The Constitution
A working definition
• A set of principles that establishes
distribution of power within a political
system, relation ships between political
institutions, limits of government
jurisdiction, rights of citizens and
method of amending the
constitutions…
Nature and functions
• They determine how power is distributed e.g.
federal or unitary, balance of power between
executive and Parliament etc…
• Establish relationships between institutions and
rules that govern how they operate.
• The limits of governmental power.
• The rights of citizens.
• The rules by which nationality established
• The rules for amendment- UK unlike elsewhere
requires no special arrangements in USA 2/3
majority both houses Congress and ¾ states.
Codified and uncodified
• Codified
• Written in single document.
• Clear and every citizen has
access to it
• Can provide the people in the
state something with which
they can identify- IN US
Americans pledge allegiance
to it and is part of the
presidential oath to uphold.
• Two tier or dual legal systemhigher or fundamental law
often has special
arrangements e.g. referendum
approval, 2/3 majority of
legislature…
• Uncodified
• Not collated in one single
document and parts may be
unwritten- conventions in UK
• Unlike Canada, New Zealand
and Israel no distinction in UK
between constitutional and
other laws.
• However in UK parts are
written down- the ECHR is a
codified document as are
treaties EU
Entrenchment and Judicial Review
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Entrenchment
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Judicial Review
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Protects a constitution from short term
amendment.
It prevents rapid change or overturning of
the constitution.
In the UK not possible to entrench
constitutional principles as Parliament is
sovereign and no parliament can bind its
successor.
However, the growing practice of
referendums prior to constitutional changereferendums on elected Mayors 2012,
binding referendum on AV 2011, devolution
1997/98/2010 (Wales) all have impact of
embedding changes
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This is where the courts interpret the
constitution.
When a citizen challenges the action/law on
grounds it breaches the constitution judges
need to interpret whether this is the case.
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In this way the meaning of the constitution
can be clarified or adapted.
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Judges in UK also participate in judicial
review but in UK Parliament must decide
whether to abide by decision. 2004 House
of Lords challenge indefinite detention
foreign terror suspects as breach of habeas
corpus- government persuaded Parliament
2007 to introduce legislation allowing for 28
days. When in 2010 the Supreme Court
ruled government did not have the power to
freeze bank accounts suspected terrorists
the government response was to introduce a
bill giving it such power.
For and against codification UK
Constitution
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For
Greater clarity for citizens
A two tier legal system so constitutional laws
would be entrenched and more clearly
identified.
Process of judicial review would be more
precise and transparent.
A better way of safeguarding rights
Prevent drift towrds excessive executive
power
Clarify relationship with EU
Modernisation.
A process of formal codification is under
way- devolution acts have codified powers
devolved bodies, UK relationship with EU
codified under treaties, public right to see
public information codified in FIA, important
constitutional changes effectively
entrenched via referendum endorsement
note invention binding referendum, the claim
of right in the Scottish devolution act.
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Against
Flexible and easy to change
Unnecessary as UK has enjoyed a stable
political system
A large number of unwritten conventions
would be difficult to transfer into written
form.
Lack of constitutional constraints allows for
strong and decisive executive government
A codified constitution would bring unelected
judges into political arena.
Unitary and federal constitutions
• Unitary
• Sovereignty resides in one
location.
• Power is centralised as central
sovereign power can override
all other bodies…
• Federal
• Sovereignty is divided between
central bodies and regional
institutions. In the USA power
is shared between states and
the Federal Government.
• A system of quasi federalism is
said to exist in the UK the
powers devolved bodies are
effectively entrenched although
not legally. Even so claim of
right in Scotland and the
proposed binding referendum
on independence 2014.
Characteristics of UK Constitution
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Uncodified
Not entrenched- however note use of referendums to back up constitutional change
and claim of right.
A constitutional monarchy. The power of the monarchy eroded by fact all law making
power passed to Parliament and traditional powers of the monarch (prerogative)
exercised on her behalf by others principally the Prime Minister. Many actions are
taken in name of the monarch but she is not actually making the decisions.
Parliamentary Government is drawn from Parliament to which it is accountable.
Parliamentary sovereignty- no Parliament can bind its successors Parliament has
legal sovereignty the power to make any law. However as power has shifted to
other sources such as government which exercises political sovereignty
Party government- in general a single party government which because it has won a
majority of seats in Commons has a clear mandate to govern (electoral mandate).
However no party won overall majority 2010 and the government which formed had
no electoral mandate.
Unitary government Legal sovereignty located in centre in Parliament though a great
deal of decentralisation has taken place, use of referendums to entrench change, EU
membership etc…
Assessing the UK constitution
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Strengths
It is adaptable- 2010 when
indecisive election result Cabinet
secretary had already drawn up
draft procedures and a new
coalition government installed
without involving the queen.
It has stood the test of timepeaceful evolution.
