Constitutional Flashcards
Magna Carta
Year
What it did
1215
Govern according to law
Consent of governed
No one is above the law
Act of union
Year
What it did
1706-07
Unite England and Scotland
Preserve Scottish legal system and church
Bill of rights
Year
What it did
1689
Limits power or crown
Parliament meet regularly and freely
Parliament acts
Year
What they did
1911 and 1949
Leg can be enacted without the lords
PACE
Year
What it does
1984
Provides police with powers of arrest, search and detention with procedural safeguards
Public order act
Year
What it did
1986
Limits of marches and meetings in public places
Human rights act
Year
What it did
1998
Allows challenge in national courts
Constitutional reform act
Year
What it did
2005
LCJ not head of judiciary
Lords can elect own speaker
European Union withdrawal act year
What it did
2018
Repealed ECA 1972
Created retained EU law
Royal prerogative
Declare war Deploy army Treaties Recognition of states Summon parliament Appoint and dismiss ministers Royal assent Pardon and mercy Public honours Setting up bodies to disperse funds made available by parliament
How to dispense of an obsolete convention
Once it is obsolete it can be dispensed of without any formal steps
Effect of included conventions in statutes
No effect- it does not turn them into legal rules
No legal remedy if breached
Effect of an Act breaching a conventions
act might be unconstitutional but the court won’t refuse to apply it
What are customs
Internal rules, procedures of parliament
Individual ministerial responsibility
Ministers are responsible to parliament for running their department
And their personal conduct
No conflict between ministers public duties and private interests of should resign
Collective cabinet responsibility
Cabinet is collectively responsible to parliament for actions of gov
Gov must retain confidence of commons or resign
Cabinet must be united in public support of gov and resign to speak out
Cabinet discussions must remain secret
Examples of Conventions
Royal assent of bills
Monarch is part of exec
Gov is Queens and she can appoint or dismiss it
Monarch plays no active role in gov matters
RP is exercised by ministers
Monarch won’t refuse royal assent
Gov ministers must be memebers of commons or lords
PM must be member of commons
Individual ministerial responsibility
Collective cabinet (or ministerial) responsibility
Salisbury convention
Sewel convention
Judiciary aren’t politically active ministers
MPs don’t critique judiciary in public
Elements of the rule of law
No arbitrary exercise of power Laws made properly Laws should be clear certain not retrospective accessible Punished only for clear breach of law Equality before the law Independent Impartial judiciary
Parliament supremacy / sovereignty
Courts accept that leg enacted by parliament takes precedence over common law
Parliament can pass any law or wants
What is royal prerogative
What terrains of the absolute power of the monarch
What if Royal prerogative conflicts with statute
Acts of parliament can remove Royal prerogative
What is habeas corpus
Allows a detained person the right to have the legality of their detention tested by a court
Residual freedoms
Citizens can do anything unless the law states it is prohibited
Number of MPs
650
Who is the chair of the commons
The speaker
They are impartial
Max number of Commons MPs allowed to also be ministers
95
Number of hereditary peers
92
How are life peers appointed
By monarch on advice of PM
What are lords temporal
Life peers and hereditary peers
What are lords spiritual
Senior clergy of C of E
How often must parliament be summoned
Every 3 years
How to trigger an early general election
Vote of no confident and no new gov in 14 days
Or
2/3 vote of MPs
When does a parliamentary session end
When prorogued by royal decree
What happens to bills not passed when parliament session ends
They lapse or can be carried over subject to agreement
Enrolled act rule
Once act is entered into the parliamentary roll the courts will not question the validity of the act or Hold it to be void
Can courts disregard an act or investigate procedure of fraud in parliament
No
2 types of public bills
Gov bills and private member bills
What are public bills
Bills that alter general law (law that concerns public as a whole)
What are private bills
Private bills relate to individual, corporate or local interests
Can parliament scrutinise and amend SI
Can scrutinise but cannot amend
2 ways to scrutinise an SI
- Negative resolution procedure
2. Affirmative resolution procedure
Negative resolution procedure
Gov must annul the instrument if either house pass a resolution rejecting it within 40 days of it being laid before parliament
affirmative resolution procedure
SI cannot come into effect or cease to have effect unless one or
Both houses pass resolution approving it
Can only English and Welsh MPs vote on matters that only impact England and Wales
Can veto at committee stage but all MPs must vote at other stages
Can a statute override international law, conventions and alter the constitution
Yes
Implied repeal
An act will impliedly repeal provisions of an earlier act to the extent of inconsistency between the two
Can statute abolish or curtail royal prerogative
Yes
Can a statute operate retrospectively
Yes it can reserve the outcome of a court judgement
Which committee scrutinises SI
Joint select committee on SI (represents lords and commons)
Elements of parliamentary privilege (both houses)
Freedom of speech: should not be questioned in court or outside parliament. Immunity from legal proceedings regarding proceedings in parliament
Right to control it’s own composition and procedures, if any are breached, the consequences and discipline of MPs
Committee of privileges (a commons select committee)
Considers specific matters relating to privileges referred to it by the house
HRA s10
Remedial order following D of I. If there are compelling reasons but not obligated and if they chose not to then litigant had no redress
S19 HRA
