British Constitution: Introduction
Queen parliament who rules the country.
Exams: 2 short-answer questions (100 words). And 1 question of opinion 🡪 essay
question 🡪 the idea is to give your own personal opinion on the issue. Ex: do you think
the House of Lord should stay unelected?
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Introduction
What is the British Constitution? Constitutional texts, statues, conventions, and
case law
Parliamentary, sovereignty and the rule of law
Constitutional conventions: when is a convention not a convention?
Parliament and referendums
The executive: Prime minister and government
Devolution: constitutional issues in a disunited union
The monarchy: past, present, and future
The constitutions and the courts: debating the separation of powers
Revision and debate: the merits of codified constitutions
Tradition of the legal system: common law (face to face) and Civil law (inquisitee).
Decentralization: devolution
The UK have a rather complex organization.
Separation of powers 🡺 check and balances.
Since de ’90, more separation of powers.
Chile constitution 🡪 what happened? Rejected by the population because it was a
modern constitution. C° more ecological. The C° also secures the abortion rights. =>>
extremely progressive. Gender parity. 🡪 the idea was to enshrine (to set in stone) these
rights.
Yet it was rejected by the population. 🡪 the gap was too big. Also voting is mandatory in
Chile.
What lessons about Constitutions can be learned from the results of the Chilean
referendum?
Only a handful of C° pr-date WWII.
Traditional /modern idea of C°
Does it organize government? = modern
Does it organize the state, the whole life of the state? =Traditional.
Government: large word: also institution and the way the state is ruled. Just the people
= “cabinet”.
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In country the C° is the supreme law, a specific procedure to change. The idea is that you
put special right at this level, they will be more secure. But in the UK, the C° can be
changed easily. Because it is more a traditional view, it is more to organize the whole
state.
Hegel (1830s): traditional view of C°. they are not just a set of constitutional
arrangements but have a strong cultural element, they “develop from the national spirit”
Edward Burke promoted this idea (1780s) 🡪 one the great thinkers who have written
about the C°.
“The C° Is a partnership not only between those who are living, but between those who
are living, those who are dead, and those who are to be born”
Thomas Paine 🡪 one of the thinkers of the enlightenment era. He is one of the references
of the modern C°.
People like modern because it is straightforward.
Four features for a C°:
1. It is a document (real existence)
2. It is antecedent to a gvt
3. It must be comprehensive
4. It has a status of “fundamental law”
Very few exceptions: UK, Israel, New Zealand.
The British constitution is unentrenched. ⇨ can be easily modified
Idea in France that C° is different form the other law.
But in the UK, it is not the case. What make it C°, is not the procedure but the content. ⇨
the C° can adapt itself, it is easily changed,
Statutory instrument = decret d’application. 🡪 piece of legislation being challenged to
the court.
Dissolution and calling of Parliament Act 2022
Act of Parliament, now being reversed with the dissolution of Parliament act (ex dans
l’actu). = when doing is elections for parliament, and the longueur of the mandate, it was
changed in 2011, and in 2022 put back at the start. 🡪 5 years period.
Coalition Parliament: not often in the UK bc the 2 parties’ system, made in sort that there
is a labor maj, or a tory party.
It was today not enough to have a majority ⇨ the liberal democrats had to make an
agreement with the conservative party. This has to be done quickly, bc it can’t be a gvt
without maj.
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Coalition agreement. The party which led a campaign against Brexit. Their support has
declined very quickly.
Idea to form a gvt on the condition that they will pass a law that make them stay at the
majority for 5 years not less. Before the idea was to be elected for 5 years but it was the
maximum, but you could leave sooner, depending on the prime minister (often 2 and a
half, or 3 years).
Dissolution and Calling of Parliament Act 2022: this act of parliament repeals another
act of parliament 🡪 just like that the C° is changed. It seems not to correspond to the
actual politic. This shows a lot of power of the Prime Minister, bc he can call the
parliament to vote the change of law.
Problem in the balance between the executive and the legislative, which is perhaps why
this act was a good idea because it concentrated a lot of power in the hand of the PM and
there was infighting between people in the cabinet.
The member of the parliament if they have the majority party can become members of
cabinet.
To conclude: it is a living C°.
Walter Bagehot: “An ancient and ever-altering constitution is like an old man who still
wears with attached fondness clothes in the fashion of his youth: what you see of him is
the same, what you do not see is wholly altered”.
The power of the parliament of calling the elections seems against the separation of
power.
What is the British Constitution? Constitutional texts,
statutes, conventions, and case law
Uncodified Constitution ⇨ multiple sources
Parliament is supreme, supremacy enhanced by:
1. First past the post
2. Unelected House of Lords
3. Local government subordinate to federal government
4. Judges have a limited role; they cannot challenge Parliament’s authority.
System organized to give supremacy to P.
Ten years ago: alternative voting referendum: ask the population if they wanting to
change the “first past the post” (system often seems as unfair) 🡪 there wasn’t much
participation, so the project was rejected.
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1215: Magna Carta 🡪 for the first time the monarchy agreed to relinquish some of its
power. It promised the protection of church rights protection for the barons from illegal
imprisonment access to swift justice, and limitations on feudal payments to the Crown,
famous clause: “to no one we sell to no one deny or delay right or justice”.
Habeas Corpus : doit à l’innocence. ⇨ procedure where the court will see whether the
person is innocent or no.
Examples of Constitutional Statutes:
1686 Bills of Rights It is a sort of compromised between the monarch and parliament 🡪
the king and queen agreed with this bill which clearly limited their power, but they kind
had no choice because otherwise they would have not be accepted as monarchs.
The bill of right,
Parliamentary acts 1911 & 1949
Human Rights Acts 1998 🡪 transposes in the UK law the European law of human
rights.
Constitutional Reform Act 2005.
Case Law & conventions:
Example of constitutional cases:
1611: the case of proclamations
2017 and 2019: miller cases
Examples of constitutional conventions
Prime ministerial functions
The British Monarchy, past, present, and future
Reign
Rule
Royal Prerogative
Modern monarchies are hereditary monarchies.
Non-partisan (the monarch doesn’t take side)
Two keys feature to the king duties: keep all the parts of the UK together, must recognise
the work of local foundations, so a lot of charity work.
What the king’s role:
⮚ Head of state: everything is done in the name of king
⮚ Head of church: church of England is the Church of England (//Henri 8) The
monarch must be in communion with the church and has to promise during the
coronation oath to maintain the church
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Archbishops and bishops are appointed by the king. All of priest take an oath of
allegiance to the king.
⮚ “Fountain of justice”
⮚ “Fountain of honour”
⮚ “Right to warn, right to be advised”
The Commonwealth: association of 56 “free and equal” nations
Commonwealth created after the 2WW. Might evolve in the next years.
Signs bills into laws (Royal assert)
Appoints Prime Minister and he is granted an audience every Tuesday (see film “The
Queen”)
Appoints the life peers
🡺 Pardons criminals (2013: Alan Turing)
🡺 dissolves Parliament and calls an election
🡺 declares a state of emergency 🡪 done in the name in the name of the king but it is
in the hands of the executive.
🡺 declares war 🡪 done in the name in the name of the king but it is the executive.
🡺 awards honours
Some of these powers are the royal prerogatives, the queen reign but does not rule.
ROYAL ASSENT
In 1708, Queen Anne was the last Sovereign to refuse royal assent to a
bill passed by Parliament. 🡪 she refuses the Scottish Militia Bill.
The bill's long title was "An Act for settling the Militia of that Part of Great Britain called
Scotland". Its object was to arm the Scottish militia, which had not been recreated at the
Restoration. This happened as the unification between Scotland and England under the
Acts of Union 1707 had been passed.
On the day the bill was meant to be signed, news came that the French were sailing
toward Scotland for the planned invasion of 1708 and there was suspicion that the Scots
might be disloyal. Therefore, support for a veto was strong and the Queen refuted her
royal assent to the bill.