Ensures parliament can act
decisively- post 9/11 new anti
terror legislation.
Traditional elements such as
monarchy which help to maintain
public support for the system.
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Weaknesses
Lack of restraints on powers
government and Parliament
Traditional and outdated
institutions such as monarchy and
Lords.
Lack of separation of powers
means government can dominate
Parliament although present
circumstances government forced
to abandon vote on timetabling
Lords reform 2012 due to back
bench pressure. A greater
separation of powers under the
2005 Constitutional Reform Act.
Lack of codification means
general ignorance of what
constitution is.
Sovereignty in the UK
• Legal sovereignty resides in Parliament.
• GFA 1998 established confederal arrangement between
Republic of Ireland and Westminster over future of the
Province NI.
• Claim of right in Scotland.
• Political sovereignty- where sovereignty actually liesgovernment- PM in particular an impressive array of
arbitrary power under prerogative powers or with
electorate (elections/referendums)
• EU- relationship is gradually changing successive EU
treaties have shifted more power. EU law is superior to
UK law this was established in the ECJ ruling on the
1988 UK Fisheries act (factortame case) which it ruled
as incompatible with EU law.
New Labour and Constitutional
Reform
• Why?
• Constitutional reform part of the New labour project in
opposition. For many old constitution embodiment
traditional privilege and inequality, also wanted to
prevent a situation where as a result 18 years one party
rule one party able to dominate the political agenda so
completely, considerable public support e.g. in Scotland,
growing support for Lib Dems who advocate reform and
groups such as Charter 88, SNP and PC.
• Principles behind the New Labour project were
Democratisation, Decentralisation, Restoration of Rights,
Modernisation
What New Labour achieved
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The Lords:1998 Removal of all but 92 hereditary peers, Creation of Independent appointments commission to vet
nominations for new life peers including people’s peers. Direct election of the speaker of the House of Lords
House of Commons some minor reforms of the committee system,
Freedom of Information Effective from 2005 public right to see official documents. in wake expenses scandal
IPSA created to oversee MPs pay and expenses. Figures obtained from the Freedom of Information Act
show that the number of Treasury senior civil servants over the age of 50 has fallen by about half in just
five years to ‘fewer than five’ at the very top level. The FOI was instrumental in 2009 in securing the release of
MP/peer expenses. Neil McNaughton Chief examiner EDEXCEL and author of AS textbook Edexcel AS
Government and Politics has commented that the FOI may be hugely important change in terms of constitutional
significance.
Devolution. Transfer of financial and legislative power to Scottish parliament. Creation of legislative assemblies
NI and Wales and assembly in Wales, devolution to GLA a directly elected mayor in London. In London the
elected mayor not same powers as mayors New York and Paris but several significant initiatives- 2007 Congestion
Charge, approval for Crossrail system in london and was backed by both mayors, increased funding for more
police officers and introduced 3000 community support officers, Livingstone part in secure 2012 games, Bo Jo led
developments to make London cyclist friendly. Provision for local referendums elected mayors 11 by 2005
Party registration and the electoral commission a new electoral commission to regulate elections and referendums
funding of parties and first registration of parties.
Judiciary Greater separation of powers with removal of Lord chancellor as head of judiciary and from House of
Lords. Creation of the Supreme Court UK.
Human Rights Act 1998 incorporate ECHR into UK law as first ever codified bill of rights, legislation from Scottish
parliament and NI assembly must comply with HRA. Ministers must declare whether a new bill complies with
HRA.
Electoral reform- Jenkins (royal) Commission established suggested AV+ a combination of AV and top up list
system but shelved. NI assembly elected under STV, London Mayor Supplementary vote, AMS for GLA, Scottish
Parliament and Welsh Assembly, closed list P for European Parliament
Devolution
• Types of devolution…
• Administrative ( effectively Wales and Scotland
pre 1997 and Wales 1997-2010)
• Financial (Scotland 1997+)
• Legislative Scotland and NI 1997/8 and Wales
2010
Arguments for devolution
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Growing demand for self government in regions- 1989 Scottish Constitutional
Convention drew up plans for a Scottish parliament was supported by Labour and
Libdems. Clear majority of Scots 60% turnout 1997 with 74.3% yes for devolution
and 63.5% for tax raising powers. Devolution carried by majority vote in all three
major regions.
Democratic deficit. Post 1979 a declining share of vote for Conservatives in
Scotland and Wales- no Conservatives elected to either region yet unitary
Constitution meant Conservatives ruled from Westminster causing resentment- poll
tax introduced as experiment in Scotland 1987 before being introduced in England
and Wales was ruled as a ‘quango state’. Devolution has allowed for more
representative and accountable government.
To head off demands for independence. Ultimate aim of SNP is for an independent
Scotland.
Reduce the workload government and Parliament
Recognises new idea ‘Europe of the regions’.
