Constitution Flashcards
Which 9 laws contribute to the nature of the constitution
-Magna Carta 1215
-bill of rights act 1689
-act of settlement 1701
-act of union 1707
-parliament acts 1911 and 1949
-European communities act 1972
-devolution 1997
-brexit 2016
What was the Magna Carta 1215
-charter of rights signed by king John after barons war
-by forcing king John to accept the 63 clauses of the Magna Carta, barons placed limits on the power of the monarch. Established principle that monarch is not above the law
-contains first statement of principle of habeus corpus- one can not be punished without due process of the law- right to trial
What was the bill of rights act 1689
Established constitutional monarchy
-included summoning of regular parliaments, free elections, no taxation without consent of parliament and parliamentary freedom of speech
What was the act of settlement 1707
-confirmed primacy of parliament over the crown by declaring parliament had authority to determine succession of the throne.
-also confirmed judicial independence by stating judge can be removed on agreement of both houses
What were the parliament acts of 1911 and 1949
1911- House of Lords lost its right of veto and was only allowed to now delay years for up to 2 years
1949- reduced right of delay from 2 years to 1
Both established democratic legitimacy of parliament by asserting the primacy of the commons over the lords
What was the European communities act 1972
-uk joined European economic community.
-1991 factortame case- principle that in cases of overlap, European law would take precedence over domestic law
What was devolution 1997
- Scotland and wales established their own governments and legislatures. Subsequent legislation has increased their powers and stated that they can only be abolished through referendums in each country
What was brexit 2016
Parliament enacted eu act 2020- uk left eu so restarting British sovereignty and carrying into uk law all former eu laws
What are the 6 sources of the constitution
-Statute law
-common law
-authoritative works
-landmark decisions
-conventions
-treaties
What is statute law and give 4 examples
-act of parliament contributing to uk’s uncodified constitution
EXAMPLES
-HRA 1998- incorporated echr into British law
-HOL act 1999- removed all but 92 hereditary peers
-equality act 2010- codifies into one parliamentary statute all previous anti discriminatory legislation
-marriage act 2013- legalised same sex marriage
What is common law and give 3 examples
-how the judiciary interprets the law and they can set precedents
EXAMPLES
- BUSHELL 1670- sir John vaughn declared in favour of all jury, stating judge ‘may only try to open eyes of jurors but not to lead them by the nose’- established independence of jury
-ENTICK V CARRINGTON 1765- the principle, executive can not infringe civil liberties of its citizens without legal justification established enduring precedent protecting British citizens from arbitrary and autocratic government
-R V R 1991- established principle that husband can be found guilty of raping wife
What are conventions and give 3 examples
-represents accustomed way in which political activity is carried out- not legally binding
EXAMPLES
-Salisbury convention- House of Lords does not oppose 2nd or 3nd reading of legislation that was in winning party’s manifesto
-2003 by allowing House of Commons to vote on military action in Iraq, Blair established commitment of British forces to military operations
-public should be consulted in referendums to legitimise proposed changes to the constitution
What are landmark decisions and give 2 examples
Historical events
-Magna Carta 1215- recognising limits can be placed on authority of crown
-petition of rights 1628-sets out rights including freedom from arbitrary imprisonment and right of parliament to grant taxation
What are authoritative works and give 2 examples
Influential works
-Walter bagehot- English constitution 1867- explains relationship between monarchy legislature and executive
-a.v dicey- intro to law of constitution 1885- explains how constitution rests upon ‘twin pillars’- parliamentary sovereignty and rule of law
What are treaties and give an example
International agreements
- as a result of communities act 1972- uk accepted treaty of accession which prime minister negotiated. It made uk a signatory to the treaty of Rome 1957 which meant uk accepted all European community law
Blair’s thought about constitution
For Blair, the British constitution was urgently in need of reform. Power was too centralised in Westminster and the rights of the citizens were insufficiently protected. Since the government was so remote and unaccountable, the public had become disengaged from politics. New Labour wanted to reinvigorate democracy through extensive constitutional reforms. As Blair put it, ‘modernisation is the key’.
