The constitution

Question 1

The nature of the UK constitution with examples of key events

Answer 1

The UK constitution has developed differently from the constitutions of most other
nation states. This is because since the Norman Conquest in 1066, there has not
been a historical event that has entirely altered the principles on which the nation
is governed. Even when a protectorate was established under Oliver Cromwell in
1653, it barely outlasted Cromwell’s death and the monarchy was re-established
under Charles II in 1660.
The development of the British constitution has therefore been evolutionary,
involving no irrevocable breaks with the past. This is in contrast to countries such
as France and the USA, in both of which a revolutionary event led to the overthrow
of the government and the establishment of a codified constitution setting out the
principles by which the government would operate and the rights of its citizens.
The events in Figure 5.1 demonstrate how power in Britain has gradually moved
away from the Crown to Parliament and within Parliament to the democratically
elected House of Commons, without a single revolutionary upheaval. Consequently,
the British monarchy has become a constitutional monarchy, which means that it
holds limited power according to the rule of law. As the power of the Crown has
been reduced, the rights of the public have been secured by a series of landmark
decisions, court cases and Acts of Parliament.

key events in the development of the constitution

Magna Carta Act 1215
By forcing King John (1199–1216) to accept
the 63 clauses of Magna Carta, the barons
placed limits on the power of the monarchy.
This established the principle that the Crown
is not above the law. Magna Carta also
contains the first statement of the principle
of habeas corpus, that one cannot be
punished without due process of law

The Bill of Rights Act 1689
In 1688, the last Stuart King,
James II, was overthrown in the
Glorious Revolution because it
was claimed he was trying to
establish an absolutist monarchy.
When Parliament offered the
Crown to James II’s daughter Mary
and her husband William of Orange,
they had to accept the Bill of Rights,
which gave legal force to‘certain
ancient rights and liberties’. These
included the summoning of regular
parliaments, free elections, no taxation
without the consent of Parliament and
parliamentary freedom of speech

Act of Union 1707
Although England, Wales and
Scotland had shared the same
monarch since 1603, the Act of
Union united the Parliament of
Scotland with that of England
and Wales. This created the
United Kingdom, although the
independence of Scottish law
was preserved

Parliament Acts 1911 and 1949
As a result of the House of Lords’ refusal to pass David Lloyd George’s People’s
Budget, the Liberal prime minister H.H. Asquith (1908–16) threatened that he
would ask King George V (1910–35) to flood the House of Lords with Liberal
peers if it did not accept limits on its powers. The House of Lords relented, and
in the 1911 Parliament Act the Lords lost its right of veto. Henceforth the Lords
would not be able to amend financial bills such as the Budget, while it would be
able to delay other bills for only 2 years. The 1949 Parliament Act reduced the
Lords’ right of delay from 2 years to 1 year. The two Parliament Acts established
the democratic legitimacy of Parliament by asserting the primacy of the
Commons over the Lords

Devolution 1997
As a result of referendums
in 1997, Scotland and Wales
established their own
governments and legislatures.
Subsequent legislation has
increased their powers and
stated that they can only be
abolished through referendums
in each country. Critics suggest
that this process is challenging
the unitary basis of the UK
constitution

Brexit 2016
As a result of the 2016
referendum in which the
public voted in favour
of leaving the EU,
parliament enacted
the EU (Withdrawal
Agreement) Act 2020,
so restoring British
sovereignty and carrying
into UK law all former
EU law

Question 2

nature of the uk consitution part 2

Answer 2

The Bill of Rights (1689) is based on the principle that the right of the Crown to
govern derives from a contract made with Parliament that it will govern according
to the rule of law. The acceptance by William and Mary of the Bill of Rights
established the principle of a constitutional monarchy.
The core liberal thinker John Locke provides a philosophical justification for limited
government according to the rule of law in his Two Treatises on Government (1689).
According to Locke:
‘Men being, as has been said, by nature, all free, equal and independent, no one can
be put out of this estate, and subjected to the political power of another, without
his own consent.’
This links to Component 1, Core Political Ideas (page 278).
According to the noted constitutional theorist A.V. Dicey, the ‘twin pillars’ on
which Britain’s uncodified constitution is based are that Parliament is the supreme
law-making body and that government must be according to the rule of law.

Since the UK constitution is uncodified, it is also unentrenched. This means that,
unlike the majority of nation states, which have a codified constitution, the UK does
not possess a single document that establishes the rights of its citizens and the limits
on government and so can be said to represent ultimate power in the state. Instead,
Parliament, as the sovereign law-making body, can enact any legislation for which
there is a parliamentary majority and which would not be deemed unconstitutional,
such as extending the lifetime of a parliament beyond 5 years.
As a result of parliamentary sovereignty, the rights of British citizens are not
protected by the higher law of the constitution as they are in, for example, the
USA. Instead, the rights of British citizens have traditionally been seen as being
negative rights, in that we are free to do whatever has not been forbidden by
Parliament. Our civil liberties are protected by:
l the principle that the government should act according to the rule of law
l the independence of the judiciary from the government and the way in which
judges interpret the law according to the principles of natural justice.

According to Thomas Paine — who in 1776 published Common Sense,
which encouraged the American colonies to declare their independence —
obedience to the rule of law means the difference between autocratic and free
government, ‘For as in absolute governments the King is law, so in free countries
the law ought to be king; and there ought to be no other’.

Since Parliament is the supreme law-making body, the UK has often been referred
to as a unitary state. This contrasts with federal states like the USA, where the
states have certain powers which the central government cannot override. The
transfer of power from Westminster to the Scottish Parliament and the Parliament
of Wales (Senedd Cymru) through devolution could however be seen as a developing
challenge to the principle that the UK is a unitary state.

Question 3

The sources of the UK constitution

Answer 3

Since its development has been evolutionary, the UK
does not possess a codified constitution.
The British constitution has gradually developed over
800 years since Magna Carta. Sir Robin Butler,
Cabinet Secretary (1988–98), even joked that the
British constitution is ‘something we make up as
we go along’. The UK, therefore, has an uncodified
constitution deriving from a variety of sources. The
main sources of the UK constitution are as follows.

Question 4

The sources of the UK constitution - statute law

Answer 4

Momentous Acts of Parliament contribute to the UK’s
uncodified constitution. For example, the Parliament
Act 1911, which removed the House of Lords’ right of
veto, established the principle that Parliament should
reflect the democratic will of the public expressed through the House of Commons.
Another parliamentary statute of enduring importance is the Representation of the
People Act 1928, by which the UK adopted universal suffrage.
Since the election of the Blair government in 1997, a number of reforming Acts
of Parliament have led to the further development of the British constitution

Scotland Act 1998 and
Wales Act 1998

Following the 1997 referendum in which Scotland voted
in favour of devolution, the Scotland Act re-established a
Scottish Parliament. As a result of Wales’ referendum vote
in favour of devolution, it was provided with its own National
Assembly. In subsequent legislation (2020) this became
known as the Senedd (Welsh Parliament)

Human Rights Act 1998

The Human Rights Act incorporates the European Convention
on Human Rights (ECHR) into British law. As a result, public
bodies, including the government, are expected to act in
accordance with the ECHR and judges should interpret the law
according to the principles of the ECHR

House of Lords Act 1999

The House of Lords Act removed all but 92 hereditary peers
from the House of Lords. This ensured that most peers would
now be life peers rather than members of aristocratic families

Equality Act 2010

The Equality Act codifies into one parliamentary statute all
previous anti-discriminatory legislation, so providing the
positive right of equal treatment

Marriage (Same Sex
Couples) Act 2013

This Act legalises same-sex marriage and represents a pivotal
step in the development of LGBT rights

Question 5

The sources of the UK constitution - common law

Answer 5

How the judiciary interprets the meaning of the law contributes to the development
of case law. This is especially important on occasions when statute law is lacking
or unclear. The precedents set in such cases are so far-reaching that they can be said
to contribute to the constitution as common law. Table 5.2 gives some examples.

