Constitution essay plans Flashcards
What effect has ECA had on uk
o Edward Heath passed this in 1972 to take Britain into the EEC. Has had vast influence, including the potential challenge to parliamentary sovereignty by establishing primacy of EU law (a la Factortame), contributing to growth in economy in globalised era, protection of rights under ECHR/ECJ/HRA, freedom of movement/trade, growth of populism and Euroscepticism increasing polarisation and partisanship in UK, Brexit referendum etc
What would an entrenched/codified constitution do for rights
o A codified institution would protect against ‘elective dictatorship’, a term popularised in the 1970s by Lord Hailsham as a warning to the dangers of what he perceived to be an excessively authoritarian Labour government. Furthermore, after 9/11 Labour’s range of anti-terror laws were introduced, including usage of ID cards, DNA databases and the expansion of CCTV. More clearly set out rights may have prevented this infringement of civil liberties.
Example of exec hiding n fooling from judiciary
(- Enable judiciary to judge acts of parliament as unconstitutional (as with US) as a check on a currently ‘elective dictatorship’)
o A good illustration of this is the Belmarsh case of 2004, which contested the original 2001 Anti-Terrorism Act that allowed for indefinite detention of foreign prisoners in Belmarsh. The judiciary couldn’t do anything in the 3 years since the original Act as the case was not brought, until the pressure group Liberty brought it on behalf of the detainees. in 2005, the government passed the Prevention of Terrorism Act in response to the Belmarsh case. This act allowed the use of control orders which got around the judicial ruling banning detention without trial. Parliamentary sovereignty was used to bypass the judiciary. Unlike in America where ‘judicial review’ can rule US executive/legislature policy as against rights, e.g. Brown v Board of Education 1954
Example of how flexibility of uk constitution has been good for modernisation
o Gay marriage legalised with a simple act of parliament in comparison to the US legal struggle culminating in Obergefell v Hodges. Other modernisations like FTPA 2011, CRA 2005, devolution 1998
How does a codified constitution threaten seperation of powers
- Creating overly powerful unelected judiciary undesirable
o Judges unelected (chosen by JAC), don’t undermine principle of parliamentary sovereignty; it’s arguable that America has an ‘imperial judiciary’, ‘discovering’ the right to abortion in Roe v Wade 1973 despite this arguably being more just a desire for modernisation than reflection of constitutional provisions
What shows the need for British bill of rights (limitation of HRA)
- HRA ineffectiveness in allowing ‘bad’ judgements (Qatada staying, or ruling that found the UK’s blanket ban on prisoners voting was unlawful.)
Huge limitation of British bill of rights (Think structure of UK)
- Difficulty in assessing how it would apply to devolved areas
- Difficulty in assessing how it would apply to devolved areas
o HoL EU justice committee in 2016 warned that introducing a bill of rights would take UK ‘into uncharted constitutional territory’ and that ‘The evidence demonstrates that the Scottish parliament and Northern Ireland assembly are unlikely to give consent to a bill of rights which repealed the Human Rights Act.’
What shows the power westminister has over devolution
Devolution Act can be repealed, arguably maintaining the status quo, ‘statutorily anyway’ (says Nicholas Allalta). NI Assembly suspended by the UK Govt. in London following a breakdown of trust between the unionist and republican groups, once for 5 years 2002-7
What shows Westministers power over EU
o Lord Bridge (Law Lord) explained the Factortame case, saying that any limitations upon its sovereignty implied by EU membership had been accepted ‘voluntarily’ by Parliament when it enacted the European Communities Act 1972. The implication was that Parliament is at liberty to permit EU law to prevail over its own enactments. The flip side of that coin must be that if Parliament chooses not to permit EU law to have that effect — either by repealing the 1972 Act or asserting the priority of only certain pieces of domestic legislation over conflicting EU law — then it is free to do so.
