Constitutions

The state opening of parliament.

Despite undergoing significant changes in Britain’s constitutional arrangements in the past 20 years, the constitution of the United Kingdom remains steeped in history and tradition.

What is a constitution?

Essentially a constitution is a set of rules either expressed formally or informally. These rules govern the way political systems are suppose to function. They may be expressed in a single source document and therefore be written or codified such as the Constitution of The United States of America, or they may be derived from a mixture of sources and therefore be less formally expressed as in the constitution of the United Kingdom.

Formal codification and expression resolves the issue of what the constitution says about how to organise government (though it does not necessarily resolve the issue of how to interpret what is written).

Uncodified constitutions are somewhat less precise, but there is still a certain amount of continuity that allows people to understand what is supposed to happen in a given situation. Take the general election in May 2010. No overall winner emerged. As a consequence Gordon Brown remained as Prime Minister until a new government could be formed. This convention is not written down anywhere but it was nonetheless constitutional.

“ A Constitution is a set of rules that seek to establish the duties, powers and functions of the various institutions of government, regulate the relationships between them and define the relationship between the state and the individual.”

Andrew Heywood, 2000, Key Concepts in Politics, Macmillan.

“A constitution sets a framework, within which a country’s system of government is conducted. It establishs rules which those who exercise the functions of government must obey.”

P. Joyce, 1996, Teach Yourself Politics, Hodder and Stoughton.

Thus a constitution effectively seeks to do 2 things.

1. Outline the rights, duties and interrelationships between different components of the political system such as:

  • The Executive and the Legislature
  • The Executive and the Judiciary
  • The Legislature and the Judiciary
  • The Commons and the Lords
  • Westminster and the Devolved Parliaments and Assemblies
  • Central Government and Local Government
  • Ministers and Civil Servants

2. Constitutions also provide the basis for the relationship between citizen and state, for example the Human Rights Act, 1998, (Implemented October 2000), or various statutes granting or limiting civil and social rights, for example the Representation of the People Act, 1918 which granted the vote to women aged 30 or over.

Classifying Constitutions

THE USA

 

THE UK
Written/CodifiedRigid

Republican

Presidential

Federal

 

Unwritten/UncodifiedFlexible

Monarchical

Parliamentary

Unitary/ Quasi-unitary

 

Sovereignty

What is Sovereignty?

Sovereignty is best seen as an expression of our freedom and independence as a nation. In other words, if we possess our sovereignty we are in fact free and independent nation. Thus the recent (and indeed ongoing) debates over our links with the European Union are sometimes couched in terms of the ‘surrender’ of our sovereignty and the right to reaffirming self determination and governance. But what in fact does the concept mean? We should note straight away that it is in fact a rather vague and imprecise term and does not easily lend itself to a ready definition. Nevertheless it does possess a number of characteristics which when in evidence together would point to the presence of sovereignty. These include the following.

 

KEY CONCEPT: SOVEREIGNTY

  • sole legislative authority within a clearly defined set of territorial borders which are recognised as sovereign boundaries by other sovereign powers
  • the capacity to recognise other states as sovereign states
  • the ability to grant or deny citizenship to persons residing, or wishing to take up residence, within the aforementioned territorial borders
  • complete jurisdiction and control over economic, foreign and domestic policy

Distinguishing between Sovereignty and Parliamentary Sovereignty

The essence of parliamentary sovereignty as defined by AV Dicey (1952: 39):

“The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament has, under the English Constitution, the right to make or unmake any law whatever: and further that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”

In the British system of government parliament is often referred to as sovereign. This means that

  • The government is drawn from Parliament and accountable to it
  • Only parliament may make or unmake law (legislation)
  • There is no limit to the scale or scope of parliament’s legislative capacity and it may therefore make laws on any matter of its choosing
  • No parliament may bind, or limit the actions of, a successor parliament
We may, in the light of these points, question the usefulness of the notion of parliamentary sovereignty. The principles this concept suggests have been severely undermined by the following developments:
  • UK is no longer a sovereign state with membership of NATO 1948, and the EU 1972/3.
  • Membership of the WTO places constraints on the latitude governments have for economic sovereignty
  • The EU can unmake any UK law it deems as conflicting with EU law as with the Factortame dispute with Spanish fishermen operating British registered vessels. The Merchant Shipping Act 1988, defining what was meant by British registered vessels, was ‘unmade’ by European Court, which found it discriminatory, unfair, and a breach of Community law.
  • Enforced EU law binds successor Parliaments.
  • Devolution means that some issues that used to be decided at Westminster are now devolved, to the national parliaments and assemblies.
  • Political constraints such as the activities of pressure groups such as Greenpeace, the trade union movement, the such as the Countryside Alliance, Fuel protesters, trade unions, the city and other business and economic groups such as the Confederation of British Industry (CBI) and the Institute of Directors (IOD).
  • The growing influence of the media and public opinion constrains parliament.

