Constitution of the UK Flashcards
(38 cards)
What is a constitution?
- system of government and collection of rules that establish and regulate it
1) Does the UK have a written or unwritten constitution?
2) What is a written constitution and which country has them
3) what are the differences between the wo - written an unwritten
4) What is the benefit of a unwritten constitution
1) - unwritten
2) - document with special legal status that sets out the system of government and the collection of rules that establish and regulate it
- USA and nearly every other country of the world
3) WRITTEN
- special procedure to change
- most countries have
- rights protected under constitution
- better control over government
-constitutional court enforces the constitution
- written constitution might not be obeyed
- cannot contain every rule
- constitution my divide power between federal and state governments
UNWRITTEN
-all constitutional rules can be changed
- Uk is unusual having unwritten const
- specific legislation to protect rights
- constitutional rules are found in acts of Parliament, conventions and cases
- GOV has freedom to act
- constitutional cases heard in ordinary courts
- tradition respected
- conventions, cases and acts of parliament provide more constitutional rules.
- The UK (Westminster) parliament retains supreme power (sovereignty)
4) - Flexible - able to be developed
How is the uk constitution comprised?
1) King
2) Parliament - UK - most powerful
3) Devolved - Wales - Senedd Cymru, Scotland and N Ireland assembly
- Makes it multi layered
- just because unwritten DOES not mean that there are no constitutional rules
1) What time of constitution is the UK - unitary or federal?
2) What is the meaning of both
1) - Unitary constitution - ultimate sovereign power retained by central government based in Westminster
2)
- Federal - authority to govern divided between central gov and regions, provinces or states = USA each of 50 states has their own government
- Unitary - authority to govern concentrated in the central government - UK
What are the 3 bodies of the constitution
- what are the 3 bodies intended to do?
1) - Government
2) - Parliament
3) - Judiciary
- separation of powers
- 3 bodies balance each other out and perform checks on each other
Does UK have successful separation of powers model?
- Government = members of parliament (H of C) and Lords (H of L) so not strict separation of powers
- Judiciary = judicial review commission, so more separation of powers
1) What is parliament?
2) If parliament can effectively do what it wants = chaos, how is this kept an eye on?
1)
- parliament is sovereign - can pass any law it likes
- as sovereign it doesn’t bind itself
- can repeal whatever it likes
- under acts of parliament power devolved to Scotland, Wales and N/I in certain circumstances.
2)
- by judiciary
- interpreted government presumption
1) How do the judiciary keep an eye on Parliament?
2) How are interpreted government presumptions used to keep an eye on parliament?
1) Judiciary-
- can put a limit on parliament even though sovereign
- HRA s3 - judges authority to interpret act parliament in line with HRA.
- can reword act to comply with HRA
- judges act as a check
- if can’t interpret in line HRA can male s4 declaration incompatibility
- this doesn’t render act void but does put pressure on parliament and government to amend.
- s10 HRA - is a fast track procedure which allows government to make amendments to incompatible legislation.
- do however recognise parliamentary sovereignty and will not consider repeal unless such repeal is EXPRESSLY worded in act of parliament - no implied repeal to constitutional act.
2) Interpreted government presumption-
- Judges approach with presumptions
- wording act shaped by judges themselves eg …“parl could not have intended”…
- ie rule of law principle = grounded judicial review.
- can challenge as outside of act because gov did not intend.
What are the sources of the constitution?
5 main?
1) Acts parliament
2) Case Law
3) Assimilated law
4) Royal Prerogative
5) Conventions
1) Acts parliament
- written down and legally enforceable as written down in act of parliament
- but in contrast to a written constitution acts can be easily amended and repealed
- however recognise parliamentary sovereignty and will not consider repeal unless such repeal is EXPRESSLY worded in act of parliament - no implied repeal to constitutional act.
2) Case law
-decision in House of Lords and supreme court are most authoritative
-upholds parliamentary sovereignty
- fundamental principle of constitution, parliamentary sov. can only be decided in court. Creating a form of constitutional principles used to limit gov power and interpret acts of parliament.
- example - R (Miller)v sec of state for exiting EU - Supreme CT concluded could not be done by using royal prerogative, because only another act of parliament could repeal European Communities Act 1972
3) Words or authority/treatises
- academic
- not law but important influences
- eg Erskin May - details how parliament going
4) Royal Prerogative
- King retains legal powers to rule country = royal prerogative
- King =executive = government
- ability to act independently of any parliamentary act, law or scrutiny
- no consent of parliament required
-Parliament = H of C and H of L & king - Government - Crown
In practice, administration appointed by King, who exercise powers on Kings behalf, power given by parliament to secretaries of state appointed on kings behalf - which is also royal prerogative.
