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68 Cards in this Set
- Front
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B Sources of the UK constitution
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How does constitutionalism restrain the use of political power:
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(i) establishing a set of basic individual rights and freedoms protected by an independent judiciary
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(ii) democratic representation (i.e. Government institutions whose members are chosen and can be removed by the people)
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(iii) public participation in government decision making (e.g. By referendums and public enquiries)
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(iv) separation of powers
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The basic elements which make up the UK constitution are:
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(i) rules and practices governing the working of the political system
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(ii) institutions of British government (executive, legislative and judiciary) and the rules and practices which constitute them
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(iii) doctrines which influence the rules and practices of the constitution
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What makes up the UK constitution
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It is made up of legal sources (i.e. Staute and common law) and non-legal sources (i.e. constitutional conventions)
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Sources of the UK constitution
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(1)Legislation
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legislation is the most important source of
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constitutional law
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Important Acts are:
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Magna Carta 1215
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Bill of Rights 1689
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Habeus Corpus Act 1679
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Act of Settlement 1700
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Parliament Acts 1911 and 1949
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Crown Proceedings Act 1947
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Europena Communities Act 1972
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Representation of the People Act 1983
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Human Rights Act 1998
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what is probably the most important constitutional source
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legislation
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(2) Europen Union Law
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True or Fasle - The European Communities Act 1972 is a UK statute which incoporated EU law into national law
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TRUE
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True or False - Most laws from the EU are automatically part of UK law
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TRUE
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True or Flase - Sometimes a conversion of EU law into UK law is necessary through a statutory instrument
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TRUE
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(3) The common law
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what refers to a small group of customary rules recognised at common law which determine what an Act of parliament is and the principle of parliamentary supremacy
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Custom
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what refers to historical and symbolic duties of state carried out by the monarch
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The Royal prerogative
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some prerogative powers are:
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(i)summoning and disolving of Parliament
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(ii) assenting to bills
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(iii) appointing and dismissing ministers
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True and False - through convention, the Monarch exercises these powers only on the advice of her ministers
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TRUE
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In practice, the Monarch has no personal power in these matters and
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decision-making in relation to these rests with cabinate ministers
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Individual rights
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The function of the constitution is to regulate the relations between
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the state and private individuals
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what allows a detained person the right to go before a court at a certain time and date and question the legality of the detention
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Habeus Corpus
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if it is found that a person has been detained without good cause that person can seek other
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legal remedies such as a claim of false imprisonment
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Remedies under judicial review are
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A mandatory order, prohibiting order and quashing order are remedies for individuals who successfully challenge the acts of public authorities and officials
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Under the presumptions of statutory interpretation
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certain actions cannot be permitted without clear legislation
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(4) Conventions
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What are conventions
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(i) Conventions represent important rules of political behaviour which are necessary for the smooth running of the constitution'
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(ii) conventions are non-legal rules which are recognised but not enforced by the courts
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What is the interrelationship between law and convention
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there are not enough legal rules to say what should happen and therefore conventions are necessary to make the constitution work
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True or False - Conventions mean nothing without there legal context
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TRUE
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ministerial responsibility refers
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to the two aspects of collective responsibility and personal responsibility
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the doctrine of ministerial responsibility is a convention and not
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bound by law, they are non-legal rules
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Collective responsibility applies to the Cabinet and relates to
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(i) all ministers must be loyal to the policies of the government whether or not
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they are personally concerned with them
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(ii) a minister is not entitled to disclose any disagreement he may have
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with his colleagues unless they resign
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(iii) the government as a whole must resign if defeated
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on a vote of no confidence
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Individual responsibility applies to individual ministers
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(i) Ministers are accountable for all offcial acts carried out in their department whether or not
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they were actually involved
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(ii) Ministers should resign if guilty
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of any unsavoury conduct
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C Parliamentary supremacy
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(1)The doctrine of parliamentary supremacy refers
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to the relationship between Parliament (Acts of Parliament) and the courts
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The doctrine has two points
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(i) Parliament has the freedom to make the laws of any kind whether is unfair, unjust or impossible to enforce
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(ii) Statute cannot be overridden by any body outside Parliament, which means
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(a) UK and international courts have no power to declare an Act of Parliament invalid
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(b) Statute prevails when in conflict with another aspect of law
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(c) Parliament cannot bind its successors and a statute cannot be protected from repeal
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Will courts look behind the formal words of a Bill in order to correct any defects during its drafting
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No the courts have no jurisdiction to do this if a Bill has recieved
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(a) the assent of The Queen, Lords and Commons
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(b) The Queen and Commons and is certified by the speaker as complyingwith the Parliament Acts procedure (1911)
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(2) The scope of parliamentary supremacy
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What is public international law
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refers to law which deals with relations between states
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Public international law is enacted
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through treaty and agreements
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International law is only binding in UK courts
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if it is made part of our law
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In the UK statute may
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change the constitution
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3 Limitations on parliamentary supremacy
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Limitations established by the courts refers to
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Parliament cannot bind it succesors
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The doctrine of implied repeal refers to
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Earlier Parliamentary legislation that may conflict with more recent legislation being impliedly repealed in favour of the later legislation
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Ordinary statutes refers to
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Statutes which are impliedly repealed by the creation of another statute
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Constitutional statute refers to
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Statutes which require the intention of Parliament to alter them and cannot be considered impliedly repealed
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How to determine a Constitutional statute:
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(i) it must condition the legal relationship beetween citizen and state
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(ii) it must change the scope of fundamental constitutional rights
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Limitations arising from EU membership refers to
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the treaties which have been signed and bind the UK
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non-legal limitations refers to
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aspects which may affect Parliaments ability to pass statutes such as public opinion and international obligations (ECHR)
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