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PLUS Flashcards

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1
Q

How do we regulate perogitive powers

A
  • parliamnet holds the executive to account i.e. debate in parliamnet over the bombing of syria
  • powers need to be sanctioned, if you want to use them make sure they are justified
  • can be regulated by act of parliament
  • judicary may scrutinise them
  • can create convention whereby you do not use perogative without permission
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2
Q

De Keysers Royal Hotel

A

Hous eof lords decided that where a power was used for a purpose already provided for in statute, the statutory power would prevail.

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3
Q

BBC v Johns

A

from 1965 no new perogatives created. future power must come from parliament in the form of statute

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4
Q

R v SSHD (northumbria police authority)

A

the police act provided for appuratus to be supplied to the police, told they were allowed heavy dudty artllery in order to control protests at the time. this was found to be ok due to perogative of was, courts said that parliamnet were broadening the pereogative power to compliment the statutry power. this seems to contradict de keyser as suggests that perogatives and statutes are one and equal

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5
Q

Perogatives

A

In relation to foreign affairs, the powers cover:

the recognition of foreign states;
the declaration of war;
the making of treaties;
the accreditation of diplomats; and
the deployment of armed forces in the UK and abroad.
In relation to domestic matters, the powers include:

the appointment and dismissal of ministers;
the issuing and withdrawal of passports;
the appointment of Queen’s Counsel;
the dissolution of Parliament;
the granting of honours;
appointments to, and employment conditions of, the civil service;
the commissioning and regulation of the armed forces; and
the calling of elections.
There is also the prerogative of ‘mercy’, which affects the judicial system. It means that ‘pardons’ can be granted in relation to a criminal conviction (i.e. it used to allow the withdrawal of the death penalty), or legal proceedings can be halted against an individual.

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6
Q

Bancoult no. 1

A

this was about the commisioner attemptign to remove the entire population of the chagos islands. this was deemed under the wednesbury test to be unreasonables excerisise of the commisisoners power- done under judicial review

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7
Q

Bancoult no. 2

A

he majority’s conclusion was that although the exercise of prerogative was reviewable, the decision to prevent resettlement was not an abuse of power. It was also decided by the same majority that the islanders did not have a legitimate expectation of resettlement because the Government’s statements in 2000 did not amount to a clear and unambiguous promise.

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8
Q

CCSU case

A

PM banned trade union membership for workers of GCHQ.
This casesees the existance of judical review for the royal perogative.
It was not found to be a breach by the PM but lord diplock tried to determine the cases for jdicial review as
- procedural impropriety
- illegality
- irrationality.

He also discussed the fact that this was by no means a cloased list and with the existance of proportiality within the EEC, he saw this as soon becoming a ground.

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9
Q

Tay tourist trips

A

this encompasses ILLEGALITY. the body must ot act out with (ultra vires) the power that has been confered on them.
sometimes have issue re ‘errors of law’ in england they are all reviewable but in scotland some are intra vires i.e. that the decision maker will not be challanged

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10
Q

Wednesbury

A

Irrationality- this is often demmed as the ‘wednesbury unreasonablness’
it is such an outrageuos defianve of logic. this is hard to meet

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11
Q

Procedural imporpiety

A

need to adhere to statutoru requirements and procedures but also to the law of natural justice like common law rule of fair process.
also law against bias- nemo iiudex in sua causa- concerns the impartiality of the decision make himself. ‘justice must not only be done but must also be manifestly seen to be done’- Barrs v Brittish wool making
Also the right to a hearing - audi alterum partem
also have ECHR art 6 the right to fair hearing and procedural fairness- this may also be a ground for jusidcial review.

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12
Q

SA s. 44

A

there shall be a scottish executive with a first minster, ministers under s.47 (cabinet minsiters), lrod advocate and solicitor general

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13
Q

SA s. 52

A

ministers are collectively resposnible for any actions of the scottish government. They must all work together.
it is activly provided for in statute

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14
Q

s. 44 and 45

A

The queen appoints the first minister after the reccomendation of the presiding officer. the parliamnet must support the FM and if do not then FM expected to resign

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15
Q

s. 46 before reccomendation by PO

A
  • after holding of election- the governemnt continuosuly flows
  • if FM resigns- henry macleish 2001 and salmond 2014
  • office becomes empty for other resoans- donald dewar
  • if FM ceases to become an MSP
    Parliament has to approve- this is different from UK (on collective level)
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16
Q

Law officers

A

lord advocate and deputy solicitor general. they used to offer legal advice to UK now are scottish legal advisors

