Constitutional and EU Law

Question 1

which of the following characteristics does the UK Constitution have?

1. written / unwritten
2. republican / monarchical
3. federal / unitary
4. flexible / rigid
5. formal sop / informal sop

Answer 1

1. written
2. monarchical
3. unitary - Parliament = supreme law making body (devolved governments derive their power from P)
4. flexible (no written constitution)
5. informal sop (no written doc separating them)

Question 2

what are the three core principles the UK constitution is based upon?

Answer 2

1 . rule of law
2. separation of powers
3. sovereignty of P

Question 3

what are the key elements of the rule of law as a principle?

Answer 3

• no arbitrary exercise of power (all action permitted by the law)
• laws should be made following a set procedure
• laws should be clear and certain
• equality before the law
• judiciary should be independent and impartial

Question 4

what are the four principle sources of the UK constitution?

which of the four is a non legal source?

Answer 4

1. acts of P
2. case law
3. royal prerogative
4. constitutional conventions (non-legal)

Question 5

what are prerogative powers?

Answer 5

what remains of the absolute powers that at one
time were exercised by the Monarch

by convention these powers are now exercised by the PM and other government ministers on behalf of the Monarch

e.g deployment of armed forces, making treaties, appointing and dismissing a PM, giving royal assent to a bill

Question 6

if expenditure is required to exercise the prerogative powers, who must give approval?

Answer 6

Parliament

Question 7

summarise the relationship between statute and prerogative powers

Answer 7

acts of P can remove PP

if statute and PP cover the same subject, the statute will prevail

statute can co-exist with PP as long as they are not inconsistent - if inconsistent - statute prevails

Question 8

summarise the relationship between constitutional conventions and the court

Answer 8

cc = non legal so the courts will not directly enforce them

does not mean they have no legal significance

courts will acknowledge the existence of conventions, and
conventions may indirectly give rise to legal consequences that the courts will recognise

Question 9

summarise the relationship between constitutional conventions and statute

Answer 9

if P passes an Act of P which breaches a convention, it may be seen as unconstitutional but the Act of P will prevail and will be enforced by the courts

Question 10

list 10 examples of constitutional conventions

Answer 10

1. the monarch does not play an active role in government
2. the monarch will not refuse royal assent
3. the monarch will appoint as PM the person who is best able to command the Commons
4. all government ministers will be members of the Commons or the Lords + the PM should be a member of the democratically elected Commons
5. individual ministerial responsibility - government ministers are responsible for the proper administration of their department and their personal conduct
6. collective (cabinet) ministerial responsibility:
   - cabinet is responsible to P
   - cabinet must retain the confidence of the Commons
   - if a government loses a vote of no confidence it must resign
   - must be united in public in support of government policy, and so a cabinet minister must resign if he or she wishes to speak out in public against such policy
   - cabinet meetings must remain secret
7. the ‘Salisbury Convention’ - the unelected House of Lords will not reject legislation that gives effect to an important
   manifesto commitment of the democratically elected Government
8. the ‘Sewel Convention’ - The UK Parliament will normally only legislate on a matter that has been devolved
   to the devolved Parliaments if they have given their consent
9. members of the judiciary do not play an active role in political life
10. ministers and MPs do not criticise members of the judiciary publicly
11. there is arguably a convention that where british troops will be deployed into conflict, the government should obtain P’s approval via vote unless it is an emergency (also in the Cabinet Manual)

Question 11

what are P’s main functions?

Answer 11

scrutinising the work of government

passing legislation

debating the key issues of the day

approving expenditure for government policies

providing personnel for government (e.g. cabinet ministers are members of house of commons/lords)

Question 12

what is the membership of the Lords?

Answer 12

The Lords Temperol:

hereditary peers - labour introduced legislation to reduce the number - still some remain + life peers - appointed by the Monarch on the advice of the PM

AND

The Lords Spiritual (senior members of the clergy)

Question 13

what is a recall petition?

what is the process?

