Constitutional Law

Question 1

Shortly describe constitutional law

Answer 1

1. Deals with the relationship between the state and the individual
2. Deals with the relationship between different branches of the state (executive, legislator, judiciary)

Question 2

Which are the three major principles that underlines the constitutional rules?

Answer 2

1. The rule of law
2. Separation of powers
3. Parliamentary sovereignty

Question 3

What is public law?

Answer 3

Involves two branches: Constitutional law and administrative law.

1. Any legislation that affects the individual
2. Relates to a person’s state-mandated obligations to behave in a certain manner
3. Balance between insuring civil order and respect for the law while allowing freedom of through, speech and action
4. Must be enforced by the government (law enforcement)

Question 4

What is administrative law?

Answer 4

1. Regulation of bureaucratic managerial procedures
2. Defines the powers of the administrative agencies of government

Enforced by the executive branch of the government.

(a) it regulates international trade, manufacturing, pollution, taxation etc
(b) may also apply to review of decisions of so called smipublic bodies, such a non-profit coperations, disciplinary boards etc

Question 5

Describe the British constitution

Answer 5

Merger of the United Kingdom and Great Britain and Kingdom of Ireland in 1801:

1. England
2. Wales
3. Scotland
4. Northern Ireland

It is a unitary state and not a federation such as the US.

It is a combination of statue, common law and unwritten convention. The constitution is not written down in one single statue.

Question 6

What is the Bill of Rights 1689?

Answer 6

It is a statute which introduces Parliamentary privilege. This statute is fundamental for the functioning of the British Parliament. It enabled any member of the either chamber in Parliament to make accusations about individuals or companies in open debates without fear of arrest or prosecution for deformation.

Question 7

Name some unwritten souses of the British constitution

Answer 7

1. Parliamentary constitutional conventions and royal prerogatives
2. Constitutional convention: informal and uncodified procedural agreement followed by the institutions of a state

Question 8

Define the Crown

Answer 8

Corporation sole (legal entity comprising a single incorporated office occupied by a single person). It is the legal embodiment of governance (not physical crown). Own all land (known as a monarch owning the Crown state in right of the Crown. This is different from the Queens personal property. It also refers to the executive and the judiciary. This means that buildings that are owned by the Government is also Crown land, since the Government is not a legal entity. The Crown can have copyright (since it’s a legal entity).

Question 9

What is the Parliament?

Answer 9

It is the supreme legislative body in the UK and British overses territories. Its headed by Queen Elizabeth II

Consists of:

1. The house of Lords
2. The house of commons
3. Monarch

Question 10

What is the House of Lords?

Answer 10

They are responsible for scrutinizing legislation proposed by the House of Commons.
Appointment can be made by inheritance (Lords Temporal) or by ecclesiastical role (Lords Spiritual).

Lords Temporal - majority are life peers appointed by the monarch on the advice of the Prime Minister.

Lords Temporal: is comprised by 26 senior bishops of the Church of England.

You can no longer inherit the position.

Question 11

What is the House of Commons

Answer 11

It’s the lower House and has 650 members. Members are elected. MP’s must be 18 years old, meet citizenship requirements. Cannot be member is bankrupt, mentally ill, guilty of high treason, prisoners with a sentence in excess of more than one year, people guilty of elected related offences.

Question 12

How is Parliament dissolved?

Answer 12

The monarch cannot dissolve Parliament.

New Parliamentary session begin after a general election, which is held every 5 years (as a main rule). Parliament is automatically dissolved by law 25 working days before the election date. There are two ways Parliament can be dissolved before the election date.

1.

Question 13

What is the Bill of RIghts?

Answer 13

Introduced a constitutional principle that is fundamental to the functioning of the British Parliament namely Parliamentary Privilege. It enables any member of either chamber in Parliament to make accusations about individuals or companies in open debate without fear of arrest for contempt of court or of prosecution for defamation.

Question 14

What is constitutional convention?

Answer 14

An informal and uncodified procedureal agreement that is followed by the institutions of a state, even though it is not written in any docuemnt that has legal force.

Question 15

Name some common constitutional conventions

Answer 15

1. Government ministers are held responsible
2. the monarch must give Royal Assent and listen to her advisers and follow their advice.
3. All money bills must be introduced in the House of Commons
4. the Prime Minister is the leader of the party with an absolute majority of seats in the House of Commons
5. all pm must be members of the House of Commons or Lords.
6. All cabinet members must be members of the Privy Counsel.
7. The Ponsonby Rule ( texts of most international treaties are laid before Parliament at least 21 days before rectification.
8. Treaties will not be ratified until the passing of a suitable statue by Parliament.
9. The House of Lords shall not appose legislation from the House of Commons that was a part of the Governments manifesto

Question 16

What is Parliamentary Sovereignty?

