Functions of a constitution?
- Establish distribution of power within a political system.
- Establish relationships bwteeen political institutions and individuals.
- Define and establish limits of government power.
- Specify rights of individual citizens and how they are to be protected.
- Establish teritory which comes under jurisdiction of the government,.
- Establish and describe arrangements for ammending the constitution.
Codified Constitution Features
- Written in a single document
- One single source
- Constitutional laws are superior to other laws - 'dualism'.
- Special arrangements exist to establish new constitutional laws, amend existing ones or repeal unwanted ones.
- Normally come into existence at one point in time often after a national upheaval such as revelution or independance (e.g. The U.S. Constitution was finalized, signed, and forwarded to Congress by the members of the Constitutional Congress in 1787.
- They are entrenched - cannot be set aside or changed without special safeguarding arrangements.
Features of uncodified Constitution.
- Not written in a single document.
- Has a number of different sources.
- Constitutional laws are not superior to other laws.
- Arrangements for changing the laws are the same for those passing other laws.
- Develop over time and are more flexibe than codified constitutions.
- Said to be unentrenched as they can easily be changed and are not superior. They are not specially protected against change.
Sources of UK constitution
- Parliamentary statutes, when laws are passed they have a constitutional effect (Human Rights Act 1998 brought Human Rights into UK. Freedom of Information Act 2000 gave public access to official documents and information.)
- Conventions - Rules that are not legally enforceable but which are considered binding and so are virtually laws. (Collective Cabinet Responsibility states that the members of gov should always defend all gov policies.)
- Common Law - unwritten laws that can be enforced by the courts. e.g. Law on murder is common law as there is no statute on murder. Perogative powers is a concept of common law.
- European traties - UK has signed a number of treaties concerning the transfer of power and sovereignty from the UK to the EU (Lisbon Treaty of 2007 transferred power to the EU.
- Works of authority - writings of constitutional experts which describe constitutional practise. they have so much authority they have become part of the constitution. (Rule of Law established by A.V.Dicey.)
- Traditions - these are customs and practices that have grown up over a long period of time, not legal but tend to persist (e.g. annual Queen's speech. Parliamentary procedures are mostly traditional like dragging the speaker to the chair.)
Features of UK constitution.
- Not codified, making it flexible and not entrenched.
- Constitutional laws are not superior to other laws.
- Parliament is sovereign as the constitution and its rules are in control of parliament.
- There is constitutional monarchy. The queen is head of state but is constitutionally limited so that her powers are held in reserve and not expected to be used.
- Rule of law operates.
- It is unitary, so all sovereignty lies within UK parliament.
- Lack of seperation of powers, so the excecutive and legislature branches are not seperated, and the excecutive dominates the legislature.
Where does sovereignty lie in the UK?
- Parliament is the ultimate law making source and source of all political power.
- UK gov shares sovereignty because it has the peoples mandate to implement its mandate to govern.
- People are sovereign at elections.
- Referendums do not grant sovereignty to the people because they can be overruled but this would be very unpopular so they are sovereign in practice.
- EU has legal sovereignty in the areas where it has jurisdiction. However the UK can leave the EU and regain all its sovereignty.
- Devolved administrations do not have legal sovereignty but they have quasi sovereignty so the power granted to them is unlikey to be returned to westminster.
How has sovereignty in the UK changed since 1997?
Although legal sovereignty lies with the UK parliament, it has changed. These are ways in which it has changed since the Labour reforms on the constitution in 1997:
- Devolved assemblies (Welsh and Scottish)
- More sovereignty has been transferred to the EU (UK has to implement their reccomended legislation as secondary legislation, Human Rights Act 1998)
- Increasing Use of Referendums (Eected Mayor in London, 34% turnout)
- Power of excecutive has grown giving it more sovereignty (Blair's ideologically united cabinet meant less opposition in parliament making it more sovereign, won 418 seats in 1997. Allowed for HOL reform etc)
- Encorporation of Human Rights into UK law is effectively a transfer of sovereignty over civil liberties.
European Union and the Constitution
The UK joined the EU in 1973, a process called pooling sovereignty. Impacts have been:
- Eu laws are superior to UK laws (as stablished in the Factortame case in 1991)
- In conflict, EU law prevails (e.g. giving prisoners a vote went to European Court of Human Rights an the prisoners won)
- UK courts must enforce all EU law
- Appeals based on EU law are heard in british senior courts buf final appeals may go to ECJ
- Parliamentary sovereignt has not been lost as the UK can leave the EU.
