the uk constitution Flashcards
main themes of constitutional development?
-transferral of power from monarch to parliament
-increasing the rights of citizens
beginnings of the constitution?
1215 Magna Carta, no one including the king is above the law, sets out the right for free trial for all free men
Bill of Rights, monarch’s power is reliant on the consent of parliament, and parliamentary privilege (freedom of speech in parliament), free elections
Act of settlement- only a protestant could be a monarch, gave control over the lines of succession
initiail constitutional developments?
acts of parliament,
1911 parliament act prevented lords from delaying money bills and other bills for more than 2 years
1949 parliament act, reduced time lords could delay bills for(to a year)
1972 european communities act which entered britain into european economic community later known as eu(thus gave eu law precedence over uk law in case of conflict)
- brexit later focused on repealing this act.
main principles of the traditional uk constitution (nature of the uk constitution)
-unentrenched: the uk constitution can easily be changed(by an act of parliament or shift in convention)
-uncodified- not written down in one single document, made up of multiple sources
-parliamenrary sovereignty- parliament is supreme, ultimate authority sits with it as the representative of the people,
no parliament can bind its successor so it can repeal acts passed by previous parliaments
it is also supreme legislative body so legislative cant be changed or struck down by judiciary or executive
-unitary-all power centralised in parliament in westminister (this has been diluted due to devolution, many scholars refer to uk as union state)
-rule of law; everyone is subject to law and held accountable to it, everyone entitled to fair trial, for rule of law to work; judiciary must be independent of political interference
5 main sources of the UK constitution?
1) statute law: all legislation created by parliament, most important due to principle of parliamentary sovereignty so it can override any other source
(constitutional are the ones dealing with nature of politics, government or rights of citizens)
example- 2005 constitutional reform act creating the supreme court (parliament legislation)
0r 1918 representation of peoples act, all men and some women to vote
2- common law is made up fo customs and judicial precedent, judicial decisions clarifying the meaning of statute or making rulings in the absence of statute(constitutional principles like royal prerogative are part of common law)
3- conventions are customs and principles accepted as a way of doing things, e.g. convention that prime minister is the leader of the largest party in parliament, they can be removed or made permanent by statute law, e.g. 2011 fixed term parliament act: put into statute law the convention that government should resign if defeated in a vote of no confidence
4- authoritative works, e.g. walter bagehot’s ‘the english constitution’ books or wrtitten guides to the working of the written constitution (widely respect but not legally binding)
5- treates- agreements that have been signed with other countries, most important treaty uk constitution is european communities act 1972 entering britain into ecc (eu)
1992 maastricht treaty established european union
(uk gov negotiated a treaty for uk to leave eu)
why was there demand for reform?
- people wanted to modernise british institutions
-people had growing distrust in traditional institutions
-growing demands for devolution in scotland - demand to fix problems in north ireland
reform in 1997?
new labour came into power in 1997 under tony blair, offering new constitutional reforms in his policies
1999 house of lords reform?
1999 house of lords act
aim of act- to make the house of lords a mainly appointed chamber
actiion- removed all but 92 hereditary peers
outcome - lords became a mainly appointed cha,ber, peers were thus appointed based on merit (as opposed to birth thus the removal of hereditary peers)
argument that the house of lords reform did enough
removal of hereditary peers modernised the house of lords, thus making it more legitimate and professional
no party has a majority
an unelected house allows experts to be appointed, e.g. lord norton a politics professor and constitutional expert,
those representing underrepresented groups in society can be elected, e.g. Lord Bird an ex homeless man, and founder of the ‘Big Issue’ representing homeless people- a group which is unrepresented
appointing life peerages(can use title for rest of life but cannot pass on), (appointed by the crown nominated by the prime minister) - they do not need to worry about elections or removal from office if they are unpopular with their party or other small group of constituents- this allows them to consider long term interests of their country
arguemnt house of lords reform was not sufficient enough
- still 92 hereditary peers remaining which is outdated in a meritocratic society
-26 bishops but no representation of other religions
- party leaders can still make political appointments with house of lords
-house of lords remains unelected despite still having influence on law making and holding government to account
the chamber is large and very costly,over 800 peers, makes it second largest legislative chamber in the world e.g 2017 burns report called for reduction in size for house of lords and for term limits of its members
why were referendums held for devolution
held in Northern Ireland, Scotland and Wales in 1997-8 in which the people voted for powers to be devolved to new regional assemblies.
brief overview of devolution?
