Flashcards in The Constituton Deck (77):
What is a constitution?
As set of rules that sets out the powers and functions of various government institutions, as ell as the rights and liberties of citizens.
Explains how the country should be governed.
Constitutions establish clear limits on government power
What is a codified constitution?
A constitution that is contained in a single document that was created at a particular time.
The term also implies that a codified constitution contains a set of laws that that are superior to all other laws and that cannot be amended except by a special procedure that safeguards them.
Constitutions are vital component of liberal democracy.
What is liberal democracy?
Democracy: Rule by the people
Representatives are chosen in regular & fair elections with universal suffrage.
Liberalism: Freedom and Equality
Limited government - clear limits are placed on government power.
What does entrenched mean?
A constitutional principle whereby constitutional rules are safeguarded against change by a future government or legislature
It means in practice that constitutional change requires special arrangements which are more difficult to make than the passage of normal laws.
The UK Constitution is not entrenched as PARLIAMENT can change it by a simple act. However most democratic constitutions are entrenched in some way.
What is Parliamentary sovereignty?
Give an example.
This principle, established after 1689, means that the UK parliament (not the Scottish Parliament) in Westminster is supreme within the political system.
Only parliament can grant power to other bodies and it can legislate on any matter it wishes. It laws cannot be overridden by any other body, even the government or the monarch.
It also means that the current Parliament cannot bind any future parliaments. Each newly elected parliament is sovereign and cannot be bound by what has gone before.
Example: Ellen Street Estates v.Minster of Health (1934)
- acquisition of land act (1919); Created a scheme to compensate people wen their land is acquired for public purposes - stated that other statues “ shall have effect subject to this act”
- housing act (1925); Established a less generous compensation scheme that confiscated with the 1919 act
- did not expressly repeal the acquisition of land act (1919)
- which act applies?
- the courts argued that by introducing a new compensation scheme, it was implied that parliament intended to repeal and replace the existing scheme.
What is an uncodified constitution?
Where the laws, rules and principles of how a country is governed are not collected in a single document.
What is the royal prerogative?
Power and authority recognised as belonging solely to the monarch, above all other people.
What is the Magna Carter?
In wha t year did it occur?
A written agreement, signed by King John and the Tenants-in chief in 1215, in which the King agreed to particular limits on his authority as monarch.
Established the prince that regal authority could, and should be limited by the will of the people (or at least at this time by rich and powerful people)
It established the rule of of law should apply and the monarch should operate within the framework of law.
It was to be centuries before this principle became Normal practice, but Magna carter was an important staging post in the development of constitutional rule.
Little in Meagan Carter has survived, save for a fewcommons law traditions and some principles which have been turned into statue law.
However it was a key moment in history.
What is the Rule of Law?
No one as above the law - including the Monarch.
No one should have arbitrary powers
‘Free men’ should be judged by their peers, according to the laws.
What was the Bill of Rights (1689)?
Imposed substantial limits on the royal prerogative.
Parliaments consent was now needed to levy taxes, repeal law, and maintain an army during peacetime.
Required regular sessions of parliament, free elections & freedom of speech during debates.
Established some individual rights and liberties e.g freedom from excessive fines and cruel and unusual punishments.
It transferred Constitutional supremacy from the monarchy to parliament
Parliament was now sovereign - it can make or unmake any law and could not be challenged by any other institution.
The courts accepted this ne settle the, recognising that
Explain the following terms:
Statue Law: Acts passed by Parliament
Treaties: International agreements
Common Law: Law developed by the decision of judges
Royal Prerogatives : The monarch’s remaining authority and powers delegated to the prime minister
Conventions: Non-legal rules that are considered biding
Authoritative texts: Books written by constitutional experts.
Are Acts of Parliament part of the Constitution?
In theory, all acts passed by Parliament are part of the UK Constitution.
Arguably, some are more identifiable as ‘constitutional’ in terms of their consent
E.g they address the power and shape of government institutes or or citizens rights.
There is no distinction between constitutional and ordinary laws because parliament is sovereign.
Explain the Act of Settlement (1701)
Established new stature rules of royal succession:
- the act provided that any catholics, or anyone married to a catholic, be barred from ascending to the throne
It also took steps to increase judicial independence:
- protected the salaries of judges, to ensure that the threat of cuts, or promises of increases, would not be used to influence their decisions.
- parliament, rather than the monarch had to jointly agree to dismiss a judge.
- judges could only be removed from office for bad behaviour, rather tha tan for their decisions.
Explain the Parliament Act (1911) and 1949
-replace the House of Lords absolute veto over legislation with the power to delay non-money bills for 2 years
- however, the lords had no power to delay certified as ‘money bills’ by the Speaker (concern taxes and spending)
- the only bill that the lords could still veto was a bill extending the life of parliament beyond 5 years (this was designed to stop a powerful government keeping themselves in power indefinitely)
- House of Lords power to delay non-money bills was reduced from 2 years to just one year .
Explain the statue laws that reshaped the Parliament of England into Parliament of the United Kingdom of Great Britain and Northern Ireland
Laws in Wales Acts (1535 & 1542):
- made wales a full and equal part of England, extending the English legal system to wales, and allowing wales to send mps to Westminster.
