Strucutre And Nature Of The British Constitution Flashcards
What are the key points of the constitution of a western liberal democracy?
-guarantees free and fair democratic elections
-respect for human rights
-a balance of individual and collective rights
-addresses the notion of parliamentary sovereignty
-clear mechanism for resolving problems and conflicts
-easy to understand and encourages participation
-can be adapted and flexible to changing circumstances
-upholds the rule of law of law through an independent judiciary
What is a codified constitution
a constitution which all provisions are written down in a single set of documents. Like the US constitution
What are the characteristics of the British Constitution?
-uncodified
-it is unitary, most power lies on the centre (Westminster parliament)
-arguably the development of the devolved assemblies has weakened this
-it operates the rule of law (law applies equally to everyone)
What are the main sources of the British constitution?
-constitutional statute law
-common law
-the royal prerogative
-conventions
-works of authority
-international agreements
What is statute law?
-any law that has been passed by both houses and has received royal assent
-They are acts of parliament
-statute law is the most important
-source of the constitution
Gives some examples of statute law:
-The Representation of the People Act (1969): defined the voting age
-Human Rights Act (1998): Incorporated the convention on humans rights into UK Law: European Law arguably undermines parliamentary sovereignty as EU law takes precedence over UK law)
What is common law?
-laws or rights passed down over the years by legal judgments in court (judicial precedence)
-common law can be modified by state law, e.g many statute laws have dealt with the punishment for murder, such as abolishing the death penalty in 1965
Examples of common law:
-freedom of expression
-the criminality of murder
What is the royal prerogative?
-the residual remaining power exercised in the name of the crown
-include the power to prorogue parliament and issuing UK passports
-can be seen to boost the power of PM and executive
Give an example of the royal prerogative being used:
2019, Johnson sought to prorogue parliament for longer than the 5 week period, however the Supreme Court ruled it unlawful
What are conventions?
Unwritten rules and procedure mostly concerned with parliament that facilitate the smooth running of the constitution
Gives some examples of conventions:
The Salisbury-Addison Convention (1945): means that Lords don’t reject legislation that was part of the governments manifesto
after a General Election, the monarch formally invited the leader of the largest party to form a government
a monarch gives royal assent to all bills (a denial of royal assent would cause a constitutional crisis)
What are works of authority?
They comprise of a variety of books and documents which deal with areas such as parliamentary procedure and the responsibilities and duties of government ministers
Gives examples of works of authority:
Walter Bagehot’s ‘The English Constitution’:
-distinguished between the dignified and the efficient parts of the constitution
A.V Dicey’s ‘Introduction to the study of the law of the constitution’ (1888):
-identified the twin pillars of democracy and strongly asserted the notion of parliamentary sovereignty
Erskine May’s ‘Parliamentary Practice’ (1844):
-the bible of parliamentary procedure (regular reference by the speaker of the house)
-March 2019- John Becrow sited a 1604 convention to prevent May bringing her Brexit deal before the commons for a third times
‘The Cabinet Manual’ (2010):
-includes ministerial conduct
-cabinet composition and the scrutiny of the government by parliament
-it was initiated by Gordon Brown
What was the impact of the Magna Carta (1215) on the British Constitution?
-the Magna Carta was made in response baronial rebellion
-the most important clause is the right of all free men to fair trial
-it was the first formal attempt to limit the powers of the monarch
-it influenced later documents such as the American Declaration of Independence and the ECHR
-HOWEVER, the Magna Carta was specific to its time
-it was essentially a peace treaty
-only 4 of the clauses remain un-appealed
What was the bill of rights (1689)?
-followed the glorious revolution
-James II was accused of undermining the role of parliament and trying to return the country to Catholicism
-parliament invited Mary and William of Holland to take the crown
-they had to accept the ‘Bill of Rights’
-frequent parliaments
-freedom of speech within parliament
-included no taxation without parliaments agreement
-said to represent the establishment of parliamentary sovereignty
What was the Act of Settlement (1701)?
-sets up a parliamentary privilege
-the main aim was to ensure a protestant succession to the throne
-showed the power of parliament however did nothing to make the country more democratic
What are the Parliaments Act of 1911 and 1949?
-reduced the power of the Lords
1911:
-rejection in the Lords of the ‘Peoples Budget’ saw the liberals remove the veto of the lords
-prevented the Lords from delaying a budget for more than 2 yrs
1949:
-act modified to reduce the veto of the Lords to 1yr
-effectively means that any bill passed by the commons could become law
What is the European Communities Act 1972?
-enable the accession of the UK to the European Economic Community (EEC)
-under the terms of UK membership all legislation had to conform to European Law
-incursion to the doctrine of parliamentary sovereignty
-it was added to by the Single European Act 1986 and the Lisbon Treaty 2006
How many bills did Blair pass 1997 to reform the Lords?
12
What were the main themes of Blairs constitutional reforms?
