Nature And Sources Of The UK Constitution Flashcards
What is a constitution ?
A set of rules by which politics is conducted, displaying how a country should be governed.
Defines various powers and responsibilities of each branch of government, as well as laying out the rights and civil liberties of all citizens.
How do we evaluate a constitution?
- A guarantee of free, fair and democratic elections.
- Respect for individual human rights, individual conscience, and promotion of tolerance.
- Balance of individual rights (rights that belong to each citizen, i.e freedom of speech), with broader collective rights (rights that lie with groups of people, i.e members of the trade union and disabled people).
- Lays out clearly we’re power and decision-making lies, and addresses the notion of sovereignty, i.e where final power and authority lies.
- Has mechanisms for resolving problems and conflicts when conventional decision making proves problematic, i.e with Brexit in 2016 and 2019.
- Is easy to understand and encourage citizens to participate in the political process.
- Can be adapted and is flexible to changing circumstances while retaining core values and a sense of national identity.
- Upholds the rule of law through an independent judiciary, which ensures that everyone is treated equally irrespective of position, privilege and wealth.
What are the general features of the British constitution?
(What is the nature of the British constitution?)
- The British constitution is uncodified, meaning it is not found in one single document.
- Defined as unitary, meaning most power lies within the centre: Westminster Parliament.
- It is characterised by parliamentary sovereignty: parliament has the supreme power over all laws in the UK, it can create, change or reject any law, no other court can override this authority making it the highest legal authority.
- It operates under the rule of law, meaning the prime minister and minsters must not exceed their lawful powers.
Definition of uncodified and its significance
Definition:
The British constitution is found in a variety of sources, making it uncodified.
Significance:
- It can make it more difficult for British subjects to understand their rights and how their political system works
- it can make it easier to adapt, for instance through acts of parliament as no complicated procedures are required to amend it.
Definition of unitary and its significance
Definition:
All power derives from a central government, this is opposite to USA’s Federal constitution.
Significance:
- the Westminster parliament is sovereign and very powerful
- any power given to the regions, through devolution, is delegated not transferred permanently
Definition of rule of law and its significance
Definition:
Everyone is subject to the laws of the land / even governments and their ministers cannot break their own laws
Described by AV Dicey as one of the twin pillars for the constitution
Significance:
- identifies Britain as a modern liberal democracy
- ensures the powers of the government are limited
- if a government or a government department is found to have Brocken their own rules or guidelines they are deemed to have acted ultra vires, i.e beyond the the power of the law.
- it can lead to the government having to reverse an action, for instance in 2019 Boris Johnson was found by the courts guilty for acting illegally by attempting to prorogue parliament for 5 weeks without its consent during Brexit debates.
Definition of parliamentary sovereignty and its significance
Definition:
Parliament is the supreme authority in Britain and the base of the uk constitution, meaning its laws cannot be stuck down by any higher authority.
Constituent is what parliament says it is and can be altered with statue law.
This contrasts the US, since the us has to embody constitutional sovereignty: government and legislature must follow the constitution when passing laws.
Significance:
- fundamental and ancient principle of the constitution
- also means its flexible and easy to change
- no parliament can bind is successor: meaning it can be changed / reversed over time
- parliamentary sovereignty can be shown in this instance where Britain had joined the EU in 1972, and left in 2020.
- Before the uk left the European Union in January 2020, European law indirectly formed part of the British constitution, therefore laws and treaties such as the Lisbon treaty of 2007 automatically took precedence over over any laws passed by Westminster and were binding to Uk government, representing a clear temporary limit on parliamentary sovereignty.
What are the 6 sources of the British constitution?
- Statute law
- Common law
- The royal prerogative
- Conventions
- Works of authority
- International agreements
Explain and analyse statute law
Statute laws are any laws passed by both Houses of Parliament and given royal assent to, this makes them Acts of Parliament: therefore very important because they affect and alter the British constitution.
Constitutional statute law such as Representation of the people act 1969 (lowered voting age from 21 to 18) determined who could vote and the Constitutional Reform Act 2005 which set up the UK Supreme Court.
Most statute laws are not constitutional statute laws, for instance the education acts or annual finance acts do not affect the constitution.
It further covered laws that impacted on civil liberties and human rights, for instance the Human Rights Act 1998, which incorporated the the European convention on human rights (ECHR) into UK law.
Significance:
- British constitution remains flexible and adaptable
- most used towards expanding and protecting democracy and individual rights for instance giving all women the right to vote by 1928.
- in theory these rights can be diluted and removed by parliament however many have the ‘double lock’ of additional backing by the ECHR.
Explain and analyse common law
Common law comprises of laws and rights passed down over the years by legal judgements in the courts, this process is known as judicial precedence, a result of rulings from senior judges.
For example: the freedom of expression, the defence of property rights.
Significance:
- Does not have precedence over statute law.
- Common law is often modified by statute law: rights under common law can be modified or repealed by statue law.
For instance although the rights of property owners can be found in various ancient documents, statute laws, such as those dealing with compulsory purchase orders, modify these ancient rights.
