UNIT 3 - Intro to the UK Constitution Flashcards
what are the 3 aspect of public law ?
Constitutional law, Administrative law and Civil Liberties
What are the different ways you can classify a constitution ?
Written vs Unwritten
Rigid Vs Flexible
Formal Vs Informal separation of powers
What are the 3 core principles of our constitution ?
- The rule of law
- Separation of powers
- The sovereignty of parliament
What are the Rules of Law ?
a. Should be no arbitrary exercise of power by the state or government – all actions of the state or government must be permitted by the law.
b. Laws should be made properly, following a set procedure.
c. Laws should be clear – laws should be set out clearly and accessible, a citizen should be punished only for a clearly defined breach.
d. Laws should be certain – should not operate retrospectively and a citizen should not be punished for an act that was not a crime at the time they carried out that act.
e. Equality before the law – Citizens should have equal access to the legal process for the redress of grievances, should treat all persons in the same way, e.g. should not provide special exemptions or ‘get-outs’ for government officials.
f. Judiciary should be independent and impartial – the courts should be sufficiently independent from the legislature and the executive so that judges can uphold the law without fear of repercussions from the other branches of state.
List some acts of Parliament that help form the constitution.
Magna Carta 1215: Symbolic value as the first assertion of the limits on the powers of the Monarch and of the rights of individuals - extracted from King John by his feudal lords and guaranteed certain rights to ‘freemen of the realm’, including trial by jury. - embodies principle that government must be conducted according to the law and with the consent of the governed - principle that no one is above the law and compelled King John to renounce certain rights, respect specified legal procedures and accept that his will could be bound by the law - It also introduced the right to protection from unlawful imprisonment
Bill of Rights 1689: Imposed limitations on the powers of the Crown in its relationship with Parliament. - Removed the power of the Monarch arbitrarily to suspend Acts of Parliament and impose taxation without Parliament’s consent. - Also provided that Parliament should meet on a regular basis, elections should be free from interference by the Monarch, and ‘freedom of speech and debates in proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’
Acts of Union 1706–07: United England and Scotland under a single Parliament of Great Britain - They also contained provisions to preserve the separate Scottish church and legal system
Parliament Acts 1911 and 1949: Altered relationship between the HoL and the HoC - Ensured that the will of the elected HoC would prevail over that of the unelected HoL enabling legislation to be enacted without the consent of the HoL
Police and Criminal Evidence Act 1984: Relevant to civil liberties. - provides the police with extensive powers of arrest, search and detention, but also contains important procedural safeguards to ensure that the police do not abuse such powers.
Public Order Act 1986: Also relevant to civil liberties, allows limitations on the rights of citizens to hold marches and meetings in public places.
Human Rights Act 1998
Acts of devolution (eg Scotland Act 1998): Created a devolved system of government. - Acts establishing the Scottish Parliament, the Senedd Cymru or Welsh Parliament and Northern Ireland Assembly have decentralised the process of government and given greater autonomy to these parts of the UK
Constitutional Reform Act 2005
European Union (Withdrawal) Act 2018 and European Union (Withdrawal Agreement) Act 2020: Provided for the UK’s departure from the EU. - 2018 repealed the European Communities Act 1972, which had paved the way for the UK’s membership, also ended the supremacy of EU law and introduced the concept of retained EU law.
- Although the above Acts are of great constitutional importance, each was enacted by Parliament in the same way as any other Act of Parliament. No special procedure or majority was required
- Acts are not ‘entrenched’ each may be repealed by an ordinary Act of Parliament, just as with any other. No special procedure is required BUT some recent Acts of Parliament, such as the Scotland Act 2016, contain provisions stating that Parliament will not legislate to achieve certain aims without first holding a referendum on the relevant issue.
List some elements of the constitution that Case Law helps to develop.
- Residual Freedom
- Actions of the state must have legal authority
a. Significant case Entick V. Carrington 1765 Sec of State issued a general warrant for the arrest and search of Entick, for allegedly publishing ‘seditious material’ - Court found there was no legal authority that enabled. The Sec of State to issue such general warrants, so the search was unlawful.
i. Established the principle that state officials could not act in an arbitrary manner and that the exercise of power by the state had to have clear legal authority - and law did not provide state officials with any form of exception or get out from legal accountability for their actions. - Legal disputes should be resolved by the judiciary
a. Case of Prohibitions (Prohibitions del Roy) (1607) 12 Co Rep 63 - concerned a dispute over land, King sought to settle by making a ruling - court held that the Monarch had no power to decide legal matters by way of arbitrary rulings, and that legal disputes should properly be resolved by the courts. - Habeas Corpus
- Right to a fair hearing
- The right to a fair trial is also contained in Article 6 of ECHR
- Parliamentary Supremacy
b. In the cases of Edinburgh & Dalkeith Railway Co v Wauchope (1842) and Pickin v British Railways Board [1974] - Courts developed and then applied the common law ‘Enrolled Act’ rule which is at the centre of parliamentary sovereignty. The rule states that once an Act of Parliament has been entered onto the parliamentary roll, the courts will not question the validity of that Act or hold the Act to be void.
