2.1: The constitution Flashcards
1
Q
What is a Constitution and what are the 2 different types of Constitution?
A
CONSTITUTION
- A document(s) that determines where power is located within a nation-state and the rules by which it is governed.
- Codified and entrenched
- Contained within one single document which is entrenched and superior to all other law
- As it is entrenched, it makes it impossible for it to be altered without complicated procedures requiring the agreement of more than just the legislature through amendments.
- German Basic Law of 1949.
- American Constitution of 1787. - Uncodified (UK, Israel, New Zealand, Canada, Saudi Arabia) and unentrenched
- Constitution which is derived from a variety of sources and, since it is not entrenched, does not represent a higher law.
- The UK has an uncodified constitution which is unentrenched, allowing Parliament to be the sovereign law-making body which can change the rights of its citizens by Acts of Parliament.
2
Q
What key historical documents have developed the UK Constitution?
A
HISTORICAL CONSTITUTIONAL DOCUMENTS
- Magna Carta (1215)
- By forcing King John (1199 - 1216) to accept the 63 clauses of Magna Carta, the barons placed limits on the power of the monarchy.
- This established the principle that the Crown is not above the law.
- Magna Carta also contains the first statement of the principle of habeas corpus, that one cannot be punished or deprived of liberty without due process of law.
- Remains a powerful symbol of English liberties.
- Many clauses have been repealed and superseded by later legislation. - The Bill of Rights Act (1689)
- In 1688, the last Stuart King, James II, was overthrown in the Glorious Revolution because it was claimed he was trying to establish an absolutist monarchy.
- When Parliament offered the Crown to James II’s daughter Mary and her husband William of Orange, they had to accept the Bill of Rights, which gave force to ‘certain ancient rights and liberties’.
- These included the summoning of regular Parliaments, free elections, no taxation without the consent of Parliament and parliamentary freedom of speech.
- Based on the principle that the right of the crown derived from a contract made with Parliament that it will govern according to the rule of law (John Locke in Two Treatises on Government 1689). - Act of Settlement (1701)
- Confirmed the primacy of Parliament over the Crown by declaring that Parliament had the authority to determine the succession to the throne (with the desire to exclude James II and his heirs from the throne, with their adherence to the Catholic Religion widely associated with tyrannical rule).
- The Act of Settlement also confirmed judicial independence by stating that a judge can be removed only on the agreement of both houses of Parliament. - Act of Union (1707)
- Although England, Wales and Scotland had shared the same monarch since 1603, the Act of Union united the Parliament of Scotland with that of England and Wales in Westminister.
- Created the United Kingdom, although the independence of Scottish Law was preserved.
- This was the basis of the UK until Tony Blair’s government passed legislation to set up a Scottish Parliament once again in 1997. - The Parliament Acts (1911 and 1949)
- As a result of the House of Lords’ refusal to pass David Lloyd George’s radical tax-rising People Budget, the Liberal PM H.H. Asquith (1908 - 1916) threatened that he would not ask King George V (1910 - 1935) to flood the House of Lords with Liberal peers if it did not accept limits on its powers.
- The House of Lords relented with the 1911 act removing the Lords right to veto and removing the ability for the Lords to amend or delay financial bills such as budgets, while it would be able to delay other bills for only 2 years.
- The 1949 act reduced the Lords’ right of a delay from 2 years to 1 year.
- Both acts established the democratic legitimacy of Parliament by asserting the primacy of the Commons over the Lords. - European Communities Act (1972)
- The Conservative Government of Edward Heath (1970 - 1974) successfully steered the Economic Communities Act through Parliament.
- From this, the UK joined the EEC (EU from 1993) from the 1st of January 1973.
- In 1991, the Factortame Case allowed EU law to take precedence over domestic law.
3
Q
What is the nature of the Constitution of the UK?
A
UK CONSTITUTION
- Uncodified
a) The UK does not possess a single document that establishes the rights of its citizens and the limits on governments, instead, it is derived from a variety of sources.
- ‘Partly written and wholly uncodified’.