Explain and analyse the royal prerogative:
The royal prerogative is the remaining powers of the monarch exercised by the prime minister and government in the name of the crown, these can range from high powers such as seeking a dissolution or suspension of parliament (1)
1. August 2019 Boris Johnson sought the queen approval to prorogue parliament for a longer than 5 week period, critics viewed this as an attempt to avoid scrutiny of the governments Brexit proposals. Prorogation was granted and changed to 31st October, however this was subsequently ruled illegal by a unanimous 11-0 judgement of the UK Supreme Court in September 2019, which was of the opinion that the act was in lawful.
( this serves as a direct example of the courts getting involved in party politics: to Brexiteers this was a deliberate attempt from the courts to delay getting Brexit done, to others this was the judiciary acting properly to uphold parliamentary sovereignty and rein in an excessive power grab from the executive )
Other examples:
Issuing uk passports
Deploying the army
Significance:
- it can often be viewed as a way to extent government powers.
- it can be I tied by acts of parliament, for instance the Fixed-term parliaments act 2011
Explain and analyse conventions:
Definition:
Unwritten rules and procedures of parliament that facilitate the constitution to run smoothly
When conventions are broken they often lead to problems and deadlock.
They are not written anywhere however they are agreed upon, allowing politics, specifically parliament, to run smoothly and efficiently.
For instance, the Salisbury-Addison convention of 1945, where the House of Lords agreed not to delay policies contained in the governing party’s manifesto.
Another convention is that the monarch gives royal ascent to all bills that have been passed by both Houses of Parliament .
Significance:
- they work well, for example they allowed David Cameron to form a coalition government after the indecisive result of the 2010 general election.
- conventions are not protected by anything more substantial than tradition, if a convention is to work properly, there must be a shared understanding of what that means.
- Brocken conventions are a constitutional crisis: lords rejecting the People budget in 1909 caused a constitutional crisis.
Explain and analyse works of authority:
Definition:
Books of constitutional experts that clarify and explain the inner workings of the constitution.
Comprise of a variety of books and documents that deal with areas of parliamentary procedures and the responsibilities and duties of govt and ministers, among these are:
Old
Walter Bagehot’s - The English constitution 1867
A.V Diceys’s - Introduction to the study of the law of the constitution 1885
Recent
Cabinet manual 2010 which set out the main laws, rules and conventions affecting he conduct and operation of the government.
Significance:
Like conventions - have no legal authority, but nonetheless help the smooth running of government.
Not usually approved formally by parliament and can be changed easily.
Do not seek to change them, rather embody them.
Historic milestones in the history and developments of the British constitution:
- Magna Carta 1215
- Bill of rights 1689
- Act of settlement 1701
- Parliament acts 1911 / 1949
- European communities act 1972
Explain and analyse the significance of the historic milestone, Magna Carta 1215:
What was it:
- Agreement between King John and his barons establishing that everyone, including the king, was subject to the law.
Significance:
- Magna Carta represents first formal attempt to try a limit the powers of the monarchy
- influenced in other key developments such as American Bill of Rights1791 and the universal declaration of human rights 1948.
- could be argued not as significant, only 4 out of it 63 clauses are remain not repealed today.
Pros:
- Established the principle of a right to a fair trial: among its 63 clauses “to no one we will delay right or justice”
- Magna Carta seen as a landmark document in the development of human rights, heavily influencing other documents*.
Cons:
- Magna Carta didn’t give many rights to ordinary people.
- it was a failed peace treaty, that did not intend becoming a major turning point in universal human rights or the balances of power.
Explain and analyse the significance of the historic milestone, Bill of Rights 1689:
What it was:
- an agreement between the monarch and parliament, where the monarchy passed the Bill of Rights in December of 1689.
Significance
- established the dominance of parliament over the monarchy, for instance included the principal of no taxation without parliaments agreement.
- established parliamentary privilege: it states that parliament must meet frequently, elections must be free and there must be complete freedom of speech within parliament.
- clearly significant, parliament has continued to meet every year since 1689.
Parliamentary privilege: the rights of MP’s free speech within Palace of Westminster. Cannot be sued for slander or contempt of court.
Pros:
- Effectively embodies and created the notion of parliamentary sovereignty.
Example in politics today:
- enables MP’s to speak freely in parliament, for instance July 2021 when SDLP MP Colum Eastwood used it to name ‘solider F’, a British solider accused of involvement n the 1972 Bloody Sunday shootings in Northern Ireland.
- clearly significant, parliament has continued to meet every year since 1689.
Explain and analyse the significance of the historic milestone, Act of Settlement 1701:
What it was:
- A follow up to the bill of rights
- Ensured a Protestant follow up to the throne
Significance:
- viewed as a key milestone in the development of the British constitution due to serving as another instance of parliaments assertion of power over the monarchy.
- established the fundamental principle that the monarchy existed on parliaments terms, not vise versa.
Cons:
- parliament forced the notion that direct hereditary succession was decreed less significant that religious affiliation, for twenty first century politics this could be viewed as a retrograde step in terms of equality and fairness.
