theme 1 - the constitution Flashcards
what is meant by an unentrenched, uncodified constitution?
-unentrenched. Laws relating to the constitution have the same status as any other regular law. They can be amended just as easily.
-Uncodified. The constitution is made up of several documents, some are written, and some are not. The constitution cannot be found in a single text.
what are the two twin pillars of parliament?
- ‘twin pillars’ are parliamentary sovereignty and the rule of law.
^ Parliamentary sovereignty is exercised in 3 ways: no parliament binds its successor, parliament can pass a law on any topic (like the same sex marriage 2014) and legislation cannot be struck down by a higher authority – there is no higher authority.
^The rule of law states the law is applied to everyone equally. All citizens must obey the law, regardless of who they are, and everyone must be subject to its enforcement.
The 3 main sources of the constitution - what is the difference between statue law, common law and convention?
Statue law – the laws that are passed by parliament themselves. This is the most important source as it is underpinned through the concept of parliamentary sovereignty. For example, the same sex marriage act (2013), the scotland act (1998), etc. Statue law has legal authority and enforcement.
Common law. Legal principles created by judges. It is how they have interpreted an Act and how they think it must best be implemented. Common law helps judges later on decide how to implement an Act. For example, the common law to privacy. This respect for privacy originates from how judges have interpreted the Human Rights Act.
Conventions. Customs and practices that do not have any legal authority yet are widely accepted as the correct code of conduct. For example (following the Iraq War) the convention to consult parliament before going to war. Such conventions allow for the operations of parliment to run more smoothly- they therefore do not require any legal authority, as they are just commonly accepted pratices. For example: The salsibury convention - that states the HOL should not block bills that were in a partys winning manifesto.
How has devolution in Scotland been successful?
Devolution in Scotland has allowed for their own parliament that represents their views.The scottish parliament was set up in 1999 and consists of 129 SMPs. The parliament has devolved powers given to them by Westminster – these powers include: education, housing, justice, etc.
^ Devolution has been so successful in Scotland that in 2012 the Calman commission gave the Scottish parliament more devolved powers, including:
- the right to change income tax
- regulate their own air weapons
-drink driving limits
-borrowing powers, etc.
These new powers have allowed Scotland to trial new progressive legislation that Westminster is yet to implement themselves, for example:
- free university tuition
- free care for the elderly
- votes for 16-17 year olds
- cannot sell alcohol past 10pm
-No legal limit on the amount of hours shops can be open for on a Sunday (unlike the rest of the Uk)
Westminster has been seen to follow the Scottish parliaments initiative on a few areas of legislation - for example, the scottish parliament respond quicker to the Covid-19 outbreak, and each decision made Westminster would also follow a handful of weeks later.
How has devolution in Scotland been unsuccessful?
-One of the main purposes of devolution in Scotland was to silence the call for full independence. However, if anything, by giving them more powers they only wanted more. This led to the 2014 Scottish independence referendum, where they voted to stay by a marginal 55%. This meant 45% of the population was left unsatisfied.
-Most recent calls for a second referendum have begun since the Uk left the EU. This is because although the Uk as a whole voted to leave, Scotland as a whole voted to stay. The 2014 referendums verdict is now viewed as outdated, as the Brexit referendum verdict highlights the clear difference between Scotland and the rest of the Uk.
-The SNP party has been left divided on what to now prioritise in the future: 1) being a good parliament for Scotland or 2) campaigning for independence still.
-There have also been clashes in their differing views on what they can, and can’t legislate on. For example, despite Scotland being given devolved secondary powers over health care / services, their gender reform bill was blocked by Westminster - as they said this bill would impact wider Britain.
How has devolution been successful in Northern Ireland?
Devolution in Northern Ireland has allowed for the end of the period known as “the troubles”- this was a period of 30 years of violence between the Catholics and Protestants.
^The Good Friday Agreement was seen as a great success for Tony Blairs premiership - the proposed possibility of a Northern Irish Assembly pushed for both sides (unionists vs nationalists) to put their differences aside.
Thus, Northern Ireland has became a much safer country to live in since the start of devolution.
The creation of their own assembly has been given secondary and some primary legislative power. They introduced a lot of new legislation in 2022, including:
1) protection from stalking Act (2022)
2) adoption and children Act (2022)
3) organ donation Act (2022)
4) Climate Change Act (2022)
^Thus Northern Ireland can create new legislation that Westminster hasn’t yet, allowing for them to cater for the needs of northern Ireland.
