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Con And Admin Law > Constitutional Law > Flashcards

Constitutional Law Flashcards

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1
Q

Features of the British constitution

A

Unwritten (about type of docs not existence)
Flexible (no special procedure to amend)
Unitary (rather than federal)
Monarchical
Subordinate to leg (rather than con supreme)
Separation of powers

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2
Q

What does the rule of law mean

A

No arbitrary discretion
Only a court can find someone guilty
Everyone is equally subject to the law

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3
Q

What are constitutional conventions

A

Binding political rules and practices

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4
Q

What if a convention is breached

A

No remedy in court

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5
Q

Can the court rely on conventions

A

Miller 2017- can recognise them but cannot comment on scope or operation
Can take them into consideration when interpreting statutes and commonwealth constitutions
Can give opinion on existence and extent

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6
Q

Sources governing parliamentary procedure

A

Ancient usage ( rules contained in orders and resolutions)
Standing orders
Rulings of speaker of House of Commons (leader of House of Lords makes rulings)

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7
Q

How is EU law incorporated into U.K. law

A

S2 and 3 European communities act 1972

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8
Q

Is the European communities act still in force

A

No it was repealed by withdrawal act

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9
Q

What does s2 HRA require

A

Take ECHR cases into consideration in a human rights case

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10
Q

Examples of constitutional conventions

A

PM leader of main party in commons
Judges avoid anything that could prevent them from sitting on future cases
Hung parliament- if incumbent PM cannot form government then opposite leader becomes PM
Cabinet responsibility- members of the cabinet don’t dissent on government policy once a decision is taken and should resign if unable to support it

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11
Q

Who is the head of state of GB and NI

A

The queen

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12
Q

What is the main source of royal power

A

Royal prerogative, a branch of common law

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13
Q

What is a constitutional monarchy

A

Monarch exercised their powers as part of a parliamentary system of government

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14
Q

How to call a general election

A

PM asks monarch to dissolve parliament and authorise a general election.
She does this by royal proclamation via the privy council

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15
Q

How often are general elections

A

5 years - parliament act 1911 and fixed term parliament act 2011

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16
Q

Can a PM change the date of a general election

A

Only by two months by order

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17
Q

How can a general election be triggered early

A

A vote of no confidence and no alternative government can be formed

Motion for early GE agreed by 2/3 of house or no division

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18
Q

Powers of monarchy

A 
Appointment of ministers and diplomats 
Foreign affairs 
Laws
Parliament 
Elections 
War/peace
Sign state papers 
Grant honours
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19
Q

Monarchs privileges and immunities

A

Never dies- successor can act immediately
Never an infant - cannot question decisions on basis monarch is under 18
Inviolable - cannot be arrested, detained or imprisoned
Can do no wrong - cannot be held legally accountable

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20
Q

How is the monarchy funded

A

The sovereign grant which is approved by parliament (government funds)

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21
Q

Is there a limit on number of ministers in commons

A

Maximum of 95 ministers in commons

House of Commons (disqualification) act 1975

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22
Q

How to dismiss a judge

A

Permission of both Houses of Parliament is needed in the form of a petition to the monarch

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23
Q

What is a Henry VIII clause

A

Allows primary legislation to be amended using secondary legislation

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24
Q

Is there any scrutiny of amendments made using Henry VIII clauses

A

Not if minister thinks they have the expertise necessary to make amendments without scrutiny

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25
Q

What changes to separation of powers did the constitutional reform act 2005 make

A

Created Supreme Court
Created judicial appointments committee
Created judicial appointments and conduct ombudsman
Created duty on ministers to uphold judicial independence
Transferred judicial functions of lord chancellor to lord Chief Justice who represents views of judiciary to exec and training, guidance and deployment of judges
Lord chancellor now member of H of C and Head of MOJ
Lord chancellor parliamentary functions now carried out by speaker of H of L

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26
Q

What does Miller 2017 says about royal prerogative

A

Cannot enter into or withdraw from treaties using royal prerogative alone (need Act of Parliament) if it will:
Change domestic law
Make a major change to U.K. constitutional arrangements
Alter a source of domestic rights

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27
Q

Can prerogative powers be curtailed

A

Yes can be displaced by statute either through express words of necessary implication
Ministers must exercise prerogative power consistent with common law and statute

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28
Q

Can prerogative legislation and prerogative acts be reviewed by JR

A

Yes - GCHQ case

Except: honours, dissolution of parliament, making of treaties, appointment of ministers

