Constitution Flashcards
Constitution
Body of rules that defines the manner in which a state or society is organised. It sets out the way in which sovereign power distributed between the government and the people, and between governments and constituents parts
National constitution
Fundamental political principles, establishes structure, procedures, powers and duties of government
What does a constitution set out?
- division of governmental activities outlining which structure will perform which task
- power relationship between various institutions and their interdependence
- constraints on the government as well as the freedom of individual citizens and the benefits that they are entitled to
How does a constitution form?
There is a major internal dissension, then an upheaval, which then leads to a civil war and then revolution
What are the purposes of a constitution?
- Provides legitimacy (gives it legality)
- Protect Freedom (restrains behaviour of those in power and defines the limit of their power)
- Encourages governmental stability (Everyone understands the rule of the political game)
- Proclaims commitment (Goals and value which characterises a particular state)
- Sets out spheres of influence (influence of central and regional provisional tiers in federal countries)
- Provides a fresh start (after a long period of upheaval)
What is the standard format for constitutions?
- preamble (stirring a declaration of principle, perhaps the aim of the state)
- Organisational section (main institutions of government)
- Bill of rights/amendments
Evolution
Comes around through times
What did Kenneth Wheare stress in 1963?
Rather than having an unwritten constitution, Britain lacks a written one
Codified: Main provisions are brought together in a single authoritative document
Uncodified: less tangible constitution drawing upon a range of written and unwritten sources. Constitutional rules are written down but may not have been gathered together
Flexible or rigid
Flexible constitutions are very rare as they can be altered via the law-making process as in the UK and New Zealand. No law is regarded as fundamental law and there is no formal process for amendment
Rigid constitutions, principles and institutions assume the character of fundamental law. Process of amendment made difficult on purpose
Unitary or Federal
Unitary: Suitable in smaller countries whereby there is no significant ethnic, linguistic or religious differences. All powers are concentrated in the hands of the central government
Federal: division between a federal (central) government and various regional units that may be called states (US), lander (Germany) or province (Belgium). The federal countries, the power, and functions of the central authority and regional unit are clearly defined in written constitution
Monarchical or Republican
Not a key distinction as monarchy in democratic states tae the constitutional form. Britain, Belgium, Denmark, Holland, Norway, Sweden
Monarch rules by hereditary right
Presidential/Parliamentary
Parliamentary: Distinction that informs us about the relationship between the executive and the legislature. Executive is chosen from and accountable to legislature
Presidential: Two branches of government function independently on the basis of separation of powers
Parliamentary sovereignty or people sovereignty
Parliamentary sovereignty: Parliament formally possess supreme power
People power: (US) opens with “We the people of the US” Lincoln’s idea of government of the people
Uk constitution (quasi-federal)
It has accumulated over many centuries of traditions, customs, conventions, precedents and acts of parliament that serve as a complex framework within which those who exercise power must operate
Basics of a constitution
Uncodified
No single document whereby the rules concerning the government of the country are brought together
Basics of a constitution
Unitary
Parliament @ Westminister make laws for all parts of the UK. Although devolved powers do exist, all parts of the UK are subject to the legislative supremacy of parliament
Basics of a constitution
Flexible
Constitution can be amended easily. An act of parliament can amend this however, a referendum is needed for fundamental changes
Basic elements of a constitution
Sovereignty of parliament
Parliament possesses and exercises unlimited authority. Constitutional experts AV Dicey have proclaimed Parliament as having legal sovereignty meaning absolute and ultimate authority. Supreme law-making body in Great Britain and only Parliament can make or unmake laws and no other institution can override this decision
Basic elements of a constitution
Rule of Law
No one is above the law: Ministers, public authorities and individuals are all subject to it. AV Dicey saw it as a cardinal principle of government in a democratic system which seeks to equate law and justice.
- Equality before law: Everyone is subject to the same law
- No one should be punished unless they breach the law: No one is above the law and laws are clearly published and made accessible so people know what it is.
- The laws cannot be removed liberties are now covered by HRA 1998
Basic elements of a constitution
Walter Bagehot observed the key to success lay in the fusion of powers. Although cabinet makes decisions, derives from parliament
In favour of changes
- Constitution in need of reform
Subject of reform neglected. Labour government
only government
to express constitutional change
-Changes made to the constitution has not caused controversy
Labour government had a majority however it has avoided the mistakes made by the previous premiership. They have held referendums to settle issues
constitution does not need reform
- Political right may argue that it was unnecessary, unwanted and undesirable
- Interferes with structure and tackling one issue may lead to another. labour government gained personal power
- Labour government determined to strengthen strategic hold on government and policy making
- Wish to control showcased by HOC and party discipline as well as management
- Reforms do not have one consistent overall theme.