Answer 13

the Recall of MPs Act 2015

where an MP can be removed from their seat and for the next by-election to follow

meet one of the following conditions:

(i) The MP is convicted of an offence and receives a custodial sentence.
(ii) Following a report from the Committee on Standards, the MP is suspended from the Commons for at least 10 sitting days.
(iii) The MP is convicted of providing false or misleading information for allowances claims.

once the petition is triggered, the MP will be removed from their seat

if at least 10% of registered voters in their constituency sign the petition within six weeks = by-election

recalled MP can stand as a candidate at the by-election

Question 14

under the meeting of parliament act, P must meet how many times?

Answer 14

must be summoned every 3 years

convention means it is in almost permanent operation

Question 15

the parliament act 1911 limits the max life of a P to how long?

Answer 15

5 years

Question 16

is the dissolution of parliament (i.e calling a general election before the 5 years) governed by statute, prerogative power or convention?

Answer 16

PP - the monarch will dissolve P pursuant to the request of a PM

Question 17

what is the effect on pending business when the parliamentary session finishes/is prorogued

Answer 17

terminates all pending business

any public bills that have not passed into law will normally lapse, although it is possible to carry over public bills from one session to the next, subject to agreement

Question 18

what are public bills?

what are private bills?

what are the two types of public bills?

Answer 18

laws that concern the public as a whole

relate to matters of individual, corporate or local interest, and affect particular persons and/ or a particular locality

government bills + private members bills (introduced by MPs or Lords who are not government ministers - rarely become law due to lack of parliamentary time)

Question 19

what is the legislative process for the passing of a bill?

Answer 19

first reading - just a formality

second reading - main debate in the commons

committee stage :
consisting of 16– 50 members or committee of the whole house (if important or if unimportant so unlikely to be amended)
proportional representation reflective of the Commons
examines the bill in detail
amendments may be made

third reading - brief debate of amended bill / only verbal amendments made / final opportunity to vote on the bill

proceedings in the Lords - same process as the above but whole of the lords involved at the committee stage / at third reading sent back to commons if amendments made

(theoretically can ping pong until prorogation of P but in practice if commons rejects lords amendments - lords will accept)

royal assent

Question 20

the Parliament Acts 1911 and 1949 mean a bill can be passed without the approval of the lords, in which circumstances would this occur?

Answer 20

• ‘Money bills’ (ie public bills certified by the Speaker as dealing only with national taxation or supply): A money bill passed by the Commons can be presented to the Monarch for assent one month after being sent to the Lords and will become law even though it lacks the consent of the Lords.
• Other public bills: If passed by the Commons and rejected by the Lords in each of two successive sessions, a bill can be sent to the Monarch for her assent.

One year must elapse between the second reading in the Commons in the first session, and the third reading there in the second session.

Bills seeking to extend the maximum duration of Parliament are excluded.

Question 21

what is delegated or subordinate legislation?

does P have the power to amend it?

Answer 21

an act of p will confer powers on a minister to make rules or regulations (often in the form of statutory instruments) which supplement the provisions in the act of p

P can scrutinise but cannot amend subordinate legislation

Question 22

a parent act of p may stipulate the parliamentary procedure required to pass delegated legislation…what are the two most common procedures and what is required under them?

Answer 22

Affirmative resolution procedure = one or both Houses passes a resolution approving the instrument

Negative resolution procedure = the Government is required to ‘annul’ the instrument if either House passes a resolution rejecting the instrument within a specified period (usually
40 days) after it is ‘laid before Parliament’.

Question 23

who assists the houses in scrutinising delegated legislation?

what is their role?

Answer 23

Joint Select Committee on Statutory Instruments (representing both Lords and Commons).

Its job is to draw the attention of Parliament to instruments that for various reasons might need to be debated.

Question 24

what are the three core principles of parliamentary sovereignty (according to Dicey)?

Answer 24

1. P is the supreme law-making body
2. no act of P can be entrenched so as to bind its predecessors
3. no other person or body (courts) can question the validity of an act of P

Question 25

which article under the bill of rights protects freedom of speech in parliament?

Answer 25

Article 9

Question 26

what is the enrolled act rule?

Answer 26

once a bill has successfully passed through the legislative process, the court will not review the validity of it

Question 27

under what circumstance would the courts be willing to assess the validity of an act of p?

