1. The Constitution
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260 Terms
What is a constitution ?
A constitution is a set of rules within which a state or organisation operates.
Almost all political systems operate within the constraints of a constitution.
What are most constitutions?
Constitutions of most democracies are codified in a single legal document (e.g. the US constitution).
What is the UK’s constitution?
The UK's constitution, however, has evolved over a long history, and is not contained in a single document, but in many different sources.
The UK constitution is, therefore, uncodified.
How many constitutions are unmodified?
UK is 1 of only 5 democracies in the world that have an uncodified constitution.
others: Canada, New Zealand, Israel, + Saudi Arabia
what does sovereignty mean?
Sovereignty means holding ultimate decision-making power in state.
In UK Parliamentary sovereignty is a key principle.
What does sovereignty mean for Westminster?
means Westminster Parl. has supreme pol. power in UK.
Only Parl. can grant power to other bodies (eg Scot parl).
Parl can pass laws any matter it wishes.
Its laws can’t be overridden by any other body, including govt or monarch.
Only Parl can amend their laws.
What was sovereignty a main principle in?
This was a main principle in the Brexit debates going through parliament in recent years.
Is each new parliament sovereign ?
Each new elected Parliament is sovereign, so it cannot be bound by its predecessors or bind its successors, who can make changes in the future.
What is the rule of law?
Another key principle is the Rule of Law.
This is the principle that the same laws apply equally to every citizen and that government is subject to the same laws as everyone else.
What were first steps towards rule of law?
Magna Carta, in 1215, saw the first steps towards this when King John admitted limitations on his powers and granted freemen legal rights.
The idea gradually spread from this over the centuries to develop into equality under the law for everyone.
what is a monarch ?
A monarchy is a state with a King or Queen (or equivalent title) as the Head of State.
The position is inherited.
What is a constitutional monarch?
A constitutional monarch, does not have ultimate power, but has to obey the laws and constitution like everyone else.
What is a republic?
A Republic, is a state which has an elected or appointed Head of State - usually called a President. (i.e. not an inherited position - usually elected).
What is a unitary state?
The UK has a unitary constitution, in which decision-making power for the whole country is centralised. (i.e. in the Westminster Parliament - although it does devolve some powers to Scotland, Wales and Northern Ireland).
France, Spain, Italy, are also unitary states.
What is a federal constitution?
Many other countries have a federal constitution, in which power is divided between a central body and regional bodies. (USA, Germany, Australia).
In the USA, the central body is located in Washington DC, and a regional body in each state.
what was the Magna Carta?
doc. singed by Englands King John in 1215 that limited the power of the kind and protected the rights of nobles
By forcing King John (1199-1216) to accept the 63 clauses of Magna Carta, the barons placed limits on the power of the monarchy.
What did the Magna Carta establish?
This established the principle that the Crown is not above the law.
Magna Carta also contains 1st statement of principle of habeas corpus, that one can’t be punished without due process of law
when was James I overthrown?
In 1688, the last Stuart King, James I, was overthrown in the Glorious Revolution because it was claimed he was trying to establish an absolutist monarchy.
Who had to accept the bill of rights?
When Parl. offered Crown to James Il's daughter Mary & her husband William of Orange, they had to accept Bill of Rights, which gave legal force to 'certain ancient rights and liberties'.
What rights did the bill include?
These included the summoning of regular parliaments, free elections, no taxation without the consent of Parliament and parliamentary freedom of speech
What was the act of settlement?
1701 law by Parliament stating that should William III die heirless, Mary's Protestant sister, Anne, would take the throne, thereby protecting Protestant rule in England.
What did the act of settlement confirm?
Confirmed primacy of Parl. over Crown by declaring Parl. had authority to determine succession to throne.
Also confirmed judicial independence by stating judge can be removed only on agreement of both Houses of Parl.
What were the acts of union?
Pair of Parliamentary Acts passed in 1707 by the Parliament of Scotland and the Parl. of England to put into effect the terms of the Treaty of Union that had been agreed on 22 July 1706, following negotiation between commissioners representing the parliaments
What did the acts of union unite?
Although England, Wales and Scotland had shared the same monarch since 1603, the Act of Union united the Parliament of Scotland with that of England and Wales.
