Constitution of the UK

Question 1

What is the constitution?

Answer 1

Set of rules which directly or indirectly affect the distribution and exercise of sovereign power in the state,

Question 2

In relation to sovereign power who is the `sovereign’?

Answer 2

It is the Monarch but also the power of Government overall.

Question 3

Who is the legislature?

Answer 3

The body that enacts new law, repeals or amends existing law.

This is carried out by the HoL and HoC.

The kings role is to grant royal assent.

Question 4

Who is the Executive?

Answer 4

This is the body or bodies which formulate and implement policy.

In the UK, this consists of the Prime Minister and Cabinet, various government departments, a politically neutral civil service, and other bodies carrying out government functions at local levels e.g. county and district councils.

Question 5

Who is the Judiciary?

Answer 5

This is the body of judges of all levels of seniority, who are responsible for the enforcement of criminal and civil law and the adjudication of disputes between individuals, as well as between individuals and the state.

Question 6

Where do constitutional rules come from?

Answer 6

The UK does not have a constitution which is completely contained in a single document, it is “uncodified”.

It is contained in:

*legislation

*case law

*constitutional conventions

Question 7

What are some examples of Acts of Parliament that are constitutional?

Answer 7

The Magna Carta

The Bill of Rights

The Human Rights Act

Question 8

What are constitutional conventions?

Answer 8

Conventions are rules about the conduct of government which fall short of being enforceable laws but are still agreed upon and should be respected.

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

Question 9

What is the purpose of constitutional rules?

Answer 9

The purpose of a constitution is to regulate – and so make as predictable as possible the exercise of power by the state:

*Exercise of government power must be within legal limits, and government must be accountable in law.

*Power is dispersed between the organisations of the state, so power does not become concentrated in one body.

*The government is accountable to the people.

*The fundamental rights and freedoms of citizens are protected.

Question 10

What are the two houses in Parliament?

Answer 10

The HoC and the HoL

Question 11

What are the key functions of Parliament?

Answer 11

*Debate and scrutinise proposed legislation

*Propose amendments to legislation

*Extract information from the executive and hold it to account on its policies and actions

*Scrutinize public expenditure and taxation

Question 12

What is the HoC mainly responsible for?

Answer 12

Responsible for making decisions on public finances. The Lords can consider but not block or amend this legislation.

Question 13

What are the main functions of the HoL?

Answer 13

*May scrutinise and make amendments to general legislation approved by HoC.

*Most types of primary legislation require approval by the HoL. However, `Government defeats’ in the Lords when legislative proposals by the government are not accepted.

*This usually results in amendments to the legislation by government, rather than wholesale defeat of the Bill.

Question 14

What was the purpose of the Constitutional Reform Act 2005?

Answer 14

Until the Constitutional Reform Act 2005 (CRA), the most senior court in the UK was a committee of the HoL. The CRA was designed to address concerns that the separation of powers between the judiciary and the other two bodies of state was blurred.

Question 15

What does the Executive consist of?

Answer 15

The monarch

The Prime Minister and the Cabinet (senior government ministers called `Secretaries of State’)

Government departments (run by politically independent civil servants).

Question 16

Where do government departments derive their powers from?

Answer 16

*Mostly from statute

*Or from powers recognised in the common law

*These powers include those from the royal prerogative – these are historic powers that have never been formally approved by Parliament, but they are recognised as legitimate.

Question 17

Can ministers delegate their powers?

Answer 17

A power granted to a minister (usually by legislation) can be lawfully exercised by a government official (civil servant) working in the same department.

The minister will still be politically responsible for the use of this power, but it is not unlawful to delegate in this situation.

The delegation of power may still be open to challenge in the courts.

Question 18

What happens if the executive acts in excess of its powers?

Answer 18

The Administrative Court will intervene – not of its own accord, but if a claim is started against the government.

This is called judicial review.

Question 19

What is the local government responsible for?

Answer 19

Local authorities are responsible for implementing central government policies at the local level, as well as applying their own local policies.

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 20

What is the role of the judiciary?

Answer 20

To determine the outcome of legal disputes between individuals

To decide the appropriate punishment in criminal cases

In the case of the Administrative Court, to determine whether the government has lawfully exercised its powers.

Question 21

What act strengthened judicial independence and what did it impose?

Answer 21

The Constitutional Reform Act 2005 brought in the following key changes:

*Reform of the office of the Lord Chancellor, so that the judicial functions have largely been taken over by the Lord Chief Justice.

*Establishment of the SC as the highest appeal court in the land in 2009, with the ending of the HoL judicial function.

