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The constitution Flashcards

1
Q

What is a constitution?

A

A framework of rules, principles and procedures that empowers and restrains government institutions while protecting citizens’ rights within a defined geographical area.

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2
Q

What are the four main concerns of public law/constitutional law?

A

1) Underlying principles, 2) Institutions (government, parliament, judiciary), 3) Judicial review, 4) Human rights and civil liberties.

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3
Q

What are the three key guiding principles of the British constitution?

A

1) Parliamentary sovereignty, 2) Rule of law, 3) Responsible government.

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4
Q

What is parliamentary sovereignty?

A

Parliament can make or unmake any law, and no person or body (including courts) can challenge the validity of an Act of Parliament. Established by the revolutionary settlement of 1689.

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5
Q

How was parliamentary sovereignty described in the Allister case?

A

As THE most fundamental principle of the British constitution - not merely a principle but a fundamental RULE.

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6
Q

How can the principle of parliamentary sovereignty be changed?

A

It cannot be changed except by revolution itself.

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7
Q

What did the Case of Proclamations (1611) establish?

A

The king cannot change any law or create any offence by proclamation without Parliament’s authority; the king has no prerogative beyond what the law permits.

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8
Q

How was the Case of Proclamations applied in Miller No. 1?

A

To prevent the government implementing Brexit without parliamentary approval, establishing that only Parliament can legislate to affect domestic law.

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9
Q

What does ‘Parliament is only sovereign when it speaks by means of an Act of Parliament’ mean?

A

Parliament must act through formal legislation to exercise sovereign power. Resolutions or other expressions lack the same legal authority.

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10
Q

What did Bowles v Bank of England (1913) establish?

A

Parliament must legislate formally to exercise sovereignty. Bowles successfully argued he wasn’t liable for increased tax authorized by resolution rather than an Act of Parliament.

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11
Q

What is the Parliamentary Enrolment Rule?

A

When an Act is entered onto the parliamentary roll, courts accept this as conclusive evidence the Act was properly passed and cannot question the process.

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12
Q

List five implications of parliamentary sovereignty in practice.

A

1) Only Parliament legislates, 2) Only Parliament changes the constitution, 3) Parliament can surrender territory, 4) Parliament can legislate retrospectively, 5) Parliament is unconstrained by international law/conventions/previous parliaments.

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13
Q

Can Parliament legislate retrospectively? Give an example.

A

Yes. The War Damage Act 1965 overruled the Burmah Oil case by retroactively removing compensation rights for wartime damage caused by government actions.

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14
Q

What did Mortensen v Peters (1906) establish about international law?

A

Parliament is unconstrained by international law. Domestic law prevails even when it breaches international law.

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15
Q

What did Ellen Street Estates v Minister of Health establish?

A

Parliament cannot bind future parliaments. The most recent legislation prevails over earlier Acts, even those attempting to prevent future changes.

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16
Q

What is the doctrine of implied repeal?

A

If Parliament passes an act inconsistent with an earlier one, the earlier act is impliedly repealed to the extent of the inconsistency.

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17
Q

How did Thoburn v Sunderland City Council modify implied repeal?

A

It created a category of ‘constitutional statutes’ that cannot be impliedly repealed but require express repeal by Parliament.

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18
Q

What is the principle of the rule of law?

A

Government officials must have legal authority for their actions. Everyone, including officials, is bound by law and accountable when they break it.

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19
Q

What did Entick v Carrington establish about rule of law?

A

The state cannot interfere with citizens’ property without legal authority. The lack of legal basis for the warrant made the search unlawful.

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20
Q

What are Dicey’s three principles of the rule of law?

A

1) Law’s supremacy over arbitrary power, 2) Equal subjection of all to ordinary law and courts, 3) Constitution derives from rights of individuals rather than being their source.

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21
Q

What are three of Bingham’s eight principles of the rule of law?

