CONAD & EU Law Flashcards
How can the UK’s Constitution be described?
Unwritten - no single written document setting out how the government should operate and citizens rights.
Monarchical - unelected Monarch as the Head of State.
Unitary - single sovereign legislative body with power concentrated at the centre (Parliament at Westminster).
Flexible
Informal separation of powers - no formal mechanism exists to keep the Executive (Government), the Legislative (Parliament) and the judicial (courts) branches of State separate.
What is the main advantage of the UK having an unwritten constitution?
Easy for Parliament to make significant changes to the Constitution by enacting any legislation it wishes, with courts unable to strike down down it for being unconstitutional.
What are each of the 3 branches of Government responsible for?
The legislature (Parliament; comprising of Monarch, HOL and HOC) - body that makes the law.
The executive (Government; comprising of Monarch, PM, and other Government ministers, civil service) - body that implements the law.
The judiciary (Courts; Monarch, all legally qualified judges and magistrates) - body that resolves disputes about the law.
Why is the Monarch part of the legislature?
Because they must always give royal assent before a bill that has passed through Parliament becomes an Act of Parliament (by Convention).
What is the difference between a Federal and Unitary Constitution?
A Federal Constitution has a division of power existing between the Central and Regional Government, whereas a Unitary Constitution has a single sovereign legislative body with power concentrated at its centre.
N.B. As a Unitary Constitution, Westminster Parliament has the competence to legislate for the whole of the UK at all levels.
What are the 3 core principles of the UK’s Constitution?
Rule of Law
Separation of Powers - ‘checks and balances’ concept provides powers to the other branches to ensure that no one branch may exert an excessive amount of power.
Parliamentary Supremacy - legislation enacted by Parliament takes precedence over common law.
What are the key elements of the Rule of Law?
Laws should be clear - citizen to be punished only for a clearly defined breach of the law.
Legal certainty - laws should not operate retrospectively and a citizen should not be punished for an act that was not a crime at the time they carried out that act.
Equality before the law (between citizens and public officials)
The government is prevented from exercising arbitrary power (PS)
The government can be held accountable for its actions (JR)
Independence of the judiciary is maintained, preserving the separation of powers.
What are the 4 principal sources of the UK Constitution?
Acts of Parliament (N.B. Each Act may be repealed by an ordinary Act of Parliament, just as with any other Statute).
Case law - common law, JR, statutory interpretation
The royal prerogative - what remains of the absolute powers that were previously exercised by the Monarch and have not been removed by Parliament (mainly covers Foreign and Domestic Affairs areas).
Constitutional Conventions - non-legal rules of behaviour that are considered to be binding but are not legally enforceable by any judicial body.
What key principles of our constitution are derived from the common law?
Residual freedom - citizens are free to do or say whatever they wish unless the Law (primarily expressed through Acts of Parliament) state that such an action or statement is prohibited.
Exercises of power by the State (e.g. police officers) must have legal authority to be lawful.
Legal disputes should be resolved by the judiciary.
Who is responsible for the exercise of prerogative powers?
The Monarch is legally responsible but most of these powers are by convention exercised by the PM and other government ministers on the Monarch’s behalf.
Can Acts of Parliament remove prerogative powers?
Yes - and prerogative powers cannot be used in a way that contradicts a statutory power.
What happens if Parliament introduce a Bill that breaches a recognised convention?
The courts will recognise this but will not be stopped from applying the legislation.
Breaches of conventions lead to political, not legal sanctions.
List some examples of Constitutional Conventions?
The Monarch plays no active role in matters of government, and legal powers that are vested in the Monarch are exercised on their behalf by the elected Government of the day.
The Monarch will appoint as PM the person who is best able to command the confidence of the HOC.
Individual ministerial responsibility
Collective cabinet responsibility
Ministers and Members of Parliament do not criticise individual members of the Judiciary in public.
Members of the judiciary do not play an active part in political life.
The Monarch will not refuse Royal Assent to a bill which has been passed by HOC and HOL.
The Salisbury Convention.
The Sewel Convention.
Define the concept of individual ministerial responsibility?
