Exam Questions May 2022: Nature and Sources of the Constitution Flashcards
Give three sources of the UK Constitution.
1) Statute law - e.g. Parliament Acts 1911 & 1949 - allow the HoL to block bills for 1 year - e.g. used to pass the War Crimes Act 1991 when Lord’s backing was lacking.
2) Common law - judge-made - e.g. R (Miller) v. The Prime Minister (2019) - PM’s prorogation of Parliament was unlawful - judiciary should be impartial - meaning constitutional amendments are made without thought of the political benefit involved.
3) Conventions - practices that become binding over time - e.g. Salisbury Addison Convention 1945 - HoL should not delay bills that are part of the manifesto - created by the HoL to prevent them blocking any of Atlee’s Labour policies such as the NHS.
Give three principles of the constitution.
1) Uncodified - no single document - unitary - power lies within the centre - unlike the US constitution where power is divided in a federal system - though devolution may class the UK as ‘quasi-federal’.
2) Parliamentary sovereignty - Parliament has final say on the contents of the constitution - ‘no Parliament may bind its successor’ - European Communities Act 1972 - later reversed by the EU (Withdrawal Agreement) Act 2020 - means the constitution is flexible and reflects the societal attitudes of the time.
3) Rule of Law - law applies equally to everyone - significant as ministers may be found ‘ultra vires’ - e.g. R (Miller) v. The Prime Minister - ‘party-gate’ 2022 scandal has called this principle into question.
Give three constitutional reforms since 1997.
1) . FOI Act 2000 - grants access to certain state info - drew attention to the 2009 expenses scandal - e.g. investigation by the Manchester Evening News revealed the BBC spent £110,000 on tea and coffee in a single year - though 37% of requests are ignored.
2) Constitutional Reform Act 2005 - created separate SC in 2009 - s.3 maintains that the Lord Chancellor must respect judicial independence - significant as it maintains the separation of powers - meaning a large portion of the constitution is created without political motive.
3) Human Rights Act 1998 - outlined the practices of bringing human rights claims in the UK - e.g. s.12(4) places emphasis on journalistic expression - significant as it maintains on of the most prolific methods of scrutiny of the executive.
Give three constitutional reforms since 2010.
1) Fixed Term Parliament Act 2011 - prevents the PM from calling an election when it best suits them electorally - requires 2/3 of the House - e.g. Thatcher called the 1983 a year early to capitalise on the Falklands war - led to her 144 seat majority.
2) Succession to the Crown Act 2013 - enabled the eldest child to become monarch irrespective of gender - limited impact on politics - though an attempt to modernise the monarchy - ultimately making the constitution more modern.
3) House of Lords Act 2014 - allows existing peers the right to resign their seat - by 2020, 106 had retired from seat - means that the age of the upper chamber is kept low - ultimately making Parliament more representative.
Give three constitutional conventions.
1) Salisbury Addison Convention 1945 - prevents the HoL from blocking any bill that was part of the manifesto - e.g. created by the HoL to prevent them blocking any of Atlee’s Labour policies e.g. NHS - maintains the primacy of the Commons over the Lords.
2) . IMR - ministers should resign due to departmental failure - e.g. David Blunkett resigned inn 2004 regarding the visa scandal - ensures the cabinet acts in the best interest of the electorate - ensures efficacy when delivering policy.
3) CMR - ministers should publicly agree with cabinet or resign - e.g. Clair Short was allowed to remain in cabinet by Blair after publicly disagreeing with the Iraq War in 2003 - later resigned - improves the public image of cabinet if there are no internal factions.
Give three reasons we should adopt a codified constitution.
- Ensures greater rights protection - similar to the US constitution’s right to ‘life, liberty and pursuit of happiness’ - Gov. would not easily be able to legislate against rights - e.g. Coronavirus Act 2020 - saw great reduction to individual freedom - though would the constitution be able to change during emergencies?
- Strengthen the courts - replaces Parliamentary Sovereignty with constitutional sovereignty - e.g. e.g. Hirst v. UK - ban on prisoner franchise was ruled unlawful - this was ignored by the government - demonstrates powerlessness of the court under Parliamentary sovereignty.
- Conventions can currently be broken with limited consequence - e.g. R (Miller) v. PM (2019) - prorogation of parliament for 5 weeks was unlawful - codified constitution would enshrine checks and balances to ensure that breach of entrenched conventions comes with consequence.
Give three reasons against the adoption of a codified constitution.
1) Uncodified constitution is more flexible - able to change in line with social change - e.g. Marriage Act 2013 - support for same-sex marriage increased with it - 41% in 2009 to 71% in 2021 - unlike a codified constitution, which may become a zeitgeist.
2) Unaccountable judges would receive greater power- required to make rulings on which Acts are constitutional - e.g. R (Anderson) v. Home Secretary (2002) - Crime (`sentences) Act 1997 was a violation of Article 6. - later repealed by s.3030 CJA 2003 - declarations of incompatible can already be made - would not significantly increase their power.
