Pubic Law Autumn Flashcards
(50 cards)
1
Q
What is a constitution?
A
- A constitution is a set of fundamental principles, rules, and conventions that establish the framework for government, distribute powers between different institutions, and define the rights of citizens.
- It regulates the relationship between the state and individuals and among the various branches of government.
2
Q
What are the main types of constitutions?
A
- Written Constitution: A single, formal document (e.g., USA 1787) clearly setting out constitutional rules.
- Unwritten Constitution: Not found in a single document; based on statutes, conventions, judicial decisions, and authoritative works (e.g., UK).
- Rigid Constitution: Difficult to amend; requires a special process (e.g., US Constitution needs supermajorities).
- Flexible Constitution: Can be amended through ordinary legislative processes (e.g., UK Constitution).
3
Q
What are the 4 main characteristics of the UK constitution?
A
- Unwritten: No single document — based on statutes (e.g., Human Rights Act 1998), common law, conventions (e.g., Prime Ministerial appointments), and authoritative texts (e.g., Dicey).
- Flexible: Can be changed easily by a simple Act of Parliament.
- Unitary: Sovereignty rests with the central government, though devolution has granted powers to Scotland, Wales, and Northern Ireland (as opposed to federal like the US, where power is divided between states)
- Parliamentary Sovereignty: Parliament can make or unmake any law.
4
Q
What are the advantages of a written constitution over an unwritten constitution?
A
- Clarity and accessibility: Citizens can easily know their rights and governmental structure.
- Entrenchment: Harder to amend, providing stability and protecting fundamental rights.
- Judicial review: Courts can strike down laws inconsistent with the constitution.
- Democratic legitimacy: A codified document can be ratified by the people, enhancing its authority.
5
Q
Why is Barber against a written constitution?
A
Nick Barber argues that:
- A written constitution would freeze political arrangements that need to remain flexible.
- The current system’s adaptability is a strength, allowing the UK to evolve without crisis.
- Codification risks judicial overreach, transferring too much power from elected politicians to unelected judges.
- Political and social consensus necessary for a codified constitution is lacking.
6
Q
Is it possible for the UK to adopt a written constitution? Is it likely in the near future?
A
Possible:
- Parliament could legislate for a constitutional convention or create a written constitution.
- Would require broad political and public consensus.
Unlikely in the near future due to:
- Lack of political will.
- Deep disagreement on key constitutional issues (e.g., role of monarchy, devolution).
- UK has a tradition of gradual, pragmatic change rather than revolutionary shifts.
7
Q
What are some arguments in favour of the UK adopting a written constitution?
A
- Enhances clarity, certainty, and public understanding.
- Protects rights more robustly (e.g., entrenching Human Rights Act).
- Limits executive power; prevents ‘elective dictatorship.’
- Offers symbolic renewal after constitutional crises (e.g., Brexit, prorogation row 2019).
8
Q
What are some arguments against the UK adopting a written constitution?
A
Current system is flexible and adaptable.
No public consensus; risks political division.
Entrenched constitution may lead to rigidity and judicial activism.
Practical difficulties of drafting and ratifying.
9
Q
What are the key sources of the UK Constitution? (with examples)
A
Sources of the UK constitution include:
- Acts of Parliament: Parliament can create or change constitutional rules.
- Common Law (Judicial Decisions): Judges develop constitutional principles through cases.
- Constitutional Conventions: Unwritten rules based on political practice.
- European Convention on Human Rights (ECHR): Incorporated into UK law through the Human Rights Act 1998; courts interpret legislation to comply with Convention rights where possible (s.3 HRA).
10
Q
What are the 6 basic constitutional principles of the UK Constitution?
A
The basic constitutional principles include:
- Parliamentary Sovereignty: Parliament is the supreme legal authority.
- Rule of Law: Everyone is subject to the law, including government.
- Separation of Powers: Functions of government divided among Parliament (legislature), Government (executive), and Courts (judiciary).
- Constitutional Monarchy: Monarch acts on the advice of ministers.
- Democracy: Authority derives from the consent of the governed.
- Respect for Human Rights: Growing importance post-HRA 1998.
11
Q
What are constitutional conventions? Are they enforceable in court?
