Should the UK Have a Codified Constitution? Yes
- Human Rights:
- The HRA incorportates ECHR into UK law but it is not binding on Parl.t
- In a codified constitution, Parl.t could not pass laws that infringed on HR.
- The rules of ECHR are not determined by the UK but by the Council of Europe.
- Codified constitution would control HR domestically.
- Over-governmental power threatens individual rights, minorities & public opinion.
- Codified constitution would control gov.t on behalf of the people.
- Possibility of 'checks and balances' - US.
Should the UK Have a Codified Constitution? No
- Conservative Pragmatism:
- The Conservative Party feel that the UK Constitution has survived over time and served its purpose well.
- It has allowed change when necessary.
- Codifying it would be very difficult and the benefits wouldn't be worth it.
- Politicising the courts and judiciability:
- Codifying the constitution would involve courts (Supreme Court) in disputes over its meaning.
- The constitution would become judiciable, the issues with this:
- Judges are unelected and unaccountable.
- Political issues should not be resolved by the unelected.
- Example: 2011-12 Judges in the UK were asked to decided whether the freedom of the press should take precendence over personal privacy - some felt this should be resolved by Parl.t
Should the UK Have a Codified Constitution? Yes
- Most UK citizens do not understand the constitution as it has no concrete form.
- A codified constitution would increase public awareness:
- The people would know their rights.
- They would better understand how the gov.t works.
- May cure political ignorance and apathy.
- Britain is unusual; some see this as Britain being backward (politically).
- Especially after joining EU - makes political relations difficult between UK and EU. - codified constitution would clarify the UK relationship with EU.
- HOWEVER...Britain is slowly becoming codified after 1997 Labour reforms.
Should the UK Have a Codified Constitution? Overvi
- Clarify nature of the political system.
- Two-tier legal system to clarify constitutional law.
- Judicial review – more transparent.
- Liberals argue it would protect HR.
- Prevent excessive executive power.
- Clarify UK relationship with EU.
- Bring the UK into line with other democracies.
- Uncodified is flexible and can adapt.
- Conservatives argue it’s not needed.
- Difficult to translate conventions to written form.
- Lack of constitutional constraints.
- Codified would bring unelected judges into the ‘arena’.
Federal: 'Sovereignty is divided between central bodies and regional institutions. when a number of sovereign states come together and agree to surrender some, but not all, of their sovereignty to a central authority.'.
- Political reason: a country contains strong regional differences.
- Written in 1787, ratified by the 13 states (now 50) in the 3 following years.
US Federal Powers US State Powers
Economic management Most criminal law.
Currency control Education
Foreign/defence policy and trade Property/sales taxes and most policy and industrial develop.t.
Unitary: 'sovereignty resides in one loaction. It is possible thqt some power may be distributed to regions and local governemnt, but this is not the same as sovereignty.'
- UK & Devolution - Wales, Scotland, N.Ireland but Westminster is still sovereign.
- Quasi federation - the devolved powers are effectively entrenched and cannot be returned to Westminster but they are not legally entrenched.
Should the UK Have a Codified Constitution? No
- Flexibility: it can adapt to a changing world.
- It's 'organic' - rooted in society.
- Conventions take into account social/political change.
- New Acts can be passed quickly when necessary.
- Power has been transferred from the monarch to the gov.t & Parl.t:
- Prerogative powers have been taken over by the PM.
- Monarchy lost power to make laws in the 'Glorious Revolution' - 1688.
- 9/11 Anti-terrorism measures put in place easily and quickly.
- The PM has gradually gained more power due to the media.
- Executive Power: Government can be more powerful and make strong decisions without constitutional constraints.
Judicial Review and the UK
The 'Belmarsh Case':
- December 2001 - Crime and Security Act (gov.t could detain, without trial, anyone believed to be a terrorist).
- Decemeber 2004 - 9 men appealed against this (they were detained), as it breached ECHR (as part of the UK Constitution). Won the case in HoL.
- March 2005 - 9 men released on bail, with certain restrictions.
- July 2006 - UK Parl.t agreed suspected terrorists could be held for 28 days without trial, then must be tried/released. Permitted under ECHR.
The Constitution - The Basics
Definition: 'a set of principles, which may be written or unwritten, that establishes the distribution of power within a political system, the relationships between political institutions, the limits of government jurisdiction, the rights of citizens and the method of amending the constitution itself.'