Explain and analyse the significance of the historic milestone, Parliament Acts 1911 and 1949:
What it was:
Acts that significantly reduced the power of lords after the conservative-unionist dominated lords chamber rejected liberal governments ‘People’s budget’ in 1909, facilitating a constitutional crisis.
After two inconclusive general elections in 1910, new laws were passed, which ended the absolute veto of the lords over legislation, restricted their power to delay bills for 2 years / then to 1 year.
Significance:
- significantly increased democratic accountability of Westminster, no longer could the unelected chamber, Lords, frustrated the elected chamber, Commons: therefore any bill passed by commons would now automatically become a law after a year.
- 1911 Act removed their power of absolute veto over legislation and limited their power to delay to 2 years
- 1949 Act reduced that delay to a year
Explain and analyse the significance of the historic milestone, European Communities Act of 1972:
What it is was:
Marked the entry of UK law into the EU, a decision made by Edward Heaths Conservative government.
Acct was added to by further measures: Single European Act 1987 / Lisbon Treaty 2007.
Significance:
- passed second reading by 309-301 votes, conveying Euro scepticism and its long history in uk politics
- became a major role is British politics and constitution.
- represented a weakening of parliamentary sovereignty as all British law had to conform to and comply with EU law.
- although theres criticism of the erosion of parliamentary sovereignty since 1972, events in 2016 and 2020showed this loss of sovereignty is temporary, classic example of what one arl I amend giveth, another taketh away when the EU Withdrawal Acts of 2018 and 2020 repealed the 1972 Act.
Key point:
- although the EU membership was very important in areas of agriculture, trade and fisheries, it had little to nothing to do in key areas of domestic policy such as defence and education.
- one could argue therefore that the European Communities act of 1972 did not fundamentally change the way Uk does domestic policies.
What are the 4 issues and debates around recent constitutional changes?
- Modernisation: modernisation of political institutions such as the House of Lords and the top rung of the judiciary.
- Greater democracy: greater democracy in the political system for example elected mayors, more use of referdums and some degree of electoral reform.
- Devolution: the devolution of powers away from Westminster, to the regions Scotland, Wales, and Northern Ireland.
- Human rights: an emphasis on human rights, especially those of minority groups.
Insight on developments since 1997.
The British constitution has evolved and developed over the centuries, specifically after 1997 Tony Blairs labour government, which made constitutional reform a major part of their legislative agenda.
What government pursued a modest programme of ongoing constitutional changes?
—
Conservative David Camerons coalition government of 2010-2015.
This included a referendum of replacing the electoral system for general elections, limiting the power of the prime minister to dissolve parliament and ncreasing the powers of the devolved administrations in Scotland and wiles, this was rejected.
Evaluating post-1997 constitutional changes
Examples and explanations for the modernisation of political institutions.
- House of Lords Act 1999: removed all the Lords but 92 hereditary peers while introducing nominated life peers including ‘peoples peers’. Didn’t allow for elected members for the lords.
- Constitutional Reform Act 2005: created a separate Supreme Court, which became the highest court in the land, allowing for greater senses of judicial independence and separation of powers. This is because it replaced the Law Lords, sat in the Lords.
- House of Lords Reform Bill 2012: proposed that Lords should compromise of 80% elected members and 20% nominated peers, removing Hereditary pees completely. Bill abandoned after 91 conservative backbenchers voted against it.
- Succession to the Crown Act 2013: enabled eldest child of the monarch to ascend to the throne, regardless of gender. Only applied to royal offspring born after October 2011. Also allowed an heir who married a Roman Catholic to remain their right of succession to the throne.
- House of Lords Reform Act 2014: gave existing peers the right to resign or retire from their seats while also enabling the removal of peers convicted of offences serious criminal offences or non-attendance. By 2020, 6 peers had been removed for non attendance, including business person Baron Wolfson in 2017, and 106 had retired, including Lord LLoyd Webber.
Evaluating post-1997 constitutional changes
The successes and failures for the modernisation of political institutions:
Successes:
- since 1997, the House of Lords is smaller, more diverse, and far less conservative-dominated. It is also easier to remove peers for misconduct or non-attendance.
- creation of the Supreme Court has enabled a clear separation from powers between the executive and the judiciary, allowing for a sense of corporate identity and a higher political profile. It’s remained politically neutral and apolitical unlike its US counterpart.
- notions of gender and equality has even reached the traditions of the royal family.
Failures:
- reform of the unique entirely unelected second chamber House of Lords remains incomplete and unfinished. Attempts to build on the 1998 measure, for instance like in 2012, have been failures.
- creation of the independent Supreme Court has arguably led to too much power resident with unelected no unaccountable justices and has therefore undermined parliament.
- alteration of the line of succession is a minor tweak, it remains illegal for the monarch to be Roman Catholic.
Evaluating post-1997 constitutional changes
Examples and explanations for the greater democracy within the political systems.
- Referendums (Scotland and Wales) Act 1997: allowed referendums to be held in Scotland and Wales over the creation of devolved assemblies. ‘Yes’ vote i both countries (wales slim) meant that devolution could now take place.
- Greater London Authority Act 1999: allowed for the setting up of a directly elected mayor for London. The local Government Act 2000 contained provisions for elected mayors is other cities following local referendums.
