Public Law 1 - Sources of Power

Question 1

What are the three major institutions of the UK government?

Answer 1

Judiciary, executive, legislative.

Question 2

UK courts form which of the major institutions?

Answer 2

Judiciary.

Question 3

The UK constitution is…

Answer 3

Uncodified.

Question 4

What are the four characteristics of the UK constitution?

Answer 4

Uncodified, an accountable government, legal & political constitutionalism, multi-layered.

Question 5

Define constitutional conventions

Answer 5

Rules of the constitution which are not enforced by the law courts. ‘Moral backbone’ of the constitution and society.

Question 6

Advantage and disadvantage of having a flexible constitution.

Answer 6

Adv - the constitution does not become outdated. Disadv - its too easy to amend, even with narrow majority.

Question 7

The monarch appoints the Prime Minister as the person who commands what majority?

Answer 7

The leader of the political party that commands majority in the House of Commons.

Question 8

The monarch chooses the Prime Minister. True or False?

Answer 8

False, there are no independent judgements or authorities exercised by the Monarch.

Question 9

Conventions are binding but not…

Answer 9

Legally enforceable.

Question 10

Name the four sources of the UK Constitution

Answer 10

Legislation (Acts of Parliament), constitutional conventions, judge-made law, international law.

Question 11

Define implied repeal

Answer 11

When two laws conflict with each other, the more recent one will be kept, even if the later Act does not expressly repeal the recent one.

Question 12

In which case did Lord Justice Laws state “‘implied repeal’ should not apply to constitutional statutes”?

Answer 12

Thoburn v Sunderland City Council.

Question 13

Differentiate between the UK and a federal state (territorial constitution)

Answer 13

FS - codified and rigid construction, bicameral legislature, equal representation.
UK - no codified constitution, parliamentary sovereignty, UK’s historical development.

Question 14

Define devolution (as to Vernon Bogdanor)

Answer 14

• the dispersal of power from a superior to an inferior political authority.
• the power transfer to a subordinate elected body on a geographical basis, of functions at present exercised by Parliament.
• functions may be either legislative, (the power to make laws), or executive, (the power to make decisions within an already established legal framework)”.

Question 15

Describe the process of devolution to Wales with reference to legislation

Answer 15

Gov of Wales Act 1998 - differs from Scottish and NI devolution
Could only make secondary legislation.
Gov of Wales Act 2006 - Welsh Gov consulted before any Westminster legislation.
Provided legislature with law-making powers, but first a referendum had to be held (passed in March 2011).
Wales Act 2017 brought it more in line with Scottish devolution.
Conferred powers v reserved powers.

Question 16

Describe the process of devolution to Northern Ireland

Answer 16

Northern Ireland Act 1998 - NI will remain part of UK until majority decides to leave in a referendum – s 1.
Northern Ireland Assembly - headed by Executive Committee (power-sharing). Devolution progress impeded by peace process.
The Assembly suspended and direct rule from Westminster imposed in 2002 for five years, after the Ulster Unionist Party refused to share power with Sinn Fein.
Devolved government restored in 2007

Question 17

With regards to devolution, how is England run?

Answer 17

Contains no ‘devolved’ institutions (Greater London has form of regional government).
Elected mayors introduced for nine regions – local authorities.
West Lothian question: is it legitimate for MPs representing non-English constituencies to vote on legislation that affects only England? McKay Commission: double-count procedure – English votes for English laws (EVEL).
Registers English MPs’ objection but does not give them a blocking power.
Scottish Independence Referendum triggered response & another EVEL procedure implemented in 2015.

Question 18

What is the EVEL procedure?

Answer 18

If a Bill applies exclusively to England, and had it applied to a devolved nation it could have been made by the devolved legislature.
The Bill needs to be supported by a majority of all MPs and a majority of all MPs representing English constituencies.
Abolished July 2021 - EVEL no longer applicable. “Adds to complexity and delay to legislating” - Govt.

Question 19

What is the extent of devolved legislatures’ legislative power?

Answer 19

Scottish and NI - general legislative competence (any issues with exceptions). ‘Reserved powers model. Welsh - could only legislative on certain issues (conferred powers model). Wales Act 2017 = general legislative competence. ‘Reserved powers model’.

Question 20

Which Court and Acts are utilised when legislative competence is breached?

Answer 20

Supreme Court; Scotland Act 1998 (ss 32 and 33), Northern Ireland Act 1998 (s 11), Government of Wales Act 2006 (s 112).

