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AS Politics > Constitution final > Flashcards

Constitution final Flashcards

1
Q

Define a constitution

A

A set of rules defining how a state is governed. It describes the structure and powers of the government and the limits of those powers. It also sets out the relationship between the government and the citizen.

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2
Q

What are the 7 sources of the constitution?

A 
Parliamentary statutes
Constitutional conventions
Historical principles
Common law
European Union law
Works of Authority
The Royal Prerogative
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3
Q

What are parliamentary statutes?

A

Acts of Parliament that establish constitutional principles, they can be overturned by Parliament due to parliamentary sovereignty.

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4
Q

What are 3 examples of parliamentary statutes?

A 
Freedom of Information Act (2000)
House of Lords Act (1999)
Scotland Act (1998)
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5
Q

What are constitutional conventions?

A

Unwritten rules that are considered binding on all members of the political community. They can’t be challenged in law but they have so much moral force that they’re rarely disputed.

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6
Q

Give 2 examples of constitutional conventions.

A

The Royal Prerogative

Salisbury Convention

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7
Q

What is the Salisbury Convention?

A

The House of Lords shouldn’t block any legislation that appeared in the governing party’s most recent election manifesto.

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8
Q

Define historical principles

A

Principles that have become binding as they’ve been established over a long period of time

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9
Q

What are 3 examples of historical principles?

A

Parliamentary sovereignty
Parliamentary government
The rule of law

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10
Q

Define common law

A

Common law is based on precedent - decisions reached in other cases - and most common law concerns the principles of rights and justice. However, most common law has been replaced the European Convention of Human Rights, but some of Parliament’s powers and procedures are contained in common law, such as the Royal Prerogative.

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11
Q

Why is EU law a source of the UK constitution?

A

Because the UK is bound by treaty to accept it and obey it.

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12
Q

What are Works of Authority?

A

Books written by Parliamentarians on constitutional matters that can be consulted

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13
Q

Give 2 examples of Works of Authority

A

Parliamentary Practice by Erskine May

A.V Dicey on the rule of law

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14
Q

What is the Royal Prerogative?

A

Powers traditionally exercised by the monarch with the need to consult Parliament, such as declaring war, making treaties and dissolving Parliament. These are now carried out by the executive (PM) and Parliament can abolish these prerogatives by passing laws.

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15
Q

What are the 6 features of the constitution?

A 
Fusion of powers
Parliamentary sovereignty
Constitutional Monarchy
The Royal Prerogative
Unitary Nature
Rule of law
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16
Q

Define fusion of powers

A

When any of the three powers combine.

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17
Q

How does fusion of powers work in the UK constitution?

A

Fusion between the legislature and the executive, as most of the Cabinet sit in either the House of Commons or Lords. The judiciary has become separate and more independent due to the Constitutional Reform Act (2005) that came into effect in 2009 by creating a Supreme Court which was separate from the House of Lords.

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18
Q

Define parliamentary sovereignty

A

Only Parliament can make law and change the constitution, since legal sovereignty gives them the unlimited right to make, repeal and amend any law and political sovereignty gives Parliament the ability to rule without challenge. Essentially, Parliament is the ultimate source of authority, power and all law, meaning there is no higher political or legal authority.

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19
Q

Define constitutional monarchy

A

The monarch is head of state, but her powers are strictly limited by parliamentary sovereignty and she doesn’t have a political role.

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20
Q

Define unitary nature

A

All power is concentrated in central government, although some power has been devolved to regional assemblies (Scotland and Wales) and local government, but this could be set aside by Westminster at any time.

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21
Q

What is rule of law?

A

Rule of law determines that no one is above the law, including the government and that all are equal before the law. The law also ensures that the government doesn’t act beyond its powers, acting as a constraint.

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22
Q

What are the three main principles of a constitution?

A

Parliamentary sovereignty
Unitary state
Rule of law

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23
Q

What are the 6 main functions of a constitution?

A 
How political power is distributed
The political process
The limits of government and Parliament
The rights of citizens against the state
The rules of nationality and citizenship
The rules governing the amendment of the constitution
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24
Q

What does the political power distribution function determine?

A

The balance of power between the government and Parliament

In a bicameral Parliament, the functions and balance of power between the two chambers

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25
Q

What functions does the UK constitution perform?

A

How political power is distributed
The political process
The rules of nationality and citizenship

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26
Q

Define codification

A

Codification is the process of setting out a constitution in an organised way in a single document.

27
Q

What type of legal system does a codified constitution establish?

A

Two-tier legal system, resulting in two levels of law - higher and ordinary.

28
Q

What are higher laws?

A

Those concerning constitutional arrangements - who has power, relationships between institutions, citizens rights etc - and these are safeguarded and entrenched. They have special arrangements for their enactment - referendum approval, 2/3 majority in legislature etc. - and so they have a different status.

29
Q

What are ordinary laws?

