the constitution Flashcards
What is a constitution?
A body of laws, rules and practices that sets out the way in which a state or society is organised
What does a constitution establish?
The relationship between state and it’s citizens and also between the various institutions that constitute the state
How is the constitution a defence mechanism in liberal democracies?
Defence against any abuse of power by the state it’s institutions and officials, providing a system of limited government
In many countries, how can the judiciary use the constitution?
As a tool when deciding wether or not the state has acted in a manner which is lawful and legitimate and when it’s been unconstitutional
How are constitutions inherently political and not neutral?
Their impact upon day to day politics and aren’t neutral due to the framework they provide
What is a codified constitution?
All the fundamental roles that govern the operation of a given state are set out in one authoritative document
Why is the US codified constitution described with a capital C?
They assume an almost iconic position in the nations psyche
What is an uncodified constitution?
It has no single source for the rules and principles that govern the state- they are found in a number of different places
How is the UK’s constitution being described as ‘unwritten’ misleading?
Whilst it is true that the nations constitutional practices aren’t in a single document, many are ‘written’ in common law and others in statute law
When are codified constitutions generally produced?
At a critical juncture in nations history
What are three examples of creations of codified constitutions?
Newly found independence( US 1789), period of authoritarian rule (Spain 1978) and war/ occupation (West Germany Basic Law 1949)
How are political institutions established through constitution?
They have afforded the status of fundamental law, or higher law, placing it above ordinary law made by the legislature
What does codified constitutions being invariably entrenched mean?
Special procedures are needed for amendment, requiring a supermajority far in excess of 50% in the legislature and/or approval by national referendum
How is there sometimes flexibility in codified constitutions?
While the 1958 constitution of the French Fifth Republic has been amended 17 times in 50 years , there’s only been 17 amendments of the US constitution since first ten amendments were ratified in 1791
What does the U.K’s constitution being uncodified mean it can be amended by?
A single act of Parliament due to parliamentary sovereignty holding legislative supremacy
What is the evidence for there being no constitutional no go areas in the UK’s uncodified constitution?
18th century constitutional lawyer William Blackstone once put it ‘Parliament can do everything that is not naturally possible’
What are the five sources of the U.K. constitution?
Statute law, common law, conventions, authoritative works( works of authority) and European Union law and treaties
What is statute law created by?
Acts of Parliament being approved by the House of Commons, the House of Lords and the monarch before given force of law
Who is statute law implemented and executed by?
Implemented by the executive and enforced by the judiciary
How are all acts of Parliament not of constitutional significance ?
Not all Acts of Parliament have a bearing on the fundamental relationship between state and institutions of state eg Dnagerous Dog act 1991
What are three examples of statute law that has historical importance?
Great Reform Act 1832, Parliament Acts 1911/49 and European Communities Act 1972
What are three recent examples of statute law that have had historical importance ?
Scotland Act 1998, Human Rights Act 1998 and Fixed Term Parliament Act 2011
What does common law include ?
Legal principles that have been discovered, developed and applied by U.K. courts
How do senior judges clarify common law and when ?
Senior judges use power of judicial review to clarify or establish a legal position where statute law is absent or unclear
How can parliament overturn common law ?
Due to parliamentary sovereignty and and supremacy of statute law
How due to common law holding less supremacy mean courts can only rule something as unlawful when incompatible with the Human Rights Act?
UK courts can never really be said to have declared the governments actions unconstitutional
What foes common law also refer to ?
Customs and precedents that unlike regular conventions have become accepted as legally binding - known as royal prerogative
Why is royal prerogative
Powers exercised in the name of the crown
What are the three traditionally powers included in royal prerogative ?
Appoint ministers and choose the prime minister, give royal assent to legislation and declare war and negotiate treaties
How have over time prehistory powers been exercised by government ministers in the name of the crown?
Power to dissolve Parliament was ended in fixed term parliament act 2011- just as constitutional reform and governance act 2010 put parliamentary scrutiny on a statuary basis
What did the papers release in 2013 about what the monarch was asked to do?
