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Constitutional Law Flashcards

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1
Q

Features of the British constitution

A

Unwritten (about type of docs not existence)
Flexible (no special procedure to amend)
Unitary (rather than federal)
Monarchical
Subordinate to leg (rather than con supreme)
Separation of powers

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2
Q

What does the rule of law mean

A

No arbitrary discretion
Only a court can find someone guilty
Everyone is equally subject to the law

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3
Q

What are constitutional conventions

A

Binding political rules and practices

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4
Q

What if a convention is breached

A

No remedy in court

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5
Q

Can the court rely on conventions

A

Miller 2017- can recognise them but cannot comment on scope or operation
Can take them into consideration when interpreting statutes and commonwealth constitutions
Can give opinion on existence and extent

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6
Q

Sources governing parliamentary procedure

A

Ancient usage ( rules contained in orders and resolutions)
Standing orders
Rulings of speaker of House of Commons (leader of House of Lords makes rulings)

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7
Q

How is EU law incorporated into U.K. law

A

S2 and 3 European communities act 1972

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8
Q

Is the European communities act still in force

A

No it was repealed by withdrawal act

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9
Q

What does s2 HRA require

A

Take ECHR cases into consideration in a human rights case

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10
Q

Examples of constitutional conventions

A

PM leader of main party in commons
Judges avoid anything that could prevent them from sitting on future cases
Hung parliament- if incumbent PM cannot form government then opposite leader becomes PM
Cabinet responsibility- members of the cabinet don’t dissent on government policy once a decision is taken and should resign if unable to support it

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11
Q

Who is the head of state of GB and NI

A

The queen

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12
Q

What is the main source of royal power

A

Royal prerogative, a branch of common law

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13
Q

What is a constitutional monarchy

A

Monarch exercised their powers as part of a parliamentary system of government

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14
Q

How to call a general election

A

PM asks monarch to dissolve parliament and authorise a general election.
She does this by royal proclamation via the privy council

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15
Q

How often are general elections

A

5 years - parliament act 1911 and fixed term parliament act 2011

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16
Q

Can a PM change the date of a general election

A

Only by two months by order

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17
Q

How can a general election be triggered early

A

A vote of no confidence and no alternative government can be formed

Motion for early GE agreed by 2/3 of house or no division

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18
Q

Powers of monarchy

A 
Appointment of ministers and diplomats 
Foreign affairs 
Laws
Parliament 
Elections 
War/peace
Sign state papers 
Grant honours
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19
Q

Monarchs privileges and immunities

A

Never dies- successor can act immediately
Never an infant - cannot question decisions on basis monarch is under 18
Inviolable - cannot be arrested, detained or imprisoned
Can do no wrong - cannot be held legally accountable

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20
Q

How is the monarchy funded

A

The sovereign grant which is approved by parliament (government funds)

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21
Q

Is there a limit on number of ministers in commons

A

Maximum of 95 ministers in commons

House of Commons (disqualification) act 1975

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22
Q

How to dismiss a judge

A

Permission of both Houses of Parliament is needed in the form of a petition to the monarch

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23
Q

What is a Henry VIII clause

A

Allows primary legislation to be amended using secondary legislation

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24
Q

Is there any scrutiny of amendments made using Henry VIII clauses

A

Not if minister thinks they have the expertise necessary to make amendments without scrutiny