A
- Constitutional conventions are political rules or practices regarded as binding but are not legally enforceable in court.
For example, the Prime Minister must command the confidence of the House of Commons.
- Courts recognise conventions but do not enforce them legally.
12
Q
Can constitutional conventions be ‘created’?
A
- New conventions can emerge as political practices change.
- For example, the convention that Parliament must approve major military action (Iraq vote 2003) developed over time.
Creation Process:
- Practice must be consistently followed.
- Political actors must believe they are bound by it (obligation felt, not merely convenience).
- Example: Development of ministerial responsibility conventions in 19th and 20th centuries.
13
Q
What is the importance of Attorney General v Jonathan Cape Ltd (1976)?
A
- This case shows that while conventions are politically binding, the courts will only intervene to protect associated legal interests (e.g., national security, public interest).
14
Q
What is A.V. Dicey’s definition of Parliamentary Sovereignty?
A
Dicey defines Parliamentary Sovereignty as meaning:
- Parliament has the right to make or unmake any law whatsoever.
- No person or body has the right to override or set aside the legislation of Parliament.
- Parliament is supreme in both legal theory and practice.
- Parliament cannot bind its successors.
15
Q
Is Dicey’s view of Parliamentary Sovereignty correct today?
A
Dicey’s theory is a classic starting point, but modern constitutional practice shows some qualifications:
- Human Rights Act 1998 requires courts to interpret legislation compatibly with human rights.
- Devolution Acts (e.g., Scotland Act 1998) limit Westminster’s powers politically (not legally).
- European Union Membership (pre-Brexit) showed Parliament accepted limits on its sovereignty voluntarily (Factortame case).
- Courts in Jackson hinted that there might be fundamental limits to Parliament’s power.
16
Q
What did the Bill of Rights 1688 ensure?
What is the basis of sovereignty in the UK constitution?
A
The Bill of Rights 1688:
- Asserted parliamentary supremacy over the monarch.
- Prevented the monarch from suspending laws or levying taxes without Parliament’s consent.
Basis of Sovereignty:
- Rooted in the Glorious Revolution settlement.
- Parliament became the primary legal authority- sovereignty is based on historical constitutional development and political practice rather than a codified constitution.
17
Q
Is there a difference between acting illegally and unconstitutionally?
A
- Illegality: Breaching a specific law or statute — enforceable in court.
- Unconstitutionality: Breaching conventions or broader constitutional principles — not always legally enforceable.
- For example: acting without lawful authority is illegal, but ignoring ministerial conventions is unconstitutional but not necessarily illegal.
18
Q
What is the enrolled bill rule?
A
- The enrolled bill rule is the principle that once a bill has been passed by both Houses and receives royal assent, the courts cannot question how it was passed.
- The focus is only on the existence of the Act, not on any procedural defects during its passage.
19
Q
What is meant by ‘manner and form’?
A
- ‘Manner and form’ refers to Parliament being able to bind future Parliaments regarding how legislation is passed, rather than substantively limiting them.
- For example, Parliament might state that no future law changing voting rights can be passed unless it is approved by a two-thirds majority in the House of Commons. Future parliaments can still change the law of voting rights as long as they follow procedure.
- Parliament, however, cannot say that future parliaments are not allowed to change voting rights whatsoever.
20
Q
What are the issues in R (Jackson) v Attorney General [2005] UKHL 56?
A
Issue:
- Whether the Hunting Act 2004, passed using the Parliament Acts 1911 and 1949 procedures (bypassing House of Lords), was valid.
Court’s Decision:
- Parliament can change the law using modified legislative processes.
- The Parliament Acts were lawful ways of legislating.
- Some judges suggested there may be fundamental constitutional principles that even Parliament cannot override (early challenge to Dicey).
21
Q
How does implied repeal operate?
A
Implied repeal is when a later Act of Parliament conflicts - with an earlier one, the later Act impliedly repeals the earlier Act.
- There are no special formalities needed; later legislation automatically prevails.
- Based on the idea that Parliament cannot bind its successors (A.V. Dicey’s view).
22
Q
What are ‘constitutional statutes’?
How did the case study R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3 (known as the HS2 case) emphasise these?
A
Statutes that:
- Condition the relationship between citizen and state.
