1.1 The Nature and Sources of the UK Constitution Flashcards
Constitution:
Determines where power is located within a nation state and the rules by which it is governed. It also establishes the extent of the government’s of the authority and the rights of its citizens.
Magna Carta:
- 1215 forced King John to accept the 63 clauses of Magna Carta
- The barons placed limits on the power of the monarchy, the Crown is not above the law.
- Contains the principles of habeas corpus, that one cannot be punished without due process of law.
Bill of Rights 1689:
- In 1688, James II, was overthrown in the Glorious Revolution because it was claimed he was trying to establish an absolutist monarchy.
- Offered the crown to his daughter Mary and her husband William of Orange. They had to accept the Bill of Rights.
- Had to have a regular summoning of regular parliaments, free elections, no taxation without the consent of parliament and parliamentary freedom of free speech.
Act of Settlement 1701:
- Confirmed primacy of Parliament over the crown by declaring that Parliament had the authority to determine the succession to the throne.
- Confirmed judicial independence by stating that a judge can be removed only on the agreement of both houses of Parliament.
Act of Union 1707:
- England, Scotland and Wales shared the same monarch since 1603.
- United the Parliament of Scotland with that of England and Wales.
- Created the UK, preserved the independence of Scottish law.
Parliament Act 1911:
- The Lords refused to pass David Lloyd George’s People’s Budget.
- Liberal prime minister H.H Asquith threatened to ask George V to flood the House of Lords with Liberal peers, if it did not accept limits on its power.
- They relented and lost its right to veto.
- Couldn’t amend financial bills and only delay bills by 2 years.
1949 Parliament Act:
- Reduced the right to delay from 2 to 1 year.
- Established the democratic legitimacy of Parliament, by asserting the primacy of the Commons of the Lords.
Unitary State:
Power is centralised and the central government possesses absolute authority.
Federal:
Power is shared and dispersed
Devolution:
The transfer of powers from central government to regional legislatures.
Uncodified:
Derives from a variety of sources and does not represent a higher law.
Entrenched:
Making it impossible for them to be altered without complicated procedures requiring the agreement of more than legislature.
Parliamentary sovereignty:
Supreme legislative body
The rule of law:
That the same laws apply equally to every citizen and that the government is subject to the same laws as everyone else.
Statute laws:
A parliamentary bill that has been approved by both houses, then given royal assent. No greater authority than statute law.
Statute law: Human Rights Act 1998
- Incorporates the ECHR into British law
- All public bodies, including the government are expected to act in accordance with the ECHR.
- Judges should interpret the law in accordance with the principles of the ECHR.
Statute law: House of Lords Act 1999
- Removed all but 92 hereditary peers from the House of Lords.
- Most peers would now be life peers.
Statute law: Equality Act 2010
- Codified into one parliamentary statute all previous anti-discriminatory legislation, so providing the positive right of equal treatment.
Common Law:
Refers to judgements made by judges in important legal cases. Set precedents to be followed in future cases.
Common Law: Bushell’s case (1670)
- Presiding judge instructed the jury to find 2 Quakers guilty of unlawful assembly.
- The jury refused to do this and so were fined for contempt of court.
- One juror, Edward Bushell refused to pay the fine.
- Sir John Vaughan declared in favour of the jury a judge ‘may not lead them by the nose’
- Independence of a jury.
Common Law: R v R 1991
- A husband could be guilty of raping one’s wife.
- No legal safeguard against rape in marriage before this.
Common Law: Somerset v Stewart 1772
- A black slave James Somerset, was imprisoned by Charles Stewart for having escaped
- Lawyers claimed JS had been illegally imprisoned
- Mansfield said that nothing in English statute law justified slavery, JS could not be enslaved
- Challenged the legitimacy of slavery long before abolition in 1833
Convention:
The accustomed way in which political activity is carried out. Conventions are not legally binding. Their constitutional significance derives from tradition.
Convention: A member of the House of Lords cannot be prime minister
- In 1963, Lord Home recognised that this would be constitutionally unacceptable
- He resigned his peerage so that he could fight a by-election to enter the House of Commons as Sir Alex Douglas-Home
Salisbury Convention:
- Lords does not oppose a second or third reading of legislation that was in the winning party’s manifesto.
- Named after Robert Gascoyne-Cecil, the fifth Marquess of Salisbury.
- Dates to 1945-51 when Lord Salisbury, leader of the Conservative party would not use the majority in the Lords to try an wreck them.
- Labour had received such a strong mandate.
Convention: Referendum
- Developed in recent years
- Public should be consulted in a referendum to legitimise proposed changes to the constitution.
Authoritative works:
Texts of such profound and enduring political significance that they contribute to the constitution of the UK.
Authoritative works: The English Constitution
- 1867 by Walter Bagehot
- Explains the relationship between the monarchy, the legislature and the executive
- This work is a core constitutional text.
Authoritative works: Gus O’Donnell
- Written by the cabinet secretary 2010.
- A complete guide to how a coalition government should be established.
Treaty:
A written agreement made between two or more political entities.
Treaty: European Communities Act 1972
- As a result, the UK accepted the Treaty of Accession.
- This made the UK a signatory to the Treaty of Rome in 1957.
- UK accepted all existing European Community Law.
