The Constitution

1
The Constitution
2
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

3
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.

4
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 system- higher 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

5
Entrenchment and Judicial Review

• Entrenchment
• 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 change- referendums on
  elected Mayors 2012, binding referendum on AV
  2011, devolution 1997/98/2010 (Wales) all have
  impact of embedding changes

• Judicial Review
• 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.
• In this way the meaning of the constitution can
  be clarified or adapted.
• 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.

6
For and against codification UK Constitution

• 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.

• 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.

7
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.

8
Characteristics of UK Constitution

• 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

9
Assessing the UK constitution

• 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 time- peaceful
  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.

• 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.

10
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
  lies- government- 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.

11
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

12
What New Labour achieved

• The Lords1998 Removal of all but 92 hereditary
  peers, Creation of Independent appointments
  commission to vet nominations for new life peers
  including peoples 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

13
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

14
Arguments for devolution

• 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.

15
Arguments against devolution

• Conservatives campaigned 1997 and again the
  referendum against believing it would only lead
  to break up of UK. 48 hrs before 1997 Majors
  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.

16
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

17
Prospects for radical reform?

• For
• 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
• 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
• Introduction of the binding referendum AV and
  also for Scottish independence 2014.
• Continue policy of holding local referendums on
  elected mayors.
• Commitment to implement the Calman Commission
  proposals on greater financial autonomy for
  Scotland.
• November 2012 first elections for elected police
  commissioners.
• 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.

18
Prospects for radical constitution reform

• Against
• As of Jan 2011 of 40 local referendums only 13
  said yes.
• 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.
• 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.
• 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.