- Has allowed the development of the British Constitution to be evolutionary, whilst similar democracies have born a Constitution out of revolutionary measures. - Unentrenched
a) It can be altered relatively easily, by a simple majority vote in Parliament, offering flexibility.
- there is no legal procedure for amending the UK Constitution.
- In the UK, all laws have equal status.
- Parliament, as a sovereign law-making body, can enact ant legislation for which there is a parliamentary majority and which would not be deemed unconstitutional, such as extending the lifetime of parliament beyond 5 years. - Unitary
a) Sovereignty (ultimate authority) has traditionally been located at the centre in Parliamentary sovereignty (although this has been slightly modified through devolution).
- This contrasts to federal countries (USA) in which states have certain powers which the central government cannot override.
- Devolved UK powers can be, in theory, reclaimed by Parliament
- EXAMPLE. Can be seen when Parliament enacted the European Union (Notification of Withdrawal) Act 2017, beginning the process by which the UK reclaimed sovereign power from the EU.
4
Q
What are the ‘twin pillars’?
A
TWIN PILLARS
- A.V. Dicey identified two key principles on which Britain’s uncodified constitution is based on in 1885:
1. Parliamentary Sovereignty
a) Parliament is the supreme legislative body, free to enact any legislation for which it has a parliamentary majority since there is no authority greater than Parliament which could veto this. - Since each Parliament is sovereign, then no Parliament could enact legislation which could force its successor to act in a certain way (no parliament is bound by a successor).
- EXAMPLE. In 2003, Parliament repealed section 28 of the 1988 Local Government Act which made it illegal for local authorities and schools to intentionally promote homosexuality.
- No higher body/constitutional court (Supreme Court) can strike down Parliamentary legislation. Instead, they can interpret but not overturn acts of Parliament.
- Rule of Law
a) The principle that the same laws apply equally to every citizen and that the government is subject to the same laws as everyone else.
- Therefore the government should act according to the rule of law.
- The judiciary must be independent of political interference.
- The rights of Britains have traditionally been seen as negative rights; freedom to do all except forbidden by Parliament.
5
Q
What are the 6 main sources of the UK Constitution and the relationship between these sources?
A
SOURCES OF THE UK CONSTITUTION
- Statute Law
- Common-Law
- Convention
- Landmark Decisions
- Authoritative Works
- Treaties
RELATIONSHIP BETWEEN SOURCES
- There can be competing jurisdictions between sources, yet Parimanetary Statute Law has been seen as the ultimate authority since an Act of Parliament can supersede even landmark decisions such as the Magna Carta.
- Yet in the Factortame Case 1991, the Law Lords declares that in the case where the EU had legislated, EU law took precedence over domestic law, yet only in areas where the UK had pooled sovereignty with the EU.
- However Parliamentary state remains supreme, hence why the UK can leave the EU.
6
Q
What is Statute Law and examples?
A
STATUTE LAW
- A Parliamentary bill which has been approved by both houses of Parliament and then given the royal assent.
- Underpinned by Parliamentary Sovereignty and there is no greater authority than statute law.
- EXAMPLES of Statute Law with constitutional reform
a) Parliament Act 1911
- Removed the House of Lords’ right of veto.
- The principle that Parliament should reflect the democratic will of the people through the Commons.
b) Representation of the People Act 1928
- The UK adopted universal suffrage.
c) Scotland Act 1998
- Following the 1997 referendum in which Scotland voted in favour of devolution, the Scotland Act re-established a Scottish Parliament.
d) Human Rights Act 1998
- Incorporates the European Convention on Human Rights (ECHR) into British law.
- Therefore, public bodies (including the government) are expected to act in accordance with the ECHR and judges should interpret the law according to the principles of the ECHR.
e) Equality Act 2010
- Codifies into one Parliamentary statute all previous anti-discriminatory legislation, so providing the positive right of equal treatment.
f) Marriage (Same-Sex Couples) Act 2013
- This act legalises same-sex marriage and represents a pivotal step in the development of LGBT rights.