Answer 27

as a question of statutory interpretation

avoids contradicting the enrolled act rule

Question 28

what is meant by the ‘unlimited legislative competence of P’

give examples of this

Answer 28

P as the sovereign and supreme law making body

statute can override international law
statute can override convention
statute may alter the constitution (e.g. Acts of Union which united England and Scotland under a single parliament)
statute may operate retrospectively (e.g Burmah Oil - courts told the gov they had to pay compensation, P passes law saying it doesn’t)
statute may abolish or curtail the royal prerogative

Question 29

what are the doctrines of express and implied repeal?

Answer 29

P can pass new legislation which expressly repeals old legislation

but implied repeal is where a later Parliament passes an Act that contradicts the contents of an earlier Act but does not expressly repeal it

in these circumstances, the later Act will impliedly repeal the provisions of the earlier Act to the extent of any inconsistency between the two Acts.

Question 30

what are the limitations on the supremacy of p?

Answer 30

1. the Acts of Union 1706-07 (Scotland) 1801 (Ireland)
2. devolution
3. acts of independence
4. limits on the doctrine of implied repeal
5. Henry VIII powers
6. the rule of law
7. European legislation

Question 31

how have the acts of union limited parliamentary sovereignty?

Answer 31

P is bound by the terms of the Acts

cannot legislate to override the provisions contained in it

Question 32

what are the limits on the doctrine of implied repeal?

Answer 32

LJ Laws in Thoburn v Sunderland City Council

distinction between ordinary and constitutional statutes - ordinary statutes will be impliedly repealed, constitutional statutes will not

to repeal a constitutional statute = ‘express words’ or ‘words so specific that the inference of an actual determination to effect [the repeal of a constitutional statute] … was irresistible’.

Question 33

what is the test for a ‘constitutional statute’ as set out by Law LJ in Thorburn v Sunderland City Council?

what does the above relate to?

Answer 33

(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.

e.g magna carta 1215, bill of rights 1689, human rights act 1998, european communities act 1972

the limits on the doctrine of implied repeal and how this limits the sovereignty of P

Question 34

what is the manner and form (entrenchment theory) debate?

Answer 34

The doctrines of express and implied repeal prevent an earlier Parliament from binding a future Parliament as to the content of legislation which that future Parliament might enact.

But is it possible for an earlier Parliament to bind a future Parliament as to the procedure which that future Parliament must follow to enact legislation? e.g legislation cannot be repealed unless there is a referendum or unless a majority (other than a simple majority) is reached in P

Question 35

what are Henry VIII powers? how do they effect P’s sovereignty?

Answer 35

Legislation that has been introduced by the Government will often contain these powers

they permit the relevant government minister to amend or even repeal the relevant statute and sometimes other statutes as well by delegated legislation; ie they
permit ministers to make changes to Acts of Parliament by delegated legislation.

This is said to be contrary to the fundamental principle of the sovereignty of Parliament because it enables ministers – rather than Parliament – to make or change the law.

Question 36

how does the rule of law limit p’s sovereignty?

Answer 36

in R (Jackson) v AG Lord Steyn said the courts may be willing to strike down legislation if P passed a law which abolished the courts or judicial review

Question 37

what is the primary source of EU law?

Answer 37

Treaty on the European Union

Treaty on the Functioning of the European Union

Charter of Fundamental Rights of the European Union

Question 38

what are the secondary sources of EU law?

Answer 38

• Regulations: directly applicable and automatically binding in all Member States without the need for any further legislation in the Member States.
• Directives: set out objectives to be achieved and oblige Member States to pass domestic legislation themselves to implement those objectives. Directives set a date by which Member States must implement them.
• Decisions: Decisions are directly binding in the same way as regulations, but only on those to whom they are addressed, which may be Member States, companies or individuals.
• Recommendations and opinions: not binding.

Question 39

what are the other sources of EU law?

Answer 39

1) jurisprudence of the European Court of Justice:

judgments of the ECJ are binding on the national courts of MS’
While the ECJ is not bound by its own previous decisions, it at adheres to the principle of legal certainty and so will not lightly depart from its previous decisions.