Approve bills relating to prerogative powers and was advised by the government to withhold consent to a 1999 private members bill which transferred power to declare war from monarch to parliament
What are conventions?
Rules or norms of behaviour that are considered to be binding
Although conventions aren’t codified or legally enforceable what did the Cabinet Office Manual do in 2011?
Bring together many of these conventions in a single document, adding yet another written source to the constitution
What gives conventions their authority?
Their usage over an extended period of time
What is an example of convention?
Monarch must give consent to acts of Parliament- no monarch has refused since 1707 when Queene Anne refused to approve the Scottish Militias Bill
What are works of authority ?
A handful of long established legal and political texts that have come to be accepted as the reference points for those wishing
What kind of status do authoritative works have?
They have no formal legal status but have ‘persuasive authority’
What does Erskine May’s A treatise on the law, privileges, proceedings and usage of Parliament (1844)?
It’s regarded as the bible of parliamentary practice, providing a detailed guide to its rules and practices
What does Walter Bagehots the English constitution( 1867) set out?
The role of the cabinet and the prime minister, describing the former as the ‘ efficient secret of the English constitution’ and the latter as ‘ first among equals’
What does A.V. Diceys an introduction to the study of law of the constitution (1885) focus on?
Parliamentary sovereignty and the rule of law. It’s described as a system of responsible cabinet government in a priamnetary democracy with a constitutional monarchy
Following what act, when did The UK join the European Economic Community?
European Communities act 1972, the U.K. became a member on 1 January 1973
How did it later become the European Union?
It was later renamed the European Community and then after the Maastricht Treaty came into force in 1993 the European Union
What happened to UK constitution when the European Union was created ?
Treaties establishing the EU, legislation emanating from the EU, and the judgements of the ECJ have all become part of the British constitution
What did the Treaty of Rome establish in 1958?
Incorporated into U.K. law at the time of o. Joining the EEC, European law takes precedence over U.K. law
What would BREXIT do about European Law in the constitution?
It would remove it from the U.K. constitution
What four key principles underpin the U.K. constitution?
Parliamentary sovereignty, the rule of law, a unitary state and parliamentary government under a constitutional monarchy
How is parliamentary sovereignty the cornerstone of the U.K. constitution?
Sovereignty means legal supremacy, so the doctrine of parliamentary sovereignty holds that the Westminster Parliament is the supreme law making body
What three interconnected propositions is legislative supremacy constructed around ?
Parliament can legislate on any subject of its choosing, legislation cannot be overturned by any higher authority and no parliament can bind its successors
What is the rule of law?
Defines the relationship between the state and its citizens, ensuring that state action is limited and responsible
A.V. Dicey (1885) what three main strands does the rule of law have?
No one can be punished without trial, no one is above the law, and all are subject to the same justice and 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 the law, the courts can hold government ministers, police officers, and public officials accountable, law passed by Parliament must be interpreted and applied by an independant judiciary and citizens can take government or a local authority to court if they have been treated improperly
How is the rule of law essential for a liberal democracy?
Although parliamentary sovereignty theoretically enables parliament to abolish these rights, any sustained effort to overturn key elements of the rule of law would be seen as illegitimate and anti democratic
What does it mean that the traditional British Constitution is a unitary constitution?
Although the U.K. consists of four component nations it has been a highly centralised state in which legal sovereignty is retained by the Westminster Parliament
What is a unitary constitution?
Sub national institutions do not have autonomous powers that are constitutionally safeguarded, regional government may be weak or non-exist and local government has little power
How is power shared in a federal constitution such as Germany or the USA?
Between national and regional governments- each tier of government is given specific powers and a significant degree of autonomy
How does Professor vernon Bogdanor put it about a ‘nation of nations’?
A unitary state exhibits a high degree of both centralisation and standardisation: all parts of the states are governed in the same way and share a common political structure
What is contrasted in a union state?
Important political and cultural differences remain
How do these asymmetries reflect the different ways in which The U.K. came together?
