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57 Cards in this Set
- Front
- Back
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What is a constitution? |
It compromises the laws, rules and practices by which a state is governed. It specifies the powers of the governing institutions while also setting out the formal relationships between them and the relationship between the citizens and the state. It provides the framework for the political system establishing the main institutions of government determining where the decision-making authority resides and protecting the basic rights of citizens |
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What does a constitution provide in a liberal democracy? |
Important defense against the abuse of power by the state and its institutions. it upholds a system of limited government in which a system of checks and balances prevents over-mighty government and the rights of citizens are protected from arbitrary power |
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What is the bill of rights? |
An authoritative statement of the rights of citizens, often entrenched as part of a codified constitution |
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What is limited government? |
A system in which the powers of government are subject to legal constraints, checks and balances within the political system |
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Define constitutionalism |
The theory and practice of government according to the rule and principles of a constitution. A constitutional democracy is one which operates within the framework of a constitution that sets limits ion the powers of government institutions and provides protection for the rights of citizens. A government or public authority acts in a unconstitutional manner when its actions are not in accord with the principles and practices set out in the constitution |
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Define what a codified constitution is |
A single document that sets out the laws, rules and principles on how a state is to be government and the rights of citizens. The key provisions governing the political system are collected in one authoritative document often called a 'constitution' |
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Define what an uncodified constitution is |
One which the laws, rules and principles specifying how a state is to be governed are not gathered in a single document. Instead they will be found in a variety of difference sources some written (statue laws) and some unwritten (conventions) |
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What is fundamental law? |
The law which forms the foundation of the government of a state. This has a higher status over ordinary law. A constitutional (or supreme) court determines whether provisions have been violated |
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What does entrenched mean? |
Secured; difficult to change. If a constitution is entrenched there are special procedures for its amendment which make it more difficult to change than ordinary legislation. For the constitution to be amended, a super majority in the legislature or approval in a referendum may be required. There has been only 17 amendments added to the US constitution since 1791 Bill of Rights (which consists of the first 10 amendments) but the 1958 constitution of the French Fifth republic was amended 17 times in 50 years |
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Distinguish between a codified constitution and an codified constitution |
C-1. Collected in a single authoritative document 2. It has the status of fundamental law-above all law 3. Entrenched 4. Use it to determine if actions are constitutional UC-1. No single authoritative document-different sources 2. Status of ordinary law-no hierarchy 3. Not entrenched 4. Judicial review is limited-no single document senior judges use |
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Describe the UK's constitution |
uncodified, no special mechanisms for amending the British constitution-can be amended by a simple act of parliament, the doctrine of parliamentary sovereignty endows parliament with legislative supremacy enabling it to legislate on any matter and over turn any existing law. Parliament can change the constitution the same way it can amend other legislation |
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Give some examples from the US consitution |
Article 1 section 1-'All legislative powers herein shall be vested in a congress of the United States which shall consist of a senate and House of representatives' Article 1 section 2-'The house of representatives shall be composed of Members chosen every second yea by the people of several states' Article 2 section 1-'The executive power shall be vested in a President of the United States of America. He shall hold office during the term of four years' |
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Define the term flexible |
Flexible constitutions are rare (Britain and New Zealand are examples). They can be altered via a simple majority in the legislature like a normal law. This means that no laws are regarded as fundamental and there is no formal process for constitutional amendments |
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Define the term rigid |
Rigid constitutions-deliberately difficult to make constitutional changes so that they will need much discussion and consideration. This where principles are laid down in the constitution and are seen to be fundamental |
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Define the term unitary constitutions |
e.g Britain, France and Ireland-tend to be found in smaller countries and means that all power is located in the central government |
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Define the term federal constitutions |
