, and are they entrenched?

Answer 36

• The UK’s constitution is flexible. Parliament can enact or repeal significant constitutional Acts through ordinary legislation, as none of these Acts are entrenched.
• In the absence of a written constitution setting out a ‘higher’ form of law against which all other legislation may be judged (and also parliamentary sovereignty), our courts cannot strike down such legislation as being unconstitutional.
• Factors that limit Parliament’s ability to change the constitution tend to be
  more political, economic or social as opposed to strictly legal.

Question 37

What does the principle of “residual freedom” mean in the context of civil liberties in the UK?

Answer 37

Citizens are free to do or say anything they wish unless prohibited by law, primarily through Acts of Parliament.

Question 38

What does common law say about the actions of state officials, such as police officers?

Answer 38

• Actions taken by state officials
  (such as police officers) must have a legal basis if they are to be lawful.
• State officials must have legal authority to act, and their actions are unlawful without it.

Question 39

In the case of Entick v Carrington (1765), what actions were taken by the Secretary of State, and why were they ruled unlawful?

Answer 39

State officials broke into Entick’s house with a general warrant issued by the Secretary of State to search for seditious material. The court ruled the warrant was unlawful as there was no legal authority for issuing such general warrants.

Question 40

What principle did Entick v Carrington (1765) establish regarding the actions of state officials?

Answer 40

It established that state officials cannot act arbitrarily and must have clear legal authority for their actions. They are not exempt from legal accountability.

Question 41

What principle is established in common law about who should resolve legal disputes?

Answer 41

The principle is that legal disputes should be resolved by the judiciary, not by arbitrary rulings from the state or the Monarch.

Question 42

In Prohibitions del Roy (1607), what was the dispute about, and how did the court rule regarding the King’s role in deciding legal matters?

Answer 42

The case involved a land dispute that the King attempted to settle. The court ruled that the Monarch had no power to make rulings in legal disputes, stating that only the courts could give judgment.

Question 43

What is the common law remedy of habeas corpus, and what right does it provide to individuals detained by the state?

Answer 43

Habeas corpus allows individuals detained by the state to have the legality of their detention tested in court, protecting individual liberty.

Question 44

What does the right to a fair hearing entail, and why is it considered a fundamental constitutional principle in the UK?

Answer 44

The right to a fair hearing ensures that individuals are given an unbiased and impartial trial. It is a fundamental part of the rule of law and is also enshrined in Article 6 of the ECHR, incorporated into UK law via the HRA 1998.

Question 45

What is the principle of parliamentary supremacy in UK law, and what does the ‘Enrolled Act’ rule state?

Answer 45

• The principle of parliamentary supremacy means that once an Act of Parliament is entered onto the parliamentary roll, the courts cannot question or invalidate that Act.

Question 46

Which two cases illustrate the development and application of the ‘Enrolled Act’ rule, and what were the facts of Pickin v British Railways Board?

Answer 46

• The cases are Edinburgh & Dalkeith Railway Co v Wauchope and Pickin v British Railways Board.
• In Pickin, the claimant argued that an Act of Parliament affecting his land was fraudulently obtained, but the court held that once an Act is enrolled, its validity cannot be challenged in court.

Question 47

What is judicial review, and why is it constitutionally important in holding the government accountable for its actions?

Answer 47

• Judicial review allows the courts to ensure that public bodies, including the government, act within the powers granted to them by Parliament.
• It is important because it prevents arbitrary, illegal, or irrational decision-making by the executive, ensuring decisions are made fairly and lawfully.

Question 48

What is the role of judicial review in relation to the actions of the executive, and what authority defines this role?

Answer 48

• Judicial review is the process by which the High Court ensures that the Government and public bodies act within the powers granted by Parliament.
• In St Helen’s Borough Council v Manchester Primary Care Trust [2008], May LJ stated that the court reviews decisions to ensure they are lawful, rational, and fair.

Question 49

Why is judicial review constitutionally important?

Answer 49

• The UK does not have a written constitution creating a ‘higher authority’ against which individual pieces of legislation may be measured. As a consequence of this, and also
  because of the doctrine of parliamentary supremacy, courts in the UK do not have the power to review the constitutionality of legislation.
• The courts do, however, have the
  ability to review the way in which public bodies exercise the powers which Parliament has conferred upon them.
  Judicial review is constitutionally important because it enables the courts to hold the executive (ie the Government) to account for its actions.
• This prevents the Government
  acting in an arbitrary, illegal or irrational manner.

Question 50

How has the judiciary contributed to the development of constitutional principles when interpreting statute law?

Answer 50

The judiciary has made significant decisions of constitutional importance when interpreting statute law, such as in R (Miller) v Secretary of State for Exiting the European Union [2017], where the Supreme Court interpreted the ECA 1972 to prevent the Government from using the royal prerogative for EU withdrawal.

Question 51

How did A.V. Dicey define the royal prerogative?

Answer 51

Dicey defined the royal prerogative as “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown,” allowing the government to act without the authority of an Act of Parliament.

