constitutional prio Flashcards
How is secondary legislation enacted?
Negative Resolution Procedure
- draft is laid before both houses
- takes effect on date of draft unless either house votes against it in 40 days
- no amendments can be made
Affirmative Resolution Procedure
- draft laid before both houses
- both houses must expressly vote in favour
- can be debated in commons or by committees
- no amendments can be made
What prerogative powers do ministers have?
- power to acquire and cede territory
- negotiation and ratification of intention treaties
- conducting diplomacy in general (recognising states, appointment of ambassadors etc.)
- deployment of armed forces and declaration of war
- use of the armed forces within the UK to maintain peace in support of the police
- PM’s power to appoint and remove ministers from their government
- grant and revocation of passports
- grant of pardons and the power to stop criminal prosecutions
What are the personal prerogative powers?
- appointment of PM
- power to dismiss government
- power to prorogue parliament
- granting Royal Assent to legislation
What is the process for ratifying international treaties?
Prerogative power but is subject to control by parliament
Lay draft before parliament for 21 days
- can then be ratified if neither house has voted against it in 21 days
if noted against by either house
- gov can explain why they want to ratify it
- commons then has further 21 days to vote against it
- if not voted against can be ratified
Exception
- in exceptional cases government can by-pass this (but this is not defined)
- not to be used if there has been a vote against
Define/explain what prerogative powers are.
Exercised by the monarch but constrained by convention
What are the individual responsibilities of ministers?
Duty not to mislead parliament
Responsibility to account to parliament for their department
- give account
- take responsibility for actions of department
Private conduct
- basically not to breach ministerial code
- at least must avoid conflict of interest
- judged by PM
What is the process asking question for ministerial question time?
Daily which departments on rota (each every 5 weeks)
- any MP can ask questions
- written questions can be asked any time and answered in 7 days
No questions can be asked that relate to:
- local authorities
- monarch
- affairs in other countries
- devolved matters
- cases being heard in court
Who in the devolved institutions can refer a bill to the Supreme Court (N. Ireland)
Advocate General for N. Ireland
Attorney General for N. Ireland
Who in the devolved institutions can refer a bill to the Supreme Court (Wales)
Counsel General
Attorney General
What has to be shown for illegality in JR?
Ultra Vires
- acts outside its statutory power
Errors of Law
- decision maker makes mistake regarding issue of law
Specific legal duty
- does done comply with legal duties that must
- for example showing due regard for DEI when making decisions
Unlawful delegation of power
- unless provided by statute; or
- Carlton principle
Irrelevant considerations
- if fail to take relevant considerations into account; or
- take irrelevant ones into account
What has to be shown for procedural impropriety?
mandatory / diretory requirements
right to be heard
rules against bias
duty to consult
duty to give reason
When does procedure require a right to be heard?
For judicial or administrative decisions depending on the extent of justice and fairness required
Forfeiture cases
- when a right is removed from a person they should be able to hear case against them and respond
When might procedural impropriety be argued due to bias?
Direct Bias = automatic disqualification
- if decision maker has financial interest; or
- non financial interest so closely connected to issue raised (active involvement with an organisation that is part of case)
Indirect Bias = can challenge
- depends if a fair minded and informed observer would conclude there was a real possibility of bias
- view formed in advance
When will substantive legitimate expectation arise and what would the outcome be?
Express promise or past practice
- must be clear and unambiguous
Legal
- must be within power of public body or their agent
knowledge
- claimant needs knowledge of promise (unless asylum seeker)
Importance
- promise must be of particular importance
What remedies are available of JR?
Quashing Order
- reders original decisifon void
Mandatory Order
- orders D to act in certain way (such as retake decision)
Prohibiting Order
- D not to act in certain manner
Injunction
- order preventing a party from acting
- requires third party to act
Declaration
- declares that decision or action complained of was unlawful
What are the limited rights?
Right to Liberty and Security (A. 5)
Right to a fair Trial (A. 6)
When can Right to Liberty and Security be limited?
detention of convicted criminals by courts;
arrest or detention of person who failed to comply with court order
arrest or detention of person reasonably suspected of having committed criminal offences
arrest or detention if reasonably necessary to prevent someone committing offence
detention of person for prevention of spreading infections diseases
detention of people with unsound mind
When can Freedom of expression be limited?
To extent necessary in democratic society to achieve legitimate aim of:
- national security
- teritorial integrity
- public safety
- prevention of disorder or crime
- protection of health or morals
What is the test for seeking if it is necessary to restrict qualified right?
Proportionality test:
- is object of policy and legitimate aim pursued sufficiently important to justify limiting fundamental right
- is the measure designed to meet objective and rationally connected to it
- is interference with right no more than necessary to accomplish objective
- is measure reasonable and balanced in all circumstances, given the competing needs of the individual and wider society
What are the rules of the urgent / non urgent methods to correct declaration of incompatibly?
Non-Urgent
- takes effect after being laid before both houses for 60 days
- if no house disapproves in that time
Urgent
- takes effect immediate
- repealed if both houses don’t pass resolution in favour in 120 days
