Constitutional and Administrative and EU Law Flashcards
What are the feature of the UK Constitution?
It is an uncodified constitution that lacks one single definitive source containing its most important rules which can be legal sources as well as non-legal but politically binding. Highest form of law is an AoP
The UK also does not have any entrenchment - any law/rule can be changed by Parliament
What is Administrative Law?
decisions made by the government are made according to the law
What is Public Order Law?
(Public Order Act 1986) establishes that public authorities have the power to limit the right of people to protest
How is EU law retained in the UK?
UK part of the EU from 1973 - 31 jan 2020
EU law was a source of law through European Communitiies Act 1972.
At the end of transition period, UK left EU but retained EU law through:
European Union (Withdrawal) Act 2018
European Union (Withdrawal Agreement) Act 2020
What are the 3 Constitutional Principles of the UK?
- Parliamentary Sovereignty - highest form of law is an Act of Parliament and if change is desired only an ordinary AoP is required
- The Rule of Law - law should be applied fairly, no retrospective effect and government required to comply with law
- Separation of Powers - executive, legislature, judiciary
Give Examples of Acts of Parliament that have Constitutional Implication
Magna Carta 1297 - legal protection e.g. right to jury trial
Bill of Rights 1689 - sovereignty of Parliament over Monarch
Act of Union 1706 - created union of Scotland and England - both governed by one Parliament in Westminster
Parliament Acts 1911 - 1949 - Limited HoL right to veto Bills in the HoC
1998 - various Acts creating Scottish and Welsh Parliament and NI Assembly
House of Lords Act 1999 - removed all but 92 hereditary peers from taking a seat in HoL
Constitutional Reform Act 2005 - created SC and procedure for appointments to judiciary
Succession to the Crown Act 2012 - modernised the line of succession
Is there any power given to the Courts against an Act of Parliament?
Courts cannot strike down a AoP or consider it unconstitutional.
However, they can make a declaration of incompatibility when legislation breaches or is incompatible with rights protected by the HRA 1998.
Courts can interpret legislation and also expand on common law (judge-made law).
What is the royal perogative?
part of common law - powers that belong to the Crown although are now exercised by the government. Most have been replaced by statute.
What is the Ram Doctrine
These are powers given to government to carry out ordinary business of government which are nit explicitly authorised by statue or royal prerogative.
Why is asymmetric devolution?
Over the years, the some of the power of the UK Parliament has been devolved to Wales, Scotland and Northern Ireland with the creation of Welsh and Scottish Parliaments and the Northern Ireland Assembly .
It is ‘asymmetric devolution’ as the powers devolved differ slightly between the different nations and England does not have an equivalent form of devolution.
What is a unitary state?
A state, such as the UK, in which executive and legislative power is concentrated at the centre, as opposed to a federal state.
However, AoP have given Scotland, Wales and NI their own legislatures and governments.
What are some features of Parliamentary Sovereignty?
Parliament can make or unmake any law
Parliament can redefine itself
Cannot bind its successors
Ratification of International law has no effect on domestic law
Parliament can enact legislation that has effect beyond the boundaries of the UK
No one can set aside an AoP even if its unethical
What are some constraints on Parliamentary Sovereignty?
The People - HoC is elected
The Courts - courts can interpret legislation and may strain to do so
What is a practical impact of Parliamentary Sovereingity
The Enrolled Bill Rule - That courts do no question the validity of legislation. If Act has passed the Royal Assent then the courts will give effect to that legislation
Explain the Separation of Powers
SoP means the executive, legislature and judiciary in terms of their function and personnel
Executive:
Government which is appointed by the Monarch (which has prerogative power)
- Seeks approval by Parliament for new laws
Legislature:
- Parliament - House of Commons (elected) and House of Lords (unelected)
- Scrutinises Executive
- Makes Laws
Judiciary:
- Courts and Tribunals (also formally appointed by Monarch)
- can determine power of respective bodies within constitution
- can check on executive through judicial review
Explain what is the Rule of Law
- That the government act under lawful authority of its actions.
