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 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 Codified and uncodified

5. 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. Entrenchment and Judicial Review

6. 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. For and against codification UK Constitution

7. 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. Unitary and federal constitutions

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. 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. Assessing the UK constitution

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 Lords:1998 Removal of all but 92 hereditary peers, Creation of Independent appointments commission to vet nominations for new life peers including people’s 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 Major’s 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. • \September 2012 The Information Commissioner has ruled against a government attempt to block attempts to keep secret an internal Whitehall guide to the way senior royals are consulted before legislation introduced to ensure it does not harm their private interests – the application of the controversial veto has been described by constitutional lawyers as a ‘royal nuclear deterrent.

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.