Constitution and Parliamentary Sovereignty

Question 1

What is the Bill of Rights 1689?

Answer 1

imposed limitations on power of the crown.

Removed the power for monarch to impose new taxation and suspend acts of parliament.

Question 2

What is the HRA 1998?

Answer 2

Incorporates the ECHR into UK domestic law.

Breaches of these rights can therefore be brought before domestic courts.

Question 3

What is the principle of residual freedom?

Answer 3

Citizens are free to do or say whatever they wish unless the law clearly states such an action or statement is prohibited.

Question 4

What is the doctrine of Habeas Corpus?

Answer 4

Remedy of habeas corpus means that an individual detained by the state has the right to have the legality o the detention tested before a court.

Developed originally before common law but now incorporated into statute

Question 5

What is article 6 ECHR?

Answer 5

The right to a fair hearing (now forming part of UK law as part of the HRA 1998).

Question 6

List some examples of the royal prerogative powers exercised by the government in relation to foreign affairs.

Answer 6

Power to declare war and deploy armed forces;

Making treaties;

Recognition of foreign states;

Question 7

List some examples of the royal prerogative powers exercised by the government in relation to domestic affairs.

Answer 7

Summoning of parliament;

Giving royal assent to bills;

Defence of the realm (ie deployment of armies forces in the UK);

Granting public honours;

Appointment and dismissal of the PM;

Question 8

Who is legally responsible for the prerogative powers?

Answer 8

The monarch (however they are exercised by the PM).

Question 9

What was the Crown Proceedings Act 1947?

Answer 9

Abolished the immunity that the crown perviously had in respect of claims against it (both in tort and contract).

Question 10

What is the Salisbury convention?

Answer 10

the HOL will not reject any legislation passed by the commons which was contained in the elected governing party’s manifesto.

Question 11

What is the Sewel convention?

Answer 11

UK parliament will usually only legislate on a matter that has been devolved to the Scottish parliament if the Scottish parliament has given their consent.

Question 12

Did the sewel convention (transposed into UK law by the Scotland act) make it law that the UK parliament could not legislate over Scotland without the approval of the Scottish parliament?

Answer 12

No.

This is still a convention and therefore not capable of being enforced in the courts.

Question 13

Can conventions be enforced in the courts?

Answer 13

Not in the strict sense.

Courts may indirectly give rise to legal consequences, however if parliament passes legislation which breaches a convention, it may be unconstitutional, but the courts will not refuse to apply it for that reason.

Question 14

What are the two types of public bills?

Answer 14

Government bills; and

Private Members bills.

Question 15

What is a public bill?

Answer 15

A bill which alters the general law concerning the public ar large.

Question 16

What is a private bill?

Answer 16

Relate to matters of individual, corporate or local interest and affect particular persons/ a particular locality.

Question 17

What is the affirmative resolution procedure?

Answer 17

An instrument either cannot come into effect or ceases rot have effect, unless one or both houses passes resolution approving the instrument.

Question 18

what is the negative resolution procedure?

Answer 18

The procedure where gov are required to annul the instrument if either house passes a resolution rejecting the instrument within a specified period (usually 40 days) after it has been laid before parliament.

Question 19

What is delegated legislation?

Answer 19

Every exercise of power to legislate that is conferred by or under an. act of parliament.

It may be made by ministers in the form of rules or regulations (often statuary instruments), which supplement the provisions of an act of parliament.

neither house of parliament can amend delegated legislation, but can use procedures to repeal or effect it.

Question 20

What is article 9 of the Bill of rights 1689?

Answer 20

Protects the freedom of speech in parliament that it ought not to be impeached or questioned in any court or place outside of parliament.

This means anything said in parliament cannot be subject of liable or defamation proceedings.

Question 21

What is the enrolled act rule?

Answer 21

Once an act of parliament has been entered onto the parliamentary roll, the courts will not questions the validity of the act or hold the act to be void.

Question 22

Can statute operate retrospectively?

Answer 22

Yes.

This means a court can make a decision and statue can be passed afterwards to nullify the effect of that decision.

Question 23

What is the manner and form theory?

Answer 23

The theory that it should be permitted for parliament to make it compolusry for a higher threshold to have to vote to repeal or enact something (eg a two third majority).

This conflicts with the idea that parliament cannot bind a successor and there is great debate about this.

Question 23

What happens where there are two conflicting acts of parliament?

Answer 23

The latter is binding as one parliament cannot bind another.

Question 24

Can a bill be introduced by the government which violates convention rights?

Answer 24

Yes, subject to the minister reosbile for introducing the bill making a statement on the proposed legislation’s compatibility with convention rights.

Question 24

Can constitutional statutes be repealed impliedly?

Answer 24

No.

They must be expressly repealed with wording to this effect in the new statute.

Question 25

What was the effect of s2(4) ECA 1972?

Answer 25

The rule of construction whereby UK courts had to read UK legislation in such a way as to make it compliant with EU law.

If this was not possible, courts had to give precedence to directly effective EU law and set aside any inconsistent national legislation.

Question 26

What was the effect of the European Union Withdrawal Act 2018?

Answer 26

All Eu law in force at the end of the transition period was converted into domestic law and labelled retained EU law.

Question 27

Explain the effect of s5(2) of the EUWA 2018.

Answer 27

If there is a conflict between pre-brexit domestic law, and pre-brexit directly effective Eu law, then the EU law will take priority.

Question 28

What is article 2 ECHR?

Answer 28

Right to Life.

Question 29

What is article 3 ECHR?

Answer 29

Right not to be tortures.

Question 30

What is article 6 ECHR?

Answer 30

Right to a fair trial.

Question 31

What is article 8 ECHR?

Answer 31

Right to a private and family life.

Question 32

What are articles 9-11 ECHR?

Answer 32

Right to freedom of religion, expression and association.

Question 33

What is s2 of the HRA 1998?

Answer 33

Domestic courts must take into account the judgments of the ECHR.

They are NOT bound to follow judgments, but usually always do.

It is long established they will only depart from such judgment in special circumstances.

Question 34

What is s3 of the HRA 1998?

Answer 34

Primary and secondary legislation must be interpreted in accordance with the convention rights so far as possible to do so.

Question 35

What is s4 of the HRA 1998?

Answer 35

Where court cannot interpret legislation in a manner that makes the legislation complaint with convention rights, courts may make declaration of incompatibility.

This does not invalidate or affect the operation of the offending act.

Question 36

What is s10 of the HRA 1998?

Answer 36

Where declaration of incompatibility has been made under s4, or ECtHR makes it clear legislation is incompatible with convention rights, this creates fast track for gov to amend relevant legislation.

Government however is not obliged to amend the offending legislation.

Question 37

What is s19 of the HRA 1998?

Answer 37

Minister introducing government bill into parliament must, prior to second reading, either make a statement that provisions in the bill are compatible with convention rights, or alternatively make a statement that they are unable to make a statement of compatibility.

Where it’s not compatible, they must confirm government is willing to proceed none the less.

Question 38

Can a royal prerogative power be used where it conflicts with statute?

Answer 38

No.

This would be an abuse of the power.