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Public Law I > Week Three > Flashcards

Week Three Flashcards

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1
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.

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2
Q

What are some key constitutional principles?

A

The rule of law

The separation of powers

Parliamentary sovereignty

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3
Q

What is the Rule of Law?

A

That everyone including the government must abide by the Law

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4
Q

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

A

Bare Principle of Legality

The Formal Conception

The Substantive Conception

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5
Q

What is the Bare Principle of Legality?

A

A law is recognised if enacted following the prescribed legal procedure

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6
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

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7
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

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7
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.

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7
Q

What is Raz’s perspective on formal conception?

A

To ensure law guides action effectively

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7
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

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7
Q

What is a retroactive law?

A

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

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8
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.

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8
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

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8
Q

What is the substantive conception?

A

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

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9
Q

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

A

Freedom of expression

Equality

Fundamental rights

Moral integrity

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10
Q

What is a further definition of substantive conception?

A

The rule of law equates to the rule of good law

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11
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.

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12
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

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13
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.

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14
Q

How Parliamentary sovereignty affects the rule of law?

A

Parliament has the power to override rule of law requirements.

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

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15
Q

What is the separation of powers?

A

Involves three distinct branches with separate powers

Power is divided among branches to prevent concentration.

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16
Q

Why embrace the separation of powers?

A

Montesquieu (1748): Liberty is at risk if legislative, executive, and judicial powers unite.

James Madison (1788): Power concentration equals tyranny.

Lord Acton (1887): “Power tends to corrupt, and absolute power corrupts absolutely.”

Ensures a system of checks and balances.

17
Q

How does democracy complement the separation of powers?

A

Re-election as an incentive against abuse

Legislative function by elected representatives ensures accountability

18
Q

What are some key perspectives on separation of powers?

A

Lord Diplocks view is that the UK constitution was based on the separation of powers.

Bagehot’s view is that within the UK there is a close union and fusion of executive and legislative powers.

19
Q

What are the two types of separation of powers?

A

Pure Version

Partial Version

20
Q

What is the Pure version of separation of powers?

A

Advocation for clear boundaries between branches and that breaches are problematic

21
Q

What is the Partial version of the separation of powers?

A

Breaches aren’t inherently problematic; focus on preventing tyranny.

Emphasises checks and balances with mutual oversight

22
Q

Does the UK adhere to the Pure version of the separation of powers?

A

It does not but should guard against abuse of power.

23
Q

What is a negative about the pure version of the separation of powers?

A

It lacks checks and balances making it undesirable

24
Q

What are the three branches of state?

A

Executive Branch

Legislative Branch

Judicial Branch

25
Q

What is the executive branch responsible for?

A

Making and implementing public policy

26
Q

What are the various levels of the executive in the UK.

A

Central UK Government led by the Prime MInister

Devolved Governments in Scotland, wales and northern Ireland

Local Government

27
Q

What is the legislative branch responsible for?

A

It creates legislation and holds the executive accountable.

28
Q

What is the main body of the legislative branch?

A

The UK Parliament (Westminister) is the principal legislative body

29
Q

What are some other bodies of the UK legislative branch?

A

Scottish Parliament

Welsh Parliament (Senedd Cymru)

Northern Ireland Assembly

30
Q

What is the judicial branch?

A

A system of courts and tribunals that interpret the law and resolve legal disputes

31
Q

What are the three core constitutional institutions in the UK?

A

The UK Government (Most powerful government body)

The UK Parliament (Hold sovereignty)

UK Supreme Court (Highest court in the UK)

32
Q

How is the UK’s constitution multilayered?

A

The branches of the state are not confined to just the UK level. They exist both above and below the UK level.

33
Q

How do the branches of state exist above the UK level?

A

Through the Council of Europe and the European Union (no longer a member)

34
Q

What is the Council of Europe?

A

An international organisation focused on human rights

35
Q

How does the branches of state operate below the UK level?

A

Devolved governments and legislatures

Local government

36
Q

What is Parliamentary sovereignty?

A

That Parliament can make and unmake any law, and no other state body including courts can set these laws aside

37
Q

What is the manner and form theory?

A

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

38
Q

What are the three models of Parliamentary authority?

A

Model I: Full Sovereignty

Model II: Conditional Sovereignty

Model III: Limited Sovereignty

39
Q

What is full sovereignty?

A

That parliament is fully sovereign and cannot limit its ow power

Sovereignty is considered fixed or continuing

40
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

41
Q

What is limited sovereignty?

A

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

42
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.

43
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
44
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.

45
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.

46
Q

How long is a parliamentary session?

A

Roughly 1 year

47
Q
A

Public Law I (14 decks)

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