The Constitution

Key issues

• What is a constitution? • What are the functions of a constitution?• What are the differences between codified and

unmodified constitutions?• What are the sources of the UK Constitution?• What are the features of the UK Constitution?• Where does sovereignty reside in the UK Constitution?• In what ways has the UK Constitution been reformed

since 1997?• What are the prospects for further reform under the

Coalition Government?

What is a constitution?

• A set of principles, which may be written or unwritten, that establishes the distribution of power within a political system, relationships between political institutions, the limits of government jurisdiction, the rights of citizens and the method of amending the constitution itself.

What does a constitution do?

• 1. It determines where power should be distributed within a state.

• It establishes the rules that govern the relationships between different institutions of the state e.g. that between the executive and the legislature.

• It usually sets the limits of the power of the executive- in the UK there is no legal restriction o the competence of Parliament as it is sovereign.

• Constitutions set out the rights of the citizens, usually incorporated in a written bill of rights or in the case of the UK the Human Rights Act.

• Constitutions establish the process by which the constitution is amended.

What are the differences between codified and uncodified constitutions?

• Codified: It is written down in a single document- it has a single source- e.g. the American Constitution. There are two tiers of law ( higher or basic laws affect constitutional arrangements whereas ordinary law does not)

• Uncodified: Parts may be written- e.g. statute law in the UK but it is not all collated in one single document. In the UK there is no distinction between constitutional and other laws. Laws affecting the constitution e.g. Human Rights Act are passed in the same way as any other law.

What is meant by entrenchment?

• A device which protects the constitution from short term amendment. The US has a complicated process of amendment. In the UK it is not possible to entrench the constitution because Parliament is sovereign. However, from 1997, it has been the custom to pass major constitutional change only after a yes vote in a referendum. For example, the 2 million or so voters in Wales will be asked on 3rd March 2011 whether primary legislative powers be granted to the Welsh assembly.

What is meant by judicial review?

• This is when a court interprets what the constitution is. This is often the result of a legal challenge. The constitution is often unclear and judges have to interpret what it means on an issue and this is the process of judicial review. Therefore in all type of constitution both codified and otherwise, judges are involved in reinterpreting what the Constitution means. In the USA this has enabled the Supreme Court to successfully challenge both state and Federal law. In the UK, where Parliament is sovereign, judges can declare that an act of Parliament is incompatible with the Human Rights act- e.g. 2004 the indefinite detention of foreign terror suspects but it is up to Parliament whether it complies and then passes remedial legislation to remedy the situation.

Should the British Constitution be codified?

• Yes• A written constitution would better

safeguard rights- the HRA does not limit the power of Parliament to legislate as it alone is sovereign.

• Liberals and other reformers would argue against the encroachment of executive power

• A written constitution would create much better public awareness of what the constitution is and what people’s rights are.

• UK is unusual in the modern world in that it does not have a written constitution.

• No• It is adaptable to changing

circumstances as it is easy to amend.• The power of unelected bodies has

simply passed to elected or accountable bodies. Crown Prerogative powers are now exercised by the Prime minister who is answerable to the elected House of Commons.

• Because constitutional safeguards are weaker in the UK Governments can respond more easily to crises such as the increased terror threat after 9/11.

• It has stood the test of time, unlike much of the Continent there have been no violent revolutions or civil wars for several centuries.

In what ways has the United Kingdom moved towards a written constitution in recent years?

• The incorporation of the ECHR into UK law 1998• Devolution has codified the powers of the Scottish parliament and

devolved assemblies.• Membership of the European Union has involved a codification via

various treaties such as the Treaty of Accession (1972), Maastricht 1992 etc…

• FOI act has codified the public’s right to see public information.• Political Parties, Elections and Referendums Act 2000 codified

status and conduct of political parties.• Use of referendums prior to significant constitutional changes such

as devolution effectively entrenches these changes.• Electoral Commission has a codified set of rules for conduct

elections and referendums.

Unitary and federal Constitutions

• Unitary• Sovereignty is

concentrated.• There is one

sovereign Parliament• Legally, there is no

limit to the ability of Parliament to pass any law.

• Federal• Sovereignty is not

centralised but shared between central bodies and regional institutions.

• The legal capacity of each is restricted by the constitution.

What are the sources of the UK Constitution?

• Parliamentary statutes: These are laws which affect the Constitution. An example would be the Scotland Act 1998 which established a legislative and tax raising Parliament in Scotland. Most laws are not statute law because they do not have a bearing on the Constitution.

