Consititution
What is the difference between an absolute and a constitutional monarchy?
-An absolute monarchy is where the monarch holds absolute power and is not limited by a constitution. -A constitutional monarchy is where the monarch accepts the limits set by the constitution, monarch is ceremonial. Prime minister holds real power
Why can referendums be problematic for Parliament and the Government?
Referendums problematic for parliamentary sovereignty as growing expectation that the public should give a mandate for serious decisions.
What is the royal prerogative? Who decides what royal prerogative powers exist, and the scope of these powers?
Royal prerogative is the power and authority recognised as belonging solely to the monarch. Today, as parliament holds sovereignty, it decides the royal prerogative powers of the monarch. The prerogative powers of the monarch (written in 'the English Constitution' by Walter Bagehot) are that monarch's only hold the right to be warned, consulted and to encourage the prime minister. The scope of these powers is not vast as parliament holds ultimate sovereignty.
What is the difference between the rule of law and arbitrary power?
Rule of law: when rules have a legal basis, rules can only be enforced on behalf of the law Arbitrary power: powerful individuals punishing citizens by twisting the law
Devolution
the transfer or delegation of power to a lower level, especially by central government to local or regional administration.
Why did Lord Hailsham describe the UK as having an 'elective dictatorship'?
· A new codified constitution would be an excellent opportunity to establish a clear separation of powers and a strong system of checks and balances. Critics argue that our fused executive and legislative branches create an 'elective dictatorship' in which the government dominates Parliament. · The term 'elective dictatorship' derives from the speech given by Lord Hailsham in 1976. The speech was greatly influenced by the result of the two general elections in 1974 in which labour formed a minority government and then winning a majority government. · Looking at the percentage of the vote that took the majority of seats in recent elections, it is obvious that whilst the, majority parties once to enjoy the support of half of voters, modern governments often have much weaker support (1 in 3), in elections that have considerably lower turnout. Lord Hailsham thought it was troubling that governments were elected with such weak mandates as the constitution gave them bountiful power
In what ways has the UK constitution already become more codified and easier to learn about?
· Cabinet manual defines the most significant conventions · Human Rights Act 1998, codified a number of fundamental human rights · Vague Royal Prerogative powers have been limited by statutes · Ministerial and Civil Service codes define the conduct, responsibilities and powers of ministers and civil servants.
Why is it arguably a problem that the UK relies so heavily upon conventions?
· Con is so flexible is that we often rely upon unwritten conventions. Not easily understood by the public and are disputed between elected officials · Critics argue that it is wrong that most of our constitution is not legally enforceable and therefore would be better codified. · conventions are too vague, · When rules rely upon tradition but not written regulation, it is difficult to decipher what the convention is. 'understanding are not always understood'-sydney loe
What problems arise form the fact that the UK constitution was not deliberately designed in one go?
· Constitutional reforms since 1997 have greatly challenged historic constitutional principles. Therefore, a new constitution would be a great opportunity to a design a new settlement that is enforced by all parties and makes sense to the public. · US constitution was deliberately designed at one point in time, with the founders drawing up a cohesive plan. · UK constitution has been amended in a number of piecemeal reforms, arguably don't work together cohesively. In 1999 Parliament reformed House of Lords removing all but 92 peers, giving it greater legitimacy. The remaining 92 peers are considered to not have the legitimacy to challenge the elected House of Commons. · Devolution has transformed the UK. however, how much power should be devolved, when should devolution come to an end, the West-Lothian question have all been unanswered. Royal prerogative powers have been limited via statute or convention, however, should a modern democracy contain a monarchy. · Recent reforms have disrupted the old constitution Parliamentary sovereignty has been challenged, the rule of law has evolved, there is an expectation that human rights are protected. Devolution has arguably turned the unitary state into a quasi-federal affair, increasing separation of powers, limits on the royal prerogative and increasing statutory limits.
extra information on conventions
· Conventions cannot be enforced in court although they are rarely broken. If necessary, they can always be given statutory force (parliament acts, parliament can enforce them with an act). No need for a codified constitution to reduce reliance on convention. Could just pass new laws.
Why can flexibility be an important asset?
· Flexibility enables further action to be taken regarding human rights, devolution and democracy
What is the difference between legal and political sovereignty?
-Av Dicey "parliament can make or unmake any law no one can challenge this" -Legal sovereignty is when Parliament has the ultimate right to make or unmake any laws -Political sovereignty is when an institution has unlimited political power, Parliament in theory hold this however in practise, if parliament were to exercise this power it could lead to public animosity against the representatives, therefore not being elected to represent their constituents again. Governments limit their political power in order to be re-elected
What are the most important differences between conventions and laws?
-Conventions are not enforceable by the court, -conventions are like traditions -Laws are more certain (statutes can be looked upon and checked) -No definitive written sources for conventions -Conventions can only be politically enforced, your reputation may be impacted -Conventions aid political partisanship
What electoral reform has there been since 1997?
-European parliamentary elections act 1998 (introduction proportional representation for EU member states) -Fixed Term Parliament Act 2011 - set the date for the General Election every first Thursday in May every 5 years.
How have recent constitutional reforms impacted the House of Lords?
