Constitution Flashcards
Define a constitution + constitutionalism
- A set of rules that establish and describe the distribution of power within a state
- Constitutionalism- is a principle that government operates within a set of constitutional rules and not in arbitrary fashion
What are the elements of a constitution?
A: assets rights of citizens
P: political process
L: limits
A: amendments
N: nationality rules
D: distrubutes political power
Explain how the constitution asserts the rights of citizens?
- Democratic countries have a ‘bill of rights’ preventing the government from erasing people’s human rights
Explain how the constitution ensures the political process
- Constitutions establish how the relationship between insitituions + the rules which govern them
Explain how the constitution places limits on power
- British constitution has no limits on the power of Parliament (which is the soverign), so can do what they chose
Explain how the constitution allows for amendments
UK
1. Simple parliamentary structure
2. The slow evolution of laws
* Referendums are needed for change - France + Ireland
* In the US they need a majority of 2/3 in both the HOC + 3/4 of the 50 states
Explain how the constitution regulates for nationality
- Constitution defines the terriotry which makes up the state
- Constitution establishes who is entitled to be a citizen
Explain how the constitution distributes political power
- All of the ultimate power lies in mostly one place (UK)
- Constitution includes federal settlements where power is distrubuted between national government + local governement (US)
What are the features of the UK Constitutions
P: parliamentary sovereignty
U: uncodified
U: unitary
F: fusion of power
F: flexible
Explain how the constitution allows for parliamentary sovereignty
Parliamet has absolute power to make, repeal and amend any law
Explain how the constitution is uncodified
- The UK Constituion is uncodified so its not confined to one document and can be written across multiple documents
- A codified constitution is written across a single document
Explain how the constitution is unitary
A system of government in which power lies in one central body
Explain how the constitution allows for the fusion of powers
When the executive branch + legislative branch of government intermingle
e.g Rishi Sunak is both the MP for Richmond (Yorks ) + a member of the executive branch (PM)
Explain how the constitution allows for flexibility
Changes in the constituion can occur without a special produre `
Why is the constitution necessary?
- Ensures political stability + order (particularly after a revolution)
- Often supports a democracy
- Often the basis of all other laws - constitutional sovereignty - not in the UK
- Defines what a nation is
- Protects human rights
- Helps to prevent abuse of power by the executive
Give two arguments in favour of a codified constitution, and two arguments against
IN FAVOUR:
1. It would provide great clarity by setting out the rules + limit the power of the executive
2. It would protect the rights of citizens + it would educate the public
AGANIST:
1. It would remove the flexibility and adaptability that is the constitution’s strength / It would put too much power in the hands of judges / It would undermine parliamentary sovereignty
2. Values change and a codified constitution would only reflect the mood of the time / Codified constitutions are too hard to change/ No consensus on what it should include
Explain five strengths and five weaknesses of the UK constitution, not including arguments about codification as these have already been done
STRENGTHS:
1. Has evolved gradually over time / Adaptable /More referendums recently brings legitimacy
2. Lords has an important advisory voices/Devolution has improved representation
3. Two-party system allows easy removal of govt/Normally strong and stable government
4. Independent & neutral Supreme Court created/Executive has power to fulfil its pledges
5. Parliamentary sovereignty places power in hands of elected representatives/Gov accountable to Parliament who can remove
WEAKNESSES:
1. Devolution has destabilised the Union & unfair to England / Electoral system unfair
2. Rights and rule of law not protected / Changes can be undone by any future Parliament
3. Lords are unelected/Referendums compromise parliamentary sovereignty