Bushell’s case (1670)

The presiding judge instructed the jury to find two Quakers guilty of unlawful assembly. The
jury refused to do this and so were fined for contempt of court. One juror, Edward Bushell,
refused to pay the fine and in the resulting case Sir John Vaughan declared in favour of the
jury, stating that a judge ‘may try to open the eyes of the jurors, but not to lead them by the
nose’. Bushell’s case represents a landmark case protecting the independence of a jury

Somerset v Stewart (1772)

When a black slave, James Somerset, was imprisoned by Charles Stewart for having escaped,
lawyers acting for Somerset claimed he had been illegally imprisoned. In his judgment, Lord
Mansfield stated that nothing in English statute law justified slavery and so Somerset could not
be enslaved: ‘It is so odious, that nothing can be suffered to support it, but positive law.’ The
case is momentous because it challenged the legitimacy of slavery in common law long before
its abolition by Act of Parliament (1833). Mansfield reminded the court, ‘We cannot in any of
these points direct the law; the law must rule us.’ This set an important precedent that the
courts must always dispense justice whatever the consequences

R v R (1991)

R v R established the principle in common law that a husband could be guilty of raping his
wife. Until this case there was no legal safeguard against rape in marriage

Question 6

The sources of the UK constitution - Conventions

Answer 6

Although they are not recognised in statute law, a number of conventions have
developed which, like common law, have achieved the force of constitutional
precedence.

l There is, for example, no legal requirement that a member of the House of
Lords cannot be prime minister. However, in 1963, Lord Home recognised
that this would be constitutionally unacceptable and he resigned his peerage so
that he could fight a by-election to enter the House of Commons as Sir Alec
Douglas-Home.
l According to the Salisbury Convention, the House of Lords does not oppose the
second or third reading of legislation that was in the winning party’s manifesto.
This convention was named after Robert Gascoyne-Cecil, the fifth Marquess of
Salisbury. It dates to the Labour government of 1945–51 when Lord Salisbury,
the leader of the Conservative Party in the House of Lords, accepted that the
House of Lords would not use its Conservative majority to try to wreck Labour’s
manifesto commitments since Labour had achieved such a strong mandate from
the British public in the 1945 general election.
l The principle of collective ministerial responsibility is,
likewise, a convention that has developed as a way of ensuring
that governments survive rather than fragment.
l The Ministerial Code of Conduct (1997 and regularly
updated) explains the role of government ministers, including
the circumstances in which they would be expected to
resign. However, these are simply rules, which are not legally
enforceable by parliamentary statute.
l In 2003, by allowing the House of Commons to vote on
whether to support military action against Iraq, Tony Blair
established the convention that henceforth Parliament should
be consulted over the large-scale commitment of British
forces to military operations.
l Another convention that has developed in recent years is that
the public should be consulted in a referendum to legitimise
proposed changes to the constitution.

Question 7

The sources of the UK constitution - Landmark decisions

Answer 7

Some historical events also contribute towards the constitution.
l Magna Carta (1215), by recognising that limits can be
placed on the authority of the Crown, has influenced the
development of the rule of law.
Sir Alec Douglas-Home renounced his peerage so
that he could enter the House of Commons. He
became prime minister in October 1963
l The Petition of Right (1628), which Parliament presented to King Charles I,
sets out core rights including freedom from arbitrary imprisonment and the
requirement that Parliament grant taxation.
l The Bill of Rights (1689) asserts the subordination of the Crown to Parliament,
as well as condemning ‘illegal and cruel punishments’.

Question 8

The sources of the UK constitution - Authoritative works

Answer 8

There are a small number of influential works that are said to be part of the
constitution.
l Walter Bagehot, in The English Constitution (1867), explains the relationship
between the monarchy, the legislature and the executive, which makes this work
a core constitutional text.
l A.V. Dicey’s Introduction to the Law of the Constitution (1885) is similarly important
because Dicey explains how the British constitution rests upon the ‘twin pillars’
of parliamentary sovereignty and the rule of law.
l Erskine May (1815–86), a clerk of the House of Commons, published Parliamentary
Practice in 1844. It explains in minute detail how Parliament operates and is now
in its twenty-fifth updated edition (2022). It is so authoritative that it is regarded
as being part of the UK constitution. In March 2019 the then speaker of the
House of Commons, John Bercow, used one of its principle that a motion or
amendment ‘which is the same in substance’ should not be reintroduced to stop
Theresa May reintroducing her Brexit deal into Parliament in an unchanged
state.
Since the constitution is constantly evolving, new authoritative works can become
part of it. For example, in 2010, cabinet secretary Gus O’Donnell produced such
a complete guide to how a coalition government should be established that it has
achieved constitutional significance.

Question 9

The sources of the UK constitution - Treaties

Answer 9

As a result of the European Communities Act 1972, the UK accepted the Treaty of
Accession, which the prime minister, Edward Heath, had negotiated. This made the
UK a signatory to the Treaty of Rome (1957) and meant that the UK accepted all
existing European Community law. The UK subsequently ratified several other EU
treaties, such as the Single European Act 1986, the Maastricht Treaty (1993) and the
Lisbon Treaty (2009), further changing UK law. However, the EU Withdrawal Act
2020 shows that Parliament retains the right not only to make but to repeal treaties.

Question 10

Relations between the sources of the UK
constitution

Answer 10

Since the UK constitution derives from so many different sources, there can be
competing jurisdictions between them. Parliamentary statute law has traditionally
been seen as the ultimate source of authority since an Act of Parliament can supersede
even landmark decisions such as Magna Carta. A parliamentary statute also takes
precedence over works of authority, conventions and the common law. However, in
the Factortame case (1991), the Law Lords declared that in cases where the EU had
legislated, EU law took precedence over domestic law. Although this did put limits on
parliamentary sovereignty, this was only in areas where the UK had pooled sovereignty
with the EU. In those areas where the UK retained sovereignty, such as negotiating
treaties, parliamentary statute remained supreme, which is why Westminster was able
to enact legislation withdrawing the UK from the European Union.

Question 11

The development of the constitution
since 1997 - The Blair government (1997–2007)

Answer 11

Although at the beginning of the twentieth century the Asquith governments
(1908–16) profoundly changed the constitution by asserting the primacy of the
House of Commons over the House of Lords, for most of the rest of the century
the reform of the constitution was not a major political issue. That changed with
the election of the government of Tony Blair in 1997. Blair was a modernising and
progressive Labour leader, with a parliamentary majority of 179 seats, facing a weak
Conservative opposition that had just suffered its biggest general election defeat
since 1832.
For Blair, the British constitution was urgently in need of reform. Power was
too centralised in Westminster and the rights of the citizens were insufficiently
protected. Since the government was so remote and unaccountable, the public
had become disengaged from politics. New Labour wanted to reinvigorate
democracy through extensive constitutional reforms. As Blair put it, ‘modernisation
is the key’.

‘We wish to change politics itself, to bridge the gap between governed and
government and to try to address the deep-seated and damaging disaffection
with politics which has grown up in recent years.’
Tony Blair, May 1996
His constitutional reform programme focused on the following connected themes:
l Decentralisation Since so much power had been focused on Westminster
(especially during the prime ministership of Margaret Thatcher, 1979–90),
power should be devolved back to the people. Scotland and Wales would be
offered their own elected governments, and cities and towns would be given the
opportunity to elect their own mayors.
l Democratisation The public should be given more influence over decision
making through the greater use of referendums on important constitutional
issues. To encourage greater democracy, the House of Lords would be reformed.
l Transparency To encourage greater trust in government, the role of the senior
judiciary would be reformed. A Freedom of Information Act would also open up
government, making it more accountable to the public.
l Rights protection Since British citizens’ human rights were not protected
by a codified constitution, the government committed to incorporating the
European Convention on Human Rights into British law. This would provide
the judiciary with an important new statute, protecting and advancing the
public’s civil liberties.

Question 12

The development of the constitution
since 1997 : The Blair government (1997–2007) - Devolution/decentralisation

Answer 12

Labour’s flagship constitutional reform in 1997 was devolution. This would provide
Scotland and Wales with greater powers to govern themselves. In 1997, referendums
were held in Scotland and Wales over whether they wished to have their own elected
governments. Scotland voted by a large majority in favour of having its own
parliament, while Wales voted in favour of its own assembly by a tiny margin. In
1998, as part of the Good Friday Agreement, Northern Ireland also voted in a
referendum in favour of power sharing between unionists and republicans in a
devolved assembly.
The aim of these reforms was to provide the constituent parts of the UK with greater
self-determination. Establishing new legislatures and executives in Edinburgh,
Cardiff and Belfast would ensure that policies could be more exactly suited to the
needs of the people of Scotland, Wales and Northern Ireland. Giving Scotland and
Wales the opportunity to vote in favour of devolution recognised that from 1979 to
1997 they had been governed from Westminster by Conservative governments when
they had consistently voted Labour. In Northern Ireland the offer of devolution was
an integral part of the peace process.
Since the establishment of these governments and legislatures in Scotland and Wales
they have acquired significant new powers, suggesting that here devolution has been
successful. In Northern Ireland, the difficulty of power sharing between republicans
and unionists has undermined success. Plans to move towards English devolution
were stalled when, in 2004, the North East rejected proposals for a regional assembly
in a referendum by 78% to 22%.
The government also allowed many towns, cities and regions to elect their own
mayors, to make local government more accountable to the public. In 1998, London
voted in a referendum in favour of a Greater London Authority comprising an elected mayor of London and a London Assembly, which can veto the mayor’s proposals
with a two-thirds majority. The Local Government Act 2000 then enabled local
authorities to offer their voters a referendum over whether they wanted their own
directly elected mayors.
Supporters of the principle of elected mayors argue that they encourage greater
accountability and transparency in local government. However, elected mayors have
failed to reinvigorate enthusiasm for democracy in the way intended. In 2021, for
example, Andy Street was re-elected mayor of the West Midlands on a turnout of
31.2%. In Greater Manchester, where Andy Burnham was re-elected, the turnout
was 34.7% and in London, where Sadiq Khan was re-elected, the turnout was 42.2%.
By 2022, the electorate had rejected the opportunity to have an elected mayor in 37
of the 54 referendums that were called. In May 2022, in a referendum Bristol voted
to abolish the position of elected mayor by 59% to 41% on a turnout of only 29%.
The extent to which devolution and decentralisation have re-engaged democratic
participation thus remains contested.

