UK Politics - Constitution

Question 1

A constitution is…

Answer 1

• a set of rules and principles determining the relationship between political institutions and the distribution of power within a political system.
• it establishes limits on power as well as defining and protecting citizen’s rights and establishes the relationship between government and the people.
• it is uncodified, unentrenched, unified and flexible - based on the principle of parliamentary sovereignty.

Question 2

Magna Carta (1215)

Answer 2

• signed between King John (r199-1216) and is feudal barons in 1215
• it was designed to deal with a political crisis at the time
• established that everyone was equal before the law (including kings)
• established some limits on the monarch
• can be seen as the first constitutional check on executive power
• gave people the right to trial by jury (fundamental right still today)
• associated with habeas corpus (people can’t be unlawfully detained or punished)
• seen as prototype for later documents such as Human Rights Act, Universal Declaration of Human Rights

Question 3

Bill of Rights (1689)

Answer 3

• King James II was replaced by William & Mary after the ‘Glorious Revolution’ in 1688
• Parliament invited them to take the throne if agreed to have limits on their monarchial powers
• this was the start of a constitutional monarchy - the start of royal prerogative powers being transferred to the PM - parliament was now sovereign

Question 4

Act of Settlement (1701)

Answer 4

• constitutional significance: further restrictions on the monarchy and transfer of powers to Parliament
• e.g., Parliament appointing judges (not monarch)
• monarch’s not being able to pardon anyone that was impeached by Parliament
• any Crown officeholder or official was barred from sitting in Parliament
• key provision was prevention of Roman Catholics succeeding to the throne - still in place today except ban of those married to RCs ended in 2013

Question 5

Acts of Union (1706-07)

Answer 5

• the English parliament passed a Union with Scotland Act in 1706
• the Scottish parliament passed a Union with England Act in 1707
• both came into force in 1707 which created a single, united Kingdom of Great Britain
• the two sovereign nations had shared a monarch since 1603, so the main constitutional change was the creation of a single parliament for GB
• this was based in Palace of Westminster, where there had previously been two separate legislatures

Question 6

Parliament Acts (1911 and 1949)

Answer 6

• sought to establish the authority of the House of Commons and restrict the powers of the House of Lords
• 1911 was a response to a clash between Liberal Chancellor of the Exchequer, David Lloyd George, and the HoL (which had a Conservative majority and kept blocking his ‘People’s Budget’)
• measures were introduced to prevent the Lords from being able to veto a public bill, instead allowing them only to delay it
• money bills could be delayed for up to 1 month and other public bills for 2 years
• 1949 reduced the amount of time tat the Lords could delay a bill to only 1 year
• the provisions of the Acts have been used infrequently, because compromises have generally been reached to avoid their use
• Hunting Act (2004)

Question 7

European Communities Act (1972)

Answer 7

• Act of Parliament which led to the UK joining the Common Market of the European Economic Community (EEC)
• influenced the UK Constitution by ensuring that the terms of the Treaty of Rome 1957 (and other European treaties) were binding on the UK Parliament
• this meant that EEC (and later EU) law was binding in the UK and could not be amended or repealed by the UK parliament other than by repealing the European Communities Act
• the EU Withdrawl Act 2018 includes the repeal of the European Communities Act

Question 8

Nature of the UK Constitution

Answer 8

the UK Constitution is…
- uncodified: not written down in a single document (unlike US Constitution)
- flexible: as opposed to rigid. can be easily amended as it is unentrenched
- unentrenched: constitutional laws have no different status to other laws in the UK so can be changed, amended or repealed with a simple majority in Parliament
- unitary: as opposed to a federal constitution, sovereignty rests with a single source (Parliament)
- although devolved assemblies have law-making powers, they were granted them by Parliament (and in theory can be easily removed)
- e.g., The Local Government Act 1985 abolished the Great London Council
- evolutionary: it’s developed over a long period of time, whereas many codified constitutions are the product of a revolution

Question 9

Twin pillars of the UK Constitution

Answer 9

¬ Parliamentary sovereignty
- supreme power resides with Westminster Parliament
- seen as a fundamental part of the constitutions as no parliament can bind future parliaments
- e.g., if Parliament makes a law, it can always change it
- Parliament can change the constitution as it is uncodified and flexible
- however, some suggest that executive dominance, devolution, increased use of referendums, and pooled sovereignty (in bodies such as the EU) all threaten this principle
¬ Rule of Law
- the principle that everyone and all institutions are bound by the law, incl. government and Parliament
- in effect, this prevents the whimsical use of power
- the law should be fairly and consistently applied and enforced to all

