the constitution Flashcards
(24 cards)
what is a constitution?
a constitution is a set of rules and principles specifying how a country should be governed, how power is distributed and what rights citizens possess
what is unentrenched?
when constitutional changes aren’t protected against short term change
what are features of an uncodified system?
- not written in a single place but spread across statues, common law, conventions etc
- for example, the uk constitution document is made up of sources like the HRA 1998, magna carta 1215 and constitutional conventions - it is easy to change and can be amended by a simple majority in parliament
- for example, parliament passed the fixed term parliament act 2011, and then repealed it in 2022 - parliament is the supreme legal authority so can make and unmake any law
- for example, miller vs secretary of state(2017), the court said parliament must authorise brexit
what are features of a unitary system?
- there is flexibility and adaptability as the central gov can change the structure or powers of regional bodies without needing the complexity of constitutional amendments
- for example, the uk created devolved gov’s in scotland, wales and norther ireland without needing a constitutional change - parliament is supreme and no other body can override its decisions
- for example, the uk supreme court cannot strike down acts of parliament - there is centralised power; so all legal authority is held by a single central authority
- for example, the uk parliament in westminster holds ultimate power and can legislate for any part of the uk
what are features of parliamentary sovereignty?
- parliament can make or unmake any law
- for example, parliament repealed the the fixed term parliament act (2011), in 2022, restoring the PM’s power to call early elections - each parliament is free to change or reverse laws made by previous parliaments
- for example, european committees act 1972 brought the uk into the eu, but parliament later repealed it in 2020 after brexit - courts cannot strike down laws passed by parliament
- for example, the supreme court cannot overturn an act of parliament, even if it breaches human rights or is unpopular
what is the rule of law?
the idea that all citizens and institutions are subject to the same laws
features of common law?
- developed through court rulings when no statute applies
- for example, the existence and limits of royal prerogative powers have been defined the case law rather than acts of parliament - can be overturned by parliament
- for example, the HRA 1998 gave legal force to rights that were previously protected under common law, limiting reliance on judge made rights alone - filling in legal gaps
- for example, the naomi campbell case where she sued a newspaper for publishing photos about her attending a narcotics meeting
- this then influenced judges to develop protections and laws on privacy; influencing how the HRA was interpreted to protect article 8 (right to private life)
what are features of statute law?
- it is made by parliament
- for example, the illegal immigration act 2023 was made by parliament to change immigration and asylum rules - it is the highest type of law
- for example, the eu withdrawal bill removed eu law from the uk after brexit - can change constitution and how the country is run
- for example, the HRA 1998 gave uk courts power to enforce human rights
what are features of conventions?
- not legally enforceable but political rules
- for example, the prime minister must be an MP, even though no law requires it - based on tradition and precedent
- for example, the monarch gives royal assent to laws (by long standing convention) - they can develop, weaken or be broken over time, depending on the political practice
- for example, the sewel convention (the idea that the uk parliament wont legislate on devolved matters without consent) was tested during brexit
what are functions of authoritative works?
- they help explain the rules, principles and and conventions of the uk, especially where its unclear
- for example, “commentaries on the laws of england” by william blackstone helped shape the early understanding of common law and and parliamentary sovereignty - helps clarify roles and powers of institutions
- for example, erskine may’s “parliamentary practice” is used by MP’s to understand how parliament works - helps guide decision making during uncertainty
- for example, during brexit, MP’s in parliament frequently consulted erskine may to interpret rules around votes and parliamentary procedure
describe the features of a treaty?
- there is international agreement that is agreed between two states and binding under international law
- for example, the brexit withdrawal agreement 2020 was signed between the uk and the eu to govern the terms of the uk’s departure - treaties are usually negotiated by the executive
- for example, the uk-australia free trade agreement (2021) was negotiated by the gov without a public vote - the powers to make treaties is by the royal prerogative (an executive power exercised on behalf of the crown)
- for example, the uk signed the nato treaty, without needing legislation to pass it
what is devolution?
the transfer of power from westminister to other regional bodies
what is the historical development of the constitution?