Example how Westminister has derogated from HRA
o Derogated from HRA e.g. during Troubles and can use acts of parliament to bypass judiciary. In 2005, the government passed the Prevention of Terrorism Act in response to the Belmarsh case. This act allowed the use of control orders which got around the judicial ruling banning detention without trial. Parliamentary sovereignty was used to bypass the judiciary also when Labour’s range of anti-terror laws were introduced, including usage of ID cards, DNA databases and the expansion of CCTV. Judges could do nothing about these laws, as the sovereignty of Parliament
What shows the entrenched nature of devolution
o Devolution occurred in first place because of calls for independence within Scotland (especially from SNP); devolution, and granting some powers used to be conciliatory and prevent break-up of union. Further powers granted 2015-16 following indyref 2014, e.g. now also control over some welfare benefits. Revoking devolution would cause mass outrage and in practice cultural pressure makes it impossible without instigating break-up of the union
How is Parliamentary supremecy challanged
Under the court case AXA General Insurance Limited v The Lord Advocate (Scotland)
How does HRA undermine parliamentary soverignty
- HRA undermining parliamentary sovereignty through judicial review
How does judicial review used to undermine Parliamentary soverignty
o Govt can be considered ‘ultra vires’ for example, in the case of Home Secretary v. AP (2010), the government contravened civil liberties by detaining AP (who remained anonymous for security reasons) requiring that he was confined him to a flat for 16 hours a day, in a town 150 miles away from his family in London, under the Prevention of Terrorism Act 2005. The Supreme Court ruled that this amounted to a breach of his human rights, and consequently, the government control order was ‘ultra vires’ and had to be rescinded.
What is the Constitutional reform act
o 2005 CRA created a Supreme Court (finally established 2009) as highest court of appeal, ending law lords who had sat in House of Lords, now emphasising separation of power. It also assured this by removing judicial functions of the Lords Chancellor (who had previously been member of Cabinet, Speaker of HoL, with responsibility to appoint judges). Now, JAC appoints to the SC.
What granted more power to scots under Brown?
Then in 2012 Calman Commission under Gordon Brown granted further powers including right to set a Scottish income tax rate/borrowing powers. Then, following indyref 201, further powers given 2015-16 e.g. over welfare benefits. Now, control over taxation representing 36% of devolved expenditure, compares with less than 10% when it was established.
What stat shows how much Scots love Scottish assembly
o In 2014 survey: 57% of Scots felt having Scottish Parliament was strengthening Scotland’s voice in the UK.
Limitation of CRA
o Concerns have been raised that the judiciary is still dependent on the executive (in the form of the Ministry of Justice) for its funding. Lord Phillips of Worth Maltravers commented that “the Court Service of England and Wales has not been able to provide us with their contribution and we had to call upon the Lord Chancellor to make up the
difference” and argued that “this arrangement clearly does not provide the security of funding which had been envisaged by Parliament and risks the Court being subject to the kind of annual negotiations the arrangements were intended to avoid.
- Electoral system (FPTP unfair/bad, failure of AV 2011)
o AV 2011 failure, a vote more against Lib Dems than against the PR system; in Scotland, AMS for government elections and STV for local councils, in NI, STV, Wales using AMS too; yet England FPTP needs reform desperately because of its issues, particularly prevalent in the 2005 election, when Labour secured a majority of the seats in the House of Commons with only 35.2% of the total vote.
Example of FPTP being shit
On an individual level, MP Alaistair Mcdonnel, in the 2015 general election, became the MP for his constituency on 24.5% of the vote.
What are the constitutional reforms done 2010+
- FTPA o Holding PM to account - Recall of MPs Act o Ability to hold MPs accountable - Devolution o Granting further powers to prevent dissolution of the union - Reform of HoC o Ensuring impartiality of SCs enables better scrutiny of govt
What were new labour constitutional reforms
- HRA
o Most important in enabling a strengthened protecting of civil liberties - Devolution
o Essential in keeping the union together, and a fundamental and massive change - CRA 2005
o Symbolic mass importance in separation of the three branches, ensuring judicial independence - HoL Reform
o Ending most hereditary peerage granting greater legitimacy to Lords and detaching from feudal past
What shows spending disparity in the UK n england
o Under 1978 Barnett formula (invented by former Labour Chief Sec. to the Treasury Joel Barnett in 1978) for deciding on levels of public spending, England receives less per person than other parts of UK – The figures vary slightly every year, but in 2016/17 Scotland, just under £11,000 was spent per person and in England it was just under £9,000. Get a federal solution to promote equality