Question 10

1. Sources of the UK Constitution - statute law

Answer 10

• statute laws are those laws passed by Parliament, i.e. Acts of Parliament
• because of parliamentary sovereignty, statute law takes precedence over other sources of the constitution
• most statue law does not relate tot he constitution
  however, there is a lot of statute constitutional law like the Parliament Acts 1911 and 1949, HRA 1998, Freedom of Information Act 2000 and EU Withdrawal Act 2018 etc

Question 11

2. Sources of the UK Constitution - common law

Answer 11

• UK judicial system works on the principle of precedence
• a lot of law is based on decisions that judges have taken in the past and not based on a clear written statute from Parliament
• senior judges, such as the SC judges, take a view on a matter of constitutional significance which will then be the basis upon which future similar situations are viewed and decided
• the royal prerogatives are examples of common law
• common law is also known as case law and legal precedent
• common law has equal authority to statute law
• however, it cannot contradict statute law and new statutes could replace existing common law

Question 12

3. Sources of the UK Constitution - conventions

Answer 12

• some aspects of the UK Constitution are based on the fact that that is the way things have been done: they have become a convention (incl. many significant aspects)
• e.g., the PM having to have the confidence of Parliament
• many aspects are based on convention as opposed to being written as statute law or based on judicial decisions
• new conventions can emerge
• e.g., it is becoming a convention that significant constitutional change requires ratification by referendum

Question 13

4. Sources of the UK Constitution - works of authority

Answer 13

• many books have been written over the years to try and explain the UK Constitution since it is uncodified
• e.g., Parliamentary Practice (1844) - Erskine May
• e.g., The English Constitution (1867) - Walter Bagehot
• politicians often refer to these books in debate, citing them as an authority to settle constitutional questions
• now they are considered to be an integral part of the constitution and not just a commentary on it
• e.g., Theresa May’s Brexit deal in 2019 (“meaningful votes”) - quote from Erskine May: Parliament should not consider the same question twice in the same session (it is up to the Speaker to decide whether they’re the same)

Question 14

5. Sources of the UK Constitution - treaties

Answer 14

• treaties can form part of the UK Constitution - esp those which have developed and established the EU
• Treaty of Rome 1957 and Lisbon Treaty 2009 have established that EU law applies to the UK (at least until Brexit..)
• EU law takes precedence over statute
• reason why eurosceptics suggest that the EU undermines parliamentary sovereignty
• europhiles counter that Parliament chose to pool its sovereignty with other countries through the European Communities Act (+ subsequent statutes)
• governments are able to sign treaties using the royal prerogatives, which are derived from common law

Question 15

Constitutional reform since 1997

Answer 15

under Tony Blair and Gordon Brown…
¬ decentralization
- devolution to Scotland, Wales, NI and London
- elected mayor in London
¬ measures to enhance or embed citizen’s rights
- HRA 1998
- Freedom of Information Act 2000
¬ modernisation
- CRA 2005 - which introduced Supreme Court (among other reforms)
¬ democratisation
- electoral reform - introduced AMS in devolved assemblies in Scotland and Wales, and STV in NI
- HoL reform 1999 - removed most of the hereditary peers (although peers are still not elected)

Question 16

House of Lords reform

Answer 16

• most members of the Lords were hereditary before 1999
• compromise deal for reform - 92 hereditary peers could stay
• reduced the # of peers from over 1300 to 669 in 1999 (mostly life peers). this # keeps growing as governments appoint new peers
• intended as phase 1 of the reform - intention of Lords to become a modern chamber (fully or partially elected)
• this never happened under Labour governments and taken up again without success by Clegg in 2010-15 under coalition
• limited, further reform came with the HoL Reform Act 2014 (proposed by Lord Steel: backbench Lib Dem)
  ¬ HoL Reform Act 2014
• allows members of oL to resign/retire (previously impossible as they held seat for life)
• makes provision to exclude Lords who commit serious criminal offences resulting in jail sentence of min 1 year from returning to HoL

Question 17

Electoral reform

Answer 17

• Labour’s 1997 manifesto promised that an independent body would investigate electoral reform
• said it was ‘committed to a referendum on the voting system’
• Roy Jenkins (commissioned by Blair) researched most appropriate electoral system for the UK
• concluded that AV+ was most appropriate (a hybrid system, like AMS)
• government lost interest in reforming electoral system for general elections and no referendum was called
• experimented with different systems in devolved assemblies
• STV in NI and local Scottish elections and AMS in Scotland and Wales

