the UK constitution

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the UK constitution by Mind Map: the UK constitution

1. Key characteristics of the UK constitution

1.1. formal monarchy

1.1.1. Queen as (formal) Head of State but PM as (active) Head of State of Government

1.2. uncodified system

1.2.1. no single constitutional text/instrument (legal doc) UK political system uses the common law -case made and judge made law to codify their system

1.3. Not entrenched

1.3.1. laws enacted are not protected and are easily changeable through acts of parliament (no special legal amendments process needed)

1.4. not a unitary state

1.4.1. UK is not a unitary state/federal system

1.4.1.1. federal government -combining general government into single government

1.4.2. UK is more like a quasi-federal state

1.4.2.1. no equal redistribution of power through the devolution settlements

2. institution of the UK constitution

2.1. government

2.1.1. role- exercise executive power (gov cabinet as executive decision-making body)

2.2. parliament (the highest law-making body)

2.2.1. role- to hold government to account for their action

2.3. court

2.3.1. role-adjudicating legal dispute through interpretation of the law

2.4. crown

2.4.1. role- exercise prerogative power however the nature of the UK political system is controlled by the Government (power of the Queen is just a formality)

3. constitutional rule

3.1. statute/legislation (written source)

3.1.1. acts of parliament enacted by Queen through an official process called Royal assent , highest form of power

3.2. case law (written source)

3.2.1. used by judges to make judicial decision to interpret statute and common law

3.2.2. making old case=precedent for new case

3.3. prerogative power (unwritten source)

3.3.1. residue of discretionary authority (appoint PM, give royal assent) of the crown (dicey)

3.3.2. no new prerogative power can be created but existing prerogative power can be limited

3.4. constitutional conventions (unwritten source)

3.4.1. are non legal constitutional rules that are not enforceable but are still binding

3.4.1.1. examples: non-refusal of Royal Assent, Ministerial Responsibility, Sewel Convention, Salisbury convention

4. sources of constitutional rule

4.1. statute

4.1.1. Magna Carta 1215

4.1.1.1. limited the power of the monarch

4.1.2. Bill of Rights 1689

4.1.2.1. parliament put statutory limit to the royal prerogative powers of the monarcch

4.1.2.1.1. s.8- Freedom of Selection and s.9 Freedom of speech

4.1.3. Acts of Settlement 1700

4.1.3.1. changed the line of succession and controlled the judges

4.1.4. Parliament Act1911

4.1.4.1. limited HOL rights to veto and delay legislation

4.1.5. Parliament Act 1949

4.1.5.1. further reduces the HOL right to delay legislation (public bill) 3 to 2 session

4.1.6. FTPA 2011

4.1.6.1. removed PM power to hold for early elections (2 exceptions)

4.2. case law

4.2.1. Thoburn v Sunderland City Council (2002)

4.2.1.1. this case established the supremacy of statute within statute (constitutional statute and ordinary statute)

4.2.1.2. ordinary statute- easily repealed, constitutional statute - not easily repealed

4.2.2. HS2 Action Alliance v Secretary of State for Transport (2014)

4.2.2.1. rules must be interpreted fairly and consistently using constitutional instrument/statute :- older (bill of rights 1689, Magna Carta 1215, settlement act 1700) newer- (HRA, ECA, CRA 2005)

4.3. prerogative power

4.3.1. sources

4.3.1.1. appoint pm

4.3.1.1.1. royal assent

4.3.2. ways of eroding prerogative power

4.3.2.1. piecemeal reform

4.3.2.1.1. judicial appointments (CRA 2005)

4.3.2.1.2. dissolution of parliament (FTPA 2011)

4.3.2.2. wholesale reform

4.3.2.2.1. GE manifesto 2010 (democratic control to pressure to abolish prerogative power)

4.4. constitutional conventions (binding non legal rule)

4.4.1. salisbury convention

4.4.1.1. parliament having an unreserved power over government (hol having a certain amt of power to veto statute)

4.4.2. sewel convention

4.4.2.1. limited the UK parliament cannot legislate in devolved matter w/o consulting the Scottish parliament

4.4.2.2. reason london allowed scotland to devolve

4.4.2.2.1. - to strengthen the union, to remove threat of separatism ( to make the scottish independence less likely)

4.4.2.2.2. london gave autonomy to scotland due to its persistent demand of independence

4.4.3. non-refusal of royal assent

4.4.3.1. Queen's power to give the Royal Assent is just a formality.

4.4.4. ministerial responsibility

4.4.4.1. convention that controls the ministerial responsibility of minister making them legally and politically accountable to their actions.

5. 3 contemporary controversies in the UK constitution

5.1. Miller and Brexit

5.1.1. background: EU membership, 23 June 2016 referendum (majority voted to leave EU so the gov showed intention to leave EU by triggering Art.50)

5.1.1.1. Art. 50 (1) any member state may decided to withdraw from the Union in accordance with it own constitutional requirement

5.1.1.2. Art. 50 (2) any member state which decides to withdraw shall notify the EC of tits intention (2 year limit)

5.1.2. key issues

5.1.2.1. Extent of the Royal Prerogative- whether the gov would be able to trigger art. 50 w/o an act of parliament

5.1.2.1.1. government prerogative power (constitutional principle) undermined by other constitutional principle such as the ECA 1972 adn the HRA 1998

5.1.2.2. Principle of the PS

5.1.2.2.1. gov have the prerogative power to withdraw from the EU (international treaty) but they can only do so with authorization from parliament (s.2 of the ECA 1972 does not allow gov to trigger/amend Art.50 w/o parliament consent)

5.1.2.2.2. creation of the EU withdrawal bill will effect the validity of the ECA 1972

5.1.2.3. legal significance of referendums

5.1.2.3.1. Effects of leaving the EU -deprived from the rights of an EU member state (no vote in European election, no free movement of people and trade)

5.2. 2017 EU GE

5.2.1. background: Theresa may becomes PM, FTPA 2011

5.2.1.1. old law: PA 1911 s.7 -subject to 5 years interval between election

5.2.1.1.1. Pm had the power to call for early election

5.2.1.2. new law: FTPA 2011 s.2 - 2 circumstances - (i) vote of no confidence in gov (ii) 2/3 majority votes in commons

5.2.1.2.1. Pm only could call for early election under these 2 circumstances (FTPA lessened the prerogative power of the Queen, the gov)

5.2.2. also concerned with the r/ship between law and politics - TM said that she wouldn't hold a snap election but she called on in the end

5.3. EU withdrawal Bill 2017-2018 (a draft bill for the domestic preparation for Brexit)

5.3.1. background: Brexit, Art, 50 , status of EU law, challenges of domestic preparation.

5.3.2. key issues

5.3.2.1. Separation of Powers (constitutional principle)

5.3.2.1.1. idea that legislature legislate and government governs

5.3.2.2. devolution settlement- devolution settlement are not asymmetrical (not equal)

5.3.2.2.1. Brexit changed the redistribution of power in the UK

5.3.2.2.2. Characteristics of the Devolution Process