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Constitutional And administrative law > Constitutional Law > Flashcards

Constitutional Law Flashcards

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1
Q

What is constitutional Law

A

Constitutional Law is concerned with the role and powers of the institutions within the state and with the relationship between the citizen and the state

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2
Q

Function of a constitution (2 quotes)

A

The most important function is a constitution should perform is to ensure that a country is governed in accordance with democratic principles - Ian Loveland.

The constitution is a living, dynamic organism which at any point will reflect the moral and political values of the people it governs, and accordingly, the law of the constitution must be appreciated within the social and political context in which it operates

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3
Q

What constitution seeks to eliminate

A 
Abuses of power 
Human rights violations 
Corruption 
Mis-governance 
Confusion
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4
Q

Constitution definition

A

A document with special legal status status which sets out the framework for government within a country and declares the principles by which the branches government must operate

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5
Q

What is meant by a rigid constitution

A

Dicey: one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manor as ordinary laws

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6
Q

Definition of a flexible constitution

A

One under which every law of every description can be legally changed with the same ease and in the same manner by one and the same body

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7
Q

Main features of a codified/written constitution (10 points)

A
  • Written or codified in a single document
  • The constituents authority is derived from the ‘will of the people’
  • Constitution law is supreme law
  • The constitution provisions are normally entrenched against repeal
  • A special procedure is usually required to amended a conducted constitution
  • A constitution usually contains a bill of rights.
  • It defines role of key office holders in the state.
  • Lists the powers of stare and duties of citizens
  • Reveals the balance of power within a state
  • Contains a systems of checks and balances on those with power
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8
Q

What is Parliamentary Sovereignty

A

Dicey: The principle of Parliamentary sovereignty means that no person of body is recognised by the law of England as having a power to override or set aside the legislation of parliament.

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9
Q

Which countries are in the UK

A

England
Scotland
Wales
Northern Ireland

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10
Q

Which countries are in Great Britain

A

England
Scotland
Wales

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11
Q

Which countries in the British Isles

A

United Kingdom: England Scotland and Wales

Republic of Ireland

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12
Q

What is a constitution

A

Bolingbroke: an assemblage of laws, institutions and customs that compose the general system according to which the community had agreed to be governed.

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13
Q

Examples of constitutional rules in the Uk (4 points)

A
  • Method of choosing the sovereign and prime minister
  • the status of government ministers and the position of their civil servants
  • the control of armed forces
  • the power to raise and spend public money
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14
Q

Legal sources of the constitution (4 points)

A
  • Legislation: Acts of Parliament and enactments of other bodies which parliament has conferred power to legislate
  • Judicial Precedent: Decisions of the courts interpreting the common law and interpreting statutes
  • European Union law
  • The European convention of Human rights
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15
Q

Non legal sources (2 points)

A

Advisory sources (writings by dicey)

Constitution Conventions

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16
Q

What is the Magna Carta?

A
  • 1215
  • Establishes the principle that everyone is subject to the law (Rule of Law)
  • Guarantees the rights of individuals to justice and to a fair trial
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17
Q

What is the Bill of Rights?

A

1689
Placed limits on the powers of the monarch
Sets out the rights of parliament, including the requirements for regular parliaments, free elections and freedom of speech in parliament

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18
Q

The act of settlement 1701

A

Act of settlement 1701
Act of parliament to settle the succession to the English crown l, excluding catholics from it
The succession to the crown Act 2013 removed the disqualification of person who married a catholic from the line of succession

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19
Q

Acts of union

A

1701
The acts of Union passed by the English and Scottish parliaments led to the creation of the United Kingdom of Great Britain

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20
Q

Parliament Act

A

1911, 1949

Establishes supremacy of the House of Commons over the House of Lords.

21
Q

The European communities Act

A

1972

Incorporated EC Law into Uk

22
Q

The European Union withdrawal act

A

2018

Repeals the European communities act 1972

23
Q

The Scotland Act
The government of Wales act
The Northern Ireland Act

A

1998

Devolved powers to regional assemblies/parliaments

24
Q

Case of Proclamations

A

Judicial Precedent
1611
King or Queen can only make law through parliament

25
Q

Attorney General v Wilts United Dairies Ltd

A

1921

Royal prerogative cannot be used to issue or levy taxes except by grant of parliament

26
Q

R v Secretary of State for Transport ex parte Factortame Ltd

A

1991
Supremacy of EU Law Over inconsistent UK Law
Reversed by European Union withdrawal Act

27
Q

Jackson and others v Her Majesty’s attorney General

A

An unsuccessful challenger to the parliament act which had been used to enact the Hunting Act

This ruling reaffirmed the principles of supremacy of Parliament

28
Q

What two principles did Dicey say the rule of law was based on

A

Parliamentary Sovereignty

Rule of law

29
Q

Rule of Law principles (3 points)

