the constitution Flashcards
what is a constitution
A constitution is a set of rules that establish and describe the distribution of power within a state, the procedures of government, the limits of government and rights of citizens as well as rules on citizenship and constitutional amendment.
Functions of the UK Constitution
It establishes the distribution and balance of power between the people, representatives, the monarch, the Prime Minister etc.
- It defines and establishes the limits of governmental power; Freedom of Information Act 2000
- Establishes the processes by which a country can be run and where responsibility lies.
- It specifies the rights of individual citizens and how they are protected; Human Rights Act 1998
- It defines the nature of citizenship and how individuals may obtain citizenship and the territory that is within its power.
- It establishes and describes the arrangements for amending the constitution; a parliament needs only to pass an Act to change the way something is done.
nature of the uk constitution
There is a constitutional monarchy. The queen is head of state but is constitutionally limited, so her powers are held in reserve.
- It is uncodified: this means it is not contained within one document, but is made up of every law or convention from its history.
- This makes it both flexible and unentrenched (there are no laws that cannot be overturned by parliament).
- It is unitary: this means that sovereignty (supreme power) lies in Westminster. However, devolution to Scotland, Wales and NI and in cities has created quasi-federalism as power is granted to different countries and areas.
- The sovereignty of Parliament is fundamental. This means that the constitution and its rules are controlled by parliament. “No Parliament can bind its successor”; the Fixed Term Parliaments Act 2011 can be overturned by any parliament that chooses to.
- The rule of law operates. All are equal under the law and the government is subject to laws, just as citizens are.
- Many rules are actually only conventions, things that have become customary, but are not legally binding; the queen is under no legal obligation to delegate her powers to the Prime Minister, but it has huge moral value (to reconcile monarchy and democracy) that is has become a constitutional convention.
Parliamentary Sovereignty
parliament has legal sovereignty: this means that they wield ultimate political power as enforced by law and they cannot be overruled by anything/anyone else. Parliamentary sovereignty prevents the army, monarch or judiciary taking control.
However, parliament’s power would be greatly affected if it did unpopular things; many MPs campaigned against Brexit, but voted for it to represent the will of the people.
sources of the uk constitution
The UK’s constitution is uncodified and can be found from multiple sources, some of which have the force of law and some that do not.
- Parliamentary statutes: Laws passed by the UK government which have constitutional effect; The Human Rights Act 1998 (which accepted the European Convention on Human Rights into law), The Scotland Act 1998 (which created the Scottish parliament).
- Conventions: These are rules that are not legally enforceable, but which are considered binding and would be scandalous to ignore: The Salisbury Convention (the Lords does not oppose a government’s election manifesto promise); PM Succession (when a PM resigns without an election, the monarch will appoint the person the PM recommends, although this is not a legal requirement).
- Common law: Unwritten laws that are “both well established and generally acknowledged by most people” that can be enforced by the courts; the right to protest and no imprisonment without trial.
- Works of Authority: The writings of constitutional experts that describe how a political system is run. These are not legally binding, but still significant: Dicey on Parliamentary sovereignty (1885) and O’Donnell The Cabinet Manual (2011) which recorded all “rules and practices” of the time.
- Treaties: Foreign agreements that are also binding on the UK: Paris Climate Agreement (2016), European Convention on Human Rights (1956) - EU Treaties: During membership of the EU, many concerned the transfer of power and sovereignty: The Maastricht Treaty (1992), The Lisbon Treaty (2007). Our relationship with the EU will now be redefined in the coming years.
should the uk keep a codified constitution
Keep it UNCODIFIED:
Flexibility - UK Parliament is able to react to new circumstances without constraints - anti-terror legislation since 2001
Executive power - governments can take control of situations, preventing deadlock
Unnecessary - UK has managed well thus far with its ability to naturally change over time - House of Lords Act 1999
Politicised judiciary - courts would be needed to solve exact issues (powers of devolved governments) - unelected judges would then be needed to make fundamentally political decisions
Make it CODIFIED:
Human Rights - a codified constitution would require the rights of the people to be written out for all to see and then protected; HRA 1998 (which adopted ECHR) can still be overridden by an Act of Parliament
Executive power - executive power is excessive, especially with strong majorities and Parliament’s powers need to be codified
Clarity - the rules of politics are unclear (was Brexit referendum legally binding?) and leads to apathy and ignorance of rights
Brexit & modernity - the UK is unusual in not having a codified constitution and Brexit is an opportunity to modernise our systems
devolution in the uk
Devolution is the process of delegating power, but not sovereignty, from UK Parliament to specific regions of the country. Devolution is not entrenched and can be reversed through an Act of Parliament. 2002-07 Northern Irisih Assembly was dissolved.