7
Q
What is Common Law and examples?
A
COMMON LAW
- The judgements made by judges in important legal cases.
- Also referred to as ‘judge-made law’, common law cases set precedents to be followed in future cases.
- Important when it is unclear how statute law should be applied in practice or lacking.
- EXAMPLES of Common Law
a) Bushell’s case 1670
- In this case, the presiding judge instructed the jury to find two Quakers guilty of unlawful assembly.
- The jury refused to do this and so was fined for contempt of court.
- One juror, Edward Bushell, refused to pay the fine and in the resulting case Sir John Vaughan declared in favour of the jury, stating that the judge ‘may try to open the eyes of the jurors, but not to lead them by the nose’.
- Bushell’s case represented a landmark case protecting the independence of a jury.
- Habeas Corpus is common law protection against unlawful imprisonment (innocent until proven guilty) which was converted into statute law in 1679.
b) Entick v Carrington 1765
- When agents working for a member of the government, The Earl of Halifax, ransacked the home of the anti-government publicist James Entick searching for incriminating evidence, Ensick sued for damages.
- The presiding judge, Lord Camden, found in favour on Entick, declaring that “if this is law it would be found in our books, but no such law ever existed in the country”.
- The principles of the case are that the executive cannot infringe the civil liberties of its citizens (property of every man is sacred) without legal justification, established an enduring precedent that protects British Citizens from the arbitrary and autocratic government.
c) Somerset v Stewart 1772
- When a black slave, James Somerset, was imprisoned by Charles Stewart for having escaped, lawyers for Somerset said how he had been illegally imprisoned.
- Lord Mansfield states that nothing in English statute law justified slavery and so Somerset could have not been enslaved.
- This challenged the legitimacy of slavery in common law before its abolition in 1833.
8
Q
What are Conventions and examples?
A
CONVENTIONS
- Not recognised in statute law, but a number of conventions and customs have developed which, like common law, have achieved the force of constitutional precedence in being broadly accepted.
- EXAMPLES of Conventions
a) There is no legal requirement that a member of the House of Lords cannot be PM.
- Yet in 1963, Lord Home recognised that it would be constitutionally unacceptable, and resigned his peerage so he could fight a by-election to enter the Commons as Sir Alec Douglas-Home.
b) According to the Salisbury Convention, the Lords does not oppose the 2nd or 3rd reading of legislation that was in the winning party’s manifesto.
- This convention was named after Robert Gascoyne-Cecil, the 5th Marquess of Salisbury (1893-1972).
- Convention dates back to the Labour Government of 1945 - 1951 when Lord Salisbury (leader of the Conservatives in the Lords) accepted that the House of Lords would not use its Conservative majority to wreck Labour’s manifesto commitments since Labour was democratically elected.
c) Principle of collective ministerial responsibility.
- A convention which has developed as a way of ensuring that governments survive rather than a fragment.
d) In 2003, by allowing the House of Commons to vote on whether to support military action against Iraq, Tony Blair established the convention that henceforth Parliament should be consulted over the large-scale commitment of British forces to military operations.
e) The public should be consulted in a referendum in order to legitimise proposed changes to the Constitution.
f) It is a convention that the monarch signs act of Parliament passed in both houses.
g) The convention that the Government should resign after losing a vote of no confidence.
9
Q
What are Landmark Decisions and examples?
A
LANDMARK DECISIONS
- Alike conventions, some historical events are so momentous that they contribute towards the Constitution.
- EXAMPLES of Landmark Decisions
a) Magna Carta (1215)
- By recognising that limits can be placed on the authority of the Crown, this has played a major role in the development of the principle of the rule of law.
b) The Petition of Rights (1628)
- Parliament presented this to King Charles I, setting out the core rights including freedom from arbitrary imprisonment and the requirement that Parliament grants taxation.
c) The Bill of Rights (1689)
- Asserts the subordination of the Crown to Parliament, as well as condemning ‘illegal and cruel punishments’.
10
Q
What are Authoritative Works and examples?
