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LW1120: Constitutional and Administrative Law > The UK Constitution > Flashcards

The UK Constitution Flashcards

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1
Q

Define ‘constitutional law’

A

The area of law concerned with the role and powers of the institutions within the State and the relationship between the citizen and the State

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2
Q

What is the difference between public and private law?

A

Public law = relations between individuals and the state

Private law = relations between individuals and institutions

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3
Q

What does a constitution reveal?

A

– Who governs and how
– State’s institutions and their roles/powers
– Requirements for holding office
– Rights and duties of citizens

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4
Q

What does a constitution seek to eliminate?

A 
– Abuses of power
– Human rights violations
– Corruption
– Misgovernance
– Confusion
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5
Q

Define ‘constitution’

A

A document with special legal status which sets out the framework for government within a country and declares the principles by which the branches of government must operate

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6
Q

Define ‘UK constitution’

A

The whole system of government, all the laws and practices which regulate the government of the UK

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7
Q

Define a flexible constitution; give an example

A

One under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body
e.g. UK, New Zealand, Israel

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8
Q

Define a rigid constitution; give an example

A

One under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws
e.g. USA, India, Nigeria

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9
Q

Which is more common: a rigid or flexible constitution

A

Rigid

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10
Q

Who is sometimes called the “Father of the British Constitution”?

A

A V Dicey

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11
Q

How many counties don’t have a codified constitution? Name them

A

Five: UK, Canada, Israel, Saudi Arabia, New Zealand

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12
Q

What are the main features of a codified constitution?

A

– It is written (codified) in a single document
– The constitution’s authority is derived from the ‘will of the people’
– Constitutional law is ‘supreme’ law
– The constitution’s provisions are normally entrenched (protected) against repeal
– A special procedure is usually required to amend a codified constitution
– A constitution usually contains a bill of rights
– It defines role of key office holders in the state
– It lists the powers of the state and the duties of citizens
– It reveals the balance of power within a state
– It provides for checks and balances on power

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13
Q

When was the US Constitution created?

A

(17 September) 1787

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14
Q

What is a federal state?

A

One where the national government and local states/provinces each have their own powers

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15
Q

What is a unitary state?

A

One where power is concentrated in a single source

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16
Q

What do the first three Articles of the US Constitution do?

A

Article 1: Gives Congress legislative power
Article 2: Gives the President executive power
Article 3: Gives the Judiciary judicial power

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17
Q

What happens if a law is in conflict with the US Constitution? Why?

A

The law will be invalid because the Constitution is supreme over all other law

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18
Q

What is the procedure for amendment of the US Constitution?

A

Amendment can be proposed by either:
(a) Congress with a two-thirds majority vote in the House of Representatives and Senate
(b) Two-thirds of the state legislatures
The proposed amendment then becomes part of the Constitution once ratified by three-quarters of state legislatures

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19
Q

What was important about the decision of the US Supreme Court in Marbury v Madison (1803)?

A

The Supreme Court held that it may declare an Act of Congress void if it is inconsistent with the Constitution

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20
Q

What is the significance of the US case Roe v Wade (1973)?

A

It prohibited many state and federal restrictions on abortion in the US

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21
Q

What is the significance of the US Supreme Court decision in Brown v Board of Education of Topeka (1954)?

A

The US Supreme Court held that racial segregation of children in schools was unconstitutional because it contravened the ‘equal protection’ clause of the 14th Amendment

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22
Q

What is significant about the decision of the US Supreme Court in Obergefell v Hodges (2015)?

A

The US Supreme Court held that the prohibition of same-sex marriage was unconstitutional

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23
Q

Which countries make up the UK?

A

Great Britain (England, Scotland, Wales) and Northern Ireland

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24
Q

Which countries make up Great Britain?

A

England, Scotland, Wales

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25
Q

Which countries make up the British Isles?

A

UK (England, Scotland, Wales, NI) and the Republic of Ireland

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26
Q

Does the UK have a constitution?

A

Yes

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27
Q

What is a definition of a constitution that would include the UK?

A

The assemblage of laws, institutions and customs that compose the general system, according to which the community has agreed to be governed

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28
Q

What are some constitutional rules that make the argument for the UK having a constitution?

A

– The method of choosing the Sovereign and the PM
– The composition, powers and privileges of the legislature and the relationship between the two chambers (HC and HL)
– The status of Government Ministers and the position of their civil servants
– The control of the armed forces
– Treaty-making powers
– The power to raise and spend public money
– The appointment and tenure of judges
– The liberties of the individual, including the right to vote in election (the franchise)

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29
Q

What are some legal sources of the UK constitution?

