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PUBLIC LAW > STUDY NOTES > Flashcards

STUDY NOTES Flashcards

1
Q

how did David Cameron become prime minister

A

The prime minister in the UK is not elected they are selected by the queen using constitutional conventions

> The prime minister in the UK is not elected they are selected by the queen using constitutional conventions as part of the royal prerogative

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2
Q

what is the difference between the Scottish and UK leader election

A

> There is no act of parliament that determines who becomes prime minister

> The prime minister in the UK is not elected they are selected by the queen using constitutional conventions as part of the royal prerogative

> The prime minister is appointed by the monarch, which is in direct contrast to what happens in Scotland – the first minister in Scotland is nominated by the Scottish parliament before he/she is appointed by the queen however the queen does not have a choice

There is an act of parliament in Scotland – The Scotland Act 1998 s 46 which outlines how to become a first minister and the process which is totally different from the process in Westminster

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3
Q

what sources make up the constitutional conventions

A

> statutory
conventions
royal preogative

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4
Q

what is a constitutional convention

A

“they may regulate the conduct of official…not in reality laws at all since they are not enforced by the courts”

the constitutional conventions can be defined as non-legal rules, with no enforcement mechanisms, they may also be addressed in court but there is no consequences attached to this if they are not followed

The constitutional conventions are a source that has played an important role in the working of the constitutional system, Dicey emphasised that constitutional conventions were distinct from law being ‘positive political morality

they are known as a rule of behaviour accepted as obligatory by those concerned in the working of the constitution

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5
Q

what is the royal prerogative and examples of it can be used

A

“residual” power of the monarch

> issuing passports
declaration of war
royal pardon
appointments

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6
Q

explain what prerogative powers, what they rely on and examples of them being excersised

A

based upon common law so they are not written down in a codified way

rely on case law and academic works to determine the extent of the royal prerogative

examples of excerise is in the legislature and legislation including the soverign power to summon and prorogue and dissolve pariament and assent to acts of parliament

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7
Q

name 3 countries that have a “written” single document constiution

A

USA
FRANCE
CANADA

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8
Q

name 3 countries that have an “unwritten” constiution

A

UK
ISREAL
NEW ZEALAND
instead they have a collection of legal and non legal souces reffered to as “unwritten”

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9
Q

give a general defintion of the constitution

A

a set of laws and other sources or principles that explian the way in which the state is established and which provides a degree of legitimacy to the state and its institutions, it delinates the powers of different branches of the state and its restrictions placed on the institutions and on state power.

in short it is a framework that defines the structure of the state and its powers.

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10
Q

what are the sources of the UK constitution

A 
international/european law (ECHR)
Domestic law (Acts of parliament, royal prerogative)
Non legal sources ) constitutional conventions
judicial interpretation
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11
Q

describe the UK constitution

A

it is often reffered to by what it is not, it is not a traditional written constitution and so it is defined as “unwritten” however the term uncodified may be more apposite because much of the sources of the constitution are written they are just not contained in one single document

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12
Q

what is the general defintion of the rule of law

A

it plays a large role in society and is widely recognised as a fundamental constitutional principle

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13
Q

what are diceys 3 meanings of the rule of law

A

1- supremacy of the law
2- equality before the law
3- enforcement before the courts

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14
Q

what is the defintion of formal rule of law

A

considers the law in the way that it is enacted, stability, clarity and non-arbitary application to people as being essential features of a state governed by the rule of law

No judgement on the justness of the law itself but demands specific procedural qualities that makes the law it is

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15
Q

what is the defintion of the substantive rule of law

A

looks to the content of the law including the extent to which the law furthers conceptions of morality and on human rights when judging the extent to which the rule of law applied in a state.
goes beyond the formal criteration of the rule of law and includes certain substantive rights and freedoms

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16
Q

explain Nazi Germany in terms of formal and substantive

A

Nazi Germany technically followed the formal rule of law because they did not follow the substantive rule of law as they did not value basic human rights

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17
Q

name the 8 principles set out by BINGHAM

A

1- THE LAW MUST BE ACCESSIBLE, INTELLIGIBLE, CLEAR AND PREDICTABLE
2- LIMIT DISCRETION
3- THE LAW SHOULD APPLY EQUALLY TO ALL
4- PROTECTION OF HUMAN RIGHTS
5- DISPUTE RESOLUTION
6- MINISTERS AND PUBLIC OFFICERS AT ALL LEVELS MUST EXCERISE THE POWERS CONFERRED ON THEM REASONABLY AND RESPONSIBLY
7- JUDICIAL PROCEDURES MUST BE FAIR AND INDEPENDENT
8- INTERNATIONAL LAW OBLIGATIONS MUST BE MET

