Characteristics of the UK constitution

Question 1

What 3 branches make up the State?

Answer 1

1. Legislature
2. executive
3. Judiciary

Question 2

What is the function of the legislature?

Answer 2

enacts new law, and repeals or amends existing law.

In the UK, this function is said to be carried out by ‘the Queen in Parliament’. In practice, this function is exercised by PARLIAMENT (The House of Commons and the House of Lords). The Queen’s role is limited to granting ‘royal assent’ to new laws.

Parliament is the sovereign body in the state and the source of primary authority/ultimate power in the UK.

Question 2

What is the function of the executive?

Answer 2

formulates and implements policy within the law

In the UK, the executive consists of:

• The Prime Minister and Cabinet
• the various government departments
• A politically neutral civil service
• Other bodies carrying out government functions at the local level, i.e. local authorities or ‘councils’.

Question 3

What is the function of the legislature?

Answer 3

body of judges who are responsible for the enforcement of criminal and civil law and the adjudication of disputes between individuals/ individuals and the state

Question 4

What are the 3 sources of constitutional rules in the UK?

Answer 4

1. Legislation
2. Case law
3. Convention

Question 5

Are Acts of Parliament a source of constitutional law in the UK?

Answer 5

yes, they can be.

Not all acts are classed as constitutional AoP - depends on the subject matter of the legislation.

Question 6

What is a constitutional statute per Laws LJ in Thoburn v Sunderland City Council [2002]?

Answer 6

a) conditions the legal relationship between the citizen and the state in some general, overarching manner and

b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights”.

Question 7

Give 4 examples of constitutional statutes

Answer 7

The Magna Carta 1215

The Bill of Rights 1689

The Human Rights Act 1998

The Constitutional Reform Act 2005 -> Increased the separation of Power. Lord Chancellor is a much more political role and Lord Chief Justice is the head of the courts.

Question 8

Entick v Carrington [1765] is an example of case law which established constitutional law.

What key principle was established in this case?

Answer 8

state cannot exercise power unless that power is expressly authorised by law.

FACTS: Entick was suspected of writing anti-government pamphlets, and had his property searched by agents of the King “with force and arms”. Entick sued the agents for trespass. The agents’ defence was that they acted on the authority of a warrant from Lord Halifax, one of the King’s Ministers.

HELD: The trial judge was Lord Camden, Chief Justice of the Common Pleas, who found for Entick, holding that Lord Halifax had no recognised right under statute or case precedent to issue a search warrant.

Question 9

Are constitutional conventions binding?

Answer 9

regarded as binding in operation but not in law

Question 10

Describe what is a constitutional convention?

Answer 10

• Informal rules of political practice.
• Developed in an evolutionary way, according to the political standards of the time.
• Without any clear source in legislation or case law.

Conventions regulate the relationships between the various institutions in the state and also create rules and standards of behaviour that are seen to be appropriate in a constitutional system.

Conventions underpin the operation of the Cabinet system, defining /regulating:

• What Ministers are responsible for
• How Ministers should conduct themselves.
• Relations between the House of Lords and the House of Commons,
• Relations between the Executive and the Monarch
• Relations between the judiciary and the other organisations of the state.

An example is that the Queen does not refuse royal assent to Bills of Parliament once they have passed the House of Commons and the House of Lords.

Question 11

Which prevails where law and convention are inconsistent?

Answer 11

A convention isn’t legally enforceable and can be displaced by law. If there is an inconsistency between them, law will prevail.

Question 12

What is the Salisbury-Addison Convention?

Answer 12

Legislative convention

House of Lords should not reject at second reading any government legislation that has been passed by the House of Commons and that carries out a manifesto commitment

(i.e. a promise to the electorate in the course of a preceding general election).

Question 13

What is the Sewel Convention?

Answer 13

Westminster Parliament will not normally legislate with regard to devolved matters in Scotland, Wales or Northern Ireland without the consent of the devolved administration

Question 14

What is the Convention regarding who will introduce financial bills in the HC?

Answer 14

only introduced by Cabinet Minsters

Question 15

What is the convention for the relationship between HL and HC

Answer 15

HL defers to HC

Question 16

What is the Convention regarding what the government should do before embarking on any major foreign policy initiatives involving the use of armed forces?

Answer 16

Governement should consult HoC.

e.g: Parliamentary vote on military engagement in Syria in 2013, (building on the 2003 vote in relation to war in Iraq).

Question 17

What is the convention regarding the choice of Cabinet Ministers?

Answer 17

Prime Minister chooses the Cabinet Ministers

Question 18

What is the convention regarding the consequence of a vote of no confidence by HC?

