The Nature and sources of the British Constitution Flashcards
What is a constitution?
A constitution is a set of rules that sets out the powers and functions of various government institutions.
Usually contains instructions for governance
What is a Codified Constitution?
Where it is all written in one place and defines the entire governance structure and process.
What is separation of powers?
Separation of powers is the separation of elements of government (Executive, Legislature, Judiciary).
Horizontal serperatio of powers between the branches of govt
Vertical between levels of govt.
How and why is separation of powers conducted?
Separation of powers is instigated to ensure one arm of the government doesn’t gain too much power over one another. An example of this is the US president can propose a law but congress must vote for it. The president has to sign it into law and so can refuse but congress can veto this with a supermajority.
To ensure no branch can disregard others.
How and Why are constitutions entrenched?
Constitutions are entrenched through the high boundaries that are set for amending the constitutions. These are entrenched to protect minority groups.
What are fundamental/ higher laws? Why?
A the laws in the constitution are referred to as higher laws because they cannot be contradicted by laws passed by the government unless it is in the form of a supermajority. This is to act as a restriction on the powers of the executive and legislature.
An ordinary law is a general peace of legislation
What is the doctrine of higher sovereignty?
The doctrine of higher sovereignty is the giving of authority from the people to be ruled under the way that the constitution defines. It relates to the idea that true sovereignty is vested in the people.
The US bill of rights- what is it and why is it significant?
The bill of rights protects minorities from exploitation by majorities and the government. Includes the rights of the people to protect each other.
What is a liberal democracy?
A liberal democracy is a democracy style which combines liberal philosophy with the organisation of democracy.
Why are constitutions such an important feature of liberal democracies?
This protects citizens from laws which unfairly treat other groups. Also in forms of checks and balances- for example: ‘Defence of marriage act’ - defined marriage as an act between a man and a woman - US v Winsor - 5th amendment - against the rights of the gays so it was blocked. This is important because constitutions outline the relationship between those in power and those not.
Are uncodified constitutions common?
Codified constitutions are much more common as they usually follow significant political change and as many countries usually undergo this then it is likely they will have adopt one. IE USA after war of independence.
UK and New Zealand are in the minority constitution gang.
What is the royal prerogative?
The powers and authority belonging solely to the monarch above all others. Stems from the divine right of kings which was considered the right of monarch to rule England.
Why was the assize of Clarendon so essential to the establishment of common law.
It ordered a number of judges to travel the kingdom and establish specific laws across the country. Gave judges the right to create common law.
How was the Magna Carta significant?
It established the precedent that the kings power could be restricted.
Also established the rule of law
How did the case of proclamation (1610) further weaken royal prerogative.
It stated that the king was not allowed to change common law, nor create an offence without the permission of parliament.
What led to the to the petition of rights- 1628. What limits did it impose on the monarch?
Kings exploiting their powers (Charles I) and needed parliaments support. Eventually agreed to ratify the petition and agree to 4 significant restrictions.
- No taxes without parliament’s consent.
- No imprisonment without cause.
-No forced stationing of soldiers in citizens homes.
-No use of martial law during peacetime.
When and why did England adopt a codified constitution and why didn’t it last?
After Charles I abdicated and Oliver Cromwell became lord protector he installed ‘the instrument of government’ and this was Englands first written constitution. This didn’t last because the constitution soon fell apart after Cromwells death and so Charles II became king.
What is the Bill of Rights 1689?
On condition of accepting the monarchy Charles II had to accept the Bill of rights which mandated regular sessions of parliament, established rights and liberties and transferred sovereignty to parliament.
Why did parliamentary sovereignty make a codified constitution less likely?
The constitution became whatever parliament said it was so therefore it is impossible to entrench further.
A current parliament cannot bind a future parliament
If all statutes are part of the constitution what are constitutional statutes?
Key statutes like the Magna Carta and Bill of Rights are constitutional because of their increased significance in the legislative process.
CRA 2005 provides another example where the function of the judicary is specifically outlined.
1998 HRA also.
What is the Act of settlement 1701 and why is it important?
It established new rules for royal succession. Banned catholics acceding to the throne. Senior Judges would now keep positions until death unless of ‘bad behaviour’.
What are the ‘Laws in Wales acts’ and Acts of union such significant statutes.
Made Wales part of the Kingdom. Acts of union united English and Scottish parliament but not legal systems.
What are and why are the Parliament acts 1911 and 1949 important?
They blocked the power of the lords to block legislation and only gave them the power to delay for 2 years which was then reduced to 1 year. They could VETO any bill extending the life of parliament for more than 5 years.