  • no equivilent position in other devolved nations
  • help appoint judges and discuss competence of parliament
  • do not need to be an MSP
  • Advocate general advises the UK
    s. 48 they must excersise their powers (lord advocate as head of criminal prosecutions and investigations of deaths) seperatly to avoid political interference
  • neither considered members of the cabinet and cannot vote
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17
Q

role of monarch in scotland

A

appoints FM and approves ministers and junior ministers. her role is formal ratehr than substantive. she recieves cabinet meeting notes but does not have the power to advise and warn as she does witht he UK parliament
we do not have an
equivilent of the queens speech

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18
Q

FM powers

A

appoint/dissmiss ministers
these are exclsuive powers so cannto be excersissed by any other memeber of SP.
- powers detailed in s.52

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19
Q

sources of executive powers

A

within competences
powers directly conferred from westminster parliament- scotland does not have power to take them away.
thee powers on the executive cannot be excerissed or infringed by the UK ministers except extreme circumstances

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20
Q

s. 56

A

details the shared powers such as s. 17 of trasport act

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21
Q

s. 57

A

provisions re ECHR and EU, the Uk can intervene in certain circumstances in order to ensure they are complying witht he natioanl obligations. this makes sense as if something goes wrong it is te UK who will be held responsible (commission v belgium)
scotland also cannot make subordinate legislationa against EU and ECHR

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22
Q

s.58

A

caviat allowing Uk to intervene. says secretary of state can stop or order scottish governemnt from doing somehting if it looks as though they are going to contravene their competences.
a s. 58 trigger ha not occured yet- would need to be in very serious circumstances

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23
Q

memorandum of undertsnading

A

regulates how various UK admisitrations work together. this is a statement of politicial intent and is in no way legally binding
re scotland- there must be good transfer of informations, need for confidentiality yet asks for transparency and openness.
memorundum is supplemented by 4 smaller agreements thta say that the UK should conslut and take account of other nations views before making decions re EU, finaincial changes ect.

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24
Q

joint minsiterial commitee

A

meet and discuss policy issues to ensure everyone’s views are heard

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25
Q

civil service

A

this is a reserved matter athough SNP have campaigned for a devolved service. this was an issue in the referendum as many of the civil service were responsible for craeting the whiet paper detailignt he devolution settlement- concerns they were not keeping their political neuatrality.

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26
Q

‘partnership for a better scotland’

A

this is a code that ensures that whene in a party coalition in the scottish govenemnt the two aprties will work alongside one another and present a united front, no dissenting and uphold rules of collective repsonsibiltiy

27
Q

2009 expeses scandal

A

this is re political accountability. many MPs making personal profit out of the system of expenses. in many democratic countries there is a trend of public disengagement from politics following periods of success and prosperity

28
Q

elective dictatorship

A

deifned by lord halisham in 1976. this is that all the public really can do is periodically elect the governement and with a well whipped majority they are subject to party authority

29
Q

Gladstone re parliament

A

’ your business is not to govern the country but to call into account those who do’
we are not governened by parliament bu through parliament. they provide the governemnt with the authority for them to govern

30
Q

Polesby distinction

A

Transformative legislative

arena legislative

31
Q

transformative legislative

A

has own independent capacity which is frequently excerisised and acts on its own. they see themselves as complety seperate and independent from the executive i.e. the US congress- they are not constrained and can make their own legislative proposals

32
Q

arena legislative

A

the theatre of politics occurs. the focus for these legislatires is not about governening but about critisising and debating what the other does i.e. the UK
the UK parliament is reactive, it i an arena where the parties confront each other and they do not tend to develop their own legislative proposals but develop and scrutinise governtment policies

33
Q

Bernard crick

A

‘parliament influences but does not excersise direct power, it advises but does not command the governement, it scrutinises but cannot initiate governement action, it provides ublicity where otherwise there would be secrecy’

34
Q

vote of no confidence

A

this is a convention, that a govenremnt must resign- it was statutorily regulated thrugh the fixed term parliamnet act.
this is a central theory as governement is responsible t parliament and can only be responsible in so much as it enjoys the confidence of the parliament.

35
Q

parliamentary privilages

A

freedom from arrest
freedom of speech
right to composition
sole judgers of information re privalages
1707 resolution- neither house can make new privilages by declaration, only through statute.
they are determined by the courts- they decide whether exists and then parliament adjudicate on them

36
Q

lord denman on parliamnetary privilages

A

the proof of privilages is grounded on three principles;

  • neccessity
  • practice
  • universal aquiesance

all the privilages required for the energetic discharge of the duties inheerent in that high trust are conceeded without murmer or doubt.

he also talks about the privilage of their debates being left unquestioned

37
Q

parliamnetray privilage act 1987

A

there was no right to question in court a speech or proceedings. this has been called into question. some are open to abuse

38
Q

frredom of speech

A

enshrined in art 9 bill of rights

protects MP’s for outside interference on what they ahve said in parliament

39
Q

Duncan sands MP

A

concerned with impending Nazi war and disclosed secret information to a committee. he was covered by natioanl secrets act and this confirmed that proceedings in parliamnet extends to work outside parliament also