Further Key Concepts for Constitutions

Constitution – Heywood’s (2000) definition can’t really be bettered. Here it is. “ A Constitution is a set of rules that seeks to establish the duties, powers and functions of the various institutions of government, regulate the relationships between them and define the relationship between the state and the individual.”

Role of a constitution – A constitution is, most simply, the rules that govern the government. Just as government lays down rules for society through the laws it makes, so a constitution establishes a framework of rules which are meant to check or constrain government.

TYPES OF CONSTITUTIONS – Codified and uncodified constitution; Unitary and federal constitution; Rigid and flexible constitution; Monarchical and Republican; Parliamentary and Presidential

Uncodified Constitution – A constitution which has a variety of different sources, which has evolved over time and which has not been formally codified into a single source document or entrenched. Such constitutions (The UK being the most obvious example) are flexible and in the words of Phillip Norton (1982) are in a permanent state of flux. In countries which codify the constitution it is this document which is normally seen as the foundation of the political system, but in the UK the constitution is subordinate to the principle of parliamentary sovereignty.

Features of Uncodified Constitutions – The constitution is not authoritative. Constitutional laws enjoy the same status as ordinary laws. States that have un-codified constitutions therefore have single-tier legal systems with no form of higher law. Un-codified constitutions are not entrenched. The constitution can be reflected in the UK in the principle of parliamentary sovereignty, through which parliament can make, unmake and amend any laws it wishes, including laws that affect the constitution. Un-codified constitutions are not judiciable. In the absence of higher law, judges simply do not have a legal standard against which they can declare that the actions of other bodies are ‘constitutional’ or ‘unconstitutional’

Codified Constitution- A constitution which has been formally codified into a single source document and which is then entrenched, thus making constitutional amendment difficult to achieve. The most cited example is of course the U.S.A. constitution which has only been amended 27 times in more than 200 years. Debates about the relative merits of codification and entrenchment are the most common debates concerning constitutions focusing around the strengths and benefits of codification and an absence of codification. In short which is the better system and why.

Features of a codified Constitution – In a codified constitution, the document itself is authoritative, in the sense that it constitutes ‘higher’ law – indeed, the highest law of the land. The constitution binds all political institutions, including those that make ordinary law. This gives rise to a two-tier legal system, in which the constitution stands above statute law made by the legislature.

The provisions of the constitution as laid out in the codified document are entrenched, in the sense that they are difficult to amend or abolish. The procedure for making and subsequently changing the constitution must therefore be in some way more complex or difficult than the procedure for making ordinary law.

As the constitution sets out the duties, powers, and functions of government

institutions in terms of ‘higher’ law, it is judiciable. This means that all political bodies are subject to the authority of the courts, and in particular, a supreme or constitutional court.

Sources of the UK constitutionthe UK constitution has multiple sources which have developed over time. The process of constitutional innovation and reform has increased significantly over the past 18 years. There are 5 separate sources to be dealt with by a separate paragraphs, as follows.

(a) Statute Law – Bill of Rights 1689, Habeus Corpus, Parliament Acts, 1911 & 1949, Scotland Act, 1998, Wales Act, 1998, Human Rights Act (1998 / 2000), Constitutional Reform Act 2005, Freedom of Information Act 2000, Fixed Term PArliaments Act (2011) and Wales Devolution Act (2011)

(b) Common Law –  comprised of judicial interpretation and the Royal Prerogatives

    • Judicial Interpretation Establishing precedent where parliament has not legislated
    • Royal Prerogatives Powers of Prerogative and the Powers of Patronage.

(c) Conventions – Customs which have evolved because they fit the system i.e. the Prime Minister should be drawn from the House of Commons, or that the Government should resign after losing a vote of no confidence in the House of Commons.

(d) Works of Authority – E.G. Hansard, A.V. Dicey’s Rule of Law or Bagehot’s The English Constitution. These are not strictly sources of the constitution but rather sources which clarify the workings of the constitution

(e) EU / Treaty Law – The Treaty of Accession, 1972; The Single European Act, 1986; The Maastricht Treaty, 1992; The Amsterdam Treaty, 1997; The Nice Treaty, 2002. The Lisbon Treaty 2009

Political and Legal Sovereignty – Dicey argued that legal sovereignty resided in parliament and political sovereignty rested with the electorate, because the electorate chooses parliamentary representatives. Political sovereignty is defined in terms of unlimited political power, while legal sovereignty is defined in terms of absolute legal authority.