A

Ordinary laws concern relations between citizens, admin of the state, criminality etc. and such laws can be changed without special procedures and aren’t safeguarded by special procedures.

30
Q

What is an uncodified constitution?

A

An uncodified constitution is a constitution that isn’t contained on a single document, parts of it are written and other parts aren’t and it has a variety of sources.

31
Q

What type of legal system does the UK have under an uncodified constitution?

A

A single tier system, Britain makes no distinction between constitutional and ordinary laws.

32
Q

What parts of the British constitution are codified?

A

The European Convention on Human Rights is part of British law and the treaties of the EU are codified documents that describe the relationship between Britain and the EU.

33
Q

What does entrenchment do?

A

Entrenchment protects a constitution from short-term amendment - e.g. a dictatorial government seeking to gain additional powers - which is important due to the fundamental and significant difference a constitutional change can make to the political system.

34
Q

What 2 things must there be in order for a constitutional change to be passed?

A

Widespread, popular support for it (gained through a referendum) and it must be in the long term interests of the country (through special parliamentary procedures).

35
Q

Why isn’t it possible to entrench constitutional principles?

A

Parliamentary is sovereign, therefore each Parliament isn’t bound by its predecessors or can bind their successors.

36
Q

What does the inability to entrench constitutional principles mean for the constitution?

A

Every new Parliament is able to amend the constitution as it wishes, since all they have to do is pass a Parliamentary statute and that can be done in as little as two days.
Also the government normally dominates Parliament, using its majority in the Commons and the mandate of the people granted in elections, hence a dominant government can effectively control the constitution, although many argue this kind of flexibility is an advantage of the UK constitution.

37
Q

What’s an example of executive power?

A

Human Rights Act was passed in 1998, incorporating the European Convention on Human Rights into British law and became binding on all political bodies other than Parliament - no special procedures were needed.

38
Q

What is becoming common practice when proposing constitutional changes?

A

Referendums e.g. devolution to Scotland and Wales in 1997, introduction of elected mayors in London and approving the Good Friday Agreement in Northern Ireland in 1998. Also proposed to approve the transfer of sovereignty from the UK to the EU and Scottish independence.

39
Q

What is inconceivable for changes made by referendum?

A

For such changes to be reversed without a referendum, Labour promised referendums on electoral reform and reform of the House of Lords in their 2010 election campaign.

40
Q

What are the characteristics of the UK constitution?

A 
Uncodified
Not entrenched
Constitutional monarchy and Royal Prerogative
Parliamentary government and sovereignty
Party government
Unitary government
41
Q

Define party government

A

The arrangements concerning the operation of both the cabinet and the House of Commons depend upon a single party controlling the executive branch and is usually able to control its majority in the Commons. The principles of collective responsibility, mandate and manifesto, government and opposition and patronage all depend upon one party forms a government alone.

42
Q

Define unitary government

A

The UK is a unitary political system, legal sovereignty is located at the centre, Parliament.

43
Q

What is democratisation?

A

Too much of the British political system is undemocratic, such as the unelected House of Lords and the unrepresentative electoral system, although neither of these two issues have been addressed since the AV electoral reform referendum failed in 2011 and the only change made to the House of Lords was the removal of most of its hereditary peers.

44
Q

How progressive has constitutional reform been regarding decentralisation?

A

Large amount of progress, as devolution has dispersed power considerably in 1998 and the introduction of elected mayors in London and other cities has helped move power to local centres. The introduction of elected Police Commissioners after 2012 helps to decentralise control over the police.

45
Q

Why have the restoration of rights become a constitutional reform principle?

A

During the 1980s, there were fears that citizens rights were being consistently eroded under the Conservatives and Labour wanted to bring Britain more into line with European practice in constitutional matters, so they proposed the incorporation of the ECoHR into British law. In addition, a Freedom of Information Act was seen as essential in a drive to create more open and accountable government and these two actions have a major impact on the safeguarding of rights in the UK.

46
Q

Why has modernisation become a constitutional reform principle?

A

Both the Labour party after 1997 and the coalition have sought to bring the British constitution into line with other modern arrangements in western democracies. The stronger protection of rights and the right to obtain official information for citizens brings the UK into line with most other democracies. Referendum use has grown in the UK, bringing the UK into line with common European practice. But the failure to reform the second chamber or codify the constitution means that the British system remains ‘traditional’ rather than ‘modern’.

47
Q

Define legal sovereignty

A

Legal sovereignty is the power to make and unmake binding laws, to grant ultimate powers to individuals or other bodies and to determine the nature of the constitution.

48
Q

Where does legal sovereignty lie in the UK political system?

A

With Parliament, no other body has the power to make laws made by Parliament. Although membership with the EU disputes this, it’s sufficient to say that Parliament can restore its legal sovereignty at any time by withdrawing from the EU.

49
Q

Who can Parliament grant legal powers to?