40
Q

church of scientology case

A

Smith made remarks during a tv program. the church was unable to rely on theses statements
‘what is said or done in the house cannot be used to support an action even if the action is external to the parliament

41
Q

stockdale v hansard

A

hansard printed and published a report stating that an improper book by stockdale was circulating in prison. he sued hansard for defamation. hansard could not be sued as they are covered by privilages

42
Q

Shalz case

A

letters sent by an MP was a proceeding in parlimament for the application of article 9- this is true of letters as long as they are about the subject of a parliamnetary question or matter of debate in house at that current time.
it must be part of the transaction of parliamentary business

43
Q

Defamation act 1966

A

allows the MP to waive aprliamentary privilages and protection of the law for the means of himself bringing a liable action. Neil hamilton MP case- re cash for questions affair. he was able to waiver protection

44
Q

freedom from arrest

A

only applie to civil arrest for a period of 40 days

45
Q

straud case

A

followifg offence parliamnet decalred thta any arrest would be void

46
Q

surton v sturton

A

the privilage of freedom from arrest is only really relevent in regards to non payment of child maintenance.

47
Q

regualtion of own composition

A

when refilling cauals vacancies, exelling memebrs from house of commons - house is excersising it’s privilage- only been done 3 times this centurary- hallian was expelled for lying to a committee and gross cotnempt for a house
most chose to resign i.e. Jim devine- acccused of fraud and impropoer slaims- imprisoned under the theft act.

48
Q

Exclusive cognisance of affairs

A

courts will not consider impropoeties in proceedings.

it is for parliament to correct their own issues.

49
Q

Picken case

A

one of the parties tried to invite the courts to determine whether the parliament had been mislead. the courts refused. the courts have no power to declare legislation invalid such seen in enrolled bill rule

50
Q

Hamilton v Al fayed

A

lord browne wilkinson- courts are precludede from entertaining whatever issue may be at stake if it involves submissions that the parliament was msilead. parliamnet will recognise this as a breach of code and duly punish

51
Q

Chaytor cases

A

During their trials, the three MPs (David Chaytor, Elliot Morley and Jim Devine) had each separately argued unsuccessfully that there was no case to answer as expenses claims were covered by the doctrine of Parliamentary privilege and could not be the basis of criminal charges.

52
Q

code of conduct for MP’s on the reccomentdation of the nolan committee

A

established the 7 principles of fmaily life including selfessness, accountbality, objectivity and integritys
this was as a result of john majors governemt who weer struggling along and faced critisisms of criminal and unlawful activity.

53
Q

parliamnetary commissioner for standereds

A

appointed by resolution from MP’s interests but hese are nto judicially reviewable (al fayed case) house of commons. they are in charge of overseeing

54
Q

4 house registers

A
  • of members finaincial interests
  • house register for all of those working for MP- make public
  • of all party groups. i.e. when go to middle east they are treated lavishly. this register means they must full disclose all hospitality recieved- must be tranparency in order to not comprimise MP’s integrity
55
Q

Parliamentary standerds act 2009

A

response to serious misconduct due to expenses scandals

s. 3 commssioner of- oversee investigations parliamnetray investigations

56
Q

independant parliamentary standered agency

A

created by 2009 act- central role in regulating MP’s behaviour
responsible for paying MP’s yearly saleries

57
Q

statutoru code of conduct

A

s.8- legal prohibition for the taking of any monet or kind for an MP to advicate another’s intersts

58
Q

Sanctions

A

reprimand
impsrisonment (last time 1880)
suspensions/expulsions
dennis mcshame reccomended for a 6 month expulsion in 2009

59
Q

House of lords

Truspet and Taylor

A

suspended but not expelled

60
Q

s. 41 scotland act

A
  • any statement made in proceedings of parliament or any statuary provision are absolutely privileged against defamations, even if statement was made maliciously with intent of harming someone, they cannot be held accountable for it due to absolute privilege.
    scotland does not protect general debates
    there is no immunity from arrest
61
Q

exclusive cogniscance in scotland

A

bill of rights art 9 does not apply as they get privilages from the scotland act.

62
Q

Whaley v watson

A

litigation arose over the protection of wild animals scotland bill. they said watson being paid to advocate for a ban on foxhunting. at first this was sent off due to the parliamnets exclsuive cogniscance which is an implied principle in scotland

the fundamental character of the Parliament as a body which - however important its role - has been created by statute and derives its powers from statute. As such, it is a body which, like any other statutory body, must work within its scope of powers’. - as per Lord Rodger.

63
Q

s.41

A

defamation in the scotland act- talk about absolute privalidge.
in austarlia they are allowed (public) to make a non legal statement publically in order to challange the MP

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