No monarchs since the sixteenth century have signed Bills themselves and Queen
Victoria was the last to give the Royal Assent in person in 1854
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Crown estate makes profit
15 to 25% is awarded to Sovereign Grant (previously known as civil list) 🡪 percentage
is voted by the Parliament each year. ⇨ £86.3 million in 2021/2022, or £1.29 per person
in the UK
Crown estate made £312.7m profit in 2021/22
National audit office can audit the royal household
Lot of debate about the royal money.
In defence of the traditional monarchy
-the British Monarchy is not contradictory to the democratic principle, because the
Monarch has no real “day-to-day” power, this enables him/her to fulfil other important
roles in Britain – much better than an elected president could
-being the Monarch of Britain is connected to a heavy symbolic burden and must be a
ceremonial institution (“the fountain of honour”); the Monarch plays this role by being
the symbolic head of state, by being the head of the Church of England, by being the
Commander in Chief of the army and by setting a moral example
-the Monarch is supposed to be impartial, thereby he/she can encourage, advise and
warn the Prime Minster, but only in private. She cannot criticize the politicians
-the monarchy symbolises British history and greatness, to decline it means to decline
this history and greatness
-it´s true that the monarchy costs a lot of money, but the monarchy brings in revenue too,
(tourism)
-the behaviour of individual Royals is irrelevant to the institution of the Monarchy and
should not affect it in any way
🡺 defenders argue that the Monarchy contributes to British democracy in a way no elected
president could.
There is a republic parti in the UK, but for now not a lot of followers.
Categories of reform
a) Symbolic and stylistic reforms 🡺the Royals could present themselves as ordinary
people in public
b) Practical Reforms 🡺the cost of running a monarchy could be reduced, titles could be
reduced further
The royal prerogative
The monarch reign but does not rule, symbolic power.
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Etymology: Prae +rogare: ask before
It refers to powers that can be used before the people (i.e: Parliament) are consulted
Dicey defined this Royal Prerogative as:
« Residue of discretionary or arbitrary authority which at any given time is legally left in
the hands of the Crown »
The crown means the monarch AND the government.
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How to divide these prerogatives?
1688 Glorious Revolution 🡪 the monarch agreed to accede to the throne and at the same
time to sign the bill of rights 🡪 instauration of parliamentary regime.
Before 1688: Prerogative exercised using Proclamations
These were new rules, new offences, new obligations
After 1688, with the Glorious Revolution and the Bill of Rights:
Article 1
« The pretended power of suspending the laws or the execution of laws by regal authority
without the consent of Parliament is ILLEGAL » 🡪 really instore the of Parliament and
limit the power of the monarch.
Division of prerogatives in two categories:
King (personal prerogatives) 🡪
• the power to appoint and dismiss ministers, including the Prime Minister
• to summon and prorogue parliament
• to give royal assent to bills passed by parliament.
• Royal assent to bills is automatically granted once a bill has been passed by both
houses of parliament.
• The other powers are exercised on the advice of ministers, advice which—by
convention—the Queen is normally expected to follow. But as the ultimate
guardian of the constitution, the Queen has power to dismiss a Prime Minister
who refuses to resign after losing the confidence of the House of Commons; and
in future the Queen may be expected to refuse an untimely request for
prorogation, lest it be declared unlawful.
Government (executive prerogatives power) 🡪
- Always in the name of the monarch
- the power to make war and deploy the armed forces (more and more, this
question came in 2003 when gvt decided to send troops in Iraq, and the
Parliament wished to have a voice on it)
- to conduct foreign policy and make treaties
- to make public and judicial appointments
- to issue passports
- to grant pardons and honours. Today, the justice secretary has responsibility for
recommending the use of the RPM to Her Majesty the Queen. The defence
secretary is responsible for military cases. The RPM is now exercised sparingly
and only in cases of great exceptionality.
Case Law
When statute and prerogative powers clash, statute law prevails
AG v De Keyser’ Royal hotel (1920)
Hotel requisitioned by statute to help with war effort. Compensation also provided
by statute
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Government responded to the case by saying this was done under Prerogative power
so no compensation.
Court ruled Statute above Prerogative
Parliamentary sovereignty
Two pillars of the C°
⮚ Parliamentary democracy
⮚ Rule of Law
Two key words:
- Challenge: défi 🡪 risk of the judges
- Construe: façon de concevoir un texte🡪 how to make it compatible with rule of
laws.
Whatever the P decide, it is the law. So, no supreme law of the land. The Constitution is
not the supreme law of the land
A.V Dicey (judge and academic) = “Parliament can do everything”.
There is nothing above P.
Rule of law (etat de droit) = nobody is
above the law and the law applies equally
to everybody.
“The law and its administration is subject
to open and free criticism” ⇨ needy
procedure to have somebody to come to
see if people are not happy about the law:
The Court 🡪 interquestion before the Court.
🡪 very d+ in the US, but in the UK, it is not
very use.
Thomas Bonham v College of Physicians 1610
The court ruled that the College had unlawfully imprisoned Dr Bonham for practicing
medicine without a licence 🡪 the procedure and aspects of the case are important:
looking at who can deliver licences or not
► A British Marbury v Madison? YES/ NO 🡪 La Cour affirme la capacité, pour les
tribunaux et en particulier pour elle-même, de juger de la conformité des lois à
la constitution et d’écarter, en ne les appliquant pas, celles qui y contreviendraient.
Ce principe donne à la Cour son pouvoir le plus important, et fait d’elle la première
Cour suprême apte à se saisir de questions constitutionnelles de l’histoire.
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► The case is notable because it was argued in the decision's rationale that "in many
cases, the common law will control Acts of Parliament", the act of parliament
in question being the "College of Physicians Act 1553" which gave the college the
right to imprison.
The meaning of this phrase has been disputed over the years
Either the judge will have to call into questions (against the rule of law) = say that we
can’t have this law
Or the court have a right to interpret the act of Parliament.
“control” = challenge OR construe?
► According to doctrine of parliamentary sovereignty, it must mean « construe »
► According to doctrine of rule of law, it must mean « challenge »
No recorded case in which the courts, without authority of Parliament, have struck down
a statute (ex: Merchant Shipping Act 1988, authority of Parliament) 🡪 les tribunaux
statuent sur l’incompatibilité de deux lois, et ça passe nécessairement par le Parlement
pour les modifier/annuler.
Caselaw = jurisprudence
All the cases coming after 1610, the judges have the right to control act of Parliament.
Parliamentary sovereignty and statutes limiting parliament’s legislation
⇨ international treaties and obligations.
- European Communities Act 1972
-Human Rights act 1998
- Devolution Acts of 1998
They CURTAIL (= limit) Westminster’s power to legislate, but this curtailment is by
express authority of…. Westminster 🡪 voluntarily.
Scotland Act 1998
Section 28(7):
« This section does not affect the power of the Parliament of the UK to make laws for
Scotland »
Support for Parliamentary sovereignty
► Lord Bingham
► « The British people have not repelled the extraneous power of the papacy in
spiritual matters and the pretensions of royal power in temporal in order to
subject themselves to the unchallengeable rulings of unelected judges. »
► MP in 1621:
► « The judges are judges of the law, not of parliament »
► A.V Dicey also defended classic doctrine of Parliamentary sovereignty
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► Magna Carta 1215 and Bill of Rights 1689 took power away from Monarch and
gave it to Parliament
Conundrum
Parliament has power to legislate as it wishes. It may choose to legislate against the rule
of law and the judges would have to give effect to such legislation if it is clearly and
unambiguously expressed.
This is problematic 🡪 what of P control gvt, instead of gvt control gvt. Within the House
of Commons, the way it works, it ends up giving the power the power of the gvt, to do
what they want if they have the majority in the house of Commons.