A

– Legislation
– Judicial precedent
– The EU
– The ECHR (although most of it is now incorporated into the HRA 1998)

30
Q

What are some non-legal sources of the UK constitution?

A

– Advisory sources

– Constitutional conventions

31
Q

What are the most important statues from a constitutional perspective?

A 
– Magna Carta (1215)
– Bill of Rights 1689
– Act of Settlement 1701
– Union with Scotland Act 1707
– Parliament Acts 1911 and 1949
– European Communities Act 1972
– EU (Withdrawal) Act 2018
– Human Rights Act 1998
– Scotland Act 1998 / Government of Wales Act 1998 / Northern Ireland Act 1998
32
Q

List four sources of UK law

A

Statues, common law, EU law, ECHR

33
Q

What did the Magna Carta (1215) establish?

A

The principle that everyone is subject to the law, even the monarch (the ‘rule of law’). It guaranteed everyone’s right to justice and a fair trial

34
Q

What the the Bill of Rights 1689 do?

A

Placed limits on the powers of the monarch and set out the rights of Parliament (e.g. requirement for regular Parliaments, free elections, and freedom of speech in Parliament)

35
Q

What did the Act of Settlement 1703 do?

A

Settled the issue of succession to the crown, excluding Catholics from it

36
Q

What did the Succession to the Crown Act 2013 do?

A

Removed the disqualification of people who marry a Catholic from the line of succession; however, the monarch must still be a member of the Church of England
Removed the principle of male priority (under Royal Marriages Act 1772)

37
Q

What did the Union with Scotland Act 1707 do?

A

Formed the United Kingdom of Great Britain

38
Q

What was significant about the Parliament Acts 1911 and 1949?

A

They established the primacy of HC over HL

39
Q

What did the European Communities Act 1972 do?

A

Incorporated EC law into UK law

40
Q

What did the EU (Withdrawal) Act 2018 do?

A

Repealed the ECA 1972

41
Q

What was the main purpose of the Human Rights Act 1998?

A

To incorporate the ECHR into UK law

42
Q

What was the purpose of the Scotland Act 1998, the Government of Wales Act 1998, and the Northern Ireland Act 1998?

A

To devolve power to regional assemblies/parliaments

43
Q

Name some cases which have affected the development of the British Constitution

A

– Case of Proclamations (1611)
– Attorney-General v Wiltshire United Dairies (1921)
– R v Secretary of State for Transport ex p Factortame Ltd (No 2) (1991)
– Jackson and others (appellants) v Her Majesty’s Attorney-General (Respondent) (2005)

44
Q

What was significant about the Case of Proclamations (1611)?

A

It defined some limitations on the Royal Prerogative – the monarch can only make laws through Parliament

45
Q

What was the significance of Attorney-General v Wiltshire United Dairies (1921)?

A

“No money shall be levied for…the use of the Crown except by grant of Parliament”

46
Q

What was the significance of R v Secretary of State for Transport ex p Factortame Ltd (No 2) (1991)?

A

Confirmed the supremacy of EU law over inconsistent EU law

This will be reversed by the EU (Withdrawal) Act 2018

47
Q

What was the significance of Jackson and others (appellants) v Her Majesty’s Attorney-General (Respondent) (2005)?

A

It reaffirmed the principle of supremacy of Parliament

It was an unsuccessful challenge to the Parliaments Act which had been used to enact the Hunting Act 2004

48
Q

How did EU law become a source of British constitutional law?

A

By the enactment by Parliament of the European Communities Act 1972

49
Q

Name three authoritative academic authors who influenced the British Constitution

A

A V Dicey, Jennings, W Bagehot

50
Q

What are the two main principles of Dicey’s Theory of Constitutional Law?

A

Parliamentary sovereignty and the rule of law

51
Q

What is Dicey’s famous quote regarding parliamentary sovereignty?

A

“[Parliament] has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a rights to override or set aside the legislation of Parliament”

52
Q

What phrase encapsulated Dicey’s ideas on the rule of law?

A

“No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land”

53
Q

What are some arguments for codification of the British Constitution?

A

– Entrenches fundamental rights
– Makes it easier to understand the law
– Offers clarity and certainty
– Attract reverence and public loyalty
– Be superior to other laws so could provide checks on government
– Offers guidelines for balances central and local powers (e.g. devolution)

54
Q

What are some arguments against codification of the British Constitution?