In 1998 the Scotland Act, Northern Ireland Act and Government of Wales Act established the Scottish Parliament, Northern Ireland Assembly and Welsh Assembly.
- had been a growing demand for Scottish independence
- need to unite the unionist and nationalist parties in Northern Ireland.
argument that devolution did enough
good friday agreement and devolution to northern ireland transformed situation in northern ireland
(eval- until power sharing agreement in jan 2017 - the two parties were working together)
more devolution needed in wales?
multiple pieces of legislation devolving further powers to wales since 1998, 2006, 2014, 2017
increased demand for devolution as there was an imbalance in powers given in 1998 as wales gained fewer powers than scotland
so the welsh nationalist movement had been growing, demand for further devolution continues
more devolution needed in scotland?
devolution did not stem the demand for scottish independence
2014- held a scottish independence referendum, narrowly won by unionits,
(snp now more popular and electorally successful than in 1998)
also further devolution to scotalnd in 2016
more devolution needed in northern ireland?
since 2016 eu referendum, ongoing discussion on how brexit will work for ireland
northern ireland shares border with republic of ireland which is part of the eu
northern ireland act 1998, needs to be amended as part of the brexit process (causing possible conflict in ireland)
more devolution needed in england?
for england- west lothian question, scottish mps being able to vote in house of commons on matters only affecting england, english mps have no say in devolved scottish matters
barnett formula used to determine amount of funding given to per head,- given to each part of the uk- out of date as it was devised 1978 (scotland wales and northern ireland receive more than england per head)
what is the human rights act
The 1998 Human Rights Act (HRA) incorporated the European Convention on Human Rights (ECHR) into UK law.
what did the human rights act contain
how does echr influence hra
freedoms in echr include, freedoms to life, freedom to fair trial, of expression and from discrimination among many others
echr: requires state to hold free and fair elections, abolish death penalty, preserve family life and give foreigners same rights as all citizens in the state
how does the human rights act influence the supreme court
hra means any public body cannot act in a way that would break with the convention, judiciary must make rulings that are compatible with it
supreme court, can strike down secondary legislation incompatible with hra
(for primary legislation they can only use doctrine of incompatability which urges parliament to change the statue- due to the principle of parliamentary sovereignty)
argument that hra has been sufficient enough
fundamental rights of all british citizens clearly laid out in one accessible piece of legislation (codified)
example- 8 fold increase in number of human rights cases and claims brought to high court after hra passed
hra was not sufficient reform
conservatives resent link of european court of human rights to strasbourg - wanted to replance hra with british bill of rights- arguing it define rights more narrowly
despite hra, government can still restrict the rights of individuals, e.g 2005- gov introduced control orders. allowing authorites to control movement of suspected terrorists
(to do this they declared an exemption from article 5 of hra for all those who fall under suspicion)
what was 2005 constitutional reform act?
The 2005 Constitutional Reform Act created a separate Supreme Court as the highest court of appeal in the UK. Before this, the UK’s senior judges sat in the House of Lords (known as the Law Lords).
how did the 2005 constitutional reform act cause judicial reform
creating a separate supreme court:
-separated the government and the judiciary
-formed a supreme court separating parliament from judiciary
-act reformed appointment process for senior judicial appointments
2005 constitutional reform act affecting chancellors?
act split role of lord chancellor into 3 different roles
(previously role was to be a member of gov, speaker in house of lords, head of judiciary with power to appoint judges)
now- lord chancellor is just a government role with lord speaker presiding over house of lords, lord chief justice as head of judiciary- these reforms made judiciary more important
2005 constitutional reform act on supreme court-
supreme court made to replace law lords as uk’s highest court of appeal
this reform separated parliament from judiciary
2005 constitutional reform act on appointments
before reform: senior judicial appointment made by prime minister and lord chancellor (political figures)
act established judicial appointments commission- appointing candidates solely on legal qualifications and ability
- gov makes final decisions on appointments but must be approved by jac
argument that constitutional reform act did enough
- established clear separation of 3 powers, preventing abuse of power
-judiciary physically and constitutionally separate from executive and legislature allowing for greater judicial independence- this strengthens the rule of law
argument constitutional refrom act was not sufficient enough
supreme court weaker than its counter parts in most other liberal democracies(that are codified constitutions) thus cant strike down legislation as that would destroy parliamentary sovereignty
composition of supreme court is not diverse, (the group they have to choose from is not diverse either)
examples of electoral reform in the electoral system
new labour presenting various forms of proportional representation for elections to european parliament , scottish parliament, welsh and northern ireland assemblies
additional member system - ams introducd for welsh assembly and scottish parliament elections
stv- single transferrable vote, used for northern irish assembly elections
exlpain electoral reform in electoral system- alternative vote
2011 referendum, wanted to introduce alternative vote for general elections to parliament in westminister- referendum rejected proposed electoral reform (fptp remaining in use)
areas voting for av was predominantly situated in areas such as london and oxford?? perhaps hinting at an information gap in electoral systems for the wider majority and the benefits the av system encompasses
how has voting age been affected by electoral reform
voting age for uk citizens is 18. 2014 scottish independence referendum, voting age lowered to 16 for the first time
thus remains a call for voting age to be lowered in uk from 18
overview of constitutional reform from 2010 to 2015
From 2010 to 2015 constitutional reforms have included introducing fixed-term parliaments, further devolution to Wales and elected mayors and police commissioners.
