Constitutional Law Flashcards
Features of the British constitution
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
What does the rule of law mean
No arbitrary discretion
Only a court can find someone guilty
Everyone is equally subject to the law
What are constitutional conventions
Binding political rules and practices
What if a convention is breached
No remedy in court
Can the court rely on conventions
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
Sources governing parliamentary procedure
Ancient usage ( rules contained in orders and resolutions)
Standing orders
Rulings of speaker of House of Commons (leader of House of Lords makes rulings)
How is EU law incorporated into U.K. law
S2 and 3 European communities act 1972
Is the European communities act still in force
No it was repealed by withdrawal act
What does s2 HRA require
Take ECHR cases into consideration in a human rights case
Examples of constitutional conventions
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
Who is the head of state of GB and NI
The queen
What is the main source of royal power
Royal prerogative, a branch of common law
What is a constitutional monarchy
Monarch exercised their powers as part of a parliamentary system of government
How to call a general election
PM asks monarch to dissolve parliament and authorise a general election.
She does this by royal proclamation via the privy council
How often are general elections
5 years - parliament act 1911 and fixed term parliament act 2011
Can a PM change the date of a general election
Only by two months by order
How can a general election be triggered early
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
Powers of monarchy
Appointment of ministers and diplomats Foreign affairs Laws Parliament Elections War/peace Sign state papers Grant honours
Monarchs privileges and immunities
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
How is the monarchy funded
The sovereign grant which is approved by parliament (government funds)
Is there a limit on number of ministers in commons
Maximum of 95 ministers in commons
House of Commons (disqualification) act 1975
How to dismiss a judge
Permission of both Houses of Parliament is needed in the form of a petition to the monarch
What is a Henry VIII clause
Allows primary legislation to be amended using secondary legislation
Is there any scrutiny of amendments made using Henry VIII clauses
Not if minister thinks they have the expertise necessary to make amendments without scrutiny
What changes to separation of powers did the constitutional reform act 2005 make
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
What does Miller 2017 says about royal prerogative
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
Can prerogative powers be curtailed
Yes can be displaced by statute either through express words of necessary implication
Ministers must exercise prerogative power consistent with common law and statute
Can prerogative legislation and prerogative acts be reviewed by JR
Yes - GCHQ case
Except: honours, dissolution of parliament, making of treaties, appointment of ministers
Where do the prime ministers powers come from
Statute and royal prerogative
What does the exec include
Monarch, PM, S of S, cabinet, Ministers, departments, non-dept public bodies, devolved administrations, local authorities, police, army
Who selects and appoints the members of the cabinet
PM selects them and Monarch appoints them
Who manages civil service
PM has statutory duty - RP doesn’t apply here
S of S lead the depts
Does the monarch attend cabinet meetings
No the PM attends on her behalf but she has a right to be fully informed
What are non- dept public bodies
Public bodies that work independently of ministers
How much control do ministers have over which departments exist
Public Bodies Act 2011- ministers can abolish or reform public bodies to increase accountability and costs
What is the Crichel Down Principle
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
Which Acts devolved power to Scotland
Scotland Act 1998 and 2012
What two things did the Scotland Act 2016 establish
That the Scottish gov and parliament would not be removed without a referendum
Recognised the Sewel Convention
What is the Sewel Convention
U.K. parliament won’t legislate on devolved matters without consent of Scottish parliament but retain sovereignty to do so
Do the devolved administrations have to legislate in accordance with EU law
The withdrawal act removed this requirement
Acts establishing and suspending NI Assembly and gov
NI Act 1998 and 2000
Which Acts devolved power to Wales and what did they establish
Government of Wales Act 1998, 2006 and 2014
Established National Assembly for Wales
Can make laws called measures of the National Assembly for Wales
What change did the Wales act 2017 make
Moved from a conferred matters model to a reserved matters model
Is devolved legislation lesser or able to be invalidated
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
What if a devolved administration legislates outside of the competence
The law would be invalid
What if it is not clear whether a law is within devolved competence
Interpreted in favour of validity
What do you call a parliament with two chambers
Bicameral
Can hereditary peers be elected to commons
Only if they disclaim their title for life under Peerage Act 1963
What is the Salisbury Doctrine
Lords won’t reject a gov bill at second or third reading if it is based on an electoral mandate
Can a lord be expelled
Yes lords can expel lords for any reason and can declare the seat of disqualified members vacant
Which house can initiate financial legislation
Only the commons
What is a public bill
A bill that makes or changes law affecting people’s rights or obligations generally in all of part of U.K.