- How political power is distributed (federal/unitary).
- Balance of power between gov.t and parl.t.
- Establish political processes.
- Relationships between institutions and how they govern.
- Limits of governmental power.
- Assert the rights of citizens against the state ('Bill of Rights').
- Rules by which nationality is established (citizenship).
- Constitutional amendment.
Codification: 'the process of setting out a constitution in an organised way in a single document' (single source).
- Constitution is clear and understandable.
- Advantage during disputes.
- People of the state can identify with it (e.g. USA).
Two-Tier Legal System:
- In a codified state there are two levels of law.
- Higher Law - concerns the consitutions (these are entrenched).
- Ordinary Law - concerns relationships between citizens etc. Can be changed without special procedure.
Uncodified: no single document & many sources (e.g. Britain part codified).
Codification and the UK
Codification and the UK:
- The UK is uncodified.
- Single-tier legal system (no distinction between higher/ordinary law).
- Many sources.
- Parts of the UK constitution are codified:
- ECHR is codified and part of British law.
- EU Treaties are codified and describe relationships between the EU and UK.
'Partly codified, partly written, but fundamentally uncodified.'
Entrenchment: protects constitution from short term amendment.
- For the constitution to be amended (codified) it has to pass 2 tests:
- 1 - Widespread popular support for change.
- 2 - Change is in long-term interests of the country.
- Arrangements to show these tests are met:
- 1 - Referendum.
- 2 - Parliamentary procedures.
- Human Rights - may be in the interests of a gov.t to amend civil rights - but it would not be in the best interests of the people.
- Dictatorial gov.t - seek more power but this would threaten democracy.
Judicial Review: 'a process undertaken by senior courts where judges are required to interpret, re-interpret or clarify constitutional rules. Judicial reviews take place in response to appeals by citizens or associations. In this way the meaning of a constitution can be clarified, adapted or applied to new circumstances.'
- When this is done, the judges have (effectively) re-written the constitution
- Democracy - rulings are binding on the system.
- Codified: reviews takes palce with close reference to the actual wording.
- Uncodified (UK): no 'constitution' to refer to but judges can look at:
- Constitutional laws.
- Parl.t can overrule High Court, Court of Appeal or Supreme Court intepretations.
Entrenchment and the UK
Entrenchment and the UK:
- Uk is unentrenched.
- Parliament has sovereignty and cannot entrench constitutional principles.
- Each Parl.t cannot be bound by predecessors or ibind successors and each Parl.t can amend the consitution by:
- Pass a parlimanentary statute.
- UK gov.t usually dominates Parl.t (majority in HoC, and mandate of people from elections).
- Gov.t can effectively control the constitution
- HRA (1998) - changed the Constitution by Act of Parl.t.
- Fixed-term Parl.ts (2010) - each Parl.t sits for 5 years before election; took away PM's convention, but this is not entrenched and could be changed. NOT A PERMANENT FEATURE OF THE UK CONSTITUTION.
Sources of the UK Constitution
Sources of the UK Constitution:
- Parliamentary Statutes - Acts of Parl.t that establish principles.
- Constitutional Conventions - unwritten rule that is considered binding on all members of the political community. Cannot be challenged in law but have stron moral force so are rarely disputed.
- Historical Principles and Authoritative Documents: similare to conventions, are not binding but are effectively as they have existed for so long. Sovereignty and Rule of Law.
- Common Law - refers to development of laws through historical usage and tradition. Judges treat it as any rule of conduct that is acknowledged by the people and established. Concerns Human Rights but much of this has been replaced by Statutes and ECHR.
- Tradition: similar to Common Law, governs rituals of Parl.t gov.t.
- Europe: parts of the Constitution come from Europe - EU Treaties (aims to determine relationship between UK & EU) and ECHR.
Sources of the UK Constitution Examples
- Statutes: Equal Franchise Act (1928) votes for women; Life Peerages Act (1958) introduced life peerage to hereditary peerage; HRA (1998) incorporates ECHR; Scotland Act (1998) created Scottish Parl.t; HoL Act (1999) removed all (but 92) hereditary peers; FOIA (2000) gave citizens right to info.
- Conventions: Salisbury Convention (HoL cannot block any manifesto legislations); Collective Responsibility (gov.t members must support official policy or resign); gov.t is formed by the Queen inviting the leader of the largest party in the Commons.