Answer 18

Government will resign and PM will advise the monarch to dissolve parliament.

This will lead to a general election.

Question 19

What is meant by “the Queen/King-in-Parliament”?

Answer 19

refers to the sovereign’s legislative role, acting with the advice and consent of Parliament.

Question 20

What are the features of the House of Commons?

Answer 20

Elected body

650 members from different political parties

Key function is to hold the government to account. -> e.g. Prime Minister’s Question Time every Wednesday

Question 21

What are the features of the House of Lords?

Answer 21

Unelected.

91 appointed life peers, hereditary peers and bishops.

Able to scrutinise and make amendments to legislation approved by the House of Commons. Its powers are regulated by important conventions.

Question 22

What is an Mps role?

Answer 22

Each MP has a ‘constituency’, -> ie the geographical area they were elected by the people to represent in Westminster.

MPs can represent people’s interests by, for example, asking questions of the government in debates and voting on proposed laws.

Question 23

After what period will Parliament be automatically dissolved?

Answer 23

5 year period

Question 24

Aside from the dissolution of Parliament after a 5 year period, what are 2 ways in which a general election can be triggered?

Answer 24

1. Request by PM to monarch to exercise prerogative right to dissolve Parliament.
2. Vote of no confidence in His Majesty’s Government

Question 25

What is a ‘hung parliament’?

Answer 25

Where no single party wins a majority of seats

as in 2010.

Biggest party can form a minority government or form a coalition with another party to create an overall majority.

Question 26

Are ministers and civil servants politically neutral?

Answer 26

ministers -> political

civil servants -> neutral; do not need to move jobs if there is a change in government

Question 27

What are the sources of government power?

Answer 27

Statute or common law

Question 28

What is the Carltona principle?

Answer 28

Government ministers, and some other public office holders such as the chief constable), are permitted to delegate their discretion to sufficiently senior officials within their own departments, so long as accountability remains with the minister or the office holder who has the statutory power.

So, as long as there is an authorized public servant carrying out the Minister’s functions in the name of the state, that won’t be deemed unlawful.

Question 29

Can the government suspend law?

Answer 29

only with the consent of Parliament (Bill of Rights, s1)

Question 30

Do taxes need consent of Parliament?

Answer 30

yes as they must be set out in legislation

Question 31

What does the Habeas Corpus Act 1679 provide?

Answer 31

It was passed by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of habeas corpus,

Requires a court to examine the lawfulness of a prisoner’s detention and thus prevent unlawful or arbitrary imprisonment.

Places a limit on government power.

Question 32

What is Central vs Local Government?

Answer 32

Central government -> The government departments headed by Secretaries of State.

Local government -> County or district councils. Responsible for the implementation of central government policies at the local level. The key constitutional principles limiting the power of central government also apply to local government, and the exercise of local government power is reviewable by the Administrative Court in the same way.

Question 33

What are 3 key changes brought about by CRA 2005

Answer 33

• Reformed the office of the Lord Chancellor, so that judicial functions have largely been taken over by the Lord Chief Justice.
• Established the Supreme Court as the most senior UK court, as a separate entity from the Appellate Committee of the House of Lords (which had previously been the most senior UK court).
• Created an independent Judicial Appointments Commission for the appointment of judges, to ensure it wasn’t the politicians who appointed the judges. Prior to this, the Queen had appointed judges on the ‘advice’ of the Lord Chancellor.

Question 34

What is the Lord Chancellor’s role?

Answer 34

Legal duty to uphold the independence of the judiciary

responsible for the administration of the court system.

Holds the post of ‘Secretary of State for Justice’

Representation of the views of the judiciary of E&W to parliament and government.

Question 35

what is the concept of ‘justiciability’?

Answer 35

relates to the self-limiting acknowledgment by the judiciary that purely political matters may be beyond its jurisdiction.

There are some government acts which have long been seen as non-justiciable: The courts accept that they have no or very limited jurisdiction to decide whether the act is lawful.

Examples: Cherry and Miller (MILLER 2) [2019]

Court rejected the government’s argument that the prorogation of Parliament was a purely political issue and therefore not justiciable.

In 2016, the then President of the Supreme Court, Lady Hale, said that: “we [the Supreme Court] have definitely become the guardians of the United Kingdom constitution”. Because:

 The Justices rule on the validity of laws passed by the devolved legislatures in Scotland, Wales and Northern Ireland.

 They restrict the government to the exercise of powers within the limits that Parliament has set: “this is nothing new. The higher courts have been doing this for centuries […] in this we see ourselves as servants of the sovereign legislature”.

 They “protect the fundamental rights of individuals against encroachment by the State”.