Except: Since Glorious Revolution it is 3 institutions together that must assent
legislation:
Crown / Lords / Commons
Lord Chief Justice said in 1846: “The Constitution lodges the sacred deposit of sovereign
authority in a chest locked by three different keys: Crown, Lords, Commons”
Elective dictatorship Lord Hailsham 1976, Lord Chancellor
Legislative role of the Crown ↓ (royal assent, see last week)
Role of the Lords ↓ (since Parliament Acts of 1911 and 1949)
Commons, dominated by government majority: The executive can pass any laws it
wishes
Constitutional settlement is unbalanced
Calls for codified Constitution…or change in the electoral system
🡺 Either there is a supreme law of the land and the gvt is limited by it, or you
change the election system, so that the gvt elected don’t command the clear
majority in Parliament. To avoid this question of gvt of the judges.
⇨ She supports the parliamentary sovereignty
THINK OF OUR VIEWS ON THIS QUESTION BCS IT IS ON THE PARTIEL
HOW CAN WE AKE SURE THAT THE PARLIAMENT DICTATORSHIP DOESN’T EXIST?
WHAT ARE OUR VIEWS ON THE BRITISH CONSTITUTION
LOT OF ACADEMIC DISCUSSION
Conventions
A convention is an unwritten understanding about how something should be done
which, although not legally enforceable, is almost universally observed.
Occasionally a new convention is agreed to resolve a specific procedural issue that has
arisen.
🡺 Can be something very recent
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Keywords
• conventions are self-enforced = the people and institution decide themselves to
do it.
• conventions allow great flexibility in the constitution
(Convention exist not only in the UK, but also in France)
Example of convention: the PM is expected to resign if and when he/she does not
command the confidence of the House of Commons
Conventions not always clear, may be reversed 🡪 flexibility.
Example:
2003 Invasion of Iraq. Government said it would not commit troops overseas without
prior debate in Parliament. P did not object, so gvt send troops to Iraq. This appeared to
be a convention
2018: War in Syria. Reversal: Government authorized airstrikes in Syria without prior
debate in Parliament (very hard at that time to find a consensus for the war).
Some difficulties to distinguish conventions and practice.
Conventions versus practice
• Disagreement here between academics. Some list over 40 conventions (see Jacqy
Sharpe, clerk of P), the Cabinet Manual lists many too, others consider
conventions to be fewer and argue most of the rules listed are practice
Wide-ranging definition by DICEY (1885):
• « Conventions are customs, practices, maxims and precepts which are not
enforced or recognized by the courts »
Different angle proposed by JENNING (1941):
• Courts use conventions to clarify meaning of statutes
Stricter definition given by Philip NORTON (2020): Conventions are not practices
Ex. of « Parliamentary conventions »by J. Sharpe
Conventions relating to behavior in the House of Commons: Speaking in the House of
Commons 🡪 you must stand up and speak a very short time. All this is regulated by
Parliamentary convention:
Members should address the House through the Chair and refer to other Members in the
third person, by constituency or position.
Except for opening speeches, maiden speeches (=speech of new elected representatives)
and where there is special reason for precision, Members should not read speeches, though
they may refer to notes
• MORE RULES OF BEHAVIOUR THAN CONSTITUTIONAL CONVENTION
• https://consoc.org.uk/wp-content/uploads/2020/06/Jacqy-Sharpe-FINAL.pdf
The cabinet manual 🡪 bases and rules
First draft published in 2010, content regularly updated, with the passage of new
regulations. Not a political document.
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The content of the Cabinet Manual is not static, and the passage of new legislation, the
evolution of conventions or changes to the internal procedures of government will mean
that the practices and processes it describes will evolve over time (page iv of the Manual)
• Article: https://www.bbc.com/news/uk-politics-12669011 (« Manual not first
step to a written constitution »)
Examples of conventions
1. The Salisbury Convention
1945: Clement Attlee’s labour Government received clear mandate through 1945
election: formation of NHS/ nationalise key industries
Problem: House of Lords had in-built Conservative majority (until Life Peerage Act of
1958). In 1945, reform of the house of Lords wasn’t completed 16 out of 761 peers were
Labour members
Lord Salisbury met with Lord Addison (one of the 16), they agreed on:
Agreement
The House of Lords would not vote at Second or Third Reading against any bill that was
expressly outline in the Government’s manifesto (=electoral program) In this way, the
Lords submits to the popular mandate of the Government of the day, regardless of its
party.
The House of Lords may amend such bills but must not add ‘wrecking amendments’ to
such bills. These are amendments that are clearly designed to thwart the passage of the
bill.
When can the Salisbury convention not be applied
• 1. Coalition government (example: 2010/2015)
• 2. Minority government (example: June 2017)
• 3. Low turnout/ low vote share (example 2005: third Blair government with a
majority of 66 seats, whereas previously it was 167 seats) 🡪 when there is a
majority, but not clear (= not a landslide majority).
2. The Sewel Convention
the UK parliament “will not normally legislate with regard to devolved matters without
the consent” of the devolved legislatures, meaning the Scottish parliament, Welsh
parliament (Senedd Cymru) and Northern Ireland assembly.
Happened very rarely
The convention applies when UK legislation:
● changes the law in a devolved area of competence
● alters the legislative competence of a devolved legislature
● alters the executive competence of devolved ministers or departments.
The devolved legislatures vote to GRANT or WITHHOLD consent (=don’t give it)
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If they withhold consent, the UK Parliament can decide whether to
- amend the bill to meet with devolved concerns
- pass the legislation as it is
A convention is not legally enforceable (possible to make people obey, or possible to
make happen or be accepted):
2017: UK Supreme Court stated that since the Sewel convention remains just a political
convention, “policing the scope and manner of its operation does not lie within the
constitutional remit of the judiciary”.
Pink dots = agreement of the local P. (//Brexit ⇨ more power coming back to the UK).
3. The appointment of a PM
The role of the king
Appointed on their ability to command a majority in the House of Commons
It is a prerogative power of the Monarch
CONVENTION: The Sovereign should be kept out of politics
So, the political parties must negotiate to decide on who is the best placed to command a
majority so as NOT to drag the King into politics
ONE controversial appointment under the reign of Queen Elizabeth II
• 1953: Churchill suffered a stroke and Anthony Eden (who was seen as Churchill’s
successor) was undergoing an operation…but Churchill recovered.
• 1963: chose Alec Douglas-Home on advice of the outgoing conservative PM
Harold Macmillan. Other members of the party had expected to be chosen.
Consequence: clear rules for choosing leader of Conservative party emerged
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CODIFYING A CONVENTION: turning it into STATUTE
Example of the Ponsonby Convention (or Ponsonby Rule) with the Constitutional
Reform and Governance Act 2010
From the late 19th century, it became the common practice to present the treaties of the
United Kingdom to Parliament after they had come into force.
🡺 It was up to the gvt to discuss international affairs, before, and in the 19th
century people thought it would be a good idea that P is consulted, or at least a
debate.
Statement by Arthur PONSONBY, Parliamentary under-secretary of state, 1924
It is the intention of His Majesty's Government to lay on the table of both Houses of
Parliament every treaty, when signed, for a period of 21 days, after which the treaty will be
ratified and published and circulated in the Treaty Series. In the case of important treaties,
the Government will, of course, take an opportunity of submitting them to the House for
discussion within this period. But, as the Government cannot take upon itself to decide
what may be considered important or unimportant, if there is a formal demand for
discussion forwarded through the usual channels from the Opposition or any other party,
time will be found for the discussion of the Treaty in question.
Part 2, section 20 of the Constitutional reform Act ,2010
Constitutional Reform and Governance Act 2010 Explanatory Notes
Previous Explanatory Notes Table of contents Next
Part 2: Ratification of treaties
Section 20: Treaties to be laid before Parliament before ratification
129.This section sets out the main procedure to be adopted in relation to treaties before
they are ratified on behalf of the United Kingdom. The procedure described is based
upon the convention known as the Ponsonby Rule, which has been applied to the
ratification of treaties since 1924.
Conclusion
• CODIFYING A CONVENTION: turning it into STATUTE
• Not ideal as benefit of Conventions: FLEXIBILTY, SELF-ENFORCED ⇨ reason why
they are perhaps so many in the UK.
