Public Law

Public Law Flashcards.

What is A.V. Dicey's definition of law?

The norms enforced by authority, as supervised by courts

What is John Austin's definition of law?

Law is a command of a Sovereign Power enforced by coercion

According to Dicey, what are the components of the Rule of Law?

All citizens are subject to the law; punishment only for wrongdoing; everyone is treated equally

What are the three branches of government?

Legislative, executive, and judicial

What is a constitution (in general terms)?

A set of rules that create and define the functions of public law actors and institutions, especially the relationship between citizen and the state

What is the focus of Political Constitutionalism?

Political institutions and the electorate have legitimacy to develop the constitution; Constitutional rules are determined by political actors; Majoritarianism/democratic

What is the focus of Legal Constitutionalism?

Legal institutions determine scope and meaning of constitutional texts and rules; Written in documents or interpreted through legal principles; protection of minority constitutional rights

What provides the statutes, HRA 1998, CRA 2005 and common law for the UK constitution?

Legal Constitutionalism

What provides parliamentary process and conventions of government for the UK constitution?

Political Constitutionalism

Is the British Constitution codified or uncodified?

Uncodified (unwritten)

What does it mean to say that the UK constitution is unitary?

A single centralised source of sovereign power superior over other sources; all constitutional power emanates from the centre; any distributed power can always be recalled to the centre

What is the role of the Monarch in the British System of Government today?

Largely ceremonial; bound by the constitution and acts as Head of State. Power is exercised by government (royal prerogative).

What does the UK's parliamentary structure have?

A bicameral legislature, consisting of the House of Commons and House of Lords, separation of powers and Parliamentary Sovereignty

Within the British Constitution, what does the central place of parliament mean?

The highest authority is the crown in parliament

What does judicial independence mean?

The judiciary needs to be kept away from the other branches of government and resolving conflict

In Thoburn v. Sunderland City Council [2002], what did the judge differentiate between?

An ordinary statute and a constitutional statute

What governs the legal relationship between citizen and state and ALSO increases or shrinks the scope of fundamental constitutional rights?

Constitutional statute

What does A.V. Dicey say that the British constitution has?

Laws (Statute and Common law) and Rules (customs and conventions)

What are constitutional political rules identified as?

Constitutional Conventions

What is the Jennings Test?

1. The function is traditionally performed by the government. 2. It is inherently governmental in nature that it should be classified as such

What do constitutional conventions do?

Regulate/guide behavior in areas not suitable for legal regulation; provide an indication of good constitutional practice; set or manage expectations based on past behavior.

According to the Cabinet Manual, what are conventions?

Rules which are “binding in operation but not in law”

What are examples of areas regulated by constitutional convention?

Power of the sovereign, Existence of the Prime Minister, Relationship between people and institutions

What are a) Monarch acts only on advice from their ministers and b) Monarch should be consulted by, may encourage and may warn their ministers known as?

Cardinal vs Tripartite convention

Why obey conventions if they are not legally enforceable?

Constitutional History / Precedent by the Jennings Test and Political reasons e.g. ignoring a convention could cause political difficulties.

Does giving legitimacy to political decisions modulate responses to conventions?

Yes, it provides a constitutional justification for action, rather than it being seen as purely political.

In short, what do conventions do?

Form a significant part of the UK’s constitutional framework.

What is the definition of the Rule of Law (per Lord Bingham)?

All persons and authorities within the state, whether public or private, must be bound by and entitled to the benefit of laws that are publicly and prospectively promulgated and publicly administered in the courts.

What are key characteristics of the Rule of Law?

Equality before the law; Non-arbitrary power; Clear, prospective laws; Access to justice; Judicial independence; Protection of rights.

What are the sources of the Rule of Law?

Statute (Constitutional Reform Act 2005, s.1), Case law, history, theory, convention

What's the difference between Formal vs Substantive Rule of Law?

Formal (thin): Focus on process, clarity, prospectivity (Raz); Substantive (thick): Adds morality, justice, rights protection (Bingham, Allan)

According to Joseph Raz, what must Law be?

Clear, stable, open, general

What is law according to Ronald Dworkin?

Law involves rules + moral principles

According to A.V. Dicey, what makes up the law?

1. Equality before the law 2. No discretion; law must be certain 3. Constitutional rights arise through judicial decisions

Which key case examples show the Rule of Law in the Courts?

Entick v Carrington (1765); R v SSHD ex p Fire Brigades Union (1995); A v SSHD (2004)

How is the separation of power related to the Rule of Law?

Executive cannot overrule judicial decisions

How is Parliamentary Sovereignty related to the Rule of Law?

Increasingly courts suggest that even Parliament must act within limits if it violates rule of law in extreme ways

How are Constitutional Conventions related to the Rule of Law?

Courts enforce rule of law, not conventions

What is the basic idea behind Separation of Powers?

Ensuring that no one branch of government has too much power by dividing responsibilities

What are Cicero's views regarding the forms of government?

Monarchies: Lack of access to shared justice; Aristocracy: The people have hardly any share in liberty; Democracy: Inequitable in that it recognises no degrees of status

What two groups does Tomkins support a division between, instead of a tripartite split?

Parliament and the Crown

What is Second Treatise on Government (1690), advocating?

A Bipartite separation of Legislative power and Executive power

Charles-Louis de Secondat, Baron de Montesquieu advocates what type of separation?

A Tripartite separation of Executive, Legislative and Judicial

What view does William Blackstone take of the judiciary?

The judiciary are the main preservative of the public liberty

What is 'Westminster ‘fusion’ model'?

The executive (government) and legislature (Parliament) are closely linked

According to the HM Treasury, ex parte Smedley quote, what should courts and parliament do?