Powers divided between federal (central government) and the regions e.g USA. The powers of each are clearly defined in written constitutions |
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What is judicial review? |
The power of senior judges to review the actions of the government and public authorities declaring them unlawful if they have exceeded their authority. Parliamentary sovereignty and an uncodified constitution mean that judicial review is limited in the UK. Without a codified constitution there is no definite criterion for determining what is unconstitutional. |
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What are the different sources of the British constitution? |
Statute law, Common law, Conventions, Authoritative works, European Union law |
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Explain what statue law is |
Law derived from Acts of Parliament and subordinate legislation In the legislative process Acts of parliament have been approved by the H of C, L and the monarchy before placed in the statue book (gain the force of law). They are then implemented by the executive and enforced by the courts. Statute law is the most important source of the principles and rules making up the British constitution because parliament is the sovereign body. Not all acts are of constitutional significance however |
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Give some examples of statue law that have been of historical constitutional importance |
1. Great Reform Act (1832) which extended the franchise 2. The Parliament Act (1911) which established the House of Commons as the dominant chamber of parliament 3. The European Communities Act (1972) by which the UK joined the European Economic Community (EEC) |
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Give some more recent examples of adaptations to the constitution |
1.The Scotland Act (1998) which created the Scottish parliament 2. The Human Rights Act (1998) enshrined key rights in UK law 3. The Fixed Term Parliament Act (2011)-established fixed term elections for Westminster |
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Explain what common law is |
Law derived from decisions in court cases and from general customs Includes legal principles that have been developed and applied by the UK courts. The courts interpret and clarity the law where there is no clear statue. Common law is thus legal precedent made by judged concerning, for example the rights of homeowners to tackle intruders Judicial decisions have clarified the rights of citizens the sate. Such case law becomes part of the body of common law and serves as a guide to future lawmakers |
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What does common law also include? |
Customs and precedents that have become accepted practice . They relate to the role of the monarchy, parliament and the executive. Particularly important is the royal prerogative-powers exercised in the name of the crown. Historical usage Rulings HRA |
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Traditionally what are the crowns prerogative powers? |
The right to: Give royal assent Declare war and negotiate treaties Appoint ministers |
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What government changed these powers? |
The Brown and the Conservative-Liberal Democrat government introduced power to dissolve parliament was for example ended by the Fixed-Term parliament Act (2011) The Constitutional Reform and Governance Act (2010) put parliamentary scrutiny of treaties on a statutory basis. But papers released in 2013 revealed the monarchy has been specifically asked to approve bills relating to prerogative powers and advised by the government to withhold consent to a 1999 Privet Members Bill which sought to transfer the power to declare war from the monarch to parliament |
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Define what Royal prerogative is |
Discretionary power of the Crown that are exercised in the monarchs name by government ministers |
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What is a convention? |
Established norms of political behavior rooted in past experience rather than the law. They are neither codified nor enforced by courts of law it is their long usage that gives conventions their authority The British constitution is regarded as flexible because some of its key elements are based on convention. by convention the monarch must assent to Acts of Parliament if the queen were to refuse there would be a constitutional crisis |
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Wjat is seen as 'new conventions'? |
recent governments have created what may be seen as new conventions. Gordon Brown announced that the UK would not declare war without a parliamentary vote. Holding referendums on devolution and electoral reform has raised expectations that major constitutional reforms should be put to a popular vote the cabinet office has also clarified the status of conventions in its cabinet manual (2011). it has 11 chapters covering for example the role of the monarch, elections and government formation and collective cabinet making decisions. the cabinet manual is intend as a guide to the current position rather than a legally binding source of rules but will establish greater clarity in the interpretation of conventions |
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Give 3 examples that illustrate conventions ambiguity |
Appointing the PM Ministerial responsibility Salisbury convention |
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How does the UK appoint it PM? |
