The nature and sources of the constitution Flashcards
(26 cards)
What is a constitution?
A body of rules, conventions and practices which describe, regulate and qualify the organisation powers and operation of government and the relations between persons and public authorities.
Relates to how the country is run, the powers of those in government and the rights of citizens.
What is the nature of the UK’s constitution?
It is unwritten/ unmodified which means that it is not set out in a single document
What is the purpose of constitutions?
To anticipate problems that may arise- e.g. with the resignation of a PM
The pre-eminent function of a constitution is to allocate state power- the power to make laws etc
The constitution divides powers among different institutions of government
Determine where governmental power stops and individual freedom begins
constitutions often restrict what the state can do by denying government the power to infringe fundamental constitutional principles e.g. enacting retroactive criminal legislation
What are the different tiers of government in the UK?
UK government, EU, devolved parliaments, local authorities
What should a constitution be?
Power allocation
Accountability
Legitimacy and consensus
Permanency- constitutions should not be easily amended
What is the significance of the Belmarsh case?
The episode underlines the pivotal position occupied by the government. It wields enormous power because of its capacity to get legislation enacted.
Second, the power of the executive is strengthened by the fact that parliament is not subject to any absolute constitutional limits
Shows that fundamental constitutional principles are not irrelevant. For instance, in the Belmarsh case the liberty of the individual was ultimately upheld through the combined effect of the legal and political processes. The court’s declaration that it conflicted with the right to liberty proved to be of enormous political significance, prompting the executive government to ask Parliament to repeal pt4 of the act.
Argument for the constitution to be codified
- post-1997 reforms.
- elected mayor for London
- changes to local government etc
The labour government of 1997-2010 implemented a set of constitutional reforms. This included devolution- the creation of new government and legislatures in NI, Scotland and Wales. In many countries, constitutional reform is a bid deal. Changing constitutions is usually hard: a wide consensus is normally needed in order to secure compliance. It is noted that there are good reasons for making constitutions difficult to amend: they are supposed to represent a brake of government power, a guarantee on individuals’ rights. The UK constitution is capable of being amended in precisely such circumstances. Constitutional law having no higher legal status, everything is up for grabs provided that the government can persuade Parliament to enact the necessary legislation. It means that the same difficulties, formalities that usually attend attempts to change and reform constitutions elsewhere are absent in the UK. It is relatively easy for the government to reform the UK constitution, perhaps too easy. One risk is that a government might adopt a casual approach to constitutional reform, leading to piecemeal reform. This is seen in the post-1997 constitutional reforms.
Why should constitutional change be difficult?
Attacihng a degree of difficulty to constitutional amendments is a disincentive to the presentation of ill-thought through and disjointed piecemieal proposals.
What were the piecemeal reforms?
Shortly after it was elected in 1997, the Blair government introduced devolution in Scotland, Wales and NI. However, it did so without any clear plan in relation to England. One of the strangest results of this was the West Lothian question which asks why it is legitimate for MPs representing the devolved nations to be allowed to vote on laws affecting only England, now that English MPs cannot vote on laws affecting only the devolved nations.
Another example of the piecemeal nature of constitutional reform is the democratisation of the Commons
Constitutional reform is an ongoing process- the constitution is regarded as a perepetual work in progress- makes it possible to keep it under review and to react quickly when it is felt that things are not working well or that established arrangements need to be updated. For example, the systems of devolution have been reviewed and significantly altered since their introduction in 1999- including significantly extending the powers of the Scottish government. Today, the UK stands on the brink of what might prove to be profound constitutional changes as a result of the departure from the EU
What are the features of constitutional reform in the UK?
Piecemeal nature
A second feature of constitutional reform in the UK is that it can be undertaken in a relatively infomal way that is unaccompanied by consultation. Example, the Constitutional Reform Act 2005- it even introduced a new way of appointing judges in England and Wales- changed the relationship between the court and government- went to the heart of the legal system as it decided to create a new Supreme Court while abolishing the appellate Committee of the House of Lords.
However, these reforms were announced without any consultation and it happened in the middle of a Cabinet reshuffle. Even the senior judiciary knew nothing of them until the day on which they were announced.
They were even going to abolish the 700 year old office of the lord chancellor- poorly thought out- the LC still remains today
In 2011 the House of Lords Constitution Committee criticised the absence of any clearly defined process for effecting constitutional changes, arguing that such a process should be established.
