Const Admin Flashcards
1
Q
What type of constitution does the UK have?
A
Uncodified constitution
2
Q
What does the UK constitution outline?
A
Powers of branches of government and relationship between state, institutions and citizens
3
Q
What does the UK constitution contain?
A
Acts of parliament, common law and conventions
4
Q
What is the rule of law?
A
- Law applied fairly
- Government acts in accordance with law
- Law no retroactive effect
5
Q
What is the highest source of law?
A
Acts of parliament - parliamentary sovereignty
6
Q
What power do UK courts have regarding acts of parliament?
A
No power to strike down but can interpret laws
7
Q
What happens if parliament does not agree with court’s interpretation?
A
Can pass law to make the law clearer
8
Q
What is the royal prerogative?
A
Collection of powers under the common law belonging to the crown
9
Q
What is the RAM doctrine?
A
Government shall have the power to carry on ordinary business even if power is not explicitly set out by statute or the royal prerogative
10
Q
What are some constitutional conventions?
A
- Monarch always gives royal assent to bill passed by parliament
- Monarch always acts on advice of prime minister
- Government ministers can be appointed only from members of parliament
- Government ministers must take responsibility for policy failures
11
Q
What is devolution?
A
UK includes 4 nations and parliament may legislate for all - but Northern Ireland, Scotland and Wales has power to have legislatures and governments to develop their own laws
12
Q
How is leadership of the executive branch appointed?
A
From members of parliament
13
Q
What is the enrolled bill rule?
A
Courts cannot question validity of acts of parliament
14
Q
Concept of fundamental rights - parliament vs courts?
A
- Only parliament can interfere with fundamental rights through act of parliament
- Courts will interpret legislation to comply with such rights
15
Q
What does the Human Rights Act 1998 require legislation to be interpreted?
A
To respect human rights protected by the Act - if not possible, may make declaration of incompatibility
16
Q
What is the role of the Speaker of the House of Commons?
A
Maintain order during debates
17
Q
How is the Speaker of the House of Commons chosen?
A
By all MPs (members of parliament) and expected to be impartial
18
Q
Are the House of Lords elected?
A
No
19
Q
How are members of the House of Commons elected?
A
Elected for 5 years unless motion of no confidence is passed earlier or parliament is dissolved early
20
Q
Who cannot be an MP?
A
Police, judiciary, civil servants, armed forces
21
Q
Can the monarch exercise royal prerogative to dissolve parliament early?
A
Yes by constitutional convention - but usually only does so when PM requests it
22
Q
What happens if government loses vote of no confidence in House of Commons?
A
PM expected to immediately request that the Monarch dissolve Parliament
23
Q
What does the House of Lords include?
A
Limited number of hereditary peers, life peers and lords spiritual
24
Q
How long is a session of parliament and how does it normally start?
A
12 months - starts with King’s speech
25
How does a bill become law usually?
Bill must be approved by House of Commons - House of Lords then royal assent
26
What are the steps of passing a bill?
1. First reading
2. Second reading - principles are debated
3. Committee stage - scrutinise the bill
4. Report stage
5. Third reading
6. Royal assent
27
What is the Salisbury convention?
If government bill is implementing a commitment that the party elected government made in manifesto, HOL grants a second reading to the bill as matter of course
28
What happens under the Suspensory Veto under Parliament Acts?
If HOL blocks legislation already passed in Commons and during next session of Parliament the bill is once again passed by commons and vetoed by the Lords - bill nonetheless sent for Royal Assent
29
What are Henry the 8th Powers?
Government to amend Act of Parliament through secondary legislation
30
What is the effect of a sunset clause?
Laws remain in effect until repealed unless includes sunset provision which provides expiration date for the law
31
What is the negative resolution procedure?
For enacting secondary legislation - draft is laid in both houses and will take effect unless either house rejects within 40 days
32
What is the affirmative resolution procedure?
Draft of secondary legislation laid in both houses, take effect only if both houses vote in favour
33
Can amendments be made to draft secondary legislation?
No - not by either house
34
Can secondary legislation be struck down?
