Flashcards in Constitutions Deck (45)
What are the 5 sources of the constitution?
Statute Law, Common Law, EU Law & Treaties, Conventions & Major Works of Authority
Define 'Statute Law':
A written law which has been passed by an Act of Parliament. It has to be approved by the Commons, the Lords and the Monarch. It is enforceable in the Courts.
Define 'EU Law and Treaties':
Where these laws conflict with the UK law, the EU law takes precedence and it's the job of the UK to ensure that our laws fit with it.
Important for economic and social legislation- especially trade and environmental issues such as fishing as well as human rights.
Arguably promotes the role of unelected lawyers to decide if the laws are compatible or not.
These are rules and norms that are considered to be binding (required). They're not codified or enforced by the courts. They simply get their authority by their history and long usage.
Define 'Common Law':
This includes legal principles that have been developed and applied. This is where the courts interpret and clarify the law if there is confusion or no clear statute law, then they become excepted practice. E.g Ministers exercising the Royal prerogative.
Define 'Major Works of Authority':
Sources of guidance (usually written in the 18/19th century) which are widely recognized and are therefore viewed as authoritative/respected. They often contain the nearest to a written account that we have of the way the constitution operates. They have no legal authority - but are helpful in interpreting the core vales that underpin our constitution.
Outline three advantages of an UNCODIFIED consitution:
1. It is flexible so can adapt to a changing society (it has freedom to develop in an evolutionary and organic way)
2. It can be amended or changed more easily than a codified constitution; the laws are not entrenched (fixed).
3. It has worked for a long time in Britain- evolutionary
- A codified constitution can be abused by dictators
- A codified constitution is very difficult to agree on
- A codified constitution gives too much power to judges
Distinguish between legal and political sovereignty:
A legal sovereign is defined as that person or body of persons that makes law and whose law is final and is recognized by courts and is enforced by the executive.
However, above the legal sovereign is the political sovereign, as Dicey says, "Behind the legal sovereign that the lawyer recognizes, there is another sovereign to whom the legal sovereign must bow." This is the political sovereign.
In democracies the legal sovereign receives it authority from the electorate, whatever be the basis of the right of vote, and is answerable to it for the exercise of it powers.
Legal sovereign is subject to be changed by the mandate (permission) of the electorate at regular intervals. Even during the term of Parliament,in the cabinet system of government, legislature may be dissolved and fresh mandate from the electorate sought (required).
The legislature makes laws on the basis of the policy approved by the electorate. So we may say that the electorate is political sovereign.
Distinguish between a unitary and a federal constitution:
A unitary constitution has power centralized in one institution or area - for example - Westminster
A federal constitution (like the USA or Germany) has power in other locations too- like states.
A unitary state can have local governments etc. (including devolution) but it has the right to take these powers away.
The federal government cannot take away powers from any of the states.
Although, because of the difficulty the government would face in turning back devolution, it has been argued that the UK has an increasingly federal constitution.
Outline 3 arguments in favour of introducing a codified constitution:
1. To enshrine (preserve) the rights of the citizens and so protect their rights.
2. To make the rule of law more accessible and so strengthen our democracy.
3. It is rigid therefore we can protect values that are essential.
Briefly describe three constitutional reforms made between 1997-2010:
1. Reform of the House of Lords- removal of a large number of hereditary peers - all but 92 hereditary peers removed from the House of Lords - therefore unable to forge consensus on next stage on HoL reform
2. Elected Mayors (although this wasn't taken up by municipal (community) governments to the extent that the gov wanted) - only 12 local authorities adopted the elected mayor model.
3. Devolution- Scotland and Wales- Cameron wanted Scotland to stay in the Union, however UK and Scottish gov agreed that a single-question referendum on independence would be held on the 18th of Sep 1014.
What were three constitutional reforms proposed by the coalition government of 2010:
1. Electoral Reform- Referendum on AV- Conservatives agreed to hold referendum on AV under the coalition agreement with the Lib Dems. Lib Dems preferred system was STV. The referendum (2011) produced a 68% vote against AV- significant set back for the prospects of electoral reform.