It is the monarch who appoints the PM. Convention dictates that the leader of the largest party in the H of C after a general election will be invited to form government The last member of the Lords to become PM was Alec Douglas_Home 1963 It has become convention that the PM should be a member of the commons so he resigned from the Lords and successfully fought a by-election to take a seat as an MP FPTP usually produces a clear outcome rendering the monarchs decision on which party will form the next government a formality 2010 general election-no party had an overall majority with the conservatives as the largest party Following cabinet office guidance Gordon brown remained in the office for 5 days while coalition negotiations took place. Brown resigned when there was no Lib-Dem agreement. David Cameron was then appointed PM even through coalition deals were not formally concluded |
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What are the ministerial responsibilities? |
The circumstances under which government ministers ought to resign are also governed by convention. The convention of collective ministerial responsibility holds that ministers should resign if they or their department are guilty of serious political mistakes |
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What is the Sailsbury convention? |
States that the House of Lords should not vote down or wreck bills that seek to enact a manifesto commitment of the governing party. it marked an acceptance in the 1940s that an un-elected upper house with an inbuilt conservative majority should not frustrate the will of the commons and the electorate. this convention has been challenged in recent years. Liberal democrat and Tory peers voted against legislation on identity cards even though it had featured in labours 2005 manifesto. They argued Labour did not have a sufficient mandate the coalition government has also been defeated in the Lords as peers claim that the coalition does not have a clear mandate particularly for legislation (NHS reforms) not explicitly signaled in the Conservative or Lib Dem manifestos |
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What are authoritative works? |
A number of established legal and political texts have become accepted as works of authority on the British constitution. These texts have no formal legal authority but they do have 'persuasive authority' as guides top the workings of institutions and the political system in general-helpful when interpreting the core values underpinning the constitution |
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Give some examples of authorative works |
1. Erskine May's Treatise on the law, privileges, proceedings and usage of parliament (1844) is regarded as the 'Bible' of parliamentary practice, providing detailed guide to its rules and practices 2. Walter Bagehot's the English Constitution (1867)-set out the role of the cabinet and the PM describing the latter as 'first among equals' |
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What is the European Union law? |
1st Jan 1973 the UK became a member of European Economic community and in 1993 the European Union. The treaties establishing the the EU, legislation emanating from the EU and judgments of the European court of justice have all become part of the British constitution |
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Give some examples of EU law |
1992 European Communities Act 1986 Single European Act 1992 Maastricht treaty |
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What are the 6 main purposes of the constitution? |
1. Provides legitimacy to those in power 2. Protect freedom-restrain the behaviour of those in office-sets limits 3. Encourage government stability 4. Draw attention to goals and values that characterise a particular state 5. Set out the relative spheres of influence of the central and regional tiers of government. If a federal nation each state will have its own constitution 6. Can help create a fresh start especially after war or defeated regime |
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What are the core principles of the British constitution? |
Parliamentary sovereignty The rule of law Parliamentary government Constitutional monarchy EU membership |
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What is parliamentary sovereignty? |
Sovereignty is the principle of absolute and unlimited power implying supreme legal authority (legal authority) or un-challangble political power (political sovereignty) Sovereignty is the key concept in all constitutions. This is because it defines the location of supreme constitutional power. If constitutions define the duties, power and functions of the various institutions of government, the sovereign body that shares sovereignty has the ability to shape or reshape the constitution itself |
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Quote J.S MIll |
'Parliament can do anything except turn man into a woman' |
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What are the current constraints on parliamentary sovereignty? |
Powerful pressure groups, especially major business interests (CBI, Trade Unions) Public opinion-electoral pressures Views of the major trading partners such as the EU and US Policies of international organisations (EU and WTO) |
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What is popular sovereignty? |
The idea that supreme sovereignty lies directly with the people rathe than the representative institution |
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Growth in popular sovereignty can be seen by what? |
Increased use of referendums and the establishment of devolved assemblies and in a more clearly defined citizens rights-Human Rights Act |
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How could it be argued parliament is no longer sovereign? |
A view developed primarily as a result of EU membership. It also implied the idea that devolution has developed quasi-federalism reflected in the reluctance of parliament to challenge decisions made by devolved bodies |
