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Public Law I > Sources of Power > Flashcards

Sources of Power Flashcards

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1
Q

What is a constitution?

A

“A constitution is the set of the most important rules that regulate the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country.”

Described by Anthony King

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2
Q

What are some functions of a constitution?

A

Creates the institutions of the state

Regulates relations between governmental institutions

Regulates relations between governmental institutions and the people

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3
Q

What is constitutionalism?

A

The adherence to a constitutional system of government

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4
Q

What are some key points about Constitutionalism?

A

Imposes limits on government power

Protects human rights

A constitution both creates powers and limits those powers.

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5
Q

What is a Codified Constitution?

A

A constitution that is written down in a single document.

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6
Q

What is a Un-codified Constitution?

A

A constitution is not contained in a single document or written form.

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7
Q

The two types of flexibility within Constitutions?

A

Rigid and Flexible

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8
Q

What are some aspects of Rigid Constitutions?

A

Difficult to amend.

Amendment procedures are more complex than ordinary legislative changes.

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9
Q

What are some aspects of Flexible Constitutions?

A

Easier to amend and adapt over time.

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10
Q

What is a Legal Constitution?

A

When the judiciary form the greatest check upon the use of executive power

Current relationships between state institutions rely increasingly on legal rules.

Faith is being placed more in the judicial system rather than purely political means.

Legal processes are seen as necessary to ensure the protection of minority groups.

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11
Q

What is a Political Constitution?

A

When the legislature is the main check upon executive power

Relationships between state institutions were based on political understandings, not bound by legal rules.

The protection of the constitution was maintained through political processes rather than legal interventions like courts.

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12
Q

What are the three ideological classifications of a constitution?

A

Liberal, Socialist, Authoritarian

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13
Q

What is ‘Liberalism’

A

A political and social philosophy that promotes individual rights, civil liberties, democracy and enterprise

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14
Q

What is the purpose of a liberal constitution?

A

To uphold the principles of classical liberalism and the rule of law

I.e Individual rights, civil liberties, democracy and enterprise

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15
Q

What is ‘Socialism’?

A

A political and economic theory advocating for resources and wealth to be distributed equitably among the population

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16
Q

What is the purpose of a Socialist constitution?

A

To create a society where the means of production are collectively owned, and the state plays a central role in planning and regulating the economy of the people.

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17
Q

What is ‘Authoritarianism’?

A

A political system characterised by strong central power and limited political freedoms

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18
Q

What is the purpose of an Authoritarian constitution?

A

To consolidate power within a central authority, often a single leader or ruling party. It aims to ensure stability and order often at the expense of individual freedom or democratic processes.

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19
Q

What is a Formal understanding of a Constitution?

A

The text of a constitution that is presented by legal elites/law professors i.e. the traditional understanding

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20
Q

What is a material understanding of a Constitution?

A

We should look at where the power really lies.

For example, the European Parliament makes laws regarding the European Union but the European Central Bank has a lot of political power and maybe we should consider the constitutional function of the central bank.

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21
Q

What is a Sham constitution?

A

Constitutions that exist in form but not in practice

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22
Q

What are some of the main characteristics of the UK’s Constitution?

A

Un-codified

Accountable Government

Legal and Political Constitutionalism

Multi-layered nature

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23
Q

What is an advantage of an Un-codified Constitution?

A

It remains current and adaptable

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24
Q

What are some disadvantages of an Un-codified constitution?

A

Too easily amended, even with narrow majority.

Protection of rights can be at the government’s discretion.

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25
Q

Traditionally we are what type of constitutionalism?

A

Political

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26
Q

What are the three main constitutional principles?

A

Parliamentary Sovereignty

Rule of Law

Separation of Powers

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27
Q

What is Parliamentary Sovereignty?

A

Parliament can make/unmake any law.

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28
Q

What is the Rule of Law?

A

That everyone including the government must abide by the law

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29
Q

What is the separation of powers?

A

Powers are divided among branches to prevent concentration.

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30
Q

What is a constitutional convention?

A

An informal/uncodified tradition that is followed by the institutions of a state

May have been adhered to for centuries

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31
Q

The introduction of the Human Rights Act 1998 provided BLANK on what Parliament enacts

A

Judicial Scrutiny

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32
Q

What is our current constitution thought as regarding its legal/political nature?

A

A mixed system

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33
Q

What are some aspects of common law?

A

Courts develop common law principles

Encompasses private and public law

Common law can be amended by Parliament

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34
Q

What are some aspects of Constitutional Conventions?

A

Relies heavily on non-legal principles and norms

Conventions guide government and Parliament behaviours

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35
Q

What is one of the main aspects of our constitution that makes it Multi-Layered in Nature

A

Devolved legislatures such as; Scotland, Wales and Northern Ireland

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36
Q

How was EU law previously regarded when compared to domestic law before Brexit?