Question 13

The development of the constitution
since 1997 : The Blair government (1997–2007) - House of Lords reform

Answer 13

In 1999, when the government introduced legislation to reform the Upper House,
1,330 peers were eligible to attend the House of Lords. The majority were hereditary
peers, which meant that their right to sit in the House of Lords derived from their
membership of one of the aristocratic families of the UK. The hereditary peers
outnumbered the life peers, who had been appointed to the Lords because of their
services to the nation.

The hereditary principle undermined the legitimacy
of the House of Lords and so the Blair government
determined to remove the right of the hereditary peers
to attend. Life peers became, by far, the biggest group
in the House of Lords. However, to persuade the
House of Lords to accept this reform, the government
compromised by allowing the hereditary peers to elect
92 of their number who would continue to sit in the
House of Lords. Whenever a hereditary peer dies or
resigns, another Lord is elected to that position by
the House of Lords. Ironically, the hereditary peers
constitute the only democratic element of the House
of Lords.

The reform of the House of Lords has affected its
membership rather than its powers. The government’s
intention was to make it a more professional body
by ensuring that membership became based on
merit and accomplishment rather than birth. In
2000, a House of Lords Appointments Commission
(HOLAC) was established, which would nominate
a small proportion of crossbench life peers. While
most appointments are made by the monarch on the
recommendation of the prime minister, the HOLAC
does scrutinise these appointments and can publicly
express disapproval.

These reforms have certainly made the House of Lords a much more professional
body. However, they have also been highly controversial. Although the government
intended the House of Lords Act 1999 to be a first-stage reform, no elected element
was introduced into the House of Lords. This means that although the House
of Lords can now claim greater expertise, it still lacks democratic legitimacy. In
addition, most life peers are still appointed on the recommendation of the prime
minister, and critics claim that too many appointments to the Lords are made
through political patronage and that this amounts to democratic travesty. In 2022,
Keir Starmer sought to address this problem by promising to abolish the House of
Lords and replace it with an elected Assembly of Nations and Regions.

Critics also claim that the recommendation process has led to the House of Lords
become much too large and unwieldy. In January 2022 there were 771 members
of the House of Lords, and since there is no upper limit on its membership, that
number could increase further.
Table 5.3 illustrates how long-serving prime ministers like Tony Blair can have a
dramatic impact on the composition of the Lords that can last long after they retire
from office. It also highlights how all prime ministers favour appointments from
their own party, encouraging allegations of political cronyism.

boris johnoson appionted : 42/73 conservative peers
tony blair appionted : 162/369

Although it might seem obvious that both chambers of Parliament should be
accountable to the public, an elected Lords could also have damaging consequences.
l Since the House of Commons can claim democratic legitimacy and the Lords
cannot, the Commons will always prevail.
l If both houses of Parliament were able to claim legitimacy, there would be the
potential for gridlock if they disagreed.
l Conversely, if a political party won majorities in both houses, then the scrutinising
strengths of the House of Lords might be reduced.
l Since peers can, if they wish, sit for life, they can be much less influenced by the
party whips to follow party policy. This ensures that the Lords provides a reservoir
of independent thinking, which might not be the case if they were elected.
Supporters of an appointed House of Lords also note as a result of the House of Lords
Reform Act 2014, life peers may now resign or be removed if they fail to attend.
By February 2022, 146 peers had retired from the Lords and 8 had been removed.
This reform has made it easier to invigorate the Lords membership with fresh peers.

Question 14

in focus - heriditary peers

Answer 14

Tony Blair appointed 374 life peers in 10 years and David Cameron 245 in 6 years.
Although life peers are expected to be appointed on merit, there is, for any prime minister,
the temptation to appoint political allies and party supporters to the House of Lords. The
Conservative leader William Hague (1997–2001) accused Blair of creating a ‘house of cronies’,
and in 2006 the prime minister was questioned by police over allegations that donors to the
Labour Party had subsequently been awarded life peerages. This became known as the ‘cash
for honours’ scandal. Although no charges were brought against Blair, it demonstrates how
making the Lords an almost wholly appointed chamber could encourage political cronyism.
David Cameron was also widely criticised for his resignation honours list, in which he appointed
13 Conservative life peers and just 1 Labour life peer. When he was in office from 2019 to
2022 Boris Johnson recommended that 86 new life peers be appointed. Although some
appointments were uncontested, such as that of Kenneth Clarke, a former Conservative
frontbencher and leading critic of Johnson, others such as Peter Cruddas, a major donor to
the Conservative Party, provoked controversy. Despite HOLAC criticising his recommendation,
Cruddas still joined the Lords as a life peer. Boris Johnson was further criticised for
recommending the Russian owner of the Evening Standard, Evgeny Lebedev, for a life peerage,
overriding HOLAC concerns about security risks.

Question 15

The development of the constitution
since 1997 : The Blair government (1997–2007) - Electoral reform

Answer 15

Although Tony Blair, as leader of the opposition, had expressed interest in electoral
reform for Westminster elections, the massive parliamentary majority Labour
achieved in the 1997 general election reduced his enthusiasm. Although the
government did task Roy Jenkins, the former Labour minister and founder of the
Social Democrat Party, to investigate alternatives to first past-the-post (FPTP), it
ignored the report’s recommendation that FPTP should be replaced with a form of
the alternative vote (AV).
Labour was, however, prepared to adopt new electoral systems for the new devolved
assemblies and elected mayors and regional assemblies to encourage voter choice and
ensure a fairer balance of influence. The Scottish Parliament and Welsh Assembly
would be elected by means of the additional member system (AMS) and the
Northern Ireland Assembly by the single transferable vote (STV). The AMS would
also be used for elections to the London Assembly and the supplementary vote (SV)
would be used to elect mayors.
Blair’s record on electoral reform was thus unimpressive. Some critics suggested that
the government had put political expediency before principle.

Question 16

The development of the constitution
since 1997 : The Blair government (1997–2007) - The Human Rights Act

Answer 16

In 1998 the Human Rights Act (HRA) was enacted, which incorporated the
European Convention on Human Rights into British law. The HRA came into
force in 2000 and is important because for the first time it positively states the rights

that British citizens can claim. The Act provides the judiciary with important new
powers to protect and advance our civil liberties.
l In the Laporte case (2006), for example, Article 8 of the HRA, the right to a
private life, and Article 10, the right to freedom of expression, were used to
show that the police had acted illegally when they stopped 120 anti-Iraq War
protestors from reaching RAF Fairford in 2003.
l In HJ and HT v Home Office (2010) Lord Hope used the HRA to argue that the
Home Office had been wrong to deny asylum to two gay people trying to escape
persecution in their own country. The Home Office’s defence that they could
have hidden their sexuality was invalid because ‘to compel a homosexual person
to pretend that his sexuality does not exist or suppress the behaviour by which to
manifest itself is to deny his fundamental right to be who he is’.
l In 2012, the US government demanded the extradition of Gary McKinnon
on accusations that he had hacked NASA and the Pentagon as he searched for
information on UFOs. Because Mr McKinnon has Asperger’s, the home secretary,
Theresa May, refused the application since the prospect of trial and imprisonment
in the USA would be a serious infringement of Article 3 of the Human Rights
Act, which protects individuals from ‘inhuman and degrading’ treatment.
Incorporating the European Convention on Human Rights into British law has also
led to the better protection of our civil liberties:

l Public bodies, such as the government, are now expected to act in accordance
with the HRA.
l When Parliament legislates, it should do so, as much as possible, in accordance
with the principles of the HRA.
However, the constitutional significance of the Human Rights Act should not be
exaggerated. Since it is an Act of Parliament, it does not represent the sort of higher
constitutional law to be found in, for example, the US Bill of Rights. Parliament has
the right to repeal the Act, and Parliament can still enact legislation even if it conflicts
with the HRA. In such circumstances, the judiciary would issue a formal statement
of incompatibility, but the new law would still stand. Article 15 of the HRA also
gives the government the right to suspend, or derogate from, certain of its provisions,
as the Blair government did after 9/11. In 2022, the Johnson government proposed a
British bill of rights that would modify certain provisions of the Human Rights Act.
The strengths and limitations of the HRA are illustrated by the Belmarsh case (2004).
Following the 9/11 terrorist attacks on the USA, the Blair government suspended
Article 5, the right to liberty to keep foreign terrorist suspects in custody without
charge. Parliament also enacted the Anti-terrorism, Crime and Security Act 2001,
which gave the government the authority to keep foreign terrorist suspects in prison
indefinitely.
In the resulting Belmarsh case, the judges issued a formal statement of incompatibility,
declaring that the Anti-terrorism, Crime and Security Act was contrary to Article 14,
freedom from discrimination, of the HRA since foreign suspects were being treated
differently to British suspects. The government initially ignored the ruling, but then
released the suspects because of the unfavourable publicity. This could be seen as
a victory for the HRA. However, soon after Parliament enacted the Prevention
of Terrorism Act 2005, which allowed the government to limit the freedom of
movement of all terrorist suspects through control orders. This demonstrates the
way in which parliamentary sovereignty impacts the effectiveness of the HRA.

