(5)What is a constitution?

A constitution is primarily a set of rules specifying how a country should be

governed.
Matters such as those listed below are usually contained in a constitution:
• Elections — how they are conducted
• The relationship between the executive, legislative and judicial parts of government.
For example, it is usual to set out exactly what powers the prime minister/president has,
and how they can be checked or removed
• Usually a statement as to where sovereignty (final power) lies. In the case of the
USA, it lies with the people
• Ways in which the constitution can be changed
• Often, lists of what rights citizens have. In the case of the USA, the first 10
amendments (changes) to the constitution are known as the Bill of Rights, which
guarantees freedoms such as the right to a proper trial
• The overall type of government. The American constitution specifies that it will be
both a democratic and a federal system

(5)What is a codified constitution?

A codified constitution is the one where the laws, rules and practices specifying how a
state should be governed are laid out and entrenched in a single constitutional document.
Everything is written in such a constitution and everything is made clear as to what powers
the president or prime minister has, how he or she can be removed, the president's
relationship with the legislative body (parliament) and what are the basic citizens rights in
that country. It is hard to change such constitution. Examples of such constitutions are
those in France and the USA.

(5)What is an uncodified constitution?

An uncodified constitution is the one where the laws, rules and principles specifying how
a state is to be governed are not set out and not entrenched in a single document, but is
found in a variety of sources. What powers the president or prime minister has, how he or
she can be removed, the president's relationship with the legislative body (parliament) and
what are the basic citizens rights in that country can be found in such sources of the
constitution as royal prerogatives, conventions, common law, statute law, authoritative
works and the EU law. Such type of constitution can be changed more easily as compared
to a codified one. Examples of such constitutions exist in countries as the UK, Israel and
New Zealand.

(5)Distinguish between codified and uncodified constitution.

A codified constitution is the one where the laws, rules and practices specifying how a
state should be governed are laid out and entrenched in a single constitutional document.
Everything is written in such a constitution and everything is made clear as to what powers
the president or prime minister has, how he or she can be removed, the president's
relationship with the legislative body (parliament) and what are the basic citizens rights in
that country. It is hard to change such constitution. Examples of such constitutions are
those in France and the USA.
An uncodified constitution is the one where the laws, rules and principles specifying how
a state is to be governed are not set out and not entrenched in a single document, but is
found in a variety of sources such as royal prerogatives, conventions, common law, statute
law, authoritative works and the EU law. Such type of constitution can be changed more
easily as compared to a codified one. Examples of such constitutions exist in countries as
the UK, Israel and New Zealand.

(5) Define sovereignty.

Sovereignty means ultimate power and authority in a system. The sovereign power is a
final decision-maker, which cannot be overruled by anyone. Parliamentary sovereignty is
where sovereignty (absolute power) lies with parliament. In theory this means that
parliament can do anything, except bind its successor. It cannot be overruled. It can pass a
law making it compulsory for everyone to wear seat belts in cars, for example. However,
membership of the EU has restricted parliamentary sovereignty, as decisions in some areas
have gone to the EU.
(10)(15) What are the main sources of the UK constitution?

ROYAL PREROGATIVES - These were the powers that medieval monarchs had, before the
days of parliament. They included the powers:
• To declare war or make peace
• To command armies and appoint generals to fight with the monarch
• To appoint ministers
• To raise the money to pay soldiers
• To appoint judges and maintain law and order
These were the powers that it was felt necessary for a monarch to have to defend his or her
people and ensure their well-being. Over the centuries they have passed from monarch to
prime minister. Tony Blair might have informed the queen that he was sending 'her' troops
into Kosovo, but he certainly would not have consulted her.
Here are some further examples of the traditional royal prerogative being used by the
prime minister:
• Margaret Thatcher's decision to send troops to the Falklands
• John Major's negotiation of the Maastricht Treaty
• Tony Blair's decision about the date of the general election in 2001
• Tony Blair's decision to reshuffle his cabinet entirely after winning the general election
of 2001: For example, he removed Robin Cook from the role of foreign secretary and
made him leader of the House-of Commons

CONVENTIONS
The best definition of a convention is that it is an unwritten rule or custom, which is
known to all, accepted by all, and followed by all.
'Ministerial responsibility' is a good example of this. There is no law which lays down that
a minister is responsible for everything his or her department does, but all ministers accept
it. A further part of this convention is that if a minister makes a major error of judgement,
then that minister will resign. A good example of this is that when Peter Mandelson,
secretary of state for trade and industry, was discovered to have 'forgotten' to declare the
loan of a large sum of money from another minister to buy a house, he resigned.

Other examples of important constitutional conventions are:

• Collective responsibility, is taken, where the whole-cabinet accepts responsibility for,
and supports in public, a decision made by any member of the cabinet.
• The monarch accepts the advice of the prime minister.
• The monarch always signs bills that are agreed by both Houses of Parliament
• It has now become a convention that major changes to the constitution, such as
devolution, will be put to a referendum before parliament acts on them.

