Constitutional Law Flashcards
1
Q
Uncodified Constitution
A
The UK Constitution is uncodified, meaning it is not written in a single document. Its rules derive from multiple sources, including Acts of Parliament, common law, constitutional conventions, and international agreements like the European Convention on Human Rights.
2
Q
Rule of Law
A
This principle ensures that laws are applied fairly, government actions must comply with the law, and laws generally do not have retroactive effect. Courts play a critical role in upholding this principle
3
Q
Parliamentary Sovereignty
A
The UK Parliament holds the highest legislative authority, with no constitutionally entrenched laws. Changes to the constitution can be made by passing ordinary Acts of Parliament with a simple majority.
4
Q
Declaration of Incompatibility
A
Courts can issue a declaration of incompatibility if legislation conflicts with the Human Rights Act 1998. However, this does not invalidate the legislation; Parliament decides the consequences.
5
Q
Royal Prerogative
A
A collection of powers historically held by the Monarch but now exercised by government ministers. These powers can be regulated or abolished by Acts of Parliament.
6
Q
Constitutional Conventions
A
Non-legal rules that regulate constitutional practices, such as the convention that the Monarch acts on the advice of the Prime Minister. They are not legally enforceable but are followed to maintain political accountability.
7
Q
Asymmetric Devolution
A
The UK’s devolution system is asymmetric, as Scotland, Wales, and Northern Ireland have varying degrees of legislative powers granted by different Acts of Parliament.
8
Q
Importance of Constitutional Conventions
A
These conventions maintain the balance between legal powers and political accountability, ensuring that legal powers are exercised in line with democratic principles and historical practices.
9
Q
Example: Appointment of the Prime Minister
A
Legally, the Monarch appoints the Prime Minister. By convention, this choice is restricted to the leader of the political party that commands a majority in the House of Commons.
10
Q
Convention of Royal Assent
A
By convention, the Monarch always grants Royal Assent to bills passed by Parliament, even though, in theory, they have the legal power to refuse
11
Q
Ministerial Accountability
A
Ministers are conventionally required to resign if they breach ethical standards or if their personal conduct undermines public trust, ensuring political accountability.
12
Q
Sewel Convention
A
The UK Parliament will not legislate on devolved matters without the consent of the devolved legislature, ensuring respect for the autonomy of devolved governments.
13
Q
Collective Responsibility
A
Cabinet ministers are conventionally bound to publicly support Cabinet decisions. If a minister cannot abide by this, they are expected to resign.
14
Q
Union State
A
The UK is a union state composed of four nations—England, Scotland, Wales, and Northern Ireland. It functions under parliamentary sovereignty, with legislative power concentrated at the UK Parliament.
15
Q
Devolution Defined
A
Devolution refers to the transfer of certain legislative powers from the UK Parliament to the devolved legislatures in Scotland, Wales, and Northern Ireland, allowing them to govern in specific areas.
16
Q
Devolved Legislatures
A
Scottish Parliament:
Established by the Scotland Act 1998, it handles areas like health, education, and justice.
Welsh Parliament:
Initially created as the National Assembly for Wales (1998) and later expanded to include law-making powers.
Northern Ireland Assembly:
Created by the Northern Ireland Act 1998, focusing on peace process agreements and governance.
17
Q
Reserved Powers Model
A
Explanation: The UK operates a “reserved powers” model, meaning devolved legislatures can legislate on any matter not explicitly reserved to the UK Parliament.
18
Q
Impact of Devolution on Parliamentary Sovereignty
A
Explanation: While devolution allows regional governance, the UK Parliament retains the legal right to legislate on devolved matters, showcasing the underlying principle of parliamentary sovereignty.
19
Q
Rule of Law
A
The principle that all individuals and authorities, including the government, are subject to and accountable under the law. Key aspects include:
Laws must be applied fairly.
Government actions must comply with the law.
Laws should generally not have retrospective effect.
20
Q
International law
A
The ratification of international treaties have no effect on domestic law, it must be incorporated into domestic law to have said effect
21
Q
Enrolled bill rule
A
Once a bill has passed both house of lords and commons and has been given royal assent, it cannot be challenged or changed
22
Q
Parliament binding its successor
A
Parliament may not do this. The successor can repeal an act either expressly or impliedly of a previous parliament
23
Q
What are the Separation of Powers
A
This principle divides the state’s functions among three branches to prevent the concentration of power:
Legislative: Makes laws (e.g., UK Parliament).