3) Marked lack of support for codified - 2011 AV demonstrates this with low turnout of 42.2% - in 2018 only 65% claimed that wanted a ‘written constitution… under which the government should operate’ - though only 20% claimed they knew the constitutional arrangement ‘very/fairly well’.
How have amendments to the constitution, after 1997, been significant regarding modernisation of political institutions?
Have been significant:
- House of Lords Reform Act 1999 - reduction to 92 hereditary peers - smaller and less conservative-dominated - means Parliament is more representative - though the average age still remains at 71.
Have been insignificant:
- HoL reform is incomplete - House of Lords Reform Bill 2012 - failed to make a fully elected HoL - however, critics claimed it would challenge the primacy of the HoC - meaning policy change is slower.
How have constitutional reforms since 1997 been effective regarding judicial reform?
Have been significant:
- Creation of separate SC in 2009 - under the Constitutional Reform Act 2003 - s.5 Lord Chancellor ‘must maintain the continued independence of the judiciary’ - means decisions are made without political interference - meaning the law is applied objectively.
Have been insignificant:
- Growing role of the Courts since HRA 1998 have been controversial - judges are able to declare laws incompatible with the ECHR - e.g. R (Anderson) v. Home Secretary - judges may be regarded as ‘politicians in gowns’ - challenging the separation of powers.
How have constitutional amendments since 1997 been significant regarding democratisation?
Have been significant:
- Greater autonomy in larger cities as a result of regional devolution - e.g. London Assembly has attracted prolific incumbents such as BJ and Ken Livingstone - decisions are made on a local level by representatives who are more ‘in touch’ with local issues.
Have not been significant:
- Marked lack of support - e.g. Torbay voted to remove the position of elected mayor in 2016 after voting it in in 2005 - mayoral and PCC elections regularly have abysmal turnouts - e.g. Staffordshire PCC in 2012 - 11.6% turnout - meaning decisions lack electoral legitimacy.
How have constitutional amendments since 2010 been significant/influential/met their goals with regards to Reform of the HoL?
Have been successful:
- HoL Reform Act 2014 - allowed peers to retire - by 2020, 106 had retired - means that the average age of the upper house is kept low - laws are more in touch.
Have been insignificant:
- House of Lords Reform Bill 2012 - aimed to create a fully elected upper house - failed - critics claimed it would challenge the primacy of the HoC - meaning policy change would occur more slowly.
How have constitutional changes since 2010 been significant regarding electoral reform?
Have been significant:
- FTPA 2011 - prevents the PM from calling elections when it best suits them - e.g. Thatcher 1983 - sought to capitalise on the success of the Falklands war.
Have been insignificant:
- FTPA 2011 - fails to prevent the PM calling a snap election so long as they secure a super majority in the HoC - e.g. May in June 2017 - called GE with 20% poll lead - since been repealed - undermines the significance of every constitutional reform as they may be easily removed.
How have constitutional amendments since 2010 been significant/met their goals regarding social reform and electoral system reform?
Have been significant:
- Social reform - Marriage Act 2013 - legalised same-sex marriage - changes in line with social change - 41% support in 2009 to 70% in 2021 - only brought about due to the coalition? Would larger parties likely have pushed for such reforms? - Significant reforms only occur during the right political environments?
Have not bee significant:
- Electoral system - 2011 AV ref. - 32.1% in favour with a 42.2% turnout - lack of empathy for electoral change - meaning that change to the constitution in this regard is likely not to come.
Give three ways the UK constitution is in need of reform.
1) FPTP is outdated - AV ref. failed in 2011 - as of March 2022 - only 44% are in favour of PR (YouGov) - this issue has been put to bed for now - unlikely to change in the immediate future.
2) HoL remains unelected - undemocratic - questions the legitimacy of the HoL - HoL Reform Act 1999 - ‘Phase 1’ was the removal of hereditary peers - under the ‘Weatherill Amendment’ - 92 still remain - remained as a guarantee that ‘Phase 2’ would be achieved (involving election) - questions the legitimacy of the laws and scrutiny go the HoL.
3) Controversy regarding the type of laws the judiciary should be able to rule on - Justice and Security Act 2013 - allows for ‘closed material proceedings’ - secret courts in civil cases - Liberty claim this, with a reduction in legal aid, challenges the fundamental rights inherent with the constitution.
Give three ways the UK constitution is not in need of reform.
1) Good protection of Human Rights - HRA 1998 - allows the lawfulness of decisions to be challenged - however, a ‘UK Bill fo Rights’ has been hinted at by Raab - put on hold due to ‘party gate’.
2) House of Commons Political and Constitutional Reform Committee - consider small improvements to the HoL - e.g. introduce measures to control the growing size of the HoL - also improving their reputation by ending by-elections for hereditary peers and evicting those with serious criminal convictions - improves the public image of the HoL.
3) Judicial independence is statutorily guaranteed - Constitutional Reform Act 2005 - s.3 states that the Lord Chancellor is no longer the head of the judiciary - apart from ongoing efforts to increase representation of the judiciary (favouring females in tie-breaker situations) - they are effective and widely accepted.
