Ch 5: Constitutional Fundamentals Flashcards
What is a Constitution?
The set of rules by which a state or country operates
What are the 3 core principles of the UK constitution?
The Rule of Law
The separation of powers
The sovereignty of Parliament
What is a written constitution?
A constitution set out in a single document containing fundamental law and defining powers of the branches of state
What countries other than the UK have an unwritten constitution?
Israel and New Zealand
What are the advantages of an unwritten constitution?
It is highly flexible - easily amended compared to a Rigid written constitution
Does the UK have a formal separation of powers?
No. The separation of powers in the UK are informal as there is no formal definition of mechanism to keep them separate. The US for example has a very formal separation of powers.
What are the three branches of State which are kept separate?
- Legislature
- Executive
- Judiciary
What are the core principles of Rule of Law?
- All actions of state or government should be permitted by law
- Laws should be made following set procedure
- Laws should be clear
- Laws should be certain
- Equality before Law
What are the sources of the UK constitution?
- Acts of Parliament
- Case Law
- Royal Perogative
- Constitutional Conventions
What are some of the key Acts of Parliament which are considered Constitutional?
- Magna Carta 1215
- Bill of Rights 1689
- Acts of Union 1706-7
- Parliament Acts 1911 and 1949
- Police and Criminal Evidence Act 1984
- Public Order Act 1986
- Human Rights Act 1998
- Constitutional Reform Act 2005
What was the aim of the Parliament Acts of 1911 and 1949
To ensure the will of the elected House of Commons would prevail over the House of Lords. Allows legislation to b enacted without House of Lords approval.
What was the aim of the Constitutional Reform act of 2005?
Reform the role of the Lord Chancellor, transferring the Head of Judiciary to the Lord Chief Justice. Also created the Supreme Court.
What was the aim of the Public Order Act of 1986?
To place limitations on the rights of citizens to hold marches and meetings on public.
What is the principle of Residual Freedom?
Citizens are free to do or say whatever they wish unless the law clearly states that such is prohibited
Can Parliament or the Monarchy resolve legal disputes?
No. The Case of Prohibitions 1607 ruled that the King cannot judge a legal case.
What is Habeus Corpus?
The right of an individual detained by the state to have the legality of that detention tested before a court.
What is the codified legal basis for the Right to a Fair Hearing?
Article 6 of the ECHR, now incorporated into UK law
What is a Judicial Review?
A mechanism which allows the courts to ensure that the Government and other public bodies exercise the powers granted in the proper way and do not breach rule of law
What is Royal Perogative?
Every act a Government can do without the authority of an Act of Parliament.
What are the principle areas of Royal Perogative?
- Foreign Affairs e.g Declaration of War, making Treaties etc
- Domestic Affairs e.g summoning Parliament, appointment of the PM, Public Honors etc
Can the Royal Perogative be changed?
Yes, Acts of Parliament can remove items from Royal Perogative (and have done - e.g Fixed Term Parliaments Act)
What is a constitutional convention?
1) Rules of constitutional behavior
2) considered to be binding
3) Not enforced by the Law courts
What is the constitutional convention of Royal Assent?
The Monarch will always assent to a bill which has passed Parliament
What is the Constitutional Convention of Collective Cabinet Responsibility ?
The cabinet is collectively responsible to the Parliament for the actions of the Government as a whole
Why do Constitutional Conventions exist?
- limit powers of the Monarch without constitutional overhaul (e.g dissolution)
- Maintain separation of powers
- ensure the Government is accountable to Parliament
Does the Ministerial Code have any legal power?
No - although it does state explicitly many constitutional conventions
What is the argument against codifying constitutional conventions?
- Politically and Constitutionally contriversial
- Erodes flexibility of such conventions
Arguments in favor of a UK written constitution?
- Promote Civil cohesion and education
- Achieve proper separation of powers
- More effective protection of human rights
- Clarify points of ambiguity (e.g referendums)
Arguments against a UK written constitution?
- Who has legitimacy to draft it?
- Reduces flexibility
- Represent values at a point in time and rapidly outdated
- Grants too much power to the Judiciary (e.g US Supreme Court)
