COMPONENT 2: THE CONSTITUTION (1) Flashcards
WHAT ARE THE FUNCTIONS OF A CONSTITUTION?
- They determine how political power should be distributed within a state ( i.e determine the balance of power between government and parliament etc)
- They establish political processes that make the system work. This includes the relationships between institutions and the rules that govern how they operate.
- A constitution normally states what the limits of government power should be- in other words, what is the competence of government.
- A constitution asserts the rights of the citizens against the state.
- constitution establishes the rules by which nationality is established- in other words, who is entitled to become a. citizen and how outsiders may become citizens.
- Constitutions have to be amended from time to time and it is therfore essential that a constitution contains within itself the rules for its own amendement.
7.
What are the key documents that make up the UK Constitution?
Britian’s constitutional arrangements have evolved over many centuries to reflect the values and ideals of the people.
Key Documents that make up our constitution include:
- Magna carter (1215): Established the principle that the crown is not above the law and also contains the first statement of the principle of habeas corpus.
- Bill of rights (1689) : Gave legal force to certain ancient rights and liberties’. These included the summoning of regular parliaments, no taxation without consent etc.
- Act of settlement (1701): Confirmed the primacy of parliament over the crown by declaring that parliament had the authority to determine the succession to the throne. Also confirmed judicial independence by stating that a judge can only be removed only on the agreement of both houses of parliament
- Act of Union ( 1707): United the parliament of scotland with that of England and Wales.
Parliament Acts ( 1911 and 1949): In the parliaments act of 1911, the Lords lost its right to veto.
Parliament Act of 1949, reduced the Lords right to delay from 2 years to 1.
- Human Rights Act (1998) and
- Devolution Acts (1999)
- The European Act 2017 ( Notification of withdrawl): This gave parliamentary consent to the Uk’s exit from the European Union
What is the Nature of the Uk constitution?
- The Uk constitution is UNCODIFIED
- There is no single document in which its key principles are gathered together
Comparison: American constitution is CODIFIED
- The Uk constitution is UNTRENCHED
- This means that our constitution can be altered relatively easily by a simple majority vote in parliament. Therfore it has a higher degree of flexibility than a codified constitution, where some or all of its provisions are entrenched.
ENTRENCHMENT: A constitutional principle whereby constitutional rules are safeguarded againsts change by a future government.
- The Uk constitution is UNITARY.
- In a unitary constitution, sovereignty lies in one single place. The sovereign body in such a constitution is the ultimate source of political power.
COMPARISON: A federal constitution by contrast, divides sovereignty between a central body and regional bodies ( USA).
What are the twin pillars of the Uk constitution?
- Parliamentary sovereignty
The 3 main ways in which parliament can be said to be sovereign are:
- No parliament can bind its successor
- parliament can make a law on any subject
- Legislation passed by parliament cannot be struckdown by a higher body, such as a constitutional court. The UK’s supreme court can interpret but not overturn an act of parliament.
Type of sovereignty:
Legal: Where ultimate and supreme legal authority lies, in the Uk this is parliament
Political: The ability to exercise legal power, dealing with the reality of matters rather than pure principles ( Prime Minister)
Popular: The will of the people must be listened to and acted upon in order to maintain peace and ideas of British democracy
Pooled: Parliament may share its legal authority with other bodies such as the UN and Nato.
- The rule of law, which is the principle that all people and bodies, including government, must follow the law and can be held to account if they do not.
This acts as a check on parliamentary sovereignty
How difficult is it to entrench constitutional reforms in the UK?
It is not possible to entrench laws in the UK, this is because a future parliament can simply repeal or amend Acts of parliament.
It is becoming common practice to hold a referendum when constitutional change is proposed.
What are the differences between Federalism and Devolution?
Federalism:
- Legal sovereignty is divided between central and regional governments
- Federalism is entrenched in a constitution
- The powers granted to regional governments are equal and symmetrical
- Any powers not specified in the constitution are normally granted to regional governments
Devolution:
- Power but not sovereignty is delegated from central to regional governments
- Devolution is not entrenched and is therefore flexible
- Powers may be delegated in unequal amounts to various regional governments.
e.g Scotland has more power than Wales
- Any powers not specified in devolution legislation are reserved to central governments
Why might you call the UK a quasi-federal state?
Quasi- Federalism: A system of devolution where it is so unlikely or difficult for power to return to central government.