Question 17

The development of the constitution
since 1997 : The Blair government (1997–2007) - Supreme Court

Answer 17

The last major constitutional reform of the Blair government was the Constitutional
Reform Act 2005. Although the judiciary should be independent from the
legislature and the executive, there were several anomalies in the constitution. The
Lord Chancellor was not only head of the judiciary but also a member of the cabinet
(executive) and presided over the House of Lords (the legislature). The most senior
judges also sat in the House of Lords (although they did not vote on legislation),
making it the final court of appeal.
In order to guarantee the separation of powers, the Constitutional Reform Act
achieved the following:
l It ended the House of Lords’ judicial function and in its place established the
Supreme Court. The Supreme Court opened in 2009. Its members dispense
justice in a more transparent and conspicuous way than the Law Lords.
l In order to make the appointment of judges more transparent, the Lord
Chancellor’s right to nominate judges was transferred to the Judicial Appointments
Commission (JAC), which makes recommendations to the justice secretary.
l The Lord Chancellor’s role presiding over the House of Lords was removed and
the new head of the judiciary became the non-political Lord Chief Justice. The
Lord Chancellor’s functions merged with those of the justice secretary

Question 18

The coalition government (2010–15)

Answer 18

The government of Gordon Brown (2007–10) was so preoccupied with confronting
the global economic crisis that it did not introduce any further major constitutional
reforms. However, the Conservative–Liberal Democrat coalition (2010–15) did
reform the constitution further. David Cameron was more progressive than former
Conservative leaders. He also had to make constitutional reform a priority if he
wanted to bring the Liberal Democrats, committed to updating the constitution,
into coalition government.

Question 19

The coalition government (2010–15) - Fixed-term Parliaments Act 2011

Answer 19

A major royal prerogative power of the prime minister has traditionally been deciding
the date of a general election. This would have been a highly contentious decision
for a coalition prime minister and so the Fixed-term Parliaments Act legislated that a
general election should be held exactly 5 years after the last general election. As well
as providing the government with greater stability, the Act made it more difficult
for a prime minister to call a snap general election for political advantage at a time
of their choosing.

However, the Act does allow a general election if the government loses a vote of
confidence and a new government that has the confidence of the House of Commons
cannot be established or if a two-thirds majority of the House of Commons agrees
to a general election. In 2017 and 2019, Theresa May and Boris Johnson were thus
able to call early general elections because they gained the necessary support of the
House of Commons. The practical impact of the Act was therefore not that far-
reaching and in 2022 the Act was repealed, reinstating the prime minister’s right to
decide the timing of the general election.

Question 20

The coalition government (2010–15) - Electoral reform

Answer 20

Since the Labour and Conservative parties benefit most from FPTP, electoral reform
at Westminster is not a priority for them. The Blair government ignored the
recommendations of the Jenkins Commission Report (1998) to replace FPTP with
a new system based on the alternative vote.
However, providing the opportunity for electoral reform was the price that David
Cameron had to pay to form a coalition with the Liberal Democrats in 2010. The
coalition agreement stated that the government would call a referendum offering
the public the opportunity to replace FPTP with the AV. In the 2011 referendum,
opponents of change successfully portrayed the AV system as complicated and
lacking in transparency. David Cameron even called it ‘undemocratic, obscure,
unfair and crazy’, and the electorate voted 68% to 32% in favour of retaining FPTP
on a turnout of just 42%.
Critics of Nick Clegg claimed that he should have negotiated for a referendum on
the additional member system or the single transferable vote. These options might
have been more appealing, while Cameron knew that a referendum on the AV
would be unlikely to generate much support. Whether or not this is a fair criticism,
the case for electoral reform was strongly put back by this convincing endorsement
of FPTP.

Question 21

The coalition government (2010–15) - Parliamentary reform

Answer 21

Possibly the coalition’s most positive legacy was giving backbench MPs more
influence and addressing the government’s dominance in the House of Commons.
Most of the recommendations of the Wright Committee (2009) were enacted. The
most significant points are as follows.
l A Parliamentary Backbench Committee was established to give backbench MPs
more control over what is debated in Parliament.
l The membership of select committees would no longer be determined by the
whips. Instead, the membership and chairs would be elected by MPs in a secret
ballot. This has increased the legitimacy of select committees and made them
more confident when scrutinising government.
l In order to address criticisms that Parliament was irrelevant to people’s everyday
lives, electronic petitions were introduced, which allow the public to directly
lobby Parliament. Parliament does not have to legislate on these issues, but if an
e-petition reaches 100,000 signatures, it is very likely the issue will be debated.

Question 22

The coalition government (2010–15) - Further devolution

Answer 22

Like the Blair government, the coalition was keen to decentralise power to bring
decision making closer to the public.

l In a referendum in 2011, Wales voted in favour of its Assembly being given
primary legislative power in some areas. These provisions were enacted by the
Wales Act 2014. In 2015 Wales was also given income tax-varying powers.
l Further powers were also devolved to Scotland, including the right to vary
income tax by up to 10p. In addition, the Scottish government was given the
authority to borrow up to £5 billion.

Question 23

The coalition government (2010–15) - Power of recall

Answer 23

To help restore trust in politicians, the Recall of MPs Act was passed in 2015. Its aim is
to make MPs more accountable by allowing their constituents to demand a by-election
if an MP is sentenced to prison, is suspended from the House of Commons for at
minimum 10 sitting days, or is convicted of making ‘false or misleading’ parliamentary
allowances claims. For a recall petition to be successful, 10% of constituents must sign it.
The Act has been used on two occasions to trigger a by-election.
l In 2019 the Peterborough MP Fiona Onasanya lied about a speeding offence
and was sentenced to 3 months in prison for perverting the course of justice.
When 25% of registered voters demanded her recall, she was removed as MP for
Peterborough. She did not stand in the subsequent by-election.
l In 2019 the MP for Brecon and Radnorshire, Chris Davies, was convicted of
making fraudulent expenses claims for his constituency office redecoration.
When 19% of registered electors signed a recall petition, this prompted a by-
election. Davies stood in the election but was defeated.

Question 24

The coalition government (2010–15) - Elected police and crime commissioners

Answer 24

A further example of decentralisation was the coalition’s introduction of elected
police and crime commissioners, who would be accountable to the public for regional
policing. However, the turnout in elections for police and crime commissioners
has generally been so low that there are concerns they lack a sufficient democratic
mandate to legitimately carry out their functions

2021

Dyfed-Powys
Wiltshire
50.6% — highest national turnout
16.6% — lowest national turnout

Question 25

The coalition government (2010–15)

Answer 25

After David Cameron’s success in the 2015 general election, the Conservatives
introduced several measures that significantly impacted the constitution. Some
of these reforms were a response to political circumstances. For example, fearing
that a strong showing by UKIP might diminish Conservative support in the 2015
general election, and in a bid to quell Conservative divisions over the EU, Cameron
committed the Conservative manifesto to promising an ‘in/out’ EU referendum.
Other constitutional reforms carried more conviction. Like Tony Blair, Cameron and
his chancellor of the exchequer, George Osborne, were in favour of decentralising
power to local government. Elected mayors were duly introduced, without
referendums, in the West Midlands, Greater Manchester, West of England, Tees
Valley, Cambridgeshire and Peterborough, and Liverpool City Region. By 2022, the
number had risen to nine (Sheffield City Region, North of Tyne and West Yorkshire),
with the prospect of more to come. The powers of these new ‘metropolitan mayors’

are extensive, covering areas such as housing, welfare and transport. In 2016, Greater
Manchester’s elected mayor became responsible for a £6 billion social care and health
budget. However, the decision by Bristol in a referendum to abolish its elected mayor
after 10 years suggests that the case for elected mayors is still contested.
The government also addressed the West Lothian question. Since the establishment
of governments in Scotland, Wales and Northern Ireland, concerns had been raised
that England was being disadvantaged by this constitutional arrangement. MPs
from Scotland, Wales and Northern Ireland still attended Westminster, where they
could vote on legislation that affected England. MPs for English constituencies at
Westminster, however, could not vote on issues now controlled by governments in
Scotland, Wales and Northern Ireland. As a result of this constitutional anomaly, in
2015 a Legislative Grand Committee was established. Its membership reflected the
composition of the parties in England and its consent was necessary for legislation
that affected only England. This procedure, known as English Votes for English
Laws (EVEL), was in place until 2020 when it was suspended during the Covid-19
pandemic. In 2021, a government motion to abolish EVEL was approved by the
House of Commons. Consequently, the West Lothian question remains unresolved.

