Development of the UK constitution

Key themes in development:

- Power used to be centralized in the hands of the monarch

- The main themes of constitutional development have been the transferal of power from
the monarch to parliament and the increase in the rights of citizens.

Beginnings of the UK constitution

- The constitution is thought to begin with the Magna Carta in 1215.

- The Magna Carta was an agreement between King John and his barons to prevent the
abuse of royal power.
- The Magna Carta sets out the principle that no one including the king is above the law
and sets out the right to a fair trial for all free men.
The Bill of Rights

- This was put into law when William III and Mary II took the throne in 1689.
- This law established the idea that the Monarchs power is reliant on the consent of
parliament and set up frequent parliaments, freedom of speech within parliament
(parliamentary privilege) and free elections.

Act of Settlement (1701)

- This stated that only a protestant could become monarch and gave control over the line of
succession to the throne to parliament.
- This was shortly followed by the first of the Acts of Union – Acts that established the
union of Scotland (1707) and Ireland (1801) with England to form Great Britian.
- ~ This was the basis of the UK until the devolution reforms in 1997.

Constitutional Development – Acts of Parliament

Parliament Acts (1911 and 1949) were both put in place to limit the power of the House of
Lords.

- A budget crisis was created in 1909 when the lords rejected Lloyds Georges `Peoples
Budget` which had a substantial tax increase.
- This, therefore, led to the 1911 Parliament Act preventing the Lords from delaying
money bills and prevented them delaying other bills for more than 2 years.
- The 1949 Parliament Act reduced the period for which the House of Lords could delay a
bill to 1 year.
- European Communities Act (1972) was the piece of legislation that entered Britian into
the European Economic Community which would later become the EU. This gave
EEC/EU law precedence over UK law in the case of a conflict. The Brexit process
involves repealing this act.
Nature of The UK consitiution

5 Main Principles of the UK constitution

- Unentrenched – it can be easily changed by a simple act of parliament or even a shift in

convention
- Uncodified – it's not written down in one document and is made up of multiple sources
- Unitary – All power is centralized in the parliament in Westminster. This principle had
been diluted in recent years due to devolution and many scholars now refer to UK having
a union state.
- Parliamentary Sovereignty – idea that parliament is supreme and ultimate authority sits
with it, as representative of the people. No parliament can bind its successor meaning
parliament can repeal any act passed by previous parliament. Parliament is also the
supreme legislative body and legislation can't be changed, struck down or ignored by the
judiciary or the executive.
- Rule of Law – idea that everyone including the government is subject to the law and held
accountable to it. This means that everyone is entitled to a fair trial and that all citizens
are equal under the law and must obey it. -> to work effectively, the judiciary must also
be independent of political interference.

Sources of the UK Constitution

5 Main Sources of the Constitution

- Statute Law – all legislation is created by parliament. Not all laws are considered
constitutional and only those that deal with the nature of politics and government or the
rights of citizens. It's the most important source of the constitution due to the principle of
parliamentary sovereignty. All other sources can be overridden by this law.

Case Study:

The 2005 Constitutional Reform Act created a separate Supreme Court. The 1918
Representation of the People Act which allowed all men and some women to vote.

- Common Law – made up of customs and judicial precedent (when judicial decisions
clarify the meaning of statute or make rulings in the absence of statute) . A lot of
constitutional principles such as the Royal Prerogative are a part of common law.
- Authoritative works – such as Walter Bagehot's `The English Constitution` are
books or written guides to the working of the UK constitution. Although they are
widely respected, they are not legally binding.
- Treaties – agreements signed with other countries.

Case study:
Most important treaties affecting the UK constitution are the treaty that entered Britian
into the EEC in 1972 and the Maastricht Treaty (1992) which established the European
Union.

The UK government recently negotiated a new treaty that allowed the UK to leave the EU
(Brexit).

- Conventions are customs and practices that are accepted as the way of doing things. An
example is that the Prime Minister is the leader of the largest party in parliament.

Constitutional Change since 1997

Constitutional Reform 1997 – 2010

Demand for Reform – came from a broad range of groups who wanted to modernize British
institutions and a growing distrust in traditional institutions. There were also growing demand for
devolution to Scotland and to fix the problems in Northern Ireland. When New Labour came to
power in 1997 under the leadership of Tony Blair they promised wide-ranging constitutional
reforms. -> still debates about whether these reforms went far enough.

Case study:

Scottish Devolution

Northern Irish Relations

House of Lords Reform – the 1999 House of Lords Act reformed the House of Lords to become
a mainly appointed chamber. A case can be made that reforms have done enough but also that
more reform of the House is needed.

House of Lords Act 1999 – removed all 92 hereditary peers and the lords became a mainly
appointed chamber, with peers appointed based on merit as opposed to by birth with the removal
of most hereditary peers.

-> Reforms therefore did enough as the removal of the majority of hereditary peers modernized
the House of Lords and made it a more legitimate and professional body.

- No one party has a majority. An unelected house means that experts can be appointed. E.g.
Lord Norton, a politics professor and constitutional expert.

-> meaning people who can represent underrepresented groups in society can be appointed. E.g.
Lord Bird (ex-homeless man and founder of Big Issue) represents homeless people, a group who
often go unrepresented.
-> Did enough – life peerages means that peers don't have to worry about the election or removal
from office if they make decisions that are unpopular with their party or a small group of
constituents.

-> Life peerages mean that Lords can, therefore, consider the long-term interests of the country.

-> Most reform is needed – there is still 92 hereditary peers which is an idea that is outdated in a
meritocratic society. There are 26 Bishops but no representation but no representation for other
religions. Party leaders still make political appointments to the House of Lords. The House of
Lords remain unelected despite having influence over lawmaking and being able to hold the
government to account.