Aims of reform
The New Labour government elected in 1997 pledged to carry out sweeping reforms of the constitution with the following aims:
• to make the UK generally more democratic
to bring the constitution into line with other modern systems
• to decentralise power away from central government
• to improve the status of human rights in the UK
Pressure for reform
-Demands for modernisation: Tony Blair’s New Labour Party was sympathetic to the idea of constitutional reform as part of its plan to modernise British institutions. Old Labour had adopted some political reforms, such as extending the vote to 18 year olds in 1969 and attempting to pass devolution for Scotland and Wales in 1979. However, it had been primarily concerned with economic and social issues. New Labour was more open to demands from pressure groups such as Charter 88 (later renamed Unlock Democracy), who wanted more open democracy and stronger guarantees of citizens’ rights. Before winning a large independent majority in the 1997 election, Blair expected that he might need support from the Liberal Democrats, who were also committed to constitutional change - particularly reform of the first-past-the-post electoral system.
• The experience of Conservative rule, 1979-97: The Conservative governments had refused to undertake constitutional reforms. This had helped to build up pressure for change, especially in Scotland, where the population felt ignored by a distant government in London. Scottish opinion rejected a number of Conservative policies. For example, the unpopular poll tax had been trialled there in 1989 before its introduction in England and Wales. Accusations of corruption or
‘sleaze’ against many parliamentarians in the 1990s also helped to create a climate of opinion where the health and integrity of traditional institutions were questioned
Changes under labour- House of Lords
When the Labour government took office in 1997, the upper house was dominated by hereditary peers who owed their titles to inheritance. 2 years later, the government ended the right of all but 92 of these peers to sit in the Lords. House of Lords reform would reduce the influence of Labour’s opponents within the political system, as the majority of hereditary peers supported Conservative governments.
The removal of most hereditary peers also gave the Lords a more ‘modern’ appearance. The majority of its members were now life peers, who were supposed to have been appointed on grounds of merit, reflecting a wide variety of fields of activity, including politics, business, the trade union movement, the arts and the military. No political party now enjoyed a dominant position in the Lords.
Changes under labour- electoral reform
-although the government commissioned a report into the system used for Westminster, chaired by Roy Jenkins, no action was taken
-Supporters of proportional representation concluded that, having won a crushing victory under the old system, Labour had no interest in changing arrangements for Westminster.
Labour reform- devolution
Labour’s devolution reforms were a pragmatic package, designed to damp down support for the pro-independence Scottish National Party (SNP) and to bring together the conflicting unionist and nationalist factions in Northern Ireland.
Demand for devolution in Wales was always weaker and the Welsh Assembly did not gain comparable powers to those of the Scottish Parliament.
The government had no answer to the so-called ‘West Lothian question’: the anomaly that Scottish MPs at Westminster were able to vote on purely English matters, yet English MPs had no influence over issues devolved to the Scottish Parliament
An attempt to set up elected regional assemblies in England was abandoned after the only area in which a referendum was held to test public opinion, the North-East, decisively rejected the idea in 2004.
Labour reform - human rights act
-this act incorporated the European Convention on Human Rights
(ECHR) into UK statute law, enshrining rights such as those to a fair trial, freedom from slavery and degrading treatment, and respect for privacy and family life. All future legislation had to be compatible with the ECHR. Judges could not strike down laws that were incompatible with it but could highlight such legislation for amendment by Parliament.
-The limitations of the Human Rights Act were demonstrated by the government’s decision to ‘derogate from’ (declare an exemption from) Article 5, which gave individuals the right to liberty and security, in cases of suspected terrorism. The introduction in 2005 of control orders, which allowed the authorities to limit the freedom of movement of such individuals, highlighted the unentrenched nature of the act
Labour reform- creation of supreme court
The 2005 Constitutional Reform Act led to the establishment, 4 years later, of a Supreme Court as the highest court of appeal in the UK for civil cases, and (except in Scotland) for criminal cases. Previously senior judges known as the Law Lords, sitting in the House of Lords, had performed this function. This development is an example of the separation of powers - the idea that the different branches of government (in this case law-making and judicial) should be independent of each other.
What were the areas of disagreements under the coalition government
• House of Lords reform and House of Commons boundary reform: Plans for a mainly elected House of Lords were dropped after a rebellion by 91 backbench Conservative MPs. The Liberal Democrats, who were the more committed of the two parties to a democratically chosen upper house, retaliated by blocking the implementation of legislation designed to reduce the number of MPs from 650 to 600. The effect would have been to produce a smaller number of constituencies, of more equal size, so that that all votes would have had more equal value across the country. The Liberal Democrats halted the change because it would have mainly favoured the Conservatives. However, after the end of the coalition, the new Conservative government confirmed that the reform would be introduced in time for the 2020 general election.