Question 26

The impact of devolution on the United
Kingdom

Answer 26

In the 1997 general election, Labour committed to providing Wales and Scotland
with referendums on whether they wanted powers to be devolved to them from
Westminster. Scotland, which had had its own parliament until the Act of Union in
1707, voted decisively in favour of the restoration of a Scottish Parliament. Wales,
which had less of a political sense of its own identity, only narrowly supported the
establishment of a Welsh Assembly. The results of these referendums are shown in

1997

Scotland
Yes to devolution — 74.3%
No to devolution — 25.7%
Turnout — 60.1%

Wales
Yes to devolution — 50.3%
No to devolution — 49.7%
Turnout — 50.2%

According to Tony Blair, devolution was an essential part of New Labour’s
programme of constitutional modernisation since it would bring decision making
closer to the people. It would also, Blair hoped, strengthen the United Kingdom by
satisfying nationalist demands for greater self-determination. However, devolution
has raised complicated constitutional questions and threatened the future of the UK
in ways that Blair failed to predict.
l In the 2011 Holyrood election, the Scottish National Party replaced Labour as
the dominant political force in Scotland. With its majority of 69/129 seats it
had a mandate for a referendum on independence, which Westminster granted.
Although the 2014 referendum provided a 55%/45% vote in favour of the union,
Scotland’s strong majority in favour of remaining in the EU in 2016 means that
the SNP stays committed to a further independence referendum.
l The way in which Scotland and Wales have acquired new devolved powers
suggests that devolution is an ongoing process, which could result in a quasi-
federal arrangement replacing the unitary nature of the British state.
l Questions have been raised about why England, which comprises 84% of the UK
population (2022), has not been granted its own devolved powers. This has all
contributed to an unbalanced sharing of political power within the UK.

Question 27

The impact of devolution on the United
Kingdom - Scotland

Answer 27

The Scotland Act 1998, which established the Scottish Parliament and executive,
devolved several primary legislative powers from Westminster to Scotland. These
included:
l local government
l housing
l environment
l law and order
l education
l health
l income tax-varying powers of 3p in the pound.

Powers not devolved to Scotland are said to be ‘reserved’ to Westminster. These
include foreign policy, defence and immigration, since if Scotland had control over
these policies it would essentially be a nation state.
The Scotland Act 2012 further increased Holyrood’s powers. These include:
l varying the rate of income tax by up to 10p in the pound
l providing the Scottish government with the authority to borrow up to £5 billion.
When it looked as though Scotland might vote for independence in 2014 (Table 5.6),
all the political leaders in the UK (David Cameron, Nick Clegg and Ed Miliband)
quickly promised further ‘extensive new powers’ to Scotland if independence was
rejected. At the time these proposals were referred to as ‘devo max’.

Table 5.6 Result of the
independence for Scotland
referendum, 2014

No to
independence
Yes to
independence
Turnout
55.3%
44.7%
84.6%

As a result of this commitment, the Smith Commission was established. Its
recommendations formed the basis of the Scotland Act 2016, which transferred
more reserved powers to Scotland over a wide range of domestic areas, including:
l determining abortion laws
l deciding air passenger duty
l determining speed limits.
Significantly, the Act stated that the Scottish Parliament and executive were now
permanent features of the UK constitution, which can only be abolished by a
referendum. This implies that Scotland now enjoys more than just devolved powers
and that the UK is much closer to becoming a quasi-federal state, with Westminster

unable to abolish the Scottish Parliament and
executive by Act of Parliament.
Devolution has given Scotland control over several
important areas of domestic policy. It could be
argued that this is a major strength of devolution
because it enables the Scottish Parliament to
legislate directly on issues that concern Scotland.
For example, in 2016 NHS Health Scotland
estimated that sales of alcohol per week per adult
were 17% higher in Scotland than in Wales or
England. Consequently, in 2018, the Scottish
Parliament introduced a minimum alcohol price
of 50p per unit to discourage excessive drinking.

Question 28

The impact of devolution on the United
Kingdom - going its own way (scotland)

Answer 28

Holyrood has also enabled Scotland to develop
its own approach to important domestic questions such as health, education and
democracy:
The Scotland Act 2016 recognises the Scottish Parliament and
government as a permanent fixture of the British constitution
l Scotland was the first part of the UK to ban smoking in public places in 2006.
l Scotland offers free university education to Scottish residents.
l The voting age has been reduced to 16 for local elections, referendums and
elections to the Scottish Parliament.
l Since 2011 medical prescriptions have been free in Scotland.
The Covid-19 pandemic highlights the ways in which devolution has encouraged
a separate identity among the constituent parts of the UK. Since the devolved
governments determined how families, schools, shops and care homes should
respond to the crisis, they have increasingly become the governments the public
most identify with. As decisions made at Westminster become less relevant in
Scotland, people’s commitment to the Union is likely to weaken.
Whether or not the devolution of more powers to Scotland will ultimately lead to
separation or satisfy demands for more self-government is still open to question.
There is considerable support for the union, especially in the northeast of Scotland
and in the England-facing lowlands.
Table 5.7 shows how the SNP has significantly increased its support in elections
to the Scottish Parliament since 2003 to become the leading political force at
Holyrood.

Table 5.7 The number of SNP and Labour MSPs at Holyrood out of a total of 129

2003 - SNP - 27 labour - 50
2021 - SNP - 64 labour - 22

However, the collapse of support for Labour in Scotland and the remarkable growth
in SNP support suggests that the union is vulnerable. The SNP won 48 of the 59
Scottish seats at Westminster in the 2019 general election (Table 5.8) and 64 of the
129 seats at Holyrood in the 2021 election. As Scotland also voted overwhelmingly
in favour of remaining in the European Union (62% Yes/38% No) in 2016, demands
for a second referendum remain strong since the SNP argue that the post-Brexit
United Kingdom is very different from the one that Scots voted for in 2014. In 2022,
Nicola Sturgeon announced that she wanted a second independence referendum on
19 October 2023. Journalist and historian Andrew Marr suggested that England and
Scotland have become ‘like a piece of pizza which is being pulled apart and only
connected by strings of molten cheese’. However, the UK Supreme Court rejected
Sturgeon’s calls for a second referendum.

Results of the 2015, 2017, 2019 and 2024 general elections in Scotland.

2015 - SNP 56 seats.
conservatives, labour and lib dem all earned one seat.

2017 - SNP 35 seats.
conservative - 13 seats
labour - 7 seats
lib dem - 4 seats

2019 - SNP - 48 seats
conservatives - 6 seats
labour - 1 seats
lib dem - 4 seats

2024 seats
SNP - 9 seats
conservative - 5 seats
labour - 37 seats
lib dem - 6 seats

Question 29

Sturgeon and
the Supreme
Court

Answer 29

In 2022, the UK Supreme
Court rejected Nicola
Sturgeon’s calls for a
second independence
referendum as not within
the jurisdiction of the
Scottish government.
Since Sturgeon was
such a dominant force
in the cause of Scottish
independence, unionist
parties in Scotland
were empowered by her
surprise resignation in
2023. Labour, led by
Anas Sarwar, hoped to
capitalise on the change in
leadership by challenging
the SNP’s policies.

Question 30

The impact of devolution on the United
Kingdom - wales

Answer 30

The independence movement has had significantly less impact in Wales than in
Scotland. This may be because Wales was absorbed into the English state in the
medieval period and so did not develop a distinct legal system, while medieval and
Tudor monarchs often boasted of their Welsh ancestry.
FLUELLEN: and I do believe your majesty takes no scorn to wear the leek upon Saint
Tavy’s day.
KING HENRY V: I wear it for a memorable honour; For I am Welsh, you know, good
countryman.
William Shakespeare, Henry V

The Labour Party also has very firm roots in English-speaking South Wales and
Plaid Cymru (the ‘Party of Wales’) has generally won most of its support in the
Welsh-speaking parts of North Wales. As a result, Welsh nationalism has not been
able to make the same progress across the country as Scottish nationalism did in the
2015 general election (Table 5.9). Its support has remained relatively even, and it has
only rarely achieved more than 10% of the popular vote in Wales.
In the 1997 referendum, therefore, Wales was offered less extensive devolved
powers than Scotland. The Government of Wales Act established a Welsh National
Assembly and a Welsh executive, but Wales was not granted any primary legislative
authority. Instead, Wales was simply given administrative powers in areas such as
education, health, transport and agriculture. In effect, Wales was just being given
the power to decide how to implement Acts of Parliament that had been passed at
Westminster.
Like Scotland, however, Wales has steadily been granted more devolved powers.
This is not because of a surge in support for Welsh nationalism but more to do with
ensuring a more even balance of power in the United Kingdom. The coalition and
the Conservative government elected in 2015 were also committed to encouraging
regional initiative and so this provided further justification for increasing the
authority of the Welsh Assembly and executive.

