Legal Services 2 - RR Flashcards
Constitutional fundamental and sources of constitution
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Constitution?
Fundamental rules and principles.
Key political ideas or doctrines on which state is based.
Written - one document
Unwritten - various documents.
Republican - president elected
Monarchical - unelected monarch as head of state (may be ceremonial purposes).
Federal - division of power between central gov and regional gov.
Unitary - single sovereign legislative body, power concentrated at centre.
UK has unwritten. Unitary.
Parliament supreme.
Devolution may exhibit quasi-federal characteristics.\
Separation of powers -
of executive (government), legislative (parliament) and judicial (courts).
Informal may have overlap.
UK has informal.
Core constitutional principles
Rule of law -
no arbitrary exercise of power, must be permitted by law. Should be made properly following procedure.
Law should be clear and accessible
Law should be certain - should not operate retrospectively, should not be punished.
Equality before the law.
Should be independent and impartial.
Separation of powers
Legislature (Parliament) - makes the law, monarch, House of Lords and Commons
Executive (government) - implements the law - Monarch, prime minister, and other government ministers civil service, police and armed forces
Judiciary - body that resolves disputes about the law.
Parliamentary supremacy - common law doctrine.
Sources
Acts of Parliament -
Magna Carta 1215 - first assertion of limits on powers of monarch.
Bill of rights 1689 - removed power of monarch to suspend acts of parliament and taxation without consent.
Parliament should meet often.
Acts of Union 1706-07 -
England and Scotland under one Parliament. Preserve Scottish church and legal system
Parliament Acts 1911 and 1949 -
House of Commons prevail over Lords.
PACE 84 - police with extensive powers of arrest.
Public order act 1986 -
marches etc..
Human Rights Act 1998 -
ECHR in domestic law.
Acts of devolution -
devoted NI, Wales and Scotland.
Constitutional Reform Act 2005-
Reformed office of Lord Chancellor, transfer powers as head of judicial to Lord Chief Justice and permitting Lords to elect own speaker.
Created SC and Judicial Appointments Commitment to oversee appointment of judges.
European Union (Withdrawal) Act 2018 and European Union (Withdrawal Agreement) Act 2020 -
repealed European Communities Act 1972.
Case law -
Residual freedom -
Action of state must have legal authority -
e.g. police officers
Legal disputes should be resolved by judiciary
-Monarch had no powers to decide legal case.
Habeas corpus and liberty -
right to have legality of detention tested before a court.
Right to fair hearing -
Miller -
Supreme Court interprets ECA as preventing Government from using Royal Prerogative as legal basis for notice of withdrawal from EU>
Royal Prerogative;
residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the crown.
Derive from common law.
Covers;
Foreign affairs;
-declarations of war and deployment of armed forces overseas
-making treaties
-recognition of foreign states
Domestic affairs;
summoning parliament
appointment and dismissal of Prime minister
giving Royal Assent
defence of realm
exercise of pardon and mercy
granting public honours
setting up of public bodies to disburse funds made available by Parliament.
Powers are by convention exercised by PM.
Acts of Parliament can remove prerogative powers.
E.g. Crown Proceedings removed immunity from tort and contract.
If whole ground of something which could be done by prerogative is covered by statute, the statute rules.
If repealed prerogative would revive.
Only curtail if inconsistent with statutory powers.
Cannot use prerogative to change domestic laws.
May still dissolve parliament
Constitutional conventions
Courts not directly enforce.
Non-legal.
Considered to be binding but not enforced.
Example - Monarch must dismiss ministers on advice of PM.
Important conventions -
Monarch plays no active role in government.
Monarch - on advice of PM will not refuse Royal Assent
Will appoint PM best able to command confidence in the Commons.
All ministers will be members of House of Commons or Lords and PM should be democratically elected.
Ministerial responsibility -
no conflict between public duties and private interests.
Minister who breaches should resign.
Collective cabinet (ministerial responsibility) -
defeated in vote of confidence must resign.
Cabinet must be united in public in support of gov policy and cabinet minister must resign if she speaks out on public policy.
Cabinet discussions must be secret.
House of Lords will not reject legislation that gives effect to an important manifesto commitment of democratically elected government (Salisbury Convention)
UK Parliament will only legislate on matters that has been devolved with consent (Scotland - Sewel Convention)
Judiciary do not play politics role
Ministers and MPs do not criticise in public individual members of the judiciary.
Effects
Courts will acknowledge.
Cartltona-
may indirectly give rise to legal consequences.
If unconstitutional (act breaches convention) courts will still apply
Ministers cannot knowingly mislead Parliament, will be expected to resign.
Other sources
Laws and Customs
Various Academic writings.
Parliament and Sovereignty
Parliament
Commons, Lords, Monarch.
Main aims -
scrutinising work of gov
passing legislation.
debating key issues
approving funding
providing personal for government.
Composition
Commons
650 members
Elected
Speaker is chair - carry out duties impartially (ruling on procedural points and controlling debate)
Holders of ministerial office (95)
Lords -
Hereditary peers
Life peers.
Lord Temporal - life peers and 92 hereditary peers
Lords spiritual - 26 senior clergy of Church of England
Parliament must be summoned every three years.
Duration -
maximum life to five years.
Fixed-term - stopped prerogative being used to dissolve at any time.
Must be on fixed days.
Early in event of no confidence or 2/3 of Mps in favour of early election.
Sessions -
usually from one spring to the next.
Session ends when prorogued by Royal Decree. Provocation terminates all business, bills not passed will lapse unless agreed they will pass
Legislative process
First reading - purely formal - title read out
Second reading - main debate takes place on general principles
Committee stage -
16-50 members appointed by Committee of Selection.
Proportional representation.
Important may be committee of whole house
Amendments made
Third reading -
brief, only verbal amendments. Final opportunity to vote
Proceedings in House of Lords -
Lords send back for amendments. If disagree Lords usually accept
Royal Assent -
Act of Parliament
May be suspended to later date
Public/private bills
Public -
Government bills -
Usually listed in Kings speech.
Submitted as part of legislative programme
Private members -
introduced by MPs or lords who are not government ministers.
Financial measures must be introduced in commons.
Private bills -
individual, corporate or local interest, only affect particular person.
Relationship of commons and lords
Salisbury Convention - Lords will not reject bill giving effect to major part of democratically elected manifesto.
Make small changes.
Parliaments Act 1911 and 1949 -
Allows royal assent without consent of Lords.
Provided -
money bill (taxation or supply) one month after being sent and become law
Other - after two sessions, bill can be sent to monarch. One year must elapse between second reading and first session.
Bills seeking to extend duration of Parliament excluded.
Delegated legislation
Supplement provisions of Acts.
Confined to scrutiny. Neither can amend.
Parent act will state procedure
Affirmative resolution procedure - instrument cannot come into effect or ceases to have effect unless one or both House passes resolution
Negative Resolution Procedure-
Gov required to annul instrument if either house passes a resolution rejecting instrument within specified period.
Assisted by Joint Select Committee.
