Constitutional Law
how is multilevel governing a weakness of the westminster model
UK parliament and government have ceased to be sole legislative/executive body. decision making, legislation and court rulings influenced by eu law. 1988 programme of decentralising executive and legislative powers to new institutions in scotland, northern ireland and wales was started. constant debates about transfer of greater powers to the government systems in these parts of UK.
what is the rulebook idea of the constitution
a set of important rules about the structure and powers of government. a complete document which methodically states the rules. "for constitutions to work well, people need to know what the rules are and there also needs to be broad consensus that the rules are right"
what are concordats?
agreements to create a convention or set of conventions. far more specific and detailed. establish ground rules for administrative co-operation and exchanges of information. concordatry involves a reworking of the informal character of the british constitution
how is the rise of delegated legislation a weakness of the westminster model
bulk of legislation now made in form of delegated legislation by ministers rather than acts of parliament. calls into question idea that elected reps are the heart of the legislative process.
how is subordinate/secondary legislation a source of constitutional law
can be made by government's ministers acting on the authority of an act of parliament or "parent act"
how do judges/common law contribute to constitutional law
can interpret/apply law, create principles important to understanding application of law
from cabinet to prime ministerial governemnt as a weakness of the westminster model
changes in role of prime minister and cabinet. collective to individual wants to prime minister.
what is legitimacy
closely related to but exceeds beyond idea of public compliance/consent. conditions of legitimacy exist, if people are generally prepared to accept the laws and decisions of public authorities, even though they may disagree with some individual determinations. scrutiny stages of passing an act. principal of democracy legitimises the electoral system
constitutional statutes either
condition the legal relationship between the citizen and state in some general over-arching manner or enlarge or diminish the scope of what we now regard as fundamental constitutional rights
what is the systems of government idea of the constitution
constitutions create systems of government. requires understanding of what happens in practice, which may be different from the rules. "standing back from the rulebook and trying to see the patterns, traditions, underlying ideals and principles expressed or implied by the rules
how is the echr external law that contributes to constitutional law
convention rights are enforceable in the UK under the human rights act 1998
how is the institutional crisis a weakness of the westminster model
crisis of public confidence that has enveloped UK parliament. turnout of voters have declined there are very low levels of trust in politicians. expenses scandal in 2009 led to parliamentary standards act. major constitutional innovation because until then it was seen as important that UK parliament should be self-regulating so the idea of placing parliament at the centre of the constitution may be as attractive as it was in the past.
how is accountability exercised in the UK
depends on a commitment to open government and rights to freedom of information. news media and pressure groups also play vital roles in ensuring that accountability is achieved. ultimate form of public accountability is elections. ministers are continuously accountable to the house of commons through debates and votes. individual/groups and businesses may use judicial review to challenge lawfulness of public authorities. judges are also subject - they must explain and justify decisions.
how did judge's interpretation of human rights act aid constitutional law
developed and refines the principle of proportionality as means of balancing public interest and private rights
problems with statutes as a source of CL
distinguishing ordinary and constitutional statutes, efforts to make this distinction have been made by judges
how is the rise of judges a weakness of the westminster model
dramatic rise of power of judges in the constitutional system. judges in echr and cjeu have influence over development of public policy in those fields of law over which they have jurisdiction. hra and eca require domestic courts to look to the case law of these courts. british judges have used their powers to develop common law to create a modern system of judicial review of executive action and delegated legislation
what are the most important external laws in the UK that contribute to constitutional law
eu comes from a body called the european union, directly enforceable in UK, relied upon by everyone in UK courts
statutes of constitutional importance
european communities act representation of the peoples act human rights act magna carta 1297 bill of rights 1688
how is government control of house of commons a weakness of the westminster model
executive dominance over political parties. model presents that government is held in check by parliament. reality is parliament is controlled by government. government has exclusive use of legislative procedures to steer through legislation is has drafted. government controls agenda and timetable of house of commons inadequate opportunities for MPs outside government to initiate debates and call ministers to account.
what is the problem between executive and legislature
executive dominance over the legislature has become a problem known as "elective dictatorship"
what are the sources of our constitutional law
external laws, statutes, secondary legislation, common law, conventions, written documents
how are coalition governments accommodated
formed by the main political parties
common law methods as source of constitutional law
generates rules independently of parliament through the application of precedent. judgments tend to be longer and contain more justification for the rulings based on detailed discussion of previous judgments. judges have used obiter dicta to discuss important constitutional principles, including parliamentary supremacy, the rules of law, and the separation of powers.
how is power exercised by the executive
governing body of state - "government" or "the administration", responsible for proposing, implementing and administering laws, prime minister presides over the cabinet composed of senior minister and further supported by ministers and government whips, senior ministers head government departments supported by civil servants.
main weaknesses of westminster model?