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What is the rule of law? |
This has traditionally been seen as an alternative to a codified constitution showing that even in the absence of higher law, government is still subject to legal checks and constrains. Government in short is not 'above' the law |
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What is |
The UKs constitutional structure is based on a fusion of powers between the executive and parliament. This is what is meant by parliamentary government. Government and parliament are overlapping institutions. The government governs through parliament. Problem has arisen between the combination of the principle of parliamentary sovereignty and parliamentary government. The close relationship can lead to a situation in which the executive can use the sovereign power of parliament to its own ends |
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What is a constitutional monarchy? |
Although the monarchy lost its absolute power long ago it remains a constitutionally significant body. During the 19th Century most of the monarchs remaining powers were transferred to ministers accountable to parliament especially the PM. in 1867 Baehot suggested than the monarchy still has the right to Be informed, consulted, able to warn, encourage |
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What constitutional implications have arisen due to the UKs EU membership ? |
The role and significance of parliament and whether parliament can be viewed as a sovereign legislature. European law is higher than state law-established in the Factortame case in 1991 when the EU Court of justice in effect overrode sections of the UK Merchant shipping Act 1988-conflicted with the treaty of Rome Some EU bodies notably the European Commission have supranational powers. EU bodies can therefore impose their will on member states regardless of the stance taken by national legislatures-Parliemant has no power to resist or ignore directives from the commissions unless it were to withdraw from the EU The decline of the national veto-The national veto served to protect parliamentary sovereignty by allowing any member state to block an EU measures that threatened vital national interests. However a large proportion of the decisions have come to be made by the EUs key decision-making body |
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What are the counter arguments that suggest parliamentary sovereignty has largely survived the threats posed by EU members? |
Joining the EU in 1973 parliament did not and could not bind its successors. Meaning PS is still alive in the ability of parliament to choose to leave the EU. Any loss of PS occurs because parliament chooses to tolerate it. However it may be politically and economically difficult and unlikely to happen European integration has not eroded PS so much as pooled to. This argument reflects the view that member states can achieve more if they work together through institutions of the EU rather than when they operate as independent nations. Pooled sovereignty of the EU is therefore greater than the collective national sovereignties |
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Explain 3 principles of the UKs constitution |
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Briefly outline the strengths of having an un-codified constitution |
1. Flexibility-easy to change 2. Democratic rule-long unbroken record-constitution must work 3. Effective government 4. History and tradition |
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How is being flexible a strength of an un-codified constitution |
This is because of the importance of statue law-and it is easier to introduce an Act of parliament than to amend a constitution. E.g-Introduction of devolution-response to rising nationalism in Wales and Scotland |
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How is democratic rule a strength of the unmodified constitution? |
Constitution has democratic favour is because of the importance of parliamentary sovereignty. In the UKs unmodified constitution supreme constitutional authority lied in the elected house of commons. Changes to the constitution therefore come as a result of democratic pressure 19th centuary-social changes encouraged reform acts to widen the franchise. Powers of the lords reduced-growing belief the unelected second chamber should no longer have the right to block the policies of elected governments. |
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How does the UKs constitution create an effective government? |
Supporters of the constitution often argue that it helps to make UK governments stronger and more effective. It occurs for 2 reasons 1. Given the absence of a 'written' constitution government decisions that are backed by parliament can't be over-rulled by the judiciary 2. The UKs system of parliamentary government, based on the westminster model usually means that government gets in their way in parliament The concentration of power in the hands of the executive within the parliamentary system allow the UK governments to take strong and decisive action-reflected in radical moves such as the NHS being set up by the post war Atlee government or the privatisation of the 1979-90 Thatcher government |
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How is the history and tradition of the unmodified constitution a strength? |
Some, from a more conservative view, say that the organic growth of the UK constitution helps it to maintaining links with the past |
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Outline the weaknesses of the UK constitution |
1. Uncertainty 2. Elective dictatorship 3. Centralisation 4. Weak protection of rights |
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Why is uncertainty a criticism of the UKs constitution? |
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