Theoretically parliament is soveriegn & can take power from the devolved assemblies. In reality this would be difficuly as Scottish Devolution developed from a referendum, which represents the Will of the people.
Parliamentary sovereignty:
The principle the parliament is the supreme legal authority
What are the main sources of the UK constitution?
- Statute Law ( Act of parliament)
- The body of law passed by parliament. Not all laws are constitutional only those that affect the nature of the political system and citizens’ rights.
Example:1998 Scotland Act, Government of Wales Act and Northern Ireland Act created devolved legislative bodies, which were given some powers previously held by Westminster.
- Common Law ( Judge made Law)
majority of common law has now been replaced with Acts of parliament
- Legal principles laid down by judges in their rulings in court cases, which provide precedents for later judgements.
Example: The presumption that a person accused of crime is innocent until proven guilty. The medieval concept of habeas corpus, is a common law protection against unlawful imprisonment
Case: Entick v carrington (1765) set the principle of needing a warrant to search a property
- Conventions
A convention is a rule of political practice, that is not legally binding but is usually followed by members of parliament
- Customs and practices that dont have legal force, but which have been broadly accepted over time.
Can be challenged and changed by an Act of Parliament.
Example: The principle, established since the 2003 Iraq Qar and subsequent parliamentary votes, that except in an emergency, the government will not order military Action without prior parliamentary approval
+ It is a convention, known as the salisbury convention, that the House of Lords should not block any legislation that appeared in the governing party’s most recent election manifesto. However, the House of Lords occasionally break the convention
- Authoritative Works
Texts of such a profound and enduring political significance that they contribute to the constitution of the United Kingdom.
- Textbooks that explain the working of the political system.
A useful guide, but lacking legal standing
Example: Erskine May’s parliamentary pratice, first published in 1844 and regularly updated, explains the rules of parliamentary life.
e.g John Bercow, used the principles established by Erskine May to stop theresa May from reintroducing her brexit deal into parliament in an unchanged state
- Treaties
An agreement made between two or more political entities
- Agreements with other EU Member states, which the Uk Governments have signed since joining what is now the EU in 1973.
Following the 2016 EU referendum, preparations are being made for the UK to leave the EU.
Example: Arguably the most important treaty was Maastricht (1992), which transformed the European community into the European Union
Parliamentary statute law has tradionally been seen as the ultimate source of authority, since an Act of Parliament can supersede even landmark decisions such as magna carta.
Why has there been ( and is still) demand for constitutional change?
Democratisation: Too much of the uk political system has been seen as undemocratic. The unelected HOL and unrepresentative electoral system are clear examples, though neither of these have been fully reformed
Decentralisation: Devolution has dispersed power away from central Government considerably since 1998. The administration of scotland, Wales, Northern Ireland, as well as elected Mayors in London and other cities helped move power to local centres
Stronger protection of rights and transparency:
During the 1980s there had been fears that the rights of citizens had been consistently eroded. The freedom of Information Act was seen as essential in a drive to create a more accountable government.
Modernisation: Governments since 1997 have sought to bring the British constitution into line with other modern arrangements wich exist in western democracies such as the use of referendums etc. Nevertheless, there is evidence to suggest that the British system remains traditional rather than modern.
How has the constitution changed since 1997?
( changes under Labour
1997-2010)
House of Lords Reform ( partial success):
+ 92 out of the 753 hereditary peers were allowed to retain their seats, known as the cranborne compromise
+ Made the Lords, a largely appointed chamber, where a higher proportion of peers, who held their positions on merit rather than Birth, meaning the Lords became a more professional and efficient body.
- Unable to replace the remaining House Of Lords with an elected or partly elected chamber
Electroral Reform ( Failure)
+ Used proportional systems in Wales, Scotland and Northern Ireland to avoid Domination
- However, they did not implement electoral reform & stuck with FPTP as New labour benefitted from it.
Human Rights Act ( Rights reform)
( success) :
+ Passed the Human Rights Act, which incorporated the European convention of Human Rights into UK Law.