Act of Union (1707):
- although England and Scotland had shared the same monarch since 1603, they were separate states with separate parliaments - these acts united the 2 states, and established the parliament of great Britain at Westminster.
Acts of Union (1800)
- untied Great Britain with Ireland - Ireland began to elect mps to represent them in the parliament of the United Kingdom of Great Britain and Ireland.
Irish Free State Constitution:
- in 1921, all but six Irish counties seceded, laving two separate nations, the Irish free state and the United Kingdom of Great Britain and Northern Ireland - this act recognised the new constitution of the Irish free state.
Explain the statues that have expanded the franchise.
The representation of the people act (1918):
Expanded the electorate to include all me over the age of 21 and most women over the age of 30.
The Equal Franchise Act (1928)
Lowered the voting age for women from 30 to 21
The representation of the people act (1969)
Extended the franchise to almost all citizens over 18
They transformed the country into a proper representative democracy.
These reforms have had a large impact on our political system, and vital to us understanding our Constituion today
Explain what the Common Law is.
Common Law: Law developed by the decision of judges.
Back in the days (around 1066) Judges relied on the customs, principles, and ancient las that had proven most effective in delivering justice.
Judges were filling in the gaps left by written laws as ell as developing a body of la that was common throughout the country.
Over time, rotten records began to be kept of judicial decisions - becoming an important source of common la principles for lawyers and other judges.
Gradually, a much more formal system of precedent as established.
When cases have similar facts and raise similar legal questions to cases decided in the past, judges must use the same reasoning as that used by the earlier court - ensuring that decisions are consistent and predictable.
What is ‘Stare Decisis?
‘To stand by decided matters’
Judges are increasingly expected to observe the common law principle of ‘state decisis’
Only the higher court (supreme court) have the power to establish precedent which the the other courts are expected to follow.
Explain Entick v.Carrington (1765)
Established an important constitutional principle.
The earl of hail, acting as Secretary of State,issued a arrant to search entick home - carrington broke in and searched it - entic sued for damages of $2000 arguing that he had no legal right to entire his property.
Carrington pointed to the search arrant, but the judge, Lord Camden held there was now law that gave the earl the power to issue such a warrant.
This landmark ruling established the principle that the state can only act in a manner prescribed by statue or common law.
Which is more powerful Statue or Common Law.
Parliament is sovereign therefore statues override common law.
If a statue says one thing then the statue takes precedence.
For example, in the case Entick v.Carrington (1765): In the centuries following this case, parliament has given Home Secretaries the power that the judge (lord Camden) said they lacked at the time.
Give an example of Statue Law taking precedence over Common Law.
Al Rai v.Security (2010)
- several men held at Guantanamo bay claimed compensation for their alleged detention, retention and mistreatment
- the government wanted to use a ‘closed material procedure’ (CMP)where sensitive evidence is only shown to the judge, not to the other side
- The Supreme Court ruled that allowing comps to be used in ordinary civil trails would undermine commons law principles of open and natural justice.
- the government settled the dispute outside of court, paying millions in compensation
Parliament responded to the ruling by passing...
Justice and Security Act (2013)
- permitted civil courts to order the use of closed material procedures if the disclosure of sensitive evidence would threaten national security.
- this act allowed the government to use CMP to defend itself. E.g against alleged involvement in rendition & torture
The common law is a vital source of constitutional principle but it can be overwritten by acts of Parliament.
Parliament hasn’t passed status to answer every possible legal question, so it’s still often that the decisions of past judges going back hundred of years is our most definitive source of our laws and constitution.
Judges also play a vital role in interpreting and applying important statues to particular cases.
Statues can often be ambiguously worded, and judges have developed common law principles over many years to determine how exactly judges should interpret and apply them. So in this case common law impacts the constitution because it determines how statues our interpreted.
What are the key differences between a Law and Convention?
Certain: Status and precedent can be looked up and checked
Legally enforced: Breaking laws leads to enforce the by the courts
Uncertain: there sis no definitive source, which can lead to disputes.
Politically enforced: breaking convention only results in political difficulties
Explain the convention about the appointment of prime ministers.
By convention, the monarch asks the leader of the largest party in the h of c to from a government and become prime minster
Evolved out of the need to select some one who could form a government commanding a majority in Parliament. So it made sense if the position when to the leader of the largest party.
But this is convention evolved over time, not a law.
But when no party has a majority, as happened in 2010 there is no definitive answer on what should happen.
Journalists couldn’t just look up what should happen, they had to ask political experts to explain the various formal rules that existed by convention alone.
Explain the convention of ministerial responsibility.
Once the Cabinet has reached a decision it is binding on all government ministers - they must support the decision in public, or resign, if they are unwilling to.
The details of cabinet meetings, including any private disagreements, should also be kept secret.
This convention ensures that government appear unified and strong, is proving greater public confidence
But this’s is a convention, not a law...
during the 2010-15 coalition government, several minsters publicly questioned government policy and criticised their coalition partners.
There were no legal consequences but there were important political consequences.
It strained the relationship between the 2 parties trying to work together in government.
Explain the convention of individual ministerial responsibility.
The convention that minsters are accountable to parliament for their personal conduct, and for the actions of their departments.