Yes by courts since made by government not parliament
35
What is parliamentary privilege?
Applies to all MPs - no member of parliament can be challenged in court for anything said in Parliament
- does not prevent courts from referring to official record of debates to help interpret legislation
36
What is the sub judice rule?
Prohibits MPs and peers from referring to cases which are currently before the courts during debates
37
What does the concept of the Crown include?
Monarch, ministers who form His Majesty's Government, Privy Council, secretaries of state, civil servants
38
Does Parliament have the power to abolish royal prerogative powers?
Yes - no new powers can be created; if it is replaced, only the statutory power will exist
39
What happens if statute overlaps with prerogative power?
Statutory power takes precedence
40
Can the Crown use prerogative powers to thwart intention of parliament?
No - cannot be used to change UK law or sources of UK law
41
Do statutes bind the Crown?
No - unless statute expressly says it does or obviously binds Crown by implication
42
What are ministerial prerogative powers?
Exercised by ministers on behalf of crown e.g. power to grant pardons, acquire territory, deploy troops, negotiate and ratify treaties
43
What are personal prerogative powers?
Personally exercised by Monarch e.g. power to appoint PM, dismiss government or grant Royal Assent
44
What are miscellaneous prerogative powers?
Right to mine precious minerals, construct harbours, mint coins
45
What are legislative prerogative powers?
Passage of orders in council by Privy Council
46
What are judicial prerogative powers?
Appeals from Commonwealth nations to Judicial Committee of Privy Council
47
What power is ratification of treaty?
Prerogative power by act of parliament
48
How is a treaty ratified?
Draft laid before both Houses and can only ratify after giving both houses 21 days to vote against
49
What happens if either house rejects ratifying the treaty?
Government can explain why they still want to ratify and then House of Commons has 21 days to reject the treaty
- only in exceptional case government can bypass requirement of laying the treaty before parliament
50
What is the effect of ratifying an international treaty?
Binds UK as matter of international law but no effect in domestic law - to have effect must be through act of parliament
51
What is the cardinal convention?
Limits Monarch's prerogative powers - must act on advice of ministers
52
What happens if monarch disagrees with PM?
Must do so privately but must publicly support the PM's decision
53
Technically the Monarch has the prerogative power to appoint the PM but by constitutional convention what happens?
Monarch will appoint the leader of the party with a majority of seats in the House of Commons
54
After a general election if a different party gains majority of seats in HC - what happens?
PM expected to resign, new majority party's leader becomes PM
55
How long does PM remain in office?
Until they have lost the confidence of the Commons
56
What does PM lead?
Central Government, supported by Cabinet
57
How does the PM form the government?
Recommending that the Monarch appoint ministers to lead departments that make up central government
58
Who forms the cabinet?
The most senior ministers - including secretaries of state
59
What happens if a minister appointed is not a member of either house?
Appointed a life peer of the House of Lords
60
What are the activities of the PM?
Power to change organisation of government
- meets weekly with Monarch
- responsible for national security and intelligence matters
61
What is the role of Cabinet?
To make decisions of government collectively
62
What is the Carltona doctrine?
Civil servants within the relevant department can exercise the power granted to the secretary of state
63
What does the Privy Council do?
Advises monarch on how to exercise royal prerogative and issues instruments known as orders of council
64
What is the effect of orders in council?
Primary legislation - if made pursuant to royal prerogative or secondary legislation - if made pursuant to acts of parliament
65
How are appointments to Privy Council made?
Made by monarch on advice of PM and are for life
66
What is the level of confidentiality for Privy Council meetings?
Secret
67
What does the Judicial Committee of the Privy Council do?
Exercises royal prerogative power to hear appeals from independent Commonwealth nations and British overseas territories
68
Who are appointed to Judicial Committee of Privy Council?
Supreme Court justices
69
What is collective responsibility?
1. Confidentiality
2. Unanimity
70
What happens if a minister is unable to agree with government policy?
Must resign otherwise if they agree must publicly support
71
What is the responsibility of ministers - who do they account to?
