3.1.1.1 nature + sources of the British Const - The Constitution

Question 1

what is a constitution

Answer 1

a body of laws, rules and practices that set out how a society or state is organised
–> it establishes the relationship between the state and its citizens, and also between the various institutions that constitute the state

Question 2

what 3 main things do a constitution do

Answer 2

creates the FRAMEWORK for the political system

1. main institutions of government are established
2. decides where decision making authority resides
3. protects the basic rights of citizens (bill of rights)

Question 3

how is the power of the government limited under the constitution

Answer 3

under LIBERAL democracies:

• defense against the abuse of power by the state, its institutions and its officials is a key part
• has CHECKS AND BALANCES to limit an almighty government, and the citizen’s rights are protected from state power

Question 4

how can JUDICARIES limit the states powers

Answer 4

some judiciaries are empowered to use the constitution to decide whether the states actions are lawful and legitimate

Question 5

is the constitution relevant today?

Answer 5

they are not separate from normal politics and are inherently political due to their impact
- they are not necessary neutral as framework may favour others at the expense of some

Question 6

codified constitution

Answer 6

• single authoritative document that sets out laws, rules and principles by which a state is governed
• protects the rights of the citizens

Question 7

uncodified constitution

Answer 7

• laws, rules and principles specifying how a state is to be governed are not gathered in a single document, but in a variety of sources
• it is both written and unwritten

Question 8

how is a uncodified constitution both written and unwritten

Answer 8

Written laws are laws which have been enacted in the constitution or in legislation. Unwritten laws are laws which are not contained in any statutes and can be found in case decisions.

Question 9

what are the pros of a CODIFIED CONSTITUTION (5)

Answer 9

Clarity and Accessibility: It provides a clear and easily accessible
source of fundamental laws and principles for citizens and
government officials.

Legal Stability: It offers legal stability and consistency as the
constitution is explicitly documented and can only be changed
through a formal amendment process.

Accountability: It establishes a solid framework for the separation of
powers and the protection of individual rights, which can help
maintain accountability.

Judicial Review: It facilitates judicial review, allowing courts to
interpret and enforce constitutional provisions.

Limitation on Government: It sets explicit limits on the government’s
authority, preventing potential abuses of power.

Question 10

what are the cons of a CODIFIED constitution (5)

Answer 10

Rigidity: Changing or amending a written constitution can be a
lengthy and difficult process, making it less adaptable to changing circumstances.

Interpretation Disputes: Clauses in a written constitution can be subject to varying interpretations, leading to legal disputes and conflicts.

Political Gridlock: Struggles to amend a written constitution can
lead to political gridlock when necessary reforms are blocked.

Overly Detailed: A written constitution may become overly
detailed, making it challenging to accommodate evolving societal
norms.

Freeze in Time: It might not reflect the evolving needs and values of society, potentially becoming outdated.

Question 11

what are the pros of an UNCODIFIED constitution (5)

Answer 11

Flexibility: An uncodified constitution is adaptable and can
evolve more easily with changing societal norms and values.

Evolutionary Nature: It can reflect historical evolution,
incorporating traditions and conventions that have stood the test
of time.

Easier Amendments: Changes can be made more swiftly and
without the complex amendment process seen in codified
constitutions.

Less Legalism: It may lead to a less legalistic approach to
governance, allowing for pragmatic solutions to emerging issues.

Political Consensus: It can encourage political
consensus-building and compromise due to its flexible nature.

Question 12

what are the cons of an UNCODIFIED constitution (5)

Answer 12

Lack of Clarity: It may lack clear and accessible documentation
of fundamental principles, making it challenging for citizens to
understand their rights and government’s powers.

Potential for Abuse: The absence of a clear legal framework
may allow for abuses of power or erosion of civil liberties in the
absence of explicit protections.

Uncertainty: Unwritten constitutions can lead to uncertainty and
inconsistency in the application of laws and governance.

Vulnerability to Change: It may be more susceptible to rapid
changes driven by political interests, potentially undermining
stability.

Dependency on Tradition: Relying on tradition and conventions
can perpetuate outdated practices and inequality.