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25
What changes to separation of powers did the constitutional reform act 2005 make
Created Supreme Court Created judicial appointments committee Created judicial appointments and conduct ombudsman Created duty on ministers to uphold judicial independence Transferred judicial functions of lord chancellor to lord Chief Justice who represents views of judiciary to exec and training, guidance and deployment of judges Lord chancellor now member of H of C and Head of MOJ Lord chancellor parliamentary functions now carried out by speaker of H of L
26
What does Miller 2017 says about royal prerogative
Cannot enter into or withdraw from treaties using royal prerogative alone (need Act of Parliament) if it will: Change domestic law Make a major change to U.K. constitutional arrangements Alter a source of domestic rights
27
Can prerogative powers be curtailed
Yes can be displaced by statute either through express words of necessary implication Ministers must exercise prerogative power consistent with common law and statute
28
Can prerogative legislation and prerogative acts be reviewed by JR
Yes - GCHQ case | Except: honours, dissolution of parliament, making of treaties, appointment of ministers
29
Where do the prime ministers powers come from
Statute and royal prerogative
30
What does the exec include
Monarch, PM, S of S, cabinet, Ministers, departments, non-dept public bodies, devolved administrations, local authorities, police, army
31
Who selects and appoints the members of the cabinet
PM selects them and Monarch appoints them
32
Who manages civil service
PM has statutory duty - RP doesn’t apply here S of S lead the depts
33
Does the monarch attend cabinet meetings
No the PM attends on her behalf but she has a right to be fully informed
34
What are non- dept public bodies
Public bodies that work independently of ministers
35
How much control do ministers have over which departments exist
Public Bodies Act 2011- ministers can abolish or reform public bodies to increase accountability and costs
36
What is the Crichel Down Principle
Each minister must answer to parliament for all that is done by their department. Must defend civil servants in that department and take responsibility for their errors unless relating to important policy or serious individual rights. Promise corrective action. No need to endorse reprehensible behaviour of servants if minister had no previous knowledge
37
Which Acts devolved power to Scotland
Scotland Act 1998 and 2012
38
What two things did the Scotland Act 2016 establish
That the Scottish gov and parliament would not be removed without a referendum Recognised the Sewel Convention
39
What is the Sewel Convention
U.K. parliament won’t legislate on devolved matters without consent of Scottish parliament but retain sovereignty to do so
40
Do the devolved administrations have to legislate in accordance with EU law
The withdrawal act removed this requirement
41
Acts establishing and suspending NI Assembly and gov
NI Act 1998 and 2000
42
Which Acts devolved power to Wales and what did they establish
Government of Wales Act 1998, 2006 and 2014 Established National Assembly for Wales Can make laws called measures of the National Assembly for Wales
43
What change did the Wales act 2017 make
Moved from a conferred matters model to a reserved matters model
44
Is devolved legislation lesser or able to be invalidated
It is subordinate because it’s validity depends on devolution act Can be set aside by courts or overridden by a U.K. parliament act
45
What if a devolved administration legislates outside of the competence
The law would be invalid
46
What if it is not clear whether a law is within devolved competence
Interpreted in favour of validity
47
What do you call a parliament with two chambers
Bicameral
48
Can hereditary peers be elected to commons
Only if they disclaim their title for life under Peerage Act 1963
49
What is the Salisbury Doctrine
Lords won’t reject a gov bill at second or third reading if it is based on an electoral mandate
50
Can a lord be expelled
Yes lords can expel lords for any reason and can declare the seat of disqualified members vacant
51
Which house can initiate financial legislation
Only the commons
52
What is a public bill
A bill that makes or changes law affecting people’s rights or obligations generally in all of part of U.K.
53
What is a private bill
Makes or changes the rights and obligations of individuals and corporations
54
What is a hybrid bill
Concerns the general law and the rights and obligations of individuals and cooperations
55
Who is on a select committee
MPs in proportion to their seats
56
How to complain to ombudsman
Through MP. If you complain straight to the ombudsman they will send it back to your MP who will decide whether to refer it
57
Who does the ombudsman report to
Select committee on public administration
58
What remedies can the ombudsman advise
Compensation Change of decision or procedure Apologise
59
Can the ombudsman enforce remedies
No
60
What is a programme motion
Sets out the timetable for the Bill
61
What is a programme order
Puts the timetable for the Bill into effect
62
What is division
Speaker stops a debate and tells the house to vote
63
What is a closure motion