A
AUTHORITATIVE WORKS
- Influential works/textbooks that explain the working of a political system with political significance.
- Useful guides, but lacking in legal standing.
- EXAMPLES of Authoritative Works
a) The English Constitution (1867) by Walter Bagehot.
- Explains the relationship between the monarchy, the legislature and the executive.
b) Introduction to the Law of the Constitution (1885) by A.V Dicey
- Dicey explains how the British Constitution rests upon the ‘twin pillars’ of Parliamentary Sovereignty and the rule of law.
c) Parliamentary Practice (1844) by Erskine May
- As a clerk of the Commons, he explains in minute detail how Parliament operates, with it regularly updated (25th edition in 2019).
- It is authoritative that it is regarded as being part of the UK constitution.
- In March 2019, speaker John Bercow used principles established by Erskine May to stop Theresa May reintroducing her Brexit deal into parliament in an unchanged state.
d) The Cabinet Manual (2011) by Civil Service Head Gus O’Donnell.
- A guide to how a coalition government should be established.
- Evolving authoritative works.
11
Q
What are Treaties and examples?
A
TREATIES
- A written agreement made between 2 or more political entities.
- EU membership has had a substantial UK constitutional impact, since the European Union (Withdrawal) Act 2018 transfers all existing EU law into domestic law (meaning that there is no black hole in the statute book).
- EXAMPLES of Treaties
a) Accepting the Treaty of Accession 1972 through the European Communities Act 1972.
- This made the UK a signatory to the Treaty of Rome 1957 and meant that the UK accepted all existing European Communities Law.
b) Single European Act 1986
- Set up the European Community with an objective of establishing a single market by 31 December 1992, and a codified European Political Cooperation.
c) Maastricht Treaty 1992
- The treaty founded the European Union and established its pillar structure.
- The treaty also greatly expanded the competences of the EEC/EU and led to the creation of the single European currency, the euro.
d) Lisbon Treaty 2009
- This treaty updated regulations for the European Union, establishing a more centralised leadership and foreign policy, a proper process for countries that wish to leave the Union, and a streamlined process for enacting new policies.
12
Q
Should the UK have a codified constitution with an entrenched Bill of Rights?
A
UK CODIFIED CONSTITUTION WITH ENTRENCHED BILL OF RIGHTS
- Yes
a) A codified Constitution would represent a higher Constitutional law, which would entrench the British people’s civil liberties and so protect them from arbitrary government.
- The Human Rights Act 1998 does not do this because it is an act of Parliament and so parliament can suspend its provisions or repeal it.
- This was seen with the ‘control order regime’ amendments to the Act in 2005 following 7/7.
b) The authority of the SC would be enhanced since it would be able to quash laws which it deemed ‘unconstitutional’ by referring to the higher law of the constitution.
- Improve the legitimacy of the political process by assessing the constitutionality of actions by parliament and the executive.
c) A codified constitution would clarify the relationship between the various branches of government and establish where sovereignty lies.
- Greater clarity on the powers of governments from conventions (when a PM should resign, what happens in the event of a hung parliament with no clear winner).
- The lack of clarity over where power lies in the UK constitution is illustrated by the Gina Miller case 2017 in which the SC declared that the Royal Prerogative did not enable the government to negotiate a withdrawal from the EU without Parliament being consulted.
d) The rights of minorities could be recognised in a codified constitution. This is especially important in a multicultural society, in which many alternative lifestyles exist.
- In 1976, Lord Hailsham warned that the UK was in danger of becoming an ‘elective dictatorship’ because there were so few constraints on the influence of the government.
e) By codifying rights, the public could become more politically engaged since they would know what their relationship with the government is.
- This could educate the public about Constitutional issues and promote greater respect for political institutions.
f) The way in which the government can introduce the constitution to its advantage as politically motivated.
- In 1999, there was a strong case for the removal of hereditary peers from the House of Lords, yet this benefited the Blair government since the hereditary peers had provided the House of Lords with an inbuilt Conservative majority.
