nature of the constitution note flashcards

fill in the blanks unit 2.2.1

A constitution is …

a set of rules and agreements that defines how a state, or a society is run. Every state has a constitution, including dictatorships like North Korea

A constitution sets out …

where sovereignty lies and how power is divided between different institutions of the state. It places limits on the power of rulers and has sections to guarantee the rights of individuals under the government known as civil liberties

A constitution doesn’t define precisely …

what should happen in a society, instead it acts as a framework upon which a state can build laws and more complex governmental structures

Constitutions provide …

legitimacy to those in power and the legal status of actions of the government

Constitutions protect …

freedoms and restrain those in office, setting out the rights and responsibilities of government

The first 10 amendments of the US constitution of 1787 are known as …

the US bill of rights. these set out basic rights for citizens and include provisions such as the first amendment (freedom of expression) and the second amendment (right to bear arms)

constitutions encourage …

stability in government and society by introducing order and predictability into the way the government runs

they distinguish the spheres of influence of distinct parts of the government, particularly in …

a federal system where there can be multiple constitutions within a single country. For example, article 1 of the US constitution outlines how congress is chosen and run, article 2 how the president and executive and article 3 the supreme court.

A new constitution was written for Russia after the collapse of the soviet union

Constitution of the Russian federation 1992

A new democratic constitution for Germany after WW2 and the fall of the third reich

The basic law of west germany 1949

The first constitution of an independent ireland after the termination of its links with the British government

the constitution of ireland 1937

what are the main types of constitution?

Codified vs uncodified, flexible vs entrenched, unitary vs federal, parliamentary vs presidential

In a codified constitution, all its major parts are enclosed in a single document …

these constitutions usually are a revolutionary constitution, created as a fresh start for the governance of a country. the best example is the US constitution of 1788 which was created after the decleration of American independence from Britain

Federal constitutions

the USA and Germany have federal constitutions. The US is made up of 50 states which have their own governments and their own rights. Federal governments don’t control state governments. for example, they are responsible for foreign policy but not crime, with 23 states allowing the death penalty, but 27 not.

The UK and france have unitary constitutions …

this means that one central government holds power. In Britain power is held by westminsters parliament and executive that comes from within it. any power elsewhere is done via a process of devolution

in an uncodified constitution …

the elements that make it up are not enclosed in a single document and draws on a wide range of sources

uncodified constitutions are usually …

evolutionary, they have evolved organically over an extended period. they have them in the UK, Israel, Canada and New zealand. as of 2021, only 5 countries have uncodified constitutions, two of which were parts of the British empire and remain in the commonwealth, sharing constitutional characteristics with the UK, such as the king as head of state

the structure of a codified constitution is usually …

Preamble (opening statement of principle and aims) organisational section (article explaining government institute duties and organisation) bill of rights (a statement of civil liberties) constitutional amendments (any changes made to the original)

a flexible constitution is one that can be changed very easily

they can be altered easily by enacting new statute laws. this means there are not fundamental or constitutional laws with their own special procedures for enactments. these are rare, however the UK has one.

In 2011 the fixed term parliaments act was passed …

which removed royal prerogative powers of the PM to call a snap election at a time of their choosing. it placed in statute the precise circumstances a general election can be held

The fixed term parliaments act was repealed …

in 2022 by the dissolution and calling of parliament act which returned the power to the PM, a clear example of flexibility.

an entrenched constitution is difficult to change because …

they require specific procedures put in place that have high thresholds of political support before any change can be made. the procedures that bring about this entrenchment can lead to codified constitutions being rarely changed.

there are 2 processes under which the US constitution can be amended …

a supermajority in both house of congress or a constitutional convention being called by 2 of the 3 state legislatures. under these processes there have only been 27 amendments to the US constitution since its advent. Similarly, the french constitution has been amended 24 times and the Japanese constitution not once.

Founding father of the US constitution Thomas Jefferson criticised the difficulty to amend saying that …

it should be rewritten every generation to avoid “the dead ruling the living”

within britain it has been an increasing convention that the most significant constitutional amendments may …

be put to a referendum before being enacted, such as the 2011 AV referednum, 2016 EU referendum and 2014 scottish independence referendum

constitutional flexibility means that they can be ….

easily amended when there is a political appetite for change, allowing it to keep up to date with societal changes.

constitutional flexibility prevents …

revolution as the ability of a government to alter laws makes revolution less likely and allow citizens to feel their is a clear democratic mechanism through which they can make amendments

the ability to change the constitution easily may lead to instability …

political parties can change the constitution in their political interest, leading to a lack of legitimacy in the government. For example, the elections act 2022 changed some of the rule surrounding elections, requiring voters to hold photo ID, many thought this more likely to disenfranchise Labour voters than Conservative.