A
  • Everyone is equal before the law
  • Penalties can only be imposed when a law is breached
  • Remedies for legal act are to be sought and obtained in the ordinary courts
30
Q

Arguments for codified constitution

A
  • It would offer clarity and Certainty
  • Attract reverence and public loyalty
  • Be superior to other laws, so could check governments
  • Other guidelines for balancing central and local powers (devolution)
31
Q

Arguments against codified constitution

A
  • What would it protect?
  • Who would draft it?
  • Where would we draft it
  • Who would interpret it? Do we trust judges
  • Constitutional flexibility would be lost
  • The financial cost of reform. Could better use be made of public money
32
Q

Constitutional conventions examples (4 points)

A
  • Having a prime minister
  • Royal assent for Bills to become Law
  • After losing an election a Prime Minister Resigns
  • That a prime Minister is always a Member of the House of Commons
33
Q

Purposes of convention (2 points)

A
  • Prevent the constitution from becoming outdated enable it to change
  • They provide a control mechanism over those in power
34
Q

Examples of different forms of convention (4 points)

A

Royal prerogative
Existence of Cabinet
Lords/Commons relations
Common wealth

35
Q

Royal Prerogative Convention

A
  • Grant a dissolution of Parliament at the PM’s request
  • Invite the leader of the party who has the confidence of the House of Commons to form a government after an election
  • not refuse the royal prerogative to Bills passed in the House of Commons and Lords
36
Q

Cabinet convention (2 points)

A
  • Members of the cabinet - appointed by the sovereign

- Cabinet members respect the conventions of collective and ministerial responsibility

37
Q

House of Lords and House of Commons relations (4 points)

A
  • Parliament must be once a year
  • In cases of conflict House of Lords must give way to HC
    Bills
  • Bills relating to public finance must be introduced by a minister in the HC
  • The gov must command a majority in the HC
38
Q

Commonwealth Conventions (3 points)

A
  • The Uk Parliament may not legislate for former colony which is now an independent state and member of the commonwealth
  • sovereign in appointing a gov general of independent common wealth state acts on advice of the PM of that state
  • Any change to Uk succession requires a assent of C/wealth and UK Parls
39
Q

Convention of collective Ministerial Responsibility (3 points)

A
  • Cabinet Speaks with one voice
  • Senior government minister who publicly disagrees with government policy should resign
  • Ensures accountability of government as a whole
40
Q

Examples of two Senior Parliament resignations due to collective Ministerial Responsibility (2 examples)

A

Sayeeda Warsi - Resigned in 2014 citing disagreement with UK government policy over Israeli attacks on Gaza

Boris Johnson - Resigned as foreign secretary over Theresa’s mays soft Brexit plans

41
Q

Convention of individual ministerial Responsibility

A
  • Minister is responsible for his or her department
  • Just as ministers take credit for success they must also take blame for failure
  • idea holds ministers accountable
42
Q

Example of minister who resigned over individual ministerial Responsibility

A

Lord Carrington - Foreign secretary resigned after failing to anticipate attacks on the Falkland Islands by Argentina

43
Q

Top 4 causes of ministerial resignation and example for each

A

Departmental Incompetence - Lord Carrington (foreign secretary)

Sexual impropriety - John Profumo (Sex with Walis Simpson who had connections to Russian intelligence and lied about it)

Questionable Financial dealings - Maria Miller (public criticism over her expenses claims)

Errors of judgement - Amber Rudd (was the Home Secretary and misled MP’s on targets for removing illegal immigrants)

44
Q

Common characteristic of conventions (6 points)

A
  • Conventions are not written
  • Development of convention is an evolutionary process
  • Convention regulate the conduct of those holding public office
  • sanctions for breach of convention are political not legal
  • Conventions are capable of being enacted into statue
  • Conventions are not exclusive to states with unwritten constitutions.
45
Q

Sewel Convention

A
  • A convention that Westminster does not normally legislate on devolved matter in Scotland, Wales and Northern Ireland without consent from the respective region
46
Q

What was stated in R (on application of Miller) v Secretary of State for exiting the European Union

A

Uk Supreme Court: Those regions which voted against Brexit could not require the Uk Govt to get their approval before the UK activates the process to leave the EU

Sewel Convention is not legally binding, while recognised by courts it’s not enforceable.

47
Q

Case for codification of convention (4 points)

A
  • Greater Transparency of government.
  • Codified Conventions could be enforced by courts, so less likely to be disobeyed
  • The freedoms of individuals may be better protected
  • More checks on government
48
Q

Case against codification of convention

A
  • Any chance to the current system would threaten the constitution’s present flexibility
  • Definitional Problems of codification
  • The danger of judges becoming political tarnished by having to enforce convention
  • Codification night not even be possible as over time new conventions would appear

Constitutional And administrative law (4 decks)

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