Ministers should resign for poor behaviour or serious failings by their departments.
However, despite this convention, it is still very unclear hen and why minter should resign.
What constitutes as bad behaviour or poor per romance to warrant resignation?
What can happen is there isn’t a common agreement on Conventions?
Conventions rely upon common agreement - if this breaks down, a statue may b necessary to make the convention legally enforceable.
- pre-1911, there was a convention that the unelected House of Lords should not oppose the elected h of c on financial matters.
- this did not stop the h of l from blocking the 1909 budget.
- to deal with this, parliament passed the 1911 parliament act which palaces the convention on a statutory basis.
Explain the Convention of Royal Assent.
Some conventions like the royal assent have evolved over a considerable span of time.
Even after being approved by majorities in the House of Commons and House of Lords, bills still require royal assent (approval) before becoming an act of Parliament
However, as monarchs transferred greater power to Parliament, this procedure came more ceremonial.
The last time that royal assent as refused was 1707.
It can still legally happen, however it unimaginable that it would happen today given the controversy and backlash it would cause.
What is the Salisbury Convention?
The convention that the House of Lords should not defeat or wreck, any legislation that featured in the government election manifesto.
The logic, is that it would be wrong for the unelected lords to defeat measures that the public presumably voted for when supporting the majority party.
Encouraged by the Conservative leader of the House of Lords after labours landslide victory in 1945, a time when the party had only 16 peers. (Without many peers, it would appear that many of the party’s popular election manifesto policies would be defeated by the lords.
Explain ‘The English Constitution’ (1867) by Walter Bagehot.
Provided an influential plant ion of how parliamentary democracy and cabinet government actually operates.
Bagehot understanding of the principles of constitutional monarchy has also proven to be very influential - he sad that monarchs only retained the right to be consulted, the right to encourage, and the right to warn.
Explain ‘An Introduction to the Study of Law of the Constitution (1885) by A.V Dicey.
Popularised the phrase ‘rule of law’
Argued that parliamentary sovereignty and the rule of a are the core concepts of the UK Constitution.
Explain ‘A Treatise on the Law, Privileges, Proceedings and the Usage of Parliament (1844) by Thomas Erskine May.
The most authoritative work on parliamentary procedures
The book has been continually updated - the 24th edition was published in 2011.
What is the Treaty of Ascension?
What did it lead to?
An international agreement, signed by Prime Minster Edward Heath in 1972, proving for the UK Denmark, Ireland and Norway to join the European economic community which is now the European Union.
This treaty was but into effect within...
European Communities Act (1972):
Legislation for the UK to join the EEC - required all European laws to e incorporated into UK domestic law.
Treaties are an important type of constitutional statue. The laws they produce end up being very important constitutionally.
Explain the Royal Prerogative in terms of the Constitution.
Royal Prerogative: Refers to the authority and power, recognised in common law, left in the hands of the Crown.
The Case of Proclamation (1610)
The court declared that the king had no prerogative power under the common law to relate new criminal offences by proclamation.
The court continues to define the scope of the remaining royal prerogative powers.
The royal prerogative is also constrained by a number of constitutional conventions:
The monarch appoints a PM but this is usually always the leader of the largest party.
All bills require royal assent to become acts but by convention royal is always given.
Another key convention is that monarch lasts listen to the advice of minsters.
This means in reality, most of the remains prerogative powers such as the power to Appoint and Dismiss minsters, make treaties, deploy the armed forces are today exercised by the pm and other minsters on the monarch behalf
The Royal Prerogative is essential to our unique Constituion but to understand it we have to look at legal precedence and non-legal conventions. By.
What is Legal Sovereignty and Political Sovereignty?
Legal: There are no legal limits on what las parliament can make or unmake.
Political: But there are real political limits as government want to be re-elected.
Parliament is accountable to the people, it does not have unlimited political power to do early as it likes.
Explain what the Rule of Law is.
According to A.V Dicey, the rule of law had at least three meanings:
- Predominance of law over arbitrary power (powers without any legal basis or limit)
- citizens should not be punished unless they clearly break the law.
- public officials must be authorised to act - Powers Need a legal basis
-citizens should not be punished just because a powerful person says so
- public officials should not have discretionary powers.
-certainty: laws should be as clear and understandable as possible, it would be wrong to punish someone who did not understand that they were breaking the law.
- laws should also be prospective, rather than retrospective - it would be unfair to punish someone for actions that were legal when carried out.
- legality: everyone must comply with the law. Public officials must exercise the powers conferred on them reasonably, in good faith, for the correct purpose, and without exceeding their limits.
Everyone should be equal before the law: No one is above the law - it applies to the government just as much up as it applies to citizens.
- equality: no one s exempt from the enforcement of the law - it applies to everyone equally.
- unequal las can still be passed e.g a law that treats a particular minority group differently.
- but laws cannot be enforced unequally - groups should not be targeted or exempted by officials.
While the UK lacks a codified constitution, our laws and rights are established in common law - developing from judges decisions.
The rights of citizens do not come from the constitution , the constitution results from our rights, as upheld by the courts
- access to justice : legality, certainty and equality mean little if citizens cannot challenge the government and uphold their rights in court - there should not be excessive costs or waiting times
- procedures must be in place to ensure a fair trial - decision makers must be unbiased, and both sides must be able to present their arguments and facts
For Dicey, the Rule of Law was mostly to do with procedure not th content of laws.
