Constitutional Law Flashcards
(114 cards)
1
Q
What are the four ways to classify constitutions?
A
1) Written/Unwritten, 2) Republican/Monarchical, 3) Federal/Unitary, 4) Rigid/Flexible
2
Q
How is the UK constitution classified?
A
Unwritten, Monarchical, Unitary, and Flexible
3
Q
What are the three core constitutional principles of the UK?
A
1) The Rule of Law, 2) The Separation of Powers, 3) The Sovereignty of Parliament
4
Q
What are the four main sources of the UK constitution?
A
1) Acts of Parliament, 2) Case Law (common law and judicial review), 3) Royal Prerogative, 4) Constitutional Conventions
5
Q
Name 5 important constitutional statutes
A
1) Magna Carta 1215, 2) Bill of Rights 1689, 3) Human Rights Act 1998, 4) Constitutional Reform Act 2005, 5) European Union (Withdrawal) Act 2018
6
Q
What is the royal prerogative?
A
Dicey’s definition: “residue of discretionary authority legally left in hands of Crown” - powers that remain with the Crown from when monarchs had absolute authority, now exercised by PM and ministers
7
Q
What are constitutional conventions?
A
Rules of constitutional behavior considered binding but not enforced by courts - non-legal source of the constitution
8
Q
What is Dicey’s definition of Parliamentary Sovereignty?
A
Parliament has “right to make or unmake any law whatever” and no person or body has right to override or set aside Parliament’s legislation
9
Q
What are the three key elements of Parliamentary Sovereignty?
A
1) Parliament is supreme law-making body, 2) No Parliament can bind successor or be bound by predecessor, 3) No other body can question validity of Acts of Parliament
10
Q
What is the ‘Enrolled Act’ Rule?
A
Courts won’t question validity of Acts based on procedural irregularities - once Act entered on Parliamentary roll, courts won’t hold it void (Edinburgh & Dalkeith Railway, Pickin v British Railways Board)
11
Q
What is implied repeal?
A
When a later Act contradicts an earlier Act without expressly repealing it - the later Act impliedly repeals the earlier Act to the extent of inconsistency (Ellen Street Estates v Minister of Health)
12
Q
What are the Parliament Acts 1911 and 1949?
A
Acts ensuring Commons’ will ultimately prevails over Lords - permit Royal Assent without Lords’ consent for money bills (after one month) and other public bills (if rejected in two successive sessions with one year between readings)
13
Q
What are the two key procedures for delegated legislation?
A
1) Affirmative resolution - requires positive approval, 2) Negative resolution - stands unless rejected within specified period
14
Q
What are constitutional statutes according to Thoburn v Sunderland?
A
Statutes that either: 1) Condition legal relationship between citizen and state in general manner, or 2) Change scope of fundamental constitutional rights. These require express words to repeal (cannot be impliedly repealed)
15
Q
Give 3 examples of constitutional statutes
A
1) Human Rights Act 1998, 2) Scotland Act 1998, 3) European Communities Act 1972 (when in force)
16
Q
What are Henry VIII powers?
A
Provisions allowing ministers to amend/repeal primary legislation by delegated legislation - controversial as contrary to parliamentary sovereignty
17
Q
What is the Sewel Convention?
A
Westminster won’t normally legislate on devolved matters without consent of the relevant devolved legislature
18
Q
What did the Scotland Act 2016 establish?
A
1) Scottish Parliament/Government are permanent, 2) Requires referendum for abolition, 3) Codifies Sewel Convention
19
Q
What does HRA Section 3 require?
A
Courts must interpret legislation compatibly with Convention rights “so far as possible”
20
Q
What is a declaration of incompatibility under HRA Section 4?
A
Declaration made when compatible interpretation is impossible - creates political not legal obligation to amend legislation
21
Q
What was established in Attorney General v De Keyser’s Royal Hotel [1920]?