-> its very large and costly – over 800 peers – making it the second largest legislative chamber in
the world.
- 2017 burns report called for a reduction in the size of the House of Lords and for term limits of
members.

Devolution

Referendums were held in Northern Ireland, Scotland and Wales in 1997 – 8 in which people
voted for powers to be devolved to new regional assemblies.

-> In 1998 the Scotland Act, Northern Ireland Act and Government of Wales Act established the
Scottish Parliament and Welsh Assembly.

-> Growing demand for Scottish independence and a need to unite the unionist and nationalist
parties in Northern Ireland.

-> Devolution did enough. The Good Friday agreement and devolution to the Northern Ireland
Assembly transformed the situation in Northern Ireland. -> until the collapse of the power
sharing agreement in January 2017 the two main parties had been working together.

-> Although there are calls for more devolution to England, when a referendum was held on the
idea of an elected regional assembly for the northeast of England the idea was rejected.

-> More devolution needed: Wales – there have been multiple pieces of legislation devolving
further to Wales since 1998, in 2006, 2014 and 2017. - this increased demand is due to the
imbalance of powers given in 1998 when Wales gained fewer powers than Scotland. The Welsh
Nationalist movement has been growing and demand for further devolution continues.

-> More devolution needed: Scotland – devolution didn’t stem the demand for Scottish
independence -> in 2014 there was a Scottish independence referendum which was only
narrowly won by the unionists. The Scottish National Party are now much more popular and
electorally successful than in 1998. - there has also been further devolution to Scotland in 2016.
-> More devolution needed: Northern Ireland – since the 2016 EU referendum there have been
ongoing discussions over how Brexit will work for Northern Ireland as it shares a border with the
Republic of Ireland (EU member). The Northern Ireland Act 1998 will need to be amended as
part of the Brexit process, causing possible conflict in Ireland.

-> Its argues that more devolution of powers to England is needed – the west Lothian question is
the problem of Scottish MPs being able to vote in the House of Commons on matters that only
affect England whilst English MPs have no say in devolved Scottish Matters.

-> Barnett Formula – determine the amount of funding per head given to each part of the UK and
is out of date as it was devised in 1978 – formula means that Scotland, Wales and Northern
Ireland receives more money per head than England.

-> Human Rights Act – 1998 HRA incoorporated the European Convention on Human Rights
into UK law.

- freedoms contained in the ECHR include the freedoms to life, to a fair trial, of expression and
from discrimination among many others. The ECHR requires states to hold free and fair
elections, abolish the death penalty, preserve family life and give foreigners the same rights as all
citizens in a state.

-> HRA: Supreme Court – means any public body cannot act in a way that would break with the
convention and that the judiciary must make rulings that are compatible with it.

- supreme court can strike down secondary legislation that is incompatible with the HRA, but for
primary legislation they can only issue a ‘Doctrine of Incompatibility’ urging parliament to
change the statute, this is due to the principle of parliamentary sovereignty’.

Human Rights Act did enough – fundamental rights of all British citizens are very clearly laid
out in one easily accessible piece of legislation. There was an 8-fold increase in the number of
human rights cases and claims brought to the high court after the Human Rights Act was passed.

More reform is needed – some conservatives resent the link to the European Court of Human
Rights at Strasbourg and want to replace the HRA with a British Bill of Rights that defines
certain rights more narrowly.

- Despite the HRA, it's possible for the government to restrict the human rights of
individuals. In 2005 the government introduced control orders, allowing authorities to
restrict the movement of suspected terrorists. -> to do this they had to declare an
exemption from Article 5 of the HRA for those who fall under suspicion.

Constitutional Reform Act: Supreme Court

Judicial Reform – 2005 constitutional reform act has three major effects:

- The act separated the government and the judiciary.

 - The act formed a supreme court which seperated parliament from the judiciary.
- The act reformed the appointment process for senior judicial appointments.

-> 2005 – created a separate supreme court as the highest court of appeal in the UK. Before this,
the UKs senior judges sat in the house of lords.

Lord Chancellor

- The act split the powers of the Lord Chancellor into 3 different roles as previously the
holder of this position had been a member of the government, speaker of the House of
Lords and head of the judiciary with the power to appoint judges.
- Now, they are simply a government role with the Lord Speaker presiding over the House
of Lords and the Lord Chief Justice as head of the judiciary.
- These reforms made the judiciary more independent.
Supreme Court

- Formed to replace the law lords as the UKs highest court of appeal.
- This reform separated parliament from the judiciary.

Appointment

- Prior to the reforms, senior judicial appointments were made by the prime minister and
Lord Chancellor, who are political figures.
- The Act established a Judicial Appointments Commision to appoint candidates based
solely on their qualifications and ability.
- The government makes the final decision on appointments, but they must be approved by
the JAC.

Reforms did enough

- There's now a clear separation of the 3 branches of government which prevents abuse of
power.
- Judiciary is physically and constitutionally separate from the executive and legislature
allowing for greater judicial independence strengthening rule of law.

More reform is needed

- The Supreme court is much weaker than its counterparts in most other liberal
democracies (with codified constitutions). It can't strike down legislation as that would
wake or destroy parliament sovereignty.
- The supreme court's composition is not diverse, but neither is the group of well-qualified,
experienced judges from which they must choose their ranks and is a problem in the
judiciary.

Electoral system
- New Labour introduced various forms of proportional representation for elections to the
European Parliament, Scottish Parliament, Welsh and Northern Irish Assemblies.