• Electoral reform: A referendum was held in May 2011, with the two parties taking up entrenched positions: the Conservatives campaigned strongly to retain first past the post, while the Liberal Democrats argued for the adoption of the Alternative Vote (AV), only to see their proposals rejected by 68 per cent of those who voted. This was a major disappointment for the Liberal Democrats, for whom progress towards a change in the voting system had been a priority in negotiating the coalition agreement. They had in fact preferred the proportional Single Transferable Vote system, but had opted for AV as the maximum that they expected to gain at the time.
What were the most significant changes under the coalition government
-devolution
-fixed term parliaments act
-reform of House of Commons
-recall of mps act
Coalition gov - devolution
• Wales: A referendum was held in Wales in March 2011 on proposals to grant further powers to the Welsh Assembly. This resulted in the Assembly receiving direct law-making power in all of the 20 policy areas that had been devolved to it, without the need to consult Westminster.
• Scotland: The Scottish Parliament received more powers under the 2012 Scotland Act, including borrowing powers, the right to set its own rate of income tax and control over landfill tax and stamp duty. In September 2014 a referendum was held in Scotland on proposals for independence, resulting in a 55 per cent vote to stay in the UK.
• England - English votes for English laws (EVEL): As a concession to English opinion, the Conservative government that took office in May 2015 offered a solution to the West Lothian Question. Under ‘English votes for English laws’ (EVEL), if a measure that concerns only England (or England and Wales) comes before the House of Commons, it can pass only with the approval of a ‘grand committee, consisting solely of English (or English and Welsh) MPs.
The measure was used for the first time in January 2016, to pass a housing bill without the involvement of Scottish MPs.
Coalition gov- fixed parliaments act 2011
-This ended the prime minister’s historic power to choose the date of a general election by establishing that a new parliament must be elected on a fixed date, at five-year intervals. An earlier contest can be held only if two-thirds of MPs vote for one, or if a prime minister loses a vote of no confidence and fails to form a new government within a 14-day period.
Coalition gov- reform of House of Commons
The coalition implemented reforms recommended by a committee chaired by Labour MP Tony Wright, which reported before the 2010 general election.
Chairs of House of Commons select committees, which scrutinise the activities of government departments, were to be chosen by MPs, rather than have their selection influenced by the party leaders. A backbench business committee was created, which chooses topics for debate, including some proposed by the public in e-petitions. The first such debate was triggered by people seeking justice for the 96 Liverpool football supporters who died in the 1989 Hillsborough disaster.
Recall of parliaments act 2015
This was a response to the fact that voters had no legal means of removing scandalous MPs who refused to resign their seats. It means that if an MP is sentenced to a custodial sentence, or is suspended from the Commons for more than 21 days, a by-election is triggered if at least 10 per cent of constituents sign a recall petition.
Devolution in England
-One of the objectives of the Blair government was to recreate a democratically elected strategic authority for the capital. This led to the establishment of two new institutions from 2000: an elected mayor with executive powers (an idea inspired by large US cities), supported by the Greater London Assembly.
-Further progress towards devolution in England has been limited. There is no real tradition of decision-making at regional level, although the Blair government tried to develop the concept by setting up unelected Regional Development Agencies. Their purpose was to promote economic development on behalf of central government. An attempt to go further, to create elected regional assemblies, failed to win support. The government slimmed down its plans for referendums on regional assemblies to proposals for just three: in the North-East, North-West and Yorkshire and the Humber. These were considered to be the areas where the sense of regional identity was strongest, but in the end only one referendum was held, in the North-East.
-The coalition abolished Labour’s Regional Development Agencies but tried to breathe life into the concept of regionalism by combining local authorities in so-called ‘city regions’. These new bodies, which included Greater Manchester, Sheffield, Leeds and Liverpool city regions, were given strategic powers over transport and economic development and health.
-There has also been discussion of the idea of an English parliament, but there is little public support for this and it is not espoused by any major political party. There is evidence that the cultural sense of ‘Englishness’ is strengthening, partly in reaction to the perceived advantages enjoyed by Scotland under devolution. However, this has yet to translate into a serious political demand for England to have the same constitutional arrangements as Scotland.
The Scottish parliament and government
-The Scottish Parliament and government were set up in Edinburgh in 1999. The Parliament consists of 129 MSPs (Members of the Scottish Parliament), elected every 4 years using the Additional Member System. It scrutinises the work of the Scottish government.