Government ministers are individually accountable to Parliament for the running of their department’s administration and their personal conduct, and must resign if a serious conflict of interest or failure arises.
Define the concept of collective cabinet responsibility?
The Cabinet is collectively responsible to Parliament for the actions of Government as a whole, and the Government must retain the confidence of the HOC. A government that is defeated on a vote of ‘confidence’ in the HOC must resign.
The Cabinet must be united in public of support of government policy, and so a cabinet minister must resign if he/she wishes to speak out in public against such policy.
Cabinet discussions must remain secret.
What is the Salisbury Convention?
The unelected HOL will not reject a bill giving effect to a major part of the democratically elected government’s manifesto.
Instead, HOL to use its expertise to make small amends to the legislation it disagrees with.
What is the Sewel Convention?
The UK Parliament will normally only legislate on a matter that has been devolved to the Scottish Parliament if the Scottish Parliament has given its consent.
N.B. This encourages the UK Parliament to seek consent for legislation on devolved matters but does not bind them or affect their PS ability to make laws for Scotland.
Why have constitutional conventions developed?
To limit the wide legal powers of the Monarch without the need for major constitutional upheaval.
To ensure that the Government is accountable to Parliament for its actions.
To maintain the separation of powers between the different branches of State.
What happens if Parliament passes an Act that breaches a Convention?
The Act might be unconstitutional, and the courts will acknowledge the existence of conventions, but the courts will not refuse to apply it for that reason.
What is the sub-judice rule?
A formal law of Parliament designed to prevent members of the executive and legislature from commenting on ongoing court procedures.
List the main functions of Parliament?
Scrutinising the work of Government
Passing legislation
Debating the key issues of the day.
Approving funding for Government to carry out statutory duties
Providing the personnel for Government (from HOC and HOL).
Describe the relationship between the HOC and HOL?
HOC is more important as the members are directly elected by the people at a general election, so HOC has more democratic legitimacy than the currently unelected HOL.
Explain the stages of the legislative process?
First reading (purely formal) - title of the bill is read out and then printed and published.
Second reading - main debate in HOC on general principles of the Bill.
Committee stage - 16-50 appointed public bill Committee members examine the bill in detail and make amends to clauses if needed.
Third reading - Consideration of the bill as amended, brief debate and only verbal amends can be made. Final chance to vote on the bill; often MPs do not.
HOL proceedings - can be sent back and forth to HOC if amendments necessary. In practice, if the HOC disagrees with HOL amendments and restores original wording, Lords will usually accept it.
Royal Assent - once received, bill becomes Law as Act of Parliament.
N.B. The Act may suspend its ‘commencement’ until a future date, determined by delegated legislation made under the Act.
What happens if the HOL rejects a bill that has passed the HOC?
The bill may still eventually become law as a consequence of the provisions of the 1911 and 1949 Parliament Acts.
What are recall petitions?
Process whereby an MP can be removed from their seat and by-election to follow. May be opened if;
- MP convicted of an offence and receives a custodial sentence.
- MP suspended from the HOC for at least 10 sitting days.
- MP convicted of providing false or misleading information for allowances claims.
Once triggered, an MP will be removed from their seat and a by-election called if at least 10% registered voters sign the petition within 6 weeks.
What is the difference between private and public bills?
Private - relate to matters of individual, corporate or local interest (affecting particular persons or a locality).
Public - Government bills, private members’ bills.
Expand on the 2 forms of public bill?
1) Government bills - usually submitted to Parliament as part of the Government’s legislative programme; usually listed in the King’s Speech at the start of a parliamentary session.
2) Private members’ bills - introduced by MPs or Lords who are not government ministers.
What is the requirement for an early Parliamentary general election?
A vote of no-confidence or a 2/3 vote by MP’s in favour of an early election or an Act of Parliament to supercede this.
What are the key elements of Dicey’s description of Parliamentary Sovereignty?
Parliament is the key law-making body and can enact or repeal laws on any subject.
No Parliament may be bound by a predecessor or bind a successor - a particular Act of Parliament cannot be entrenched, or be given a ‘higher’ status than any other Act. Given effect through the doctrines of express and implied repeal.