- No Punishment without Breach and Punishment according to the Law
- No Person is Above the Law
- As a rule, legislation cannot be applied retrospectively (although there has been exceptions e.g. War Damages Act 1965 - compensation not owed)
- law must be accessible and fair
- must resolve civil disputes without disproportionate costs and conflicts
Exceptions:
- Parliamentary Privilege: statements said in Parliament cannot be challenged in court
- Rule of law is not absolute but a principle that informs the law
- means under theory of doctrine of parliamentary sovereignty rule of law can be departed from
How is the House of Commons composed
Formed of 650 MPs - nearly all belong to a political party
Largest Party - Government - the PM and Cabinet
2nd Largest Party - His Majesty’s Loyal Opposition and leader of party becomes leader of opposition and supported by Shadow Cabinet
Speaker - chosen by all Mps and maintains order during debates and ensure compliance with procedure. Speaker must become politically impartial
Elections for HoC are held 25 days after Parliament is ‘dissolved’.
By-elections held if seats become vacant though death or retirement
What is the process of Dissolution
Fixed Term Parliament Act 2014 provided fixed year terms BUT
REPEALED and replaced by
Dissolution and Calling of Parliament Act 2022
- Parliament must dissolve five years after the date it first met
- it can be dissolved earlier by the Monarch through royal prerogative (happens after request from PM if their party loses vote of no confidence or if they have a large majority)
What are the Qualifications for Membership in Parliament
Anyone can stand as a candidate but seat cannot be taken if:
under18
non-Commonwealth citizen
Member of HoL
You are banned if:
- member of judiciary - HC, CoA, SC
- civil servants
- armed forces + police forces
- members of parliament/legislature outside commonwealth including EU Parliament
What is the Recall of MPs Act 2015
Constituents can recall their MPs if they have:
been convicted of a offence and sentenced to imprisonment
suspended by the HoC for misconduct for 10 days
Found guilt of false/misleading evidence
How is the House of Lords composed
unelected and around 800 members who can be:
Hereditary peers - (Duke, Earl, Viscount, Baron) titles passed down through family - HoL 1998 means only 92 seats allowed
Life peers: majority in chamber and appointed by the Monarch on the advice of PM. given rank of Baron. dont pass down to family.
Lord Spirituals: 26 Bishops of Church of England
Law Lords - formal title is Lord of Appral in Orindary, these were judges appointed when HoL was highest appellate court in UK. this role is replaced by SC but some law lords remain.
How can a Bill be passed
a bill must pass the House of Commons and House of Lords and receive Royal Assent before the end of a session (which last 12 months starting May) or else it is lost - unless one of the houses decide to ‘carry-over’ the bill.
How long do Parliament sessions last
Parliament starts a session each May and it can last 12 months. This is marked with the Kings Speech outlining governments proposals
What is prorogation?
This is a royal prerogative that allows a Parliamentary session to end and a new one to begin. Power must be exercised reasonably.
What is the Legislative process in House of Commons
The Process for HoC and HoL is the same - Bill starts at House it is first considered
First Reading: formality that introduces Bill with explanatory notes outlining governments intentions
Second Reading: first opportunity for principles to be debates
Committee Stage: bill is scrutinised line by line and amendments can be tabled
2 forms of committee:
Public Bill Committee:
16-30 MPs with political parties represented proportionate to share of seats
Committee of Whole House:
for urgent, constitutionally important or uncontroversial Bills
Report Stage
removed from committee and reconsidered in Chamber for all MPs to raise concerns on policy
Third Reading
Final review and brief before other house takes on first reading
Consideration of Amendments
Royall Assent
What happens to a Bill that passes the Third Stage in both Houses
There will be a Consideration of Amendments
Bills are amended heavily and these amendments need to be considered in the House that first considered the Bill. If amendments not accepted then they can me removed or counter amendments can be sent to the second House. The back and forth is repeated until text is agreed upon.
