Monarchy: Hereditary, only constitutional form now (not absolute power) so this isn’t much a distinction now.
Parliamentary – there is no distinction relationship between executive and the legislature. The executive is chosen from and accountable to the legislature (largest party leader = Prime Minister)
Republic – Separation of power of executive and legislature (elections for Congress and President)
Sovereignty Constitution: this is where constitution is based on sovereignty of parliament
People Constitution: this is where constitution is based on sovereignty of people
British Constitution: old, changed over time, conventions, acts, precedents and traditions make it up. It is Uncodified (not in single document), flexible (can be changed through law-making process, big change? Tradition: referendum) and unitary (Central government makes all the rules for the UK, devolution: naah mate, you still got a BOSS). Rule of law (no one is above the law), monarch: head of government and cannot act independently of government
Main elements:
- Sovereignty reigns: any decision that is made can be overturned – unlimited authority, Non-binding successors (2005, I don’t care this 2008)
- Rule of Law: Everyone is the same in the eyes of the law (ministers etc.), no matter age or gender, everyone knows can know what the law is
- Fusion of power (cabinet makes decision derived from parliament)
Sources of the British Constitution:
- Judicial precedents (similar facts but different rulings)
- Magna Carta
- Major texts (The English Constitution by Bagehot)
- Major statues (Acts of Parliament): these have changed over the years (Welsh Assembly)
- Prerogatives powers from the crown (now put through by ministers), declaration of wars, honours and pardons.
- Laws and Customs of Parliament (procedures it takes). Major text used by Speaker of the House of Commons (non-partisan person who can presides over commons and who can speak: Treaties on Law
- Common and case law (made by judges). Case laws (when no authoritative law or text – relating to subject - is available they make the law based on their knowledge. Judges can decide in areas of uncertainty until the areas are covered
- Constitutional Conventions (binding but have no legal force): Cabinet meetings are kept secret, bill must be signed by sovereign
- EU Law: (Treaty of Rome – original 6 EEC countries, Regulations – laws which do not need to be passed through legislation and Directives – binding law but implemented as best suits the country) Factorame case (EU law primacy over UK law)
- Human Rights Act 1998 (basically a copy of the Euro-Convention on Human Rights but convenience: don’t have to go to ECJ)
Functions:
- Provides legitimacy to branches of government (JEL)
- Sustains freedom and stability
- Limits power
Traditional Powers: Declare war/peace, raise soldiers pay, command soldiers, appoint judges and maintain law and order, appoint ministers – these now given to PM (as opposed to Queen)
Treaty obligations:
EU (UK has given up some sovereignty to high bodies):
- Treaty of Rome (1972)
- SEA (1986)
- Treaty of Maastricht (1993)
These all affect our Constitution (Human Rights Act 1998)
Major Changes
EC Act 1972 – undermined parliamentary sovereignty
Rule of law “challenged” by anti-terror legislation
Unitary state → distribution of powers (devolution)
Major Constitutional Changes
More reform than since WW1, desire to win votes and pressure groups (Charter 88)
Reform of House of Lords – removal of hereditary peers), Human Rights Act 1998, Increased use of referendums, Devolution, Freedom of Information Act, Jenkins report (plans to use more referendums)
Rule of Law – no reason, abide legal rights, everyone subject to it,
Threats to Rule of Law
- Possible lose of trial by jury
- Offical Secrets Act (London in danger, we are not told = could get killed = violation of Law)
- Mi5 and Mi6 activities
- Removal of Trade Union rights (and other traditional rights)
- Civil Service Secrets Act
Protection of Rule of Law
- Tradition
- Stability
- Organisations
- Consent for the Secret Service
Countries need constitutions to provide them with legitimacy and to uplhold the rights of the individual and also show exactly who much power the government has and exactly which ways they are distributed.
Constitutions have value because thy provide countries with a fresh start (after defeat, or victory in case of a civil war) and they uphold the rights of all the citizens.
Britain has a unitary system of government, it is centralised and all the laws that are passed in House of Commons cannot be denied by any part of the devolved governments and apply to all parts of the UK.
Main principles of UK Constitution: Sovereignty (highest law making body, no parliament is subject to its successor. Rule of Law (everyone equal, none punished for arbitrary reasons . The fusion of powers.
UK has a weak form of judicial review (the courts can say if they’ve acted beyond their powers but not over turn)
Parliamentary Sovereignty:
- Key concept in all constitutions because It defines where location of supreme power is
- Parliaments is the UK’s supreme law-making body
- Has legal sovereignty abolish amend and make any law
- J.S.Mill: “Parliament can do anything except turn man into woman”
- No Parliament binds it’s successors
Parliament is not politically sovereign. It has legal right but not political ability. Pressure groups, public view, major trading partners, International bodies such as the EU all have constraints on political soverengty.
Increase in referendums: shift from parliamentary sovereignty to popular sovereignty
May not be legally sovereign: EU Law supersedes UK Law
- As it is unwritten it is flexible and easy to change;
- It is a reasonably quick process to introduce an Act of Parliament .
- It is seen as relevant and up to date as it ‘adapts and responds’ to changing political and social circumstances.