Table 5.9 General election
support for Plaid Cymru

General
election
Number of
seats and %
of the vote in
Wales
1987 - 3 seats (7.9%)
1997 - 4 seats (10%)
2017 - 4 seats (10.4%)
2019 - 4 seats (9.9%)
2024 - 4 seats (14.8%)

The Government of Wales Act 2006 separated the executive from the legislature,
gave it limited powers of primary legislation and provided for another referendum
to be held on whether Wales should be allowed further devolved powers. The
referendum was held in 2011 and although the turnout was a disappointing 35.4%,
the vote was decisively in favour of Wales being given the power to enact primary
legislation in all areas where power had been devolved to it, including education and
health (Table 5.10).
As a result, the Wales Act 2014 devolved more power to Wales, including control
of a number of taxes, including stamp duty, land tax and landfill tax. The Act also
changed the name of the Welsh Assembly Government to the Welsh Government,
symbolising its growing significance.
A further Wales Act 2017 gave Wales the right to vary income tax by
up to 10p in the pound, as well as giving the Welsh Assembly new
primary legislative powers over electoral arrangements, transport and
energy. Like the Scotland Act 2016, it stated that the Welsh government
is a permanent feature of the UK constitution that can no longer be
abolished by an Act of the Westminster Parliament but would require
the consent of the Welsh people in a referendum. In 2020, the Welsh
Assembly became known as the Welsh Parliament (Senedd Cymru),
further highlighting its growing status as a fundamental part of the
UK constitution.

Table 5.10 Welsh referendum
2011: Do you want the
Assembly now to be able to
make laws on all matters in
the 20 subject areas it has
powers for?

Yes - 63.5%
No - 36.5%

Wales is consistently more Labour voting than England and so a major
advantage of devolution is that Labour governments in Wales have
been able to introduce legislation which reflects the more left-wing orientation of
Welsh politics, such as free prescriptions in 2007. In addition:
l Wales was the first part of the UK to introduce a single-use plastic bag charge in
2011
l Wales introduced an opt-out organ donor scheme ahead of the rest of the UK
(2015)
l in 2019 Wales became the first country in the world to declare a ‘climate
emergency’
l in 2021, the Welsh government announced that ‘targeted green investment of
more than £160 million revenue and a total investment of £1.8 billion capital
will be committed over the next three years’
l during the Covid-19 pandemic the Welsh government, like the other devolved
governments, provided the main leadership in responding to the crisis.
Although Wales has acquired greater devolved powers, there has not been notable
growth in support for an independent Wales. Significantly, Labour in Wales has
proved rather more resilient than Labour in Scotland, and Plaid Cymru (the Party
of Wales) has not achieved a breakthrough in either the Westminster Parliament or
the Senedd (Table 5.11).

Table 5.11 2021 Senedd election results (46.6% turnout), 60 seats total

Labour - 39.9% - 30 seats
Conservative - 26.1% - 16 seats
Plaid Cymru (the Party of Wales) - 20.7% - 13 seats
Liberal Democrat - 4.3% - 1 seats

However, the recognised permanence of the devolution settlement in both Wales
and Scotland does suggest that the unitary nature of the UK constitution is gradually
being replaced with a more federal structure in which the central government’s
sovereignty is restricted by the permanent transfer of powers to two constituent
parts of the United Kingdom.

Question 31

The impact of devolution on the United
Kingdom - Northern Ireland

Answer 31

The history of devolution in Northern Ireland has been very different from that
of Scotland and Wales. As a result of the partition of Ireland in 1922, Northern
Ireland was given its own parliament. This lasted until 1972, when the government
of Edward Heath imposed direct rule on Northern Ireland because of escalating
violence. The Catholic (mainly nationalist) minority felt that their rights were
being ignored by the Protestant–unionist-dominated assembly and so the decision
to suspend devolved power was a practical attempt to end the conflict.

During ‘the Troubles’, republican terrorist groups such as the Irish Republican Army
(IRA) targeted unionist figures, the Royal Ulster Constabulary and the British
army, which in 1969 had been sent in to try to keep the peace. Unionist paramilitary
groups such as the Ulster Defence Association (UDA) and the Ulster Volunteer
Force (UVF) also committed violence against republican targets, and an estimated
3,600 people were killed as a result of the conflict.
With neither side able to achieve its objectives, in the 1990s John Major’s government
opened covert negotiations with Sinn Féin, which had historic links with the IRA,
to try to achieve a political settlement. In 1997, Tony Blair gave the peace process
renewed momentum and in the Good Friday Agreement (1998) negotiated a power-
sharing assembly that would fairly represent both unionist and nationalist sentiment.
In May 1998, the Agreement was strongly endorsed by the peoples of Northern
Ireland and the Republic of Ireland in two separate referendums.
Devolution in Northern Ireland is thus inseparable from the peace process and
is based on the principle that if unionists and nationalists can work together in a
devolved assembly, this will stop Northern Ireland reverting to sectarian violence.
The extent to which devolution has been successful in Northern Ireland thus needs
to be measured differently compared with Wales and Scotland. The focus in Northern
Ireland is much more on whether devolution has succeeded in eliminating political
violence by enabling the peaceful resolution of long-held violent disagreements.
The decision to elect the Northern Ireland Assembly in Stormont by the single
transferable vote was also taken to give the electorate as much choice as possible and
make it more difficult for one party to dominate.
The way in which the executive comprises the leader of the largest party as the
first minister and the leader of the second largest party as the deputy first minister
is also meant to ensure stability. They possess equal powers and if one resigns, the
other must also resign, ensuring that there is a strong incentive for both sides to
work together.
Several devolved primary legislative powers have been given to the Northern Ireland
Assembly over an extensive number of areas, including:
l education
l agriculture
l transport

l policing
l housing
l health
l environment.
From 2011 to 2016, the assembly passed 67 bills. These included the following
significant legislation:
l Human Trafficking Act (2015): designed to prevent human trafficking to
Northern Ireland and provide support for victims.
l Addressing Bullying in Schools Act (2016): provides a legal definition of bullying
and
l requires schools to have robust policies against it.
l Houses of Multiple Occupation Act (2016): improves legal protection for students
when renting rooms in a house.
However, ongoing tension between the republican and unionist communities has
meant that devolution to Northern Ireland has been a much less smooth process than
in Scotland and Wales.
l From 2002 to 2007 the assembly was suspended because of continued conflict
between unionists and nationalists.
l In 2007, the assembly reopened after a surprise agreement was reached
between the Democratic Unionist Party (DUP) and Sinn Féin. Ian Paisley,
the leader of the DUP, became first minister and Martin McGuinness of
Sinn Féin became deputy first minister. After years of violent hostility, the
close relationship they established led to them being known as the ‘Chuckle
Brothers’.
l However, in 2017, Martin McGuinness resigned as deputy first minister in
protest at the refusal of the new first minister, Arlene Foster, to acknowledge any
responsibility for the Renewable Heat Energy (Cash for Ash) scandal in which
people were paid to heat their homes with renewable energy at a cost of £500
million to taxpayers.
l McGuinness’ resignation automatically meant that Foster had to resign and with
neither side prepared to compromise, direct
rule was reimposed from Westminster until
2020.
Brexit has caused further problems for the
Northern Ireland Assembly. Since Ireland remains
in the EU and Northern Ireland has left, there
were fears of a new hard border, which would
have undone so much of the hard work of
reconciliation. As a result, the free flow of EU
goods and people across the border was allowed in
the Northern Ireland Protocol (2020). However,
this has necessitated some customs checks
between Northern Ireland and the rest of the
UK, which has incensed some unionists who feel
they are not being treated as fully British. This
contributed to rioting across mainly unionist parts
of Northern Ireland in 2021. Although not on
the scale of the Troubles, this violence highlights
how much more the Assembly still needs to do to

bring the unionist and republican communities together around a shared vision of
Northern Ireland’s future.
Sinn Féin’s victory in the May 2022 Stormont election, together with the refusal of
unionist politicians to engage in power-sharing in protest at the Northern Ireland
Protocol, indicates just some of the difficulties in making devolution work in
Northern Ireland.