What are the issues with the flexibility of the constitution?
The fact that some issues, such as detailed, technical arrangements should be capable of being amended with relative ease does not mean that all constitutional arrangements, including those pertaining to fundamental principles should be amenable- one of the points of enshrining such principles in a constitution is to ensure that they cannot be discarded whenever they prove inconvenient to the government of the day
For example, alarmingly as the UK lacks a higher body of constitutional law the HRA was enacted as an ordinary act of parliament- meaning that it is capable of being amended or even repealed just like any other law- in 2005 Blair even said that he would even seek amendment of the HRA to facilitate the ‘war on terrorism’
What is the consequence of the UK’s constitution not being laid down in a body of law that has a status higher than regular law?
Amended as easily as other law- means that the UK constitution does not legally restrict the powers government to the same extent as constitutions that do have a higher legal status
If arbitrary government is to be avoided in the UK greater faith must be placed in the capacity of the political process to guard against the misuse of public power
What does it mean for the UK to be a political constitution?
It is politics and not the law that is the ultimate safeguard against the abuse of power
Constitutional change in the United Kingdom
One of the defining features of the UK constitution is its flexibility- the relative ease with which fundamental aspects of the constitution can be changed. This for some can potentially create problems. however, the UK constitution is marked by a high degree of historical continuity
piecemeal and casual approach to constitutional reform that the flexibility permits
What are the problems of the flexibility of constitutional reform?
Reforms are introduced too quickly and may fail to take root -e.g. HRA and the giving of judges a stronger role- infringes on parliamentary sovereignty
May be introduced without how they relate to or qualify existing constitutional arrangements- e.g. increasing use of referendums to determine controversial constitutional issues. In Miller the referendum result was described as merely advisory- its significance was political rather than legal- it was necessary for there also to be a further vote in Parliament to confirm the referendum result
Third problem is that reform is undertaken in the most minimal form necessary e.g. Sewel convention.
What is a convention?
A convention is a long-established, informal and uncodified procedural agreement followed by the state.
Important in UK due to the lack of a written constitution. It is not embodied in a document with legal authority, but there will rarely be a departure from conventions.
What are examples of conventions?
PM will resign if loses confidence of commons
Salisbury convention- House of Lords will not oppose any second or third reading of any government legislation promised in the election manifesto
HoL will not interfere regarding money bills- although they did with tax credits
What are the differences between a convention and a law?
Law’s have legal sanctions following their breach and are enforced by courts
Conventions are enforced by political pressure
How can conventions become laws?
Conventions can become laws if they are ‘crystallised’ one example of this is the Fixed Term Parliaments Act 2011 where it was declared that the PM should resign if they lost the confidence of the Commons.
What are the problems with an uncodified constitution?
Uncodified constitutions make no distinction between higher constitutional and other law. Therefore amendment is easily obtained via a parliamentary sovereignty and no special arrangements are necessary
What is the significance of the UK having an unwritten constitution?
There is no constitutional text with a higher legal status. The UK’s constitution is to be found in a range of sources- written and unwritten, legal and political
What is the Jennings test?
Precedent
Do political actors feel bound
Is there a reason for the rule
Canadian patriation case
In 1980 the Canadian government took steps to ‘patriate’ the Canadian constitution- it asked the UK government to get the UK parliament to pass legislation severing the legal connection between UK and Canada- giving Canada full legal control over its own constitutional arrangements.
Federal system-only 2 out of 10 provinces supported the proposal. Other provinces argued that the federal government was acting in breach of a constitutional convention that stipulated that UK legislation amending the Canadian constitution should be sought only with the support of the majority of the provinces.
The Supreme Court in Canada applied the Jenning’s test and found that such a convention existed. Precedent- the federal government previously had assent of provinces before asking UK to make amendments
The main determinant of the practical importance of a given non-legal rule is the strength of the constitutional reason for the rule- e.g. Blair changing the length of question time- not a strong constitutional reason
The Canadian Supreme Court held that the federal government, if it proceeded in spite of the provinces’ objections, would be acting ‘unconstitutionally in the conventional sense’. But the court concluded that no law prevented the government from proceeding with its attempts to reform the constitution
Madzimbamuto v Lardner-Burke
UK courts have also been unreceptive to the argument that conventions can be legally enforced. It was argued in this case that the UK parliament had acted improperly by enacting legislation in circumstances that breached a clear convention
Conventions are not wholly irrelevant