Question 13

6 arguments FOR the uk having a codified const

Answer 13

1. provides clarity for what is and isnt constitutional
2. rights are given further constitutional protection
3. tackles the centralism of power –> sets limit on state power alongside its institutions
4. better informed citizens on the values and workings of the political system
5. authoritative reference point for courts
6. logical conclusion of recent const reforms

Question 14

arguments against the Uk having a codified const

Answer 14

1. no agreed process for establishing a C const
2. no elite consensus on what it should include
3. would be rigid and difficult to amend
4. give judges greater political power, so they are unaccountable
5. no popular demand for it as there are other more important issues
6. pragmatic adaptation is better and is more popular

Question 15

describe the UK’s constiution

Answer 15

• the UK’s const is UNCODIFIED
  –> no single document in which all the key principles are gathered together
  –> it comes from a number of sources, written and unwritten
• the UK’s constitution is UNENTRENCHED
  –> it can be changed relatively easily, by a simple majority vote in parliament
  –> it is more flexible than a codified constitution
  –> in comparison, in the US an amendment requires the support of 2/3 of congress and 3/4 of states to become law
• the UK’s const is UNITARY
  –> sovereignty is concentrated in Westmin in London (the centre)
  –> modified since the late 1990s with the introduction of devolution
  –> individual nations in the union are now able to govern themselves to different extents, but this distribution of power can be changed by an act of Parl

Question 16

what 5 components make up the UKs constitution

Answer 16

1. statue law
2. common law
3. conventions
4. authoritative works
5. treaties incl EU law

Question 17

statute law

Answer 17

• law defined from acts of parliament and subordinate legislation
• supreme/most important source of constitutional law, as it is created by Parl and parl is sovereign
• approved by commons, lords, monarchs before being in statue books -> then become law
• not all acts are constitutional

Question 18

give 4 examples of statute law

Answer 18

1. great reform act (1832) –> extended the franchise (voting population, middle class men)
2. parliament acts 1911 and 1949
3. European communities act 1972
4. human rights act 1998 (ECHR translated to UK statue law)

Question 19

common law

Answer 19

legal principles that are developed or discovered, based upon tradition, custom and precedent
- judges use judicial review to clarify or establish a law where statue L is unclear
- also customs that become legally binding
- can be easily overturned however

Question 20

what is legal precedent

Answer 20

where judgements in earlier similar cases are taken to be binding on later cases

Question 21

give an example of common law

Answer 21

the royal perogative
- crowns powers that are exercised by government ministers in the crowns name

Question 22

conventions

Answer 22

• rules or norms of behaviour considered legally binding
• not codified or legally enforceable
• gain authority over extended time periods
• new conventions can be made

Question 23

2 examples of conventions

Answer 23

1. Royal assent: the monarch must by convention must give assent to acts of parliament, not refused since 1707
2. gordon brown 2007: no war without a parliamentary vote

Question 24

authoritative works

(why are they significant)

Answer 24

• long established legal and political texts that have come to be accepted as reference points for who can do what in the UK constitution
• no legal status but passive authority; written by an expert on constitutional issues
• helps with understanding core values of the const + sheds light on more obscure areas of it –> gaps in an uncod const, no judges to interpret unlike cod

Question 25

why are the authority of authoritative works debated

Answer 25

• lack legal authority, so are only followed if considered to be relevant and are written by respected authors

Question 26

2 examples of authoritative works

Answer 26

1. A. V Dicey – parliament sovereignty and rule of law
2. erskine may: wrote the ‘bible’ of parliamentary practice

Question 27

Treaties incl EU Law

Answer 27

• treaties establishing the EU, legislation from the EU and judgments from the European court of justice are all apart of the court
• eu law has precedence over UK law -> challenged P sovereignty
• referendums to leave: eu law would have no precedence

Question 28

3 examples of treaties

Answer 28

1. European communities act 1972
2. Maastricht treaty 1991
3. treaty of rome 1953

Question 29

what did theresa may propose to do about eu precedence, but which act of parl did this

Answer 29

Great Repeal Bill
- all applicable EU law = UK law
- parl chooses which ones they want to overturn or amend in the future

done eventually with the european union withdrawal act 2018