Constitutions

Question 1

What are the 5 sources of the constitution?

Answer 1

Statute Law, Common Law, EU Law & Treaties, Conventions & Major Works of Authority

Question 2

Define ‘Statute Law’:

Answer 2

A written law which has been passed by an Act of Parliament. It has to be approved by the Commons, the Lords and the Monarch. It is enforceable in the Courts.

Question 3

Define ‘EU Law and Treaties’:

Answer 3

Where these laws conflict with the UK law, the EU law takes precedence and it’s the job of the UK to ensure that our laws fit with it.
Important for economic and social legislation- especially trade and environmental issues such as fishing as well as human rights.
Arguably promotes the role of unelected lawyers to decide if the laws are compatible or not.

Question 4

Define ‘Conventions’:

Answer 4

These are rules and norms that are considered to be binding (required). They’re not codified or enforced by the courts. They simply get their authority by their history and long usage.

Question 5

Define ‘Common Law’:

Answer 5

This includes legal principles that have been developed and applied. This is where the courts interpret and clarify the law if there is confusion or no clear statute law, then they become excepted practice. E.g Ministers exercising the Royal prerogative.

Question 6

Define ‘Major Works of Authority’:

Answer 6

Sources of guidance (usually written in the 18/19th century) which are widely recognized and are therefore viewed as authoritative/respected. They often contain the nearest to a written account that we have of the way the constitution operates. They have no legal authority - but are helpful in interpreting the core vales that underpin our constitution.

Question 7

Outline three advantages of an UNCODIFIED consitution:

Answer 7

1. It is flexible so can adapt to a changing society (it has freedom to develop in an evolutionary and organic way)
2. It can be amended or changed more easily than a codified constitution; the laws are not entrenched (fixed).
3. It has worked for a long time in Britain- evolutionary

ALSO:

• A codified constitution can be abused by dictators
• A codified constitution is very difficult to agree on
• A codified constitution gives too much power to judges

Question 8

Distinguish between legal and political sovereignty:

Answer 8

A legal sovereign is defined as that person or body of persons that makes law and whose law is final and is recognized by courts and is enforced by the executive.

However, above the legal sovereign is the political sovereign, as Dicey says, “Behind the legal sovereign that the lawyer recognizes, there is another sovereign to whom the legal sovereign must bow.” This is the political sovereign.

In democracies the legal sovereign receives it authority from the electorate, whatever be the basis of the right of vote, and is answerable to it for the exercise of it powers.

Legal sovereign is subject to be changed by the mandate (permission) of the electorate at regular intervals. Even during the term of Parliament,in the cabinet system of government, legislature may be dissolved and fresh mandate from the electorate sought (required).

The legislature makes laws on the basis of the policy approved by the electorate. So we may say that the electorate is political sovereign.

Question 9

Distinguish between a unitary and a federal constitution:

Answer 9

A unitary constitution has power centralized in one institution or area - for example - Westminster

A federal constitution (like the USA or Germany) has power in other locations too- like states.

A unitary state can have local governments etc. (including devolution) but it has the right to take these powers away.

The federal government cannot take away powers from any of the states.

Although, because of the difficulty the government would face in turning back devolution, it has been argued that the UK has an increasingly federal constitution.

Question 10

Outline 3 arguments in favour of introducing a codified constitution:

Answer 10

1. To enshrine (preserve) the rights of the citizens and so protect their rights.
2. To make the rule of law more accessible and so strengthen our democracy.
3. It is rigid therefore we can protect values that are essential.

Question 11

Briefly describe three constitutional reforms made between 1997-2010:

Answer 11

1. Reform of the House of Lords- removal of a large number of hereditary peers - all but 92 hereditary peers removed from the House of Lords - therefore unable to forge consensus on next stage on HoL reform
2. Elected Mayors (although this wasn’t taken up by municipal (community) governments to the extent that the gov wanted) - only 12 local authorities adopted the elected mayor model.
3. Devolution- Scotland and Wales- Cameron wanted Scotland to stay in the Union, however UK and Scottish gov agreed that a single-question referendum on independence would be held on the 18th of Sep 1014.