Answer 16

Means the legislative supremacy of Parliament. Holds that statues passed by Parliament are the UK’s supremacy and final source of law and Parliament can in theory change the constitution by an act of parliament.

Question 17

What is the law of confidence?

Answer 17

Developed in common law to protect from unauthorized disclosure of information which is communicated in confidence, if the protection is in the public interest. The When confidential information is in the Government’s possession, it can be protected from disclosure only if the public interest requires protection.

It must:

1. Not be public and hence have the quality of confidential.
2. Have an obligation of confidence (expressed or implied)
3. Be subject to unauthorized use.

Question 18

What is CRAIG?

Answer 18

It is the Constitutional Reform and Governance Act 2010. It substantially reformed the Royal Prerogative. Conferred the Ponsonby Rule in statue. This means that treaties must be laid before Parliament before ratified.

Question 19

Define Civil Service and what qualities Civil Servants should have

Answer 19

The civil service is independent of government and is also composed mainly of career bureaucrats hired on professional merit rather than appointed or elected, whose institutional tenure typically survives transitions of political leadership. They should be politically impartial, have integrity and act honestly.

Question 20

What does the Lord Chief Justice do?

Answer 20

Head of the Judiciary of England and Wales and the most senior judge in the Criminal Division of the Court of Appeal. Hes responsibilities include:

1. represent the views of the Judiciary of England and Wales to Parliament and Government,
2. the walfarae, training of the Judiciary
3. deplyment of judges and allocation of work in courts in Englands and Wales

The Lord Chief Justices are appointed by a special panel convened by the Judicial Appointments Commission. Generally appointed from among Appeal Court Judges. Appointment can also be made from the Supreme Court.

The Lords Chief Justice is also head of Criminal Justice and President of the Courts of England and Wales

Question 21

What does the Lord Chancellor do?

Answer 21

Appointed by the Sovereign on the advice of the Prime Minister. Member of the Privy Counsel and Cabinet (as Justice Secretary/minister of Justice) and is responsible for the efficient functioning and independence of the courts

Question 22

Describe “Separation of Powers”

Answer 22

A fundamental principle of the British Constitution. The state is divided in three branches:

1. legislature (Parliament)
2. the executive (the Government of the day that forms the cabinet
3. the judiciary (judges who apply the law)

Question 23

How is the House of Lords powers limited in regards to law making?

Answer 23

The Parliament Act (1911) and the Parliament Act (1949) provide a way of solving disagreement between the Commons and Lords, under which certain types of bills may be presented for Royal Assent without the consent of the Lords. The Lords can no longer Veto a Bill, except in cases where the purpose of the Bill is to extend the lifetime of Parliament. The Lords can delay a Bill with one year.

Bills that are NOT subject to the Parliament Act must be approved by the House of Lords:

1. Bills prolonging the length of Parliament
2. Private Bills
3. Bills sent up to the Lords less than a month before the end of a session (Parliament terms)
4. Bills that starts in the Lords

Public Money Bills do not require the consent from the House of Lords. The Lords cannot block or amend, provided that it has been presented to them before one month before end of session.

Note that Private Member Bills are not the same as Private Bills and is therefore not included in the above.

Question 24

Describe the Entrick V Carrington case in regards to the Rule of Law

Answer 24

The judgment established the limits of executive power in English law: the state may act lawfully only in a manner prescribed by statute or common law

Question 25

Describe the principle Habeas Corpus

Answer 25

It is an example of historical royal prerogative which is a prerogative writ used to challenge the validity of a person’s detention either in official custody (such as when held pending deportation or extradition), or in private hand. The person should be produced from custody and brought before the court which will then decide on the merits, whether the prisoner should be detained. It is meant to safeguard individual freedom again arbitrary state action. It was historically obtained by petitioning to the Sovereign. Now you seek it from the divisional Court of the Queens bench.

Question 26

Describe a Private Bill

Answer 26

A private members’ bill (PMB) in the Parliament of the United Kingdom is a type of public bill that can be introduced by either members of the House of Commons or House of Lords who are not Ministers. Less parliamentary time is given to such bills and as a result only a minority of PMBs actually become law. AS with other Public Bills their purpose is to change the law as it applies to the general population.

Question 27

What is the Royal Mint?