• They can be interpreted with deference to current political situation (more
difficult with statute, they appear more rigid)
Parliament and referendum
One referendum / two referenda/referendum. 🡪 in practice, political science prefers
referenda ≠ journalists.
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Key word:
• Ad-hoc not something that is institutionalized. In the UK, they are not in the C°,
but they still exist, and they are still use.
• Conundrum: puzzle that is very difficult to solve.
• Definition: A referendum is a ballot in which electors are asked not to vote but to
pass judgement on a single question or a set of questions (Philip Norton)
I.
Development of referendums in the UK
Referendum: not in the tradition of the Constitution
• Why?
• France, Australia, NZ… special referendum, wrote in the C°, used when they want
to change the constitution.
• In UK, they just say: let’s have a referendum.
• Concept of parliamentary sovereignty: representative democracy
• Conundrum: how can you have direct democracy through referendums in a
representative democracy where parliament is the seat of power?
• Answer: through ad hoc referenda decided by parliament
Referendums elsewhere:
• Switzerland: world leader on referenda = referendums on taxes for married
couples, for nuclear parts…
• USA: State level/ not federal level: no institutionalized procedure in the C°.
(Ludlow amendment =said that they would like a referendum when the US wants
to go to war)
• UK: no nationwide (all the UK) referendum until 1970s (although advocated by
some since 19th century) 🡪 not a tradition. Before 1970, the idea of referendum
was just discussed.
1975: 1st nationwide referendum on European community
• Key motivation: hold a divided party together (political). Renegotiate the place of
UK in the EC.
• Context: Harold Wilson’s Labour government had taken office in 1974 & UK
member of EC since January 1st, 1973
• Question: Do you think the United Kingdom should stay in the European
Community (the Common Market)?
• Result: 17.3 million remain/ 8.4 million leave
Quotes at that time:
• Mrs. Thatcher (Conservative): “a device of dictators and demagogues”.
• The Sun: a 'constitutional monstrosity’
• Tony Benn (Labour), by contrast: 'the five-yearly cross on the ballot paper is not
enough’
Precedent set
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No nationwide referendum until 2011 (36 years on), yet referendums included in
several pieces of legislation
Examples: 1978 Devolution Acts for Scotland and Wales 🡪 décentralisation,
donner plus de pv.
40% threshold (=seuil minimum de votant pour que ce soit valide = 40% yes)
(Scotland « yes » but no 40%, Wales « no ») ⇨ devolution was not implemented.
1997 devolution referendums in Scotland, Wales, and Northern Ireland: « yes »
won
Coalition government referendums
• 2011: AV vote (see below)
• 2014: Scottish independence (see later class) 🡪 liberal democrats had a lot of
support in Scotland at the time
2016: Brexit referendum: a promise of the conservative party, in their manifesto:
renegotiate the position of UK in the EU.
conclusion: usually adopted to resolve internal political party issues, tactical reasons,
dividing lines outside traditional party lines
Motivation: political expediency 🡪 good for tactical reasons
Justification: let voters decide a key issue of public policy
Margaret Thatcher: wanted to stay in the EU, campaign for the yes, at the time, the UE
community was a common market 🡪 1975, economic benefit to be in the EU. But she
became against EU and defended a Europe of nations.
II.
People or Parliament?
• Arguments in favour:
They supplement rather than challenge representative government by seeking the will of
the people (Vernon Bogdanor)
They serve to legitimise change
They are advisory, so no contravening of Parliamentary sovereignty (1975 and 2016)
If made binding, it is through Act of Parliament (ex: AV ref in 2011, EU Act 2011)
• Arguments against
Referendums undermine role of Parliament 🡪 because in P there is procedures, rules…
It is a highly institutionalized legislature with well-established processes (debate at all
stages, rules, committees, evidence etc…), it takes weeks to pass a legislation, and if you
use a referendum to answer a yes or no Q. It’s going to change completely the role of P.
No accountability with referendums. With elections, government accountable to the
people (on outcome of the manifesto), people in referendums accountable to no-one for
the outcome of a referendum
16
🡺 If the gvt is elected on a manifesto, if the gvt of the day does not legislate to pass
this manifesto, this gvt at the next election might not be re-elected = they are
accountable to the people. Referendum undermines all the work of
representatives.
🡺 But if the ref is a Q, which lead to a change, if the people are not happy of the csq
of the changes they made by themselves, there’s no election to remove the
people= whole point of having a direct democracy.
• Explaining referendums
How people voted is clear but not why they voted the way they did 🡪 one of the risks of
holding a referendum is to vote in function of who propose the referendum, rather than
the Q itself.
Binary questions not the best to explain what people want (ex: Brexit options)
Referendums may be politically binding if not constitutionally binding 🡪 always
politically binding, always a political signification.
III.
Reflection on how to improve referendums in face of complexities of the
question
Professor Cooper : We can hold referendum, = dem, as long as we hold them in a less
binary way.
• “What does it say about the level of respect shown towards popular or direct
democracy that in a referendum, ostensibly concerned with some of the most
important matters a society is facing (and we can debate whether or not this is
true), people vote once with no requirement on them to contribute to or help shape
political debate? Parliament does not pass laws in this way. New legislation is voted
on multiple times across two Houses, with usually extensive debate, committee
revisions, and a background of reports and enquiries. In the course of readings in
the Commons and Lords, the law evolves and changes. While much may be wrong
with the parliamentary system, including the content of many laws, what would it
be like if the government routinely introduced Bills once, if success or defeat in
Parliament depended on a single vote without any structured deliberation?”
• Parallel drawn with juries and sports matches
• Suggestion from Prof Cooper:
Once a referendum is called, should two votes be held? An initial national vote (that
would perhaps have to contribute to the final decision to reduce “gaming”) to provide
context and direction for further panel deliberations. A final vote that could involve a
single transferable preference (or ranking system) assuming deliberative referendum
pose questions more complex than in or out. In between, local panels might produce
discussion papers on the issues in conditions where local media are legally obliged to
provide coverage; and where national media engage with the diversity of local
deliberations.
Focus on the AV referendum
17
https://www.youtube.com/watch?v=BoKlE1_vrYU
votes are FREE and FAIR.
But in the UK, numerous places are more populated, and their votes count more
⇨ On May the 5th, British are asked to choose between two different ways of holding
elections:
o First past the post = to win you don’t need a majority, you just need more
than anyone else. But this mean that a majority of people didn’t vote for
the winner
o Alternative vote = solve this problem by using numbers to rank the
candidates. Every one first choice is accounted, and if it’s superior at 50%
= winner. Other 🡪 elimination of the candidate with the fewest votes.
But other pb in UK: your vote count more if you are in a less populated aera because of
the system of “safe seats and marginal seats”.
🡺 No won. ⇨ no AV.
The Prime Minister and the Cabinet
What is the role of the exe in the UK?
The exe function without a legal constitution but a political Constitution.
The Constitution society: The Constitution Society is an independent, non-party
educational foundation which works to promote informed debate about constitutional
reform.
We take no position on specific reform proposals but advocate better legislative
standards and oppose ill-considered, piecemeal change
3 important points:
1. The Royal Prerogative: focus on pro-roguing of Parliament
Some powers are exclusively for the king, and some for the Cabinet and PM (ex:
choosing the date of the election of Parliament).
2. Collective cabinet responsibility
When all the Cabinet must resign
3. Individual ministerial responsibility
When one specific member of the cabinet has to resign.
What is the executive?
•
•
The term ‘executive’ refers to the government: those who make the key decisions and
run the country day to day.
In the UK system, the party with the most seats in the House of Commons is typically
invited to form a government.
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•
•
•
•
The Prime Minister is normally the leader of that party, and they have the power to
appoint the other members of the government.
This includes the most important ‘Great Offices of State’: the Chancellor of the
Exchequer, who is in charge of economic policy; the Foreign Secretary; and the Home
Secretary.
However, there are many more government departments, each led by a Secretary of State
or their equivalent and appointed by the Prime Minister.
