Constitution and Judiciary

Question 1

What is a constitution?

Answer 1

A set of rules that defines the way a state is organised, sets out the ways power is distributed and establishes the duties powers and functions of different parts of government. It is basically the rules that govern government. They are a means to protect people as they force governments to use their power correctly.

Question 2

What are the two types of constitution a country can have?

Answer 2

Codified and Uncodified

Question 3

What does codified mean?

Answer 3

It means the constitution is in one single authoritative document.

Question 4

What are the features of a codified constitution?

Answer 4

• It is entrenched, therefore rigid, so it is difficult to change or remove
• Fundamental law
• Often contain a bill of rights to protect civil liberties
• USA has a codified constitution, to change this you need 2/3 out of both houses and must be supported by 75% of all states. Only 26 amendments have been passed since 1787
• USA// revolutionary constitution

Question 5

What are the features of an uncodified constitution

Answer 5

• Flexible because it is not fundamental law so it has the same status as other laws
• Not entrenched, so easy to change
• Parliamentary Sovereignty
• It is also not judicable as no action can be deemed unconstitutional
• UK// evolutionary constitution

Question 6

Name the five sources of the UK constitution

Answer 6

Statute law
Common law
Convention
Works of Constitutional Authority
EU Law

Question 7

What is Statute Law?

Answer 7

Created by parliament – gain the force of law.
The most important source of the rules making up the UK constitution.
More recent examples are the Scotland act (1998) creating a Scottish parliament , human rights act 1998, house of lords act 1999 removing most hereditary peers from the upper chamber, Constitutional Reform Act 2005 which created the Supreme Court

Question 8

What is Common law?

Answer 8

Legal principles that have been developed and applied by UK courts. Courts interpret and clarify the law where there is no clear statute.
Includes customs and precedents e.g. royal prerogative: the powers exercised in the name of the Crown. Royal prerogative includes power to declare war and negotiate treaties, dissolve parliament, appoint government ministers, appoint judges.
These powers no longer rest with the monarch. It is government ministers who exercise prerogative powers in the name of the Crown

Question 9

What are Conventions?

Answer 9

They are rules of constitution which have gained authority through repeated use, not legally binding.
ex: Salisbury Convention
Collective Ministerial Responsibilty

Question 10

What are works of Constitutional authority?

Answer 10

Books written by constitutional scholar A.V. Dicey, authority on parliamentary sovereignty (No formal legal authority but they have persuasive authority. Used to shed light on obscure areas of constitutional practice and interpretation of the core values that form the basis of the constitution

Question 11

What are the EU Laws?

Answer 11

Treaties establishing the EU , legislation and judgements of the European Court of Justice. These are EU laws which are applicable to some areas of UK Law due to the extension of powers by the Government to the EU
Ex: Working Hours, Agricultural policy, Single Currency market 1992

Question 12

What are the key principles of the constitution?

Answer 12

Parliamentary Sovereignty
The Rule of Law
Parliamentary Government
Constitutional Monarchy
EU membership

Question 13

What is Parliamentary Sovereignty

Answer 13

• Sovereignty is the unrestricted power and authority over the UK
• As the UK has an uncodified constitituion, Westminster is the ultimate law authority
• Parliament is the highest power in the land

Question 14

What does the principle of ‘the rule of law mean?

Answer 14

That every citizen is equal in the eyes of the law and every citizen is bound to the law and nobody is permitted to act above the law. A system of rule where the relationship between the state and the individuals is governed by law, protecting the individual from arbitrary state action

Question 15

What is a Parliamentary Government?

Answer 15

That essentially there is a fusion of powers between the legislature and the executive

Question 16

What is a Constitutional Monarchy?

Answer 16

A political system in which the monarch is the formal head of state but the monarchs legal powers are exercised by government ministers

Question 17

What are the strengths of an uncodified constitution?

Answer 17

• Flexible
• Democratic
• Effect Government
• Historic and Traditional
• If it aint broke, don’t fix it

Question 18

What are the weaknesses of an uncodified constitution?

Answer 18

• Uncertainty over interpretation of the constitution
• Elective dictatorship
• Centralisation
• Weak protection of civil liberties

Question 19

Why is a constitution being flexible advantageous?