- Historical Principles and Authoritative Works: Sovereignty of Parl.t; Rule of Law (all equal under the law); Constitutional Monarchy (limited role & no active role in politics).
- Common Law: Prerogative Powers of PM.
- Europe: ECHR and division of sovereingty between EU and UK.
The UK Constitution
- Uncodified - not contained in 1 document, many sources some of which are codified.
- Not entrenched - no restrictions on how Parl.t can amend the constitution.
- Constitutional Monarchy and Royal Prerogative - Since 1688 (Glorious Revolution) been a Constitutional Monarchy instead of Absolute Monarchy. Law making with Parl.t but Monarch gives royal assent on a bill (however it cannot be refused). PM has prerogative powers. Means actions are taken on behalf of the monarchy and PM is effectively head of state ('Quasi head of state').
- Parliamentary Gov.t - Fusion of Executive and Legislative Power (little separation between gov.t and Parl.t). Parl.t allows ministers to dominate HoC if minsters are accountable to the authority they are given - Parl.t Supremacy. Parliamentary Gov.t - 'a political system where Parl.t is a central feature. Gov.t is drawn from Parl.t and is accountable to Parl.t'.
The UK Constitution
- Parliamentary Sovereignty - 'The principle that Parl.t is the ultimate source of all authority and power within the political sysmte. It also means that Parl.t is the ultimate source of all law and there is no higher legal authority'. Legal sovereignty lies only with Parl.t and not with the gov.t. Gov.t has to accept final word of Parl.t & only Parl.t can veto proposals. Most political power lies with the gov.t (political sovereignty and legal sovereignty).
- Party Gov.t - a single party is in control of the executive and is usually able to control its majority in the Commons. Collective responsibility, mandate and manifesto, gov.t and opposition and patronage rely on 1 party winning the election and forming a gov.t May 2010 Election - 'party gov.t' basis called into question - The Coalition Gov.t. It could only guarantee the support of majority in HoC if the parties work together.
- Unitary Gov.t - legal sovereignty at the centre in 1 body - Parl.t. Power has been decentralised through devoltuion and sovereignty delegate to EU but Parl.t has final say.
Strengths and Weaknesses of the UK Constitution
- Lack of restraints of gov.t power - also on Parl.t may be dangerous to individual and minority rights.
- Outdated institutions - FPTP electoral system, monarchy and HoL are sometimes accused of being undemocratic.
- Lack of separation of powers - between gov.t and Parl.t mean that the gov.t dominates Parl.t and is seen as undemocratic as Parl.t represents the interests of the people.
- Uncodified - people are ignorant of it resulting in political apathy and lack of support for the system.
- Not codified or entrenched: flexible. Adapt to changing circumstances. Example: May 2010 election - no decisive result but no ixed constitutional rules to deal with the emerging circumstances but Gus O'Donnell's plan for coalition gov.t worked. This was done without involving the Queen as she has to remain 'above politics'.
- Traditional - no revolution means that it possibly has enduring qualities.
- Lack of constitutional constraints - Parl.t and go.t can act decisively.
- Traditional elements - HoL and Monarchy help maintain public support for the system.
Sovereignty in the UK - Legal
Legal - '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 constitution'.
- In the UK it lies with Parl.t and no other body has the power to make rules or overrule laws made by Parl.t
- Statuatory/legal powers can be granted to a subsidary body or to a minister by Parl.t - Delegating legal sovereignty. 1998 Scotland Act - Primary legislative powers but the Act could be repealed.
- Parl.t = groups of MP's elected at each general election and exists for about 4-5 years between elections. Each successive Parl.t islegally sovereign and not bound by predecessors and cannot bind its successors.
- EU - Pooled sovereignty - 'a circumstance, as in the European Union, where legal sovereignty is exercised collectively by number of sovereign states'.
Sovereignty in the UK - Popular
Popular - 'popular sovereignty refers to those circumstances when the people's decision, in an election or referendum, is effectively binding on the political system.'
- The people elect a Parl.t and gov.t at elections and the verdict cannot be challenged.
- If there is clarity of an elected party then they have a mandate to carrry out their manifesto policies - the people have granted authority to the gov.t to exercise power.
- Referendums are held regularly but the results are not binding on Parl.t. However it would be unwise for a Parl.t or gov.t to ignore the results of a referendum.
Sovereignty in the UK - Political
Political - 'Political sovereignty refers to the location of real power. It ignores where legal sovereignty may lie and concentrates on who realisitcally can exercise power within the state'.
