Nature of a constitution
What is a constitution and what roles should it perform? (allocation of power between branches of government, regulate central and devolved bodies, set limits on government activity, outline rights and liberties and identify how amendments to laws are made)
Note Nature of UK constitution focused on role of parliamentary sovereignty, uncodified and entrenched with fusion of government powers.
Consider how far the UK constitution is changing from its uncodified nature through UK’s involvement in EU, impact on parliamentary sovereignty from above (EU), below (devolution and referendums) and also within (executive dominance), and also greater separation of powers in terms of the judicial branch (CRA 205)
Sources of the UK Constitution
- Statute Law – Parliament made approved by Queen in Parliament with Commons being most significant
- Common Law – judicial interpretation of statute made in higher courts and used as precedence in lower courts (Royal Prerogative based on this not statute) – lesser importance as can be amended through statute law
- Convention – Rules governing conduct in government such as Collective and Individual ministerial responsibility – importance as above as can be amended by amended without Parliamentary approval (e.g. Brown and future votes on troops sent into combat)
- EU Law – growing significance as rise in EU influence over areas of legislation (e.g. worker rights and environment). Note precedence over national law see Factortame
- Authoritative Texts – established long term academic work providing basis for conduct of Parliament – see Bagehot on English Constitution and Erskine May’s ‘Parliamentary Bible’. Similar to conventions lacking any legal recourse and including outdated procedures (note voting procedure in Parliament).
Which is the most important? – Traditionally statute law answer due to parliamentary sovereignty, however Treaty of Rome obligations requires EU Law to take precedence, albeit with all member state support (note cases of qualified majority voting on some issues). Ultimate option of withdrawal
Principles of the UK Constitution
2 most important (Dicey’s twin pillars) Parliamentary Sovereignty and Rule of Law but other significant – unitary state, parliamentary government through the fusion of branches of government and growing influence of the EU (third pillar?)
Parliamentary Sovereignty – right to make and unmake any law parliament chooses meaning highest source of legislative and political authority in the land – also not able to bind hands of successors. Note questions of continued unchallenged authority (see above)
Rule of Law – all must abide by the law and equal in eyes of the law (note Blair and allegations of Cash for Honours), law interpretation job of judiciary and not executive and also incarceration only for breach of a specific law. How does this comply with how justice applies in practice and also recent legislation relating to 28 day detention for suspected terrorists?
Have other principles been eroded? devolution (unitary state), greater separation of powers for the judiciary (parliamentary government)?
Characteristics of the UK Constitution
Uncodified (along with Israel and New Zealand) but not fully accurate to unwritten (note questions will) and unentrenched due to the nature of parliamentary sovereignty (note practical embedding of aspects of devolution after devolution through use of referendums, also applies to EU membership after 1975 referendum – note also other pledges on referendums e.g. EU Constitution Euro and Electoral reform).
Arguments for retention of unwritten Constitution
- Tried, tested and durable (no significant constitutional upheaval since 1688 unlike France)
- Clear political leadership through strong government (dealing rapidly with handguns post Dunblane unlike US)
- Flexibility (reflecting social attitudes e.g. Abortion and homosexuality)
- Adequate protection of civil rights and liberties (Common, statue and HRA note Belmarsh detainees)
- Elected politicians hold upper hand over unaccountable judges (e.g. BAE investigation halted by Blair)
- Undemocratic and outdated (continued role of Hereditary Peers)
- Excessive centralisation of power within Westminster and also within the executive (Parliamentary sovereignty and devolution – abolition GLC 1980s)
- Civil rights and liberties too weak (HRA can be abolished and government can derogate e.g. 28 day detention)
- Too ambiguous (complexity leads to ignorance unlike US Constitution)
- Judiciary safeguard against elective dictatorship (US striking down legislation by Supreme Court e.g. Guantanamo Bay)
Is the UK Constitution becoming effectively written with involvement in EU (Maastricht Treaty and Lisbon if ratified seen as EU Constitution in all but name), and adoption of features of written constitution such as a quasi- bill of rights (HRA) and creation of new supreme court? Note potential for full UK Bill of Rights as advocated by Brown and Cameron. But can a UK Constitution ever be entrenched?
Hereditary Peers Act 1999 – note Wetherill Amendment and surviving 92 (Wakeham and Stage 2?) – impact on Lords shifted political balance but more active and determined, still no final solution on membership
Devolution – creation of Asymmetrical devolution Compare primary law making and tax varying powers in Scotland to secondary and budgetary based powers in Wales and Northern Ireland. Also problem of no devolution for England except GLA and directly elected mayors in some towns and cities. Also West Lothian Question. Impact of referendums embedding reform if not theoretically entrenching it (parliamentary sovereignty)
1998 Human Rights Act – incorporated most articles of ECHR into UK Law but allows for executive derogation (e.g. Article 5 and 28 and 42 Day detention) and only declaration of incompatibility and not strike down. Note Tory criticisms of Claimants Charter and over protection for criminals (e.g. Afghanistan Hijackers). However has speeded up justice instead of taking case to Strasburg European Court (NOT EU)
2005 Constitutional Reform Act – Greater separation of powers through new Supreme Court and decoupling roles of Lord Chancellor and creation of Independent Appointments Commission. Note no new powers so is it primarily change of Geography for Supreme Court justices and still executive influence in senior judicial appointments
Note other lesser reforms – Freedom of Information, Electoral Reform for secondary assemblies, PPER Act, changes post 2001 and EU Treaties
Overall have the above fundamentally changed the UK Constitution, modernised and democratised it, been too piecemeal, promoted the case for a fully codified and entrenched constitution or damaged its delicate balance?
Coalition changes – Nick Clegg set up his Freedom campaign to overturn laws restricting personal freedom. Also saw the “bonfire of the quangos” which was an attempt to cut costs but also to remove red tape.
AV referendum in 2011 failed – major blow for Lib Dems.
Proposals for a mainly elected House of Lords – potential opposition from back bench Tory MPs