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iodide Flashcards

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1
Q

what are the 3 UK basics about the constitution

A

-UK is a constitutional monarchy (or parliamentary democracy)
-UK is a unitary state but with devolved entities (as opposed to federal)
-operates on a parliamentary system of government (as opposed to presidential)

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2
Q

is the UK a unitary or federal state

A

unitary

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3
Q

does the UK operate as a parliamentary or presidential system of government

A

parliamentary

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4
Q

what are the 4 sources of UK constitutional law

A

-legislation
-case law
-law and custom of parliament
-constitutional conventions
-royal prerogative

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5
Q

what are the 2 types of legislation

A

-acts of parliament (primary legislation)
-statutes with constitutional significance

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6
Q

explain acts of parliament

A

-primary legislation
-supreme source of legal rules
-can change the constitution through normal legislation

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7
Q

give 2 examples of statutes with constitutional significance

A

-Magna Carta 1215
-Bill of Rights and Claim of Right 1869

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8
Q

what are the 3 key articles from the Bill of Rights 1689 and what do they do

A

-Article 6; Standing Army (illegal to keep standing army at time of peace unless consent of parliament)
-Article 8; Freedom of Election (election of MPs=free)
-Article 9; Freedom of Speech (courts cannot impeach/question debates/proceedings in parliament based on freedom of speech)

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9
Q

what is article 6 of the Bill of Rights 1689

A

Standing Army (illegal to keep standing army at time of peace unless consent of parliament)

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10
Q

what is article 8 of the Bill of Rights 1689

A

-Article 8; Freedom of Election (election of MPs=free)

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11
Q

what is article 9 of the Bill of Rights 1869

A

Freedom of Speech (courts cannot impeach/question debates/proceedings in parliament based on freedom of speech)

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12
Q

what did the Fixed-term Parliament Act 2011 and Dissolution and Calling of Parliament Act 2022 do

A

-2011; put the calling of a general election onto statutory footing + took this power away from PM and gave to Parliament
-2022; abolished 2011 procedures, restored old ones, supported by two major parties at 2019 election

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13
Q

what are the two main types of ‘constitutional’ legislation

A

-Those concerned with the organisation of, and allocation of power
to, institutions of government (Examples?)
- Those that regulate the relationship between the individual and the
state (Examples?)

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14
Q

give two examples of attempts by the judiciary to recognise a hierarchy of acts

A

-Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) (Distinguished between ‘ordinary’ statutes and ‘constitutional’ statutes)
-R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014]
UKSC 3

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15
Q

what did Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) do

A

-distinguished between ‘ordinary’ statutes and ‘constitutional’ statutes

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16
Q

what case distinguished between ordinary and constitutional statutes

A

Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)

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17
Q

explain the formal source of case law / judicial precedent

A

-common law; can recognise, establish or develop constitutional principles BUT decisions may be set aside or amended by parliament
-from UK courts eg High Court, CoAppeal, UKSC and ECtHR
-cannot strike down acts of parliament but can seek to interpret what Parl means in acts

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18
Q

what did Lord Bingham say on the interpretation of statute law

A

the overriding aim…must always be to give effect to the intention of
Parliament as expressed in the
words used’ [in the statute]

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19
Q

how does the rule of law principle apply to case law

A

legislation should be interpreted
by an independent judiciary

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20
Q

give 4 case examples of case law

A

-Entick v Carrington (1765) 2 Wils. K.B. 275
- Burmah Oil Co v Lord Advocate [1965] A.C. 75
- M v Home Office [1994] 1 AC 337
-R (On the application of Evans) and another v Attorney General [2015] UKSC 21 (aka “Black spider
memos” case)

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21
Q

what happened in Entick v Carrington (1765)

A

-explicit legal authority needed for government to interfere with citizen’s person/property
-key principle of the rule of law

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22
Q

what happened in the case of Burmah Oil Co v Lord Advocate [1965] A.C. 75

A

-Was government liable for destruction of company’s property as retreating in WW2?
- Conduct was lawful under the royal prerogative
-But liable for compensation at common law?
-House of Lords said ‘yes’, but Parliament reversed the decision via the War Damages Act 1965

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23
Q

what happened in the case of M v Home Office [1994] 1 AC 337

A

-Yes, ministers of the Crown can be subject to a finding of contempt of court

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24
Q

what happened in black spider memos case (Evans)