MAGNA CARTA (1215) :
- made that the rule of law would also be applicable to the monarch
BILL OF RIGHTS (1689) :
- sets out the principle of parliamentary sovereignty to prevent monarchs from exceeding their power
ACTS OF SETTLEMENT (1701) :
- established the idea that judges were to hold office on good conduct and not at royal pleasure (judicial independence)
PARLIAMENT ACT (1911, 1949) :
- 1911 (no power of veto over legislation, can only delay for two years)
- 1949 (reduced to just one year of delay)
EUROPEAN COMMUNITIES ACT (1972) :
- brings UK into the EU for the first time, meaning EU have some legal sovereignty of parliament
what are some constitutional reforms under new labour 1997-2010? (blair)
- 1999 HOUSE OF LORDS REFORM ACT:
- removed hereditary peers from 750 to 92
- made the lords more meritocratic and legitimate but still unelected and unfinished reform
- more appointed life peers, for example, lord alan sugar - ELECTORAL REFORM:
- proportional systems for devolved bodies (e,g, AMS in scotland and wales)
- greater representation and fairness but FPFP kept for westminster - DEVOLUTION (1998-1999):
- transferring powers to devolved bodies to make decisions independently on local issues
- for example, scotland have different educational policies such as free university tuition - HUMANS RIGHT ACT 1998:
- incorporated ECHR into UK law
- citizens can enforce rights in the uk; making the judiciary now more powerful
- for example, in 2004, the indefinite detention of foreign suspects was ruled unlawful under the HRA
CONSTITUTIONAL REFORM ACT 2005:
- created an independent uk supreme court that seperated the judiciary from the HOL
- created a clear seperation of powers and more judicial independence
what are some constitutional reforms under the coalition gov (cameron and clegg)?
FIXED TERM PARLIAMENT ACT (2011)
- elections must be held every 5 years
- exceptions in the cases of votes of no confidence or a 2/3 majority in the HOC (for example, theresa may in 2017 with her 2/3 majority)
SCOTLAND ACT (2012) :
- scotland gained more powers over finance
- May 2011 elections saw SNP with majority in scottish parliament
- introduced new borrowing powers for the scottish gov and ability to set interest rates
FURTHER DEVOLUTION TO WALES:
-welsh assembly gained primary law making powers without needing uk approval
- for example, 2011 welsh referendum, 64% voted “yes” to more powers
what are some constitutional reform post 2015 (cons)?
2015 ENGLISH VOTES FOR ENGLISH LAWS (EVEL):
- 2015, EVEL is passed into law with tory majority support in 2015
- 2017, the tories lose their majority but still have a majority of 60 on english only bills
- suspended in 2020 due to covid regulations
- abolished in 2021 by HOC, never having devolved significant power to england
SCOTLAND ACT 2016:
- gave scotland over income tax, welfare and elections
- for example, after the 2014 scottish referendum, 55% of people voted no to scotland being an independent nation; however, the uk passed the scotland act 2016 as part of the vow made by uk leaders to offer greater devolution if they stayed
DISSOLUTION AND CALLING OF PARLIAMENT ACT 2022:
- johnson passed it so the PM can request an early election at any time
SCOTTISH INDEPENDENCE MOVEMENT:
- in 2016, after the brexit, referendum where 62% of scottish people voted to remain; although the uk left anyways
- the snp said it justified another independence vote but the uk gov disproved it
- in 2022, the supreme court sealed this by saying they need the uk gov’s consent
COVID !( PANDEMIC:
- during covid, devolved gov’s made their own lockdown rules
- for example, scotland and wales had stricter rules on masks and longer school closures
what powers did the scottish parliament and gov gain from devolution and what was the impacts?
- primary legislative powers:
- education (universal through school meals throughout primary)
- health (first member in the uk to ban smoking)
- for example, scotland abolished university tuition fees and introduced minimum alcohol pricing - can set their own income tax
IMPACTS:
- scotland became a very powerful devolved body
- increased tensions in westminster due to post brexit (62% of scottish people wanting to remain)
what powers did the welsh assembly and gov gain from devolution and what was its impacts?
- 2011 referendum gave primary legislative powers in devolved areas:
- health (for example, abolished prescription charges)
- education
- environment - limited tax powers
IMPACTS:
- gained more autonomy; although still less powerful than scotland
- they push for more devolution but no strong independence movement
what powers did northern ireland and gov gain from devolution and what was its impacts?
