UK Constitution

Question 1

Define the term constitution

Answer 1

Body of laws, rules and practices that sets out the way a state is organised. It provides a framework for the political system; establishing the institutions of govt, where decision-making authority resides and the protection of citizen rights

Question 2

What are principles of the UK constitution?

Answer 2

uncodified, unitary, rule of law, parliamentary sovereignty

Question 3

Uncodified Constitution

Answer 3

The British Constitution is found in a variety of sources. This means constitutional law has the same status as regular statute as there’s no hierarchy of laws, its not entrenched so can be amended as simply as ordinary law and judicial review is limited because there’s no single authoritative doc that senior judges can use to evaluate whether an act is unconstitutional.

Question 4

Sources of UK constitution

Answer 4

Statute law
Common law
conventions
authoritative works 
European law and treaties*

Question 5

Statute law

Answer 5

These are Acts of Parliament that have been approved by the HoC and HoL and monarch.

Question 6

Significant examples of Statute law

Answer 6

• Great Reform Act 1832 extended the franchise
• Scotland Act 1998 - created a Scottish parliament, significant change in constitution as powers were devolved
• HRA 1998 - incorporated the rights set out in the ECHR in UK law
• Fixed Term Parliament Act 2011, established fixed 5 yr elections to Westminster Parlt.

Question 7

Significance of statute law

Answer 7

British constitution is flexible to changes in society, which usually has had positive outcomes such as expanding and protecting democracy and protecting civil rights. Such as extending the franchise to women by 1928
These rights, in theory, could be diluted or removed by parliament especially now that the UK is no longer part of the EU, it doesn’t have to follow in line with EU law, hence protection of rights is weak.

Question 8

Common Law

Answer 8

Law derived from general customs and decision of judges. Senior judges use judicial review to establish a legal precedent that serves to guide future lawmakers and lower courts where statute law is unclear. However due to parliamentary sovereignty, parliament can overturn common law by Acts of Parliament and why judiciary can only declare the govts’ actions unlawful not unconstitutional.

Question 9

Royal prerogative as an example of Common Law

Answer 9

Discretionary powers of the Crown that are exercised by govt ministers in the monarch’s name
This includes royal assent to legislation, declaring war and negotiating treaties. The prerogative power of dissolving parlt was ended by the Fixed Term Parliaments Act 2011.

Question 10

Gina Miller example of common law being used

Answer 10

In 2016, Gina Miller brought a case against the UK government, claiming that it couldn’t trigger Article 50 – and therefore Brexit – without an act of parliament. Ruling in Miller’s favour in 2017, the Supreme Court drew on the 1610 case of proclamations ( the chief justice, Sir Edward Coke, ruled that King James I could not prohibit new building in London without the support of parliament. King James believed that he had a divine right to make any laws that he wished. But the court opposed his view, and decided that the monarchy could not wield its power in this arbitrary way)

Question 11

significance of common law

Answer 11

Doesn’t have precedence over statute law so statute law can repeal or modify common law - statute law supremacy

Question 12

conventions

Answer 12

rules or norms of behaviour that are considered to be binding. 2011 Cabinet Office Manual sought to bring together all conventions in one doc.

Question 13

Example of conventions

Answer 13

1934 Salisbury Convention - Lords agreed to not delay policies contained in the governing party’s manifesto
Gordon Brown announced that the UK couldnt declare War w/out a parliamentary vote which was demonstrated with Cameron and the Syria issue

Question 14

Signficance of Conventions

Answer 14

Must be mutually agreed on by everyone for it to function well as they’re not protected by anything more substantial than mere tradition. Such as when the Lords rejected the People’s Budget in 1909 (Finance Bill was rejected by the House of Lords, by 350 votes to 75. The Prime Minister, Asquith, subsequently moved a motion to dissolve Parliament, declaring the act to be a breach of the constitution and usurption of the rights of the Commons. The House of Lords had gone one step too far this time, breaking an ancient, yet unwritten constitutional prerogative forbidding the Upper Chamber from rejecting financial bills put forward by the elected Lower House. )

Question 15

Authoritative works

Answer 15

Long established legal and political texts that come to be accepted as the reference for what’s allowed under the UK constitution.
These texts hold no legal authority but persuasive authority.

Question 16

Examples of Authoritative works

Answer 16

Erskine May’s A treaties on the law, privileges, proceedings and usage of Parliament (1844) is regarded as the bible of parliamentary practice providing a detailed guide to its rules and practices

AV Dicey’s An introduction to the Study of the Law of the Constitution 1885 focused on parliamentary sovereignty and the rule of law ‘ two pillars of the constitution.’ Also focused on a responsible cabinet govt in a parliamentary democracy.