What is a private bill
Makes or changes the rights and obligations of individuals and corporations
What is a hybrid bill
Concerns the general law and the rights and obligations of individuals and cooperations
Who is on a select committee
MPs in proportion to their seats
How to complain to ombudsman
Through MP. If you complain straight to the ombudsman they will send it back to your MP who will decide whether to refer it
Who does the ombudsman report to
Select committee on public administration
What remedies can the ombudsman advise
Compensation
Change of decision or procedure
Apologise
Can the ombudsman enforce remedies
No
What is a programme motion
Sets out the timetable for the Bill
What is a programme order
Puts the timetable for the Bill into effect
What is division
Speaker stops a debate and tells the house to vote
What is a closure motion
MP asks speaker to use division - need support of 100 MPs
Do SI need to go via parliament
Only some for;
Info only
Negative resolution procedure
Affirmative resolution procedure
What is the negative resolution proceedure
A motion of prayer of annulment by either house to approve SI
What is a affirmative resolution proceedure
Parliament approval needed for SI to take effect
Can a Bill become an Act without Lords approval
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)
Exception to parliament acts 1911 and 2011
A bill to extent life of parliament beyond 5 years
Two categories of EU retained law
Preserved legislation
Converted legislation
What is the Enrolled Bill rule
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
What is implied repeal
Common law rule that where statutes are inconsistent the earliest statute is impliedly repealed by later statute
Can parliament enact that there can be no implied repeal
No but an exception is constitutional statutes which cannot be impliedly repealed
What is an entrenched clause
A clause requiring a proceedure before the act can be amended or repealed eg a referendum
What is a prospective formula
Seeks to protect a statute from amendment or repeal by saying it prevails over future statutes which should be interpreted subject to this act
S3 HRA 1998
Court must interpret statutes in accordance with convention rights as far as possible
What did Factortame No 1 1990 decide regarding parliamentary sovereignty
Substantive community rights prevail over express terms of domestic law passed after the 1972 Act came into force
What does s5 withdrawal act say regarding supremacy of EU law
EU law no longer supreme so domestic acts for after exit can impliedly repeal retained EU law
What does s6 withdrawal act say about EU law supremacy
EU supremacy still applies where trained EU law and domestic law pre exit conflict
What are private member bills
Bills that don’t form part of the govs legislative plan and are sponsored by individual members of the commons or lords
How are private member bills introduced
Ballot and ten minute rule or notice then presentation
Procedural requirements for a private members bill
Same as for public bill
Differences in the passage of a private members bill compared to a public bill
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
What are the two committee options that a private members bill might be sent to
Opposed bill committee of unopposed bill committee
What does s6 withdrawal act say about relevance of ECJ after exit
No longer binding
Cannot refer a question to ECJ
Can take ECJ decisions into consideration when relevant
What are general principles
Unwritten law stated by court to fill gaps
What does the withdrawal act say about general principles
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
Are human rights part of EU law
Yes according to Article 6 TEU
6 sections of EU Charter of Fundamental Rights
Dignity, freedoms, equality, solidarity, citizens rights, justice
Are EU Charter rights justiciable in the U.K.
No due to protocol 30
Regulations - applicability
General application
Binding in entirety
Directly applicable in all MS
Decisions - applicability
Binding in their entirety upon those to whom they are addressed
Directives - applicability
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
Do directives have direct effect
Van Duyn - MS courts are under an obligation to protect the rights the directive confers on the individual.
Do directives have horizontal or vertical effect
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)
Francovich / Hadley Lomas
Compensation for :
Breach of EU law and loss suffered as a result
Or
Failure to transpose directive correctly
MS must make good damage to individuals due to breach of community law to which they are responsible if:
- Directive result grants rights to individuals
- Those rights can be identified by the directive
- Breach must be sufficiently serious
- Causal link between loss and breach
Will there be a right to claim damages against the state for breach of EU law after brexit
No withdrawal act removed this
