Paper 2: The constitution Flashcards
What is the difference between a codified and uncodified constitution
A codified constitution is , written in a single, authoritative document that has been agreed on an occasion. Codified Constitutions are seen all around the world .Whereas, A uncodified constitution is one that has evolved and are made up of a number of different sources, and our scene in the UK, Israel, and New Zealand.
What’s an example of parliament exercising parliamentary sovereignty?
The Rwanda Policy:
-The last conservative parliament, under Rishi Sunak, had a key aim of stopping illegal migration into the UK - particularly small boat crossings across the channel.
-The ‘Rwanda Policy’: proposed by Boris Johnson, Liz truss and Rishi Sunak, people whom the UK identified as illegal immigrants or asylum seekers would have been relocated to Rwanda for processing asylum and resettlement.
-The first flight to Rwanda was scheduled to leave in 2022, but the courts continued to block it. In November 2023, the Supreme Court ruled that the policy was unlawful on human rights grounds. This meant that the government could not deport people to Rwanda.
-Parliament passed a law “the safety of Rwanda’ (asylum and immigration) Act 2024 — which overruled the courts’ judgement and declared Rwanda a safe country.
-When Keir Starmer won the July 2024 election he cancelled the scheme. The arguments against this was that the total cost of the scheme was estimated to be 400 milllion pounds, and 4 migrants were voluntarily relocated while it was in place.
The Rwanda policy is a prime example of parliamentary sovereignty, as parliament is capable of creating any law, in addition to overruling the judgement of other major bodies, such as the Supreme Court, through the ‘safety of Rwanda act’. After this, after Keir Starmer’s election, he exercises parliamentary sovereignty to cancel this scheme.
why is having an uncodified constitution more flexible?
-Supporters of the current arrangements say that the flexibility of the Constitution is a positive quality. The Constitution can, they say, adapt to a changing world without major upheavals. It is said that the UK’s Constitution is ‘organic’. This means that it is rooted in society, not separate from society. Thus, when society and its needs and values change, the Constitution can change automatically and without undue delay or confusion. Parliament can pass a new Act relatively quickly and new unwritten conventions can develop to take account of social and political change. In an codified constitution, such as the USA, this would be much more difficult to adapt as for the constitution to be amended it requires 2/3 of congress and 3/4 of the states to agree, so it is far more difficult.
Some examples of such ‘organic’ and natural development can help to illustrate this quality:
-After the 9/11 attacks on New York City and Washington, DC in 2001, the threat of international terrorism became more acute. Had the UK had an entrenched and codified constitution, it would have been extremely difficult for Parliament to pass a wide range of anti-terrorist measures because there would have been too many constitutional constraints. The lack of a codified constitution meant that Parliament could do as it wished. Because of their codified constitutions, the USA and many European countries have had greater problems introducing anti-terror legislation than the UK has.
-When the 2010 general election failed to produce outright parliamentary majority for any one party, there was some confusion about what should be done in the absence of any codified rules. Such an event had not occurred for over 70 years. Nevertheless, the system was flexible enough to adapt. A new set of principles (the O’Donnell rules )was quickly drawn up and a Coalition government was formed relatively smoothly.
How does having an uncodified constitution increase the power of the executive?
When constitutional safeguards are weak or absent, government can be more powerful. This can be viewed positively or negatively.
Supporters of the current uncodified Constitution argue that, on balance, it is better to have a government that can deal with problems or crises without too much inhibition. In the UK, the relationship between government and Parliament is flexible; in countries with codified constitutions it tends to be fixed, which can inhibit effective governance.
How does the UK’s conservative pragmatism help the idea of an uncodified constitution?
The typical conservative attitude to the UK Constitution suggests that it has served the country well for centuries. There have been no violent revolutions and no major political unrest. Change has occurred naturally and when it has been necessary rather than when reformers have campaigned for it. Furthermore, say conservatives, codifying the Constitution would be an extremely difficult exercise and the meagre benefits would not be worth the problems incurred.
How does keeping the constitution codified stop the risk of politicising the judiciary?
a codified constitution would involve the courts, the Supreme Court in particular, in disputes over its precise meaning and application, making the courts even more political.
-For example, there would be conflicts over the exact powers of government, the nature of rights, or relations between England, Scotland, Wales and Northern Ireland.
-Bringing judges into political conflict puts the independence of judges into jeopardy, it is argued. This means that the constitution would become judicable.
