as govt + politics - uk constitution

A constitution:

• sets out the powers and functions of the three institutions of government (shortened to govt) - the Legislature, Executive + Judiciary, regulates branch relationships + defines the rights of individuals in relation to the state (defines the state-individual relationship

Setting out the powers and functions (makes clear what each can and can't do)...

• stops any one branch from crossing over into the actions of another + limits govt, to make sure that power is not corrupt and illegitimate

Regulates branch relationships (powers of each branch over other branches are clear)...

• no branch can dominate, other than how it is already set out + no branch can become too powerful

Defines state-individual relationship (the rights of citizens are clear)...

• citizens know how they can be protected, and are protected
• govt is limited
• citizens remain sovereign

Hierarchy goes as follows...

1. Statute law - no laws are above Acts of Parliament, however...

EU law takes precendence

2. EU law/treaties - take precedence over domestic law in EU member-states, however...

Statute law can be passed to leave

3. Common law - judges interpretations, but are subject to parliament

4. Conventions - customs, but these can change

5. Authoritative works - advisory documents

General Election - Members of Parliament; Westminster - 650

By-election - occurs if there is no MP; occasional

Devolved Assembly - Assembly Member or Member of Scottish Parliament; Scottish Parliament, Northern Ireland Assembly, Welsh Assembly, London Assembly + City Regions

European Parliament - Member of European Parliament

Local - Council Elections

Flexible - uncodified constitutions tend to be this

• multiple sources; ability to change (though that doesn't always mean it will)

Rigid - codified constitutions tend to be this

• can still be changed; difficult process; set out rules; fear of change exists

Federal - power divided between national (natl) and regional (regl) govts

• examples include Russia, Germany, USA (fed. govt with state govts)

Unitary - natl legislature can create, abolish, etc. all other institutions

• examples include France, UK

Codification - single document

• judiciable; judge protected, subject to legal challenge
• entrenched; difficult to reform (hard to change)
• authoritative; supreme law, binds all
• examples include USA, France, Germany

Uncodification - multiple documents

• not judiciable; not judge protected, nothing is unconstitutional
• not entrenched; can evolve, flexible
• spread authority; many sources, some are more important than others
• examples include UK

a. parliamentary sovereignty (in a unitary state)

b. the rule of law

a. supremacy of statute law - no constitutional court exists; no appeal to a constitutional court can happen; no rival exists; ultimate legal authority (not subordinate to any other body in law)

b. cannot bind it's successors - all laws can be unmade by a future parliament

c. laws can be on any subject - there are no limits on decisions

d. judges can recommend laws for amendment - only if nonconforming to the hra and parliament decides whether to change them

e. right to abolish devolved bodies exist - they're in charge of devolved assemblies

f. voluntarily gave some sovereignty to the eu - can repeal 72 act to end eu membership

g. derives sovereignty from the people

a. all treated equally before and with access to the law

b. no one is above the law, even politicians

c. judiciary must be independent of political interference 

i. parliamentary government - westminster model

ii. constitutional monarchy

iii. pooled sovereignty 

• turnout at elections is low
  • usually around 60%
    • 1997 saw around 70%
    • 2001 saw drops to around 60%
  • elections are held relatively infrequently
    • fixed term (thanks to fixed term parliament act) is five years
  • membership of political parties is low
  • not many people contact their mps

• house of commons has the most power
  • decisions are made in the house of commons; not house of lords
• domination of single party (labour or conservatives)
  • first past the post (most votes = seat)
• discipline from parties is tight/strict
  • whips, ideology, payroll, patronage
• parliament is the location of power BECOMES govt is the location of power
  • executive sovereignty/govt sovereignty
• results in ELECTIVE DICTATORSHIP
  • undermining sovereignty of the house of commons

• parliamentary sovereignty is not absolute
  • cannot act alone
    • public opinion
    • the european union
    • other countries (and international organisations)
    • pressure groups
    • devolved assemblies (welsh assemblies, scottish parliament, london assembly, english city regions, northern ireland assembly)
  • popular sovereignty
    • referendums
    • rights protections
    • elections
      • infrequent
      • 50% - 60% turnout

•  rule of law does not always happen
  • sovereign immunity
  • parliamentary privilege
  • powers of pm via monarch
  • cost of legal process
  • possible bias
  • not all crimes are tried
  • rights can be taken away
• not all are treated equally
  • race, skin colour (race + colour of skin = not the same), gender, etc

statute law - acts of parliament

eu treaties/laws - due to european communities act (1972)

common law - judge made law

conventions - accepted practice

authoritative works

previous system...

• electorate were rarely asked their views
  • 1975, 1979, 1979 - only once was uk wide out of the three
• referenda had no legal standing; could be ignored

reform...

• labour put major constitutional changes to public vote
• changes were not to go ahead without majority endorsement

what issue was it raising?

• state-individual relationship

limitation to reform...

• still no legal status (as parliament is sovereign); used very rarely; sometimes low turnour (exception is scotland, brexit); cannot, however, be realistically ignored

previous system...

