Constitutional Law Flashcards
What are the three functions any constitution seeks to fulfil?
(a) Identify the key institutions of the state (b) and what their respective powers are
(c) outline the relationship between the state institutions and individual citizens
Uncodified constitution
No single source setting out the most important constitutional rules
What sources make up the UK constitution?
Legal sources:
- Acts of Parliament
- European Convention of Human Rights
- EU law
Non-legal sources:
- Constitutional conventions
- Political rules
- Rule of law principle
What is meant by the principle of the rule of law?
A principle that informs the law
Government must act according to the law (ensures that the law rules rather than government)
BUT as Parliament is sovereign it can legislate contrary to the rule of law
The courts when interpreting legislation or scrutinising government action seek to uphold the rule of law
Nobody should be above the law including government BUT parliamentary privilege conflicts with this
Rule of law protections:
Law should be applied clear, predictable and accessible
Laws should have no retrospective effect
Everyone is punished according to the law
Requires method of resolving disputes without too much cost or delay
Requires access to courts and fair decisions
Requires judicial review of government decisions
Unentrenched constitution
Act of Parliament
Passed by a majority in both Houses
Highest form of law
Used to change the constitution (as it is unentrenched)
Role of the courts
To interpret legislation
Resolve legal disputes
Provide a check on the through government the process of judicial review the legality of government actions can be challenged before the courts
Royal prerogative
Recognised in common law as belonging to the crown
The Crown’s residual powers (refers to the government’s power and not just the monarch).
Examples: negotiating and ratifying international treaties, deployment of armed forces oversea
Principles of the royal prerogative:
No new prerogative powers can be created (reflects how Parliament is sovereign)
Parliament have the power to take away prerogative powers (reflects how Parliament is sovereign)
If statute overlaps with the prerogative then statute prevails
Cannot be used to thwart the intention of Parliament
Cannot be used to change the law
Statutes do not bind the Crown unless they expressly say so or by necessary implication, Parliament must set this out expressly in an Act of Parliament
NOTE: Courts have shown a greater willingness to review decisions of the royal prerogative
Constitutional conventions
Set out expectations for now the constitution operates but are not legal binding
Example: royal assent - by law the monarch can refuse to to grant royal assent but by constitutional convention the monarch always gives royal assent
Salisbury convention
If a bill is implementing a manifesto commitment of the elected party then the House of Lords will grant the bill a second reading and will not otherwise block the bill
Features of UK constitution
- Uncodified
- Several sources (legal and non-legal e.g Act of Parliament and conventions)
- Unentrenched
- Parliamentary sovereignty
- Courts interpret the law but cannot strike down any legislation
- Union state of devolved nations
- Parliamentary not presidential system
Parliamentary sovereignty (supremacy)
The highest source of law in the UK legal system is an Act of Parliament
Therefore…
Parliament can make or unmake any law
No one can override Parliament (including the courts)
Parliament can’t bind successors
Exam tip: Acts of Parliament are supreme (avoid answers that suggest otherwise)
Separation of powers
The executive, legislature and judiciary are separate in terms of what they do, their function and their personnel
Each of the three bodies should act as a check and balance on each other
Constitutional principles
- Parliamentary sovereignty
- Separation of powers
- Rule of law
What is needed for a bill to become and Act of Parliament?
Approved by House of Commons + approved by House of Lords + royal assent
Parliament Act 1911 and 1949
House of Commons can pass a Bill for a second time in a successive session of Parliament and if the House of Lords rejects the Bill again, it can still be sent for Royal Assent
Alternative method to passing an Act of Parliament without needing the consent of the House of Lords
These Acts have the same legal status as an Act passed in the ordinary way
Enrolled Bill rule
Because nobody can set aside an Act of Parliament the courts can’t question the validity of ANY legislation
If a bill has been passed in both Houses and granted royal assent = valid Act of Parliament = supreme
Courts can’t question a valid piece of legislation but have to simply apply it as a valid Act of Parliament as it’s been passed as such
Parliamentary privilege
A rule that ensures freedom of speech in the Parliament
An MP or member of the House of Lords can’t be sued for anything they have said in Parliament
The House of Commons and the House of Lords are each responsible for governing and enforcing their own procedures
Implied repeal
If there are two pieces of legislation on the same subject area that conflict the layer act impliedly repeals the earlier act
European communities act 1972
Made EU law a source of law in the UK legal system
Laws that are automatically binding on members states have legal effect in the UK without needing any further legislation to implement it into the UK
All UK laws must be interpreted according to EU law and will be valid only if compatible with EU law
Therefore…
EU law = supreme
Any Act of Parliament that conflicts with EU law is disapplied by the courts
Because…
Parliament voluntarily accepted the limitation of its sovereignty when passing the European Communities Act
Highest court in the UK
Supreme Court
Declaration of incompatibility
A signal to the govenemnt that a piece of legislation conflicts with human rights (courts cannot strike down the conflicting legislation because of Parliamentary sovereignty)
The government will usually rectify the incompatibility
Key institutions that make up the UK constitution?
- Executive (government and monarch)
- Legislature (Parliament and monarch)
- Judiciary (courts and monarch)
Who make up the House of Lords?
Hereditary peers
Life peers (granted by monarch acting on the advice of the prime minister)
Bishops
Law lords
What steps does a bill go through before it becomes an Act of Parliament?
First reading
Second reading
Committee stage
Report
Third reading
Consideration of amendments (ping pong)
Royal assent
(in the commons and the lords)
What happens with a bill at first reading?
What happens with a bill at second reading?
The bill is first debated
What happens with a bill at the committee stage?