Courts should not interfere with how Parliament works, and Parliament should avoid interfering in court matters.

Who belongs to The House of Lords?

Appointed experts and experts by experience and reviews legislation from the Commons.

Since the Reform Act [1832], what has the House of Lords become?

A revising and suspending House

What did the Parliament Acts 1911 and 1949 do?

Reduced and prevented delay of ‘money’ bills by the House of Lords

Does the Earl Marshal (Duke of Norfolk) belong to the House of Lords?

Yes, both him and the Lord Great Chamberlain (Marquess of Cholmondeley)

What are Types of peerage?

Lords Spiritual, Lords Temporal, Life Peers and Hereditary Peers

Does the House of Lords lack diversity compared to UK society, both in gender and ethnic representation?

Yes, as The Lords lacks diversity compared to UK society, both in gender and ethnic representation.

What are themes aiming to control size, increase legitimacy and impact on the British constitution in the House of Lords?

Control size, increase legitimacy, compare to Commons, constitutional impact.

What is the Erskine May definition of Parliamentary Privilege?

Special rights that allow Parliament and MPs to do their job

What does parliamentary privilege cover?

Speech and debate, and immunity from arrest (civil not criminal).

Is this Contempt and a breach of Privilege; Boris Johnson, Partygate & Contempt?

Yes, Johnson was found to have broken parliamentary rules and lied

What is the bicameral structure of parliament?

House of Commons, House of Lords, and The Crown

What are some of parliament's main functions?

Function of parliament includes roles like forming government, scrutinizing, continuing and legitimizing processes

How many members are in the House of Commons?

650 members

What is dissolution

End of Parliament before an election, ending the legislative function

Why is the House of Commons paramount?

It is elected by the people and controls financial resources, allowing it to support or remove governments.

What training resources are available to Members of Parliament?

The House of Commons Library Training, Staff training e.g., W4MP, Ministerial Training via 'Government Campus'

MPs have what kind of Functions?

MPs perform roles such as legislating, grievance channel etc.

What is the annual salary of an MP?

£91,346/annum plus expenses

What is a Committee to look out for when discussing Standards in Public Life?

The Nolan Principles

Which act established The Seven Principles of Public Life?

Committee on Standards in Public Life, First Report Cm 2850 (May 1995)

When a Prime Minister wishes to dissolve Parliament, what power do they use?

Prerogative

Who may stand for election in the UK?

Citizens, citizens of the Republic of Ireland, and certain Commonwealth citizens may stand for election if over the age of 18

Peers in the House of Lords do what

Cannot vote in a General Election

General Election outcomes include

Majority, No overall control or Hung Parliament, Minority and Coalition

Under the Representation of the People Act 1983, how many days are there to file an election petition for challenging individual results?

21 days

What are some of the advantages and disadvantages of First Past the Post?

Simplicity vs Lack of proportional votes

Under the Political Parties, Elections and Referendums Act 2000, what limits campaign spending?

Party spending is regulated to ensure democratic integrity

Features of referendums

Positive effects include boosting democracy, improving popular opinion and providing a public mandate

The Communication act 2003 regulates what

Controls and rules that apply to all political advertising

The key legal framework for what concerns Party activities?

Political Parties, Elections and Referendums Act 2000

According to Jeanette Ashe, parties act as what

Parties act as gatekeepers, often reproducing societal inequalities through selection processes.

The formal hierarchy or Key Feature of the Executive includes.

The executive branch is structured in a hierarchical manner, with clear lines of authority and responsibility.

The executive’s Responsibility includes.

Formulation of policy and then providing for Legislation and finally Implementation where needed

The three types of executive power are

Statutory, Prerogative and Third-Source Power

People and Bodies of Significance to discuss in the executive.

The Crown/Monarch; the Prime Minister; The Cabinet; Key Issues to Consider

Historically, what has happened to the Crown?

Gradually been reduced over time, with more power being exercised by elected officials

Describe the Characteristics of the Royal Prerogative

Derived from common law, in name of the Crown, and no act of Parliament necessary.

Prerogative Powers Exercised by the Government

Appointment and Honors, Administration of Justice, Conduct of Foreign Affairs, Emergency Powers

Under what legal basis were the Powers which the Armed Forces can bring to bear established

Delegated powers over the Royal Prerogative

What is the notion of 'responsible government'?

The principle that the government is accountable to Parliament for its actions

Key issues to consider in parliament

Mechanisms by which the executive is held responsible for its actions

In what ways can Government spending is scrutinized by Parliament?

To ensure it is efficient and effective

Under Individual Ministerial what must happen

Ministers are responsible to Parliament for the actions of their departments

Name key methods for Individual MPs in Parliament to undertake Scrutiny?

Question Time, Debates, and Select Committees

The Post of Prime Minister is best described as what?

The post is not a creation of law but a consequence of politics combined with constitutional necessity

What is The Cabinet Manual?

A guide to laws, conventions, and rules on the operation of government.

What theories is the Role of the Prime Minister based on?

Separation of Powers, Rule of Law, Parliamentary Sovereignty

What is a minister with power of the Crown known by?

Prerogative powers

What is at the core of the Legal Sources of Prime Minister Power and the The ‘RAM DOCTRINE’?

Prerogative powers

What is a Ministers accountability to a Minister under legal obligation to not

Breach code or act that’s illegal.

Powers of the Prime Minister are best described as.

The legal dimension and the political dimension

According to the Cabinet Manual, where does a Cabinet get authority from?

Established by convention and does not have specific terms of reference or powers laid down in legislation

What Role and Function does the Cabinet provide for?

Political and constitutional reform

What action might a Minister take regarding a cabinet at odds with

For the refusal of the Prime Minister’s parliamentary majority to endlessly prefer to supply and support the government rather than check and balance it