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FLK 1 Revision > Constitutional Law Revision > Flashcards

Constitutional Law Revision Flashcards

1
Q

The Parliament Acts 1911-1949 allow a bill to become an Act of Parliament if it has been rejected twice by the House of Lords in two successive session of Parliament

A
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2
Q

The power to ratify treaties is a royal prerogative power recognised by the common law. However, statute now requires government to lay the treaty before the House of Commons and House of Lords who then have 21 days to vote against the treaty before it can be ratified by the government

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3
Q

Any MP in the UK Parliament can vote on a bill regardless of whether it is a bill which affects only England and they are not an MP in England for example

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4
Q

Usually, an application for judicial review needs to be brought promptly, but no later than three months after the action being reviewed occurred

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5
Q

Retained domestic case law: a binding decision of a UK court in relation to EU law that pre-dates the end of the transition period (December 2020). For retained domestic case law, the ordinary rules of precedent apply-courts are bound by decisions from courts that are higher or equivalent to them

A
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6
Q

Limited rights under the ECHR are rights that can be restricted only under the circumstances described in the ECHR article itself

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7
Q

Under the European Union (Withdrawal) Act 2018, at the end of the transition period, most EU law became part of UK law as a new category of law-retained EU law. If there is a conflict between retained EU law and legislation enacted before the end of the transition period (December 2020), the retained EU law will prevail.

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8
Q

The committee stage for the passage of bills in the House of Commons can take place in one of two committees: a Public Bill Committee or a Committee of the Whole House. Bills of ‘first-class constitutional importance’ are debated in a Committee of the Whole House

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9
Q

Constitutional conventions

A

Rules which are not matters of law, but rather are derived from practice and can apply to the Monarch, government ministers, or MPs (among others)

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10
Q

The courts cannot directly enforce constitutional conventions

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11
Q

The European Union (Withdrawal) Act 2018 created a new form of UK law, known as retained EU law, which preserves most EU law that entered UK law via the European Communities Act 1972 before the end of the transition period.

A
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12
Q

Categories of retained EU law

A
  1. EU-derived domestic legislation
  2. Direct EU legislation
  3. Directly effective EU law
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13
Q

EU directives are implemented into the law of member states by domestic legislation. In the case of the UK, this is done by primary or secondary legislation

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14
Q

Under the Human Rights Act 1998, the UK courts are required to “take into account” the case law of the ECtHR. This has been interpreted as requiring the courts to follow (or ‘mirror’) the ECtHR’s interpretation of convention rights when the point is clear and settled but it should depart from ECtHR judgement if it finds that it is right to do so

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15
Q

Who can Section 6 of the Human Rights Act 1998 claims be brought against?

A

Public authority only

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16
Q

Alleging a violation of Article 14 of the ECHR requires more than just discriminatory conduct; it requires discrimination with respect to another Convention right

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17
Q

A person must be a ‘victim’ to have standing under Section 6 of HRA 1998, meaning that the person was directly affected by the conduct at issue

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18
Q

What are the steps of the legislative process?

A
  1. First reading
  2. Second reading
  3. Committee stage
  4. Report stage
  5. Third reading
  6. Consideration of amendments
  7. Royal assent
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19
Q

Who makes up the Crown?

A
  1. The privy council
  2. The monarch
  3. Ministers
  4. Civil servants
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20
Q

If Parliament passes an Act giving the government powers to act in an area which overlaps with one of the prerogative powers the government must act under the authority of the Act of Parliament and not the prerogative power

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21
Q

How is an international treaty ratified?

A

The government must lay a draft before both Houses and give both Houses 21 days to vote against ratification

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22
Q

What is needed to abolish the Welsh Parliament?

A

A referendum of the Welsh people and an Act of the UK Parliament

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23
Q

What must be shown in order for a restriction on a qualified right under the Human Rights Act 1998 to be found proportional?

A
  1. The restriction must be designed to meet a legitimate aim
  2. The restriction must be rationally connected to achieving its aim
  3. The restriction must be no more than necessary to achieve its aim
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24
Q

What is the concept of derogation with respect of the ECHR?

A

The members states of the ECHR can depart from complying with most of the ECHR articles in the event of war or other public emergencies threatening the nation

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25
Q

Section 6 of HRA

A

Makes it unlawful for a public authority to act in a way that is incompatible with a person’s rights under the ECHR

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26
Q

How big must a group be for their conduct to potentially qualify as a trespassory assembly?

A

At least 20 people

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27
Q

Notice must be given at least 6 clear days before a public procession (if possible), and it must be provided to the local police station.

A
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28
Q

The state can limit a qualified right if necessary to promote legitimate interests stated in the ECHR article which include the interests of national security or the prevention of disorder or crime

A
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29
Q

Under the doctrine of parliamentary sovereignty, Parliament can enact legislation that has effect beyond the boundaries of the UK. Thus, Parliament can legislate so that something is a criminal offence under UK law, regardless of where it takes place in the world.

