Politics Unit 2

  • Created by: che Azadi
  • Created on: 20-01-13 21:28

What is a constitution? Unit 2.

  • “A social contract between the people and their government” (McNaughton) which underpins the workings of a political system.
  • It sets out the basis upon which the people agree to be ruled and the govt agree to act within strictly defined rules limiting their power to do as they wish.
  • Within these rules provision is made to protect the civil liberties of the people and to set out the procedure by which the Constitution can be altered.
  • A constitution spells out the architecture of governance. It spells out the rules which establishes the duties, powers and functions of the various institutions of government.
  • It also defines the relationship between the state and the individual.
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Difference between codified and uncodified.

What is the difference between a codified and uncodified constitution?

  • Codified – written in a single document, also entrenched and superior to all other laws.
  • Uncodified – growing collection of documents, laws and traditions. The UK Constitution has various sources from which it has developed.
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Arguments suggesting there isn't a UK Constitution

What are the arguments given suggesting there is not a UK Constitution?

  • It is uncodified – not organised into any single codex or document, but is scattered in many different sources and some parts are unwritten. Therefore, how can it be followed as a superior power?
  • Constitutional statutes do not have more authority than other statutes.
  • Constitutional laws cannot be entrenched due to parliamentary sovereignty, e.g. 1994 Criminal Justice Act overturned the Constitutional “right to silence.”
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What are the arguments given suggesting there is..

 What are the arguments given suggesting there is a UK Constitution?

  • There is a general sense of a constitution.
  • Tradition is a very powerful influence within the UK. Governments are reluctant to infringe independence of the *Judiciary, freedom of expression, primacy of the Cabinet etc.
  • The public act as guardians of constitutional principles by voting out govts that have offended against these principles.
  • There are accepted forms of constitutional rules.
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What are the sources of the UK Constitution?

  • Statute Law/Acts of Parliament.
  • Common Law/Legal Precedent
  • Prerogative powers e.g. National Security
  • Unwritten Conventions e.g. Collective Ministerial Responsibility
  • Books of Authority e.g. Dicey’s “An introduction to the study of law of the Constitution”, Bagehot, Erskine *May’s “Parliamentary Practice”
  • European Law including treaties such as Maastricht Treaty, Lisbon Treaty
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What is the weakness of the UK Constitution?

  • Statute is supreme over other constitutional authorities.
  • Therefore, an Act of Parliament can change/abolish any point of Common Law, RPP etc
  • Statute is controlled by Parliament and Parliament is controlled by governing party.
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What are the features of the UK Constitution?

  • Unitary – Sovereignty in one place.
  • Parliamentary system – supreme legislative.
  • Rule of law – guiding principle that underlies UK Constitution limits government (everyone is equal under the law).
  • Limited sovereignty – limited by EU membership.
  • Constitutional monarchy - The Queen is the head of state but her powers are strictly limited.
  • Flexible – b/c unentrenched.
  • Little separation of powers – no one person should be a member of more than one branch of govt (Montesquieu’s ideas). There is a fusion of powers between the legislature and executive.
  • Single tier legal system.
  • Uncodified but part written.
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What are the arguments in favor of a codified Cons

What are the arguments in favour of a codified Constitution?

  • To make it definitive, and not subject to the whim of the government of the day.
  • To limit executive power which controls Parliament through an elected Commons majority. The aim would be to disperse power more widely.
  • To define powers and limitations of different government institutions, making it possible for senior judges to rule when their actions are unconstitutional.
  • Individual rights are not protected enough by the Human Rights Act.
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What are the arguments against a codified constitu

What are the arguments against a codified constitution?

  • Would harm the efficiency of govt – present system allows to pass laws and deal with urgent matters quickly.
  • Would prevent flexibility which currently allows govt to adapt to change. e.g. in USA presidential attempts to quickly adapt to crises have been rejected by Supreme Court using the Constitution.
  • Would end Parliamentary Sovereignty and therefore undermine many of the institutions that the govt is based, destroying traditions which uphold the British political system.
  • Lack of consensual agreement as to what form a codified constitution should take. No agreement by the political parties will be reached.
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What is Parliamentary sovereignty?

  • Parliament can make any law it likes – “Parliament can make a law forbidding Frenchmen to smoke on the streets of Paris.” – Sir Ivor Jennings. This has been limited in recent years due to power going to the EU and devolved assemblies. However, these two limitations can be cancelled out by a single statute.
  • Parliamentary law is supreme and therefore everyone must obey it.
  • Parliament cannot be limited by the actions of previous parliaments – implied repeal. e.g. 1994 Civil Justice *Act overruled constitutional right to silence which had existed for centuries.
  • The orthodox view, however, is that sovereignty lies with the people who transfer it to the govt by election for that govt’s term of office.
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