Some have questioned this definition: arguing if the rule of law applied to nazi Germany or the Soviet Union where laws were passed and followed that gave the officials excessive powers and violated the human rights of many cities.
According to the World Justice Project the, the rule of law applies when, universal principles are upheld including
- the laws are clear publicised, stable, and just: are applied evenly and protect fundamental rights, including the security of person and property.
Explain what a Constitutional Monarchy i?
- monarch acts as head of state but accepts the limits set by the constitution.
- most duties and powers are largely ceremonial
- monarch is the head of state but the prime minster is the head of the government.
Explain the difference between Efficient and Dignified.
In his book ‘ The English Constitution’ Walter Bagehot distinguished between what he called the ‘efficient’ and the ‘dignified’ parts of the UK Constitution.
Efficient: Functional Working —> Cabinet
Dignified: Symbolic/Ceremonial ——> Monarch & House of Lords
What are the 3 branches of government in the UK and wha are there roles?
Executive: Proposes new laws and then executives them once passed.
- includes: the crown, PM, Cabinet & Minister, Civil Servants.
Legislative: Makes laws and holds government accountable
- includes: parliament, crown
Judiciary: interprets and applies common law and statue
- includes: judges, courts, magistrates, tribunals .
How can the UK lack of separation of powers be seen as a good thing?
Minsters can vote in favour of government bills - immediately giving the government 118 votes.
Prime minster can reward loyalty by directly promoting MPs into ranks of government.
How is the UK a Unitary State?
Give an example.
Unitary Constitution: power/sovereignty is centralised within the central government
It is entirely up to parliament to decide whether to distribute power to local government
But the sovereign parliament can overrule local governments and take this power back at any time
Local government lack sovereignty - they do not have a constitutional basis - they depend upon parliament.
Example: Greater London Council (1965-1985):
- established by the London government act (1963) to create a new governing body covering all of London.
- the labour led council frequently clashed withhold Margaret thatcher Conservative Government in the early 1980s
- the local government act (1985) abolished the Greater London council, distributing its pros to a number of different bodies.
Explain the Life Peerages Act (1958)
Introduced Life Peers in the House of Lords- appointed by the Queen on the advice of the Prime Minster - title cannot be inherited
Whilst they weren’t elected, some argued they had greater legitimacy than those who had inherited their peerage.
Explain the House of Lords Act (1999)
Removed all but 92 Hereditary peers from the House of Lords, greatly changing the composition of the House of Lords.
By 2000, it was life peers who made up the majority of the House.
Most hereditary peers were conservative, after the reform it greatly altered the party balance in the House of Lords.
The Conservatives would no longer be as confident that their bills would pas through the House of Lords
Explain the House of Commons Reform Committee
Commonly known as the Wright Committee
Recommended a number of significant procedural changes in 2009 that were soon implemented.
- select committees chairs are elected by MPs across the commons and are paid an additional salary.
- this was introduced in hope that it would encourage the selection of more independent minded Mps, broadly supporting from across the house
- all other select committees members are chosen by mps within their party, rather than just by party whips
- again to encourage more independent minded mps, willing to challenge the government.
- a new backbench business committee was created to allow backnch mps to raise and schedule issues for debate rather than have the government dominant the timetable in the commons.
- the Lisbon committee members are the chairs of the other select committees, questions the PM twice a year.
A government e-petition website was created in 2011.
Any petition collecting over 100,000 signatures was passed onto the backbench business committee.
MPs could decide whether or not to schedule it for a debate.
By 2015, it was decided that it would be more appropriate for parliament to run the e-petitions process so a new website was created as was a new dedicated petitions committee.
Explain the Petitions Committee
Established in 2015
- can ask for more information from petitioners, the government, or other relevant people or organisations
- can write to the government to press for action and ask parliamentary committees to look into petition issues.
Explain the Constitutional Reform Act (2005)
Made 3 very significant reforms.
1. Established a new UK Supreme Court.
- until this reform, the most senior UK judges, known as la lords, sat in the House of Lords.
- the reform moved the judges from the House of Lords to a new UK Supreme Court, physically separating thee legislative and judicial branches.
2. Reformed the role of the Lord Chancellor
- historically, the Lord chancellor was a member of all 3 branches of government.
- had significant influence over the appointment of n judges - this overlaps between the executive and judiciary posed a risk to judicial independence.
- the reform, divided the job into 3 separate positions:
- lord chancellor/justice secretary (executive): overseas appointments, administration of the courts, legal aid and prison services
- lord Chief Justice (Judiciary) : president of the courts of England and ales - head of the judiciary and chief judge.
- lord speaker (legislature): presides over the House of Lords - elected by Myers by an alternative vote system.
3. Reformed the process for selecting new judges.
- historically the government had quite considerable influence over the selection of new judges (it favoured a small o bridge educated elite)
- to adreaaathese concerns, the CRA Established a new independent: The Judicial appointments for England and Wales - it includes several legal professions like judges barristers and solicitors but also non-professionals.