Lord Chancelor: secretary of state for Justice. When someone is a secretary of state he is
above the minister. He heads the department and ministers help them.
The executive and the constitution
The role and powers of the executive are in many ways unclear, as many of them are
defined only by conventions, rules which do not have any formal legal basis.
There is no single legal document that clearly defines the role of the government and the
limits of its power. 🡪 The role of the exe is not defined by a statute 🡪 but by the
Cabinet Manual: provide sources of information about the rules, which themselves
are not very clear.
Also, the Ministerial code: adapted for each cabinet.
Prerogative powers are a particular source of confusion.
They are not set out in statute but come from the common law (law which is developed
by judges in relation to customs and precedents).
It is difficult to say exactly what prerogative powers still exist as some of them have not
been used for many centuries.
Furthermore, there is no generally accepted definition of what constitutes a Royal
Prerogative and their scope, according to the Ministry of Justice, ‘is notoriously difficult
to determine.’
the main roles of the executive in the UK
Still, everyone agrees that the executive is there to try and pass law through
parliament, the one of the manifestos.
•
•
•
•
•
The executive holds a lot of power within the UK system.
Most legislation is introduced to Parliament by the government, which to a large extent
controls the agenda and time of the House of Commons. = control what the P is going to
discuss.
• Time Is set aside for private members bills to be debated.
Can propose its bills
• Gvt bills v. private members bill 🡪 more bills from the house of
commons (=gvt). But in the house of Lords, not as politicized as the
house of commons, there is a lot more private member bill.
The government proposes an annual budget which sets out how it will spend money
over the coming year.
The government also has the discretion to make a broad range of policy decisions in
areas such as transport, education, and health.
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•
•
For laws to be passed, either they start in the House of Commons, or of Lords, exchange
of reading, then the vote of the other room = ping pong 🡪 in the end both chambers must
agree on the same text.
The Whip system = exe controls what is going one in the P, and make sure their laws are
voted:
• An official of a political party whose task is to ensure party
discipline in a legislature = make sure that everyone is here and
will vote.
• One-line whip: on-binding for attendance and voting (less
important laws).
• Two-lines whip: attendance required unless permission granted by
the whip, voting free
• Three-line whip: attendance required, voting along party lines
mandatory (if you vote against the party, who will have the hardest
sanction 🡪 who no longer avec the support of the party).
The royal prerogative:
•
•
•
•
The executive also holds other powers, called Royal Prerogative powers.
These are the powers that are in theory attached to the monarch but are now in practice
largely exercised by the government.
They can be used without having to get consent from Parliament.
They include powers to conduct foreign policy, including conducting diplomacy and
deploying the army, to grant honours, and to prorogue (=suspend) Parliament (which
means to end its current session🡪 BBC explains the controversy around the proroguing
of Parliament in 2019.
These powers have often been controversial, as there are limited checks and constraints
on their use by the executive.
Prorogation used controversial: 15e siècle.
1948: P was suspended
Vote of no-confidence 🡪 if the house has no voted confidence, the forty day period end
4 instances mentioned:
- 1628: Charles the First: king wanted to raise taxes, but king was against. The P
resisted. ⇨ he prorogues P and continues to raise customs. A second prorogation a
few years later, bc P was still against. It all ended with the war 🡪 he went against
the idea of democracy
- Clement Atlee: 1948 🡪 prorogued in what was seen as a political move to prevent
H of Lords from stalling nationalization of major industry.
- John Major Parliament: bc there was two members who were corrupted to have
specific Q ask by the opposition and make the gvt look better.
- 2019 : Boris Johnson prorogued P to prevent them from debating on the Brexit,
and the Court says it is unconstitutional : Court was with the P, and against the
exe, which is the first time in English history.
The Cabinet
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Collective responsibility
The Cabinet must be seen as being united ⇨ idea that discussion between the Cabinet has
to stay confidential = in theory
But from time-to-time revelation about the different pov inside the cabinet. And spots
difficulties to the opposition.
GAVIN Williamson was sacked from Theresa May’s cabinet as Defence Secretary after
leaking from a cabinet committee.
•
•
•
•
•
•
•
In 2011, the first (and, thus far, only) edition of a document called the Cabinet Manual
was published initiated by then-Prime Minister Gordon Brown.
It was intended to provide ‘a source of information on the laws, convention and rules
that affect the operation and procedures of the Government.’
it is the only place that some of the most important conventions surrounding the
executive’s functions and powers are set out.
One of these is, for example, the understanding that the Prime Minister is head of the
government by virtue of his or her ability to command the confidence of the House of
Commons.
However, none of the above is set out in statute law and the Cabinet Manual, despite
helping to clarify and explain the UK constitution, is not intended to have legal force.
It describes the role of the government from the perspective of the executive itself.
Furthermore, it has not been reissued since 2011, so some of the information it contains
is now out of date.
The cabinet
• The Cabinet is the most senior, formal decision-making body of
government.
• It is chaired by the Prime Minister and made up of the most senior
ministers.
• The Cabinet is intended to provide a forum for the Prime Minister and
their ministers to discuss and decide together on the government’s
policies and what approach it should take to issues.
• The appointment of ministers takes place under the Royal Prerogative.
• The power of appointment really rests with the Prime Minister.
Cabinet government
Cabinet government refers to a way of governing where the Cabinet debates an issue and
then decides on a collective, unified position.
It rests on a convention referred to as collective cabinet responsibility.
This means that ministers can express their own views on a matter in Cabinet meetings,
but that once a collective decision has been reached, they must support that decision in
public.
The idea is that decisions are based on open discussion and that the Prime Minister is
‘first among equals’.
As the Cabinet Manual explains, ‘collective responsibility allows ministers to express
their views frankly in discussion, in the expectation that they can maintain a united front
once a decision has been reached.’
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Criticisms of modern prime ministers
• It is sometimes said that cabinet government has been weakened by some
Prime Ministers in recent times.
• They have been accused of not properly consulting with their Cabinets or
allowing for a full and proper discussion amongst Cabinet members.
• Tony Blair was accused of conducting ‘sofa government’
• This is where he would discuss important policy issues with particular
ministers or advisers outside of Cabinet meetings.
• Cabinet meetings would then be short with limited discussion of policies
that had largely been agreed elsewhere.
• Blair was accused of governing in a more ‘presidential’ style because of
this. (🡪 which limit the idea of collective responsibility).
• When Gordon Brown succeeded Tony Blair as Prime Minister he promised
‘cabinet government, not sofa government’.
• However, Brown himself admitted that he wasn’t successful in restoring
cabinet government.
• David Cameron made the same pledge, but the coalition government was in
the end dominated by the ‘quad’, who made most of the key decisions.
Collective cabinet responsibility explored
The outward facing aspect of collective responsibility is that all ministers unite publicly
around decisions reached, regardless of their private opinions.
If they are not able to refrain publicly from disagreeing with policy, they are supposed to
resign.
However, collective cabinet responsibility in this sense can sometimes be explicitly set
aside.
This was done by David Cameron in 2016 in the run up to the referendum on the UK’s
membership of the European Union.
Despite the fact that he and his government advocated the UK staying in the EU, he
allowed members of his Cabinet who wanted to dissent from this position in the
referendum campaign without needing to resign.
Some say that collective cabinet responsibility was weakened in the long-term by this
decision, even after Cameron left office.
The premiership of Theresa May in particular was marked by prominent apparent
breaches of collective cabinet responsibility ⇨ very difficult to Theresa may to govern.
May explicit why it was very difficult for her gvt to put to instore Brexit.
Ministers regularly publicly expressed dissent from the government’s Brexit position,
leaks of Cabinet discussions were commonplace, and various ministers publicly
advocated alternative Brexit policies.
This even extended to ministers voting against the government.
Typically, a minister would be expected to resign or be sacked in these circumstances (if
he votes against his on gvt): However, Theresa May often did not take action for such
breaches of cabinet collective responsibility, which in turn encouraged more disloyalty. 🡪
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why didn’t she take actions: because there was an opposition between hard Brexiter and
smooth Brexiters in her party, and she preferred keeping everyone together, than to risk a
reelection.