This created the UK, although the independence of Scottish law was preserved
When were the parliament acts?
1911 and 1949
What did the parliament acts do?
Reduced rights and powers of HofL eventually resulting in lords only being able to delay legislation for one year.
What caused the 1911 parliament act?
As a result of HoL' refusal to pass Lloyd George's People's Budget, Liberal PM H.H. Asquith (1908-16) threatened he would ask King George V (1910-35) to flood HoL with Liberal peers if it did not accept limits on its powers.
The HoL relented, and in the 1911 Parl Act the Lords lost its right of veto.
What would the lords not be able to do henceforth?
Henceforth the Lords would not be able to amend financial bills such as the Budget, while it would be able to delay other bills for only 2 years.
What did the 1949 act reduce?
The 1949 Parliament Act reduced the Lords' right of delay from 2 years to 1 year.
What did the 2 parliament acts establish?
The 2 Parl Acts established democratic legitimacy of Parl by asserting primacy of HoC over HoL
When was the European communities act?
In 1972, the Conservative government of Edward Heath (1970-74) successfully steered the European Communities Act through Parliament.
What was the result of the European communities act?
As a result of the Act, the UK joined the European Economic Community (from 1993 the European Union) on 1 January 1973.
What was the factortame case?
In 1991 in the Factortame case (see Chapter 8), the principle that, in cases of overlap, European law would take precedence over domestic law, was established
What was this reversed by?
This was reversed by the EU (Withdrawal) Act in 2020.
What is the legislature ?
Legislature: The body/institution that debates and agrees laws.
What is the executive?
Executive: Responsible for making decisions, governing and putting laws into effect.
What is the judiciary ?
Judiciary: The judges who interpret and adjudicate matters of law
What are the 3 branches in the UK?
legislature = parliament
executive = pm / cabinet
judiciary = supreme court
What are the three branches in USA
Legislature = congress
Executive = president
Judiciary = supreme court
What is separation of powers?
Dividing the government into 3 branches follows the principle of 'separation of powers'.
What is the aim of separation of power?
The aim was to spread power of government, rather than concentrate it all in one institution or person, and risk tyranny/dictatorship.
How is the US more separated?
The US separates power much more than the UK.
E.g. the US president and cabinet do not have any place in the US Congress; executive and legislature are separated.
What is fusion of powers?
To be UK prime minister (or in the cabinet), you must be either a member of the HofCs or the HofLs.
So, PMs have power in executive & legislature. = ‘Fusion of powers’
what is entrenchment?
Entrenchment is principle constitutional laws are safeguarded against being too easily changed by future govt.
What is aim of entrenchment?
The aim is to ensure constitutions are only amended when there is widespread popular support for the amendment, and it is widely agreed that change is needed.
What are most democratic constitutions?
Most democratic constitutions are entrenched in some way.
How can US constitution be amended?
US Constitution can be amended with the support of 2/3 of each house of Congress and ¾ of the 50 states.
How has US constitution be amended?
There have been more than 11,000 attempts to amend the US constitution but only been 27 have been successful.
How can UK constitution be amended?
The UK constitution, however, is unentrenched and it can be amended by a simple Act of Parl. with anything over 50% voting in favour.
This is because Parliament is sovereign
Summary of fundamental differences of UK and US constitutions
Unmodified v. Codified
Unentrenched v. Entrenched
Unitary v. Federal
Constitutional monarchy v. Republic
-Parliament shouldn't be able to just make fundamental constitutional laws like any other law, this could undermine what are the core principles eg there us a long process in US with ratification of 3/4 state legislatures. This would also stop the government from being too powerful, can we trust the gov to make amendments that won't sharply enhance their own powers?
-it would allow us to determine whether our constitution is fit for purpose, the obscure nature lacks clarity and therefore is hard to tell. Conventions can be misinterpreted under our system and give too much power to the judiciary, it politicises the judicairy. if judges are unelected and unaccountable then they are arguably more important than MPs, it is much easier to determine a codified constitution than vague ambiguous conventions
what is statute law?
Momentous Acts of Parliament contribute to the UK's uncodified constitution.
How was parl. act 1911 statute law?
Parliament Act 1911, which removed HofLs' right of veto, is of key constitutional significance because it established the principle that Parliament should reflect the democratic will of the public expressed through the HofC.
