Flashcards in Constitution and Judiciary Deck (62)
What is a constitution?
A set of rules that defines the way a state is organised, sets out the ways power is distributed and establishes the duties powers and functions of different parts of government. It is basically the rules that govern government. They are a means to protect people as they force governments to use their power correctly.
What are the two types of constitution a country can have?
Codified and Uncodified
What does codified mean?
It means the constitution is in one single authoritative document.
What are the features of a codified constitution?
-It is entrenched, therefore rigid, so it is difficult to change or remove
-Often contain a bill of rights to protect civil liberties
-USA has a codified constitution, to change this you need 2/3 out of both houses and must be supported by 75% of all states. Only 26 amendments have been passed since 1787
-USA// revolutionary constitution
What are the features of an uncodified constitution
-Flexible because it is not fundamental law so it has the same status as other laws
-Not entrenched, so easy to change
-It is also not judicable as no action can be deemed unconstitutional
-UK// evolutionary constitution
Name the five sources of the UK constitution
Works of Constitutional Authority
What is Statute Law?
Created by parliament – gain the force of law.
The most important source of the rules making up the UK constitution.
More recent examples are the Scotland act (1998) creating a Scottish parliament , human rights act 1998, house of lords act 1999 removing most hereditary peers from the upper chamber, Constitutional Reform Act 2005 which created the Supreme Court
What is Common law?
Legal principles that have been developed and applied by UK courts. Courts interpret and clarify the law where there is no clear statute.
Includes customs and precedents e.g. royal prerogative: the powers exercised in the name of the Crown. Royal prerogative includes power to declare war and negotiate treaties, dissolve parliament, appoint government ministers, appoint judges.
These powers no longer rest with the monarch. It is government ministers who exercise prerogative powers in the name of the Crown
What are Conventions?
They are rules of constitution which have gained authority through repeated use, not legally binding.
ex: Salisbury Convention
Collective Ministerial Responsibilty
What are works of Constitutional authority?
Books written by constitutional scholar A.V. Dicey, authority on parliamentary sovereignty (No formal legal authority but they have persuasive authority. Used to shed light on obscure areas of constitutional practice and interpretation of the core values that form the basis of the constitution
What are the EU Laws?
Treaties establishing the EU , legislation and judgements of the European Court of Justice. These are EU laws which are applicable to some areas of UK Law due to the extension of powers by the Government to the EU
Ex: Working Hours, Agricultural policy, Single Currency market 1992
What are the key principles of the constitution?
The Rule of Law
What is Parliamentary Sovereignty
-Sovereignty is the unrestricted power and authority over the UK
-As the UK has an uncodified constitituion, Westminster is the ultimate law authority
-Parliament is the highest power in the land
What does the principle of 'the rule of law mean?
That every citizen is equal in the eyes of the law and every citizen is bound to the law and nobody is permitted to act above the law. A system of rule where the relationship between the state and the individuals is governed by law, protecting the individual from arbitrary state action
What is a Parliamentary Government?
That essentially there is a fusion of powers between the legislature and the executive
What is a Constitutional Monarchy?
A political system in which the monarch is the formal head of state but the monarchs legal powers are exercised by government ministers
What are the strengths of an uncodified constitution?
-Historic and Traditional
-If it aint broke, don't fix it
What are the weaknesses of an uncodified constitution?
-Uncertainty over interpretation of the constitution
- Elective dictatorship
-Weak protection of civil liberties
Why is a constitution being flexible advantageous?
Because as statute law is so easy to change, it allows us to adapt quickly to change as it is not entrenched, preserves Parliamentary Sovereignty as no government is bound by their predecessors.
Why is a constitution being democratic advantageous?
Being democratic means that a law maker must be elected to change the constitution and it cannot be blocked by the judiciary, which preserves Parliamentary Sovereignty. This also limits the power of government due to democratic pressures and having to be accountable to electorate. This work especially well because of the representative democracy the UK has
Why does the constitution providing an effective government be advantageous?
It means that Government policies can be passed quicker because the judiciary has no such powers which would enable them to overturn the acts, which allows the Government to do their job with limited resistance
Why is uncertainty over interpretation a disadvantage?
Because no statute law is fundamental and government are not bound by their predecessors, the Government is free to interpret any current law in any manner they choose, as some laws can interpreted in several different ways. This again increases power because government is able to manipulate interpretations to fit in with their plans
What is an elective dictatorship?