What are the main royal prerogative powers?
- residual powers belonging to monarch and haven’t been taken by parliament:
: declaring war
: granting honours
: signing treaties
: prorogue parliament
BUT if any money required MUST go through parliament as no royal prerogative power re tax or bacs
Parliament can add to remove or amend royal prerogative at any time. What is a recent example of this?
- King has power to summon, dissolve or prorogue (suspend) parliament. This has now been amended and the convention is that this is now done on the advice of the prime minister (R (Miller). The reason for this was that parliament fulfilled a vital constitutional role and could not therefore be suspended for longer than a short period of time
- King must be consulted but ultimately would not refuse.
How to deal with a question on whether it is a royal prerogative.
1)Main RP’s =
- war
- summoning parliament
-appointing prime minister
2) Has it been amended/removed by act of parliament?
- If YES then have to now follow act of parl
- If NO - follow
- UNLESS wants to spend money then has to go to parliament
5) Conventions
a) - what are they?
b) - are they legal?
a) - political practices, non legal rules of the constitution, established and accepted way of doing things
- championed by Dicey
b)
- not legal, not areas of law
- binding in political practice
What are examples of conventions?
1) King must act on advice of government
2) King cannot refuse royal assent
3) King must appoint PM with majority from H of C
4) PM must be member of H of C
5) Individual ministerial responsibility
6) Collective cabinet responsibility
7) Sewell convention - passed by Scotland wales or NI where consents that UK parl may or may not pass legislation on devolved issues over which devolved gov has regular legislative authority
8) Salisbury convention -H of L should not oppose second or third reading of any gov legislation promised in election manifesto
Can a convention be breached
- Yes - but no legal ramifications
- BUT will be political ramifications
1) How can you identify a convention?
2) Does this apply to all conventions
1)
- has situation occurred before and what happened
- did those involved that that there was a rule that compelled them to act that way
- is there a reason for this rule, does it fit in with the rest of the constitution
2) - No
- works well for clearly established behaviour ie royal assent
- but works less well with ministerial misconduct, situation in which ministers should resign is ever changing
How are conventions enforced?
- Courts will not enforce them
- Dicey believed conventions would be obeyed because of political difficulties that breaking them would cause.
- Canada written constitution but also has conventions and their description is best = like morality and reflect constitutional values of the period.
- people do generally obey as right thing to do, therefore enforcement not usually necessary
- sanction will be political ramifications
- misbehaving government minister would face the disapproval of his colleagues and the rest of parliament. public opinion might ensure compliance as ultimately government faces election
1) -Government, what is it?
2) How is government made up?
1)
- The king is the executive
– Executive authority of King is the royal prerogative, government ran on behalf of the King, he will only exercise RP on advice of government.
- not legal formed, formed by convention
- can only exist with support of H of C - parliament
- MP’s can change support for PM and a vote of confidence may result in PM outed
- parliament acts as check on government power
2)
*Prime Minister (PM) - Leader of largest party of MP’s in H of C, leader of government and cabinet
- PM exercises royal prerogative
*PM appoint secretaries of state (SOS), ministers who head the government departments. Act of parliament provide powers to run departments
- SOS delegate that power to junior ministers or appropriately ranked civil servants- Carltona Doctrine
1) What are Henry VIII clauses
2) Ramifications of these?
1) - clauses in some acts of parliament that give minister power to mend/repeal act of parliament using delegated legislation, King Henry V111 preferred to legislate by royal proclamation rather than act of parliament
- super affirmative procedure parliament ha 60 days to consider the measure. Example HRA 1998 - making of remedial orders when CT deems declaration of incompatibility and part of act of parl needs amended. Also used European communities act 1972 and European union (withdrawal) act 2018
-
2) - controversial as allows executive, parliament, to make law rather than the legislature
Structure of Parliament - how is it made up?
1) Monarch
2) House of commons
- 650 MPs in total
- made up of Prime minister and ministers
- elected chamber most powerful
- Government = PM + 94MPs
- only H of C can form and remove government
3) House of Lords
- 795 government ministers
4)
- Majority party have 315 MP’s
- mostly back benchers
- vote through legislation
- back benchers NOT members of government
- BUT are members of majority party
5)
-Government MPs = 95 on government payroll, including prime minister
- government jobs paid for separately for , plus MP salary
- appoints other MP’s to informal unpaid roles