-this led to a much more independent and transparent process.
Explain what the Wiley Balance is.
There has long existed a principle in common law known as the Wiley Balance.
This is when the judges weigh up there the pubic interest in keeping sensitive information secret outweighs the public interest in justice being done openly and fairly.
If a judge decides its better to keep information secret, they can issue a ‘public interest immunity’
- a court order allowing one o he parties involved to refrain from disclosing sensitive evidence if the realest would be damaging to the public interest e.g if the information involves the UK Security service - could undermine national security
- once evidence is given, neither side can use this evidence.
Explain the Succession to the Crown Act (2013)
- made succession to the crown gender neutral - the crown will no be passed n to heirs in order of their birth only
- being married to a catholic nooner prohibits succession to the crown - being Catholic is sill a bar to succession
- only the fist six person in line to the throne must brain royal approval prior to marriage (rather than all potential heirs)
Explain the Fixed Term Parliament Act (2011)
- set the date for the nets general election as 7th may 2015, and Established that all subsequent elections would be held every 5 years on the first Thursday in may.
-The Act still provides 2 has for a general election to be triggered earlier:
- the first is through a motion of ‘no confidence’ in the House of Commons, which requires a majority of mps to vote that they have lost confidence in the government.
- the second is for 2/3 of mps (434 out of 650) to vote in favour of holding an early general election
Explain the Constitutional Reform and Governance Act (2010)
- Requires the government to lay treaties before Parliament for 21 days prior to ratification.
- if the lords votes against ratification, the government must explain by it think the treaty should be ratified.
- if the commons votes against ratification - a further 21 days period is triggered - this can be repeated indefinitely to prevent ratification
- gives the mister for civil service (the prime minster) the power to manage the civil service
- requires a code of conduct for the civil service - must include impartiality
- requires all civil service employees to be appointed on merits and not politics
- bans special advisors from managing or giving inductions to civil servants.
Explain the European Parliamentary Elections Act 1998
Introduced proportional representation for EU Elections.
A number of proportional and hybrid systems have even used for elections to devolved assemblies and police and crime commissions.
Explain the Recall of MPS Act (2015)
Allows a recall election to be held if...
- an mp is convicted of an offence and given sentence of 12 months or less
- the commons standards committee finds an mp guilty of ‘serious misconduct’, suspending them for at least 21 sitting days
A recall petite then needs to be signed by 10% of the MPs constituents
What is devolution?
The transfer of power from the central /national government to regional/local government.
In the UK -it’s been a transfer of power to the Scottish Parliament, welsh assembly and Northern Ireland assembly.
When was the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly created
Scottish Devolution Referendum (1997)
Asked the question “should there be a Scottish parliament?”
Also asked “Should it have tax-varying powers?
Welsh Assembly Referendum (1997)
Asked “Should there be a Welsh Assembly?
Good Friday Agreement Referendum (1998)
Asked “Do you support the Good Friday Agreement”? Which included plans for a new Northern Irish assembly .
Following these successful referendums, Parliament then passed Acts to transfer power to these new bodies:
- Scotland Act (1998)
- Gov.of Wales Act (1998)
-N.Ireland Act (1998)
Explain the Scotland Act (1998)
It devolved power to the Scottish Parliament.
Some matters were reserved for Parliament e.g Defence, Immigration, Foreign Policy, Social Security were it felt best for the UK to have a single uniform policy.
Secretary of State for Scotland and Scotland office still represents interests in these reserved matters.
This still left a considerable number of policy areas to be devolved to the new Scottish parliament e.g Environment, culture media and sport, education and training, agriculture.
This greatly limited the laws that could be passed by the UK parliament.
Explain what all the following Acts did?
Government of Wales Act (2006)
Scotland Act (2012)
Wales Act (2014)
Scotland Act (2016)
Devolved grater legislative and financial powers - the number of reserved matters has been reduced.
What is the West-Lothian Question?
First post on the 14th November 1977 by Tam Dalyell, the Labour MP for the Scottish constituency of West Lothian.
Was it fair that Scottish, Welsh and Northern Ireland MPS can vote on issues only effecting England even though English MPs can no longer vote on devolved issues.
They addressed this issue in 2015 when MPs approved changes to the House of Commons Standing Order (the written rules which govern how Parliament inducts its business) to introduce a new system of....
‘English Votes for English Laws’
- the new rule gives English’s, or English and welsh MPs, 2 opportunities to veto all, or particular clauses, of bills that only affect England, or England and Wales.
What power has been devolved to London?
Greater London Authority Referendum (1998)
“ are you in favour of the government prowls for a Greater London Authority, made up of an elected mayor and a separately elected assembly?”
Passed its 72% voting in favour
Greater London Authority (1999)
Created the Greater London Authority, consisting of a directly elected mayor, and a 25 Member London Assembly to hold them to account.
How have local governments change since 1997?
Local government Act (2000): Required all local councils to review their structure
- a petition singed by 5% of local voters could force councils to hold a referendum on an elected mayor.
- 40 referendums had been held by jan 2011, but 13 were proved, 27 rejected a new mayor.
English Mayoral Referendums 2012:
- the 2010-15 Coalition pledged to hod a referendum on elected mayors in the 12 biggest English’s cities - Leicester and Liverpool Introduced a mayor without a referendum.
