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.
What is a Codified Constitution?
Where it is all written in one place and defines the entire constitution.
What is separation of powers?
Separation of powers is the separation of elements of government (Executive, Legislature, Judiciary).
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.
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.
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.
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.
What is the royal prerogative?
The powers and authority belonging solely to the monarch above all others.
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.
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.
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.
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.
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.
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.
