Constitution Flashcards
Constitution sources: common law
Legal precedents set by judges as they make decisions on specific cases. It is constantly developing as judges interpret the law and use common sense/applying the case facts they are hearing to previous decisions
e.g Diane Pretty appealed for a change in law to include a right to die or assisted suicide which was denied. To put an assisted suicide law in place Parliament would have to legislate for it.
Acts of union 1707
Formally united England and Scotland who had shared a monarch but two separate parliaments. Westminster became Parliament for both countries. Scotland retained control over certain policy areas such as the legal system and education.
Historical development of constitution-peasant’s revolt 1381
Peasants demanded that with the poll tax, everyone should pay the same. Legal records burnt, Hayke and Archbishop of Canterbury were executed and stuck on London Bridge. Revolution leaders strung up. Refusal to make magna carta for all, first but failed attempt.
What does an uncodified constitution mean?
There is not a single legal document in which the key principles of the UK constitution are to be found. Instead it derives from a number of sources with different status.
Historical development of the constitution-Magna Carta 1215
Group of nobleman forced King John to sign a charter that would limit his power. Protect barons ancient freedoms from tyrannical kings but only applied to 25 barons. Established right to free trial and rule of law.
Constitution sources: works of authority
Commentators who have become such influential observers have their works become accepted as works of authority on it. These act as guides, for those who study/are involved in the UK system, to workings of institutions and political systems.
e.g Erskine May ‘Treatise on the law, privileges, proceedings and usage of Parliament’ 1844. Referenced by Bercow when deciding May could not have a third vote on her Brexit deal unless there was substantial changes to it.
Bill of Rights 1689
Affirmed rights of Parliament, provisions for king to rule besides Parliament. Charles II succeeded by brother James in 1685, desire to return to ways before revolution. James overthrown by William of Orange. Kings now rule under thumb of Parliament, William and Mary II allow free elections and freedom of speech in Parliament (Parliamentary privilege). England and Scotland constitutional monarchy.
European economic communities act 1972
Passed under Heath’s Tory government, taking UK into EEC. EU law supersedes UK law, agreement to give up sovereignty. Idea was to prevent another European war.
Contemporary discussions of the rule of law
Legal equality=applies equally to everyone in UK and everyone has access to legal representation e.g legal aid which has been cut since 2010
Parliamentary privilege=idea traced back to civil war, MPs can say what they want in Parliament. Laws about slander don’t exist in Parliament as it has its own rules. E.g Dennis Skinner ‘coke head’ to Osbourne during parliamentary debate, was sanctioned.
Laws should be unambiguous-provide clear statement of rights, obligation and limit actions of citizens.
Presumption of innocence until proven guilty.
Legal certainty=law must be applicable to different cases and circumstances and open to interpretation. Can’t have level of certainty, must be broad
Independent judiciary,
Rule of law
AV Dicey:
- Authorities shouldn’t punish or lawfully interfere unless law has been breached
- No one above law and everyone is subject to ordinary laws
- Bill of rights not needed because judicial decisions determine rights of the individual.
Constitution sources: EU laws and treaties
2900 new regulations and 410 directives to English law. Factortame legal case 1990-91-EU law has superseded UK law since 1972
Brexit supporters see this as an issue-leaving EU will restore Parliament’s sovereignty
EU law ceased to source but specific ideas and laws will be transferred to UK law and thus constitution.
Constitution sources: conventions
Customs or rules that people follow but aren’t legally enforceable.
e.g Royal Assent-sovereign must assent to any bill passed by Houses of Parliament.
Brexit and the royal prerogative
May wanted to use it to make or leave treaties. Gina Miller took her to court, who ruled that parliamentary sovereignty took us into the EU and therefore had to authorise and withdraw the UK from the EU. Supreme Court (2016-17), 8-3. Royal prerogative can’t be used.
Constitution sources: Royal prerogative
Historic powers officially held by monarch but in reality passed to politicians. Allow decisions to be taken without need for Parliament. A list of some has only been available since 2003.
Domestic: issuing/withdrawal of passports, appointing/dismissing ministers
Foreign: declaring war, making of treaties
Mercy-used to withdraw death penalty, now allow changes in sentences e.g allowing people out of prison in NI.
Royal ownership of swans.
Constitution sources: statute law
Acts of Parliament
Some have constitutional significance in that they: outline powers/duties/functions of government branches, establish relationships between branches and state and citizen
e.g Life Peerages Act 1958, Representation of the People Act 1969
Demonstrate ease of changing constitution and parliamentary sovereignty
What are some issues with Parliamentary Sovereignty?
Loss of sovereignty through devolution (has led to different policies regionally)
EU membership/international organisations
Growing dominance of executive at Westminster
What is the doctrine of Parliamentary Sovereignty?
Parliament is supreme legal authority in UK, it can create or end any law.
Courts cannot overrule it’s legislation.
Parliament can pass laws that future Parliaments cannot change.
Reason why our constitution is unentrenched-Fixed Term Parliaments overruled.
Legal sovereignty.
Sovereignty in UK Parliament
Sovereignty rests with UK Parliament, which has taken years to evolve. It was said to be with Parliament when the vote was given to women.
Something that governments can trade to gain something e.g joining NATO gives UK collective security.
Issues with sovereignty in the UK
EU rules are said to be a loss of sovereignty. Issues with sovereignty often merge with identity even though they are different.
EU and international organisations erode national sovereignty.
British sovereignty shared with EU.
What is meant by sovereignty?
Absolute or unlimited power. Usually linked to idea of territory e.g nation.
Legal=law making, who has power, where does it reside
Popular= Democracy, people, will of people
What is meant by the twin pillars of the UK constitution?
AV dicey identified two principles that act as pillars to the UK constitution. These are known as parliamentary sovereignty and the rule of law.
What does unitary mean?
Power traditionally held at centre i.e Westminster and Whitehall. Sovereignty is concentrated in a single centralised government. Relatively strong regional governments created by central authority. 150+ states use this e.g France and china. Tied to doctrine of parliamentary sovereignty in UK
What does unentrenched mean?
The UK constitution can be easily amended with relative ease. A simple majority vote in Parliament is all that is required. E.g HRA 1998, Fixed Term Parliaments Act 2011.
