Edexcel- Politics-AS-Unit 2- Constitution

Constitution

• Edexcel- Government and Politics
• Unit 2

What is a Constitution?

• it is a set of principles that establish and describe the distribution of power within a political system, government procedure, define the limits of the government's power, rights of citizens and how they are protected as well as rules on citizenship and making amendments to a constitution.
• Constitutions can be codified, uncodified, federal or unitary

Role of the Constitution

• defines and establishes the distribution of power in a political system
• establishes the limits of the governments power
• defines the territory that is under jurisdiction of the government
• rights of citizens and how they are protected
• nature of citizenship and how to obtain it
• defines the process to make amendments to the constitution
• defines the relationship between political institutions and individuals

Codified Constitution

• written in a single document and said to only have one source
• constitutional laws are superior to other laws (dualism)
• as constitutional laws are safeguarded and superior, they are said to be entrenched. This means they cannot be overruled or amended without safeguarding arrangements
• there are special arrangements for new constitutional laws to be made, existing ones to be amended or unwanted laws repealed
• come into existence after an event

Uncodified Constitution

• not written in one document and so has many sources
• Constitutional laws are not superior to other laws
• Constitutional laws can be made in the same way as other laws
• Uncodified constitutions can develop over time as they are more flexible
• As constitutional laws are not superior or safeguarded, they are said to be unentrenched. This means they are protected from being amended

Sovereignity

• ultimate political power in a system
• source of the ultimate political power
• Legal sovereingity means the power to make laws
• Political sovereignity is where this power is located
• if sovereignity is located in one body or institution by the constitution, it cannot be overruled or changed without constitutional amendments. Political sovereignity is flexible

Unitary and Federal Constitutions

• Unitary constitution is where sovereignty lies in one place. (e.g- UK, France, Italy). If power is not assigned by the law then it falls to the body who has the sovereignty. In the UK this would fall to the Parliament.
• Federal Constitution is where the sovereignty is divided between central and regional bodies (e.g- USA, Germany). IF power is not assigned by the constitution it falls to the regional bodies.

Sources of the UK Constitution

• Parliamentary statues- These are laws that have been passed by Parliament that have a constitutional effect. For example- the Freedom of Information Act and The Human Rights Act 1998 that bought the European Convention on Human Rights into UK Law,
• Conventions- These are unwritten rules that cannot be legally enforced but are practically binding. E.g- Salisbury Convention and Collective Responsibility,
• Common Laws- These are similar to conventions and are unwritten too, however, they do have legal effect. E.g PM's prerogative powers, powers from monarch but not sanctioned by Parl
• European Union Treaties- these are treaties that have been signed that have transferred some sovereignity and power from UK to EU. E.g- The Maastricht Treaty 1992 and Lisbon (Reform) Treaty 2007,
• Traditions- customs and practices that have grown over a period of time. Not legal but tend to persist. E.g- Queen's Speech and many Parliamentary Procedures,
• Authoritive works- writings by constitutional experts have describe Constitutional practice. As they have a lot of authority, they become part of constitution. E.g- O'Donnell rules written in 2010 that described how to form a Government if there was a hung Parliament.

Features of a UK Constitution

• It is uncodified which means it is flexible as it isn't entrenched.
• Unitary- all the sovereignity lies in one place.
• All are equal under the law, including the Government.
• Constitutional Laws are not superior to other laws
• The Monarch is the head of state, however her powers are in reserve and she isn't expected to use them normally
• Parliament's sovereignity is key as they are in control of the Constitution and its rules. It is not safeguarded and can be amended as they wish
• Lack of seperation of powers between legislative and executive as the executive (government) tends to dominate the legislative (parliament).

Sovereignity in the UK

• people are given sovereignity at elections
• in referendums people are not granted full sovereignity as the result is not binding on Parliament but it is binding in practice
• The EU has sovereignity in some jurisdictions, however the UK can leave at any time and regain this sovereignity
• Parliament has legal sovereignity and is the ultimate source of all law and all political power
• The Government shares some of this sovereignity as they are given a mandate from the people to implement its political programme. Parliament is not allowed to defy the will of the Government when they are acting under the peoples mandate
• devolved administrations are not given legal sovereignity but quasi sovereignity, this is where they are granted power that is unlikely to return to Parliament

How has this sovereignty changed since 1997?

• There has been an increase in the use of referendums
• More sovereignty has been given to the EU
• more devolved administrations have sovereignty
• it can be argued that bringing the EU convention on Human Rights into UK law is effectively transfer of sovereignty of civil liberties
• Power of the executive has grown, giving it more sovereignty

The EU and the UK constitution

• EU laws are superior to UK law and if there is any conflict between the two, EU law always prevails
• UK courts must enforce EU law
• The final appeal court is the European Court of Justice
• In some policy areas the EU has been given sovereignty, such as consumer law, employment law, trade and fishing regulations.
• Parliamentary sovereignty has not bee lost as the UK can leave at any time

Should the UK's constitution be codified?

• For
• Clarity- of the distribution of power in a system and what powers political associations have
• Rights- the rights of citizens would be set out clearly, so they know what they are and prevent the Government from abusing them
• Limits Government Power- it would stop a drift of power to a strong government
• Safeguards the Constitution- from being easily changed by short term governments for their own advantage
• Strong Judiciability- more effectively protected by senior judges

Folie 14

• Against
• Flexibility- an uncodified constitution is easy to change and adapts or evolves over time
• Strong Government- a codified constitution may limit the Governments power too much, so they are ineffective
• Weak Judiciability- uncodified is protected from control by unelected, unaccountable judges
• Accountability- Governments cannot hide behind an uncodified constitution
• Popular control- codified constitutions are only really changed if there is the desire of the people for it to be

Constitutional reform- Key Changes

• Decentralisation- due to devolution and introduction of elected mayors
• Electoral systems- are proportional in NI, Scotland and Wales
• HOL- is now a more effective check on the Government
• Rights- are better protected by the Human Rights Act and the Freedom of Information Act
• MP's- proposals to redraw the constituency boundaries and for recall of an MP, to make them more accountable
• Fixed-term Parliament- means governments can't change the date to their own benefit

Criticisms and failed reforms

• failed reform of the electoral system
• the HOL reform is uncertain and still an undemocratic institution
• Parliament is weak and Government is strong
• Devolution has weakened the power of the UK
• Due to HRA there is conflict between senior judges and the Government
• Parliamentary sovereignty means individuals rights are not fully protected
• need a codified constitution

Strengths of the UK Constitution

• Flexible- which means it can evolve naturally and respond to any changes
• Strong Government- it provides for a strong, decisive Government and their mandate is clear
• Collective Government- as power is not placed in just one persons hands
• Time- it has stood the test of time and is part of Britain's political traditions
• Unitary- a unitary constitution allows for national unity
• Independent judiciary- who can ensure the rule of law is maintained

Weaknesses of the UK's Constitution

• Flexibility- too flexible and can be changed by short term government easily
• Powerful Government- as there are inadequate constitutional controls
• Lack of Clarity- as it is uncodified, so it is hard to understand
• Rights- individual rights are not protected enough as Parliament is sovereign
• Old fashioned- it doesn't have the characteristics of a modern constitution an allows for undemocratic institutions such as the HOL and the monarchy
• Representation- Parliament is weaker than the Government and is not representative. Electoral system is not representive either
• Centralisation of power- power is too central and threatens