Constitutional Law Flashcards

Question

What steps does a bill go through before it becomes an Act of Parliament?

Answer 1

First reading Second reading Committee stage Report Third reading Consideration of amendments (ping pong) Royal assent (in the commons and the lords)

Answer 2

The bill is first debated

Answer 3

The bill is scrutinised line by line

Answer 4

The bill is received from the committee and is reconsidered in the chamber Amendments can be proposed but unlikely to deal with issues addressed at an earlier stage

Answer 5

Final review of the bill and it’s contents (quite brief)

Answer 6

These include - Bills of first class constitutional importance - Urgent bills - Uncontroversial bills Considered by a committee of the whole house

Answer 7

Previously only MPs representing English constituencies could vote on certain legislation when the whole legislation or some sections applied only to England - this has been ABOLISHED

Answer 8

Once legislation is given Royal Assent it will not usually come into force immediately. Instead it will include a statement called a commencement provision outlining when or how the legislation will come into force. Usually by giving government the power to make a commencement order setting out which provisions of the Act take effect on what date. Common for different parts to take effect on different dates.

Answer 9

A clause that states the Act or a section of the Act will expire on a certain date Often done to require Parliament in the future to review how the legislation has operated

Answer 10

Delegated legislation Subordinate legislation Statutory instruments Regulations

Answer 11

The draft of the legislation is laid before the House of Commons and House of Lords and will take effect unless rejected by either House within 40 days If it doesn't get rejected it becomes law No amendments to the draft can be made

Answer 12

There has to be a positive vote in favour of the legislation in order for it to become law The draft is laid before the House of Commons and House of Laws and will only become law if both houses vote in favour of bringing it into effect No amendments to the draft can be made

Answer 13

A source of secondary legislation enabling government to amend Acts of Parliament (usually in minor ways) through secondary legislation Powers granted to government to amend an Act of Parliament Most often used to allow ministers to make minor amendments to legislation as a consequence of a new Act of Parliament

Answer 14

Yes, if in the court's opinion the legislation goes beyond the scope of the powers granted The courts may also read restrictions into the powers granted in order to ensure that constitutional principles such s the rule of law are complied with

Answer 15

Approves SOME decisions made by the government, either under the royal prerogative or under powers granted to it by statute. Certain decisions and legislation under the royal prerogative or under powers granted by statute need to be approved by the Privy Council. E.g. passing Orders in Council or granting a Royal Charter (which creates a new public institution, university or learned society) Once of great importance, now plays a purely formal role within government Main meetings are only attended by government ministers to gain the monarch's approval for decisions that in practice have already been made elsewhere Appointments to the Privy Council are for life By convention all Cabinet ministers are appointed

Answer 16

Exercised by government ministers Monarch's role is purely formal i.e. approving decisions made by others Examples: Negotiation and ratification of international treaties Deployment of armed forces overseas PM's power to appoint and remove ministers from the government Grant and revocation of passports Grant of pardons to criminally convicted individuals Power to stop criminal proceedings

Answer 17

Exercised by monarch Most are heavily constrained by constitutional conventions Examples: Appointment of Prime Minister Power to dismiss the government Power to prorogue parliament Granting Royal Assent

Answer 18

Legilsative prerogatives: Passing orders in council, a form of legislation enacted by the Privy Council under the royal prerogative Granting royal assent Judicial prerogatives: Granting a pardon for someone convicted of a criminal offence or stopping a prosecution An important judicial function is the judicial committee of the Privy Council which hears appeals from some commonwealth jurisdictions but does NOT hear appeals from UK courts

Answer 19

1. Parliament may regulate the power by laying down a procedure or requirement that must be met in order to exercise the power Example - Constitutional Reform and Governance Act 2010: allows Parliament to control the government's use of the royal prerogative to ratify international treaties. The government is required to lay before Parliament the draft of any international treaty agreed. The government can ratify the treaty only if 21 days have passed and neither the House of Commons nor the House of Lords has voted to state that the treaty should not be ratified. 2. Constituional conventions Examples: Cardinal convention: Monarch must act on the advice of ministers BUT monarch has right to be consulted, to encourage and to warn (occurs through weekly meetings between Monarch and Prime Minster) Employment of armed forces: a decision for the government exercising the royal prerogative BUT whenever possible it is expected that government seeks consent of House of Commons first Appointment of Prime Minister: monarch appoints Prime Minister by royal prerogative BUT under constitutional convention the Prime Minister must be the MP who can command confidence of the Commons e.g. leader of party with majority of MPs in the Commons