2011 fixed terms parliament act?
setting five year periods between general elections
act took away power from prime minister to call an election whenever they wanted to
election can only be called if 2/3 of majority of mps in house of commons pass a motion of an early election if a vote of no confidence is passed
example 201 theresa may, allowed to call a general election as 2/3/ of mps voted in favour of an election
constitutional reform from 2010 to 2015
- further devolution to wales
law making powers extended to the welsh assembly as a result of government of wales act 2014
this gave welsh government control over taxes (like business tax), included provision for a referendum in wales on whether national gov should have control over income tax
example- 2015 welsh gov granted control on income (tax up to 3 billion a year wihtout requiring a referendum)
constitutional reform 2010 to 2015 - on elected mayors and commissioners
2010 to 2015 coalition gov introduced elected mayors in many cities across england
new position of police commisioners introduced with commissioners having responsibility for policy quality across england and wales
police commisioners appointed through supplementary vote system
major reforms since 2015 - further devolution to scotland?
2016- further devolution of powers to scotland including power over some taxes , welfare and power to vary levels of income tax
devolution of financial powers known as devo max
more powers granted to scotalnd in response to increased nationalist feeling across scotland after 2014 independence referendum
major reforms since 2015- recall of mps
2015 recall of mps act, gave constitutencies to recall any mp acting inappropriately, or misbehaved
for an mp to be recalled, over ten percent of constituents need support from a petition in favour of it
major reforms since 2015- devolution outside london
from 2015, conservatives gave more powers to larger cities, government granted cities with financial independence by enabling them to keep revenue from business funds so they can fund local projects and policies
2016- manchester given power to control its own budget for social care and healthcare which had been previously controlled by central authorities
has the house of lords reform gone far enough?
Argue that reform has gone far enough
The House of Lords Act in 1999 removed all but 92 hereditary peers, making the Lords a mainly appointed chamber. This has modernised the chamber and made it more legitimate. The House is unelected still which allows for experts to be appointed who have experience in all realms of public life. Lord Norton, for example, is a politics professor and constitutional expert.
Argue that reform has not gone far enough
The idea that there are any hereditary peers is arguably archaic and outdated in a meritocratic society. There are 26 Bishops called the Lords Spiritual but no representation like this for other religions. It could be argued that church and state should be completely separate in the Lords. The 2017 Burns report argued that the Lords are bloated in size and costly to the taxpayer.
Evaluate
The House of Lords does perform an important function in scrutinising legislation but it is hard to reform the chamber as there is little political agreement on what to do with it. The Conservatives, for example, do not want to make the Lords elected as this could threaten the primacy of the Commons.
was the constitutional reform act sufficient in reforming the judiciary
it seprated the government, embedded idea that judiciary is physically and constitutionally separate, this strengthens the rule of law but
supreme court is weaker than other liberal democracies with codified constitutions
parliament is sovereign so it can pass any acts it wants , supreme court can declare them incompatible with law- but parliament retains ultimate sovereignty
supreme court is to protect liberites of citizens through human rights act(parliament can overturn this with a new act)
composition of the supreme court is not diverse
what did the 2015 recall of mps act do
gave constituencies power to recall any mp who behaved inapporopriately or misbheaved
-for an mp to be recalled, over 10% of constituents need to support a petition in favour of it
has been used: since it received royal ascent in 2015
successful in 2019- against peterborough mp fiona onasanya- triggered a by election in which she did not stand
what is devolution
Devolution refers to the divisions of powers among regions of the UK whilst supreme legal power remains in parliament in Westminster. There has been devolution of powers to regions and cities in England.