Should the UK constitution be codified?
- Clarity, too many sources makes it hard for citizens to know their rights. E.g. in US there is a Bill of Rights which set out the rights clearly.
- Limiting government - prevents a drift of power. Lack of seperation of powers can be dangerous. In america powers are more seperate as president cannot vote on legislation, only approve it. HOL can only block legislation for a year and can still be bypassed. However Bill Clinton was known for vitoing lines of laws so it isnt 100% certain.
- We are unusual for having an uncodified constitution. May leave us left behind and is not keeping up with modern times (e.g. Only New Zealand + Israel dont have codified constitutions. However it does not guarantee that the gov quality will increase.
- Without constitution supreme court cant class any laws as unconstitutional as parliament has ultimate power to revoke any law. As after Labour brought in contreversial legialtion regarding terrorism suspects, they changed it due to complaints it was incompatible with human rights, so Prevention of Terrorism Act 2005 was introduced but was not much of an improvement.
- Constitutional Legislation shouldnt be made through normal legislation process. E.g. American constitution ammendments are extremely difficult, and has only been ammended 27 times.
Should the UK be codified?
- Its flexible to can be adapted to fit changing circumstances. E.g. the Abortion Act 1967 was introduced to stop the 'backstreet abortions' which was a major constitutional change. Also after the Dunblane school shooting, gov issued a law banning most guns, however it means our rights are less well protected.
- It would lead to judicial activism - courts would use own beliefss to change the constitution and as they are unelected it would be democractic. Some Human Rights cases have been omplained to have lead to judicial activism. However previous judicial reviews hvae shown importance of judges holding politicians to account
- Though the current constitution can be change, it can only be changed if people desire change, e.g. HOL blocked Hunting Legislation.
- Acountability - Governments cannot hide behind uncodified constitution to justify their inactivity, so they are more accountable (e.g. Obama refused to change gun laws in the USA which he was not held to account for. )
1997 Labour reforms
- Human Rights Act
- Freedom of Information Act
- HOL reform
- Electoral reform (proposal for referendum was dropped)
- Judicial reform - making HOL into supremem court.
- Elected Mayors.
Why did Labour reform Constitution?
- Modernisation - to keep in line with the rest of the world.
- Electoral advantage - Thought electoral reform would help to win votes, especially in scotland and wales.
- Democratisation - Was influenced by liberalism and so wished to make the constitution more democratic and liberal.
- Anti-conservatism - conservatives opposed reform which was a reason for labour to defy them. They also believed there had been a drift towards excessive power under the conservatives since 1979.
Coalition Proposals for reform
- Electoral reform - May 2011 Av vote.
- Fixed Term Parliaments - Agreed in 2010 that time between elections was fixed at 5 years.
- House of Lords Reform - legialation introduced to create partly/fully leceted HOL.
- British Bill of rights to be introduced instead of Human Rights Act.
- Equal constituency szes - 2011 legislation began the process of redrawing constituency boundaries so they are of equal size. Did not go ahead.
- Devolution - Promise to give welsh a referendum on whether assembly should have more power ended in a yes vote in 2011 - 35.2% turnout.
- EU - any proposed legislation to transfer sovereignty to EU would have to be agreed in a referendum. - Giving prisoners the vote said it must be implemented but it hasnt been as there has not yet been a referendum.
Evaluation of UK constitution.
- Flexible so can evolve and respond to changing circumstances
- Provides for strong decisive government which isnt contrained by cnstitutional rules.
- Has stood the test of time so is part of UK tradition.
- As Parliament is sovereign it makes government accountable.
- Unitary nature helps to remain national unity.
- Independant judiciary ensures rule of law is maintained.
- Provides for collective gov as opposed to presidency which place too much power in the hands of one individual.
- Too flexible so rights are not entrenched.
- Allows for excessive gov power - Thatcher
- Old fashioned and doesnt bring UK in line with other countries. It also allows for undemocratic institutions like unelected monarchy/HOL.
- Parliament is too weak relative to gov. Electoral system enforces the lack of representation (147 women)
- Power is too centralised so threatens democracy.
- Citizens struggle to know their rights as they are not codified.