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Unit 1 > Chapter 2 > Flashcards

Chapter 2 Flashcards

1
Q

Name the three basic elements of constitution

A

legislature (Parliament), executive (Government) and judiciary (judges)

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2
Q

What is the theory of the separation of powers

A

This theory states that there is a threat to liberty if the three elements of constitution are not dealt with separately (but in the UK the Parliament (legislature) and Government (executive) overlap)

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3
Q

What does the Legislature (Parliament) do

A

Make the laws for the entire UK from Westminster but the relevant powers of each country of the UK other than England may also make their own laws as Westminster has devolved (delegated) power

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4
Q

Who makes up UK Parliament

A

House of Lords, House of Commons, Head of State (Queen)

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5
Q

Who makes up the House of Commons and how is this voted for

A

It is made up of 650 MPs voted for by the general public in the first past the post system, where a candidate receiving the most votes in their constituency becomes the MP for that area.

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6
Q

What is the key provision of Fixed Term Parliaments Act 2011, and the exception to it?

A

Every five years there should be a General Election, unless two thirds of MPs (434+) vote for an earlier one. (the HoL do not vote)

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7
Q

What 4 groups of members make up the 785 peers in the House of Lords

A

Life peers, hereditary peers, senior bishops and peers appointed by the House of Lords Appointment Commission. Membership will keep growing until reforms are agreed by the House of Commons. It is undemocratic and so not controlled by all members.

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8
Q

What is a life peer

A

Someone formally appointed for life by the Queen, on recommendation by the PM or a party leader

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9
Q

What is a hereditary peer

A

Someone who has inherited their status from their parent (usually father) e.g. Earl or Baron. 92

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10
Q

Explain the doctrine of parliamentary sovereignty

A

It is a principle which states no Parliament may pass a law which could restrict future Parliaments making a law

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11
Q

What does the executive (the government) do

A

Their role is to govern the country.

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12
Q

What is a coalition government

A

Formed when the largest party lacks a majority of over 326 seats in Parliament and so joins with another party to make up enough seats

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13
Q

What is a confidence and supply government

A

Can be formed when the largest party lacks a majority and another party agrees to support them with votes on major legislation and the Budget etc. to make up seats

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14
Q

Who are Secretaries of State and what three groups assist them

A

Secretaries of State are the most senior government ministers, assisted by Ministers of State, Parliamentary Secretaries and Whips (government business managers)

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15
Q

Who are the Cabinet

A

22 senior ministers who assist the PM to lead the government. They are members of the PM’s party and can be MPs or peers.

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16
Q

What do ministers do

A

Make decisions in their allocated department, with the help of civil servants (who are politically neutral). Ministers can make law in their department in the form of delegated legislation

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17
Q

What is a Bill

A

A draft law

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18
Q

What is an Act of Parliament

A

The most important type of law, also known as statues. They start as a Bill and become an Act once both Houses have approved and the Queen gives Royal Assent

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19
Q

What does the doctrine of collective ministerial responsibility require

A

If a minister does not support the government policy and vote in favour of bills, they should resign

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20
Q

What does the judiciary (judges) do

A

Judges apply law to decide the outcome of cases brought before them, and are independent of parliament and government

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21
Q

What is a Judgement

A

A statement of legal reasoning written by a Judge showing how they reached a decision on the outcome of a case

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22
Q

What is the doctrine of judicial precedent

A

The process of referring back to past judgements to help reach a decision in a later case

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23
Q

What is judicial review

A

The process of judges reviewing a decision made by a government minister to ensure they have acted within their legal powers

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24
Q

How do ideas for new Acts arise from manifestos and political developments

A

Due to the promises a successful party made in their manifesto, or there may be political pressure on government ministers and civil servants to pass new law if something has gone wrong

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25
Q

Who are the Law Commission for England and Wales

A

They are a politically independent group established under the Law Commission Act 1965 who review and reform law

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26
Q

Name the four ways in which the Law Commission review and reform law

A

Codification (putting law covering the same topic into one Act), removing anomalies, repealing obsolete and unnecessary law, and simplifying/modernising law

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27
Q

What are green papers

A

Draft legislation which the government has chosen to publish for feedback from the general public and relevant area experts

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28
Q

What three principles does the code of practice on consultation set out

A

There is no set period for consultation, responses from consultation must be discussed, and consultation should be completed through the internet

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29
Q

What are white papers

A

A published final version of a Bill, once consultation is complete

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30
Q

What is a Public Bill

A

One which affects the whole country. Called a Public General Act once becoming law

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31
Q

What is a Private Bill

A

One which only affects a limited area or group of people

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32
Q

What is a Hybrid Bill

A

A Bill which is a mixture of private and public, so it covers the whole country but particularly affects a certain group or area

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33
Q

What is a Government Bill

A

A Bill approved by Parliament and made by a government minister. It will be announced by the queen at the beginning of each parliamentary year

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34
Q

What is a Private Member’s Bill, and what is required before being able to make one?