4. Lower turnout / Parliament not representative/Parliament not an effective check due to whips
5. Disillusionment / Power too concentrated so can be an elective dictatorship / Requires clarification from unelected courts
Explain what the Magna Carta is (1215)
- Limits power of the monarch + allows for accountability
- Habeas Corpus: no illegal imprisonment + a right to a fair trial
- Inspired the 1689 Bill of Rights
Explain the 1689 Bill of Rights
- Reinforced the petition of rights + how a monarch’s powers were limited
- Parliamentary privilege - freedom for MPs to say anything in parliament, without the threat of prosecution (even if illegal)
- Only parliament + not the monarch could levy taxes
- Parliament must meet quite frequently
- Free elections of MPs
- No excessive bail or ‘cruel and unusual punishment’
Explain the 1701 Act of Settlement
- Parliament picked the monarch + banned Catholics from having the throne
- No foreigner can be an MP
- Nobody who recieves money from the Crown (including pensioners) can be an MP - prevents a monarch having excess power
- Judges commissions are only valid for good behaviour
Explain the 1707 + 1800 Act of Union
1707 Act of Union
* Brought Scotland into the country of Great Britain
* Scotland wanted a federal approach where they wouldn’t be subordinate to Westminister
* At the time Scotland wasn’t subject to English taxes
* Negotiated a union - minimal English investments, higher taxes + less MPs than in even Cornwall - disappointing deal
* Scotland kept its own church, legal system + local government
* Scotland’s coinage, tax, trade, parliament + flag became the same as England’s
* By 1978 there was a devolution referendum but it didn’t meet the ‘winning threshold’
1800 Act of Union:
* Brought Ireland into the union + abolished the Irish Parliament
Explain the Parliament Act (1911 + 1949)
- Abolished the power of the Lords to veto a bill which orginated in the Lords
- Lords could only ‘delay’ legislation for 2 years - changed to 1 in 1949
- ‘Money bills’ could only be delayed for one month
- Length of parliament was reduced from 7 years to 5 years
Explain the significance of the Magna Carta
- Basis for future constitutional statues - Licensing Act (1695); publications no longer led to any censorship + Act of Settlement (1701)
Explain the significance of the 1701 Act of Settlement
- Led to the Crown Act 2013 - allowing first-born daughters (not just sons) to asend the throne
Explain the significance of the Parliament Act
- The Act was intended as temporary - many disliked the hereditary nature of the Lords + wanted it to be abolished
- Salisbury Convention: prevent the Lords from voting against an elected government’s legislation from its manifesto
- Led to the Supremacy of the Commons = more legitimacy
- Shows the possible need for a codified constitution
- Can be used in ethical issues
- Encourages stronger views in the Lords for the sole purpose of delaying legislation
- Some argue that the 1949 Parliament Act is unconstitutional as the 1911 Act was used to pass out
Explain the European Communities Act of 1972
- UK joined the Common Market (EEC), the European Coal and Steel Community + the European Atomic Energy Community
- EU legislation on regulations etc became directly applied to the UK even without parliament having approved it - shifted parliamentary approval in the UK
- Some EU legislation e.g directives are incorporated by parliament into UK law
- When interpretation of EU law was in doubt the UK must refer to the European Court of Justice - which strikes down any UK legislation that’s incompatible with UK law
Explain the significance of the European Communities Act 1972
- Parliament cannot pick + choose which provisions of EU law to follow
- Any unwanted EU law provisions were removed from UK statute law on a case-by-case basis
- Removed parliamentary sovereignty
What are the advantages and disadvantages of a codified constitution?
Advantages:
* Higher status than all other law
* Clear laws which cannot be misinterpreted
* Courts can easily decide whether an act is or isn’t constitutional
Disadvantages:
* Very rigid + difficult to amend - generally requires a supermajority in excess of 50% in a referendum
* Becomes very important within the nations psyche e.g US
What are the advantages and disadvantages of a uncodified constitution?