2) general principles of EU law (developed by the ECJ):

• Proportionality: measures taken by Union institutions and Member States when implementing EU Law should be appropriate and necessary for achieving a given
  aim, and should not go further than is necessary to achieve that aim.
• Equality: unless there is an objective justification for the difference in treatment.
• Fundamental rights, ie internationally recognised human rights.
• Legitimate expectation/legal certainty: This means that, in the absence of overriding concerns of public interest, persons are entitled to assume that EU Law will not be
  suddenly changed to their disadvantage.

The ECJ has struck down EU legislation and decisions of the Union institutions for breaching them.

Furthermore, national courts have also disapplied national legislation for infringing them.

Question 40

what is meant by direct effect (of EU law)?

explain the two types…

Answer 40

describes how individuals can use EU law in their domestic courts

vertical direct effect = EU law enforceable against the state or an emanation of the state/state body

horizontal direct effect = EU law enforceable against other individuals

Question 41

which have horizontal direct effect vs vertical direct effect or both?

• directives
• regulations
• decisions

Answer 41

directives = just vertical direct effect

regulations + decisions = both

Question 42

what is the Van Gend criteria?

Answer 42

In order for a provision of EU law to have direct effect it must be sufficiently clear, precise and unconditional
and must not require additional measures, either at national or EU level

Question 43

what is required for a directive to have direct effect?

Answer 43

Van Gend criteria + the time limit for implementation by Member States has expired

Question 44

how does direct effect benefit individuals?

Answer 44

Individuals may take advantage of the additional rights afforded to them under EU law and can directly invoke EU law before national and European courts, independently of whether the national law test exists (that is, where there is no judicial remedy under national law).

Question 45

to what extent does EU law / the treaties limit P sovereignty?

Answer 45

because of the UK’s dualist system if the Government signs a treaty that requires a change in the law, it is for Parliament to authorise such a change by legislation

for example the UK gov signed the TFEU but it was not incorporated into domestic law until P enacted the ECA

Question 46

what was the effect of s 2 (4) ECA 1972 on P sovereignty?

Answer 46

2 (4) required all UK law to ‘be construed and have effect’ subject to provisions of EU law

2 limbs:
doctrine of indirect effect
strike down national legislation which is inconsistent with EU equivalent - again the obligation to do this only exists because P legislated for it under the ECA

Question 47

what is the doctrine of indirect effect?

Answer 47

the obligation of MS’ to interpret national legislation in accordance with EU legislation

Question 48

how did the UK courts follow the doctrine of indirect effect in the case of Pickstone v Freemans?

Answer 48

The House of Lords held that the purpose of the UK regulations had been to give effect to EU law. A strict reading of them failed to achieve this, and so the House of Lords adopted a ‘purposive’ interpretation in which it departed from the strict literal interpretation of the UK regulations and implied words into the regulations in order to comply with EU law.

Question 49

what was the effect of non-implementation or defective implementation of an EU directive into national law?

Answer 49

the state may have been liable to pay compensation

(even where a directive would not have been applicable to the individual making their case)

Question 50

under the EUWA 2018, regarding retained EU law, does EU or national law have supremacy?

Answer 50

the principle of supremacy of EU law continued to apply
to retained EU law, so that if there was a conflict between pre- Brexit domestic law and pre-Brexit directly effective EU law, then the EU law took priority.

Question 51

what does EU retained law consist of?

Answer 51

EU derived domestic legislation: This consisted chiefly of secondary legislation adopted pursuant to s 2(2) of the ECA 1972 to implement EU obligations

Direct EU legislation

Rights etc arising under s 2(1) of the ECA 1972:

Question 52

which act incorporated the ECHR into domestic law?

what was it’s effect?

Answer 52

Human Rights Act 1998

prior to its enactment, individuals had to go to the ECHR in Strasbourg after exhausting all domestic remedies - once enacted, individuals could seek remedies for a breach of their human rights in domestic courts

Question 53

what happens when a court has made a declaration of incompatibility between the HRA and UK legislation?

Answer 53

creates a ‘fast- track’ procedure that the Government may use to amend the relevant legislation, if there are ‘compelling reasons’ to do so

The Government is not, however, obliged to amend the offending legislation (but it usually will due to political pressure), and if it decides not to, an aggrieved litigant would have to take their case to the ECtHR to obtain redress.