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29
Q

Where do the prime ministers powers come from

A

Statute and royal prerogative

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30
Q

What does the exec include

A

Monarch, PM, S of S, cabinet, Ministers, departments, non-dept public bodies, devolved administrations, local authorities, police, army

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31
Q

Who selects and appoints the members of the cabinet

A

PM selects them and Monarch appoints them

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32
Q

Who manages civil service

A

PM has statutory duty - RP doesn’t apply here

S of S lead the depts

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33
Q

Does the monarch attend cabinet meetings

A

No the PM attends on her behalf but she has a right to be fully informed

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34
Q

What are non- dept public bodies

A

Public bodies that work independently of ministers

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35
Q

How much control do ministers have over which departments exist

A

Public Bodies Act 2011- ministers can abolish or reform public bodies to increase accountability and costs

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36
Q

What is the Crichel Down Principle

A

Each minister must answer to parliament for all that is done by their department. Must defend civil servants in that department and take responsibility for their errors unless relating to important policy or serious individual rights. Promise corrective action. No need to endorse reprehensible behaviour of servants if minister had no previous knowledge

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37
Q

Which Acts devolved power to Scotland

A

Scotland Act 1998 and 2012

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38
Q

What two things did the Scotland Act 2016 establish

A

That the Scottish gov and parliament would not be removed without a referendum
Recognised the Sewel Convention

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39
Q

What is the Sewel Convention

A

U.K. parliament won’t legislate on devolved matters without consent of Scottish parliament but retain sovereignty to do so

40
Q

Do the devolved administrations have to legislate in accordance with EU law

A

The withdrawal act removed this requirement

41
Q

Acts establishing and suspending NI Assembly and gov

A

NI Act 1998 and 2000

42
Q

Which Acts devolved power to Wales and what did they establish

A

Government of Wales Act 1998, 2006 and 2014
Established National Assembly for Wales
Can make laws called measures of the National Assembly for Wales

43
Q

What change did the Wales act 2017 make

A

Moved from a conferred matters model to a reserved matters model

44
Q

Is devolved legislation lesser or able to be invalidated

A

It is subordinate because it’s validity depends on devolution act
Can be set aside by courts or overridden by a U.K. parliament act

45
Q

What if a devolved administration legislates outside of the competence

A

The law would be invalid

46
Q

What if it is not clear whether a law is within devolved competence

A

Interpreted in favour of validity

47
Q

What do you call a parliament with two chambers

A

Bicameral

48
Q

Can hereditary peers be elected to commons

A

Only if they disclaim their title for life under Peerage Act 1963

49
Q

What is the Salisbury Doctrine

A

Lords won’t reject a gov bill at second or third reading if it is based on an electoral mandate

50
Q

Can a lord be expelled

A

Yes lords can expel lords for any reason and can declare the seat of disqualified members vacant

51
Q

Which house can initiate financial legislation

A

Only the commons

52
Q

What is a public bill

A

A bill that makes or changes law affecting people’s rights or obligations generally in all of part of U.K.

53
Q

What is a private bill

A

Makes or changes the rights and obligations of individuals and corporations

54
Q

What is a hybrid bill

A

Concerns the general law and the rights and obligations of individuals and cooperations

55
Q

Who is on a select committee

A

MPs in proportion to their seats

56
Q

How to complain to ombudsman

A

Through MP. If you complain straight to the ombudsman they will send it back to your MP who will decide whether to refer it

57
Q

Who does the ombudsman report to

A

Select committee on public administration

58
Q

What remedies can the ombudsman advise

A

Compensation
Change of decision or procedure
Apologise

59
Q

Can the ombudsman enforce remedies

A

No

60
Q

What is a programme motion

A

Sets out the timetable for the Bill

61
Q

What is a programme order

A

Puts the timetable for the Bill into effect

62
Q

What is division

A

Speaker stops a debate and tells the house to vote

63
Q

What is a closure motion

A

MP asks speaker to use division - need support of 100 MPs

64
Q

Do SI need to go via parliament

A

Only some for;
Info only
Negative resolution procedure
Affirmative resolution procedure