Question 32

How could the UK constitution be further
reformed?

Answer 32

Although there has been considerable constitutional reform since 1997, critics argue
that too many of the reforms have not fully addressed the problems they were meant
to resolve. For example:
l devolution has been granted to Scotland, Wales and Northern Ireland but not to
England
l the House of Lords has lost most of its hereditary peers, but it still lacks democratic
legitimacy
l the European Convention on Human Rights has been incorporated into British
law, but UK citizens’ rights have not been entrenched in a codified constitution.

Question 33

How could the UK constitution be further
reformed? - Further House of Lords reform

Answer 33

Critics of House of Lords reform argue that only when the Lords are elected and
accountable to the public will it be able to claim democratic legitimacy. However,
opponents of an elected Lords claim that an appointed chamber has major advantages.
l It contains experts in every field and so the scrutinising work of committees of
the House of Lords is held in high regard.
l In cases of dispute, the House of Commons will always prevail because it possesses
democratic legitimacy.
l If both chambers were elected, there would be potential for gridlock because
both would be able to claim a democratic mandate.
l Currently the Lords has a significant number of crossbenchers. If the House
of Lords were to be elected, the main political parties would likely dominate,
which would undermine its reputation for independence.
Some critics argue that the legitimacy of the Lords does not depend on it having
a democratic mandate but derives from its expertise and effectiveness. There is
therefore a strong case that an appointed Lords would acquire greater legitimacy if the
HOLAC was given the statutory right to veto inappropriate political appointments.

Question 34

How could the UK constitution be further
reformed? - Electoral reform at Westminster

Answer 34

A major argument in favour of electoral reform has been that the UK is becoming a
multiparty democracy and so the electoral system should be reformed to provide
minority parties with fairer representation. For example, in the 2015 general
election, UKIP and the Greens won almost 5 million votes and secured only 1 seat
each. If the House of Commons better reflected the political will of the nation, the
public might also be more encouraged to vote.
However, proportional representation at Westminster might not improve politics as
much as its supporters claim.

l According to the Electoral Reform Society, if the result of the 2019 general election
had been determined by the d’Hondt formula, no party would have gained an
overall majority. Given that the public was eager for the UK’s withdrawal from
the EU to be resolved, another coalition would have been unlikely to be popular.
l Although proportional representation is supposed to provide smaller parties with
enhanced representation, this has not been the case in Wales and Scotland. The
Liberal Democrats, for example, achieved an average 6% of the vote in the 2021
Scottish Parliament election but won only 4/129 (3.1%) of the seats at Holyrood
(2021). In the Welsh Parliament elections (2021) they won an average 4.6% of the
vote but secured 1/60 (1.7%) of the seats.
l In the 2017 and 2019 general elections, a significant number of supposedly safe
seats changed hands, which suggests that FPTP is more responsive to changes in
public opinion than its critics claim.

Question 35

Should devolution be extended to England? - Arguments against English devolution

Answer 35

l Critics of English devolution argue that there is very little demand for reform.
Despite the asymmetric development of the UK’s constitutional arrangements,
most English people are content that their interests are sufficiently represented
by the Westminster Parliament.
l An English parliament could challenge the authority of the Westminster
Parliament. Since Westminster brings together MPs from across the whole
country, any further reduction in its power and prestige could threaten the
survival of the UK.
l If each nation within the UK had its own legislature, this would emphasise
national differences rather than common national values. Some critics have
suggested that an English parliament could lead to ‘Balkanisation’ in which a
shared sense of national identity is undermined by competing national identities.
l An English parliament could encourage the growth of English political parties
based on extremist political ideology, such as the English Defence League (EDL).
If the English parliament was elected by proportional representation, this could
provide extremist political parties with the opportunity for influence.
l Not all parts of England have a strong sense of regional identity. Even the North
East, which does have a strong sense of its identity, rejected the opportunity to
have its own assembly by 78% to 22% in 2004.
l Further devolution would create another layer of government and this could
create a democratic overload, which would undermine the legitimacy of the
result.
l The turnout for elected mayors and police commissioners has been disappointing,
and elections for the Scottish Parliament and Welsh Assembly (Parliament since
2020) have had a lower poll than the average general election (Table 5.12). In
England, where a sense of nationhood is much weaker, elected bodies could fail
to achieve a strong enough electoral mandate.
l Since 41% of England’s population now has a metro mayor, this scheme could be
taken further, removing the need for an English parliament.

Turnout in Scottish and Welsh elections, 1999 and 2021

1999 - Turnout in the election for the National
Assembly for Wales: 46%
Turnout in the election for the Scottish
Parliament: 59.1%
2021
Turnout in the election for the Welsh
Parliament: 46.6%
Turnout in the election for the Scottish
Parliament: 63.5%

Question 35

Should devolution be extended to England? - Arguments in favour of English devolution

Answer 35

The devolution of power to Scotland, Wales and Northern Ireland has created an
unusual situation in which three of the four constituent parts of the UK now have
extensive rights of self-government. The issue could be resolved by the establishment
of an English parliament or English regional assemblies. Supporters of English
devolution make the following arguments.
l England is by far the most populous nation in the United Kingdom and yet its
citizens are the only ones without their own government.
l The devolved powers of Wales and Scotland have been significantly increased
since 1999. This indicates how popular devolution has been and that it is illogical
for England not to have the same rights.
l Devolution has created an asymmetric United Kingdom, leading to potential
resentment that England’s interests are being taken less seriously than those of
Scotland, Wales and Northern Ireland. The Barnett formula, for example, by
which public funding is allocated across the UK, has always meant that spending
per capita in England is less than in other parts of the UK. Devolution to England
might resolve such issues.
l There is a strong sense of regional identity in parts of England, such as Cornwall
and Yorkshire, which would make regional assemblies popular and relevant. In
2015, Cornwall became the first county to be given devolved powers, including
control of investment and bus services.
l The establishment of elected mayors also shows how power can be decentralised. Both
models could provide a template for how English devolution could be introduced.

Question 36

In focus - Metro mayors

Answer 36

As chancellor of the exchequer from 2010 to 2016, George Osborne supported metro mayors.
From 2016 to 2022, nine were created and the Johnson government promised more. By 2022,
41% of England’s population had a metro mayor with considerable powers over public spending
and public services. Metro mayors provide voters with a clearly accountable figure responsible
for important decisions that affect them. Average turnout for metro mayor elections in 2021
was 34% — an increase on the 28% turnout in 2017.

Supporters argue that former Westminster politicians such as Andy Burnham (Greater
Manchester) and Dan Jarvis (South Yorkshire) being elected metro mayors has reinvigorated
democracy by creating an important new tier of government. However, critics note that powerful
mayors with a personal mandate could create conflict with Westminster. In 2020, for example,
there was an acrimonious dispute with Andy Burnham over the Johnson government’s decision
to place Greater Manchester in the highest level of Covid-19 restrictions.

Question 37

Debate
Devolution has been a constitutional success.

Answer 37

yes

• Devolution has addressed a major problem that
  Wales and Scotland were for long periods governed
  by Conservative governments (for example, 1979–
  97), which, as nations, they had not voted for
• Devolution has encouraged self-determination by
  enabling Scotland and Wales to develop policies that
  are suited to the desires and traditions of the two
  countries
• Although devolution in Scotland may have
  encouraged demands for independence, there is no
  evidence that this has been the case in Wales
• Turnout in elections in Wales and Scotland has
  improved, suggesting that devolution is having a
  positive impact. In 2003 the turnout in Wales was
  38.2%. By 2021 it was 46.6%. In Scotland in 2003 it
  was 49.7%. By 2021 it has risen to 63.5%
• Without devolution there might have been even
  more demands for independence in response to
  Conservative rule from Westminster
• Although devolution in Northern Ireland is imperfect,
  it has encouraged power sharing between
  republicans and unionists
• Devolution has not encouraged a nationalist
  backlash in England. Metro mayors may also address
  the asymmetry without the necessity of an English
  parliament

no

• Devolution has led to an asymmetrical United Kingdom,
  with governments in Scotland, Wales and Northern
  Ireland and no comparable government in England
• Devolution has also created the potential for
  constitutional conflict between Westminster and
  Holyrood. In 2021, for example, the SNP and the Greens
  together were able to secure a pro-independence
  Scottish government. However, the Westminster
  government was unprepared to allow a second
  independence referendum because the SNP had not
  secured an outright electoral mandate
• Devolution could be a step towards an independent
  Scotland, which could potentially weaken the global
  influence of the UK
• Devolution in Northern Ireland has been unsuccessful
  because there have been long periods (2002–07 and
  2017–20) when unionists and republicans have been
  unable to cooperate at Stormont
• Devolution has failed to engage the public. Metro mayors
  were elected on an average of 28% in 2017 and 34% in
  2021. The highest voter turnout for elections in Wales
  was 46.6% in 2021 and in Scotland it was 63.5% in
  2021. Both are lower than the turnout for the 2019
  Westminster election (67.3%). In 2022, Bristol voted in a
  referendum to abolish its elected mayor
• Devolution has provided a disparate response to national
  problems like the Covid-19 pandemic when a unified
  response would have created less confusion

Question 38

Does the UK need a codified constitution?

