constitutional law

Question 1

An Act of Parliament has given the Secretary of State the power to amend other Acts of Parliament by passing secondary legislation.

How is this power best described?

Answer 1

This power is best described as a Henry VIII power. If an Act of Parliament grants to the government the power to amend Acts of Parliament by passing secondary legislation, that power is known as a Henry VIII power.

Question 2

he Labour government has decided to introduce the Schools Inspectorate Bill. The Bill seeks to implement a policy which was not included in Labour’s manifesto at the last general election. The House of Lords has voted against the Bill.

Which of the following best explains the constitutional position?

Answer 2

If the House of Commons passes the Bill again in the next session of Parliament and the House of Lords again rejects it, it can still be sent for Royal Assent (assuming enough time has passed between the successive sessions in the Commons). This answer reflects the Parliament Acts 1911-1949, which allow a bill to become an Act of Parliament even if it has been rejected twice by the House of Lords.

Question 3

what is privy council

Answer 3

The best explanation is that the Privy Council approves some decisions made by the government, either under the royal prerogative or under powers granted to it by statute. Although once of great importance, the Privy Council now plays a purely formal role within government. Certain decisions and legislation under the royal prerogative or under powers granted by statute need to be approved by the Privy Council. Examples include passing Orders in Council or granting a Royal Charter to a new institution or body. (

Question 4

What does it mean for the UK constitution to be ‘uncodified’?

Responses

Answer 4

That the UK lacks a single document called the constitution.

Question 5

How is the decision to deploy works?

Answer 5

The decision to deploy is a royal prerogative power, but the consent of the House of Commons is required by constitutional convention.

Question 6

The government introduces the Homebuilding Bill into the House of Commons. The provisions of the Bill apply only to England.

Which of the following best describes the procedure that will apply to the Bill?

Answer 6

The Bill may be voted on by MPs representing any of the UK constituencies. Despite the fact that the Bill applies only to England, any MP in the UK Parliament can vote on the Bill.

Question 7

A government minister is concerned about the proposed policy of the Prime Minister to increase health spending. The Minister fears that the policy is likely to require tax rises, which are going to be unpopular.

Which of the following options for the Minister is the most constitutionally appropriate?

Responses

Answer 7

The Minister can discuss the matter with other ministers and explain why she disagrees, and if she disagrees with the final decision, she must defend it in public and before Parliament.

Question 8

Judicial review

Answer 8

The woman cannot bring judicial review proceedings because she has not complied with the time limit. Usually, an application for judicial review needs to be brought promptly, but no later than three months after the action being reviewed occurred.

The best answer is that the owner’s action raises a question of fact. The judicial review procedure cannot be used to resolve questions of fact. Such disputes need to be resolved by the trial courts. Here, the owner’s dispute arises from a question of fact (that is, whether or not she allowed the guests in her restaurant to exceed the allowable capacity). Therefore, her judicial review action is not likely to succeed.

Question 9

retained eu law and supreme court

Answer 9

The Supreme Court decision is part of retained domestic case law and, thus, binds the Court of Appeal. Because the Supreme Court decision pre-dates the end of the transition period (December 2020) and involves the interpretation of retained EU law by a domestic court, it forms part of retained domestic case law. For retained domestic case law, the ordinary rules of precedent apply-courts are bound by decisions from courts that are higher or equivalent to them. Thus, the Supreme Court decision is binding on the Court of Appeal

Question 10

eu. law

Answer 10

The regulation is part of retained EU law and the Act should be disapplied in favour of the regulation. Under the European Union (Withdrawal) Act 2018, at the end of the transition period, most EU law became part of UK law as a new category of law-retained EU law-which would include the regulation. As the Act was passed before the end of the transition period (that is, December 2020), the principle of supremacy continues to apply. This means that if there is conflict between retained EU law and legislation enacted before the end of the transition period, the retained EU law will prevail. Thus, the courts should disapply the Act in favour of the regulation.

Question 11

scotlamd

Answer 11

The UK can proceed with legislation because the UK Parliament retains the power to legislate for Scotland. Ultimately, parliamentary sovereignty means that the UK Parliament can make or unmake any law. This means that the power to legislate for Scotland remains unchanged by devolution, even if the Scottish Parliament refuses permission for the UK Parliament to legislate on a matter devolved to the Scottish Parliament.

Question 12

welsh

Answer 12

The consent of the UK Parliament and the Welsh people at a referendum would be needed. The Welsh Parliament and the Welsh government were both created by an Act of the UK Parliament. Ordinarily, the doctrine of parliamentary sovereignty means that Parliament can make or unmake any law whatsoever, meaning that the UK Parliament could, in theory, abolish the Welsh Parliament and the Welsh government without seeking the consent of any other institution. However, it has been stated that the Welsh Parliament and the Welsh government are ‘permanent’ parts of the UK’s constitutional arrangements and can be abolished only if the people of Wales vote to abolish those institutions at a referendum. This means that the consent of the people of Wales and the UK Parliament is required to abolish the Welsh Parliament and the Welsh government.

