Definition of Constitution
A set of principles, which may be written or unwritten, that establishes the distribution of power within a political system, relationships between political institutions, the limits of government jurisdiction, the rights of citizens and the mehtid of amending the constitution itself.
Functions of a constitution
- They determine how political power should be distributed within the state.
- Constitutions also establish the political processes that make the system work, includes the relationship between institutions and the rules that govern how they operate.
- A consitution normally states what the limits of governmental power should be. Parliament is soverign and could be a dictatorship.
- Constitutions limit government power.
- Constitutions establish the rules by which nationality is established, e.g. who is entitled to be a citizen.
- Constitutions have to be amended from time to time. It must contains within itself the rules for its own amendment.
Definition of Constitutionalism
The concept that a political system is governed by a constitution and that political institutions are bound by constitutional rules which are binding.
Definition of Codification
The process of setting a constitution in an organised way in a single document. In other words, it has a single source.
- It is written in a single document
- It is therefore said to have a single source
- Constitutional laws are superior to other laws, a feature known as 'dualism'
- Special arrangments exist to establish new constitutional laws, amend exsisting ones or repeal unwanted constitutional laws.
- Codified constitutions normally come into exsistence at one point in time, often after a national upheaval such as a revolution or the establishment of independence from a colonial master.
- Because the constitutional laws in a codified constitution are superior and safeguarded, they are said to be entrenched. That means they cannot be set aside or changed without special safeguarding arrangments.
- It is not written in a single document
- It therefore has a number of differnet sources
- Constitutional laws are not superior to other laws.
- The arrangments for changing the laws of the constitution are the same as those for passing other laws.
- Uncodified constitutions develop over time and are more flexible than codified constitutions
- Because constitutional laws are not superior and can easily changed, they are said to be unentrecnched. They are not specially protected against change.
Arguments for retaining an uncodified constitution
- It is seen as a positive quality, it can adapt to a changing world without major upheavals.
- Constitutional safeguards in Britian are weak and absent, government can be more powerful.
- Typical conservative attitude, "if it ain't broke don't fix it"
Politicising the courts and Judiciability
- A codified constitution would involve courts, including disputes over its precise meaning and application. There would be conflicts over the exact powers of government, the nature of rights and relations with the EU.
Arguments for introducing a codified constitution
- Human rights can be removed at anytime. ECHR is there.
- Seen parties retain the powerful posistions of government in the UK. Liberals and other reformers, however, argue that executive, governmental power is excessive in Britian.
- Most British citizens do not understand the concept of a constitution. This is hardly suprising as there is no "British Constitution". Argument for creating one. If people know their rights and understand better how government works, it is suggested, this might cure the problem of political ignorace and apathy that prevails.
- Britain is unusual in not having a codified constitution. Some see this as not having entered into the modern world. More pressing when Britain joined the EC/EU.
Effectively entrenched aspects of the Constitution
- European Convention on Human Rights, brought into law by the Human Rights Act (1998)
- The Devolution Acts (1998)
- UK's relationship with the EU is codified in the various treaties that Britain has signed, such as Maastricht (1992), Nice (2001) and Lisbon (2009)
- The public's right to see public information is codified in the Freedom of Information act
- The status and conduct of political parties is now codified in the Political Parties, Elections, and Referendums act (2000)
- Important constitutional changes are effectively entrenched by the fact that they have been approved by referendum and can therefore be repealed by only by referendum.
- The electoral commission has created a codified set of rules for the conduct of elections and referendums.
Definition of Unitary constitution
Sovereignty -ultimate political power- resides in one location. This is at the centre. It is possible that some power mau be distributed to regions and local government, but this is not the same as sovereignty. In a unitary constitution, the central soverign power can overrule all other bodies and has the right to restore all political power to itself.
Definition of Federal constitution
Sovereignty is divided between central bodies and regional institutions. Such constitutions normally arise when a number of sovereign states come together and agree to surrender some, but not all, or their sovereignty to a central authority.
Sources of the UK constitution
Parliamentry (Constitutional) statutes
- These are acts of parliament that have the effect of establishing constitutional principles.
- A convention is an unwritten rule that is considered binding on all members of the political community. Such conventions cannot be challenged in law, but have so much moral force.
Historical principles and authoritative works
- These are principles that have become effectively binding because they have been established over a long time. Most important is the sovereignty of Parliament. The rule of law is a more recent development.
- The part of English law that is derived from custom and judicial precedent rather than statutes.
Sources of the UK constitution (2)
- Constitutional traditions that govern many of the rituals of parliamentary government. The procedures of both Houses of Parliament are traditional in nature, as are some of their rituals.