Answer 38

The United Kingdom is one of only five countries in the world without a codified
constitution. The others are Israel, Saudi Arabia, Canada and New Zealand. As
a result, the UK does not have a higher constitutional law that the legislature
must respect and so there are few constitutional limitations on the legislation the
Westminster Parliament could enact.
Critics of the UK’s uncodified constitution argue that the rights of British citizens
need the protection of an entrenched bill of rights. In 1976, Lord Hailsham warned
that the UK was in danger of becoming an ‘elective dictatorship’ because there were so
few constraints on the influence of the government. The way in which several Acts of
Parliament, such as the Investigatory Powers Act 2016, have significantly extended the
power of government by restricting civil liberties would have been made considerably
more difficult if citizens’ rights were entrenched in a codified constitution.
A codified constitution would also clarify the relationship between the constituent
parts of the United Kingdom and determine the exact location of sovereignty

within the British political system. The lack of clarity over where power lies in the
UK constitution is illustrated by the Gina Miller case (2017). There was considerable
doubt whether the government of Theresa May could negotiate withdrawal from
the European Union without Parliament being consulted. Gina Miller brought a
case to the UK Supreme Court which ruled that Parliament would have to enact
the legislation taking the UK out of the European Union.
The way in which a government can introduce legislation that can change the
constitution to its advantage has been likened to a sports team being able to
manipulate the rules of the game as it is being played. In 1999, there was a strong
case for the removal of the hereditary peers from the House of Lords. However, this
reform also benefited the Blair government since the hereditary peers had provided
the House of Lords with an inbuilt Conservative majority.
Critics of David Cameron argue that he only offered the EU membership referendum
to reduce support for UKIP in the upcoming general election, so encouraging a
Conservative victory. If the UK constitution had been codified and entrenched,
it has been suggested that Cameron would not have been able to gamble with the
constitution for potential political advantage as critics allege that he did. In response,
supporters of the UK’s uncodified constitution argue that its flexibility enabled
Cameron to respond to growing concerns about European integration, proving how
democratically accountable an uncodified constitution is.

Opponents of an entrenched constitution respond that parliamentary sovereignty
enables the government to quickly react to crises and emergencies. This is important
if the collective rights of society are to be protected. If these Acts of Parliament are
unpopular, they can also be repealed by a future parliament. In 2010, for example,
the coalition introduced legislation to repeal the Act of Parliament that had
introduced identity cards. An uncodified constitution, it could be argued, is the
most democratic form of constitution because it places power in the hands of
Parliament and the electorate.

Those in favour of the UK’s uncodified constitution further note that its evolution
has enabled it to keep pace with social and political change. Since the Westminster
Parliament is not bound by a codified constitution, it has the flexibility to pass
any legislation for which it has a parliamentary majority. This makes the British
constitution highly democratic and responsive to the changing nature of society.

l For example, in the 1960s, Parliament could quickly legislate to legalise same-sex
relationships and abortion and abolish capital punishment without the need for a
long and complicated constitutional procedure.
l More recently same-sex marriage and the rights of transgender people have been
recognised by parliamentary statute.
A codified constitution can also become fossilised. In the USA, the 12th Amendment
of the Constitution for the election of the president by the Electoral College has
been strongly criticised as unsuitable given how the demography of the USA has
developed. This, like the 2nd Amendment, which protects the ‘right of the people to
keep and bear arms’, could only be changed by another constitutional amendment.

Question 39

The tension between collective and individual rights

Answer 39

Individual rights include the right to privacy, freedom of religion and belief and the
right to a fair trial. Collective rights are the rights we enjoy as part of a society, such
as the right to be safeguarded from violence. These rights generally co-exist.
However, when the state is threatened by external violence (e.g. an invading army)
or internal violence (e.g. terrorism) then governments may decide to sacrifice
individual rights for the collective rights of society. On 7 July 2005, a London bus
was blown up by a suicide bomber. Thirteen passengers died in the explosion. On
the same day, there were three other coordinated explosions on the London
Underground. A total of 52 people were murdered in these atrocities.
In 2008, Geoff Hoon, who had been secretary of state for defence during the 2003
Iraq War, commented that ‘the biggest civil liberty of all is not to be killed by a
terrorist’. According to Hoon, the terrorist threat justifies Parliament in legislating to
increase government power to combat terrorism and extremism. Since Parliament is
sovereign, the judiciary cannot strike down any such legislation as ‘unconstitutional’.
The following Acts of Parliament have been especially controversial:
l Serious Organised Crime and Police Act 2005 As a result of this Act the
right to protest outside Parliament has been considerably restricted. Critics
argue that it denies the public an essential civil liberty, which is to protest their
grievances at the legislature.
l Counter-Terrorism and Security Act 2015 This Act requires universities and
schools to monitor debate and deny a platform to speakers who could encourage
radicalisation, which has been criticised by some as an infringement of freedom
of speech.
l Investigatory Powers Act 2016 The increased authority this Act gives to the
intelligence services to carry out electronic surveillance of private individuals has
led civil liberties groups to label it ‘The Snoopers’ Charter’.
l Police, Crime, Sentencing and Courts Act 2022 This Act controversially
allows the home secretary to ban ‘unacceptable’ protests, while providing the
police with greater control over how a demonstration is orchestated. The Act
also provides for a statutory offence of up to 10 years in prison for causing ‘public
nuisance’ during a protest.
Civil liberties groups, such as Charter 88 and Liberty, claim that these statutes allow the
government to act in an arbitrary fashion, which is a strong argument for the codification
of UK citizens’ civil liberties in a bill of rights. This would make it much more difficult
for the government to extend its power in the way that it has been able to. Sir Keir
Starmer, for example, was highly critical of Theresa May’s promise to change the law in
any way necessary to combat terrorism, warning against ‘throwing away the very values
that are at the heart of our democracy and everything we believe in’.

Question 40

In focus - The Elections Act 2022

Answer 40

In 2022, Parliament passed the Elections Act. The Act introduces several important changes
to the way in which voting is conducted in the UK. Photo ID will now be required when voting
in UK general elections, local elections and referendums. The use of the supplementary vote
(SV) for elections for mayors and police commissioners will be replaced with first-past-the-post
(FPTP). The work of the Electoral Commission, which since 2000 has overseen party funding
and ensured fairness in elections, will now be supervised by a government minister.
Supporters of the Act claim that voter ID will discourage fraud in elections and that FPTP will
encourage turn-out in mayoral and police commissioner elections. However, critics of the
Act argue that it is politically advantageous to the Conservative Party, since younger (more
Labour-inclined) voters are less likely than older (more Conservative-inclined) voters to have
the necessary voter ID. Traditionally, the Conservatives have favoured FPTP over other electoral
systems, so it is to their advantage to extend it.

Question 41

Debate
Should the UK have a codified constitution with an entrenched bill of rights?

Answer 41

yes

• A codified constitution would represent a higher
  constitutional law, which would entrench the
  British people’s civil liberties and so protect them
  from arbitrary government
• The Human Rights Act 1998 does not do this
  because it is an Act of Parliament and so
  Parliament can suspend its provisions or repeal it
• The authority of the Supreme Court would be
  enhanced since it would be able to quash laws
  it deemed ‘unconstitutional’ by referring to the
  higher law of the constitution
• A codified constitution would clarify the relationship
  between the various branches of government and
  establish where sovereignty lies
• The rights of minorities could be recognised in a
  codified constitution. This is especially important
  in a multicultural society, in which many alternative
  lifestyles exist
• The public could become more politically engaged
  since they would know what their relationship with
  the government is

no

• The uncodified nature of the British constitution means that
  it is very flexible and can quickly respond to changing social,
  political and security circumstances
• An uncodified constitution is more democratic because it
  puts power in the hands of elected representatives who are
  accountable to the electorate, rather than in the hands of
  unelected judges
• Civil liberties are adequately protected by common law and
  by the Human Rights Act 1998 and the Equality Act 2010.
  The judiciary has used both of these Acts to protect and
  develop civil liberties
• A codified constitution reflects the social and political attitudes
  of the people who composed it. It cannot keep pace with
  society changes in the way that an uncodified constitution can
• The ambiguity in the British constitution is an advantage since
  it has allowed for the changing relationship between England,
  Scotland, Wales and Northern Ireland in response to the will of
  the public. This would have been more difficult to achieve if the
  constitution had been codified