Answer 27

a government-owned mint that produces coins for the United Kingdom. Operating under the name Royal Mint Ltd, the mint is a limited company that is wholly owned by Her Majesty’s Treasury and is under an exclusive contract to supply all the nation’s coinage.

Question 28

Name some Royal prerogative powers beside the Royal Mint.

Answer 28

1. Royal Charters
2. Mining precious metals
3. Coinage
4. Treasure trove
5. Printing
6. Guardianship of infants

Question 29

How is Justice of the Supreme Court appointed?

Answer 29

Appointment of Supreme Court Justices are made by the Sovereign at the recommendation of the Prime Minister and Lords Chancellor, following the recommendation of an independent selection committee.

Question 30

What are the requirements to be appointed as a Justice for the Court of Appeal?

Answer 30

To be eligible for appointment as a Lord Justice of Appeal, a candidate must:

1. be a judge of the High Court
2. be a solicitor or barrister with at least 7 years post qualification experience

Additional selection criteria may be identified by the Lord Chancellor, such as experience sitting as a judge in a higher court.

Appointment is by The Queen on the recommendation of a selection panel convened by the Judicial Appointments Commission. He is expected to sit for a reasonable length of service (which is usually 5 years).

Question 31

How is a Circuit Judge in the Crown Court addressed?

Answer 31

Your Honour

Question 32

How is a High Court Judge or Judge for Court of Appeal or Supreme Court Judge addresses?

Answer 32

Your Lordship or Ladyship

Question 33

How is a District Judge or Magistrate addresses?

Answer 33

Sir or Madam

Question 34

What is Sub Judice?

Answer 34

Parliament does not comment on the cases which are before the court.

Question 35

What is Collective responsibility?

Answer 35

it compels the Prime Minister and Government Ministers to cast their parliamentary votes in favor of the government’s position on a particular issue, regardless of their own personal feelings on the subject or the interests of their constituents whom they represent.

Question 36

Describe Parliamentary Sovereignty

Answer 36

Parliament, as a legislative body, is the supreme law-making body to all other government institutions (including any executive or judicial bodies as they may excist

Question 37

Describe Parliamentary Privilege

Answer 37

Members of the HOuse of Commons or House of Lords is able to make accusations about individuals or companines in open debate in Parliament whithout fear or arrest for contemt of court or of prosecution for defamation. Introduced by statue - the Bill of RIhgt 1689.

Question 38

A potential Judge candidate must satisfy the judicial appointment legibility conditions. This means that you cannot be over 70 years of age. You should be able to serve for a reasonable length (approx 5 years), relevant qualification as solicitor or barrister and have relevant experience in law. Which courts require you to fulfill these conditions on a 7 year basis?

Answer 38

1. Lord Justice of Appeal
2. High Court Judges
3. Circuit Judges
4. Recorders

Question 39

A potential Judge candidate must satisfy the judicial appointment legibility conditions. This means that you cannot be over 70 years of age. You should be able to serve for a reasonable length (approx 5 years), relevant qualification as solicitor or barrister and have relevant experience in law. Which courts require you to fulfill these conditions on a 5 year basis?

Answer 39

1. Master and registrars
2. District Judges
3. Magistrates (0 years experience)

Question 40

What is an ouster clause?

Answer 40

In some cases, the prospect of Judicial Review may be specifically excluded by a legislator, in order that administrative decisions made under the legislation concerned are final, binding and not appealable. However, the courts have sought to retain jurisdiction wherever possible and have consistently held that none but the clearest words can exclude judicial review.

Question 41

What grounds are there for revising a administrative decision via judicial review?

Answer 41

1. Illegality
2. Irrationality (sometimes referred to as unreasonableness)
3. Procedural impropriety

The first two are described as substantive grounds, as they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground, as it focuses on the decision making procedure itself, rather than the content of the decision.

Question 42

In regards to Judicial Review, name some reasons for Illegality

Answer 42

1. Unlawful sub-delegation (a person cannot sub-delegate)
2. Error of law or error of fact (misunderstood the law) Note that questions of fact would not be subject for Judicial Review e.g. does the person have accommodation or not.
3. The powers used for the purpose are different from the one envisaged by the law which they were granted
4. Ignoring relevant considerations or taking irrelevant consideration into account (banning a rugby club from using a local authorities grounds after some of the club’s members went on a tour in South Africa at the time of Apartheid)
5. Fettering discretion (an authority will be acting unreasonably where it refuses to hear application or makes certain decisions, without taking individual circumstances into account)

Question 43

In regards to Judicial Review, name some reasons for irrationality

Answer 43

Irrationality is defined as “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it. (“Wednesbury unreasonableness”)

Note that reasonable is not the same as absolutely correct. Instead it means that the decision should be based on logical or rational principles.

