AS Government & Politics Unit:2, Topic:1 (British Constitution)

Outline of this topic, w/ specific facts and examples 

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Main sources of the Constitution

Statute law- Acts of Parliament that play a key role in defining the relationship between the gov’t and the people. – The Human Rights Act 1998 or Parliament Acts (1911 and 1949)

Common law- Referred to often as case law or ‘judge-made law’. Established customs and legal precedent. Most traditional civil liberties – e.g. freedom of speech (originally established in common law). The royal prerogative is also rooted in common law *inc. power to declare war/agree treaties.

Conventions- Traditions/customs evolved over time – no real legal standing. Can easily be overturned by a passing of a parliamentary statute. Doctrine of cabinet collective responsibility is rooted in convention

EU laws and treaties -European Communities Act 1972 – UK incorporated Treaty of Rome 1957 into law. Takes precedence over our law, although Parliament reserves right to repeal the 1972 Act – thereby withdrawing from EU

Works of authority -Scholarly texts serve to codify practices not outlined on paper elsewhere. E.g. – Bagehot’s The English Constitution 1867, May’s Parliamentary Practice 1844, A.V. Dicey’s An Introduction to the Study of the Law of the Constitution (1885) 

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Principles and Adaptations

·         Main principles upon which the UK Constitution is based:

Parliamentary sovereignty and rule of law

·         Reasons why the British constitution can easily be adapted to changing circumstances

1.       Uncodified constitution – no entrenched rights enumerated in a constitution like in the USA

2.       Only act of Parl. Needed, so allows events like 1996 – Parl. Outright ban on handguns after Act of Parliament passed in the wake of the murder of 16 school children in Dunblane

3.       Not a legal requirement to have a referendum like with Scottish Parliament in 1998, e.g. H of L’s reform was not – (unlike many EU states)

4.       Also due to significance of conventions – conventions shift, develop and evolve over time, allowing “evolving conventions”, said codified constitutions shape political practice – it is the opposite in the UK 

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Contrasts between the US and UK

US:......................................................................................UK: 

1. Revolutionary in nature ................................................. 1. Evolutionary in nature

2. Single, authoritative document ....................................... 2. Draws from many sources

3. Quite rigid  ....................................................................3. Quite flexible 

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Unitary State?

  • In theory  it remains a unitary state - yet considerable power has been granted to devolved bodies (e.g. Scottish Parl. 1998, Wales Act 2006). These devolved powers would be difficult to withdraw at this stage now, without a referendum - which would not occur and the results would be negative
  • The increased use of referendums since 1997, rise of executive dominance, and increasing media criticism of the royal family - signalled a change in the tradition of parl. gov't under a constitutional monarch. 
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Separation of Powers v. Fusion of Powers

Separation – Executive, Legislature and judicial should be separated through the construction of independent branches of the governing system – associated with French Enlightenment philosopher Montesquieu – commonly found in presidential democracies


Fusion of powers – Situation when these branches of government overlap – feature of parliamentary democracies 

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Separation of Powers (Against)

·         Three examples which illustrate that the UK does not have a clear separation of powers

1.    Until 2005 (CRA), Lord Chancellor was a full fusion of all branches, being speaker in H of Ls, a gov’t minister heading the Lord Chancellor’s Depart. And also the head of the judiciary.

2.    The executive is drawn from members of the legislature

3.    Members of the judiciary’s increasing politicisation, e.g. Former Lord Chief Justice Lord Woolfe

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Government Too Much Power?