• regions run entirely from london
• secretaries of state running scotland, northern ireland and welsh ministries
• mp's sent from nation/constituencies to westminster
• policies imposed on nations - poll tax, council tax

reform...

• new parliaments or assemblies were established in scotland, wales and northern ireland
• each with a government
• powers over different things in scottish parliament, welsh assembly, northern ireland assembly
• assemblies elected by proportional representation

what issue was it raising?

• sets out powers and functions of institutions of governments
• regulates the relationship between these institutions
• powers to citizens
  • local parliament
  • voted on proportionally

limitations of reform

• no english devolution
• dissatisfaction about level of powers in devolved assemblies
  • asymmetrical devolution
• incongruous members of uk cabinet
• no solution to west lothian question

previous system...

• human rights protection could only be guaranteed by applying to european court of human rights (echr)
• uk law could contradict

reform...

• human rights act (1998) incorporated european convention into uk law
• appeals to uk courts
• all legislation had to be compatible with echr

what issue was it raising?

• state-individual relationship

limitations of reform...

• rights limiting laws cannot be struck down by judge - merely defined as incompatible (requiring parliamentary reform)
• can be repealed, not entrenched
• they could do nothing (snoopers charter)
• govts derogate from elements of echr (eg liberty) so protection is limited

previous system...

• house of lords unelected
• rare that a second chamber is based on inheritance
• limitations to what house of lords can do due to parliament acts (revising chamber role)

reform...

• all but 92 hereditary peers were removed (661 removed)
• several subsequent attempts at reform failed to reach agreement in parliament

what issue was it raising?

• state-individual relationship (supremacy/power, too)

limitations of reform...

• still unelected - mostly political appointees
• some hereditaries do actually still remain

previous system...

• no statutory right to know information stowed by any level of govt
• culture of secrecy

reform...

• freedom of information act (2000)
• can request to see information stored
• culture of openness

what issue was it raising?

• branches controlling each other (leg/parliament - exec/govt)
• citizens rights

limitations of reform...

• allows for exemptions (in the name of national security, etc)

previous system...

• senior judges were also part of the legislative branch (law lords, sat in house of lords)
• fusion of powers an issue for accountability (making and interpreting laws)

reform...

• constitutional reform act (2005)
• created the supreme court; senior judges must be separate from other branches

what issue was it raising?

• sets out functions + powers of institutions of govt
• regulates the relationships between institutions

limitations of reform

• supreme court is not a constitutional court that can adjudicate if other branches are compatible with the constitution

previous system...

• lord chancellor was a member of all the branches, including being head of the judiciary
• fusion of powers an issue for accountability
• independence of judiciary compromised

reform...

• constitutional reform act (2005)
• lord chief justice head of the judiciary (senior judge); role of lord chancellor in selection of judges limited to one refusal; appointment by independent judicial appointments committee

what issue was it raising?

• regulates the relationships between those institutions

limitations of reform...

• lord chancellor still involved in appointments; fusion of legislative and executive branch still

previous system...

• political parties (esp the majority - executive/govt) dominate parliament; committees which scrutinise exec. have members chosen by parties; backbenchers had little power in parliament

reform...

• the 'wright reforms'
• chairs of select committes are elected by mp's, not chosen by parties (improves their independence and ability to scrutinise); backbench business committee established and given parliamentary time for debates; public can call for changes in legislation through e-petitions

what issue was it raising?

• sets out powers and functions of institutions of govt; regulates the relationships between those institutions

limitations of reform...

• only chairs elected, not all members (still very high chance of bias)
• other committees (esp public bill committees) not included
• backbench business committee time is limited by the exec/govt
• e-petition threshold very high

previous system...

• exec are the monarch's advisors - several powers are done in monarch's name (or by the monarch) without recourse to parliament - declarations of war, treaties, issuing of passports, dissolution of parliament, appointment of pm, honours, appointments/patronage

reform...

• some now subject to de facto parliamentary approval (eg war) due to convention or otherwise
• royal prerogative may not be used to negate an act of parliament

what issue was it raising?

• sets out the functions and powers of institutions of govt

limitations of reform...

• royal prerogatives still exist; reforms are somewhat symbolic (war is likely if armed forces are already deployed) - conventions are weak to control

previous system...

• date of election (if within five years) is set by the pm
• gave pm campaign advantage - funds, advantageous date

reform...

• fixed term parliaments act (2011)
• term set at five years; early contest only if 2/3rds of mpp's vote for one, exec loses vote of no confidence or new govt is not formed 14 days after general election

what issue was it raising?

• state-individual relationship
• branch power

limitations of reform...

• in effect lenghtened the terms of the exec/govt - previously terms had been 3-4 years

fusion of branches of government in the uk

impact of fusion in the uk

• positive impact
  • close scrutiny, open govt, challenged
• negative impact
  • elective dictatorship - govt dominates parliament (pmq's is poor, govt dominates committees)