- Parts of the constitution have come from Europe. European convention of human rights originated in the Council of Europe, and any future changes needed to be approved by Council Treaties adopted by the EU.
Main Characteristics of the UK constitution
- Its uncodified nature
- It is not entrenched
- Constitutional monarchy and royal prerogative
- Parliamentry government and Parliamentry sovereignty
- Party Government
- Unitary government
Definition of Royal prerogative
This refers to the ancient, traditional powers enjoyed by the monarch. These powers do not require the sanction of Parliament but are arbitrary. Since the latter part of the nineteenth century these powers have passed from the monarch to the prime minister of the day
Definition of Parliamentary government
A political system where Parliament is a central feature. Government is drawn from Parliament and is accountable to Parliament.
Definition of Parliamentary sovereignty
The principle that Parliament is the ultimate source of all authority and power within the political system. It also means that Parliament is the ultimate source of all law and there is no higher legal authority.
Strengths of the British Constitution
- It is flexible because it is neither codified nor entrenched. It is also adaptable
- It is highly traditional and has stood the test of time.
- It ensures that Parliament and therfore government, can act decisively, unrestricted by excessive constitutional restraints.
- It contains traditional elements such as the House of Lords and the Monarchy. This helps to maintain public support for the system.
Weaknesses of the British Constitution
- The lack of restraints on the powers of government and Parliament may be dangerous, especially to individual and minorty rights.
- It contains traditional and outdated institutions such as the FPTP system.
- There is a lack of seperation of powers between government and Parliament meaning that government tends to dominate Parliament.
- The constitution is uncodified meaning people are ignorant of it. This results in political apathy and lack of support for the political system
Sovereignty in the UK
- In the UK legal sovereignty lies in Parliament. This means that no other body has the power.
- It is also true that statutory powers can be granted to a subsidiary body or to a minister only by Parliament.
- People have some sovereignty
- People elect a parliament and a government at each general election. Verdict at election can't be challenged.
- It is clear which party has been elected (not 2010) the party has a mandate to carry out policies in its election manifesto.
- Referendums are now held quite regularly. The reuslts aren't binding on Parliament (as its legally soverign) meaning referendums aren't soverign.
Sovereignty in the UK (2)
- UK government is soveriegn because it has a mandate from the people and most of its proposals are almost certain to be accepted through parliament.
- The UK prime minister has powers which he excersises on behalf of the monarch- prerogative powers.
- The Scottish, Welsh and Northern Irish governments and assemblies have political sovereignty over certain areas of policy making because the devolution laws have granted them wide powers.
- The popular sovereignty exercised by the people at a general election is also sometimes described as political sovereignty.
Definition of Legal Sovereignty
Is the power to make and unmake binding laws, to grant ultimate powers to individuals or other bodies and to determine the nature of the consititution
Definition of Political Sovereignty
Political soveriegnty refers to the location of real power, It ignores where legal sovereignty may lie and concentrates on who realistically can exercise power within the state.
The EU and the Constitution
Britain joined the EC in 1973
Parliament had passed the EC act in 1972. It has had a profound effect on the UKs Constitutional arrangments.
Areas where jurisdiction has passed largely in the EU:
Agriculture, fishing, employmentlaw, consumer law, Competition control and Regional economic development.
Areas where EU membership influences but does no control government policy
Economic policy, Environmental protection, Defence, Foreign policy, Overseas development, Asylum and immigration.
Areas where virtually no jurisdiction has passed to the EU
Education, Health provision, Social security, Law order and justice, Moral legislation, Local government services, Personal taxation and internal political system.
The EU and the Constitution (2)
- EU laws are superior to UK law. This was established in 1990 in the factorame case in appeal court of the House of Lords.
- British Courts must implement EU laws.
- Where an interpretation of the EU law is required it must be referred upwards to the European Court of Justice.
- For proposals that require a unanimous vote in the EU Council of Ministers to become EU law. The UK does not sacrifice sovereignty as it has an effective veto.
- However, where proposals can become EU law with only a qualified majority vote in Council of Ministers.
- Parliament should not pass any staute that conflicts with exsisting EU law.
Definition of Quasi federalism
A description often applied to both the EU and devolution in the UK. Though the arrangments in the EU and the UK are not legally federal they are so similiar to a federal system that they can be described as quasi federalism, i.e. something close to federalism.
Where sovereignty in the UK has gone
- Parliament remains legally sovereign. Even where Parliament has granted, or delegated, power to other bodies or individuals.