- devolved powers in areas like:
- health (abortion was only decriminalised in october 2019 and domestic abuse act 2021 which covered coersive behaviour) - used proportional representation which encouraged power sharing
IMPACTS:
- devolution was vital for peace and stability but fragile
- brexit caused major constitutional strain (e,g, around the NI protocol and trade borders)
what are arguments for and against for reforms going further?
FOR
1. HOL REFORM:
still unelected and lacks democratic legitimacy and transparency
- for example, in 2022, boris johnson’s resignation honours list added unelected donours
- ELECTORAL REFORM
fptp distorts results which is unfair to smaller parties such as greens, libdems
- for example, in 2019, cons won 56% of the seats with only 43% of the votes - DEVOLUTION
there are limits of the current devolution as more autonomy/federalism is needed
- for example, in 2022, the supreme court blocked the scottish gov from having a second independence referendum due to not having permission from westminster
AGAINST
1. HOL REFORM
- the lords blocked or amended over 450 gov proposals between 2019 and 2022; which shows it provides valuable scrutiny despite being unelected
- ELECTORAL REFORM
there is still clear pubic support for FPTP
- for example, in 2011, 68% of people in the uk voted against switching to AV - DEVOLUTION:
devolution has already created tensions so further powers might threaten the the unity of the uk
- for example, SNP pushing for further independence
what are the arguments for and against devolution being extended to england?
FOR:
1. EVEL
(meant that when a bill only applied to england, only english MP’s could vote on certain stages of the legislation)
- for example, it was scrapped in 2021, which shows how there is no clear solution for how to give england fair representation
- meaning a more formal system of english devolution is needed
- public support
public voices call for strong english regional identities and powers
- for example, think tanks like IPPR advocate for devolution within england - ASYMMETRICAL DEVOLUTION
england lacks its own parliament which shows an imbalance of power compared to scotland and northern ireland
- for example, in 2023, scotland and wales abolished GCSE equivalent exams whilst england retained them (shows they can decide how students are assessed)
AGAINST:
1. EVEL
was complex and unpopular and removing it simplified parliamentary procedure
- for example, in 2021, the gov quietly scrapped it stating it had “ added complexity and delay” to the law making process without improving outcomes
- PUBLIC SUPPORT:
the public has shown little interest in english regional devolution
- for example, in 2004, the north east rejected a regional assembly by 78% - ASYMMETRICAL DEVOLUTION:
creating an english parliament would dominate uk politics
- for example, england makes up 84% of the uk population; which may destabilise the union
what are arguments for and against a codified and entrenched constitution?
FOR
1. EXECUTIVE POWER (clear definition of the powers of the PM and limits on royal prerogative)
uncodified means there is more likely for the executive to abuse their powers
- for example, in 2019, Boris Johnson advised the queen to suspend parliament for 5 weeks during the brexit negotiations
- the supreme court ruled it unlawful but only after significant confusing about whether the courts even had the power to rule on it
- RIGHTS PROTECTION
rights are fragile under the system
- for example, in 2022 to 2023, the gov tried to replace the HRA with a british bill of rights - CLARITY AND ACCESSIBILITY
codified constitution would provide clear legal rules instead of relying on tradition and precedent
- for example, during covid, the gov used emergency powers under the public health act 1984 to impose lockdowns and restrictions
- rules were drawn from old and obscure laws so there wasnt a single written constitution people could look at to understand how the power was being used
AGAINST
EXECUTIVE POWER:
- for example, the courts were able to used common law which proves that the existing system works fine to protect democracy without needing codification (for johnson)
- for example, in 2022, liz truss a mini budget with tax cuts without full consultation that resulted in economic chaos and backlash to the point where she resigned after 45 days
RIGHTS PROTECTION
the uk is still a member of the ECHR, so protection remains in place, even without codification
CLARITY AND ACCESSIBILITY
flexibility is a strength
- for example, in covid 19, emergency powers were passed quickly under the existing system; whilst rigid rules might have delayed actions
what is the issues with conventions/ tradition?
- they can be challenged by an Act of parliament
- Its dependent on the political actors to uphold them
what was the impact of devolution in england?
- england as has no devolved parliament or assembly like other nations
- power is exercised by uk parliament, but some local powers have been devolved to
- for example, the greater london authority act 1999, created the mayor of london and the london assembly
IMPACT:
- created an asymmetrical devolution system as england is governed differently than scotland/wales
- led to the EVEL