COMMON LAW
This is law based on the rulings made by judges when dealing with cases where there is no
clear statute law. It was a judge who ruled that suspects had a right of silence in criminal
cases. It was another judge who ruled in the 1770s that slavery could not exist in Britain.
Many of these rulings by judges gave British citizens the rights that are normally laid
down in written constitutions. Their decisions became part of the rules that affect the way
in which the UK is governed.

STATUTE LAW
This is law passed by both Houses of Parliament and signed by the monarch. As early as
1500 everyone accepted that this was the supreme form of law and could overrule, for
example, the wishes of the monarch or a custom that had been around for centuries. The
courts, the police and the government must enforce this type of law, which is known as an
act of parliament when agreed by all three parts of parliament: the Commons, the Lords
and the monarch. A large number of acts play a very important part in making up the
constitution. Examples are:
• The Mutiny Act, which gives military officers the right to give orders to and discipline
soldiers
• The Parliament Act, which rules that there has to be a general election at least every five
years
• The Human Rights Act, which guarantees many basic freedoms
Everyone must obey all of these acts, many of which are normally written into the
constitutions of other countries.

WRITTEN WORKS BY CONSTITUTIONAL EXPERS

These are books by accepted experts on the constitution, or parts of it. Very often they
simply contain what everyone knows is supposed to happen, but they do it in a clear form
so that newcomers to politics and government can actually read "the constitution'.
A good example of this is Bagehot's -The British Constitution, written in the last part of
the nineteenth century. He describes clearly what the role of the cabinet, parliament and
the monarch then was. What he did was put on paper what everyone knew was right in
practice. Other important texts are Erskine May's Parliamentary Practice, which explains
how parliament works, and Dicey's Study .of the Law of the Constitution, which analyses
in depth such areas as the exact relationship between judges and the government.

MEMBERSHIP OF INTERNATIONAL ORGANISATIONS SUCH AS THE EUROPEAN UNION

Membership of the EU has also altered the British constitution. When we joined it, we
accepted that some of the rules by which we are governed would now be made in Brussels.
We agreed to give up our sovereignty in specified areas in order to gain the benefits of
membership of this 'club'.
In the past, we accepted that the British Parliament was sovereign in all matters. Then, by
passing a statute law, parliament changed the British constitution to give the EU some
powers to make rules that bind all British citizens. The EU now decides the size of lorries
allowed on our roads, for example. Other European countries, such as Ireland, can only
change their constitution by a referendum in which all the people of that country are
consulted, while in the UK the constitution can be changed just by passing an act of
parliament.
(15) Where does sovereignty reside within the UK system?
(15) In what ways is Parliament sovereign?
(30) To what extent are there limits on Parliamentary Sovereignty?
(30) To what extent has Parliament lost sovereignty?

There is a lot of debate going on about parliamentary sovereignty.

Firstly it has been suggested that parliament has lost sovereignty since the UK joined the
EU. Now the EU law is above national law. It was really well demonstrated in 1990 in
the Factortame Case. The European Court of Justice ruled that Parliament does indeed
have the right to suspend Acts of Parliament. So Britain was forced to change the law.
From that perspective, parliament lost sovereignty to the EU, as EU now controls very
important policy areas such as agriculture. However some argue that Britain didn’t really
lost sovereignty, it is just sharing it with EU and can withdraw at any time but not without
constitutional and political consequence.
Besides that, parliamentary sovereignty has been also limited by such international
organisations as NATO, UN and WTO. However, it should be mentioned that
Britain has not lost as much sovereignty as with EU, because there are no legal binding.
Nevertheless, according to WTO if there are any not very appropriate actions or breaking
the law or any agreements then sanctions and fines can be imposed on Britain. Moreover,
countries might be refusing to accept British goods and this could lead to the UK’s
economy suffering.
It has been also assumed that by transferring some powers to the devolved institutions
in Scotland, Wales and Northern Ireland, Britain has lost some sovereignty as
well. Now Britain has no say over some policy areas in these devolved institutions.
However from the other side of the coin, Britain just granted these institutions with powers
and Westminster Parliament can take it as easily back as it gave. It can also reduce some
powers or even suspend. For example, as it happened with Northern Ireland- with
Stormont Parliament- when it was suspended and the powers were taken back by
Westminster. So in reality they have control over these devolved powers, but nevertheless
if it suddenly decides to take all the powers back some constitutional and political
consequences might arise.
Another point to consider is that limit on parliamentary sovereignty is because of the
dominance of the executive over legislature. Nowadays Prime Ministers is
experiencing too much powers, he has too much control. There is also whipping
systems as well as the majority in the Houses of Commons which undoubtedly helps him.
What is more and maybe even more importantly powers of the PM such as Royal
Prerogatives also limit sovereignty. So maybe it is not the question whether sovereignty
was transferred to the EU or to different international organisations. Maybe we should
consider the question whether sovereignty lies in the hand of the prime minister. He alone
today can decide whether to go to war, whether to send troops to Iraq or whether to
negotiate with kidnappers or no. And it is not only Tony Blair; there are all those other
prime ministers who had all these powers in their hands. It was Margaret Thatcher who
decided to go to Falklands War.
So we could argue that maybe Tony Benn is right when proposing that Royal Prerogatives
must not be given into the hand of the PM. It is also a debatable issue.
However we could also argue that maybe the question is not whether parliament has lost
its sovereignty, maybe the question is whether it had it before.
Furthermore, another constrains are referendums. We live in Britain that is a
representative democracy. Citizens elect representatives to make decision on their behalf.
But why there are those referendums then? So is it really a representative democracy if
politicians ask people what they want? It is as well debatable issue. Interestingly, despite
the fact that government holds referendums sometimes they are not binding. If government
didn’t like the result it can hold referendum next year until they finally get the desirable
result. For example, the best illustration of this case is the recent referendum that was held
in North East. 78% of those who voted were against devolution. However it does not
necessarily mean that there will be no referendum next year or the year after next year.
What is more, since Britain signed the ECHR (that is not related to the EU) now this has
to be also considered when making any conclusions. In theory, British law has to be
compatible with ECHR. However in reality it could derogate from Article 5. For example,
David Blunket said to put prisoners to Belmont prison without a trial which is against the
convention. However this does not mean that Britain must not consider ECHR. It must
take into account what is written in this convention, otherwise a lot pf problems may arise.
So we could argue that in theory yes, ECHR have to be compatible with British law, but it
is hard to make a certain conclusion because of the current situation we live in.
In the conclusion it is worth mentioning the fact, it is really debatable whether Britain has
lost its sovereignty, whether it had it before or whether parliament still remains sovereign.
Some reading
Parliamentary Sovereignty