Parliamentary Sovereignty – The essence of parliamentary sovereignty as defined by AV Dicey (1952: 39):

“The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament has, under the English Constitution, the right to make or unmake any law whatever: and further that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”

Principles of Parliamentary Sovereignty – The government is drawn from Parliament and accountable to it; Only parliament may make or unmake law (legislation); There is no limit to the scale or scope of parliament’s legislative capacity and it may therefore make laws on any matter of its choosing; No parliament may bind, or limit the actions of, a successor parliament.

Constitutional Reforms since 1997 – Devolution (Scotland and Wales Acts 1997 and Wales Act 2011) Human Rights Act (1998/2000); House of Lords Act (1999); Elected Mayors; Freedom of Information Act (2000); Judicial reform (Constitutional Reform Act 2005); Fixed terms Parliament Act (2011); Commons backbench reforms (Wright Reforms 2009); The use of e-petitions on Downing street website. Recall of MPs Act (2015)

Democratic renewal – the idea that the UK suffers from a democratic deficit and that constitutional reform could remedy this to produce 1. greater decentralisation of power; 2 improved accountability of politicians both elected and unelected; 3. Increased Participation of the electorate in the political process 4. More open Government; 5. More security of rights protection

Constitutional Conservatives those who are most opposed to the idea of any further constitutional reform. Many constitutional conservatives do not believe that the constitutional reforms of the past 18 years have improved the system and they think it has led to greater instability. Many would like to see some of these reforms (e.g. the HRA) repealed.

Constitutional radicalsThose (mainly in the Liberal Democrats and certain pressure groups) who do not believe that the past 18 years of constitutional reform and innovation have been insufficiently radical, and that the UK needs wholesale rather than piecemeal constitutional reform. They have adopted a maximalist approach – full codification for the constitution of the UK with full federalism and an entrenched Bill of Rights for the UK.

Constitutionalism  –  the belief and practice of exercising power according to the established principles of the constitution and the rule of law. THose exercising power are subject to the rule of law and are not above it.

Unitary constitutionA CONSTITUTION THAT CONCENTRATES SOVEREIGN POWER IN A SINGLE BODY OF NATIONAL GOVERNMENT, FOR EXAMPLE THE PARLIAMENT OF THE UNITED KINGDOM WHERE PARLIAMENTARY SOVEREIGNTY IS THE CORNERSTONE OF THE UK’S POLITICAL SYSTEM.

Sovereignty – This establishes the constitutional supremacy of central government over provincial or local bodies. This is achieved by vesting sovereignty in the national legislature, meaning that it can create or abolish, strengthen or weaken, all other institutions. In the UK, this is reflected in the fact that Parliament possesses, at least in theory, unrivalled and unchallemngeable, legislative authority. Devolved assemblies and local authorities do not, therefore, enjoy a share of sovereignty.

 Federal constitution A CONSTITUTION THAT IS BASED ON THE PRINCIPLE OF SHARED SOVEREIGNTY, IN THAT THERE ARE TWO RELITIVELY AUTONOMOUS LEVELS OF GOVERNMENT, THE NATIONAL/FEDERAL AND THE REGIONAL/STATE.

Federal constitutions divide sovereignty between two levels of government. Both central government and regional government posses a range of powers that the other cannot encroach on. Many argue that devolution has create a ‘quasi-federal’ structure within the UK government. However Parliament, as a sovereign body, retains the right to abolish the Scottish Parliament.

quasi-federalism However it is worth noting that the Scottish parliament retains certain powers (devolved matters) in which the UK Parliament has no say. It has no say because the Scotland Act 1998, devolved these matters to the Scottish Parliament. This has led to what some commentators have referred to as a quasi-unitary or a quasi-federal constitution.

pooled sovereigntythe sharing of sovereignty between a core centre and a periphery: the most commonly quoted example of pooled sovereignty is the European Union with its emphasis both on Supranationalism and subsidiarity.

elective dictatorship  – a term first coined by Lord Hailsham in 1976, expressing the concern that an elected government with a working majority and an effective whips office is effectively a five year dictatorship. This echoes Benn’s concerns that Parliamentary Sovereignty was in fact an elaborate myth or legal fiction disguising executive dominance over and arrogance towards parliament. The situation may be compounded by the FPTP electoral system which produces majority governments on a minority share of the vote.