Answer 19

Because as statute law is so easy to change, it allows us to adapt quickly to change as it is not entrenched, preserves Parliamentary Sovereignty as no government is bound by their predecessors.
Devolution

Question 20

Why is a constitution being democratic advantageous?

Answer 20

Being democratic means that a law maker must be elected to change the constitution and it cannot be blocked by the judiciary, which preserves Parliamentary Sovereignty. This also limits the power of government due to democratic pressures and having to be accountable to electorate. This work especially well because of the representative democracy the UK has

Question 21

Why does the constitution providing an effective government be advantageous?

Answer 21

It means that Government policies can be passed quicker because the judiciary has no such powers which would enable them to overturn the acts, which allows the Government to do their job with limited resistance

Question 22

Why is uncertainty over interpretation a disadvantage?

Answer 22

Because no statute law is fundamental and government are not bound by their predecessors, the Government is free to interpret any current law in any manner they choose, as some laws can interpreted in several different ways. This again increases power because government is able to manipulate interpretations to fit in with their plans

Question 23

What is an elective dictatorship?

Answer 23

Essentially the idea that a Government can act however they like until re-election, and in theory this increases the power of Government as they are most unaccountable to anyone whilst in power, however a Vote of No Confidence can clear that right up

Question 24

Why is centralisation an issue?

Answer 24

Because this leaves too much power in the hands of one small group- the executive. There is an executive dominance due to the fusion powers which again extends the powers of the government and makes it much more difficult for others to challenge the government

Question 25

Why does an uncodified constitution promote a weak protection of rights

Answer 25

As in theory, nothing except elections force a government to respect individual rights.Elections empower the majority not minority so there is little opposition and in theory, all rights ould be taken away as there are no enshined civil liberities in higher law. This increases their power as they are only accountable nce every five years. Also derogations of the HRA can see laws that infringe on civil liberties passed.

Question 26

Reasons for us to have a codified constitution?

Answer 26

• Because the constitution has evolved over centuries and is uncodified, there is nowhere where it can be easily seen. It has been added to from time to time and new sources have arisen such as the EU. A written document would provide a clear statement of what is constitutional, removing the uncertainty of such things as the role of the Monarch in the event of a hung parliament after an election. This is perhaps even more desirable in an era of constitutional change as bodies such as the EU are now so important.

• There has been a strong tendency to executive dominance in British government, hence the complaint about Britain having an ‘elective dictatorship’, or Prime Ministerial government. The government of the day can change the rules in its own interests. Tony Blair was able to remove one session of Prime Minister’s Question Time in the House of Commons without and consultation with other parties, just as his government changed the electoral system and the composition of the House of Lords. Governments with a strong majority can pass even the most controversial measure.
• Protected rights- Individual civil liberties would be protected by the constitution, having positive rights makes the judiciary more powerful and makes civil liberties easier to protect because they would be able to deem the laws unconstitutional, there for vetoing any bill. This would also make the relationship between an individual and the state much more clear and apparent

• Key provisions will be entrenched (i.e. firmly established and difficult to amend). Many of our key principles such as the rule of law have come under threat, and these threats can only be prevented by having a codified constitution.

• It would be easier for the courts to interpret what is lawful behaviour and uphold the Constitution.
• It would have an educative value, highlighting the values of the political system. It would give the British public a greater sense of shared values and citizenship.

Question 27

Reasons against a codified constitution?

Answer 27

• It is rigid, its fundamental law which will make it extremely difficult to change and therefore can be outdated and fail to respond to changes currently going on in society ex. USA and Gun Laws
• Many acts that are to do with our constitution have gained de facto fundamental law status (as argued by constitutional experts such as Bogdanor). For example, in the Thoburn vs Sunderland City Council (2002) case the Law Lords’ view was that there was a hierarchy of Acts of Parliament: ordinary statutes and constitutional statutes, the latter having special status. This therefore implies that constitutional statutes, such as the HRA, should only be repealed when parliament does so by express provisions, and not as unintended consequences of new laws.
• There is a lack of widespread demand for codified constitution and no one can actually seem to agree what exactly would be in it if there was one. ex. EU constitution, but Netherlands and someone else refused so they were not able to make it fundamental EU law

• The protection of rights has generally been good, there me be occasional blemishes, but compared to many countries Britain has a strong record in respecting individual liberty. In contrast the existence of a written constitution in the former Soviet Union did not guarantee respect for personal freedom; neither does the Zimbabwe one today. Even in a democracy such as the US, the voting of black Americans was long denied.