-modernisation of the House of Lords and the judiciary
-Greater democracy in the political system
-Devolution
-Emphasis on human rights
The modernisation of political institutions key acts:
House of Lords Act (1999):
-removed all but 92 hereditary peers
-allowed for the nomination of life peers
Constitutional Reform Act (2005):
-created a separate Supreme Court to replace the Law Lords
-created a sense of judicial independence with separation of powers
House of Lords Reform Bill (2012):
-proposed Lords should be 80% elected and 20% nominated
-the bill was abandoned after 91 tory backbenchers voted against it
Succession to the Crown Act (2013):
-allowed the eldest child of the monarch to ascend to the throne regardless of gender
House of Lords Reform Act (2014):
-gave peers the right to resign and retire their seats and enables the removal of peers for serious criminal offences
-2017: 106 peers retired, including Lord Lloyd Webber
Acts that have meant greater democracy in the political system:
Referendums (Scotland and Wales) Act (1997):
-allowed for referendums to be held for the creation of devolved assemblies
Greater London Authority Act (1999):
-allowed the setting up of a directly elected London Mayor
European Parliamentary Elections Act (1999):
-changed electoral system for European Parliament Elections from FPTP to proportional representation
Police Reform and Social Responsibility Act (2011):
-allowed for the direct election of police commissioners
Fixed Term Parliament Act (2011):
-required the PM to secure support of at east 2/3s of MPs to call an early general election
Establishment of devolved legislative bodies in constituent countries of the UK:
Scotland, Wales and Northern Ireland Act (1998):
-set up devolved assemblies/parliaments
-further powers transferred in subsequent acts
November 2004:
-Regional referendum held in North-East England on the creation of an elected regional assembly
-rejected 78% to 22%
Acts on Human Rights:
Human Rights Act 1998:
-incorporated ECHR into UK law
-allowed UK courts to take ECHR into account reducing the number of cases referred to the European Court on Human Rights
-Strasbourg
Freedom of Information Act (2000)
Equality Act (2010):
-brought together 116 measures
-areas and characteristics protected included race, gender, disability and sexual orientation
Data Protection Act (2018):
-the UK governments
-implementation of GDPR
Which entities does the Freedom of Information Act 2000 apply to?
-most public bodies including councils, police forces, the BBC, universities and the central government
What are the two main obligations of public institutions under the Freedom of Information Act 2000?
-obliged to publish and make freely available certain information about their actives
-e.g minutes of meetings, public policy etc
-members of the public and pressure groups able to make requests within 20 days and can only withhold information under circumstances
How effective is the Freedom of Information Act 2000?
-FOI requests led to the exposure of the MPs expenses scandal which led to 7 MPs being imprisoned
-July–>September, 11, 402 requests were made - only 40% were answered in full
What are the grounds for legitimately denying requests under the Freedom of Information Act 2000?
-grounds of national security
-commercial confidentiality
-collecting the information would be disproportionately expensive
What did the Fixed-term Parliament Act (2011) do?
-removed the traditional right via the royal prerogative for the PM to seek the dissolution of parliament or an early election by simply asking the monarch
What were the reason for implementing the Fixed-term Parliament Act?
-to provide stability and permanence for the first coalition government
-to fulfil a long-term LibDem policy and prevent them from being abandoned by the Conservatives when polls looked favourable
What was one success and one limitation of the Fixed term parliament Act?
Success:
-guaranteed a 5yr term for the coalition government
Limitation:
-easily overridden by May as the commons voted 522-13 in favour of calling an early general election
-Johnson tried to get an early election in 2019, however failed to get a 2/3s majority 3 times
-the Act was circumvented by the early Parliamentary General Elections Act which only required a simple majority
Success of the modernisation of political institutions:
-HoL have had significant reforms since 1997, they are smaller, more diverse and less tory dominated
-creation of SC enabled a clear separation between the corporate and the judiciary, the UKSC has remained politically neutral
-notion of gender equality has reached the tradition of the royal family
Failures of the modernisation of political institutions:
-HoL reform is incomplete, the UK remain unique in the democratic world of having an entirely unelected second chamber
-creation of the SC means too much power is held by unelected and unaccountable justices
-alteration to the lines of succession is only a minor change
-it remains illegal for the monarch to be Roman Catholic
Successes in democratisation:
-greater autonomy in some larger cities (post of Mayor of London has attracted high profile individuals: Boris Johnson, Sadiq Khan)
-used by other cities, Andy Burnham was elected as Mayor of Greater Manchester in 2017
-reform of European Parliament Elections has meant that a variety of parties represented: UKIP, Greens
-direct election of police and crime commissioners enhance opportunities for political participation and local democracy
Failures in democratisation:
-majority of cities voted in referendums to reject the proposal for an elected mayor (2016 Torbay voted to get rid of the position of elected mayor after voting for it in 2005)
-turnout for mayoral and PCC elections low
-15% of electorate voted to retain Middlesborough elected Mayor
-11.6% turnout to elect PCC for Staffordshire
-enthusiasm for reform of voting system shown through the reject of AV in 2011
-provision of the FTPA easily overcome in 2017 and 2019
Successes in Human Rights:
-landmark legislation in human rights has increased awareness and visibility of rights
