Constitutional Fundamentals Flashcards
The basis of individual ministerial responsibility as a part of the UK constitution
Constitutional Convention
Individual ministerial responsibility is a constitutional convention, so the other options are wrong.
Can prerogative powers overrule statute?
No.
It would be an abuse of prerogative power for a minister to exercise power in a way which is inconsistent with statute, due to Parliamentary Supremacy.
Can Parliament abolish a prerogative power through a statute?
Yes, because Parliament can abolish a prerogative power through a statute.
Parliament can override or displace an existing prerogative power through statute. Neither statute, the Crown nor the Courts can create new prerogative powers.
Quick Q:
The government is considering introducing a compensation scheme for victims of some recent extreme weather events.
Which of the following best describes the options available to the government in relation to the royal prerogative?
In the absence of a statutory scheme, the government should be able to adopt a non-statutory scheme pursuant to its prerogative powers, subject to Parliament voting the necessary funds.
Option A is correct. The type of scheme proposed in this question is similar to the criminal injuries compensation scheme that was set up using prerogative powers. However, Parliament will need to authorise expenditure, as the government cannot use the prerogative to authorise expenditure; hence option C is wrong.
Can an MP criticise individual members of the judiciary in public?
By constitutional convention, the MP cannot criticise an individual member of the judiciary in public.
Examples of constitutional conventions vs separation of powers
Constitutional conventions:
-The monarch, acting on the advice of the Prime Minister, will not refuse Royal Assent to a bill which has been passed by the House of Commons and the House of Lords.
-Government ministers are responsible to Parliament both for the running and proper administration of their respective departments, and also for their personal conduct.
-Ministers and Members of Parliament do not criticise in public individual members of the judiciary
-The Cabinet must be united in public in support of government policy, and so a Cabinet Minister must resign if he or she wishes to speak out in public against such policy
Separation of powers:
-The Judiciary do not have the power to strike down legislation which they consider to be unconstitutional. In certain circumstances, they can make a declaration that legislation is incompatible with Convention Rights.
What best describes the basis of the sub judice rule as a source of the UK constitution?
Law and custom of Parliament
(not constitutional convention)
Although it is often mistaken for an example of a constitutional convention, the sub judice rule is in fact a formal law of parliament. Following the Bill of Rights 1689, Parliament has the power to govern itself (“exclusive cognisance”) and therefore makes the rules of parliamentary procedure, of which the sub judice rule is an example.
Quick Q:
The Government is proposing to introduce legislation in Parliament that would breach a recognised constitutional convention.
Which of the following best describes the constitutional implications of the Government’s proposals?
Although the courts will recognise the constitutional convention, they will nevertheless apply the legislation.
Option C is correct. Parliament is sovereign and legally can pass any legislation it pleases. The courts will recognise the convention’s existence, but this will not stop them applying the legislation.
Option A is wrong because the courts do not have the power to strike down legislation. Option D is wrong as the courts will apply the legislation irrespective of the convention and whether the breach is reasonable or not. Equally, there is no legal limit on the type of legislation that the Government can introduce; hence option E is wrong. On the other hand, the courts will not ignore the convention, so option B is wrong.
Quick Q:
A minister in the UK government has made a statement criticising the government’s economic policy.
Must the minister resign?
No, because the principle of cabinet collective responsibility requires all members of the UK government to publicly support government policy, but there is no way of legally enforcing a constitutional convention.
The correct answer is D as the principle of cabinet collective responsibility is a constitutional convention requiring a minister who does not publicly support government policy to resign, but as a convention the principle is unenforceable. Option C is therefore wrong as cabinet collective responsibility is a convention, not a rule and custom of Parliament.
Options A and B refer to the convention of individual ministerial responsibility, so are therefore incorrect.
Option E is wrong- although the minister does have the qualified right of freedom of expression under the ECHR, this option is irrelevant to whether the minister should resign or not.
Statement describing the UK constitution
The UK Constitution is unwritten, monarchical, flexible and has an informal separation of powers.
