Constitution Fit For Purpose Flashcards
(6 cards)
The Judiciary- NOT FIT FOR PURPOSE- the necessity to entrench fundamental rights
-the UK Constitution needs to be codified in order to entrench fundamental rights and prevent government overreach.
-The un-codified nature of the constitution allows Parliament to alter constitutional principles with a simple majority. This concern has been magnified with the government’s recent attempts to weaken human rights protections, particularly in relation to the ECHR.
-in 2023, the Supreme Court ruled that the government’s Rwanda Asylum plan was incompatible with international human rights law. In response, some government figures- including Suella Braverman and Robert Jenrick- suggested that the UK should withdraw from the ECHR entirely, which would significantly weaken human rights protections.
-the fact that a major constitutional change could be pushed through by a simple parliamentary majority highlights the fragility of the UK’s Constitutional framework and fuels arguments for codification.
-The lack of entrenched bill of rights leaves key civil liberties exposed to political interference. For instance, the passage of the Police, Crime, Sentencing and Courts Act 2022 imposed new restrictions on protests, granting police greater powers to limit demonstrations based on noise levels and disruption.
-Critics such as Amnesty and Liberty argue that this erodes the right to peaceful protest, the right to association and expression, demonstrating how fundamental freedoms can be altered without constitutional safeguards.
-this suggests that a codified constitution could provide stronger legal protections against authoritarian tendencies.
The Judiciary- IS FIT FOR PURPOSE- codification could shift excessive power to the judiciary and could undermine democratic ideals.
-while codification could strengthen rights, it could also shift excessive power to the Judiciary, undermining parliamentary sovereignty. Under the current system, Parliament remains the supreme law-making body ensuring that elected representatives, rather than unelected judges, shape the constitution.
-if the UK were to adopt a fully codified constitution, courts could strike down legislation in a way that overrides democratic decision-making.
-a clear example of this risk can be seen in the UK’s current relationship with the ECHR, where court rulings, such as those on prisoners’ voting rights, have let to tensions between judicial decisions and parliamentary sovereignty.
-the flexibility of the current system allows the UK to respond quickly to constitutional challenges. Thus was evident in the 2005 Constitutional Reform Act, which replaced the Law Lords with the independent Supreme Court, demonstrating that the UK can adapt its constitution without codification.
-furthermore, a codified constitution could make legal and political processes less flexible, leading to gridlock and difficulty in responding to crises.
-the Covid 19 pandemic acts as a pertinent example whereby it demonstrated the importance of government adaptability, as parliament was able to pass emergency legislation quickly to impose lockdowns and financial support schemes.
-this suggests that the UK’s un-codified system allows for more efficient governance, an advantage that would have been lost under a more rigid, codified framework.
-ultimately, codification may provide greater legal certainty and protect rights, it also risks judicial overreach and reduced political flexibility.
-the UK’s current system, where rights are safeguarded through the HRA 1998 and judicial review- allows constitutional accountability without fundamentally altering parliamentary sovereignty.
-while reforms such as strengthening human rights protections may be warranted, full codification could create more problems that it solves, making it unnecessary and potentially disruptive change
The balance of power between the executive, legislative and judiciary- NEEDS REFORM- fails to provide a stable and clear separation of powers between the judiciary, legislative and judiciary.
- the UK Constitution fails to provide a stable and clear separation of powers between the executive, legislature and judiciary, leading to concerns over an excessively dominant executive ( a lack of codified set of checks and balances).
-In theory, the UK follows a parliamentary system meaning that the executive is accountable to Parliament. However in practice, the government dominates the legislative process, particularly when it holds a large majority in the House of Commons.
- Tony Blair – Identity Cards Act 2006
The Identity Cards Act 2006 introduced a national identity card scheme and a centralised database (National Identity Register), raising major civil liberties concerns about state surveillance, privacy, and data protection. Despite public unease and strong opposition from human rights groups, Blair’s large Commons majority ensured the legislation passed with relative ease.
Why it shows executive dominance:
The Act was pushed through largely on the strength of the Labour Party’s 66-seat majority and strict party discipline, sidelining backbench and opposition concerns. The scheme was later repealed in 2010, reflecting its long-term unpopularity.
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- Boris Johnson – Internal Market Act 2020
The UK Internal Market Act 2020 established a legal framework to ensure the free flow of goods and services across England, Scotland, Wales, and Northern Ireland after Brexit, limiting devolved governments’ ability to diverge from UK-wide standards. The Act was criticised for breaching international law and undermining devolved powers, especially in Scotland and Wales.
Why it shows executive dominance:
Despite widespread legal and constitutional criticism—including a minister admitting it would break international law “in a very specific and limited way”—the Act passed comfortably due to the government’s 80-seat majority. The Lords attempted to amend the Bill, but their changes were overturned in the Commons, demonstrating the limited power of checks on a strong executive.
-the increasing use of statutory instruments and Henry VIII clauses, such as those in the Retained EU Law Bill (2023) allows ministers to amend or remove laws without full parliamentary debate, raising concerns over an unchecked executive.
-the repeal of the Fixed-Term Parliament Act (2011) in 2022, restored the Prime Minister’s unilateral power to call elections, consolidating executive control over the political landscape.
-no longer fit for purpose as it allows an overly powerful executive to dominate parliament, reducing meaningful legislative scrutiny and undermining democratic accountability.