-Lords spiritual, Lords temporal (earls, dukes and barons, before reforms introduced) -1958 life peerages acts, Lords appointed by the monarch (on advice by the PM) can sit in the house of lords for life (cannot be hereditary) -1999 house of Lords Act reduced the number of hereditary peers from 647 to 92 -Balanced the proportion of the parties in the House of Lords
What was the 'divine right of kings'? What is the 'royal prerogative'?
-The divine right of Kings was the belief that Kings were chosen by God and therefore not subject to the will of the people -Monarchs wanted to rule purely by Royal prerogative, which was the power and authority which solely belonged to the monarch (monarchs held executive, legislative and judicial powers) -Feudal system aided in the order of the divine right of kings and royal prerogative.
Are uncodified constitutions common? When/why do countries tend to adopt new codified constitutions?
-Uncodified constitutions are very uncommon, only Israel New Zealand and the Uk have this type of constitution. -Countries tend to adopt new codified constitutions after a revolution or significant political changes in a country, they mark a new era in the history of that nation.
How has the use of direct democracy grown since 1997?
-Wider use of referendums to measure public opinion (Brexit referendum 2016) -Party membership has grown amongst the youth. -Pressure group membership and formation has exponentially grown -Option to recall MPs introduced
What is a constitution? What do constitutions usually contain?
-countries lead by monarchs, concept of hereditary monarchy challenged by representative democracy -constitution is a rule book explaining how a country should be governed -contains rules on leadership (president or prime minister), rules of legislature -establishes clear limits of government powers Vital component of liberal democracies a rule book explaining how a country should be governed, contains leadership legislature and the powers within each institution (also the limits of their powers) The constitution of the Uk is uncodified, meaning it is laid out in multiple documents.
What is meant by the term separation of powers? How can power be separated horizontally & vertically?
-monarchs used to hold all power Separation of powers refers to the constitutional law where the three branches of government (executive, judiciary and legislative) are kept separate with distinct powers are responsibilities. Preventing people from gaining too much power. In the US constitution power ids divided horizontally into three branches of federal government and vertically between federal and state governments.
How and why are most codified constitutions entrenched?
Most codified constitutions are entrenched (much harder to pass, 2/3 supermajority vote in congress is needed to propose an amendment, and ¾ states must ratify). this prevents representatives from weakening he separation of powers therefore weakening the checks and balances in a constitution.
How has the EU's impact on the UK Constitution changed since 1997?
1972 European communities Act legislated for the UK to become a member of the EEU. This caused the doctrine of direct effect (EU law did not need the approval of parliament) and the doctrine of supremacy (EU law replaced any conflicting UK laws e.g. the Factortame case). Multiple treaties (Amsterdam 1997, Nice 2001 and Lisbon 2009) transferred additional powers to the EU by allowing the EU to make laws in more policy areas, and as the Eu prepared for expansion it significantly reduced the UK's veto power and replaced unanimous voting with a majority vote. Although in 2016 in the EU referendum, the UK voted to leave the EU (leave 51.89)
What is the Greater London Authority?
1998 referendum on greater London authority (72% yes) and a 1999 greater London 25-member assembly to hold them accountable.
What is a codified constitution?
A codified constitution is a constitution which is laid out in a single document made at one single point in time (for example, the constitution of the USA)
What are 'constitutional statutes'? How are they treated differently to normal statutes?
A constitutional statute is one which (according to Judge John Laws) conditions the legal relationship between the citizens and the state. Or which greatly changed fundamental constitutional rights (magna carta, bill of rights). They are treated differently to normal statutes as "while ordinary statues may be implied repealed, constitutional statues may not." Although these constitutional statutes are not entrenched, if parliament decided to repeal them, they must be prepared to face the full legal consequences.
How did the Case of Proclamations (1610) further weaken the royal prerogative?
As parliament became more powerful, the royal prerogative to issue proclamations (laws) was challenged. The case of proclamations (1610), it was decided upon by judges that the "King cannot change any part of the common law... by his proclamation...without parliament". This further weakened the royal prerogative as the judge concluded that "The King has no prerogative but that which the law of the land allows him". Hence the king could no longer use proclamations, moreover the already limited prerogative powers were deemed limited by the common law, which no one was above.
Why was the Assize of Clarendon so essential to the establishment of a common law?
Assize (King's council) of Clarendon (1166). Due to different parts of the country holding different laws, the King appointed judges to travel around the country and conduct trials to ensure his rules were being followed accordingly. Due to this the law became consistent, and Westminster became the centralised area in the Britain for power and decision making. This caused laws developed through the decisions of judges the 'common law'
Why can't Parliament bind its successor? What is implied repeal?
Although Parliament is powerful, no parliament can bind its successor by entrenching laws. If Parliament can make or unmake any laws, then no parliament can pass a law that another cannot repeal by simple majority vote.
What is 'English Votes for English Laws'? Does it answer the West-Lothian Question?
As all 3 of the 4 nations of the UK have devolved powers, it has been argued that it can only be fair for England as well to hold these privileges. Parliament passed the 2003 regional assemblies (preparations) act for referendums to devolve power to the North of England, Yorkshire and the Humber. However, the response was so negative (22.2% yes) that plans for English devolutions were halted; this left the west Lothian question on how long English voters would tolerate having no say on Scottish, Norther Irish and Welsh matter, but the devolved governments having a say on their matters. In October 2015, new changes to the House of Commons standing order introduced a new system of 'English votes for English laws' which gave English or Welsh MPs the power to veto clauses or bills which affects (decided by the speaker) the people of their nation. For the bill to be successful it must a secure a 'double majority' of the house of commons and English or Welsh MPs.
