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Constitutional, Administrative & EU Law > Constitutional Fundamentals > Flashcards

Constitutional Fundamentals Flashcards

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1
Q

What is a constitution?

A

It establishes the fundamental rules and principles which govern an organisation

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2
Q

What is a political constitution?

A

A model/form a constitution may take.

A political constitution is one in which those who exercise political power (i.e. government) are held to constitutional account through political means, and through political institutions (i.e. Parliament)

People say the British constitution is political rather than legal.

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3
Q

What does a constitution set out?

A

It deals with organisation of the state and how legal order is established. It will typically include:
o The state’s fundamental political policies (i.e. key political ideas/doctrines on which the state is based)
o Framework of the government (i.e. duties of the executive, legislative and judicial branches of the state)
o Guarantee certain rights and freedoms of citizens (i.e. basic rights and freedoms agreed that all citizens of the state should enjoy)

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4
Q

What format does the UK constitution take?

A

o Unwritten
o Monarchical
o Unitary
o Flexible
o Formal separation of powers

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5
Q

What is the UK constitution made up of if it is unwritten?

A

as there is no single authoritative document, it will be made up of different sources i.e. statute and case law.

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5
Q

What is a legal constitution?

A

A legal constitution is a constitution where the judiciary form the greatest check upon the use of executive power

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6
Q

What are the key forms a constitution can take?

A

o Written/unwritten
o Republican/monarchical
o Federal/unitary
o Rigid/flexible
o Formal separation of powers/informal separation of powers

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7
Q

What does it mean when we says there is a ‘monarchical constitution’?

A

There is an unelected monarch as the head of state

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8
Q

What does it mean when we says there is a ‘unitary constitution’? How does this apply to the UK?

A

There is a single sovereign legislative power with power concentrated at the centre

In the UK, Parliament is the supreme law-making body and other law-making bodies within the UK (i.e. Scottish Parliament or local authorities) derive their power from Parliament

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9
Q

What is meant by a rigid constitution?

A

A rigid constitution is said to be ‘entrenched’. This means it can only be changed following a special procedure

A flexible constitution is comparatively easier to change and there are no special procedures

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9
Q

What is meant by an informal separation of powers?

A

There will be a significant degree of overlap of the separation of powers

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10
Q

What are the principles of the UK constitution?

A

o The rule of law
o The separation of powers
o Sovereignty of Parliament

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11
Q

What are the key principles of the rule of law?

A
  • No arbitrary exercise of power
  • Laws should be made properly, following a set procedure
  • Laws should be clear
  • Law should be certain
  • There should be equality before the law
  • The judiciary should be independent and impartial
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12
Q

What is meant by ‘there should be no arbitrary exercise of power’?

A

all actions of the state must be permitted by law

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13
Q

What is meant by ‘laws should be clear’?

A

they should be set out clearly and be accessible, a citizen should only be punished for breaching a clearly defined law

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14
Q

What is meant by ‘laws should be certain’?

A

the law should not operate retrospectively and a citizen should not be punished for an act that was not a crime at the time it was carried out

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15
Q

What is meant by ‘there should be equality before the law’?

A

the law should treat all persons the same and people should have equal access to the legal process

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16
Q

What is meant by ‘the judiciary should be independent and impartial’?

A

the courts should be sufficiently independent from the legislature and executive so that judges can uphold the law without fear of repercussions from other branches of the state

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17
Q

What is meant by the separation of powers?

A

The doctrine of the separation of powers requires that the principal institutions of state— executive, legislature and judiciary—should be clearly divided in order to safeguard citizens’ liberties and guard against tyranny.

Due to the complex way modern states work, it would be unrealistic for each branch to be completely separate so most constitutions have developed the concept of checks and balances

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18
Q

What are the ‘powers’?

A

The legislature (Parliament)
The executive (Government)
The Judiciary (Courts)

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19
Q

What is the legislature and what does it consist of?

A

Parliament i.e. the body that makes the law. The legislature consists of:
 The Monarch
 The House of Lords; and
 The House of Commons

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20
Q

What is the executive and what does it consist of?

A

Government i.e. the body that implements the law. This consists of:
 The Monarch
 The prime minister
 Other government ministers
 The civil service
 The police and armed forces

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21
Q

What is the judiciary and what does it consist of?

A

courts i.e. the body that resolves disputes about the law. This consists of:
 The monarch
 Legally qualified judges
 Magistrates

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22
Q

Why are checks and balances of the powers important?

