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