A flexible constitution doesn’t entrench the protection of rights

this means that rights can be removed and changes as and when it suits parliament.

a unitary system is one in which power …

is concentrated in the central government. unitary constitutions tend to exist in smaller countries with a homogenous population. the UK has traditionally been seen as a unitary state however the establishment of devolution has challenged this.

The powers given to the scottish and welssh governments and Northern irish assembly are devolved powers …

the westminster government therefore retains sovereignty, as an act of parliament could reverse the acts of devolution

federal constitutions have shared sovereignty …

where the federal government will control some issues while state or provinces will be in charge of others. In the USA, states are allowed to choose if they use capital punishment.

the benefits of unitary constitutions are …

it can lead to streamlined decision making and therefore make it quick and more efficient to implement policy. There can be better coordination between regions and foster a clearer sense of national unity and identity

some benefits of a federal state include …

localism can be advanced allowing to more constented citizenry, government may not become too powerful as power is difused and it can create dual-identities that allow citizens to feel part of a nation-state and region. Federalism may also increase political participation as there are more layers of government that voters can have a say on.

A presidential system is one in which …

the branches of government are clearly separated, meaning there are more checks and balances, known as the seperation of powers.

in a parliamentary system there is a

fusion of powers in which the executive, legislature and judiciary overlap. In the UK, a person can be an active member of different branches and crucially, the executive can only hold power if they retain the confidence of the legislature.

Rishi Sunak was PM and therefore head of the executive but also …

MP for Richmond and part of the legislature. as leader of the largest party in the commons he was invited to become PM, as PM he appointed judges on behalf of the king, therefore holding a role in all three branches of government.

the benefits of a presidential system are that …

it creates strong leadership as presidents are elected directly by the people and hold concentrated power, has clear separation of powers and provides political stability and predictability as a result of fixed office terms

the benefits of a parliamentary system are that …

there is a clear accountability of the executive to parliament as the government is accountable to parliament and must answer them. it ensures government have continued legitimacy beyond elections, allows for efficient decision-making and allows for flexibility in forming governments.

other key characteristics of constitutions are that …

some are monarchical and others republics. the UK, Canada and Australia all have a constitutional monarchy, however Qatar and Saudi arabia are absolute monarchies. Disimilarly, the USA and Germany have a federal republic and Ireland a unitary republic.

there are 4 fundamental principles of the UK constitution:

Parliamentary sovereignty, the rule of law, the fusion of powers and a constitutional monarchy

parliament is the supreme legal authority of the UK and can …

create or reverse any law, and any other body cannot challenge this. Parliament cannot bind its successors and each parliament is sovereign

the doctrin of parliamentary sovereignty in the uk has three key facets …

law on any matter, including retrospective laws (eg. the War Crimes act 1991 gave british courts the right to try individuals who became citizens after 1990 for crimes committed during WWII) legislative supremacy, the idea that parliament is sovereign over other branches and equality of legislation (all laws have the same status)

AV Dicey summed equality of legislation as

Parliament can “make or unmake any law” whilst sir william blackstone said parliament “can do everything that is not naturally impossible”

the rule of law means that

everyone is equal under the law no matter their power or status (eg. Boris Johnson was first PM to be interviewed under caution by police over PartyGate) the law is adminstered independently of the government, citizens have rights and government power is limited.

AV Dicey states that “twin pillars of the constitution” are …

parliamentary sovereignty and the rule of law

in the british constitution there is what walter bagehot called a “fusion of powers”

the government is appointed from the legislature, meaning it is directly accountable to it. in the UK the executive and legislature are intertwined and the PM is de facto head of legislature, which some argue creates an elective dictatorship.

in a constitutional monarchy ….

the monarch remains a part of parliament, although their position is now symbolic and ceremonial. a law cannot be passed without their royal assent, although the executive powers of the king are now delegated to the PM through royal prerogative.

in the UK the monarch has 2 roles

head of state and head of nation. there are five constitutional roles of the monarch: representing the UK as a head of state on the internationally stage, granting royal assent to legislation, appointing and dismissing a PM, prorouging and summoning parliament and honorary appointments such as peerage

what are the 5 sources of the UK constitution?

statute law, common law, convention, royal prerogative, works of authority

statute law is traditionally seen as the primary source of the constitution.

as parliament is sovereign, statute law is seen as the supreme source of constitutional law.

statute law yields the most important sources of the constitution because of …

parliamentary sovereignty, popular legitimacy as parliament is the elective body of the people, legislative equality and the doctrine of implied repeal (if any law contradicts existing statue law, the newer law automatically replaces the older one)

examples of statute law include …

the scotland act 1998 which established a devolved parliament and government, the notification of withdrawal act 2017 which triggered article 50 and started the process of brexit and the house of lords act 1999 which hereditary peers bar 92.

common law related to

customs and practices that have developed through the precedent set by judges in their decisions. Examples of british values are established through common law such as freedom of speech.

what is common law?

it would be impossible for parliament to legislate every possible scenario that could arise in law, so judges fill in the gaps using judicial precedent.

famous examples of common law include …

murder and contempt of court. murder has not been defined by parliament and instead has evolved as common law.

in 1995 parliament passed the disability and discrimination act …

within this legislation it stated that it was illegal for employers to place staff in a position which was likely to make their disability worse. the term ‘likely; was not defined in legislation and it took SCA packaging vs Boyle to define what is meant by the term ‘likely’

the contracts act of 1999 clarified the common law position on contract law and…

allowed third parties to enforce a contract if it was expressly inficated.