A

Any three from: 1) Law must be accessible/intelligible, 2) Disputes resolved by law not discretion, 3) Law applies equally to all, 4) Protects fundamental rights, 5) Disputes resolved without prohibitive cost/delay, 6) Officials use power reasonably, 7) Fair dispute resolution, 8) Compliance with international obligations.

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22
Q

How does the Human Rights Act 1998 balance rights protection with parliamentary sovereignty?

A

Courts must interpret legislation consistently with convention rights where possible; if impossible, they issue a declaration of incompatibility but cannot invalidate the Act.

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23
Q

What is responsible government?

A

Government is responsible to Parliament through collective responsibility and individual ministerial responsibility (Westminster system).

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24
Q

What is collective responsibility?

A

The government collectively must maintain Parliament’s confidence or face dissolution and new elections.

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25
What is individual ministerial responsibility?
Ministers must account to Parliament for their duties; Parliament can vote no confidence in a minister who would then resign by convention.
26
What are the five defining features of the British constitution?
1) Written and Unwritten, 2) Unitary, 3) Dynamic, 4) Flexible, 5) No Separation of Powers.
27
How is the British constitution both written and unwritten?
No single codified document exists, but components are found in various written sources alongside unwritten conventions.
28
What does it mean that the British constitution is unitary?
Legal authority is centralized in Parliament, unlike federal systems where powers are divided between central and regional governments.
29
What makes the British constitution dynamic?
It evolves continuously without disruption, adapting from an aristocratic to democratic system without revolution. Its unwritten nature provides elasticity.
30
What makes the British constitution flexible?
It can be changed by ordinary Acts of Parliament without special procedures, though major changes often seek public endorsement through elections or referendums.
31
What does 'no separation of powers' mean in the British context?
There's fusion of functions between executive and legislature (ministers are MPs), unlike the US system. Only judicial independence is strongly maintained.
32
What are the four main legal sources of the British Constitution?
1) Treaties of Union, 2) Acts of Parliament, 3) Royal Prerogative, 4) Judicial Decisions.
33
Why are Treaties of Union constitutional sources?
The 1707 (England/Scotland) and 1800 (GB/Ireland) treaties created the UK and contain fundamental guarantees about state structure and rights.
34
What were the three main cases testing the Treaty of Union 1707?
1) MacCormick v Lord Advocate (1953), 2) Gibson v Lord Advocate (1975), 3) In re Allister (2023).
35
What was MacCormick v Lord Advocate about?
Challenge to the designation 'Elizabeth II' since Scotland never had an Elizabeth I, claiming breach of the Treaty of Union. The court recognized but didn't enforce the issue.
36
What was Gibson v Lord Advocate about?
Challenge to the European Communities Act 1972 for allowing EU fishing in Scottish waters, violating Treaty of Union Article 18. Court upheld parliamentary sovereignty.
37
What was the Allister case about?
Challenge that Brexit created different trading arrangements for Northern Ireland, violating Acts of Union 1800. Supreme Court upheld Parliament's sovereignty.
38
Name three Acts of Parliament considered 'constitutional' and why.
Any three from: Bill of Rights 1689, Parliament Acts 1911-1949, House of Lords Act 1999, Scotland Acts, Human Rights Act 1998, Constitutional Reform Act 2005. Constitutional because they establish/alter fundamental structures or principles of government.
39
What is the Royal Prerogative?
Residual powers recognized by courts and left with the monarch after the 17th century civil war, exercised by the monarch or in their name.
40
What are the two types of Royal Prerogative powers?
1) Personal Prerogative (exercised by monarch directly), 2) Political Prerogative (exercised by government in monarch's name).
41
List three Personal Prerogative powers.
1) Summoning/proroguing/dissolving Parliament, 2) Appointing Prime Minister, 3) Giving Royal Assent to bills.
42
How is the monarch's power to choose a Prime Minister constrained?
Must choose whoever commands Commons confidence, typically the leader of the majority party or coalition.
43
List three Political Prerogative powers.