- UK gov.t is sovereign as it has a mandate from the poeple and most of its proposals are almost certain to be accepted through Parl.t
- UK PM has prerogative powers, exercising those is said to be exercising political sovereignty. Parl.t cannot overrule powers without passing a special Act of Parl.t.
- Scottish, Welsh and N.Irish gov.t and assemblies have political sovereignty over certain areas of policy making - devolution powers.
- Popular sovereignty of the people at elections is often described as political sovereingty.
- Monarch is technically a part of Parl.t and shares legal sovereignty (royal assent) but cannot realistically refuse royal assent so this is ceremonial.
The EU and the UK Constitution
- 1st Jan 1973 - UK joined EU.
- 1972 - Parl.t passed European Communities Act.
Areas where jurisidction has passed largely to the EU:
Trade; agriculture; fishing; employmnet law; consumer law; competition control; regional economic development.
Areas where EU membership influences but does not controm gov. policy:
Economic policy; environmental protection; defence; foreign policy; overseas development; asylum and immigration.
Areas where virtually no jurisdiction has been passed to the EU:
Education; health provision; social security; law, order and justice; moral legislation; local gov.t services; personal taxation; internal political system.
The EU and the UK Constitution (2)
- 1992 - Maastricht Treaty.
- 2009 - Treaty of Lisbon (reform).
- EU laws are superior to UK law (1990 Factortame case).
- British courts must implement EU law.
- Interpretation of EU law must be referred to the European Court of Justice - Supreme Court is not the highest court of all appeal.
- Proposals needing unanimous vote in the EU Council of Ministers (*) to become EU law, the UK has an effective veto.
- Where proposals can become EU law with a qualified majority vote in * , the UK must submit to the shared sovereignty of the EU.
- Parl.t cannot pass any statute that conflicts with existing EU law.
- QUASI FEDERALISM.
The EU and the UK Constitution (3)
Quasi Federalism - 'A description often applied to both the European Union and devolutionin the UK. Though the arrangements in the EU and the UK are not legally federal they are so similar to a federal system that they can be described as quasi federalism, i.e. something close to federalism.'
Where has sovereignty in the UK gone?
- Parl.t reamins legally sovereign and it can reclaim delegated power.
- A lot of political/effective power has gone to the PM and gov.t; and the people in elections and referendums.
- A lot of political sovereignty has been transferred to assemblies and gov.ts in Wales, Scotland and N.Ireland.
- Some legal sovereignty has been transferred to the EU - pooled sovereignty. But the UK is free to leave the EU at any time and restore all legal sovereignty to Parl.t.
Constitutional Reform After 1997
Constitutional Reform - 'The process whereby the fundamental nature of the system of gov.t (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'.
- Democratisation: a lot of the British system is seen as undemocratic (HoL and electoral system). Neither have been acheived. Devolved administrations use proportional electoral systems but - UK unsuccessful referendum in 2011. 1999 HoL Act removed all but 92 hereditary peers.
- Decentralisation: 1998 devolutions. Welsh Assembly. Scottish Independence Referendum (2014). Elected Mayors (London).
- Restoration of Rights: 1980's - fears of erosion of rights. Labour wanted the UK to be more in line with Europe. Incorporated ECHR into UK law. FOIA resulted in a more open and accountabl gov.t.
- Modernisation:fixed-term Parl.ts and referendums but HoL unreformed.
Constitutional Reform After 1997 (2)
- HoL - abolition of voting rights of all but 92 hereditary peers.
- HoC - fixed-term Parl.ts. Control for backbenchers over Commons agenda.
- HRA 1998 - incorporated ECHR into UK law (effective since 2000).
- Electoral reform - new electoral systems for: Scottish Parl.t, Welsh & N.Irish Assemblies, elections to European Parl.t, Greater London assembly & elected mayors.
- FOIA 2000 - effective since 2005, public right to see official documents.
- London gov.t - elected mayor and assembly for Greater London.
- Local gov.t - cabinet system in local gov.t and opportunity to introduce elected mayors by referendum.
- Devolution - transferred power from Westminster and Whitehall to elected bodies in Scotland, N.Ireland and Wales.
- Referendums - any proposal to transfer power in the UK should be approved by referendum.
- Party registration and the electoral commission - new electoral commission set up to regulate elections and referendums and party funding. Introduced political party registration.