-The Scottish government devises and implements policy on matters devolved to Scotland, and proposes an annual budget to the Parliament. The head of the Scottish government is known as the first minister. Since 2014 this has been Nicola Sturgeon, leader of the largest party in the Parliament, the SNP.
-it did make use of other devolved powers to develop a distinctive position for Scotland on social policy. For example, Scottish students do not pay university tuition fees, and there is free nursing care for the elderly. In 2016 there was another break with the general direction of UK policy, when the Scottish government ended the right of council tenants to buy their own homes - something that had been started across the UK by Margaret Thatcher’s government in 1980.
The Welsh assembly and government
-the National Assembly for Wales, based in Cardiff, dates to 1999.
Assembly Members (AMs) are elected by the Additional Member System. Their role is to represent the Welsh people, to make laws on the areas devolved to Wales, and to hold the Welsh government to account.
-Unlike in Scotland, police and justice are not devolved areas and the Welsh Assembly has not gained powers over income tax and borrowing. Since the 2011 referendum the Assembly has been able to pass laws in all 20 devolved areas, without regard to the views of the UK government.
Northern Ireland assembly and government
-Devolution in Northern Ireland was established following the 1998 Good Friday Agreement, which sought to bring the two main communities in the province together. These are the unionists, who want to keep Northern Ireland within the UK, and the nationalists and republicans, who wish to see a united, independent Ireland. These political divisions broadly correlate to the differing religious identities of the two communities - unionists are historically linked to Protestantism, and nationalists to Catholicism.
-The Northern Ireland Assembly, located in Belfast, consists of 108 Members of the Legislative Assembly (MLAs), elected by Single Transferable Vote. The use of this highly proportional voting system ensures the representation of both sides rather than the dominance of the larger grouping, and thus leads to the adoption of a power-sharing system of government.
Debates on further reform-devolution
-Devolution has modified the UK’s heavily centralised constitution by enabling policies that meet the needs and wishes of people at local level. In Northern Ireland devolution has helped to end violence between the unionist and nationalist communities by creating a power-sharing system of government.
-On the other hand Scottish independence, which was rejected in the 2014 referendum, has been revived since the UK voted to leave the European Union in 2016. The Scottish Nation Party administration has called for a new referendum on independence. It argues that the wishes of the majority in Scotland, who wanted to remain in the EU, have been ignored.
Debates on further reform-electoral reform
-Electoral reform has produced more proportional results in elections to the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly. The rejection of AV in the 2011 referendum indicates that there is no public appetite for the extension of reform to Westminster. First Past the Post usually delivers strong governments with a clear mandate, and it preserves the valuable link between MPs and their constituencies
-The under-representation of smaller parties, and the way in which the current system produces governments with a majority of seats but a minority of votes, are arguments for further reform.
Further reform-House of Lords reform
We now have an upper house based much more firmly on merit and experience. Its greater assertiveness in holding the government to account is an argument for leaving the Lords as it is.
An elected chamber would mirror the Commons, producing a house dominated by professional politicians and reducing the range of expertise currently available.
On the other hand the Lords lacks democratic legitimacy because none of its members are elected.
This is highly unusual in the modern age.
Further reform-human rights act
The 1998 act brought the UK into line with other European states by incorporating the European Convention on Human Rights into national law. It provides protection of citizens’ rights without threatening parliamentary sovereignty. As the act is not entrenched, the government can modify the way it operates when required, such as the creation of control orders in 2005.
However, there is a case for strengthening the act on the grounds that governments can currently take away important liberties by a simple majority vote in Parliament.
Conservative critics would like to see the act replaced with a British Bill of Rights, which would make the UK Supreme Court the final judge of citizens’ rights.
What is the overview of further reform?
There is a case that no more reform is needed:
• The current settlement protects the rights of citizens and recognises the desire for autonomy in the component parts of the UK. At the same time it enables the election of strong governments, which are able to act in the national interest.
• There is a lack of clear agreement on the form that any further change should take.
On the other hand:
• In many respects, the current settlement is incomplete and illogical. The UK is out of step with most other Western democracies in having an unelected upper house and a voting system that imperfectly reflects the preferences of the electorate.
• A federal solution could remove the anomalies created by the current ‘asymmetric’ devolution arrangements.
• Citizens need greater clarity on the nature of their rights, and stronger protection against arbitrary government actions.
