Constitutional + Administrative Sem 1 Exam Review PDF

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Se‡ester Ȓ EÖa‡ ReÐieÑTutorial Ȓ: Iˆtro to Coˆstitutioˆs1. What is the purpose of a constitution?Constitutions play a key factor in the regulation of society and at a very primary level, they serve the same purpose as any other set of rules guiding it’s members (people and the government) of what is...

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Semester 1 Exam Review Tutorial 1: Intro to Constitutions 1. What is the purpose of a constitution? Constitutions play a key factor in the regulation of society and at a very primary level, they serve the same purpose as any other set of rules guiding it’s members (people and the government) of what is acceptable and not. A constitution also foresees problems that might occur for instance the resignation of a Prime Minister, the government’s attempt to restrict freedom of speech, etc. and states or gives guidelines as to what should happen when they do arise , or at least offers frameworks to address such issues. In summary a constitution outlines the laws and rules identifying and explaining ● The institutions of government (the executive, legislature, judiciary) ● powers within these institutions ● How these powers are exercised and controlled ● relationship between the institutions and the citizens

2. Why do nations need a constitution or think that they need one? Nations need a constitution as they provide the basic framework for the functioning of a State. There are three key functions as to why a constitution is pivotal for a well operating society. ● Is essentially an instruction manual, offering guidance on how the state works by identifying key points such as who governs/rules (President, PM, monarch, etc), how they govern (democracy, dictatorship, consent of the people), and also the functions and powers of state institutions (power of judges). ●

they protect democracy more specifically the basic human rights of all citizens.

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By having a constitution set in place, it ensures checks and balances on those in power. Also known as the separation of powers, this promotes good governance and prevents the abuse of power to protect people’s liberties and guard against tyranny by making sure key institutions (executive, legislature,judiciary) are all clearly divided. Thus, these three essential functions highlight why nations need a constitution to ultimately generate a degree of trust and coordination that is necessary for different kinds of people to live together.

3. Is ‘democracy’ overrated as a form of government? In my personal opinion, democracy is not overrated as a form of government. It is most definitely one of the strongest legal systems we have today. It allows equal representation for each and every citizen and protects us against oppressive authoritarian governments. Moreover, without democracy society would be corrupt (nepotism), basic human rights would be violated (imprisioning/killing political rivals, genocide), and there would be consitutional abuses of power (closing down parliament arbitrarily dismissing judges). Thus, no democracy is the best argument for democracy since without it there will be no human rights and no peace.

4. What is the main difference between the UK constitution and the constitutions of most other countries? The major difference between the UK constitution and the constitution of most other countries is that the UK is unusual in the sense that it has no “written” or “codified” constitution. Unlike the great majority of countries such as the U.S, South Africa, Canada, etc. there is no single legal document which sets out in one place the fundamental laws outlining how the state works which is referred to as a “rigid” or “written” constitution . The absence of a “written” constitution has led Britain to rely on Acts of Parliament, common law (case law), and conventions. These sources composed together, form the UK constitution. However one key feature of having an unwritten constitution is that it is more flexible than that of rigid constitutions. Ultimately it makes the constitution easier to amend since no special constitutional procedures are needed for change such as in the U.S where it is significantly much harder to amend/change.

5. What, typically, is the structure and content of a codified constitution? ● ● ●

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written all in a single document Constitution is the highest law of the land = constitutional law is supreme law The constitution's provisions are “entrenched” (protected) against repeal. ○ Entrenched = a special procedure is required to amend it such as referendum (public vote) making it harder to change Define key institutions (govt, parl, PM) and set out the powers of state + rights/duties of citizens Has a “Bill of Rights” or a list of human rights

6. Why does the UK not have a codified constitution? Typically a constitution is constructed due to some turning point of the state such as after independence has been achieved, following a revolution, or after some other major social and political upheaval. For example South Africa created a a new constiution following the end of it’s racist apartheid system. The UK did not experience any major upheavals conclusively resulting in no creation of a codified constitution.