The bill is scrutinised line by line
What happens with a bill at report stage?
The bill is received from the committee and is reconsidered in the chamber
Amendments can be proposed but unlikely to deal with issues addressed at an earlier stage
What happens with a bill at third reading?
Final review of the bill and it’s contents (quite brief)
Public bill committee
These include
- Bills of first class constitutional importance
- Urgent bills
- Uncontroversial bills
Considered by a committee of the whole house
Private bill committee
English votes for English laws (ABOLOISHED)
Previously only MPs representing English constituencies could vote on certain legislation when the whole legislation or some sections applied only to England - this has been ABOLISHED
Legislative process: primary legislation
Commencement clauses (primary legislation)
Once legislation is given Royal Assent it will not usually come into force immediately. Instead it will include a statement called a commencement provision outlining when or how the legislation will come into force. Usually by giving government the power to make a commencement order setting out which provisions of the Act take effect on what date. Common for different parts to take effect on different dates.
Sunset clause (primary legislation)
A clause that states the Act or a section of the Act will expire on a certain date
Often done to require Parliament in the future to review how the legislation has operated
Secondary legislation is also known as…
Delegated legislation
Subordinate legislation
Statutory instruments
Regulations
Negative resolution procedure (secondary legislation)
The draft of the legislation is laid before the House of Commons and House of Lords and will take effect unless rejected by either House within 40 days
If it doesn’t get rejected it becomes law
No amendments to the draft can be made
Affirmative resolution procedure (secondary legislation)
There has to be a positive vote in favour of the legislation in order for it to become law
The draft is laid before the House of Commons and House of Laws and will only become law if both houses vote in favour of bringing it into effect
No amendments to the draft can be made
Henry VIII powers
A source of secondary legislation enabling government to amend Acts of Parliament (usually in minor ways) through secondary legislation
Powers granted to government to amend an Act of Parliament
Most often used to allow ministers to make minor amendments to legislation as a consequence of a new Act of Parliament
Can the courts strike down secondary legislation?
Yes, if in the court’s opinion the legislation goes beyond the scope of the powers granted
The courts may also read restrictions into the powers granted in order to ensure that constitutional principles such s the rule of law are complied with
Privy council
Approves SOME decisions made by the government, either under the royal prerogative or under powers granted to it by statute.
Certain decisions and legislation under the royal prerogative or under powers granted by statute need to be approved by the Privy Council. E.g. passing Orders in Council or granting a Royal Charter (which creates a new public institution, university or learned society)
Once of great importance, now plays a purely formal role within government
Main meetings are only attended by government ministers to gain the monarch’s approval for decisions that in practice have already been made elsewhere
Appointments to the Privy Council are for life
By convention all Cabinet ministers are appointed
Ministerial prerogative powers
Exercised by government ministers
Monarch’s role is purely formal i.e. approving decisions made by others
Examples:
Negotiation and ratification of international treaties
Deployment of armed forces overseas
PM’s power to appoint and remove ministers from the government
Grant and revocation of passports
Grant of pardons to criminally convicted individuals
Power to stop criminal proceedings
Personal prerogative pwoers
Exercised by monarch
Most are heavily constrained by constitutional conventions
Examples:
Appointment of Prime Minister
Power to dismiss the government
Power to prorogue parliament
Granting Royal Assent
Legislative and judicial prerogatives
Legilsative prerogatives:
Passing orders in council, a form of legislation enacted by the Privy Council under the royal prerogative
Granting royal assent
Judicial prerogatives:
Granting a pardon for someone convicted of a criminal offence or stopping a prosecution
An important judicial function is the judicial committee of the Privy Council which hears appeals from some commonwealth jurisdictions but does NOT hear appeals from UK courts
How can the royal prerogative be regulated (instead of abolishing it)?
- Parliament may regulate the power by laying down a procedure or requirement that must be met in order to exercise the power
Example - Constitutional Reform and Governance Act 2010: allows Parliament to control the government’s use of the royal prerogative to ratify international treaties. The government is required to lay before Parliament the draft of any international treaty agreed. The government can ratify the treaty only if 21 days have passed and neither the House of Commons nor the House of Lords has voted to state that the treaty should not be ratified.
- Constituional conventions
Examples:
Cardinal convention: Monarch must act on the advice of ministers BUT monarch has right to be consulted, to encourage and to warn (occurs through weekly meetings between Monarch and Prime Minster)
Employment of armed forces: a decision for the government exercising the royal prerogative BUT whenever possible it is expected that government seeks consent of House of Commons first
Appointment of Prime Minister: monarch appoints Prime Minister by royal prerogative BUT under constitutional convention the Prime Minister must be the MP who can command confidence of the Commons e.g. leader of party with majority of MPs in the Commons
Constitutional Reform and Governance Act 2010
To ratify an international treaty (a prerogative power) the government must lay (publish) it in both Houses
Government can ratify the treaty if neither House votes against ratification within 21 days
If either house votes against the treaty further debate can follow
Cardinal convention
Monarch must act on the advice of ministers BUT monarch has right to be consulted, to encourage and to warn (occurs through weekly meetings between Monarch and Prime Minster)
Consequences of hung parliament
Prime Minister remains until confidence in House of Commons is lost
Monarch is not involved
Parties negotiate who forms next government
With agreement, Prime Minister resigns if necessary and
Monarch appoints person with confidence of the House of Commons
Collective ministerial responsibility
Key elements:
- Confidentiality: discussion within government on policy is confidential
- Unanimity: all ministers must support government policy in Parliament and in public (must resign if not able to)
Government ministers are bound by collective ministerial responsibility
Collective ministerial responsibility can be set aside by the Prime Minister