Essentially the idea that a Government can act however they like until re-election, and in theory this increases the power of Government as they are most unaccountable to anyone whilst in power, however a Vote of No Confidence can clear that right up
Why is centralisation an issue?
Because this leaves too much power in the hands of one small group- the executive. There is an executive dominance due to the fusion powers which again extends the powers of the government and makes it much more difficult for others to challenge the government
Why does an uncodified constitution promote a weak protection of rights
As in theory, nothing except elections force a government to respect individual rights.Elections empower the majority not minority so there is little opposition and in theory, all rights ould be taken away as there are no enshined civil liberities in higher law. This increases their power as they are only accountable nce every five years. Also derogations of the HRA can see laws that infringe on civil liberties passed.
Reasons for us to have a codified constitution?
• Because the constitution has evolved over centuries and is uncodified, there is nowhere where it can be easily seen. It has been added to from time to time and new sources have arisen such as the EU. A written document would provide a clear statement of what is constitutional, removing the uncertainty of such things as the role of the Monarch in the event of a hung parliament after an election. This is perhaps even more desirable in an era of constitutional change as bodies such as the EU are now so important.
- There has been a strong tendency to executive dominance in British government, hence the complaint about Britain having an ‘elective dictatorship’, or Prime Ministerial government. The government of the day can change the rules in its own interests. Tony Blair was able to remove one session of Prime Minister’s Question Time in the House of Commons without and consultation with other parties, just as his government changed the electoral system and the composition of the House of Lords. Governments with a strong majority can pass even the most controversial measure.
-Protected rights- Individual civil liberties would be protected by the constitution, having positive rights makes the judiciary more powerful and makes civil liberties easier to protect because they would be able to deem the laws unconstitutional, there for vetoing any bill. This would also make the relationship between an individual and the state much more clear and apparent
• Key provisions will be entrenched (i.e. firmly established and difficult to amend). Many of our key principles such as the rule of law have come under threat, and these threats can only be prevented by having a codified constitution.
• It would be easier for the courts to interpret what is lawful behaviour and uphold the Constitution.
• It would have an educative value, highlighting the values of the political system. It would give the British public a greater sense of shared values and citizenship.
Reasons against a codified constitution?
- It is rigid, its fundamental law which will make it extremely difficult to change and therefore can be outdated and fail to respond to changes currently going on in society ex. USA and Gun Laws
-Many acts that are to do with our constitution have gained de facto fundamental law status (as argued by constitutional experts such as Bogdanor). For example, in the Thoburn vs Sunderland City Council (2002) case the Law Lords’ view was that there was a hierarchy of Acts of Parliament: ordinary statutes and constitutional statutes, the latter having special status. This therefore implies that constitutional statutes, such as the HRA, should only be repealed when parliament does so by express provisions, and not as unintended consequences of new laws.
-There is a lack of widespread demand for codified constitution and no one can actually seem to agree what exactly would be in it if there was one. ex. EU constitution, but Netherlands and someone else refused so they were not able to make it fundamental EU law
• The protection of rights has generally been good, there me be occasional blemishes, but compared to many countries Britain has a strong record in respecting individual liberty. In contrast the existence of a written constitution in the former Soviet Union did not guarantee respect for personal freedom; neither does the Zimbabwe one today. Even in a democracy such as the US, the voting of black Americans was long denied.
Why is there interest in constitutional reform?
Rise of nationalism and the role of devolution in Scotland, Wales and NI, particularly Scotland, who had a referendum 2014 to leave but voted no, but are moving towards 'devomax'
A growing concern that individual liberties could be reduced ex. Anti-Terror laws and also due the fact that in he HRA Article 13- The right to resolution was not enshrined so the government do not have to listen to the judiciary in the event of an act being incompatible with a human right.
What changes were made by Blair in terms of Constitutional reform?
House of Lords Act (1999) removed all by 92 hereditary peers
Devolution in 1998 for Scotland, Wales and NI, made England arguably a 'quasi-federal' state because Westminster is unable to have a say on devolved powers ex. education
-Held binding referendums on all devolution
-Human Rights Act was enshrined into British law
-Lord Mayor of London and London Assembly 2000
-CRS 2005- Creation of the Supreme Court which came into effect in October 2009
-FOI (2005)- Allowed citizens to hold the government to account
more than any other government since WWII