• Conventions: An unwritten rule which has such widespread acceptance that they are not challenged. The powers of the Prime Minister are based on the convention that the prerogative powers of the monarch are exercised on her behalf by the Prime Minister.

• Historical Principles: These have been established over a long period of time and thus have become binding- the sovereignty of Parliament, parliamentary government- authority of the government is drawn from Parliament and not the people, rule of law.

• Common Law: Development of laws through historical usage and tradition- right of free movement and peaceful protest and freedom from arbitrary arrest. For the most part civil rights are now codified in the HRA. The prerogative powers of the PM are common law powers as never codified or put into formal legislation.

• Tradition: Procedures of both House Parliament are traditional e.g. rules of debate

What are the main characteristics of the UK Constitution?

• It is uncodified• It is not entrenched- easy to amend merely by an act of parliament which is

statute Law. • Constitutional Monarchy- loss of the arbitrary prerogative powers to the

Prime Minister. All law making power passed to Parliament. Monarch does not refuse royal assent to parliamentary bills.

• Parliamentary Government- as the ministers are drawn from parliament there is no separation of the Executive from the Legislature.

• Parliamentary Sovereignty- only Parliament can pass laws- hence government bills need to be legitimised by Parliament. Parliament can bring down a government by passing a vote of no confidence.

• Party Government? Principles of mandate, collective responsibility, government and opposition depend that one party wins the election outright. However, in the aftermath of May 2010, no party won and party government was not possible.

• Unitary government: In spite of devolution, there is still only one sovereign Parliament in the UK.

What are the strengths and weaknesses of the UK Constitution?

• Strengths• It is flexible and adaptable

precisely because it is not written down.

• It has stood the test of time• Parliament and the

government can act decisively unrestricted by constitutional constraints

• Tradition such as the monarchy help maintain public support for the system.

• Weaknesses• Lack of restraints on

Parliament's legislative capacity is a threat to minority rights.

• It contains outdated institutions such as the house of Lords.

• Lack of separation of powers means the government can dominate the legislature.

• Many people are ignorant of the constitution precisely because it is uncodified.

Types of sovereignty in the UK

• Legal: The ultimate power to make laws- Parliament…

• Political sovereignty: where power resides in reality- the executive as it dominates Parliament via its majority and control of the parliamentary timetable. The Prime Minister via the exercise of Crown Prerogative powers which are not subject to parliamentary control… Treaties such as EU treaties which are signed using prerogative powers are only recognised as legal by UK courts if they have then been passed by Parliament.

What has been the effect of the EU on UK sovereignty?

• EU laws are superior to national laws of member states- 1991 the Factortame Case the ECJ declared that the 1988 UK Fisheries Act was inferior to EU legislation in this area.

• UK Courts must implement EU laws.• European Court of Justice (ECJ) is the highest appeal

court in disputes between member states and the EU.• Qualified Majority Voting refers to those areas where an

absolute majority in the Council of ministers is no longer necessary before EU law becomes binding on all member states. This was introduced in 1986 and greatly extended under the terms of the Maastricht treaty 1992.

Where does sovereignty reside in the UK?

• In this type of short answer question, you must say that legally Parliament is sovereign however political sovereignty has changed over the course of the years...

• Because devolution has been based on a popular mandate in a referendum, it is highly unlikely that Westminster would dissolve these bodies.

• The Scottish parliament derives sovereignty from the claim of right which holds that in Scotland, the Scottish electorate is sovereign.

• The 1998 Good Friday Agreement established a confederal partnership between Westminster and the Irish Republic over the future of the Province of Northern Ireland.

• The European Communities act 1972 transferred sovereignty in certain areas from Westminster to the EU. The principal areas affected are Trade, Agriculture, Fishing, Employment Law, Consumer Law, Competition Control, Regional economic Development.

• The highest court in the EU is the European Court of Justice at Brussels. It is the final court of appeal.

• British Courts are obliged to challenge acts of parliament and practices which are in contradiction of EU law.

• In 1998, (Factortame Case) the ECJ ruled that the 1988 UK Fisheries Act was incompatible with EU law and was declared null. In March 2011, the ECJ declared that insurance companies which offere cheaper life, health and car insurance on the basis of gender were incompatible with EU law and the Coalition Government has dropped a coalition pledge to reform air passenger duty on planes leaving the UK on the grounds it would conflict with EU law.