A

So that no one branch is given an excessive amount of power

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23
Q

What is parliamentary sovereignty?

A

a common law doctrine that legislation enacted by parliament takes precedent over common law

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24
Q

What are the principle sources of the UK constitution?

A

o Acts of Parliament
o Case law
o The royal prerogative
o Constitutional conventions
o Sometimes minor laws and academic writing

25
Q

What are the key Acts of Parliament in relation to sources of the UK constitution?

A
  • Magna Carta 1215
  • Bill of Rights 1689
  • Acts of Union 1706-07
  • Parliament Acts 1911 & 1949
  • Police and Criminal Evidence Act 1984
  • Public Order Act 1986
  • Human Rights Act 1998
  • Acts of Devolution i.e. Scotland Act 1998
  • Constitutional Reform Acts 2005
  • EU (Withdrawal) Act 2018 and EA (Withdrawal Agreement) Act 2020
26
Q

What is it important to remember about the status of Acts in relation to the constitution?

A

None of these are entrenched and can be repealed

However, some acts (i.e. Scotland Act 2016) do contain certain provisions that Parliament cannot legislate on certain issues without first holding a referendum

Courts cannot strike down legislation as being unconstitutional

27
Q

Why is the Magna Carta significant?

A

o Symbolic value as the first assertation of limits on the powers of the Monarch and the rights of individuals
o It embodies the principle that government must be conducted according to the law and with consent of the governed
o It established the principle that no one is above the law.
o It introduced the right to protection from unlawful imprisonment

28
Q

Why is the Bill of Rights significant?

A

o Imposed limitations on the powers of the crown and its relationship with the monarch
o It removed the monarch’s power to arbitrarily suspend acts of parliament and impose taxation without parliament’s consent
o Elections should be free from interference by the monarch
o Freedom of speech and debate in parliamentary proceedings should not be impeached

29
Q

Why are the Acts of Union significant?

A

o These united England and Scotland under a single parliament of great Britain

30
Q

Why are the Parliament Acts significant?

A

o The acts ensured that the will of the elected HoC would prevail over the HoL by enabling legislation to be enacted without the consent of the HoL

31
Q

Why is Police and Criminal Evidence Act 1984 significant?

A

This provides police with important powers but also procedural safeguards so that they do not abuse these powers

32
Q

Why is the Public Order Act 1986 significant?

A

It allows limitations to be placed in the rights of citizens to hold marches and meetings in public places

33
Q

Why is Human Rights Act 1998 significant?

A

It incorporates ECHR into our domestic law

34
Q

Why are Acts of Devolution i.e. Scotland Act 1998 significant?

A

These acts created a devolved system of government in parts of the UK i.e. Scotland and Wales, they acts give greater governmental authority to parts of the UK

35
Q

What key common law principles form part of the UK’s constitution?

A

o Residual freedom
o Actions of the state must have legal authority
o Legal disputes should be resolved by the judiciary and there should be no interference from other arms of the state
o Habeas corpus and individual liberty
o Right to a fair hearing

35
Q

Why are Constitutional Reform Acts 2005?

A

o This transferred the Lord Chancellor’s powers as head of the judiciary to the Lord Chief Justice
o It created the supreme court
o It created the Judicial Appointments Commission to oversee the appointment of judges
o It permitted the HoL to elect its own speaker

36
Q

Why is EU (Withdrawal) Act 2018 and EA (Withdrawal Agreement) Act 2020 significant?

A

o Provided for Brexit
o Repealed the European Communities Act 1972 that paved that way to EU membership
o Ended the concept of supremacy of EU law

37
Q

What is meant by habeas corpus?

A

this is a remedy and it gives individuals who have been detained by the state the right to have the legality of the detention tested before the court

37
Q

What is meant by residual freedom?

A

individuals are free to do / say whatever they wish unless the law states the action is prohibited

38
Q

What is the royal prerogative?

A

The royal prerogative is a set of legal powers and privileges that the British monarch has, which do not require parliamentary approval.

These are non-statutory powers.

39
Q

What is the status of the royal prerogative?

A

This power has not been removed, but many of the powers have been abolished, replaced by statute or delegated to PM or ministers

40
Q

What areas does the royal prerogative cover?