Wales was invaded by England, Scotland joined the union through an international treaty and Northern Ireland remained let of the U.K. after the stab ligament of the Irish free state
How did political and cultural difference survive?
Scotland kept its own legal system, Wales remained its own language and Northern Ireland maintained its separate institutions and political parties
By the second half of the twentieth century, how were each nation represented in London?
A government department headed by a cabinet minister but these departments were relatively weak and political power was concentrated at the centre
How does government take place through parliament under a constitutional monarchy?
Government ministers are politically accountable to parliament and legally accountable to the Crown, and must face the verdict of the electorate every 5 years
How has the balance of power between the different institutions of the state altered over time?
The glorious revolution of 1689 established the supremacy of parliament over the monarchy
How did after the glorious revolution 1969 did the key conventions of the monarchy gradually fall into place?
The monarch retained formal powers eg assent to legislation
How was usage of the constitutional monarchy restrained?
The extension of franchise enhanced the House of Commons ; it had overtaken the House of Lords as the predominant legislative chamber
What other factors constrained the constitutional monarchy?
Political parties emerged as key actors in the conduct of government. The FPTP electoral system and two party system tended to produce single party government
What does the majority government do under the constitutional monarchy?
Majority party controlled the cabinet and exercised considerable discipline over its members in the House of Commons
By the mid nineteenth century what was the U.K. political system deemed to be by A.V Dicey?
Cabinet government- cabinet was then a key making policy body
The UK’s traditional constitution is known as the Westminster model?
This describes the workings of the British political system and claims that this is how a political system ought to operate
Strengths of the U.K. constitution : how does the U.K. constitution have adaptability?
U.K. constitution has evolved gradually in the face of changed circumstances.
Strengths of the U.K. constitution : what has adapted in the U.K. constitution?
Pragmatic reforms , introduced where there is a clear case for change, have enabled the constitution to adapt without the need for parliamentary supermajority or approval by means of a referendum
Strengths of the U.K. constitution : due to the adaptability of the constitution what does the conservatives tend to view it as?
View it as “organic” living body of rules, rather than an artificial creation
Strengths of the U.K. constitution how does the constitution create a strong government?
Although the doctrine of parliamentary sovereignty dictates that the legislature holds supreme authority in the political system the executive is where day to day power resides de facto
How does the executive hold day to day power?
The process of government is conducted by political parties - the cabinet is party based and the governing party generally exercises control over legislative process in House of Commons
Strengths of the U.K. constitution : how does the constitution hold accountability?
The government is accountable to both parliament which scrutinises its activities, and the wider electorate in general election
Weaknesses of the U.K. constitution: how is it outdated and undemocratic?
Key elements of common law, notably the royal prerogative, date back to the medieval times
Weaknesses of the U.K. constitution: how is power dangerously concentrated at the centre ?
There was few safeguards against the arbitrary exercise of state power. Parliamentary sovereignty and the absence of a codified constitution means that even the key tenants of the rule of law aren’t fully protected
Weaknesses of the U.K. constitution: how is there a lack of clarity in the nature of the uncodified constitution?
Created problems of clarity and interpretation as it’s not always immediately clear where a government of the day has acted unconstitutionally
Weaknesses of the U.K. constitution: how is the lack of clarity mean the government can act mysteriously?
Used control in the legislature to pass new acts that overturn unfavourable rulings in the courts. The rights and responsibilities of citizens are poorly defined and entrenched, making it difficult for citizens to engage
What four interlocking themes was Labours 1997 general election constitutional reform based on?
Modernisation, democratisation, decentralisation and rights
What does modernisation involve?
Institutions such as parliament, the executive and civil service were using outdated and inefficient procedures that demanded reform
What did democratisation involve?
Participation in the political process would be encouraged through electoral reform and greater use of referendums
What does decentralisation involve?
Decision making powers would be devolved to new institutions in Scotland and Wales, with the role of local government also being enhanced
What did rights involve?
The rights of citizens would be strengthened and safeguarded
What was the main convention of rights brought in under New Labour ?
The human rights act (1999) enshrined most provision of European Convention in Human Rights
What rights were protected by the convention of the human rights act (10)?