Question 52

From where do prerogative powers derive, and who exercises them?

Answer 52

Prerogative powers derive from common law and are exercised by (or in the name of) the Monarch. They represent the remaining absolute powers not removed by Parliament.

Question 53

What are the principal areas covered by the modern extent of the royal prerogative?

Answer 53

1. Foreign affairs: declarations of war, making treaties, recognition of foreign states.
2. Domestic affairs: summoning Parliament, appointing/dismissing the Prime Minister, granting Royal Assent, dissolving Parliament, defence of the realm, exercising pardon and mercy, granting public honours, and establishing public bodies.

Question 55

Who is legally responsible for the exercise of prerogative powers, and who typically exercises them?

Answer 55

The Monarch is legally responsible for exercising prerogative powers; however, these powers are conventionally exercised by the Prime Minister and other government ministers on the Monarch’s behalf.

Question 56

How can Acts of Parliament affect royal prerogative powers?

Answer 56

Acts of Parliament can remove prerogative powers, as seen in the Crown Proceedings Act 1947, which abolished the Crown’s immunity regarding claims in tort and contract.

Question 57

What was the significance of the Fixed-term Parliaments Act 2011 in relation to the royal prerogative?

Answer 57

The Act provided for fixed polling days for parliamentary elections, removing the Monarch’s power to dissolve Parliament at will, as traditionally exercised by the royal prerogative.

Question 58

What complexity arises when an Act does not explicitly override a prerogative power but covers the same subject matter? What case demonstrates this?

Answer 58

In such cases, it must be determined whether the statute adds a statutory power or replaces (repeals) the prerogative power, as demonstrated in Attorney General v De Keyser’s Royal Hotel [1920].

Question 59

What were the key facts and decision in Attorney General v De Keyser’s Royal Hotel [1920]?

Answer 59

• During WWI, the Government requisitioned a hotel for military use. The hotel sought compensation under the Defence Act 1842.
• The House of Lords ruled that the statute’s provisions limited the use of prerogative powers, indicating the prerogative could not bypass statutory rights.

Question 60

What did Lord Dunedin say about statute’s overriding prerogative powers?

Answer 60

Lord Dunedin stated that *‘if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules’. *

Question 61

What was the ruling in R v Secretary of State for the Home Department, ex p Northumbria Police Authority [1989]?

Answer 61

The Court held that the Home Secretary could maintain law and order using prerogative powers while simultaneously exercising statutory powers.
* The statutory and prerogative powers could coexist as long as they were not inconsistent.

Question 62

What did the House of Lords conclude in R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995]?

Answer 62

The House of Lords ruled that the Home Secretary’s introduction of a new compensation scheme under prerogative powers was unlawful because it conflicted with the statutory scheme established by Parliament, thus abusing the prerogative.

Question 63

What was the ruling in R (Miller) v Secretary of State for Exiting the European Union [2017]?

Answer 63

The Supreme Court ruled that the European Communities Act 1972 limited the Government’s powers regarding foreign relations, meaning the Government could not use prerogative powers to alter domestic law or nullify rights established by statute.

Question 64

What is the significance of the Dissolution and Calling of Parliament Act 2022 regarding royal prerogative powers?

Answer 64

The Act revived the royal prerogative power to dissolve Parliament, which had been dormant under the Fixed-term Parliaments Act 2011, thus allowing the prerogative to be exercised again upon repeal of the 2011 Act.

Question 65

What are constitutional conventions, and how are they categorized in relation to the UK constitution?

Answer 65

Constitutional conventions are a non-legal source of the constitution that guides the behavior of those operating within it.
* They are not enforced by the courts and play a crucial role in the functioning of government.

Question 66

How do Marshall and Moodie define constitutional conventions?

Answer 66

They define them as: “rules of constitutional behaviour which are considered to be binding upon those who operate the constitution but which are not enforced by the law courts.”

Question 67

What are the three key components of the definition of constitutional conventions?

Answer 67

The three components are:
1. Rules of constitutional behaviour - how individuals in constitutional roles should behave.
2. Considered to be binding - deviations from these rules should not occur.
3. Not enforced - they lack legal basis and will not be enforced by judicial bodies.

Question 68

How are constitutional conventions characterized in terms of their flexibility and creation?

Answer 68

Constitutional conventions are flexible and do not require specific procedures for their creation. They can become obsolete and be dispensed with informally without any formal steps.

Question 69

What is the legal rule regarding Royal Assent, and what convention governs the Monarch’s role in this process?

Answer 69

• Legal Rule: Royal Assent is required for a bill to become an Act of Parliament.
• Convention: The Monarch always assents to bills that have passed through Parliament, acting on the advice of the Prime Minister.

Question 70

How does the legal rule regarding the Monarch’s role in the executive branch differ from the associated convention?

Answer 70

• Legal Rule: The Monarch constitutes part of the executive branch.
• Convention: The Monarch acts only on the advice of the Prime Minister and other ministers; executive powers are exercised through ministers who are responsible to Parliament.