Constitutional Fundamentals and Sources of the Constitution Flashcards
What is a constitution?
Deals with the entire organisation of a State and how legal order is established
- It establishes the fundamental political principles
- Establishes the framework of government
- Guarantees rights and freedoms for citizens
How can the UK Constitution be defined?
Unwritten/uncodified - comprised from various sources
Monarchical – unelected monarch is the head of state - UK’s Head of State is the King
Unitary – single sovereign legislative body with power concentrated there - UK’s Parliament is the one that gives other bodies power, like the Welsh Government etc, so we are unitary
Flexible – no complex procedures required to change the constitution - UK constitution is flexible, as it is unwritten
Informal separation of powers - UK is informal, as there isn’t a formal mechanism to keep them separate and there is a degree of overlap between them
What are the three core constitutional principles?
Rule of Law
Parliamentary Sovereignty
Separation of Powers
Broadly, what is the Rule of Law?
- No arbitrary exercise of power by the State or Government and their actions must follow the law
- Laws should be made following proper procedure
- Laws should be clear and accessible
- Laws should be certain, and citizens should only be punished if it was a crime at the time of their actions
- Equality before the law; all citizens should have equal access to legal process
- Independent and impartial judiciary – independent of legislative and executive
Broadly, what is Parliamentary sovereignty?
Parliament is the supreme law-making body in the UK
Legislation enacted by Parliament takes precedence over common law
Broadly, what is the separation of powers?
There are three branches of government, but the UK has an informal separation of powers
- Legislature – Makes the law in the UK -Monarch, House of Lords and House of Commons
- Executive – body which implements the law -Monarch, PM, Government Ministers, Civil Service, Armed Forces, Police
- Judiciary – resolves disputes about the law -Monarch, Judges
There is a system of checks and balances between these three branches to ensure no one branch can exert an excessive amount of power/influence
What are the main sources of the UK Constitution?
Statute
Case law
Royal Prerogative
Constitutional conventions
Explain statute’s role as a source of the constitution
Magna Carta, Bill of Rights 1689, Parliament Act 1911 and 1949, Human Rights Act 1998 and Act of Devolution are all constitutionally significant statutes
Easy for changes to be made to the constitution due to its unwritten nature
Courts cannot strike down legislation as being unconstitutional in the UK
Explain case law’s role as a source of the constitution
The common law contains many key principles forming part of the constitution
- Residual freedoms - Citizens can do and say whatever they want, unless prohibited by law
- The principle that actions of the State must have legal authority
- The principle that legal disputes should be resolved by the judiciary
- Habeas corpus - Cannot be detained unless lawful to do so
- Individual liberty
- Right to a fair hearing
Judicial review process developed to check government, and public bodies exercise their powers properly, to not breach the Rule of Law
Courts can interpret statutes and make decisions of constitutional significance
Explain the Royal Prerogative’s role as a source of the constitution
It is essentially what remains of the absolute powers that used to be exercised by the Monarch and consists of the powers which Parliament has not removed – **exercised by government **
Acts of Parliament could remove Royal Prerogative powers
Prerogative powers cannot be used in a way which contradicts a statutory power - statute prevails over exercise of prerogative power if there is a conflict
In the absence of a statutory scheme/power, a non-statutory scheme can be made with prerogative powers, but Parliament would have to authorise expenditure
Give examples of Royal Prerogative powers
Making a declaration of war
Making treaties
Summoning of Parliament
Appointment and dismissal of PM
Giving royal assent to bills to become Acts of Parliament
The setting up of public bodies to disburse funds made available by Parliament
Explain constitutional conventions’ role as a source of the constitution
Non-legal source of the constitution
These are rules of constitutional behaviour which are considered binding of those who operate the constitution
They aren’t enforced by the courts - If Parliament passed legislation contravening a convention, the courts would acknowledge this, but apply the legislation regardless
They are flexible, as they don’t require particular steps to be created or to be dispensed with
The goal of these conventions is to limit the wide legal powers of the monarch, to ensure the government is accountable to Parliament for its actions and to maintain the separation of powers
Give examples of constitutional conventions
Monarch will play no active role in matters of government
Monarch will not refuse Royal Assent to a bill passed by House of Commons and House of Lords
All government ministers will be members of Commons or Lords
PM should be a member of the democratically elected HC not HL
Individual ministerial responsibility – should be no conflict between own interests and public duties
Collective ministerial responsibility – cabinet is collectively responsible to Parliament for the actions of the government as a whole + cabinet discussions must remain secret