examples of devolution of powers to regions and cities in england
english votes for english laws- 2015, EVEL introduced to address issue of scottish mps voting on issues to do with england (and wales)
- means certain parliamentary votes can only be attended by mps from england, or england and wales
-this applies to votes in areas like education, criminal and health law
examples of decentralisation of powers to cities
devolution of power to citiesis a form of devolution in england,
- granted city mayors with more financial powers and control over their own city budget
-powers also allowed them to keep revenue from business rates (local taxes on commercial businesses so they can be invested in city projects)
- devolution deals :involved manchester, cornwall, liverpool, yorksihre, west midlands, north of tyne
examples of scottish devolution
taken place primarily as a result of the 1998 Scotland Act and 2016 Scotland Act.
e.g. scotland act 1998. passed following a referendum voting in favour for devolution in scotland
- it established a scottish parliament having its own powers over education, policing, criminal and civil law, health service, public transport, can vary rate of income tax
following 1998 scotland act, how did this affect scottish parliament,
scottish parliament held its first elections in 1999
it used additional member system, for voting members to parliament,
scottish government was formed by the largest party in parliament (or a coalition of parties)
effects of the 2016 scotland act
scotlands second stage of devolution
was a result of scottish citizens wanting a greater devolution of powers
wish for more devolution was clear following scottish independence referendum in 2014 (despite voting against independence people still wanted more devolution)
explanation of how powers were transferred to scotland
powers transferred to scotland over tax, included income tax rates , business tax, control over half of vat receipts
other powers devolved such as regulation of power industry
control over welfare services
air passenger duty
widening of areas where scottish parliament could pass laws
examples of welsh devolution
Welsh devolution has taken place through the 1998 Government of Wales Act and the 2014 Government of Wales Act.
government of wales act 1998
act established welsh national assembly which would have an executive drawn from it allowing it to have its first minister
(1998 welsh assembly had no law making or financial powers, but welsh government was granted powers to run public services , decided how to allocate funding it receives from cnetral government to those services )
areas which the welsh government were granted powers to run included health, public transport, education, local authroity service, agriculture)
government of wales act 2014?
(2006 government wales act devolved a small amount of powers to wales but 2014 act devolved more)
this act gave welsh govenrment powers over stamp duty and business
act stated a referendum deciding wales could have control over income tax on its citizens
(2015, welsh government was granted powers over income tax - up to 3 billion pounds per year without a referendum taking place)
examples of northern ireland devolution
Powers were devolved to Northern Ireland as a result of the Good Friday Agreement in 1998.
what was the good friday agreement
1998 good friday agreement- restored devolved powers to northern ireland
agreement established an assembly which was to be elected using proportional representation- used so all the sections of the northern ireland society would be represented
all major parties in northern ireland guaranteed ministerial positions as executive in northern ireland was based on power sharing
(northern ireland had various powers in 1972 until parliament was dissolved)
how were powers devolved in northern ireland
powers devolved over areas like healthcare, transport, agriculture, policy, and education
northern ireland assembly was granted power to pass laws not reserved to westminister parliament
explain the dissolved parliament in northern ireland
northern ireland assembly dissolved in 2002, - following tensions between loyalist and republican communities
(assembly re-opened in 2007)
should constitutional reform acts be taken further since 1997? (arguments for it already being successful)
Some have arguably had success and resulted in democratic improvement
e.g. devolution and reform in the judicial system
devolution was successful and supported in scotland and wales (devolution hekped ensure peace in northern ireland )
regional devolution allowed power to be decentralised
2005 constitutional reform act, established a supreme court independent of parliament and government
explain the the constitutional reform act being successful for fixed term and electoral reform
fixed term elections have meant a check on the power of the executive and prevented prime minster from calling a snap
election to gain political advantage over others
proportional representation used for elections to devolved assemblies (has improved the representation of voters)
constitutional reform acts since 1997, the electoral reform act was not sufficient enough
there has not been electoral reform away from first past the post, for general elections to parliament
fptp remains in place often results in unrepresentative outcomes, 2017: the snp won 35 seats despite winning 3 percent of the vote (whilst lib dems won 12 seats yet won over 7.4% of the vote)
constitutional reform act was not sufficient enough- house of lords reform act
despite the removal of all but 92 hereditary peers to help make the chamber more professioanl chamber (further reform is arguably needed)
chamber should arguably become a fully elected and more democratic chamber - as it has powers to check legislation and the government
house of lords remains entirely unelected and therefore undemocratic
arguments for and against for more devolution in england
for further devolution,
- it would improve accountability by bringing government closer to people and communities
-more devolution would prevent significant differences in living standards between different partsof the uk
- devolution would increase political participation
- devolved governments would ensure regional problems are better addressed
against further devolution
-it would increase divisions in english societies by promoting ddisunity
-it could result in too many elections taking place resulting in voter apathy
-not significant demand for greater devolution in england
why might the house of lords still be criticised
the lords appointment process can still be influenced by prime minister’s patronage powers
prime ministers patronage powers
(The prime minister decides the ranking order of all ministers. The prime minister holds powers of patronage which means that at any time, they may obtain the appointment, dismissal or nominal resignation of any other minister.)