·         Main arguments for idea that the absence of a separation of powers in the UK gives the government too much power:

1.       Prime Minister is ‘primus inter pares’ (first among equals) in principle, but in reality he/she can take a stronger role, e.g. Blair + New Labour

2.       If party wins with large majority can pass a lot of Acts in Parliament easily – Blair (1997 -179 majority).

·         Against:

1.       PM cannot do much without the support of Parliament – if the party in power won with a small majority or is in a coalition Cameron now – Hung Parliament 

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Changes to the Constitution since 1997

1.       Constitution Reform Act 2005 – UK Supreme Court introduced in 2009, removed judicial functions of H of Ls and transferred them to the Supreme Court

2.       Judicial Appointments Commission established (JAC) – commission created by the CRA. Assumed responsibility as an independent body for selection of judges from Lord Chancellor

3.       Human Rights Act (1997) – Incoroporated European Convention on Human Rights (ECHR) (1953) into Brit Law

4.       Greater London Authority Act 1999 (London given elected mayor + an elected Assembly)

5.       Belfast Agreement (Good Friday Agreement) 1998 – Assembly to Northern Ireland nad power-sharing executive

6.       Scottish Parliament and Welsh Assembly 1998

7.     House of Lords Act 1999 – 92 hereditary peers lose right to sit and vote in the chamber 

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Constitutional Reform Act 2005 - Impact

·         Examples of how the Constitutional Reform Act (2005) – has helped to shift the UK towards a clearer separation of powers

1.       Weakened Lord Chancellor’s position – previously was a representation of the fusion between all three branches of gov’t

2.       Established an independent body JAC – less politicised decisions made in the judiciary

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Supreme Court (General)

Oct 2009 - 11/12 Law Lords from the Appellate Committee moved to the Supreme Court 

The 12 Law Lord Neuberger accepted the position of Master of the Rolls instead 

12th place filled by Sir John Dyson - first member to be appointed by the appointments process 

Roles: 

1. Act as the final court of appeal in England (E), Wales (W) and Northern Ireland (NI)

2. Hear appeals on issues of public importance

3. Hear appeals from civil cases in E, W, NI and Scotland 

4. Hear appeals from criminal cases in E, W & NI

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Impact of the New Supreme Court

Jan 2010 - Treasury v. Mohammed Jabar & others. SC ruled the UK treasure had acted ultra vires (above the authority granted) 

- The Supreme Court was doing little more than what the Law Lords previously did - so it can be questionable the need for the Supreme Court and how much/how little of an impact it has had on the legislative process.

  • Appellate Committee once acted as the highest court in the land - until 2005
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Tangibles/Intangibles (New Supreme Court)

TANGIBLES:

  • Appointments and composition - Significantly more independent and less opaque than previous system 
  • Power - No new powers granted from the powers of the previous Appellate Committee
  • Judicial independence - been enhanced in theory - although can be said functionally the previous committee was independent too

INTANGIBLES: 

  • Physical separation - New Court granted its own building - likely to raise profile - distinctive character and identity also provided
  • Lifting restirctions on television cameras - Emergence of new relationship between media and snr judges? 
  • Changes in delivery of rulings - Website with downloadable rulings  - greater public scrutiny of the workings of the Court 
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Judicial Independence

For – 1. Security of tenure – hard to be removed – impeachment (vote in both houses of Parl.) Two junior judges were removed in 2005 for misconduct, but senior judges are more difficult to remove

2. Guaranteed salaries – free from political manipulation – drawn from the Consolidated Fund

3. Contempt of court – under sub judice rules it is an offence for ministers and others to                              speak out publicly during course of legal proceeding

4. Independent appointments system under the JAC (new in 2005) 

 5. Training and experience of snr. Judges. Pride they take in role and personal legal reputation 

Against- 1. Pressure from the Legislature or Executive, or the media 

2. Self interest


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Judicial Neutrality

Acting impartially: 

1. Everyone is equal under the law 

2. No one is above the law 

3. Everyone is entitled to a free and fair trial [can be questionable - as those with money can afford better lawyers, and therefore will be more likely to win (so not very fair)]. 

AGAINST: 

1. Attorney General and Solicitor General (two v. important judicial figures) sit in on cabinet meetings - can they really be neutral? 

2. Many judges have a specific background - (white, male, over 40, attended Oxbridge), can they really be free from bias? 