Advantages of an Uncodified Constitution

  • The UK, along with Israel and New Zealand, is one of only three parliamentary democracies not to have adopted a written constitution.
  • This suggests that most states would prefer to have their constitutional arrangements codified into a single document and entrenched so that they become more secure
  • However there are a number of advantages to an uncodified constitution including
  • flexibility arising from an absence of entrenchment,
  • continuity with the past,
  • effective and responsible government, and a clear centre of authority in parliament and the concept of parliamentary sovereignty.
  • In addition the uncodified constitution of the UK appears to work well, allowing for pragmatic change and reform where necessary
  • FLEXIBILITY: because uncodified constitutions are not entrenched they are easier to amend to take into account new and changing circumstances. The workings of the constitution can be adapted simply and rapidly to meet the demands of a dynamic and modern society and to develop the political culture or the arrangement of duties, rights and powers of both citizens and the various components of the state, where necessary. It has long been recognised that a majority of Scots wanted their own parliament with tax varying powers. This demand might have been more difficult to satisfy under an entrenched and codified constitution.
  • CONTINUITY: Despite such changes, an uncodified constitution has been a feature of British democracy for over 300 years providing continuity with the past and stability. France has had no less than 12 constitutions since the Revolution in 1789. The Conservative party especially believes that it is difficult and dangerous to attempt to produce a blueprint for the constitutional arrangements of the UK. Change, as and when it is necessary, should be evolutionary not revolutionary if society is to remain stable. Our constitution reflects the history and values of our nation. This should not be overturned lightly. Even ‘new’ Labour with its raft of changes to the constitution DID NOT GO  as far as to codify the constitution of the UK.
  • EFFECTIVE AND RESPONSIBLE GOVERNMENT: Codified constitutions are usually characterised by a clear separation of powers. This has often led to ‘gridlock’ in the United States for example when there is a Democratic president and a Republican congress. In countries such as the UK however the government through parliament is given a clear mandate to pursue its programme and is responsible and accountable to the electorate for its performance. In addition decisions are in the hands of elected politicians rather than an unelected judiciary.

Codified Constitutions have numerous problems. They do not necessarily provide stability and they are no guarantee of rights. The rights of African-Americans have been long denied despite the constitution stating that all men are free and equal. In addition there seems little demand or widespread interest in the adoption of a codified constitution and there is much scepticism in the UK towards the proposed draft European Union constitution.

Past Paper Questions with Guidance

June 2010 The British Constitution

Study the following passage and answer the questions that follow.

A Possible Codified Constitution for the UK

Jack Straw, the Justice Secretary, has used a visit to Washington to hint that Britain could finally get a codified constitution spelling out citizens’ rights and codifying this country’s political system. He is already working on a new Bill of Rights and Responsibilities, clearly defining people’s relationship to the state, as part of a wide-ranging package of constitutional reform. But he has, for the first time, also said that the Bill could be a step towards a fully codified constitution to ‘bring us in line with the most progressive democracies around the world’.

Britain’s constitution has developed in a haphazard fashion, building on common law, conventions, case law, historical documents, Acts of Parliament and European legislation. It is not set out clearly in any one document. Nor is there a single statement of citizens’ rights and freedoms. As Jack Straw put it yesterday: ‘Most people might struggle to put their finger on where their rights are’.

Supporters argue that producing such a document could tackle disillusionment with politics, at the same time as setting new, clear limits on the power of the executive. Opponents of a codified constitution argue, ‘If it ain’t broke, don’t fix it,’ insisting that the existing arrangements, however piecemeal their development has been, have worked well in practice. There are, moreover, formidable practical problems to be overcome before such a document could be drawn up.

Source: adapted from an article by Nigel Morris in The Independent, 14 February 2008

With reference to the source, describe three sources of the UK constitution.

The sources in the passage are : Common law, conventions, case law, historical documents, acts of parliament, European Treaties.

Common Law the part of English law that is derived from custom and judicial precedent rather than statutes.

The Royal Prerogatives* – The historic powers of the crown which theoretically now reside with parliament (hence the term parliamentary sovereignty). In fact the ‘royal’ powers (of war, suing for peace, signing treaties) are in the hands of the PM. This is also true of the Royal powers of appointment (patronage). It could thus be argued that parliamentary sovereignty is a myth or legal fiction (Benn, 1990) – a cloak which disguises a vast array of discretionary and arbitrary powers exercised by the PM without consulting (or even pretending to consult) parliament.

*However note that these are not identified in the passage directly, even if they are part of common law.

Conventions  – custom and practice within the political that derive from an absence of codification and which have evolved as they are deemed practical or desirable. There is no source for conventions nor are they part of the law. One convention states that if a government loses the confidence of the House of Commons it must resign, dissolve parliament and call an election.

Case Law, decisions of the court which develop the body of common law in the absence of a relevant statute. Case law establishes precedent which may be overturned but for continuity and clarity case law should nor be overturned lightly. Parliament of course can overturn or confirm case law by legislating.

Historical Documents – For example the Magna Carta – 1215, Hansard (the parliamentary record of everything said in parliament) or other works of authority such as AV Dicey’s Rule of Law or Walter Bagehot’s The English Constitution.