Executive: Implements laws (e.g., the Government).
Judiciary: Interprets laws (e.g., Courts).
While the UK does not have a strict separation, institutions like the Constitutional Reform Act 2005 strengthened judicial independence.
24
Q
Parliamentary Privilege
A
Members of Parliament are protected from legal action for statements made in Parliament, allowing them to debate freely.
25
Flexibility of the UK Constitution
The UK's uncodified constitution allows for adaptability and changes through ordinary Acts of Parliament or the evolution of conventions.
26
Composition of Parliament
Parliament consists of three parts:
House of Commons: 650 elected MPs representing constituencies.
House of Lords: Unelected members, including hereditary peers, life peers, Lords Spiritual, and former Law Lords.
Monarch: Ceremonial role, including delivering the King's Speech and granting Royal Assent.
27
Role of the House of Commons
Represents the public through elected MPs.
Debates and votes on proposed legislation.
Scrutinizes government policies, with the opposition providing checks and balances through questions and debates
28
Role of the House of Lords
Reviews and suggests amendments to legislation proposed by the Commons.
Limited legislative power; cannot permanently block legislation but can delay it under the Parliament Acts 1911 and 1949.
29
General Elections and Dissolution
General elections determine the composition of the House of Commons and indirectly decide the government.
Parliament is dissolved five years after its first meeting or earlier by the Dissolution and Calling of Parliaments Act 2022.
30
Legislative Process in Parliament
First Reading: Formal introduction of a bill.
Second Reading: Debate on the principles of the bill.
Committee Stage: Detailed examination and amendment.
Report Stage: Further amendments debated.
Third Reading: Final debate and approval.
Process repeats in the other House before Royal Assent.
31
King's Speech
The King's Speech, prepared by the government, outlines legislative priorities for the upcoming session during the State Opening of Parliament. It marks the start of a parliamentary session.
32
sub judice rule
prevents discussion of active court cases to respect judicial independence.
33
Secondary Legislation
Delegated authority from Acts of Parliament allows government to enact detailed regulations.
Can follow negative resolution procedure (automatic approval unless rejected) or affirmative resolution procedure (requires explicit approval by Parliament).
34
Salisbury Convention
The House of Lords will not block government bills that implement manifesto commitments of the ruling party but may suggest amendments.
35
Henry VIII Powers
Allow government to amend or repeal primary legislation using secondary legislation. Controversial when used for significant changes due to reduced parliamentary scrutiny.
36
Sunset Clauses
Legislation includes an expiration date, requiring periodic review and renewal by Parliament to continue its effect
37
Legislative 'Ping Pong'
Process where amendments made by one House are sent to the other for approval or modification. Repeats until both Houses agree or the Commons prevails under the Parliament Acts.
38
Historical Role of the Monarch
Historically, the Monarch held executive, legislative, and judicial powers. Over time, these powers were delegated to ministers, the Privy Council, and, eventually, the Cabinet, marking the rise of parliamentary sovereignty.
39
The Crown as a Concept
The Crown symbolizes the executive branch of the UK government, including the Monarch, Prime Minister, Cabinet, ministers, and civil servants. It acts as a metaphor for state authority and governance.
40
Scope of Royal Prerogative Powers
Royal prerogative powers are historical executive powers exercised by the Crown. Many have been abolished or replaced by statutory powers but remain significant in areas like international relations, military deployment, and legislation.
41
Relation of the Royal prerogative between the monarch and parliament
The monarch has these powers as recognised under common law. However, these are mostly exercised by parliament. Parliament can choose due to abolish prerogative powers and no new ones can be created.
42
Relation of prerogative powers and statutory powers
Statutory powers will always take precedent over prerogative powers and the crown cannot thwart parliament with prerogative powers also. In turn, statutes do not bind the crown
43
What groups can Royal prerogative powers split into?
Ministerial
Personal
Miscellaneous
Legislative and Judicial
44
Examples of Ministerial Prerogatives
Deployment of armed forces overseas.
Conduct of international diplomacy and treaties (subject to the Constitutional Reform and Governance Act 2010).
Grant and revocation of passports.
45
Examples of Personal Prerogative Powers
Powers personally exercised by the Monarch but constrained by conventions.
Examples include:
Appointment and dismissal of the Prime Minister.
Dissolution and prorogation of Parliament.