Question 28

Why is there interest in constitutional reform?

Answer 28

Rise of nationalism and the role of devolution in Scotland, Wales and NI, particularly Scotland, who had a referendum 2014 to leave but voted no, but are moving towards ‘devomax’

A growing concern that individual liberties could be reduced ex. Anti-Terror laws and also due the fact that in he HRA Article 13- The right to resolution was not enshrined so the government do not have to listen to the judiciary in the event of an act being incompatible with a human right.

Question 29

What changes were made by Blair in terms of Constitutional reform?

Answer 29

House of Lords Act (1999) removed all by 92 hereditary peers
Devolution in 1998 for Scotland, Wales and NI, made England arguably a ‘quasi-federal’ state because Westminster is unable to have a say on devolved powers ex. education
-Held binding referendums on all devolution
-Human Rights Act was enshrined into British law
-Lord Mayor of London and London Assembly 2000
-CRS 2005- Creation of the Supreme Court which came into effect in October 2009
-FOI (2005)- Allowed citizens to hold the government to account
more than any other government since WWII

Question 30

What types of Constitutional reform have the coalition government made?

Answer 30

AV Referendum (2011) Turnout: 42% and 67% said no

• Protection of Freedoms Act (2012) which gave more positive civil liberities
• House of Lords Reform Act 2014- they were able to resign

Question 31

What is a unitary system?

Answer 31

• Unitary systems tend to be especially suitable in smaller countries and in those where there are no significant ethnic, linguistic and religious differences

Question 32

What is a federal system?

Answer 32

Federal- the power is dispersed between national and regional governments. Clearly defined in a written constitution

Question 33

What is the new constitutional settlement?

Answer 33

• Westminster model no longer a satisfactory term (fusion of power, parliamentary sovereignty and centralisation of political power.)
• Where reforms have been introduced that have added to or changed the key principles of the traditional constitution.
• Where all of the major institutions have been affected by changes made.

• Movement from a majoritarian democracy to a consensual democracy.

Question 34

What is a constitution

Answer 34

A constitution sets out the laws, rules and practices by which a state is governed, specifying the powers of the governing institutions and the formal relationships between them, and the relationship between citizens and the state

Question 35

Why is a constitution important?

Answer 35

Provides legitimacy to those in power. Even non-democratic states have them because their existence gives the appearance of legality.

Create a fresh start, especially after a period of long-term upheaval. The US Constitution followed the War of Independence, just as the West German documents followed the defeat of the Hitler dictatorship of WWII.

-

Question 36

What is a downside to executive dominance?

Answer 36

Critics argue that because of executive dominance (a phrase coined by Lord Hailsham in 1976) in parliament (thanks in large part to the FPTP voting system), parliamentary sovereignty can mean that a government without a majority of the popular vote could change the constitution and introduce major policy change.

Question 37

What did Bogdanor suggest?

Answer 37

However, constitutional experts such as Bogdanor argue that legislation of such constitutional significance should be considered de facto fundamental law. For example, although parliament retains the legal right to repeal the Scotland Act (1998) it is politically unthinkable that it would do so against the wishes of the Scottish people

Question 38

Did Labour’s reforms 1997 – 2010 bring about a new constitutional settlement?

Answer 38

No
- Reforms were evolutionary rather than revolutionary.
• Change was introduced in a piece-meal rather than ‘big bang fashion’. There was no clear vision.
• The conservative critique (led by Lord Norton) argues that Labour’s reforms actually damaged the constitution and brought about new problems, for example increasing the political role of the judiciary through the HRA.

yes
• Important statutes like the CRA (2005) have in practice, if not in theory, the status of fundamental law because they are unlikely to be overturned without the express approval of the electorate
• Parliament has given up significant powers. Westminster will not legislate on matters devolved to the Scottish Parliament so parliamentary sovereignty no longer means real power to make law across the UK.
• The HRA and FOI Act strengthened the rights of citizens and restricted the power of the state.

