The UK Constitution

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Why does the UK need a Constitution?

  • solution to power problems (power tends to be corrupt, so we need to be protected from those in power)
  • without one the government could do whatever they want - oppressing minorities, violating freedom, tyrannising mass of people
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Features of the UK Constitution

Parliamentary Sovereignty: Sovereignty = supreme, unrestricted power; in this case, the absolute and unlimited authority of Parliament which can, in theory, make, repeal or amend any law

Uncodified: Not confined to one document

Unitary: ultimate power lies with a central body we sovereign; the opposite is a federal government (as seen in the US)

Fusion of Power: this is where the executive and the legislature branches of government intermingle

Flexible: Changes can take place without lengthy specialist procedure; the opposite is rigid

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Features of a Codified Constitution

  • Authoritive
  • Entrenched
  • Judicable
  • "Higher Law" - binds all political institutions
  • Diffucult to abolish
  • Judiciary can declare when something is / isn`t constitutional
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Pros and Cons of a Codified Constitution

Pros

  • Government kept in check (answerable to the judiciary)
  • changing constitutional law is a complex procedure
  • can provide people with something they can identify with
  • provides security / protects rights
  • organised (single source)
  • neutral interpretation
  • education / citizenship

Cons:

  • Rigid - changing it is complex / diffucult
  • government has limited power (answers to "higher law)
  • changing consitiution to fit with modern society takes a long time
  • Political Bias
  • Unnecassary
  • Judicial Tyranny
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Features of an Uncodified Constitution

  • Not authoritive
  • Not entrenched
  • Not judicible
  • Constitutional and ordinary laws are of the same status
  • Can be changed through normal process for enacting statute law
  • Judges don`t have a legal standard against which things can be declared unconstitutional
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Pros and Cons of an Uncodified Constitution

Pros:

  • Constitution can be easily changed
  • Law = more efficient and flexible
  • Parliament can make, unmake and amend any law it wishes, including the laws that affect the consitution

Cons:

  • Judges can declare the actions of other bodies un/constitutional - more open to corruption
  • Not really clear
  • Can also limit personal freedom
  • Less security than written constitution
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Should the UK have a codified constitution? Part 1

We should:

  • Will be in 1 place
  • Would remove uncertainty about specific roles (monarchy)
  • some say the current process is outdated
  • Constrain executive dominance
  • No seperation of power
  • Could protect judiciary independence
  • Key laws would be firmly established
  • would be easier for courts to interpret what behaviour is lawful
  • establish clearer values and structure of political system
  • would prevent a constitutional crisis (e.g. hung parliament)
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Should the UK have a codified constitution? Part 2

We Shouldn`t:

  • Higher power would have more decision making right than the government
  • With a constitution there is a lengthy process to change it (referendums)
  • People misinterpret it causing corruption
  • We`ve survived without one
  • It hasn`t worked effectively in other countries
  • Our "Westminster Model" claims this is not how we should work
  • The current system works well, providing stability, liberty and reflects British values
  • We have a strong and effective government without one
  • Hard to find a constitution to suit everyone
  • A written constitution doesn`t guarentee people`s rights (US, Zimbabwe and Russia)
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Sources of the UK constitution Part 1

Statute Law;

  • single most important source
  • Acts of Parliament (made by Parliament)
  • Laws affecting powers / responsibilities of government or rights / freedom of people
  • Prevails if it conflicts with a convention / common law
  • More and more constitutional rules now have statutory basis

Conventions:

  • Key unwritten element
  • Non-legal and often lack clear, unambiguous definition - collective responsibilities of cabinet
  • regularly observed practises can be ignored but are upheld to make politics workable

Royal Prerogative:

  • Formal powers of the Crown which are performed by the PM and the executive branch of government
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Sources of the UK constitution Part 2

Common Law:

  • Refers to a body of laws based on tradition, custom and precedent - also known as case law
  • formed on basis of precedents set in previous cases - most civil rights laws begin this way
  • sometimes viewed as judge made law
  • created / refined on case-by-case basis in courts

Major Works of Authority and Constitutional Documents:

  • Consult authors deemed as experts on some constitutional issues - interpret what it actually means
  • many gaps in the constitution and incertain about how rules / principles should be applied
  • not legally enforcable - they are only consulted so don`t have to always be followed / are only sometimes followed. thier status is up for debate
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Sources of the UK constitution Part 3

EU Law:

  • Joined the EU in 1973 and must now incorporate EU laws and treaties into domestic laws
  • Process of European integration has increased, making the EU more important
  • EU law has a higher status than Statute law (in particular with regards to social and economic legislation)
  • Form a significant addition of the constitution

Examples:

  • Statute = Representation of Peoples Act 1918, 1928, 1969
  • Convention = House of Commons
  • EU = recent events
  • Major Works of Authority and Constitutional Documents = Magna Carta (1215), Bill of Rights (1869)
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Sovereignty within the UK

Executive derived from the legislature:

  • executive derived from, and can be removed by, the legislature
  • opposite of US presidential system - strict separation of powers between the executive and the legislature

Fusion of Powers:

  • ministers heading the executive also sit as part of the legislature at the same time
  • until 2003 Lod Chancellor sat in all three branches, but this was changed under Labour`s programme of reform

Parliamentary Sovereingty:

  • the three branches of government are unequal (the legislature is supreme)
  • government ministers accountable to parliament which is supreme (unlike in the USA)
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Sovereignty within the UK Part 2

Unitary System:

  • All power is concentrated in a single national institution (Parliament)
  • all local / devolved government power exists only at the pleasure of national government - powers devolved into regions can be withdrawn (in reality - unlikely to happen)

Centralisation and Decentralisation:

  • Centralisation - act of consolidating power under central contol
  • Decentralisation - spread of power away from the centre to local branches / government
  • unitary government - centralised
  • modifications - devolution and considering giving power to regional assemblies
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Parliamentary Sovereignty

  • doubts about accuracy and continuing relevance

3 alternatives:

  • Political Sovereignty
  • Popular Sovereignty
  • Legal Sovereignty

Political Sovereignty:

  • Parliament has not, and has never been politically sovereign. it doesn`t always have the power to do something due to consequences (for example - mass protests and public rebellion)

Constraints of Parliamentary Sovereignty:

  • Pressure groups and public opinion
  • international opinion (USA and EU)
  • policies of international bodies (UN)
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Parliamentary Sovereignty Part 2

Popular Sovereignty:

  • principle that supreme authority is vested in the people directly rather than in a representative institution
  • there has been a shift from parliamentary sovereignty to popular sovereignty (e.g. elected devolved assemblies, Human Rights Act)

Legal Sovereignty:

  • Parliament may no longer be legally sovereign
  • as a result of EU membership (EU law precedes statute law)
  • also implied by the idea that devolution has resulted in quasi-federalism reflected in the reluctance of parliament to challenge decisions made be devolved bodies
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Should Parliament be Sovereign?

Yes:

  • key to British liberal-democratic system (democratic representation)
  • provides uniformity to law, tax and education
  • Parliament still has the power to leave the EU and take back any lost powers
  • Unites the electorate on election day
  • House of Commons = bigger / has more authority to make laws

No:

  • Parliament is no longer supreme law making body (EU law)
  • Political = more morally justifiable
  • external matters take control from Parliament
  • referendums undermine sovereignty
  • parliamentary power = limited
  • popular sovereignty has more power
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Principles of the UK Constitution

Parliamentary Sovereignty:

  • Sovereignty = "Crown in Parliament"
  • Form of legal sovereignty (make / unmake / repeal any law)

Rule of Law:

  • traditionally seen as the alternative to a codified constitution - showing that, even in th absence of higher law, government is still subject to legal checks and constraints
  • In short, government is not above the law

Parliamentary Government:

  • UK constitutional structure based on a fusion of powers between Parliament and the executive
  • Government / Parliament overlap / interlock
  • Government, in effect, governs in and through Parliament
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Principles of the UK Constitution Part 2

Constitutional Monarchy:

  • monarchy remains constitutionally significant body within the UK
  • `dignified` institution and still plays a vital role even if there is no meaningful political power
  • role = promote popular allegiance and serve as a symbol of political unity above party policy
  • monarch = right to be informed, consult, warn and encourage

EU Membership:

  • membership of the EU has major implications on the constitution (on the role / significance of Parliament in making laws)
  • sovereignty now bes understood as "parliamentary sovereignty within the context of EU membership"
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Does the constitution need reform?

Why reform?

  • fears about parliamentary sovereignty and the impact of EU membership
  • corruption and sleaze associated with the House of Commons
  • fairness of the electoral system
  • future of the House of Lords
  • erosion of civil liberties
  • increased number of unelected quangos

How is the constitution reformed?

  • Cabinet and Parliamentary Committees
  • Referendums
  • investigatory Commission
  • Act of Parliament
  • EU law
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How should the constitution be reformed?

Charter 88:

  • written constitution
  • elected second chamber (House of Lords)
  • bill of rights
  • reformed judiciary

Conservatives:

  • traditionalists
  • 1997 manifesto - "strength and stability of Constitution - the institutions, laws and traditions that bind us together as a nation"
  • see danger in tampering with the constitution
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How should the constitution be reformed? Part 2

Norton and Adonis:

  • Norton - "strengthen existing framework, not destroy it"
  • strenghtening of parliament
  • abolishing / reducing quangos
  • devolving power to local level
  • Adonis - "Incremental reform to adapt Britain`s governing institutions to the times"

Centre-Left

  • labour and liberal democrat working party discussed reform prior to 1997 General Election
  • Labour - government is "centralised, inefficient and bureaucratic"
  • Liberal Democrat - beleived in electoral reform and proportional representation
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How successful has reform since 1997 been?

Positive:

  • greater clarity of rights (HRA) / rights are protected by government (government = more accountable)
  • House of Lords Reforms - more legitimate / have more power within the law making process (which is now more robust in the form of checks and balances)
  • devolution is more democratic / people can get involved regionally

Negative:

  • Changes to the House of Commons have been limited
  • HRA fails to deal with the problems of central government having too much power (still relatively centralised)
  • reforms were individual solutions to particular problems
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