No other person or body may question the validity of an Act of Parliament or declare it unlawful.
What is the Enrolled Act rule?
Once an Act of Parliament has been entered onto the Parliamentary roll, the courts will not question the acts validity or declare it void.
List some examples of the unlimited legislative competence of Parliament?
- Statute may override international law.
- Statute may override constitutional conventions.
- Statute may alter the constitution (N.B. has been done with Acts of Union 1706-07, HRA 1998 etc).
- Statute may operate retrospectively.
- Statute may abolish or curtail aspects of the royal prerogative.
What happens in the event of inconsistency between an earlier and later Act of Parliament?
Later Act will revoke the earlier Act where the inconsistency is.
What is the effect of a declaration of incompatibility on legislation?
Does not invalidate but puts pressure on the Government to amend or repeal the incompatible provisions.
List the Domestic limitations on Parliamentary Supremacy?
1) The impact of devolution - Parliament has granted legislative powers to Scotland, Wales and N.Ireland through Devolution laws, but the UK retains control over ‘reserved matters’ e.g. defence.
2) The concept of constitutional statutes that cannot be repealed.
3) The ‘manner and form’ debate.
4) The Rule of Law - in extreme circumstances may trump PS e.g. if Parliament enacted legislation to abolish JR or the role of the courts, Parliament may be willing to strike down such legislation.
5) Henry VIII powers.
6) Act of Union - UK was formed by these Acts which are viewed by some as a partial ‘written constitution’ constraining Parliament’s power to legislate contrary to these Acts.
What is the test for constitutional statutes that cannot be repealed?
a) The statute must condition the legal relationship between citizen and state in some general, overarching manner; or
b) The statute must change the scope of fundamental constitutional rights.
What is the ‘manner and form’ debate?
Can a Parliament bind its successors as to the procedure to be adopted when repealing legislation enacted by that earlier Parliament?
Arguments in favour;
- Parliament Acts 1911 and 1949; show Parliament can change how laws are made (e.g. bypassing the HOL).
- Precedent for procedural change: if Parliament can make legislation easier to pass, it can also make it harder e.g. requiring supermajorities or referendums.
- Entrenchment possibility: Parliament can require future repeal only under stricter conditions.
Arguments against;
- UK Parliament is supreme; unlike NSW, UK Parliament was not created by another authority, so cannot be bound.
- No Parliament can bind its successors.
- Referendum requirements in recent devolution acts (Scotland, Wales, NI) may not be upheld by courts.
List the 2 European limitations on Parliamentary Supremacy?
1) Arise from UK’s membership of the EU.
2) Incorporation of the ECHR into UK Law.
Explain the European Limitation 1) Arising from UK’s membership of the EU?
If conflicts arose, EU law would prevail. This constrained Parliament as laws contradicting EU obligations could not be passed.
Direct and indirect effect - EU laws could take immediate effect in MS, even if not specifically incorporated domestically.
Retained EU law post-Brexit continues to influence UK law.
Explain the European limitation 2) Incorporation of the ECHR into UK Law?
UK courts to interpret laws in line with ECHR rights as far as possible (s3). This means judges have stretched to give statutes meanings that Parliament may not have originally intended.
HRA does not eliminate PS, but constrains it by embedding ECHR principles into the legislative process.
What are the main Parliamentary privileges?
Freedom of speech - MP’s are immune from civil and criminal proceedings regarding anything they say in Parliamentary proceedings. This is based on Article 9 of the Bill of Rights (freedom of speech), and is widely interpreted by courts.
The right to control its own composition and procedures (‘exclusive cognisance’). Courts will not question the validity of an Act on the basis that correct procedures were not followed.
What is the key difference between the UK and a federal state?
The UK Parliament has delegated certain powers to the devolved legislatures and legally could revoke those powers as UK Parliament has not given up those powers.
What has devolution in Scotland allowed the Scottish Parliament to be able to do?
Pass primary legislation; once the Scottish Parliament has passed a bill and it has received Royal Assent, it is known as an Act of the Scottish Parliament.
