LS5: UK Constitution Flashcards
What is a constitution?
A set of rules and guiding principles required in complex modern societies, balancing the nation’s collective interests and every individual’s liberties.
Why has the UK never had a written consitution?
Written constitutions are often created following moments of particular political upheaval (e.g. US War of Independence), but the UK has never had such a revolutionary moment. It has been mostly politically stable since the Bill of Rights 1689.
The UK has an unwritten and uncodified constitution.
What does codified mean?
Arrange laws into systematic code, e.g. codified constitution.
What is entrenchment and why does it not apply to the UK?
Entrenchment is when special procedures must be carried out to change a law in the constitution. E.g. US requires two-thirds vote in Congress and three quarters vote by the state.
The UK doesn’t need to go through entrenchment, any significant consitutional changes can be made with relative ease. They just need Parliament to vote a majority.
What are some recognised categories of sources of the UK constitution?
Statutes, case law, prerogative powers, consitutional conventions, international law
Where can the UK’s consitution be found in Acts of Parliament?
Magna Carta 1215
Bill of Rights 1689
Act of Settlement 1700
Act of Union 1707
Parliament Acts 1911 and 1949
Human Rights Act 1998
Scotland Act 1998
Government of Wales Acts 1998 and 2006/Wales Act 2017
Constitutional Reform Act 2005
Where can the UK’s consitution be found in case law?
Through judicial review and through common law (e.g. not only HRA 1998 prohibits evidence obtained by torture, case law does too)
What is the Royal Prerogative?
The Royal Prerogative or ‘prerogative powers’ are the residual powers of the Crown.
Over time, exercising these prerogative powers has transferred from the monarch to the Ministers of the Crown (government).
What are some key prerogative powers?
Declaring war
Making treaties
Deploying the armed forces
Granting pardons
Can new prerogative powers be made?
No, prerogative powers are residual, so no new powers can be created.
What are consitutional conventions?
Non-legal rules of the convention. They most often have political consequences if they are not adhered to.
What are Sir Ivor Jennings’ three factors to help establish if there is a convention?
- There is practice amongst politicians
- Those who practice the convention see themselves as bound by the convention.
- They believe that there is a good reason for the convention to exist.
What does Dicey suggest would happen if a convention is broken?
1) It would bring the government in conflict with the law.
2) Would lead to the ultimate supremacy of the electorate
What is international law?
The system of implicit and explicit agreements that bind together nation states in adherence to recognised values and standards.
What are key sources of international law in the UK?
Treaties (e.g. ECHR) and customary international law
What is a monist state?
Where international law is automatically recognised as binding in domestic law, e.g. France, Germany.
What is a dualist state?
Where international law does not form part of the law unless and until it is incorporated into the domestic law, e.g. via an Act of Parliament in the UK.
What are the three key principles of the UK consitution?
- Parliamentary sovereignty
- The rule of law
- Separation of powers
What is parliamentary sovereignty?
Parliament have supreme power to change the law as it sees fit.
What are the three key elements to Dicey’s principle of parliamentary sovereignty?
(1) Parliament is free to legislate on any matter which it chooses. It has unlimited legislative competence.
(2) No institution has the power to invalidate legislation made by Parliament.
(3) Parliament cannot bind its successors: each Parliament for the time being is sovereign and may repeal the legislation of a previous Parliament but cannot bind a future Parliament.
What is the ‘enrolled Act’ rule?
The courts will only rule on whether or not the Act has been properly ‘signed off’ by the Clerk of Parliament, i.e. passed through HoC and HoL and had Royal Assent.
Can Parliament bind its successors?
No, Parliament cannot bind successive Parliaments.
What is express repeal?
When a new Act of Parliament has a section listing Acts which it is repealing.
What is (the doctrine of) implied appeal?
When the new Act of Parliament is followed, because Parliament didn’t make its intentions clear when an earlier statute is contradicted. Courts call this the doctrine of implied appeal.
What is the ‘manner and form’ theory?
Sir Ivor Jennings had a different view to Dicey and believed that Parliament could bind its successors, but only as to the manner and form of the legislation. E.g. changing the procedure to amend or repeal certain types of legislation like in Colonial Laws Validity Act 1865, where New South Wales had the power to make its own constitution, as long as the laws were made in such manner and form as UK Acts. (although, commonwealth countries don’t involved sovereign Parliaments)
What is the doctrine of direct effect?
Direct Effect means that EU law conferred rights on individuals that were directly enforceable before national courts (conflict with Parliamentary sovereignty)
What is a declaration of incompatibility?
s4 HRA 1998 allows the court to make a declaration of incompatibility, highlighting the incompatibility between an Act with one or more Convention rights. It has no effect on the validity of an Act, it is just there to avoid a challenge to parliamentary sovereignty.
