The constitution


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The constitution

  1. 1. AS Government and Politics What is a Constitution? Key Words A constitution is the set of rules and principles by which a state is governed. If a constitution – the set of rules and constitution is outlined in a single, legal principles by which a state is document it is described as written or governed. codified e.g. the US constitution. Written constitution – a set of state rules outlined in a single, written The UK constitution is described as unwritten document. or uncodified, because there is no single, legal document called ‘The UK Constitution’ Unwritten/uncodified constitution – which we can pick up and browse through. a set of rules not contained in a This is mainly because the UK has had no single, legal document but deriving major political upheavals or revolutions in from many sources (some written, the last couple of centuries which might have some not, some with the force of law required it to write out a clear statement of and some not). new rules. There are rules, but they have evolved gradually and piecemeal, over centuries; and they derive from many different sources – some are written, some are not, some have the force of law and some do not. From the BBC website Constitutions are designed to set out the rules and regulations within which governments operate. They establish the composition, powers and functions of the institutions of the state, regulate the relations between these institutions, and enshrine the legal rights and duties of the citizenry. An important distinction can be drawn between codified and uncodified constitutions. Codified constitutions are largely written, centred around a single document incorporating key constitutional provisions that are binding on all political institutions. They are usually 'entrenched', enjoying the protection of a higher or supreme court, and can only be repealed or amended by special provisions, beyond the ordinary legislative process. Examples of codified constitutions include the American Constitution of 1878, or the German Basic Law of 1949. Indeed, most constitutions are written and codified. The United Kingdom is rare among liberal democracies in not having a codified constitution of this kind.
  2. 2. AS Government and Politics What types of ‘matters’ are dealt with by a constitution? • Elections – how they are conducted • The relationship between the executive, legislative and judicial parts of the government. For example, it is usual to set out exactly what powers the prime minister/president has, and how they can be checked or removed • Usually a statement as to where sovereignty (final power) lies. In the case of the USA it lies with the people • Ways in which the constitution can be changed • Often, lists of what rights citizens have. In the case of the USA, the first ten amendments (changes) to the constitution are known as the Bill of Rights, which guarantees freedoms such as the right to a proper trial • The overall type of government. The US constitution specifies that it will be both a democratic and federal system Question: What are the main features of a constitution? (5 Marks) A constitution is really a set of rules, like the laws of the game of cricket or football. It sets out how government should be organised, who has powers over what and how the processes work. A constitution also demonstrates the relationship between the people and the state. It is a bit like a contract between the government and the governed. Britain does not really have a constitution, so the rules of things like how parliament works, how minister are chosen or the powers of the prime minister are vague. The USA has a written constitution which shows the power of the president, the congress and the courts. A GRADE D answer: A grade C is awarded to a candidate who knows what a constitution is and has described some of its functions accurately. However, other functions are omitted or the explanations are weak and unspecific. There are a good number of marks for understanding, but few for powers of expression. The style is too informal. The student needed to be better prepared and to have learned a formal set of functions TASK Write an answer to the question which is at least a grade C and submit for marking. A GRADE A answer should include all or most of the following functions: distributing power within the system, establishing the rights of the people, limiting the power of the government, establishing the nature of territory, sovereignty and citizenship.
  3. 3. AS Government and Politics The development of the UK constitution The British Constitution under the Tudors • By 1500 Henry VII accepted the need for a Parliament • Henry VIII moved England from Catholicism to Protestantism by act of Parliament • Henry VIII – wives executed after a trial (constitutional principle of right to trial) • By 1550 laws passed by Parliament were accepted as superior to those based on the personal wish of the monarch The Stuart and Hanoverian periods • James I and Charles I wished to end role of Parliament and reassert the power of the monarch – this led to civil war and execution of Charles I • Republic under Oliver Cromwell also a disaster • Lesson – Parliament and the monarch had to share power • New constitutional rules introduced in seventeenth century which implied power sharing • By end eighteenth century o Prime Minister was accepted as most powerful decision-maker in Britain o A cabinet (all MPs) helped the PM and met to coordinate the decision making process o The PM and cabinet had to face an ‘opposition’ – answering questions and challenges o An adverse vote against the PM and cabinet in the commons led to the resignation of the government These were all parts of the constitution, they were not written down, but were generally accepted. The Development of the constitution to the present • Over the nineteenth century the power of the monarch continued to decline, while the right of the PM appoint ministers and decide dates of elections was established • In the twentieth century, as a result of the demands of war, there was a huge increase in the size and scope of the government e.g. 1918 votes for women and near universal suffrage • The Labour government, elected in 1997 promised considerable constitutional change including o Reform of House of Lords – rights of hereditary peers o Reform of House Commons and the way it worked o To hold referendums on the Euro, governing of London and devolution to Scotland and Wales o Adopt European Convention on Human Rights and make it part of UK law o Bring in the Freedom of Information Act o To consider reforming the voting system for general elections
  4. 4. AS Government and Politics Sources and features of the UK constitution Many, but not all, of the rules of the UK Key Words constitution are laws. There are several different types of law: Laws – rules of state which are • European Union Law – since enforceable by the courts and judges. joining in 1973 EU laws take precedence over UK laws Conventions – unwritten customs which • Acts of Parliament (Statute are traditionally regarded as binding, but Law) which have no legal force. • Common Law – ancient, Unconstitutional action – an action unwritten law. which breaks any part – that is rule – of • Case law (judge made law) – the constitution. judicial interpretations of statute law Manifesto – booklet of policy proposals issued by every party before each general Other rules of the constitution are not election laws, but are still powerful. • Historical documents and Rule of Law – a principle which seeks to constitutional writings e.g. ensure ‘just’ law which is applicable to all; Magna Carta (1215) and Walter thus there should be legal equality, clear, Bagehot’s book of 1863 The consistent and impartial laws and an English Constitution impartial judiciary • Conventions – these are Parliamentary Sovereignty – parliament unwritten customs, which are has supreme law-making power, and can traditionally regarded as amend or repeal any law without binding, but have no legal force challenge form any other UK body or e.g. the practice of the Queen institution. choosing the Prime Minister An action is unconstitutional if it breaks any part of the constitution. This usually refers to government action. A government may break a law and be ruled illegal in the courts (ultra vires – ‘beyond their legal powers’) TASK – find an example of when the present government has been ruled unconstitutional – describe the case and explain why it was ruled unconstitutional. HINT 1999 GM Food/1998 appointment of Gus MacDonald It is even possible for new laws to break the ‘spirit’ of the constitution. Think David Davis and the 42 day proposal. TASK – research the events leading up to the resignation of David Davis. Do you think he was right to do what he did? Was he defending the constitution?
