The Constitution - unit 2 Flashcards
Definition of a codified constitution
Written in a single authoritative document - it above statute law with entrenched provisions
It is also judiciable - where all political bodies are subject to the authority of the courts
Definition of an uncodified constitution
Not contained in a single written document
Definition of entrenched vs unentrenched
An unentrenched constitution has no special procedure for amdendment, unlike entrenched which requires separate rules and procedures for the amdendment
Magna Carta
- 1215
- A royal charter or rights agreed to by King John, forced upon him by 25 rebel barons who were unhappy with the overtaxation and abuses of power
- Promised the church rights, protection of barons for illegal imprisonment, limitations of feudal but most importantly access to swift justice and a fair trial
- Very important contribution to civil liberty - provides some protection to the citizen over imprisonment and established the principle that the king should respect the rule of law
Henry VIII breaks with Rome and uses Parliament to do it
- 1533
- Severed links with the pope to enhance his power
- Use Parl law making powers and established Parl as main law making body
Bill of Rights
1689
James II provoked Parl by practicing Catcholicism his first act was a British Bill of rights where the king or queen could not:
- Interfere with the law
- Establish tax without an act of Parl
- Interfere in parliamentary elections
- Question freedom of speech used in Parl
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The Great Reform Bill
- Extended rights to vote to all men who owned property
- Transformed the english class structure
- Abolished ‘rotten boroughs’ so contituency more uniform
Representation of the People Act 1918
- Men aged over 21, whether or not they owned property got vote
- Women aged over 30 who resided in consituency or occupied land or premises with a rateable value above £5, or whose husbands did
- Women wouldn’t get the vote till 1928
UK join the European Community (now known as the EU)
- Econ and political partnership involving 28 european countries - countries that trade together are unlikely to go to war together
- Since grown to become a single market allowing goods and people to move around - own currency, the euro, its own parliament and now sets rules inn a wide range of areas
- Sov to UK diminishes
Withdrawal from the EU
- Article 50 triggered by May
- Left Jan 2020
- End primacy of EU law in the UK
- You can kinda see where this is going - they needed parliamentary approval for this
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functions of the constitution
- Determines how political powers should be distributed within the state
- Determines the balance of power between institutions of gov - pm, crown, cabinet, parl
- Establishes political processes that make system work - including relationship between institutions that govern how they operates
- Asserts the rights of citizens in relations to state
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The nature of the UK Constitution
- Uncodified - no single legal code or document
- Not entrenched - can be altered relatively easily by a simple majority vote in Parliament and highly flexible - it is not protected by a special arrangement which makes it legally very hard to change (usually a referendum is proposed for a constitutional changed)
- Unitary - sovereignty is traditionally been located at the heart of the country - Westminister
Definition of parliamentary sovereignty
The idea that ultimate political authority lies with Parliament which exercises that authority on behalf of the people who elect it
Definition of legal sovereignty
Where ultimate and legal supreme authority lies
EG Parl suspends part of the HRA through derorogation - use of control orders breached the compatability of the Counter Terrorism Act 2005 with Article 5 of the HRA
Definition of political sovereignty
- Ability to exercise legal power - reality of matters instead of pure principles
EG Parliament to abolish HRA - met with opposition in the UK and internationally difficult
Definition of popular sovereignty
- Will of the people listened to and acted upon to maintain peace and ideas for the UK democracy
EG Large maj of MPs ‘remain’ in EU - Parliament vote to trigger Article 50 becuse of the will of the people in referendum
Definition of pooled sovereignty
Parliament can choose to share power with others - UN, EU, NATO
EG UK used to be a member of the EU and shared powers over certain issues - EU decisions Parliament HAD to follow
Rule of Law
This ensures the UK political system is bound by law, and that everyone is equal under those laws, and bound by them.
Unitary constitution
Political power lies in one single body and all other political bodies are inferior - France - Parlement Francais - french 5th republic consisting of the senate and the national assembly, Westminister
Federalism
Defines legal power between a central body and regional bodies - meaning different areas of power are controlled by the national body from the capital and regional bodies that govern a local area
EG USA, Germany
Quasi-federalism
A system of devolution where where it is unlikely or difficult for power to be returned to a central gov that it is, to all intents and purposes, a federal system even though it is not in constitutional terms.