- European Parliamentary Elections Act 1999: changed the electoral system for European Parliament elections in England, Scotland and ales from first past the post to a form of proportional representation - the regional closed list system.
- Police Reform and Social Responsibility Act 2011: allowed for the direct election of Police and Crime Commissioners, this first took place in 2012.
- 2011 Fixed-term Parliamentary Act: required the prime minister to secure the support of at least two-thirds of MP’s to call an early general election, instead of just doing it unilaterally.
A national referendum was held may 2011 to change the electoral system for Westminster to the alternative vote in place of first-past-the-post. This move as defeated 68% to 32%.
Evaluating post-1997 constitutional changes
The successes and failures for the greater democratisation:
Successes:
- large cities such as Greater Manchester have embraced the chance for greater autonomy, with prominent leaders such as the Labour politician Andy Burnham as elected mayor of GM in 2017.
- reform of European Parliament elections has over the years enabled a greater variety of parties to be represented, for instance UKIP / Brexit and BNP, alongside with Greens and Liberal Democrat’s.
- the direct election of Police and Crime Commissioners (PCC) has also increased opportunities for political participation and local democracy.
Failures:
- mayor of London can be considered a successful reform however, in regions where referendums have been held, the majority of cities voted against establishing mayor elections, rejecting the proposal. Torbay voted to get rid of mayor elections in 2016, despite having approved it in 2005. Turnout in many mayoral and PCC elections are abysmal, even at local govt election standards. 15% of the electorate voted voted to retain Middlesbrough elected mayor in 2013, and 11.6% turned out in 2012 to elect the PCC for Staffordshire - this number doubled in 2016.
- lack of enthusiasm for reform of the voting system for national elections is shown by the outcome of the 2011 alternative vote referendum
- the provisions of the FTPA were easily overcome in both 2017 and 2019 to bring about early general elections.
Evaluating post-1997 constitutional changes
Examples and explanations for Human rights.
- Human Rights Act 1998: incorporated the European Convention on Human Rights (ECHR) into UK law. This enables the uk courts to take the ECHR into account when judging cases on HR, reducing the number of cases referred to the European court of human rights in Strasbourg.
- Freedom of Information Act 2000: gave people greater access to the information held by public bodies including local and national government.
- Equality Act 2010: 116 individual measures in the areas of race, gender, disability and sex brought into a single act in aims of combating discrimination and promoting a fairer society.
- Protection of Freedoms Across 2012: offered citizens greater protection from the state by enhancing scrutiny of the security services, such as M15 and M16.
- Data Protection Act 2018: governments implementation of General Data Protection Regulation , (GDPR) , obliging all EU member states to implement these regulations. Placed strict control on the handling and saving of all personal data by both government and private bodies such as businesses, schools and local councils, in aims of enhancing citizens rights to personal privacy over their personal details.
Evaluating post-1997 constitutional changes
The successes and failures for human rights:
Successes:
- emphasis on landmark legislation for human rights has increased awareness and visibility of rights, especially those of minority groups.
- privacy and access to information laws have enhanced the rights of everyone, making public bodies and other powerful institutions such as employers more accountable and responsible for the information they hold.
- role of Supreme Court interpreting this legislation has increased the protection of citizens rights.
Failures
- expansion of rights has led to the rights has led to the rise of ‘identity politics’ - new term used to describe people of a particular race, sexuality. Campaigning on these issues moves away from traditional party politics.
- growing role of Supreme Court in human rights cases has caused controversy. For instance 2010, the Supreme Court ruled parts of the anti-terror laws, such as the govt power to freeze assets of suspected terrorist as a violation of the human rights act.
- Freedom of information act, many requests for information are declined.
Evaluating post-1997 constitutional changes
Examples and explanations for devolution.
- Scotland Act 1998, Wales Act 1998, Northern Ireland Act 1998: set up elected bodies / parliaments in these countries. Further powers were devolved in subsequent acts, for instance to Scotland and Wales in 2006, and to Scotland again in 2016 and Wales 2017.
November 2004, in the north-east of England, a regional referendum for the creation of an elected regional assembly was held - rejected 78% to 22%
Evaluating post-1997 constitutional changes
Success and failures of devolution:
Success:
- devolution has worked predominantly well in Scotland and Wales, with an increase in devolved powers.
- popularity for devolution has increased, for instance devolution in wales 1997 passed by slim 50.3% - 49.7%, where was another vote in 2011 to expand law making powers passed by 63.5%
- some argue that’s a devolved parliament stopped Scotland backing full separation from the uk in the 2014 independence referendum.
- devolution in Northern Ireland, although problematic, helped solve the violent period ‘The troubles’
Failures:
- devolution has not succeeded everywhere, in Northern Ireland policy disagreements and a scandal over a failed renewable energy scheme caused the assembly to be suspended January 2017 - January 2020.
- Support for devolution in I’m England has not increased, as seen in 2004 when the proposal was rejected by 78%.
Significant case studies of developments since 1997:
Fixed-term Parliament Act 2011.