Question 21

Define ministerial responsibility

Answer 21

Ministers must not knowingly mislead Parliament – not a legal wrong but a constitutional wrong.

Question 22

Name 3 aspects of constitutional law

Answer 22

Structure and rules of government (legislature, executive, judiciary), relationship of government institutions and limits how they can lawfully act, the relationship between the individual and the state.

Question 23

Name 3 aspects of administrative law

Answer 23

Sets out laws controlling and facilitates use of executive and administrative power, administrative justice (Tribunals, Ombudsmen), judicial review.

Question 24

Functions of the constitution?

Answer 24

Creates the institutions of the state, regulates the relations between those institutions, regulates the relations between those institutions and the people (citizens) they govern. CREATES AN REGULATES POWER.

Question 25

Name 3 countries with an uncodified constitution

Answer 25

UK, Israel and New Zealand.

Question 26

Explain the evolution of the UK constitution

Answer 26

Started as a political constitution, relationships between state institutions based on political understandings, not legal rules. The constitution was upheld by political processes, not legal ones. Then moved to legal constitution, e.g., The Human Rights Act 1998. Relationships between state institutions based on legal rules and put faith in the judicial, not the political, system.

Question 27

3 main functions of parliament

Answer 27

Formation of gov, holding gov to account, making laws.

Question 28

What is the three-pronged test (identifying constitutional conventions)

Answer 28

Precedent, sense of obligation, reason.

Question 29

Describe the law and convention regarding Royal Assent

Answer 29

Law: Every bill must receive a Royal Assent after it has passed its necessary parliamentary stages in order to become law. Convention: The monarch will give the Royal Assent to every bill which has passed successfully through Parliament when advised to do so by ministers.

Question 30

Describe the law and convention regarding Appointment of PM

Answer 30

Law: At common law the monarch has unlimited power to appoint ministers including the PM (this is a prerogative power)* Convention: The gov’t must have the confidence of a majority in the HoC, which means that PM is appointed from the HoC – normally the leader of the political party with the majority of seats in the HoC.

Question 31

The rule of law is a prominent…

Answer 31

Constitutional principle.

Question 32

Name 3 cases where constitutional principles recognised in UK law?

Answer 32

Entick v Carrington – in issuing warrant to authorise agents to break into claimant’s house Minister had acted illegally as no law authorised him to do so. Jackson – the legal question was whether a law had been enacted in conformity with the relevant procedure. Unison – the Minister had exceeded his legal power in imposing fees that made it too difficult for people to access employment tribunals (he had no such legal power).

Question 33

Summarise Montesquieu (1748), James Madison (1788), and Lord Acton (1887) views on Separation of Powers

Answer 33

Montesquieu: “when legislative and executive power is united in a single person/body, there’s no liberty. Nor is there liberty if the power of judging is not separate from legislative/executive power. If it were joined to legislative power, power over life and liberty of citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor”.
James Madison: “one person holding all power is the definition of tyranny.
Lord Acton (1887):“power tends to corrupt and absolute power corrupts absolutely”.

Question 34

Describe the judicial branch

Answer 34

Independence of the judiciary requires strong separation between courts and the other branches. Constitutional Reform Act 2005. Put the rule of law and judicial independence on statutory footing. Significant move towards a more defined separation of powers in the UK, which led to alterations to Lord Chancellor’s position, new Judicial Appointments Commission, elimination of Law Lords. New Supreme Court.

Question 35

Summarise the orthodox view (AV Dicey) on parliamentary sovereignty

Answer 35

“Parliament has the right to make or unmake any law - no person or body is recognised as having a right to override the legislation of Parliament”.

Question 36

What is the only condition regarding parliamentary sovereignty?

Answer 36

Parliament cannot legally entrench legislation.

Question 37

Describe “The manner and form theory” (how parliament legislates)

Answer 37

Manner and form in which it is made and passed. Parliament can introduce special procedures for particular subjects e.g., special majority or requirement of referendum.

Question 38

What are the possible consequences of not following special procedures (legislation forming)?

Answer 38

An injunction could be sought to prevent further passage of the bill, monarch would be justified in refusing Royal Assent, and if the Bill is already passed, court could declare it void.

Question 39

Name and describe two electoral systems

Answer 39

First past the post - candidate with most votes wins each constituency.
Alternative vote - rank in order of preference. Rejected in the 2011 referendum.

