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constitution intro/basics Flashcards

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1
Q

what are the 3 UK basics about the constitution

A

-UK is a constitutional monarchy (or parliamentary democracy)
-UK is a unitary state but with devolved entities (as opposed to federal)
-operates on a parliamentary system of government (as opposed to presidential)

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2
Q

is the UK a unitary or federal state

A

unitary

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3
Q

does the UK operate as a parliamentary or presidential system of government

A

parliamentary

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4
Q

what are the 5 sources of UK constitutional law

A

-legislation
-case law
-law and custom of parliament
-constitutional conventions
-royal prerogative

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5
Q

what are the 2 types of legislation

A

-acts of parliament (primary legislation)
-statutes with constitutional significance

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6
Q

explain acts of parliament

A

-primary legislation
-supreme source of legal rules
-can change the constitution through normal legislation

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7
Q

give 2 examples of statutes with constitutional significance

A

-Magna Carta 1215
-Bill of Rights and Claim of Right 1869

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8
Q

what are the 2 key articles from the Bill of Rights 1689 and what do they do

A

-Article 8; Freedom of Election (election of MPs=free)
-Article 9; Freedom of Speech (courts cannot impeach/question debates/proceedings in parliament based on freedom of speech)

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9
Q

what is article 6 of the Bill of Rights 1689

A

Standing Army (illegal to keep standing army at time of peace unless consent of parliament)

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10
Q

what is article 8 of the Bill of Rights 1689

A

-Article 8; Freedom of Election (election of MPs=free)

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11
Q

what is article 9 of the Bill of Rights 1869

A

Freedom of Speech (courts cannot impeach/question debates/proceedings in parliament based on freedom of speech)

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12
Q

what did the Fixed-term Parliament Act 2011 and Dissolution and Calling of Parliament Act 2022 do

A

-2011; put the calling of a general election onto statutory footing + took this power away from PM and gave to Parliament
-2022; abolished 2011 procedures, restored old ones, supported by two major parties at 2019 election

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13
Q

what are the two main types of ‘constitutional’ legislation

A

-Those concerned with the organisation of, and allocation of power
to, institutions of government (Examples?)
- Those that regulate the relationship between the individual and the
state (Examples?)

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14
Q

give two examples of attempts by the judiciary to recognise a hierarchy of acts

A

-Thoburn v Sunderland City Council [2002]
(Distinguished between ‘ordinary’ statutes and ‘constitutional’ statutes)
-HS2 Action Alliance Ltd)[2014]

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15
Q

what did Thoburn v Sunderland City Council [2002] do

A

-distinguished between ‘ordinary’ statutes and ‘constitutional’ statutes

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16
Q

what case distinguished between ordinary and constitutional statutes

A

Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)

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17
Q

explain the formal source of case law / judicial precedent

A

-common law; can recognise, establish or develop constitutional principles BUT decisions may be set aside or amended by parliament
-from UK courts eg High Court, CoAppeal, UKSC and ECtHR
-cannot strike down acts of parliament but can seek to interpret what Parl means in acts

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18
Q

what did Lord Bingham say on the interpretation of statute law

A

the overriding aim…must always be to give effect to the intention of Parliament as expressed in the words used’ [in the statute]

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19
Q

how does the rule of law principle apply to case law

A

legislation should be interpreted
by an independent judiciary

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20
Q

give 4 case examples of case law

A

-Entick v Carrington
- Burmah Oil Co
- M v Home Office [1994] 1 AC 337
- Evans [2015] (aka “Black spider memos” case)

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21
Q

what happened in Entick v Carrington (1765)

A

-explicit legal authority needed for government to interfere with citizen’s person/property
-key principle of the rule of law

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22
Q

what happened in the case of Burmah Oil Co v Lord Advocate [1965] A.C. 75

A

-Was government liable for destruction of company’s property as retreating in WW2?
- Conduct was lawful under the royal prerogative
-But liable for compensation at common law?
-House of Lords said ‘yes’, but Parliament reversed the decision via the War Damages Act 1965

