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AS Politics Unit 2 > The Constitution > Flashcards

The Constitution Flashcards

1
Q

What is a constitution?

A

A system of rules specifying how a state is governed and which:
·seeks to establish the duties, powers and functions of the various institutions of government
·regulates the relationship between institutions and among the institutions
·define the relationship between the state and the individual, that is, the extent of civil liberty

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2
Q

Types of constitution

A

They can be classified in 3 main ways:
·As codified and unmodified constitutions (ours is unmodified - not written in one document)
·As unitary and federal constitutions (ours is unitary - power resides with Parliament. Federal - constitution split between national gov and individuals).
·As rigid and flexible constitutions

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3
Q

Separation of the powers in the USA

A

Separate 3 key elements of power:
Executive
Legislature
Judiciary

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4
Q

The UK has a

A

fusion of powers

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5
Q

British Constitution

A

No separation of powers, meaning one person can sit in more than one part of the government, e.g. Executive and Legislature.

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6
Q

Our constitution is

A

unwritten. It’s unmodified - written in different sources. Some people say that if it’s not written in one source, it’s not ‘written’. You have varying sources to grow your knowledge - our sources of understanding.

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7
Q

The Royal Prerogative

A

Powers which have always been held by the Monarch, until its powers were passed on to government in 1688. They are passed onto the PM, therefore they are a source of the constitution.

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8
Q

Statute Law

A

has to go through government, whereas Common Law through Parliament.

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9
Q

Sources of the UK Constitution

A

Statute Law
Common Law
Conventions
Works of constitutional authority (there are 2, one of which Dicey wrote)
EU Law and Treaties (EU treaties are codified, as is our version of the Bill of Rights - the Human Rights Act)

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10
Q

Parliamentary sovereignty

A

All law-making powers reside in Parliament.

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11
Q

Principles of the constitution

A

This is a value system, something you abide by. With no written constitution, there’s a debate surrounding what its principles and purposes are.
In theory they are:
The sovereignty of Parliament
The rule of law - law applies to everyone, no matter who you are
The separation of powers
Responsible government

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12
Q

We have an organic constitution,

A

which means it’s able to adapt over time, meaning it’s a living document.

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13
Q

Features of a written/codified constitution

A

A codified constitution is one which is written in a single document (single source). This makes it easier to read, with less confusion.
Two-tier legal systems, this means higher laws concern constitutional arrangements, such as who has power, and the relationship between institutions, (these are entrenched).

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14
Q

In the US, they have

A

a separation of powers, which avoids the concentration of power into the hands of a single person or group.

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15
Q

Why is there no separation of powers?

A

Montesquieu argued the best safeguard to freedom was to ensure that those making the laws (legislature) should not also have the power to carry them out (executive).
Similarly, those enforcing the law (judiciary) should be independent. This prevents one institution from becoming too powerful.
Bag shot argues the British system is not a separation but a fusion of powers.

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16
Q

The 6 sources of the constitution are

A 
Common Law
Royal Prerogative
Treaties and laws of the EU
Works of authority
Statute Law
Conventions
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17
Q

Statute law

A

An Act of Parliament. It’s a written law which has been passed (approved) by Parliament and enforceable in courts of law. For example, Habeas Corpus Act 1679 (protection against wrongful imprisonment).

18
Q

Common law

A

Made by judges. It arises out of the custom that a decision made by one court of law, must be followed by others. Judges are bound by legal precedents. For example, civil liberties.

19
Q

Royal Prerogative

A

A set of privileges or powers held by the Monarch. Today, they have mainly passed to government ministers. For example, declare war and control and manage the civil service.

20
Q

Conventions

A

A practice which, through custom, is considered the appropriate behaviour. For example, individual and collective ministerial responsibility.

21
Q

Works of Authority

A

help work out appropriate constitutional procedures. For example, Erskine May’s Parliamentary Practice and A.V.Dicey.

22
Q

Treaties and laws of the EU

A

now form a significant additional source of the UK constitution. For example, Maastricht Treaty.