Question 39

Five ways Parliamentary Sovereignty is threatened

Answer 39

HRA
EU
Devolution
Executive dominance
Referendums

Question 40

How have each of the other principles has come under threat.

Answer 40

Rule of law: exemptions such as limitations on supposed terrorists, e.g. Control orders.
Unitary state: devolution
Constitutional monarchy: death of Diana

Question 41

Examples of authoritative works

Answer 41

Erskine May: Treatise on the law, privileges and proceedings and usage of parliament.
A. V. Dicey: An introduction to the Study of the Law of the Constitution.

Question 42

What is collective ministerial responsibility and what is individual ministerial responsibility

Answer 42

The convention of collective ministerial responsibility suggests that ministers who cannot accept a policy position agreed by the cabinet should resign. E.g Robin Cook and Clare Short 2003. The convention of individual ministerial responsibility holds that ministers should resign if they or their department are guilty of serious political mistakes.

Question 43

Five recent criticisms of recent constitutional changes

Answer 43

Not radical enough e.g. h of lords not far enough
Devolution – still allows Scottish MPs to vote on English matters, creates differentiation. Created asymmetrical devolution
HRA – derogations e.g. Anti-Terrorism, Crime and Security Act 2001. Article 13 not enshrined – no right to a remedy
HRA- gives judiciary too much power- can almost make laws without any being passed
Decentralisation – lack of support – only 12 mayors
CRA- did not create a complete separation of powers (role of the Lord Chancellor)

Question 44

What constitutional changes did Gordon Brown make?

Answer 44

Constitutional Reform Act 2010 created a statutory basis for the civil service and enshrined in law its core values. It also created a statutory basis for parliamentary scrutiny of treaties

Blown off agenda by economic problems

Question 45

What is the Westminster Model?

Answer 45

Parl is sovereign, fusion of powers and power centralised.

Our traditional constitution

Question 46

What’s the liberal approach to constitutional change?

Answer 46

Favours new constitutional settlement

Wants power to be fragmented e.g. strengthening House of Commons, an entrenched bill of rights

Question 47

Constitutional reform acts made by the Coalition government

Answer 47

Fixed-term Parliaments Act (2011)
• The Wright Committee on Reform of the HofC (2009) was fully accepted by the collation government, including enhancing backbench power by setting up a Backbench Business Committee.
• The AV referendum was lost by 30% to 70% against.
• Protection of Freedoms Bill. This sets out such things as; an end to ID cards; removing police stop and search powers; the protection of trial by jury; the strengthening of the FOI Act; a reduction in pre-charge detention for terrorist suspects to 14 days.
• A commission was created to investigate the case for a British Bill of Rights. This was launched on 18th March 2011. Final report came out Dec 2012 but said they could not agree on what to do

Question 48

What constitutional changes do the current government want to make

Answer 48

• EU Referendum
• Want to introduce a British Bill of Rights
• Implement the Smith Report – further devolution for Scotland
• Ensure there are only English votes for English laws (ie resolve the West Lothian Question).
• Not likely to make changes to the House of Lords or voting system.

Question 49

What factors make the judiciary more powerful

Answer 49

S.H.U.E
Creation of the Supreme Court
Human Rights Act
Ultra vires and Judicial review
EU Law

Question 50

Give an example of a ruling where the Supreme court and Law Lords came to the same conc

Answer 50

For example, the court’s ruling in the case of those suspected of terrorists who had their assets seized without trial was not that different to the ruling previously given by the Law Lords on indefinite detention of terrorist suspects under the Anti-Terrorism, Crime and Security Act (2001)

Question 51

Why has the supreme court made the judiciary more powerful?

Answer 51

• The appointments process is significantly more independent which may in time have a knock-on effect on the composition of the Supreme Court.
• The move across Parliament Square to Middlesex Guildhall emphasising the separation of power and enhancing judicial independence. It could be argued that even before the move however, the judiciary and politicians was already functioning independently.
• The move to a new building has raised the court’s profile and thereby engender greater public interest in the court. It also allows it to distinguish a greater identity and character. This has also been enhanced by the fact that restrictions on filming in the courts has been lifted.
• The use of the court’s website to offer the chance to review rulings and press summaries allows for greater public scrutiny. Could this possibly suggest the courts will become less powerful/ politicised?