How is representation of people act 1928 statute law?
Another parliamentary statute of enduring importance is the Representation of the People Act 1928, by which the UK adopted universal suffrage.
what is common law?
The way in which the judiciary interprets the meaning of the law contributes to the development of case law.
This is especially important on occasions when statute law is lacking or unclear.
The precedents set in such cases are so far-reaching that they can be said to contribute to the constitution as common law.
What are examples of common law?
Table 5.2 gives some examples.
What are conventions?
Although they are not recognised in statute law, a number of conventions have developed which, like common law, have achieved the force of constitutional precedence.
What is a convention on HofL?
no legal requirement that member of HoL cannot be PM.
However, in 1963, Lord Home recognised that this would be constitutionally unacceptable, and he resigned his peerage so that he could fight a by-election to enter the HoC as Sir Alec Douglas-Home.
what is convention on responsibility?
principle of cmr is, likewise, convention which has developed as way of ensuring govts survive rather than fragment.
What is a convention on military?
In 2003, by allowing HoC to vote on whether to support mil action against Iraq, TB established convention henceforth Parl should be consulted over large-scale commitment of British forces to military operations.
What is a convention on referendum?
Another convention that has developed in recent years is that the public should be consulted in a referendum in order to legitimise proposed changes to the constitution.
What is Salisbury convention
According to Salisbury Convention, HoL does not oppose the second or third reading of legislation that was in the winning party's manifesto.
Who was Salisbury convention names after?
This convention was named after Robert Gascoyne-Cecil, the fifth Marquess of Salisbury (1893-1972).
When was Salisbury convention established?
This convention was named after Robert Gascoyne-Cecil, the fifth Marquess of Salisbury (1893-1972).
What are landmark decisions?
Like conventions, some historical events are so momentous that they contribute towards the constitution.
How is the Magna Carta a landmark decision?
Magna Carta (1215), for example, by recognising that limits can be placed on the authority of the Crown, has played a major role in the development of the principle of the rule of law.
How is the petition of right a landmark decision?
The Petition of Right (1628), which Parliament presented to King Charles I, sets out core rights including freedom from arbitrary imprisonment and the requirement that Parliament grant taxation.
How is the bill of rights a landmark decision?
The Bill of Rights (1689) asserts the subordination of the Crown to Parliament, as well as condemning "illegal and cruel punishments.
What are authoritative works?
There are a small number of influential works that are said to be part of the constitution.
What is an authoritative work by Bagchot?
The way in which Walter Bagchot, in The English Constitution (1867), explains the relationship between the monarchy, the legislature and the executive makes this work a core constitutional text.
Are all authoritative works old?
Since the constitution is constantly evolving, new authoritative works can become part of the constitution.
What is authoritative work by O’Donnell?
In 2010, the cabinet secretary, Gus O'Donnell, produced such a complete guide to how a coalition government should be established that it has achieved constitutional significance.
What was Erksine May's work
Erskine May (1815-86). a clerk of the House of Commons, published Parliamentary Practice in 1844.
It explains in minute detail how Parl. operates and is now in its 24th updated edition.
It is so authoritative that it is regarded as being part of the UK constitution.
When was Erskine May’s work used?
In March 2019 the speaker of the House of Commons, John Bercow, used principles established by Erskine May to stop T. May reintroducing her Brexit deal into parliament in an unchanged state.
What was Dicey's work
A.V. Dicey's Introduction to the Law of the Constitution (1885) is similarly important because of the way in which Dicey explains how the British constitution rests upon the 'twin pillars' of parliamentary sovereignty and the rule of law.
When did EU treaties stop being part of UK constitution?
all EU treaties ceased to be part of the UK constitution at the end of the transition period (31/12/2020)
What was the treaty of accession?
As result of European Communities Act 1972, UK accepted the Treaty of Accession which PM, Heath, had negotiated.
This made UK signatory to Treaty of Rome (1957) and meant UK accepted all existing European Community law.
What other EU treaties have been ratified?
UK has subsequently ratified number of other EU treaties such as Single European Act, Maastricht Treaty and Lisbon Treaty, as result of which UK law has been significantly changed.
What does EU (withdrawal) act transfer?
impact on UK constitution of membership of EU will remain substantial, since EU (Withdrawal) Act 2018 transfers all existing EU law into domestic law.
