The Constituton Flashcards
What is a constitution?
As set of rules that sets out the powers and functions of various government institutions, as ell as the rights and liberties of citizens.
Explains how the country should be governed.
Constitutions establish clear limits on government power
What is a codified constitution?
A constitution that is contained in a single document that was created at a particular time.
The term also implies that a codified constitution contains a set of laws that that are superior to all other laws and that cannot be amended except by a special procedure that safeguards them.
Constitutions are vital component of liberal democracy.
What is liberal democracy?
Democracy: Rule by the people
Representatives are chosen in regular & fair elections with universal suffrage.
Liberalism: Freedom and Equality
Limited government - clear limits are placed on government power.
What does entrenched mean?
A constitutional principle whereby constitutional rules are safeguarded against change by a future government or legislature
It means in practice that constitutional change requires special arrangements which are more difficult to make than the passage of normal laws.
The UK Constitution is not entrenched as PARLIAMENT can change it by a simple act. However most democratic constitutions are entrenched in some way.
What is Parliamentary sovereignty?
Give an example.
This principle, established after 1689, means that the UK parliament (not the Scottish Parliament) in Westminster is supreme within the political system.
Only parliament can grant power to other bodies and it can legislate on any matter it wishes. It laws cannot be overridden by any other body, even the government or the monarch.
It also means that the current Parliament cannot bind any future parliaments. Each newly elected parliament is sovereign and cannot be bound by what has gone before.
Example: Ellen Street Estates v.Minster of Health (1934)
- acquisition of land act (1919); Created a scheme to compensate people wen their land is acquired for public purposes - stated that other statues “ shall have effect subject to this act”
- housing act (1925); Established a less generous compensation scheme that confiscated with the 1919 act
- did not expressly repeal the acquisition of land act (1919)
- which act applies?
- the courts argued that by introducing a new compensation scheme, it was implied that parliament intended to repeal and replace the existing scheme.
What is an uncodified constitution?
Where the laws, rules and principles of how a country is governed are not collected in a single document.
What is the royal prerogative?
Power and authority recognised as belonging solely to the monarch, above all other people.
What is the Magna Carter?
In wha t year did it occur?
1215
A written agreement, signed by King John and the Tenants-in chief in 1215, in which the King agreed to particular limits on his authority as monarch.
Established the prince that regal authority could, and should be limited by the will of the people (or at least at this time by rich and powerful people)
It established the rule of of law should apply and the monarch should operate within the framework of law.
It was to be centuries before this principle became Normal practice, but Magna carter was an important staging post in the development of constitutional rule.
Little in Meagan Carter has survived, save for a fewcommons law traditions and some principles which have been turned into statue law.
However it was a key moment in history.
What is the Rule of Law?
No one as above the law - including the Monarch.
No one should have arbitrary powers
‘Free men’ should be judged by their peers, according to the laws.
What was the Bill of Rights (1689)?
Imposed substantial limits on the royal prerogative.
Parliaments consent was now needed to levy taxes, repeal law, and maintain an army during peacetime.
Required regular sessions of parliament, free elections & freedom of speech during debates.
Established some individual rights and liberties e.g freedom from excessive fines and cruel and unusual punishments.
It transferred Constitutional supremacy from the monarchy to parliament
Parliament was now sovereign - it can make or unmake any law and could not be challenged by any other institution.
The courts accepted this ne settle the, recognising that
Explain the following terms: Statue Law Treaties Common Law Royal Prerogatives Conventions Authoritative texts
Statue Law: Acts passed by Parliament
Treaties: International agreements
Common Law: Law developed by the decision of judges
Royal Prerogatives : The monarch’s remaining authority and powers delegated to the prime minister
Conventions: Non-legal rules that are considered biding
Authoritative texts: Books written by constitutional experts.
Are Acts of Parliament part of the Constitution?
In theory, all acts passed by Parliament are part of the UK Constitution.
Arguably, some are more identifiable as ‘constitutional’ in terms of their consent
E.g they address the power and shape of government institutes or or citizens rights.
There is no distinction between constitutional and ordinary laws because parliament is sovereign.