- of all the other cites, only Bristol and Doncaster supported the plans.
Police and Crime Commissioners:
- the police and social responsibility act 211 replaced the existing police authorities’ with elected ‘police and crime commissioners’
- introducing electoral accountability to those responsible for managing the police
- elections were first held in England and Wales in November 2012
Explain the European Communities Act (1972)
Legislated for the UK to join the EEC (later to be the European Union) - required all European laws to be incorporated into UK domestic law
- doctrine of direct effect: EU law did not need approval of parliament
- doctrine of supremacy: Eu las to rebalance any conflicting national laws
This was shown in the Factortame Case...
- concerned the Merchant Shipping Act (1988) - restricted the rights of foreign owned ships to fish in British waters.
- a company of Spanglish fisherman successfully argued that the act conflicted with Eu law - the House of Lords (then the uk highest court) agreed to ‘disapply’ the conflicting provisions of the act.
What did the following Treaties do:
Amsterdam Treaty (1997 )
Lisbon Treaty (2009)
Transferred additional powers - allowing the EU to make laws in more policy areas
Prepare for the expansion of the EU. - the entry of a number of new member states
Significantly reduced the UK veto power, by replacing unanimous voting with qualified majority voting in the council of Europe.
What is the Council of Europe?
Founded in 199 by the Treaty of London - singed by Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the uk
- in 1950 the council adopted the European convention on human rights, an international treaty requiring all states that sign up to protect fundamental human rights
To ensure that states who signed this treaty upheld these rights, the convention established the European Court of Human Rights...
- if citizens of states that have signed this treaty feel that the state has breached their rights, they can take their case to ECHR - under the terms of the treaty, the court decisions are binding.
Explain the Human Rights Act (1998)
Brought the rights contained in the European Convention on Human Rights into UK law - meaning they could be upheld in UK Courts
Explain the Freedom of Information Act (2000)
The Act Established a general right of access to recorded information held by more than 100,000 public bodies in England, Wales and Northern Ireland.
- this means that interested citizens, in partuclar journalists, can ask the government and other public bodies a range of information
- made government more transparent
- to protect, sensitive information, the act lists 2 exemptions to “the general right of access” e.g personal information
- 5 areas are qualified, and public bodies have to consider “ does the public interest in realising the material outweigh the public interest in withholding it”
It was this act that led to the 2009 Parliament Expenses Scandal:
- office rules allow mps to claim expenses for the performance of a mere,rather parliamentary duties.
- journalists used the FOI act to request details on what exactly mps had been claiming for and found serious misuse of the expenses and allowances.
- a number of mps soon resigned, many others were de-selected or drafted in the 2010 general election.
What is Express and Implied Repeal?
Express Repeal; Where an Act of Parliament expresses stats that it repeals the provisions of the earlier act
Implied Repeal; When an Act of Parliament conflicts with an earlier one, the most recent Act takes precedence, and the conflicting parts of the airliner act are repealed.
In situations like this, judges have long enforced the most recent law, arguing that no Parliament can bind a future parliament and therefore by passing a new law, it’s implied, that Parliament aimed to repeal the earlier conflicting laws.
Recent constitutional reforms have greatly challenged the idea of implied repeal.
- anti-terrorism, crime and security act (2001) conflicted greatly with the human rights act (1998)
- but instead of ruling that the governments new anti-terror laws repealed the human rights act’s protection against discrimination, the judge issues a ‘declaration of incompatibility’
How have judges come to see constitutional statues and ordinary statues more differently.
In 2002, Lord Justice Laws argued, that we should recognise a hierarchy of acts of Parliament, as it were ‘ordinary’ statues and ‘constitutional status.
- legally these constitutional statues are not trenched but if parliament wishes to repeal them, they must be explicit and face the full political consequences at the polls.
- the common law no recognises ‘constitutional statues’ that unlike other acts, cannot be impliedly Repealed.
- by convention, certain acts would likely only be repealed following a referendum, parliament is not politically sovereign over them.
Explain Section 28 of the Scotland Act (1998)
“ Subject to section 29, the parliament my make laws, to be knows as Acts of the Scottish Parliament”
“ this section does not affect the power of the Parliament of the United Kingdom to Make laws for Scotland”
What is the Sewel Convention?
Named after Lord John Sewel, a Labour minster who oversaw the creation of the Scottish Parliament.
That Parliament would not legislate with regards to devolved matters without the consent of the Scottish Parliament.
This was given legal recognition in the Scotland Act (2016)
What is a Quasi-federal state?
A political system that is legally unitary, but in practice is more federal, due to the devolution of significant powers to regional bodies
Asesss the argument that the UK uncodified constitution is too flexible.
- parliament shouldn’t be able to make fundamental changes to the constitution with just a simple act of parliament.
-proposing an amendment to the us constitution requires a 2/3 majority in the House of Representatives and senate or 2/3 of state legislatures to call for national convention to propose amendments (never been used)...must then be ratified by 3/4 state legislatures or 3/4 state ratifying conventions specially held in each state.
