用戶:Politics Notes on the UK Constitution

Constitution

• Outlines how a country or society is structured.
• Includes laws, rules, and customs that guide the political system.
• Establishes important government institutions.
• Decides who has the power to make decisions.
• Safeguards the fundamental rights of citizens through a Bill of Rights.
• Prevents the government from abusing its power.
• Puts limits on the government through checks and balances.

Codified Constitution (e.g.US)

• A single document that serves as a reference point for how the country functions.
• Can't cover every little detail.
• Instead, it provides a basic framework that other rules can be built upon.
• It's commonly seen in countries that
  • have recently gained independence or
  • have experienced periods of authoritarian rule, war, or occupation.
• The provisions in a codified constitution are usually difficult to change and require special procedures
  • Like a supermajority in the legislature
  • Or approval through a national referendum.
• Hence are often seen as inflexible or rigid.

Uncodified Constitution (e.g. UK)

• Unlike a single document, the constitution in the UK is not contained in one place.
• Instead, it can be found in various sources
• Which is why it's often described as "unwritten,"
  • Although this term can be misleading.
• The constitution in the UK is shaped by Common Law (decisions made by judges)
  • and some provisions can be found in Statute Laws (laws passed by Parliament).
• An Unwritten constitution is generally more flexible
  • because it can evolve and adapt over time without requiring strict procedures for amendment.

UK's Uncodified Constitution

• The UK's constitution can be changed through an Act of Parliament
• Parliament has the ultimate power to make and overturn laws.
• This is known as Parliamentary Sovereignty
  • Where Parliament has legislative supremacy
    • And can pass or repeal any law it wants
      • As long as it is not physically impossible.

Sources of the UK Constitution

Statute Law

• Laws created by Parliament
  • Great Reform Act 1832
  • Human Rights Act 1998
  • House of Lords Act 1999.

Common Law

• Legal principles developed and applied by UK courts.
• Judicial review, where senior judges clarify or establish legal positions
  • In the absence of clear statute laws.
• It also includes customs and precedents that have become legally binding.
• Royal Prerogative
  • Stuff the King used to do but doesn’t do anymore
  • Traditionally included the rights to
    • Appoint ministers and choose the PM
    • Give Royal Assent to Legislation
    • Declare war and negotiate treaties

Conventions

• Rules or norms of behaviour that are considered binding
  • Even though they are not legally enforceable.

Authoritative Works

• Legal and political texts written by experts
  • A Treatise on the Law, Privileges, Proceedings and Usage of Parliament (Erskine May)
  • The English Constitution (Walter Bagehot)

• While they do not have formal legal status
  • they are widely accepted as reference points for understanding the constitution

International Law and Treaties

• The UK was subject to EU Law until December 2020
  • EU laws had a significant influence on UK governance.
• The government's responsibilities under international law, through treaties and conventions
  • Continue to be an important source of constitutional law.

4 Key Principles

Parliamentary Sovereignty

• Cornerstone of the UK Constitution
• Sovereignty: Legal Supremacy
• Westminster is the supreme law-making body
• Constructed around three interconnected propositions
  • Parliament can legislate on any subject it chooses
  • Legislation cannot be overturned by any higher authority
  • No parliament can bind its successors

Rule of Law

• Defines the relationship between the state and its citizens
  • Ensuring that state action is limited and responsible
• According to A.V. Dicey, had 3 main standards
  • No one can be punished without trial
  • No one is above the law, and all are subject to the same justice
  • The general principles of the constitution
    • such as personal freedoms
    • result from judge-made law
    • instead of statute law or executive order

Unitary State

• Although the UK consists of 4 constituent parts
  • England, Scotland, Wales, Northern Ireland
  • It has been a highly centralised state
  • in which legal authority is retained by Parliament
• In a unitary constitution
  • Subnational institutions do not have autonomous powers that are constitutionally protected
  • Regional government may be weak or non-existent
  • Local government has little power

Parliamentary Government Under Constitutional Monarchy

• Constitutional Monarchy
  • A system in which the monarch is the formal head of state
  • But his legal powers are exercised by government ministers
• Parliamentary Government
  • A political system in which government takes place through parliament
  • And in which the executive and legislative branches are fused
• Cabinet government
  • A system in which executive power is vested not in a single individual
  • But in a cabinet whose members operate under the doctrine of collective responsibility
• Prime-Ministerial Government
  • A system in which the PM is the dominant actor
  • And is able to bypass the cabinet

Strengths and Weaknesses of the UK’s constitution

Westminster Model

• A form of government exemplified by the British Political System
  • Parliament is sovereign
  • Executive and Legislature are fused
  • Political power is centralised

Strengths

• Adaptability
  • Evolved gradually in the face of changing circumstances
  • Conservatives tend to view the constitution as an “organic”, Living body of rules
  • Rather than an artificial creation
• Strong government
  • Provides for strong and effective government
  • Doctrine of parliamentary sovereignty dictates that the legislature holds supreme authority
    • but the executive is where day-to-day power resides de facto
  • This is because the process of government is conducted by political parties
    • The cabinet is party based
    • The governing party generally exercises significant control over the legislative process
  • The Government is therefore able to implement most of its political objectives
• Accountability
  • Although it holds considerable power by virtue of its control of the legislature
  • The government is accountable to both parliament and the electorate