Explain the Act of Settlement (1701)
Established new stature rules of royal succession:
- the act provided that any catholics, or anyone married to a catholic, be barred from ascending to the throne
It also took steps to increase judicial independence:
- protected the salaries of judges, to ensure that the threat of cuts, or promises of increases, would not be used to influence their decisions.
- parliament, rather than the monarch had to jointly agree to dismiss a judge.
- judges could only be removed from office for bad behaviour, rather tha tan for their decisions.
Explain the Parliament Act (1911) and 1949
1911:
- replace the House of Lords absolute veto over legislation with the power to delay non-money bills for 2 years
- however, the lords had no power to delay certified as ‘money bills’ by the Speaker (concern taxes and spending)
- the only bill that the lords could still veto was a bill extending the life of parliament beyond 5 years (this was designed to stop a powerful government keeping themselves in power indefinitely)
1949:
- House of Lords power to delay non-money bills was reduced from 2 years to just one year .
Explain the statue laws that reshaped the Parliament of England into Parliament of the United Kingdom of Great Britain and Northern Ireland
Laws in Wales Acts (1535 & 1542):
- made wales a full and equal part of England, extending the English legal system to wales, and allowing wales to send mps to Westminster.
Act of Union (1707):
- although England and Scotland had shared the same monarch since 1603, they were separate states with separate parliaments - these acts united the 2 states, and established the parliament of great Britain at Westminster.
Acts of Union (1800)
- untied Great Britain with Ireland - Ireland began to elect mps to represent them in the parliament of the United Kingdom of Great Britain and Ireland.
Irish Free State Constitution:
- in 1921, all but six Irish counties seceded, laving two separate nations, the Irish free state and the United Kingdom of Great Britain and Northern Ireland - this act recognised the new constitution of the Irish free state.
Explain the statues that have expanded the franchise.
The representation of the people act (1918):
Expanded the electorate to include all me over the age of 21 and most women over the age of 30.
The Equal Franchise Act (1928)
Lowered the voting age for women from 30 to 21
The representation of the people act (1969)
Extended the franchise to almost all citizens over 18
They transformed the country into a proper representative democracy.
These reforms have had a large impact on our political system, and vital to us understanding our Constituion today
Explain what the Common Law is.
Common Law: Law developed by the decision of judges.
Back in the days (around 1066) Judges relied on the customs, principles, and ancient las that had proven most effective in delivering justice.
Judges were filling in the gaps left by written laws as ell as developing a body of la that was common throughout the country.
Over time, rotten records began to be kept of judicial decisions - becoming an important source of common la principles for lawyers and other judges.
Gradually, a much more formal system of precedent as established.
When cases have similar facts and raise similar legal questions to cases decided in the past, judges must use the same reasoning as that used by the earlier court - ensuring that decisions are consistent and predictable.
What is ‘Stare Decisis?
‘To stand by decided matters’
Judges are increasingly expected to observe the common law principle of ‘state decisis’
Only the higher court (supreme court) have the power to establish precedent which the the other courts are expected to follow.
Explain Entick v.Carrington (1765)
Established an important constitutional principle.
The earl of hail, acting as Secretary of State,issued a arrant to search entick home - carrington broke in and searched it - entic sued for damages of $2000 arguing that he had no legal right to entire his property.
Carrington pointed to the search arrant, but the judge, Lord Camden held there was now law that gave the earl the power to issue such a warrant.
This landmark ruling established the principle that the state can only act in a manner prescribed by statue or common law.
Which is more powerful Statue or Common Law.
Give examples.
Parliament is sovereign therefore statues override common law.
If a statue says one thing then the statue takes precedence.
For example, in the case Entick v.Carrington (1765): In the centuries following this case, parliament has given Home Secretaries the power that the judge (lord Camden) said they lacked at the time.
Give an example of Statue Law taking precedence over Common Law.
Al Rai v.Security (2010)
- several men held at Guantanamo bay claimed compensation for their alleged detention, retention and mistreatment
- the government wanted to use a ‘closed material procedure’ (CMP)where sensitive evidence is only shown to the judge, not to the other side
- The Supreme Court ruled that allowing comps to be used in ordinary civil trails would undermine commons law principles of open and natural justice.
- the government settled the dispute outside of court, paying millions in compensation
Parliament responded to the ruling by passing…
Justice and Security Act (2013)
- permitted civil courts to order the use of closed material procedures if the disclosure of sensitive evidence would threaten national security.
