Constitutional law questions revision pack Flashcards
(41 cards)
What is a constitution?
Body of rules and principles that governs the relations between state and citizen as well as the operation and powers of government.
Why does the UK have an unwritten constitution?
Written constitutions typically appear after a fundamental political change- e.g. the French Revolution. With the exception of the English civil war this has not occurred in England.
It should be noted that with the addition of the Ministerial code the constitution is not as unwritten as it once was.
What are the sources of the UK’s constitution?
Legislation
Conventions
Judicial precedent - includes common law and judicial review
Fundamental constitutional principles
International law (treaties such as the HRA and ECA)
What are the legal consequences of a lack of written constitution?
There are no formal restraints on the exercise of power- e..g legal sanctions
The ultimate protection of rights lies with parliament rather than the courts
There is no clear distinction between the constitution and other branches of law
What are the practical consequences of an unwritten constitution?
Evolutionary constitution that changes depending on the demands of the day
The constitution is flexible and relatively easy to change
Tomkins describes it as indeterminate (unclear what is fundamental to our constitution) , indistinct (cannot easily separate constitutional law from other law) and unentrenched (Parliament can undo any law and there are no special provisions for changing the constitution)
What are the dangers of an uncodified constitution?
The government can show disregard to the rights of individuals
What are conventions?
Long-established principles and practices followed by the state.
It is not embodied in a document with legal authority
What is the function of conventions?
Conventions ‘fill the gaps’ in our governmental system
Provide a moral framework within which ministers should exercise non-justiciable powers- regulate behaviour
Regulate relationships within the constitution- e.g. ministers, monarch and different branches of government
What are the sources of a convention?
Tradition
Unbroken practice
Lengthy time span
What makes a convention?
Important to distinguish because there are a set of non-legal rules that are inferior to conventions
Could use the Jennning’s test- precedent, do the actors feel bound by the rule?, the constitutional reasoning for the convention
The confusion between what is and isn’t a convention is seen from the convention that the PM asks parliament before any military intervention e.g. Tony Blair asked in 2003. However, Theresa May did not ask Parliament before ordering military strikes- did the convention ever exist?
The historical development of a convention
Often seen as regulatory- regulating the practices of its members. It is also evolutionary
Why are conventions obeyed?
Respect for the constitutional values
The negative consequences of ignoring them- e.g. elections- social and political repercussions
What are the consequences of breaching a convention?
Political sanctions- minister may be forced to resign
Are conventions enforceable in courts? (cases)- justiciability
Conventions are not legally enforceable. However, there is evidence of their recognition.
Canadian patriation case- the supreme court declared that while the federal government was acting in breach of the convention if it proceeds without the consent the provincial governments- as was usual in changes to the constitution- this could not be legally enforced although the courts declared it was ‘unconstitutional in the conventional sense’
Evans v information commissioner where the education convention was recognised as a defence for why Prince Charles’ advocacy letters should not be released to the public.
A-G v Jonathan Cape- Cape wanted to release the diaries of the late Richard Crossman- the AG sought to prevent this with an injunction citing that it was contrary to the convention that the details of cabinet meetings were not published. Although publication was allowed, the courts were allowed to restrict cabinet information received in confidence.
Miller I- held that the sewel convention was not legally enforceable- the claims of the Scottish and NI parliament’s that they should be granted a vote on triggering article 50 was not sustained.
indirectly enforced but not directly
What is significant about the Sewel convention?
It has been put into a statute- the Scotland Act 1998. Courts focused on the phrasing of the statute ‘not normally’ and ‘recognised’- show that Parliament did not intend for it to be legally enforceable
The purpose was to entrench the convention
Should conventions be legally enforceable (argument for)?
Allan argues that conventions are frequently recognised by courts and to recognise a convention is in practice to enforce it. e.g. in AG v Cape the Lord recognised that in a breach of confidence a legal remedy can be used to protect cabinet responsibility.
Ministers would be accountable to the courts- formal repercussions. It would also be useful to collate all the codes on a particular topic in one document.
Remove ambiguity and reinforce clarity- e.g. convention on asking parliament before military intervention
Why should conventions not be enforced?
Removes flexibility
Enforced by unelected judges
Many conventions are not of the nature that they require judicial remedy
What is Dicey’s distinction between laws and conventions?
Conventions are based upon the constitutional morality of the day
Laws are enforced by courts while conventions are enforced by political pressure
Laws are a systematic set of rules that support each other while constitutional conventions stand alone.
Barber says that there is no clear distinction- spectrum- e..g it depends on the degree of formalisation- conventions can crystallise into laws
Ministerial code- formalised in a document
What is Barber’s distinction between indirect and direct enforcement of conventions?
Barber suggests that courts indirectly enforce conventions when they recognise them for justification, context etc.
Indirect- use a convention and apply a pre-existing statute
Direct- use conventions to generate a legal obligation
How has the constitution recently changed?
More of the constitution is written down than before. Examples include the HRA 1998, constitutional reform act, constitutional reform and government act, devolution
What is a political constitution?
The political system is responsible for preventing abuses of power- provides checks and balances
What is a legal constitution?
Contain some form of higher law that is enforceable through the courts
How is our constitution political?
There are a number of political checks and balances. These include elections (governments know that they will only be re-elected , judicial review
Parliamentary scrutiny- PMQ’s where the PM is questioned by the House of Commons. Select committees- minister in charge of a department is questioned, debates, HofL also provides scrutiny
Conventions- they ‘fill in the gaps’- e..g ministerial responsibility
Press- more open government- although the partisan nature of the press has damaged this
What are examples of the political constitution in action?
The 2009 expenses scandal