Acts of Parliament / Statute Law – The relevant statutes are those that either alter the rights, roles, duties and powers of the various institutions of the state or those that alter the balance of rights and freedoms between citizens and the state. Relevant constitutional statute law therefore includes: The Scotland Act (1998); The Wales Act (1998); The Representation of the People Act (1918); The Human Rights Act (1998); The Freedom of Information Act (2000); The House of Lords Act (1999) or the Constitutional Reform Act (2005).

European Treaties The Treaty of Rome (1957), The European Communities Act (1972), The Single European Act (1986), The Treaty of Maastricht (1992), The Amsterdam Treaty (1997), The Nice Treaty (2002) & The Lisbon Treaty (2009). All of these treaties had had a major impact on the UK’s internal constitutional arrangements, most notably on parliamentary sovereignty.

b) With reference to the source, and your own knowledge, explain the arguments in favour of a codified constitution for the UK.

From the source the advantages are:

Bringing us into line with other democracies (Only Israel and New Zealand do not have codified constitutions)

Help people to understand what their rights are There would be a clear entrenched statement of rights which would be difficult to amend or remove. This would lead to a greater knowledge and understanding of our rights

To reduce disillusionment with politics citizenship etc. It would renew faith in politics. The actions of politicians could be tested against a higher set of principles laid down in a codified constitution.

It could put limits on the power of the executive A feature of codified constitutions is that they are almost always founded on the principle of a formal separation of powers and inbuilt checks and balances. The executive is considered to be too powerful in the UK system and a codified constitution would give full expression to the rights, roles and duties of the executive. The courts particularly could be used to check executive action which is defined as unconstitutional.

Other knowledge might include :

Explaining what limits on the power of the executive means

Codification would probably entrench people’s rights

Codification would entrench other reforms such as devolution  – devolution could be constitutionally sealed, and could therefore not be reversed by any government.

Analysis : How well answer explains that a written constitution would result in such advantages, e.g. why would it entrench rights. Codification creates a higher law which is enforced by the courts. Actions by parliament or ministers can be checked against this higher law in the courts.

Make out a case against the adoption of a codified constitution for the UK.

It has served us well for centuries, no need for change. Constitutional Conservatives argue that constitutional reform has destabilized the UK. Centuries of tradition have been tampered with in an incoherent way often doing more harm than good. These changes may, for constitutional conservatives, have gone too far by threatening the traditional sovereignty of parliament. They also point out that any attempt to democratize the Lords would drain power away from the commons.

It would be extremely difficult and take a long time to establish constitutional rules, could a consensus ever be found? The experience of coalition is that constitutional reform is notoriously difficult to achieve even on a case by case basis. AV was decisively rejected in the May 2011 referendum and House of Lords reform has stalled. Even if agreement were reached to create a codified constitution there would never be any agreement on the provisions.

The great strength of the constitution is flexibility – we would lose this. Unable to respond quickly and effectively to change.  Uncodified constitutions possess an inherent advantage. They are quick to adapt to changing circumstances. The US constitution by contrast has only ever had 27 amendments in more than 200 years. It is very difficult to change and is one of the reasons behind the difficulties in passing gun control laws.

Conservative argument that constitution is organic and should not be an artificial creation – should continue to develop naturally, it has worked in the past and therefore should continue to work in the future.  Change should only arise out of necessity. Nothing should be reformed merely for the sake of reform. It something has stood the test of time then that of itself is a sign of its utility. This applies to the UK constitution.

A codified constitution would put too much power in the hand of the unelected Judiciary and this is undesirable. Constitutional conservatives objections may be based on the idea that parliament is and remains sovereign. Any attempt to codify the UK constitution would relegate elected politicians below the level of unelected judges.

Each of the recent reforms has done great damage to the system.

Devolution. Constitutional traditionalists fear that devolution will lead, sooner or later, to the departure of Scotland (and perhaps the other nations) from the Union. They fear the break- up of the UK. They also would prefer the state to be unitary, for the will of Parliament, and particularly the executive, to extend to the far ends of the kingdom. As a result of devolution Westminster is now quite seriously restricted in its range of powers in the nations of the UK other than England. Traditionalists also argue that this creates a constitutional mess, whereby, for example, Scottish Westminster MPs have very little say over the domestic affairs of their own constituents.

Lords Reform Constitutional conservatives particularly don’t like the idea of an elected second chamber, largely because it may challenge the authority of the HoC, and by extension the power of the executive. A more legitimate HoL may feel that it has much more authority to amend and block proposed legislation, which, for traditionalists, may lead to weaker government.