1) Declaring war, 2) Deploying armed forces, 3) Conducting diplomacy/international relations.
44
What trend has affected Royal Prerogative powers in recent years?
Movement toward democratization by replacing prerogatives with statutes or requiring parliamentary approval.
45
How do judicial decisions function as constitutional sources?
Courts establish constitutional principles through rulings on government powers, rights, and constitutional interpretation, creating precedents.
46
What principle did Entick v Carrington establish?
State officials need clear legal authority to interfere with citizens' property; a key aspect of rule of law.
47
What are constitutional conventions?
Rules, principles, or practices considered politically binding but not legally enforceable by courts.
48
List three examples of constitutional conventions.
Any three from: Monarch acts on ministerial advice, gives Royal Assent, PM leads majority party, collective cabinet responsibility, ministerial accountability to Parliament.
49
What is the legal status of conventions?
Courts recognize their existence but won't enforce them. They're politically binding but not legally binding.
50
What is devolution in the UK?
Transfer of powers from UK Parliament to subordinate legislatures in Scotland, Wales and Northern Ireland, while Westminster retains ultimate sovereignty.
51
What does Section 28(7) of the Scotland Act establish?
UK Parliament retains authority to legislate for Scotland despite devolution, reinforcing parliamentary sovereignty.
52
What is the Sewel Convention (Scotland Act Section 28(8))?
UK Parliament will 'normally' not legislate on devolved Scottish matters without Scottish Parliament's consent.
53
How did the Supreme Court interpret the Sewel Convention in Miller (2017)?
As politically important but not legally enforceable; Parliament can legally legislate for Scotland without consent.
54
Does the UK have separation of powers?
Not strictly. There's fusion between executive and legislature, though judicial independence is maintained.
55
How does the UK system differ from the American system regarding separation of powers?
The US has strict separation with checks and balances; UK has fusion of executive and legislative functions with ministers drawn from Parliament.
56
What aspect of separation of powers is strongly maintained in the UK?
Judicial independence - judges independent from government, appointed through independent commission.
57
How are human rights protected in the UK constitution?
Through the Human Rights Act 1998 incorporating ECHR rights into UK law, and through common law protections.
58
What does the Human Rights Act 1998 require courts to do?
Interpret legislation consistently with convention rights when possible; issue declarations of incompatibility when not possible.
59
What effect does a declaration of incompatibility have?
Doesn't invalidate legislation (preserving parliamentary sovereignty) but signals Parliament should amend it to comply with human rights obligations.
60
What four major constitutional reforms occurred around 1998-2005?
1) Devolution, 2) Human Rights Act 1998, 3) House of Lords reform (1999), 4) Supreme Court creation (2005).
61
What did the Constitutional Reform Act 2005 establish?
Created UK Supreme Court (replacing House of Lords' judicial function), enhanced judicial independence, reformed Lord Chancellor role.
62
What changes did the House of Lords Act 1999 make?
Removed most hereditary peers (keeping only 92), making Lords predominantly appointed life peers.
63
What did Ellen Street Estates v Minister of Health establish?
Parliament cannot bind future parliaments; the most recent expression of parliamentary will takes precedence.
64
What did Miller No. 1 establish about Brexit?
Government couldn't use prerogative powers to trigger Article 50 without parliamentary authorization since this would change domestic law.
65
What did Miller No. 2/Cherry establish about prorogation?
PM's advice to prorogue Parliament was unlawful as it prevented Parliament from fulfilling constitutional functions without justification.
66
What did Malone v Metropolitan Police Commissioner reveal?
Gaps in UK privacy law as phone tapping wasn't illegal without specific law prohibiting it; no right to privacy existed in English law.
67
What did CCSU v Minister for Civil Service (GCHQ case) establish?
Exercise of prerogative powers is subject to judicial review; review applies whenever public power is exercised.
68
What was established in Jackson v Attorney General?
Parliament Acts procedure was valid but some judges expressed concerns about unlimited parliamentary sovereignty.
69
What is the territorial scope of the British constitution?
