nature and sources of the british constitution Flashcards
what does constitution mean?
a set of rules
defines a country between the government and the citizens
limits the power of a government
what does codified mean?
constitution is written in one place (USA)
what does uncodified mean?
written in lots of different places/not written in one place (UK)
what does unitary mean?
power lies in one central place (UK parliament)
what does federal mean?
power across all regions (US state governments)
what does sovereignty mean? two examples too
to have supreme power
- UK parliament
- US constitution
What is statute law? one example
- made by parliament (therefore sovereign)
- has to be approved by the monarch
- can be scrapped at any time
- written law
- Rep. of the people act 1918 (women get the vote)
What is common law?
- made by judges throughout cases
- based on the principle stare decisis (latin for staying on what has been decided)
- therefore have to follow previous case decisions
- only made if there is no statute or previous decision
- parliament still sovereign
- deals with ‘open-ended’ aspects of the law
What is EU law?
- still has an impact on UK
- we follow EU laws until we want further change
- European contention of human rights (1956) means that if the Uk go against their HRA ‘98 the EU gov can pull up on it
what is a convention? and an example
- unwritten habits and practices
- tradition
- these codes of conducts make politics work
- e.g. collective ministerial responsibility = defines rel between minsters and cabinet
what type of constitution does the UK have?
uncodified
what type of authority does parliament have?
sovereign
devolved government
parliamentary government gives power to a smaller government
can remove power at any time
examples of devolved governments
NI, Scottish and Welsh
examples of devolved governments being suspended
NI had 3 year suspension 2020
what are the five sources of the constitution?
statute law
common law
eu law
conventions
works of authority
what is statute law?
- made by parliament
- can be removed
- public bills
three examples of statute laws
- HRA Act ‘98
- Scotland Act ‘98 (scottish devolution)
- Rep of the People Act ‘18 (women’s vote)
what is common law?
- made by judges in cases they hear
- based on stare decisis
- only made if no previous statute or decision
what is stare decisis?
- latin for staying by what has been decided
- meaning follow previous case decisions and parliamentary statutes
- parliament is still sovereign
example of common law
- case of Diane Pretty
- had motor neurone disease
- wanted legalisation of assisted suicide, however went against HRA Act ‘98
- then kept their word for future cases
what is common law also known as?
- precedent/case law
what is EU law?
- still has ECHR (1956) involvement
- if UK go against HRA ‘98 then ECHR gets involved in european court of HR
what is a convention?
- unwritten habits, traditions or practices
- make politics workable and are upheld for this reason
- non-legal code of conduct
examples of conventions
- collective ministerial responsibility (defines relationship between ministers and cabinet)
- monarch appoints the PM
- brown announcing the UK should never declare war
what are works of authority?
- historical pieces of text
- help clarify uncertainties
examples of works of authority
- walter bagehot - english constitution (1867), role of the PM and cabinet
- dicey - intro to the study of law of the constitution (1885), talks about sovereignty and the rule of law
what is the manga carta 1215?
- right of ‘all free men’ and a fair trial
- first attempt to limit the monarchs power
- still relevant today
what is the bill of rights 1689?
- frequent parliament elections and freedom of speech
- no taxation without parliaments agreement
- have to meet a minimum of once a year, changed from it being an ‘event’
what is the act of settlement 1701?
- ensures protestant succession to the throne
- lineage and bloodline mattered more than democracy
- prevents catholics from becoming PM, did not propel britain towards a modern democratic society
what is the acts of union 1707?
- UK officially ‘Great Britain’
- merged kingdoms of England and Scotland
what are the parliament acts 1911/1949?
- attempted reduced power for the house of lords
- both acts significantly increased democratic accountability of westminster
what is the european communities act 1972?
- all legislation has to conform to european laws
- starting point of the UK’s problematic relations with the EU
when was the magna carta?
1215
when was the bill of rights?
- 1689
when was the act of settlement?
1701
when was the acts of union?
1707
when were the parliaments acts?
1911/1949
when was the european communities act?
1972
what were Blair’s five aims with modernisation of the constitution?
- modernisation of political institutions (HOL and judiciary)
- greater democracy (referendums)
- greater decentralisation (devolution)
- greater protection of rights (HRA)
- greater participation
what were the five modernisation of the constitution reforms blair did?
- house of lords 1999
- constitutional reform act 2005
- house of lords reform bill 2012
- succession of the crown act 2013
- house of lords reform act 2014
what is the constitutional reform act 2005?
- created a separate supreme court, higher than the house of lords
- created a greater sense of judicial independence and separation of powers
- reduced power of lord chancellor, more senior cases put into the hands of new independent Judicial Appointments Commission
what is the Judicial Appointments Commission (JAC)?
