The uk constitution and devolution Flashcards
What is a constitution?
A set of rules and political principles determing how a state should be governed.
What are three key features of the uk constitution?
It is unintrenched, uncodified and unitary.
What is the difference between an uncodified and a codified constitution
a codified constitution is written in a single, authorative document. An uncodified constitution is not.
What is the difference between a unitary and a federal constitution?
A unitary constitutioin is where all sovreignty is concentrated within a single place, whereas a federal constitution is where power and sovreignty is dispersed accross many places.
What is quasi - federalism and how does this relate to the UK.
Although legally, westminster can strip all powers from devolved bodies at any time, it would be so difficult politically and unlikely to occur, that unoofficially the uk has a federal system.
What is an example of the unentrenched nature of the codification/ parliamentary sovreignty
The 2011 Fixed term parliamentary act removed the power of calling a general election from the PM, and stated that parliament should sit every 5 years. However, this constitutional change was unentrenched, and as parliament is sovreign the act could not bind its successor, so in 2022 the Disollution and calling of parliament act repealed the FTPA, and gave the power back to the PM in the form of the royal perogative.
What are the ‘twin pillars’ of th British Political system
Parliamentary sovreingty and the rule of law
Wht are the five sources of the uk constitution? Example for each
- Statute law - a law passed by parliament (HRA 1998)
- Conventions - an unwritten rule that is consdiered binding for members of the political community (Sailsbury convention, royal perogative)
- Authorative work - A work written by an expert, which although not legally binding is a significant guide in the absence of a codified constitution ( A.V Dicey, O’dennel rules)
- common law- law based on court decisions and precedents rather than statutes (mmostly been replaced by statues such as the HRA)
- Treaties - Formal agreements with other countries (Lisbon treaty 2007)
4.
What are the three main arguments that the uk should adopt a codified constitution?
- Checks and balances too weak.
- An uncodified constitution is unclear and relies too heavely on conventions
- It is too flexible and can create an elected dictatorship.
What are three arguments that the uk should not codify its constitution?
- Risk of creating an all powerful, politicised judiciary.
- Codyfing the conventions would be extremely difficult
- A flexible constitution is its strength - it allows for parliament to be responsive to the electorate and adapt in times of an emergency.
Evidence + analysis that checks and balances of the Judiciary are too weak?
In 2023, the supreme court voted uniamously that the deportation of migrants to Rwanda was unlawful, as there was substantial ground for the fear of mistreatment. In response, the government passed (through parliament) the Rwanda (Asylum and Immigration) Bill - declaring Rwanda a safe country.
-No higher power gives the supreme court power to strike down laws - common law can be overriden by a simple statute as parliament is sovreign, and government has near total control over it.
Evidence + analysis that a uncodified constituion relies too heavely on conventions
Chapter 5 of the cabinet manual 2011 stated that the government accepted a convention that parliamentary approval will be sought before military action is taken, accept in emergeencies. ‘emergancy’ too . Whilst Cameron listened in 2013, May didn’t seek approval, citing that it was an emergancy.
-The effectiveness of conventions depends on the willingness of members of parliament and the executive to enforce the political ramifications of breaking them, however this is often not the case.
Evidence that an uncodified constitution is too flexible
FTPA 2011, signed to prevent conservatives from breaking away from the coalition, however was overturned by the Dissolution and calling of Parliaments act 2022, which restored that power as a rouyal perogative to PM.
-Any law can be overturned by parliament as it is sovreign, so can make break or ammend any previous law. This means even acts which are fundemental to our rights can be overturned by parliament - which is controlled by the executive, with a simple majority. This creates a risk of tyranny and a elected dictatorship. Tories wanted to replace the HRA with a ‘bill of rights’.
Evidence + analysis + evaluation that codficiation risks creating a politicised, all powerful judiciary
Article 10 of the HRA - freedom of expression. This is a qualfied right (balance must be struck between rights of an individual and the needs of wider society.
-Many judicials decisions about fundemental rights are themselves political decisions, so by transfering the ultimate power of the protection of the rights to court, all you are doing is allowing a smaller, more unrepresentative, unelected group of judges to make political decisions. Thus creating tyranny of the minority.
-However, it could be said that judges can make decisions without needing to worry about the political backlash, so are in a better place to be able to make those decisions.
Evidence + analysis that codyfing the constitution would be incredibly difficult?
Have not been able to agree on what to do with the house of lords - how can we agree to a legally binding constitution that makes most people happy?
Evidence + analysis that a flexible constitution is its strength - it allows for parliament to be responsive to the electorate and adapt in times of an emergency.
Government and parliament has a mandate of the people. If supermajorities are needed to change, than brexit would have never happened (52%) - means constituion can adapt and change overtime and prevents gridlock.