-little to prevent an elected dictatorship, particularly when a government has a large majority.
The Balance of powers- CONSTITUTION FIT FOR PURPOSE_ while the executive can be dominant at times, the UK Constitution retains effective checks and balances to prevent outright authoritarianism.
-the house of commons ultimately holds the Prime Minister Accountable, as shown by Boris Johnson’s resignation in 2022, which occurred not due to an election, but due to internal party pressure and mass cabinet resignations following the Party Gate Scandal.
-this demonstrates that while a strong Prime Minister may command Parliament, they remain vulnerable to political accountability, both from MPs and from their own party.
-House of Lords acts as an important revising chamber, frequently amending legislation to force the government to reconsider controversial policies.
-The House of Lords amended the Illegal Migration Bill in 2023 to include protections for unaccompanied children, victims of modern slavery, and to ensure compliance with international human rights obligations. This intervention demonstrated the Lords’ crucial role as a constitutional check on the Prime Minister, ensuring that even a government with a strong Commons majority must confront legal and moral scrutiny from an expert revising chamber.
-the judiciary has proven to be an increasingly significant check on executive authority, reinforcing the idea that the UK Constitution still upholds the rule of law.
-the Supreme Court’s ruling in Miller v Prime Minister (2019), which declared Boris Johnson’s prorogation of parliament as ultra vires, demonstrated that the executive cannot unilaterally override parliament sovereignty.
-in R v Lord Chancellor (2017), the court struck down employment tribunal fees that were deemed to restrict access to justice, proving that the judiciary has the power to uphold fundamental rights against government policies.
-these cases illustrate that while the executive can be powerful, the judiciary remains capable of checking authority when necessary.
-the UK Constitution ultimately provides multiple mechanisms to constrain the government, including parliamentary scrutiny, House of Lords interventions and judicial oversight.
-unlike the rigid codified constitution, the UK system is adaptive, ensuring that executive power is met with resistance when it exceeds constitutional limits. Therefore, unfit for purpose, the UK constitution provides a flexible yet effective balance of power.
Devolution- NOT FIT FOR PURPOSE- the UK constitution is not fit for purpose as it lacks a clear and entrenched legal framework for devolution
-the UK Constitution is not fit for purpose as it lacks a clear and entrenched legal framework for devolution that has led to constant disputes between Westminster and the devolved governments, weakening national unity and seen by critics as failing to establish a stable and coherent system of governance across the UK.
-the asymmetry of devolution, where Scotland, Wales and Northern Ireland have varying degrees of autonomy while england lacks its own legislature, has created resentment and governance disparities,.
-the West Lothian Question, which allows Scottish MPs to vote on English matters, but not vice versa, remains unresolved, fuelling concerns over an imbalanced democratic structure.
-Brexit further intensified these tensions, particularly through the UK Internal Market Act 2020, which overrode certain devolved trade regulations, leading to accusations that Westminster was undermining devolution.
-In Scotland, SNP has consistently pushed for a second independence referendum arguing that Brexit violates the 2014 referendum agreement, which implied that Scotland’s EU membership was secure within the UK.
-Meanwhile, Northern Ireland, Brexit has led to political instability, with the DUP, in protest of the passage of the Northern Ireland Protocol, refusing to re-enter power-sharing in Stormont for nearly two years, highlighting how devolution arrangements have struggled to adapt to new political realities, perhaps pointing towards an unfit constitution given the lack of establishing clear and stable system of government across the UK
Devolution- FIT FOR PURPOSE- it is in fact fit for purpose as it grants the capacity and ability to gradually devolve power to different regions demonstrating its inherent flexible and adaptable nature that can strengthen democracy and governance rather than undermine it.
-a more convincing argument is that the constitution is in fact fit for purpose as despite the challenges being a sign of constitutional failure, the UK Constitution’s ability to gradually devolve power to different regions demonstrates it inherent flexible and adaptable nature that can strengthen democracy rather than undermine it.
-the Scotland Act 2016 and Wales Act 2017 expanded devolved powers, showing that devolution is a continuous process that evolves in response to political demands rather than a static arrangement.
-even in Northern Ireland, where tensions have been most pronounced, the restoration of the Stormont Assembly in 2024 following negotiations under the Windsor Framework shows that political deadlocks can be restored within the existing constitutional system.
-this flexibility contrasts with the more rigid federal systems, where constitutional deadlocks often require constitutional amendments.
-without an entrenched legal framework outlining the roles and powers of the devolved bodies, it has allowed devolution to make way to enforce significant policy innovation.
-for example, Scotland’s free university tuition, Wales’ abolition of prescription charges and Northern Ireland’s unique post-Good Friday agreement power-sharing arrangements all demonstrate that devolved governments can address local priorities more effectively and efficiently compared them being passed through in a more rigid constitution.
-devolution has created tensions indeed, these do not suggest that the Constitution is unfit for purpose.
-they instead highlight its ability to adapt and accommodate regional differences without collapsing into politcal deadlock.
-the UK’s constitutional system allows for incremental change rather than radical upheaval, ensuring that power is distributed in response to political and public demands
-although Brexit did expose tensions within the devolution settlement, the fact that negotiations, adjustments and political compromise have remained the primary methods of resolution suggest that the UK Constitution is resilient rather than dysfunctional.
