Consider fundamental/higher law and two-tier system
Codified vs uncodified constitution
Codified - single document setting out the rules, laws, and ideas behind state governance
- features: authoritative, entrenched, comprehensive
Uncodified - laws, rules, and ideas on state governance that come from multiple different sources - only held by 6 countries
- flexible, easily changed, evolved
Fundamental/higher law - constitutional law that is set above regular statute (legislation) in terms of status
Two-tier system - fundamental law in place above ordinary law eg America, right to bear arms in constitution, each state can then place gun control laws of their own
Statute law
- law derived from Acts of Parliament
- approved by Commons/Lords/monarch
- not all Acts are of constitutional importance as they don’t all have a bearing on relationship between state and people
- eg HRA
Common law
- law derived from general customs or traditions, or the decisions of judges
- judges use judicial review to clarify or establish a legal position where statute law is absent or unclear
- Parliament can overturn a common law precedent with an Act of Parliament
- eg murder - usually around civil liberties or human rights
Conventions
- established norms of political behaviour rooted in past experience rather than law
- not codified or legally enforceable, yet brought together in a single document by 2011 Cabinet Office Manual
- conventions may fall into disuse, however new ones can be established
- eg Gordon Brown declared the UK may not declare war without parliamentary vote
Authoritative works
- long-established legal and political tests that have come to be accepted as the reference points for those wishing to know precisely who can do what under the UK constitution
- no legal status yet hold persuasive authority
- helpful in identifying, interpreting, and understanding the core values of underpinning the constitution
- eg Walter Bagehot’s “the English Constitution” sets out the role of the PM and Cabinet
International law and treaties
- guidelines subscribed to by the UK set out by foreign bodies or nations
- UK unable to always act as it wants, although technically able to exercise parliamentary sovereignty
- 1973-2020 - UK subject to EU law under Treaty of Rome
UK Constitution - key principles
Parliamentary sovereignty - can legislate on anything, cannot be overturned, cannot be bound
Rule of law - no-one punished without trial, no-one above the law, principles of constitution result from judge-made common law
Unitary state - all power in one place, subnational institutions do not have autonomy, regional gov weak/non-existent, local gov has little power
Parliamentary government under a constitutional monarchy (monarch head of state but no legal powers) - gov ministers politically accountable to Parliament, legally accountable to monarch
Strengths and weaknesses of UK constitution
Strengths
- adaptable - can evolve in changing circumstances
- strong government - power with executive majority therefore can implement objectives
- accountability - to Parliament and electorate
Weaknesses
- outdated/undemocratic
- concentration of power - dangerous at centre, forceful, few safeguards against state power
- lack of clarity - not clear whether actions are within constitution
Challenges to parliamentary sovereignty
- European Communities Act 1972 - Parliament subservient to European law
- New Labour’s devolution programme
- referendums - more power to public
- Parliament theoretically/legally sovereign (de jure) yet realistically constrained (de facto) eg want to get reelected
New Labour - constitutional reform
- democratisation - restrict hereditary peers
- decentralisation - devolution
- rights protection - ECHR, FOI
- modernisation
Blair/Brown reform of branches of government
- House of Lords Act 1999 - abolished all but 92 hereditary peers
- Governance of Britain 2010 Green Paper aimed to limit powers of executive to make it more accountable with select committees etc - stalled due to financial crisis
- Constitutional Reform Act 2005 - judicial reform: separated powers of Lord Chancellor and head of the judiciary, created Supreme Court, judges no longer allowed in Lords.
Blair/Brown reform of democracy and participation
- new electoral systems for devolved assemblies, European Parliament, and for elected mayors
- 1998 Jenkins Report recommended replacing FPTP with AV+ - never acted upon
Blair/Brown devolution/decentralisation
- Scottish Parliament with primary legislative and tax-raising powers
- NI Assembly with primary legislative powers
- Welsh Assembly with secondary legislative powers
- directly elected mayor of London and London Assembly
- elected mayors in some English authorities
Blair/Brown reform of rights and liberties
- HRA 1998 incorporated ECHR into UK law
- FOI 2000 gave greater access to information held by public bodies
Constitutional reform since 2010
Rights and judiciary
- Protection of Freedoms Act 2012 - more surveillance and data collection
Devolution
- Scotland Act 2012 - Scotland allowed to vary tax and to borrow up to £2.2bn per annum
- Wales Act 2014 - more devolved powers
Parliamentary reform
- Fixed Term Parliaments Act 2011 - fixed general elections every 5 years
- House of Lords Reform Act 2014 - peers can resign or retire to reduce peers in the Lords
Europe
- Brexit
Devolution in England
Greater London Authority
- strategic responsibility for economic development/transport/planning/policing
- directly elected mayor and London Assembly
- mayor sets budget and determines policy for the authority, as well as overseeing TfL eg 2003 congestion charge
Liverpool
- consolidated transport budget
- local roads network
- council tax precept
Cornwall
- consolidated transport budget-
- business support services
Tees Valley
- UK Shared Prosperity Fund
- public land commission
Scottish Parliament
- 129 MSPs elected via AMS
- financial powers
- eg no tuition fees for Scottish students at Scottish universities, free long-term personal care for the elderly
Senedd
- 60 members elected via AMS
- primary legislative powers
- eg SATs replaced by new national tests, prescription charges abolished
NI Assembly
- 90 members elected via STV
- 1998 Good Friday Agreement - primary legislative powers
- eg lower tuition fees for Northern Irish universities, restructuring of NHS
Impact of Scottish devolution
Clash between Westminster and Scottish Parliament - Gender Recognition Bill 2023
- wanted to reduce age of obtaining gender recognition certificate to 16, remove the need for a medical diagnosis, and reduce the time needed identifying as a different gender
- vetoed by UK government as single-sex spaces would be threatened
- reserved powers - held only by Westminster eg equality, foreign policy, human rights, defence
Conservatives never in power in Scotland or Wales - led to some major party divergence between nations
1997 - Labour 56/72 seats in Scotland, SNP 6/72
2019 - Labour 1/59 seats, SNP 48/59
Impact of NI devolution
- Good Friday Agreement stated nationalists and unionists must govern together, therefore largest party appoints First Minister and second largest party appoints a deputy
- DUP suspended NI Assembly between 2019 and 2023 as they wouldn’t appoint a deputy due to NI Protocol, which created a sea border in the Irish Sea, meaning to sell something in the UK, extensive paperwork must be completed, to prevent a hard border between Northern and Southern Ireland after Brexit
- Sunak established Windsor Framework delegating a Green and Red Lane - DUP accepted therefore NI Assembly resumed
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ECL Topic 1 - Democracy and Participation22
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ECL Topic 2 - Political Parties19
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ECL Topic 3 - Electoral Systems24
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ECL Topic 4 - Voting Behaviour and the Media29
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ECL Topic 5 - Liberalism, Socialism, and Feminism27
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RMO Constitution21
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RMO Parliament11
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RMO PM and Executive15
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RMO Relations between institutions11
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RMO Conservatism9
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EMO Comparative theories16
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EMO Power and developments18
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EMO The state and globalisation15
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EMO Global governance: political and economic20