Question 54

what is the impact of Section 3 HRA on P sovereignty?

Answer 54

principle of construction

imposes a duty on the courts to ‘strive to find a possible interpretation compatible with Convention rights’

Question 55

what is parliamentary privilege?

which are the main privileges enjoyed by the House of Commons?

Answer 55

enables P to function without interference (from Courts) e.g speaking freely in P debates

1. freedom of speech - article 9 of Bill of Rights 1689
   in P debates and proceedings of P - what is meant by P proceedings = undefined but includes parliamentary debates, questions in Parliament and committee
   proceedings and ancillary matters such as words spoken or written and actions taken outside the core proceedings themselves, but which are of necessity connected to those proceedings.
   immunity from legal proceedings and from contempt of court
   the courts will interpret Article 9 widely
2. the right to control its own composition and procedures (exclusive cognisance)
   what procedures it should adopt, whether any of its procedures have been breached and, if so, what the consequences will be e.g punishment of MPs
   the courts will not consider the validity of an Act on the basis that the correct procedures were not followed (Pickin v British Railways Board)

Question 56

who is responsible for dealing with matters relating to privilege referred to it by the Commons?

Answer 56

the Committee of Privileges (a Commons select committee)

Question 57

what happens if an MP defames someone during a Parliamentary debate?

Answer 57

no course of action

P proceedings are privileged

Question 58

which statute….
first assertion on the limits on the powers of the Monarch and rights of individuals
government must be conducted in accordance with the law and with the consent of the governed
no one is above the law - even King John
introduced right to protection from unlawful imprisonment

Answer 58

Magna Carta 1215

Question 59

which statute…
removed the power of the monarch to arbitrarily suspend Acts of P
removed power of monarch to impose taxation without P’s consent
P should meet on a regular basis
elections should be free from interference by the Monarch
freedom of speech in P

Answer 59

Bill of Rights1689

Question 60

which statute…
united England and Scotland under one P of Great Britain
kept separate Scottish church and legal system

Answer 60

Acts of Union 1706-07

Question 61

which statute…
ensured that the will of the elected Commons would prevail over that of the unelected House of Lords by enabling
legislation to be enacted without the consent of the House of Lords

Answer 61

Parliament Acts of 1911 and 1949

Question 62

which statute…
civil liberties
extensive powers to arrest, search and detain people
procedural safeguards to prevent abuse

Answer 62

Police Criminal and Evidence Act 1984

Question 63

which statute…
limitations to be placed on the rights of citizens to hold marches and meetings in public places.

Answer 63

Public Order Act 1986

Question 64

which statute…
incorporates the European Convention on Human Rights (ECHR) into our domestic law
allows citizens to raise alleged breaches of their human
rights before domestic courts

Answer 64

Human Rights Act 1998

Question 65

which statute…
created the Scottish Parliament, the Senedd
Cymru or Welsh Parliament and the Northern Ireland Assembly

Answer 65

Acts of devolution (Scotland Act 1998, Government of Wales Act 2006, Northern Ireland Act 1998)

Question 66

which statute…
reformed the office of Lord Chancellor, transferring the Lord Chancellor’s powers as head of the judiciary to the Lord Chief Justice
permitting the House of Lords to elect its own Speaker
creation of a Supreme Court (to replace the Appellate Committee of the House of Lords)
created a new body (the Judicial Appointments Commission) to oversee the appointment of judges

Answer 66

Constitutional Reform Act 2005

Question 67

which statute…
repealed the European Communities Act 1972 (ECA 1972), which had paved the way for the UK’s membership of the European Union
It also ended the supremacy of EU law and introduced into the UK’s legal systems the concept of retained EU law/assimilated law

Answer 67

European Union (Withdrawal) Act 2018 and European Union (Withdrawal Agreement)Act 2020

Question 68

general elections occur every 5 years in Scotland. under what circumstances would an early (extraordinary) election take place? (similar in NI)

Answer 68

2/3 of MSPs vote in favour of it

OR

Parliament does not nominate a First Minister within 28 days of an election due to:
* the First Minister resigning or otherwise ceasing to be First Minister; or
* the First Minister ceasing to be an MSP otherwise than by dissolution of Parliament.