A convention is …

a practice that is followed despite not being codified or specifiied. conventions aren’t legally binding; the passing of a statute law could easily overrule them. however, they play a vital role in the constitution.

Some unnamed conventions include …

the monarch acts on the advice of ministers, the leader of any party with a majority is invited to form the government and become PM and any money bills must come from the house of commons

the sewell convention dictates …

that the westminster parliament will only legislate on reserved matters and will not legislate on devolved matters without first consulting the devolved body. it is named after Lord Sewell who helped devise it whilst sitting on the scottish constitutional commission in 1995

the posonby rule is …

a convention existing between 1950-2011 that dictates the queen can dissolve parliament if a number of certain conditions exist, named for private secretary of king george VI.

the salisbury convention dictates that …

the lords should not oppose legislation from the commons that was part of the governments manifesto. the convention aims to ensure the democratic legitimacy of parliament

what is the denison rule?

the speaker should vote for the status quo in the case of a tie in the house of commons and against any further debate. the convention was last deployed in april 2019 on a division to hold more ‘indicative votes’ on Brexit that the speaker vote 311-310 against.

conventions can develop and new conventions can emerge …

such as the carswell convention, which appears to have become accepted that if an MP wishes to change parties thay must resign and win a by-election to regain their seat. this was established in 2014 by douglas carswell when he left the conservaptives and was reelected as UKIP, as did Mark reckless. however, this wasn’t upheld for the 11 Tory MPs who left for change UK in 2019.

the UK constitution has become increasingly codified since 1997, meaning elements have become statute law. for example, the Lascelles principle …

ceased to exist when the fixed-term parliament act was passed as the act codified the circumstances under which an election could be held, making the convention redundant. the same happened to the ponsoby rule, the convention ceased to exist when the constitutional reform and governance act 2010 was passed.

a problem of conventions is they aren’t legally binding meaning …

they can be ignored and a constitutional crisis, although rare, may erupt such as in novemeber 1909 when the house of lords refused to vote for David Lloyd georges peoples budget. by convention the lords don’t go against budgets. a major crisis emerged when king george v threatened to appoint hundreds of new liberal lords and the parliament act 1911 to be passed, meaning the lords could only delay legislation for up to 2 years.

it is convention that during an election no major party will put up a challenger for the seat of the speaker of the commons …

this helps to maintain his independence and not force him to stance on political issues. however, in 2010 nigel farage famously stood against John Bercow and in 2017 lib dem sarah lowes threatened to stand against bercow.

one of the key problems with royal prerogative powers is that …

they aren’t subject to scrutiny by parliament. for example, in 2015 Theresa May ordered air strikes against the syrian government. the issue was not put before parliament or subject to a vote, leading Jermey Corbyn and others to call for a war powers act to remove the power to order military action without consent from the royal prerogative. he said “there is no more serious issue than the life and death matters of military”

the royal prerogative powers are ..

traditionally held by the monarch but are now exercised by the government and its ministers.

royal prerogative has became less significant which can be seen in …

the fixed term parliament act 2011 removing the power of the pm to call an early election (although this was repealed in 2022), the constitutional reform and governance act 2010 which meant parliament now scrutinise international treaties not government and the Miller V secretary of state for exiting the EU case in 2016 which ruled governments plan to use royal prerogative powers to initiate article 50 as ultra vires and contrary to the lisbon treaty

External relations play a role in the UK constitution seen in the …

role of the EU prior to Brexit and the factortame case which clearly established the principle whereby EU takes precedence if an EU and UK law conflict. other examples include the UN, NATO and Commonwealth

a number of scholary works are importnat sources of the constitution …

although not legally binding, influence how important political figures have acted and how conventions have developed.

examples of works of authority include …

the english constitution by walter bagehot 1867 which famously called for the fusion of powers. an introduction to the study of the law by AV Dicey 1885 set out the importnace of rule of law and parliamentary sovereignty and a treatise on law, privileges, proceedings and usage of parliament 1844 by Erskine May, known as the bible for parliament, is refered to often by the speaker of the house. Erskine may was originally clerk of the house in the mid 1800’s and the book has since been updated 23 times.

in march 2019 the speaker of the commons John Bercow controversially. ..

prevented a thrid vote on theresa may’s brexit deal, in doing so referencing page 397 of erskine may by quotes