constitutional law Flashcards
mcq revision
what is a constitution ?
a body of rules which regulates the system of
government within a state
what does the constitution do (generically)?
Establishes bodies and institutions which form part of that system
Provides for
the powers which they are to exercise
Determines how
they are to interact and coexist with one another
Is concerned with the
relationship between government and the individual
Written constitution countries
Constitution creates and establishes government
Involves authority ‘outside and above’ order it establishes
Superior to other forms of law
‘Entrenched’ / not easily changeable
UK constitution
Need to look at many different sources to find rules of constitution
CL is part of ordinary law of the land
Courts cannot label AoP invalid/unconstitutional
Not ‘entrenched’
R (Miller) v Prime Minister 2019
Determined that UK does not have a single written document called “The Constitution,” but it still has a constitution made up of common law, statutes, conventions, and practices developed over time. This uncodified constitution is flexible and can evolve, yet it contains many legal principles that courts can enforce.
Written or unwritten?
Not entirely unwritten
‘Uncodified’ more accurate term
Flexible or inflexible?
Said to be flexible, as major changes can be made by ordinary AoP
Flexibility to adapt to new situations can be an advantage, but there are also potential dangers
Federal or Unitary?
The UK constitution has always been unitary.
Means that it has been governed as a single unit by a national government.
Federal constitutions are less centralised, and authority is shared between central and regional governments.
Since devolution, the UK constitution could arguably be described as ‘quasi-federal’.
Monarchical or Republican?
The UK is a constitutional monarchy.
The King is head of state, though he has few formal powers.
Presidential or Parliamentary?
Parliamentary because Prime Minister is head of Gov. and member of law-making body
Bill of Rights 1689
Limits Monarch powers
Freedom of speech
No taxes without Parliament
No cruel/unusual punishments
Congreve v Home Office 1976
Facts: Home Office demanded extra payments from those who bought new TV licences before their old ones ran out in order to avoid a price increase
Holding: Home Office had no power to revoke the TV licences or demand extra payments for them
Acts of Union with Scotland 1706/1707
Before this, England and Scotland had one Monarch but two Parliaments.
The 1707 Act provided that England and Scotland ‘shall for ever after be united into one Kingdom’ with a single Parliament.
The European Communities Act 1972 and
The European Union (Withdrawal) Act 2018
The 1972 Act gave legal effect to the Government’s decision to join the EEC.
It gave effect to European law in the UK.
It gave the European Court of Justice
precedence over domestic courts in EU law matters.
The 1972 Act stayed in force until ‘exit day’: 31/01/20
It was repealed by the European Union (Withdrawal) Act 2018, which formally ended the UK’s membership of the EU and the supremacy of EU law in the UK.
In reality most of the provisions in the 2018 Act are concerned with preserving the effects of EU law in the UK
Parliament Acts 1911 and 1949
Changed the relationship between the Commons and the Lords.
Replaced the HoL power of veto with a delaying power.
Reduced the length of a Parliament from 7 to 5 years.
Scotland Act 1998
Established a Scottish Parliament for the first time in nearly 300 years.
The Scottish Parliament can legislate on ‘devolved matters‘: e.g. health, education, law and home affairs.
Re: Scottish Independence Referendum Bill [2022] UKSC 31; [2022] 1 WLR 5435
Human Rights Act 1998
Gives greater effect to the European Convention on Human Rights (ECHR) in UK law.
Requires public authorities to act in a human rights friendly way.
Changes the way that the law is interpreted in human rights cases.
Common Law / Case Law
Law made by judges through creation of legal precedents
Important source of constitutional rules
Written down in law reports
Entick v Carrington 1765
Facts: King’s messengers entered Entick’s home and seized ‘seditious’ papers.
They claimed to be acting under a warrant issued by the Earl of Halifax, a Minister of the King.
Holding: The warrant had no legal basis and the King’s messengers were trespassers.
Principle: The state cannot interfere with liberty or property without some legal authority.
Royal Prerogative
A group of common law powers which are unique to the Crown.
Most are exercised by ‘the Government’ in modern times – e.g. the making of international treaties.
A few are still exercised by the Monarch in person –e.g. the appointment of the Prime Minister and the prorogation of Parliament.
EU Law / International Law
The impact of international law on our constitution is more limited because the UK is a dualist state.
EU law is an exception: this has had a significant impact on how we are governed since it was given domestic legal effect by the European Communities Act 1972.
Despite the repeal of this Act, the impact of EU law on the UK will continue for many years to come.
IL – various treaties/customs that have been agreed between states
Impact of IL in our constitution is more limited as UK is dualist state
Dualist state – even if international treaty has been agreed/ratified by government, it will only result in changes to law if AoP is passed to incorporate and give effect to those treaty provisions
Not all ITs signed by UK are necessarily followed by legislation to bring about major legal change
Treaty of Rome is an exception
Repealing ECA 1972 has significant constitutional implications and changes relationship between UK and the EU
2018 Act contains provisions ensuring that EU derived laws already enforced on UK will continue to apply
Retained EU Law
EU institutions have no direct say on how we’re goverened
ECHR
Another source of international law with constitutional implications for the UK.
A treaty of the Council of Europe.
Its impact on the UK constitution has increased significantly since the Human Rights Act 1998.
It affects the relationship between the state and the individual, by establishing enforceable legal rights.
Conventions
The ‘non-legal’ rules of the constitution.
Recognised by the courts but not legally enforceable.
Don’t underestimate their importance – without them, the UK constitution would look very different.
e.g. consider how the prerogative powers of the Monarch would look if they were not limited by convention.
Works of Authority
Another ‘non-legal’ source of constitutional rules.
Not legally binding, but widely recognised as authoritative and therefore influential.
Often the nearest thing we have to a written source of a particular procedural rule or convention.
Leg. supremacy of PMent
The ultimate source of legitimate authority in the UK constitution.
Parliament can pass any law it wants.
Only Parliament can override or strike down Acts of Parliament.
Rule of Law: Dicey
No-one is above the law.
People should only be punished for breaking the ordinary law.
Judicial decisions protect liberty.
Rule of Law: Bingham
Laws should also protect human rights.
Governments must use their powers
reasonably and honestly, and for the right purposes.
The state must comply with international law.
Separation of powers
The division of State activity into 3 functions:
The legislature: Parliament
The executive: ‘the Government’
The judiciary: the courts
One branch of the state should not interfere with or use the powers of another branch.
In the UK, there is only a partial separation of powers.