Weakness

• Outdated and undemocratic
  • Key elements date back to mediaeval times (Common Law)
  • Hard to justify the hereditary principle in a liberal democratic state (Lords)
• Concentration of Power
  • Power is concentrated dangerously at the centre
  • There are few safeguards against the arbitrary exercise of state power
  • Parliamentary sovereignty and the absence of a codified constitution
    • Mean that even the key tenets of the rule of law are not fully protected
  • A government with a strong majority can force through the legislation
    • Undermining civil liberties+Weakening other institutions
  • Neither local nor subnational government has constitutionally protected status
• Lack of clarity
  • The uncodified nature creates problems of clarity and interpretation
  • It is not always immediately clear where a government has acted unconstitutionally
  • Parliament controlled by the government of the day
    • Is the final arbiter of the constitution
  • The government can even use its control of the legislature
    • to pass new Acts that overturn unfavourable rulings in the courts
    • Making it difficult for citizens to engage with the System

New Labour and Constitutional Reform 1997-2010

Labour emerged victorious from the 1997 GE after promising a program of constitutional reform that was driven by 4 interlocking themes

Modernisation

• The existing institutions like Parliament, the executive branch, and the civil service were seen as outdated and inefficient
• So reforms were proposed to make them more effective and up-to-date.

Democratisation

• The goal was to encourage greater participation in the political process.
• This would be achieved through
  • electoral reform
  • making the voting system fairer
  • and increasing the use of referendums to involve citizens directly in decision-making.

Decentralisation

• Power and decision-making authority would be devolved to new institutions, giving more control to local governments.
• The aim was to enhance the role and influence of local communities in shaping policies and making decisions.

Rights

• The rights of citizens would be strengthened and safeguarded

Area	Reforms
Rights	Human Rights Act 1998: Incorporated the ECHR into UK Law Rights protected by the HRA include: Right to Life Right to Liberty and Personal Security Right to a Fair Trial Respect for Private and Family Life Freedom of Thought and Expression Freedom of Peaceful Assembly and Association Right to Marry and Start a Family Freedom from Torture and Degrading Treatment Freedom from Discrimination The HRA requires the British Government to ensure that legislation is compatible with the ECHR.
	Freedom of Information Act 2000: Gave greater access to information held by public bodies
Devolution	The new system was one of asymmetric devolution
	The Scottish parliament with primary legislative and tax-raising powers
	The Northern Ireland Assembly with primary legislative powers
	The Welsh Assembly with secondary legislative powers
	A directly elected Mayor of London and the London Assembly
	Elected Mayors in some English authorities
	West Lothian Question: "Why should Scottish MPs be able to vote on English matters at Westminster, when English MPs cannot vote on matters devolved to the Scottish Parliament"
Electoral Reform	New electoral systems for devolved assemblies, for the European Parliament and for elected mayors
Parliamentary Reform	All but 92 hereditary peers removed from the Lords (HoL Act 1999)
	Limited reforms to the workings of the House of Commons Changes to the PMQ Working hours of the Commons 2009 Reform of the Commons Committee (chaired by Tony Wright) chars of selected committees to be elected by backbenchers a backbench business committee to determine the business of the Commons for 1 day each week a petitions committee to select issues for debate that have been suggested by the public via e-petitiobs
Judiciary	Constitutional Reform Act 2005
	Supreme Court started work in Oct 2009
	New judicial appointments system
	Changes to the role of the Lord Chancellor

The Conservatives and Constitutional Reform 2010-16

The Coalition and Constitutional Reform 2010-15

Coalition governments inevitably involve a degree of compromise.

Only 5 can be seen as worthy of more detailed consideration.

Fixed-term Parliaments Act 2011

Established a pattern of fixed general elections every 5 yrs.

removed the PM's ability to call an election at an advantageous time.

Scotland Act 2012

Gave the Scottish government the power to vary income tax up or down y 10 pence in the pound and devolved further powers to the Scottish Parliament.

Allowed the Scottish government to borrow up to 2.2B per annum.

Protection of Freedoms Act 2012

Offered citizens greater protection from the state

By putting in place proper scrutiny of the security services and oversight of surveillance and data collection.

House of Lords Reform Act 2014

aimed at halting the inexorable increase in the number of those eligible to sit and vote in the Lords

by giving existing peers the right to retire or resign

it also allowed peers to be removed as a result of serious criminal offences or non-attendance

54 peers had resigned under the terms of the Act by 2016

with a further 4 removed as a result of non-attendance

Wales Act 2014

UKGOV's response to the Silk Commission's recommendations on further devolution to Wales

transferred control of some smaller taxes to devolved institutions in Wales

put in place a mechanism by which devolution of other lower-level taxes could be developed with the approval of Westminster

provided the legal framework required for a Welsh referendum on the partial devolution of income tax

symbolically changed the name of the Welsh executive from the Welsh Assembly Government to the Welsh Government.

The Conservatives and Constitutional Reform, 2015 onwards

"English votes for English Laws"

only English MPs should be allowed to vote on measures identified as affecting only England.

Should the UK adopt a Codified Constitution

Arguments in Favour

provide greater clarity on what is and what is not constitutional

rules governing the political system would be set out in an authoritative document

reducing ambiguities

rights of citizens would be given further constitutional protection

a codified constitution would tackle the centralisation of power by setting limits on the power of the executive and introducing more effective institutional checks and balances

local and subnational governments would enjoy constitutional protection

Arguments Against

it would remove the flexibility and adaptability