What are 'authoritative texts' and why are they a source of our constitution?
Authoritative texts are books written by constitutional experts. Several key books have attained constitutional status, for example 'the English Constitution' by Walter Bagehot.; which provided an influential explanation of how parliamentary democracy and the cabinet function. Bagehot also stated that monarchs only hold the right to be warned, consulted and to encourage the prime minister. There is also 'an introduction to the study of the law of the constitution' written by A.V. Dicey which argues that parliamentary sovereignty and the rule of law are the key concepts of the constitution. Finally, there is 'a treatise on the law proceeding and the usage of parliament' 1844, by Thomas May. This book is highly important to constitutional proceeding as is constantly being updated, the last update was the 24th chapter finalised in 2011
Why did Bagehot describe the monarchy as 'dignified' rather than 'efficient'?
Bagehot described the monarchy as 'dignified' as it is ceremonial and symbolic (also believed these qualities belonged to the House of Lords), rather than efficient as an efficient monarch would hold an active and functional cabinet aiding the monarch.
Why is the Bill of Rights (1689) such an important part of our uncodified constitution?
Bill of Rights imposed substantial limits on the royal prerogative: -Parliamentary consent needed to levy taxes, repeal laws and maintain an army during peacetime -Regular elections and freedom of speech -Established some individual rights and liberties (fines and punishments. This is an important part of our uncodified constitution as it transferred sovereignty from the monarchy, to the parliament. Which is a significant feature of our political system today.
How have recent constitutional reforms impacted the judiciary?
By constitutional reform act 2005 -New UK supreme court moves judges to a new building, physically separating Legislative and Judiciary branches -Reformed role of the Lord Chancellor member of all branches of government, speaker of house of Lords and head of Judiciary, threatened judiciary independence. Separated into three roles Lord chancellor, Lord chief and Lord speaker. -Reformed process for selecting new judges gov had influence on the selection of new judges, informal process that took place behind closed doors, other appointment by the Lord chancellor. Often lead to the oxford elite becoming judges. So new Judicial Appointments Committee set up to independently appoint new judges -Reforms in Trials Wiley balance, judge can issue a public interest immunity (Manchester bombings enquiry). Justice and security act (2013) keeps certain information secret, can only be shown to judge in favour of national security.
Why are certainty, legality, equality and access to justice all essential components of the rule of law?
Certainty, legality, equality and equal justice are all important to the rule of law ass in order to punish a citizen for a crime they need to know that it was a criminal offence, that everyone would be punished for the same crime, that no one is above the law, This would stop corruption and access to justice in order for their rights to be upheld in court.
How do constitutional conventions influence the use of the royal prerogative powers?
Constitutional conventions influence the use of royal prerogative as the constitutional convention of the appointment of the prime minister enables the monarch to an aspect of the peaceful transition of power. However, the monarch's prerogatives are being weekend by constitution conventions as the right of monarchs holding being able to deploy soldiers and choose ministers are now conventions by which the prime minister holds these rights.
How have recent reforms strengthened the rule of law?
Constitutional reform act (2005) arguably strengthened the rule of law as it reduced the government's influence over the appointment of judges by creating the judicial appointments commission. Moreover, removing the Law Lords from the house of Lords and creating the Supreme Court increased judicial independence, variety and make the judiciary more assertive in opposing the government. Lastly, the HRA (2005) introduced rights upheld in the ECHR into UK law enabling them to be upheld in UK courts as well
If all statutes are part of the UK Constitution, what are 'constitutional statutes'?
Constitutional statues are parliamentary statutes which are arguably more identifiable as constitutional due to their content (government power and citizens' rights)
Why are constitutions such an important feature of liberal democracies?
Constitutions are such as important aspect of liberal democracies, as they contain liberalism (liberty and equality) which democracy (rule by the people, for the people). Moreover, constitutions establish clear limits on government power which enable fair elections to be held. Lastly constitutions of liberal democracies protect individual's suffrage and rights which prevents representatives governing my minority rule.
How are conventions established?
Conventions are developed over time responding to gradual changes in the political climate.They rely on common agreement to be politically enforceable.
When and why did England adopt a codified constitution, and why didn't it last?
Due to the absence of the King, a military leader named Oliver Cromwell be4came Lord Protector of the Realm, and for 11 years, Britain was a republic. England's first codified constitution was named the Instrument of Government (1653), however was replaced by the humble petition and advice (1657, second and last constitution). However, following the Death of Oliver Cromwell, his son replaced him as Lord Protector of the Realm. Although, Richard lacked the standing of his father, and so the republic fell apart. In 1660, a parliament of majority royalist formed and invited Charles II to take the throne (this effectively wasted 11 years of the formation of England as a republic with a codified constitution). Charles II succeeded by James II, who firmly believed in the divine rights of Kings and used his influence to place Catholics in senior positions in parliament. This angered protestants, who asked William of Orange (Dutch) to invade England.; leading to the glorious Revolution (1688-89). James abdicated and William was offered the Throne, however on the condition that they would accept a constitution change.
What is the relationship between statutes and common law? Which is supreme?
Due to the uncodified constitutional nature of the Uk. Parliamentary statues are more supreme than common law as parliamentary sovereignty states that parliament have the ultimate power to make and unmake any laws; Therefore, statues override the common law.