There are three types of devolution: Legislative Powers, Administrative Powers and Financial Powers
devolution in england
36% of English population now under some form of devolved power
London - Labour reintroduced London Assembly in 1997 and created elected Mayor of London; 2016- Sadiq Khan. No one party and neither branch can exercise too much power individually; AMS electoral vote, Assembly’s power of veto
Metro-Areas - 9 combined authorities (from local areas) with directly elected mayors covering far greater areas than cities
EVEL 2016 - for legislation that affects only England, only MPs representing English constituencies can vote - repealed 2021!
devolution in scotland
Scotland Act 1998 - following a referendum (74% YES), Scottish Parliament was created with mostly administrative and legislative powers (health services, education, policing); Additional Member System (AMS) used in elections
2014 Independence referendum - 55.3% NO - however, in recognition of the strength of independence feeling…
2016 - further devolution; legislative (regulation of industry), administrative (local services) and financial (income tax control)
devolution in wales
Wales Act 1998 - referendum VERY close (50.5% YES); to reflect this, ONLY administrative powers were granted (transport services)
Wales Act 2014 - following referendum on further devolution (63.5% YES), financial powers (control over some taxes) were granted
Wales Act 2017 - removal of roadblocks (need for referendums) for further devolution; greater leg. and adm. responsibilities
Devolution in Northern Ireland
Belfast Agreement 1998 - devolution was integral part of the peace process and resulted in power-sharing; STV used; mostly administrative and legislative powers were devolved.
Dissolution 2002-07 - due to tension and failure to cooperate, Westminster dissolved NI Assembly until 2007 - UK Parliament used its sovereignty to take devolved power back, showing fundamental limitation of devolution
Debate: Should there be further devolution?
Differences between devolved countries have emerged over time; full financial autonomy is the last barrier to total devolution
Devolution was intended to reduce nationalist sentiment - Wales has very little, Scotland’s has grown substantially, esp. post-Brexit
FOR - extension of democracy and accountability; reflection of local/specific communities; promote equality around country
AGAINST - new and expensive layer of government; more elections creates voter apathy; variable public demand
constitution reform since 1997
Devolution (from 1998) [see box C]
- The Human Rights Act (1998): The European Convention on Human Rights (1956) [see box B] became a part of British law.
- Elected Mayors (1999): [see box C]
- House of Lords Act 1999: Labour govt wanted to remove all hereditary peers but compromised by allowing 92 (of 753) to sit. Plans to introduce elections to House of Lords did not gain enough political support. Appointments Commission (2000) now responsible for appointing of cross-bench life peers.
- Freedom of Information Act 2000: Citizens were given the rights to see all official public documents, provided they do not threaten national security; 2008 MPs’ expenses scandal which prompted huge public condemnation and reforms.
- Creation of the independent Supreme Court: Constitutional Reform Act 2005 created an independent judiciary where before they had sat in the House of Lords. Famous decisions include Miller v Secretary of State for Exiting the EU (government required Parliament’s approval to trigger Article 50) and Pimlico Plumbers v Smith (whether a worker was employed by a company or not and had rights to benefits).
- Select Committees: Chairs of Select Committees were to be voted on by the Commons, rather than appointed by party whips.
since 2010 election
Electoral reform: 2011 referendum on using AV failed. Different electoral system used in devolved bodies: Scotland and Wales use Additional Member System; Police and Crime Commissioner elections use Supplementary Vote.
- Fixed-term Parliaments Act 2011: Removed the powers of the prime minister to determine the date of an election. Each parliament should last for 5 years - except under exceptional circumstances or two-thirds vote by Parliament.
- Elections to Police: Local Police Crime Commissioners are elected, but broadly unsuccessful in binding community and ensuring accountability as voter turnout is so low.
- Constituency power: Recall of MPs Act 2015 gave local constituencies the power to recall their MP if imprisoned or suspended from the HoC for misbehaviour.
- EU Withdrawal Act (2017): Empowered the Prime Minister to give the Council of European Union a formal notice of the UK’s withdrawal from the EU; this is the single greatest change to the UK’s constitution.
Debate: Have reforms worked?
YES: independent judiciary; electoral reforms in devolved bodies; decentralisation of power; Freedom of Information; referendums increase popular democracy
NO: FPTP electoral system results in grossly unrepresentative HoC; HoL remains unelected; PM still has huge powers
