What is a Constitution
Rules setting out how a country should be governed
They can be codified (embedded one document where a special procedure is needed to change it) or or uncodified (found in many places)
Defines how legitimate power is gained & establishes the distribution of power
Limits the power of the govt so govts are conducted according to the constitution
Sets out the rights of citizens
codification: the constitution is found in a single source, it is clear and every citizen has access to it and can identify with it, it is easy to solve disputes and often is a result of a revolution.
It involves a 2 tier legal system......: Higher Laws: constitutional laws that establishes the govt powers and require a special procedure to change them Lower Laws: laws that applies to citizens
..... & Entrenchment: Protects the constitution from short term amendment
The UK has a uncodified constitution as parliament is sovereign so no laws can be entrenched (single tier legal system) and comes from many different sources.
-If a citizen has a grievance with the Govt, they can take them to court to appeal there rights, senior judges will interpret the constitution and what it means in today's society, this will then become part of the constitution.
- because parliament is sovereign, an act can be passed to evade this
-eg: the terror suspects being held appealed under Habeas Corpus which the judge ruled they were being held illegally, but, parliament then passed the terrorism act 2006 allowing them to be held for 28 days
The british consittution: where it's found (SCCREW
1) Statues: Acts of Parliament that change the way we are governed (eg: 2005 constitutional reform act creating the supreme court removing law lords from the HofL)
2)Case Law: Judgments made in court where judges make rulings on what the Law means (eg: Factor Tame 1990 established EU law was supreme to UK law)
3)Conventions: ways of behaving and practicing that are so old, they have become binding on the political communities (eg: ministerial responsibility... note Jeremy Hunt)
4)Royal Prerogative: The custom that the PM acts on behalf of the Monarch (eg: Tony Blair declaring the war in Iraq 2003)
5)European Law: we lose sovereignty on community issues as they are supreme to UK law (eg Factor Tame 1990)
6)Works of Authorities: in times of doubt over constitutional issues, the judiciary and politicians will look at Doctrines about the constitution (eg: Baghot outlined the principles of a cabinet govt.)
Individual Ministerial Responsibility: All Ministers are responsible for all actions taken by their departments and are fully accountable to parliament even if it was actions taken by a civil servant without his knowledge
Collective Ministerial Responsibility: All ministers must support the policies of the Govt in public even if they privately disagree, if they do publicly criticize a policy, they are expected to resign.
Collective Cabinet Responsibility: Every thing discussed amongst cabinet members must be kept in confidence.
Important Ministers must be MPs
why maintain a uncodified constitution:
Flexibility: no need for a special amendments procedure (can be impractical eg: the US right to "bear arms"), in the UK, parliament can change the constitution with a simple act to fit the demand of the society at the time (eg: the devolution of govt in scotland and wales)
It works: The quality of the British govt and our democracy is seen as an example to the rest of the word, there is no need for a codified constitution (eg: they often result from a revolution or political conflict)
Difficulty: because it steams from many documents it would be difficult to put it all in one document
already codified: the important parts are already codified (eg: human rights act 1998)
Disadvantages of a uncodified constitution:
Not Entrenched:It can be changed to easily so threatens our civil liberties and v vvvvvvvvvvvvvvvhumanrights
No Checks On The Growing Centralisation In Government: Quangos are replacing vvvvvvvvvv elected bodies which reduces accountability of of the govt. and threaten vvvvvvvvvv our liberties
No Checks On The Power Of The PM: Presidential Prime Ministers make decisions vvvvvvvvvv without consulting the elected representatives in cabinet. reduces the vvvvvvvvvv accountability of the Govt and threatens our liberties
Human Rights: there is no real safe guard to protect our liberties
The reasons for constitutional change:
During the previous 20 years, it was believed there had been a:
-Erosion of human rights
-Concentration of power
-Increased delegated powers to unaccountable bodies
-Miscarriages of justice
-Sleaze & corruption in the HofC
-Abuse of power by the executive, meaning the HofC failed to effectively scrutinise
1997: Labors manifesto for proposed constitutional
-Reform of the HofL (incomplete)
-Modernisation of the HofC (incomplete)
-Referendum on the UK voting system (unattempted)
-Controls on party funding (successful)
-Freedom of information act (successful)
-Incorporation of the EU charter of human rights into uk law (successful)
Devolution: scottish parliament, welsh assembly, Strategic authority for london, and devolution in northern ireland (all successful)
Attitude of the conservative party to reforms
-regional governments & Devolution
-Human Rights & the Freedom of information act
-Greater London authority
-Modernisation of the HofC
-peace process in Northern Ireland
-The need for some Reform in the HofL
Unitary Constitutions: sovereignty lies in one place (parliament in the UK), although some power has been devolved, a simple act of parliament can recall them.