A. Legal Definition

o Legal sovereignty is the 'supreme and unrestricted power residing in an individual or group
of people or body’.
o Sovereignty belongs to an institution which has no superior body to override it.
o In Britain, sovereignty is vested in the Crown in Parliament, i.e. ‘the Commons, Lords and
Monarch assembled’. The three elements of the British parliament no longer have to
physically assemble to pass a law but each body must approve all laws.
o In other countries a codified constitution has supremacy over law made by elected
assemblies. In the USA laws banning the burning of the American flag were overruled by the
Supreme Court on the grounds that they restricted the constitutionally guaranteed right of free
speech.
o The traditional implications are that no parliament can bind a successor – so future
parliaments, representing the will of the people, can change the law - and no court can
overrule parliament.

B. Parliamentary Sovereignty : A Political Definition

o ‘Parliamentary’ sovereignty is misleading in that the really sovereign body in the UK is

the government or executive. First, the monarchy is predominantly a symbolic office with no
day-to-day power. The monarch does need to agree to laws but this is a formality – the last
time a monarch refused was in 1709. The monarch’s prerogative powers are exercised by the
Prime Minister or another minister. Second, the Lords are unelected and lack legitimacy. Its
powers are limited and laws can be passed despite the opposition of the Lords – most recently
the lowering of the homosexual age of consent. Third, the House of Commons is dominated by
the majority party – even though the leading party usually has less than 50% of the popular
votes – and the majority party is dominated by its leadership – the Cabinet. Lord Hailsham
called this system an elective dictatorship. Others – like Tony Benn – have gone further, to
suggest that the Cabinet is dominated by the Prime Minister.
o A second aspect of a political definition points out that while ‘parliament’ is legally all-
powerful it is not practically all-powerful. In theory, no parliament binds or limits a
successor, but in practice it must. For example, the parliament which gave India its
independence in 1947 restricted what future parliaments could do.
o Nor can governments pass any laws they like because they face numerous political
obstacles, especially the need to keep popular support and win the next election. So, while
Mrs Thatcher’s government did pass a highly unpopular poll tax, it cost Mrs Thatcher her job
and her successor abolished the tax. Governments cannot just force laws through – the
Opposition in parliament, the DSCs, questions in parliament, the fact that parties are broad
coalitions and need carefully managing, the media and the mass of pressure groups – may all
provide obstacles.
o Thirdly, international factors restrict what individual states can decide for themselves.
For example, those favouring an integrated EU suggest that individual European nations
are too small to cope with the needs of society in the age of modern technology. The EU is a
wider political body that can do things that individual states can no longer do separately. In
particular, Europe needs to compete with the USA and the Pacific Rim countries and if this
means that significant national independence is lost, then the benefits outweigh this.
o It might be said that the whole concept of national sovereignty is old-fashioned. Britain
has joined many organisations where it has given up its ability to decide for itself, e.g. NATO,
GATT, and IMF.