- Judiciary - 'political' office of Lord Chancellor abolished - L.C no longer head of judiciary or speaker of HoL and replaced by Justice Minisyer. HoL Appeal Court replaced by Supreme Court (2009). Senior judicial appointments controlled by independent committee of senior judges.
- House of Lords:
- Stage 1: removal of hereditary peers (voting rights) and oly life peers and C of E bishops.
- Stage 2: electedor partly elected chamber - put back on the agenda.
- House of Lords Act (1999): reduced hereditary peers to 92.
- 2010 coalition gov.t committed to introducing elected/partly elected 2nd chamber but little happened.
- House of Commons:
- Changes to departmental select committees - backbench MP's that scrutinise gov.t departments:
- 2004 - chairs of committeed given additional salaries.
- 2010 - introduced a system for electing members of the select committees.
- 2010 - Backbench Business Committee gave MP's control of over 20 parliamentary days to debate issues of their choosing.
- 2012 - recall of MP's declined.
- 2015 - constituency boundaries were redrawn to be of equal size.
Human Rights: 'Basic rights that all citizens can expect to enhoy. Key examples include freedom of expression, freedom of association, freedom of worship, right to privacy and freedom from imprisonment without trial.'
Reasons for HRA Proposal:
- Bring the UK constitution into line with the rest of Europe.
- Increased power of police and courts was seen as a threat to rights.
- Since 1966, the UK gov.t had been brought before the ECHR 50+ times and lost most cases - embarassing to the gov.t.
- New Labour stressed active citizenship - citizens have a responsbility for their commuties and should have protected rights in return.
- Devolution settlements stated that all assemblies and Parl.ts (devolved) should be bound by the Convention.
- Became law in 2000 and made the ECHR binding on UK law.
Human Rights (2)
- How the Act Works:
- The ECHR binds: Welsh, Scottish and N.Irish political systems; local authorities; gov.t ministers, civil servants & their departments; all gov.t executive agencies; all quangos (non-gov.t public bodies); any other organisation engaged in 'public business' (e.g. media, school etc.).
- Actions by any of these can be scrutinesed in a court of law and declared unlawful.
- BUT... Parl.t is still sovereign and the ECHR cannot be superior to Parl.t.
- When a proposed legislation is introduced, the minister must declare it and it will state whether or not the gov.t believe it to be compatible or not with the ECHR.
- If it is incompatible, this will be considered when the bill is debated.
- The ECHR ccan still hear appeals against UK national legislation and can decalre an act to be a breach of the convention: BUT... its judgements are NOT binding.
- First example of codification of rights and it is seen as radical by some.
- Critics say it doesnt go far enough because Parl.t is still sovereign and the central gov.t still has power over Parl.t
- Example: 2012 - UK tried to extradite Abu Quatade to Jordan for trial for terrorist charges but under ECHR torture rules this was forbidden.
- 2011 - AV Referendum was unsuccessful
- Proportional representation has been introdueced in devolved administrations.
- If the HoL becomes elected then it is imagined that this will involve some form of proportional representation being introduced.
Elective Dictatorship: 'a term coined by Lord Hailsham, a Conservative Minister in the 1970's. It refers to the idea that, once elected, gov.t in the UK has uncontrolled power. This applies even though gov.ts in the UK do not win a majority of votes in general elections and may only enjoy a small House of Commons majority'.
Freedom of Information
- Strand 1: right of citizens to see information held about them by public bodies. The right to view records on computer files had existed since the 1998 Data Protection Act.
- Strand 2: right of citizens to see documents and reports held by the gov.t and its agencies. The public would get an insight into the operations of the gov.t - OPEN GOV.T.
- The act was passed in 2000 and came into force in 2005.
- Security services were exempt.
- The government can conceal information that it feels will prejudices the activities of gov.t.
- Information Tribunal set up to rule on what can/can't be released.
- Human rights campaigners - too weak.
- 2008 - request by tribunal to release details of MP's expenses claims. Parl.t tried to block this but it was released and leaked to the Daily Telegraph. This revealed many MP's abusing the system and a 'witch hunt'. Some MP's had to give up their seats, the expenses system had to be reformed, Parl.t was ridiculed.
- 1985 - Greater London Council was abolished by the Conservative gov.t.
- 2000 - after a referendum, an elected mayor and assembly was introduced in London.
- Elections would be held for these positions and the legislation stated that neither would have too much power.
- Mayor controls: allocations of funds, controlling variety of appointments and powers of patronage.