Question 12

What were three constitutional reforms proposed by the coalition government of 2010:

Answer 12

1. Electoral Reform- Referendum on AV- Conservatives agreed to hold referendum on AV under the coalition agreement with the Lib Dems. Lib Dems preferred system was STV. The referendum (2011) produced a 68% vote against AV- significant set back for the prospects of electoral reform.
2. Scottish referendum on Independence - Devolution- Scotland and Wales- Cameron wanted Scotland to stay in the Union, however UK and Scottish gov agreed that a single-question referendum on independence would be held on the 18th of Sep 1014.
3. Referendum on membership of the EU- in 2017

Question 13

Outline three criticisms of the UK constitution:

Answer 13

1. The lack of codification means that there is potential for confusion- and this can elevate (promote) the role for unelected lawyers.
2. It arguably doesn’t protect the rights of citizens adequately/effectively.
3. It still contains undemocratic elements- for example- The Lords, The Monarchy.

Question 14

What is a constitution?

Answer 14

A set of basic laws/principles (main beliefs) for a country that describe the rights and duties of its citizens and the way in which it is governed/ruled.

Question 15

Give an example of Statute Law:

Answer 15

• The Parliament Act in 1911 which established the House of Commons as the dominant chamber of Parliament.
• The Scotland Act (1998) which created the Scottish Parliament.
• The Great Reform Act of 1832 which extended the franchise (right to vote).

Question 16

Give an example of EU Law:

Answer 16

• The Human Rights Act (1998). British Parliamentary sovereignty is maintained in the law but ministers have to address UK law if it is found to be incompatible with UK law.
• Freedom of movement within Europe.
• Many laws regarding agriculture, trade and fisheries.

Question 17

What is Devolution?

Answer 17

The transfer of power to a lower level- especially by central government to local or regional administration/office.

Question 18

Define ‘Legislature’:

Answer 18

• An officially elected or otherwise selected body of people assigned with the responsibility and power to make laws for a political unit, such as a state or nation.
• Law making body of a political unit

Question 19

What is meant by a Codified constitution?

Answer 19

A constitution that is all together written in one place or document.

Question 20

What is meant by an Uncodified constitution?

Answer 20

A constitution that IS WRITTEN, but it might be scattered around in many different documents.

Question 21

What is meant by a Federal constitution?

Answer 21

A constitution that sets up a system where smaller governments and the central government have their own separate powers as set out in the constitution.
E.g. America

Question 22

What is meant by a Unitary constitution?

Answer 22

A constitution that sets up a single power to govern a country. This central government is ultimately supreme (sovereignty is located at the centre) and any administrative divisions (subnational units) exercise only powers that their central government chooses to delegate.
E.g. UK

Question 23

Key strengths of the UK constitution:

Answer 23

1. it’s flexible & can adapt to gradual changes in circumstances or abrupt disturbances.
2. It concentrates power in the hands of the executive and the prime minister, promoting strong, decisive government.
3. It includes key constitutional principles such as the rule of law and the independence of the judiciary.
4. The principles of parliamentary sovereignty and parliamentary government ensure representative and responsible government.
5. It has stood the test of time and includes features which enjoy wide support such as the Monarchy and parliamentary government.

Question 24

Key weaknesses of the UK constitution:

Answer 24

1. The fact that it places so much power in the hands of the executive can be seen as a democratic weakness and prevents fully accountable government.
2. Its lack of codification can lead to confusion and conflicts over its operation.
3. It does not adequately protect the rights of individuals and minorities, because of the power of parliamentary sovereignty.
4. It still contains undemocratic elements such as the Monarchy and the House of Lords.
5. It is bias towards the two-party system, its undemocratic and does not take account of a more pluralist society.

Question 25

Define ‘Fundamental Law’:

Answer 25

The law which forms the foundation of the government of a state.

Question 26

Define ‘Entrenched’:

Answer 26

Secured; difficult to change.

Question 27

Define/Outline ‘Constitutionalism’:

Answer 27

The theory and practice of government according to the rules and principles (concepts) of a constitution.
A constitutional democracy is one which operates within the framework of a constitution that sets limits on the powers of government institutions and provides protection for the rights of citizens.

Question 28

Advantages of a codified constitution:

Answer 28

Limited government- the rules for the government are established therefore it is clear when the government oversteps the mark.
Protection of rights- basic rights are enshrined (protected) in the constitution such as Freedom of Speech, meaning legislation cannot trample over these rights.
Clear rules for political procedure- unlike the UK, a codified constitution allows for removal of precedent as a form of procedure. Things become far more clear-cut.

Question 29

Disadvantages of a codified constitution:

Answer 29

Rigidity- codified constitutions are notoriously difficult to amend. The US constitution has only had 27 amendments since 1787.
Judicial Tyranny- a codified constitution, is interpreted by the judiciary and as such it can be the case that judges can ‘legislate from the bench’.