Answer 20

To ratify an international treaty (a prerogative power) the government must lay (publish) it in both Houses Government can ratify the treaty if neither House votes against ratification within 21 days If either house votes against the treaty further debate can follow

Answer 21

Monarch must act on the advice of ministers BUT monarch has right to be consulted, to encourage and to warn (occurs through weekly meetings between Monarch and Prime Minster)

Answer 22

Prime Minister remains until confidence in House of Commons is lost Monarch is not involved Parties negotiate who forms next government With agreement, Prime Minister resigns if necessary and Monarch appoints person with confidence of the House of Commons

Answer 23

Key elements: 1. Confidentiality: discussion within government on policy is confidential 2. Unanimity: all ministers must support government policy in Parliament and in public (must resign if not able to) Government ministers are bound by collective ministerial responsibility Collective ministerial responsibility can be set aside by the Prime Minister

Answer 24

The powers granted to a Secretary of State by an Act of Parliament can be exercised by civil servants within the Secretary's department

Answer 25

Hears appeals from the commonwealth nationals or British overseas territories which lack a final court of appeal Appeals are heard by Supreme Court justices who are appointed to the privy council for this purpose

Answer 26

Both hear appeals BUT key difference... Appeals from overseas are heard by the Judicial Committee of the Privy Council Supreme Court deals with matters of UK law only

Answer 27

Ministers are under a duty not to mislead Parliament. If a minister knowing misleads parliament in any way then they are expected to resign Ministers are responsible for their own department and must address concerns and answer questions from MPs about their department. Includes taking responsibility for the actions of their department and personally take the blame

Answer 28

Collective ministerial responsibility Individual ministerial responsibility

Answer 29

Prime Minister's Question Time Select committees: investigate particular issues within government or a particular policy. Question ministers, hear evidence from experts, academics or interested parties and then write a report for government to consider. Government must respond. Occasionally the reports are debated in the Commons.

Answer 30

Two types: 1. Departmental Select Committees: shadow government departments 2. Other select committees: cut across government departments, taking a broader view of government Investigate particular issues within government or a particular policy. Question ministers, hear evidence from experts, academics or interested parties and then write a report for government to consider. Government must respond. Occasionally the reports are debated in the Commons.

Answer 31

No Ministers may only be questioned on matters relating to their department. Certain categories of questions are not allowed.

Answer 32

No Ministers may only be questioned on matters relating to their department. Certain categories of questions are not allowed.

Answer 33

Yes Leader of the opposition is entitled to six questions

Answer 34

When power is transferred from central governemnt to a lower level or local government

Answer 35

A limit on the lawmakign power of the UK Parliament Devolved legislature needs to consent Consent is given via legislative consent motion BUT if the consent is refused, UK Parliament may still legislate BECAUSE of parliamentary sovereignty

Answer 36

Cannot legislate contrary to European Convention on Human Rights Cannot legislate beyond their Legislative competence

Answer 37

Process by which the court hears challenges on the legality of decisions made by public authorities Courts are NOT concerned by the merits of the decision but rather whether the decision is legal e.g. was proper procedure followed

Answer 38

1. Claim must be a public body or public authority (doesn't include employer, charity etc.) If a contract exists between the parties then the dispute between them should be resolved under contract and not JR 2. Application must be made according to the correct procedure: a. JR pre-action protocol: which means sending a letter before making the action outlining what the dispute and issues are and the defendant should respond in 14 days b. Permission stage: claimant applies to the court for permission to continue the claim at a full hearing c. Time limits: JR applications must be brought promptly but within 3 months (court can still refuse claims brought within 3 months if it was not brought promptly) BUT for planning decisions, the period is shorter - 6 weeks d. Procedural exclusivity rule 3. JR decisions must be reviewable (must be a live dispute not a hypothetical dispute) 4. JR can't resolve factual disputes 5. Standing; the claimant must have standing which means that they have a sufficient interest in the case 6. It must be a last resort e.g. if there is a tribunal in which to challenge the decision