Individually responsible for own actions - accounts to parliament
72
What happens when there is a policy failure?
Minister takes responsibility and resigns
73
What happens when there is an operational failure?
Give an account and take steps to ensure they do not occur
74
What happens during PM's question time?
Members of parliament from all political parties can ask questions about overall conduct of government
75
What happens to legislation passed by devolved legislatures?
Subject to review in court
76
What happens if a court of one of the devolved nations believes nation's legislature or executive exceeded authority?
Court can refer matter to UK Supreme Court
77
Before a bill is submitted for royal assent, what needs to happen for devolved legislatures?
Specific representatives from each nation can refer bill to UK Supreme Court to determine whether within institution's power
78
What kind of decisions is judicial review available for?
Public body decisions
79
Can you seek judicial review for contracts with public authority?
No - private contract law governs
80
What stages does judicial review have?
1. Permission stage
2. Full hearing stage
81
When may an application for judicial review be refused?
If ruling in applicant's favour would not substantially change the applicant's outcome
82
When do judicial review applications need to be brought?
Promptly and not later than 3 months after issue arose
83
When do judicial reviews of planning decisions need to be brought?
Within 6 weeks from date of decision
84
Can public law issues be sought through judicial review?
Yes - but if mixed issue with private law, will be reviewed private law proceedings
85
Who can bring a judicial review application?
If have standing - sufficient interest or some wrong/harm suffered personally by them
86
When is standing reviewed?
In the permission stage
87
When can groups have standing for judicial review?
If group is responsible, well resourced, has expertise, unlikely to be alternative claimant
88
What are the 4 grounds of judicial review?
1. Illegality
2. Procedural impropriety
3. Failure to meet legitimate expectations
4. Failure to make reasonable/rational decision
89
What can a claim of illegality be based on?
- Acted ultra vires
- Failed to comply with specific legal duty
- Unlawfully delegated power
- Took into account irrelevant considerations
- Acted under error of law
90
What happens if the statute delegating power to the public authority includes an ouster clause?
Courts will construe this narrowly to mean only legal decisions cannot be challenged
91
When may there be procedural impropriety?
- Failure to follow mandatory requirements
- Failure of the common law right to be heard
- Failure of the common law right to an unbiased decision-maker
92
When will a decision maker be deemed biased/automatically disqualified?
If they have a financial interest in the subject matter or non-financial interest closely connected to the issues raised by decision in question
93
When will a decision maker have apparent bias?
If fair-minded and informed observer, informed of the facts, would conclude that there was a real possibility of bias
94
When is there duty to consult?
- Statutory duty to consult
- Promise to consult
- Established practice to consult
- Failure to consult would lead to conspicuous unfairness
95
When does failure of duty to give reasons arise?
- Subject matter or interest is important or
- Decision appears to be aberrant
96
When is there a failure to meet legitimate expectations?
1. Explicit promise or assurance or
2. Previous action by the public authority
97
When is there a failure to make a reasonable/rational decision?
Decision must be so outrageous in defiance of logic or of accepted moral standards that no sensible person who applied their mind to the question could have arrived at it
98
What orders may court grant if judicial review is granted?
1. Quashing order
2. Mandatory order
3. Prohibiting order
4. Injunction
5. Declaration
## Footnote
Remedies are discretionary
99
What is a quashing order?
Renders original decision void - new decision required
100
What is a mandatory order?
Requires defendant to act in particular manner
101
What is a prohibiting order?
Orders defendant to not act in particular manner
102
What is an injunction?
Prevents party from acting in a certain manner or requiring a party acts according to the instructions of the court
103
What is a declaration (judicial review purposes)?
Decision or action complained of was unlawful
104
What are the 3 rights under ECHR?
1. Absolute rights
2. Qualified rights
3. Limited rights
105
What are examples of absolute rights?
Right to life and prohibition of torture
106
What are examples of limited rights?
Right to liberty, right to fair trial
107
What are examples of qualified rights?
Right to privacy, freedoms of thought, religion, expression, assembly, marriage, prohibition against discrimination
108
What is the proportionality test and when is it used?