What it was:
- Fixed term parliament act was an act made during the 2011 Conservative - Liberal Democrat coalition government, to remove the traditional right of the Prime Minister alone to seek a dissolution of parliament and call an early election via the royal prerogative.
Backstory + SFD:
- This right was brought to the Queen, in which by convention, she would have to grant.
- Prior to the Act, it was a common tactic of prime ministers to ‘go to the country’ early, often around a year in advance of a proposed general election, when the polls looked favourable. Margaret Thatcher did this in 1983 and Tony Blair in 2001.
Why did the coalition government pass this Act?
- desire to create stability and permanence for the first coalition government since 1945.
- it was a long-term Liberal Democrat policy
- to protect Liberal Democrats from being ditched by their Conservative partners when the polls looked favourable.
Main terms of the Act:
1. The prime minister cannot unilaterally go to the monarch and seek a dissolution of parliament and an early election.
2. The only exceptions to this rule is
a) the government loses a vote of no confidence in the House of Commons, followed by a confirmed vote of no confidence 2 weeks later - this automatically triggers a general election.
b) when two-thirds of MPs (i.e. 434 or more) vote to hold an early election.
How well the Act has worked is open to debate:
- On the one hand it fulfilled its initial aim of guaranteeing a 5-year term for the coalition government and ensuring political stability.
- On the other, there are strong grounds for assessing it as much less successful. It was easily overridden by Theresa May just 2 years into her government, when the Commons voted 522-13 in favour of calling an early election.
- May’s opposition, Labour leader Jeremy Corbyn, also favoured her aims of an early election, as few opposition leaders want to be seen as ‘political cowards’.
- only a few MPs voted against it.
Moving on:
- 2019, Prime Minister Boris Johnson tried three times to call an early election to find a way out of the Brexit impasse, but failed to get the two-thirds majority.
- The Act was eventually circumvented by a new piece of legislation, the Early Parliamentary General Election Act, which only required a simple majority. It passed at the end of October 2019 by 438-20 votes with 181 abstentions of mostly Labour and Liberal Democrat MPs.
- The Act was fast-tracked through parliament and became law within 2 days of getting through the Commons.
- In 2019, both Labour and Conservative manifestos promised repeal. Labour argued that the Act ’stifled democracy and propped up weak governments’ while the Conservatives stated it ‘led to paralysis at a time the country needed decisive action’. A draft bill for its abolition was introduced in December 2020.
Significance:
- serves as a good example of both parliamentary sovereignty and the relative simplicity with which constitutional changes can be implemented but also reversed.
- due to the ease with which the FTPA could be both passed originally and overridden on two occasions within 2 years
Key points and strengths and weaknesses of the fixed term parliament Act:
- Passed following the formation of the Coalition government between the Conservatives and Liberal Democrats after the 2010 general election.
- Weakened the power of the prime minister to call a snap election by dissolving parliament unilaterally.
- Parliament now needs to vote by a two-thirds majority to call an early general election. Alternatively, if there is a vote of no confidence in the government, this must be confirmed by another vote within two weeks.
- Designed to enhance the stability of a potentially fragile coalition government and reduce the scope for the prime minister to gain political advantage by going to the polls when the chances of victory seem highest.
- Following the Conservatives’ 2019 manifesto pledge, the Act was due to be repealed in 2021. Labour had also promised to repeal the Act if elected in 2019.
Strengths:
1. It allowed the Coalition government to work well in a stable and effective manner over its full five-year term. This political stability in turn was seen as beneficial for economic growth and longer-term policy making.
2. It is fairer on the junior member of a coalition (e.g. the Liberal Democrats after the 2010 general election), as they would not have to face an early election over which they had no say in timing.
Weaknesses:
- The Act was only passed in the first place because of political circumstances and expediency, not out of high principles. Had it not been for the need to provide stability to the Coalition government, it is unlikely such an Act would have been passed.
2. It could also be argued that it even failed in its political aim to protect the Liberal Democrats who, after the full five years in coalition, crashed from 57 MPs to just 9 in 2015.
3. Prime Minister Boris Johnson got around the Act to call an early election by a vote of 438 to 20 in autumn 2019.
Significant case studies of developments since 1997:
Freedom of Information Act.
What it was:
- Highlighted transparency of government and institutions.
Backstory + SFD:
The 1997 White Paper ‘Your Right to Know’
Openness is fundamental to the political health of a modern state. This White Paper marks a watershed in the relationship between the government and people of the United Kingdom. At last there is a government ready to trust the people with a legal right to information.
Why did they pass this Act:
- Designed to promote openness and transparency from most public bodies including local councils, police forces, the BBC and universities, as well as central government.
Aims of the Act.
Under its terms public institutions have two main obligations:
1. They are obliged to publish and make freely available, for example via free online access, certain information about their activities, e.g minutes of meetings, public policy documents etc.
2. Members of the public and pressure groups are able to make requests Via the Information Commissioner’s Office (ICO) for information and data. The institution must normally reply to such requests within 20 days and is only able to withhold information under certain circumstances.