Answer 39

Judicial review procedure is only available for public law judicial review claims A judicial review claim can't be brought under the procedures available in private law EXCEPTION: where a case raises issues of both public law and private law, the matter can be resolved in private law taking account. of the public law issues

Answer 40

Judicial review = ssufficient interest test Human rights cases = victim test

Answer 41

1. Illegality 2. Procedural improprity 3. Legitimate expectations 4. Unreasonableness/irrationality

Answer 42

Ultra vires Error of law Unlawful delegation of power Irrelvant considerations Specific legal duty e.g. PSED

Answer 43

Acing outside of the powers given

Answer 44

Mandatory/directory requirements Right to be heard Rule against bias (actual, financial interest, apparent) Duty to consult Duty to give reasons

Answer 45

Right to argue one's case The common law right to be heard guarantees certain procedural protections depending on the situation. If a right is being removed, then the right to be heard can require a hearing If an application case i.e seeking to gain a right or obtain something new, then the right to be heard does not guarantee a hearing

Answer 46

Quashing order: voids original decision Mandatory order: requires authority to act in certain way Prohibiting order: orders authority not to do something Injunction: prevents authority from acting in certain way Declaration: declares the legal position Remedies can be combined Remedies are discretionary, the court may refuse a remedy if it determines that a remedy would not make a difference or that it would cause difficulties to third parties

Answer 47

Government officials are automatically disqualified from making decisions if the official has a financial interest in the decision

Answer 48

Substantive: concerns entitlement to a particular right e.g. entitlement to pension Procedural: concerns how a decision is made

Answer 49

Incorporates European Convention on Human Rights into UK law

Answer 50

Absolute rights: can never be limited Limited rights: can be limited if the ECHR specifies the circumstances under which the right can be limited e.g. sentenced to imprisonment Qualified rights: can be limited by the state to pursue legitimate interests stated in the article e.g. national security

Answer 51

Restrictions on human rights must be necessary to achieve the objective Three questions to ask: 1. Is limitation justified by object of policy and legitimate aim? 2. Is restriction rationally connected to and designed to meet objective? 3. Is interference no more than necessary?

Answer 52

The more political the issues the more likely the courts including the European Court on Human Rights will defer to the political decision makers

Answer 53

When the government limits qualified rights, the court will give discretion to the government if the member states of the ECHR vary in their approach on the issue BUT if the member states take a common approach on the issue, the court will not give discretion to the government and instead will apply the proportionality test

Answer 54

Member states can derogate from some but NOT all of the European Convention on Human Rights articles AND only in certain cases. They may do so only in the event of war or a public emergency threatening the life of the nation AND only to the extent strictly required by the situation

Answer 55

Issued if legislation: 1. Does not comply with convention rights; and 2. Can't be interpreted to make it comply Doesn't invalidate legislation Instead signals Parliament and Government to address the issue

Answer 56

To bring a claim under Section 6 of the Human Rights Act the claimant must satisfy the victim test - only those directly affected by an act or decision of a public authority can challenge it Representative standing: in which a group makes the claim on behalf of an individual is NOT allowed

Answer 57

Courts have the power to award any remedy it considers just and appropriate BUT this is discretionary and so the court does NOT have to award a remedy All JR remedies are available Damages - at discretion of court

Answer 58

When someone becomes genuinely fearful of harm to self or pretty due to disturbance, assault, an affray; or if harm was done or is likely to be done Can take place in public or private In order to arrest for breach of the peace the breach MUST be imminent NOT a criminal offence SO once the culprit has calmed down they can be released BUT could be subject to a binding over order which requires them to maintain the peace and keep good behaviour for a specified period

Answer 59

Notice is required if procession intends to: 1. Show support for or against views or actions 2. Publicise a cause or campaign or 3. Mark or commemorate an event Notice requirements: 1. Be given 6 clear days before procession, if possible OR if not then as soon as practicable 2. Provide to police station in area of procession 3. Provide date, time, route and name/address of an organsiser Does NOT apply to processions that are customarily held e.g. remembrance Sunday parade in Novemeber

