The UK Constitution Flashcards
Conventions relating to the legislature
- The House of Lords should defer to the House of Commons.
- The House of Lords should not reject at second reading any government legislation that has been passed by the House of Commons and that carries out a manifesto commitment (ie a promise to the electorate in the course of a preceding general election). This is known as the Salisbury-Addison convention.
- Financial bills (eg relating to government expenditure and taxation) are only introduced by a Cabinet minister in the House of Commons.
- The Westminster Parliament will not normally legislate with regard to devolved matters in Scotland, Wales or Northern Ireland without the consent of the devolved administration (the Sewel Convention).
- Following the parliamentary vote on military engagement in Syria in 2013 (building on the 2003 vote in relation to war in Iraq), it is arguable that a new convention has emerged: that the House of Commons should be consulted before the government embarks on any major foreign policy initiatives involving the use of armed forces.
Conventions relating to the executive
The monarch acts in accordance with the advice given by his Ministers (eg with regard to proroguing Parliament).
* The monarch will not exercise his legal right to refuse royal assent to bills passed through Parliament.
* The monarch will appoint as Prime Minister the leader of the political party which is able to command the confidence of the House of Commons.
* The Prime Minister chooses the Cabinet Ministers (ie the heads of government departments).
* The Prime Minister and the Chancellor of the Exchequer should be MPs.
* After a vote of no confidence by the House of Commons, the government will resign, and the Prime Minister will advise the monarch to dissolve Parliament. This will lead to a general election. (Note that this position was impacted while the Fixed-term Parliaments Act 2011 was in place, before its repeal in 2022.)
* The monarch must be asked for consent to proposed legislation affecting the interests of the monarchy.
Conventions relating to the judiciary
- Judges should not be politically active. (In addition to offending convention, this would risk the appearance of judicial bias and undermine the parties’ right to a fair trial.)
- Parliament must not criticise the professional conduct of judges.
When the executive criticises the judiciary, as exemplified by Boris Johnson, who gave his view as PM in September 2019 that the Supreme Court’s decision that he had unlawfully prorogued Parliament was ‘wrong’, it can be argued that this is a breach of convention, as well as a slight to
the principles of the separation of powers and the rule of law.
The House of Commons
Members of the House of Commons – ‘MPs’ – are elected by the public in a ‘general election’. Or, occasionally, via a by-election.
Under s 4 of the Dissolution and Calling of Parliament Act 2022, Parliament will be automatically dissolved after a five-year period.
A general election can otherwise be triggered earlier in one of two ways:
* Following a request by the Prime Minister to the monarch for him to exercise his prerogative power to dissolve Parliament. This is effectively a tactical dissolution, conditioned by political considerations.
* Following a ‘vote of no confidence in His Majesty’s Government’ (ie the current government) Most MPs are members of political parties. The main UK-wide political parties are the Conservatives, the Labour Party, the Liberal Democrats and the Green Party. Following the 2019 general election, ten political parties were represented in Parliament, including a number of regional parties from the three devolved parts of the UK. The SNP is the third largest of all the UK
parties in Westminster.
The House of Lords
The House of Lords is not an elected body. It consists of nearly 800 ‘peers’.
A peer is someone with a high-ranking inherited noble title, such as a Duke, Marquess or Earl, or anyone who has been made a peer during their lifetime, a ‘life peer’.
Peerages have always been granted by the sovereign. Hereditary peerages are passed down through families. Life peerages are also granted by the monarch, on the advice of the Prime Minister - this is an example of a prerogative power.
For centuries, hereditary peers had the right to sit and vote in the House of Lords.
In 1999, the House of Lords Act reduced the number of hereditary peers who may sit and vote in the House to 91. The remainder of members are life peers (granted peerage by the Sovereign, for life), and bishops.
Many peers are also members of political parties. However, there are also over a hundred ‘crossbench’ peers, who are not party-political.
The structure of government ‘departments’
The business of the central Executive (‘the government’) is divided into administratively distinct sections which are led by a senior politician, usually referred to as the Secretary of State, though some have special titles, notably the Chancellor of the Exchequer. Secretaries of State are
members of the Cabinet.
Within each department or ministry, there are also several junior ministers - the second rank is normally known as a Minister of State and the third rank as a Parliamentary Under-Secretary of State. Colloquially, all these officials are known as ‘Ministers’.
The number, names and responsibilities of ministries are not fixed – governments can, and often do, make changes.
It is important to understand that all these Ministers are political appointees chosen by the Prime Minister. If there is a change of government, the Ministers will leave their posts. Ministers may also change departments during the period of time their political party is in power. These changes,
also made by the Prime Minister, are known as a ‘Cabinet reshuffle’.
In contrast to their politically appointed leaders, the civil servants who work in government departments are politically neutral. They do not have to move jobs when there is a change of government.
What government departments do
Each government department is responsible for delivering the government’s policy in a particular area.
The core government departments for the purposes of constitutional law are:
* The Cabinet Office (responsible, amongst other matters, for national emergencies and constitutional reform)
* The Foreign Office (responsible for relations with foreign states)
* The Home Office (responsible for the security of the United Kingdom and policing)
* The Ministry of Justice (responsible for the administration of the Courts and Tribunals system, and prisons and probation)
* The Treasury (responsible for economic policy, including public spending, ie the allocation of taxes paid by the public)
The powers of government departments are derived from statute (legislation which has been approved by Parliament) or the common law – usually the royal prerogative.
Bear in mind that the government exercises its powers in the name of the monarch, but that the exercise of prerogative power today means the exercise of power by the government without parliamentary approval.