- A good deal of Political sovereignty has been transferred away from Parliament.
- Since devolution in 1998, a good deal of political sovereignty has been effectively transferred to the assemblies and governments of Wales, Northern Irealand and Scotland.
- Some legal sovereignty has been transferred to the EU. these are often referred to as 'pooled sovereignty'.
Definition of Constitutional reform
A process whereby the fundamental nature of the system of government (as well as the relationships between governing institutions) is changed, or where change is proposed. In the case of the UK this may also involve the process of codification.
Definition of Pooled sovereignty
A circumsatnce, as in the EU, where legal soveriengty is exercised collectively by a number of sovereign states.
Definition of Constitutional reform
A process whereby the fundamental nature of the system of government (as well as the relationships between governing institutions.) is changed, or where change is proposed. In the case of the UK this may also involve the process of codification.
Constitutional reform after 1997
- Too much of the Birtish political system has been see as undemocratic. The prime targets have been unelected House of Lords and the notoriously unrepresentative electoral system.
- Devolved administrations use proportional electoral systems
- Elected mayors in london.
Restoration of Rights
- Human rights into British laws
- Freedom of Information
- Bring in line with exsisting western arrangments. Stronger protection of Human rights and FOI brings the UK in line with most other democracies.
Definition of Parliamentary reform
A process whereby reforms in the membership, powers or procedures of either or both Houses of Parliament are made or proposed.
Refroming the HoL- had to move in 2 stages.
Stage 1: the removal of hereditary peers. (there would be an all appointed chamber of life peers and Church of England bishops)
Stage 2 : was to be an elected, or partly elected chamber. (this ran into more obstruction and a lack of political consensus.)
The HoL act in 1992 reduced the number of hereditary peers to 92. The coalition government of 2010 was commited in introducing an elected second chamber.
Reform of the commons- largely superficial. The main reform concerned the departmental select committees of the HoC.
2010- Backbench Business Committee was established. Gave MPs control over 20 parliamentary days to debate issues of their choosing.
2012- legislation passed to allow constituents to order a recall of unsatisfactory MPs.
Definition of Human Rights
Basic rights that all citizens can expect to enjoy. Key examples include freedom of expression, freedom of association, freedom of worship, right to privacy and freedom from imprisonment without trial.
Why the Human rights act was proposed
A number of factors led to Labour Party to incorporate the European Convention on Human rights into British Law:
- A general desire to bring the British constitution into line with the rest of Europe, all of whose states have special arrangments to protect individual rights.
- The increase in the powers of the police and the courts that occured in the 1980s and 1990s were now seen as a major threat to our rights.
- The British government had been brought before the European Court of Human rights more than 50 times since 1966 and lost most of the cases. The decisions of the court are not legally binding, these cases had been an embarrassment to the government.
- New labour stressed the idea of active citizenship. This concept included the principle that citizens have responsibilties to their communities and to the country as a whole.
- It was part of the devolution settlement. This was designed to reassure the citizensof these nations that devolution would not threaten their rights.
How the Human Rights Act works
The Human rights act states that the European Convention on Human Rights is binding on virtually all public bodies in virtually all circumstances.
It can also be enforced by any British court of Law.
These bodies are bound by the Act:
- The Welsh, Scottish and Northern Irish political systems in their entirety.
- Local authorities
- Government ministers, civil servants and their departments
- All government executive agencies
- All quangos (non-governmental public bodies)
- Any other organisation engaged in 'public business' this includes the media, all schools, colleges, charities etc.
The Human Rights Act in context
The Act can be considered to be an extremely radical example of constitutional reform.
The Belmarsh case, suggests that the passage of the Human Rights act is a more dramatic constitutional change.
In 2005 the rules on the deportation of foreign terrorist suspects also had to be amended. The European Convention forbids the use of torture. This also implies that the UK should not deporrt any individual to a country where they are likely to be tortured.
Definition of Electoral reform
A process whereby the electoral system is changed or where there is a campaign for such a change.
Definition of Elective dictatorship
A team coined by Lord Hailsham, a Conservative Minister in the 1970s. It refers to the idea that, once elected, government in the UK has uncontrolled power. This applies even though governments in the UK do no win a majority of votes in general elections and may enjoy only a small House of Commons majority.
Freedom of Information
The Labour Party along with Lib Dems made a firm commitment to introduce such a measure.
Appeared in 1997 proved to be a disappointment to civil rights campaigners.
1) Rights to citizens to see information that is held about them, by public bodies.
2) Concerns the rights to see ocuments and reports that are held by government and its agencies.