A
When statute covers same ground as prerogative, statute prevails
22
Q
What principle was established in R (Miller) v Secretary of State for Exiting the European Union?
A
Prerogative cannot be used to change domestic law or nullify statutory rights
23
Q
What was decided in R v Chaytor [2010]?
A
Supreme Court held parliamentary privilege doesn’t cover expenses fraud - privilege is limited to core parliamentary functions
24
Q
A
25
What four countries make up the United Kingdom?
England, Wales, Scotland, Northern Ireland
## Footnote
The UK is officially known as the United Kingdom of Great Britain and Northern Ireland.
26
What significant event occurred in Scotland in 1707?
The Act of Union abolished separate Parliaments of England/Wales and Scotland, creating a single Parliament of Great Britain
## Footnote
Scotland maintained distinct systems in key areas despite this union.
27
When was Wales effectively incorporated into England?
Through the Laws in Wales Acts 1535-1542
## Footnote
These Acts are also known as the Acts of Union.
28
What was the outcome of the Act of Union 1800?
It united the Kingdoms of Great Britain and Ireland and abolished the Irish Parliament
## Footnote
This led to significant changes in governance in Ireland.
29
What is the main characteristic of a unitary state like the UK?
Sovereignty resides with a central Parliament that can legislate for all regions
## Footnote
This contrasts with a federal state where powers are constitutionally divided.
30
What is the Sewel Convention?
Westminster will not normally legislate on devolved matters without the consent of the Scottish Parliament
## Footnote
It has statutory recognition through the Scotland Act 2016.
31
What is the structure of the Scottish Parliament?
129 members: 73 constituency members and 56 regional members
## Footnote
Elections are normally held every five years.
32
What matters can the Scottish Parliament legislate on?
All matters except those expressly reserved to Westminster
## Footnote
Devolved matters include health, education, and local government.
33
Who heads the Scottish Government?
The First Minister
## Footnote
The First Minister is typically the leader of the largest party in the Scottish Parliament.
34
What is the role of the Joint Ministerial Committee?
To provide central coordination of the relationship between UK and devolved governments
## Footnote
It was created by a memorandum of understanding in 1999.
35
What is the significance of the Good Friday Agreement?
It established a power-sharing government in Northern Ireland and outlined the conditions for its governance
## Footnote
Signed in April 1998, it is crucial for peace in Northern Ireland.
36
What is the traditional definition of the rule of law according to AV Dicey?
No man is punishable except for a distinct breach of law established in the ordinary legal manner
## Footnote
This emphasizes the supremacy of regular law over arbitrary power.
37
What are the key principles of the rule of law?
1. Legal certainty
2. Personal liberty
3. Equality before the law
4. Fair adjudicative procedures
## Footnote
These principles ensure that laws are applied fairly and justly.
38
What does the principle of separation of powers entail?
No overlap between branches of government and a system of checks and balances
## Footnote
This doctrine aims to prevent the concentration of power.
39
How does the separation of powers in the UK differ from that in the USA?
The UK has no formal separation of powers; it relies on an unwritten constitution and informal checks
## Footnote
In contrast, the USA has a defined constitutional framework for separation of powers.
40
What is the purpose of judicial review?
To ensure that government actions are lawful and adhere to the rule of law
## Footnote
It holds the government accountable and prevents arbitrary power.
41
Fill in the blank: Legitimacy addresses how political power must derive from _______.
[valid sources of authority]
42
True or False: The Scottish Parliament can legislate on matters reserved to Westminster.
False
43
What are 'excepted matters' in the context of the Northern Ireland Assembly?
Matters that remain with the UK Government indefinitely, such as defense and foreign policy
## Footnote
These matters cannot be legislated on by the Northern Ireland Assembly.
44
What is the role of the Supreme Court in relation to devolved legislatures?
To determine whether legislation passed by devolved legislatures is within their competence
## Footnote
This includes references from law officers and appeals from higher courts.
45
What does the term 'reserved powers' mean in the context of the Scottish Parliament?