+ It was made Binding on all public bodies
- However, the convention was not made binding on the UK parliament, which means parliament can repeal the HRA.
e.g Conservative Gov of 2015 was committed to replacing the Act with a new British Bill of Rights
Freedom of Information Act 2000 (partial success):
+ Caused the Government to be transparent with the Public
Expenses Scandal:
Request was made to the information tribunal to release details of expenses claims made by Mps
Consitutional Reform Act 2005 ( Sucess) which established:
The supreme Court that:
+ Seperated the judiciary from the Government
+ Creation of the supreme court
+ appointment of Senior judges is made by an independant committee ( JAC)
However:
- Government has the final say on who shall become a senior Judge
- Share same powers as the HOL.
Devolution
How has the Constitution changed since 1997?
( Changes under the coalition ( 2010-15) and conservative Governments since)
Reform of the House of Commons ( Partial success)
+ Introduced a system for electing members of the select committees by the whole chamber.
Recall of Mps Act 2015 ( partial success):
+ Allowed constituents to ‘recall’ their Mp, who had been involved in some kind of Misbehaviour through a by election.
e.g In 2019 Fiona Onasaniya, lost her seat due to a custodial sentence.
However:
- It is a limited Measure as Mps cannot be recalled on the basis of their voting record or their policy statements.
Furthur Devolution to Wales: ( Partial success)
+ 2006 Government of Wakes Act gave powers to the Welsh Government to make/pass laws in 20 key areas and allowed some transfer of power from Westminster to Wales ( Healthcare, education, transport)
+ Silk commission: Proposals led to some devolution of small taxes e.g control over stamp duty
- Proposals for futhur devolution of administrative & political areas prove to be controversial
House of Lords Reform Acts ( 2014-15):
+ Allowed members of the HOL to resign, retire or to be removed for prolonged non attendance or expelled for serious criminal conviction
+ 2015: Allpwed the Lords to remove a peer who has breached its code of conduct.
Dissolution and Calling of Parliament Act 2022:
Revived the prerogative powers of the Monarch to dissolve and summon parliament. Furthermore, This has restored the power of the Prime Minister to have a general election called at the time of their choosing
Devolution
Devolution: Process of delegating power, not sovereignty from the UK parliament to specific regions of the. country.
The scottish Parliament and Government:
- There are 129 MSPs
- They use the AMS system to elect MSPS, which is a Hybrid system that uses FPTP to elect 73 Msps in single member constituencies. 56 Msps are chosen from Party Lists, Where the country is divided into 8 multi-member regions, each of which elects 7 members
- Coalitions or minority Governments are more likely, although it is not impossible, for one party to form a majority government.
e.g In 2011, the SNP won a majority
- The current Government is led by the SNP and its leader Nicola sturgeon.
Over time powers have been devolved to Scotland:
1998: Given power to raise/lower the rate of income tac by up to 3%
2012: Scotland Act gave parliament the power to set a Scottish rate of income tax higher or lower than the rest of the UK.
2016: Scotland Act gave the Scottish Parliament 50% of the VAT revenue raised in scotland
Devolution
Welsh Assembly and Government:
- There are 60 members of the Welsh assembly
- They use the AMS system, where coalitions are very Likely.
- Labour is the dominant party within Wales.
- Current Government is led by First Minister Mark Drakeford, who is also the leader of Welsh Labour.
- Welsh Devolution is different to that of Scotland, as the powers are not exstensive as those of the scottish parliament, but they can make primary legislation in the 20 devlolved areas.
Wales Act 2014: Gave the Assembly control of Landfill tax and stamp duty.
Devolution
Northern Ireland Assembly and Executive:
Unionists: They want Northern Ireland to remain part of the Uk.
Nationalists: They favour a United Ireland
- There are 90 members of the Northern Ireland Assembly
- Due to the troubles in the 1970s, the Northern Ireland Assembly has adopted the STV system to elect MLAs, since this system is more liekly to result in a coalition which will ensure unionist and nationalist parties are sharing power.
- Under the STV system, Voters rank candidates in order of preference from 1 to 4. In stage 1 of counting, all first preference votes are counted and allocated, anyone who meets the quota is elected. Stage 2, any votes receieved for a candidate above the quota are transferred to the next choice on each of those ballot papers. If no candidate has enough votes to meet the quota, the candidate with the lowest number of votes is eliminated .Stage 3, all of their votes are passed on to the next preference on the ballot paper and this process is repeated until all seats are filled.
- Current Government is led by Northern Ireland secreaty Chris heaton Harris, who is a member of the Conservative Party.
- The Assembly has primary legislative powers in a range of areas but does not have major tax- raising powers.