- Similarly, the introduction of EVEL by Cameron could be politically motivated since Conservatives generally win most seats in England, resolving the West Lothian issue and making it easier for Conservatives (harder for Labour) to pass legislation that affects only England (2019 England Results = 345 Conservative, 179 Labour, 7 Liberal Democrats, 1 Green).
g) In cases of greater national security, the Government may abuse the uncodified constitution by passing acts which encroach on enshrined rights, following the 7/7 2005 attacks which modified the HRA.
- Serious Organised Crime and Police Act 2005 restricted the right to protest outside Parliament, with critics arguing that it denies the public essential civil liberties, which is to protest their grievances at the legislature.
- Counter-Terrorism and Security Act 2015 requires universities and schools to monitor debate and deny a platform to speakers who could encourage radicalisation, being criticised as an infringement of freedom of speech.
- Investigatory Powers Act 2016 increased authority to the intelligence services to carry out electronic surveillance of private individuals leading to liberties groups labelling it ‘the snoopers charter’.
- Civil liberties groups (Charter 88 and Liberty) claim that these statutes allow the government to act in an arbitrary fashion, so a constitution should be adopted to make it difficult for the government to extend its power.
- Labour Leader Sir Keir Starmer has been critical of Theresa May’s promise to change any law to combat terrorism.
- Yet if these acts are unpopular they can be simply repealed in the future (the Coalition introduced legislation which repealed the Identity Cards Act 2006). - No
a) The uncodified nature of the British constitution means that it is very flexible and can quickly respond to changing social, political and security circumstances.
- The UK is an organic entity that is able to adapt to political and social change.
- Constitutional reforms since 1997 can be seen as evidence of the ability of the UK constitution to absorb change.
- The British constitution is highly democratic and responsive, with the EU referendum on growing concerns of European integration.
- The government os capable of achieving decisions rapidly in changing situations, such as countering the threat of terrorism, legalising homosexuality and abortion as well as abolishing capital punishment without long and complicated constitutional procedures.
b) An uncodified constitution is more democratic because it puts the power in the hands of the elected representatives who are accountable to the electorate, rather than unelected judges.
- These judges are unelected and unaccountable who may be out of touch with public opinion.
- Codified constitutions are a direct challenge to Parliamentary Sovereignty, on which the UK system of government has been founded because it would bind future Parliaments.
c) Civil liberties are adequately protected by common law and by the Human Rights Act 1998 and the Equality Act 2010.
- The judiciary has successfully used both of these acts to protect and develop civil liberties.
d) A codified constitution reflects the social and political attitudes and situation of the people who composed it. It can not keep pace with the way in which society changes in the way that an uncodified constitution can.
- There is almost no public demand for change as it would be extremely difficult to find consensus on what to include as well as it taking years to codify such a project.
e) The lack of certainty and ambiguity in the British constitution is an advantage since it has allowed for the changing relationship between England, Scotland, Wales and Northern Ireland in response to the will of the public.
- This would have been more difficult to achieve if the constitution had been codified.
f) The Constitution could become fossilised and trivial.
- In the US, the 12th amendment is on the election of President through ECV which is not suited to the current demography of the US, whilst the 2nd amendment was a time with no police force.
13
Q
Why was there pressure for reform in the 1990s?
A
PRESSURE FOR REFORM IN THE 1990s
- Experience of Conservative (1979 - 1997)
a) Conservatives had refused to undertake constitutional reforms.
- Helped build up pressure for change, especially in Scotland where many voters felt ignored by Westminster.
b) Rejection of policies which were later devolved.
- The Poll Tax (financing local government) was unpopular after being trialled in Scotland in 1989.
c) Accusations of corruption and ‘sleaze’ were consistent in culture within the Conservative party. - Demands for modernisation
a) Tony Blair campaign for a progressive New Labour with sweeping reforms to ‘modernise Britain’.
b) Decentralisation
- Power was too centralised at Westminster but it should be devolved back to the people through mayors and regional governments.
c) Democratisation
- The public should be given influence over decisions through referendums on constitutional issues in order to encourage greater democracy.
