Constitution Flashcards
(19 cards)
Common law
written - legal precedent resulting from senior judge rulings
Conventions
unwritten tradition and social norms
authoritative works +eg
written - books and documents by constitutional experts dealing with parliament procedures and the duties of gov (not legally binding)
- Walter Bagehot ~ The English Constitution
Statute law
Acts of Parliament - written
ultra vires
“beyond power”
• judiciary has the power to decide boundaries of lawfulness and interpret the constitution
Codified or uncodified?
codified:
- strengthen separation of powers and limit power of executive
~ In recent years, UK has shifted towards excessive executive power wholly lying with PM
• e.g 2003 Iraq War, Tony Blair extended prerogative powers and acted in own interest to intervene in conflict and deploy troops in Iraq
~ harder to examine and determine whether the concentration of power lies within particular branch
~ one would have to look thru multiple documents
~ with CC, single place to identify if there’s sufficient safeguards in branches of people
- enhances the protection of HR
• eg. crucial act like HRA 1998, which incorporates ECHR into UK law and guarantees rights and freedoms of citizens, always at risk of being repealed
~ due to element of Parl Sov., equality of legislation, Parl can’t bind successors or be bound by predecessors = power to amend or repeal any act (no fundamental law) regardless of how imperative they are - risk of being dissolved and HR under threat
Uncodified:
- UK has good track record on HRs
•eg. EqualityAct2010 : uphold rights of individuals (Birmingham City Paycase : council unfairly paying women less than men wholly due to gender - council had to pay £160m worth of compensation and went bankrupt)
~ hold ppl and large organisations to account and can punish for exploiting certain demographic
~ act protects characteristics eg ethnicity and gender
- UC is adaptable , organic and malleable with the time period.
• eg. Scottish Devolution Referendum 1997 - 74% voted yes = in response: Scotland Act 1998: established Scottish Parliament
~ Parl can create laws that adapts to modern day and reflect circumstances of the time
~ amend or repeal any outdated laws and reform constitution pragmatically
3 elements of parliamentary sovereignty
- Equality of Legislation
= all legislation is equally entrenched into UK constitution
• e.g. Edward Heaths Parl. in 1972 signed Treaty of Assession so UK would gain EU membership in 73 with European Communities Act . However, in 2019 Boris Johnson repealed previous act with European Withdrawal Act - Uk left EU
~ no parl can bind successor or be blunt by predecessor since we have no fundamental law
~ Parl can’t amend or repeal any law as easy as creating a law - Legislative Supremacy
= Parl is highest law making body in land
• e.g. UK v Hurst: discuss prisoners right to vote (HR), however incompatible with Representation of People Act (statute) and the Act was never amended
~ courts cannot strike down statute law bc Parliament is deemed highest law maker in UK, despite case derogating ECHR - Law on any matter
• e.g. CRA2005: designed to create separate supreme court and emphasise judicial independence
~ parl has ability to create legislation that has power to completely restructures constitution and branches of power
~ alters where political power lies : extremely significant
codified
written in a single document
uncodified
not found in one place
fusion of powers eg
being in more than 1 branch or gov
eg PM - exc and leg
Constraint on Parl sov
- rule of law
- international treaties
- devolution
Gina Miller case 2019
accused BJ of unlawfully seeking to limit Parl sov through proroguing parliament for 5-6 weeks in order to achieve a brexit deal without parliamentary opposition
- parl reopened instantaneously after Baroness Hale gave her verdict
Belmarsh case
opposed Terrorism Act 2001 - any foreign national suspected of any terrorist offences could be imprisoned indefinitely (incompatible with HRA)
- issued a declaration of incompatibility as it was conflicting with ECHR
• pressured gov to modify it and they did so
Constitutional Reform Act 2005
JUDICIAL INDEPENDENCE:
- created separate SC (middlesex guild hall) physically separated
- no new law lords
- reduced power of LC (1. Lord Speaker -L 2. President of SC -J 3. Minister of Justice (LC) -E)
- Judicial Appointment Commision (impartial): used to be PM advised by LC - acts to please PM (still has right to reject)
• designed to increase Judicial impartiality by separating powers
Unitary state
Parl is the supreme power holder - one level of authority
fundamental law
laws are so entrenched in to the constitution that other laws must be compatible with them (highest law)
sources of UK constitution
- common law
• Miller 2 case 2019
~ prorogation subverted purpose of Parl and royal prerogative
~ CL legally binding and ensure RoL (Parl reopened) - statute law
• CRA05
~ for 800 years SL has done extraordinary things e.g. sets puts rights of Parl and can alter balance of powers within institutions of the state - Works of authority
• WB’s The English Constitution 1867: established classic def. of PM (primus inter pares - first among equals) and principles of a cabinet gov
~ 2 centuries later, concept of cabinet full of ministers is still used and PM formally equal to his cabinet yet is the unofficial seniority in office
~ constitutionally implemented
Freedom of Information Act 2000 paragraph
gave individuals greater access to info held by public bodies
e.g MP expenses scandal 2009: disclosure of widespread misuse of MPs allowances e.g ornamental duck house
~ public furious and resulted in resignations and sackings and 392 politicians repaying £1.3m of misclaimed expenses
~ act pivotal on making this info public and emphasises transparency and gave public confidence and right to access info
Few significant changes since 1997
hasn’t been:
- democratisation: unsuccessful due to lack of political participation by public
• Wales Act 1998: establish the Senedd - 2021 Election turnout = 46.6% (highest ever)
~ extremely low: electorate not interested in devolved body
~ contributes to existing participation crisis in UK politics
- lack of modernisation of political institutions
• common pledge of Labour was HoL reform
2012 fail: HoL reform bill - proposed 80% elected and 20% nominated and remove all hereditary peers
~ failure left parliament with an unfinished HoL reform
~ uncertainty surrounding future of second chamber
~ unsuccessful reforms with bills no passing shows little change
Has been:
- Increase protection of HR
• Equality Act 2010 (116) to tackle discrimination- Brum city pay case
~ reduced exploitation and discrimination of citizens by larger, powerful organisations
~ successful case that shows the effectiveness of HRA due to punishment and bankruptcy of council
- Successful devolved governments
• Northern Ireland devolved body established in 1998 - helped end The Troubles under Good Friday Agreement
~ works successfully and sufficiently and gives more power to other areas that wholly focuses on the interest and issues of those people
~ significant since it has resolved disputes