Question 44

What is the Master of the Rolls?

Answer 44

The Keeper or Master of the Rolls and Records of the Chancery of England, known as the “Master of the Rolls”, is the second-most senior judge in England and Wales after the Lord Chief Justice, and serves as President of the Civil Division of the Court of Appeal and Head of Civil Justice.

Question 45

How has HRA impacted judicial review?

Answer 45

It has added the Proportionality test. It is likely to have a wider scope than the Wednesbury unreasonableness test. It is used for cases involving HRA rights.

Powers must be exercised in a proportional manner to the objects that is being pursued.

Question 46

What does “breach of Natural Justice” men in relation to judicial review?

Answer 46

It required that the decision maker approaches the decision-making process with “fariness”. It includes:

1. the rule against bias (no personal interest on decision-maker)
2. the right to a fair hearing
3. duty to give reason (only if the statute says that the public authority needs to give reason. Otherwise it is not required)
4. duty to consult

Question 47

Describe “legitimate expectations” in relation to Judicial Review

Answer 47

As well as legal obligations, a public body may, by its own statements and/or conduct, be expected to behave in a particular way, where individuals have an expectation regarding the manner in which it will behave. e.g a decision maker has carried out certain policies one way and the expectation is that it will carry on doing so.

Courts view legitimate expectations restrictively, since public bodies must be allowed to change their procedures. Complainants must therefore also show that deriving from the excising policy is an abuse of power.

Question 48

Which are the remedies for Judicial Review?

Answer 48

1. Quashing order (nullifying the decision rendering it invalid. Often used where an authority has acted ultra vires and is the most common remedy)
2. Prohibition order (required a public body NOT to do something in contemplation e.g stop local authority from licensing indecent films)
3. Mandatory order/ enforcement order or mandamus (Fulfill duties or deal with wrongful failure to act. It is an order of performance. failure to act is contempt of court)
4. Declaration (clarifies the respective rights and obligations of the parties)
5. Injunction (stop authority form acting in an unlawful way. a mandatory injunction is when the body is demanded to do something and an interim injunction is granted in emergency situations)
6. Damages (available in limited circumstances. There must be either a private law cause of action e.g. breach of statutory duty or a claim based on HRA)
7. Discretion (more than once remedy can apply. Also, even where the court finds that the authority has acted wrongly, it does not have to grant any remedy e.g where the claimant also is a fault or where the outcome of another decision would not have had a significantly different outcome)

Question 49

How do you seek Judicial Review?

Answer 49

You need to receive leave from the High Court and application need to be made in good time or within 3 months, at the latest. Civil Procedure rules deal specifically with judicial review

Question 50

Can a claimant sue in civil suit when it is a question of public law?

Answer 50

There is an exclusivity rule that prevents public interests matters from becoming subject to civil proceedings, as this would remove the safeguards present with judicial review , such as the timely submission of a claim.

Question 51

What is “arrest at common law for breach of the peace”?

Answer 51

Breach of the peace is not in itself a criminal offence, however the police and any other person have a power of arrest where there are reasonable ground for believing a breach of the peace is taking place or is imminent.

Can occur on either public or private property. There must be some level of violence, threatened or actual, in order to justify an arrest.

Breach of the peace is defined as: “whenever harm is actually done or is likely to be done to a person or his presence to this property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance”

Question 52

What is a public procession?

Answer 52

It is the same a a march and takes place in a public place. Public place is defined as any highway and any place to which, at the material time, the public or any section to the public has access, on payment or otherwise, as of right or by virtue of express or implied permission.

A procession is more than a mere body of persons, it is a body of persons who are moving along a route. There is no minimum number of persons required.

Question 53

When do organisations require to give notice for a public procession?

Answer 53

1. demonstrate support for or opposition to the vies of any person or body of persons,
2. to publicize a cause or campaign,
3. to mark or commemorate an event

Give the police no less than 6 clear days’ written notice. This does not apply where it is not reasonable practical to do so,

Question 54

What are the grounds of the SPO (senior police officer) to impose conditions of a public procession?

Answer 54

Conditions may only be imposed on a public procession where an SPO reasonable believes that

1. adverse consequences would result from the continuation of the procession or
2. the procession is being organised for an illegitimate purpose.

