Introduction to the Constitution of the United Kingdom Flashcards
The Bill of Rights 1689 united England and Scotland under a single Parliament of Great Britain.
Do you agree or disagree?
Agree
Disagree
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Incorrect - the Bill of Rights restructured the relationship between Parliament and the Crown. It was the Acts of Union of 1706 and 1707 which united England and Scotland.
Which of the following terms can be used to describe the UK constitution?
Written
Unwritten
Federal
Unitary
Republican
Monarchical
Presidential Executive
Parliamentary Executive
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The correct answers are
B - unwritten
D - unitary
F - Monarchical
H - Parliamentary Executive
Which of the following terms describes the US constitution?
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Written
Unwritten
Federal
Unitary
Republican
Monarchical
Presidential Executive
Parliamentary Executive
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That is incorrect - the correct answers are
A - Written
C - Federal
E - Republican
G - Presidential Executive
A written constitution for a country will usually have only two features - it will set out what the institutions of state (or government) are and it will set out how these institutions are to operate and interract.
Is this statement true or false?
True
False
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Well done. In addition to setting out what the institutions of state (or government) are and how these institutions are to operate and interract, a written constitution will also usually contain a statement of the basic rights which individual citizens are to have (for example, the Bill of Rights which forms part of the constitution of the USA)
Which of the following is not a source of the UK constitution?
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Constitutional conventions
The law and custom of Parliament
Case law
The doctrine of the separation of powers
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Well done - the separation of powers is a political principle on which the UK constitution is, in part, based. It is not however a source of the constitution.
Constitutional conventions are those residual powers once exercised by the monarch (but now exercised largely by the Government) which have not been removed by an Act of Parliament.
Is this statement true or false?
True
False
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Well done - the statement is in fact a description of the Royal Prerogative. Constitutional conventions are those non-legal rules of constitutional behaviour which are considered binding on those who operate the constitution.
Assume that both Houses of Parliament pass a Bill which reduces the income of the Royal Family. The Prime Minister and Cabinet advise the Queen to assent to the Bill. Indicate whether the following statement is true or false:
Legally the Queen can refuse Royal Assent, so that the Bill does not become law.
True
False
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Incorrect - the statement is true. Although the Queen ought, by convention, to grant Royal Assent, this is a non-legal rule. Without Royal Assent, a bill cannot become law.
Which one of the following statements is correct?
No new constitutional conventions may be created.
The idea of the Rule of Law is a constitutional convention.
The principle of ‘residual freedom’ is a constitutional convention.
Constitutional conventions are not legally enforceable.
Correct answer
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D is the correct answer. Constitutional conventions are not legally enforceable. Remember that conventions are non-legal rules of the constitution and so are not enforced by the courts.
Constitutional conventions are flexible and ‘come and go’ as necessary, so there is nothing to prevent new conventions being created. ‘Residual freedom’ is a principle that has developed through case law rather than convention. The Rule of Law is a doctrine or principle which underpins the UK constitution as opposed to being a convention.
Which of the following statements is incorrect:
The Scotland Act 1998 devolved some legislative powers from the Westminster Parliament to the Scottish Parliament.
An Act of Parliament which amends the UK constitution must receive a two-thirds majority in both Houses of Parliament.
The right to enter into international treaties on behalf of the UK is a power exercised by the Government under the Royal Prerogative.
Collective Cabinet responsibility is a constitutional convention.
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That’s wrong - the correct answer is B. There is no requirement for a specific majority for an Act of Parliament that amends the UK constitution. A valid Act of Parliament requires only a simple majority in both Houses of Parliament together with Royal Assent.
The Parliament Acts of 1911 and 1949 altered the relationship between the House of Commons and the monarch.
Is this statement true or false?
True
False
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Correct. The Parliament Acts altered the relationship between the House of Commons and the House of Lords, by making it possible, in certain circumstances, for legislation to be enacted without the approval of the House of Lords.