Examples of this:
- FOl requests have included a request by the BBC for local councils to reveal how many individuals they recorded sleeping rough at any stage in 2019, and the intamous MPs expenses scandal in 2009, which resulted in five Labour MPs and two Conservative peers being jailed.
Significance:
- it was popular: July to September 2020 alone, 11,042 requests were received. A total of 86% were responded to in time, and around three-quarters were deemed resolvable’. i.e. the information could be gathered. However, only 40% were answered in full, 35% were denied in full and the remainder were answered in part. There are several grounds for legitimately denying requests, for example on the grounds of national security, commercial confidentiality, or that to collect the information would be disproportionately expensive.
- Provided major boost to open and transparent government since the Act has been invaluable for investigative journalists, pressure groups and ordinary people seeking information that public bodies might otherwise prefer not to reveal.
Moving on:
- Blairs memoirs published in 2010, reflected on passing the Act:
‘I look at those words (freedom of information) as I write them and feel like shaking my head till it drops oft my shoulders. You idiot. You naive, toolish, Irresponsible, nincompoop.
Back in 1776 he was more positive, noting
“Information is power and any governments attitude about sharing information with the people actually says a great deal about how it views power itselt and how it views the relationship between itself and the people who elected it.”
Critics argue how he became disenchanted with how journalists and political hacks frequently make use of FOI requests, and also how it could restrict candid confidential discussions in government departments.
Other believe perhaps the Act revealed too many skeletons in Labour’s own cupboard, and not just those of the party’s opponents?
Key points and strengths and weaknesses of the Freedom Of Information Act:
- This Act requires public bodies such as government departments, local authorities and the NHS to:
a) publish and make publicly available certain information about their activities, such as an annual report and minutes of meetings
b) allow members of the public to request information from these public authorities via a freedom of information (FOI) request. - The Act is designed to promote openness and transparency among public bodies that benefit from taxpayers’ money. It is also meant to boost public trust in such organisations and remove shrouds of secrecy. Its workings are overseen by the independent Information Commissioner’s Office (ICO).
Strengths:
1. FOI requests are popular and widespread; over 44,000 such requests were made in 2020 alone.
2. It allows the public and pressure groups to identify possible examples of waste and inefficiency or, at worst, corruption in public bodies.
3. Important investigative tool for journalists, prising open information that those in power prefer to remain hidden. For example, the Act played a significant role in uncovering the MPs’ expenses scandal in 2009.
4. It can also be used by businesses. For example, in 2021 an FOI request about jewellery thefts was made to UK police forces by the retailer jewellerybox. It showed that in 2020 the largest number occurred in Kensington & Chelsea, with 967 cases of jewellery thefts.
5. Allowed public scrutiny of policy initiatives and how well they work in practice. For example, in 2006 there was a highly publicised knife amnesty. An FOI request forced the publication of a report into the impact of the amnesty by the Metropolitan Police. This showed it had minimal impact on the rates of knife-related crime.
6. Those initially denied access to the requested information can appeal to the Information Commissioner’s Office (ICO). There were 311 such appeals in 2019/20.
Weaknesses:
1. Public bodies can and often do refuse requests for information. This can be for a variety of reasons including national security, commercial sensitivity, cost or because the request is deemed ‘vexatious’. 2. In 2020 around 50% of all requests were declined, either in full or in part.
3. It is often the case that requests for information are declined because they would involve the release of private or personal information about individuals. The Act can therefore lead to a conflict between an individual’s right to privacy and the right of the public to gain access to information about public officials.
Could the British constitution be reformed further ?
- Lowering the voting age to 16 across the UK (as already occurs in Scotland and Wales)
- Making voting compulsory, as it is in Australia
- Introducing an elected component to the House of Lords
- Reforming the voting system for Westminster elections to one
that is more proportional - making more use of e-democracy such as online voting
- extending devolution to England
- Widening public participation in candidate selection by political parties, for example by using a US-style primary system
How are human rights protected in the UK, and what challenges exist regarding the ECHR?
- Unlike the USA, where rights are entrenched, the UK’s human rights are protected by the ECHR and Human Rights Act 1998, Parliament could repeal these.
- Since leaving the EU, the UK could withdraw from the ECHR, a move supported by some Conservative politicians who propose a British Bill of Rights. However, this would face strong political and legal opposition.
- The Council of Europe, which oversees the ECHR, includes all European countries except Vatican City and Belarus.
- From 1966 to 2010, 14,460 cases were brought against the UK at the ECHR, but only 1.3% resulted in a ruling against the government, suggesting UK citizens’ rights are generally well protected.
How well does the British constitution protect rights?
It protects them well
1. The UK’s constitutional culture values civil liberties. There is formal support of human rights by the government. For example, every parliamentary Act contains a declaration that the Act complies with the Human Rights Act (HRA) 1998.
2. Current legislation provides a strong legal protection for core rights via the interlinked HRA and European Convention on Human Rights (ECHR) mechanisms. The HRA incorporates the ECHR into UK law. EU law also provided additional protection, for example in the area of workers’ rights.
3. The UK has a relatively strong institutional framework for protecting rights, which extends beyond the courts, including the Equalities and Human Rights Commission, which often brings cases under the Equality Act 2010.