A

There is no definitive list, but the modern extent of the royal prerogative covers:

Foreign affairs
 Declarations of war and deployment of the armed forces overseas
 Making treaties
 Recognition of foreign states

Domestic affairs
 The summoning of parliament
 Appointment and dismissal of prime ministers
 Royal assent of bills
 Defence of the realm
 Exercise of the prerogatives of pardon and mercy
 Granting public honours
 Setting up public bodies and disburse funds made available by parliament

41
Q

How are most royal prerogative powers exercised?

A

the monarch is legally responsible, but most of these powers are exercised by convention by the PM or other government ministers on the Monarch’s behalf

42
Q

How are prerogative powers removed?

A

They can be removed by Acts of Parliament

43
Q

What is the position when an Act of Parliament does not explicitly override an aspect of the prerogative power, but covers the same subject matter?

A

Case law suggests that the current position is that if the if the prerogative is covered by statute, statute prevails. The prerogative cannot be used by the government to change domestic law and nullify rights Parliament had created by statute

44
Q

What is not permissible under the royal prerogative?

A

The Government cannot authorise expenditure. Parliament will need to authorise expenditure.

Therefore, if there is no statute, the Government can exercise a non-statutory scheme pursuant to its prerogative powers. However, they cannot authorise expenditure and this would need to be authorised by Parliament

45
Q

What are constitutional conventions?

A

An unwritten understanding about how something in Parliament should be done which, although not legally enforceable, is almost universally observed

46
Q

What power do constitutional conventions have?

A

These are non-legal sources of the constitution. As they have no legal basis and so will not be enforced by a legal body

47
Q

What is meant by constitutional behaviour?

A

rules of good political behaviour

48
Q

How do constitutional conventions come about?

A

They are flexible so can be added and removed without following and formal steps

49
Q

Legal rule and convention re: Royal Assent

A

Legal rule: Royal Assent is required for a bill to become an Act.

Convention: the Monarch, on advice of the PM, always assents to a bill that has passed through Parliament

50
Q

Legal rule and convention re: Monarch part of the executive

A

Legal rule: the Monarch constitutes part of the executive brand of the government.

Convention: the Monarch only acts on advice the PM and other ministers and in practice, most decisions are taken by the PM and other ministers. Executive powers are exercised through ministers, who are collectively and individually responsible to Parliament

51
Q

Legal rule and convention re: Monarch’s government

A

Legal rule: the government is the ‘Monarch’s government’ and they can therefore appoint and dismiss members as they choose

Convention: the Monarch must appoint the person who commands the support of the HoC as the PM (i.e. elected leader following election).

The monarch must appoint and dismiss ministers (who are part of the HoL or HoC) on the advice of the PM

51
Q

Where are the constitutional conventions found?

A

In the ministerial code (amongst other key rules etc which affect ministers)

52
Q

What are some of the key constitutional conventions?

A
  1. The monarch play not active role in the government.
53
Q

What is individual ministerial responsibility?

A

ministers are responsible for the proper administration of their respective departments and their personal conduct. There should be no conflict of interest between a minister’s public duties and their private interests.

If there is a breach of this convention (either failure in administration or conflict of interest), they should resign.

53
Q

What is collective cabinet responsibility?

A

The cabinet is collectively responsible to parliament for the actions of the government. It must retain the confidence of the HoC. If there is a vote of no confidence in the HoC then the government must resign.

The cabinet must be united in public in support of government policy. If a cabinet minster wants to speak out against a policy, they must resign.

Cabinet discussions must remain secret.

54
Q

What is a government cabinet?

A

The Cabinet is the team of 20 or so most senior ministers in the Government (i.e. PM, Chancellor, Secretary of State, Minister for Health) who are chosen by the Prime Minister to lead on specific policy areas.

55
Q

Why have the conventions developed?

A
  • To limit the wide powers of the government without the need for major constitutional upheaval
  • To ensure the government is accountable for its actions
  • To maintain the separation of powers between the different branches of the state
56
Q

What legal significance do conventions have?

A

They are not enforceable by the courts, but the courts may recognise them in their judgments.

If Parliament passes an Act which breaches a convention, the Court will still apply the Act. They will not refuse to apply it because it breaches a constitutional convention because they have no legal basis.

57
Q

If the government loses an important case in the Supreme Court, what can it do?

A

Introduce legislation into Parliament to retrospectively change the law and effectively override the judgement.

Primary legislation can alter any legal rule or judgment, even retrospectively

Constitutional, Administrative & EU Law (10 decks)

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