A

Superior

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37
Q

How are fundamental principles often expressed in constitutions?

A

Through the use of vague language

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38
Q

What does it mean by the sources of the constitution?

A

Sources are where we find the rules and principles of a constitution

39
Q

What are the main sources of the UK Constitution?

A

Legislation (Acts of Parliament)

Constitutional Conventions

Judge-Made Law (Common Law)

International Law

40
Q

How to identify constitutional legislation?

A

If it concerns a constitutional principle such as Organising and allocating powers to institutions of government

41
Q

What is the nature of constitutional legislation?

A

Although constitutional in nature, these legislations have the same value as any other legislation.

42
Q

What is AV Dicey’s view on Constitutional Legislation?

A

That there is no hierarchy between constitutional and ordinary statutes

43
Q

What is Laws LJ’s View on constitutional legislation?

A

He suggests a hierarchy exists between ‘ordinary’ and ‘constitutional’ statutes

44
Q

What is Implied Repeal?

A

Typically, more recent laws prevail over older ones, i.e new legislation that contradicts older statutes can impliedly repeal them

45
Q

What does Law LJ argue regarding implied repeal?

A

That it should not apply to constitutional statutes

46
Q

What is a constitutional convention as defined by AV DIcey (1885)?

A

Conventions are not laws as they are not enforced by courts but regulate the conduct of sovereign power.

47
Q

What is a constitutional convention as defined by Adam Tomkins (2003)?

A

A non-legal but binding rule of constitutional behaviour.

48
Q

Are Constitutional conventions binding?

A

Binding due to political consequences, not judicial sanctions.

I.e politically binding not legally

49
Q

How to identify constitutional conventions?

A

Three-pronged test for conventions (Jennings Test):

Precedent

Sense of Obligation

Reason

50
Q

What is precedent within a constitutional convention?

A

This refers to the historical practice of the convention. For a rule to be considered a constitutional convention, it must have been followed consistently over time. This historical continuity helps establish the practice as a norm.

51
Q

What is a sense of obligation in regard to constitutional conventions?

A

This element emphasizes the psychological aspect of conventions. The actors involved (e.g., government officials, political parties) must feel a duty or obligation to follow the practice. It’s not just about what has been done in the past, but also about the belief that it should continue to be done.

52
Q

What is the reason when identifying constitutional conventions using the three-pronged test?

A

There must be a logical or functional reason for the convention. This reason often relates to the effective operation of the constitution or the political system. For example, a convention might exist to ensure a balance of power, to protect democratic principles, or to maintain the integrity of governmental processes.

53
Q

What type of constitutionalism would constitutional conventions come under?

A

They are political in nature as they are not enforceable in a court

54
Q

What is judicial interpretation?

A

Judges interpret laws, which can change their meanings

55
Q

What are some aspects of common law?

A

Judges can create new law and principles through:

Good administration principles developed through judicial review.

Ensuring processes are fair, reasonable, and rational.

Establishing common law constitutional principles, e.g., the rule of law.

Not binding as they can be overridden by statutes.

56
Q

What are UK treaties and how are they implemented domestically?

A

UK treaties are agreements with other states that are binding in international law. They often require domestic legislation to be implemented

57
Q

How was the European Convention on Human Rights (ECHR) implemented in the UK?

A

The ECHR was implemented domestically in the UK via the Human Rights Act (HRA)

58
Q

How should national laws conform to treaties in the absence of domestic legislation?

A

Even without domestic legislation, national laws should conform to treaties where possible.

59
Q

How did UK courts use the ECHR before the Human Rights Act (HRA) was enacted?

A

Prior to the HRA enactment, UK courts used the ECHR as an interpretative aid.

60
Q

How are international treaties usually given effect in domestic law?

A

International treaties are usually given effect in domestic law through legislation.

61
Q

What should happen when international treaties are not enacted into domestic law?

A

When not enacted, domestic law should align with international treaties where possible.

62
Q

What is a representative democracy?

A

Representative democracy is a political system in which citizens of a country or other political entity vote for representatives to handle legislation and otherwise rule that entity on their behalf.

63
Q

What is the process called when government action can be challenged by the courts?

A

Judicial Review

64
Q

What is the primary function of a constitution?

A

To allocate state power

65
Q

Through what means can the government be held accountable?

A

Judicial Review

Parliamentary Scrutiny

Elections

66
Q

What are constitutional principles?

A

Fundamentally important values concerning the constitution that explain and influence constitutional arrangements both politically and legally, and serve as benchmarks for evaluating constitutional actors.

67
Q

What are the three main conceptions of the rule of law?