Used to justify restricting a qualified right
1. Restriction must be designed to meet legitimate aim to justify interfering with fundamental right
2. Restriction must be rationally connected to achieving its aim
3. Restriction must interfere with the right no more than is necessary to achieve its aim
109
What is the concept of judicial deference?
The more politically controversial the issue, the more likely the courts will defer to government/parliament
110
What might the public authority argue if their actions are challenged before the ECHR?
Entitled to margin of appreciation
- ECHR likely apply narrow margin of appreciation when there is a consensus among member states on an issue
- Broader margin of appreciation if politically controversial
111
When will ECHR derogate from rights provided by ECHR?
Not allowed for prohibitions of torture, slavery, retrospective criminal offences
112
What are UK courts expected to do if dealing with a case involving right under the ECHR?
Under HRA - UK courts expected to follow the interpretation of the ECHR when there is a clear line of authority
Must interpret legislation compatible with the ECHR
113
When will UK court issue a declaration of incompatibility?
If a UK court determines it cannot interpret an Act of Parliament in a way that makes it compatible with the ECHR
114
What are fast track remedial orders?
To allow parliament to address laws incompatible
- If non-urgent, amendments presented and approved to both houses and become law 60 days after
- If urgent - become effective immediately and must be laid before both houses and ceases to have effect unless both houses approve within 120 days
115
What happens under section 6 HRA - when must claim be brought?
If person believes public authority acted in way incompatible with ECHR right, seek judicial review of the action
Must be brought up to 1 year after complained of action
Remedies are discretionary
116
How must claims for violations of ECHR be brought?
Claims for violations of ECHR freedom from discrimination under the HRA can be brought only if attached to the breach of another Convention right
117
How may claims for discrimination under Equality Act 2010 be brought?
Freestanding
118
What can claims for discrimination under Equality Act be brought under - who can it be brought against?
1. Direct discrimination
2. Indirect discrimination
Can be brought against private employers
119
When is there breach of peace?
1. Person genuinely in fear of harm
120
What is the time limit for bringing a complaint after an action?
1 year after complained of action
121
Are remedies for claims discretionary?
Yes, remedies are discretionary.
122
How must claims for violations of ECHR be brought?
Claims for violations of ECHR freedom from discrimination under the HRA can be brought only if attached to the breach of another Convention right.
123
How may claims for discrimination under the Equality Act 2010 be brought?
Freestanding.
124
What types of discrimination can claims under the Equality Act be brought for?
1. Direct discrimination
2. Indirect discrimination
125
Who can claims for discrimination under the Equality Act be brought against?
Can be brought against private employers.
126
When is there a breach of peace?
1. Person genuinely in fear of harm to themselves or to their property
2. When harm actually done
3. When harm likely to be done
127
What can a police officer do to terminate a breach of peace?
Arresting person or forcing entry into private premises.
128
What does the Public Order Act 1986 do?
Impose conditions on public processions / public parades / marches / or banning outright.
129
When must advance notice be given to police if a procession is intended to achieve certain goals?
At least 6 clear days before date of procession.
130
How must notice be given for a public procession?
1. Delivered to police station where will be held
2. Include day, time, route, name, address of person organising it.
131
When may a senior police officer impose conditions on a march?
If officer reasonably believes it will result in serious damage, the procession purpose is to intimidate others, or likely to generate such noise and may result in serious disruption.
132
What happens if the chief constable believes no condition can be imposed to prevent serious disorder?
Apply to ban all or specified class of processions for up to 3 months.
133
What is a public assembly?
2 or more persons in public place at least partially in open air.
134
What are trespassory assemblies?
When 20 or more people hold a meeting at a place or on land in open air to which the public has no right of access or only a limited right of access.
135
What is assimilated direct legislation?
EU regulations automatically binding on member states.
136
What can the UK do with assimilated law?
Can repeal or amend or restate.
137
What is assimilated case law?
Decisions of the CJEU from before the end of the transition.
138
What is assimilated domestic case law?
Cases from UK courts which interpret EU law.