Right to life, right to liberty and personal security, right to fair trial, respect for private and family life, freedom of thought and expression, freedom of peaceful assembly and association, right to marry and start a family, freedom from torture and degrading treatment and freedom from discrimination
What does the Human rights act require?
All legislation is compatible with the ECHR. All bills at Westminster are reviewed by lawyers to ensure they are HRA compliant
Before the human rights act came into force how were cases heard?
By the European court of human rights in Strasbourg
What powers do and don’t UK courts have in Human Rights Act?
Can hear cases under ECHR, can’t automatically overturn legislation they deem incompatible - it’s up to ministers to decide wether or not to repeal the offending statute
What do signatories to the ECHR have the right to request?
A derogation (temporary exemption) from its provisions where they are facing a crisis that threatens the security of the nation
In the wake of 9/11 what did the government force derogation of?
Article 5 of the ECHR (right to liberty and security) in order to allow detention of foreign nationals suspected of terrorism
What other act was introduced under new labour involving rights?
Freedom of information act 2000 gives greater access to information held by public bodies
In 1999 where was power devolved to?
New institutions in Scotland , Wales and Northern Ireland following yes votes in referendums in each nation
Th new system was of asymmetric devolution meaning what ?
The devolved bodies have different powers and distinctive features
What powers was Scottish Parliament given ?
Primary legislative powers across a range of policy areas at a time of its creation alongside tax varying powers
What did the Scotland act 2012 grant?
Parliament tax raising powers
Together with Scottish government it is now the responsibility of Scottish Parliament to make policy on what issues?
Education health and local government etc
What brought the West Lothian question into focus ?
Granting a wide range of powers to vote on laws that no longer directly affect their constituents
What are the powers of the Welsh assembly like ?
Initially weaker than Scottish Parliament, it had secondary legislative powers but no primary legislative authority
What does having secondary legislative powers mean ?
It could only fill in the details of and implement legislation passed by Westminster in policy areas such as education and health
What powers was the Northern Ireland assembly granted ?
Legislative powers over a similar range of policy areas to the Scottish Parliament but does not have tax raising powers
What term do some people attach to the New Labours devolution programme?
‘Quasi federalism’
How did tony Blair’s government also make changes to the local government in England?
Most notably in the capital where a new directly elected mayor of London was granted significant power in areas such as environment. And transport
What did change of local government result in the latter of?
Congestion charge for motorists entering London and the creation of the London assembly , a body to scrutinise the mayors actions
Outside of London what was reform in local government?
All local authorities were obliged to reform those political management, with the government keen to extend the elected mayors model beyond London
By 2016 how many mayors were there nationwide?
17
What did the 1998 Jenkins report , the product of the Independent Commission on the voting system established by the Labour government recommend?
Replacing the FPTP system used in Westminster Parliament to as system known as alternative vote
What happened to labour and the suggestions of the av vote ?
They failed to act on its central recommendation
What are three examples of different voting systems used in the U.K.?
Scottish Parliament (AMS) hybrid , Northern Ireland Assembly STV proportional and EU parliament regional party list proportional
What was the main parliamentary reform under New Labour government ?
House of Lords act 1999
What did the House of Lords Act 1999 involve?
Abolished the right of all but 92 hereditary peers to sit and vote in the House of Lords meaning the lords is now made up of mainly life peers and no political party has overall majority
What was the main problem with the House of Lords act?
The government made very little progress with the second stage of the reforms which would have settled the final composition and powers of the reformed House of Lords
Why did the second stage of the House of Lords act come to a hault?
There was a division between the Commons and the Lords on how reform should progress, with the Commons generally favouring a partially or entirely elected second chamber and the lords favouring appointment
How were labours initiatives to reform the House of Commons also unconvincing ?
Changes to PMQ time and working on the hours of the commons were unspectacular
What did Gordon Browns ‘governance of Britain ‘ green paper aim to?