A body of Constitutional Conventions has arisen within the UK which are considered binding upon the branches of the state, but not legally enforceable.
Which of the following is NOT an example of a Constitutional Convention?
The monarch, acting on the advice of the Prime Minister, will not refuse Royal Assent to a bill which has been passed by the House of Commons and the House of Lords.
Government ministers are responsible to Parliament both for the running and proper administration of their respective departments, and also for their personal conduct.
The Judiciary do not have the power to strike down legislation which they consider to be unconstitutional. In certain circumstances, they can make a declaration that legislation is incompatible with Convention Rights.
Ministers and Members of Parliament do not criticise in public individual members of the judiciary
The Cabinet must be united in public in support of government policy, and so a Cabinet Minister must resign if he or she wishes to speak out in public against such policy
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C is the correct answer. It does not describe a convention, it is an illustration of the operation of the principle of Separation of Powers. Answers A, B, D and E are all examples of Constitutional Conventions.
The UK government has prerogative power to enter into or amend international treaties. It has entered into a treaty (“the Treaty”) with Canada regarding cargo ships, under which ships may only carry goods between the UK and Canada if their operators have obtained authorisation from the governments of both countries. An Act of Parliament (“the Act”) authorises certain named cargo ship operators to transport goods between the UK and Canada.
The government now wishes to prevent one of the operators named in the Act from transporting cargo to Canada, but does not want to wait to amend the Act. It therefore negotiates an amendment to the Treaty which specifically prevents the client from being able to sail into Canadian waters. The operator wishes to challenge this decision, but the UK government has asserted that its prerogative powers entitle it to act as it has done.
Which of the following best describes the legal position?
As the Royal prerogative and statute come into conflict, the prerogative will prevail and the government’s decision will be lawful.
As the Royal prerogative and statute come into conflict, the statute will prevail and the government’s decision will have no effect.
The Act will be impliedly amended by the agreement made between the government and Canada.
Before hearing any challenge to the government’s decision to amend the Treaty, the courts would ask Parliament for a view on whether it is likely to amend the Act.
Decisions made under the Royal prerogative are non-justiciable and your client will not therefore be able to bring a claim in the courts.
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Where statute and the Royal prerogative come into conflict, statute will prevail. It is not possible to use prerogative powers to undermine or render ineffective an Act of Parliament (see Miller v Secretary of State for Leaving the European Union [2017] UKSC 5).
For this reason, B is the only correct answer. The amendment to the Treaty clearly undermines the Act, so the courts are very likely to hold that the Government’s prerogative powers were in abeyance unless and until the Act has been amended.
Option A is incorrect for essentially the same reason. The Government cannot use its prerogative powers to undermine a statute. The statute would have to be amended before any renegotiation of the Treaty took place.
Option C is wrong because changing the terms of a statute requires Parliament to pass primary legislative amending or repealing its provisions.
Option D is wrong. While there are some circumstances in which the courts will take account of future action that Parliament might take, but none are relevant here. The changes to the Treaty are clearly at odds with existing legislation and thus unlawful.
Option E is incorrect. While decisions taken under the Royal prerogative were once considered non-justiciable, a major shift occurred in Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374. Since then the areas of prerogative power on which the courts will not hear claims have reduced yet further (see R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373. The circumstances here would certainly be justiciable (see e.g. Laker Airways v Department for Trade [1977] QB 643; Miller v Secretary of State for Leaving the European Union [2017] UKSC 5).
The Prime Minister convened a meeting of the Cabinet in order to discuss confidential plans for the closure of 50 local hospitals as a means of cutting costs. During the discussions, one of the ministers present at the meeting objected strongly to the proposals. Despite the minister’s objections, the Cabinet agreed the closures, but decided to keep the decision confidential while detailed plans were prepared. Following the meeting, the minister threatened to denounce the closures in the press. The Prime Minister wishes to apply to the court to stop the minister from doing so.
Which of the following statements best describes the approach the court is likely to take?
