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 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.
What can be concluded about whether the UK constitution is in need of reform?
All reform is ‘unfinished’ due to the uncoiled nature of the constitution - though this is beneficial - mens it is able to change in line with social values.