-laws concerning privacy and access to information have more powerful institutions such as employers more accountable
-the role of the SC in interpreting this legislation has increased protection of citizens rights
Failures In human rights:
-expansion of rights has led to the rise of ‘identity politics’ and a class between individual and collective rights
-growing role of the courts in human rights cases has led to controversy
-with regard to the freedom of information act, many requests for information are denied
Success in devolution:
-worked well in Scotland and Wales, number of devolved powers have increased
-popular support for devolution has increased, 1997 Welsh devolution was backed by 50.3% in 2011 + vote to expand law-making powers was backed by 63.5%
-some argue that is was only devolution that stopped Scotland becoming independent in 2014
-in Northern Ireland, devolution led to an end to ‘The Troubles’
Failures in Devolution:
-devolution hasn’t succeeded everywhere
-N.I policy disagreements meant the assembly was suspended between Jan 2017 and Jan 2020
-support for devolution in England hasn’t increased (2004 proposal to create a north-east regional assembly rejected by 78%)
Further constitutional reforms:
-lowering the voting age to 16 across the UK (already in Scotland and Wales)
-making voting compulsory (like in Australia)
-introducing elected components to the Lords
-making the use of e-democracy
-extending devolution to England
-widening public participation in candidate selection
-requiring photo ID to vote
Arguments that the constitution porters human rights well:
-the UK’s constitutional culture values civil liberties
-formal support of human rights by the government (every parliamentary act contains a declaration that the act complies with HRA 1998)
-current legislation provides strong protection for core rights via interlinked HRA and European Convention on Human Rights
-HRA incorporates ECHR into UK laws
-UK has relatively strong institutional framework for protecting rights which extended beyond the courts
Argument that the constitution does not protect human rights:
-little political consensus exists between parties as to the actual substance human rights guarantees
-existing framework of UK legal rights protection vulnerable to political attack, conservatives call for a ‘British Bill of Rights’
-European judgments that go against the UK policies regularly spark media attacks on the ECHR or UK courts
-Brexit removed the safety net for certain non-discrimination migrant and labour rights
-UK governments have been able to introduce and pass legislation diluting rights protection (seen in areas like national security with anti-terror laws)
-international human rights law has had very limited impact in practice on government policy
How many cases were found to have breached convention by the ECHR between 1996-2010?
-14,460 application to the ECHR in Strasbourg
-only in 1.3% of cases was the government found to ever breach the convention
What is the argument for codification?
-provide clarification on what is and isn’t constitutional and therefore lawful
-removing the vagueness of customs and traditions would represent a modernisation of the political process
-would mean rights are more easily understood by all citizens
-reduce the concentration of power in the hands of the executive
-would enable local Govs and regional assemblies outside England proper constitutional protection and permanence
-would end the process of piecemeal codification such as the cabinet manual and Osmotherly rules
-Conventions can and are broken (1909 Budget and 2019 Johnson prorogation of parliament)
-the UK is one of only 3 countries not to have a codified constitution
What are the arguments against codification:
-current Constitution encourages flexibility and adaptability
-codification would go against the tradition of UK politics (one of constitutional evolution not revolution)
-parliament would struggle to come to a consensus on the content of the codified constitution
-would give unaccountable judges greater power and would be required to make ruling on what acts or measures are constitutional
-issues of education and awareness about the British constitution best met by better political education in school
-lack of popular demand for reform shown in the alternative vote referendum in 2011
-codification would undermine parliamentary sovereignty
What are individual rights?
rights held by an individual citizen e.g the right to a fair trail, the rights not be discriminated
What are collective rights?
-rights that belong to a group
-can range from formally organised groups like trade unions to those that reflect certain characteristics
-it can be applied to the population as a whole e.g the right to the protection from acts of terrorism and the safeguarding of national security
CASE STUDY: can religious faith be used to justify refusing to serve members of the LGBTQ+ community?
Ashers Baking LTD (N.I) owners were prosecuted for refusing to bake a cake for gay rights activist with the slogan ‘support gay marriage’
-October 2018, the SC overturned the judgement that the bakery was guilty of discrimination
-argument was that the bakery didn’t discriminate against the customer who was gay, but rather the message on the cake
-the issue wasn’t around sexuality but rather forced speech
-shows how the individual right to free speech can prevail over the collective rights of a particular group
CASE STUDY: female
-under UK safeguarding rules schools and social service are required by law to prioritise suspected cases of FGM
-illegal under the female genital Mutilation Act 2003
-results in a clash between individual and collective rights
-under UK law the individual rights of the child are uppermost; despite it being a collective tradition in certain communities
CASE STUDY: Uber Drivers
-2-16
-two drivers sued the firm claiming that they were employees and not as under claimed self-employed
-by being employees drivers would gain entitlement to holiday pay and a minimum wage
-they were fighting for the collective rights of uber drivers
-uber lost its case and the collective rights of all the workers were protected