Unwritten: there is no single, authoritative document that contains the constitution. Rather, the constitution is made up of a number of different sources such as statute and case law; Monarchical: the monarch is the unelected head of state, although the monarch’s role is almost entirely ceremonial; Flexible: a state which has a flexible constitution is comparatively easy to change because no special procedures are necessary for the constitution to be amended; Informal separation of powers: there is a considerable degree of overlap in terms of function and personnel between the three branches of state, namely the executive, the legislature and the judiciary.
Will a monarch refuse royal assent on a bill that has been passed by Parliament?
No, because by convention the Monarch always grants Royal Assent to a bill that has been passed by Parliament.
Constitutional convention governing Cabinet discussions - collective or individual ministerial responsibility
Collective
Quick Q:
The Prime Minister convened a meeting of the Cabinet in order to discuss confidential plans for the closure of 50 local hospitals as a means of cutting costs. During the discussions, one of the ministers present at the meeting objected strongly to the proposals. Despite the minister’s objections, the Cabinet agreed the closures, but decided to keep the decision confidential while detailed plans were prepared. Following the meeting, the minister threatened to denounce the closures in the press. The Prime Minister wishes to apply to the court to stop the minister from doing so.
Which of the following statements best describes the approach the court is likely to take?
The court will recognise the constitutional convention of Collective Ministerial responsibility but will not enforce the convention directly.
Answer B is correct. This scenario deals with constitutional convention governing Cabinet discussions, Collective Ministerial responsibility. One of the aspects of this convention is that the Cabinet must be united in public in support of Government policy. A minister wishing to speak out publicly against Cabinet policy must resign. This is sometimes confused with Individual Ministerial responsibility which is the convention that Government Ministers are responsible to Parliament for the proper administration of their department and for their own personal conduct. Constitutional conventions are non-legal rules. While the courts recognise the existence of constitutional conventions, they are not prepared to enforce them directly, as demonstrated in the case of Jonathan Cape [1976] QB 752 and confirmed in the recent case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. Constitutional conventions are considered binding upon those who operate the constitution which would include Government ministers. Evidence of knowledge and intent would be irrelevant.
A is wrong as constitutional conventions are not legally dinging and therefore not enforceable by courts.
C is wrong, as it mentions Individual as opposed to Collective Ministerial Responsibility.
D is wrong, as conventions are not legally enforceable and do not entail a legal remedy.
Quick Q:
The government has lost an important case in the Supreme Court which affects its ability to carry out a manifesto commitment.
Which of the following statements describes the most realistic option which the government now has?
The government could introduce legislation into Parliament to retrospectively change the law and effectively override the judgment.
Option D is correct – primary legislation can alter any legal rule or judgment, even retrospectively, as in Burmah Oil Co v Lord Advocate [1965] AC 75.
Option A is wrong – the government is subject to the law and is bound by court judgments. This is the basis for judicial review.
Option B is wrong – the Judicial Committee of the House of Lords no longer exists. The Constitutional Reform Act 2005 abolished it and replaced it with the Supreme Court.
Option C is wrong – judges in the senior courts can only be removed by Parliament under the powers dating from the Act of Settlement 1701 and now in the Constitutional Reform Act 2005.
Option E is wrong – there is no such convention. Conventions grow up by practice. In fact there are many examples of governments losing cases in the Supreme Court and elsewhere and staying in office, for example R(Miller) v The Prime Minister, Cherry v Advocate General for Scotland [2019] UKSC 41.
Quick Q:
Collective cabinet (or ministerial) responsibility is an example of a UK constitutional convention.
Which of the following is the best description of this convention?
Breach of collective cabinet responsibility usually entails a political sanction, although the support of the Prime Minister is often an important factor.
Option E is correct. Breaches of conventions (such as collective cabinet responsibility) may result in political sanctions, but not legal sanctions. The convention of collective cabinet responsibility holds that ministers should resign if they wish to speak out in public against government policy.
Option A is wrong, as the Ministerial Code does not have legal effect.
Option B is wrong. The breach of conventions will ordinarily entail some political pressure or sanction.
Option C is wrong. The breach of conventions do not ordinarily entail legal sanction.
Option D is wrong. The operation of the convention of collective cabinet responsibility is ultimately a matter for the Prime Minister (eg it is open to the Prime Minister to suspend the operation of collective cabinet responsibility as happened during the EU referendum in 2016).