Statement of compatibility or state they can’t make one but wish to proceed anyway
Why is the U.K. unitary and not federal
Because U.K. gov can legally remove the delegated powers from devolved gov
Can Uk parliament can pass for devolved countries
Yes
The Scotland Act 1998
Created Scottish parliament and executive (not Scottish gov)
Devolved to Scotland all matters except reserved matters
What are Scottish reserved matters
Constitution
Foreign policy
Defence
Scottish tax powers
Set different IT rate and tax bands
How often are elections for Scottish parliament
Every 4 years
Can Scottish parliament pass primary leg
Yes
Bills still need royal assent
How to trigger election of Scottish parliament
2/3 vote or they don’t nominate a fm within 28 days of previous fm leaving
Can UK parliament override devolved leg
Yes, still supreme
Does devolution impact parliamentary supremacy
No
U.K. parliament is still supreme
What is a devolved gov legislates outside devolved competencies
It is void
If unclear rule in favour of validity
Limits on devolved govs power to legislate
Reserved matters
Cannot legislate contrary to EU law
Cannot legislate on territory other than its own
Who can refer a question to SC to see if a devolved bill is valid / within competencies
Att-gen
Lord advocate
Advocate general
What must ministers state regarding a bill on devolved topic
State bill is compatible with devolved competence
Legislative consent motion
Scottish parliament will pass this motion when U.K. parliament legislate on a devolved matter because Sewel convention requires consent
What did Miller say about Sewel convention
U.K. parliament doesn’t require consent of Scottish parliament before passing leg to leave EU because courts won’t enforce convention
Is criminal justice a devolved matter
Yes in Scotland and NI but not in Wales
U.K. gov and devolved gov MOU 1999
To coordinate relationship
Created joint ministerial committee to consider non devolved matters that affect devolved responsibilities and vice versa, consider relationship disputes, devolved matters if discussion is beneficial
Set up in Wales
Welsh parliament / Senedd (welsh legislature) and welsh gov (the exec)
How old do you have to be to vote in senedd election
16
How often are senedd elections
Every 5 years
Can welsh gov pass primary leg
Yea reserved powers model
Retained matters for welsh gov
Defence
Foreign affairs
Immigration
Good Friday agreement (Belfast agreement)
United Ireland only through peaceful means
Referendum for NI to leave U.K.
consent of majority to unite Ireland
3 strands of good Friday agreement
Democratically elected assembly with power sharing exec
British/ Irish council to promote relationship
North/ south council to develop policies on matters of mutual interest
Can NI pass primary leg
Yea but need royal assent
Limits on NI power to legislate
Some entrenched leg they cannot amend eg HRA
Need S of S permission for reserved matters which may be devolved in future
Cannot leg on excepted matters that are always to be reserved for U.K. parliament
Leg that discriminated against persons, class of persons on grounds of religion or political believed is outside competence
3 ways devolved leg can be brought to SC to check if within competence
Reference by devolved or UK law officer to SC when BIll had passed but not yet received royal assent
Appeal from higher courts in England Wales Scotland or NI
Reference from appellant courts
Composition of NI exec
Power sharing between communities in NI
FM is from largest party and deputy FM second largest party
They hold office jointly so if one ceases so does the other
Which members of the exec cannot be MPs
Civil servants
Army members
Police
Does the commons have to debate it before gov commits troops to military operations
A new convention may be developing
How does parliament scrutinise gov
Question MPs and PMQ Debates General committees Select committees Parliamentary and health service ombudsman MPs can reject gov bills
Are decisions of the parliamentary and health services ombudsman binding on gov ministers
No
What are select committees
Appointed for life of parliament to examine expenditure, administration, and policy of main gov dept. Only backbench MPs serve on them, report to commons, consider action and question ministers
How are SC judges appointed
Select committee elects people for recommendation
Appointed by queen on PM recommendation
PM gets recommendation for LC
How are the following appointed LCJ Court of appeal judge Master of rolls President of family and QBD HC judges
By queen on recommendation of PM
PM gets recommendation from LC who must consult LCJ
Constitutional reform and governance act 2010
Gives legal effect to resolution of commons or lords that a treaty should not be ratified
Cannot go against commons resolution
Go against lords but publish explanatory statement
How are treaties ratified
Negative resolution procedure so no debate or vote required for ratification
Does the constitutional reform and governance act 2020 impact RP power to ratify treaties
It is still RP power but commons can prevent gov exercising it
How does the judiciary hold the exec to account
JR
Can RP be extended? Can new RP powers be created?
No
Who decides extent of RP? (Whether RP powers exist)
Judiciary
Is RP immune from JR
No unless non-justiciable area of high policy, national security or defence
How is judicial independence upheld
S3 constitutional reform act 2005- gov is under duty to uphold independence and ministers shouldn’t influence decisions
Judicial independence from exec
Appointments by independent judicial appointments committee
Security of tenure for senior court judges - hold office during good behaviour
Immunity from civil action - cannot sue judge for error when carrying out duties
Convention- exec don’t criticise judges and judges don’t engage in political activity
Salary determined by independent body, paid from consolidated fund with permanent approval
Sub judice rule - parliament and gov refrain from discussion matters currently or soon to be heard at court