C. Sovereignty and the EU

o The principle of parliamentary sovereignty has been dramatically affected because of Britain’s
membership of the EU:
 Some laws made in Europe are directly applicable in Britain and have to be
applied by British courts. The most significant confirmation of this principle was
 the 1991 Factortame case when the European Court ruled that the 1988 Merchant
Shipping Act was in breach of European law by preventing Spanish owned
trawler companies from registering in Britain to take advantage of the British
fishing quota under the terms of the Common Fisheries Policy. As a result of this
decision, the British Government repealed the offending portions of the Act.
 In areas covered by the European treaties, the British Parliament cannot pass laws
which contradict European laws.
 In case of dispute Britain must accept decisions of the European Court of Justice.
Over the years rulings of the European Court of Justice (ECJ) have impacted
on Britain in a variety of areas including, for example, fishing rights, breaches of
EU law, anti-terrorism laws, pension age and employment rights and the sale by
supermarkets and discount stores of designer goods imported into Europe without
the brand owners' consent. It is not the case that the Court's rulings always go
against the British. For example, it was following a ruling of the Court that Italy
was obliged to reduce taxes imposed on luxury cars, taxes that were estimated to
have been costing Britain some £80 million annually in lost exports

o In theory, this strangeness of the British constitution means that Parliamentary supremacy and
the primacy of European law in the areas covered by the European Treaties are
fundamentally incompatible.

o Yet in reality such an acute constitutional difficulty is unlikely to arise as long as the
Government of the day with the support of a majority in the House of Commons values continued
British membership.

o Since the 1992 Treaty of Maastricht, the drive towards 'an ever closer union of the European
peoples' seems to have posed greater political and institutional problems for Britain than for
the other member states.

o European legislation is initiated almost exclusively by the European Commission with which the
UK Parliament has no formal relationship and over which it has no direct control. In these
circumstances there are a number of problems for Parliament at Westminster
 First, there is the volume of European legislation which is hard for the House
of Commons to deal with properly within the constraints of an already
congested legislative timetable
 Secondly, there has been the problem of the attitude of a large number of
British MPs towards European legislation from Brussels. Many MPs,
especially in the Conservative Party, bemoan the fact that Westminster is not
equipped to deal with this extra legislation, but are equally not prepared to
countenance further increases in the powers of the European Parliament
which would be the most logical way to close the so-called 'democratic deficit'.
The result is that when Westminster does get a chance to debate European
legislation, the discussion takes place in clouds of resentment and recrimination
often during ill-attended debates after 10.00 p.m.
 Third, a serious problem for Parliament, which has arisen since the 1986 Single
European Act - extended in the 1997 Treaty of Amsterdam - is that the use of
qualified majority voting in the Council of Ministers has reduced the areas in
which any member state can veto decisions at European level.
 There is now widespread concern among MPs in all parties at Westminster that
European developments will continue to erode the power and position of
national Parliaments

D. Sovereignty and the Human Rights Act

o The Labour Government incorporated the European Convention of Human Rights into UK law as
the Human Rights Act in in October 2000.
o Labour’s Bill makes it unlawful for public bodies (including government departments, agencies,
the police, prison officers, privatised utilities and the armed forces) to exercise their powers in
ways which are incompatible with the ECHR.
o Citizens will be able to appeal to the principles enshrined in the ECHR in any court in Britain.
Courts will be able to quash actions of public bodies and to grant compensation to victims of abuse
of power.
 o Acts of Parliament are to be interpreted in ways which are compatible with the ECHR (ie if
there is ambiguity or vagueness, the ECHR will be used to interpret an Act in ways which make it
fit the principles of the convention).
o If parliament passes legislation which the higher courts believe is not compatible with the
ECHR, they can issue a formal declaration to that effect.
o The courts will not have the power to veto such an act as unlawful, but the Labour White Paper
states that such a declaration will ‘almost certainly’ prompt a government to change the law.
o So, as envisaged by the current government, parliamentary sovereignty will remain intact but the
ECHR will have both legal and moral force in restricting the actions of parliament and
government.

E. Sovereignty and Devolution

o Devolution has taken away more power from the Westminster Parliament.
o A unitary state, is one where there is one central law-making body, and one executive or
government. The implication is that all parts of the state have the same laws, which are
administered and implemented by the same institutions. Britain has usually been seen as a
unitary state because of the principle of parliamentary sovereignty, i.e. the location of
supreme legal power in the UK is the Westminster parliament.
o However, the UK has always been best described as a union state, where different regions are
often treated differently and where some degree of regional self-government remains. For
example, Scotland retained its own legal system after the union of 1707.
o Devolution is ‘the delegation of central government powers to subordinate units, these powers
being exercised with some degree of autonomy though with ultimate power remaining with
central government.’
o So, ‘Devolution is a process by which Parliament transfers its powers without relinquishing its
supremacy’ (both quotes from Vernon Bogdanor). For example, Northern Ireland’s virtual
autonomy within the UK was ended when the British government restored direct rule in 1972,
abolishing the Northern Ireland parliament (Stormont).
o Devolution produces three questions about parliamentary sovereignty:
 Devolution does limit parliamentary sovereignty because the Westminster
Parliament is allowing other bodies – like the Scottish Parliament – make law.
For example, smacking small children and hunting with dogs are illegal in
Scotland but not the rest of the UK.
 The idea that power can be taken back by the Westminster parliament is true in
theory but very unlikely in practice.
 The power of the Westminster Parliament is likely to continue to be eroded –
for example, as English regions acquire elected assemblies.