According to govt, this will ensure that there is no 'black hole in our statute book'.
How does multiple sources bring complexity?
The UK constitution's multiple sources can make it complex and difficult to understand.
It lacks the clarity and simplicity of a single written document like the US constitution.
How does multiple sources bring uncertainty ?
Because much of the UK constitution relies on unwritten conventions and traditions, there can be uncertainty about its exact nature and scope.
This can lead to disputes and disagreements over constitutional matters
How can multiple sources bring potential for abuse?
The flexibility of the UK constitution, particularly its reliance on unwritten conventions and traditions, can create opportunities for abuse by those in power.
Without clear legal constraints, government officials may exploit ambiguities in the constitutional framework to advance their own interests at the expense of democratic principles.
How can multiple sources bring adaptability?
The UK constitution can evolve over time to reflect changing societal values and norms.
It is not bound by a rigid written document and can adapt more easily to new circumstances.
How can multiple sources bring pragmatism?
The UK constitution's flexibility allows for pragmatic responses to political challenges and crises.
It can accommodate innovative solutions without the need for formal amendment processes.
How can multiple sources bring balanced govt?
By drawing from multiple sources, the UK constitution promotes a balance of power between different branches of government and institutions.
This can help prevent concentration of power in any one entity.
2B NOTES !!!
* Statute Acts affecting who can vote and election rules (Representation of the People Acts)
* Devolution Acts (decentralising some power from Westminster to regions of the UK)
* Statute Acts that Reform the House of Lords
* Statute Acts defining rights and civil liberties (particularly the Human Rights Act)
What are the 5 key principles of UK constitution?
Parliamentary sovereignty
Parliamentary govt.
Constitutional monarchy
EU membership
The rule of law
What are the twin pillars?
‘Parliamentary Sovereignty’, and ‘The Rule of Law’ are the two most significant ideas, and Walter Bagehot called them ‘the twin pillars of the UK constitution’.
What is parliamentary sovereignty?
Sovereignty is concept of absolute & unlimited power, implying ultimate authority to make legal or pol. decisions.
It is a vital concept because those with legal and pol. sovereignty can amend constitution.
In UK constitution this sovereignty lies with parl., who can make, unmake, or change any law as it wants.
How is parl. limited by concept of ‘political sovereignty’?
Parl. can make any law it likes, legally, but that does not mean it can do so politically.
E.g. Parl. has legal right to abolish elections & rule by itself. But it would face protests & possibly rev. – it just couldn’t do it as a political reality in a democracy.
How is parl. limited by ‘popular sovereignty’?
The voice of the people has grown louder, arguably at the expense of Parl.
There have been more refs. since 1997 than ever before, and they influence Parl. (e.g. Brexit).
Devolution has given citizens of much of UK a greater voice outside of Westminster.
The HRA has given Judges more power to protect citizens’ Civil Liberties.
How is parl. limited to some extent by outside influences (especially in or around elections)?
Parl’s sovereignty is limited because it has to listen to:
Powerful PGs such as CBI (Confederation of British Industry), view of its allies, such as US, & the policies of international bodies such as NATO and the UN.
What is the rule of law
The 'rule of law' means that everyone in the country is equally subject to the law.
The government, through a series of checks and balances, are just as liable to the law as everyone else.
how did Sunak and BJ face rule of law?
In 2022 BJ + Rishi Sunak were fined for breaking lockdown rules, showing everyone is subject to law.
How was BJ’s proroguing example of rule of law?
process of judicial review (JR) means way public bodies make decisions can be challenged in court, by Miller and others.
In Aug. 2019, BJ prorogued (suspended) Parl. for 5 weeks when he was trying to push Brexit through - and this would have prevented parliamentary debate.
An appeal was launched, & eventually SC ruled govt's decision was unlawful, and Parliament was recalled.
What is UK’s constitutional structure based on?
The UK’s constitutional structure is based on a fusion of power between the executive and Parliament.
Why do govt. and parl. overlap?
Government and Parliament overlap because the government governs in and through Parliament.
Where do govt. ministers sit?
Government ministers sit on the front bench in the HofC and also in the HofL.
This is in contrast to the US, where Trump and his executive are separate from the legislature.