Powers that are not devolved and remain with Westminster
## Footnote
Reserved matters include foreign policy and defense.
46
What is the significance of the Scotland Act 1998?
It established the Scottish Parliament and defined its powers
## Footnote
This Act marked the beginning of devolution in Scotland.
47
What is the impact of the Welsh Language Act 1967?
It permitted the use of Welsh in legal proceedings
## Footnote
This Act was a significant step in recognizing the Welsh language.
48
What does the principle of legality state regarding parliamentary sovereignty?
Parliament can legislate contrary to fundamental rights but must do so explicitly
## Footnote
This principle highlights the tension between parliamentary sovereignty and the rule of law.
49
Fill in the blank: The Northern Ireland Executive is designed to ensure _______ between communities.
[power-sharing]
50
What are the three strands of the Good Friday Agreement?
1. Democratically elected assembly with power-sharing executive
2. North/South Ministerial Council
3. British-Irish Council
## Footnote
These strands facilitate cooperation and governance in Northern Ireland.
51
What is the role of the Counsel General in the Welsh Government?
Chief legal adviser
## Footnote
The Counsel General plays a crucial role in providing legal support to the Welsh Government.
52
What is the maximum number of members in the Northern Ireland Assembly?
90 members (MLAs)
## Footnote
Members are elected by single transferable vote.
53
What landmark case established judicial review?
Marbury v Madison (1803)
## Footnote
This case established the principle that courts can strike down unconstitutional acts of the legislature or executive.
54
What is a key feature of the UK Constitution regarding the separation of powers?
No formal separation of powers exists in the UK
## Footnote
The UK has an unwritten constitution that developed informally.
55
What are the three branches of the UK state?
* Executive: Queen, Prime Minister, ministers, civil service, police, armed forces
* Legislature: Queen, House of Lords, House of Commons
* Judiciary: Queen, legally qualified judges, magistrates
56
What is the role of the Queen in the UK branches of government?
Largely ceremonial
## Footnote
The Queen's role is primarily symbolic in all three branches.
57
What does Lord Hailsham describe the UK as in 1976?
An 'elective dictatorship'
## Footnote
This describes the concentration of power in the government due to the first-past-the-post electoral system.
58
What act limited the number of ministers who may sit in the House of Commons?
House of Commons Disqualification Act 1975
## Footnote
This act restricts the number of government ministers who can be Members of Parliament.
59
What is the purpose of the Fixed-term Parliaments Act 2011?
Had a similar effect to the confidence convention
## Footnote
This act aimed to provide stability by setting fixed dates for general elections.
60
What are some methods of parliamentary scrutiny of the executive?
* Questions to ministers
* Debates
* General committees
* Select committees
* Parliamentary and Health Service Ombudsman
61
What does the Constitutional Reform and Governance Act 2010 enable?
House of Commons to block treaty ratification
## Footnote
This act gives Parliament a role in treaty processes.
62
What is a key principle of judicial independence in the UK?
Government duty to uphold judicial independence
## Footnote
Enshrined in the Constitutional Reform Act 2005.
63
How is judicial independence secured from the executive?
* Appointment via independent Judicial Appointments Commission
* Security of tenure
* Salaries determined independently
* Contempt of court laws
64
What significant change did the Constitutional Reform Act 2005 make regarding the Lord Chancellor?
Lord Chief Justice is now head of the judiciary
## Footnote
The Lord Chancellor remains a cabinet member but is no longer the head of the judiciary.
65
What does judicial review ensure regarding executive actions?
Executive acts within powers and follows correct procedures
## Footnote
This is a critical check on executive authority.
66
What areas are considered non-justiciable in judicial review?
* Foreign relations
* National security
* Defense
67
What does the Sub-judice rule entail?
Parliament avoids discussing ongoing cases
## Footnote
This rule maintains the integrity of the judicial process.
68
What is the relationship between the legislature and judiciary in terms of criticism?
