constitution Flashcards
what is a constitution
A constitution is a framework of rules, principles and procedures which establishes, empowers and restrains the institutions of government.
Key principles of the British constitution
- Principle of the parliamentary sovereignty
- Principle of the Rule of Law
- Principle of responsible government
Principle of the parliamentary sovereignty
the most essential, thus subordinates the roles of the courts. Originates from the civil war of the 17th century and was written into the Bill of Rights of 1689. Distinguishes the British system from that of the US etc.
Principle of the Rule of Law
Popularised by C19th constitutional scholar Albert Dicey. Means the government must show the legal authority for its actions. Eg. police use of firearms wo legal authority. When the gov breaks the law the law has authority to challenge the gov, e.g. during Brexit.
Principle of responsible government
The government is responsible to parliament in two different ways. collective responsibility is that the government is responsible collectively to parliament and should operate in confidence of parliament when conducting affairs. The government is also responsible individually, with individual ministers and accountable to parliament.
Structure of Government
- Executive
- Legislature
- Judiciary
Tangible v. intangible
written or unwritten. The British Constitution has a wide variety of written sources but it is not codified and does not enjoy a higher legal status.
Rigid v flexible
the British constitution is flexible in theory as it can be changed easily by an Act of Parliament. For major constitutional change a test of popular opinion is expected but not required (eg general election (restrict the powers of the house of lords) or referendum (Brexit or Scottish independence)
Legal sources of the British Constitution
- Treaties of Union
- Acts of Parliament
- Royal Prerogative
- Judicial decision
Treaties of Union - examples
- Treaty of Union 1707 - provision of article 18 demonstrated that the private rights of the people of Scotland are not to be changed unless it is of obvious utility, this precedes the separations of the Scottish and English/Welsh legal and religious systems.
- In re Allister [2023] UKSC 5 - Northern Ireland protocol which created differential trading agreements bw Northern Ireland and the EU and GB and the EU. Argued that it violated the Treaty of Union with Ireland.
Acts of Parliament - examples
- Bill of Rights 1689 → Parliamentary approval for taxation and to keep an army. The proceedings of Parliament cannot be scrutinised by judicial sector
- Parliament Acts 1911-1949 → restricts powers of House of Lords, can no longer veto House of Commons
Royal Prerogative
- It is the residue of power, recognised by the court, that is left in the monarch following the civil war in the C17th.
- There are personal prerogative powers
- Power to summon, prorogue (suspend) and dissolve parliament on the advice of the PM.
- The king chooses who the PM will be, however he is bound to choose the person who is most likely to command the confidence of the Parliament, aka the leader of the party with the majority/largest number of seats following the general elections.
- Royal assent → the King has to assent before a bill can become a law. However, the King cannot withhold assent.
- There are political prerogative powers
- War
- Disposition of armed forces
- Treaties
Judicial decision
Entick v Carrington (1765) 19 St Tr 1030 - radical Home Secretary v. police officer. Trespassed on the property of Entick. Law ruled that the state cannot trespass wo legal authority granted by Parliament. The state must have legal authority before it violates property.
non-legal sources of the constitution
Conventions
What are Conventions
- rules principles and practices which help us understand the way in which the country is government is run.
- The unwritten rules of the constitution (formerly), but nowadays a lot of the conventions are written down, eg the Ministerial Code 2022