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18
Q

what is the general defintion of seperation of powers

A

a politcial doctrine that organises and describes the way in which the state distributes power among the three branches of the state, legislative,executive and judicial powers

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19
Q

what is the role of the legislative

A

to make law

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20
Q

what is the role of the executive

A

to enforce law

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21
Q

what is the role of the judiciary

A

to rule on law

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22
Q

what is an example of the overlap of power in the USA

A

the executive (president) has to propose a budget that has to be accepted by the legislative body if it is not accepted then there will be a government shut down because it has no funds to operate and employees, business, hospitals etc will be afftected by this, this happened in janurary 2018 with Trump and there was a government shut down for 5 days it also happened in 2013 under Obama where it was shut down for 2 weeks

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23
Q

what is the role of the government

A

runs the country

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24
Q

what is the role of the parliament

A

makes the law

25
Q

what is an example of contempt of parliament

A

brexit legal advice, parliament passsed a motion to have brexit legal advice published which was successful as a majority of the parliament voted yes for this however the government refused to do this as there is a confeditionality agreement with solicitors for legal advice which would not be in the public interest to have it published

311 said the government were in contempt of parliament and 293 said that they were not

26
Q

why is the constitutional reform act 2005 significant to the separation of powers

A

it removed the anomaly of having judged in the house of lords so in 2009 the supreme court was created and the judges were transferred to the supreme court this did not change any of their powers it was simply transferring the existing powers to a different branch of the state. to create a new court separate from the lawmaking body.

it is also the main authority that attempts to shape the UK constitution by increasing the separation of powers between the two branches.

27
Q

would it be correct to say that there is a clear separation of powers between the states

A

it would be correct to say this however it is difficult to distinguish the power of the executive and the legislative as there is often conflict between the two

28
Q

what is Joseph Raz’s perception of the rule of law

A

he says it is a political idea
and the idea of a non-democratic society is a reality and says that most legal systems in the world have never been based on fairness.
“the law may institute slavery without violating the rule of law.”

29
Q

what type of law making process does scotland have

A

proportional

30
Q

what type of law making process does Westminster have

A

they have the fixed terms parliament act 2011 which sets down the procedure of law making and elections, compared to scotland which does not have this included in the scotland act 1998

the law making process and idea behind westminster is traditional, although there have been minor reforms the basic ideas behind it have not been altered for centuries.

31
Q

what are the 6 stages involved in the Westminster law making process (no detail- just the stages)

A 
1- first reading
2- second reading
3- committee stage
4- report stage
5- third reading 
6- royal assent
32
Q

what are the 5 stages of the Scotland law making process (no detail)

A

1- pre legislative checks - legal and consultation
2- stage 1 - participative, recomendation and vote
3- stage 2 - detailed scrutiny, amendment
4- stage 3 - full parliament final vote
5- royal assent

33
Q

what is involved in the first reading in the westminster law making procedure

A

the bill is read out to parliament and a date is set for the parliamentary process to commence

34
Q

what is involved in the second reading in the westminster law making procedure

A

there is a debate in parliament on the concept of the law (the general concept)
there is a vote at the end to decide whether the bill should proceed, if it attains a majority then it can proceed to the committee stage if not it will be dropped at this stage

35
Q

what is involved in the committee stage in the westminster law making procedure

A

a group of politicians look in detial at the proposed bill (exception if it is an important law concerning the full house - brexit) however the purpose of the bill cannot be removed

36
Q

what is involved in the report stage in the westminster law making procedure

A

the bill is reported back to the whole parliament about the law amendments can be made by any MP at this stage

37
Q

what is involved in the third reading in the westminster law making procedure

A

final vote on the law which determines if the law has been passed or not

38
Q

what is involved in the final stage of the westminster law making procedure

A

the monarch or her representaive will sign the act to allow it to become an act

39
Q

what is involved in the pre legislative stage in the scottish law making process

A
  • legal checks to check that the bill is within the power of the scottish parliament
  • consultation with the general public before becoming a bill (WESTMINSTER DOES NOT HAVE THIS ELEMENT OF PUBLIC PARTICIPATION)
40
Q

what is involved in stage 1 in the Scottish law making process

A

The bill is already produced at this point

  • participative - the bill is allocated to a specialist committee, which includes the general public who can give evidence on the proposed bill eg, Children (Equal protection to assault) (Scotland) Bill
  • recommendation as to whether the bill should go ahead or not
  • vote from the whole parliament at the end of this stage if it is supported it will move forward if it is opposed it will be finished at this stage (veto) Westminster does not have this
41
Q

what is involved in stage 2 in the Scottish law making process

A

after the parliamentary vote in stage 1 there is a detailed scrutiny (breakdown of the law)
amendments - in terms of the proposal the spirit of the bill cannot be removed

42
Q

what is involved in stage 3 in the Scottish law making process

A
  • the bill goes back to the full parliament for another vote
    if the final vote is in favour then this is the date that the scottish parliament passed the law if it is opposed then it will be failed at this stage
43
Q

what is the final stage in the Scottish lawmaking process

A

royal assent - to decide whether it can become an act or not the monarch or her representative will need to sign the bill at this stage the bill will become an act of parliament.