F. Conclusion

o The concept of parliamentary sovereignty is rather misleading as it indicates that there is one source
of legal and political power. In reality:
 ‘Parliament’ is not the real force in UK politics – the executive or government is.
 There are many practical limitations on what laws a parliament can pass
 Membership of the EU has had great impact on the legal concept of sovereignty
because in many ways legal sovereignty has been voluntarily passed to the EU
institutions
 The HRA has preserved the concept of parliamentary sovereignty in theory, but in
practice it has restricted the powers of parliament and given citizens and the
courts power to challenge parliament
 Devolution has significantly restricted the powers of the Westminster Parliament.
(15) What are the principles of the British constitution?
The American constitution states that the reason for the constitution's existence is to
enable the American people to have 'life, liberty and the pursuit of happiness'. With no
written constitution in the UK, there is a debate about what the underlying principles and
purpose of the unwritten British constitution are. In theory, however, they are supposed to
be:
• The sovereignty of parliament
• The rule of law
• The unitary state
• The separation of powers
• Responsible government

THE SOVEREIGNTY OF PARLIAMENT

Quite simply this means that the British Parliament is the UK's sovereign body. This
means that it has absolute power over everyone in the country. It can pass a law that
enables the UK to join the EU, but it can also pass a law that takes it out again. It can bring
back capital punishment and allow the state to execute citizens, or it can take away the
right of a woman to have an abortion. Now that specific powers have been given to the
Scottish Parliament and to the European Commission, parliament has reduced its
sovereignty, but it can regain it if it wishes.
The use of referendums to consult people, instead of parliament just taking the decisions,
may also have reduced parliament's sovereignty. However, there is nothing present in the
British constitution to make parliament call any more referendums.

THE RULE OF LAW

Quite simply this means that 'law rules'. It also means that in the UK all citizens are under
the law, and that includes the monarch and members of the government. All must obey the
law and all should be equal before it. Government, the police and everyone acting in an
official capacity must obey the law and recognize the legal rights of the people they are
supposed to be serving. This means that all accused citizens are entitled to their day in
court, and to have a fair trial. It also means that a citizen can take members of the
government to court if they believe they have acted against the law, or exceeded the
powers that parliament gave them. It also states that judges ought to be independent from
political control, and obey the law and not the government. This does not quite happen in
the UK.

THE UNITARY STATE

A unitary state is a state where one body holds all the important powers. In the case of the
UK, this is parliament and the government in London. Whatever powers might be given to
other bodies, say to the mayor of London or the Scottish Parliament, are given by
parliament and can be taken away again. However, note the changes resulting from the
devolved powers to the Scottish Parliament and to the European Union. The principle of
the unitary state is evidently decreasing in importance.
THE SEPARATION OF POWERS
This is an old idea that is fine in theory, but which never seems to have actually worked in
practice in the UK. The idea was originally that the three 'powers' — the executive, the
legislature and the judiciary — should always be quite separate. No one person should be
a member of more than one of these parts of government. The idea was that for citizens to
have freedom and protection from a bad government, an incompetent parliament or a
biased judge, each of the three parts should have a checking role on the others. Parliament,
for example, could get rid of a bad judge or an incompetent minister; a judge could
imprison a corrupt minister.
However, practice is now divorced from theory in that, by convention, British ministers all
sit in parliament, and the top judge — the Lord Chancellor — sits in the House of Lords
and is also a member of the government. No one is quite sure why the practice has become
so far removed from the theory!

RESPONSIBLE GOVERNMENT
This principle is derived from two conventions mentioned earlier: ministerial
responsibility and collective cabinet responsibility. It means that the government must take
responsibility for its actions. The right of citizens to call a minister to account for his or
her actions is a vital part of British democracy. This is also known as the principle of
accountability.
(15) What are the features of parliamentary sovereignty?

THE SOVEREIGNTY OF PARLIAMENT

Quite simply this means that the British Parliament is the UK's sovereign body. This
means that it has absolute power over everyone in the country. It can pass a law that
enables the UK to join the EU, but it can also pass a law that takes it out again. It can bring
back capital punishment and allow the state to execute citizens, or it can take away the
right of a woman to have an abortion. Now that specific powers have been given to the
Scottish Parliament and to the European Commission, parliament has reduced its
sovereignty, but it can regain it if it wishes.
The use of referendums to consult people, instead of parliament just taking the decisions,
may also have reduced parliament's sovereignty. However, there is nothing present in the
British constitution to make parliament call any more referendums.

(20) How adequate is the UK’s constitution in checking executive power?

(30) Why has the UK constitution been criticised?

Strengths
 It provides a coherent system of government.
 It has evolved over time, reflecting the values of the British people.
 Parliamentary sovereignty ensures a clear centre of authority.
 The rule of law protects the rights of citizens.
 Government is responsible — it is accountable to parliament and the electorate.
 Government is effective — governments can implement their policy programmes.
 The constitution is flexible and can be easily adapted.
Weaknesses
 Parliamentary sovereignty and a strong executive produce centralised government.
 Local and subnational governments are not constitutionally protected.
 The rights of citizens are weak and not safeguarded effectively.
 Pre-democratic elements (e.g. the monarchy and House of Lords) survive.
 Constitutional rules and conventions are unclear and can be overridden.
 Changes to the constitution do not require special procedures (e.g. a referendum).
 Summary
Strengths and weaknesses of the
traditional constitution Strengths:
 coherent and tested
 clear source of political authority
 rule of law
 flexible
Weaknesses:
 undemocratic and outdated
 excessive centralization of power
 weak civil liberties
 prone to manipulation