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23
Q

what happened in the case of M v Home Office [1994] 1 AC 337

A

-Yes, ministers of the Crown can be subject to a finding of contempt of court

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24
Q

what happened in black spider memos case (Evans)

A

-Correspondence from Prince of Wales (Charles) to government departments–> requests were made to disclose
letters
- Freedom of Information Act 2000 s 53: contains an “executive
override” which allows Ministers to override a decision notice
from the Information Commissioner, or even a judicial decision
-Can be done via Ministerial certificate
-Upper Tribunal said that letters should be disclosed  AG blocked it with s 53
override –> High Court decides for AG –> Court of Appeal decides against AG –>
Supreme Court finds 5-2 against AG

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25
what are the issues on the black spider memo case (Evans)
-Separation of powers issues: Parliament can override judicial decisions, but a basic principle of the rule of law is that the executive accepts and complies with such decisions -Also, if Parliament explicitly says in primary legislation the executive can do something, then that should be respected by the judiciary (basic principle of parliamentary sovereignty and even therule of law)
26
which lords dissented in the black spider memo case (Evans)
-Lord Hughes -Lord Wilson
27
explain the law and custom of Parliament
-Where the gov’t initiates its legislative programme and also where the gov’t is held to account -Through Parliament where Ministers are accountable to the people -Some sources:  Standing orders of both Houses  Rulings by the House Speaker
28
give two examples of sources of law and custom of parliament
Standing orders of both Houses Rulings by the House Speaker
29
give 3 exceptions to the commons standing orders agenda
-Opposition business (20 days) -Backbench business (35 days) -Private Members’ Bills (13 days)
30
what is opposition business and how many days is it
-... -20 days
31
what is backbench business and how many days is it
-... -35 days
32
what is Private Members' Bills and how many days is it
-... -13 days
33
give 2 examples of recent Brexit controversies
-Indicative votes (March/April ‘19) -Withdrawal (No 2) Act (‘Benn Act’)
34
what may cause a government to fail
-if the government cannot command the confidence of the House of Commons
35
what does the PACAC report (2018) say
-the confidence relationship between Parliament and Government remains a fundamental principle to our system of Parliamentary democracy
36
when was the first confidence motion lost
-1782 by North Government
37
what is often a first indication of confidence
-KIng's / Queen's speech
38
which governments are especially fragile with confidence motions
-minority or bare majority governments
39
how many times have governments lost votes of confidence since 1895 and what were the outcomes
-4 times -twice the opposition leaders formed a government -twice the PM requested dissolution of parliament and general election held
40
explain constitutional conventions
unwritten, non-legal rules of political behavior that are binding because they are generally accepted as such due to established practices eg PM appointment, Sewel Convention, Salisbury Convention
41
what is the Sewel Convention ?
-UK Parl will not legislate on devolved matters without permission of devolved entity
42
what is the Salisbury Convention?
-the House of Lords should not oppose the second or third reading of any government legislation promised in its election manifesto
43
generally what are constitutional conventions
Dicey: ‘understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power...are not in reality laws at all since they are not enforced by the courts’ The ‘unwritten rules of the game’ * When legal freedom is constrained by political precedent  But, conventions are legally unenforceable by the courts
44
45
what does Miller II/ Cherry 2019 say on constitutional convention/ prorogation
Miller II/Cherry (2019): ‘the power to order the prorogation of Parliament is a prerogative power: that is to say, a power recognised by the common law and exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice. It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. In the circumstances, we express no view on that matter’.
46
what are the 4 elements of a constitutional convention
-Concern constitutional matters (esp fundamental constitutional principles) -Operate supplementary to law -Constitutional actors feel ‘bound’ by them -Must be some type of precedent established
47
what is the test for what counts as a convention
Jennings test: -What precedent is there? -Do those adhering feel bound? -Is there a reason for the rule?
48
what are 3 perhaps better questions regarding degree (constitutional convention)
-How strong is the precedent? -To what extent do actors feel bound by it? -How good is the reason for it?
49