Question 30

Define ‘The Rule of Law’:

Answer 30

The Rule of Law is the legal principle (concept) that law should govern a nation, protecting individuals from arbitrary state action.

Question 31

Outline ‘The Rule of Law’ in detail:

Answer 31

The Rule of Law is the legal principle (concept) that law should govern a nation, protecting individuals from arbitrary (oppressive) state action.
All UK citizens must obey the law and are equal under it. The courts can hold government ministers, police officers and public officials accountable for their actions if they have acted outside the law or been negligent to their duties.
Laws passed by parliament must be interpreted and applied by an independent judiciary free from political interference. Rights of citizens are then protected from arbitrary state/executive action.
Aggrieved citizens can take the government or a local authority to court if they feel they have been treated improperly.
Individuals charged under the law are also entitled to a fair trial and should not be imprisoned without due regard for the legal process.
Essential feature of Liberal Democracy.
Parliamentary sovereignty theoretically enables parliament to abolish these rights. However, a sustained effort to overturn the key elements of The Rule of Law would be widely regarded as illegitimate and anti-democratic- making it untenable.

Question 32

What 4 core principles formed the building blocks of the traditional British Constitution?

Answer 32

1. Parliamentary Sovereignty
2. The Rule of Law
3. The Unitary State
4. Parliamentary Government in a Constitutional Monarchy

Question 33

Define ‘Parliamentary Sovereignty’:

Answer 33

• States Westminster Parliament is the supreme law-making body.
• Sovereignty means legal supremacy: Parliament has ultimate law-making authority.
• This legislative supremacy is constructed around 3 propositions:
  1. Parliament can legislate on any subject of its choosing
  2. Legislation cannot be overturned by any higher authority
  3. No parliament can bind it successors.
  E.g. Parliament cannot say “no Parliament in the future will be allowed to pass laws against discrimination” because that’s binding a future Parliament.

Question 34

Define ‘Sovereignty’:

Answer 34

Legal supremacy; absolute law making authority that is not subject (not issued to) to a higher authority.

Question 35

Define ‘Unitary State’:

Answer 35

A homogeneous state in which power is concentrated at the political centre and all parts of the State are governed in the same way.

Question 36

Define ‘Union State’:

Answer 36

A state in which there are cultural differences and where despite a strong centre, different parts of the state are governed in slightly different ways.

Question 37

Outline a ‘Unitary State’ in detail:

Answer 37

• The UK consists of 4 component nations- England, Scotland, Wales and Northern Ireland- It has been a highly centralised state in which sovereignty is located at Westminster.
• In a Unitary Constitution, subnational institutions do not have autonomous powers that are safeguarded. Local government has had little power and regional government has historically been weak or non-existent.
• The UK has been traditionally described as a Unitary state, but the label does not reflect fully its multinational character. An alternative is to see the UK as a Union State.
• A Unitary State exhibits a high degree of both centralisation and standardisation: all parts of the state are governed in the same way and share a common political culture. In a Union State, by contrast, important political and cultural differences remain.

Question 38

Outline ‘Parliamentary Government in a Constitutional Monarchy’ in detail:

Answer 38

• Under the UK constitution, government takes place through parliament under a constitutional monarchy.
• Government Ministers are politically accountable to parliament and legally accountable to the Crown, and must face the verdict of the electorate every 5 years.
• Between general elections, a government relies upon its majority in the House of Commons to survive and enact its legislative programme.

Question 39

Define ‘Constitutional Monarchy’:

Answer 39

A political system in which the Monarch is the formal Head of State but the Monarchs legal powers are exerted/exercised by Government Ministers.

Question 40

Define ‘Legislature’:

Answer 40

The branch of government responsible for making law.

Question 41

What is meant by the term ‘The Executive’?

Answer 41

The branch of government responsible for the implementation of policy.

Question 42

What is meant by the term ‘The Judiciary’?

Answer 42

The branch of government responsible for interpreting the law and deciding upon legal disputes.

Question 43

What is meant by the term ‘Fusion of Powers’?

Answer 43

The mix of personnel (workers) in the executive and legislative branches found in parliamentary systems.

Question 44

Define the term ‘legislative’:

Answer 44

Having the power to make laws.

Question 45

What is the ‘Separation of Powers’?

Answer 45

The principle (concept) that the legislative, executive and judicial branches of government should be independent of each other. They should have different functions and distinctive memberships which should not overlap. 
The idea emerged in Liberal thought as a means of preventing tyranny and the concentration of absolute power in one body (e.g the Crown).