3.1.1.1 The nature and sources of the British Constitution Flashcards
What is the nature of the British Constitution?
Whilst in the US, you can view the Constitution and its amendments through display glass in the National Archives. The British Constitution, however, is not written down in one document, as Journalist Woodrow Wyatt mentioned via a ironic question to Thatcher being ‘ Have you got a copy of the British Constitution? I would like to see one. ‘
The British Constitution is found in various places and forms.
How should a Constitution in a Western Liberal Democracy be judged/evaluated?
Guarantee of free, fair democratic elections
Respect for individual human rights, consciences & promotion of tolerance.
Balance Individual & Collective rights
Clearly lays where power & decision making lays & notion of sovereignty.
Has clear mechanisms for resolving problems & conflicts when usual decision making not working eg Brexit 2016 + 2019.
Easy to understand & encourages participation
Can be adapted & flexible while retaining core values/national identity
Independent Judiciary (Rule of law)
What are the distinguishing features of the British Constitution?
The British Constitution is uncodified.
It is unitary, where most of the power lies in Westminster, however this has been weakened and can now also be defined as quasi-federal.
It is characterised by Parliamentary sovereignty and the idea that ‘ No Parliament can bind its successor ‘.
Operates under the Rule of Law, meaning the law applies to all, no matter who/what they are. E.G Ultra Vires for legislation such as Rwanda
What are the main sources of the British Constitution?
Constitutional Statute Law
Common Law
The Royal Prerogative
Conventions
Works of Authority
International agreements
Main source of the Constitution - Statute Law
Refers to Acts of Parliament, such as laws defining who can vote (The Representation of the People Act 1969 lowering voting age from 21 to 18), human rights (The Human Rights Act 1998, incorporating ECHR), as well as European Law prior to leaving the EU. The EU placed a temporary limit on Parliamentary sovereignty as we had to implement treaties and laws such as the Lisbon Treaty.
Main Sources of British Constitution: Common Law
Legal Judgements in Courts eg Judicial Precedence, such as freedom of expression or criminality of murder. Can be and often is modified by statute, eg many statute laws deciding punishment for murder such as abolishing the death penalty in 1965.
Main sources of British Constitution: The Royal Prerogative
Residual/remaining powers of the crown eg dissolution or prorogation of Parliament example: 2019 Boris trying to prorogue for 5 weeks to leave just over 2 weeks to debate over EU, found illegal by 11-0 in Supreme Court. Also deals with passports ‘ There is no statute law governing the grant, refusal of British passports ‘
Main sources of the British Constitution: Convention
If laws are nuts and bolts of British Constitution, then conventions are the oil of grease. They enable Politics & Parliament to function such as the Salisbury Addison Convention of 1945 where the HL agreed to not delay any manifesto promises of Clement Attlee despite being conservative majority.
Another convention is the invitation by the monarch for the head of the winning party to form government. When no single party has won an overall majority, the higher majority leader will attend instead.
The most important is royal assent.
What are the Works of Authority?
Walter Bahegot’s: The English Constitution 1867
A.V Dicey’s: Introduction to the Study of Law of the Constitution 1885
Erskine May’s: Parliamentary Practice 1844
The Cabinet Manual 2010
What is the work of authority which distinguishes between ‘dignified’ and ‘efficient’ aspects of the constitution, defines the monarch as a dignified part with no political power, and a ‘ Combining Committee ‘ which is a hyphen which joins - the legislative part of the state to the executive which holds most of the real power, emerging from the House of Commons as the ultimate authority in the English Constitution.
Walter Bahegot’s The English Constitution 1867.
What is the work of Authority made by an Oxford Law Professor which describes the twin pillars of democracy and conventions such as Royal Assent without vetoing any bill, commenting that Parliament is ‘ Absolutely sovereign legislature ‘ and that it had ‘ the right to make or unmake any law whatever ‘ and quoted Jean-Louis de Lolme by saying ‘ Parliament can do everything but make a woman a man and a man a woman (lol) ‘
A.V Dicey’s Introduction to the Study of Law of the Constitution 1885
What is the work of Authority that’s most recent update was published in 2019 and is referred to as the ‘ Bible of Parliamentary procedure ‘, often referred to by the Speaker and details things such as Standing orders of each chamber, historical precedence and key rulings by the speaker. Is there any examples?
Erskine May’s Parliamentary Practice 1844
John Bercow cited 1604 convention to prevent Theresa May from bringing Brexit Withdrawal bill before the Commons for the third time in that one session.
What is the work of Authority that was produced by the Cabinet Office at the start of the coalition gov as a guide which included ministerial conduct, cabinet composition and scrutiny of Government by Parliament. Initiated by former PM Gordon Brown.
How did David Cameron explain it?
The Cabinet Manual 2010
’ Codifying and publishing these sheds welcome light on how the government interacts with the other parts of our democratic system. ‘
What is a:
Authoritative opinion
International Agreement
Authoritative opinion:
Views and Definitions that are important and regarded as the final world or authority on an issue.
International agreement: UK is a signatory to a number of international agreements such as ECHR and protocols dealing with areas such as climate change .Gov is obliged to abide by their terms or face legal challenges in Court.
What are the Milestones in the British Constitution?
Magna Carta 1215
Bill of Rights 1689
Act of Settlement 1701
Parliament Acts 1911 & 1949
European Communities Act 1972
Describe the Magna Carta 1215
Royal Charter of rights agreed between King John & his Barons. 63 Clauses such as the right for all ‘ Free men ‘ to justice and a fair trial or ‘ To no one will we sell, to no one will we deny or delay right or Justice ‘.
Represents first foral attempt to limit powers of Monarch, heavily influenced later documents such as Universal Declaration of Human Rights, ECHR & American declaration of Independence.
How is the Magna Carta less important?
Specific and particular to the period of time, essentially a peace treaty & only four of its clauses remain un-
repealed today. It was silent on the rights of the ordinary.
Describe the Bill of Rights 1689
1688 Glorious Revolution followup, WIlliam and Mary from Holldan invited on the condition of accepting the bIll of Rights. Such term were frequent Parliaments, free elections and freedom of speech within Parliament (Parliamentary Privilege) & no taxation without Parliamentary agreement.
Parliament has continued to meet every year since 1689 and it established the dominance of Parliament, being built upon by measures such as the Act of Settlement 1701. It is an enduring feature.
How is the Bill of Rights less important?
Bill did not cover the rights of ordinary men, freedom of expression and belief for all members of society & it was far from being a democracy in 1689, which would only occur 1832-1928 when women were granted full voting rights in 1928.
Describe the Act of Settlement 1701
Largely a follow-up to the Bill of Rights. Conferred the line of succession on descendants of Electress Sophia of Hanover (Distant relative of James I) with all closer relatives being Roman Catholic or dead. Laid down a criteria for British monarchy and was another example of Parliamentary Sovereignty.
How is the Act of Settlement less important?
Act did nothing to propel England/Britain towards a modern Democratic state and seems a backwards step by modern standards.
Describe the Parliament acts 1911 and 1949
Severely reduced power of the House of Lords. 1909 unelected & conservative HL rejected Liberal People’s budget and broke convention. Following this there was a law that ended in absolute veto of Lords over legislation & restriction of power to delay bills only by 2 years, later changed to one in 1949 as well as increasing democratic accountability of Westminster and leading to any bill passed by the Commons becoming law in just a year.