A

– Restricts natural evolution fo the law
– Less-flexible laws (harder to change)
– Changes the notion of parliamentary sovereignty
– Which rights would it protect? Who would draft it? How? Where?
– Who would interpret it? Do we trust UK judges?
– Constitutional flexibility would be lost (conventions have enabled the Constitution to evolve)
– Financial cost of reform; could better use be made of public money?

55
Q

Name four constitutional conventions

A

– There must be a Prime Minister
– There must be Royal Assent for a Bill to become law
– After losing an election, the Prime Minister must resign
– The Prime Minister is always a member of HC

56
Q

What are constitutional conventions?

A

“Certain rules of constitutional behaviour which are considered to be bringing by and upon those who operate the Constitution, but which are not enforced by the law courts, nor by the presiding officers in the Houses of Parliament”

57
Q

What are the purposes of constitutional conventions?

A

– They present the Constitution becoming outdated; they enable the Constitution to change and evolve over time
– They provide a control mechanism over those in power, e.g. conventions observed by PM, sovereign, MPs, judges, civil servants, etc.

58
Q

What are the four types of constitutional conventions?

A

(1) Conventions relating to the exercise of the Royal Prerogative
(2) Conventions relating to the operation of the cabinet system
(3) Conventions regulating relations between HC and HL and proceedings in Parliament
(4) Conventions regulating the relations between the UK and other members of the Commonwealth

59
Q

How many members of the Commonwealth are there?

A

53

60
Q

Give examples of conventions relating to the exercise of the Royal Prerogative

A

The sovereign should:
– Grant dissolution of Parliament at the request of PM
– Invite leader of the party who has the confidence of HC to form government after an election
– Not refuse the Royal Assent to Bills passed in HC and HL

61
Q

Give examples of conventions relating to the operation of the cabinet system

A

– Collective ministerial responsibility

– Individual ministerial responsibility

62
Q

What is the Cabinet?

A

The (approx. 20) Ministers that run the country

63
Q

Give examples of conventions regulating relations between HC and HL and proceedings in Parliament

A

– Parliament must meet at least once a year
– In cases of conflict, HL must give way to HC
– Bills relating to public finance must be introduced by a Minister in HC
– Government must command majority in HC

64
Q

Give examples of conventions regulating the relations between the UK and other members of the Commonwealth

A

– UK Parliament may not legislate for a former colony which is now an independent state and a member of the Commonwealth
– The Sovereign, in appointing a Government–General (Queen’s representative) of an independent Commonwealth State, acts on advice of the leader of that State
– Any change to UK succession requires assent of Commonwealth and UK Parliaments

65
Q

Explain the convention of collective ministerial responsibility

A

– The Government should keep inter-Cabinet disputes private and should speak with one voice in public
– If a Minister disagrees with policy, convention dictates that they resign

66
Q

Explain the convention of individual ministerial responsibility

A

– A Minister should be responsible for what happens in their department
– Ministers take credit and blame

67
Q

What are the four typical reasons for the resignation of Ministers from political office?

A

(1) Departmental incompetence
(2) Sexual impropriety
(3) Questionable financial dealings
(4) Errors of judgement

68
Q

What are the six common characteristics of conventions?

A

(1) Not formulated in writing
(2) Development is an evolutionary process
(3) They regulate the conduct of those holding public office
(4) Sanctions for a breach of convention are political rather than legal
(5) Conventions are capable of being enacted into statute (e.g. the Parliament Acts to regulate the HL and make it inferior to HC)
(6) They are not exclusive to states with unwritten constitutions (e.g. US)

69
Q

What happens in the case of conflict between law and convention? Give an example

A

The courts must enforce the law
e.g. R (on the application of Miller) v Secretary of State for Exiting the European Union (2017): Could the Sewel Convention mean the UK government required the approval of Scotland/NI/Wales to invoke Article 50? No.

70
Q

What are some arguments for the codification of conventions?

A

– Greater transparency of government
– Codified conventions could be enforced by the courts, so less likely to be disobeyed
– Freedoms of individuals might be better protected
– More checks on governments

71
Q

What are some arguments against the codification of conventions?

A

– Change to current system would threaten flexibility of Constitution
– Which practices are classed as conventions?
– Danger of judges becoming politically tarnished by having to enforce conventions
– Codification may not even be possible in practice, for over time, new conventions would appear

LW1120: Constitutional and Administrative Law (8 decks)

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