Granting Royal Assent.
46
Examples of miscellaneous powers
right to mint coins
mine precious metals
claim certain animals and parts of thames
47
What is Cardinal Convention?
The Monarch acts on the advice of ministers, especially the Prime Minister. The Monarch has the right to:
Be consulted.
Encourage.
Warn.
These interactions are confidential, preserving impartiality.
48
Appointment of the Prime Minister
The Monarch appoints a Prime Minister who:
Commands confidence in the House of Commons.
Typically leads the majority party.
In hung parliaments, parties negotiate to determine leadership
49
Can the Monarch speak out about ministers advice?
No, the monarch must always act on the advice on ministers even if they disagree. The Monarch cannot make a public statement disagreeing with it
50
Dissolution of Parliament
While the Monarch formally dissolves Parliament, this action is taken only on the advice of the Prime Minister. The Dissolution and Calling of Parliaments Act 2022 restores the prerogative, but its exercise is convention-bound.
51
Deployment of Armed Forces
This is a ministerial prerogative power, but convention dictates that the government seeks parliamentary approval before deploying troops overseas, especially for significant military actions.
52
Hung Parliament Guidance
In a hung parliament, the Monarch does not involve themselves in negotiations between parties. They appoint a Prime Minister based on the agreement reached among political parties, reflecting parliamentary support.
53
What does judicial review ensure?
It ensures that public authorities act according to the law, maintaining the rule of law.
54
Against whom is judicial review available?
Answer: Only against public bodies like Secretaries of State, government departments, and councils.
55
Are private businesses subject to judicial review?
No, private businesses are not considered public bodies.
56
What happens if a contract exists between the parties?
The matter is governed by private law, not public law.
57
What is the first step in the judicial review pre-action protocol?
Answer: The claimant sends a letter to the potential defendant identifying the dispute issues. The defendant should respond within 14 days
58
When can a claim be refused even if successful?
If the outcome for the claimant is unlikely to change substantially.
59
What are the time limits for judicial review claims?
Claims must be made promptly, but no later than three months, or six weeks for planning decisions.
60
What principle governs public law issues?
Answer: They must be brought via judicial review, not private law.
61
Are factual disputes resolved through judicial review?
No, they are resolved in ordinary courts.
62
What must be done before pursuing judicial review?
All other options, such as tribunal challenges, should be exhausted.
63
When does have claimant have standing?
The claimant is required to have sufficient interest in the matter. With groups, if they individually lack standing then they may not bring a claim. However, if the association is responsible, well sourced, has expertise, and there is unlikely to be an alternative claimant. Then the group may be deemed to have sufficient interest
64
Grounds for Judicial Review
Illegality
Procedural Impropriety
Unreasonableness/Irrationality
Legitimate Expectations
65
What does illegality involve?
Acting outside the granted powers or failing to understand/apply the law.
66
What falls under illegality?
Error of law
Specific legal duty
unlawful delegation of power
ultra vires
67
What does "ultra vires" mean?
It means "outside the powers," where a public authority acts beyond what is allowed by statute.
68
What is required when a public authority must follow a specific legal duty? .
The authority must comply with statutory requirements, such as the Public Sector Equality Duty
69
What is unlawful delegation of power?
It occurs when a delegated power is further delegated without statutory authorization.
70
What happens when public authorities misinterpret the law?
It constitutes an error of law and can make their decisions unlawful.
71
What must public authorities consider when making decisions?
Only relevant considerations defined by the granting statute and avoid irrelevant ones.
72
What does procedural impropriety address?
Failures in following statutory or common law procedural requirements.
73
What are mandatory and directory requirements in procedural impropriety?
Mandatory Requirements: Must be followed; failure invalidates the decision.
Directory Requirements: Should be followed but do not invalidate the decision if breached.
74
What does the "Right to Be Heard" entail in procedural impropriety?
It ensures that individuals have the opportunity to present their case and respond to any case against them before a decision affecting their rights is made.
75
What is the "Rule Against Bias" in procedural impropriety?
Answer: It requires that decision-makers remain impartial and free from any actual or perceived bias when making decisions.
76
What are the three types of bias under procedural impropriety?
Actual Bias: Proving the decision-maker was influenced by bias.
Automatic Disqualification Rule: Disqualifying decision-makers with financial or closely connected non-financial interests.
Apparent Bias: When a fair-minded observer might perceive a real possibility of bias.