what counts as a constitutional convention (examples?)
-royal assent -judges must abandon all party affiliations -Prime Minister's Questions (PMQ's) (1961) held in Parliament -PM must be member of the HoCommons -use of military force requires parliamentary approval
50
give 3 reasons why conventions are obeyed
(1) Reflect personal sense of constitutional morality (2) Reflect widely shared sense of constitutional morality (3) Perhaps for self-serving reasons (eg gain trust of party by obeying)
51
give 3 examples of conventions being written/codified
-Ministerial Code -Cabinet Manual -Scotland Act 2016
52
what is Ministerial Code
-a document setting out "rules" and standards for UK government ministers
53
what is the Cabinet Manual
-released in 2010 -describes practices of cabinet and how the constitution works/operates
54
what is the Scotland Act 2016
-codified Sewel Convention -Westminister cannot legislate on Scottish devolved matters
55
what are the 3 issues with enacting convention rules as law
-Difficult decisions would need to be made re importance -Would change the accountability structure; unenforceable -Attitude of the courts to (codified) conventions, would the courts even want to get involved? they are dismissive of conventions (Miller I (2017) UKSC quote)
56
what did the UKSC say in Miller I (2017)
judges therefore are neither the parents nor the guardians of political conventions; they are merely observers. As such, they can recognise the operation of apolitical convention in the context of deciding a legal question...but they cannot give legal rulings on its operation or scope, because those matters are determined within the political world. As Professor Colin Munro has stated, ‘the validity of conventions cannot be the subject of proceedings in a court of law’.”
57
give a history of the Royal Preorogative
-derived from parl/common law -retained: to allow gov to function -Medieval times; King had powers to protect + for public good but not above the law -17th Cent; had ordinary vs absolute prerogative -Darnel's or The Five Knight's Case (1627) overruled by Petition of Right 1628 -Bill of Rights; growth of repsonsible gov and set constitutional monarchy
58
what is the royal prerogative like today(3)
-exercised on behalf of the gov of the day -prior authority of Parl not needed for many powers -prerogative powers are starting to be put on statutory footing
59
give 4 examples of royal prerogative powers relating to the legislature
-Summons and prorogue of Parliament -Hereditary peers (although been curtailed significantly) -Providing Royal Assent to Bill -Orders in Council power to legislate
60
give 2 examples of royal prerogative powers relating to the judiciary
-No longer can create courts; only Parl can do so nowadays -Some functions in relation to criminal justice (stop prosecutions; pardons)
61
give 3 examples of royal prerogative powers relating to foreign affairs
-Carried on mainly under reliance of the prerogative -Territory (acquiring & ceding) -special powers in times of war: restraining individuals entering/leaving and issuing passports
62
give 2 examples of royal prerogative powers relating to treaties
-Treaties used to be made primarily under the prerogative -Recently greater pressure for Parl involvement as regards treaties (Constitutional Reform and Governance Act 2010 )
63
give 3 examples of royal prerogative powers relating to war and armed forces
-Gov’t may declare war: ‘most significant of the powers’ -By statute and prerogative Queen is commander-in-chief of armed forces -2006 Lords Constitution Committee proposed new convention (recent events have not provided clarity)
64
give an example of an immunity and a privilege of the royal prerogative
-Statutes do not bind the Crown except by express statement or necessary implication -Tax not payable on income received by monarch -Crown Proceedings Act 1947
65
what is the existence and the extent of prerogative power
-Courts will not recognise existence of new prerogative powers -Difficulties arise on when old powers should apply to new situations -GCHQ case; -->royal prerogative is subject to judicial review
66
what happened in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ case)
-royal prerogative is subject to judicial review
67
what case said that royal prerogative is subject to judicial review
-GCHQ case
68
what is the effect of statutes upon prerogative powers
-The ‘executive cannot exercise the prerogative in a way which would derogate from the due fulfilment of a statutory duty’ -Fire Brigades Union [1995]
69
what is the manner of exercise of a prerogative power
-In theory, courts determine existence, but can’t regulate manner of exercise or can they? (Miller II) -However, courts have expanded review to include reviewing bodies set up by prerogative powers, and the makings of Orders in Council
70
what is a common depiction of the UK constitution
-changing - this is arguably inaccurate

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