Chapter 2.1 - The Constitution

Question 0

Define ‘constitutionalism’.

Answer 0

Constitutionalism is a principle that government operates within a set of rules that can be written or unwritten, and not in an arbitrary fashion.

Question 1

What is a constitution?

Answer 1

A constitution is a set of rules that describe and explain the distribution of power within a state, procedures of government, limits of government power and the rights of citizens, as well as the rules on citizenship and constitutional amendment. It can be codified or uncodified, unitary or federal.

Question 2

What are codified/uncodified constitutions?

Answer 2

This is the classification of constitutions into 2 types. Codified constitutions have a single source, are written in one document, superior to all other laws and are entrenched. Uncodified constitutions have multiple sources, do not appear in a single document, are unentrenched and flexible.

Question 3

Define ‘sovereignty’.

Answer 3

Sovereignty means ultimate power/source of power in a political system.

Question 4

What is meant by ‘legal sovereignty’?

Answer 4

Legal sovereignty refers to the ability to make laws and is where power lies theoretically.

Question 5

What is meant by ‘political sovereignty’?

Answer 5

Political sovereignty refers to the location of power and is where power lies in reality.

Question 6

What are unitary/federal constitutions?

Answer 6

Unitary constitutions are where sovereignty lies in one central body. In federal constitutions, sovereignty is divided between the central authority and other regional bodies.

Question 7

Describe and illustrate the 6 sources of the UK constitution.

Answer 7

1. Parliamentary statutes are laws passed by Parliament that have a constitutional effect e.g. Human Rights Act 1998 which incorporated the European Convention on Human Rights into UK law, Scotland Act 1998 which transferred considerable power to the Scottish Parliament and Freedom of Information Act 2000 which gave considerable public access to official documents and information.
2. Conventions are rules that are not legally enforceable but are considered binding and virtually law e.g. Salisbury Convention which states that the House of Lords shouldn’t block proposals that are written in the government’s last elected manifesto or the collective cabinet responsibility states that members of the government should always defend all government policies.
3. Common law are unwritten laws but can be enforced by the courts e.g. the use of prerogative powers of the Prime Minister results from common law. This means the Prime Minister has a range of powers, transferred from the monarchy but not sanctioned by Parliament. Many individual rights and freedoms are also established by common law.
4. EU treaties; the UK has signed many treaties, mostly concerning the transfer of power and sovereignty from the UK to the EU.
5. Works of authority are the writings of constitutional experts which describe constitutional practice and have so much authority that they are part of the constitution e.g. A.V. Dicey’s principle of equality under the law or the 2010 O’Donnell Rules, written by the Cabinet Secretary, regarding how to form a government with a hung parliament.
6. Traditions that have grown up over a long period of time; they aren’t legal but tend to persist e.g. the annual Queen’s Speech is how the government’s annual legislative programme is announced.

Question 8

What are the 7 main features of the UK constitution?

Answer 8

1. It is not codified which makes it very flexible and not entrenched.
2. Constitutional laws are not superior to other laws.
3. The sovereignty of Parliament is fundamental which means that, ultimately, the constitution and its rules are in the control of Parliament - constitutional rules cannot be entrenched and that Parliament can amend them at will.
4. There is a constitutional monarchy.
5. The rule of law operates - all are equal under the law and the government itself is subject to laws, just like citizens.
6. It is unitary which means all sovereignty lies with Parliament.
7. There is a lack of separation of powers because the executive and legislative branches are not separated from each other and the executive (government) dominates the legislature (Parliament).

Question 9

Explain where sovereignty lies in the British system.

Answer 9

The concept of sovereignty is uncertain however, the following assertions can be made:

1. Parliament is legally sovereign which means it is the ultimate source of law and all political power.
2. UK government shares this sovereignty to some extent because it has the people’s mandate to implement its political programme. This means Parliament should not normally defy the will of the government when it is acting within the people’s mandate.
3. The people are sovereign at elections.
4. Referendums do not grant sovereignty to the people because they are not binding on Parliament. However, referendum results are sovereign in practice.
5. The EU has legal sovereignty in those areas where it has jurisdiction. However, the UK has not given up sovereignty finally to the EU because it can leave and regain all its sovereignty.
6. The devolved administrations do not have legal sovereignty, but they have quasi sovereignty. This means that the power granted to them is unlikely ever to return to Westminster.