Conventions prevent MP criticism of judges and judges engaging in politics
## Footnote
This maintains the separation between the two branches.
69
What is the role of the Supreme Court after the Constitutional Reform Act 2005?
Created to hear appeals on devolution issues
## Footnote
It replaced the House of Lords as the highest court.
70
What happens if a bill passed by the Senedd Cymru is challenged?
The Attorney General can refer it to the Supreme Court
## Footnote
This is to determine its legislative competence.
71
What is the Sewel Convention?
Westminster will not normally legislate on devolved matters without consent
## Footnote
This is a political convention rather than a legal requirement.
72
What is the significance of the Northern Ireland Act 1998 regarding the Executive?
First Minister and deputy First Minister must be in place for the Executive to function
## Footnote
Their absence affects the Assembly's ability to pass certain types of legislation.
73
What is the correct position regarding the Scottish Parliament's ability to legislate for a referendum on independence?
Cannot legislate for a referendum because constitutional matters are reserved to Westminster
## Footnote
Any change to Scotland's constitutional status would require UK legislation.
74
What is the doctrine of parliamentary sovereignty?
UK Parliament can legislate for any part of the UK on any matter
## Footnote
This principle underpins the UK's constitutional framework.
75
What is the effect of the Wales Act 2017 on Welsh legislation?
Welsh legislation prevails if it relates to a devolved matter
## Footnote
The courts assess whether the legislation is within devolved powers.
76
What is the impact of the absence of a functioning Executive on the Northern Ireland Assembly?
Major decisions and legislation are difficult to progress without a functioning Executive.
77
Is the Secretary of State obligated to call immediate elections after the absence of a functioning Executive?
No, the Secretary of State has the power but is not obligated to do so.
78
What does Schedule 5 of the Scotland Act 1998 reserve to Westminster?
Constitutional matters, including 'the Union of the Kingdoms of Scotland and England.'
79
Can the Scottish Parliament legislate for a binding independence referendum?
No, it does not have the power to legislate for a binding independence referendum.
80
What was confirmed by the Supreme Court in the Reference by the Lord Advocate [2022] UKSC 31 case?
The Scottish Parliament cannot legislate for a referendum on Scottish independence.
81
What must courts first determine when examining potential conflicts between Senedd and UK Parliament legislation?
Whether the Senedd legislation relates to a devolved matter and is within competence.
82
What happens if Senedd legislation conflicts with a UK statute intended to apply to Wales?
The Senedd legislation is valid unless it conflicts with the UK statute.
83
What does the Government of Wales Act 2006 establish regarding Senedd legislation?
The Senedd can legislate on devolved matters, but Westminster retains the ability to legislate for Wales.
84
Is immigration a reserved or devolved matter under Schedule 5 of the Scotland Act 1998?
Reserved matter.
85
What principle does the rule of law uphold regarding detention without trial following a terrorist attack?
No one should be detained without trial.
86
What might the courts issue if they found that detention violated Article 5 ECHR?
A declaration of incompatibility under s4 of the Human Rights Act 1998.
87
What principle would likely form the basis for challenging regulations that arbitrarily restrict prisoners' rights?
The rule of law, as arbitrary exercise of power violates this principle.
88
What does the legislation that retroactively criminalizes financial transactions primarily violate?
The principle that the law must be accessible, intelligible, and predictable.
89
What significant changes did the Constitutional Reform Act 2005 introduce?
Created the Supreme Court separate from the House of Lords and transferred the Lord Chancellor's judicial functions.
90
Can the exercise of royal prerogative powers be subject to judicial review?
Yes, especially if it affects citizens' rights.
91
What is the judicial approach likely to be regarding the Foreign Secretary's decision not to recognize a new foreign government?
Considered a matter of 'high policy' that is non-justiciable.
92
What principle formed the basis of the Supreme Court's decision in R (UNISON) v Lord Chancellor [2017]?