Motives for constitutional reform by 1997

• Long standing commitment on the part of the Labour party which had always advocated popular democracy, equal rights and reduction of establishment powers such as reform of the Lords.

• The long period in opposition 1979-1997 had created a desire for change to prevent another situation where the political agenda would be dominated by one party.

• Growing support for change- opinion polls and in pressure groups such as Charter 88 and the Liberal Democrats. Consider the democratic deficit- a largely non Conservative Scotland and Wales ruled by Conservative governments in Westminster.

Themes for reform

• Democratisation

• Decentralisation

• Restoration of Rights

• Modernisation

Impact of Labour reforms• House of Lords: Labour was committed to reform in two stages- the removal of the hereditary peers and the

setting up of a royal commission of enquiry to suggest a permanent reformed upper chamber. Under Tory opposition, the government agreed to the retention of 92 hereditary peers until the second stage was completed. An independent appointments commission was established to vet nomination of life peers including ‘peoples’ peers’ although the PM decided when to appoint. Also, the Wakeham commission was established to suggest different composition of a reformed chamber. The Commission suggested three proposals but as reform requires cross party support in the Commons it failed. By 2011 the two main parties favoured a largely elected second chamber. The chamber came under unwelcome scrutiny over the cash for peerages scandal engulfing the latter years of the Blair government and also the Peergate lobbying scandal and peers have been criticised for expenses scandals including one parliamentarian who has been indicted.

• Parliament: Very little progress, creation of special standing committees and the removal of the sessional cut off point for some bills, some reform of working practices for family friendly hours- largest ever female intake of new MPs 1997- ‘Blair’s Babes’. With the revelation of the Expenses’ scandal 2009, reform here has shifted to expenses with the creation of IPSA as the independent regulatory body of MPs expenses.

• Human Rights: A formal codification of the ECHR in UK law. It is a clear statement of rights and removes the obligation of litigants to take cases to the ECHR at Strasbourg although this remains the final arbiter. Judges have interpreted the HRA to challenge the legality of acts of Parliament under the act and, as a result, the post 9/11 detention of foreign terror suspects indefinitely was suspended 2004. The act does not provide the UK with an entrenched Bill of Rights and it has come under attack from both main parties arguing it infringes on parliamentary sovereignty and places individual rights over the national interests.

• Electoral Reform: Increasingly embraced by Labour in opposition as a way out of single party dominance at Westminster. The Jenkins Royal Commission was set up which in 1998 advocated AV+, a combination of directly elected MPs based on preferential voting and list system by which parties would receive additional MPs so that their numbers more closely reflected voter support. Labour would only implement reform of Westminster elections following referendum. However, AMS used in devolved assemblies after 1999, Supplementary vote for the London Mayor, regional list system for European parliament elections and the devolved bodies in Wales, Scotland and Northern Ireland have introduced PR in local elections.

• Freedom of Information: This has been crucial in securing greater scrutiny and therefore accountability in terms of MPs expenses, health care provision, defence procurement and local authority procedures.

• London: In 2000 a directly elected mayor and an elected assembly of 25 members. The London Mayor is not the same powerful figure as that of Paris and New York but is in a position to influence power. Livingstone as the first mayor introduced the congestion charge, won approval for a Cross rail system in London, both he and Johnson won increased funding for policing in London. Crucial role played by Livingstone in team winning 2012 Olympic games and he and now Johnson will play a crucial role in oversee the games.

• Regions: The formation of a Scottish parliament with tax raising powers and an executive. The first two parliaments saw the emergence of a LibLab coalition and followed by a minority SNP executive. Devolution has increased the separatedness of Scotland which already had considerable autonomy in education and law since 1707. An early victory over Westminster was the decision to abolish tuition fees in Scotland. Alex salmond as the Scottish first minister has referred to himself as the Scottish Prime Minister and to the Scottish Executive as the Scottish Government. In 2011, the Scottish Parliament voted to join Wales and Northern Ireland in abolishing tuition fees. In Wales, the assembly had no primary legislative powers but was allowed to ask Westminster to pass such laws as it wished affecting Wales. In a referendum March 2011, the Welsh electorate voted to grant such powers. BBC News - Welsh referendum: Low turnout 'a wake-up-call' The Welsh Executive was formed first by a minority Labour government and latterly by a Labour Plaid Cymru coalition. In Northern Ireland, the Good Friday Agreement 1998, required the power sharing between parties representing the Unionist and Nationalist communities. Direct rule was reimposed 2002-2007 following allegations of an IRA spy ring at Stormont. However, since then a power sharing executive representing the DUP and Sinn Fein. In 2011, the thorny issue of the transfer of responsibility for policing to the province was resolved. Attempts to establish regional assemblies in England have stalled with the low turnout and resounding no vote in the referendum for a North east assembly 2004. a question for all the devolved bodies remains that of powers and accountability. SNP want control over North sea oil revenues for Scotland. The Calman commission established under Labour has recommended a responsibility c 35% of raising taxation to be transferred to the Scottish parliament. Currently, the bulk of the funding spent in Scotland and all of that for the other regional bodies is raised centrally by Westminster, hence diminishing democratic accountability of those bodies responsible for spending that revenue.