Question 68

could the Scottish Parliament and Government be abolished?

Answer 68

no - they are a permanent part of the UK constitution

but could be abolished if the Scottish people voted for it in a referendum

(Section 63A Scotland Act 1998)

Question 68

would an extraordinary election take place as well as an ordinary election in Scotland?

Answer 68

If an extraordinary general election takes place, it is in addition to any scheduled ordinary elections unless taking place less than six months before the due date of an ordinary general election, in which case the ordinary election would be cancelled.

Question 69

what is the reserved powers model?

Answer 69

Scotland, Wales and Northern Ireland are able to legislate on all matters other than reserved matters that are retained by the UK Parliament (including responsibility for the constitution, foreign policy and defence).

Northern Ireland uses different terminology - instead of devolved powers = transferred powers and instead of reserved matters = excepted matters

Question 70

the Scotland Act 1998 specifies which areas are outside of Scotland’s legislative competence, what are they?

Answer 70

Provisions outside its legislative competence
are those that:
* would form part of the law of any territory other than Scotland;
* relate to reserved matters;
* modify certain enactments, including specified provisions of the Union with Scotland Act 1706 and the Union with England Act 1707 so far as they relate to the freedom of trade, certain specified provisions of the European Communities Act 1972 (until the transition period ended), the European Union (Withdrawal) Act (EUWA) 2018 and the Human Rights Act 1998;
* are incompatible with the ECHR and, until the transition period ended, with European Union law; or
* would remove the Lord Advocate from their position as head of the systems of criminal prosecution and investigation of deaths.

Question 71

the Scottish P can amend or repeal UK Acts of P if the subject matter falls within the Scottish legislative competence. true or false?

Answer 71

true

Question 72

a Scottish Act of P may be referred to the courts to determine whether it is within its legislative competence - how should the courts read the legislation?

Answer 72

as narrowly as is required for it to be within competence, if such a reading is possible

Question 73

how does the Scottish P give permission (pursuant to the Sewel Convention) for Westminster to legislate on devolved matters?

Answer 73

the Scottish P gives its consent through Legislative Consent Motions (LCM)

Question 74

when introducing a legislative bill into the devolved Ps, what must the speaker and/or presiding officer do?

Answer 74

make a statement as to whether the provisions in the bill are within the devolved nation’s legislative competence

Question 75

what are the two parts of the devolved Welsh government

Answer 75

the welsh government (executive) + the senedd Cymru (legislature)

Question 76

what is the legislative process for the passing of legislation in the senedd cymru (and Scottish P)

Answer 76

1. consideration and agreement of the bill’s main principles
2. detailed consideration of the bill and any changes made by a committee
3. detailed consideration of the bill and any changes by the Senedd
4. vote by the Senedd to pass the bill’s final text

Question 77

which devolved nations does the Sewel Convention apply to?

Answer 77

all

Scotland and Wales have given it statutory recognition - NI has not

Question 78

what are the three ways in which devolved legislation can come before the Supreme Court to decide on whether it falls within a devolved nations legislative competence?

Answer 78

• through a reference by a devolved or UK law officer (including the Attorney General for England and Wales) to the Supreme Court. 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 Supreme Court for a ruling on whether the bill is within the legislature’s competence;
• through an appeal from certain higher courts in England and Wales, Scotland and Northern Ireland; and
• through a reference from certain appellate courts.

Question 79

what is a section 35 order?

Answer 79

Section 35 of the Scotland Act 1998 grants the Secretary of State for Scotland the power, in specified circumstances, to prevent legislation enacted by the Scottish Parliament being
submitted for royal assent, even if it covers a devolved matter.

Section 114 of the Government of Wales Act 2006 contains equivalent provision regarding the
Senedd Cymru, but the UK Government has not yet exercised its powers under it.

Question 80

who is the final arbiter of whether legislation passed
by the devolved legislatures are within their competence.

Answer 80

the courts

Question 81

will courts review devolved legislation on the basis of common law grounds such as irrationality?

Answer 81

no - only on the basis of it is outside of their legislative compentence

Question 82

what are some of the key characteristics of the rule of law?