Doesn’t protect them:
1. Little political consensus exists between parties: different political parties in the UK disagree on what human rights should include and how they should be protected. Some parties might prioritize certain rights over others or interpret them differently. The existing framework of UK legal rights protection (based on the HRA and ECHR) is vulnerable to political attack, with Conservative calls for a ‘British Bill of Rights’. European judgements that go against UK policies regularly spark media attacks on the European Court of Human Rights or, more frequently nowadays, UK courts.
2. Brexit is removing the safety net for certain non-discrimination, migrant and labour rights formerly provided by EU law.
3. UK governments have been repeatedly able to introduce and pass legislation diluting rights protection, especially in areas like national security with recent anti-terror laws, and measures that seek to reform immigration and entitlement to social benefits and housing.
4. Social and economic rights, for example to receive appropriate healthcare, are seen by some as poorly established and weakly protected. International human rights law has had a very limited impact in practice on government policy.
Should the British constitution be codified?
- In times of political crisis, there have been renewed calls for a modern codified constitution.
For example, during the protracted struggle over Brexit between 2017 and 2019 parliament and the government appeared incapable of finding a way forward despite the various options of a second referendum, a Brexit deal, a no-deal Brexit or calling another election. For once, the rules were not working. In the event, the December 2019 election returned a government with a strong majority, Brexit was achieved, in principle if not in detail, and parliament resumed. But the argument for a codified constitution lingers on.
Arguments for and against a codified constitution:
For codification:
1. It would provide greater clarity on what is and what is not constitutional and so lawful. A problem with conventions, as constitutional expert Vernon Bogdanor remarked, is that ‘The understandings are not always understood.’
2. Removing the vagueness of custom and tradition would represent a desirable modernisation of the political process.
3. It would provide further and more easily understood rights for all citizens, as the Constitution could entrench key rights as opposed to leaving them to the mercy of parliament.
4. It could reduce the concentration of power in the hands of the executive.
It would enable local government and the regional assemblies outside England to enjoy proper constitutional protection and permanence.
5. It would end the process of piecemeal codification such as the Cabinet Manual and the Osmotherly Rules - Rules from 1980 and revised in 2014, giving guidance to civil servants and other government officials when appearing before select committees.
6. Conventions can and are broken, for example with the Lords and the 1909 Budget, or when Boris Johnson sought to prorogue (suspend) parliament for 5 weeks in 2019. Only a unanimous ruling by the Supreme Court stopped this attempt. By convention, prorogation lasts for a much shorter period.
7. The UK is one of only three countries (the others are Israel and New Zealand) not to have a codified constitution
Against codification:
1. The current constitution encourages flexibility and adaptability, e.g. in regard to the calling of early elections. Codified constitutions are by nature far more rigid.
2. Codification would go against the tradition of UK politics, which is one of constitutional evolution not revolution.
3. Parliament would struggle to come to a consensus on much of the content of a codified constitution. Should it stipulate a particular voting system, and if so, which one?
4. It would give unaccountable judges greater power, as they would be required to make rulings on what Acts or measures were constitutional, much as they do in the USA.
It would also in all likelihood considerably politicise the judiciary.
5. The issue of education and awareness about the British Constitution is best met by better political education in schools.
6. There is a marked lack of popular demand for such a reform.The alternative vote referendum of 2011 is a case in point.
6. It would seriously undermine parliamentary sovereignty, which has served the country’s politics well over the centuries. Philip Johnstone, writing in the Daily Telegraph in January 2020 after the Brexit bill was passed, commented that ‘It turns out our system wasn’t broken after all.’
Does the British constitution defend citizens’ rights effectively?
No
1. Many laws have loopholes and gaps and can be ineffective (e.g. the 2018 furore over unequal pay for many female journalists at the BBC). FOI requests are often refused.
2. The uncodified nature of the constitution means that people are unaware of their rights, unlike in the USA where fundamental rights (such as the right to free expression) are enshrined in the constitution, especially the Bill of Rights.
3. Because of parliamentary sovereignty, no rights are entrenched or inalienable.
Parliament could, in theory, repeal or change laws and citizens would be powerless to stop this.
4. With Brexit, the ‘double lock’ of reinforcement by EU law/the ECHR will be lost, making citizens’ rights more vulnerable.
Yes:
1. Over time, especially through statute laws and antidiscrimination laws, more and more rights have been explicitly defended, such as the right to access information from public bodies.
2. Codification would not enhance awareness of individual or collective rights in a substantial or meaningful way.
3. Large numbers of people and pressure groups use the courts to assert their rights and demand access to information held about them by public bodies.
4. A constitution should be judged by how it works, not by how it looks. Although possible in theory, in practice this is extremely unlikely to happen. It would take a very extremist government to enact such legislation.
5. The electorate is unlikely to vote for MPs who will take away their fundamental rights. Even if Britain were to withdraw from the ECHR (itself very unlikely), it is inconceivable that the main and universally agreed rights would not be protected by a British Bill of Rights. Also, EU law had little impact on human rights — it was more concerned with issues such as trade.