• Local Government: The Labour Government introduced legislation allowing for the creation of directly elected mayors. Very few referendums were held and few led to directly elected mayors. this policy has also been taken up by the Coalition Government, again with mixed results. Local councils were also given the option to changing to a cabinet system where councillors from the leading party would set policy and male key decisions.

• Referenda: Major constitutional change and reform has been or is promised to be backed by a yes vote in a referendum. This is to give the reform democratic legitimacy and to entrench it. At a local and regional level, devolution of powers either to a regional assembly or their strengthening or to elected mayors have all been backed by referendums. The Coalition Government will hold a referendum in May concerning the replacement of FPTP with AV. A referendum will also be held on an agreed structure and means of election/selection for a reformed House of Lords should that be achieved before the end of the Parliament.

• Judiciary: Criticism of the judiciary centred on the following areas: lack of separation of powers with the Lord Chancellor being a senior Cabinet post as well as the head of the judiciary and speaker of the House of Lords. The appeal court was the Law Lords and hence a further binding of the judiciary with the legislature. There was opposition to the fact that senior appointments in the judiciary were made senior politicians such as the Prime Minister and the Lord Chancellor.

Criticisms of the New Labour Constitutional Reforms

• Lib Dems and pressure groups such as Unlock Democracy and Liberty argue that only a fully elected second chamber will be accountable, authoritative and representative.

• Commons remains ineffective and inefficient with lack of government accountability.

• The Human Rights Act is not entrenched.• Freedom of Information Act still allows

government to be overly secretive.• Failure of Labour to deliver on electoral reform.

Beyond 2010- Why is there continuing pressure for reform?

• Conservatives critical of continuing erosion of national sovereignty to EU and were critical of the Human Rights Act- hence Cameron’s call for a British Bill of Rights. Lib Dems want fundamental reform of the Lords, devolution, legal protection for civil liberties and greater transparency in government.

• Also the fall out from the expenses scandal 2009

The Coalition programme for reform

• Fixed term parliaments. However, there has been opposition from MPS over the 55% required for dissolution in place of a simple majority of 1.

• Referendum on AV for parliamentary elections to be held to coincide with the local elections in May.

• Reform of the Lords. There has been a lack of cross party support with many MPs fearing that a fully elected chamber will one day threaten the primacy of the Commons.

• Reform of the House of Commons. The Wright Committee 2009 recommended that greater power be given to backbenchers. The coalition responded by introducing election of select cttee chairs, setting the parliamentary agenda via a Backbench business cttee and allow petitions to Parliament. The Coalition has responded to the expenses scandal by introducing US style recall of corrupt MPs with de selection and a by election in the constituency affected.

• The Coalition introduced a pre election promised referendum on legislative powers for the Welsh assembly which was carried in March 2011, and for implementation of the Calman report- the Calman Commission was set up by Labour as a review into devolution for Scotland and recommends greater financial responsibility for the Scottish parliament upwards of 35% responsibility for raising of revenue there.

• Reduction of the size of the Commons by 10% and creation of equal electoral districts.• Tensions remain over the Human Rights Act and the capacity of the ECHR to • Challenge the government. Recent cases involve the rejection by the UK of the ban on the right

of prisoners to vote and also the automatic inclusion for life on the sex offenders’ register without the possibility of legal challenge for all those convicted of sex offences. BBC News - David Cameron: UK human rights law review 'imminent‘. The problem here, however is the fact that the Conservatives’ coalition partners are keen advocates of the HRA.

• Compulsory registration of lobby groups in order to regulate their operation in Parliament.