A

-Correspondence from Prince of Wales (Charles) to government departments–> requests were made to disclose
letters
- Freedom of Information Act 2000 s 53: contains an “executive
override” which allows Ministers to override a decision notice
from the Information Commissioner, or even a judicial decision
-Can be done via Ministerial certificate
-Upper Tribunal said that letters should be disclosed  AG blocked it with s 53
override –> High Court decides for AG –> Court of Appeal decides against AG –>
Supreme Court finds 5-2 against AG

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25
Q

what are the issues on the black spider memo case (Evans)

A

-Separation of powers issues:
 Parliament can override judicial decisions, but a basic principle of
the rule of law is that the executive accepts and complies with such
decisions
-Also, if Parliament explicitly says in primary legislation the
executive can do something, then that should be respected by the
judiciary (basic principle of parliamentary sovereignty and even therule of law)

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26
Q

which lords dissented in the black spider memo case (Evans)

A
  • Lord Highes
    -Lord Wilson
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27
Q

explain the law and custom of Parliament

A

-Where the gov’t initiates its legislative
programme and also where the gov’t is
held to account
-Through Parliament where Ministers are accountable to the people
-Some sources:
 Standing orders of both Houses
 Rulings by the House Speaker

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28
Q

give two examples of sources of law and custom of parliament

A

Standing orders of both Houses
Rulings by the House Speaker

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29
Q

give 3 exceptions to the commons standing orders agenda

A

-Opposition business (20 days)
-Backbench business (35 days)
-Private Members’ Bills (13 days)

30
Q

what is opposition business and how many days is it

A

-…
-20 days

31
Q

what is backbench business and how many days is it

A

-…
-35 days

32
Q

what is Private Members’ Bills and how many days is it

A

-…
-13 days

33
Q

give 2 examples of recent Brexit controversies

A

-Indicative votes (March/April ‘19)
-Withdrawal (No 2) Act (‘Benn Act’)

34
Q

what may cause a government to fail

A

-if the government cannot command the confidence of the House of Commons

35
Q

what does the PACAC report (2018) say

A

-the confidence relationship between Parliament and Government remains a fundamental principle to our system of Parliamentary democracy

36
Q

when was the first confidence motion lost

A

-1782 by North Government

37
Q

what is often a first indication of confidence

A

-KIng’s / Queen’s speech

38
Q

which governments are especially fragile with confidence motions

A

-minority or bare majority governments

39
Q

how many times have governments lost votes of confidence since 1895 and what were the outcomes

A

-4 times
-twice the opposition leaders formed a government
-twice the PM requested dissolution of parliament and general election held

40
Q

explain constitutional conventions

A

-Prime Ministerial appointment
after an election: does the
Monarch have any say?
-Sewel Convention
-Salisbury Convention

-Why are these rules observed?
-b/c they express prevailing
constitutional values (and also
avoid constitutional difficulties)

41
Q

what happened at the Sewel Convention ?

A

-Westminister will not legislate without Scotland’s … authority

42
Q

what happened at the Salisbury Convention?

A
  • …
43
Q

generally what are constitutional conventions

A

Dicey: ‘understandings, habits or practices which, though
they may regulate the conduct of the several members of
the sovereign power…are not in reality laws at all since
they are not enforced by the courts’
The ‘unwritten rules of the game’
* When legal freedom is constrained by political precedent
 But, conventions are legally unenforceable by the courts
*Descriptive: statements of constitutional practice, based on
knowledge and observation of what happens
*Prescriptive: statements of what ought to happen, based in
part on observation but also on constitutional principle

44
Q
A
45
Q

what does Miller II/ Cherry 2019 say on constitutional convention/ prorogation

A

Miller II/Cherry (2019): ‘the power
to order the prorogation of
Parliament is a prerogative power:
that is to say, a power recognised
by the common law and exercised
by the Crown, in this instance by
the sovereign in person, acting on
advice, in accordance with modern
constitutional practice. It is not
suggested in these appeals that
Her Majesty was other than
obliged by constitutional
convention to accept that advice.
In the circumstances, we express
no view on that matter’. [

46
Q

what are the 4 elements of a constitutional convention

A

-Concern constitutional
matters (esp fundamental
constitutional principles)
-Operate supplementary to
law
-Constitutional actors feel
‘bound’ by them
-Must be some type of
precedent established

47
Q

what is the test for what counts as a convention

A
  • Jennings test:
     What precedent is there?
     Do those adhering feel
    bound?
     Is there a reason for the rule?
48
Q

what are 3 perhaps better questions regarding degree (constitutional convention)

A

-How strong is the precedent?
-To what extent do actors feel
bound by it?
-How good is the reason for it?

49
Q

what counts as a constitution (examples?)