- this act allowed the government to use CMP to defend itself. E.g against alleged involvement in rendition & torture
The common law is a vital source of constitutional principle but it can be overwritten by acts of Parliament.
Parliament hasn’t passed status to answer every possible legal question, so it’s still often that the decisions of past judges going back hundred of years is our most definitive source of our laws and constitution.
Judges also play a vital role in interpreting and applying important statues to particular cases.
Statues can often be ambiguously worded, and judges have developed common law principles over many years to determine how exactly judges should interpret and apply them. So in this case common law impacts the constitution because it determines how statues our interpreted.
What are the key differences between a Law and Convention?
Laws:
Certain: Status and precedent can be looked up and checked
Legally enforced: Breaking laws leads to enforce the by the courts
‘Unlawful Behaviour’
Conventions:
Uncertain: there sis no definitive source, which can lead to disputes.
Politically enforced: breaking convention only results in political difficulties
‘Unconstitutional Behaviour’
Explain the convention about the appointment of prime ministers.
By convention, the monarch asks the leader of the largest party in the h of c to from a government and become prime minster
Evolved out of the need to select some one who could form a government commanding a majority in Parliament. So it made sense if the position when to the leader of the largest party.
But this is convention evolved over time, not a law.
But when no party has a majority, as happened in 2010 there is no definitive answer on what should happen.
Journalists couldn’t just look up what should happen, they had to ask political experts to explain the various formal rules that existed by convention alone.
Explain the convention of ministerial responsibility.
Give examples.
Once the Cabinet has reached a decision it is binding on all government ministers - they must support the decision in public, or resign, if they are unwilling to.
The details of cabinet meetings, including any private disagreements, should also be kept secret.
This convention ensures that government appear unified and strong, is proving greater public confidence
But this’s is a convention, not a law…
during the 2010-15 coalition government, several minsters publicly questioned government policy and criticised their coalition partners.
There were no legal consequences but there were important political consequences.
It strained the relationship between the 2 parties trying to work together in government.
Explain the convention of individual ministerial responsibility.
The convention that minsters are accountable to parliament for their personal conduct, and for the actions of their departments.
Ministers should resign for poor behaviour or serious failings by their departments.
However, despite this convention, it is still very unclear hen and why minter should resign.
What constitutes as bad behaviour or poor per romance to warrant resignation?
What can happen is there isn’t a common agreement on Conventions?
Give examples.
Conventions rely upon common agreement - if this breaks down, a statue may b necessary to make the convention legally enforceable.
Example:
- pre-1911, there was a convention that the unelected House of Lords should not oppose the elected h of c on financial matters.
- this did not stop the h of l from blocking the 1909 budget.
- to deal with this, parliament passed the 1911 parliament act which palaces the convention on a statutory basis.
Explain the Convention of Royal Assent.
Some conventions like the royal assent have evolved over a considerable span of time.
Even after being approved by majorities in the House of Commons and House of Lords, bills still require royal assent (approval) before becoming an act of Parliament
However, as monarchs transferred greater power to Parliament, this procedure came more ceremonial.
The last time that royal assent as refused was 1707.
It can still legally happen, however it unimaginable that it would happen today given the controversy and backlash it would cause.
What is the Salisbury Convention?
The convention that the House of Lords should not defeat or wreck, any legislation that featured in the government election manifesto.
The logic, is that it would be wrong for the unelected lords to defeat measures that the public presumably voted for when supporting the majority party.
Encouraged by the Conservative leader of the House of Lords after labours landslide victory in 1945, a time when the party had only 16 peers. (Without many peers, it would appear that many of the party’s popular election manifesto policies would be defeated by the lords.
Explain ‘The English Constitution’ (1867) by Walter Bagehot.
Provided an influential plant ion of how parliamentary democracy and cabinet government actually operates.
Bagehot understanding of the principles of constitutional monarchy has also proven to be very influential - he sad that monarchs only retained the right to be consulted, the right to encourage, and the right to warn.
Explain ‘An Introduction to the Study of Law of the Constitution (1885) by A.V Dicey.
Popularised the phrase ‘rule of law’
Argued that parliamentary sovereignty and the rule of a are the core concepts of the UK Constitution.