77
When does a common law duty to consult arise?
A duty to consult arises when:
There is a statutory duty to consult.
A promise to consult was made.
There is an established practice of consultation.
Failure to consult would lead to conspicuous unfairness.
78
Is there a general common law duty to give reasons for decisions?
No, but reasons must be given when:
The decision involves important interests, such as personal liberty.
The decision appears aberrant or unfair
79
What is the test for unreasonableness?
The decision must be so illogical that no sensible person who applied their mind to the questions could have arrived at it.
80
What remedies can courts grant in judicial review?
Quashing Orders
Mandatory Orders
Prohibiting Orders
Injunctions
Declarations
81
Prime Minister responsibility?
Prime minister has power to change organisations of government through abolishing, merging, or creating new departments. They have responsibility over civil service, staff of government departments.
82
PM constitutional role
PM is advisor to the monarch and have weekly meetings, PM is also responsible for overall relations between UK and devolved governments.
83
Conventional restrictions
By convention, ministers must have a seat in the house of commons or lords which allows them to be accountable to parliament
84
Role of the cabinet
responsible for making decisions within government, decisions should be reach collectively. These range from:
Military action
legislative agenda
domestic policy matters
National emergences
85
Cabinet committees
setup by PM, mix of cabinet ministers and junior minsters sit on a committee. Committees allow matter to be discussed without going to full cabinet
86
Decision in committees
These have the same authority as cabinet decisions. All discussions are confidential. Once a decision has been made it is binding on all ministers regardless of personal view.
87
Government departments
Each department is headed by the secretary of state, who is responsible for the department and accountable to parliament for decisions and activities. Junior ministers are responsible for an aspect of the department work
88
Where do government department's powers come from?
Powers come from the royal prerogative or statutes, Acts of parliament confer the powers to the secretary of state
89
What is Carltona Doctrine
A civil servant within a department will exercise the powers granted to the secretary of state
90
What are civil servants?
They work within departments and assist with making decisions in line with the law and government policy. They owe duties to the monarch and not the government
91
What is privy council?
To pass orders some are made under royal prerogative powers and can be considered primary legislation. Meetings are in private an require attendance of the monarch.
92
Judicial committee of privy council
They hear appeals from parts of the commonwealth or overseas British territories. Appeal heard by justice of the supreme court
93
Responsibility and Accountability of Ministers
Government ministers must maintain support for government policy in public and before parliament
94
Confidentiality of minsiters
They can express their views freely in private, safe in the knowledge their views should not be released to the public.
95
Unanimity of ministers
Once a decision has been made it is binding on all ministers. Ministers are expected to support government policy in public or before parliament. They must resign if they cannot support a decision
96
Ministerial responsibility
requires that ministers be under a duty not to mislead government. They are responsible for their actions and mist take responsibility and account for the operation and conduct of their government department.
97
Difference in ministerial actions
If a minister is found to have mislead parliament they must correct any error asap. If a minister knowingly mislead parliament they are expected to resign
98
Response and Account of ministers
Must give an account of their department. respond to concerns and criticism. Must respond in a way that parliament continue to have confidence in the minister
99
Distinction in failures
Policy Failure - minister takes responsibility which may include resignation
Operational Failure - Minister gives an account and takes steps to ensure it doesn't happen again.
100
The importance of S.1 of the Human Rights Act 1998?
S.1 sets out the convention rights as set out by the European Court of Human Rights (ECHR) and making them part of domestic law
101
How are Human Rights distinguished
Human Rights are split into three categories:
Absolute rights - Right to life, prohibition of torture, prohibition of slavery and servitude
Limited Rights - Right to liberty & fair trial
Qualified Rights - Right to privacy, freedom of thought, religion, expression, assembly, marriage
102
What are absolute rights?
These are rights that cannot be limited even in times of war or national emergency.
103
What are limited rights?
These rights can only be limited in the manner in which the article prescribes itself
104
what are qualified rights?
These rights can be limited by the state in order to pursue a legitimate interest
105
How can certain articles be restricted such as articles 10 & 11 (freedom of expression & freedom of assembly)?
Again these can be limited by law if necessary in order to achieve a legitimate aim such as if they posed a threat to national security or for the protection of freedom and rights of others.
106
What is judicial difference?
A concept closely related to proportionality. The more politically controversial the issue, more likely the courts when applying proportionality will defer to government and parliament. Greater the defence shown, less argument and evidence is required to show that a measure is proportionate.