- The House of Lords was in need of reform.
d) Transparency
- Create greater trust in government, with the role of the senior judiciary reformed.
- Freedom of Information Act 2000 also opening up government and improving accountability.
e) Rights protection
- Human rights were not protected by the codified constitution, leading to the government’s commitment to incorporate the European Convention on Human Rights (ECHR) into British law.
- Providing the judiciary with an important new statute, protecting and advancing the public’s civil liberties.
f) Enthusiasm for these reforms did fade as they were half-hearted and not taken seriously. - An increasing number of unelected ‘quangos’
a) Quasi-Autonomous Non-Governmental Organisation.
b) National galleries and museums, bodies such as the Forestry Commission and the British Council and the BBC.
c) Many are expensive and hold unprecedented power on areas surrounding policy.
14
Q
What Constitutional Reforms took place under the Blair Government (1997 - 2007)?
A
CONSTITUTIONAL REFORMS UNDER BLAIR 1997 - 2007
- Devolution (local government)
a) Flagship constitutional reform in 1997.
- Provided Scotland and Wales with greater powers to govern themselves with.
- Aim to provide the constituent parts of the UK with greater self-determination with policies suited to local needs.
b) Referendums
- 1997 Scottish devolution referendum.
- 1997 Welsh devolution referendum.
- 1998 Northern Ireland Good Friday Agreement referendum (power-sharing between unionists and republicans).
- 1998 Greater London Authority referendum (with a directly elected mayor and assembly which could veto the mayor’s proposals with a 2/3rd majority).
- 2004 North East England devolution referendum (stalled plans for further devolution referendums).
c) Elected Mayors
- Local Government Act 2000 enabled local authorities to offer their voters a referendum over whether they wanted their own directly elected mayors, which encouraged greater accountability and transparency in local government.
- By 2016, the electorate had rejected an elected mayor in 37/53 referendums called as well as many elected on small turnouts (undermining their legitimacy).
- EXAMPLE. In 2017, Andy Street became the directly elected mayor of the West Midlands on a turnout of 26.7%.
- EXAMPLE. In 2017, Andy Burnham won the Greater Manchester mayoral election on 28.9%.
- EXAMPLE. In 2016, Sadiq Kahn was elected in London on 45.3%. - House of Lords Reform
a) In 1997, there were 1,330 peers eligible to attend the House of Lords with the majority being hereditary peers from aristocratic families.
- The hereditary principle undermined the legitimacy of the House of Lords.
b) House of Lords Act 1999
- To compromise and persuade the Lords to accept this reform, the government removed all but 92 hereditary peers to sit in the Lords, with just 669 Lords, mainly life peers, remaining.
c) Reform affected membership rather than power.
- Yet the government’s main intention was to make it more professional by ensuring that peerage was based upon merit and accomplishment rather than birthright.
- The House of Lords Appointments Commission was established in 2000 to nominate a small proportion of new life peers.
d) Although the Lords claim greater expertise, it still lacks democratic legitimacy.
- The majority of life peers are still appointed on the PM, which results in many appointments through Political patronage.
- Blair appointed 203 life peers, many being political allies and party supporters to the House of Lords rather than singularly merits.
- William Hague (1997 -2001) accused Blair of creating a ‘House of Cronies’.
- In 2006 the PM was questioned by police over allegations that donors to the Labour party had been subsequently awarded life peerages (CASH FOR HONOURS SCANDAL - seen as political cronyism and nepotism).
- David Cameron appointed 13 Conservative life peers and 1 Labour life peer (Shami Chakrabarti, director of Liberty) in his resignation honours list. - Electoral Reform
a) As the leader of the opposition, Blair had expressed interest in electoral reform, with the landslide victory in 1997 reducing his enthusiasm.
- Independent Commission on the Voting System 1997 had Roy Jenkins (former Labour minister and founder of SDP), investigate alternatives to FPTP with AV as its replacement.
