The British Constitution Flashcards
What is a constitution?
A constitution outlines the rights, values and responsibilities of citizens and the state and the relationship between the two.
e.g. US constitution 1787 established America’s national government and fundamental laws, and guaranteed certain basic rights for its citizens.
What is a written consituition?
In countries that have experienced rapid change through war, invasion or revolution these values are sometimes summarised in a single document e.g. in the USA and France). This is referred to as a “written constitution”.
Unwritten constitution
In the UK there is no single document but rather several sources that contribute to the British consituition. - unwritten constitution
British constitution is made up of
Statute - acts of parliament
Common law - judge made or case made
Conventions - customs and traditions
Treatises - authoritative books on constitutional law e.g.g parliamentary practice by Erskine May
Treaties - EU and other international agreements
1215 Magna Carta
established for the first time the principle that everyone, including the king, was subject to the law.
Seen as the cornerstone of the br constitution and established that all free men had the right to justice and a free trial.
For the first time it gave some protection for individuals against the arbitrary authority of the despot
1689 Bill of Rights
established the doctrine of ‘parliamentary sovereignty’ - the monarch can only rule through parliament
fundamentally shifted the balance of power away from the monarch and towards parliament
Some people argued that membership of the EU and the pooling of sovereignty on certain issues was a violation of the principle of parliamentary sovereignty.
Conflict on parliamentary sovereignty - Human Rights Act 1998
Incorporated ECHR into Br law. There have been clashes between parliament and ECHR most recently on the UK’s blanket ban on allowing prisoners to vote, which ECHR has ruled contravenes the convention.
18th Century philosopher Baron de Montesquieu recommended a tripartite separation of powers
The executive (gov ministers), legislature (HOC) and judiciary. This was to stop the state from becoming too powerful and to protect the rule of law from gov interference.
the executive - consists of the PM and the Cabinet. Most of these are also MPs so also form part of the legislature.
the legislature - consists of members of the hoc (mps) and the hol who make new laws.
The judiciary - consists of the Supreme Court and other judges.
Pros/cons of written constitution
One possible advantage of an unwritten constitution is its flexibility in that it can change with changing times.
For example in the United States, which has a written constitution, attempts to tighten gun control laws have floundered on the Second Amendment of the Constitution, which is interpreted as giving the right to individuals to bear arms. This amendment was written in 1791 when single shot muskets and flintlock pistols were common weapons.
In contrast in the UK gun control laws were quickly tightened after the Dunblane school massacre in 1996.
One possible disadvantage is that the flexibility and ambiguity on an unwritten constitution may not give adequate protection of individual liberty.
For example in 2011 the UK government set up the Leveson Enquiry to investigate the culture, practices and ethics of the British press following the phone hacking scandal.
Some people argued that this was an infringement by the state into freedom of speech and that such an investigation would be prohibited in the United States because of the First Amendment of the Constitution, which prevents the government from abridging freedom of speech or freedom of the press.