- Assembly: has 25 members and can veto (if 2/3 majority) mayors funding and other proposals. The electoral system for the assembly means no single party will have majority. Similar to 'checks and balances' in USA.
Impact of Mayor in London?
- Limited power but has an influence rather than power.
- 2007 - congestion charge (Ken Livingstone). Motorists have to pay to drive in London's city centre on weekdays and the revenue goes into public transport. Since then the charge has been extended and increased.
- Investment in the Underground (K.L - 2004-2009) but didn't get privatisation.
- Crossrail system (K.L & B.J).
London Government (2)
Impact of London Mayor?
- Home Office funding to increase number of police officers (although mayor does not control police expenditure) and 3,000 community support officers to help police. Crime levels have fallen (K.L & B.J).
- Due to K.L the 2012 Olympics were held in London. B.J supported this and helped oversee the development of the sites.
- 'Boris bike' (B.J) - public bicycles to be used (free for 1/2 hour, and charge after). 'Bendy-buses' (B.J).
Overall, the profile of the Mayor has had the greatest impact and has improved the profile of the city.
- Cities/Towns given the opportunity to have a referendum to vote for the introduction of elected mayors:
- BUT... few were held and few voted in favour.
- Local authorities have the chance to move to a 'cabinet' system of gov.t - central cabinet of councillors from dominant party who may take central control of the council's work. Former system: work of council divided between functional committeee.
- BUT... this has not been well taken-up.
- These issues don't sort the main issues with gov.t:
- Lack of freedom from central gov.t.
- Lack of accountability to local electorates.
- Low public interest in local gov.ts and politics.
- 2012 - Bristol introduced elected mayor.
Devolution: 'A process of constitutional reform whereby power, but not legal sovereignty, is distributed to national or regional institutions. In the UK this has meant transfer of power to institutions in Scotland, Wales and N.Ireland, but not to the regions of England.'
- How it came about:
- 1997 Labour manifesto - mandate for change to try and win the election.
- Gain support from Scotland and Wales.
- Referendums in 1997 - needing good turnout and also a 'yes' vote. The Scots were more up for it than Wales (Turnout: 60%:50% 'Yes' vote: 74.3%:63.5%).
- Following the referendums it had to be passed and the only issue was about the proposal to allow the Scots to vary the UK tax in Scotland by 3% up or down.
- 1998 - Scotland and Wales Acts passed.
- Elections for the Scottish Parl.t and Welsh Asbl.y. (Turnout (S:W) 58%:46%).
- 1999 - the Scottish Parl.t and Welsh Asbl.y were established.
- Scottish Executive - coalition between Labour (Donal Dewar) and Lib Dems.
- Wales - Labour minority executive (Alun Michael replaced by Rhodri Morgan in 2001) that then formed a coalition with Lib Dems in 2001.
Devolution - For and Against
- Growing popular demand for more self-government.
- National regions have different needs to England.
- It places decision making closer to the people.
- Allowing devolution means demands for independence will be pushed away, keeping UK whole.
- Gov.t closer to the people - more democratic.
- Reduce the workload of the UK Parl.t and gov.t.
- Recognises 'Europe of the regions' rather than separate states - national boundaries are less important than regional differences.
- Conservatives believe it may lead to the break-up of the UK.
- Demand for devolution (in Wales) is unneccessary and over-exaggerated.
- Extra layer of gov.t - increased taxes.
- In Scotland - fear of increased taxes as it is not as prosperous as the UK.
- Confusion due to an additional layer of bureaucracy.
- Nationalists - does not go far enough, should have a separate voice in Europe but devolution doesn't provide this.
Types of Devolution
Administrative: transfer of limited powers to devolved administrations. So: public funds, way in which laws should be implemented, passage of secondary legislation.
Financial: the ability of the devolved administration to raise its own taxes. Most funds are in the form of gov.t grants allowing liuttle independence.
Legislative: transfer of power to make pirmary legislation (Scotland).
Country: Administrative Dev? Legislative Dev? Financial Dev?
Scotland Yes Yes Yes
N.Ireland Yes Yes No
Wales Yes No* No
*Such powers granted to Wales after 2012.
Devolution in Scotland - Scottish Parliament
- 1999 - 129 seats, 73 elected by FPTP constituency elections, 56 seats are given by voting from party lists (each party is awarded seats from its list according to a combination of what proportion of the votes was won by them in both the constituency and the party list elections).