107
Margin of Appreciation
UK is permitted some discretion over the extents a right is restricted. This applies when government seek to limit a qualified right in pursuit of a legitimate purpose
108
What 3 criteria must be met under proportionality test to restrict a qualified right?
Restriction must be designed to meet a legitimate aim important to justify interfering with a right
Restriction must be rationally connected to achieving its aim and;
restriction must interfere with the right no more than necessary to achieve its aim
109
How is the margin of appreciation applied by ECtHR?
If there is a consensus amongst EU states then the courts will apply a narrow margin. The ECtHR will conduct a full and detailed review of the interference. If each EU state approaches the issue differently, then the margin will likely be much broader. Therefore, giving the state a much broader discretion regarding how the right is protected and restricted
110
Operation of ECHR
The ECHR are not bound by previous decisions, they may choose to follow an approach by some or all states on a particular issue or right
111
What flexibility is given to states to use the articles
Some states cabin derogate from most, but not all, articles. The exceptions are article 2 (right to life(unless as a result from war)) article 3 (torture) article 4i (slavery) article 7 (retrospective criminal offences)
112
Relation of UK courts and ECtHR
Uk courts must take into account judgement from ECtHR. Therefore, making ECtHR case law an important source. If there is a clear interpretation of a right, the courts are expected to follow the ECtHR. HRA requires UK courts to interpret legislation in way that is compatible with convention rights as by ECtHR.
113
If interpretation of an act is not possible?
If an act cannot be interpreted that complies with convention rights under section 3, the court can make a declaration of incompatibility
114
What does a declaration of incompatibility do?
It does not make an act invalid, courts must still apply the act in the case. It serves as signal to parliament and government to consider the matter.
115
What two options are available if an act is declared incompatibility?
Non - urgent - fast - track procedure: allows both an act and secondary legislation to be amended via secondary legislation. This becomes law following approval by both parties after 60 days in draft.
Urgent: It can be made with immediate effect and take said effect. It must be laid before parliament and will cease to take effect after 120 days if either house has not passed a resolution approving the order.
116
HRA relation to public authorities?
local authorities, secretary of state, etc, their actions or decisions can be challenged on the basis of a breach of human rights.
117
Who can bring a claim against the public body under HRA?
Only the victim can who is alleging the unlawful act. 'Victim' is defined as someone being directly affected therefore no-one could bring a claim on their behalf if not involved.
118
How long can someone bring a claim under HRA
Up to 1 year
119
what remedies can be sought?
What ever is consider just and appropriate, the court has power of discretion to award a remedy, some awards available as with judicial review.
120
Discrimination claims
These can only be brought if attached to the breach of another convention right with article 14 ECHR. This gives little margin of appreciation.
121
Brexit and its relation with EU law and UK law
During the transition period UK & EU provided a withdrawal agreement to make sure gaps in UK law didn't happen. The UK remained bound until the end of the transition period (31st December 2020). Uk took all EU law that is park of the UK legal system and converted it to a new bod of UK law aka retained EU law
122
How is EU law split up under UK law?
retained EU law is split into the following categories:
EU Derived Domestic Legislation
Direct EU Legislation
Direct Effective EU Law
123
EU Derived Domestic Legislation
All secondary legislation making EU directives preserved these as law under UK Law. This includes, primary legislation that was used to implement EU directives. These are held to the same power before Brexit
124
Direct EU Legislation
EU regulations binding member states without any domestic laws needing to be passed. These are now housed under Direct EU legislation.
125
Direct Effective EU Law
Other provisions of EU law (treaty provisions) have been converted and preserved for UK law. Again these were passed without the need of domestic law bringing them into effect.
126
Functionality before and after the transition period
EU law had supremacy over UK law. As such any UK law enacted before the transition, if conflicting with EU law, EU law will prevail. Any legislation enacted after the transition period is not subject to EU supremacy and therefore can legislate to the contrary.
127
Retained case law
UK courts are not bound after the transition period, by principles or decisions by CJEU. Courts can treat theses decisions as persuasive precedent. Any CJEU decision made before the transition period are only binding on all domestic courts other than supreme court and court of appeal.
128
Devolution legislatures
Devolved states can legislate contrary to EU law that falls within their legislative competence. They may repeal or amend retained EU law within their competence unless they are excluded from doing so by regulations by UK government.