Some devolution from Westminister
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Sources of the British constitution - Statute
A law passed by Parliament
All legislation must have the approval of Parliament : crucially ones that regulate the constitution itself
EG Scotland Act establishing a Scottish Parliament that holds some powers previously held by Westminister
Sources of the British constitution - Constitutional conventions
Customary and accepted practices that have evolved over many years, so they represent something fixed by tradition
EG The Salisbury Convention -
The House of Lords should not block any legislation that appeared in the governing party’s most recent election manifesto
Sources of the British constitution - Authoritative writing
Work written by experts describing how a political system is run, which are not legally binding but are taken by significant guides
There are a number of these which can offer definitive views on political institutions written by experts
EG Thomas Erskine May’s Treatise upon the Law, Privileges, Proceedings and Usage of Parliament is seen as the definitive guide to the rules of conduct for the members of Parliament
Sources of the British constitution - Common law
A law made by judges in their rulings on specific cases. These rulings have traditionally been made to help other judges with their deliberations on similar cases. Much common law derives from decisions made centuries ago.
EG Right of free movement for public demonstrations, crown cannot detain citizens without trial
Usually concerns protection of basic rights and freedoms from encroachment from parliament or gov
Sources of the British constitution - Treaties
Formal agreements with other countries
EG Maastricht 1992 - which transformed European Community from an economic alliance into the EU which was political. Those who supported Brexit felt this undermines sov of brit parl and so preparations to leave involve another treaty
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Arguments FOR a codified constitution
- Difficult for the constitution to adapt to reflect the needs of the 21st century Britain. The archaic nature of the constitution has prevented Britain from reforming
EG the repeated nationalisation and denationalisation of the steel industry from the late 1940s to the mid 1980s may have contributed to Britain’s demise as a steel producer - The unwritten constitution provides insuffecient and ineffective ‘checks and balances’ on Executive power. The rise of party politics and party government have weakened Parliament’s ability to ensure accountability and concentrated power in the PM’s hands that have led to a growing threat of civil liberties
EG Blair’s 2005 Prevention of Terrorism Act undermined civil lib which were not protected enough in the uncodified constitution - Human rights are under threat - Labour’s constitutional reforms suggest that there will have to be some written constitution to sort out the array of changes (the HRA already providing a type of constitution by the back door)
EG Con party trying to introduce ‘British Bill of Rights’
The HRA remains weak and can be overriden by Parl. No parliament is bound by its predecessor, but could be bound by a codified constitution
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Arguments AGAINST a codified constitution
- Brit changing society better served with a flexible unwritten constitution rather than the opposite. Its flexibility and its adaptability is its strength, it is organic and rooted in society, not kept separate.
EG quick response to 9/11 when it came to anti-terror legislation - An entrenched one would be difficult to reform, mistakes would take years to rectify
EG The debate in the USA over the 2nd amendment rights of citizens has inhibited gun control despite 85% of americans favouring background checks for gun buyers in 2018 - in Brit, the law was easily changed to ban the ownership of handguns a year after the Dunblane Massacre in 1996 - Would give non-elected judges undue influence on political issues (judicial tyranny) - a codified constitution would transfer sov to judges who are not elected - they would be able to judge on whether laws were constitutional are not
Comparison of the US and UK Constitution - Sovereignty
USA - There is no single institution holds sovereign power - the president needs support from Congress and vice versa, whilst they both fall under the scrutiny of the SC
UK - Parliament is sovereign - however, Parliament can be controlled by the PM if they hold a majority
Comparison of the US and UK Constitution - Separation of powers
USA - There is no overlap in personnel between the exec, leg, judic
UK - separation of powers - judges are appointed by royal prerogative and parliament can be dominated by the executive
Comparison of the US and UK Constitution - Nature of Power
USA - Federalism - The fed, state and local gov all have constitutionally guaranteed powers
UK - Unitary system of gov - power is concentrated in the centre
Comparison of the US and UK Constitution - Role of Head of State
USA - The president is the Head of State as well as the Head of Government
UK - The Monarch is the head of state - really little power - the PM is the Head of Gov
Comparison of the US and UK Constitution - Prerogative powers
USA - All powers are set out in the constitution, although custom has led to the development of minor powers such as executive orders and agreements
UK - Most of the powers of the monarch are now controlled by the PM - referred to as royal prerogative powers
Comparison of the US and UK Constitution - Rule of Law
All are equal under the law and the gov must respect the laws when making decisions and taking action
Comparison of the US and UK Constitution - Codified/entrenched
USA - Codified in the Bill of Rights and subsequent amendments - the constitution is entrenched - would take a 2/3 maj and approval of 3/4 of the states to make amendments
UK - Not codified or entrenched - exists in statute law, common law, royal prerogative, conventions, authoritative works and EU law