Answer 82

right to liberty
right to a fair hearing
access to justice (imposing court fees may be contrary to this if not all can afford them or if the fees are disproportionate to the remedy value)
equality before the law (applies equally to government ministers)

Question 83

what limits are there on the rule of law?

Answer 83

arguably because P is sovereign, it can pass any laws, no matter how arbitrary

however, judges have made comments in obiter that they may even be prepared to strike down legislation that is contrary to the rule of law e.g. abolishing judicial review

Question 84

give an example of legislative restrictions on the royal prerogative

Answer 84

one of the prerogative powers is to enter into treaties

Constitutional Reform and Governance Act 2010 limits the PPs of entering into treaties as it provides that the Commons can pass a resolution preventing the ratification of said treaty.

the lords can pass the same resolution but it will not prevent the government from ratifying the treaty - the government will have to provide further explanation as to its belief the treaty should be ratified

Question 85

which prerogative powers are ‘unjustifiable’ i.e not appropriate for the involvement of the courts to judicially review

Answer 85

areas of ‘high politics’ (such as the conduct of foreign relations), and the areas of national security and defence of the realm.

Question 86

how is the legislature kept separate from the judiciary?

Answer 86

holders of judicial office cannot MPs
constitutional convention - MPs will not publicly criticise judges
sub-judice rule - Parliament will refrain from discussing details of cases being heard or waiting to be heard
Art 9 of the Bill of Rights 1689 - parliamentary privilege

Question 87

what is the key legislation in relation to the separation of powers?

Answer 87

Constitutional Reform Act 2005

Question 88

can P legislate to overturn decisions made by the courts?

Answer 88

yes - it did so in Burmah Oil Company v Lord Advocate

the House of Lords awarded compensation to Burmah Oil for financial losses sustained during World War II.

Fearing that this would lead to a flood of similar claims, Parliament enacted the War Damage Act 1965, which overruled the House of Lords’ decision and provided that
compensation was not payable.

note comments in obiter about the possibility of striking down legislation that for example would remove judicial review

Question 89

if the government tried to pass legislation which would be contrary to the rule of law, what is the most likely approach they will take?

Answer 89

declaration of incompatibility pursuant to the relevant provision of the Human Rights Act 1998 - this would not repeal the legislation but would put pressure on the government to reassess

judges have said in obiter they would strike down legislation - note it has only been said in obiter and has never been done before

Question 90

does eu law remain supreme following our exit from the EU?

Answer 90

2018–2023
The principle of EU law supremacy was retained in a qualified form, meaning that retained EU law took precedence over domestic legislation passed before 2021 in cases of conflict.

2023
The REUL Act revoked a large amount of retained EU law at the end of 2023, and re-labeled the remaining law as “assimilated law”.

2024
The special features of EU law were removed from assimilated law, including the principle of supremacy, general principles of EU law, and directly effective EU rights. This means that national legislation can no longer be disapplied based on inconsistency with EU law.

Question 91

what action could the courts take if P passes legislation or tries to enforce legislation that is contrary to our obligations under the HRA 1998?

Answer 91

declaration of incompatibility

section 4 of HRA 1998

doesn’t affect the validity of the law, but pressures government to reconsider whether they will proceed

Question 92

will courts review government’s use of prerogative powers?

Answer 92

the courts will review the exercise of prerogative powers (pursuant to the CCSU case)

note - some PPs unjusticiable e.g. ratification of treaties, deployment of troops etc.

Question 93

what is the sub judice rule

Answer 93

• formal law and custom of Parliament
• prevents members of the executive and legislature from commenting on ongoing court proceedings
• not a constitutional convention

Question 94

The government acting under the royal prerogative has introduced a new tariff scheme for compensating victims of crime (“the Scheme”). It is less generous than a statutory scheme, which already exists.

which one prevails?

Answer 94

The statutory scheme will prevail over the exercise by the government of a prerogative power, meaning that the Scheme will be declared unlawful.

It would be an abuse of the prerogative power to introduce a scheme inconsistent with a statutory scheme introduced by Parliament. Where the exercise of prerogative power conflicts with statute, statute usually prevails.