Arguments for a written constitution in the UK
- Evolved over centuries and sources have been added.
- would allow clarity about what is constitutional and what is not
- There is a strong tendency to have a dominant executive which has lead us to question whether we have an elected dictatorship
- Government can pass controversial measures if they have a majority. Tony Blair removed one session of PMQ’s without consulting other parties
- Up to date and allow citizens to know what their rights are. ECHR more than 50 years old
- Key provisions would become entrenched
- work as an educational tool which highlights the values of the political system and ensure politicians are taking actions and there is no unconstitutional behaviour
Arguments that UK does not need a written constitution
- Constitution already works well having provided the country with hundred years of stability
- No widespread demand for change
- Flexibility of current constitution enables us to make changes according to circumstances
- protection of rights have been pretty good in comparison to other countries
- difficulty in devising a new constitution which commands general approval, hard to guarantee due to variety of sources
- written constitution does not guarantee rights
- written constitution is inflexible
- written constitution does not always prove durable
SOBC- Statute Law
Acts of parliament that play a key role in defining the relationship between the government and the people or different elements of government
- Wales Act (1998) Established Welsh National Assembly
- Human Rights Act (1998)//Parliament Act 1911
Supreme source of UK constitution due to parliamentary sovereignty. Due to parliamentary sovereignty, parliament can pass a new statute law or make or unmake any existing law and overturn any constitutional practice
SOBC- Common Law
“Case-law”// “judge-made law” refers to established custom and legal precedence that have developed through actions of judges. Traditional basis of British society and evolved over a long period of time
- Freedom of Speech
- Free Assembly
Royal Prerogative is rooted in Common law and allows the PM to hold a number of powers and privileges which were performed in the past by the monarch but now is performed in their name. Derives from the crown
- Right to exercise mercy (prerogative of Home Secretary)
- Declare war, make treaties
- Dispense Honours (PM does this)
SOBC- Conventions
Traditions or customs that have evolved over time and have become the accepted rule of behaviour. Have no legal standing and easily overturned by an act of Parliament
- PM choice should be from HOC
- Proceedings from cabinet should be kept a secret
- Concept of individual and collective responsibility
- Monarch will always give consent to any bill that has passed through parliamentary stage
SOBC- EU Laws & Treaties
European communities Act (1974) meant that UK incorporated Treaty of Rome (1957) which allowed European Law to take precedence over national laws however Parliament retains the right to repeal 1972 Act.
Primary legislation- Treaty of Rome
Secondary legislation- EU Regulation and Directives
Factortame Case
Judicial review case taken by Spanish fishermen against UK government upon the claims that they had breached EU law by requiring ship owners to be majority british owned.
- This led to Merchant Shipping Act (1988) which confirmed the primacy of EU law over UK law
SOBC- Authoritative works
Scholarly texts which serve to codify practices not outlined on paper elsewhere. They have persuasive authority and have been used for years:
- Walter Bagehot: The English Constitution (1807)
- Erskine May’s: Parliamentary Practice (1844)
- A.V Dicey: Introduction to study of Law
Wade and Phillips (1998)
Constitution embraces laws, customs and conventions hammered out, as it were, on the anvil of experience
- British Approach has been empirical based on practical experience which makes adjustments necessary
Why are constitutions often re-written and revised?
Bring formal documents up to date and in tune with country’s governing arrangement
When did constitution renewal become a topic of interests?
1960s onwards
Is flexibility really a good thing?
Seems less effective at delivering the “goods” if it’s flexible. Rise of nationalism in Scotland and Wales and disruption of Northern Ireland
Undergoing challenge anyway
ECHR allowing people to appear to Strasbourg, ministers were ultimately saying that decisions made in the EU would have a huge impact on Britain
Centralisation of power which was prominent during Margaret Thatcher’s premiership. Erosion of functions and powers of local government
Attitude to change: the debate for change and against
Radical reformers took the view that fundamental change was required. The balance of the constitution had become undermined by a long era of Conservative rule (1979-97)
Wanted to address:
- Centralisation
- Accountability
- Human Rights
Pressure groups such as Charter 88
Wanted to introduce a package of constitutional measures ranging from written constitution to reformed democratic second chamber and from a bill of rights to reformed judiciary
Philip Norton (Moderate reformer)
Concluded that there was a need for reform however to strengthen it, not destroy it.
