The Constitution Flashcards
When are codified constitutions generally produced in the wake of? Give an example for each.
Newly found independence (US Constitution 1789)
Period of authoritarian rule (Spanish Constitution 1978)
War and/or occupation (West Germany’s Basic Law 1949)
Why type of constitution does the UK have?
Uncodified
What is an uncodified constitution?
No single authoritative document.
Rules and principles governing the state are found in a number of sources, both written and unwritten.
What is a codified constitution?
The rules and principles governing the state are collected in a single authoritative document: The Constitution
What sources is the UK constitution drawn from?
Statute Law Common Law Conventions Authoritative works European Union law and treaties
What is statute law?
Law derbies from Acts of Parliament and subordinate legislation
Name 3 examples of statute law that have been of historical importance
Great Reform Act 1832 - extended the franchise
Parliament Acts 1911 + 1949 - established House of Commons as dominant chamber in parliament
European Communities Act 1972 - UK joined European Economic Community + incorporated Treaty of Rome into UK law
Name 3 recent examples of significant statute law
Scotland Act 1998 - created Scottish Parliament
Human Rights Act 1998 - incorporated the rights set out in the European Convention on Human Rights into UK law
Fixed-term Parliaments Act 2011 - established fixed 5 yearly elections to the Westminster Parliament
What is Common Law?
Law derived from general customs or traditions and the decision of judges
What is judicial review?
In the UK - the power of senior judges to review the actions of government and public authorities and to declare them unlawful if they have exceeded their authority
Why do senior judges in the UK’s higher courts use their power of judicial review?
To clarify or establish a legal position where statute law is absent or unclear
What is the phrase ‘common law’ also include? Give an example.
Customs and precedents that, unlike regular conventions, have become accepted as legally binding.
E.g. Royal prerogative - the powers exercised in the name of the Crown.
What powers are traditionally included within royal prerogative?
Appoint ministers and choose the prime minister
Give royal assent to legislation
Declare war and negotiate treaties
Who normally exercises many of the powers of royal prerogative?
Government ministers in the monarch’s name
How has royal prerogative been limited?
Fixed-term Parliament Act 2011 - ended prerogative power to dissolve parliament
What are conventions?
Established rules or norms of political behaviour that are considered to be binding however they are neither codified nor legally enforceable
What did the 2011 Cabinet Office Manual do?
Brought together many conventions in a single document, adding another written source to the UK constitution
What gives conventions their authority?
Their usage over an extended period of time
Give an example of a convention and when it was refused
The monarch, by convention, must give their assent to Acts of Parliament.
No monarch has refused to give their assent since 1707 when Queen Anne refused to approve the Scottish Malitias Bill
If the monarch refused a bill today there would be a constitutional crisis
Give an example of a new, recent convention
When he was Prime Minister, Gordon Brown announced that the UK would not declare war without a parliamentary vote
What is an authoritative work?
A long-established legal or political text that has become to be accepted as the reference points for those wishing to know precisely ‘Who can do What’ under the UK constitution
Hold no formal legal status but do have ‘persuasive authority’
Give an example of an authoritative work
Eskrine May’s ‘A treatise on the law, privileges, proceedings and usage of Parliament’ - 1884
Walter Bagehot’s ‘The English Constitution’ - 1867
A.V. Dicey’s ‘An Introduction to the Study of the Law of the Constitution’ - 1885
What are the 4 key principles that underpin the UK constitution?
Parliamentary Sovereignty
The rule of law
A unitary state
Parliamentary government under a constitutional monarch
What is parliamentary sovereignty?
The doctrine that parliament has absolute legal authority within the state.
It enjoys legislative supremacy - parliament can make law on any matter it chooses; its decisions can’t be overturned by any higher authority and it may not bind its successors.
What is the rule of law?
Defines the relationship between the state and the individual is governed by law, protecting the individual from arbitrary state action.
According to A.V. Divey, what are the 3 main strands of the rule of law?
No one can be punished without trial.
No one is above the law, and all are subject to the same justice.
The general principles of the constitution, such as personal freedoms, result from judge-made common law, rather than from parliamentary statute or executive order.
What does the rule of law mean in practice?
Everyone is equal under law.
The courts can hold govt ministers, police officers + public officials accountable for their actions.
Laws passed by parliament must be interpreted + applied by an independent judiciary, free from political interference.
Citizens can take the govt or a local authority to court if they feel they have been treated improperly.
What is a unitary state?
One in which sovereignty is located at the centre. Central government has supremacy over other tiers of government, which it can reform or abolish.
A centralised and homogenous state - political power is concentrated in central government and all parts of the state are governed in the same way.
What happens in a unitary constitution?
Subnational institutions do not have autonomous powers that are constitutionally safeguarded.
Regional government may be weak or non-existent.
Local government has little power.
Who is power shared between in a federal constitution?
Shared between national (federal) and regional (state) governments.
What can each tier of government in a federal constitution not do?
Can’t abolish any other tier of government.
Who saw the UK as a union state and what did they describe it as?
Professor Vernon Bogdanor: ‘Nation of nations’
What is the difference between a unitary state and a union state?
A unitary state exhibits a high degree of both centralisation and standardisation: all parts of the state are governed in the same way and share a common political culture.
In a union state, important political and cultural differences remain.
What caused the political and cultural differences to remain in the UK?
The way parts of the state were united. Wales was invaded by England, Scotland joined through an international treaty and Northern Ireland remained in the UK after the establishment of the Irish Free State.
What is a constitutional monarchy?
A political system in which the monarch is the formal head of state but the monarch’s legal powers are exercised by government ministers.
By the mid-19th century the UK political system was what according to A.V. Dicey?
A cabinet government - A system of government in which executive power is vested not in a single individual but in a cabinet whose members operate under the doctrine of collective responsibility.
What is the Westminster model?
A form of government exemplified by the British political system in which parliament is sovereign, the executive and legislature are fused and political power is centralised.