A

Bare Principle of Legality

The Formal Conception

The Substantive Conception

68
Q

What is the Bare Principle of Legality?

A

A law is recognised if enacted following the prescribed legal procedure

69
Q

What makes the bare principle of legality morally neutral?

A

Any law, irrespective of its content, is valid if enacted by the proper institution in the specified manner

70
Q

What are some implications of the bare principle of legality being morally neutral?

A

Even morally objectionable laws like those providing for racial segregation or slavery would be compliant with the rule of law if enacted correctly it also highlights the separation of legality from moral judgment in this view

71
Q

What is the Formal Conception of the Rule of Law?

A

Is that the rule of law should focus on the creation and enactment of a law, ensuring it follows the correct procedure regardless of the content of the law itself.

72
Q

What is Raz’s perspective on formal conception?

A

To ensure law guides action effectively

73
Q

What are some key characteristics of Raz’s Perspective on formal conception?

A

Clearly stated laws

No retroactive laws

Laws should not change frequently

74
Q

What is a retroactive law?

A

Legislation that affects matters that happened before it’s enactment.

75
Q

What are some criticisms of a formal approach to the rule of law?

A

It isn’t entirely morally neutral, based on respecting individual autonomy and dignity.

If dignity and autonomy are starting points, then laws incompatible with these (e.g., torture) should be challenged.

76
Q

What is individual autonomy within the law?

A

Individual autonomy is a legal and ethical concept that refers to the right of competent adults to make informed decisions about their own lives

77
Q

What is the substantive conception?

A

The idea that law should have formal qualities while also containing good ‘content’.

78
Q

What are some of the ‘content’ that the substantive conception aims for?

A

Freedom of expression

Equality

Fundamental rights

Moral integrity

79
Q

What is a further definition of substantive conception?

A

The rule of law equates to the rule of good law

80
Q

What is the main negative argument for substantive conception, according to Raz?

A

Raz argues that extending the rule of law to include moral judgments turns it into a political theory.

81
Q

How does the rule of law affect the UK’s constitution?

A

Since the UK doesn’t have a codified constitution, the rule of law is essential at interpreting constitutional values.

The rule of law can influence how legislation is enacted

It can protect constitutional values

82
Q

How is the rule of law relevant in the judicial system?

A

Courts can invalidate government actions that are inconsistent with the rule of law.

Courts strive to interpret legislation in a way that is compatible with the rule of law.

83
Q

How Parliamentary sovereignty affects the rule of law?

A

Parliament has the power to override rule of law requirements.

84
Q

How is Parliamentary sovereignty recognised in the UK?

A

This power is recognized in statute, specifically in the Constitutional Reform Act 2005, Section 1.

85
Q

What is the manner and form theory?

A

That Parliament has unlimited legal authority and can enact anything regardless on the content

86
Q

What are the three models of Parliamentary authority?

A

Model I: Full Sovereignty

Model II: Conditional Sovereignty

Model III: Limited Sovereignty

87
Q

What is full sovereignty?

A

That parliament is fully sovereign and cannot limit its own power

Sovereignty is considered fixed or continuing

88
Q

What is conditional sovereignty?

A

Parliament remains sovereign but can create binding conditions for the legislative processes

Allows Parliament to set terms for repealing and amending laws with specific conditions

89
Q

What is limited sovereignty?

A

Parliament is not fully sovereign and lacks the power to legislate against fundamental constitutional values

90
Q

What are the sources of the UK constitution? Which of these sources is most
obviously ‘unwritten’ in the literal sense?

A

The main sources of the UK constitution are legislation, constitutional conventions, judge made law and international law. The source in that is most in a sense “unwritten” is constitutional conventions, due to the fact they are only binding due to political consequences but aren’t breaking the law ifbreached they don’t have consequences if broken there is no judicial sanctions.

91
Q

Is there a hierarchy among the sources of the UK Constitution? If you think there is, what is the basis for this hierarchy?

A

There is no hierarchy regarding the sources of our constitution it is deemed to be ‘flat’ in nature but there is premise for a hierarchy of legislation

92
Q

What makes a statute ‘constitutional’? Do constitutional statutes have superiority over ordinary statutes?

A

A constitutional statue is that regulates institutions. It could be argued that constitutional statutes have superiority as laws as the supreme court can argue that implied repeal should not apply to them.

93
Q

What do the sources of the UK Constitution indicate regarding whether the UK Constitution is underpinned by political constitutionalism or legal constitutionalism?

A

The sources indicate that the UK constitution contains both political and legal constitutionalism. This is because sources such as international law and legislation are more legal constitutionalism, whereas constitutional conventions and judge made law are more political constitutionalism- therefore the UK constitutionalism is a mixture of the two.

94
Q
A

Public Law I (14 decks)

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