The resulting consequences are:

1. serious public disorder; or
2. serious damage to property; or
3. serious disruption to the life of the community.

Question 55

How can a public procession be banned?

Answer 55

can be done by the SPO up to three months in advance, by applying to the local authority for a banning order. The SPO must believe that the conditions are sufficient in order to prevent serious disorder. The requirement of serious order carries a high threshold and either the risk to property, community disruption nor intimidation are sufficient ground for justifying a ban.

Question 56

What is public assembly?

Answer 56

means an assembly of two or more persons in a public place which is wholly or partly open to the air. The purpose of the assembly is irrelevant. Unlike public processions, the is normally no requirement to give prior notice to police.

Question 57

Which conditions can be imposed on a public assembly?

Answer 57

the ground are the same as for a public procession. However, the conditions are limited to:

1. the number of people who may take part
2. the location for the assembly and
3. maximum duration

Conditions must be proportionate. There are no powers to ban a public assembly. Indirect measures resulting in face value ban can be a breach of art 11 of the ECHR

Question 58

What does the Police reform and Social Responsibility Act 2011 cover?

Answer 58

5 distinct policy areas:

1. police accountability and governance
2. alcohol licensing
3. regulation of protests around Parliament Square
4. misuse of drugs
5. issue of arrest warrants in respect of private prosecutions for universal jurisdiction offences.

Question 59

Which offences are there under the Public Order Act 1986?

Answer 59

1. Riot
2. Violent disorder
3. affray
4. causing fear or provocation of violence
5. using threatening or abusive words or behavior likely to cause harassment, alarm or distress to another person
6. intentional harassment, alarm or distress

Question 60

What are the prerequisite for riot?

Answer 60

12 or more people who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot.

Riot can commence in private and public areas.

Riot is an indictable offence, triable before the Crown Court (only) and carries a penalty of up to 10 years’ imprisonment and/or fine.

Where fewer than 12 persons present, the lesser offence of “violent Disorder” is charged (at least 3 people and no common purpose is required. indictable offence and up to 5 years’ imprisonment on indictment or 6 months + fine summarily).

Note that a person is only guilty of violent disorder if he must have intended violence or intended to threaten violence or be aware that his conduct may be interpreted as being violent or threatening.

Question 61

What are the prerequisite for affray?

Answer 61

A person uses or threatens unlawful violence toward another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for this personal safety.

No bystander need actually be present at the scene.

The threat cannot be made by words alone. Only violence against property is not enough either. Can be committed in public or private place.

Can be committed by one person, but there has to be a victim present to which the violence is directed.

A person guilty of affray is liable on conviction on indictment to imprisonment of 3 years + fine, or on summary conviction to imprisonment for max 6 months + fine. (triable either way)

Question 62

What are the prerequisite for “causing fear or provocation of violence”?

Answer 62

1. If a person uses, towards another person threatening, abusive or insulting words or behavior or
2. distributes to another person any writing, sign or other visible representation which is threatening, abusive or insulting.

The person receiving should believe that immediate unlawful violence will be used against him or another person.

May be committed in public or private place. It does not include a dwelling however. The words or cations must be heard by the receiving person.

It is a summary offence with imprisonment up to 6 months and/or fine.

Question 63

What are the prerequisite for “Using threatening or abusive words or behavior likely to cause harassment, alarm or distress to another person”?

Answer 63

Harassment, alarm or distress is a statutory offence in England and Wales. A person is guilty if he:

1. uses threatening or abusive words or behavior, or disorderly behavior or
2. displays any writing, sign or other visible representation which is threatening or abusive within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

May be committed in private or public place. However, does not include dwelling. It is a summary offence punishable with fines.

Question 64

What are the prerequisite for “Intentional harassment, alarm or distress”?

Answer 64

1. uses threatening, abusive or insulting words or behavior, or disorderly behavior or
2. displays any writing, sign, or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.

May be committed in private or public place. However, does not include dwelling. It is a summary offence punishable with fines.

Question 65

Describe aggravated trespass

Answer 65

You must be doing two things to commit aggravated trespass:

1. Trespassing and
2. Intentionally obstructing, disrupting, or intimidating others from carrying out ‘lawful activities’.

Further to this, a senior police officer has the power to order any person believed to be involved in aggravated trespass to leave the land; if they refuse to leave after being ordered to by police officer, or if they return to the land in question within a period of three months, this is an additional offence.

Maximum penalty is 3 months imprisonment, or a fine of £2500, or both. First time offenders would likely get a fine of between £200 – £300.