Constitutions and Consitutional Law Flashcards
What is a constitution?
- A political settlement
* The law about law
List some examples of constitutional documents?
- Manga Carta
- Bill of Rights 1689
- Act of Union 1707
- Scotland Act 1998
- Human Rights Act 1998
How are constitutions made?
• They are all made differently
What are the origins of written constitutions?
• 18tn century American and french revolutions
What are the characteristics of written constitutions?
- Defines the relationship between citizens and the state
- Articulate structure of the state and the operation of governance
- A binding/ legitimising (and symbolic?) force on society
- Provides norms/legal conditions for the public use of powers; express the form and consent of state power
What do constitutions do?
- ‘a central function of a written constitution is to enhance the stability of a political system’
- may ‘bring government and the governed closer together’, and could ‘strengthen public confidence and trust in the political system’
What does the American Constitution say?
- 7 articles
- originally permitted slavery
- allows for non-popularly elected presidents via the Electoral College
- Equal representation in the Senate
Is a constitutional text final?
- Much of the language is vague or ambiguous at best - needs to be interpreted
- Events (National or international) will happen which tests the limits of the constitution
Describe the UK’s basic Constitution?
- Is a constitutional monarchy (or parliamentary democracy)
- Is a unitary state, but with devolved entities (as a opposed to federal’
- Operates on a parliamentary system of government (as opposed to ‘presidential’)
- The ‘flat’ nature of law in the UK
- [t]here is no clear of formal driving line between what constitutes a core component of the constitution and what does not’ (P.Norton)
- Use of ‘unwritten’ and ‘uncodified’
What are the consequences of an unwritten constitution?
- Parliament remains the UK’s highest legal authority
- ultimate protection for fundamental rights is a matter for Parliament
- No fixed procedure for legislation of constitutional importance
What is a formal source of the UK’s constitutional law?
- Legislation —> Acts of Parliament
- Case Law- Judges do make law
What are the two main types of ‘constitutional legislations’?
- Those concerned with the organisation of and allocation of power to, institutions of government
- Those that regulate the relationship between the individual and the state
Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)
- Distinguished between ‘ordinary’ statutes and constitutional’ statutes
R (HS2 Action alliance ltd) v Secretary of State for Transport [2014]
But these remain judicial attempts, and have not been accepted by all
Entick v Carrington [1765]
Read case
Burmah Oil v Lord Advocate [1965]
- read case
Who says this quote:
‘The overriding aim…must always be to give effect to the intention of Parliament as expressed in the words used’
Lord Bingham
What are the law and customs of Parliament?
- standing orders of both Houses
- rulings by the house speaker
What is the international law sources?
- often treaties are given effect in national law through enactment of legislation
- even if not given effect, well establish principle that national law should be interpreted, where, where possible, to conform with treaties
Give other examples of conventional rules?
- giving royal assent to an act of Parliament
- Queen can appoint her ministers
- Prime Ministerial duties after an election
- judges must sever all links with party politics
- Sewel convention, Salisbury convention
Why are these rules observed?
- Because they express prevailing constitutional values/avoiding constitutional difficulties
What quote is this case from?:
“The most fundamental rule of UK constitutional law is that the crown in Parliament is sovereign and that legislation entranced by the crown with the consent of both Houses of Parliament is supreme… Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses at 20”
Miller