European Integration  The Lisbon Treaty (2009) and the Treaty of Nice (2001). Critics have suggested that these treaties have effectively shifted more power toward the institutions of the EU, and away from national governments. Constitutional conservatives/traditionalists (notably many members of the Conservative Party) have been horrified at what they perceive as the gradual erosion of the tradition of parliamentary sovereignty. For example, there has been some move toward the development of a common foreign and security policy, and the UK is also increasingly subject to a range of regulations emerging from Brussels.

Human Rights Constitutional conservatives objections may be based on the idea that parliament is perfectly able to protect rights through traditional principles ie the rule of law. They may also argue that judges don’t have to take a balanced view on rights, and also, notably, that judges are not actually democratically elected.

The inference to be made is that codification would therefore be a grave error as it would ‘cement’ or ‘entrench’ these damaging developments. Attempts at codification are therefore to be resisted at all costs.

Essays on Constitutional Reform – June 2009

Constitutional reform since 1997 has not gone far enough.’ Discuss.

The main examples of post 1997 reforms have been:

Devolution Devolution was the first, and the most important, constitutional reform enacted by Labour, resulting in a new parliament in Scotland and elected assemblies in Northern Ireland and Wales (all following referendums in 1997-98). The degree to which power is devolved varies – for example, the Scottish Parliament has power to enact primary legislation (the ability to make law on matters which have been devolved from Westminster) whereas the Welsh assembly has fewer powers to initiate policy that is different to that created in Westminster (it had only secondary legislative powers – that is it could only vary and not create – although since the 2011 referendum in which the Welsh people voted in favour of extending devolved power, it now has some primary powers, but still not the same range enjoyed in Scotland). There has been no successful comprehensive programme of English Devolution to match that of Scotland.

The Human Rights Act Another key area of constitutional reform has been the passage of the Human Rights Act (HRA). Effectively the HRA just ‘brought home’ the rights embodied in the European Convention on Human Rights, making them justiciable in UK courts, rather than only through appeal to the European Court of Human Rights in Strasbourg.

The Labour government deliberately implemented this reform in a way that, at least formally, protected traditional parliamentary sovereignty. Unlike in many countries with rights protection, such as Germany or the USA, judges were not given the power to annul Westminster legislation found to be in breach of the HRA. Instead they could merely issue a ‘declaration of incompatibility’, which effectively sent the legislation back to parliament for them to make changes.

Government may now be careful not to draw up proposed laws in breach of the HRA. This limits executive scope of action, a long standing feature of the UK system. There have also been high profile cases which appear to the general public that the judges are making policy rather than parliament ie the ‘protection’ of suspected terrorists and foreign criminals, based on provisions within the act, such as ‘right to private life’.

These have been extremely controversial. It does seem (although commentators disagree on this) that the HRA has made the judiciary more active in a way which challenges parliamentary sovereignty, and the power of the executive. Judicial activism may be given a further boost, due to the creation of the Supreme Court, which establishes a clearer separation of powers than was previously the case.

House of Lords Reform The Labour manifesto in 1997 pledged that the HoL would be reformed in two stages: Stage 1 – removal of hereditary peers; Stage 2 – create a ‘more democratic and representative’ second chamber. Stage 1 was achieved, but Stage 2 was left on the shelf. It has since been revived though by the coalition, spearheaded by the Lib Dems. Again, constitutional traditionalists may prefer gradual change (it’s doubtful they wanted to retain the status quo completely). They particularly don’t like the idea of an elected second chamber, largely because it may challenge the authority of the HoC, and by extension the power of the executive. A more legitimate HoL may feel that it has much more authority to amend and block proposed legislation, which, for traditionalists, may lead to weaker government. For constitutional radicals though an elected HoL is an important step in the process of ‘slicing up power into pieces’, a typical liberal demand.

Freedom of Information  – The FOI Act (2000) is an important development as it nominally allows citizens to a statutory right to public information held by public bodies. However it places a huge burden on public bodies and authorities often dealing with quite frivolous requests under the Act.

Elected mayors and local government It is important to note the ‘poor relation’ – that is, local government. There have been constitutional moves toward raising its profile, through, for example, elected mayors (see London example). A more powerful system of local government would have the effect of weakening the grip of the famously centralised UK model of governance. Constitutional traditionalists have not been too concerned here because central government is still dominant (this dominance was cemented by a succession of centralising governments during the 80’s).

Electoral reform in devolved systems More proportional electoral systems in the devolved powers have arguably dispersed power within these countries. They have tended to produce coalitions, and therefore, in theory, weaker executive power. They have added to confusion and created lower levels of participation

Reform of the Judiciary It does seem (although commentators disagree on this) that the HRA has made the judiciary more active in a way which challenges parliamentary sovereignty, and the power of the executive. Judicial activism may be given a further boost, due to the creation of the Supreme Court, which establishes a clearer separation of powers than was previously the case. This tampers with the sovereignty of parliament. Judges remain unelected.