Answer 60

Allowed if officer believes: - There may be serious disorder or damage OR - Assembly was designed to intimidate Conditions MUST be: - Proportionate AND - Necessary

Answer 61

Involve 20 or more persons On land normally not open to public Held without permission of occupier or exceeds permission or right of public access and May damage or disrupt the community or significantly damage important land or important buildings Example: assembly that blocks traffic on the road Criminal offence to participate, organise or incite others to take part in a trespassory assembly is a criminal offence

Answer 62

Treaties: provides EU objectives and powers of institutions Regulations; automatically binding and directly applicable member states Directives: implemented through necessary legislation by member states

Answer 63

Supremacy: EU is supreme across all member states so if a provision of domestic law conflicts with EU law then EU law will prevail and domestic courts should give effect to this Direct effect: some EU law can be directly relied on by EU citizens For direct effect, the provision must be: - Clear - Precise - Unconditional

Answer 64

Made EU law a source of UK law Allowed government to implement directives via secondary legislation also done by passing Acts of Parliament Required legislation to be interpreted according to EU law

Answer 65

Transition period - UK remained bound by EU law Dealt with issues due to exit Is supreme and provisions have direct effect

Answer 66

Repealed the 1972 Act BUT remained bound during the transition period Preserved EU law brought in under 1972 Act as retained EU law Retained EU includes: - EU-derived domestic legislation (laws implementing directives) - Direct EU legislation (regulations) - Directly effective EU law Any legislation contrary to withdrawal agreement will be disapplied in favour of the withdrawal agreement

Answer 67

The supremacy of retained EU law is preserved over UK law enacted before the end of the transition periof

Answer 68

Cases decided before end of the transition period regarding EU law Retained EU case law: - Issued by European Court of Justice - Bind all domestic courts (other than Supreme Court) Retained domestic case law: - Treated like ordinary case law

Answer 69

An assembly of TWO OR MORE persons held in a public place which is wholly or partially in the open air

Answer 70

A requirement that must be followed An Act's use of the word MUST indicates that the requirement is mandatory Failure to follow the requirement will invalidate the public authority's decision

Answer 71

The test for irrationality is whether the decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied their mind to the question could have arrived at it

Answer 72

Salisbury Convention: if a bill is implementing a manifesto commitment of the elected party then the House of Lords will grant the bill a second reading and will not otherwise block the bill Suspensory Veto Under Parliament Acts 1911-1949: the Lords can only delay rather than block legislation. If the Lords block legislation passed in the Commons and is then reintroduced and passed in the Commons in the next session and the Lords block the bill again,the bill is sent for Royal Assent. Main condition is that a year needs to have lapsed between the bill being granted a second reading in the first session and being granted a third reading in the second session

Answer 73

Negative resolution procedure Affirmative resolution procedure

Answer 74

Requires that MPs and peers do not refer to cases which are currently before the courts during debates out of concern that what is said in Parliament may affect the outcome of the case This rule means that Parliament ensures it exercises its freedom of speech with respect for the courts and the legal process

Answer 75

Allows Parliament to control the government's use of the royal prerogative to ratify international treaties Governemnt is required to lay before Parliament the draft of any international treaty agreed. The Government can ratify the treaty ONLY if 21 days have passed and neither the Commons nor Lords has voted to state that the treaty should not be ratified IF either House has voted against ratification, the Government can explain why they still want to ratify it. The Commons ONLY has a further 21 days to vote against the treaty if not it can be ratified

Answer 76

Estavlished by Mp who also decides membership Subcommittees of the main Cabinet Usually formed by a combination of Cabinet ministers and junior ministers Allow for matters to be discussed without full Cabinet Decisions have same authority as Cabinet decisions

Answer 77

Forms of legislation Some are made under the royal prerogative and are considered primary legislation BUT most are made under powers granted to the Privy Council by statute so are secondary legislation

Answer 78

Triggered by obtaining consent from 10% of the electorate in a constituency evidenced by them signing a recall petition

Answer 79

Triggered if an MP is suspended for more than 10 days If more than 10% of the electorate in that constituency sign the petition, then a by-election is held

Constitutional Law Flashcards

(127 cards)