Limit the powers of the executive and make it more accountable to parliament albeit tangible progress stalled in the face of the global financial crisi
When did the recommendations of the 2009 reform of the House of Commons committee was charged by who and came into force in what year ?
Chaired by Tony Wright and came into force in 2010 general election but
How could the changes made to the reform of the House of Commons 2009 be hardly considered of great constitutional significance ?
Chairs of select committees to be elected by backbenchers, backbench business committee to determine the business of the House Of Commons for 1 day a week, a petitions committees to select issues for debate that have been suggested by the public via e petitions
What did the constitutional reform act 2005 focus on?
Judicial reform
When was the Supreme Court introduced and what role was it given?
October 2009, became the UK’s highest court and removed the judicial role of the House of Lords enhancing separation of powers
What dosent the Supreme Court have the authority to do?
To strike down legislation
The constitutional reform act also reduces the role of what?
Lord chancellor removing the roles as head of the judiciary and speaker of the House of Lords , enhancing separation of powers
What are three examples of constitutional reform that was successful in the 2010-15 coalition ?
Establish a commission on a British Bill of Rights, reported inconclusively in 2012. Set 5 year fixed term parliaments fixed term parliament acts 2011 and freedom bill- protection of Freedoms Act 2012
What are two examples of constitutional change failure in the 2010-15 coalition?
Reduce number of MP’s- rejected in wake of Lords reform reversal. Equalise the size of constituency electorates- also rejected in wake of Lords reform reversal and establish greater power for local government - little progress
What happened in the fixed term parliament act 2011?
The act established a pattern of fixed general elections every 5 years, starting in 2015, removing the ability of the PM to call elections at a politically advantageous time
What is an example of an event that proves there is limitation to the fixed term parliament act?
Calling an early election in 2017- Theresa may
What happened in the Scotland Act 2012?
Act gave the Scottish government the power to vary income have up or down by 10 pence in the pound and devolved further powers to Scottish government, including area of regulation of controlled drugs
How much money did the Scotland act 2012 allow Scottish government to borrow per annum?
£2.2bn
What happened in the protection of freedoms act 2012?
Offered citizens greater protection from the state by putting in place proper scrutiny of the security services and oversight of surveillance and data collection
What happened in the House of Lords Reform Act?
Act aimed at halting the inexorable increase in the number of those eligible to sit and vote in the House of Lords, by giving existing peers the right to resign or retire their seats in the chamber
What else allowed peers to be removed by the House of Lords reform act?
As a result of serious criminal offences or non attendance
How many peers were removed under the terms of the act by 2016?
54 , with a further four removed as a result of non attendance
What happened in the Wales Act 2014?
Transferred control of some smaller taxes to devolved institutions in Wales.
What else did the Wales Act 2014 put in place ?
A mechanism by which devolution of other Lower level taxes could be developed, with the approval of Westminster Parliament
What did the Wales Act 2014 change legally?
It provides legal framework required for a Welsh referendum on the partial devolution of income tax
What did the Wales act 2014 change the name of the Welsh Executive from to?
From the welsh assembly to the welsh government
What did the Conservative government post 2015 say in their manifesto regarding constitutional reform?
Lords reform was ‘ not a priority in the next parliament’
In the 2 years of taking office in a single party government, what did the Conservatives deliver?
Delivered on most of the election promises it hade made in the field of constitutional reform
What was established in 2016 under the Conservatives?
Scotland act 2016
What was established in 2017 by the conservatives?
The Wales Act 2017 which gave the Welsh Assembly tax raising powers, further cementing the primary legislative authority
What report was made in 2013 regarding English Votes for English Laws?
Report of the Commission on the Consequences of Devolution for the House of Commons
What did the 2013 report recommend?
That only English MP’s should be allowed to vote on measures which were identified as only affecting only England
When was English Votes for English laws first used?
2016, when only those MP’s representing English constituencies were permitted to vote on some elements of a Housing and Planning Bill
What 8 main things happened in the Scotland Act 2016?