Wider use of referenda In the UK system it is for the elected politicians to make the laws. Voters are showing signs of referenda fatigue with only 31% turnout for the AV referendum in May 2011.

Arguments for suggesting they have not gone far enough include:

the Lords reform is incomplete, For constitutional radicals though an elected HoL is an important step in the process of ‘slicing up power into pieces’, a typical liberal demand. Lords reform has stalled, the house is not yet fully elected or democratic and 92 hereditary peers remain

the Human Rights Act does not bind the UK Parliament, Radical critics argue that the reform did not go far enough. It did not, for them, check the power of parliament (and thus threaten parliamentary sovereignty) sufficiently. They point to the fact that ‘declarations’ have rarely been made (that is, the courts have rarely challenged legislation using the HRA – by May 2010, only 18 declarations).

Freedom of Information is too weak, critics argue that the reform did not go far enough. It did not, for them, prevent public authorities from trying to get around the Act. Parliament itself was extremely reluctant to divulge the information that led to the MPs expenses scandals. In addition information can still be redacted if the public authority believes the information requested could compromise commercial confidentiality or national security.

electoral reform is limited and does not include the Westminster Parliament, This is now highly unlikely to be achieved. The narrow choice (between AV and the status quo) was not a fair choice to place before the electorate

there are very few elected mayors There are currently 16 elected mayors and a number of cities (12) rejected the idea of having one in 2012. This shows there is no particular appetite for this reform.

No clear principles or long term goals Constitutional reform has been very haphazard and piecemeal. There seems to be no logic or internal consistency to the changes that have taken place.

reform does not include a codified constitution

too much power still rests with the executive  – note the continued difficulties n trying to make the exercise of royal powers more democratic

problem of ‘elective dictatorship’ not addressed

unelected elements – the Lords and the Monarchy remain important but are undemocratic

lack of full electoral reform means representation is distorted.

On the other hand supporters do praise some aspects:

reforms have generally structured checks and balance by decentralising power

the House of Lords has more legitimacy  – this is almost certainly the case following the House of Lords Act (1999) which removed nearly 600 hereditary peers

the Freedom of Information act has had an impact, eg MPs’ expenses

the HRA has led to many successful rights and liberties legal victories

the judiciary is more independent.

January 2010 – The advantages of a codified constitution now outweigh its disadvantages’. Discuss.

The advantages of a codified constitution include :

There has been a drift to excessive executive power which could be checked by a codified, entrenched constitution (though there is no guarantee of this). This would be an opportunity to introduce checks and balances.

Rights are not adequately protected.

It may be that disengagement with politics has something to do with lack of understanding of the political system so a codified document would have an educative and citizenship function.

Britain needs to be brought into line with other modern systems.

The current system is too flexible and so allows too much for the exercise of arbitrary power.

The counter-arguments include :

A conservative view that the current arrangement works and is stable so there is no need for change.

A further conservative view that the constitution is organic and should be allowed to evolve naturally.

A codified constitution would become judiciable and so could be re- interpreted by unelected and unrepresentative judges (as in the USA).

We would replace flexibility and adaptability with rigidity.

It would be excessively difficult to achieve a consensus for what would be contained in a codified constitution.

January 2011 – The UK constitution is no longer fit for purpose.’ Discuss.

Criticisms of the constitution :

It does not conform to the modern democratic world.

It is excessively flexible which means that there is too much opportunity for a drift towards executive power.

The sovereignty of parliament, which largely replaces a codified constitution, prevents individual rights being adequately protected.

The existence of prerogative powers is fundamentally undemocratic.

The loss of public confidence in politics may be partly due to a lack of codified constitutional principles.

Remaining strengths of the constitution include:

Its flexibility arising from its uncodified, unentrenched nature, means it can adapt to circumstances (coalition government?).

It does provide for strong decisive government (e.g. anti terrorism, credit crunch measures).

The UK has enjoyed many years of stable government which suggests the constitution is effective.

This cannot be said of many modern states which have strong, codified constitutions.

The ‘conservative’ arguments suggests a change to the constitution would have unknown consequences.

June 2011

To what extent has the location of sovereignty in the UK changed in recent years

Full knowledge and understanding of the meaning of sovereignty.

Knowledge shown of distinctions between the classic account of sovereignty and political meanings of the softer, more flexible approach to sovereignty.

The legal sovereignty of parliament is mainly challenged by the EU.

Knowledge of the relationship between the UK and the EU should be full and exemplified.

Devolution is often seen as a de facto transfer of sovereignty.

Knowledge of the relationships between Westminster and the devolved administrations.