Question 52

Why has the HRA strengthened the judiciary

Answer 52

Judges are now able to make ‘declarations of incompatibility’ where a parliamentary statute appears to violate the rights guaranteed, however because of article 13, the right to remedy, was not enshrined, they don’t have to do anything about it

Question 53

What does ‘ultra-vires’ mean?

Answer 53

Ultra vires is from the Latin word meaning ‘beyond authority’ or ‘beyond one’s powers’

Question 54

why is judicial review restricted?

Answer 54

Judicial review is hampered by the supremacy of statute law and the principle of parliamentary sovereignty. Because of this, judges traditionally simply looked at whether a public official had acted beyond their power rather than questioning the basis of the law itself.

Question 55

Why does EU membership give the judiciary more power?

Answer 55

Under the European Communities Act (1972) the UK incorporated the Treaty of Rome into UK law. The effect of this simple change was to give European laws precedence over conflicting UK statutes, whether past or present. For many years this simply meant that the UK government could be called to account at the European Court of Justice. However the Factortame Case introduced the idea that UK courts can ‘suspend’ UK statutes that appear to be in violation of EU law.

Question 56

What is judicial activism?

Answer 56

Judicial activism is a phrase that describes situations in which the judges and the courts take a broad and active view of their role as interpreters of the constitution and reviewers of executive and legislative action. It refers to the willingness of judges to venture beyond narrow legal decisions so as to influence the evolution of public policy (put simply uses the power of judicial review a lot. If a court is judicially active there has been a growth in judicial review).

Question 57

What is judicial restraint?

Answer 57

In contrast, judicial restraint (often supported by politicians) is a more conservative philosophy and approach. It maintains that judges should simply apply the law irrespective of policy implications

Question 58

What is politicisation?

Answer 58

The process by which individuals traditionally regarded as being beyond the part political fray are drawn into it. Politicisation can cover two aspects. Firstly it can refer to the fact that the appointments process for the judiciary is too politicised, or secondly, it can refer to the fact that judges are more willing to make rulings which will have a political impact.

Question 59

Arguments for judges being too powerful

Answer 59

• Unelected judges are stepping too boldly into political territory.
• Under our constitution parliament is the main protector of our liberties, and its members and powers are being questioned too much by the judiciary.
• Because they are unelected judges lack accountability and are seen as a group remote from present-day reality.
• The punishment for inappropriate behaviour by the government of the day should be in the polling booth rather than in the courtroom.
• Judges tend to come from narrow backgrounds and have a preference towards defending the established interests in society.

Question 60

Arguments against judges being too powerful

Answer 60

• The division of power between the three branches of government is a means of protecting people, a safeguard against potential tyranny.
• An independent judiciary is well suited to deciding the difficult issues of the day.
• They are aware of how people have voted and take this into account when they make their decisions.
• They can offer a view that commands respect because of the broad esteem in which they are held.

Question 61

Arguments for the judiciary being too politicised?

Answer 61

• Politicians have often broken with convention by publicly criticising rulings handed down by senior judges.
• Measures such as the HRA have drawn senior judges into the political arena by requiring them to rule on the ‘merit’ of individual pieces of statute law as opposed to their application.
• The Factortame case showed that UK courts are able to suspend Acts of Parliament where they are found to contradict EU law.
• The decision to transform the Law Lords into justices of the Supreme Court and locate the new court in Middlesex guildhall has brought the most senior UK judges into the public arena for the first time, subjecting them to greater scrutiny by the media and the general public.

Question 62

Arguments against judges becoming politicised

Answer 62

• The process by which senior judges are appointed in the UK has been made more transparent and less open to accusations of political interference – in part as a result of the creation of an independent JAC.
• Whereas the concept of ‘politicisation’ is often associated with a loss of judicial independence, the UK senior judiciary has in fact become more independent in the wake of the CRA (2005), not least with the downgrading of the role of the Lord Chancellor.
• Increased conflict between politicians and judges is a good sign as it shows that the courts are challenging the government when it appears to be encroaching on our civil liberties.
• The fact that senior judges still benefit from security of tenure and guaranteed salaries affords them a degree of ‘insulation’ from political pressure.