-This arises because judges are not elected and therefore not accountable. Critics point out that such political issues should not be resolved by judges; it is for elected representatives, they say, to make final decisions on constitutional meanings
How does codifying the constitution help the protection of Human rights?
Perhaps at the top of the reformers’ shopping list is the need for stronger safeguards for individual and minority rights. The UK has adopted the European Convention on Human Rights (by passing the Human Rights Act in 1998), but this remains weak in that it can be overridden by Parliament. Parliament remains sovereign and no constitutional legislation can remove that sovereignty. With a codified constitution, Parliament could not pass any legislation that offended human rights protection, offering far greater protection for the people.
How would a codified constitution help limit the ‘excessive’ executive power.
We have seen that conservatives and others have wished to retain the powerful position of government in the UK. Liberals and other reformers, however, argue that executive, governmental power is excessive in the UK. They say over-powerful government threatens individual rights, the position of minorities and the influence of public opinion. A clear, codified constitution would, they assert, inhibit the apparently irreversible drift towards greater executive power. In particular, supporters of a codified constitution suggest that there are no real ‘checks and balances’. It is argued that Parliament needs to have more codified powers to enable it to control government on behalf of the people.
how would a codified constitution help with clarity of entrenched law for the UK citizens?
Most citizens of the UK do not understand the concept of a constitution. This is hardly surprising as there is no such thing as the ‘UK Constitution’ in any concrete form. There is, therefore, an argument for creating a single physical constitution so that public awareness and support can grow. If people know their rights and understand better how government works, it is suggested, this might increase their political awareness and willingness to become involved.
How would having a codified constitution help making the UK more modern?
As we have seen, the UK is unusual in not having a codified constitution. Many people regard this as an indication that the UK is backward in a political sense and has not entered the modern world. This became more pressing when the UK joined the European Community and has been reignited over the process of leaving the EU.
What is an example of parliamentary sovereignty being checked?
Prorogation crisis (2019):
- Boris Johnson prorogued parliament for 5 weeks, in the lead up to the Brexit deadline. It was widely seen as a move to prevent Parliament debating Brexit and opposing Johnson’s plans. - On 24 September the Supreme Court ruled that prorogation was justiciable and unlawful. Parliament resumed the following day.
-This ties into Parliamentary sovereignty, as even though technically the prime minister is all-powerful the current system is capable of restraining them
What do we mean by the terms ‘unitary’ and ‘semi-federalism’ and how do these apply to the UK Constitution?
A unitary constitution dictates the political power is centred on a single place, and all other regions and political bodies are inferior to that body.
-In contrast, a federal constitution, is one more power is handed upwards and a difficult to return such as exist in the USA. A federal system divides legal power between a central body and regional bodies, meaning there are different areas of power controlled by the national body from the capital and regional bodies, governor local area.
-traditionally, the UK was a unitary system, and technically this remains true as the Westminster parliament retains ultimate sovereignty and power. However, devolution has created an unusual situation that can be described as semi-federalism.
- Semi-federalism is a system of devolution where it is so unlikely or difficult for power to be returned to central government that it is, to all intents and purposes, a federal system, even though it is not in strict constitutional terms.
How and why did the 1997-2010 Labour government reform the House of Lords?
-despite the fact that the government of 1997 wanted to reform the lords quite radically, as mentioned in their manifesto, they had to compromise as the House of Lords was unwilling to vote on their complete dissolution.
1)The first stage was the plan to remove all 753 hereditary peers. There was to be an all appointed chamber of life peers, and Church of England bishops instead. Despite their desired reform, due to opposition from the Lords, the Parliament Act 1999, reduced the number of hereditary peers by several hundred, leaving 92 remaining, voted for by other peers. This resulted from negotiation between Tony Blair, the Prime-minister, and the conservative leader in the Lords, Viscount Cranborne, Therefore being known as the Cranborne compromise.
-as a result of the 1999 act, Despite the fact that it was a limited Reform, the house of Lords was now a mostly appointed chamber, in addition to reduction of the total number of eligible members, from 1330 to 669 in March 2000. This meant that the proportion of peers who held their position on merit, rather than by birth, making the House of Lords a more professional and efficient body.
How and why did the 1997-2010 Labour government reform the House of Lords?
-despite the fact that the government of 1997 wanted to reform the lords quite radically, as mentioned in their manifesto, they had to compromise as the House of Lords was unwilling to vote on their complete dissolution.
