Constitutional Law Revision

Question 1

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

Question 2

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

Question 3

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

Question 4

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

Question 5

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

Question 6

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

Question 7

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.

Question 8

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

Question 9

Constitutional conventions

Answer 9

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)

Question 10

The courts cannot directly enforce constitutional conventions

Question 11

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.

Question 12

Categories of retained EU law

Answer 12

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

Question 13

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

Question 14

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

Question 15

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

Answer 15

Public authority only

Question 16

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

Question 17

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

Question 18

What are the steps of the legislative process?

Answer 18

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

Question 19

Who makes up the Crown?

Answer 19

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

Question 20

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

Question 21

How is an international treaty ratified?

Answer 21

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

Question 22

What is needed to abolish the Welsh Parliament?

Answer 22

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

Question 23

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

Answer 23

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

Question 24

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

Answer 24

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

Question 25

Section 6 of HRA

Answer 25

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

Question 26

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

Answer 26

At least 20 people

Question 27

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**.

Question 28

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

Question 29

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.

Question 30

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

Question 31

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

Question 32

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

Question 33

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

Question 34

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

Question 35

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

Question 36

Ministers need not be on the Privy Council

Question 37

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

Question 38

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

Question 39

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

Question 40

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

Question 41

Ram doctorine

Answer 41

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

Question 42

Enrolled bill rule

Answer 42

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

Question 43

Salisbury convention

Answer 43

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

Question 44

Parliament Act 1911-1949

Answer 44

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

Question 45

Negative resolution procedure

Answer 45

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

Question 46

Affirmative resolution procedure

Answer 46

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

Question 47

**Legislative prerogative powers** include **Orders in Council** by the Privy Council

Question 48

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

Question 49

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

Question 50

Cardinal convention

Answer 50

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

Question 51

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

Question 52

Sewel convention

Answer 52

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**

Question 53

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

Question 54

Grounds of judicial review

Answer 54

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

Question 55

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

Answer 55

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

Question 56

Absolute rights

Answer 56

Right to life Prohibition of torture Cannot be limited under any circumstances

Question 57

Limited rights

Answer 57

Right to liberty Right to fair trial Limited only as provided in the article

Question 58

Qualified rights

Answer 58

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

Question 59

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

Answer 59

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

Question 60

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

Question 61

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

Question 62

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

Question 63

Public assemblies

Answer 63

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

Question 64

Trespassory assemblies involve 20 or more people

Question 65

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

Question 66

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

Question 67

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

Question 68

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

Question 69

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

Question 70

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

Question 71

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.

Question 72

The Chancery Division deals with disputes relating to: 1. Business 2. Equity 3. Trusts. It also deals with some land and property disputes.

Question 73

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

Question 74

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.

Question 75

Carltona Doctrine

Answer 75

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

Question 76

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).

Question 77

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.

Question 78

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.

Question 79

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

Answer 79

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.

Question 80

Henry VIII power

Answer 80

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.

Question 81

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.

Question 82

Retained EU law can be repealed

Question 83

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

Question 84

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.

Question 85

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

Question 86

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

Question 87

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.

Question 88

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

Question 89

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.

Question 90

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.

Question 91

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

Question 92

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