A
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30
Q

All government ministers have a fundamental duty not to mislead Parliament. If a minister inadvertently misleads Parliament, the minister must correct the error as soon as possible, but if the minister knowingly misleads Parliament, the minister would be expected to resign

A
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31
Q

Personal prerogative powers are exercised personally by the Monarch in accordance with various constitutional conventions. For instance, the personal prerogative powers include the appointment of the Prime Minister. However, the Monarch has no real freedom of choice because the position is heavily constrained by a series of constitutional conventions

A
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32
Q

An application for judicial review can be made only as a last resort after all other possibilities have been exhausted e.g. appeal a decision to a tribunal first

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33
Q

To have standing in a judical review case the claimant must have a sufficient interest

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34
Q

After the end of the transition period (in December 2020), the devolved legislatures were no longer bound by EU law and thus could legislate contrary to EU law on matters within their legislative competence

A
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35
Q

Ministerial resignations usually relate only to their position within the government; their seat in the House of Commons (or the House of Lords) is unaffected

A
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36
Q

Ministers need not be on the Privy Council

A
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37
Q

The UK follows an asymmetric devolution scheme. This means that there are different levels of devolution across Wales, Scotland, and Northern Ireland, with no devolution of legislative power given to England

A
38
Q

Despite the lack of a majority, the government remains in office until there is a vote of no confidence in the House of Commons

A
39
Q

The government remains in office until the House of Commons passes a motion of ‘no confidence’, which can trigger an early election. After the election, if another party has a majority of seats in the Commons, that party would form the next government

A
40
Q

The Prime Minister has the power to make and ratify treaties alone BUT treaties will always be put to Parliament

A
41
Q

Ram doctorine

A

Government shall have the power to carry on ordinary business even if the power is not explicitly set out by statute or royal prerogative

42
Q

Enrolled bill rule

A

Courts must not question the validity of Acts of Parliament and must give effect to them

43
Q

Salisbury convention

A

If a government bill is implementing a commitment that the party in power made in their manifesto then the Lords will grant a second reading as a matter of course

44
Q

Parliament Act 1911-1949

A

If the Lords block legislation passed in the Commons and the bill is passed the next year by the Commons again and the Lords block it again it will nonetheless be sent for Royal Assent

45
Q

Negative resolution procedure

A

A draft of secondary legislation is laid in both Houses and will take effect unless either House rejects the legislation within 40 days

46
Q

Affirmative resolution procedure

A

A draft secondary legislation is laid in both Houses and it will take effect only if both houses vote in favour

47
Q

Legislative prerogative powers include Orders in Council by the Privy Council

A
48
Q

Judicial prerogative powers include appeals from Commonwealth nations to Judicial Committee of the Privy Council

A
49
Q

Although ratification of a treaty is within the Crown’s prerogative powers by Act of Parliament a draft of the treaty must be laid before both Houses who are given 21 days to vote against ratification

If either House votes against ratification, government can explain why they want to ratify and the Commons then has 21 days to reject

A
50
Q

Cardinal convention

A

Requires the Monarch to act on the advice of government ministers in particular the Prime Minister

51
Q

The Judicial Committee of the Privy Council exercises the Royal Prerogative power to hear appeals but only from independent Commonwealth nations and British Oversea Territories

A
52
Q

Sewel convention

A

If the UK parliament is going to legislate on a matter devolved to Scotland, Wales and Norther Ireland, the consent of the affected institutions is required via a legislative consent motion

53
Q

If a judicial review of a planning decision is sought, it must be brought within 6 weeks of the date of decision

A
54
Q

Grounds of judicial review

A
  1. Illegality
    a. Acted ultra vires
    b. Unlawfully delegated their power
    c. Error of law
    d. Irrelevant consideration
    e. Failed to account for specific legal duty e.g. take account of equality considerations
  2. Procedural impropriety
    a. Failure of duty to consult
    b. Failure to follow mandatory requirements
    c. Failure of right to be heard
    d. Failure of right to an unbiased decision maker
    e. Failure of duty to give reasons
  3. Failure to meet legitimate expectations
    a. Explicity promise or assurance
    b. Previous action
  4. Failure to make reasonable/rational decision: decision so outrageous no sensible person could have arrived at it
55
Q

Remedies if a ground for judicial review can be proven (discretionary)

A
  1. Quashing order
  2. Mandatory order
  3. Prohibiting order
  4. Injunction
  5. Declaration
56
Q

Absolute rights

A

Right to life
Prohibition of torture

Cannot be limited under any circumstances

57
Q

Limited rights

A

Right to liberty
Right to fair trial

Limited only as provided in the article

58
Q

Qualified rights

A

Right to privacy
Freedoms of thought, religion expression, assembly and marriage
Prohibition against discrimination

Limited to achieve a legitimate interest

Proportionality test is used when deciding whether action of a public authority that restricts a qualified right is justified

59
Q

Fast track REMEDIAL ORDER procedures are available to address laws declared incompatible with the European Convention on Human Rights

A
  1. Non-urgent procedure: amendments to the law are presented to and approved by both Houses and can become law 60 days after
  2. If the matter is declared urgent, the amendments become effective immediately but must be laid before both House and will cease to be effective unless they both approve the remedial order within 120 days
60
Q

