The Constitution Flashcards
Nature of the constitution?
What two principles are the “twin pillars of the constituion”
Unentrenched - can be overturned by successive Parliaments
Uncodified - not consolidated in a single place,, formed of a variety of sources
Unitary - sovereignty lies with one institution - Parliament
“The rule of law and parliamentary sovereignty” - A.V. Dicey
1st constitutional document
Magna Carta - 1215
What are the 5 sources of the British constitution
Statute law i.e. Representation of the People Act, HRA - big ones
Conventions - i.e. Salisbury Convention, referenda needed for big constitutional changes, collective responsibility
Common law - convention established through court rulings
Authoritative works i.e. Blasckstone’s “Commentaries” clearly defined parliamentary sovereignty in 1765
Treaties - Lisbon Treaty (until 2020), ECHR
What does the Constitution set out?
Distributes sovereignty
Sets out electoral and legislative processes
Specifies citizen’s rights and limits on government
Examples of powers delegated by the royal prerogative
Commander-in-chief
Appointment of Cabinet
Proroguing Parliament
Appointing Ministers
What is devolution,, what is it not?
The dispersal of power to different regions,, it is not the dispersal of sovereignty which is unitary with Parliament.
More or less constitutional reform? What would the 3/4 main clash points be
Devolution
Electoral reform - voting systems and House of Lords
Judiciary and rights - HRA and CRA
Parliamentary change
Laws and referenda establishing devolution outside England
1997 - Scottish and Welsh Parliaments established
2016 - The Scotland Act greatly increased devolved powers (“Devo-max”)– increasing income tax variance, abortion laws, entrenched the Parliament - short of a referendum otherwise
The Senned originally had no, then limited, primary legislative powers. Since the Wales Act of 2017 it has been able to vary income tax, electoral systems and energy infrastrucutre.
NI gained devolution in 1998 as part of the Good Friday Agreement. They have legislative powers e.g. education and policing but haven’t been able to use them much – the Executive is currently in abeyance due to disagreement and the UK steps in in the meantime.
What was the solution to the “West Lothian question” until 2021 - when it was repealed
The West Lothian question - Why do Scottish MPs get to vote on England-only laws? English votes English laws was implemented by Cameron but scrapped due to being inefficient and mocked by SNP
Examples of devolution in England? Have they been successful?
Northeast regional assembly was strongly rejected in 2004
EVEL was scrapped in 2021
Mayoral elections have low turn out ~ 25%
Referenda on whether to have elected mayors have been rejected 37 / 53 times
Recent example that Scotland is only quasi-federal
Sunak using Section 35 to block the Gender Recognition act
What are reserved powers, what are their opposites
Reserved for government exclusively - commonly immigration, monetary policy etc
Devolved - free to legislate on by devolved assemblies
Examples of successful electoral reform
Senned and Holyrood use AMS, Stormont uses STV, and even select committees use AV to elect members.
The Jenkins report recommended New Labour to switch to AV+
There is now a convention of large constitutional change requiring a referendum.. as it did for AV in 2011
Where has electoral reform lagged behind?
General elections remain under FPTP, leading to the 14 million lost votes last election
Jenkins report by Blair for short-term gains.
Elections Act 2022 requires photo ID - may disenfranchise some voters
Also abolished SV for PCCs and London Mayor
2011 AV referendum was a complete failure - easily criticised as “undemocratic, obscure and unfair” by David Cameron
Has House of Lords reform gone far enough – what would the next steps be
House of Lords Act 1999 removed all but 92 hereditary peers. Was a step forward but didn’t stop the problem of Cash/ Loyalty for Peerages - started with Blair and is present through today. A further attempt to reform was blocked by a backbench rebellion - started by Nick Clegg
Next steps forward would be removing the final hereditary peers, removing the incentive of political patronage or just replacing with an elected system
Since 1997, has the judiciary become more or less independent and powerful - why?
More independent. Since the CRA 2005 the Supreme Court is no longer in the HoL. Also, its chief is independentt, not a member of Parliament as the Lord Chancellor was. It can also use the HRA 1998 to back up its rulings now.
How could you further make the power of Supreme Court stronger
Only real way would be to formally entrench it or codify it - impossible in our system
Example of the Supreme Court being overruled by a Sovereign Parliament
Belmarsh case 2004 - ruled ECHR incompatible with Blair’s indefinite detainment of terrorist suspects – ultravires.
Blair responded with the Prevention of Terrorism Act 2005
When was the Freedom of Information Act passed - what was its intention and has it been used
2000 - allowed people to request access to information of most public bodies, with exceptions - has shown excessive public-executive pay, MPs expenses/ gifts (Gordon Brown £732 ink cartridges) wastes of taxpayer money on failed projects…
What did Blair say about the Freedom of Inforation Act
He regretted it - saying it impeded on confidentiality… he introduced it to help accountability
How have House of Commons processes been reformed - 4 examples
Recall of MPs Act 2015 - increases accountability - used on Chris Davies in 2019 post expenses scandal
Fixed-Term Parliaments Act 2011 - legislated an election be held every 5 years… didn’t work and was repealed
2009 - Brown enacted the Wright Committee recommendations and enstated:
The Backbench Business Committee to reduce executive dominance
Made Select Comittees elected - not whipped which greatly increased their confidence
Biggest constitutional reform in the past few governments
Brexit - left many treaties and are currently going through many laws that we kept in order to avoid constitutional holes
Which main political parties are agaisnta codified constitution
Labour and Conservative
Arguments for a codified Constituion
Could enshrine rights i.e. no Bill of Rights vs ECHR
Ultimate check and balance on excessive government power i.e. unneeded prorogation or discriminatory legislation
Simplicity and clarity - how does it work and what rights do i have made easier
Rationality - Amendments would be structured and sensible addendums rather that reactionary bollocks. Moreover, these would be properly entrenched
Tear down and counter-arguments for a codified constitution
Rights - are already well protected and upheld by a more independent judiciary
Ultimate check - Is this needed - twin pillars of our constitution are sovereignty
Properly entrenched rational amendments - increasing use of referenda mean more changes are virtually entrenched. GOvernments change and laws should reflect that
Flexibility - our “organic constitution” can adapt to laws rather tahn constrict the mandate of an elected government… terror laws passed quicker in UK than other countries… quicky adapted to the 2010 coalition or changes in convention
Exec. power/ courts - has been granted through votes, likely because people like their policies and manifesto. In a codified system this power may shift to courts who are unelected
Pragmatism - As Joshua Rosenberg pointed out, there is a huge opportunity cost of time and resources to codifying our constitution that could cut back on vital services. Plus, its worked for us so far. Look at how much work and confusion has already come from conversion of UK law to Eu regulations and then it’s constantly changing… this would be amplified