The constitution: a major issue

The constitution has become an important issue in recent years. Since about 1970 many,
different groups have suggested that the constitution should be both changed and written
down clearly. There are many reasons for this. The main ones are:
 • A growing dislike of British methods of election, which many saw as 'unfair'
 • The fact that no party since the war has had a majority of the electorate vote for it
 • Growing demands by Scottish, Welsh and Northern Irish people for less control
from London
 • A growing dislike of the role and influence of the unelected monarchy and the
unelected House of Lords
 • The changes that membership of the EU was bringing to the British system of
government
 • A growing concern that individual liberty was being reduced and that the
government was growing too powerful
 • A genuine wish to have a clear, simple and written constitution that all knew and
understood

RECENT CONSTITUTIONAL CHANGES

The Labour government elected in 1997 had promised in its manifesto to make
constitutional changes. It has delivered on some of its promises, but its critics argue that it
has not gone as far as it should have. The changes it has made (by statute) are as follows:
 • It has reformed the House of Lords. The right of the hereditary peers to sit and
vote in the House of Lords has been abolished.
 • It has devolved power to Scotland, Wales and Northern Ireland. Scotland has its
own parliament and Wales and Northern Ireland their own assemblies.
 • It has altered the electoral system in Scotland, Wales and Northern Ireland.
Proportional representation has been introduced.
 • It has held binding referendums in Scotland, Wales and Northern Ireland.
 • It has brought in the Human Rights Act, which guarantees liberties to citizens.
  • It has set up the new lord mayor of London with devolved powers.
This is more than any government has done since before the First World War.

CRITICISMS OF THE RECENT CONSTITUTIONAL CHANGES

 •' The Labour government has not reformed the House of Commons in a
meaningful way. It had been suggested that the government would give select
committees much more power to scrutinize the executive and also make parliament
work more sensible hours and not late at night. These changes have not happened.
In fact, the government increased its hold and influence over parliament, and it has
been argued that it largely ignored parliament because it had such a large majority
in the Commons.
 • It has not changed the voting system for general elections in the UK. Tony Blair
failed to get a majority of the electorate to vote for him in 1997, yet he still had a
huge majority in the Commons.
 • It has not fully tackled the problem of the House of Lords. It has not reformed the
role of the Lords. In addition, peers are still not elected and many of Tony Blair's
appointments seem to be strong supporters of the Labour government.
 • It has not given citizens the freedom to acquire the information they want about
themselves or their government's actions. Labour had promised a Freedom of
Information Act, but this has not been forthcoming.
 • It has not really sorted out the relationship between the government in London
and those in Edinburgh, Cardiff and Belfast.
 • There is still no written constitution in the UK.

SHOULD THE UK HAVE A WRITTEN CONSTITUTION?

Arguments for:
 •' Everyone would know exactly what a government can and cannot do.
 • It would stop government from becoming too powerful.
 • It would give the UK the opportunity to get rid of out-of-date parts of its
constitution, such as a hereditary monarchy.
 • Everyone would know their rights.
 • It would end the odd system where the underlying theories,, such as the separation
of powers, do not match up with current practice.

Arguments against:
 • The present system actually works well — it is flexible and people like it.
 • There is no demand for much change.
 • There-would be no real agreement on what should replace the existing system.
 • We would lose the great flexibility we have. We can change the rules quickly if we
want to.
 • Other countries have tremendous difficulties in changing their written constitutions
when change is needed.
Some reading:
Democracy and Constitutional Reform
A. Democracy
o Britain is a well-established democracy. Democracy is a form of government in which the major
decisions of government and the direction of policy behind these decisions - rests directly or
indirectly on the freely given consent of the majority of the adults governed.
o Freely given consent exists
when there is no physical coercion or threat of coercion employed against expression of
opinion;
when there is no arbitrary restriction placed on freedom of speech, of the press, and of
assembly;
where there is no monopoly of propaganda by the ruling party;
and where there is no institutional control over the instruments or facilities of
communication.
There is more than one political party competing for political power.

o In representative democracy, power is exercised on behalf of the people, by elected

representatives who are accountable through regular, fair and free elections.
o This delegation of power from the people to elected office holders must embody checks and
balances on that power. Britain is unusual in that some of the checks on power listed below do
not exist in the UK – notably there is no codified constitution or entrenched Bill of Rights, one
assembly is unelected, there is not a separation of powers between the executive and legislature
(because the executive consists of the leading figures in the Commons), local government is weak
and the recently passed Freedom of Information Act lacks real teeth and is being phased in very
slowly.
o Common checks and balances include:
 a codified constitution,
 a Bill of Rights,
 There are regular and periodic elections based on universal franchise, where votes
have equal value.
 two elected assemblies which check each other,
 a separation of powers between the three branches of government, the judiciary
is independent of both executive and legislature.
 strong regional and local government,
 a Freedom of Information Act.
 Provision for referendums
 Pressure groups are able to operate to influence government decisions.
Associations such as trade unions and other voluntary organisations are not
subject to close government control.
 This means that there is a wide area known as civil society beyond government
control (for example, sports are organised by independent associations)