How has devolution been unsuccessful for Northern Ireland?
Tension between Sinn Fein and the DUP has remained since 1999, with both sides questioning their intentions in government.
The Northern Ireland Assembly was dissolved from 2002-2007, with the Westminster civil service running it instead, after the DUP pulled out from their power sharing agreement. This was because Sinn Fein’s offices had been raided by the police following suspicion they were collecting information for the terrorist group the IRA.
Violence between Catholics and protestants in NI is far from gone. Peace walls still remain in NI separating the two communities at night time, and NI has a large police presence. Youth gang violence has increased in NI since Brexit due to tensions amongst the unionists and nationalists within NI.
DUP leader has recently been arrested for rape allegations - although this hasn’t caused tension in their assembly, it could result in further tension down the line for the people caught up in such division in NI.
How has devolution been successful in England?
- London Mayor
-Metro Mayors
-Police and Crime commissioner
The London Mayor was established in 2000, and has an increasingly large range of powers.
^They have a budget of £20 billion, and they decided how this budget is allocated across the 5 functional bodies of the London Assembly
^They make decisions on transport, police and crime, fire fighters, etc.
^Candidates must make a manifesto and be directly elected through the FPTP system.
^Ken Livingstone (the first London Mayor) introduced the oyster card, London congestion charge (£15 a day) and the largest low emission zone in the world (at the time of its creation).
^Boris Johnson used his London Mayoral position to gain popularity and eventually go on to be PM
^Sadiq Khan has been personally blamed for the amount of knife crime in London - with the office for statistics regulation claiming Sadiq khan had lied about falling knife crime in London since 2016. Highlighting how important the London Mayor is, if they’re under scrutiny.
There are currently 12 Metro Mayors in the Uk. Metro Mayors are responsible for setting out an economic growth plan for their area, and thus have powers on: housing, transport and skills (human capital).
^However what the specific powers each metro mayor has, has been decided on an individual basis across the country.
^Different Metro Mayors have a different annual budget. For example, the North East Metro Mayor has the largest budget at £1.4 billion. However, they lack authority over things like policing and healthcare. Whereas the south Yorkshire mayor has a smaller budget, yet has power over these two areas.
Police and crime commissioners first became elected by the public in 2012.
^They have the power to establish local priorities for their police force
^They are subject to scrutiny by their local police and crime panel
^They set the annual budget and where money is allocated
How has devolution been unsuccessful in England?
The West Lothian question is the problem where scottish, Welsh and northern Irish MPs can vote on English matters, however English MPs cannot vote on Scottish, Welsh or Northern Irish matters. The term “West Lothian question” gets its name from a scottish MP for West Lothian, who first raised the issue in the 70s while discussing proposals of devolution.
This problem was attempted to be fixed by the introduction of EVEL - English votes for English laws. This is where only English MPs can vote on English matters in Westminster. EVEL was used several times, namely in 2016 following a new housing bill.
However EVEL was eventually scrapped in 2021, stating its introduction delayed the legislative process and took too much time - in trying to figure out whether a bill would only effect England or not.
^EVEL was also accused of being a tool for the conservatives to manipulate laws, as they are most dominant in England.
How has the constitution changed between 1997-2010? and to what extent should these reforms be taken further?
-Devolution
-Electoral system
-HoL Reform
-European Convention of human rights
-The Supreme Court
- House of Lords reform - The Labour government had in their manifesto to reform the composition of the House of Lords, following recent scrutiny of its democratic legitimacy and questions over what role it should play. They originally wanted to remove all hereditary peers, however had to compromise at removing all but 92. In present day, if a hereditary Lord passes away, their predecessor must be voted in. The HoL appointment commission was also set up in 2000, which nominates new peers into the HoL that do not prescribe to a particular party.
^However, questions can start to arise over whether further reform needs to be taken. The PM is still the main figure to nominate people for lordship, which has been heavily scrutinised in recent years. For example, Johnson nominated his brother, Liz Truss shouldn’t had a nomination at all, and Sunak has nominated the conservatives largest donor.
- Electoral reform - In Labours manifesto they included a pledge to hold a referendum on changing the electoral system for general elections. This was after many calls for a more proportionally representative electoral system, and concerns over wasted votes and safe seats.
^However this may show how policies in a winning party’s manifesto must have legal authority, as they are the only policies that have their own mandate. This would’ve forced labour to stay true to their word, regardless of the 179 seat majority they won as a result of FPTP.