Question 18

Devolution

Answer 18

• 1997 government introduced devolution to Scotland, Wales, NI and London
• proposed further devolution to English regions - didn’t receive significant support though
• Scotland Act 1998 - Scottish Parliament + government (referendum) - able to make primary legislation and some tax-varying powers
• Wales Act 1998 - Welsh Assembly and executive (closer referendum result) - able to make secondary legislation
• Wales Act in 2006 extended the assembly’s powers
• Northern Ireland Act 1998 - Northern Ireland Assembly and executive (Good Friday Agreement) - peace process
• 2000 The Great London Assembly and elected London Mayor
• 2004 Referendum to establish an assembly for the north-east of England (78% voted no on a low turnout)

Question 19

Human Rights Act 1998

Answer 19

• brought the European Convention on Human Rights (ECHR) into UK law
• citizens could seek redress for human rights abuses through UK courts rather than having to take them to the European Court of Human Rights in Strasbourg
• brought the UK more in line with other modern democracies that tend to have codified rights (e.g., bill of rights)
• SC can issue a declaration of incompatibility if new legislation is deemed to be in breach of the act
• Parliament however, is not bound by this due to parliamentary sovereignty
• no parliament can bind future parliaments, so the HRA could be repealed by simple parliamentary majority
• Conservative Party has proposed replacing it with a new ‘British Bill of Rights and Responsibilities’ (hasn’t occurred)

Question 20

The Supreme Court

Answer 20

¬ CRA 2005 - many changes
- establishment of SC in place of the Law Lords (who were previously highest court of appeal), from within the HoL
- intended to create better separation of powers in the UK, taking the senior judiciary out of the legislature
- SC is effectively a constitutional court however doesn’t have law-blocking power that US courts have (and other EU countries) due to lack of codified and entrenched constitution
- made up of 12 senior judges (SC justices) appointed by independent appointments panel (as are all judges since 2005 act)
- highest court of appeal
- focuses on cases with most constitutional significance
- e.g., Miller vs Secretary of State for Exiting the EU (2017) which concluded an Act of Parliament was required to trigger Article 50 and the government couldn’t just use the royal prerogative

Question 21

Constitutional reforms 2010-15

Answer 21

• under the coalition government of David Cameron + Nick Clegg
  ¬ democratization
• the Wright reforms (2010) - increasing the role of backbenchers
• Recall of MPs Act 2015 was part of the 2010 coalition agreement
  ¬ decentralisation
• introduction of Police & Crime Commissioners (elected representatives in charge of policing)
• more elected mayors (e.g., Manchester) - further English devolution
  ¬ modernisation
• Fixed Term Parliaments Act 2011
• also AV referendum of 2011 on electoral reform (defeated) and Clegg focused on Lords Reform (unsuccesful)

Question 22

Fixed Term Parliaments

Answer 22

• this set the precise date of the next general election, taking away the power of the PM to choose the date of the next election
• change from the general election having to be within 5 years to parliament having to last the full 5 year term
• mainly to ensure the coalition partners were making a long-term commitment to work together
• despite coalition lasting full term, the next parliament was only 2 years with May calling a snap general election
• the act allows for Parliament to vote for a general election if 2/3 of MPs support it
• as it’s unlikely for opposition to vote against holding general election, the act does not restrict power of PM as much in practice as on paper
• provisions for a no-confidence motion - doesn’t immediately trigger general election, but would in 14 days unless current MPs find they have confidence in a new government without an election
• this is unlikely but not impossible if there is a hung parliament

Question 23

Recall

Answer 23

• coalition agreement included a commitment to introduce a process to recall MPs, leading to the Recall of MPs Act 2015
• where constituents can force a by-election if they are unhappy with their representative
• allowed for the Speak to call a new by-election in certain circumstances (e.g., if MP given prison sentence)
• 10% of constituents must sign a petition to recall MP
• concern that MPs who make unpopular but wise decisions would be penalised (difference between trustee and delegate theories of representation)
• made threshold to bring about recall was set quite high
• recall petitions attempted against Ian Paisley in North Antrim 2018 and Fiona Onasanya in Peterborough 2019

Question 24

Constitutional reform since 2015

Answer 24

• English Votes for English Laws (EVEL) - part of a package of English devolution
• partial response to the West Lothian Question
• further English devolution - more elected mayors and further powers to English cities
• Brexit
• several changes as part of leaving EU e.g., repealing the European Communities Act of 1972