65
Q

What is the negative resolution proceedure

A

A motion of prayer of annulment by either house to approve SI

66
Q

What is a affirmative resolution proceedure

A

Parliament approval needed for SI to take effect

67
Q

Can a Bill become an Act without Lords approval

A

Parliament acts 1911 and 2011
Yes in two cases:
A monetary bill that lords fail to pass within one months of it being certified as a money bill
Or
Lords refuse in two successive sessions to pass a bill which has been passed by the commons in those same sessions and 1 year has passed between second reading in first session and third reading in second session (commons)
(Doesn’t need to be same parliament)

68
Q

Exception to parliament acts 1911 and 2011

A

A bill to extent life of parliament beyond 5 years

69
Q

Two categories of EU retained law

A

Preserved legislation

Converted legislation

70
Q

What is the Enrolled Bill rule

A

Once a bill is an act the court cannot consider the way it was introduced or progressed through parliament or whether parliament was mislead by fraud

71
Q

What is implied repeal

A

Common law rule that where statutes are inconsistent the earliest statute is impliedly repealed by later statute

72
Q

Can parliament enact that there can be no implied repeal

A

No but an exception is constitutional statutes which cannot be impliedly repealed

73
Q

What is an entrenched clause

A

A clause requiring a proceedure before the act can be amended or repealed eg a referendum

74
Q

What is a prospective formula

A

Seeks to protect a statute from amendment or repeal by saying it prevails over future statutes which should be interpreted subject to this act

75
Q

S3 HRA 1998

A

Court must interpret statutes in accordance with convention rights as far as possible

76
Q

What did Factortame No 1 1990 decide regarding parliamentary sovereignty

A

Substantive community rights prevail over express terms of domestic law passed after the 1972 Act came into force

77
Q

What does s5 withdrawal act say regarding supremacy of EU law

A

EU law no longer supreme so domestic acts for after exit can impliedly repeal retained EU law

78
Q

What does s6 withdrawal act say about EU law supremacy

A

EU supremacy still applies where trained EU law and domestic law pre exit conflict

79
Q

What are private member bills

A

Bills that don’t form part of the govs legislative plan and are sponsored by individual members of the commons or lords

80
Q

How are private member bills introduced

A

Ballot and ten minute rule or notice then presentation

81
Q

Procedural requirements for a private members bill

A

Same as for public bill

82
Q

Differences in the passage of a private members bill compared to a public bill

A

Lords can veto private bill
No report stage in Lords for private bills
Private bills not debated at second reading unless objections to it are raised

83
Q

What are the two committee options that a private members bill might be sent to

A

Opposed bill committee of unopposed bill committee

84
Q

What does s6 withdrawal act say about relevance of ECJ after exit

A

No longer binding
Cannot refer a question to ECJ
Can take ECJ decisions into consideration when relevant

85
Q

What are general principles

A

Unwritten law stated by court to fill gaps

86
Q

What does the withdrawal act say about general principles

A

No action for breach of general principles after exit
Cannot disapply domestic leg for not complying with principles
Retained EU law should be interpreted in accordance with retained principles

87
Q

Are human rights part of EU law

A

Yes according to Article 6 TEU

88
Q

6 sections of EU Charter of Fundamental Rights

A

Dignity, freedoms, equality, solidarity, citizens rights, justice

89
Q

Are EU Charter rights justiciable in the U.K.

A

No due to protocol 30

90
Q

Regulations - applicability

A

General application
Binding in entirety
Directly applicable in all MS

91
Q

Decisions - applicability

A

Binding in their entirety upon those to whom they are addressed

92
Q

Directives - applicability

A

Binding as to the result to be achieved upon each MS to which it is addressed but leaves it to national authorities the choice of form and methods.
Must implement within time limit

93
Q

Do directives have direct effect

A

Van Duyn - MS courts are under an obligation to protect the rights the directive confers on the individual.

94
Q

Do directives have horizontal or vertical effect

A

They cannot be replied upon against individuals- only against MS

They don’t impose obligations on individuals- only MS and organisations subject to authority or control of state or special powers beyond those of normal individuals ( foster v British Gas)

95
Q

Francovich / Hadley Lomas

Compensation for :
Breach of EU law and loss suffered as a result
Or
Failure to transpose directive correctly

A

MS must make good damage to individuals due to breach of community law to which they are responsible if:

  1. Directive result grants rights to individuals
  2. Those rights can be identified by the directive
  3. Breach must be sufficiently serious
  4. Causal link between loss and breach
96
Q

Will there be a right to claim damages against the state for breach of EU law after brexit

A

No withdrawal act removed this

Con And Admin Law (6 decks)

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