23
Q

The Bill of Rights

A

The first 10 amendments of the US constitution, setting out civil liberties.
Article 1 - Congress (it represents the people)
Article 2 - President
Article 3 - Supreme Court

24
Q

The constitution harms:

A

The EU (but Brexit means this will change)
Referendums
Powers of the PM

25
Q

Kryptocracy

A

rule by unelected judges

26
Q

Decentralisation

A

when power is shared out and given to local areas

27
Q

Which bills did Blair do?

A

Terrorism Bill
Devolution
House of Lords Act -got rid of hereditary peers
The Good Friday Agreement

28
Q

Principles of the constitution

A

The sovereignty of Parliament (all law-making powers reside in Parliament)
EU (pooled sovereignty - shared sovereignty between the 28 EU members)
Referendums
Prime Minister
The rule of law
The separation of powers
Responsible government (holding people to account)

29
Q

Two tier legal systems

A

These are legal gatekeepers - those who protect the rights enshrined in the constitution (US Supreme Court)

30
Q

Judicial review

A

This is when a challenge is made by a citizen or association against an action or law by a public body.

31
Q

To make an amendment in the US, you need

A

2/3 approval from Congress as a whole, to do so.

32
Q

Should we have an unwritten constitution?

A

Yes:

  • It’s less rigid/concrete - there’s an opportunity to interpret it, based on the circumstances, meaning it’s flexible.
  • There’s no chance of it being outdated.
  • It’s organic - it develops over a period of time. It can capture wisdom/become stronger as it grows.
  • It’s relatively easy to change.
  • It’s flexible - so it’s good in times of crisis.
  • ‘It ain’t broke.’
  • Civil liberties are protected.

No:

  • No protection for civil liberties.
  • It can become outdated.
  • It’s a clear set of rules, which can be referred to.
  • There’s a lower chance of ambiguity, if it’s not in one place, the public won’t understand it.
  • Can be updated to take into account the changes of attitudes of society.
  • It places emphasis on the rule of law.
  • Harder to change, there are 27 amendments in the US Constitution.
  • It’s too flexible for governments to change.
33
Q

Should the UK’S Constitution remain uncodified?

A

Yes:

  • t’s harder to change, there are 27 amendments in th US Constitution.
  • The Human Rights Act is protected under the uncodified constitution (eg right to family life and freedom from torture). David Miranda was held for 9 hours at an airport and used the HRA to protect his civil liberties. Abu Qatada and Abu Hamza’s rights were also protected under it. However, the HRA isn’t entrenched.
  • The Bill of Rights undermines parliamentary sovereignty (our version of this is the Human Rights Act).
  • Brexit

No:

  • The Terrorism Bill 2005/2006. The EU undermined UK law regarding detaining people as suspected terrorists.
  • The Patriot Act - US’ version of the Terrorism Act. It is flexible - it took 45 days after 9/11 to go through and become legislation.
34
Q

Which areas (of British policy) does the EU have virtually no jurisdiction over?

A
  • Devolution
  • Education
  • Transport
  • Voting systems
  • Health
35
Q

There are some areas where jurisdiction has virtually passed largely to the EU. These include the following:

A
  • Trade
  • Farming and agricultural policy
  • Immigration
36
Q

Pooled sovereignty

A

Shared power between all of the EU nations.

37
Q

Lost sovereignty

A

Power has been lost when it has been passed to the EU.

38
Q

EU and UK law

A

EU laws are superior to the UK law. This was established in 1990 in the Factortame Case (Regina vs Secretary of State for Transport) in the appeal court of the House of Lords.

39
Q

Factortame Case

A

Famous case that although it’s about fishing, overall it’s about sovereignty. It’s an example of loss /pooling of sovereignty. It was the last case to challenge UK parliamentary sovereignty, post EEC membership.

40
Q

So does the EU affect parliamentary sovereignty? Does power ultimately remain in the hands of the British government?

A

The EU affects parliamentary sovereignty, but it depends on your perspective. Some say the power is lost because they are anti-EU, they think the power has been stolen.
Some say the power has been pooled because they say they signed up to be a member of the EU, so think the power has been shared out between all of the EU members.

Interference - lost power
Intervention - pooled power

41
Q

Referendums

A

The number of referendums used in the UK has increased over the past decade. Referendums decrease apathy and increase democracy. These include the following:

  • AV 2011
  • Scottish independence September 2014
  • EU membership 2016

AS Politics Unit 2 (1 decks)

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