Most important constitutional principles in the UK ● ● ●

Parliamentary sovereignty: The UK Parliament can make and unmake any law whatsoever. The rule of law: The government and other public bodies must follow the law and legal principles. The separation of powers: power is divided between the three government institutions (executive, legislature, and judiciary) to protect citizen’s liberties and guard against tyranny and ensure checks and balances in the constitution.

 The UK constitution has traditionally been regarded as being which of the following?

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Unitary where all the power resides in the central state institutions- UK central government.

Which of the following describes the United Kingdom? ●

Scotland, England, Wales and Northern Ireland

 Name an Act of Parliament which has dramatically changed the UK’s Constitution and briefly explain the major change introduced by the Act An Act of Parliament which has dramatically changed the UK’s constitution is the Parliament Act 1911, later amended by the 1949 act. The Parliament Acts are really significant constitutional statutes that change the way the parliament makes law by establishing the superiority of the House of Commons over the Lords. The effect of the Parliament Act 1911 was to remove the House of Lords power to veto (cancel/stop implementing) legislation and to replace it with a delay in power instead. EG: ‘money’ bills - now only has a power of delay for 1 month and ‘non-money’ bills- power of delay for 2 years. The Parliament Act 1949 further reduced the delaying power of the House of Lords from 2 years to one year (legislation could come into force after only a 1 year delay even if it’s not been passed by the HOL since only the HOC needs to approve).

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Tutorial 2: Sources of the UK constitution/conventions 1. Acts/Statutes of Parliament Magna Carta (1215) ● ● ● ●

no one is above the law/everyone is subject to the law King John agreed to the Magna Carta (i.e a peace treaty) following an uprising of rebel barons who'd captured London. Guarantees the right to justice and fair trial NOT AN ACT OF PARLIAMENT

Bill of Rights (1689) ● ●

Placed limits on the powers of the monarch Set out the rights of parliament ○ requirement for regular parliaments ○ No right of taxation without parliament’s agreement ○ free elections and freedom of speech in parliament ■ parliamentary privilege = gives people in parl, MPs in the House of Commons, and peers in the House of Lords complete freedom of speech. Judges cannot restrict what MPs say in the HOC.

Act of Settlement (1701) ● ●

Act of parliament that excluded Roman Catholics from succession to the throne However the Succession to the Crown Act 2013… ○ Removed the disqualification of a person who carries a Catholic from the line of succession ○ Parliament can alter the succession to the throne & choose its own monarch ➔ So in Law, Parliament could, technically, alter the succession = but unlikely because of Royal Assent and Convention. (needs the consent of the HoC, HoL, the Queen and approval of all the commonwealth nations (convention))

Acts of Union (1707) ●

The AoU passed by the English and Scottish Parliaments in 1707 led to the creation of the United Kingdom of Great Britain on 1st May of that Year

Parliament Acts 1911, 1949 ●

established the superiority of the House of Commons over the Lords

EU Membership ● ● ●

To join the European Union, Parliament passed an act European Communities Act 1972: incorporated EC law into UK The European Union 9Withdrawal) Act 2018: Britain has now left the EU so this act repealed the ECA.

Human Rights Act (1998) ● ●

Incorporates European Convention of Human Rights (ECHR) into UK Primary statute governing human rights in UK

Devolution- ie, Parliaments in Scotland & Wales ● ● ●

Scotland Act 1998 Government of Wales Act 1998 Northern Ireland Act 1998 ○ The Westminster Parliament devolved power to regional Assemblies/Parliaments using this legislation.

Constitutional Reform Act 2005 ●

Established the UK Supreme Court

Constitutional Statutes ● ● ● ●

Magna Carta 1215 Bill of Rights 1689 Human Rights Act 1998 European Communities Act 1972

Laws LJ, in Thoburn v Sunderland City Council 2002 held these are the most important Acts of Parliament in the British Constitution. But can be amended/repealed like all other ordinary acts simply by enacting a further pierce of legislation.