What is the Freedom of Information Act (2000)?
Established a general right of access to recorded information held by more than 100,000 public bodies in the UK. This allows citizens (especially media outlets) to request information on government and affiliated bodies, thus making the government more transparent. The freedom of information act led to the 2009 parliamentary expenses scandal; official rules allow MP's to claim expenses on parliamentary duties, Journalists found serious misuse of allowances, many MP's were forced to resign, and many others were not re-elected. However, personal information is completely exempt from the FOI requests; the other 15 exempt areas are qualified and public bodies must consider the 'public interest balance' on whether it in a danger to public safety to know the information (Manchester bombings and national security row 2020). Although, the decision to not release information can be reviewed and then appealed.
What are fundamental/ higher laws? What does it mean to say that an ordinary law is unconstitutional?
Fundamental higher laws are laws that are the entrenched laws of the constitution as they are higher than all other ordinary laws passed by federal or state government. If congress passes a law that undermines the constitution, the supreme court will strike it down. The supreme court will always choose to enforce the higher laws of the constitution over the ordinary laws passed by congress.
What steps can be taken if conventions begin to be ignored?
If conventions are ignored political consequences ensue. For example, relationships within the party become strained and a politician may significantly damage their reputation making it unlikely that they will be elected for another term in government.
Why do some people today describe the UK as a 'quasi-federal state'? How is this different to unitary and federal states?
In addition to power being divided horizontally between the three branches of government, power is also divided vertically between national and regional governments as substantial powers have been devolved to 3/4 nations of the UK. In a unitary state, sovereignty is centralised within the central government this central governments can decide to devolve power to regional and local assemblies, however because the central government is sovereign It can revoke these powers. In contrast in a federal state sovereignty is shared between federal (state) and regional governments they hold different roles and powers establishes by the constitution. As both governments are sovereign neither can abolish nor limit each other. Despite devolution parliament technically remains sovereign as they can revoke devolved powers. Legally, the UK is still a unitary state as Parliament remains sovereign. However, the UK now more closely resembles a federal state as devolution and referendums have made it more difficult for parliament to revoke devolved powers (political consequences will otherwise ensue). Therefore, the UK can be more accurately described as a quasi-federal state, with a political system that is legally unitary, but in practise is more federal, due to the devolution of significant powers to regional bodies.
Why do some people argue that there is a substantive, not just procedural, component to the rule of law?
It can be argued that there is a substantive component to the rule of law as the law establishes what is acceptable and unacceptable; therefore, governing how citizens behave.
What is the principle of stare decisis, and why is it so important to the common law?
Judges were increasingly expected to observe the common law principle of 'stare decisis' (to stand by decided matters). This is so highly important to common law as the common law was founded to ensure that every corner of the country was abiding by and enforcing the same law, the common law. 'Stare decisis' stresses that judges abide by the common law and not revert to solely using their own judgment, creating a legally ununified England.
Why was the signing of Magna Carta (1215) so significant? How did it help to establish the rule of law?
King john tried to exercise his divine right to act above the law, there was a resistance from the barons. Who in response wrote a charter called the 'Magna Carta' (1215), in which the king agreed to limits on this power. By signing the Magna Carta, the monarch agreed that their powers could be limited by the people. Charter established the law, and that no one was above it. Clause 39, innocent until proven guilty, clause 40, clause 45
How has devolution/ HRA/ referendums/ EU limited Parliamentary sovereignty?
Legally parliament can make and unmake any law. Parliament is supreme and no parliament ca bind its successor. Legally parliament has ultimate power, however, politically it does not, it is ultimately accountable to the people and limits its own power to reduce political electoral consequences. Therefore, the HRA, increased referendums and the EU membership have not ended parliaments sovereignty but have imposed limits on parliaments political sovereignty
How has the number of directly elected mayors changed since 1997?
Local government act 2000, required all councils to renew their structure and adopt a council leader or a directly elected mayor and a cabinet (scrutinised by other members of the council). This can either be enforced by a referendum or a petition). From 2011 40 referendums have been held, however only 13 have been approved; In the English mayoral referendums from 2010-15 2 (Bristol and Doncaster) out of the 12 biggest English cities approved mayors (Liverpool and Leicester approved without a referendum, and London held a referendum years before).
What led to the Petition of Right (1628)? What limits did it impose on the monarch?
Parliament refused to fund King Charles I's war, hence, the king used forced loans to gather funds, and imprisoned those who refused to pay. Five Kings were imprisoned (1627) for refusing to pay; they sought an order from judges to review whether the imprisonment was lawful. Moreover, the King also introduced martial law (1628), this caused parliament to draft a petition of rights which imposed no introduction of taxes without parliamentary consent, habeus corpus, no forced billeting of soldiers in citizen's homes and no use of martial law during peacetime. Parliament had once again limited royal prerogative, however in response King Charles ruled without parliament for 11 years. This tension between parliament and the King lead to the Civil war (1642-1651), in which King Charles was executed after being convicted by a jury of 120 high ranking judges.
Why did Parliamentary sovereignty make the adoption of a codified constitution less likely?
Parliamentary sovereignty meant that if parliament could make and unmake any entrenched laws or bills. It would be impossible to entrench laws in a codified constitution.
Why, despite these reforms, does Parliament remain legally sovereign?