2. Scottish referendum on Independence - Devolution- Scotland and Wales- Cameron wanted Scotland to stay in the Union, however UK and Scottish gov agreed that a single-question referendum on independence would be held on the 18th of Sep 1014.
3. Referendum on membership of the EU- in 2017
Outline three criticisms of the UK constitution:
1. The lack of codification means that there is potential for confusion- and this can elevate (promote) the role for unelected lawyers.
2. It arguably doesn't protect the rights of citizens adequately/effectively.
3. It still contains undemocratic elements- for example- The Lords, The Monarchy.
What is a constitution?
A set of basic laws/principles (main beliefs) for a country that describe the rights and duties of its citizens and the way in which it is governed/ruled.
Give an example of Statute Law:
- The Parliament Act in 1911 which established the House of Commons as the dominant chamber of Parliament.
- The Scotland Act (1998) which created the Scottish Parliament.
- The Great Reform Act of 1832 which extended the franchise (right to vote).
Give an example of EU Law:
-The Human Rights Act (1998). British Parliamentary sovereignty is maintained in the law but ministers have to address UK law if it is found to be incompatible with UK law.
-Freedom of movement within Europe.
-Many laws regarding agriculture, trade and fisheries.
What is Devolution?
The transfer of power to a lower level- especially by central government to local or regional administration/office.
-An officially elected or otherwise selected body of people assigned with the responsibility and power to make laws for a political unit, such as a state or nation.
-Law making body of a political unit
What is meant by a Codified constitution?
A constitution that is all together written in one place or document.
What is meant by an Uncodified constitution?
A constitution that IS WRITTEN, but it might be scattered around in many different documents.
What is meant by a Federal constitution?
A constitution that sets up a system where smaller governments and the central government have their own separate powers as set out in the constitution.
What is meant by a Unitary constitution?
A constitution that sets up a single power to govern a country. This central government is ultimately supreme (sovereignty is located at the centre) and any administrative divisions (subnational units) exercise only powers that their central government chooses to delegate.
Key strengths of the UK constitution:
1. it's flexible & can adapt to gradual changes in circumstances or abrupt disturbances.
2. It concentrates power in the hands of the executive and the prime minister, promoting strong, decisive government.
3. It includes key constitutional principles such as the rule of law and the independence of the judiciary.
4. The principles of parliamentary sovereignty and parliamentary government ensure representative and responsible government.
5. It has stood the test of time and includes features which enjoy wide support such as the Monarchy and parliamentary government.
Key weaknesses of the UK constitution:
1. The fact that it places so much power in the hands of the executive can be seen as a democratic weakness and prevents fully accountable government.
2. Its lack of codification can lead to confusion and conflicts over its operation.
3. It does not adequately protect the rights of individuals and minorities, because of the power of parliamentary sovereignty.
4. It still contains undemocratic elements such as the Monarchy and the House of Lords.
5. It is bias towards the two-party system, its undemocratic and does not take account of a more pluralist society.
Define 'Fundamental Law':
The law which forms the foundation of the government of a state.
Secured; difficult to change.
The theory and practice of government according to the rules and principles (concepts) of a constitution.
A constitutional democracy is one which operates within the framework of a constitution that sets limits on the powers of government institutions and provides protection for the rights of citizens.
Advantages of a codified constitution:
Limited government- the rules for the government are established therefore it is clear when the government oversteps the mark.
Protection of rights- basic rights are enshrined (protected) in the constitution such as Freedom of Speech, meaning legislation cannot trample over these rights.
Clear rules for political procedure- unlike the UK, a codified constitution allows for removal of precedent as a form of procedure. Things become far more clear-cut.
Disadvantages of a codified constitution:
Rigidity- codified constitutions are notoriously difficult to amend. The US constitution has only had 27 amendments since 1787.
Judicial Tyranny- a codified constitution, is interpreted by the judiciary and as such it can be the case that judges can 'legislate from the bench'.