B. Criticisms of UK Democracy

o There is too much power vested in the executive. In the 1970s, Lord Hailsham described the
UK as an 'elective dictatorship', referring to the fact that, once elected, a government can
operate without any real controls, so great is its ability to dictate to its own House of
Commons majority.
o The solution for reformers lies in the adoption of methods to reduce the powers of the
executive, including weakening prime ministerial patronage and removing his or her
power to dissolve Parliament and call an election if the Government cannot get its way. John
Major used this threat twice, in 1993 and 1994, to force through controversial European
legislation against the opposition of a group of his own back-benchers.
o Another example is the prerogative powers which give the government of the day too much
power, unchecked by parliament.
o Many reformers argue that Britain is not a genuine constitutional monarchy because its
powers (which are exercised by the government) weaken democracy. The executive has
powers to act without parliamentary approval (for example to ratify treaties and re-organise
government departments); it gains political advantage (for example, the Prime Minister can
choose the date of the general election) and parliamentary scrutiny is restricted (for example,
honours cannot be discussed in parliament nor royal issues). Reformers propose that powers
should be transferred to parliament (especially to the Speaker) and, for example, there should
be fixed election dates.
o Another area of criticism is that the House of Commons is inadequately equipped to
check the executive. For example, Standing Committees which are supposed to scrutinise
legislation clause by clause are simply controlled by the majority party.
o It is also suggested that British Prime Ministers have become ‘presidential’ figures not
‘first among equals’ in the government. For example, Mrs Thatcher ruthlessly used her
powers of appointment to promote people who supported her ideas. Tony Blair has reduced
Cabinet meetings to a bare minimum.

o Centralisation Critics argue that there is too much power at the centre, in London. During the
1980s, Margaret Thatcher's administrations eroded the powers and independence of local
government. More dramatically, a whole tier of local government was removed with the
abolition of the Greater London Council, the Inner London Education Authority and six large
metropolitan counties. There is a perceived failure by central government to understand or to
sympathise with problems in the British regions.

o The Labour government has recognised these criticisms with its devolution plans but critics
suggest that they are only part of the answer – England has no regional assemblies, the
powers of the Welsh Assembly are weak and local government throughout the country has
neither substantial responsibilities nor an independent source of finance.

o Civil liberties The rights of citizens are under threat and require greater protection. The
Human Rights Act (HRA) will help to safeguard rights even more effectively than the
European Convention, from which it is derived. However, the HRA is not superior to
ordinary law made by the UK Parliament and it permits the abrogation of rights for a whole
host of reasons (like national security and the maintenance of law and order). Parliament
remains sovereign.
o This means that rights can still be threatened if a measure has been properly passed by
Parliament at Westminster. McNaught lists the following concerns :
o The police have been given increased powers as a result of rising crime rates.
Citizens may now be held for lengthy periods without trial. The right to remain silent,
under questioning or in court, may now be cited as an indication of guilt under the
much-opposed Criminal Justice Act of 1994. Under the same Act, the police also have
greater powers to prevent public demonstrations, while the courts may issue severe
penalities for trespass. There has also been a steady increase in police powers to stop
and search pedestrians, and to detain and question motorists.
o An increasing amount of information is held by state institutions about
individuals. It is argued that there are dangers that such information might be
misused, threatening particularly the privacy of the individual.
o In an increasingly multiracial, multifaith, pluralist society, the rights of the many
minorities who now flourish are vulnerable to abuse and discrimination. Legal
protection is, therefore, vital to allow our pluralist society to flourish.
o The media have become extremely powerful institutions. On the one hand, it can
be argued that newspapers and broadcasters must be guaranteed access to official
information where it is in the public interest to know; similarly, they need protection
from the censorship that government might attempt to impose upon them in order to
 protect such information. On the other hand, citizens might need protection from the
intrusiveness of the tabloid press in particular.
o The weakening influence of trade unions during the 1980s, coupled with the growing
power of multinational corporations, has resulted in workers becoming vulnerable
to unfair treatment. Rights in the workplace may, therefore, need firmer guarantees.

o A Lack of Democracy – critics point to blatantly undemocratic features of UK government

such as an unelected second chamber and electoral system that distorts the will of the voters.
Reforms of New Labour have recognised these criticisms – a host of new electoral systems
have been introduced for European parliament elections, devolved assemblies and so on.
Reform of the Lords has begun. But reforms are limited. Labour prefers a scheme for Lords
reform where only 20% will be elected and have shelved a referendum on electoral reform for
general elections.

o Sleaze – a phrase that became increasingly used in the 1980s and 1990s to denote anxiety at
what was felt to be improper use of governmental powers in the interests of party rather
than nation.
o Fears expressed under this umbrella term include the use of patronage to 'pack’ quangos with
politically sympathetic people and the employment of the honours system and the award of
peerages to reward MPs for political services and company chairmen for donations to party
funds; the 'revolving door' syndrome whereby ministers moved out of government into jobs
in newly-privatised industries with which they had previously had dealings was a further
example of lowered standards in public life. So, even more blatantly, was the apparent
willingness of some MPs to ask parliamentary questions for money and more generally to
augment their parliamentary salaries by paid services to lobbyists.