- abolish/reduce quangos
- more power to citizens @ local level
Andrew Adonis (moderate reformer)
Britain is appallingly governed and barely democratic however Britain is actually well governed. Since WW1 inflexibility has been the rule
Conservative government did not want constitutional change and they saw little scope for improvement in our constitution
What did the 1997 conservative manifesto stress?
Importance of the “strength and stability of our constitution- the institutions, laws and traditions that bind us together as a nation”. They feared that radical changes may endanger the whole character of our constitutional balance” and unravel what generations of our predecessors have created.”
What did Labour criticise in 1997?
Centralised, inefficient and bureaucratic. It wanted “measured and sensible reform” to open up government, improve quality of our democracy and decentralise power
What did people expect when Labour came into power?
- codified constitution
- UK Bill of rights
- Elected upper chamber
- Proportional system for election to Westminster
- State funding of political parties
- Reform of the monarchy
House of Lords Act (1999)
Saw all but 92 hereditary peers lose the right to sit and vote in the chamber. The second stage of Lord Reform stalled in 2003 when Parliament rejected all 8 models for a reformed chamber
2007: Commons vote for an entirely selected second chamber whilst Lords also gave supports in appointed model
Jenkins Commissions Suggestion
AV+ should be adopted for GE and although this was not followed through. Scottish Parliament and Welsh Assembly now use AMS. Labour established an independent Electoral Commission under PPERA 2000 which monitors elections, party funding and expenditure
Rights & Reform of Judiciary
HRA (1998) incorporated most of the European that citizens can seek redress in UK courts as opposed to going to Strasbourg
Freedom of Information Act (2005)
Citizens have the right to view information held above them as well as work of the government
Creation of an office elected London
Mayor + Greater London Assembly
Due to referendum, other cities have elected city mayors
Changes to HOC
Creation of more reasonable hours and payment of select committee chairperson.
Judiciary
Branch of government responsible for the adjudication of law and arbitration between parties in any legal dispute. The term includes those individuals and bodies (primarily judges and the courts) involved in administering and interpreting the meaning of laws. Judicial system can operate without any interference from government of the day
What are judges involved in?
Interpretation of the constitution and in countries with judicial review ensuring laws passed are in accordance with wording and spirit.
Meaning that there is often ambiguity which may have political implication
What roles do judges play?
- Preside over criminal trials for serious offences
- deliver sentences
- Peacefully resolve civil disputes between individuals
- Uphold the will of the legislature
- Responsible or judicial review of particular law and administration
- Senior judges, they may asked to chair enquiries
- Law lords ist in parliament
Role of the courts
- Expanding role of government
- Increasing complexity of governmental machinery which means that there is more likelihood of conflict between branches and levels of government
- Increasing emphasis on rule of law and the rights of citizens
- Unwillingness on part of the politicians to deal with sensitive issues
Administration of justice in the UK
Argued the case for having a ministry of justice, They pointed out the inadequacies of the judicial system and difficulties in obtaining information in HOC. They wanted a single “Minister of Justice”
What were the changes from 2007?
Lord Chief Justice—System of courts/justices
Ministry of Justice department:
Responsible for sentencing policy, probation, prisons and prevention as well as re-offending in England and Wales. Responsible for dealing with all suspected offences from the time they are arrested until the convicted offenders are released
- Head is Lord Chancellor .
Retain the roles and responsibility for the police and the security service as well as the oversight of crime reduction, counter terrorism. - Home Secretary
Retains responsibility for the police and the Security service as well as the oversight of crime reduction, counter terrorism
Key elements of the legal system
- Magistrates’ court: made up from three people who are from the local communities who have no legal qualifications and unpaid (lay magistrates)
- receive training to give them sufficient knowledge
- Court clerk advises them on laws and procedure
- some circumstances, district judges preside over magistrates courts
- legally qualified and salaried
- judges preside over crown and county court
- assisted by Jury in Crown courts
What are the six pillars of Judicial independence?
- Consolidated fund
- Security of training
- Contempt of court
- Growing separation of powers
- Independent appointed process
- Training
Creation of regional machinery
Votes in the North East give the chance to opt for establishment of an elected assembly in their region (which they rejected)