The internal administrative arrangements of government departments are generally made under prerogative powers, except for the appointment of accounting officers. Accounting officers are responsible for the preparation of department accounts. They are appointed by the Treasury, pursuant to the Government Resources and Accounts Act 2000. The allocation of funds to government departments requires the approval of Parliament.
Delegation of power
An essential concept in public law is the delegation of power. This means the lawful exercise of power, granted to a minister by legislation or under common law, to a government official of lower rank working in the same department.
Consider the granting of passports. This is a prerogative power of the Crown, exercised by the Secretary of State for the Home Department (the ‘Home Office’). However, the Secretary of State could not personally review and decide all passport applications. Therefore, this power is delegated to passport officers.
When reading legislation, which gives powers to, and imposes duties upon, government ministers, you will see wording like this: ‘the Secretary of state shall […]’ or ‘the Secretary of State must […]’. Bear in mind that in practice, the power or duty will be exercised b imposed on an official of lower rank, identified in a ‘scheme of delegation’.
The principle that the actions of government department officials are synonymous with the actions of the Minister in charge was established in the case of Carltona Ltd v Commissioners of
Works [1943] 2 All ER 560 (CA). The judgment was given by Lord Greene, Master of the Rolls, in the following terms:
In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are so multifarious that no responsible minister could properly attend to them […] the duties imposed on ministers are normally exercised [under their authority] by responsible officials of the department. Public business could not be carried out if that were not the case. Ministers remain politically answerable to Parliament for such decisions, however.
Constitutional principles
The Crown (government) and its ministers are subject to the following constitutional principles:
* Laws may not be suspended: The government may not suspend any law without the consent of Parliament (Bill of Rights, s 1).
* Taxation: All taxes require the consent of Parliament. They must be set out in legislation.
* Habeas corpus: The restrictions imposed on the arbitrary imprisonment and punishment of citizens remain an important limitation on government power today and can be traced back a long way into history, including to the Magna Carta (1215).
* Freedom from arrest: There are no longer any common law powers exercisable by the
monarch or by government ministers, to issue warrants of search or arrest.
* Impeachment: Parliament can inquire into alleged illegal acts by ministers (though this power has very seldom been exercised).
The Lord Chancellor
The King appoints the Lord Chancellor on the advice of the Prime Minister. There are statutory restrictions on who the PM can recommend for appointment.
The Lord Chancellor is now responsible for the administration of the court system, and also holds the post of Secretary of State for Justice although this dual role has been subject to some criticism.
There are statutory safeguards to prevent excessive influence by the Lord Chancellor over judicial decision-making:
* The Lord Chancellor has a legal duty to uphold the independence of the judiciary (s 3(1) CRA 2005).
* The Lord Chancellor must not seek to influence particular judicial decisions through any special access to the judiciary (s 3(4) CRA).
The Lord Chief Justice
The Lord Chief Justice is appointed by a special panel convened by the Judicial Appointments Commission. Appointments are generally made from the ranks of current Court of Appeal judges.
The Lord Chief Justice is the Head of the Judiciary of England and Wales, and the President of the Courts of England and Wales.
The key responsibilities of this office are:
* Representing the views of the judiciary of England and Wales to Parliament and government.
* The welfare, training and guidance of the judiciary of England and Wales. (The provision of resources for the judiciary are allotted by the Lord Chancellor.)
* The deployment of judges and the allocation of work in courts in England and Wales.
‘Justiciability’
In the Public Law context, there are strong sensitivities over whether all government decisions are reviewable by the Administrative Court, or by a Tribunal with judicial review jurisdiction. This reflects the principle of the separation of powers.
There are some government acts (usually carried out under the exercise of prerogative power) which have long been seen as non-justiciable, meaning that the courts accept that they have no or very limited jurisdiction to decide whether the act is lawful. The reason for non-justiciability is that the question is a purely political one, and so not suitable for determination by judges.
However, all government powers are legally finite: one of the courts’ key roles is to determine where the boundaries of power lie.
The issue of justiciability was the first question for the Supreme Court in Cherry and Miller (No 2) [2019] UKSC 41. The Court rejected the government’s argument that the prorogation of Parliament was a purely political issue and therefore not justiciable.
What are ‘devolved matters’ and ‘reserved matters’?
Devolved matters are the areas of government where decision-making has been delegated by the UK Parliament to the relevant devolved administration.
For example, education is a devolved matter in Scotland, as is the environment. This means Scotland can make its own laws on those areas (amongst many others). However, all devolved laws are still subject to review by the Supreme Court, which also has the power to determine disputes over jurisdiction between the devolved administrations and Westminster.
Reserved matters are decisions still taken in Westminster, even though they have effect in Scotland, Wales and Northern Ireland. Immigration, defence and foreign policy are examples of reserved matters.
The responsibility for fiscal policy and public expenditure across the whole of the UK also belongs to HM Treasury, ie central government at Westminster, though the Scottish and Welsh governments have had a degree of control over raising revenue in recent years.
The Monarch’s current role
In the modern era, the monarch, though still the head of state, has very limited personal powers over the conduct of government.
However, a significant feature of the UK constitution is that the activities of government are still carried out in the name of the monarch. This is why the Executive (the government) is often still referred to as ‘the Crown‘. The UK’s Executive is formally referred to as ‘His Majesty’s Government‘.
Some of the monarch’s remaining personal powers, limited by constitutional convention, are:
* Appointing the Prime Minister
* Dissolving Parliament in some circumstances
* Giving ‘Royal Assent’ to Acts of Parliament
The law-making power of Parliament is described as being vested in the ‘King-in-Parliament’.