- Fundamental to the constitutional framework.
For example: Examples: Magna Carta, Bill of Rights 1688, Human Rights Act 1998, Scotland Act 1998.
The HS2 case:
- Court said certain constitutional instruments have special status and form part of the UK’s constitutional order.
- Constitutional statutes (e.g., Bill of Rights 1688) cannot be overridden casually by legislation.
- The courts may interpret statutes in ways that protect fundamental constitutional principles.
23
Q
What is meant by the Crown in UK constitutional law?
A
- The Crown represents the legal embodiment of the State.
- It encompasses both the Monarch personally and the government acting in the Monarch’s name.
- Today, ‘the Crown’ mainly refers to executive authority, exercised by Ministers on behalf of the Monarch.
24
Q
What are prerogative powers? What are some examples of these?
A
- Historical powers originally held by the Monarch alone. Now mostly exercised by Ministers. Exist outside statute unless overridden or replaced by legislation.
- For example, foreign affairs, war powers, issuing passports.
25
What is the difference between the royal (personal) prerogative and the executive (ministerial) prerogative?
- Royal/personal prerogative: Powers still personally exercised by the Monarch
- Examples include appointing a Prime Minister, dissolving Parliament pre-2011, honours, etc.
- Executive/ministerial/ prerogative: Powers exercised on the advice of Ministers
- For example, signing treaties, conducting foreign relations).
26
Is it always clear what counts as a prerogative power?
- No - it is often uncertain. Courts sometimes determine whether a power is prerogative or statutory.
27
What is the relationship between prerogative powers and conventions?
- Conventions regulate the exercise of prerogative powers.
- For example, the Monarch can appoint a prime minister (prerogative power), however, he will typically apoint someone that can command the confidence of the House of Commons (constitutional convention)
28
What is the Cabinet?
- The senior decision-making body of government. Composed of the Prime Minister and senior Ministers.
-Meets regularly to discuss policy and make collective decisions.
29
What role does the Prime Minister play? Is the PM still primus inter pares ('first among equals')?
- Prime Minister is head of the government and leader of the majority party.
- Co-ordinates Cabinet work, represents the UK internationally, and advises the Monarch.
- Formally primus inter pares (first among equals), but in practice, exercises dominant leadership (especially post-1970s).
30
Is there such a thing as a Deputy Prime Minister?
- There is no formal constitutional office of Deputy Prime
- Minister. Appointment is discretionary and political, given by Prime Ministers to senior colleagues.
- For example, Dominic Raab was Deputy Prime Minister under Bojo and Rishi Sunak
31
In what circumstances does the Prime Minister resign? How are consitutional conventions related to this?
A PM might resign after:
- Loss of majority in Parliament.
- Loss of party support. Personal scandal or misconduct.
- Policy failure or inability to govern.
- Conventionally expected to resign if unable to command House of Commons confidence.
32
When do Ministers resign?
A minister will resign if:
- There's a breach of the Ministerial Code (e.g., lying to Parliament).
- There are serious policy failures.
- There are scandals or misconduct (personal or departmental).
- They need to uphold the convention of ministerial responsibility.
33
What is the importance of the Ministerial Code?
- Sets out standards of conduct for Ministers.
- Includes rules on accountability, honesty, collective responsibility, and conflicts of interest.
- Breach of the Code often (but not always) leads to resignation.
34
What are the two main types of ministerial responsibility?
- Individual Responsibility: Ministers are responsible for their personal conduct and departmental failings.
- Collective Responsibility: Ministers must publicly support Cabinet decisions. Modern practice shows it is flexible and political, not automatically enforced.
35
What are the 3 parts of parliament in the UK? Who sits in parliament?
The three parts of UK parliament include:
- House of Commons: Elected chamber; main legislative body; Government ministers are drawn from here.
- Sits 650 elected members of parliament.
- House of Lords: Appointed and hereditary members; revises and scrutinises legislation.
- Sits life peers, hereditary peers, bishops.
- The Monarch: Symbolic role in opening and dissolving Parliament and giving Royal Assent to laws (always acts on advice)
- Not an active parliament but a constitutional necessity.
36
What reforms have been made in the House of Lords?
Reforms include:
- House of Lords Act 1999: Removed most hereditary peers.