*Creation of the Judicial Appointments Commission for the appointment of judges. Prior to this, the King had appointed judges on the advice of the Lord Chancellor.

Question 22

What does it mean that judges are guardians of the consitution?

Answer 22

There is no separate and special constitutional court in the UK, and the questions of constitutional law are determined by the SC.

Question 23

How are constitutional conventions defined in the Cabinet Manual?

Answer 23

Rules of constitutional practice that are regarded as binding in operation but not in law.

Question 24

What are the conventions relating to the lesilature?

Answer 24

*The House of Lords should defer to the House of Commons.

*The House of Lords should not reject at second reading any government legislation that has been passed by the House of Commons which carries out a manifesto commitment (i.e. a promise to the electorate made in the course of a general election).

*Financial bills (e.g. relating to government expenditure and taxation) should only be introduced by a Cabinet minister in the House of Commons.

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

*Following the parliamentary vote on military engagement in Syria in 2013, (building on the 2003 vote in relation to war in Iraq), it is arguable that a new convention has emerged: that the House of Commons should be consulted before the government embarks on any major foreign policy initiatives involving the use of armed forces.

Question 25

What are the conventions relating to the Executive?

Answer 25

*The monarch acts in accordance with the advice given by his Ministers (e.g. with regard to proroguing Parliament).

*The monarch will not exercise his strict legal right to refuse royal assent to bills passed through Parliament. (If he did, this would completely undermine the democratic basis of our current democracy.)

*The monarch will appoint as Prime Minister the leader of the political party which is able to command the confidence of the House of Commons.

*The Prime Minister chooses the Cabinet Ministers (i.e. the heads of government departments).

*The Prime Minister and the Chancellor of the Exchequer should be MPs.

*After a ‘vote of no confidence’ by the House of Commons, the government will resign and advise the monarch to dissolve Parliament. This leads to a general election.

*The monarch should be asked for consent to proposed legislation affecting the interests of the monarchy.

Question 26

What are the twin conventions on ministerial responsibility?

Answer 26

Collective and individual ministerial responsibility.

Question 27

What is collective ministerial responsibility (CMR)?

Answer 27

CMR relates to the way in which government ministers should behave and operate as a collective whole. It has three components:

*Discussions between ministers (notably in Cabinet) should remain confidential.

*Once a policy line has been reached by ministers, all ministers must stick to it and maintain a united front (‘unanimity’). If they do not feel able to, as a matter of conscience, they should resign as a minister.

*The purpose of the united front is so that Parliament has confidence in the government. If it loses that, and Parliament passes a ‘vote of no confidence’, the government should resign.

Question 28

What is individual ministerial responsbility?

Answer 28

IMR is intended to regulate how ministers should react if there has been a significant problem or failing in their department.
Traditionally, ministers (as a figurehead for their department) would resign their posts if such a failing became apparent. However, now it depends on:

*The degree to which the minister was personally aware of / involved in / responsible for the mistake or failing

*Whether the failing was an operational one (considered to be the fault of civil servants or other government agency involved) or a policy one (considered to be a ministerial responsibility).

Ministers therefore ought to resign if there has been a significant policy failing but this convention is very much impacted by short-term political considerations.

Question 29

What is the Ministerial Code?

Answer 29

The ‘spirit’ of both the twin conventions is reflected in a ‘set of rules’ governing ministerial responsibility, the Ministerial Code.

Question 30

Is the Ministerial Code a convention?

Answer 30

This is not a convention, as it is a written document codifying certain standards of conduct for ministers. It is also not a ‘law’, as it is not enforceable in any court. Sometimes, it is described as a form of ‘soft law’.

Question 31

What are the seven principles of public life under the Ministerial Code?

Answer 31

o Selflessness
o Integrity
o Objectivity
o Accountability
o Openness
o Honesty
o Leadership

Question 32

Who is responsible for enforcing the Ministerial Code?

Answer 32

The person responsible for enforcing the Code is the Prime Minister – independent advice may be sought but the PM determines who should resign.

Question 33

What are the conventions relating to the judiciary?

Answer 33

Judges must not be politically active.

Parliament must not criticise the professional conduct of judges.

When the executive criticises the judiciary, either explicitly, or implicitly, it may be argued that they offend the principle of the separation of powers and the rule of law.

Question 34

What is the relationship between conventions and the law, which one will prevail?

Answer 34

We have seen that conventions are not law as such and cannot be legally enforced. However, the Courts will recognise and, where appropriate, protect conventions.

Where there is a conflict between the law and a convention, the law will prevail. Although the Courts cannot enforce conventions, there may be political consequences for breach.