- E.g. Devolution a response to increased nationalism.
- Supreme constitutional power is vested, ultimately, in the elected House of Commons. Changes therefore usually arise through democratic pressure.
Effective Government
- Given the absence of a ‘written constitution’, government decisions that are backed by Parliament cannot be overturned by the judiciary.
- The concentration of power in the hands of the executive within the parliamentary system allows UK governments to take strong & decisive action.
- E.G. Atlee Govt 1945 – 1951 established the NHS, introduced comprehensive national insurance, nationalised key industries: railways, coal, steel, electricity
- Thatcher Govt 1979 – 1990: introduced privatisation, reformed welfare state.
- History and Tradition:
- Argument associated with conservative thinkers.
- Constitution based on customs and traditions links past and present generations.
- Given the role of common law and conventions, the UK constitution has developed and grown over time, giving it an ‘organic’ character.
- It has historical authority as it has been tried and tested and therefore ‘shown to work’.
Criticisms of Constitutions:
- It is sometimes difficult to know what the constitution says.
- Confusion arises over unwritten elements such as ministerial responsibility and hung parliament
Elective Dictatorship: Once elected UK governments can more or less do as they please (that is, act as dictators) until they come up for re-election (sovereignty is in parliament which the government of the day controls)
Over centralised system of government with weak/ineffective checks and balances because;
- Prime Minister dominates the cabinet
- The House of Commons is more powerful than the House of Lords (Elective Dictatorship – weak arse checks and balances)
- The Executive usually controls Parliament/Commons
- Central government controls local government
Weak protection of Rights:
- The UK constitution provides weak protection for individual rights and civil liberties.
- Except for elections there is nothing that forces the government to respect individual freedom and basic rights.
- The Human Rights Act (1998) has gone some way to redress this but it stops well short of being an entrenched (fixed) bill of rights as its provisions could be set aside by Parliament, as has occurred, for instance, over terrorism.
Blair’s Reforms: lost interest as they had so much power they didn’t want to give it away. Piecemeal solutions to problems. Not enough parliamentary reform.
Browns Planned Reforms: Give MPs power to decide whether to wage war, Setting up national security council, Parliament to ratify international treaties, Commons committees for each English region, New ministerial code, PM no longer to choose Church of England bishops, Elections moving from Thursday’s to weekends, MPs to hold hearings on key public appointments, People to be consulted on possible 'bill of rights', Potential lowering of voting age to 16
The Judiciary - The judiciary is the branch of government that is responsible for deciding legal disputes and which presides over the court system.
Separation of Powers – each key function should be carried out by independent branches (comes from Liberal fear of power corrupting):
Make Law – Legislature
Implement/Execute Law – Executive
Interpret Law – Judiciary
Makes sure that power is checked power – fragments power and makes sure tyranny doesn’t happen
Checks and Balances – Liberal fear; government must be constrained, “liberty is power cut into pieces” - government must be at war with itself to make sure that it can’t wage war against it’s citizens.
- Examples: Separation of Powers, Bicameralism, Parliamentary government (ability to vote out), Judicial independence, devolution/federalism
What is the role of the judiciary?
- Presides over court hearings, direct verdicts, give legal background to jury, make sure it’s a fair trial
- Sentecning – decreased because of mandatory sentences,
- Determine Common Law
- Define and interpret law (Acts of Parliament)
- Public Enquiries: don’t work well enough because they come into contact with ministers which could affect sentences; David Kelly and Hutton Enquiry.
Constitutional Reform Act 2005
- Judicial Independence: Ministers are barred from influencing judges, Must respect that judiciary must be independent
- The Act reforms the post of Lord Chancellor, transferring his judicial functions to President of the Courts of England and Wales (responsible for training, guidance, deployment of judged and be their voice.
- Supreme Court – own budget, separate from House of Lords
- Judicial Appointments Commission: The Act will establish an independent Commission, responsible for selecting candidates for judicial appointment to the Secretary of State for Constitutional Affairs.
Supreme Court:
- hears cases with public importance/arguable points of law
- Final court of appeal in England, Wales and Northern Ireland
- Hear appeals of criminal cases in England, Wales and Northern Ireland
- Members: Those from House of Lords, when someone dies = Selection Committee
Judiciary
‘The judiciary is out of touch with the public, says poll.’
Function of Judges:
- Interpret laws (precedent)
- Review government actions
- Participate in legislature
- Public profile (Public enquiries)
- European law
Criminal cases: punished by law
Civil cases: disagreements between people
The complexity, value and public aspect of a case depend which court it goes to
Lord Chancellor responsible for all management of UK courts
Tribunals – act independently, specific issues: transport and employment (unfair dismissal)
County court:
- Handles all uncomplicated civil law proceedings in England, Wales and Northern Ireland.
- Scottish equivalent is the sheriff court.
- Civil cases include personal injury, breach of contract concerning goods or property, family issues such as divorce or adoption and the repossession of houses.
- Bailiffs attached to each court can enforce orders / seek to collect money if a judgment has not been paid.