government control of house of commons form cabinet to prime ministerial government rise of delegated legislation multilevel governing: european integration and devolution rise of judges an institutional crisis
what is our constitution a product of
history and an accident rather than a rational design
what makes up the legislature
house of commons, house of lords and monarch
what is constitutionalism
ideas used to understand and express whether constitutional law can be be legitimate
how do external law contribute to constitutional law
important that states adhere to international standards of conduct
how will uk courts interpret uk law
in light of international treaties because parliament wants to abide by its international commitments
where are constitutional conventions set out
in practices not in law
what constitutional law issues are statutes passed on
institutional allocation of powers, relationship between the individual and government, etc
what is the nature of a constitution
it is very difficult to change and usually sets out the appropriate procedure for making changes to it
how did entick v carrington aid constitutional law
judges applied rights against trespass in tort law to hold that government officials could not search premises in the absence of a specific legal warrant
how does constitutional law divide and limit power and establish institutional responsibility
legislative (law making), executive (implementing and proposing laws), judicial (interpreting and proposing laws)
how does constitutional law organise power between different levels of government
local, regional, national, international
factors leading to UK having unwritten constitution
many european nations have been forced to draw up constitutions in response to popular revolt or war. GB has remained free of revolutionary fervour. has been too stable for too long for there to be a need for change. our democracy has been reformed incrementally rather than in one big go - its very flexible. our system of government words well in practice.
what is constitutional secondary legislation mainly about
matter of detail, efficacy, flexibility in law but sometimes can have significant impact on individual freedoms
in what two examples have recent non legally enforceable standards been set out
ministerial code: standards of conduct for ministers, memoranda of understanding between westminster and the devolved parliaments/assemblies
what are constitutional conventions an effective constraint on
ministers, prime ministers, monarchs etc
where do many of the ideas of constitutionalism come from
moral philosophy e.g human, dignity, freedom, equality, discrimination, corruption and democracy
how do most countries have a constitution
most countries have constitutional law written down in a single document which has a higher or protected legal status.
advantages of UK adopting written constitution
no parliament can bind its successors so any of the present written measures could be ripped up at anytime - would provide security. UK executive has been able to become too powerful. government's power is only checked by need of governments to win elections. government can do what it wants as long as it controls house of commons. constitution would be policed by senior judges and would not be able to interfered with by government. would make rules clearer, greater certainty. would highlight central values - strengthen citizenship by creating clearer sense of political identity. individual liberty would be more securely protected because it would define the relationship between the state and its citizens.
what does the largest non-government party do
occupies position of official opposition
what happened in the civil war and glorious revolution 1688
parliament's control over the executive powers of the monarch was cemented, today this is described as the westminster model
what would breach of constitutional conventions result in
political consequences not legal sanctions
stages of legislating
pre-publication stage, passage through both houses of parliament, royal assent
how does constitutional law articulate fundamental constitutional principles
principles which control how power is used, specifies limits to the proper exercise of power and prevents the abuse of power
what do general elections do
return MPs who are expected to look to the interests of their constituents irrespective of party affiliation these are contests between political parties vying for supremacy.
statutory interpretation as a source of constitutional law
seeking to find and give effect to the intention of parliament. developed principle of legality: an act of parliament will not be interpreted as depriving people of common law rights except by the clearest words.
disadvantages of UK adopting a written constitution
simple majorities in parliament have been enough to make fundamental changes: composition of house of lords, relationship with the eu, reorganise local government, etc. constitutions are too rigid, higher law is harder to change. quicker to introduce new acts of parliament than to amend a constitution. unwritten constitutions can remain up today. judges that would police constitution would be unelected.
examples of constitutional conventions
sovereign does not become publicly involved in party politics of government. the roles of prime minister and cabinet are governed largely by convention. by modern convention, the prime minister always sits in commons. there is a convention that an individual will be a minister only if they are a member of either houses.
studying the constitution involves
studying the allocation and control of state power, and the principles under which the state is governed
how does constitutional law designate power as public
tells us where government power stops and where individual liberty/freedom begins
what does the status of a constitution mean
that its application takes priority over other laws in the state and that a special court, usually a constitutional/supreme court, ensures other branches adhere to the constitution
what is political constitutionalism
the belief that power and the making of law should be legitimised through parliament
monarch is...
the least powerful and bound by convention
what forms government
the party which can command support of commons. government which loses the support of the people's elected reps in the commons cannot remain in office.
what do parties have a right to when they secure a majority
the right to form a government and carry through policies set out in the election manifesto
what is the centre piece of an unwritten constitution
the sovereignty of parliament
what are constitutional conventions often considered
the unwritten rules of the game of power
codes?
these are not subject of negotiation between different institutions or office-holders, but published by one part of the government
does the UK have a constitution
we have an unwritten constitution
according to political constitutionalism, what can the prime minister say
we legitimately rule because we won the election
when are international treaties legally enforceable in the UK
when the treaties have been incorporated by parliament