On becoming Prime Minister, Boris Johnson appointed a Cabinet primarily made up of
people who had supported Brexit or were clearly willing to do so in future, which
avoided some of the problems faced by his predecessors.
In 2018 there were two high profile resignations from Theresa May’s cabinet over Brexit.
These resignations were over government policy on Brexit, the two ministers felt they
had to openly criticise the policy and so their positions became untenable.
Individual ministerial responsibility
Individual ministerial responsibility refers to a constitutional convention according to
which government ministers are ultimately responsible for the actions of their
department.
The convention dictates that if there is a failure in the department, the minister in charge
of that department bears the responsibility, even if the mistake isn’t directly their fault.
The error may have been the result of poor departmental processes or have come from a
civil servant (=fonctionnaire).
Nevertheless, in these situations, it is the minister who must answer for what went
wrong and who would be expected to resign if the failing was serious enough.
For example, then-Chancellor of the Exchequer (minister of the economy) Alistair
Darling had to explain to Parliament in 2007 about the loss of computer disks with vast
amounts of personal information on them, even though he did not lose the disks himself.
Although it is not set out in law, the principle of ministerial accountability to Parliament
is detailed in the Ministerial Code 🡪 adapted for each cabinet.
Matt Hancock resigned as Health Secretary after breaking his own government’s covid
rules
Do ministers always resign? Well, no…
Despite the principle of ministerial responsibility, many ministers do not accept
responsibility when things go wrong in their departments.
Instead, they often claim that they weren’t aware of the issue, or that it was caused by
other individuals or events out of their control.
For example, after the exam results fiasco in 2020, the Secretary of State for education,
Gavin Williamson, refused to resign despite a major failing and subsequent U-turn by his
department.
The most senior civil servant in the department resigned, as did the head of Ofqual, the
exams regulator, but Williamson stayed in the position and did not accept
responsibility. ⇨ he found himself without portfolio.
CONCLUSION:
1. Collective responsibility (that has declined since 2016) rests on
Secrecy/ unanimous support/ confidence
2. Individual responsibility not always enforced as linked to political considerations
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3. Emergence of Prime-Ministerial government at the expense of Cabinet Government 🡪
therefore it is the same idea as saying that the office of the PM has become more
presidential as it used to be. Why that? competing roles of ministers and special advisers.
The role of Parliament and the reform of the House of Lords
Key word: stalled 🡪 stalled process means slow down process, stopped without being
finish.
UK Parliament located in Westminster palace.
To make the separation of power more obvious, the two chambers are separated.
But as we can see on the photo, the room are really small. 🡪
650 MPs1 in the House of Commons (but only around 450 seats)
780 Lords in the House of Lords (only around 400 seats) 🡪 number of lords
fluctuate, because some peers (=lord), when they died are not necessarily renewed. But
also, inflation in the numbers of Lords, because originally every PM suggested a list of
peers to the monarch, which usually accept (also when they live).
Common Chamber : the further back you go in the chamber, the least you agree with
everything that is being said.
The Bar of the House is the name given to a white line across the width of the Chamber
of the House of Commons and to a rail in the House of Lords, marking their boundaries.
MPs are called to the bar of the House of Lords at the Opening of Parliament and to hear
the Royal Assent to Acts of Parliament. They are not allowed beyond this point when the
House is sitting. In the House of Commons, Members of the House of Lords and the
public are not allowed beyond the bar when the House is sitting. 🡪 this line must not be
cross.
Design of the House of Commons Chamber
When the Commons chamber was destroyed by a bomb in 1941, some argued that it
would be a good time to rebuild it with a less adversarial design, making it big enough to
accommodate all 650 MPs. But prime minister Winston Churchill insisted the new
chamber should retain the “intimacy and theatre” of the old one. ⇨ it was rebuilt
exactly as the old one.
At the Hansard society lecture, Bercow said he agreed with Churchill’s arguments,
stressing that there was a problem with the culture of parliamentary debate, not with
the design of the chamber.
Main roles of House of Commons
⮚ Check and challenge the work of the Government (scrutiny)
⮚ Make and change laws (legislation)
⮚ Debate the important issues of the day (debating)
⮚ Check and approve Government spending (budget/taxes)
1
Member of Parliament
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Main roles of House of Lords
⮚ Make laws
⮚ In-depth consideration of public policy 🡪 because they tend to have more time
then the HoC. It does improve the legislation, because they often have a job also,
and they have expertise.
⮚ Hold government to account
The HoL seems very undemocratic, because not elected, but appointed, and a lot of
hereditary. A lot appointed by patronage (=piston).
Which is why there was a reform.
2 aspects of the reform: reform of power, and reform of composition.
REFORM OF POWERS OF THE HOUSE OF LORDS - Parliament ACTS 1911 and 1949
1909 the Conservative-dominated House of Lords rejected the Liberal Government's
‘People's Budget’. (Still today dominated by the conservatives)
1.The Parliament Bill sought to remove the power of the House of Lords to reject money
bills, and to replace the Lords' veto over other public bills with the power of delay. 🡪 no
more veto for the Lords = no more possibility to reject law budget. Power of delay 🡪 to
any bill that is not to do with finance.
Power of delay is saying : “we will not vote”, except that if they don’t vote the
Parliament s blocked.
2.In addition, the bill reduces the maximum duration of a Parliament from seven years to
five.
The Parliament Act was passed by the House of Lords by a 131-114 vote in August 1911.
🡪 quite willing to vote on a reform which diminuate their power.
1949:
Context: Clement Attlee's post-war labour government nationalisation programme.
The labour government feared the Lords would reject this programme.
Labour sought to reduce the Lords' power further, by reducing power of delay awarded
in the 1911 Parliament Act.
The delay was reduced from three sessions over two years to two sessions over one
year) they can delay legislation but no more than one year.
Conclusion:
1911 & 1949 Parliament Acts reduces power of the Lords, The House of Commons
concentrates parliamentary sovereignty.
REFORM OF COMPOSITION OF THE HOUSE OF LORDS A stalled reform which began
centuries ago…
1886 the Commons debate the hereditary right to sit in the Lords.
LIFE PEERAGE ACT 1958
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LIFE PEERS CREATED IN 1958
The Crown has the authority to create life peers (not hereditary peers anymore)
including women members for the first time, the very first being the sociologist
Baroness Wootton of Abinger.
They can sit and vote in the House and their peerages expire on death.
The idea in 1958, it to say : everyone stays here, but your peerage will no longer be
appointed to your heir.
Today, only 92 hereditary peers remain
1978: A committee chaired by Lord Home of the Hirsel proposes a chamber in which
two-thirds of members would ultimately be elected and one-third appointed, but reform
is not pursued.
1997: After the general election, the Labour government announces a bill to remove the
automatic right of hereditary peers to sit and vote in the House as ‘the first stage in a
process of reform’.
1999: The House of Lords Act reduces the number of hereditary peers by more than 600
and freezing the number which remains at 92 until further reform.
2000: The independent House of Lords Appointments Commission is established to
recommend and approve suitable candidates for membership: people’s peers.
Why 92 hereditary peers?
Of the 92, two remain in the House of Lords because they hold royal offices connected
with Parliament: The Earl Marshal and the Lord Great Chamberlain. = two people that
are there to have an active role in maintaining relation of the lower chamber (HoC). It is
hereditary and it is shared between 3 aristocratic family.
Of the remaining ninety peers sitting in the Lords by virtue of a hereditary peerage, 14
were elected by the whole House and 76 were chosen by fellow hereditary peers in the
House of Lords, grouped by party.
🡺 90 peers elected by the HoL, to remain hereditary.
The exclusion of the HoL of other hereditary peers removed royals peers: the Prince of
Wales (who is also Earl of Chester) and the Duke of Edinburgh, Duke of York, Earl of
Wessex, Duke of Gloucester and Duke of Kent
By convention, the archbishops, and bishops are in the HoL. 🡪 may be the next
ones to be excluded if a reform had to come.