Parliaments is sovereign and can therefore make and unmake any laws. Hence despite these reforms parliaments remains legally sovereign as it can with a simple majority vote revoke these reforms (abolish devolved assemblies, ignore declarations of incompatibility and pass significant constitutional changes without a referendum).
What is meant by the term 'separation of powers'? Why is the UK described as having a fusion of powers?
Separation of powers (USA) where the executive legislative and judiciary branches have separate responsibilities and powers Encourages a system of checks and balances. No overlap is allowed. However, in the UK we have a system of fusion of powers where the executive and legislative branches are intertwined (pm and cabinet can sit in parliament, and before 2009 Lords could sit as judges in courts).
Why is it a problem that there is considerable disagreement over core constitutional principles?
Supreme court has begun to question whether the supreme judgements of Parliament are the part of the core principles of our constitution. In Jackson v. Attorney General in 2005, Lord Hope stated that: ''parliamentary sovereignty is no longer, if it ever was absolute' In response Lord Steyn stated that: (maybe they would not uphold the law) 'An attempt to abolish judicial review... a new supreme court may have to consider whether this is constitutional"
Why is the Act of Settlement (1701) an important constitutional statute?
The Act of Settlement (1701) is an important constitutional statute as it increased judicial independence. The Act of Settlement protects judges' salaries so that governments could not manipulate salaries to gain bias. Therefore, The Act of Settlement is an important constitutional statute as it keeps clear limits on government power.
Why are the Parliament Acts (1911 and 1949) important constitutional statutes?
The Acts of Parliament are such important constitutional statues as they replaced the House of Lord's absolute veto power over legislation with the power to delay non-money bills by two years (eventually in the 1949 Act reducing this delay power to one year). This is such an important constitutional statute as it proclaimed that the House of Commons held more sovereignty over the House of Lords which helped avoid legislative gridlock. An example of this is the gridlock of 1909 where the liberal House of Commons approved the liberal governments budget, however the conservative House of Commons voted against it.
What is the common law? What are its origins? Where can we find it?
The Common law was the law developed by the decisions of judges at the Assize of Clarendon. It unified the country, by establishing a common law (1166) when at the time different parts of the country enforced different laws and punishments. We can find the common law "in the records of our several courts of justice in books of reports of and judicial decisions"
What did the Human Rights Act (1998) do? What impact has the HRA (1998) had on the judiciary?
The Human rights act gave the judiciary substantial powers. Section 3 of the HRA enabled the judiciary to interpret legislation as far as possible (must be compatible). To do this this they can read in (inserting words to the statute), read out (omitting words from the statute) and read down (choose the meaning of the word). The judiciary hold the responsibility to apply legislation, not create it. Moreover, section 4 states that if the act of parliament is incompatible, then the judges must issue a declaration of incompatibility, however due to parliamentary sovereignty parliament can decide whether to or not address the incompatibility (parliament to address incompatibility). Section 10 of the HRA enables parliament to make amendments to incompatible laws through a process named remedial order, which bypasses parliamentary stages and the remedial orders are scrutinised by a joint committee on human right and must finally be approved by a vote in both houses.
What is the US Bill of Rights? Why is it significant?
The Us bill of rights is the first 10 Amendments to the Constitution. The Bill of Rights lays out Americans' rights in relation to their government. It is significant It guarantees civil rights (equality) and civil liberties that belong to the individual e.g. freedom of speech, press, and religion. Moreover, it protects the people form the power of the government, however, also form each other. If bill infringe the bill of rights, they are struck down. Eg 2013 defence of marriage act.
Why are the Laws in Wales Acts (1535 +1542) and Acts of Union (1707 + 1800) such significant constitutional statutes?
The Wales Acts are so important as they made Wales an equal part of England, extending the English legal system to Wales enabling wales to send representatives to Westminster. Similarly, the Acts of Union were important constitutional statutes as they united Scotland, England and Ireland into The United Kingdom of Great Britain and Ireland, establishing the parliament of Great Britain at Westminster.
How and why do many constitutions create a system of checks and balances?
With different powers allocated to different branches and level of government this creates checks and balances, one branch can use their powers to stop/prevent another from carrying out a particular action. This balances out influence and stops individual branches acting alone. -president proposes bill and pressures congress, however bill must pass in both chambers and once passed requires the signature of the president. However, if the president doesn't like the amendments by congress (if made), can veto the bill. However, if the bill proves to be so popular congress can override the veto with a 2/3 of congress majority vote. Makes it less likely that controversial
What is the doctrine of popular sovereignty?
The doctrine of sovereignty (article viii) is the idea that power is vested in the people, as governments are elected by the people and the constitution id obeyed by the people. People give authority to be ruled over in this way, it would be deemed in illegitimate for governments to act any other way
What is the European Convention on Human Rights?
The horrific treatments of people during ww2 (Germany and Soviet Union) led to international efforts to safeguard fundamental rights for humans (e.g. the council of Europe), in 1950 the council adopted the ECHR (all EU member states must sign this). Includes rights such as freedom of expression, the right to marry and the right not to be enslaved. The treaty also established the European Court of Human Rights (based in France), however it was very expensive to present your case in the ECHR, so parliament passed the Human rights act in 1998 to uphold the ECHR in the UK.
How have recent reforms undermined the rule of law?