the constitution should be codified
- includes protecting human rights, checks on government power and more clarity for citizens
- provides a stronger protection of human rights
- 1998 human right act, which adopted european convention of human rights (example of human rights being codified to an extent, however, it still remains weak as parliament can override the act)
how does a codified constitution provide checks and clarity
-written constitution far more clearer than an unwritten constitution
-codified constitution improves understanding of public awareness of constititon in uk
-codified constituion ensures written checks and balances would be in place to limit power of executive
-under a codified constitution, parliament would haveclear powers to control the executive
arguments for an uncodified constitution
allows for a strong government, it is flexible,
(a codified constitution could politicise the judiciary, and it is not necessary to be changed: written constitutions can limit any effective government action because of the preventions it puts in place- undermining parliamentary sovereignty)
- allows a strong government to carry out actions and deal with issues decisively
why should the constitution be uncodified (change is a difficult process)
changing to a written constitution would be a difficult process,
not necessary to reform as it has served without major problems in uk for many years
uk has many unwritten conventions, such as prerogative powers, which would require writing down into any codified constitution
(Crown Prerogative is the term used to describe powers held by the Monarch or by Government ministers that may be used without the consent of the Commons)
why should the constitution be uncodified (for flexible and politicising judiciary)
if it was a written constitution, could lead to supreme court dealing with disputes over the meaning of the constitution (this is the case in the usa)- court would bcome involved in political issues despite not being elected
(e.g. 2010 general election, uncodified constitution means its easy to develop a new set of principles so a coalition government could be formed)
why are uncodified constitutions better
the westminister model can more easily adapt to circumstances and be flexible
supreme court does not have to enter disputes over the meaning of a written constitution
What might be the challenge with the UK changing to a written constitution?
conventions would need to be pinned down and codified which becomes complex
Explain the UK constitution
The UK has an unwritten and
unentrenchd uncodified constitution. The primary source of the UK constitution is
statute law, which underpins the core principles of
parliamentary sovereignty.
Why the UK should adopt a written constitution
A codified constitution would provide greater protection of
human rights.
Recent events, such as the Blair government suspending the HRA to deal with terrorism or suggestions by Conservatives that the HRA should be scrapped entirely, prove that civil liberties are not well defined.
A codified constitution would improve understanding and public awareness of the constitution in the UK. Also, parliament would have clear powers to control the
executive.
Why the UK should not adopt a written constitution
The UK has many unwritten conventions, such as prerogative powers, which would require writing down into any codified constitution. An uncodified constitution is flexible: following the 2010 general election, an uncodified constitution meant it was easy to develop a new set of principles so that a coalition government could be formed.
is the uk unitary state?
unitary state is when power is centralised
(any local administrative decisions as ones exercised only at consent of the central level )
principle of uk has been weaked by devolution deals
scotland wales and northern ireland all have own regional assemblies with varying powers
engand has city mayors with financial powers facing their own elections
(thus arguing uk is a union state)
(however westminister is sovereign and ultimate authority remains here, extent to which holyrod or greater manchester mayor have autonomy is thus debatable)
what implications might a codified constitution have on the judiciary
supreme court have clearly defined powers separate from other branches of government, this could increase power of judiciary as a check on executive and parliament
a written constitution could lead to supreme court dealing with disputes over the meaning of what a constitution is (as is the case in the usa)
means court would become more involved in poltiical issues despite not being elected