- This commission was ignored by Labour as it would have lost its stonking mandate.
b) Labour adopted new voting systems for its devolved assemblies and mayors to encourage voter choice and a fairer balance of influence.
- Scottish Parliament and Welsh Assembly were to be elected by AMS.
- Northern Ireland Assembly using STV.
- London Mayor to use SV and London assembly to use AMS. - The Human Rights Act 1998
a) Incorporated the European Convention on Human Rights into British Statute Law and positively stating the rights that citizens can claim.
- Enshrined rights such as a fair trial, freedom from slavery and degrading treatment, and respect for privacy and family life.
- Came into force in 2000.
- Public bodies, such as the Government, are now expected to act in accordance with the HRA.
- When Parliament legislates, it does so in accordance with the HRA principles.
b) EXAMPLE.
- Laporte Case 2006, article 8 of the HRA, the right to private life, and article 10, the right to freedom of expression, were used to show that the police had acted illegally when they stopped 120 anti-Iraq War protestors from reaching RAF Fairford in 2003.
- Campbell v Mirror Group Newspapers Ltd 2004, involved Naomi Cambell using article 8 of the HRA after the intrusive press coverage of her in a rehabilitation clinic was declared illegal.
c) Since Act of Parliament does not represent higher constitutional law and therefore it does not bind future parliaments/can be overturned, its significance isn’t to be exaggerated.
- Article 15 of the HRA gives the government the right to suspend or derogate from, certain provisions of the HRA, as the Blair government did after the 9/11.
- Following 9/11, the Blair government suspended Article 5, the right to liberty and security, so that it would keep foreign terrorist suspects in custody without charge.
- EXAMPLE. Anti- Terrorism, Crime and Security Act 2001 gave the government the authority to keep foreign suspects in prison indefinitely.
- EXAMPLE. Belmarsh Case 2004, the judges issued a formal statement of incompatibility, declaring the Anti- Terrorism, Crime and Security Act 2001 as contrary to Article 14, freedom from discrimination, of the HRA since foreign suspects were being treated differently to British suspects. The gov. ignored the ruling but then released the suspects due to unfavourable publicity.
- EXAMPLE. Prevention of Terrorism Act 2005, allowed the government to limit the freedom of movement of all terrorist suspects through control orders. With Blair suggesting amending the HRA in order to make it compatible.
- Othman (Abu Qatada) v the United Kingdom 2012, the ECHR ruled that the Home Office could not deport Islamic Preacher Abu Qatada to Jordan, yet the UK deported him in 2013 after reassurance that he would not be tortured. - The Supreme Court
a) Constitutional Reform Act 2005
- Guaranteed the separation of powers by ending the House of Lord’s judicial function and in its place established the Supreme Court (opening in 2009), which proved more transparent and conspicuous than the Law Lord.
- In order to make the appointment of judges more transparent the Lord Chancellor’s right to nominate judges was transferred to a Judicial Appointments Committee, making recommendations to the Justice Secretary.
- The Lord Chancellors role presiding over the House of Lords was removed and the new head of the judiciary became the non-political Lord Chief Justice.
- The Lord Chancellors function merged with those of the justice secretary.
b) There were anomalies in the constitution despite the fact that the judiciary should be independent of the legislature.
- The Lord Chancellor was the head of the judiciary, member od the cabinet (executive) and presided over the House of Lords (legislature).
- The Law Lords also sat in the House of Lords (but did not vote on legislation) making it the final court of appeal.
15
Q
What Constitutional Reforms took place under the Brown Government (2007 - 2010)?
A
CONSTITUTIONAL REFORMS UNDER BROWN 2007 - 2010
- Clarified the use of Royal Prerogative.
a) It now has to be used through consultation, and approval, of Parliament.
- The Queen does not have to be formally consulted about all of these matters separately.
- She will discuss these matters privately in her weekly meeting with the PM.
b) Matters such as declaring war, calling a general election, recalling Parliament, ratifying international treaties, public appointments, appointing senior judges… - Predominantly preoccupied with confronting the global economic crisis.