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Judicial Review

  • UK Courts cannot declare statutes unconstitutional  - as statute law is the supreme source of constitutional law in the UK 
  • However, can determine if gov't officials have acted ultra vires 
  • Comparing it to the US - the US courts can be seen as having greater power than the UK Supreme Court - as the US one can declare acts unconstitutional 
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Organisation of the UK Judiciary

UK SUPREME COURT 

     (role previously held by the House of Lords)

COURT OF APPEAL

            (Criminal and Civil Divisions)


HIGH COURT


CROWN COURT AND COUNTY COURTS 

(Magistrates' courts and tribunals) 

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Judiciary (General)

  • Judges - JUSTICE IS DONE (main priority)
  • Supreme Court responsibilities include CLARIFYING MEANING of law, not just APPLYING IT. 
  • Cases heard in the Court of Appeal and in Supreme Court usually result from confusion in lower courts regarding the meaning of a law. - Courts also deal with major cases arising from teh HRA 1998, or under EU law
  • Higher tiers have the power to set legal precendent - establishing common law 
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Civil Law / Criminal Law

Civil Law: 

  • Individual vs Group 
  • E.g. Wills or contracts 
  • Most result in compensation rewards

Criminal Law: 

  • Individual vs State 
  • E.g. Violent behaviour, fraud, or burglary 
  • Most result in fines or imprisonment 
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Judicial Appointments Commission

JAC: 

  • Leading to a greater separation of powers - more independence 
  • Can result in a senior judiciary that was more representative of the broader population 
  • HOWEVER - in 2008 the Guardian reported that the new JAC had approved 21 individuals, 10 of thses had already been given posts: 
    • All were white, male, former barristers 
  • 2008 appointments, only 8% were from black or Asian backgrounds (14% in 2005-06), only 34% were women (41% in 2005-06) 
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Appointment to the Supreme Court

  • QUALIFICATIONS - helf a high judicial office for at least two years OR been a qualifying practitioner for a period of 15 years 
  • APPOINTMENTS PROCESS: 
  • 1. Vacancy 
  • 2. 5-member ad-hoc Selection Commission convened to consider possible nominees 
  • 3. Commission submits a report to the Lord Chancellor - naming a nominee
  • 4. Lord Chancellor has three options - a. accept selection by notifying PM, b. Reject selection, c. REquire the commission to reconsider 
  • 5. Once notified the PM must recommend the approved candidate to the Queen
  • 6. Individual appointed when Her Majesty issues letters patent 
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Factortame Case 1990

  • Before 1990 The European Court of Justice could challenge UK statutes. However, following Factortame UK Courts have also been able to suspend UK statutes that appear to be in violation of EU law. 
  • Factortame - Spanish fishermen complained that the Merchant Shipping Act 1988 violated the Single European Act 1986. 
  • Highest Court referred the case to the European Court of Justice (ECJ)
  • An instruction was given not to apply key sections of the Act until a final ruling 
  • The House of Lords overturned this instruction - arguing that no UK court had the power to suspend a statute - until the ECJ could make a final determination 
  • In 1990 - ECJ ruled that the UK courts do have the power to suspend Acts of Parl. that appear to break EU law. 
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Human Rights Act 1998

  • Came into force in Oct 2000 - incorporated most articles in the ECHR into UK law - thereby allowing citizens to pursue cases unter the ECHR rights in UK courts
  • It is not superior to parl. statute - as it is based on ECHR not EU law 
  • However, has enhanced individual rights 
  • Does not have the same legal status as EU law or the US Bill of Rights 
  • HRA does not give the courts the necessary power to stop or overturn gov't action - e.g. 2001 Crime and Security Act - could authorise the indefinite detention without trial of foreign nationals whom the home secretary judged were involved in terrorism 
  • HRA been used in a number of non-terrorist-related cases e.g. Jamie Bulger killers granted lifelong anonymity 
  • Questionable articles: Article 2: right to life, Article 3: Prohibition of torture, Article 8: respect for private and family life, Article 10: freedom of expression 
  • European Convention on Human Rights (ECHR) - 
    • Established in 1950. 
    • By the Council of Europe - intergovernmental body - totally separate from the European Union 
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