1)The first stage was the plan to remove all 753 hereditary peers. There was to be an all appointed chamber of life peers, and Church of England bishops instead. Despite their desired reform, due to opposition from the Lords, the Parliament Act 1999, reduced the number of hereditary peers by several hundred, leaving 92 remaining, voted for by other peers. This resulted from negotiation between Tony Blair, the Prime-minister, and the conservative leader in the Lords, Viscount Cranborne, Therefore being known as the Cranborne compromise.
-as a result of the 1999 act, Despite the fact that it was a limited Reform, the house of Lords was now a mostly appointed chamber, in addition to reduction of the total number of eligible members, from 1330 to 669 in March 2000. This meant that the proportion of peers who held their position on merit, rather than by birth, making the House of Lords a more professional and efficient body.
How and why did the 1997-2010 Labour government reform the House of Commons?
The main reform under new labor concerned the departmental selected committees of the house of Commons. These committees of backbench MPs inspect the work of government departments carefully, and are becoming more important and have enjoyed the enhancement in status.
-in 2004 the chairs of the committee were awarded additional salaries to raise their status.
-in 2010, one of the last act of the going labor government was to introduce help for electing members of the select committees by the whole chamber of the House of Commons . Before, they had been largely selected by party leaders. The chairs of these committees are allocated to parties based on their proportion of MPs in commons and then elected by the MPs with the party, in order to reduce the influence of party whips, ( MPs and peers affiliated to a political party appointed to ensure their party colleagues vote according to the leader’s agenda.). This increased the independence of the committees.
-In 2010 a back bench business committee was established. This gave MPs control of over 20 parliamentary days to debate issues of their choosing. This represented a small increase in backbench influence and control.
What did the 1998 Human Rights Act do, and why was this significant?
- in 1998, the UK parliament passed the human rights act, the most significant development in the protection of human rights in the UK, since the Bill of Rights in 1689, incorporating the European convention on human rights into UK law. The ECHR was made binding on all public bodies, including the government. Courts were given the power to enforce the ECHR whenever it became relevant in any case they presided over.
- To preserve the principle of parliamentary sovereignty, the ECHR is not directly binding on the UK parliament, meaning any laws that contravene the ECHR can be passed only if the government declares an overwhelming reason why it is necessary to do so. This means that in almost all situations, the terms of the ECHR are now binding an all parts of the UK.
- By passing the human rights act, the UK parliament did not lose sovereignty. This is because the UK parliament can appeal it at any time and it would no longer be enforced in UK courts. For example, the Conservative government that came to power in 2015 was committed to replacing the act with a new British Bill of Rights. The idea was floated again in 2023 after the ECHR blocked the plan for sending illegal immigrates to Rwanda, but no such change was formally proposed.
What did the 1998 Human Rights Act do, and why was this significant?
- in 1998, the UK parliament passed the human rights act, the most significant development in the protection of human rights in the UK, since the Bill of Rights in 1689, incorporating the European convention on human rights into UK law. The ECHR was made binding on all public bodies, including the government. Courts were given the power to enforce the ECHR whenever it became relevant in any case they presided over.
- To preserve the principle of parliamentary sovereignty, the ECHR is not directly binding on the UK parliament, meaning any laws that contravene the ECHR can be passed only if the government declares an overwhelming reason why it is necessary to do so. This means that in almost all situations, the terms of the ECHR are now binding an all parts of the UK.
- By passing the human rights act, the UK parliament did not lose sovereignty. This is because the UK parliament can appeal it at any time and it would no longer be enforced in UK courts. For example, the Conservative government that came to power in 2015 was committed to replacing the act with a new British Bill of Rights. The idea was floated again in 2023 after the ECHR blocked the plan for sending illegal immigrates to Rwanda, but no such change was formally proposed.
-The Freedom of Information act 2000 was introduced as a version of similar measures in operation elsewhere in Europe. This was because before this, much of the work of the government was done in private secrecy. This created a lack of transparency between the government and the UK population. This act gave the government the right to conceal information if it felt like it may impair the activities of government.
-However when this act was passed many human rights campaigners thought it was too weak. For example, in 2008 a request was made to the information tribunal to release details of expenses made by MPs. Parliament intended to block the request through the high court through the freedom of information act, but failed. The information was released to the daily telegraph, becoming clear that there have been widespread abuse of the generous expenses system. As a result of this, hundreds of MPs were accused of using their power in parliament for their own benefit. This lead to many MPs, deciding to give up their seats, with some MPs and peers facing criminal prosecution, six MPs and two peers being found guilty and sentenced to prison terms.