A

A subsidiary body or to a minister, in such cases Parliament is delegating its legal sovereignty and can take it back at any time.

50
Q

What powers were the Scottish parliament given under the Scotland Act of 1998?

A

Primary legislative powers, but this Act can be repealed.

51
Q

What does legal sovereignty mean for each Parliament?

A

They’re not bound by the laws made by previous Parliaments but it also can’t bind a successive Parliament by entrenching laws.

52
Q

Define pooled sovereignty

A

When legal sovereignty is shared between a number of different sovereign states - such as the EU. This means that ultimate power is exercised by the members collectively and decisions become binding on all members.

53
Q

Define popular sovereignty

A

Popular sovereignty suggests the people have some sovereignty, although in legal terms this isn’t true, but in some senses it could be said that the people effectively are sovereign.

54
Q

How can the people be considered sovereign?

A

They elected a Parliament and a government at each general election, their verdict can’t be challenged
If it’s clear which party has been elected, that party has a mandate to carry out the policies in its election manifesto. Hence the people have granted authority to the government to exercise power.
Referendums are held fairly regularly, despite the results not being binding on Parliament (due to legal sovereignty), it is virtually inconceivable that a government or Parliament would refuse to accept the verdict of a referendum.

55
Q

Define political sovereignty

A

Political sovereignty refers to the idea of where power effectively lies, wherever legal sovereigny is to be found, political sovereignty is where real power lies. It can be said that the UK government and the PM are politically sovereign because they hold most power in reality. In Scotland, on the other hand, the Parliament and government hold the most power in that country.

56
Q

What can political sovereignty be seen in?

A

UK government is sovereign as it has a mandate from the people and most of its proposals are almost certain to be accepted through Parliament
The PM has power which he exercises on behalf of the monarch, when he exercises those powers it can be said he is exercising political sovereignty. Even Parliament can’t overrule his prerogative powers without passing a special Act of Parliament.
The Scottish, Welsh and Northern Irish government and assemblies have political sovereignty over certain areas of policy making as the devolution laws have granted them wide powers.
The popular sovereignty exercised by the people at a general election is sometimes described as political sovereignty.

57
Q

When did Britain join the European Community?

A

1st January 1973

58
Q

What areas of jurisdiction have been largely passed to the EU?

A

Trade
Agriculture
Fishing
Employment

59
Q

What happens when member states dispute over the meaning or interpretation of EU laws?

A

The European Court of Justice (ECJ) will interpret the law and their interpretations are binding on all other courts.

60
Q

How can the question of where political and legal sovereignty lie be summarised?

A

EU laws are superior to UK, established in the Factortame case 1990
British courts must implement EU laws
Where an interpretation of EU laws is required it must be referred upwards to the ECJ, so the Supreme Court isn’t the highest court of appeal in all cases. This principle was established in the 1993 case, Regina vs. International Stock Exchange, by Lord Bingham.
However, where proposals can become EU law with only a QMV (about 71%) in the Council of Ministers, the UK must submit to the shared sovereignty of the EU
Parliament shouldn’t pass any statute conflicting with existing EU law (e.g. removing workers’ rights guaranteed by the EU Social Chapter). If it does so, the courts will not enforce such a law.

61
Q

What is the Factortame case?

A

It was ruled that the Merchant Shipping Act (a UK law) was inferior to the EU fisheries regulations. In this case, Spanish fishing vessels were given rights to operate in British waters against the wishes of the UK Parliament.

62
Q

What is the constitutional status of the UK Parliament?

A

The constitutional status of UK Parliament and the court has been significantly altered by British membership, it’s called quasi-federalism.

63
Q

Define quasi-federalism

A

A description often applied to both the EU and devolution in the UK. Though the arrangements in the EU and the UK aren’t legally federal they are so similar to a federal system that they can be described as quasi-federalism i.e. something close to federalism

64
Q

Where has the sovereignty in the UK gone?

A

Parliament remains legally sovereign, even where power has been granted/delegated to other bodies or individuals, it can reclaim those powers at any time. This applies to the devolved governments of Scotland, Wales and Northern Ireland.
A good deal of political sovereignty has been transferred away from Parliament. This has mainly gone to the PM and/or the government. It has also gone to the people when a referendum is held. Parliament doesn’t have to accept the result of a referendum, but effectively it is unlikely that Parliament would overrule the people.
Since devolution in 1998, a good deal of political sovereignty has been effectively transferred to the assemblies and governments of Wales, Northern Ireland and Scotland.
Some legal sovereignty has been transferred to the EU and such transfers are referred to as ‘pooled sovereignty’. Furthermore, where EU decisions require a unanimous vote, such as the proposed admission of new member states, Britain retains a veto and so doesn’t give up sovereignty. Overall, however, it must be remembered that Britain is free to leave the EU at any time and so restore all legal sovereignty.

AS Politics (4 decks)

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