The justice and security act (2005) allow the use of closed material procedures in civil court (secret court), the government states that the act gives foreign security services confidence that sensitive information will not be exposed in UK courts and that it means that the uk government does not need to make expensive settlements just because it cannot defend its self in court. However, opposers argue that allowing trail to take place in secret and allowing those on trial to not view the evidence used against them completely undermines rule of law and right to free trail. Recent spending cuts have also undermined the rule of law by making it harder for those with smaller incomes to uphold their rights in court. For example, the Legal aid and punishments of offenders Act (2012) which enabled those on low incomes to have access to fair representation in court was cut by £350 and this restricted the types of civil proceedings in which legal aid was available (personal injury, family court and benefit cases).
What are Police and Crime Commissioners?
The police reform and social responsibility Act 2011 replaced the existing 'pole authorities' with elected police and crime commissioners. This introduced electoral accountability for commissioners (elections held in 2012).
Why are the Reform Acts & Representation of the People Acts also landmark constitutional statutes?
The reform Acts and the Representation of the People Acts were also so important as they expanded the electorate eventually to all citizens over the age of 18. This is a landmark act as it recognises and entrenches the rights of citizens to be able to vote for their representatives, bringing about a higher degree of democracy.
Which courts have the power to establish precedent?
The supreme court and courts of appeal have the power to establish precedent, meaning that their decisions must be followed by every lower court; further developing the common law.
How did the Treaty of Ascension & European Communities Act 1972 make EU law an important source of the UK constitution?
The treaty of ascension (international agreement signed by Pm Heath in 1972 UK, Denmark, Ireland and Norway to join European economic community) this was put into action. This is an important aspect of our constitution as parliament ruled that European law should be a part of our constitution, and as parliament is sovereign EU law is therefore an important part of our constitution.
What are treaties? How do they become an important source of the UK Constitution?
Treaties are international agreements binding by international law, they are contracts signed between countries which they vow not to break. Government ministers broker these treaties, parliament does not necessarily have a structure this. They are a source of the uk constitution as they include important issues, such as the finances, human rights and military support.
What are the main differences between unitary and federal constitutions?
Unitary state is a state where power ultimately lies firmly in one place (e.g. power lies firm in the House of Parliament in Westminster, London). However, a federal state is a state where the sovereignty divided vertically and horizontally between states the higher government.
How have recent constitutional reforms impacted the House of Commons?
Wright committee recommended changes, implemented in 2009 -Select committee chairs elected by MPs across Parliament, MPs given additional salary -Other select committee members chosen by MPs in their party, encourages broad support (rather than the support of the whip and party leader) -Backbench business committee created to help backbench MPs gain support in Parliament -Liaison committees set up (members are the chairs of other committees) to question PM twice a year -E- petition 2011 100,000 signatures up for debate in Parliament, 2015 petitions committee set up to gather more information about petitions and to pressure the government to implement these suggestions.
What is an example of a constitutional convention?
a constitutional convention is the appointment of the prime minister. By convention the monarch asks the leader of the party with the greatest majority to form a government and become prime minister. This convention gives the monarch a role within the peaceful transition of power and enables the monarchy to continue playing a vital role in public services.
What is meant by the claim that codified constitutions can politicise the judiciary?
· Having a codifies constitution with legally enforceable rules, rather than a large number of conventions would politicise the judiciary. Judges would gain considerable power as they would be able to determine what is and is not constitutional (this is a concern for many due to corruption) · Similar to statutes, codified constitutions can be vague. However, what is excessive, cruel and unusual is not universal to all individuals. As a result, the US supreme court has to provide the defi native definition when the amendment arises in a case. The UK Supreme Court would have to do the same if we adopted a codified constitution 'excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted'-us constitution
How has the royal prerogative been impacted by recent constitutional reforms?
· Historically separation of powers relied on convention · Constitutional reform Act 2005 physically separated the legislative and judicial branches by removing the Law Lords from the House of Lords and establishing a new UK supreme court. This divided the Lord Chancellor's overlapping responsibilities between the three separate positions. It reduced the governments influence over judicial appointments · The house of Lords act 1999, removed but 92 hereditary peers greatly altering the party balance and giving the house greater legitimacy · The wright committee reforms strengthened select committees in the house of commons helping them hold the government accountable
What problems would likely arise when attempting to draft a new codified constitution?
· If parliamentary sovereignty is under question, perhaps a new codified constitution is necessary. · If citizens were able to influence the drafting of a new constitution and ratify it in a referendum, it would greatly increase legitimacy. As it would be easier for citizens to understand than our current constitution, with the multiple sources and conventions. · However, Parliament were able to pass constitutional statutes due to the flexibility of our constitution. Drafting a new constitution would be extremely difficult, how would a compromise be met on disputed principles, and vaguely define principles. Putting the unwritten into writing would be very difficult to achieve. · The UK has not had any recent event necessary for a new constitution to be made (revolution) · · House of Lords Act 1999 was supposed to be the first stage, however as politicians could not agree the second stage was not implemented. Therefore, is it unrealistic to believe that we can agree on an entire constitution. What conventions should take place in the new constitution and how should they be included.
What is an example of where disagreement over conventions has caused controversy?
