Unit 3 Flashcards
(23 cards)
Topic: Classifying Constitutions - Written vs. Unwritten
Define each.
How is the UK classified?
Why is the UK’s constitution unwritten?
Written (Codified): Set out in a single document, defines powers, often includes a Bill of Rights (e.g., USA).
Unwritten (Uncodified): Made up of multiple sources (statute, case law, conventions).
UK Classification: The UK has an unwritten constitution.
Reason: Attributed to the absence of a single “defining moment” (like independence or revolution) in its history, unlike many countries that adopted written constitutions after such events.
Classifying Constitutions - Republican vs. Monarchical
Define each.
How is the UK classified?
Classifying Constitutions - Republican vs. Monarchical
Republican: Head of state is usually an elected president (e.g., USA).
Monarchical: Head of state is an unelected monarch.
UK Classification: The UK is monarchical, though the Monarch’s powers are largely ceremonial and exercised by government ministers by convention.
Federal vs. Unitary
Classifying Constitutions - Federal vs. Unitary
Federal: Power divided between central and regional governments (e.g., USA).
Unitary: Single sovereign legislative body where power is concentrated at the centre.
UK Classification: The UK is unitary, with Westminster Parliament as supreme law-making body.
Nuance: Devolution has introduced some quasi-federal characteristics, but Westminster Parliament retains the power to override devolved law.
Classifying Constitutions - Rigid vs. Flexible. How is the UK classified and why?
Rigid (Entrenched): Requires a special, more complex procedure to change (common in written constitutions).
Flexible: Comparatively easy to change, no special procedures required.
UK Classification: The UK is flexible due to its unwritten nature. Legal changes to the constitution are easy, though achieving political consensus for such changes can be difficult.
Formal vs. Informal Separation of Powers
Define each.
How is the UK classified and why?
Formal: Clear separation of functions and personnel between executive, legislative, and judicial branches (e.g., USA).
Informal: Significant overlap in functions and personnel between branches.
UK Classification: The UK has a largely informal separation of powers. This is due to its unwritten nature, leading to overlaps (e.g., government ministers also being Members of Parliament).
What are the three core principles of the UK constitution?
The three core principles underpinning the UK constitution are:
The Rule of Law
The Separation of Powers
The Sovereignty (or Supremacy) of Parliament
The Rule of Law Key Elements:
No Arbitrary Power: All state actions must be permitted by law.
Proper Law-Making: Laws should be made following set procedures.
Clarity & Certainty: Laws must be clear, accessible, and not retrospective.
Equality Before the Law: All citizens have equal access to legal process; law treats all persons equally.
Independent Judiciary: Courts must be independent to uphold law without fear of repercussions.
The Separation of Powers
What is Montesquieu’s idea?
Montesquieu’s Idea: To prevent arbitrary or oppressive government, the different branches of state must be kept separate in functions and personnel.
Three Branches & UK Components:
Legislature (Parliament): Makes law (Monarch, House of Lords, House of Commons).
Executive (Government): Implements law (Monarch, PM, Ministers, Civil Service, Police, Armed Forces).
Judiciary (Courts): Resolves legal disputes (Monarch, Judges, Magistrates).
Checks & Balances:
A concept developed in modern constitutions where each branch limits the powers of the others to prevent excessive power or influence by any single branch.
Parliamentary Sovereignty
What is its central role in the UK?
State Dicey’s classic definition and its two parts.
How does it contrast with the USA?
It is the supreme law-making body in the UK.
Part 1: Parliament can pass any legislation it likes (make or unmake any law).
Part 2: No other person or body can challenge or override Parliament’s legislation (courts cannot declare an Act unconstitutional).
Contrast with USA: In the USA, the Supreme Court can strike down an Act of Congress as unconstitutional; UK courts cannot.
Describe the UK constitution’s structure in terms of sources.
The UK constitution is unwritten/uncodified, like a “jigsaw” made up of various parts.