Toward an elected chamber… or not?
2007: The Government published its White Paper (=before the bill //rapport du gvt),
The House of Lords: Reform, setting out the policy for a hybrid House of Lords with 50
per cent elected members and 50 per cent appointed members.
2011: Deputy Prime Minister presents Parliament with the House of Lords Reform Draft
Bill. (Coalition government 2010-2015)
2012: The Joint Committee on the Draft House of Lords Reform Bill publishes its report
on 23 April recommending an electoral mandate and that 80 per of members should be
elected and 20 per cent nominated. The House of Lords Reform Bill is introduced in the
Commons on Wednesday 27 June.
26
3 September 2012: Deputy prime minister makes a statement announcing the
withdrawal of the House of Lords Reform Bill.
Why Withdrawal of 2012 Bill?
OPPOSITION FROM CONSERVATIVE MPs (AGAINST D. CAMERON and NICK
CLEGG)
No possibility of having a majority in the house of Commons at the time
Resistance to having a second elected chamber. Why?
Political context: coalition government, a lot of conservative MPs and
few-liberal-democrats, but conservative were very against this reform. We could have
expected the resistance would come from the Lords but not really, it’s mainly the
conservative party which doesn’t want another elected 2nd chamber, because the HoL is
always conservative 🡪 and if the HoL was elected, its majority could become less
conservative.
The House of Lords Reform Act 2014 introduces the principle of resignation from the
House of Lords and allows for the expulsion of members in certain specified
circumstances (prison sentence of one year or more/ non-attendance).
Conclusion: a stalled reform
Today the reform is stalled
Why?
1. Power reform completed
2. No consensus on the way forward for composition reform:
-weight of tradition
- elected second chamber
- abolition
- other suggestions
Devolution in the British Constitution
Key word: Haphazard 🡪 it has developed in a way that is non logical.
Regarder la vidéo du pptx https://cours.sciencespo-toulouse.fr/course/view.php?id=2258
23 nov 2022 : Scottish rfdm, The Supreme Court stated that the fact to do an
independence referendum in Scotland was “ a reserved matter” of the national
Parliament 🡪 Scotland can’t make a referendum on its own.
What is devolution and why is it a constitutional issue?
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Devolution = decentralisation.
Devolution refers to the transfer of certain powers from the central UK government to
nations and regions within the United Kingdom. It can involve the establishment of
legislative assemblies or parliaments and governments or executives within these
sub-state territories.
Devolution is a key feature of the UK constitution: it has meant the establishment of new
political, legislative, and governmental institutions.
The principle of parliamentary ‘sovereignty’ has been conventionally understood as
central to the UK constitution. This means that the Westminster Parliament is supreme
and anything it passes becomes law.
UK: unitary state? Federation??
a ‘unitary state’ because the ultimate decision-making power is located in one central
institution. HOUSE OF COMMONS
devolution has moved the UK away from being a unitary state towards a system that
more resembles the federalism of, for instance, the United States or Germany.
UK now: somewhere in between, even with devolution, UK is still closer to unitary
state. Why: linked to this concept of Parliamentary sovereignty, hey don’t want a
distribution of power, because it has to stay in the hand of parliament.
How did devolution come about?
Devolution is quite recent 🡪 in the labour manifesto : The incoming Labour government
promised referendums on devolution to Scotland and Wales as part of its 1997 election
manifesto.
In Northern Ireland, the establishment of a ‘power-sharing’ government was agreed as
part of the Good Friday Agreement – the peace agreement brokered between the
nationalist and unionist communities to end the longstanding conflict known as ‘the
Troubles’.
Devolution to Scotland, Wales and Northern Ireland was confirmed in all three cases by
referendum (although only by a very small majority in Wales).
**************************************************************
In England devolution remains very limited. Aside from London there are ten English
cities and regions to which some additional powers have been devolved, most of which
also have a directly elected mayor. 🡪 since 1997 : Tony Blair’s gvt = strong local
authority.
Devolution: the challenges
Devolution may have become a firm part of the UK constitution, but it comes with its
own set of challenges and areas of contention.
This is partly down to the PIECEMEAL way OR HAPHAZARD way in which devolution
has been implemented.
Four principal challenges that arise from devolution are:
1. The West Lothian question
2. Uneven/asymmetrical devolution
3. The power of the UK Parliament over the devolved bodies
4. Calls for independence from the United Kingdom
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1. West Lothian Question:
The West Lothian question was named after Tam Dalyell, the former MP for West
Lothian, who famously first raised the question in a debate on devolution to Scotland
and Wales in 1977. Rather than a question, it is a statement. He pointed out an ODDITY
or IMBALANCE.
In Scotland, you have a Scottish assembly, but only Scotland people can be in it.
Health, housing, schools and policing and other policy areas are now devolved to
devolved legislatures.
• SO:
• This has led to situations in which Scottish, Welsh and Northern Irish
MPs get to debate and vote on legislation only affecting England in the
Westminster Parliament, but English MPs have no equivalent say over
the same matters in Scotland, Wales and Northern Ireland.
example of student tuition fees
• In 2003, Tony Blair decided to introduce student tuition fees to English and
Welsh universities for the first time.
• Controversial legislation
• To push tuition fees through he had to rely on Scottish Labour MPs
• The use of Scottish MPs to vote through a law that would only impact upon
non-Scottish students was criticised.
• The official policy of the Labour Party in Scotland, where at the time they were in
government, was to keep university education for Scottish students free.
English Votes for English Laws (EVEL)
• In 2015, the Conservative government introduced ‘English Votes for English Laws’
(EVEL) to address the West Lothian question.
• This change to the House of Commons procedures meant that English MPs would have
to approve England (or England and Wales)-only legislation before it could be voted on
by MPs from the other territories of the UK as well.
• CRITICISMS:
- differentiating between MPs based on where their constituencies were, in effect
creating two levels of representative in the House of Commons.
- not providing for a proper forum for debating specifically English issues.
- SO:
- The procedures were suspended during the coronavirus pandemic and then scrapped
altogether in July 2021.
•
•
The Sewel Convention and the power of the UK Parliament
Doctrine of parliamentary sovereignty:
parliament can override devolved laws, legislate in policy areas that are devolved, and
indeed take powers back.
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•
•
•
•
•
•
SO:
The Sewel Convention established that the UK parliament would ‘not
normally’ legislate in areas that are devolved without the agreement of the devolved
legislatures. = the HoC has given power to devolved assembly, but once they did, they
can’t legislate on areas they give up (but the Parliament can do whatever it wants so, if
they want, they can ignore this convention)
HOWEVER, recently, with BREXIT:
the UK Parliament has been increasingly passing laws without the consent of the
devolved legislatures.
Example:
The controversial UK Internal Market Act 2020 was rejected by all devolved legislatures
but was enacted by the UK Parliament anyway.
Devolution under parliamentary sovereignty
The Scotland and Wales Acts state that the UK Parliament cannot abolish the devolved
institutions without first obtaining approval in the territories involved via a referendum.
Nevertheless, under the doctrine of parliamentary sovereignty, these provisions could in
theory be repealed or replaced.
SO:
This gives UK devolution a weaker basis than, for instance, the territorial systems of
Germany or the United States, where federal and state powers are defined and secured
by constitutional law that cannot so easily be overridden.
Here:
Parliamentary sovereignty is above devolution
Could parts of the UK become independent?
In 2014, INDYREF1 = Independence referendum 1 the pro-Union ‘better together’ side
won the vote by 55-45 per cent.
At the 2021 Holyrood election, the SNP won the most seats. It was one seat short of its
own majority in the Scottish Parliament but has since come to an agreement with the
Scottish Green Party who are also in favour of independence.
However, to legally secede from the Union would require legislation at the UK level to
authorise INDYREF2 = Independence referendum 2.
This highlights that there is no agreed mechanism within the UK constitution through
which a territory might leave the Union.
Scotland might become independent, but not in the next years.