Under section 6 HRA, if a person believe a public authority has acted in a way that is incompatbile with an ECHR right, they can seek JR of the action up to 1 year after complained of action

A
61
Q

Claims for violations of the ECHR’s freedom from discrimination under the HRA can be brought only if they are attached to the breach of another convention right BUT claims for discrimination under the Equality Act are freedstandign

A
62
Q

If the chief constable believes no condition can be imposed to prevent serious disorder they can apply to ban all or a specified class of processions for up to 3 months

In London applications are made to the Home Secretary and elsewhere to the local council

A
63
Q

Public assemblies

A

Assemblies of 2 or more people in a public place which is at least partially open air

64
Q

Trespassory assemblies involve 20 or more people

A
65
Q

Direct EU legislation was automatically binding without any domestic legislation being passed so is no longer law in the UK

A
66
Q

A discrimination claim under the HRA can be brought only if it is attached to the breach of another right.

A
67
Q

Claims under the HRA can be brought only against a public authority

A
68
Q

For an international treaty to become part of UK law, it needs to be incorporated through an Act of Parliament

A
69
Q

The UK constitution is said to be ‘uncodified’, meaning that the UK lacks a single document called the constitution

A
70
Q

Under the doctrine of parliamentary sovereignty also means the courts cannot refuse to enforce an Act of Parliament

A
71
Q

The UK courts are bound by retained domestic case law only from courts that are higher or equivalent to them. Thus, a High Court’s decision would not bind the Court of Appeal.

A
72
Q

The Chancery Division deals with disputes relating to:
1. Business
2. Equity
3. Trusts.

It also deals with some land and property disputes.

A
73
Q

The Queen’s Bench Division predominantly deals with tort and contract claims

A
74
Q

Judicial review: before a decision is made which adversely affects someone, that individual has a RIGHT TO BE HEARD. The extent of the right varies from case to case. For a forfeiture case (that is, where someone is deprived of a right), the individual is entitled to hear the case against them and to respond.

A
75
Q

Carltona Doctrine

A

When Parliament grants a power to the Secretary of State in an Act, that power could be exercised by a civil servant within the Secretary of State’s department

76
Q

Generally, the UK courts are not bound by any judgments made by the CJEU after the end of the transition period (that is, December 2020), even if those decisions relate to retained EU law. Rather, the courts may ‘have regard’ for those decisions (that is, treat them as persuasive precedent).

A
77
Q

if there is a conflict between retained EU law and legislation passed before the end of the transition period, the retained EU law will prevail.

A
78
Q

The Public Sector Equality Duty places several requirements on bodies within the public sector, such as a local council. This includes showing due regard for removing or eliminating disadvantages suffered by those who share a protected characteristic.

A
79
Q

Describe how the living instrument principle affects the ECtHR’s decision-making process

A

The ECtHR may follow its previous decisions, but it is not obligated to follow its previous decisions if a new issue has arisen or a group of states has adopted a different, consistent approach

For example, a change in socio-economic conditions may justify a different approach to human rights law.

80
Q

Henry VIII power

A

If an Act of Parliament grants to the government the power to amend Acts of Parliament by passing secondary legislation, that power is known as a Henry VIII power.

81
Q

The power to deploy the armed forces abroad is a prerogative power exercised by the Prime Minister, who consults the Cabinet. However, once the government has decided to deploy the armed forces, by constitutional convention, they are required to seek the approval of the House of Commons.

A
82
Q

Retained EU law can be repealed

A
83
Q

The consent of the people of Wales/Scotland and the UK Parliament is required to abolish the Welsh/Scottish Parliament and the Welsh government.

A
84
Q

When treaty is laid beofre Pariament either House has 21 days to vote against the treaty. If a House votes against ratifying and the government still wants the treaty ratified, it can explain to Parliament why, and then the House of Commons has a further 21 days to vote against ratifying the treaty.

A
85
Q

Under the Fixed-term Parliaments Act 2011, a general election will be held at an earlier time if at least 66% of MPs vote in favour

A
86
Q

Bills of ‘first-class constitutional importance’ are debated in a Committee of the Whole House.

A
87
Q

Under the Human Rights Act 1998, the UK courts are required to “take into account” the case law of the ECtHR. This has been interpreted as requiring the courts to follow (or ‘mirror’) the ECtHR’s interpretation of convention rights when the point is clear and settled.

A
88
Q

Section 6 claims under the ECHR may be brought only against a public authority

A
89
Q

A claim alleging a violation of Article 14 of the ECHR requires more than just discriminatory conduct; it requires discrimination with respect to another Convention right.

A
90
Q

Between a bill passing all of its stages in the devolution legislature and receiving the Royal Assent, the bill can be referred to the Supreme Court to determine whether the bill is within the legislative competence of the devolved legislature. In Scotland, this reference can be made by either the Advocate General for Scotland, the Attorney General, or the Lord Advocate.

A
91
Q

The Prime Minister has the power to make and ratify treaties alone BUT the treaty will be put to Parliament

A
92
Q

Royal prerogative allows the executive to bind the UK to international treaties

A

FLK 1 Revision (9 decks)

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