- Devolution - The Scotland Act (1998) established the The Scottish parliament which consists of 129 SMPs (Scottish members of parliament). The parliament has devolved powers given to them by Westminster – these powers include: education, housing, justice, etc. Distinct acts they have passed include free tuition fees for all Scottish university students. There is also free nursing for the elderly. In 2012 the Calman commission gave the Scottish parliament more devolved powers, like the right to change income tax and regulate air weapons over Scotland. Devolution in Northern Ireland was given to try and get the unionists and nationalists to cooperate. This division is also linked to the division in NI between the Catholics and protestants. It was thought if they were forced to work together (guaranteed through the STV voting system) then these divisions would go away overtime. The Great Friday Agreement was seen to be a huge success for Blair, as it was the first time both sides had ever agreed to cooperate with each other. This agreement ended most of the violence from “the troubles” period which lasted 30 years.
^However, devolution hasn’t fulfilled its function of silencing Scotland’s wants for independence, and therefore it appears complete independence is needed rather than devolved powers that can be taken back when it best suits.
- Human Rights Act - The European convention of human rights was incorporated into law in 1998. This act gave people the rights to freedom of thought and expression, right to a fair trial, right to privacy, right to family, etc. All future laws that parliament wanted to pass from this moment onwards, had to comply with this Act, showing a degree of entrenchment.
^However, it appears that the European convention of human rights needs to be more entrenched within our constitution in order to actually protect individual liberties. currently all it takes is an act of parliament to override it.
- The Supreme Court - The constitutional reform act (2005) led to the creation of the supreme court, making it the highest court of appeal now in the Uk for both civil and criminal cases. It therefore took over the role of the previous Law Lords – who used to sit in the House of Lords. This therefore created greater judiciary independence - as judges must be free from political interference. They check that the government is not acting ultra vires through their judicial reviews. They also can issue a deceleration of incompatibility that states the governments new law isn’t compatible with the Human Rights Act.
^However, There have been cases where a judicial review has ruled that a decision was unlawful, so the government has introduced a new law to make sure this is no longer the case. In 2007 the Home Office freezed assets of suspected terrorists to prevent fundraising for their associated terrorist groups – despite any charge of criminal offence yet. However, this goes against the convention innocent until proven guilty. They would need to have a criminal record of terrorism in order to have their assets freezed. Instead of unfreezing their assets, in 2010 the Government passed the terrorist asset-freezing Act. This act was passed in just 4 days and was “nodded through” (passed without vote) in the HOL. Therefore, showing the structural limitations of judicial reviews – they only check if someone has acted within the existing law, they do not change the law.
How has the constitution changed from 2010-2015? Are these changes still in place today?
-Fixed Term parliament Act
- Further devolution to Wales
-Police and crime commissioners
- Fixed Term parliament Act - before the fixed term act (2011) there was the convention that the PM could call an election when they pleased. This concerned the coalition government, as this power could be used to bully the Lib Dems into agreement over other bills. There was also concerns over the past abuse of “snap elections” - where the PM calls an election, this gives the government an advantage of surprise over the opposition, meaning they are better prepared, and it also means they can call an election when they are doing good in the polls, also having an unfair advantage over their opposition. an early election would now only occur if a vote of no confidence was passed in parliament – where 2/3 of parliament agreed.
However, in 2017 Thersea May announced a snap election and avoid the restrictions of the previous fixed terms act by introducing such a motion and achieving 2/3 majority in parliament. The opposition could not oppose the motion as this would’ve presented them as weak in avoiding an election. Her stated reason was to strengthen her position in parliament to try and get the Brexit deal – however it seems that the real reason she called such snap election was the conservatives were 20 points ahead in the polls compared to labour. Therefore, showing how the PM can find way around such legislation introduced to limit their influence. Yet it is important to remember how Thersea May actually lost seats from this snap election, showing how even when they try to dictate when an election should be held, it doesn’t always work in their favor.
- Further devolution to Wales - Due to the Lib Dems presence in government, this meant that further devolution to Wales remained on the agenda. in 2011 a referendum was held in Wales on whether they should gain primary law-making responsibilities should be extended. Over 60% voted in favor of such expansion. The “silk commission” was established to investigate/propose appropriate further devolution for Wales after this referendum. As a result of their recommendations made in 2012 and 2014, the government introduced the 2014 Wales Act – this included primary legislation responsibilities over taxation and further borrowing powers.