Question 17

Significance of authoritative works

Answer 17

No legal status so can be ignored .

Clarifies and emphasise key constitutional principles

Question 18

European Union law

Answer 18

Brexit - naturally removed from the control of EU law thereby also removing the fifth source of UK constitution. However, Theresa May’s proposed Great Repeal Bill would incorporate all existing EU law into UK statute law, at the same time as repealing the European Communities Act 1972

Question 19

Parliamentary sovereignty

Answer 19

the doctrine of parliamentary sovereignty holds that the Westminster Parliament is the supreme law- making body. This means that it is a flexible constitution as parliament effectively decides what the constitution is. Parliament can add and remove elements of the constitution - joining EU vs leaving

Question 20

Rule of law

Answer 20

legal theory holding that the relationship between the state and the individual is governed by law, protecting the individual from arbitrary state action. Key feature of UK being a liberal democracy. This limits govt power as no one is above the law. If a govt is found to have broken their own rules they are believed to have acted ultra vires

Question 21

Example of Rule of Law

Answer 21

in 2016, the courts found the govt to have acted illegally by trying to restrict legal aid to people born outside the UK

Question 22

Unitary state

Answer 22

all power derives from the central govt
Westminster is sovereign, all power is concentrated in Westminster
Devolved power is delegated by Westminster to devolved bodies and not transferred permanently

Question 23

Parliamentary govt under a constitutional monarchy

Answer 23

Govt ministers are politically accountable to parlt and legally accountable to the Crown.

Question 24

How did a parliamentary govt form under a constitutional monarchy

Answer 24

he Glorious Revolution of 1689 established the supremacy of parliament over the monarchy. The key conventions of the constitutional monarchy gradually fell into place: the monarch retained formal powers (e.g. to assent to legislation) but their usage was constrained. The extension of the franchise enhanced the position of the House of Commons; it had overtaken the House of Lords as the predominant legislative chamber by the early twentieth century.

Question 25

Key historical docs of the UK constitution

Answer 25

Magna Carta (1215), the Bill of Rights (1689), the Act of Settlement (1701), the Parliament Acts (1911) and (1949) and the European Communities Act (1972)

Question 26

Magna Carta (1215)

Answer 26

An agreement between King John and his barons that established the principle that everyone was subject to the law and right to a fair trial
Although didnt give many rights to ordinary people at the time. key provisions inc king couldnt raise tax w/out consent of the people, right to due process in the law was guaranteed.

Question 27

Bill of Rights (1689)

Answer 27

States that parliament must meet frequently, elections must be free and there must be complete freedom of speech in parliament (parliamentary privilege - MPs cant be sued for slander or contempt by the court)
Key provisions inc The levying of money for the crown through prerogative and without consent of parliament was made illegal. Only parliament could raise money for government expenditure. Raising or keeping an army in peacetime, unless by the consent of parliament, was made illegal. Only parliament could raise and maintain an army during peacetime.

Question 28

Problems with the Bill of Rights

Answer 28

The precise definition of ‘free elections’ was unclear.
As a statute law it held no higher legal authority and so could be easily
repealed or replaced by a future parliament.

Question 29

Act of Settlement (1701)

Answer 29

Only Protestants and not Roman Catholics could become the monarch or be married to the monarch. Established the fundamental principle that the monarchy existed on parliament’s term not vice versa.. The Act also established the principle that the monarch could only choose ministers who could command a majority of support across
both Houses of Parliament. This meant the king had to choose a ‘king in parliament’ who could control both chambers, rather than appointing the minister of his choice.

Question 30

Parliament Acts 1911 and 1949

Answer 30

Both significantly reduced the role and power of the unelected HoL . The 1911 Act removed the power of absolute veto over legislation and limited their power to a 2yr delay
The 1949 Act reduced it to 1 year

the restriction in the powers of the Lords was a step forward for democracy in the UK, the removal of an effective second chamber created the opportunity for elective dictatorship, where a party with a clear majority would have no institution able to withstand it

Question 31

European Communities Act

Answer 31

Brought in by the Conservative govt of Edward Heath. Marks the entry of the UK into the EU. Constitutionally, it represented a weakness in parliamentary sovereignty as all British law had to conform and comply with EU law. The Act also stated that no UK law could conflict with European law. This meant that EU law had priority over UK law
and that the court system could strike down statute laws passed by parliament.