Applies within defined territorial boundaries of the state, which have expanded and contracted historically.
70
What is the significance of the Ireland Act 1949?
It guaranteed Northern Ireland would remain part of the UK as long as the majority wanted, while recognizing the Republic of Ireland as independent but maintaining certain legal connections.
71
What is the significance of the Island of Rockall Act 1972?
The UK claimed this small island as part of Scotland, extending Britain's oceanic territory, though Ireland doesn't recognize this claim.
72
What is the difference between a unitary and federal state?
In a unitary state (UK), legal authority rests with central government; in a federal state (US), power is constitutionally divided between central and regional governments.
73
How is the UK different from a federal state despite devolution?
UK Parliament retains authority to legislate on any matter and could revoke devolution; in federal systems, regional powers are constitutionally protected.
74
What 4 institutions make up the UK constitution?
1) Executive (PM, cabinet, government), 2) Legislature (Parliament: Commons and Lords), 3) Judiciary (Courts), 4) Monarchy.
75
What are the functions of Parliament?
1) Supply government personnel, 2) Provide financing (budget), 3) Legislate (make law), 4) Hold government accountable.
76
What is judicial independence and how is it ensured?
Principle that judges should be free from government influence. Ensured by preventing judges from being partisan and appointing them through an independent commission.
77
How has the UK constitution evolved over time?
Moved from aristocratic to democratic system without major upheaval through gradual reforms including franchise expansion (1832), House of Lords reform (1911, 1949, 1999), and evolution of rights culture.
78
What was established in the Bill of Rights 1689?
Parliamentary sovereignty, requirement for parliamentary approval of taxation, and protection for parliamentary proceedings from judicial scrutiny (Article 9).
79
What changes were made by the Parliament Acts 1911-1949?
Restricted House of Lords' power, removing the ability to veto legislation passed by the House of Commons.
80
What changes were made by the Parliament Acts 1911-1949?
Restricted House of Lords' power, removing their ability to veto indefinitely bills from Commons and preventing them from blocking financial legislation.
81
When can the UK monarch refuse Royal Assent?
By convention, the monarch cannot refuse Royal Assent to bills passed by Parliament, though theoretically the power exists.
82
How are constitutional conventions different from laws?
Conventions are politically binding but not legally enforceable rules, principles, or practices, while laws are legally binding and enforceable by courts.
83
What is a declaration of incompatibility under the Human Rights Act?
Court statement that legislation conflicts with European Convention rights, but doesn't invalidate the Act, preserving parliamentary sovereignty while highlighting human rights issues.
84
How did Brexit impact constitutional principles?
Tested parliamentary sovereignty, prerogative powers, devolution arrangements, and role of referendums, leading to significant cases (Miller 1 & 2) clarifying constitutional boundaries.
85
What is the current composition of the House of Lords?
Predominantly life peers appointed for life by Prime Ministers, with 92 remaining hereditary peers and some bishops of the Church of England.
86
Why is the UK constitution described as 'dynamic'?
It evolves continuously without revolution or upheaval, adapting to changing social and political circumstances while maintaining institutional continuity.
87
What rights were guaranteed to Scotland in the 1707 Treaty of Union?
Article 18: Private rights of Scottish people not to be changed except for their evident utility; Article 19: Independence and separation of Scottish legal system; Continuation of Presbyterian church.
88
What is the constitutional status of referendums in the UK?
Advisory rather than legally binding; Parliament remains sovereign and technically not bound by results, though politically difficult to ignore outcomes.
89
What is the Westminster system/model of government?
System based on parliamentary sovereignty, rule of law, and responsible government where the executive is drawn from and accountable to legislature.
90
How has the Royal Prerogative evolved in recent years?
Trend toward democratization by replacing prerogative powers with statutory authority or requiring parliamentary approval, though some powers have been restored (e.g., Boris Johnson repealing Fixed-term Parliaments Act).

Public law (5 decks)

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