Setting the rates and thresholds of income tax, caters and disability benefits worth around £2.7 billion, areas of equal opportunities policy, crown estate, air passenger duty, aggregates levy, £4.5 bn vat and new welfare powers to top up and create benefits
Arguments in favour of a codified constitution: what is the main argument regarding law?
There would be greater clarity on what is and what isn’t constitutional as the rules would be set out in an authorities document, reducing the ambiguities that exist in the current uncodified constitution
Arguments in favour of a codified constitution: how would Rights of citizens be protected ?
A codified constitution would tackle centralisation of power by setting limits on the power of the executive and introducing more effective institutional checks and balances
Arguments in favour of a codified constitution: in drawing up a codified constitution how would there be a greater thought to the core principles of the constitution?
The process of drawing up the new constitution would also educate citizens and proponents hope, providing greater values of citizenship whilst adding legitimacy
Arguments against a codified constitution: what would codification of the constitution remove?
Flexibility and adaptability that is seen as a key strength in the uncodified constitution
Arguments against a codified constitution: how are codified constitutions impractical over time ?
The codified constitution may reflect the mood of the time when it was produced
Arguments against a codified constitution: how are constitutions rigid?
They are hard to change
Arguments against a codified constitution: what do critics argue about codification and where it places power ?
Places too much power in the hands of judges because they would be called upon to determine wether laws and political processes are constitutional
Arguments against a codified constitution: how would the position of judges change ?
They would become overtly political and would reduce faith in the legal system
Arguments against a codified constitution: how would the constitution be incompatible with British values?
It would be incompatible with parliamentary sovereignty by setting limits on the powers of the legislature and the executive - codified couldn’t be entrenched or have status of fundamental law
Arguments against a codified constitution: Why is it not necessary in present day?
Pragmatic adaption has worked well and is preferable and there’s no great popular demand and other issues are more important
In 2013, what did the Electoral Reform Society publish arguing arrangements should be remodelled for constitutional change ?
Reviving the Health of
Our democracy
What did the health of our democracy suggest change in?
Active participation and engagement , fair representation and good governance
What does active participation and engagement involve?
Giving everyone the opportunity to shape the decisions that affect their lives
What does fair representation involve ?
Ensuring our institutions reflect the people they serve, their choices and identities
What does good governance involve ?
In the form, function and culture of democratic decision making
How has simplifying voter registration been modified since the 2013 report?
The system was changed from a household based system of registration to individual voter registration
What did simplifying voter registration result in?
It is far from improving electoral participation, it actually led to a fall in voter registration
How was lowering voter age to 16 approached after the 2013 report?
16 year olds were allowed to vote in the Scottish independence referendum but were not given a voice in the 2015 general elections or 2017 U.K. wide EU referendum
How was making wider use of e-democracy approached after the 2013 report?
Online petitions, citizens assemblies, and citizens juries have all been trailed
How was opening up candidate selection approached after the 2013 report?
Although the major parties dalliance with primaries, public hustings and one member one vote offered the prospect of wider access to elected office, the reality is that in spite of a large number of female MP’s being elected their socioeconomic profile hasn’t been altered
How is electoral reform approached after the 2013 report ( fair representation)?
There has been no process towards the alternate vote especially after the 2011 av referendum
How has redrawing electoral districts been approached after the 2013 report (fair representation)?
Boundary commissions have made proposals that would see a move towards more equal parliamentary constituencies ahead of the 2020 general election with consultation on those proposals under way in 2016
How has completing lords reform been approached after the 2013 report (providing for good governance and restoring trust)?
The second stage of lords reform was promised in 1997 was no closer in completion than in 1999 and 2014
How was modernising the commons approached after the 2013 report (providing for good governance and restoring trust)?
There’s been some efforts to regulate lobbying and reform party funding since 2013 but too little movement has been made to restore trust. The recall of MP’s act 2015 also fell short of expectation
How has enhancing local democracy been approached since the 2013 report (providing good governance and restoring trust)?
Devolved institutions in Scotland and Wales have seen their powers extended, in both scope and depth
What have writers such as Vernon bogdanor have suggested about route for constitutional reform?
Might be to establish a US style constitutional convention