· October 2015, House of Lords had to vote on significant cuts to existing tax credits, which are paid to those of low incomes. The government argued that the Salisbury convention (not block bills included in the government's manifesto) required the peers to accept the bill. Also argues that the lords were limited by the Common's financial privilege, the convention that the lords should not oppose the government on issues of taxation and public spending. · However, to the frustration on the government the House of Lords voted to delay these cuts. Peers argued that the Salisbury convention did not apply, as while the conservative party has pledged in their manifesto to cut £12 million from the welfare bill, they did not specify tax credit cuts (even when asked). They also argued that financial privilege did not apply as the tax credits were being cut by a secondary legislation, and the convention only prohibited the Lords from blocking primary legislation. · Ultimately as conventions are not written and legally binding, there was nothing that the government could practically do, but complain that the House of Lords had acted unconstitutionally. · Legally there is nothing that Parliament can do to challenge the PM's use of the prerogative power to order the military int action overseas. Politically a convention has arisen whereby parliament is given the opportunity to debate military action this first. For example, in 2013 Parliament where given the opportunity to debate on Syrian intervention first, Parliament voted 285-272 against military intervention following claims that the Syrian government unleashed chemical weapons on its civilians. Subsequently, the plans were put on hold, despite PM Cameron's preference for intervention. However, two years later Cameron had to inform the House of Commons that two British citizens were killed in Syria by an RAF drone strike, Parliament had not permitted these strikes, however Cameron argued that I order to protect a humanitarian catastrophe he had to act immediately and notify Parliament afterwards.
How has devolution impacted the UK Constitution?
· Scotland 1997 devolution referendum 73% yes (act in 1998) · Wales 1997 devolution referendum 50.3% yes (act in 1998) · N.Ireland Good Friday referendum (included plans Northern Irish political assembly) 71.1% yes (act in 1998) Many powers have been reserved but increasingly legislative and financial powers have been devolved to Scotland N.Ireland and Wales. In practise, devolving powers has weakened Parliament's sovereignty.
What are the benefits of the existing relationship between UK judges and elected officials?
· Sovereign Parliament contains elected representatives, whereas the Supreme Court contains appointed judges. MPs can be held accountable at future elections; judges hold their position for life. Parliament consists of multiple parties debating and potentially reaching compromises, courts have clear victors and losers and while decisions made by Parliament are flexible and mistakes can be corrected, judges are expected to follow past precedent. · · Judge's ruling on matters undermines partisanship between divided groups in society. Politics, whereas enables us to compromise and express our views hence making the result more legitimate. E.g., the abortion debate in the UK versus the US . In the US it was the Supreme court that declared in the landmark case Roe v. Wade (1973) that there was a con right to privacy that protected a woman's decision whether or not to have an abortion. This decision was controversial as privacy does not appear in the constitution, the judges argued that this right was implied. However, critics (activists and representatives) disputed this as they believed that unelected judges were twisting the wording of the constitution to force their views on the rest of the country. · In contrast, the UK Parliament legalised abortion in the 1960s following a debate in which all sides were able to give their views. The 1967 Abortion Act disappointed pro-life groups, but it is a legitimate act of Parliament. Cannot be disputed in the same way a court interpretation can. · Correct balance between executive and judiciary which creates a dialogue. Independence of appointed judges gives them the right to make unpopular byt legally sound rulings that put pressure on the government to respect rights of minority groups. Ultimately, the final decision lies with elected MPs not unelected judges, Parliament retains sovereignty. However, independent and respected judges can act as a strong political check on how they wield that power.
Why can strong checks and balances lead to 'gridlock'? What is the problem with this?
· Strict checks and balances can create problems. Mostly by leading to gridlock. If each branch can check the power of the others, proceedings can grind to a halt when they do not agree on important issues. It can be argued that the political constraints on the UK governments power is just as effective as entrenched legal limits. · The US president is prohibited to vote on bills in congress but can veto bills that congress passes. However, if the president's aims are different to that of congress, there can also be a gridlock. If the president is a democrat (or vice versa) the republicans dominating congress would make it extremely difficult to get any bills passed. Likewise the house of representatives and senate both need to agree on bills otherwise both houses can veto bills passed by the other, this can similarly cause things to grind to halt if one party has a majority in one house but not the other. · The UK may have less checks and balances but it can make government more effective · The reason why the convention evolved that the queen appoints the leader of the largest party of the Commons as Pm as it was believed that this person would have the majority of support of MPs and so would be able to get things done.
Why can the UK constitution be said to be 'too flexible'?
· The UK constitution is said to be too flexible as it is uncodified. This is the argument which states that Parliament should not be able to make fundamental changes to our constitution with just a simple Act of Parliament. · Proposing an amendment to the US constitution requires a 2/3 supermajority vote in the House of Representatives and Senate. Or 2/3 state legislatures to call for a national convention to propose amendments (never been used due to difficulty). I f successful have to be ratified by ¾ states legislature of ¾ of special ratifying conventions held in each state. · To amend the UK constitution requires a simple act of parliament, and since the parliament Act of 1911 not even the House of Lords can prevent a government with the support of the majority of the Commons from making sweeping constitutional reforms.
What are the advantages of having a more rigid codified constitution?