Define and explain, individual rights and collective rights:
Individual rights:
- Individual rights are the rights held by an individual citizen, such as the right to a fair trial or the right not to face discrimination.
Collective rights:
- Collective rights are those that belong to groups ranging from formally organised groups such as trade unions to those that are faith based, or those that reflect a certain characteristic such as gender, disability or sexuality.
- Collective rights can also be applied to the population as a whole, such as the right to protection from acts of terrorism and the safeguarding of national security.
These two rights are often seen to conflict with each other. An obvious example is that all individuals have the right to practise any (or no) religious faith, which often involves following a particular moral code such as refraining from drinking alcohol or a disapproval of homosexuality. Yet, such a stance could be at odds with the collective rights of wider groups such as drinkers or the LGBTQ+ community.
CASE STUDY:
Can religious faith be used to justify refusing to serve members of the LGBTQ+ community?
- Owners of Ashers Baking Company Ltd in Northern Ireland, were prosecuted for refusing to bake a cake for a gay rights activist who had asked them to incorporate the slogan ‘Support gay marriage’ along with a picture of Bert and Ernie from Sesame Street and the logo of the Queerspace organisation in the decoration.
- In October 2018, the Supreme Court overturned the judgements of lower courts that the bakery was guilty of discrimination. The argument was that the bakery did not discriminate against the customer who happened to be gay, but against the message on the cake, which they would have objected to regardless of the customer’s sexual orientation.
- Therefore, the issue was not about sexuality but what is termed ‘forced speech’. For example, can a Labour-supporting printer refuse to produce Conservative Party publicity or vice versa? The answer is probably yes.
- This case is an example of how the individual right to free speech or expression can prevail over the collective rights of a particular group. A similar case but with a different outcome occurred in 2013 when the Christian owners of a Cornish guest house lost a court case over refusing to allow a same-sex couple to share a double bedroom.
CASE STUDY:
Female circumcision
- Concerns traditional cultural
practices illegally practised by some minority groups in the UK. - Although illegal in most countries, female circumcision (FGM) is a common practice among certain (but by no means all) communities in parts of Africa and the Middle East. It is, however, a practice clearly at odds with most countries’ cultural norms and values.
- Under UK child safeguarding rules, schools and social services are required by law to report immediately to the police any suspected cases of FGM, which is illegal under the Female Genital Mutilation Act 2003. This results in a
potential clash between the individual rights of a citizen to follow cultural practices, and the collective rights of wider UK society, who rightly see the practice as a form of child abuse. - There are also, of course, the important individual rights of the child to consider. In this instance, the solution is clear in UK law. The individual rights of the child are uppermost, and the lack of informed consent makes it straightforward to ban the practice, despite it being a collective tradition in certain communities.
CASE STUDY:
Uber drivers
- In 2016, two Uber drivers sued the firm claiming that they were employees and not, as Uber claimed, self-employed.
- By claiming to be employees, the drivers would gain entitlement to benefits such as holiday pay and the minimum wage. They were therefore fighting for the collective rights of all Uber drivers, and were supported in their court case by the Independent Workers’ Union of Great Britain.
- However, they were opposed not only by Uber, but also by some of their fellow Uber drivers who enjoyed the freedom of being self-employed and asserted their individual rights regarding employment status.
- Ultimately, Uber lost its case and the collective rights of all its workers were protected at the expense of some individual drivers.
Context about individual rights and collective rights clashing.
There’s no particular pattern in terms of which set of rights usually prevails — these contrasting case studies resulted in a victory for both collective over individual rights and vice versa.
In addition, several clauses of anti-terror legislation designed to protect the collective right of public safety have been successfully challenged in the courts. For example, in 2004 the courts ruled that indefinite detention of suspected terrorists broke human rights laws, seemingly favouring individual rights to a fair trial over collective rights to protection from terrorist outrages.
- Much depends on the individual context, the interpretation of the judges and public opinion.
- The latter can often persuade the government to pass legislation to tilt the balance of rights in one or other direction. - Yet, there are times when the conflict can also be between competing sets of either individual or collective rights within each category, such as in the case of the Uber drivers.
The issue of citizens’ rights is, therefore, a dynamic rather than fixed aspect of the British Constitution.
Examples of how individual and collective rights might clash:
a) Collective rights The individual right to privacy.
b) People suspected of involvement in terrorism or other serious crimes might have their phone calls monitored to protect the collective right to security.
a) The individual right not to be discriminated against, for example on the grounds of sexuality.
b) The collective right of religious groups to express and live out their beliefs.
a) The individual right to free speech and opinion.
b) The collective right of a particular group such as Muslims and racial minorities not to be subjected to hate speech.
a) The individual right of employees not to be coerced or intimidated by others into taking industrial action.
b) The collective right of workers to be treated fairly and to go on strike if necessary.
a) The individual right, even for a celebrity or public figure, to keep their private life private.
b) The collective right of a free press to investigate and run stories about individuals who they believe to be in the public interest.
a) The individual choice whether or not to be vaccinated against Covid-19.
b) The collective right of those classed as clinically vulnerable to be protected from Covid-19.