A

One made by an MP who is not a gov minister. The MP can only make a Bill following a successful ballot and most Bills of this type are unsuccessful. They cannot relate to public expenditure

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35
Q

Who are Law Reform Bills often derived from

A

The Law Commission. They are politically uncontroversial.

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36
Q

What is a Consolidation Bill

A

One which will reorganise existing laws into one place, they are not controversial and welcomed by lawyers and judges as they make things easier

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37
Q

Describe the Drone (Regulation) (No2) Bill

A

Private Member’s Bill which imposes restrictions on drones, in particular near airports. It is also a Public Bill as affects whole country

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38
Q

Describe the Richard Burbage Pastures Bill

A

It is a Private Bill affecting only certain private land in N. Yorkshire, aiming to modernise an existing Act to remove restrictions on members of the committee. The Bill has now been withdrawn

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39
Q

Describe the High Speed Rail (West Midlands - Crewe) Bill

A

This is a Hybrid Bill as it will affect the whole country but in particular Birmingham as the Bill would enable the extension of HS2 into Birmingham

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40
Q

Describe English Votes for English Laws (EVEL)

A

It adds additional stages into the House of Commons procedure of passing a Bill, so that only English or only English and Welsh MPs may vote on a Bill which only affects England or England and Wales

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41
Q

What is a Speaker’s Certificate

A

Issued by the Speaker of the House of Commons to state that a Bill or part of it only covers Eng or Eng/Wa and so only those relevant MPs should vote on the same

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42
Q

Describe the ‘first reading’ stage of passing a draft Bill

A

stage a - Parliament are informed of the existence of a Bill by the House it was created in, and it is formally presented and available as a printed copy. (part of procedure for both Houses)

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43
Q

Describe the ‘second reading’ stage of passing a draft Bill

A

stage b - The minster/MP or HoL member in charge of the Bill explains the purpose and principle of it to the House, and it is debated and voted on. If approved, the Bill passes to the committee stage (part of procedure for both Houses)

44
Q

Describe the ‘committee stage’ of passing a draft Bill in each House

A

stage c - in House of Commons, the Public Bill Committee (made up of 16-50 MPs) examine each clause of a Bill and may amend or delete clauses. In House of Lords the clauses are examined by a committee of the whole House

45
Q

Describe the ‘report stage’ when passing a draft Bill

A

stage d - The draft Bill formally reported back to the House from the Committee stage. More discussion and amendments can be made. (part of procedure for both Houses)

46
Q

Describe the ‘Legislative Grand Committee stage’ of passing a draft Bill

A

stage e - This takes place only in the House of Commons procedure as it only happens when a Speaker’s Certificate has been issued after the first reading or the report stage. The draft Bill considered by Legislative Grand Committee and all MPs can debate but only relevant MPs may vote and propose amendments, and then the Legislative Grand Committee must consent.

47
Q

Describe the ‘reconsideration stage’ in the House of Commons procedure for passing a draft Bill

A

stage f - The reviewing and amending of a Bill if no consent is given by the Legislative Grand Committee. A Speaker’s Certificate can be made in relation to the amendments and the Bill then has to be re-voted on by the LGC

48
Q

Describe the ‘consequential consideration’ stage in the House of Commons for passing a draft Bill

A

stage g - Minor technical amendments to a Bill after LGC approval

49
Q

Describe the ‘third reading’ of a Bill

A

stage f (or stage e for House of Lords) - The final form of a draft Bill is reviewed by the whole House, and only minor amendments may be debated at this stage.

50
Q

What is ‘consideration of amendments’ in relation to draft Bills

A

After a draft Bill has passed through all stages of both Houses successfully, it is returned to the House it started in for the amendments to be discussed

51
Q

Describe ‘ping pong’ in relation to Bills

A

The process in which a Bill continually passes between both Houses until wording is agreed. Amendments made at this stage by the HoL may have a Speaker’s Certificate issued in respect of them and will require a double majority vote in favour before amendments are approved in the HoC

52
Q

What is a double majority vote when a Speaker’s certificate has been issued

A

A majority of all English or all English and Welsh MPs, as well as a majority of all MPs must vote in favour of the amendments made on a draft Bill by the HoL. If not achieved the draft Bill will be returned.