- House of Lords Reform Act 2014: Allowed peers to resign or retire.
- Lords Spiritual (Women) Act 2015: Ensured female bishops could be fast-tracked into the Lords.
- House of Lords (Expulsion and Suspension) Act 2016: Gave the House the ability to expel or suspend members.
37
What is the relationship between government and parliament? What is the tension of power between them?
- Government is drawn from Parliament - PM and MPs are
- Parliament scrutinises, approves and sometimes blocks government action.
- Balance of power: if there is a strong majority of a party, there is a government majority, whereas if there is a hung parliament (no one majority), parliament regains strength.
38
What is meant by 'life of parliament'?
- The life of parliament refers to the period of time between a general election and the dissolution of parliament before the next election.
- Under the parliament act 1911, the max length of parliament is 5 years.
39
What is the difference between dissolution and prorogation of parliament?
Dissolution:
- Ends the current parliament
- Requires a general election
- The Prime Minister advises the monarch to dissolve.
Prorogation:
- Ends a session of parliament - the parliamentary year
- Brings parliamentary business to a close.
40
What is the Dissolution and Calling of Parliament Act 2022? Why was it passed?
- This Act returned the power to dissolve Parliament to the Prime Minister with the Monarch's approval.
- This was the case pre 2011, but between 2011-2022, there was a fixed-term parliaments act, where Parliament had a fixed term and couldn't be dissolved by anyone.
- The problem with this was that it was rigid, and de-emphasised the flexibility of the UK constitution, as emergency meetings weren't possible.
41
When are general elections held?
- Within 5 years after the first meeting of Parliament.
- Sooner if Parliament is dissolved earlier on Prime Minister’s advice.
42
What is the First-Past-The-Post voting system? What are its strengths and weaknesses?
- First-Past-The-Post (FPTP) is when voters pick one party as their first preference, and the candidate with the most wins.
- Strengths: Quick results, strong government.
- Weaknesses: Disproportionality between votes and seats (in the 2024 election, labour had 30% of the votes and 60% of the seats).
- An alternative system, such as Proportional Representation, may lead to a more balanced parliament.
43
What are the stages by which a Bill becomes an Act of Parliament?
- First Reading (formal introduction, no debate)
- Second Reading (general debate on principles)
- Committee Stage (detailed examination, amendment)
- Report Stage (further review and amendments)
- Third Reading (final debate and vote)
- House of Lords repeats stages
- Consideration of Amendments ("ping pong" if needed)
- Royal Assent (becomes law)
44
What opportunities are there for legislation to be scrutinised during its passage?
- Debates at Second and Third Readings
- Detailed line-by-line examination during Committee Stage
- Amendments proposed and debated at Report Stage
- Select Committees or Special Public Bill Committees (sometimes)
- Scrutiny in the House of Lords
45
What is the relationship between the House of Lord and the House of Commons in the legislative process?
- The House of Commons is the primary legislative chamber, as most bills start there.
- The House of Lords reviews, debates and suggests amendments, but they cannot indefinitely block legislation.
- The Parliaments Act 1911 and 1949, the Commons can override the Lords' rejection of bills.
46
What is delegated legislation?
- Also known as secondary legislation.
- These are laws made by an individual or body other than parliament under the authority of a given act of parliament.
47
What is an example of delegated legislation?
- The Dangerous Dogs Act 1991 is an example of Primary Legislation.
- This Act grants powers to ministers to create delegated legislation; the Secretary of State has the power to add types of dogs to the list of ones that are banned.
-This is delegated legislation, as rules are being made by those other than Parliament, but can only do so under the rules of Parliament.
48
What is affirmative resolution and negative resolution procedure?
- Affirmative resolution is when Parliament must actively approve a statutory instrument (document used to make secondary legislation), usually by passing a motion in both Houses.
- Negative resolution is when a statutory instrument automatically becomes a law unless Parliament annuls it within a set time.
49
What are Henry VIII powers?
- Henry VIII powers are powers given to Ministers to amend or repeal primary legislation via secondary legislation without a full parliamentary process.
- These powers are controversial, as they bypass normal parliamentary scrutiny, controlling power in the executive and undermining democratic accountability.
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