Note: HoL usually gives way to the HoC
What (and Why) are the limits to the House of Lord
Government lacks majority in House of Lords. HoL can force government to accept amendments they dont want and can reject a Bill entirely
Limits:
The Salisbury Convention - HoL will grant second reading to Bill and not block legislation if it was made in the elected gov manifesto
Suspensory Veto Under Parliament Acts 1911-1949
if HoL block legislation already passed in HoC and it is reintroduced in the second session and blocked again, it will be sent to Monarch for Royal Assent.
What is a Commencement Provision?
Legislation does not usually come into force straight after Royal Assent
Legislation will include a commencement provision giving power to the government to bring it into force at a later date.
This is a type of secondary legislation
What is a sunset clause?
a sunset clause means that some provisions or all of an Act expires on a certain date.
What is a Secondary Legislation, how is it enacted?
Legislation made by the government under the authority of an Act of Parliament
How is Secondary Legislation enacted?
2 main procedures to enact it:
Negative Resolution Procedure
- draft is laid out before HoC and HoL
- legislation will take effect 40 days after this unless either House rejects it
- no amendments can be made
Affirmative Resolution Procedure
- draft is laid out before the Houses
- both Houses must vote in favour of it for it to become effective
- can be debated in chamber by HoC
- no amendments can be made
What are Henry VIII Powers
powers granted to the government to amend primary legislation (in practise to make minor changes)
can be controversial as breach of separation of powers
Can Secondary Legislation be challenged?
As its made by government, not Parliament, secondary legislation can be struck down by the courts if it goes beyond the power granted to the government
What Privileges does Parliament have
Parliamentary Privilege - ensures freedom of speech in Parliament without being sued by the courts
However, this does not stop courts from referring to the official record of debates in Parliament to help interpret legislation as intended
What is the Sub Judicie Rule
in return for parliamentary privilege, Parliament must respect courts and legal processes:
MPs must not mention cases which are currently before the courts during debates - concern that it may effect the outcome of the case
What is the concept of the ‘Crown’ ?
Government is carried out in the name of the Crown. Crown encompasses the executive (the government).
What is the role of the Monarch?
Head of State of the Commonwealth, Head of Armed Forces, Head of Church of England, Defender of Faith
What principles determine the scope of Royal Prerogative Power?
- No new prerogative powers can be created (Bill of Rights 1689 made clear Parliament was sovereign)
- Statute takes precedent over perogative power
- Cannot be used to thwart intention of Parliament (e.g. gov cannot decide to never bring a legislation into force after royal assent)
- Cannot be used to change the law
- Statute does not Bind Crown unless stated or implied
- Courts more likely to review prerogative now
What types of prerogative powers remain today?
- Ministerial Powers
- Personal Powers
- Miscellaneous/Archaic Powers
What are Ministerial (Prerogative) Powers?
Powers exercised by government ministers on behalf of the crown. The role of Monarch is minimal (merely approving decicions)
These ministerial powers include:
- power to acquire/cede territory
- negotiation and ratification of international treaties
- conducting diplomacy
- deployment and use of armed forces overseas (declaring war)
- use of armed forces within UK
- PM power to appoint/remove ministers
- grant of passports
- grant of pardons/stop criminal prosecutions
What are Personal (Prerogative) Powers?
Personally exercised by the Monarch - appears significant in law but is heavily constrained by constitutional conventions
Includes:
- appointing PM
- power to dismiss government
- power to prorogue government
- power to dissolve government
- grant Royal Assent
What are Miscellaneous (Prerogative) Powers?
the right to mine precious metals
right ot supervise and construct harbours
right to mint coinages
right of Crown to claim the ownership of sturgeon, dolphins, whales, swans found in certain stretches of the River Thames
Are there any remaining Legislative or Judicial Prerogative powers
Legislative: passing Orders in Council (enacted by Privy Council)
Granting Royal Assent
Judicial powers are exercised by ministers.
Monarch being source remains with the Judicial Committee of the Privy Council