  5. 5. AS Government and Politics Principles of the UK constitution There is much debate, due to its unwritten nature, about what exactly are the principles and purposes of the UK constitution. In theory, however, they are supposed to be: The sovereignty of parliament – quite simply this means that the UK Parliament is the UK’s sovereign body i.e. it has absolute power over everyone in the country. The rule of law – quite simple this means that ‘law rules’. All UK citizens are under the law, and that includes the monarch and members of the government. The unitary state – a unitary state is a state where one body holds all the important powers. In the case of the UK this is parliament and the government in London. The separation of powers – this is the idea that the three powers of the state – the executive, the legislature, the judiciary – should always be separate. However, the practice is different e.g. ministers all sit in parliament and the UK’s top judge, the Lord Chancellor, sits in the Lords and is also a member of the government. Responsible government – based on two conventions, ministerial responsibility and collective cabinet responsibility, it means the government must take responsibility for its actions. Also known as the principle of accountability. Key Words Criticisms of the constitution Legislature – the branch of state responsible for the making of laws Due to the fact the UK constitution or legislation. derives from many sources and rules it can be contradictory. Executive – the branch of state responsible for running the country Examples through the execution and administration of laws and policies; According to A. V. Dicey (1835 – 1922) often also called the government. the ‘twin pillars’ of the UK constitution are the rule of law – everyone is equal Judiciary – the branch of state under the law – and parliamentary responsible for the interpretation sovereignty – Parliament is above the and enforcement of the laws (the judges). law. Separation of powers – non- If an MP defects to another party, no overlapping personnel and powers new election is held as the electorate of the legislature, executive and are deemed to have voted for the judiciary person and have a one-to-one relationship with their MP. However, under the constitutional principle of mandate, the electorate are voting for a party and their proposals, not an individual.
  6. 6. AS Government and Politics The UK system of government Any state has three branches – the legislature, the executive and the judiciary. The UK executive, or government, decides and carries out the policies by which the country is run. Each year the government must submit its new proposals to the legislature to be legalised. If the three branches of the state are completely united, the system may be a tyranny. Liberal democratic theory advocates the separation of powers – non- overlapping personnel and powers – to ensure checks and balances between the different parts of the system. The UK does not practice extensive separation of powers. LEGISLATURE EXECUTIVE JUDICIARY Parliament Government Courts Crown Crown Crown House of Lords Prime Minister Judges House of Commons Cabinet Magistrates Junior ministers Civil service Local government Parliamentary Sovereignty Sovereignty is unrestricted power and authority. A body has internal sovereignty if it has the power to make decisions binding on all of its own citizens, and external sovereignty if it can control its own affairs without being blocked by outside bodies and states. To further complicate things there are different types of sovereignty – legal, political, economic. As the UK is a unitary state, it can be argued that the main pillar of the UK constitution is the legal sovereignty or supremacy of Parliament. This means that no institution in the country can override its laws. Also, Parliament is not bound by its own laws, but instead by a special body of law known as parliamentary privilege. However, Parliament’s external sovereignty is now limited in practice by the EU, whose laws have formal sovereignty over all member states e.g. fishing quotas, 48 hour working week. But, Parliament could legislate to withdraw from the EU at any time, so technically its sovereignty is still intact. There are many other constraints on the internal and external sovereignty of Parliament: • Other international courts and laws e.g. EU Court of Human Rights. In 1998 it ruled against the UK government ban on gays in the army • Big business etc. e.g. in 1992 international currency dealers forced the UK’s fallout from the European exchange rate mechanism (ERM)
  7. 7. AS Government and Politics • Pressure groups e.g. Countryside Alliance, who persuaded the Labour government not to complete it’s promise to ban fox hunting for years • The media e.g. campaigns on asylum seekers etc. In the end Parliament is constrained by the political sovereignty of the electorate, who may simply refuse to obey the law of Parliament e.g. 1989/90 mass refusal to pay Poll Tax. Most importantly, Parliament tends to be dominated from within by a majority government. This government can therefore ensure that its legislative proposals are passed by Parliament. In 1976 Lord Hailsham used the term ‘elective dictatorship’, to suggest that a government in control could effectively change the constitution at will. This argument gained strength in 1997, when the Labour government had a majority of 179, and used its first year in office to push through unpopular legislation that was not in its manifesto e.g. cuts in lone parent and disabled benefits, introduction of student tutition fees and completion of the Millennium Dome. The exceptions to this within Parliament are: • A minority government – Conservative government by April 1997 • A backbench revolt e.g. 1996 MPs blocked a second VAT rise on domestic fuel • Defeat by the House of Lords e.g. 2003 – the Lords blocked curbs on the right to trial by jury. Since 1997 the Labour government has yet to be defeated by a backbench revolt. They have been obstructed by the Lords, but only on a temporary basis, because the Commons has the ultimate authority.