53
Q

What does The Parliament Act 1911 and The Parliament Act 1949 provide

A

That unelected and undemocratic HoL ability to block HoC approved Bills is limited. Finance and money related Bills may be passed a month after HoL fail to approve (s1) and any other non HoL approved Bill (excpt regarding length of Parliament) can be passed if HoC approve through two successive Parliamentary sessions and a year has passed since the second reading was first approved

54
Q

Explain the Hunting Act 2004 in relation to the Parliament Acts

A

It banned hunting with hounds and was approved by HoC in 2002/3 and 2003/4 but HoL did not approve so the Parliament Acts were used to make the Bill an Act of Parliament

55
Q
  1. What is the short title of an Act
A

The subject matter and year of Assent

56
Q
  1. What is the chapter number of an Act
A

Indicates numerical position that year (i.e. if it is the 16th Act passed that year it will be chapter 16)

57
Q
  1. Describe the contents of an Act
A

Shows what is included in each section. Some may have ‘parts’ or ‘chapters’ if they are longer. Schedules are listed at the end of the contents, covering amendments, revocations and appeals.

58
Q
  1. What is the long title of an Act
A

A full description of the purpose of the Statute

59
Q
  1. What is the date of Royal Assent of an Act
A

The exact date the Bill became an Act (when it was ‘passed’)

60
Q
  1. What are the words of enactment of an Act
A

Formal words giving the Act validity

61
Q
  1. What are the section numbers of an Act, and how would they be written in reference
A

All paragraphs of an Act are numbered with a section number, and written as s1, s2, s3 etc., sub sections then follow as (1) (2) etc and sub sub sections as (a) (b) etc. and the title of the Act follows the sections

62
Q
  1. What is commencement of an Act
A

Sets out the date an Act comes into force, which can be delayed from the date of Royal Assent

63
Q

How did the Constitutional Reform Act 2005 develop the law and reflect a major reform to the general ‘law of the land’

A

It provided that the Lord Chancellor could not be a Judge as well as a gov. minister, and as a result also enabled the UK to comply better with the doctrine of the separation of powers

64
Q

How did the Mental Capacity Act 2005 develop the law and reflect a major reform to a particular area of law

A

It reflected modern understanding of mental health and provided that decisions regarding people lacking mental capacity were improved, to replace old outdated legislation.

65
Q

How did the Marriage (Same Sex Couples) Act 2013

develop the law to reflect changing social attitudes

A

It permitted same sex marriage and reflected modern attitudes towards homosexuality

66
Q

How did the Partnership Act 1980 codify the common law

A

It put existing case law regarding partnerships into statutory form. Existing common law rules continue to apply unless it expressly changed them.

67
Q

How did the Equality Act 2010 consolidate existing law

A

It repealed and combined previous acts such as Sex Discrimination Act 1975 and Race Relations Act 1976 into one Act

68
Q

What are incremental changes to an Act and how are they ‘numbered’

A

The insertion of new sections into existing Acts, instead of repealing an entire Act. They are inserted after an existing paragraph and adding an A after the section number to save renumbering the entire Act

69
Q

What is the Queen’s Printer Copy

A

The original version of an Act uploaded onto legislation.gov.uk, which does not usually get updated to reflect amendments. These are found on lexislibrary and westlaw

70
Q

What does the Human Rights Act 1998 provide

A

UK courts can apply the legal rights of the European Convention on Human Rights (ECHR) to cases in the UK instead of taking them to the court in Strasbourg

71
Q

How is the European Convention on Human Rights set out

A

It is made up of five sections, numbered I, II, III, IV and V and they are made of paragraphs called Articles. Any amendments agreed since the UK signed in 1950 are called Protocols and also divided into Articles

72
Q

What is in Schedule 1 of the Human Rights Act 1998

A

All the Articles the UK has agreed to from the ECHR

73
Q

What are absolute rights under the HRA 1998

A

Rights which are always protected under the Act

74
Q

What are limited or qualified rights under the HRA 1998

A

Rights which must be balanced against ensuring national security and public order

75
Q

What does s2 of the HRA 1998 provide for in relation to decisions made by the European Court of Human Rights

A

Decisions made by the ECHR should be taken into account by UK courts, but they are persuasive and not binding

76
Q

What does s3 of the HRA 1998 provide in relation to interpretation of its legislation

A

That UK courts should interpret the legislation to be compatible with the rights accepted from the ECHR in Schedule 1

77
Q

Why would a declaration of incompatibility be made under s4 of the HRA 1998

A

If an Act cannot be interpreted to comply with the ECHR rights, the Act must be applied and so a declaration of incompatibility should be made

78
Q

What was the outcome of the case of A v Secretary of State for the Home Department [2005] regarding incompatibility

A

HoL found that the Anti-terrorism Crime and Security Act 2001 was incompatible with the ECHR rights of Sch 1 and so passed the Prevention of Terrorism Act 2005

79
Q

Under s6 of the HRA 1998, who is required to comply with the rights set out in sch1

A

Public Authorities

80
Q

If someone’s rights under the ECHR are breached, what can they do under s7 of the HRA 1998

A

They can bring proceedings against the public body in breach

81
Q

What is meant by delegated/secondary legislation

A

Allowing someone (usually a gov minister) to create legislation to fill in missing details from an Act. This power comes from Parliament approved sections in Acts (called parent Acts or enabling Acts).