- Scottish voter - 2 votes (one for MSP and one for party list) - additional member system.
- Fixed-term Parl.t of 4 years.
- Main two parties: Scottish National and Labour.
Powers and Functions:
- 'Primary legislation': laws - what is allowed, how org.s should behave & responsiblities of citizens.
- power to other bodies and make rules that are bindin to other laws - enabling legislation.
- Scotland has always had its own laws but in 1707 they were given to UK Parl.t.
Devolution in Scotland - Scottish Parliament (Func
- Pass primary legislations in these areas: criminal law, civil law, education, social services, local gov.t, building & planning regulations, agriculture, fisheries, health, transport, emergency services.
- Determine level of income tax (3% higher or lower than UK).
- Approve Scottish budget.
- Call the executive to account.
- Elect a 1st minister to form the executive (gov.t)
- Form committees to scrutinese legislation.
- Scrutinise secondary legislation.
- Pass legislation only in permitted areas.
- Cannot pass laws that go against UK law.
- Cannot pass laws that go against EU law.
- Cannot pass laws that go against ECHR.
- Cannot raise national taxes.
- Cannot amend devolution legislation.
Devolution in Scotland - Scottish Executive
Executive: used in devolved cases to mean gov.t.
- Headed by 1st minister (PM of Scotland without the title) - chosen by being leader of biggest party; but has to be elected by whole Parl.t.
- Formulate policy and draft legislation.
- Negotiate funds with UK gov.t.
- Implement developed and approved policies.
- Make decisions.
- Liase with UK gov.t where there are overlapping functions.
- Negotiate with institutions of the EU for regional funds and policies.
- Organise & oversee the provision of services by the executive departmenrs, local authorities and other public bodies.
Devolution in Scotland - The Future
- 2014 Independence Referendum - 55%:44% 'no' vote.
- Smith Commission - polls revealed 'yes' campaign was winning so this was set up to propose devolving more powers to Scotland.
- November 2014 and involved these proposals:
- Independence of Scottish Parl.t to be guaranteed by law.
- Scottish Parl.t and gov.t - more powers and welfare benefits.
- Scottish Parl.t to have power to set the rates of income tax and keep the proceeds.
- Scottish Parl.t to have power to control air transport taxes and keep half VAT proceeds.
- Scottish Parl.t to have control over electoral system, voting age and electoral boundaires (if 2/3 vote).
- Possibility of the Scottish gov.t having power to borrow on the financial market.
Devolution in Wales - Welsh Assembly
- Known as assembly rather than Parl.t as it has fewer powers than Scotland. UK Parl.t & gov.t still rule Wales.
- Elected at the same time as Scotland using same system (AMS).
- 60 seats with 4 year terms and meet in Cardiff.
- Policy areas: education, social services, local gov.t, building & planning regulations, agriculture, fisheries, health, transport, housing, Welsh language regulations, sport & recreations, emergency services.
- 2011 - vote for the power of Assembly to make Primary legislation; granted after 2012.
- Calls the Welsh executive to account by questioning department heads.
- Elects head of the executive (can dismiss them also).
- Discusses Welsh affairs.
- Discusses implementation of policy on Welsh affairs.
- Attempts to direct Welsh executive in implmentation of policy and allocation of funds.
- Debates and requests changes to the budget.
Devolution in Wales - Welsh Assembly and Executive
- Only pass limited primary legislation.
- Cannot grant powers to executive members.
- Cannot call London gov.t to account.
- Cannot raise special taxes.
- Shares its functions with London.
- Head is elected by assembly and the head then appoints heads of the Welsh departments.
- Department heads are accountable to the head of the executive and can be removed by them.
- Allocate funds (provided by UK gov.t) between needs (health, education etc.).
- Negotiate with Welsh Office (London) for funds.
- Negotiate legislation for Wales with Welsh Office.
- Organise implementation of devolved policy areas in Wales.
- Represent interests of Wales (e.g at EU).
Devolution - Wales and Scotland Compared
- Has less support than Scotland.
- Growing interest in devolution.
- 2007 Plaid Cymru (Nationalists) made progress and shared with Labour.
- 2011 - no progress.
- 2011 referendum - voted in favour of primary legislative powers.
- 5 examples of the Scottish gov.t making a difference:
- S. Parl.t forced through meausre to make allc are of the eldery in special homes free on demand.