Federal systems: sovereignty is distributed between central bodies and regional institutions. in theory, each level is autonomous eg: washington is supreme in areas of foreign policies but the state is supreme in areas of crime.
-Handing down certain powers from central Govt to a lower level
-This means that central Govt is still the sovereign body it can take back the devolved powers any time it likes, meaning that the UK is still a unitary system of govt.
-There was little demand in the 70's, referendums in scotland and wales did not result in a majority in favour of it
-In the 80's support for nationalist parties grew, which supported constitutional reform (SNP wanted independence & Plaid Cymru wanted self governance)
- This change was the result nearly 20 years of a Conservative Govt when there very few Conservative MP's in S&W, meaning that they did not feel represented in Westminster
In order to calm the demands for independence, the Labour party made firm commitments to devolve power. Referendums were held in Scotland in 1997 and Wales in 1998 resulting in the Welsh assemble and Scottish parliament in 1999
The Scottish Parliament
-It has control over internal affairs for education,Health, local Government, the Courts, Police, fire service, environment, agriculture, forestry, and fishing.
-it hasthe power to pass primary legislation and can vary income tax by 3p either way.
This has led to Scotland and England having different Laws:
-Scottish students don't pat University top up fees
-The elderly get free care
-Scotland banned smoking a year before England did
-Fox hunting is completely banned in Scotland
The Welsh Assembly
As from 1999
-Dose not have any tax varying powers
-Has the power to make secondary legislations
There was lots of dissatisfaction with the lack of powers so following pressure from the Plaid Cymru the Government of wales act was passed in 2006:
-The bill created a Welsh Assembly Govt with a separate Executive dawn from and accountable to the legislative, a first minister, and allows for greater legislative powers following a referendum
In 2011, 63% voted in favour in a referendum concerning the law making powers of the Assembly, but, there was only a 35% turn out, meaning it did not meet the terms of the 2006 govt of Wales act, so Wales will not be able to initiate its own laws until it meets the terms of the act.
1998: the good friday agreement- a power sharing agreement was signed between the political parties in Northern Ireland
The Northern Ireland act 1998
-A power sharing executive came in to office in Dec 1999, but it has been difficult to maintain and has been suspended a number of times (notably 2002-2007), but it is now in full working order and and most of the violence has stopped
-Devolved power was restored to the assembly in 2007 following an election of a 4 party executive (tony Blair sees this as his legacy)
-The Assembly has powers over health, education and finances
1998 Regional Development agencies (RDA's) act
-The aim was to create devolve elected assemblies with there own executive the RDA's were to be the executive bodies, waiting for the elected assemblies
-1999, 8 new RDA's were established ,They are appointed by ministers and accountable through ministers to parliament, There budgets come from white hall and are responsible for regional planning and development of the region
-Regional Chambers: in 1999, 8 were created, one for each RDA . They are Voluntary, non-statutory bodies..
-2004 referendums: revelled that the the north east of england did not want an elected assembly (77.9% voted no with a 47% turn out)
Greater London Authority
1998: referendum to establish if london wanted its own assembly and mayor 1999: The Greater London Authority act mmmmmmmmmmmm mmmm mmddsssd 2000: First Elections held fo the assembly and Mayor
Poweres of the mayor and the assembly:
-It will have responsibility for spending on police, fire, transport and economic development - a total budget of around £3.3bn
-The mayor will appoint the board of Transport for London
-The mayor can organise city-wide action to improve the environment. He will be required to produce a four-yearly report on the state of the capital's environment, develop an air quality strategy, a biodiversity action plan, an ambient noise strategy and a municipal waste management strategy.
-The mayor will appoint and oversee the London Fire and Emergency Planning Authority
The European Court of Human Right (ECHR) and The H
-Came into force in 2000 "Will guarantee to everyone the means to enforce a set of basic civil rights"- (Jack Straw) and incorporated the ECHR meaning:
-The act made it unlawful for the authorities to act in a way which is incompatible with the ECHR
-Requires Courts to determine if legislation is compatible with the ECHR ( and if act of the authorities are lawful under the ECHR
-Courts can not set aside acts of parliament, but must interpret the legislation... The highest Courts can issue certificates of incompatibility where UK law is completely incompatible with ECHR. It is then up to Parliament to take action
The Judicary and The ECHR.
It has created a new role for British judges:
- The UK Courts have a statutory duty under the 1998 Human rights act to ensure that all laws are interpreted so there are compatible.
-The HRA means rights and freedoms guaranteed by the European convention on Human Rights are enforceable in the UK courts
-It can be said that the act gives too much power to the Judiciary
There have been a number of clashes between the government and the Judiciary over Human rights:
-The HoL declared the indefinite imprisonment without charge or trail of foreign nationals under the Anti Terrorism act 2001 against the rule of law and the HRA