Advantages:
* Not entrenched so amendments can be made
Disadvantages:
* Judicial review is limited because there is no single document that senior judges can’t clearly say if an act is or isn’t constitutional
* Parties can choose not to follow aspects of the constitution which don’t align with their ideologies
* Constitutional law has the same status as regular law
Explain the Great Reform Act of 1832
- Extended the vote to the new middle classes + gave parliamentary representation to the new industrial workers (tenant farmers + property owners)
- Abolished seperate representation of the underpopulated ‘rotten boroughs’ - created seats for urban areas
- Increased electorate to 65,000
- Made it impossible for the Lords to control the composition of the House of Commons through patronage
- Limited the powers of the Commons more as the choice of the cabinet members was no longer there decision but that of the HOC
Explain the 1867 Electoral Reform Act
- Gave the vote to some ‘free’ male workers and began the process of creating a mass electorate
Explain Statute Law
- Law created by parliament + has to be approved by the HOC+HOL as well as the monarch
- Implemented by the executive + executed by the courts
- Supreme source of constitutional law due to parliamentary sovereignty
- Example = Great Reform Act 1832
Explain what common law is
- Legal principles that have been discovered, devolved + applied by UK courts
- Senior judges can conduct judicial review to clarify/establish a legal position if it’s unclear/absent
- Parliamentary sovereignty means they can overturn such common law
Explain what conventions within the law are
- Rules or norms of behaviour considered to be binding - neither codified or legally binding
- 2011 Cabinet Office Manual sought to bring together these conventions in a single document
- Example = Royal Assent - a monarch will always agree to sign legislation passed by the two houses since 1707
- Example = Gordon Brown announced that the UK wouldn’t declare war without parliamentary debate
Explain Authoritative Works within the Law
- Long-established legal + political texts that have become accepted to set out ‘who can do what’ under the UK constitution
- Have no fomal legal status but have ‘persuasive authority’
- Example = Erskine May’s 1844
Explain what EU law is
- Following 1972, the treaties establishing EU law + judgements from the European Court of Justice became part of the UK constitution
- EU law then took precedence over UK law
- May proposed the ‘Great Repeal Bill’ to automatically make all applicable EU law into UK law - then parliament could pick which ones to amend or overturn
- EU law was eventually withdrawn from UK law through European Union (Withdrawal) Act 2018
Explain the implications of an uncodified constitution in the UK
Strengths:
* Principles can be impacted by government interference and changed based on each party’s beliefs
* It’s flexible + open to social and political change within society
* Allows for parliamentary sovereignty
Weaknesses:
* Citizens’ rights aren’t entrenched, so can be easily violated + removed
* Many features don’t make sense + require further modernisation
* Gives too much political power to judges who are unelected + unrepresentative - ‘tyranny of judiciary’
Explain the key principles of Parliamentary Sovereignty
- Means that Westiminister Parliament is the supreme law-making body
- Can legislate on any subject of its choosing
- Legislation cannot be overturned by any higher authority
- No parliament can bind its successors - all legislation can be amended - HOC has the greatest influence
Explain the key principles of EU membership + Parliamentary Sovereignty
- EU law had precedence over UK law which challenges the idea of parliamentary sovereignty
- Parliament retained authority by choosing to leave the EU
Explain the key principles of the Human Rights Act of 1998 + Parliamentary Sovereignty
- Incorported the rights in the European Convention on Human Rights into UK statue law
- New laws must be compatible with this or will be striken down by the courts until overturned or amended by parliament
Explain the key principles of Devolution + Parliamentary Sovereignty
- Scotland, Wales + NI have primary authority over devolved issues such as education
- Westminister can’t make laws on devolved issues but has ‘sole authority’ over ‘reserved matters’ e.g the economy
- The Scotland Act 2016 states that the Scottish parliament + government are permanent institutions + cannot be abolished without approval in a referendum
Explain the key principles of Referendums + Parliamentary Sovereignty
- Settles constitutional issues e.g devolution - shows the shift from parlaimentary soereignty to popular sovereignty
- Referendums can be advisory but by not following the result, goverenments make themseleves unpopular + increase the chance of losing the next general election
Explain how the Parliamentary System operates
- The executive + legislative branches are fused
- The legislature can dismiss the executive - the government is accountable to parliament who can remove the government with a no confidence vote + dissolve them with a general election
- Parliamentary elections decide the government
- There is a collective government led by the PM who chairs a cabinet of senior ministers - collective responsibilty requires he cabinet to support government policy
- Seperate Head of State, as the UK is a constitutional monarchy; the modern monarch has a ceremonial role but doesn’t have prerogative powers
What is the ‘Westminister Model’?
- There is no strict seperation of powers between the executive (gov) and the legislature (parliament)
- The government is drawn from parliament but is also accountable to parliament
- This is the opposite to a presidential government where the executive is seperately elected to the legislature, so is accountable to the people not the legislature