Question 32

Strengths of UK constitution

: Adaptability

Answer 32

The UK constitution has evolved gradually in the face of changed circumstances. Pragmatic reforms, introduced where there is a clear case for change, have enabled the constitution to adapt without the need for parliamentary supermajorities or approval by means of a referendum. This is why Conservatives tend to view the constitution as an ‘organic’, living body of rules, rather than an artificial creation.

E.g. HoL reforms

Question 33

Strengths of UK constitution

: Strong govt

Answer 33

though the doctrine of parliamentary sovereignty dictates that the legislature holds supreme authority within the political system, the executive is where day-to-day power resides de facto. This is because the process of government is conducted by political parties — the cabinet is party-based and the governing party generally exercises significant control over the legislative process in the House of Commons through its majority. The government is therefore able to implement most of its political objectives.

Question 34

Strengths of UK constitution

: Accountability

Answer 34

Although it holds considerable power by virtue of its control of the legislature, the government is accountable to both parliament, which scrutinises its activities, and the wider electorate. In a general election operating under a two- party system, voters effectively choose between alternative governments. An unpopular government will pay the price at the polls.

Question 35

Weaknesses of the UK : constitution

Answer 35

Critics of the traditional constitution portray it as outdated, inefficient and undemocratic. Key elements of common law, notably the royal prerogative, date back to medieval times — just as the House of Lords is a throwback to a pre-democratic era. It is hard to justify the hereditary principle in a liberal democratic state.

Question 36

Weaknesses of the UK : concentration of power

Answer 36

Power is concentrated dangerously at the centre and there are few safeguards against the arbitrary exercise of state power. Parliamentary sovereignty and the absence of a codified constitution mean that even the key tenets of the rule of law are not fully protected. A government with a strong majority can force through legislation, undermining civil liberties and weakening other institutions — what Lord Hailsham referred to as an ‘elective dictatorship’. Neither local nor subnational government has constitutionally protected status.

Question 37

Weaknesses of the UK : lack of clarity

Answer 37

The uncodified nature of the constitution creates problems of clarity and interpretation. It is not always immediately clear where a government has acted unconstitutionally. Parliament, controlled by the government of the day, is the final arbiter of the constitution. The government can even use its control of the legislature to pass new Acts that overturn unfavourable rulings in the courts. The rights and responsibilities of citizens are poorly defined and entrenched, making it difficult for citizens to engage with the system.

Question 38

New Labour reforms : HRA

Answer 38

The Human Rights Act (HRA, 1998) enshrined most of the provisions of the European Convention on Human Rights (ECHR) in UK law.

The HRA requires the British government to ensure that legislation is compatible with the ECHR. All bills introduced at Westminster or in the devolved assemblies are reviewed by lawyers with a view to ensuring that they are ‘HRA-compliant’.

signatories to the ECHR have the right to request a derogation (a temporary exemption) from its provisions where they are facing a crisis that threatens the security of the nation. Thus it was that in the wake of 9/11, the UK government forced a derogation from Article 5 of the ECHR (the right to liberty and security) in order to allow for the detention of foreign nationals suspected of terrorist activity.

Question 39

New Labour reforms : Parliamentary

Answer 39

The House of Lords Act 1999 abolished the right of all but 92 hereditary peers (those who inherited their titles) to sit and vote in the upper house. This was intended as the first stage of the reform process. The Lords now comprised mainly life peers and no political party had an overall majority.

Question 40

The Conservative constitutional reform: Protection of Freedoms Act 2012

Answer 40

the Act offered citizens greater protection from the state by putting in place proper scrutiny of the security services and oversight of surveillance and data collection.

introduces a new regime for police stops and searches under the Terrorism Act 2000 and reduces the maximum pre-charge detention period under that Act from 28 to 14 days
restricts the scope of the ‘vetting and barring’ scheme for protecting vulnerable groups and makes changes to the system of criminal records checks

Question 41

The Conservative constitutional reform: HoL

Answer 41

House of Lords Reform Act 2014. The Act was aimed at halting the inexorable increase in the number of those eligible to sit and vote in the House of Lords, by giving existing peers the right to retire or resign their seats in the chamber. It also allowed peers to be removed as a result of serious criminal offences or non-attendance. Fifty-four peers had resigned under the terms of the Act by 2016, with a further four removed as a result of non-attendance.

Question 42

The Conservative constitutional reform: Elections

Answer 42

The Act established a pattern
of fixed general elections every 5 years, starting in 2015. It thereby removed the ability of the prime minister to call an election at a politically advantageous time although its limitations were made clear by the calling of an early election in 2017.