2. Common law (case law) Case of Proclamations (1610) ● ● ●

A legal ruling during the reign of King James which established the Monarch could make laws only though Parliament. The Crown has no power to change the law or create new offences. Significance? The executive is subject to the rule of law (even governments, kings/queens)

British Railways Board v Pickin (1974) ●

Parliamentary Sovereignty ○ Parliament can make and unmake law whatsoever ○ Judges/courts cannot strike down act Act/statute of parliament

R (Jackson) v Attorney General (2005) ● ●

Hunting Bill had been forced through without the consent of the House of Lords using the Parliament Acts 1911 and 1949. Parliamentary Sovereignty ○ Courts do not have authority to challenge the legality of an Act of Parliament.

R v S of S ex parte Factortame (1991) ● ● ●

Supremacy of EU law over inconsistent UK Law Parliament has chosen to pass the European Communities Act 1972 which gave effect to EU law. Parliament has ‘chosen’ to be bound by EU law (Parliamentary sovereignty)

Attorney- General v Wilt’s United Dairies (1921) ●

No taxation without the approval of Parliament

Congreve v Secretary of State for the Home Office (1976) ● ● ●

The Minister of Home Office acted unlawfully and had no authority to revoke previous legally issued tv licenses to gain the additional $6 license fee. (like a tax) Taxation can only be introduced by parliament. Retrospective law passed = legislation that operates on matters taking place before its enactment, e.g. by penalising conduct that was lawful when it occurred

A and others v Secretary of State for the Home Department (2004) ● ● ●

UK passed anti-terror legislation post 9/11 which provided for the indefinite detention of foreign prisoners HELD: unlawful bc it unfairly discriminate between foreign nationals and UK nationals + contrary to the Human Rights Act Good example of a common law decision that underpins rule of law principle in the UK constitution.

3. Constitutional Conventions Constitutional conventions are non-legal principles and unwritten rules that play a key role in the UK constitution. They are political ethics of norms and codes of “expected” behaviour. However, even when formally written down, constitutional conventions remain binding only in a political sense, thus they are not legally binding. Operate in a manner that is supplementary to the law.

How to determine if a particular practice is a “convention”? Sir ivor Jennings Test ● Whether there is precedent for the rule ● Whether those operating under the convention believe themselves obligated to do so ● Whether there is a reason for the convention

What is their role and function in the UK? 1. Flexibility: constitutional conventions enable the unwritten constitution of the UK to change & evolve over time. EG: How the role and function of the monarch has changed since 1603 (divine rights of kings: case of proclamations parliamentary sovereignty) ● Constitutional conventions have facilitated this transfer of powers, gradually taking away power from the monarch and giving it to Parliament.

2. Accountability: constitutional conventions assist as a control mechanism over those in power Convention: Individual Ministerial Responsibility: “Members of the Cabinet (most Senior Ministers) are accountable to Parliament, for what happens within their department” ● Ensures people in power are responsible for their professional & personal actions. 3. Good governance: constitutional conventions help promote good governance. Convention: Collective ministerial responsibility: Cabinet ministers publicly support all government policy decisions, even if they do not privately agree with them. ● A strong/common front leads to a strong government. Sir Ivor Jennings, 1959 said “conventions as the ‘flesh which clothes the dry bones of the law ” . Meaning? ● the bones are like Acts of Parliament ● The flesh, which allows for organs to work (eg, blood to flow, muscles to provide motion) is akin to constitutional conventions. Essentially for a healthy body, you need BOTH bones + flesh For a healthy constitution, Jennings was suggesting you need laws such as Acts Parliament + constitution conventions. When you have both it will create law and order ensuring the country is run properly.

Are conventions generally obeyed? If so, why? If not, why not? Although constitutional conventions are unenforceable by the courts, they generally are obeyed for 3 major reasons why: 1. Conventions reflect individual ministers personal sense of constitutional morality ฀ obey it because the convention in question coincides with their personal sense of morality. 2. Even if a minister doesn’t personally agree with a convention, they may still follow it because they know it reflects the norm in society, so it’s their moral obligation to act in accordance. 3. Obey conventions for self-serving reasons ฀ don’t want to be stigmatized as someone who failed to accept socially accepted conventions + going against would be highly undemocratic. EG: politicians follow conventional rules because they fear if they fail to do so it might incline the opposition politicians.