List some of the royal prerogative powers (foreign and domestic)
Foreign affairs
- Declarations of war and the deployment
- declarations of war and the deployment of armed forces overseas;
- making treaties; and
- the recognition of foreign states.
Domestic affairs
1. the summoning of Parliament;
2. the appointment and dismissal of the Prime Minister (and other government ministers);
3. the giving of Royal Assent to bills;
4. the dissolution of Parliament;
5. defence of the realm (ie the deployment of armed forces within the UK);
6. the exercise of the prerogatives of pardon and mercy;
7. granting public honours; and
8. the setting up of public bodies to disburse funds made available by Parliament.
List some important constitutional conventions
- The Monarch plays no active role in matters of government, and the legal powers that are vested in the Monarch are exercised on their behalf by the elected government of the day. For example, the Monarch will appoint and dismiss government ministers on the advice of the Prime Minister.
2. The Monarch, acting on the advice of the Prime Minister, will not refuse Royal Assent to a bill that has been passed by the House of Commons and the House of Lords. last time a Monarch refused Royal Assent was in 1707.)
3. The Monarch will appoint as Prime Minister the person who is best able to command the confidence of the House of Commons.
4. Following the repeal of the Fixed-term Parliaments Act 2011 and the revival of the prerogative power by the Dissolution and Calling of Parliament Act 2022, the Monarch legally can dissolve Parliament at will, but will normally do so on the advice of the Prime Minister.
5. All government ministers will be members either of the House of Commons or of the House of Lords, and the Prime Minister (and most other senior government ministers) should be a member of the democratically elected House of Commons rather than the unelected House of Lords. It is now rare for a peer (other than the Leader of the House of Lords) to sit in the cabinet.
6. Individual ministerial responsibility. Government ministers are responsible to Parliament both for the running and proper administration of their respective departments, and also for their personal conduct. Must be no conflict of interest between a minister’s public duties and their private interests - minister who breaches this convention should resign. For example, in 1982 the Foreign Secretary, Lord Carrington, resigned following criticism of the administrative failings of his department, which had failed to foresee the Argentine invasion of the Falkland Islands.
§ Ministerial resignations owing to departmental failings are, however, comparatively rare. resignations relating to a minister’s personal conduct are more frequent. For example, in November 2017 Priti Patel resigned as International Development Secretary after conducting unauthorised meetings with Israeli officials, and in June 2021 Matt Hancock
7. Collective cabinet (or ministerial) responsibility - several aspects:
A. Cabinet is collectively responsible to Parliament for the actions of the Government as a whole, and the Government must retain the confidence of the House of Commons. A government that is defeated on a vote of ‘confidence’ in the House of Commons must resign.
B. Cabinet must be united in public in support of government policy, and so a cabinet minister must resign if they wish to speak out in public against such policy, as did Robin Cook in 2003, when he wished to voice his opposition to the war in Iraq, and Boris Johnson in July 2018 over Theresa May’s Brexit policies.
C. Cabinet discussions must remain secret.
8. Unelected House of Lords will not reject legislation that gives effect to an important manifesto commitment of the democratically elected Government (the ‘Salisbury Convention’ ).
9. The UK Parliament will normally only legislate on a matter that has been devolved to the Scottish Parliament, Senedd Cymru or Northern Ireland Assembly if the relevant legislature has given its consent (the ‘Sewel Convention’)
A. As regards the Scottish Parliament and the Senedd Cymru, this convention has been placed onto a statutory footing. The Scotland Act 2016 added into s 28 of the Scotland Act 1998 a provision stating that it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.
B. The Wales Act 2017 added an equivalent provision into s 107 of the Government of Wales of Act 2006 as regards the Senedd Cymru.
10. Members of the judiciary do not play an active part in political life.
11. Ministers and Members of Parliament do not criticise in public individual members of the judiciary.
What are some reasons for the development of the constitutional conventions ?
○ To limit the wide legal powers of the monarch without the need for major constitutional change
○ To enable the const and gov to operate effectively and flexibly e.g. a deadlock if monarch appointed diff PM
○ To ensure the gov is accountable to parliament for its actions
○ To maintain separation of powers between branches of state
Arguments for and against a written constitution
Written
- Clarification
- Unity under one set of ideals
- Accessibility
- Human rights guaranteed
- Formal separation of powers – final division
-
Unwritten
- Difficult to get consent for this – unfeasible
- Politicisation of the judiciary – e.g sup court
- Difficult with amendments – roe vs wade – 2nd amendment
- Removes nuance
- Doesn’t reflect the times and changes in society in real time