Question 13

the House of Commons is about to debate a bill that would abolish the monarchy.

In which type of committee will the committee stage of the bill’s passage take place?

Answer 13

At the committee stage, the bill will be considered in a Committee of the Whole House. The committee stage for the passage of bills in the House of Commons can take place in one of two committees: a Public Bill Committee or a Committee of the Whole House. Bills of ‘first-class constitutional importance’, a category to which a bill to abolish the monarchy would qualify, are debated in a Committee of the Whole House.

Question 14

The Prime Minister has decided to hold a referendum on whether the North of England should get its own Parliament, similar to the Scottish Parliament. Some ministers are in favour, whilst others, including the Chancellor and the Home Secretary, oppose the idea.

Which of the following is the best option available for the Prime Minister to address the disagreement among the ministers?

Answer 14

The Prime Minister’s best option is to suspend collective responsibility and allow ministers to campaign on either side of the referendum. Collective responsibility requires government ministers to support government polices in public and before Parliament. However, the Prime Minister is able to ‘set aside’ or suspend collective responsibility, and this has happened at previous referendums. When this is done, ministers are able to campaign on different sides, meaning that they are allowed, unusually, to disagree with each other in public.

Question 15

The government has agreed a new international treaty with Singapore. The government has laid the treaty before both the House of Commons and the House of Lords. After 14 days, the House of Commons voted against ratifying the treaty.

Which of the following best explains the options available to the government?

Responses

Answer 15

The government can explain to Parliament why they still wish to ratify the treaty, and the House of Commons can hold a second vote. The power to ratify treaties is a royal prerogative power, but is regulated by a procedure laid down in statute. Ordinarily, the treaty is laid, with either House of Parliament having 21 days to vote against the treaty. If a House votes against ratifying and the government still wants the treaty ratified, it can explain to Parliament why, and then the House of Commons has a further 21 days to vote against ratifying the treaty. (

Question 16

A Conservative government was elected at the last election. In their manifesto, the Conservatives promised that they would pass legislation to allow autonomous cars to be on the roads. Pursuant to that commitment, the House of Commons passed the Autonomous Cars Bill. Many members of the House of Lords are concerned about the safety of autonomous cars and are inclined to vote against the Bill.

Which of the following best explains the constitutional considerations that regulate how the House of Lords can respond to the Bill?

Responses

Answer 16

Because the Bill is implementing a manifesto commitment of the government, the House of Lords is required by constitutional convention to grant a Second Reading to the Bill. Under the Salisbury Convention, the House of Lords will grant a Second Reading to a bill as a matter of course if the bill is implementing a commitment made by the party elected into government (here, the Conservative Party) in their manifesto.

Question 17

early election

Answer 17

An earlier election will be held if at least 66% of MPs vote in favour. The default rule is that Parliament lasts for five years, after which it is dissolved and a general election is held. However, under the Fixed-term Parliaments Act 2011, a general election will be held at an earlier time if at least 66% of MPs vote in favour of holding the early election.

Question 18

constitutional conventions

Answer 18

Constitutional conventions are rules which are not matters of law, but rather are derived from practice and can apply to the Monarch, government ministers, or MPs (among others).

Question 19

ministerial prerogatives

Answer 19

Under the royal prerogative, ministers may make decisions which may need to be formally approved by the Monarch. These powers are known as the ministerial prerogatives and are described as such because they are in substance exercised by ministers on behalf of the Crown. For some ministerial prerogative powers, the final approval of the decision still rests with the Monarch, but this is a formality.

Question 20

In a debate in the House of Commons on the number of social security claimants, the Secretary of State claimed that the number of claimants has been reduced under the government. The Secretary of State relied on statistics that had been prepared by her civil servants. Later, the Secretary of State learned that the statistics were incorrect and that the number of claimants had not been reduced, but at the time of the debate, she was not aware of the error.

Which of the following best explains what the Secretary of State would be expected to do?

Responses

Answer 20

The Secretary of State would be expected to correct the error as soon as possible. All government ministers owe a fundamental duty not to mislead Parliament. Should they do so inadvertently, they are expected to correct the error with Parliament as soon as possible. If a minister knowingly misleads Parliament, they would be expected to resign. Here, the Secretary of State inadvertently misled Parliament, since at the time of the debate, she did not know that the statistics were incorrect. Therefore, she would need to correct the error as soon as possible.

Question 21

separation of powers

Answer 21

The UK has a partial separation of powers in light of the overlap between the functioning and personnel of the three branches. The principle of the separation of powers provides that the executive, legislature, and judiciary are separate in terms of their function and their personnel and that, to some extent, the different branches serve as a check and a balance against each other. However, there is a substantial overlap between the executive and legislature. In terms of personnel, all government ministers must be members of the legislature and in function, the executive branch may pass secondary legislation under powers granted to it by the legislature.