The court will enforce the constitutional convention of Collective Ministerial responsibility.
The court will recognise the constitutional convention of Collective Ministerial responsibility but will not enforce the convention directly.
The court will enforce the constitutional convention of Individual Ministerial responsibility.
The court will recognise the constitutional convention of Individual Ministerial responsibility but will not enforce the convention directly.
The court will require evidence that the minister intended to break convention before being prepared to provide a remedy
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Answer B is correct. This scenario deals with constitutional convention governing Cabinet discussions, Collective Ministerial responsibility. One of the aspects of this convention is that the Cabinet must be united in public in support of Government policy. A minister wishing to speak out publicly against Cabinet policy must resign. This is sometimes confused with Individual Ministerial responsibility which is the convention that Government Ministers are responsible to Parliament for the proper administration of their department and for their own personal conduct. Constitutional conventions are non-legal rules. While the courts recognise the existence of constitutional conventions, they are not prepared to enforce them directly, as demonstrated in the case of Jonathan Cape [1976] QB 752 and confirmed in the recent case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. Constitutional conventions are considered binding upon those who operate the constitution which would include Government ministers. Evidence of knowledge and intent would be irrelevant.
A is wrong as constitutional conventions are not legally dinging and therefore not enforceable by courts.
C is wrong, as it mentions Individual as opposed to Collective Ministerial Responsibility.
D is wrong, as conventions are not legally enforceable and do not entail a legal remedy.
A bill has passed through all stages in Parliament and has been submitted to the Monarch for Royal Assent. The leader of the opposition has called on the Monarch to refuse Royal Assent as the bill, on the Government’s own admission, breaches international law.
Will the Monarch refuse Royal Assent?
No, because by convention the Monarch always grants Royal Assent to a bill that has been passed by Parliament.
No, because by law the Monarch must always grant Royal Assent to a bill that has been passed by Parliament.
Yes, because it is unconstitutional for Parliament to pass a bill that breaches international law.
Yes, because the bill is invalid due to its breach of international law.
Yes, because international law is a higher form of law which the Monarch must obey.
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Option A is correct. Indeed, the last time the Monarch refused Royal Assent to a bill was in 1707.
Option B is wrong as it is by convention that the Monarch grants Royal Assent; there is no law to that effect. Parliament is sovereign and can pass Acts that breach international law, and there is no precedent for the Monarch to refuse Royal Assent in those circumstances. Hence options D and E are wrong so far as the UK constitution is concerned.
Whilst there might be academic debate whether or not it is ‘unconstitutional’ for Parliament to breach international law, that will not affect the granting of Royal Assent, so option C is wrong.
The government has lost an important case in the Supreme Court which affects its ability to carry out a manifesto commitment.
Which of the following statements describes the most realistic option which the government now has?
The government can ignore the judgment because court decisions are only advisory for ministers of the Crown.
The government can appeal to the Judicial Committee of the House of Lords.
The government has the power to remove those Supreme Court justices who participated in this decision.
The government could introduce legislation into Parliament to retrospectively change the law and effectively override the judgment.
By convention a government which is defeated in the Supreme Court must resign and call a general election.
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Option D is correct – primary legislation can alter any legal rule or judgment, even retrospectively, as in Burmah Oil Co v Lord Advocate [1965] AC 75.
Option A is wrong – the government is subject to the law and is bound by court judgments. This is the basis for judicial review.
Option B is wrong – the Judicial Committee of the House of Lords no longer exists. The Constitutional Reform Act 2005 abolished it and replaced it with the Supreme Court.
Option C is wrong – judges in the senior courts can only be removed by Parliament under the powers dating from the Act of Settlement 1701 and now in the Constitutional Reform Act 2005.
Option E is wrong – there is no such convention. Conventions grow up by practice. In fact there are many examples of governments losing cases in the Supreme Court and elsewhere and staying in office, for example R(Miller) v The Prime Minister, Cherry v Advocate General for Scotland [2019] UKSC 41.
