Constitution Flashcards
what is a constitution?
a Constitution is a set of rules that:
- seek to establish the duties, powers and fucntions of various institutions of government
- regulate the relationship between and among the institutions
- define the relationship between the state and the individual; that is define the extent of civil liberty
codified constitution
- rigid
- authoritative- highest law of the land
- entrenched- difficult to amend or abolish
- judiciable- all political bodies subject to the authority of the courts and in particular a supreme or constitutional court
uncodified constitution
- flexible
- not authoritative- constitutional laws enjoy the same status as ordinary laws
- not entrenched- constitution can be changed through normal process of enacting statue law
- not judiciable- judges dont have legal standard against which they can declare that actions of other bodies are ‘constitutional’ or ‘unconstitutional’
unitary
-constitutional supremacu of central government over provincial or local bodies
-vesting sovereignty in national legislature, meaning it can create, abolish, strengthen or weaken all other institutions
eg UK-Parl has more power than local bodies
federal
- divide sovereignty between 2 levels of government
- centrol gov (federal level) and regional gov (state level) poses range of powers that other cannot enroach on.
- DEVOLUTION- created a ‘quasi-federal’ structure
sources of the constitution
STATUE LAW- Laws made by parl (Acts of parliament), Formal (written law).
-single most important source of the constitution- if statue law conflict with common law, statue law will prevail. eg freedom of information act 2000
COMMON LAW- Based on tradition, custom and precedent.
-seen as judge made - judgements on earlier cases seen as binding on later cases eg royal perogative, traditional rights and freedoms
CONVENTIONS- Non-legal but makes politics ‘workable’ eg Appointment of the PM, Individual and collective ministerial responsibility
WORKS OF CONSTITUTIONAL AUTHORITY- Books outlining what is constitutionally correct.
-Not legally forceable
-used for gaps and confusions in the UK constitution
-job of interpretation eg Walter Bagehots the english constitution
EU LAWS AND TREATIES- Higher status of EU law over statue law.
-Treaty on European union, Treaty of Lisbon (2009)
principles of the constitution
PARLIAMENTARY SOVEREIGNTY- Sovereignty is located in parliament therefore parliament has legal authority to make, unmake or amend any laws it wishes
-most important source of the constitution
HOWEVER
-Not politically sovereign - main political constraints are PGs and public opinion
-Shift from parl sovereignty to popular sovereignty (authority vested in the people) - wider use of referendum
-Parl may no longer be legally sovereign - EU and devolution
RULE OF LAW- Even in the absence of higher law, gov still subject to legal checks and constraints.
-Gov not above the law
PARLIAMENTARY GOV- Based on the fusion of powers between executive and parliament. Gov in affect governs in and through parliament
CONSTITUTIONAL MONARCHY- Most of monarchys powers were transferred to ministers accountable parliament
-Role of monarchy- promote popular allegience and serve as a symbol of political unity
EU MEMBERSHIP
-EU law higher than UK law
-European commission have supranational powers
-decline of national veto - national veto protected parliamentary sovereignty by allowing member states to block EC/EU measures, that threatened vital national interests
BUT
-In joining EC, Parl did not and could not bind its successors - parliament has power to leave EU
-Pooled sovereignty- combination of national sovereignties of member states to enhance their power and influence; whole is greater than its parts.
strengths of the constitution
FLEXIBILITY
- Easy to change because of importance of statue law eg Devolution
-easier and quicker to introduce Acts of Parliament then to amend US constitution
-organic constitution- remains relevant and up to date
DEMOCRATIC RULE
-Supreme constitutional authority is vested in the elected HOC- changes come about due to democratic pressure
-growing belief HOL shouldnt be able to block policies of elected HOC
EFFECTIVE GOV
- Gov decisions backed by parl cant be overturned by the judiciary. FPTP means gov usually gets their way in Parl
-Concentration of power in executive= gov takes strong and decisive action
HISTORY AND TRADITION
-Tories think constitution is strong as its based on history and tradition.
-organic constitution has historical authority as its rules have been ‘tested by time’ and shown to work.
constitution under Blair and Brown
BLAIR
-New Labour converted to a radical change of constitutional reform during 1990s because:
–18 years in opposition made them think like a third party
–Labours 1997 manifesto: Scottish & welsh assembly established, N.Ireland Assembly, London authority, referendums, stage one HOL reform
BUT
-when labour won landslide victory (1997) they quickly lost enthusiasm for reform (& throwing away power)
-reforms reshaped existing constitutional arrangements but did not address deeper problem.
BROWN
- Proposals for limiting powers of the PM and executive
- powers needed to be consulted with parl: declare war, recall parl, choose bishops, make top public accounts with scrutiny
constitution under cameron and clegg
REFORMS:
- ELECTORAL REFORM
- Libdem favoured PR voting systems for GE
- Referendum for AV system (failed)
LORDS REFORM
- Both parties (coaltion) entitled to a largely or entirely elected 2nd chamber
- tories didnt want as elected chamber may become rival
BILL OF RIGHTS AND JUDICIARY
-conservatives committed to replacing HRA with non-entrenched, flexible bill of rights as to serve a constrain on parl
EUROPE
-Tories got their way
DEVOLUTION- Acceptance by tories to devolving power
codified constitution for VS against
FOR:
CLEAR RULES- Creates less confusion and greater certainty of enforcing laws
LIMITED GOV- Solve ‘elective dictatorship’ by ending parliamentary sovereignty
NEUTRAL INTERPRETATION- Judges above politics so will act neutral when interpreting constitution
PROTECTING RIGHTS-Bill of rights easier to define and enforce
EDUCATION AND CITIZENSHIP
AGAINST:
RIGID-Harder to change higher law so can easily become outdated
JUDICIAL NEUTRALITY- Judges are unelected and unrepresentative so if they interpret its not subject to public accountability
LEGALISTIC-Dry and only understood by judges and lawyers
POLITICAL BIAS
UNNECESSARY- Improved democracy and strengthening checks and balances best way of improving gov.