- Extra tuition fees for students in higher education were abolished.
- S. Parl.t listened to the public and has made fox hunting illegal.
- S. Parl.t has introduced STV (proportional representation) for local gov.t elections.
- 2010 - S. Parl.t introduced minimum alcohol prices to reduce excessive drinking.
Devolution in N.Ireland
- The sectarian divide proved to make N.Ireland a different case to Scotland and Wales.
- N.Ireland was politicall dominated by the Protestant Unionists and devolution would have to break this.
- The electoral system had to reflect political diversity - develop a pluralist political system.
Power Sharing: 'A method of forming a gov.t in a divided society such as that of N.Ireland. To avoid conflict, all major parties, representing different sections of the community, are invited to share sears in gov.t and to develop widely agreed policies'.
Powers of the Assembly: Primary legislation, security and policing, education, health, transport, agriculture & fisheries, local gov.t, environment, housing & planning, regional industrial develop.t.
Powers of UK gov.t (N.Ireland Office): defence & foreign policy, relations with the Irish Republic, economic policy, social policy, taxation.
Devolution in N.Ireland - Electoral System and Pow
Single Transferrable Vote (STV) in Republic of Ireland for the Assembly:
- Multi-member constituencies (each providing 6 members)
- Each party can put forward as many members as seats.
- Voters vote in preference order (can vote for all candidates).
- Result based on counting, not just first choices but others as well.
- System ensures that some of the elected candidates have support of a wide range of the community.
- System ensiures small and independent parties have a chance of winning seats.
- Results are proportional.
- Parties winning significant representation in the Assembly are entitled to have a seat on the executive.
- 2011 elections executive seats: Democratic Unionist Party - 4 seats (Peter Robinson 1st Minister & leader), Sinn Fein - 3 seats (Martin McGuinness Deputy 1st Minister & leader), Social Democratic Labour Party - 1 seat, Ulster Unionist Party - 1 seat, Alliance Party - 1 seat.
Devolution in N.Ireland - Legislation and the Futu
- Normal law making requires a majority of the legislature.
- In N.Ireland - there has to be a majority among parties of both sides of the sectarian divide - ensures consensus support.
- It has been rocky since 1998 with both sides struggling to cooperate.
- 2007 St. Andrews Agreement - new N.Ireland Executive took office - DUP leader Ian Paisely as 1st Minister & Sinn Fein former IRA officer Martin McGuinness as Deputy.
- Feb 2010 - all parties agreed to transfer law, order and security matters to N.Ireland executive.
Referendums: 'A popular vote in which the people rather tahn their elected representative resolve a political issue. It is used as a way of gaining consent for constitutional reforms'.
- It is established that if power is to be transferred from central UK gov.t then a referendum will be held.
Registration of Political Parties:
2000 - Political Parties, Elections and Referendums Act stated that all political parties must register in order to participate in elections. Means that individuals can stand but if they stand for a party then they are subject to stricter rules and regulations.
- Separation between Judiciary and Gov.t:
- Lord Chancellor - ambiguous - cabinet minister and senior member of governing party and head of judiciary and speaker of HoL - member of all 3 branches of gov.t
- Lack of independence of politics and law.
- Judicial role of Lord Chancellor removed.
- HoL was meeting as a court of law rather than part of Parl.t
- Senior 'law lords' would hear appeal cases and would also be members of the legislature as well as the judiciary.
- Senior judges removed from HoL and created Supreme Court (opened 2009) with same powers as the old HoL.
- Lord Chancellor and PM were in charge of appointing senior judges and there was a danger that they would appoint based on politics rather than on qualifications.
Reasons for reform: increase separation of powers; improve independence of judiciary; eliminate ambiguity in the role of Lord Chancellor; bring Britian into line with other constitutions.
Reform since 1997
Liberal Democrats and Unlock Democracy and Liberty want this:
- New fully-elected HoL that is representative and accountable.
- Reformed HoC so thayt it can provide accountability.
- HRA ineffective - ECHR needs to be binding on Parliament.
- FOIA is too weak.
- Labour has failed to deliver electoral reform.
Constitutional Reform Since 2010:
- Fixed-term Parl.ts.
- Recall of unsatisfactory MP's by petition & by-election.
- Backbench Business Committee.
- Redrawing of constituency sizes.
- Reduction of HoC by almost 10%.
- Requirement for referendum is any more legal sovereingty is to be transferred to the EU>