Referendums can also be seen in the same light as devolution.

Investigation of the transfer of political sovereignty over a long period to executive government and the prime minister.

There should be a clear statement of how legal sovereignty remains with parliament.

 January 2012

To what extent have constitutional reforms since 1997 reduced the powers of UK governments?

The constitutional reforms referred to are likely to include some, though not necessarily all, of the following :

Devolution

The Human Rights Act

The Freedom of Information Act

The introduction of elected mayors in London and elsewhere

The partial reform of the House of Lords

The Constitutional Reform Act of 2005

The introduction of fixed term parliaments

Any other changes which have occurred by the time of the exam

The ‘convention’ or requirement that referendums be used for constitutional issues

The reforms have changed the operation of government in these ways :

Power has been significantly decentralised through devolution so the scope of central government activity is narrowed (examples would be welcome) .

The protection of human rights has been increased by the HRA and the FOIA. Thus government must take rights and openness into account when making decisions and policy.

Government is more open as a result of the FOIA.

The House of Lords has become more assertive and therefore challenges government more robustly. Government must take this into account when drafting legislation.

Elected mayors has revitalised some aspects of local government in London and a few other locations. Again this presents central government with rival centres of power.

The Constitutional Reform Act has made the judiciary more independent and it is now more independent in its control of government power.

Governments must take the increased possibility of judicial reviews and other challenges into account.

Government, even a coalition, is more secure as a result of fixed terms.

June 2012

a) With reference to the source outline two constitutional reforms proposed by David Miliband.

Reforms referred to by Miliband are :

The introduction of the alternative vote for elections to the Commons.

Replacing the current House of Lords with a second chamber elected using PR.

The introduction of a written constitution to bolster the operation of the HRA.

b) With reference to the source and your own knowledge, explain the arguments in favour of introducing a codified constitution.

The source refers to the following justifications for a written constitution:

The rights and responsibilities of citizens need to be codified.

The way in which government is held to account also needs to be codified, and presumably strengthened.

There will be more democratic engagement (participation) in the act of writing a constitution.

The writing of a constitution will increase the power of citizens, presumably by involving them in the process.

A written constitution will make politics more open and more real for people.

Additional arguments might include :

It will make it clearer for citizens how government works.

The introduction of coalition government and its new problems requires a codified set of rules.

It might help to prevent any further drift towards excessive executive power.

It will bring Britain’s constitutional requirements into line with other modern democracies.

c) To what extent have the coalition government’s proposals to reform the UK constitution been controversial?

Proposals have included, together with aspects of controversy and/or agreement :

The introduction of fixed term parliaments and the introduction of an enhanced majority requirement for a successful vote of no confidence. To clarify –  If the Liberal Democrats leave, so it is argued, Cameron will destroy them in a snap election. But the Fixed-Term Parliaments Act precludes a snap election. An early election can only be called if there is a two-thirds majority of MPs voting for dissolution, or failure to achieve an alternative government 14 days after the defeat of the current one following a no-confidence vote. Therefore, were the Liberal Democrats to leave the coalition, Cameron would be forced into continuing as the prime minister of a minority government. Were he to be defeated in a confidence vote, he would still be unable to dissolve. He would have to resign and the Queen would have to summon Ed Miliband. Then, only if Miliband were unable to form a government would there be an election. It is perhaps surprising that Labour has not done more to woo the Liberal Democrats away from the coalition.

The possible introduction of AV. Hugely controversial between parties and within the Conservatives. Controversy settled by the referendum.

The completion of House of Lords reform, introducing a partially elected chamber. Agreement ‘officially’ between the main parties, but great controversy with the Conservative Party and between Lords and Commons.

The equalisation of parliamentary constituency sizes. Some Labour accusations of gerrymandering.

Reduction in the size of the Commons.

Power of recall of MPs by constituencies.

The possible introduction of elected mayors and police commissioners for large cities.

Various proposals concerning devolution

The introduction of the backbench business committee

Any other valid constitutional proposals (such as a British Bill of Rights) can be credited.

January 2013

To what extent have the constitutional reforms introduced since 1997 made the UK more democratic?

Devolution

Human Rights Act

Lords Reform

Elected Mayors

Freedom of Information

Judicial reform

Fixed terms

Commons backbench reforms

The use of e-petitions on Downing street website.

NB. the increased use of referendums is not strictly a reform but is allowable in this discussion.

The aspects of democracy which have been addressed include :

Decentralisation

Accountability

Participation

Open government

Rights protection

NB: Incomplete or delayed reforms may be included as part of the evaluation.

June 2013

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June 2014

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June 2015

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June 2016

‘Arguments in favour of further constitutional reform are more convincing than those against.’ Discuss. (Total for Question 3 = 40 marks)

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