Prime Minister Boris Johnson failed on three successive occasions (3 Sept, 10 Sept, 24 Oct) to secure the requisite two-thirds majority for an early parliamentary election. He then decided simply to circumvent the FTPA through new legislation which stated simply that ‘An early parliamentary general election is to take place on 12 December 2019 in consequence of the passing of this Act’ and ‘That day is to be treated as a polling day appointed under section 2(7) of the Fixed-term Parliaments Act 2011’.

As an item of new legislation, it needed only a simple majority to pass. He was aided and abetted in this manoeuvre by the Liberal Democrats and Scottish National Party, both of whom wanted an early parliamentary election (and had proposed an alternative mechanism via amending the Act through a simple majority), and was supported by the official position of the Labour Party.

Question 43

Scotland Act 2016

Answer 43

The Scotland Act 2016 put into place many of the recommendations of the Smith Commission.
Devolved institutions were granted new powers over taxation, being allowed to set the rates and thresholds for income tax as well gaining control of 50% of VAT levies.
These changes meant that, for the first time, the Scottish government was responsible for raising more than 50% of the money that it spends.
The Scottish Parliament was given legislative power over a range of new areas — including road signs, speed limits and some welfare benefits.
The Scottish government was given control over its electoral system, although a two-thirds supermajority in the Scottish Parliament was required for any changes to be made.

Question 44

Arguments for UK adopting a codified constitution

Answer 44

It would provide clear rules, with less confusion as to what
the constitution means

It would formally limit the powers of government, addressing the problem of elective dictatorship

It could be policed and protected by judges, who are politically independent and neutral

It would allow for a stronger protection of rights, as rights would be fully entrenched and more difficult to set aside

It would strengthen citizenship, giving people a clear idea of not only their rights but the purpose and workings of the political system. It could also be a source of unity for the nation
It would bring the UK into line with other modern democracies

Question 45

Arguments against a codified constitution

Answer 45

It would be too difficult to change and may become outdated

It would give unelected judges to power to prevent elected government from
carrying out its pledges - judicial tyranny
Uncodified constitutions are organic and naturally evolving, codified constitutions are more ‘legalistic’ and arbitrarily implemented

A codified constitution may be unnecessary- government power could be checked by strengthening the existing systems

It may be harder for a government to get things done and fulfil its manifesto promises

Question 46

Does the British Constitution defend citizens’ rights?

NO: Parliamentary sovereignty

Answer 46

Parliamentary sovereignty means no rights are entrenched or inalienable. In theory parliament could repeal or change laws, citizens are left powerless : ECHR can be temporarily lifted in times of emergency

Question 47

NO: many laws have loopholes and unclarity, making them ineffective

Answer 47

2018 Samira Ahmed took a case to trial claiming that the BBC were giving unequal pay based on gender which was a failure to provide equal pay for equal value work under the Equality Act 2010.

Question 48

NO: BREXIT

Answer 48

Brexit is removing the safety blanket for certain non-discrimination, migrant and labour rights formerly provided by EU law. The EU’s Fundamental Charter of Rights is terminated by the 2018 legislation to withdraw from the EU.

Question 49

YES: Overtime, changes have been made to further protect human rights

Answer 49

2000
Freedom of Information Act
Ensured political transparency by allowing citizens to access any non-security related information held by public institutions.

Question 50

YES: People can take their cases to court and hold parliament to account due to rule of law

Answer 50

2000
Freedom of Information Act
Ensured political transparency by allowing citizens to access any non-security related information held by public institutions.

Question 51

YES: HRA incorporation of ECHR has educated citizens of their rights and big milestone in protection of citizen rights

Answer 51

Current legislation provides a strong legal protection for core civil and political rights via by the interlinked HRA and European Convention on Human Rights mechanisms.. move towards codified legal definition of rights

Question 52

Individual rights conflicting with collective rights: Individual right to privacy

Answer 52

people suspected of involvement in terrorism or other serious crimes may have their phone calls monitored to protect the collective right to security

Question 53

Individual right to free speech

Answer 53

collective right of a particular group such as Muslims to not be subject to hatred or abuse

Question 54

individual right of employees not to be coerced or intimidated by others into taking industrial action,

A trade union is not allowed to ask any of its members to take part, or continue taking part, in industrial action unless it has held a ‘properly conducted secret ballot’. A ballot is the name given to the process of voting.

The trade union can only call on members to take industrial action where the majority of those who voted, voted ‘yes’ to taking action. If there is majority support, the action must begin within four weeks of the ballot or eight if it’s agreed between union and employer.

Answer 54

collective right of workers to be treated fairly and go on strike if necessary,