Question 40

Define self-embracing sovereignty

Answer 40

Where there are absolutely no limits on legislating, even making laws that destroy the principle of parliamentary sovereignty itself.

Question 41

Define bicameral

Answer 41

Two chambers - HoC and HoL

Question 43

Summarise what a general election is

Answer 43

Determine leading party and membership of HoC (House of Commons), every 5 yrs.

Question 44

Summarise the Dissolution and Calling of Parliament Act 2022

Answer 44

Repealed Fixed-term Parliaments Act 2011, and decided parliament would automatically dissolve for a general election if they had not been called for five years.

Question 45

What is the salisbury convention (constitutional convention)?

Answer 45

The house of lords may not reject a Bill that enforces a manifesto pledge (gov has an electoral mandate to advance such a Bill).

Question 46

How does legislation restrict the house of lords

Answer 46

Parliament Acts 1911-49. They typically only possess delaying power for further debates on a Bill. Can delay 1 month on money bills and 1 year non-money. Exception - HoC needs consent from HoL to pass a Bill that extends parliamentary term longer than 5 yrs, so HoL can prevent this by refusing.

Question 47

Two components of parliamentary privilege

Answer 47

Freedom of speech in parliament (bill of rights 1689), and exclusive cognisance (parliament has the right to determine its own rules and procedures).

Question 48

What is the process of enacting Bills?

Answer 48

First reading (formal intro), second reading (general debate), committee stage (detailed scrutiny + amendments), report stage (new amendments can’t be scrutinised), third reading (short general debate, approved and sent to other house), royal assent (monarch approves of its enactment).

Question 49

Define delegated legislation

Answer 49

Law created by ministers under powers given to them by Acts of Parliament (lets jobs be delegated to executive branch as too time consuming for parliament to regulate every aspect of gov work).

Question 50

What are “Henry VIII Powers”?

Answer 50

The permittance of ministers to amend or repeal acts through delegated legislation.

Question 51

What is the most common form of delegated legislation?

Answer 51

Statutory instruments (set out in an act and means ministers can make law on matters identified in the act using specified parliamentary procedure). Any document used in that process is called a SI.

Question 52

Name 3 mechanisms of parliamentary scrutiny

Answer 52

Negative resolution - when laid to parliament, it’ll come into effect unless either house motions for its annulment. Affirmative resolution - requires motion from both houses to be enacted. Joint committee on SI’s - technical scrutiny. Unless parent act allows, SI’s can’t be amended under either procedure.

Question 53

Can courts declare delegated legislation invalid?

Answer 53

Yes

Question 54

Can courts declare primary legislation invalid?

Answer 54

No

Question 55

What are the four main functions of the executive branch?

Answer 55

Make and implement public policy - execute and administer law made by legislature - runs country - develops changes to public policy/reacts to unforeseen events

Question 56

Is the ministerial code legally binding?

Answer 56

No, it is a constitutional convention to help regulate behaviour of ministers.

Question 57

What types of power does the executive possess?

Answer 57

Statutory powers, prerogative power (accepted by courts as common law), third source power (can act as no law prevents them)

Question 58

Royal prerogative - royal powers maintained today. Name them.

Answer 58

summon and prorogue parliament, no longer creates courts.

Question 59

Summarise the Miller II case (brexit)

Answer 59

Parliament wanted to enact a law to prevent no-deal brexit. Prime Minister advised queen to prorogue parliament. Despite interference violating separation of powers, the issue was deemed valid for the courts as it frustrated and prevented parliament from performing its constitutional functions, therefore making it unlawful. Parliamentary accountability - answering questions etc impossible and proroguing risks gov replaced by unaccountable gov.

Question 61

Main components of the constitutional reform act 2005

Answer 61

UK Supreme Court, Lord Chanellor removed from posts across the powers and now sits only in executive, how judges are appointed and dismissed (JAC).

Question 62

How are judges dismissed?

Answer 62

Medical grounds, by the King (agreed in both houses), until retirement (75). Cannot be sued for damages during work and salaries cannot be reduced.

Question 63

What did the scotland act 1998 introduce?

Answer 63

Established Scottish parliament, formation of government, Scottish administration, dispute settlement, list of reserved matters.

Question 64

What was the purpose of the Scotland Act 2012?

Answer 64

Devolving more powers.

Question 65

How does Westminster control Scotland’s legislative competence

Answer 65

Pre-assent checks, (will not send for royal assent if questioned and brought to supreme court).