Public Law - EU Law & UK Constitution Flashcards
The ECJ has enabled three ways for Directives to be enforced in national courts - what are they?
Why do EU Regulations not need to implemented?
Direct effect - available after the deadline of national implementation has passed
Indirect effect - available where national courts must consider the EU Directive
State liability - compensation available where the Member State has failed to implement the Directive
Regulations are directly applicable in Member States.
What is the status of EU Law? Consider the case of Van Gend en Loss.
EU Law takes priority over national law.
Where a nation enters into the EU, they accept “a new legal order… for the benefits of the States have LIMITED THEIR SOVEREIGN RIGHTS, albeit within limited fields.”
What is the separation of powers idea?
A system of checks and balances to prevent bodies of the state becoming too powerful (Government/Executive, Judiciary, Parliament)
What is significant about the Royal prerogative?
They are powers of the Crown that do not require the authorization of Parliament, e.g. to summon and prorogue Parliament (Brexit case); give pardons; issue passports; negotiate treaties, etc.
What are constitutional conventions and why are they significant?
Conventions are rules about Government conduct which, despite not being law, are respected. These are a way to informally develop the Constitution, e.g. by regulating the relationship between House of Commons, House of Lords and the Monarch; the Executive and Parliament. Conventions underpin the Cabinet and how ministers should conduct themselves / what responsibilities they owe.
Example: The Monarch will never deny royal asset to enact an Act of Parliament.
Example: The Government will resign if it loses a “vote of no confidence”.
Example: Collective ministerial responsibility and individual ministerial responsibility (as reflected in Ministerial Code).
Example: Judiciary cannot be political.
Explain what is meant by a delegation of power, e.g. between a Minister and his more-junior civil servants
The minister will remain politically responsible for the use of power granted under statute or secondary legislation (Regulations) but it is lawful for the minister to delegate powers to his civil servants.
What is the purpose of a Judicial Review?
To review whether government officials or bodies have acted:
1. in a lawful manner (think: Wednesbury unreasonableness or biased decisions) and,
2. within the powers granted by primary or secondary legislation,
3. in accordance with a government policy.
If not, there actions will be “ultra vires” (outside the scope given) and be unlawful.
Does the judiciary have law-making powers, and if so, explain / give examples
Does the Executive (Government currently in power) have roles other than proposing new legislation?
Yes, the judiciary holds the Government to account (e.g. Jackson where the courts put Rule of Law above Parliamentary Sovereignty; courts are “guardians of the constitution”). Also, courts fill in the gaps in the law and the common law evolves with societal standards, e.g. Gillick competency, R v R (ban on marital rape).
Yes, the Executive can also draft secondary legislation like Regulations which is a huge volume of the UK’s laws or Statutory Instruments (contain a Secretary of State’s additional rules on a certain issue). Regulations and SIs can be challenged via Judicial Review.
What are the main impacts of the Constitutional Reform Act 2005?
- changed Lord Chancellor role so that they are no longer head of the Supreme Court (it is now an Executive role primarily, to avoid conflict re. separation of powers).
- Changed judicial appointment system to ensure judicial independence and fairness; removing “tap on the shoulder” nepotism culture.
- Replaced House of Lords with the UK Supreme Court.
What are “devolved matters” and what are “reserved matters” in the context of Devolution?
Devolved matters are areas where the UK Parliament has delegated decision-making to the Scottish, Welsh or Northern Irish administrations, e.g. economic development, agriculture and fishing, health services, food, education and training.
Reserved matters are still taken by the UK Parliament and they affect the whole of the UK’s nations, e.g. immigration, defence, foreign policy.
What is the “Memorandum of Understanding”?
What is the “Sewel Convention”?
MofU: The UK Parliament’s promise not to infringe on the devolved matters which should be left to the devolved nations’ administration.
Sewel Convention: UK Parliament will not normally legislate on “devolved matters” without the consent of the devolved legislature.
What is the general rule with regards to the UK Parliament writings laws, in the context of devolved matters?
England’s Acts of Parliament will only apply to Wales/Scotland/Northern Ireland if they deal with “reserved” matters.
What are the common features of the “rule of law”?
Think about:
- how the rule of law operates;
- how the courts are “guardians of the Constitution”/rule of law
- why the rule of law might be overlooked in the separation of powers, e.g. by the Executive, and the need for judicial oversight of government actions, regulations and policies.
- Legal procedure must be clear and certain.
- Example: Any government interference with persons or property must be sanctioned by a legal authority (whether in statute or the common law), giving an identifiable power to perform the action in question (Entick v Carrington).
- The law must be prospective (i.e. no laws which are retrospectively applicable).
- The law must be clear.
- The law should be applied equally. - “all persons [including the Government] are equal before the law”.
- The judiciary must be independent.
Are there any exceptions to the idea that “all persons are equal before the law”?
Generally, no.
You could argue diplomatic immunity or Parliamentary privilege are exceptions: (it is secret how members of Parliament (the government and the opposition) conduct their affairs.
What is the “enrolled bill rule”?
It cannot be argued that an Act of Parliament is invalid because of any defects, including fraud, in the legislative process.