· The US constitution is intentionally difficult to amend the Founding Fathers wanted to ensure that any amendments would undergo intense scrutiny so that they would not undermine the constitutions core principles. They did not want changes to be made that would break the system of checks and balances or to undermine the Bill of Rights. · However, there is a convention arising in the UK where referendums are held prior to significant constitutional reforms, but there is no unanimous agreement over this and it is not legally enforceable, and after Prime Minister Cameron's defeat ion the 2016 EU referendum (which led to his resignation) future governments may feel weary before putting similar reforms to a public vote. · We rely upon political limits, the fact that any government that want to be re-elected cannot completely ignore public opinion. In the past this pressure has restrained the behaviour of governments n the past, but it may not be a strong guarantee for the future. Thi8s puts the rights of minorities. who do not pose as much power as the majority in question. As in emergencies the government can put Parliament under considerable pressure, to pass controversial laws which may infringe the rights of minorities quickly. · E.g. in 2001 for example, in the Anti-terrorism, Crime and Security Act allowed the indefinite detention of foreign terrorist suspects without charge or trial. The bill was introduced just two months after 9/11 and so the government was under extreme international pressure. The Bill infringed habeus corpius laws and received royal assent just a month after the 16-hour parliament debate. The house of lords ruled that the law was a threat on human rights however as the government had a majority in the House of Commons the Bill was passed. · All acts of Parliament can shape our constitution and override long standing constitutional principles and so the UK should adopt an entrenched Bill of Rights · Would be an excellent opportunity to establish clear separation of powers and a strong system of checks and balances
What are the problems with having a weak separation of powers?
· The sovereignty of Parliament is questionable as the House of Lord cannot veto bills and the monarch always grants royal assent. Therefore, do we instead imply sovereign House of Commons? · The House of Commons is dominated by the government as long as it can keep the majority of MPs on its side. It is extremely unlikely that the government's proposals will be defeated. Therefore, it may be more accurate to mention a sovereign government. · A fused executive and legislative branches are really unusual most codified constitutions What are the arguments for & against adopting a codified constitution in the UK? Part 1 create very distinct branches in government; the US government depend on congress to approve funding and pass proposed legislation. However, the government do not get the vote in congress, and members in congress re prohibited from working in the president's administration without resigning. If congress does pass presidential bills, the supreme court has the power to strike them down if they are unconstitutional. No such check exists in the UK. · Lord Hailsham ended by arguing 'I envisage nothing less than a written constitution of the United Kingdom, by that I mean that we must limit the powers of parliament and provide a mean of enforcing these legislations, by political and legal means. Suggests the codified constitution should include entrenched limits on parliament's powers, elected senate representing different regions to limit the power of the Commons and an entrenched Bill of Rights could be enforced by the courts with a new federal settlement alongside devolved powers. · Recently we have taken further steps towards his vision, however are not necessarily at the system he described.
What are the problems associated with rigid codified constitutions?
· While the flexible uncodified constitution can involve the times entrenched codified constitutions can become outdated. The US constitution has only been updated 17 times since the 1791 Bill of Rights (10 amendments). Amendments have been infrequent last in 1992 · The expectations of citizens today are different from those of 200 years ago. The US constitution was formed there were only 13 states, slavery was rife and there were only 3million people. · As the amendment process is so difficult, many amendments that have been proposed to ensure that the on keeps up with changes I society, have failed. For example, the Equal Rights Amendment "equality of rights under the law shall not be denied or abridges by the United States or by any state on account of sex" Supermajorities in both houses of congress successfully proposed this amendment in 1972 but only ratified in 35 states (35 needed,) · Bounded by constitution 200 years ago also large impact on response to mass shootings. The second amendment is confusingly written however does reference a vague right to keep and bear arms. Guns are more lethal however the US government is limited on their action doe to the constitution. In contrast in the Dunblane school Massacre of 1996 where an armed man killed 17 school children and a staff member and subsequently himself caused public outcry (snowdrop petition collected over 750,000 signatures. Parliament passed the conservative government act which first introduced an act to ban almost all handguns, and the newly elected labour gov expanded the act to all handguns. · However, in the US there was a similar tragic shooting in Sandy Hook elementary school in 2012, a man entered the school with a hand gun and assault rifle, killed 20 children, 6adults and subsequently himself. There was public outcry and tremendous pressure on congress to take action (100,000 people signed a petition), and Obama vowed to take all possible actions in his power to prevent further atrocities. A part from amending the constitution there was not much he could do, there were more than 1,000 mass shooting since then
Why can it be argued that the political limits on executive power in the UK are as effective as constitutional limits?
· Without a codified constitution we rely upon political rather than legal constraints on the government. Arguably these constraints are just as effective as the threat of defeat at the next election should make the government limit the use of their considerable power, if it wishes to get re-elected. · Backbench MPs: a government may face opposition within its own party if it strays too far from the manifesto. · Select committees; Increasingly independent select committees scrutinise the government and publicise government failings. Pressuring the government to adopt their desired changes in the selected system. · House of Lords 1998: have become increasingly assertive since 1999 reforms and regularly defeat the government's proposals which are not overturned in the Commons. · Referendums: pressure to hold referendums and adhere to their result also limits the government. Pm Cameron had no obligation to fulfil BREXIT, however political pressure forced his hand on the matter. · Courts: lack an entrenched bill of rights, governments find it difficult in practise when courts rule laws are incompatible with human rights. · UK gov ministers considerable powers and the royal prerogative, parliament can place effective on these power with a statue. No need to a codified constitution to do this. · · No entrenched bill of rights there are constitutional statutes that in practise would be difficult for governments to repeal.
