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Public Law > Constitutions > Flashcards

Constitutions Flashcards

1
Q

What is a constitution?

A

Constitutions ‘establish the institutions of a state, allocate the powers to those institutions, and define the relationship between the state and individual.’

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2
Q

How is a constitution formatted?

A

In a single document.

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3
Q

What is a constitution according to Barnett?

A

‘A constitution is a set of rules which governs an organisation’

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4
Q

What is a codified constitution?

A

-Fundamental laws are separated from ordinary laws.

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5
Q

How is a codified constitution formatted?

A

-Single document.
-Written
-Narrow
-Concrete
-Given priority during conflict.

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6
Q

Is a codified constitution entrenched?

A

It is is usually entrenched because of the stringent procedures for amending constitutional laws, yet they can be changed via a special process.

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7
Q

What status do constitutional laws have?

A

A higher legal status than ordinary laws.

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8
Q

What is an uncodified constitution?

A

Fundamental rules are found in ordinary laws.

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9
Q

What is the format for an uncodified constitution?

A

Ø Not collated into a single document.
Unwritten, abstract, broad.

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10
Q

What does Brazier believe about the UK’s constitution?

A

‘British constitution is written, but it isn’t codified into a single official document.’

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11
Q

How does Barnett describe the UK’s constitution?

A

‘The height of flexibility’.

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12
Q

Why does the UK lack a codified constitution?

A

Historical iteration, no major break in governance.

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13
Q

When was the only time the UK had a codified constitution?

A

The English Civil War.

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14
Q

What makes the UK constitution not supreme?

A

Supremacy of Parliament.

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15
Q

What did Thomas Paine say about constitutions?

A

‘A constitution is an act of people constituting the government, and a government without a constitution, is power without right’

-Government makes constitutional rules in the UK.

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16
Q

What are the five points about constitutions?

A

1) A set of rules about functions, institutions, and actors.
2) Concerned with community.
3) Applied to a specific geographic location.
4) Component of historical/cultural identity.
Concerned with legitimising power.

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17
Q

What are political constitutions?

A

Political institutions and the electorate have legitimacy to make changes.

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18
Q

In a political constitution who makes the rules?

A

Political actors and referendums

19
Q

A political constitution is either?

A

Majoritarianism or Democratic.

20
Q

What is public law?

A

When the law facilitates politics to behave in a legitimate way.

21
Q

What is legal constitutionalism?

A

Determine the scope and remaining constitutional texts/rules.
Written documents/legal principles form constitutional rules.

22
Q

What does a legal constitution protect?

A

Minority constitutional rights, in face of majority wishes.

23
Q

What will the law always seek to do?

A

Invalidate political action which disrespects those principles.

24
Q

What is a unitary constitution?

A

Ø Single centralised source of sovereign power superior over other sources.
Ø Constitutional power emanates from the centre.
Distributed power can always be recalled.

25
Q

What is a federal constitution?

A

Ø Distribution of power, multiple sources.
Ø Certain powers are ascribed to different levels and may not be exercised on other parts of the state.
Ø Power is not normally able to move between different levels.

26
Q

What is the Sewel convention?

A

When devolved bodies which are going to be impacted consent to these powers being taken back.

27
Q

What does a presidential government mean?

A

Ø The legislative and executive branches are separate.
Specific powers accrue to each branch.

28
Q

What does a parliamentary government mean?

A

Ø Legislative and executive branches overlap
Ø Government exits for so long it commands the confidence of parliament.
Less clearly defining line between powers belonging to each branch.

29
Q

What happens in a democratic government?

A

Ø Power and legitimacy derived from the electorate.
Ø Defined franchise, possibly universal.
Regular elections.

30
Q

What is an autocracy/oligarchical government?

A

Ø Individual/small group hold most of the power.
Ø Lack of elections
If there are elections, limited choice of party

31
Q

What are constitutional conventions?

A

Ø Constitutional political rules.
Ø Non-legal rules
Ø Binding, regulating
Are backward-looking, unfixed/evolving.

32
Q

What is the definition of constitutional conventions in case law?

A

Ø Conventions are political
Those who are bound by conventional rules are usually in law/politics e.g judge.

33
Q

What is the convention of collective responsibility?

A

Discussions at cabinet are secret, open to different opinions. The outcome leads to them agreeing/pretending to agree with the same decision and disclosing the information discussed.

34
Q

How do we identify the existence of constitutional conventions?

A

The Jennings Test

35
Q

What are the stages in the Jennings Test.

A

1) Any Precedents which indicate how a constitutional actor should behave?
2) If so, do they believe they ought to follow this convention?
Is there a good constitutional, pragmatic or other reason justifying the rule?

36
Q

Why obey conventions?

A

Ø Precedent indicates expected practice.
Ø Belief they ought to be followed, this means you are behaving legitimately.
A good constitutional reason suggests that it should align with the convention, for conduct to be constitutional.

37
Q

What are the functions of a constitutional convention?

A

Regulate structure relationships, also enabling and authorise action.

38
Q

Who is limited in a constitutional convention?

A

Ø The Sovereign
Ø The Prime Minister
Ø The Prince of Wales.
Ø Politicians
Senior members of the judiciary.

39
Q

What do constitutional conventions regulate?

A

Ø Establish the behavioural characteristics of Cabinet government. Ministers are normally members of The House of Commons and The House of Lords.
Ø Create the office of prime minister.
Specify the function of a King following an election.

40
Q

What are more facts about conventions?

A

Ø Not legally binding
Ø Product of practice and tradition
Inform and guide constitutional actors.
Flexible and unenforceable.

41
Q

What is the tripartite convention?

A

The monarch should be consulted by, may encourage and may warn their ministers.

42
Q

What is the cardinal convention?

A

Requires the monarch to act on and use prerogative powers consistently with ministerial advice.

43
Q

What are key facts about laws?

A

Ø Enforceable by the courts.
Ø Product of legislative process.
Ø Determine appropriate behaviour/practice.
Ø Breaches may also be breaches of the law.
Ø No obvious legal sanctions for breaching a convention.
Not clear who determines that a convention applies.

44
Q

How may breaches of conventions lead to breaches in the law?

A

Ø Parliament meeting once a year
Ø Army Acts
Appropriation Acts.

Public Law (3 decks)

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