82
Q

What are the four types of statutory instruments

A

Regulations, rules, orders and orders in council

83
Q

What is the type of statutory instrument known as a Regulation and who drafts them

A

It fills gaps of the parent Act and is more detailed than appropriate for an Act of Parliament. It is delegated to Secretary of State to draft

84
Q

The Regulation known as the Recall of MPs Act 2015 (Recall Petition) Regulations 2016 allowed for what to happen

A

Votes to force a by-election against an MP found guilty of a serious wrongdoing, provided over 10% signed a recall petition

85
Q

What is the type of statutory instrument known as Rules

A

They are typically drafted by judges and other court staff and set out procedures to be followed

86
Q

What did the Non-Contentious Probate Rules 1987 provide

A

It set out procedures to be followed by the Probate Registry when issuing a grant of probate or letters of administration

87
Q

What is the type of statutory instrument known as Orders, and what do the majority relate to

A

They have specialised functions such as bringing into force sections of Acts which had a later date of commencement. Many stat instruments of this type relate to temporary road closures

88
Q

What does the Criminal Justice Act 2003 (Commencement No. 23) Order 2014 SI 2014/633 provide

A

It enforced two sections of the Criminal Justice Act of 2003 as they had not yet been enforced (in 2014)

89
Q

What is the type of statutory instrument known as Orders in Council

A

These are orders passed without Parliament involvement by the Monarch and Privy Council (group of senior ministers)

90
Q

What did Emergency Powers (Overseas Territories) Order 2017 SI 2017/181 provide

A

Allowed a state of emergency to be declared in overseas UK territories by their governors

91
Q

What are Bye-Laws and who confirms them

A

They were created to try and regulate local activities made by local authorities or other organisations and are confirmed by government ministers

92
Q

What Bye-Laws did North Herts District Council set out

A

Rules and regulations regarding hygiene and cleanliness in relation to businesses providing services of acupuncture, tattooing, semi permanent skin colouring, cosmetic piercing and electrolysis

93
Q

What is meant by the ‘publication’ of delegated legislation and what happens if this doesn’t happen

A

They must be printed and put on sale as soon as possible once they are made under the Statutory Instruments Act 1946 (s2). If they are not and a defendant is charged under it, they may use this fact in their defence, provided for under s3(2) of the SIA Act

94
Q

What is meant by ‘laying before Parliament’

A

Parent Acts sometimes require a proposed statutory instrument to be put (or ‘laid’) before Parliament for their scrutiny

95
Q

What is affirmative procedure for statutory instruments

A

It requires both Houses to vote in favour of it when it has been laid before Parliament (called passing resolution). If there is a vote against the instrument, it will fail

96
Q

What is negative procedure for statutory instruments

A

If this applies by the Parent Act, and the Houses do not pass resolution (vote in favour of) a stat inst after a set period of time, it automatically becomes law

97
Q

Who are the joint committee on statutory instruments

A

They are made up of members of both Houses who focus on examining drafting defects

98
Q

What does the HoL secondary legislation scrutiny committee consider

A

They consider the merits (policy implications) of a stat inst and may draw some to the special attention of Parliament

99
Q

Why would someone seek judicial review

A

If they feel secondary legislation has been created by a minister not acting within their powers under the Parent Act.

100
Q

What is substantive ultra vires

A

When the content of legislation falls outside of permitted scope by the Parent Act

101
Q

What is procedural ultra vires

A

When the minister has passed delegated legislation without following procedures requested by the Parent Act

102
Q

How does the case of Agricultural Training Board v Aylesbury Mushrooms Ltd [1972] relate to procedural ultra vires

A

The Parent Act provided that the minister had to consult all members of the National Farmers Union to pass an order creating an industrial training board, but the minister failed to consult the Mushroom Growers Association and so the order therefore did not apply to them and only to the members who had been consulted.

103
Q

Explain the European Convention of Human Rights

A

It provides that secondary legislation which is incompatible with ECHR is quashed by the Courts and will not be valid law. A declaration of incompatibility is made in this case similarly to primary legislation

104
Q

Give 4 advantages of delegated legislation

A

Technical and detailed and shows expertise / can be made quickly in emergencies, /saves parliamentary time / flexible

105
Q

Give 3 disadvantages of delegated legislation

A

Volume (many are made a year although most are temporary re road closures) / can be poorly drafted / obscure language can require two documents to be read together

106
Q

What is the largest criticism of delegated legislation and why

A

The lack of domestic control, as they do not pass through the full Parliamentary process. In addition, Legislative and Parliamentary Act 2006 gives ministers powers to change Acts and delegated legislation as they wish so this strengthens this criticism

Unit 1 (7 decks)

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