- to amend our constitution, it just requires a simple act of parliament
- since parliament act (1911), not eve the House of Lords can prevent a government with the support of a majority of the House of Commons from making sweeping constitutional reforms with a simple statue
- a convention is developing where referendums are held prior to significant constitutional reforms, but there is not unanimous agreement over this rule, and it is not legal enforceable.
- David cameron defeat in the 2016 referendum and subsequent resignation might make future government more reluctant and wary to putting similar reforms to a public vote.
- we rely upon political limits (the need for the government to consider public opinion in order to get re-elected) to constrain Constitutional amendments
- this has helped to restrain the behaviour of government in the past, but is it a strong enough guarantee for the the future? What does it mean the rights of minorities, who do not pos as much of a threat at the polls?
- in emergencies, Parliament can be put under considerable pressure by popular majorities to pass dubous laws that infringe on the rights of minorities.
- e.g the anti-terrorisms, crime and security act (2001): allowed the indefinite detention of foreign terrorist suspects without charge or trial
- formally introduced to parliament just 2 months after the 9/11 terrorist attacks in New York.
- gave authorities vast powers that challenged historical habeas corpus rights and the rule of law.
- gained royal assent a month later being introduced to parliament.
- the House of Lords (then the highest court) ruled it was incompatible with the 1998 human rights but couldn’t strike the law down.
Assess the argument that the rigidity of codified constitutions can create difficulties.
- our uncodified constitution can evolve with the times, whereas the earned held laws of codified constitutions can become outdated e.g US constitution has Been amednmded 17 times since the 1791 bill of rights (first 10 amendments)
- the world has changed significantly since 1791
- the impact of a codified constitution can also be seen in ho differently the uk and us have responded to mass shootings.
- The Dunblane School Massacre (1996) - one man carried out a mass shooting in a school, and then killed himself.
- there was a public outcry - 750,000 signatures collected
- firearms (amendment) act 1997 - banned all handguns expect for .22 calibre single shot.. this was later banned in firearms (amendment) (no.2) act (1997)
- similarly, Sandy Hook Elementary School Shooting in 2012 had a pubic outcry with 100,000 signed a petition in 15 hours.
- President Obama’s vowed to take action to prevent further atrocities yet there have been well over 1000 mass shootings since sandy hook.
- would some important constitutional changes since 1997 have happened if we had a codified constitution?
Assess the argument that the UK adopting a codified constitution could establish a clear separation of powers with stronger checks & balances.
- our fused legislative and executive branches arguably create an ‘ elective dictatorship’ in which the government dominates parliament.
- the phrase elected dictatorship comes from a speech from lord halisham in 1976 after the Labour Party formed a minority government (7.2% of the vote) in February 1974 and then months later formed a majority government (39.2% of the vote)
- Lord Halisham argued that it was troubling that government were being elected with weaker and weaker mandates because our constitution hands them so much power.
- sovereign parliament? However, the lords cannot veto bills and the monarch always grants royal assent.
- better to think of a sovereign House of Commons? Which is dominated by the government so long as it keeps its majority of mps on side, it’s extremely unlikely that it’s pro sales will be defeated.
- much better to think of a sovereign government.
- sovereign government
- lord hailsham argued in his 1976 speech that the uk should adopt a codified constitution which included legal limits on parliament, an entrenched bill of rights etc.
Assess the argument that strong checks and balances in a constitution can lead to gridlock.
- political constraints on the government power are arguably just as effective as entrenched legal legal limits.
- if each branch of of government can check the power of the the other branch of government - things can grind to a halt when they cant agree on important issues
- the uk weaker checks and balances arguably make the governments mor effective.
- by convention, the pm is the leader of the largest party in the House of Commons - because they are most likely to have the support of a majority of MPs and might actually be able to get things done.
- without a codified constitution to entrench strong checks and balances, e rely heavily upon political, rather than legal, constraints.
- but in practice, it is arguable these political pressures constrain the government power just as much as a codified constitution would..
- official opposition: the threat of effect should make the government limit the use of its considerable power in order to get re-elected
- backbench mps: a government with a large majority may be dented by its own mps, if it strays too far from its manifesto commitments.
- select committees: increasingly independent select committees scrutinise the government and draw media attention to problems.
- House of Lords (1998) - government are increasingly defeated by the h of l and many defeats are not overturned in the commons
- referendum: pm david cameron likely did not want to hold an Eu referendum, but political pressure forced his hand
- human rights act (1998: Governments make great effort o snare bills comply with the HRA - declarations of incompatibility are hard to ignore
- acts of Parliament can place effective limit on the executive without the need for a codified constitution
- e.g fixed term Parliament act (2011), constitutional reform & governance act (2010)
- overrode and replaced several Prerogative powers - these powers now have a statutory basis, and minster must respect the limits imposed by the statutes.
- while there are no entrenched. Fundamental laws in the uk, there are ‘constitutional statues’ that in reality would be hard to repeal and would probably require a referendum.
- as a real, it is arguably, that there is no need to adopt an entirely ew constitution - instead it can continue to evolve with new statues.
Assess the argument in favour of the UK adopting a codified constitution with the following point.
“ Our codified constitution relies upon too heavily upon unwritten convention
- conventions are not easily understood by the public, and even many elected officials dispute their meaning, limiting their use.