Question 25

Devolution in England

Answer 25

• West Lothian Question - concerns about measures introduced that only affected England that depended on votes of Scottish MPs in Parliament
• e.g., university tuition fees and foundation hospitals
• one response was ELL but often seen as an interim measure with some calls for an English parliament or English regional assemblies (e.g., York)
• regional devolution tended in be city regions
• e.g., elected mayors in cities and city regions like West Midlands, Manchester and Liverpool
• along with increased powers and control of budgets
• powers of these metro mayors vary significantly from city to city

Question 26

Scottish Parliament and government

Answer 26

• established by Scotland Act 1998 after a referendum
• always had primary legislation powers and able to vary income tax by up to 3p in the £
• Scotland Act 2012 increased range of tax varying to +/- 10p and devolved some other taxes
• Scotland Act 2016 gave many more powers like setting own income tax rates and keeping Scottish VAT revenue
• many of these powers were in response to increased demand for independence
  ¬ Scottish Parliament is responsible for…
• agriculture, education, economic development, environmental policies, justice, local government, police & fire services, housing, health, social services, planning, tourism

Question 27

Welsh Assembly and government

Answer 27

• established by Wales Act 1998 after close referendum result
• assembly was granted secondary legislative powers
• Wales Act 2006 gave Wales a further referendum to increase its powers
• further referendum in 2011 as a result, “yes” vote for primary powers in a number of devolved areas of policy
• Wales Act 2014 gave government some powers over tax
• Wales Act 2017 provided for powers to vary income tax +/- 10p, moved to a reserved powers model (can legislate on any matters not reserved to Westminster)
  ¬ Welsh Assembly is responsible for…
• agriculture, culture, education, economic development, environment, health, housing, fire & rescue services, local government, transport, some planning matters

Question 28

Northern Ireland Assembly and executive

Answer 28

• NI Troubles were significant feature of politics especially in 1970s-90s
• 1998 Good Friday Agreement began a long and difficult peace process (1 feature was devolution and power-sharing executive)
• subsequent devolution in 2010 (policing and criminal justice as part of peace process)
• Corporation Tax (Northern Ireland) Act 2015 allowed executive to set its own corporation tax rate for the province
• there’ve been several periods of direct rule since 1998 due to political difficulties in peace process, notably from 2002-2007
• St Andrews Agreement 2006 restored devolution in 2007, established that Westminster couldn’t suspend Stormont (the assembly) without emergency legislation
• in 2017, the power-sharing executive collapsed however, and in Feb 2019 the province broke record for longest period without a functioning government

Question 29

Devolution - evaluation

Answer 29

¬ Success
- UK has remained united
- devolved assemblies are popular with local populations (become more so e.g., Wales)
- has helped support peace in NI
¬ Not effective
- failed to reduce calls for independence in Scotland
- interest in devolution, especially in England, is low, with low turnouts for referendums + elections
- England has had less devolution than other nations and West Lothian Question left unresolved
- West Lothian Question - asked by MP Tam Dalyell - how long will English constituents tolerate having no say in Welsh/Scottish/NI matters when their MPs have a say in ours

Question 30

Future constitutional reform

Answer 30

¬ In favour
- fairness - England = only nation in the UK without devolved parliament or assembly
- solve West Lothian Question
- move towards federal structure
- EVEL not satisfactory - makes Scottish MPs “second-class” member
- some demand from areas with strong regional identity (Cornwall, Yorkshire, North-East)
¬ Against
- England is much bigger than other areas (asymmetric) - would dominate federal structure + what would Westminster do ?
- little demand for English Parliament or regional assemblies from public
- parts of England don’t have much in the way of regional identity - would not “buy in” to regional devolution
- EVEL + increasing # of City Mayors has begun to resolve issue

Question 31

Codified constitution for UK?

Answer 31

¬ In favour
- entrenching principles of constitution protects from gov interference
- frequent criticisms that exec power is too dominant - codified constitution would clearly set out limits of it and restrict excess
- citizens’ rights = entrenched - making harder to violate and easier for people to seek redress
- allow constitution to be more consistent and rational - current evolutionary nature of constitution means there are many features that make little sense today and require modernisation
¬ Against
- uncodified - more flexible and more responsive to social + political change (e.g., arguments about gun control in US)
- gives too much political power to judges who are unelected and unrepresentative. constitutional matters left in hands of small # of rich, white men = tyranny of the judiciary
- constitutions don’t guarantee rights (slavery, segregation, lynching under BoR)