Why are the reform acts and representation of the people acts so constitutionally significant?
Lowed the age of franchise eventually for both genders to 18.
What are treaties and why are they an important source of the UK constitution?
They are important because they form international law by contract which is negotiated by different countries. Like the 1707 treaty of union.
European Convention of Human Rights.
Why did they treaty of Ascension and European communities act have such a big impact on the UK constitution?
The latter was the vessel through which the UK joined the EU and as that came with submitting under the European Parliament then it which provided lots of legislation for the UK. EU law became supreme.
Established legislative basis for EU to established and legally protect rights of UK citizens.
What is retained EU legislation?
Retained EU legislation is legislation which means former UK laws made by the EU would be retained but those made after would not be installed into UK constitution. This was facilitated by the 2018 withdrawal act.
What is common law?
Only higher courts in the UK can create common law (Supreme Court and court of appeal (civil division and criminal division)).
Originting from circuit judges- legal precedents which informs the implication of statutes and laws.
Which courts have the power to establish precedent?
Supreme Court and Court of appeal which has a civil division and criminal division.
What is the relationship between statutes and common law?
Statutes override common law which acts to fill in the gaps between the law.
How does common law influence the interpretation of statutes?
Past interpretations of statutes are the most definitive answers to legal questions.
What is the royal prerogative
the powers and authority recognised in common law still belong to the monarch. This is exercised by the Prime Minister (by convention) on behalf of the Executive branch.
How is the boundary of royal prerogative defined?
Through common Law and Statutes but statutes override common law.
Theresa May was reprimanded by the SC for negotiating the exit from the EU using royal perogative. This triggered article 50 which removed the rights of UK citezens which have become UK law following the European community’s act
What is the relationship between royal prerogative and statutes?
The royal prerogative is overridden by statutes but statutes are passed by the monarch.
What are constitutional conventions?
Non legal rules which are considered binding. breaking the law leads to clearly defined punishments however conventions are more fluid.
Breaking a convention is likely to have a political response rather than a legal one.
What is an example of a constitutional convention which evolved quickly?
the Salsbury convention states that the HoL should not defeat or heavily amend legislation from an election manifesto.
What is an example of a convention which evolved slowly over time.
Royal assent. this is now always given and the last time it was not was in 1707- over 300 years.
What steps can be taken if conventions begin to be ignored.
Individual ministerial responsibility (Gavin Williamson) is established that a minister responsible for a scandal should be held responsible through their resignation. this is subjective.
What is the 2011 cabinet manual an why is it significant
Individual ministerial responsibility- conventions.
A guide to the workings of cabinet and sets our the conventions which are an element of the unmodified constitution.
Chapter was re-published when the outcome following 2011 election suggested there would be no clear leader.
What are examples for an authoritative text on the constitution?
Books written by constitutional experts like ‘the English constitution’ 1867. ‘An introduction to the study of law and the constitution’ by A V Dicey.
What are the 4 sources for parliamentary procedure?
Statutes (Parliment act(s) which limit the power of the HOL.
Ancient customs and parliamentary practice. Leader of largest party becomes PM.
Standing orders (formal rules agreed by each member).
Rulings from the chair (as a judge).
what is the difference between legal sovereignty and political sovereignty.
Parliamenty sovereignty is that parliament can make and unmake any law.
There is no legal limit to laws which cannot be unmade. there are political limits to what a government should do if it wants to get re-elected.
Why can’t parliament bind its successor?
If parliament can make or unmake any law then they therefore cannot bind a future government.
What is implied repeal?
When a new law overlaps a previous one then the overlapped area of the previous law is considered repealed because it has no standing as previous parliaments cannot bind future parliaments.
According to Dicey what are the main 3 principles of law
Rule of law over dominance over arbatory power.
Equality before the law
supported by the nature of the constitution.
Lord Bindhams principles key to conception of law
- accessible, clear and predictable.
- predominant over power.
- No one is above the law.
- Judge must be able to review ministers.
- Adequate human rights protection.
- requires equal access to court.
- rights to a fair trial
- applied equally throughout the land.
How is the UK’s constitutional monarchy different to both absolute monarchies and republics.
Absolute monarchy is when a monarch isn’t bound by a constitution and has absolute power.
Republic is a country with no monarch and an elected head of state like France.
constitutional monarchy is when a monarch is the head of state but an elected parliament has sovereignty. A constitutional monarch has three rights- to be consulted, to encourage and to warn.
Why did Bagehot describe the monarchy as ‘dignified’ rather than ‘efficient’.
Efficient is working and functional which is the historical role of the holder of the royal prerogative which is now the Prime Minister whereas dignified is ceremonial.