Why Labour reformed the constitution
- Modernisation, It was out of step with the rest of Europe.
- Electoral advantage, would be popular and help it win votes, especially in Scotland and Wales.
- Democratisation, New Labour was influenced by liberalism and so wished to make the constitution more democratic and liberal in nature.
- Anti-conservatism, Conservatives opposed reform, which is why Labour defied them. Labour also believed there had been a drift towards excessive power under the Conservatives since 1979.
In 1985 the Greater London Council (GLC), a powerful local government body wide powers and responsibilities. PM Thatcher was determined to remove from power what she saw as a socialist enclave in the centre of Conservative Britain.
Labour was determined to restore government to London, a measure that has been seen as an extension of local government, rhather than devolution, when it returned to power in 1997.
Election of a Mayor was introduced to have a fair degree of executive powers.
In 2000, following a decisive referendum in which people of London approved the introduction of an elected mayor and assembly.
The mayor controls the allocation of funds to different uses in London, funds are then distributed and administered by the eleted assembly of 25 members.
Has the Mayor made a difference?
The office of London Mayor was granted limited power. However within the limitation it can be said that Ken Livingstone and his successor Boris Johnson have been involved in several significant devlopments in London.
The mayor possesses influence rather than power.
The introduction of the congestion charge, together with its extension after 2007, was Livingstone's most decisive action. Motorists must pay to drive in London's centre on weekdays. The revenue has been diverted into public transport.
Not a major reveue earnerbut has largely cut down traffic in central London by about a quarter. The level of change has since been increased and the congestion cahrge extended.
He was influential in gaining central government approval for a Crossrail system
Livingstone played a large part in gaining the 2012 olympics.
Johnson introduced Boris bikes and added many new bicycle lanes in the capital.
- Lack of Autonomy from central government
- Lack of accountablility to local electorates
- Largely as a result of the forst two problems, very low public interests in local government and politics.
Definition of Devolution
A process of constitutional refrom whereby power, but not legal sovereignty, is distributed to national or regionalinstitutions. In the UK this has meant reansfer of power to institutions in Scotland, Wales and Northern Irealand, but not to the regions of England.
How devolution came about
In 1997 labour hoped to win the general electins with devolution as a clear part of its manifesto. This would provide a mandate for change. It was important for Labour to win decisively to prevent any questioning of its authorty to carry through radical changes. This was achieved comfortably.
It needed to win well in Scotland and Wales.
Before the legislation was to be considered referendums were held. These took place in 1997, soon after the general election.
Three types of devolution
Administrative Devolution- is the transfer of limited powers to devolved administrations. Thos effectively means control over the allocation of public funds, the nature of administration, the way in which laws, enacted elsewhere, whould be implemented and the passage of secondary legislation.
Financial Devolution- is the ability of the devolved administration to raise its own taxes.
Legislative Devolution- is the transfer of power to make primary legislation. If is this distinction that makes the Scottish representativebody a parliament rather than an assembly.
Functions of the Scottish Parliament
- To pass primary legislation in those areas of policy making that have been devolved to Scotland: Criminal law, Civil law, Education, Social services, Local government, Building and planning regulations.
- To determine the level of income tax to within 3% higher or lower than the general British rate set in London.
- To approve the overall Scottish budget
- To call the executive to account for its actions and policies
- To elect a first minister to form the executive (i.e. government)
- To form committees to scrutinise legisaltion and the work of Scottish executive departments
- To oversee and scrutinise secondary legislation produced by Scottish ministers, local authorities and other public bodies.
The constraints on the Scottish Parliament
- It can pass legislation only in areas allowed under devolution legislation.
- It cannot pass legislation that conflicts with British Law
- It cannot pass legislation that conflicts with EU Law
- Its legislation must conform to the European Convention of Human rights
- It cannot raise its own national taxes, other than a 3% variation in income tax levels.
- It cannot amend the devolution legislation, i.e. it cannot change the system of Government in Scotland.
Definition of Referendum
A popular vote in which the people rather than thier elected representatives resolve a political issue. It is used as a way of gaining consent for constitutional reforms.
Constitutional reform since 2010
We have seen that the coaltion govenment after 2010 had made some small reforms to Parliament, moslty in the House of Commons. The main changes which have been made, or are being made.
- Fixed-term parliaments
- The recall of unsatisfactory MPs by petition and by-election
- The introduction of the Backbench Business Committee
- The equalisaton of the size of the constituencies
- The reduction of the size pf the House of Commons by nearly 10%
- The requirement for a referndum if any more legal sovereignty is to be transferred to the EU.