Devolved assemblies are elected by various systems PR which more accurately
reflect electoral divisions and designed to prevent nationalist parties gaining a
majority.
In Northern Ireland, the return of home rule seen as vital in securing the peace
process with joint sovereignty (confederalism) and requirement for power sharing by
parties representing both sections of the sectarian divide.
Arguments against devolution
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Conservatives campaigned 1997 and again the referendum against believing it would only lead to break up of UK.
48 hrs before 1997 Major’s warning- we have 48 hrs left to save the UK.
Allied to above- devolution has failed to satisfy demands. Both Welsh and Scottish bodies want more power.
Disparity in powers granted with Wales lacking even primary legislative powers. Latter resolved 2010. SNP wants
independence or at least greater financial autonomy from Westminster.
How much support? In Wales 1997 the yes vote was only 50.3% and in 2011 on whether legislative powers be
granted turnout c35%. 2004 less than 30% turnout in referendum on North East assembly was rejected by over
70% no vote.
It has created extra layer of governments with additional costs to taxpayer. Building of new Parliament at
Edinburgh was 10X over budget and expensive new assembly for Wales and GLA.
West Lothian Question. Scottish MPs can speak and vote on English matters but MPs representing English
constituencies cannot on matters delegated to the Scottish parliament.
A greater fragmentation in the UK with creation of new centres of power and growing disparity in social
legislation/provision between the regions. No tuition fees and no prescription charges in Scotland has led to
English resentment and rise of English Democrats campaigning for an English Assembly. However it is
increasingly apparent that in the long term free university tuition and care for the elderly in Scotland will be
unaffordable.
PR has failed to stop Nationalists majority in Scotland the SNP gained a majority of seats and this gave them the
confidence to demand a referendum on independence 2014.
In NI following allegations of IRA spy ring at Stormont devolution was suspended 2002-7 although restored,
Sectarian tensions continue and national Geographic has reported at least one such incident a day since GFA.
September 2012 three days of rioting in Belfast over disputed marches.. Total of 12oo police officers hurt in
riots relating to loyalist marches in seven years includes 62 since Sunday.
Coalition agreement
• AV (following referendum) for Westminster
• Elected House of Lords
• Fixed term Parliaments
• Reduce size of commons by 10%
• Greater powers Scottish and Welsh Assembly
• Compulsory registration lobby groups
• Right of recall
Prospects for radical reform?
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Lib Dems and the Cons have become radical constitutional reformers note the coalition agreement. Nick Clegg referred to a second
1832.
Government is committed to 80% elected 2nd chamber.
Fixed term parliaments act 2011
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The Bill fixes the date of the next General Election at 7 May 2015, and provides for five-year fixed terms. It includes provisions to allow the
Prime Minister to alter the date by up to two months by Order. There are also two ways in which an election could be triggered before the
end of the five-year term:
if a motion of no confidence is passed and no alternative government is found
or if a motion for an early general election is agreed either by at least two-thirds of the House or without division
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Introduction of the binding referendum AV and also for Scottish independence 2014.
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Continue policy of holding local referendums on elected mayors.
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Commitment to implement the Calman Commission proposals on greater financial autonomy for Scotland.
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November 2012 first elections for elected police commissioners.
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Localism programme- aim is to return power to people and communities- directly elected police commissioners is seen by Nick Herbert
the policing minister as such an example. It also reflects the thinking behind the Big Society project which was influenced by community
studies in New England where communities take initiative for self regulation and provision of services.
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\September 2012 The Information Commissioner has ruled against a government attempt to block attempts to keep secret an internal
Whitehall guide to the way senior royals are consulted before legislation introduced to ensure it does not harm their private interests – the
application of the controversial veto has been described by constitutional lawyers as a ‘royal nuclear deterrent.
Prospects for radical constitution
reform
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Against
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As of Jan 2011 of 40 local referendums only 13 said yes.
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In May 2012 10 more referendums held in ten largest English cities, only Bristol voted yes.
How much popular support is there? Note the above and also the defeat of the AV referendum.
2012 the government was forced to withdraw House of Lords reform bill due to intense back
bench opposition.
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Much of the programme of constitutional reform has been the result of political horse trading- AV
referendum in return for support for constituency reduction, AV in place of STV. A Bill of Rights
Commission which will suggest ECHR+ in place of scrapping outwardly the HRA. LibDem agree
to European Union Bill (sop to Cameron's Eurosceptic wing) referendum on any future transfer
powers to Brussels. Growing divisions within the coalition with LibDems threatening to vote
against the equal electoral districts/ MP reduction.
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In August 2012 Nick Clegg announced that he will instruct LibDem MPs to vote against
constituency boundary changes.
The problem over issues such as AV vote- insufficient time for educating the public and massive
Conservative back bench resentment over tightly whipped vote on the referendum bill.
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