44
Q

what is the differnce in terms of time limits for the law making processes

A

westminster - 1 year

Scotland - 5 years

45
Q

what are the 2 dates stated on acts of scottish parliament

A

royal assent date and the date that it was passed by the scottish government

46
Q

whats the name of the bill proposed by scotland to do with EU exit

A

– EUROPEAN UNION LEGAL CONTINUTITY (SCOTLAND) 2018 BILL

47
Q

what was the issues associated with the – EUROPEAN UNION LEGAL CONTINUTITY (SCOTLAND) 2018 BILL

A

After the Scottish parliament passed this bill, the UK government said it would refer it to court to determine whether or not it was within the Scottish parliaments power.

48
Q

what was the purpose of the EUROPEAN UNION LEGAL CONTINUTITY (SCOTLAND) 2018 BILL

A

the Scottish parliament wanted to have a roll in deciding which EU laws would stay in Scotland, particularly laws at European level because they deal with issues that are devolved to Scotland including agriculture however there was a problem > however foreign affairs are a reserved matter to Westminster
and Scottish parliament cannot have a different foreign policy to Westminster so the idea of Scotland of passing laws about the EU seemed to be out of of its powers,

49
Q

who had to decide if the continuity bill was within scotlands power

A

preisidng officer - unusually this time they thought that this was not within the power of the Scottish parliament however the executive disagreed with this- however it was still allowed to be debated and voted on and go through all the processes

50
Q

what happened in terms of stages of EUROPEAN UNION LEGAL CONTINUTITY (SCOTLAND) 2018 BILL

A

the bill got to stage 3 and was passed in may 2018
the supreme court heard the arguments in the summer of 2018- the ruling was made in December 2018 and ruled that the law was outwith the power and so did not pass it for royal assent they said that most of the bill was okay but there was a section that was outwith the power as essentially it gave a veto power to the Scottish parliament on EU matters which was clearly outwith its powers

51
Q

how does the Scottish parliament involve the general public more than Westminster, except from in the law making process

A

Claim of Right ,Public Petition Committee ,Civic Forum, Youth Parliament,Festival of Politics

52
Q

what is the scottish parliament take on private members bills

A

the scottish parliament wanted to do things differently, since the idea was that there was not going to be a majority government therefore no political party being able to insist its view then there should perhaps be a way that politicians can propose laws themselves these are known as private members bills

53
Q

what are the legal checks involved in private members bills

A

If a member of parliament who wants to introduce a law on a certain subject they have to put the idea to the Scottish parliament website they have to get a set amount of support before that can go any further, the idea has to be checked and they have to produce a detailed bill on this topic

54
Q

what is the number of Mps required support for a private members bill

A

it used to be 10 , this was heavily criticised as this is a very low number in comparison to the number of MSP’s in parliament and the smaller parties were joining together to get theyr’re ideas across which the bigger parties were not happy with this so it was changed to have representation from at least 3 political parties, involving 18 Msps

55
Q

what hurdle is involved before the private members bill can be proposed

A

like any other proposed bill, it must be checked by the presiding officer to check that it is within the power of the scottish parliament, if it is supported and approved then the bill will move forward to stage 1 of the law making process even if there are only 18 MSP’s supporting it it must go to stage 1

56
Q

name some examples of private members bills

A 
Abolition of Poindings and Warrant Sales  (Scotland) Act 2001. 
Dog Fouling (Scotland) Act 2003
57
Q

what is the process required for a second independence referendum

A

The Scotland Act 1998 became a legal issue in the planning of the independence referendum for the SNP as there was no published statement about how a referendum works. However, in 2012, the Edinburgh Agreement was signed by both the UK and Scottish governments, after legal negotiation took place over the possibility of the Scottish parliament having a referendum.

58
Q

give details of the Edinburgh agreement and what was entailed

A

In the Edinburgh Agreement, Westminster granted a section 30 order from UK government to the Scottish government, which transferred reserved power temporarily. The result of the Referendum was 55.3% to 44.7% in favour of the “NO” campaign, so Scotland remained a part of the UK. After the result of the EU referendum, the possibility of a second Scottish independence referendum became likely after Nicola Sturgeon stated that she would urge the UK government to grant another section 30 order to hold a second independence referendum, however at this stage it does not seem likely that the UK government will do so

PUBLIC LAW (2 decks)

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