Government and Politics Unit 2: The Constitution

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  • Created by: JM
  • Created on: 26-04-13 14:36

Definition of A Constitution

Constituiton: A set of principles, which may be written or unwritten, that establishes the distribution of power within a political system, the relationships between political institutions, the limits of government juridiction, the rights of citizens and the methods

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Features of a Written/Codified Consititution

Codified Constituion

Codificaition: The process of setting out a constitution in an organised way in a single document.

Codified constitutions have a single source.

Codification of a constitution usually happens after a significant turning point in a countries history, which creates a new state: e.g. civil war, coup d'etat or a revolution.

When a country has a codified consitution, it also means they have what is know as a two tier legal system, in which there are two levels of Law: 

  • Higher Law (these concern constitutional arrangements, e.g. who has powe, relationships between institutions, rights of citizens... all theses laws are safeguarded and entrenched)
  • Lower Law (ordinary laws which concern relations between citizens, admin of the state, criminality etc.)
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Judicial Review

Judicial review: A process undertaken by senior courts where judges are required to interpret, re-interpret or clarify constitutional rules. These take place as a response to appeals that have been made concerning constitutional laws by citizens or associations. This ensures that the meaning of a constitution can be clarified, adapted or applied to new circumstances.

Judicial review happens regardless of whether the constituion is codified or not.

When the judges have made the ruling they have, in effect rewritten the constitution, (although they don't change the actual ruling). they have altered its meaning/interpretation.

Senior Judges in the UK do not have a codified constitution in which they can refer to for guidance, regardless, judicial reviews do happen regularly in the UK. Senior judges can refer to the European Convention on Human Rights or any constitutional rules or laws tha apply to the UK.

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Advantages Of a Codified Constitution

Advantages of Codified constitution:

  • clear
  • every citizen has access to the constitiution
  • aids disputes concerning constitutional arrangements
  •  it provides the people of the state somethimg in which they can identify themsleves with i.e. Americans take great pride in their constitution: basically worship it. Pledge allegiance to it...
  • Two Tier Legal system
    • Two Levels of law
      • Higher Law
      • Lower Laws
  • Entrenchment and Safeguarding: 
  • Entrenchment protects laws from short term amendments
  • Constitution is too important to b put in the hands of a short term government
  • Judicial Review
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Weaknesses of a Codified Constitution

  • For example in the USA the government and congress are prevented of acting decisively due to fear that the constitution will prevent them from doing so.
  • government not able to act promptly and decisivley
  • in USA to make a constitutional amendment, 2/3 of congress must approve and 75% of USA states must vote "yes" to these changes, this is a very lengthy process and will be very difficult for govt to get the majority of votes needed to go through with changes.
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Features of an unwritten/uncodified constitution

Uncodified Constitution:A constitution which has not been written down in a single document in an organised form. An uncodified constitutions, e.g. Britain's is partially written and partially unwritten.

  • The British constitution is uncodified
  • parts of it are written
  • similarly parts of the constitution are unwritten
  • Not in one single document

The UK makes no distinction between constitutional laws and any other laws meaning that the UK has a single tier legal system.

There are many sources of Britains uncodified constitution.....

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Advantages of an Uncodifed Constitution

  • Flexibility Uncodified constitution is flexible and can easily adapt to changing times, and circumstances, such as the use of referendums and the changing roles of the House of Lords. If codified constitutional changes would be time consuming. it can respond quickly to changes in political climate. e.g. Belmarsh case, if Britains consitution was codified then it would have been very difficult for parliament to pass the wide range of anti terrorist laws.
  • Executive Power Government is seen as being more powerful, as they are able to make decisions and deal with crisises quickly and easy without being constricted by entrenched constitutional laws.
  • It ensures that parl and therefore govt can act decisivley, unrestricted by excessive constitutional restraints.
  • It contains traditional elements such as the HoL and the Monatchy these help retain public support for the system.
  • Highly Traditional and has stood the test of time. Britain has neve suffered a violent revolution revolution or major political unrest suggesting that the constitution has enduring qualities.
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Weaknesses of an Uncodified Constitution in UK sys

  • The lack of restraints on the powers of government and Parliament may be dangerous especially to individual and minority rights.
  • It contains traditional and outdated institutions such as the FPTP electoral system, the monarchy and the House of Lords. Not only are these systyems outdated but they are also seen as being undemocratic,
  • The lack of seperation of powers between government and Parliament means that govt tends to dominate Parliament. This is seen as being undemocratic as Parliament reperesents interests of the people
  • The fact that the constituiton is uncodifies means that many people are ignorant of it. This may result in political apathy and lack of support for the political system.
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Sources of The UK Constitution

  •  Parliamentary Statutes
    • Acts of parliament which have the effects of establishing constitutional principles.
      • e.g. Human Rights Act 1998- incorporates the codified European Convention of Human Rights into UK law, House of Lords Act 1999- abolished all but 92 hereditary peers in HoL
  • Constitutional Conventions
    • An unwritten rule that is considered binding on all members of the political community.
    • Can't be challenged in law- but have so much moral force that they are rarely disputed.
      • e.g. Salisbury convention: states that HoL cannot block any legislation which appeared in the governing parties most recent election manifesto.
      • Following an election, the Queen must invite the leader of the largest party in the Commons to form a govt.
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Sources Of The UK Constitution

  • Historical Principles These are important as they have been established over a long period of time e.g. The sovereignty of the parliament- the supremacy of parliament in legislation. All including govt itself are equal under law.
  • Constitutional monarchy- monarch has very little to no active role in parliament Common Law The development of laws through historical usage and tradition. It is treated as a rule of conduct which is generally acknowledged by many people and well establuished. e.g. principles of rights and justice. Mostly replaced by ECHR. prerogative powers of the PM. Tradition EU law and treaties
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Sovereignty in the UK: Legal Sovereignty

  • In the UK legal sovereignty lies firmly with Parliament. This means that no other body has the power to make laws or to overrule laws made by Parliament.
    • however the EU does have power to 'trump' laws made by parliament.
  • Parliament can restore all legal sovereignty by withdrawing from the EU.
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