- made in hope of enhancement of separation of powers
- had a senior judiciary that was more socially representative of the population
salisbury convention
- manifesto pledges become law
house of lords reform act 1999
- removed all hereditary peers but 92
- increased the number of life peers
house of lords reform bill 2012
- failed act
- proposed election of HOL/upper chamber
succession of the crown act 2013
passed down male or female name (females could be in line of succession)
house of lords reform act 2014
- lords could retire whenever and could be fired for not attending regularly/bad attendance
example of house of lords reform act 2014 in use
2020, 6 peers removed for bad attendance. 106 had retired
fixed term parliament act 2011
- required PM to secure support of 2/3 of MPs to call an early election as opposed to PM deciding unilaterally
human rights act 1998
- incorporated ECHR into UK law
- enables individuals/groups to have fundamental HR protected by law and international law too
freedom of information act 2000
- gave individuals right to access information held by public bodies including local and national government
equality act 2010
- legally protects propel from discrimination in workplace and wider society
- replaced race relations acts, made more accessible and strengthened the protection in some situations
protection of freedoms act 2012
- strikes a balance between protecting the privacy and human rights of the public
- also a prevention from crime
data protection act 2018
- law surrounding processing data
- everyone becomes responsible when using someone’s personal data
- under ‘data protection principles’
success examples of modernisation of political institutions
(post 1997 constitutional changes)
- house of lords smaller, diverse and less tory-dominated (HOL 1999)
- easier to remove peers for absense/misconduct (HOL 2014)
- supreme court creation enables clear line between judiciary and executive (constitutional 2005)
- equality within heirs (succession 2013)
failure examples of modernisation of political institutions
(post 1997 constitutional changes)
- HOL reforms incomplete, entirely unelected second chamber that undermines democracy (HOL 1999 and 2014)
- creation of supreme court leaves too much power on unelected individuals (constitutional 2005)
- alteration of equality in succession act minor. still illegal for catholics to be monarch (succession 2013)
successes of democratisation
(post 1997 constitutional changes)
- greater autonomy in some cities was given, mayor of london influenced a mayor in manchester
- reform of european parliament enabled a greater variety of parties to be presented
failures of democratisation
(post 1997 constitutional changes)
- bad turnouts in referendums for mayor elections
- lack of enthusiasm for new voting system (AV low turnout)
successes of human rights changes
(post 1997 constitutional changes)
- increased invisibility of rights and minority groups
- forceful laws concerning data
- made employers and institutions more accountable for information they had
failures of human rights changes
(1997 constitutional changes)
- led to rise in identity politics
- also a clash between individual and collective rights
- growing role of courts in HR cases led to terror organisation
successes of devolution changes
(post 1997 constitutional changes)
- success in scotland and wales
- popular support for devolution
- helped NI through ‘the troubles’ (treaty of paris)
failures in devolution changes
(post 1997 constitutional changes)
- NI assembly suspended for three years
- english devolution hasn’t increased in popularity
examples of greater democracy post 1997
- referendums act 97 (scotland and wales)
- greater london authority act 99
- european parliamentary elections act 99
- police reform and social responsibility act 2011
- fixed term parliaments act 2011
examples of greater decentralisation post 1997
- scotland act 98
- wales act 98
- NI act 98
- scotland act 2016
- wales act 2017
- 2004 north eastern regional referendum on elected regional assembly
examples of greater protection of rights post 1997
- human rights act 1998
- freedom of information act 2000
- equality act 2010
- protection of freedoms act 2012
- data protection act 2018
what type of constitution does the UK have?
organic/uncodified
- has no entrenched laws
accountability
government is accountable to the legislature and the people
strong government
- roles of legislature and executive complement each other to form stable governments
three problems with the british constitution
- outdated and undemocratic (e.g. royal prerogative dates back to medieval times)
- concentration of power is dangerously at the centre, few regulations of use of state power
- lack of clarity, what are all the unwritten conventions?
if the UK is no longer unitary, and not federal, what is it?
- quasi-federal
what does quasi-federal mean?
federal and unitary
two arguments supporting the uk constitution being codified
- would provide greater clarity
- reduce concentration of power
two arguments against having a codified constitution in the UK
- current constitution encourages flexibility and adaptability
- far more rigid, entrenched laws
who is known for the rule of law?
AV Dicey
why is the UK constitution unitary?
parliament is sovereign
what is the important of the HRA Act ‘98?
was previously a convention, an act allows the embedment of HR
two arguments supporting that the UK constitution upholds rights well
- current legislation provides strong legal protection for core rights. incorporation of ECHR in HRA adds additional protection
- relatively strong institutional framework for protecting rights, lots of institutions bring cases under the Equality Act 2010
parliamentary sovereignty
- principle of british constitution that makes parliament the ultimate authority
two arguments that suggest the UK constitution does not uphold rights well
- governments have been repeatedly able to introduce laws that dilute the power of HR laws, in areas of national security with anti-terrorism laws
- little political consensus between parties and substance of the human rights guarantees. existing framework vulnerable to political attack
individual rights
rights belonging to each citizen, e.g. the right to free speech
collective rights
- rights that lie with groups of people, e.g. members of trade unions
rule of law
principle law is enforced and that it is equally applied to everyone, including government
what is a federal constitution?
- where considerable power lies with individual regions or states
example of parliamentary sovereignty
- parliament joined EEC through European Communities Act 1972
- later repealed with Brexit (European Withdrawal Act 2018 and European union (withdrawal agreement) Act 2020
royal prerogative
- modern monarchy is above party politics and plays a ceremonial role
- therefore powers of monarch are passed down onto prime minister and government
osmotherly rules
rules giving guidance to civil servants and other government officials when appearing before select committees