The rule of law principle of access to justice.
93
What would the courts likely interpret regarding HMRC's power to enter and search without a warrant?
They would likely interpret the provision narrowly, preserving the ability to review manifest errors.
94
What is the principle of procedural exclusivity and which case established it?
The principle that in a 'public law case', judicial review procedure should normally be followed rather than ordinary private law procedure. Established in O'Reilly v Mackman [1983].
95
What is a 'collateral challenge' and in which types of proceedings can it occur?
A public law issue raised as a defense in: Private law proceedings (Wandsworth LBC v Winder [1985]) and Criminal cases (Boddington v British Transport Police [1998])
95
What is the two-part test from ex p Datafin for determining if a body is amenable to judicial review?
Source of power test: Is the body set up under statute/delegated legislation? 2. Nature of power test: Is the body exercising public law functions?
96
What is the statutory test for standing in judicial review claims?
"Sufficient interest in the matter to which a claim relates" under s.31(3) Senior Courts Act 1981.
97
What is the two-stage process for determining standing established in the National Federation case?
1. Permission stage: Claimant granted standing if claim not obviously unmeritorious 2. Substantive hearing: Court re-examines standing considering merits
98
What is the general time limit for judicial review claims under CPR 54.5?
Promptly and in any case within three months after grounds first arose.
99
What are the specific shorter time limits for certain types of cases?
Planning cases: 6 weeks (since July 2013). Public procurement cases: 30 days (since July 2013)
100
Can courts extend time limits and what factors do they consider?
Yes, courts have discretion but only for good reasons. Jackson case factors: Awaiting Secretary of State's consideration, difficulties obtaining legal aid, difficulties obtaining copyright permissions. However, delay in obtaining legal aid is no longer a complete answer.
101
What's the key difference between CPR time limits and statutory time limits?
Courts have discretion to extend CPR time limits for good reasons, but NO discretion to extend statutory time limits (Smith v East Elloe RDC [1956]).
102
What did Anisminic establish about full ouster clauses?
If a public body steps outside its permitted area, its decisions are "nullities" and not covered by ouster clauses. Ouster clauses only protect valid decisions.
103
What's the difference between full and partial ouster clauses?
Full ouster clauses: purport to allow no right of challenge at all. Partial ouster clauses: provide some opportunity for challenge but with restrictions (e.g., time limits)
104
How do statutory remedies affect judicial review jurisdiction?
The provision of an adequate statutory remedy (e.g., right of appeal) may impliedly oust judicial review jurisdiction (ex p Goldstraw [1983]).
105
What are the key steps in the pre-action protocol?
Send letter before claim to decision-maker. Allow 14 days for reconsideration. If response unsatisfactory, formal proceedings begin. Not required for urgent matters or shorter time limits.
106
What does the court consider at the permission stage?
Whether claimant has standing. Whether claim was begun in sufficient time. Whether claim has merit.
107
When must permission be refused under s.31(3C)?
When the conduct complained of would be "highly likely not to have resulted in a substantially different outcome" for the claimant (unless exceptional public interest).
108
What does a quashing order do?
Quashes" (nullifies) an unlawful decision. Court doesn't substitute its own decision - matter is remitted to decision-maker to reconsider.
109
What is the purpose of a prohibiting order and when is it used?
Orders a public body to refrain from acting beyond its powers. Relatively rare as injunctions are often preferred. Example: Liverpool Taxi Fleet case.
110
When would you seek a mandatory order?
To enforce performance of public duties or compel a body to consider an application it has refused to consider.
111
What advantage does an injunction have over a prohibiting order?
Possible to obtain interim (temporary) injunctions, e.g., preventing deportation pending judicial review
112
Under what conditions are damages available in judicial review?
Under s.31(4) Senior Courts Act 1981, only where: 1. Claimant seeks other relief AND 2. Damages could have been awarded in a civil claim. Requires private law cause of action or breach of Convention right.
113