MP asks speaker to use division - need support of 100 MPs
64
Do SI need to go via parliament
Only some for; Info only Negative resolution procedure Affirmative resolution procedure
65
What is the negative resolution proceedure
A motion of prayer of annulment by either house to approve SI
66
What is a affirmative resolution proceedure
Parliament approval needed for SI to take effect
67
Can a Bill become an Act without Lords approval
Parliament acts 1911 and 2011 Yes in two cases: A monetary bill that lords fail to pass within one months of it being certified as a money bill Or Lords refuse in two successive sessions to pass a bill which has been passed by the commons in those same sessions and 1 year has passed between second reading in first session and third reading in second session (commons) (Doesn’t need to be same parliament)
68
Exception to parliament acts 1911 and 2011
A bill to extent life of parliament beyond 5 years
69
Two categories of EU retained law
Preserved legislation | Converted legislation
70
What is the Enrolled Bill rule
Once a bill is an act the court cannot consider the way it was introduced or progressed through parliament or whether parliament was mislead by fraud
71
What is implied repeal
Common law rule that where statutes are inconsistent the earliest statute is impliedly repealed by later statute
72
Can parliament enact that there can be no implied repeal
No but an exception is constitutional statutes which cannot be impliedly repealed
73
What is an entrenched clause
A clause requiring a proceedure before the act can be amended or repealed eg a referendum
74
What is a prospective formula
Seeks to protect a statute from amendment or repeal by saying it prevails over future statutes which should be interpreted subject to this act
75
S3 HRA 1998
Court must interpret statutes in accordance with convention rights as far as possible
76
What did Factortame No 1 1990 decide regarding parliamentary sovereignty
Substantive community rights prevail over express terms of domestic law passed after the 1972 Act came into force
77
What does s5 withdrawal act say regarding supremacy of EU law
EU law no longer supreme so domestic acts for after exit can impliedly repeal retained EU law
78
What does s6 withdrawal act say about EU law supremacy
EU supremacy still applies where trained EU law and domestic law pre exit conflict
79
What are private member bills
Bills that don’t form part of the govs legislative plan and are sponsored by individual members of the commons or lords
80
How are private member bills introduced
Ballot and ten minute rule or notice then presentation
81
Procedural requirements for a private members bill
Same as for public bill
82
Differences in the passage of a private members bill compared to a public bill
Lords can veto private bill No report stage in Lords for private bills Private bills not debated at second reading unless objections to it are raised
83
What are the two committee options that a private members bill might be sent to
Opposed bill committee of unopposed bill committee
84
What does s6 withdrawal act say about relevance of ECJ after exit
No longer binding Cannot refer a question to ECJ Can take ECJ decisions into consideration when relevant
85
What are general principles
Unwritten law stated by court to fill gaps
86
What does the withdrawal act say about general principles
No action for breach of general principles after exit Cannot disapply domestic leg for not complying with principles Retained EU law should be interpreted in accordance with retained principles
87
Are human rights part of EU law
Yes according to Article 6 TEU
88
6 sections of EU Charter of Fundamental Rights
Dignity, freedoms, equality, solidarity, citizens rights, justice
89
Are EU Charter rights justiciable in the U.K.
No due to protocol 30
90
Regulations - applicability
General application Binding in entirety Directly applicable in all MS
91
Decisions - applicability
Binding in their entirety upon those to whom they are addressed
92
Directives - applicability
Binding as to the result to be achieved upon each MS to which it is addressed but leaves it to national authorities the choice of form and methods. Must implement within time limit
93
Do directives have direct effect
Van Duyn - MS courts are under an obligation to protect the rights the directive confers on the individual.
94
Do directives have horizontal or vertical effect
They cannot be replied upon against individuals- only against MS They don’t impose obligations on individuals- only MS and organisations subject to authority or control of state or special powers beyond those of normal individuals ( foster v British Gas)
95
Francovich / Hadley Lomas Compensation for : Breach of EU law and loss suffered as a result Or Failure to transpose directive correctly
MS must make good damage to individuals due to breach of community law to which they are responsible if: 1. Directive result grants rights to individuals 2. Those rights can be identified by the directive 3. Breach must be sufficiently serious 4. Causal link between loss and breach
96
Will there be a right to claim damages against the state for breach of EU law after brexit
No withdrawal act removed this

Con And Admin Law (6 decks)

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