Nature+sources of British Constitution Flashcards
constitution
rules, written or unwritten, detailing how to govern a state
where does the idea of a constitution come from
enlightenment
Rosseauu (17-1778)
what did Rousseau thing the constitution should be
‘contract’ between people and body
govern so people can live naturally and fairly
when was enlightenment
17th century late
how did enlightenment impact political thinking
relationship between people and state should be identified
what does a constitution contain
power and functions of various gov institutions
president or prime minister
legislature have 2 chambers or not
codified constitution
rules are written on a single document
why do constitutions create a checks and balances system
stop one branch exercising too much power
e.g us president has to get proposed bill through both chambers
separation of power
three branches exec,leg+judiciary
how can power be divided vertically
between federal and state government
why are most constitutions entrenched
prevents representatives making amendments to weaken separation of power
how are codified constitutions entrenched
making it harder to amend laws
doctrine of popular sovereignty
idea that power is vested in the people
US bill of rights
include rights and liberties to protect the people from eachother
can over rule certain acts
why are constitutions such an important feature of liberal democracies
protect freedom and equality
state clear limits on government power ruled by the people
fair elections
example of how power should be shared within a country (functions of constitution)
fixed term parliament act
example of establishing political processes and operation of institutions (functions of the constitution)
How power is divided between commons and lords
example of placing limits on governments power (function of the constitution)
the right to vote
bill of rights
example of how constitution can be amended (functions of the constitution)
UK goes through Lords then royal asent
example of how power should be share (functions of the constitution)
UK legislation covers council power
U.s gives power to states
Magna Carta
1215
right to a fair trial
bill of rights
1689
limits on power of monarch
enhance status of parliament
act of settlement
1701
barred roman catholics/those married to from taking the throne
Acts of union
1707
England and Scotland formed GB
governed from Westminster
parliament acts
remove power of lords to block money bills imposing max 2 year delay
reduce power of lords to delay non money bills to 1 year limit
European communities act
1972
act that took uk into EEC
incorporated treaty of rome
example of difference in flexibility in codified constitutions
1958 French 5th republic amended 17 times in 50 yrs
only been 17 in US one since 1791
why is judicial review limited when there is an uncodified constitution
no document to determine what is ‘unconstitutional’
when are codified constitutions made
when new independence e.g US constitution
period of authoritarian rule e.g Spanish 1978
after a war e.g West Germany basic law 1949
features of a codified constitution
one document
easily accessable to citizens
implies constitutional rules are higher than all other laws
features of an uncodified constitution
not written down
some parts can be written down and others just exist
constitutional laws have the same status as ordinary laws
uncodified constitutions examples
Britain, Israel and new Zealand
divine right of kings
monarch believed they were chosen by God
royal prerogative
power+authority belonging to monarch alone
why was the signing of the magna carta so significant
limited authority of monarch
how did magna carta help establish rule of law
prevented the king being above the law
how did the case of proclamations (1610) weaken the royal prerogative
parliament gained power
king couldn’t change common law
what led to the petition of right (1628)
parliament refused to pay charles 1 for war with france king tried forcing people for funding
what did the petition of right impose (1628)
no taxes levied without parliaments consent
no imprisonment without cause
when did the UK adopt a codified constitution
after the execution of charles 1
why didnt england’s codified constitution last
under richards control the republic fell apart
why is the bill of rights so important to our uncodified constitution
transferred power from monarchy to parliament
why did parliamentary sovereignty make having a codified constitution less likely
not possible to entrench higher laws in codified constitution as long as parliament can make/unmake any law
5 sources of the British constitution
statute law common law conventions authoritative works european law and treaties
what is statute law
law created by parliament
acts approved by commons,lords and monarch
how is statute law implemented
