The Constitution Flashcards
Evaluate the argument that there are more advantages to having a codified constitution than remaining with an uncodified constitution.
Intro:
- uncodified constitution meaning ultimate sovereignty lies in parliament and they can override any decisions.
- an uncodified constitution fundamentally gives the government flexibility which is in the interests of the public, so more democratic.
1:
* A codified constitution provides more clarity and effective checks on arbitrary actions by political bodies.
* It is more rigid, and people have more confidence in it.
However:
* Our uncodified constitution allows more flexibility and can respond to the needs of society.
- Dunblane massacre 1996, quick to introduce restrictions to sale of guns
- When social attitudes changed, the Cameron government passed a civil marriages act and this progressed rights.
- Consequently, we can see the flexibility of the UK constitution far outweighs the codification of our rights as parliament already safeguard our rights effectively and the benefits of the flexibility is far greater.
2:
* A codified constitution establishes a proper separation of branches with clear checks and balances.
* The power of the judiciary would be likely to be strengthened (democratic)
- They are impartial and trained to do so which means they can truly guard the constitution and prevent the government making decisions which could be motivated by a desire to retain power as opposed to what is best for the public
- A codified constitution would place checks and balances on the government and stop ministers, much like Boris Johnson and the partygate incident, from evading justice and failing to take responsibility for their actions.
However:
* A codified constitution would likely lead to gridlock between the branches. Our uncodified constitution sees Parliamentary sovereignty, which overrules all other bodies.
* The judiciary is unelected and should not have huge powers.
- In addition to this, our elected politicians are accountable to the people whereas judges aren’t, which would lead to a democratic deficit which is not in the interests of the UK political system.
- ministers are held accountable whereas judges aren’t, by having a codified constitution we would be giving far too much power to an unelected, unrepresentative body.
3: rights better protected
* A codified constitution would be better at protecting individual rights
- laws can be struck down if they encroach upon these rights
- If these rights were further entrenched then governments would not be able to remove rights with a simple majority, as Dominic Raab is currently attempting with the repeal of the Human Rights Act 98.
Using the source, evaluate the view that the UK’s constitution requires major change.
1: It is too easy for a government to make
significant constitutional changes.
- codified vs uncodified debate
- Under our uncodified system it is too
easy for a government with a
majority in the Commons to make
significant constitutional changes,
including those which affect our
fundamental rights.
- under our uncodified system, it is too easy for a gov with a majority in the commons to make significant constitutional changes, including those which affect our fundamental rights
However: it is flexible/ can respond to public changing opinions
2: ‘judiciary does not have the power to strike down laws which are inconsistent with the Constitution’.
- HRA 1998 and constitutional reform act 2005 have allowed judges to issue a declaration of incompatibility - do not actively have any powers of enforcement nor can the declaration of incompatibility force government to change their actions
- limits their role in protecting human rights
- As judiciary is only able to issue a declaration of incompatibility and not strike down laws it is weak in protecting human rights and further reform is needed.
Furthermore:
- judicial reforms were good as they do not undermine Parliamentary sovereignty.
- HRA act 1999 Inc the ECHR into UK law and emboldened judiciary ability to protect rights like right to privacy, family life and a fair trial.
- Overall the current reforms to the judiciary could be improved by providing more power so human rights can be effectively protected.
3: need for the House of Lords members to be elected in order to provide democratic legitimacy as reforms to the lords have been unable to guarantee this.
- Election of the upper house could provide peer democratic legitimacy and confidence to fully scrutinise the government and proposed legislation.
- Currently peers recognise their unelected nature and often defer to the will of the commons - The Lords backed down from their demands of a sunset clause on the 2005 prevention of terrorism act.
To what extent is the UK constitution too easy to amend?
1: Having flexibility allows for competing rights issues to be easily resolved
However: some rights can be taken away too easily due to parliamentary sovereignty (2015 ECHR ruling on criminal voting rights)
2: Fear of outcry has discouraged the breaking of convention, which is deeply enshrined in UK culture
Example = (government formation by the monarch allows the government to be formed by the party who has won the most seats or in the case of the 2010 coalition, based on a deal struck by two relatively popular parties, Theresa May’s confidence and supply deal with the DUP caused outcry in 2017)
However: Convention can still be broken due to parliamentary sovereignty
Example = (Sewel Convention broken in 2020 by the passing of the withdrawal agreement)
Evaluate the extent to which rights are effectively protected by the UK constitutional arrangements.
Intro:
- Constitutional arrangements (ECHR, common law) are designed to effectively protect rights (through outlining and upholding individual rights)
1: rights are protected as binding on all bodies, including gov
- 1998 human rights act incorporating ECHR into UK law upheld through courts initiating declaration of incompatibility
Example = gov amended 2004 civil partnerships act
However: declarations of incompatibility are not binding on parliament
Example = David Cameron in 2013 ignoring declaration of incompatibility and continuing to pass legislation disenfranchising prisoners (Belmarsh)
So: parliament not under absolute authority of ECHR (produce legislation that contravenes it and ignores incompatibility) Constitutional arrangement post ability to protect rights, sovereignty overrules it
2: Common law protects basic rights and freedoms from encroachment by parliament and government
- many have been replaced by ECHR and statutes, freedom of movement protected by courts
However: common law can be overturned by bills which directly impact the previously protected citizens
Example = immigration bill put before parliament June 2020 (may transform immigration system and end freedom of movement through subjecting EU citizens to same rules as rest of the world)
So: Parliamentary sovereignty determines the extent to which rights are protected, through instigating the ability to overrule constitutional convention and diminish protection that was previously inn place because of this
3: rights are protected through democracy when pm and gov are voted in and out.
represent the electorate through creating laws that make up constitutional arrangements that protect them
- conventions protect citizens rights through being enhanced by democracy which allows them to control who their representatives are
However: democracy is flawed- people go un-listened to. FPTP flawed, wasted votes if support isn’t localised
- 2016 brexit referendum was only enacted in 2020, 4 years after people voted for it
So: through electing representatives and trusting them to protect our rights, our electoral system will disenfranchise those whose support isn’t localised. system hinders effective protection of all citizens through constitutional convention
4: Rule of law
- must be applied
- This is an important argument because it shows that everyone, regardless of their status, is subject to the law.
Example = Jim Devine was jailed after being found guilty of claiming nearly 9,000 pounds of parliamentary expenses to pay for house renovations.
However: Rule of law is not sufficiently applied as not everyone is treat equally.
- Rights are not effectively protected by the UK’s constitutional arrangements as people are treated differently.
Example = Prince Andrew was treated differently by the police because of his status. This is an important argument because it shows that there may be disparities in how people are treated, raising concerns about the effectiveness of the constitution in ensuring universal protection of rights.
So: using the rule of law does not effectively protect our rights.
