Constitutional Fundamentals and Sources of the Constitution

Question 1

what is a constitution?

Answer 1

used in types of arganisations to establish fundamental rules and principles by which the organisation is governed

Question 2

what does a political constitution deal with?

Answer 2

the entire organisation of a state and how its legal order is established

Question 3

what was a constitution define for us as constitutional lawyers?

Answer 3

a state’s fundamental polkitical principles, estbalish the framework of the government pf the state and guarantee certain rights and freedoms to citizens

Question 4

what is the framework of the government?

Answer 4

sets out powers and duties of the executive, legislative and judicial branches of the state

Question 5

what is a written/codified constitution?

Answer 5

state will have its constitution set out in a single document containing fundamental laws and define the powers of the different branches of state

Question 6

what is an unwritten/uncodified constitution?

Answer 6

state will not have a single authoritative document, but rather a number of different sources e.g. statute and case law

Question 7

what is a republican constitution?

Answer 7

state will hgave a president as its head of state

Question 8

what is a monarchical constitution?

Answer 8

state will have an unelected Monarch who is head of state by virtue of their position within the royal family

Question 9

what is a federal constitution?

Answer 9

state will have a division of power between the central government and regional government- central federal government cannot legislate regarding matters reserved to the states

Question 10

what is a rigid constitution?

Answer 10

constitution is ‘entrenched’- constitution may be changed only by following a special procedure (mostly written ones)

Question 10

what is a unitary constitution?

Answer 10

state will have a single sovereign legislative bod with power being concentrated at the centre

Question 10

what is a flexible constitution?

Answer 10

constitution is easy to change because no special procedures are necessary for the constitution to be amended (usually unwritten)

Question 10

what is a formal separation of powers?

Answer 10

clear separation of both fucntions and personanel between the executive, the legislative and the judicial branches of state

Question 11

what is an informal separation of powers?

Answer 11

significant degree of overlap of both functions and personnel between the executive, legislative and judicial branches of state

Question 11

what are the core constitutional principles?

Answer 11

the rule of law, the separation of powers and the sovereignty of Parliament

Question 11

what is the rule of law?

Answer 11

all actions of the state or government must be permitted by law, law should be made following procedure, laws should be clear and certain, there should be equality before the law, judiciary should be independent and impartial

Question 12

what did Montesquieu (18th century) state about the separation of powers?

Answer 12

to prevent an oppressive government, different branches must be kept separate

Question 13

what is the legislative?

Answer 13

parliament- body that makes the law

Question 14

what is the executive?

Answer 14

government- body that implements the law

Question 15

what is the judiciary?

Answer 15

courts- the body that resolves disputes about the law

Question 16

what are the two parts to Dicey’s definition of parliamentary sovereignty?

Answer 16

parliament can pass whatever legislation it likes, no other person or body can challenge or override legislation which Parliament has enacted

Question 17

what is the concept of ‘check and balance’?

Answer 17

each branch of state is kept in check by powers given to the other branches so that no one branch of state may exert on excessive amount of power or influence

Question 18

what are the four sources of UK constitution?

Answer 18

Acts of Parliament, case law, royal prerogative, constitutional conventions

Question 19

what was the Magna Carta? what date?

Answer 19

1215- first assertion of the limits on the powers of the Monarch and the rights of individuals- embodies principle that government must be conducted according to the law and with the consent of the governed (no one is above the law)

Question 20

what is the Bill of Rights? what date?

Answer 20

1689- it removed power of Monarch arbitrarily to suspend Acts of Parliament and the power of the Monarch to impose taxation without Parliament’s consent

Question 21

what was Acts of Union? what date?

Answer 21

1706-1707 united England and Scotland under a single parliament of GB and contained provisions to preserve the separate Scottish church and legal system

Question 22

what were the Parliament Acts? what date?

Answer 22

1911 and 1949- altered relationship bet ween the HoL and HoC- the will of the elected HoC would prevail over the unelected HoLas HoL no longer needed to consent

Question 23

what is the Police and Criminal Evidence Act? date?

Answer 23

1984-provides police with extensive powers of arrest search and detention and contains safeguards to ensure police do not abuse this power

Question 24

what is the Public Order Act? date?

Answer 24

1986- allows limitations to be placed on the rights of citizens to hold marches and meetings in public places

Question 25

what is Human Rights Act? date?

Answer 25

1998- incorporates ECHR into domestic law- marks fundamental change in protection of human rights by allowing citizens to raise alleged breaches in their human rights before domestic courts

Question 26

what are the Acts of devolution?

Answer 26

created devolved system of government in various parts of the UK- decentralised the process of government and given greater autonomy to these parts of the UK

Question 27

what is the Constitutional Reform Act? date?

Answer 27

2005- reformed the office of Lord Chancellor transferring his powers as head of judiciary to the Lord Chief Justice and permitting the HoL to elect its own Speaker

Question 28

what is the principle of ‘residual freedom’? developed

Answer 28

citizens are free to do or say whatever they wish unless the law clearly states that such an action or statement is prohibited

Question 29

what was the EU Withdrawal Act 2018 and EU Withdrawal Agreement 2020?

Answer 29

UK’s departure from EU, the EU Act 2018 repealed the European Communities Act 1972 and ended supremacy of EU law and introduced the concept of retained EU law

Question 30

what does habeas corpus and individual liberty refer to?

Answer 30

as remedy whereby an individual who has bee detained by the state has the right to have the legality of that detention tested before a court

Question 31

what does the judicial review of executive actions refer to?

Answer 31

courts have developed processes of judicial review- a mechanism that enables the courts to ensure that the government and other public bodies exercise powers they have been granted in a proper way (So as not to breach the rule of law)

Question 32

what is the royal prerogative?

Answer 32

prerogative powers derive from common law and are exercised by the Monarch (powers belonging to the Monarch that haven’t been taken over by Parliament)

Question 33

how does the royal prerogative relate to foreign affairs?

Answer 33

It allows the government to sign international treaties, declare war and peace and conduct other international negotiations with virtually no need to consult Parliament

Question 34

how does the royal prerogative relate to domestic affairs?

Answer 34

include summoning of Parliament, giving of Royal Assent to bills, appointment and dismissal of PM etc

Question 35

what are constitutional conventions?

Answer 35

a non-legal source of the constitution- courts don’t directly enforce them

Question 36

how do Marshall and Moodie define constitutional conventions?

Answer 36

rules of constitutional behaviour i.e. how those who perform a role within the constitution should behave, considered to be binding i.e. there should be no deviation from these rules, not enforced i.e. the rules have no legal basis and so will not be enforced by any judicial body

Question 37

what are the arguments in favour of codified constitution?

Answer 37

promote civil cohesion by educating and informing UK citizens about how government oparates through one document, proper separation of between between the legislative, executive and judicial branches of state, more effective protection of human rights

Question 38

what are the arguments against codified constitution?

Answer 38

difficult to determine who would draft it, uncodified is flexible and can develop organically in response to events, would represent the values prevailing at the time at which it was drafted as may soon become out of date, give too much power to judiciary leading to becoming excessively politicised

Question 39

what is the Ministerial Code?

Answer 39

not intended to have any legal effect, a documnet setting out main laws, rules and conventions affecting the conduct and oepration of government