by the executive+enforced by courts
why is statute law the supreme source of constitutional law
because parliament is sovereign
important historical constitutional acts
Great Reform Act 1832
Parliament Acts 1911/49
ECA 1972 (treaty of rome into uk law)
recent examples of constitutional reform
Scotland Act 1998 (scottish parliament created)
HRA 1998 (ECHR into uk law)
FTP 2011 5 year elections
how was the franchise extended in 1832
lowered property requirements
common law
law coming from general customs,traditions or decisions of judges
how do judges in the uk establish a legal position where statute law is absent or unclear
judicial review
how does the government of the day overturn common law precedent
parliament is sovereign and statute law is supreme so gov can pass an act of parliament
example of a convention that has been accepted as legally binding thus become a common law
royal prerogative
what does the power of royal prerogative include
appointment of ministers+prime minister
royal assent on legislation
declare war+negotiate treaties
what royal prerogative power was ended by the fixed term parliament act 2011
power to dissolve parliament
convention
rules considered to be binding but are not codified or legally enforcable
2011 cabinet manual
a single document containing conventions
how do conventions have such authority
their usage over an extended period of time
example of a convention
monarch must give their assent to acts of parliament
no monarch has refused since 1707
queen anne scottish militias
example of a relatively new convention
Gordon Brown, UK will not delcare war without parliamentary vote
where can common law be found
court records,reports and books
which courts have the power to establish precedents
court of appeal (criminal+civil)
supreme court
relationship between statute and common law
statute law takes precedent
main difference between conventions and law
conventions aren’t legally binding
can only be ‘political punishments’
examples of authoritative texts (3)
Walter Bagehot ‘The English Constitution’ 1867
Erskine May ‘A treatise on the law,privelages,proceedings and usage of parliament’ 1844
A.V Dicey ‘An introduction to the study of the law of the constitution’ 1885
authoritative texts
books written by constitutional experts
act as guides containing key principle
European Union Law
european law takes precedent over UK law
unitary state
sovereignty is located at the centre
central gov has supremacy over other tiers of gov
what was be the impact on the sources of the constiution if the UK leave the EU
EU law wouldn’t take precedent over UK
what did May’s Great Repeal Bill include
UK would incorporate all existing EU law into UK statute law
4 key principles which underpin the UK constitution
unitary state
parliamentary sovereignty
rule of law
parliamentary gov under constitutional monarchy
sovereignty
legal supremacy
what is parliamentary sovereignty constructed around (3)
parliament legislate on any subject
legislation can’t be over turned by higher authority
no parliament can bind its successors
what has raised questions about the doctrine of parliamentary sovereignty
EU membership
devolution
referendums
example of devolved powers
under new labour
scottish parliament granted tax varying powers
rule of law
relationship between state and citizens
what are the three main strands of rule of law (according to A.V Dicey)
no one punished without trial
no one is above the law
civil liberties
fundamental individual rights and freedoms that ought to be protected from interference or encroachment by the state
what is the traditional british constitution (unitary or not)
unitary
features of a unitary constitution
weak regional gov
local gov has little power
how did Vernon Bogdanor describe the UK as opposed to a unitary state
‘nation of nations’
what did the glorious revolution of 1689 establish
supremacy of parliament over the monarchy
cabinet government
executive power is with a group of people not just one
under the doctrine of collective responsibility
strengths of the UK constitution
adaptability
strong government
accountability
weaknesses of the UK constitution
outdated+undemocratic
concentration of power
lack of clarity
explain how adaptability is a strength of the UK constitution
constitution evolved along with the times
is pragmatic+organic
don’t need super majorities
prevents conflict
explain how strong government is a strength of the UK constitution
easier for gov to implement their political objectives
legislation doesn’t have to comply with a higher rule
explain how outdated and undemocratic is a weakness of the UK constitution
the royal prerogative (outdated)
hereditary principle hard to justify in a liberal democracy
explain how concentration of power is a weakness of the UK constitution
too much at centre
combination of parliamentary sovereignty and uncodified constitution
