constitutional law

Question 1

what is a constitution ?

Answer 1

a body of rules which regulates the system of
government within a state

Question 2

what does the constitution do (generically)?

Answer 2

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

Question 3

Written constitution countries

Answer 3

Constitution creates and establishes government

Involves authority ‘outside and above’ order it establishes

Superior to other forms of law

‘Entrenched’ / not easily changeable

Question 4

UK constitution

Answer 4

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’

Question 5

R (Miller) v Prime Minister 2019

Answer 5

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.

Question 6

Written or unwritten?

Answer 6

Not entirely unwritten

‘Uncodified’ more accurate term

Question 7

Flexible or inflexible?

Answer 7

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

Question 8

Federal or Unitary?

Answer 8

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’.

Question 9

Monarchical or Republican?

Answer 9

The UK is a constitutional monarchy.

The King is head of state, though he has few formal powers.

Question 10

Presidential or Parliamentary?

Answer 10

Parliamentary because Prime Minister is head of Gov. and member of law-making body

Question 11

Bill of Rights 1689

Answer 11

Limits Monarch powers

Freedom of speech

No taxes without Parliament

No cruel/unusual punishments

Question 12

Congreve v Home Office 1976

Answer 12

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

Question 13

Acts of Union with Scotland 1706/1707

Answer 13

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.

Question 14

The European Communities Act 1972 and
The European Union (Withdrawal) Act 2018

Answer 14

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

Question 15

Parliament Acts 1911 and 1949

Answer 15

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.

Question 16

Scotland Act 1998

Answer 16

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

Question 17

Human Rights Act 1998

Answer 17

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.

Question 18

Common Law / Case Law

Answer 18

Law made by judges through creation of legal precedents

Important source of constitutional rules

Written down in law reports

Question 19

Entick v Carrington 1765

Answer 19

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.

Question 20

Royal Prerogative

Answer 20

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.

Question 21

EU Law / International Law

Answer 21

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

Question 22

ECHR

Answer 22

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.

Question 23

Conventions

Answer 23

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.

Question 24

Works of Authority

Answer 24

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.

Question 25

Leg. supremacy of PMent

Answer 25

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.

Question 26

Rule of Law: Dicey

Answer 26

No-one is above the law.

People should only be punished for breaking the ordinary law.

Judicial decisions protect liberty.

Question 27

Rule of Law: Bingham

Answer 27

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.

Question 28

Separation of powers

Answer 28

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.