Constitution of the United Kingdom

Question 1

What is a constitution?

Answer 1

A code of rules which aspire to regulate the allocation of function, powers and duties among the various agencies and officers of government and defines the relationship between these and the public.

Question 2

What kind of constitution does the UK have?

Answer 2

An uncodified constitution.

Has evolved over centuries and will continue to.

Made up from a combination of legislation, case law and accepted practices.

Is flexible.

Question 3

How can the functions of the state be divided?

Answer 3

• The legislature
• The executive
• The judiciary

Question 4

Where do constitutional rules come from?

Answer 4

• Legislation
• Case law
• Constitutional Conventions

Question 5

What are constitutional conventions?

Answer 5

Rules about the conduct of government which fall short of being enforceable laws but are still agreed upon and respected.

E.g. King does nor refuse royal assent to Bills of Parliament once they have passed the House of Commons and House of Lords.

Question 6

What did the Magna Carta seek to establish?

Answer 6

That the monarch was not above the law

Question 7

Principles from the Case of Proclamations

Answer 7

• The king cannot change any part of the common law, or statute law or customs of the realm
• the King hath no prerogative but that which the law of the land allows him

Question 8

What was the effect of the Bill of Rights 1689?

Answer 8

• affirmed principles in Magna Carta
• limited royal power
• reaffirmed certain civil rights
• seen as establishing the concept of parliamentary sovereignty

Monarch was never again able to overrule an Act of Parliament

Question 9

What was the effect of the Act of Settlement?

Answer 9

It created an independent salaried judiciary

Question 10

What are some of the monarch’s remaining powers?

Answer 10

Note: these are limited by constitutional convention

• appointing the prime minister
• dissolving Parliament in some circumstances
• Giving Royal Assent to acts of Parliament

Question 11

What is the royal prerogative?

Answer 11

Refers to the powers that are theoretically and nominally invested in the monarch and do not require the consent of parliament to use.

In practice, the monarch does not act on his own initiative but only on the advice of the Prime Minister or other senior government minsters.

Some remaining prerogative powers are:
- summon and prorogue Parliament
- Give pardons
- Issue passports
- Mobilise the armed forces and declare war
- Negotiate treaties

Question 12

What is the legislature?

Answer 12

The body that enacts new law and repeals or amends existing law. This is the House of Commons and the House of Lords.

The King’s role is limited to granting ‘royal assent’ to new laws.

Question 13

What is the executive?

Answer 13

This is the body or bodies which formulate and implement policy.
- Prime Minister and Cabinet
- government departments
- politically neutral civil service
- other local govt bodies

Question 14

What is the judiciary?

Answer 14

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 and the state

Question 15

Examples of written sources of constitutional rules

Answer 15

Acts of Parliament:
- Magna Carta 1215
- Bill of Rights 1689
- Human Rights Act 1998

Judicial precendent:
- Entick v Carrington - state cannot exercise power unless that power is expressly authorised by law

Question 16

Principles of constitutionalism

Answer 16

• Exercise of government power must be within legal limits and the 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 17

Who sits in the House of Commons?

Answer 17

A representative elected body of 650 members from different political parties

Question 18

Who sits in the House of Lords?

Answer 18

An unelected body of appointed life peers, hereditary peers and bishops

Question 19

What are the key functions of Parliament?

Answer 19

• Debate and scrutinise proposed legislation
• Propose amendments to legislation
• Extract information from the executive and hold it to account on its policies and actions
• Scrutinise public expenditure and taxation

Question 20

Functions of HC and HL

Answer 20

Only the House of Commons is responsible for making decisions on public finances e.g. changes to taxes. - HL can consider but not block or amend this legislaiton

House of Lords may scrutinise and make amendments to general legislation approved by the House of Commons

Most bills require approval by the House of Lords before the Sovereign gives royal assent and the Bills become Acts of Parliament. - usually this means amendments are made rather than a defeat of the Bill entirely.

Question 21

What was the effect of the Constitutional Reform Act 2005?

Answer 21

Addressed concerns about the separation of powers between the judiciary and the other two bodies of state.

• Reform of the office of the Lord Chancellor so that judicial functions have largely been taken over by the Lord Chief Justice.
• Establishment of the Supreme Court as the highest appeal court in the land (2009) ending the House of Lords’ judicial function
• Creation of the Judicial Appointments Commission for the appointment of judges, prior to this judges were appointed on the ‘advice’ of the Lord Chancellor.

Question 22

Basic structure of the executive

Answer 22

Monarch

Prime minister and cabinet

Government departments

Question 23

What are the powers of government departments?

Answer 23

Derive their powers to administer the state from two sources:

• mostly from statute
• Or from powers recognised in the common law
• these powers include those from the royal prerogative (historic powers that have never been formally approved by Parliament, but they are recognised as legitimate)

Powers are exercised by senior government ministers in the name of the monarch

Question 24

Can ministers delegate power?

Answer 24

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

Minister will still be politically responsible for the use of this power but it is not unlawful to delegate. The delegation can be challenged in the courts if it can be argues that it was delegated to a civil servant of insufficient seniority to exercise the power.

Question 25

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

Answer 25

Government can only act if it is expressly authorised wither by statute or common law to do so.

If the government acts in excess of the powers it is given the Administrative Court will intervene - not of its own accord but if a claim is started against the government. (Judicial review)

Question 26

What are conventions relating to the legislature?

Answer 26

• House of Lords should defer to the House of Commons
• Financial Bills should only be introduced by a Cabinet Minister in the House of Commons
• House of Lords should not reject at a second reading any government legislation that has been passed by the House of Commons which carries out a manifest commitment - Salisbury-Addison Convention
• Westminster Parliament will not normally legislate with regard to devolved matters in Scotland, Wales or NI without the consent of the devolved administration - Sewel Convention
• House of Commons should be consulted before the government embarks on any major foreign policy initiatives.

Question 27

What is the Sewel Convention?

Answer 27

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

Question 28

What is the Salisbury-Addison Convention?

Answer 28

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

Question 29

What are conventions relating to the executive?

Answer 29

• Monarch acts in accordance with the advice given by his ministers
• Monarch will not exercise his strict legal right to refuse assent to Bills passed through Parliament
• Monarch will appoint as PM the leader of the political party which is able to command the confidence of the House of Commons
• The PM chooses the Cabinet Ministers
• 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 30

What is collective ministerial responsibility?

Answer 30

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. If they do not feel able to as a matter of conscience they should resign as minister.
• 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 31

What is individual ministerial responsibility?

Answer 31

Regulates how ministers should react if there has been a significant problem or failing in their department.

Used to be Minister would resign right away, but now distinction has been made based on:

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

2) Whether the failing was an operational one (civil servants fault) or a policy one (ministerial responsibility).

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

Question 32

Ministerial Code

Answer 32

• Selflessness
• Integrity
• Objectivity
• Accountability
• Openness
• Honesty
• Leadership

Ultimate arbiter in enforcing the code is the PM - independent advice may be sought - but it is the PM who should resign.

Question 33

Conventions relating to the judiciary

Answer 33

• Judges must not be politically active
• Parliament must not criticise the professional conduct of judges.

Question 34

What happens if political conventions are breached?

Answer 34

Conventions are not law and cannot be legally enforced.

Courts will recognise and protect conventions. However if there is a conflict between a convention and the law, the law will prevail. There may be political consequences for a breach.

e.g. court rejected the argument that the government was legally bound to seek the consent of the Scottish Parliament before triggering Article 50 (Brexit). (Sewel Convention).