Question 22

JUDICIAL REVIEW

Answer 22

The woman cannot bring a judicial review claim because she does not have any ground upon which to bring such a claim. A judicial review is a review of the legality of a governmental decision. It must be based on a specific ground of appeal, such as illegality, procedural impropriety, unreasonableness, or breach of legitimate expectations. Here, no such ground is included in the facts.

Question 23

ACTIVISM-PROCESSION

Answer 23

As the activists intend on holding the procession outside of London, the application to ban it has to be made to the local council. Had the activists intended on holding the procession within Greater London or the City of London, the application would have to be made to the Home Secretary.

Question 24

Which of the following best explains how the Supreme Court should treat the ECtHR judgments?

Answer 24

The Supreme Court should follow the ECtHR judgments. Under the Human Rights Act 1998, the UK courts are required to “take into account” the case law of the ECtHR. This has been interpreted as requiring the courts to follow (or ‘mirror’) the ECtHR’s interpretation of convention rights when the point is clear and settled. Thus, in light of the ECtHR’s clear line of authority on the Article 8 provision, the Supreme Court should follow the ECtHR judgments.

Question 25

The Supreme Court has made a declaration of incompatibility in relation to a provision of an Act of Parliament. A senior minister meets with her junior ministers to determine how to proceed, and they conclude that the declaration concerns an urgent issue.

Which of the following best explains how the senior minister should respond to the declaration?

Answer 25

The best answer is that the senior minister can enact a remedial order to correct the incompatibility, and then lay it before Parliament. Declarations of incompatibility can be addressed by the government through remedial orders. This is a form of secondary legislation which allows the government to amend or repeal legislation, including Acts of Parliament. For matters deemed urgent, ministers can make remedial orders that immediately become effective. However, the order must then be laid (that is, published) before both Houses, and it will cease to have effect if within 120 days, either House has not passed a resolution approving the order. (A) is incorrect because a vote is unnecessary as it is clear what options are available to the government.

Question 25

The Supreme Court has made a declaration of incompatibility in relation to a provision of an Act of Parliament. A senior minister meets with her junior ministers to determine how to proceed, and they conclude that the declaration concerns an urgent issue.

Which of the following best explains how the senior minister should respond to the declaration?

Answer 25

The best answer is that the senior minister can enact a remedial order to correct the incompatibility, and then lay it before Parliament. Declarations of incompatibility can be addressed by the government through remedial orders. This is a form of secondary legislation which allows the government to amend or repeal legislation, including Acts of Parliament. For matters deemed urgent, ministers can make remedial orders that immediately become effective. However, the order must then be laid (that is, published) before both Houses, and it will cease to have effect if within 120 days, either House has not passed a resolution approving the order. (A) is incorrect because a vote is unnecessary as it is clear what options are available to the government.

Question 26

RETAINED EU LAW

Answer 26

The European Union (Withdrawal) Act 2018 maintains the principle of supremacy in relation to legislation enacted before the end of the transition period (that is, before 31 December 2020). This means that if there is a conflict between UK law enacted before the end of the transition period and retained EU law, the retained EU law will prevail. Here, the retained regulation conflicts with legislation enacted before the end of the transition period. Accordingly, the regulation will prevail over the Act.

Question 27

Section 6 of the Human Rights Act 1998.

Answer 27

Section 6 claims may be brought only against a public authority, and here the bank is not a public authority.

Question 28

A bill in the Scottish Parliament (the ‘Bill’) has just completed all of its stages, but it has not yet received the Royal Assent. A minister within the Scottish government has expressed concerns that the Bill may be outside the legislative competence of the Scottish Parliament, and therefore wants the Bill to be referred to the Supreme Court to rule on that question.

Who can make this reference?

Answer 28

The Advocate General for Scotland, the Attorney General, and the Lord Advocate can make the reference. Between a bill passing all of its stages in the devolution legislature and receiving the Royal Assent, the bill can be referred to the Supreme Court to determine whether the bill is within the legislative competence of the devolved legislature. In Scotland, this reference can be made by either the Advocate General for Scotland, the Attorney General, or the Lord Advocate.

Question 29

DEVOLVED MATTERS

Answer 29

Parliament should seek the consent of the Scottish Parliament, Welsh Parliament, and Northern Irish Assembly before enacting the legislation. The UK Parliament is sovereign and retains the power to legislate for Scotland, Wales, and Northern Ireland, even on matters that have been devolved to those nations. However, under the Sewel Convention, normally the UK Parliament will seek the consent of the Scottish Parliament, Welsh Parliament, or Northern Irish Assembly before legislating for those nations on a devolved matter.