gov with large majority can force through legislation
seen as ‘elected dictatorship’
explain how lack of clarity is a weakness of the UK constitution
not always clear if gov has acted unconstitutionally
rights and responsibilities of citizens isn’t clear
example of a group wanted constiutional change
charter 88 (now unlock democracy)
what were the four areas of constitutional reform that labour were promising in the run up to the 1997 general election
modernisation
democratisation
decentralisation
rights
modernisation
insitutions such as parliament need reform
democratisation
electoral reform
more referendums
decentralisation
devolving powers to scotland wales+northern ireland
rights
strengthen and safeguard them
constitutional reform act 2005
bought changes to the judiciary
why was not a lot of constitutional reform achieved during browns times in government (07-10)
economic crisis and its impacts
new labours constiutional reforms under the rights theme
1998 HRA
2000 FOI
new labours constitutional reforms under the devolution theme
NRA primary legislative power
WA secondary power
directly elected mayor
new labours constitutional reforms under the electoral reform theme
new system for devolved assemblies, EP and elected mayors
what did the human rights act do
enshrineed most pro
examples of some rights the HRA protects
right to; life fair trial private+family life freedom of thought/expression
what do all bills in westminster have to comply with
HRA
when can there be temporary exemptions from bills not being compatible with HRA
times of crisis e.g 9/11
allowed the detention of foreign nationals suspected of terrorist activity
asymetric devolution
political arrangments are not uniform
west lothian question
why should scottish MPs be allowed to vote on english matters in westminster
english MPs cant vote on devolved scottish matters
what power did Blair give to the london mayor
environmental and transport
resulting in congestion charges
london assembly was created for scrutiny (mayor gaining power)
parliamentary reform to the lords
house of lords reform 1999
abolished the right of all but 92 hereditary peers
what were the recommendations put forward by the 2009 reform of the house of commons committee which came into force (weren’t that signifcant)
chair of select committee elected by backbenchers
petitions committee selecting e-petitions
what happened as a result of the constitutional reform act 2005
supreme court in 2009
removed judicial role of HoL
enhanced seperation of powers
reduce role of lord chancellor
can the supreme court strike down legislation
no
example of constitutional reform which wasn’t passed during coalition government
reducing the number of MPs
protection of freedoms act 2012
offered people more protection from the state
more scrutiny e.g of data collection
house of lords reform act 2014
peers could be removed for not attending/criminal offenc
right to retire/resign
by 2016 54 resigned
4 removed- non attendances
wales act 2014
further devolution to wales
e.g control of smaller taxes
english votes for english laws
only english MPs should be allowed to vote on matters affecting england only
first used jan 2016
english MPs vote on housing and planning bill
Scotland act 2016
Gained control of 50% VAT levies
Implication Scotland becomes more responsible
Given control over electoral system
More power for Scotland could help satisfy some of the independence voters
How does a codified constitution tackle the idea of an ‘elected dictatorship’
Sets limits on the power of the executive
Introduces more checks and balances
What’s the danger with a codified constitution
Only reflects the mood of the times, opinions often changes
E.g US difficulty over second amendment right to bear arms
Who would gain more power from a codified constitution
Judges
Should the UK codify it’s constitution (YES)
Logical after all the recent reform
Greater clarity
Reference for courts
Limit state power
Should the uk codify it’s constitution (NO)
Pragmatic adaption has worked well
No agreed process on how to do it
No consensus on what it should include
Difficult to amend
‘Reviving the health of our democracy’ by electoral reform society
What did they argue
Constitution should be remodelled on:
Active participation+engagement
Fair representation
Good governance
What changes were suggested by electoral reform society under encouraging active participation and engagement
Simplify voter registration
Lower voting age 16
Wider use of e democracy
Opening candidate selection
What changes were suggested by electoral reform society under delivering fair representation
Electoral reform
Redrawing election districts
What changes were suggested by electoral reform society under providing for good governance and restoring trust
Complete lords reform
Modernising the commons
Enhancing local democracy