-critics argue that so much of our consultation is not legally enforceable - and therefore we would be better of with a codified constitution.
- relying upon mutually agreed understanding (convention) might be flexible but “the understanding are not always understood” (Sidney Low, author of the governance of England (1904)
Example: In October 2015, the Lords had to vote significantly cuts to existing tax credits
- the government argued that convention obliged the peers to accept the reforms.
- Salisbury Convention - the convention that the lords should to block bills that were included in the government manifesto
- financial privilege - the convention that the lords should not oppose the government on issues of taxation and public spending
- but beers disputed both conventions and voted to delay the cuts
- peers argued the Salisbury Convention didn’t apply because while the manifesto pledged to cut 12 billion from welfare, it did not specify tax cuts despite repeatedly being asked to.
- they also argued that financial privilege dint apply because the tax credits were being introduced via secondary legislation, rather than a new statue - the convention only allows the lords to block primary
- conventions are not legally enforceable, and their is no definitive written source, there was little the government could do but accuse peers of unconstitutional behaviour
- legally there is little that parliament can do to challenge the prime minster use of the prerogative power to order the military
- politically... a convention has developed where parliament must be able to debate and vote on the use of military overseas
- example; in 2013 the House of Commons voted 285-277 against military intervention following claims that Syria’s government had used chemical weapons against civilians
- military plans to intervene were put on hold, despite the pm david Cameron’s preference to intervene
- 2 years later in 2015, PM David Cameron told Parliament that 2 births citizens had been killed in Syria by an RAF drone strike
- the House of Commons hadn’t debated or authorised this strikes but cameron argued it was to “prevent a humanitarian catastrophe” and therefore had to “Act immediately”
What would happen if the consensus broke over conventions?
- despite the act that conventions cannot be legally enforced, they are rarely broken
- if necessary, they can always be given sturdy fore - like the parliament acts in 1911 and 1949.
- therefore, it is arguable that there is no need to entrench them in a codified constitution to reduce sour reliance on conventions
Assess the argument that a codified constitution would politicise the judiciary.
- allowing conventions to be enforced by the courts, and allowing judges to decide what is constitutional, can create problems
-judges would gain considerable power because they would b able to determine what is an isn’t constitutional.
- constitutions can often be vague e.g the us Supreme Court has the final word on how the us Constitution should be interpreted if words are vague.
- Parliament has elected representatives whereas our judiciary is appointed.
- mps can be held accountable at elections, but judges are accountable and have there jobs for life.
-parliament is feeble and mistakes can be corrected where as judges decisions are binding and are expected to follow precedent.
- e.g abortion laws developed very differently in the UK and US.
- the us Supreme Court ruled in the case Roe v.Wade (1973) that the US constitution protected a woman’s right to an abortion - this interpretation was directly disputed and many activists and representatives continue to challenge the ruling
- parliament decriminalised abortion in the 1960s following a lengthy debate in which all sides were able to give their views
- the 1967 abortion act disappointed opponents of abortion, but was still accepted as a legitimate act of Parliament - it cant be disputed in a way that controversial court interpretation can like in the us.
- some argue that our uncodified constitution strikes the right balance between the powerful executive and the power of the judges by encouraging an effective dialogue between the 2 branches of government.
- appointed; the independent of judges allows them to make unpopular decisions that uphold the rights of minorities and not just pander to the majority of voters.
- elected: but the final decisions remains its elected and accountable mps, rather than unaccountable judges.
- parliament remains sovereign but independent and respected judges can act as a strong political check on how they wield that power.
Assess the argument in favour of the UK adopting a codified constitution because Constitutional reforms since 1997 have greatly challenged historical constitutional principles.
- a new Constitution would be an opportunity to design awe constitutional settlement Dorsey by all parts of the UK
- in the UK, numerous parliaments over the years have made individual, peace meal Chang’s, that have not always worked comfortably.
- the House of Lords has undergone significant reform and arguably now has much greater legitimacy.. but what about eh 29 hereditary peers? Do unelected peers lack the legitimacy to challenge the elected commons?
- devolution has the transformed the UK , challenging the unitary state and sovereignty of parliament
- but how much power should be devolved? When, if at all, should devolution come to and end? What about the West-Lothian Question?
- many of the royal prerogatives powers have been limited by statue, or by constitutional conventions but what about the remaining prerogative powers? Should they be codified? Should a modern democracy still retain a monarchy?
The old constitution vs new constitution
- parliamentary sovereignty - significant political limitations
- rule of law - human rights
- unitary state - quasi-federal state?
- fusion of powers - increased separation
- royal prerogative - increasing Statutory limits
- the judiciary now recognises ‘constitutional statues’ that can only be expressly repealed, and have proactively questioned whether the sovereignty of parliament is the core principe of our constitution.
-e.g in the case R(Jackson) v.Attorney General, Lord Hope controversially said that “parliamentary sovereignty is no longer”
- is their isn’t an agreement on something as fundamental as parliamentary sovereignty, then maybe e do need a new codified constitution which everyone can agree on.
- if citizens across the UK were able to both influence the drafting of a new constitution, and ratify it n a referendum, then the new settlement would have far greater legitimacy.
- this new codified constitution would also be much easier for citizens to understand