High court:
- handles civil cases not dealt with by High Court (more complex cases)
- Court of Session in Scotland
- Three divisions: Family, Chancery and Queen’s bench
Court of Appeal – Civil Decision: appeal on law only,
Magistrates Court
- Majority = less serious criminal cases. Minor theft or shoplifting.
- Trial without jury,
- Bench of magistrates - not professional judges.
- Some cases presided over by a district judge.
- Cannot normally order sentences of imprisonment exceeding six months / fines exceeding £5,000.
- Offenders may be committed to the crown court if a more severe sentence is thought necessary.
Crown Court
- Decides more serious criminal offences.
- Only one crown court but it has 78 centres across England and Wales.
- Murder, rape and robbery.
- Hears the appeals of decisions of magistrate’s courts.
- Trial before a judge and jury.
- Prosecution has the burden of proof – innocent till proven guilty
- “Beyond reasonable doubt.”
Criminal division of the court of appeal – matters of fact/law – appeals from Crown Court
House of Lords
- Final appeals court on points of law
- For the whole of the UK in civil cases.
- For England, Wales and Northern Ireland in criminal cases.
- Work carried out by Law Lords
- Lord Chancellor and the 12 Lords of Appeal.
European Court of Justice: can intervene and abide by its rulings
Human Rights Act 1998
Stems from Universal declaration of Human Rights 1948
• Public authorities must act in a way that is compatible with ECHR
• Those who think their rights have been infringed may raise complaints in any existing procedure or may start proceedings under the HRA
• All legislation must be interpreted in a manner compatible with the Convention if this is possible or a ‘declaration of incompatibility’ will be issued
• New legislation must be declared HRA compatible or it must be explained why not
• Domestic courts must take account of case law from ECtHR.
Torture, Inhuman and degrading treatment – An Absolute Right
Liberty – Non absolute (A limited right)
Expression – Non absolute (A Qualified right)
Family & private life – Non absolute ( A Qualified right)
An interference with the right may be permissible if:
- Lawful
- Legitimate aim
- Necessary in a democratic society
- Proportionate – don’t use a sledgehammer to crack a nut
Equality and Human Rights Commission – set up 2007 (many thought it should be set up in 1998) promotes equality
Civil Liberties:
Freedoms given to liberties
Private sphere of existence – belongs to citizen not state – influence from government
They overlap with HR, include freedom of religion, speech, experession.
HRA increased number of cases and willingness of judges and terrorism legislation. (more conflict between judges and executive).
Labour Strengthened our CLs: HRA, FIOA, Right of Way – Freedom of Country Side
Labour weakened: anti-terrorism legislation, detention of asylum seekers, ASBOs (limiting movement) and absence of jury in cases, ID cards
Terrorism Act 2000 – restrictions of individuals who couldn’t be deported
Anti-terror, crime and security Act 2001 - detention without trial for foreign nationals (incompatible with the HRA but passed and the replaced by 2005 Act)
The Terrorism Act 2005 – increased power to deport people from UK who were considered to be promoting terrorism.
Functions of Parliament: legitimating, pass laws and govern, in reaility: executive dominance: representations of constituents, scrutiny of executive, law-making, deliberation.
HOC: elected, lower but in reality higher because it’s elected, sovereignty, 659 → 646: 1. Legislation, Scrutiny and deliberation
HOL: 731 (613 life), traditionally superior, average attendance: 415, imbalance: cons less
Passing bills:
- Public Bills – sponsored by government or backbench MPs
- Private Bills – private businesses, local authorities, other organisations; not usually passed
- Private Member’s Bills – introduced by an MP often as a consequence of lobbying with pressure groups/constituency
Scrutiny through:
- Examine government and legislation as it passes through the House
- Investigate workings of executive after enquiries are made
- A system of committees:
- Standing Committees – examine bills at committee stage. Permanent.
- Select Committees – purpose to examine the work of the government departments (rotation system). Able to make recommendations – executive can ignore reports. Lack resources and money. Ad hoc.
- Greater significance since 1997
Deliberation through:
- Government policy
- Influence of the opposition?
- Questioning Ministers and PM
- Question Time – constituency/national
- Prime Minister’s Question Time (1994 Cash for Questions – the Nolan Report and the Downey Report)
House of Lords:
- 4 distinct areas of work:
- Legislation All Bills (except money) must pass through the Lords.
- Any bill put to the Lords in 2 successive sessions becomes law.
- Clashes with government policy over:
- Foxhunting
- Homosexual rights
- Higher education
- Scrutiny
- Legislation from House of Commons
- Limited form of Question Time
- Deliberation
-
High quality debates
- More time
- Not restricted in party political sense
- Judicial
- Final court of appeal
- Law Lords will be transferred to the Supreme Court
- Weaker legislative powers.
- 1949 – Parliament Act = power to delay non-financial legislation for one year.
-
Salisbury Doctrine
Type of Lords – Law Lords Hereditary Life Spiritual People’s
Wakeham Report: HOL; less lords, elected minority, remove heridatry peers, hold them accountable (15 years)
Both houses: unrepresentative. UK GOV: imbalanced, bicameral, party system, checks and balances.