A

-royal assent
-judges must abandon all party affiliations
-Prime Minister’s Questions (PMQ’s) (1961) held in Parliament
-PM must be member of the HoCommons
-use of military force requires parliamentary approval

50
Q

give 3 reasons why conventions are obeyed

A

(1) Reflect personal sense of constitutional morality
(2) Reflect widely shared sense of constitutional morality
(3) Perhaps for self-serving reasons (eg gain trust of party by obeying)

51
Q

give 3 examples of conventions being written/codified

A

-Ministerial Code
-Cabinet Manual
-Scotland Act 2016

52
Q

what is Ministerial Code

A

-…

53
Q

what is the Cabinet Manual

A

-released in 2010
-describes practices of cabinet and how the constitution works/operates

54
Q

what is the Scotland Act 2016

A

-amended Scotland Act 1998
-added devolution to Scotland (?)

55
Q

what are the 3 issues with enacting convention rules as law

A

-Difficult decisions would need to be made re
importance
-Would change the accountability structure;
unenforceable
-Attitude of the courts to (codified) conventions, would the courts even want to get involved? they are dismissive of conventions (Miller I (2017) UKSC quote)

56
Q

what did the UKSC say in Miller I (2017)

A

udges therefore are neither the parents nor the guardians of
political conventions; they are merely observers. As such, they can
recognise the operation of a political convention in the context of
deciding a legal question…but they cannot give legal rulings on its
operation or scope, because those matters are determined within the
political world. As Professor Colin Munro has stated, ‘the validity of
conventions cannot be the subject of proceedings in a court of law’.”

57
Q

give a history of the Royal Preorogative

A

-derived from parl/common law
-retained: to allow gov to function
-Medieval times; King had powers to protect + for public good but not above the law
-17th Cent; had ordinary vs absolute prerogative
-Darnel’s or The Five Knight’s Case (1627) overruled by Petition of Right 1628
-Bill of Rights; growth of repsonsible gov and set constitutional monarchy

58
Q

what is the royal prerogative like today(3)

A

-exercised on behalf of the gov of the day
-prior authority of Parl not needed for many powers
-prerogative powers are starting to be put on statutory footing

59
Q

give 4 examples of royal prerogative powers relating to the legislature

A
  • Summons and prorogue of
    Parliament
    -Hereditary peers (although been curtailed significantly)
    -Providing Royal Assent to Bill
    -Orders in Council power to legislate
60
Q

give 2 examples of royal prerogative powers relating to the judiciary

A

-No longer can create courts; only Parl can do so nowadays
-Some functions in relation to
criminal justice (stop prosecutions; pardons)

61
Q

give 3 examples of royal prerogative powers relating to foreign affairs

A

-Carried on mainly under reliance of the prerogative
-Territory (acquiring & ceding)
-special powers in times of war: restraining individuals
entering/leaving and issuing
passports

62
Q

give 2 examples of royal prerogative powers relating to treaties

A

-Treaties used to be made primarily under the prerogative
-Recently greater pressure for Parl involvement as regards treaties (Constitutional Reform and Governance Act 2010 )

63
Q

give 3 examples of royal prerogative powers relating to war and armed forces

A

-Gov’t may declare war: ‘most significant of the powers’
-By statute and prerogative Queen is commander-in-chief of armed forces
-2006 Lords Constitution Committee proposed new convention (recent events have not provided clarity)

64
Q

give an example of an immunity and a privilege of the royal prerogative

A

-Statutes do not bind the Crown except by express statement or necessary implication
-Tax not payable on income
received by monarch
-Crown Proceedings Act 1947

65
Q

what is the existence and the extent of prerogative power

A

-Courts will not recognise existence of new prerogative powers
-Difficulties arise on when old powers should apply to new situations
-Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ case); –>royal prerogative is subject to judicial review

66
Q

what happened in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ case)

A

-royal prerogative is subject to judicial review

67
Q

what case said that royal prerogative is subject to judicial review

A

-Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ case)

68
Q

what is the effect of statutes upon prerogative powers

A

-The ‘executive cannot exercise the prerogative in a way which would derogate from the due fulfilment of a statutory duty’
-Fire Brigades Union [1995]

69
Q

what is the manner of exercise of a prerogative power

A

-In theory, courts determine existence, but can’t regulate manner of exercise or can they? (Miller II)
-However, courts have expanded review to include reviewing bodies set up by
prerogative powers, and the makings of Orders in Council

70
Q

what is a common depiction of the UK constitution

A

-changing
- this is arguably inaccurate

71
Q
A

Public Law (8 decks)

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