List of important conventions Office of Prime Minister: created by convention

Foreign affairs: Uk may not legislate for a former colony which is now an independent state and member of the commonwealth.

Royal Assent: The queen must give the Royal Assent to Bills which have passed though the Commons and Lords

Appointment of Prime Minister: Although senior Ministers can be members of the House of Lords, the Queen will only appoint as Prime Minister someone who is a member of the House of Commons. ●

Her Majesty will invite the leader of the Party who has secured enough seats in the House of Commons to form a government.

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choose the person who can command the confidence of the House of Commons.

Election defeat for Prime Minister: when a standing PM loses a general election they must immediately resign from office

Succession: Any change to the UK succession requires assent of comommwearh + UK parliaments.

Collective Ministerial Responsibility: Cabinet ministers must publicly support all government policy decisions, even if they do not privately agree with them. However, If a Minister is unable to publicly support a Cabinet decision, the proper course is for that Minister to resign. The rationale behind collective ministerial responsibility is it promotes and leads good governance and accountability. Additionally, a strong and common public front leads to a strong government.

Individual Ministerial Responsibility: ministers are accountable to Parliament for what happens within their governments, head of department has to appear periodically before parl accounting for his department, pm answers questions. (defending your own area when being scrutinised by Parliament)

Judges: on being appointed, judges sever any ties they have with political parties

Government meetings: The Prime Minister and other Ministers regularly appear in Parliament to answer questions from MPs or peers (depending on which chamber they belong to).

House of Commons AND Lords relations: Parliament must meet at least once a year/annually: brings $ for country

Prerogative powers: The monarch retains certain ‘prerogative’ powers (to declare war and to sign international treaties) but only, and always, exercises them on the advice of the government.

Sewel Convention: UK Parliament will not normally legislate for parts of the country with devolved governments on matters within the competence of the latter without the prior consent of the relevant devolved legislature.

Salisbury Convention: ensures that Government Bills can get through the Lords when the Government of the day has no majority in the Lords. In practice, it means that the Lords do not vote down a Government Bill that impacts a manifesto

pledge and for which the government has an electoral mandate. UK relations with the commonwealth: The Sovereign in appointing a Governor General (queen’s rep) of an independent commonwealth state, acts on advice of the PM of that state. ● If the c/wealthstate finds someone morally objectionable, NOT going to be employed as the Governor-General.

The practice of successive Prime Ministers was to spend 15 minutes in the House of Commons on Tuesdays and Thursdays answering MPs’ questions. However, in 1997, Tony Blair changed the arrangements for Prime Minister’s questions, attending one weekly 30-minute session every Wednesday. ●

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Rumors Blair was guilty of a breach of convention, he clearly felt, and in fact was, perfectly free to make this change. The reason, it would appear, is that the original practice, involving twice-weekly questions, was not an important convention because no strong constitutional reason required the Prime Minister to answer questions on Tuesdays and Thursdays. However if he had abuse the convention all together then there would be a breach of convention

What statements most accurately describe constitutional conventions? ●

Binding political rules of constitutional behavior

4. Advisory Sources (Writings of legal academics) Dicey ●

British constitution is based on two principles; parliamentary sovereignty and the rule of law Rule of law 1. Everyone is equal before the law 2. Penalties can only be imposed when a law is breached — arbitrary power is prohibited 3. Remedies for illegal action are to be sought and obtained in the ordinary courts

Raz Primary function of Rule of law:

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Purpose of the rule of law us to help guide human conduct The law must be capable of guiding the behaviour of its subjects Law must be clear and understandable

List four sources of the UK Constitution ● ● ● ●

Acts of Parliament Common law (case law) Advisory Sources Conventions

What is the separation of powers? Why do nations embrace it? The separation of powers is the idea that power is divided between the three government institutions (executive, legislature, and judiciary) to protect citiz...