Watch the video of the pptx
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Parliament and the Court
The separation of powers and the Constitutional Reform Act 2005
British constitution
• Not authoritative
• Not entrenched
• Not judiciable
• The British constitution is based on 4 main principles:
• -parliamentary sovereignty
• -the rule of law
The law is made by Parliament so what place is there for the judicial power?
• -parliamentary government
• -constitutional monarchy
• It has been suggested that the British Constitution can be summed up in eight
words: What the Queen in Parliament enacts is law
• Walter Bagehot The English Constitution
Key word: to grapple with a question 🡪 to do not find the answer
Key Question:
🞆 What room is there for separation of powers when a key constitutional
principle is parliamentary sovereignty?
🞆 OR
What is the role of the judicial branch when a key constitutional principle is
parliamentary sovereignty?
🞆 Reminder: with Parliamentary Sovereignty,
UK Constitution not authoritative: no « special » status for Constitutional acts, cases or
conventions
A change was made, to make the role of the judicial branch clearer : Constitutional Act of
2005 (CRA 2005) : the idea was to try to give a little more independence of the judicial
branch. To guarantee the rule of law, judicial independence should be guaranteed.
“An Act to make provision for modifying the office of Lord Chancellor (=minister de la
justice), and to make provision relating to the functions of that office; to establish a
Supreme Court of the United Kingdom, and to abolish the appellate jurisdiction of the
House of Lords (no the same than the HoL 🡪 there were 12 law lords that were member
of this jurisdiction); to make other provision about the judiciary, their appointment
and discipline; and for connected purposes”
A. “For modifying the office of Lord Chancellor,”
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🞆 The Lord Chancellor is one of the most ancient offices of state, dating back many
centuries. The Lord Chancellor is head the Ministry of Justice as the Secretary of
State for Justice: Dominic Raab, Lord Chancellor
🞆 Previously the Lord Chancellor also acted as
-Speaker of the House of Lords
- head of the judiciary: chief of all the judges
- senior judge of the House of Lords in its judicial capacity.
= he cumulated roles in the 3 branches of gvt that are supposed to be independent
according to the separation of powers.
🞆 However now: under the Constitutional Reform Act 2005:
the Lord Chancellor ceased to be the Speaker of the Lords and was replaced by the
Lord Speaker. In addition, the Lord Chief Justice is now head of the judiciary, and the
Lord Chancellor may no longer sit as a judge.
Creation of UK Supreme Court: creation in 2005. (but then 4 years to change in
practice)
October 2009: The Supreme Court replaced the Appellate Committee of the House
of Lords as the highest court in the United Kingdom.
B. “To establish a Supreme Court”
🞆 12 JUSTICES
🞆 The Court hears appeals on arguable points of law of the greatest public
importance, for the whole of the United Kingdom in civil cases, and for England,
Wales, and Northern Ireland in criminal cases.
🞆 it hears cases on devolution matters for Scotland, Northern Ireland and Wales
🞆 The Supreme Court sits in the former Middlesex Guildhall, on the western side of
Parliament Square.
🞆 This new location is highly symbolic of the United Kingdom’s separation of
powers, balancing judiciary, and legislature across the open space of Parliament
Square, with the other two sides occupied by the executive (the Treasury
building) and the church (Westminster Abbey).
C. “To make provision about the judiciary”
The Constitutional Reform Act of 2005 increased independence by ensuring that head of
the Judiciary is a judge: The Lord Chief Justice
Judges are appointed by an independent Judicial Appointments Committee: to make sure
that the judges themselves are independent and don’t suffer pressure. But before 2005,
the judges were appointed by the Lord Chancellor, but he is a political member of the gvt.
*********************************************************************************
Judges are given immunity from prosecution for any acts they carry out in performance
of their judicial function. They also benefit from immunity from being sued for
defamation for the things they say about parties or witnesses in the course of hearing
cases.
UKSC (UK supreme court) and Judicial Review (=contrôle de constitutionnalité, mais
surtout, le droit qu’à la cour de vérifier que l’administration respecte la loi et ne dépasse
pas ses compétences.)
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🞆 Judicial review definition (for the UK): a procedure by which a court can
review an administrative action by a public body. If a citizen thinks a public
official have acted wrongly, he has to report it in front of a judge.
🞆 Ultra vires cases : when officials went beyond their competences.
🞆 Human Rights cases: the courts cannot strike down parliamentary statute (no
« American-style » judicial review) under the HRA,
🞆 BUT they can make a declaration of incompatibility and invite parliament to
reconsider the offending statute.
Creation of UKSC: impact on work of Parliament? YES
🞆 2005 Constitutional reform Act diminished the role of lord chancellor and
removed the most senior judges from the House of lords, so it increased judicial
independence
🞆 Growth of judicial action has had an indirect impact: Parliament and the executive
try to ensure that all legislation complies with HR Act
🞆 Key cases: Parliamentary privileges case, proroguing of Parliament case
Creation of UKSC: impact on work of Parliament? NO
🞆 Physical relocation of UK top court in Middlesex Guilldhall is symbolic but did
not change the legal-constitutional relationship between parliament and the
judiciary
🞆 HR Act gives judges right to issue a « declaration of incompatibility » where an
Act of parliament appears to violate the ECHR but no obligation for parliament
to fall in line with the court rulings (example of prisoners’ right to vote)
Conclusion
Parliamentary sovereignty and supremacy remain
Soft separation of powers
The 2005 CRA does have an impact with Parliament and the executive.
Ex: the prisoner right to vote 🡪 big difference in common law country and civil law
country: in France, prisoners have the rights to vote, but not in UK. But the European
court of human right decided that it was not compatible with the HRA. It took about ten
years to the UK gvt to allow the vote to people in prison for less than a year.
Increase of the power of the Courts, especially for the human rights.
Conclusion class
Uncodified : no written by an unique text
Unentrenched: can be easily modified, it is ever changing.
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Royal prerogative: power divided in two: Executive prerogative: power in the hands of
P, and personal prerogative: in the hands of the monarch.
Challenge: control
Construe: interpret
Conventions:
Self-enforced:
Flexibility: more adaptable to the modern situation 🡪 ex: between the refdm and the
actual Brexit day, a lot of MPs were calling ancient conventions to organize the moving
forward, what to do with the will of the people, once they were adapted.
Ad-hoc: something that is not constitutionalized, that can be made on the spot (//FR :
where only the PR can call a refdm).
Conundrum: puzzle, complex issue no one can read.
Stalled: stalled process means slow down process, stopped without being finish. 🡪
reform of the HoL started, that accelerated in the 20e century, but is now stalled.
Because no consensus of what to do of the remaining hereditary pears, and if it should
be a completely elected chamber?
Haphazard or piecemeal: it has developed in a way that is non logical. The devolved
powers are not the same of the devolved assemblies. Timelines are not the same.
Following the Scottish referendum, more power gave to the Scottish parliament, than of
the other (Northern Ireland, Wales).
Each time there has been a risk of refdm, has followed an act of Parliament to increase
the devolved power: UK doesn’t want Scotland to leave.
To grapple with: to do not find an answer.
•
For or against a codified constitution for the UK
Uncodified
Flexibility
Response of changing circumstances
Pragmatic approach, different thing to be
tried, tested, and developed
Codified C° make it unable to update their
political system in line with changing
attitudes and political realities
More democratic
Each successive generation to influence
the C° through the representative they
elected
Well written to include conventions
Codified
Leaves the political system open to abuse
Powerful gvt could abolish devolved
legislature and repeal the HRA
Few barriers against a gvt rushing
through
Changes often happen in stops and starts
and through gradual, sporadic tweaks
C° isn’t considered as a whole
C° confusing and ambiguous if uncodified
More difficult for citizens to understand
when a gvt is abusing its position
Business of governing harder
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Watch this videos:
https://consoc.org.uk/the-constitution-explained/the-uk-constitution/ (start at 10’10)
https://www.youtube.com/watch?v=hY8nP6Lt8h4
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