UK Paper 2: The Constitution Flashcards
what is a constitution?
set of political principles by which a state or organisation is governed, especially in relation to the rights of the people it governs.
what is a codified constitution and its 3 features?
a c in which key constitutional provisions are collected together within a single legal document. eg US constitution
3 features:
1. document is authoritative, constitutes higher law, creating a two-tier legal system, in which the constitution stands above statute law made by legislature.
2. provisions of the constitution are entrenched, making its features much more difficult to change than ordinary law.
3. it is judiciable - all political bodies are subject to the authority of the courts, and in particular a constitutional court.
what is an uncodified constitution and its 3 features?
set of rules that are found in a variety of sources, absence of a single legal document. much rarer: the UK, Israel and New Zealand are the only liberal democracies that have UCs.
3 features:
1. UCs are not authoritative - constitutional laws have the same status as ordinary laws; single-tier legal system with no higher law.
2. not entrenched - can be changed by passing a statute law; reflected in the UK with the principle of parliamentary sovereignty.
3. UCs are not judiciable - judges do not have a legal stardard against which they can declare political bodies as “unconstitutional”
what is a unitary constitution?
constitution that concentrates power in a single body - UK, power concentrated in parliament (arguably has changed since devlolution)
what is a federal constitution?
a C that is based on the principle of shared sovereignty, in that there are two relatively autonomous levels of government; national and regional.
what is the meaning of entrenched?
something that is firmly established and unlikely or difficult to change. eg gun laws in US are entrenched in the constitution making them very difficult to change
what is devolution?
the decentralisation of governmental power. examples of devolution are the powers granted to the scottish parliament, the welsh parliament, the NI assembly and the greater london and local authorities.
what are the 4 sources of the UK constitution?
statute law, common law, conventions, works of constitutional authority
what is statute law?
laws made by parliament. not all SLs are constitutionally significant, only those that affect the powers and responsibilities of the govt or the rights of citizens. it is the most important source of the constitution - Parlimentary soverignty implies that statutes outrank all other sources. example of SL in C is the HRA 1998 - translated the ECHR into statute law), HoL act 1999 (reduced number of hereditary peers), constitutional reform act 2005 (had the SC take over from the Law Lords)
what is common law?
body of law created by judicial rulings, established over time. this has occured through the use of precedent, where judgements in earlier cases are recorded and taken to be binding on later cases. eg murder is so well established and defined by judges over time that there is no need for parliament to create a statute law.
what are conventions?
customs or traditions that have endured throughout history. they are a major means by which the constitution adapts to changing circumstances and are essential to its working. many aspects of uk law that are assumed to be documented are in fact conventions. eg it is only a convention that a government resigns after losing a GE however it has never been an issue. constitutional conventions include the royal prerogative being used by the PM to appoint or sack ministers and to dissolve parliament, as well as individual ministerial responsibility.
what are works of constitutional authority?
these are generally used to clarify gaps or uncertainties in other parts of the constitution. while WCAs are written, they are not legally enforceable, so are only really used in this situation. eg of a WCA is AV Dicey’s An Introduction to the Study of the Law of the Constitution (1885.)
arguments for implementing a codified constitution, in terms of excessive govt power?
our current uncodified constitution gives too much power to elected govt - they can use large majorities to override courts (eg HoC voted to declare Rwanda safe, contradicting the supreme court)
lack of formal codified rules can lead to an elected dictatorship, as there are very few limits on government power, eg blair invading iraq without public consultation.
arguments for implementing a codified constitution, in terms of excessive govt power?
current uncodified constitution gives govt power to rule effectively, making big changes that the public want (eg atlee with the nhs, thatcher with economic reforms or johnson with coronavirus act). this flexibility and capacity for change is only possible with a UC, with a CC placing too many blockades on this level of immediate change.
arguments for implementing a codified constitution, in terms of human rights?
UC leaves human rights in the UK at risk - specifically overriding the HRA. seen with johnson and the covid measures, was not seen in the us. more significantly, police, crime, sentencing and courts bill or nationality bill erode human rights, damaging the rights to protest and free movement. a CC would give power to neutral, non-political judges in order to protect our rights.