Explain the ‘reserved powers’ model?
The Scotland Act 1998 devolved all matters to the Scottish Parliament other than reserved matters, meaning the Scottish Parliament has the power to legislate on all matters that are not expressly reserved to Westminster (e.g. foreign policy, defence, responsibility for the Constitution).
This means the Scottish Parliament has the power to legislate on a wide range of matters, including health, education, much of civil and criminal law, and local government.
N.B. The model applies in Wales and N.Ireland but slightly different reserved powers.
What is a legislative consent motion?
Motion by which the Scottish Parliament consents to the UK Parliament legislating on devolved matters, often in cases involving technical or overlapping issues.
N.B. Avoids the need for 2 pieces of legislation, an Act of the UK Parliament and an Act of the Scottish Parliament.
How does the SC handle acts of devolved legislatures that exceed legislative competence?
It may invalidate such Acts that exceed legislative competence, cover reserved matters or violate the ECHR.
Does the Scottish Parliament have the power to amend or repeal acts of the UK Parliament?
Yes; provided the subject-matter falls within its legislative competence.
Any such amendment would only be effective in relation to Scotland.
Where a provision in an Act of the Scottish Parliament could be read as being outside its legislative competence, how is such a provision to be read?
As narrowly as is required for it to be within competence, if such a reading is possible.
What is required before a bill is introduced to the Welsh Senedd?
The minister introducing the bill and the Presiding Officer must state whether the bill is within the Senedd’s competence.
N.B. Courts are the final arbiter of whether legislation passed by the devolved legislatures are within their competence.
Explain the ‘reserved powers’ model in Wales?
Senedd has the power to pass legislation on all matters that are not explicitly reserved to the Westminster Parliament, such as defence, foreign affairs and immigration.
N.B. Criminal justice is a reserved matter in Wales, as is taxation.
Where any provision of an Act of the Senedd could be read in such a way as to be outside or inside the Senedd’s legislative competence, how should it be read?
Interpreted as being inside its competence.
What is the procedure of passing government bills in Wales?
The Welsh Government sends the bill and related documents to the Senedd, and the bill then undergoes scrutiny.
1) Consideration and agreement of the bill’s general principles.
2) Detailed consideration of the bill and any changes by a committee.
3) Detailed consideration of the bill and any changes by the Senedd.
Report stage; an optional stage to make amendments (if required).
4) A vote by the Senedd to pass the bill’s final text. Once the bill is passed, it is sent for Royal Assent after about 4 weeks (this period gives a window for law officers to refer the question of whether the bill is within the Senedd’s legislative competence to the SC).
Can Welsh ministers enact secondary legislation?
Yes; where authorised to do so by a parent act e.g. Act of Westminster Parliament or Act of the Senedd Cymru.
What are the 3 ways in which the question whether legislation passed by a devolved legislature is outside its legislative competence can come before the SC?
1) Through a reference by a devolved or UK law officer to the SC. The law officers have the power to refer a bill that the devolved legislature has passed but has not yet received Royal Assent to the SC for a ruling on whether the bill is within the legislature’s competence.
2) Through an appeal from certain higher courts in England and Wales, Scotland, and N.Ireland.
3) Through a reference from certain appellate courts.
Who has the power to refer a bill to the SC?
Both the UK Law Officers (the Attorney General) and the chief law officers of each of the devolved governments (e.g. Lord Advocate in Scotland).
How does the 1999 memorandum of understanding help co-ordinate the relationship between the UK Government and the devolved administrations?
It created the Joint Ministerial Committee (JMC), a set of committees that consists of ministers from the UK and devolved governments; aimed to provide central co-ordination of the overall RS and to;
- Consider non-devolved matters that affect devolved responsibilities.
- Consider devolved matters if beneficial to discuss their respective treatment in the different parts of the UK.
- Keep the arrangements for liaison between the governments under review; and
- Consider disputes between the governments.
What 2 active sub-committees does the JMC have?
1) JMC Europe
2) JMC EU Negotiations (JMC - EN).