- Elected Police and Crime commissioners - in the 2010 manifesto both the conservatives and Lib Dems manifesto said they would make such positions elected rather than appointed. Elections are every 4 years. Turnout is very low, at an average of 30%.
How has the constitution changed since 2015?
- Metro – Mayors. The Cities and Local Government Devolution Act stated new powers could be given to local authorities if they elected a metro-mayor. In 2015, George Osborne announced that local authorities could keep all the revenue from business rates rather than giving it to the central exchequer. This gave them considerable financial independence and meant they could now afford greater projects in their cities. Any city which adopted a city mayor would have the power to increase the level of business rates, increasing their revenue. This represented the first major step towards more independent local government. In 2016, George Osborne announced that Manchester could control its own budget for health and social care – this represented a budget of £6 billion per year. As of 2023, there are now 9 elected metro-mayors in the Uk. There are now metro mayors in big cities like Liverpool, Manchester, etc.
- Brexit - Triggering Article 50 and the withdrawal form the EU has had a huge impact on the constitution. You could argue that sovereignty has been returned to Parliament. The Government is now free to make treaties and trade agreements with countries outside the EU. Joining the EU meant that EU law would be supreme over UK law- this was clearly established by the Factortame case. From 2021 Parliamentary law is supreme again.
^The Factortame case - a Spanish fishing company appealed the the ECJ that Britain was acting unlawful under European law, as they required that all ships must have a majority of British owners in order to be registered in the Uk.
- removal of EVEL
- Fixed term parliament Act not working
what are the debates on further reform to the constitution?
(bullet points)
- codified constitution
-elected House of Lords
-Devolution to England
Why may a codified constitution be a way of reforming our constitution?
Currently our constitution is an unentrenched, uncodified constitution. This means constitutional laws have the same legal status as any other statue law. This is enforced through parliamentary sovereignty - where no parliament binds the next.
However this means that a simple majority can remove an constitutional act. This means that constitutional acts that were put in place to protect individual rights, devolution process, etc can be overruled by the sitting government if they enforce the whip on their MPs.
For example: the proposal from the conservative party to remove the European convention of human rights (1998) and relace it with their own British bill of rights.
However if the constitution were to be codified, this would be placed above usual statue law. Therefore our rights become more guaranteed, and any other act introduced must be compatible with the constitution.
A codified constitution that is written up all in one place will make it easier for people to understand the rule of law, and make rulings in the supreme court less open to value judgement from the Judges, and more focused on what is written down.
Currently the Uk constitution is made up of many different sources - however much of these sources are not reliable. Only statue law has legal enforcement. whereas conventions are just commonly accepted practices that can be often overlooked - for example, the Salisbury convention overlooked by Lib Dem peers for labours identity cards, due to a low turnout. Equally, common law is just commonly accepted ways accepted by judges on how to enforce a statue law. This is open to interpretation and doesn’t have any legal enforcement. Thus much of our constitution is not strong enough to properly protect our constitution, and thus our rights.
Why may a codified constitution be a bad thing for our constitution?
Our current uncodified constitution allows for great flexibility, and allows for manifestos to be implemented, and for mandates to be actualised into legislation.
If there was a codified constitution, there would be a loss of parliamentary sovereignty - as now there is something placed above parliament - that being the constitution. This means that there is now a limit on legislation that parliament can introduce, limiting their ability to form manifestos and there ability to implement their objectives and actualise their mandate.
^It could also mean a loss of sovereignty for the Uk, due to this limit on what can be proposed to the electorate, and what cannot.
If you ever wanted to change the constitution, this would require a large enough majority and certain criteria to be met before this could take place. This is very time consuming, and unrealistic. This limits parliaments ability to remain dynamic and respond to contemporary issues or wants - for example, the same sex marriage act 2014. Therefore, a codified constitution binds you to the period in which it was written in. for example, America has struggled to legalise guns as it is within their constitution - written in the 1700s. In the seventeen hundreds it was important that everyone had the right to self defence, yet as times have changed and their police force has progressed, it remains unclear why someone should be allowed a gun in modern America anymore.
The process of writing the constitution could be open to political bias and influence. It is hard to imagine how the whole of parliament would be able to come to a consensus on what should be included in the written constitution and what shouldn’t. The time spent debating the contents of the constitution could be better spent responding to issues in the country.
