Public Law: Fundamentals of UK Constitution Flashcards
Define Consitution
A set of rules and principles which:
1) Defines a state’s fundamental political principles
2) Establishes the framework of the government of the State
3) guarantees rights and freedoms to citizens
4 Sources of UK constitution
1) Legislation
2) Case Law
3) Constitutional conventions
4) The Royal Perrogative
Characteristics of Statute being a source of UK Constitution
Examples of articles that have made fundamental changes to the UK constitution
There are no special majorities or other arrangements needed to pass laws that will change the constitution. Compared to US that need 2/3 majority and support from 3/4 of the states to make amendments to constitutional articles
Examples
Bill of Rights 1689: limitation of Crown’s power to interfere with parliament
Parliament 1911 and 1949: limitation of powers of HoL
European Communities Act 1972: EU law become UK law
Scotland Act 2016, Wales Act 2017 NI Act 1998: Devolution
Human Rights Act 1998: incorporated ECtHR into UK law
Characteristics of Case law being a source of UK Constitution
Which 3 ways judicial decision may alters law of a constiutional nature in the UK?
1) Judicial interpretation of statutes
Judges in their interpretation of Acts of Parliament may make decisions that add new concepts to, or clarify areas of our constitution in Factortame the HoL effectively suspended the operation of an Act or Parliament
2) Development of common law as key principles of constitution
3) Judicial Review as a mechanism enabling the courts to review and determine the lawfulness of actions taken by the government. The pwoer of JR allows the High Court to influence the UK constituion by holding the state to account for its actions, preventing it from acting arbitrarily
6 areas of common law development that contribution to the foundation of UK constitutional principles
1) Residial Freedom - unless the law clearly prohibites it, a citizen is free do/say whatever he wishes
2) Actions of the state need legal authority Entick v Carrington if it is not in found in the books it is not law
3) Legal disputes to be resolved by the judiciary Case of prohibitions held that the monarch may not make arbitrary rulings to decide legal matters, and such disputes must be resolved bty the court of law
4) Haheas corpus and indivudal liberty - the right of an individual to mount a legal challenge against unlawful detention by the State
5) Right of fair hearing- rules of natural justice, providing that decision-makers should be unbiased
6) Parliamentary Supremacy
- the notion that the courts will not question the validity of an Act of Parliament s rooted in a rule developed by the courts, called the ‘Enrolled Act’ rule
What are constitutional conventions
Examples of constitutional conventions (7)
a) These are rules of constituional behaviour in the UK that are not legally enforced, yet are cosidered binding. These rules are non-legal. By their nature they are flexible. They may be created, or dispensed with without the complexities of enacting formal changes to the constitution
Examples:
Royal assent to bills which have passed through Parliament
Parliament meets through out each year
Ministerial collective/individual responsibility - they must resign in case of personal misconduct (Peter Mandelson)/opposing to Govt policy (Baroness Warsi)
Monarch does not play an active role and executive powers are exercised by the Govt
PM must be a member of the HoC but minsters can be from HoL or HoC
Salisbury convention: HoL will not oppose the 2nd/3rd reading of govt legislation that was directly promoised in an election manifesto
Sewel Convetion: The Westminster Parliament will not normally legislate on devolved issues without the consent of the parliament with the devolved power
what is the Royal Prerogative
Examples of areas which fall within the Royal Prerogatvies
The Royal Prerogative is another legal source of the Constitution from which the UK govt derives power to take actions
Flexbile becasue decisions that affect the constitution can be made under the Royal Prerogative relatively easily and flexibly without needing the formal procedure associated with constitutional amendments and parliament agreement:
Foreign affairs: ratify treaties/declaration of war/recognition of states
Domestic: summoning of parliament/appointment and dismissal of governement ministers
Arguments against the UK constitution having a high degree of flexibility
1) Statute Repeal is practically difficult
in a practical sense it is nearly impossible to repeal a statute without great political economic and socal upheaval eg. HRA 1998 Devolution Acts
Statute enactment is slow:
Examples of protracted and drawn out processof constitutional change: HRA 1998 and reform of HoL
Constitutioanl Conventions may not be dispensed flexibly. In reality some appear to profoundly established within the constitution to be removed:
Royal Asset to bill
Queen acts only on Ministerial advice
Ministerial individual/collective responsiblity.