Acts of Parliament (Statutes)
Case Law (Judge-Made Law)
The Royal Prerogative
Constitutional Conventions
Acts of Parliament - Key Examples
What is their general role?
Are they entrenched?
List and briefly explain 2-3 key historical examples.
Role: Many important aspects of the UK constitution are found in various statutes.
Entrenchment: They are not entrenched; they can be repealed by an ordinary Act of Parliament.
Historical Examples:
Magna Carta 1215: Symbolic first assertion of limits on Monarch’s powers and individual rights (trial by jury, rule of law).
Bill of Rights 1689: Limited Crown’s powers (no arbitrary suspension of laws, no taxation without Parliament’s consent), ensured parliamentary free speech and regular meetings.
Case Law - Common Law Principles
Habeas Corpus: Right of detained individual to have legality of detention tested before a court.
Parliamentary Supremacy: Common law doctrine accepted by judiciary, including the “Enrolled Act” rule (Pickin v British Railways Board [1974]: courts won’t question validity of an Act on the parliamentary roll).
Case Law - Judicial Review
What is judicial review?
A mechanism by which the High Court reviews decisions of government and other public bodies.
To ensure public bodies act within powers granted by Parliament, lawfully, rationally, and by a fair process (St Helen’s Borough Council v Manchester Primary Care Trust [2008]). It holds the executive to account.
Case Law - Interpretation of Statute
The judiciary makes decisions of constitutional significance when interpreting statute law, effectively shaping how the law operates.
The Royal Prerogative - Definition & Scope
Definition (Dicey): “The residue of discretionary or arbitrary authority… legally left in the hands of the Crown… Every act which the government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative.”
Exercised by (or in the name of) the Monarch, but by convention, by the Prime Minister and government ministers.
The Royal Prerogative - Relationship with Statute
Parliament’s Power: Parliament can remove prerogative powers (e.g., Crown Proceedings Act 1947 abolished Crown’s immunity from tort/contract claims; Fixed-term Parliaments Act 2011 removed power to dissolve Parliament at will).
Revival: A prerogative power can revive if the statute that put it in abeyance is repealed
Statute Prevails: If an Act of Parliament covers the same subject matter as a prerogative power, the statute prevails, and the prerogative power is held in “abeyance”
Constitutional Conventions - Definition
They are a non-legal source of the constitution and are not directly enforceable by the courts. They operate primarily in the political sphere.
Monarch’s Role: Monarch plays no active role in government; legal powers vested in them are exercised by elected government ministers.
Royal Assent: The Monarch, on the advice of the PM, always assents to a bill passed by Parliament (last refusal was in 1707).
Ministerial Responsibility (individual and collectvie)
Constitutional Conventions - Courts’ Role
Courts do not directly enforce conventions (they operate in the political sphere).
Constitutional Conventions - Codification & Ministerial Code
What are the arguments for and against codifying conventions?
Arguments For Codification: Promotes certainty and clarity.
Arguments Against Codification: Erodes flexibility; too wide-ranging; might lead to constitutional crisis over sensitive political matters (e.g., Monarch’s powers).
A Written Constitution for the UK? - Arguments For
Promotes Civil Cohesion: Educates citizens, reflects shared values, clearer understanding of rights.
Proper Separation of Powers: Defines roles clearly, provides checks and balances, limits executive dominance (e.g., addresses Partygate accountability issues).
Effective Human Rights Protection: Entrenched Bill of Rights would be harder for a government to alter.
Clarifies Other Areas: Reduces uncertainty about prerogative powers, clarifies the role of referendums.
A Written Constitution for the UK? - Arguments Against
Difficult to Determine Drafters: No existing institution has enough legitimacy; forming a new assembly is problematic.
Loss of Flexibility/Organic Development: Uncodified constitution adapts easily to events; may not have avoided turmoil like Brexit.
May Become Outdated: Reflects values at drafting time, can become rigid (e.g., US gun control debates).
Too Much Power to Judiciary: Judges become excessively politicised (e.g., Roe v Wade controversy, where judges decide fiercely contested political issues).