D. A System in Flux

o The UK constitution is in a process of reform. There are a series of lively debates and
disputes. All three main parties are now reformist and many significant changes have occurred
since 1997.
o In the last two decades, constitutional change and pressures for further change have mounted
steadily. From being considered a settled matter, the constitution is now firmly on the
political agenda.
o For example, the principle of Parliamentary Sovereignty has been transformed.

E. Evidence

The people versus the crown

Our unwritten constitution is no longer working. Inadequate government is not simply a result of
badly thought out policies. Jonathan Freedland explains why more fundamental reform is now
urgently needed

Wednesday December 6, 2000

The Guardian

If it ain't broke, don't fix it. That's been the rallying cry of the defenders of our ancient, unwritten
constitution through the ages - if not always in those words. Sure, say the old guard, our patchwork quilt of
unspoken custom and tacit tradition may not make logical sense when set out on a clean sheet of paper -
that's one good reason why we keep it unwritten. But, insist the keepers of the flame, our non-systematic
system has held up just fine for centuries. So long as it still works, there's no need to change it.
The trouble is, that's no longer true. The system is not working: it is broke - and we need to fix it. For the test
of any constitution is the quality of governance it produces. In just the last few years we have seen all too
clearly how well our system works: from the great pension scandal of the mid-1980s to the BSE calamity of
the 1990s, from the outbreak of sleaze to the sell-off of our railways, from the poll tax to the debacle of the
Dome - the proof is all around us of a standard of government that is just not good enough. In each case the
system did not contain the checks and balances, the basic scrutiny, that might have weeded out bad
legislation and prevented disastrous mistakes.

This cannot be the exclusive fault of this administration or that individual politician. It happens too often for
that. Rather, as both the Scott inquiry into the arms-for-Iraq affair or the Phillips report on BSE concluded,
the flaw lies in the system itself - the way we are governed. And that means our constitution.

The British people woke up to this fact long ago, even if few dare say it. Polling data consistently show a
decline in esteem for our institutions and the system which links them together. While 48% expressed "quite
a lot of confidence" in the House of Commons in 1985, that figure had halved by 1995. A year later a
European Union poll found that Britons had less faith in their parliament than the people of any member
country bar Portugal. Local government's standing has never been weaker, with turnout in council elections
dropping like a stone.

Trust in our institutions is in freefall, with the young especially disenchanted. One Mori survey found 71%of
first-time voters convinced their ballot would "make little or no difference to their lives". We are beginning
to vote with our feet - by staying away from the polling station. Britain's turnout figures are in decline, with
recent by-elections lucky to involve more than 30% of the vote. In one Leeds seat, the turnout fell below one
in five of all registered voters. It all adds up to a growing loss of faith in our system of governance.

These trends are not wholly new: reformers have seen the need for a radical overhaul of our constitution for
decades. But now there is an extra urgency. For not only is the old system not working well: it is beginning
to come apart. Since 1997 Labour has undertaken a raft of constitutional changes so radical they have
historians reaching for the 1830s to find a precedent. Whether it's the rolling programme of devolution to
Scotland, Wales and Northern Ireland or the partial reform of the House of Lords, the current government
has shattered forever the traditionalist belief that our system is a frail, mystical thing that belongs in a glass
case and can never be touched by human hand. The conservative conviction that the constitution has
remained unaltered for centuries - and therefore cannot be changed in future - is gone. The patchwork quilt
can be repaired and even renewed: after all, it's unravelling already.

Specifically, Labour's changes have exposed to the light questions that had long been buried - and which
now demand to be answered. Take devolution. Until 1997 Britain had never really come clean about its true
nature as a multi-national entity: the four constituent nations each had their own cabinet department, but
Britain was essentially a unitary state governed from Westminster and Whitehall. Devolution has blown that
apart.

It has forced us to recognise that there are distinct countries within Britain, each with the right and ambition
to govern itself - whether through a parliament in Edinburgh or assemblies in Cardiff and Belfast. The days
of crypto-federalism seem to be over: thanks to devolution, Britain has acted like a country ready to come
out as a federal entity.

But not completely. For Labour's decentralisation may have brought to the surface a clutch of dilemmas
about Britain, but it has not resolved them. So, for example, most Britons now accept that Scotland, Wales
and Northern Ireland deserve home rule - but what about England? Should Westminster serve as a federal
legislature, dealing only with UK-wide problems - or should it double as a de facto English parliament? Why
does one of the island nations, Scotland, have more autonomy than the others? Who should sit and vote in
the Westminster parliament; in the terms of the famed West Lothian question, why should Scottish MPs vote
on exclusively English matters when English MPs have no say on exclusively Scottish ones?

What Labour has done is to open a can of worms: the worms were always there, we just couldn't see them
before. Now the can is open we cannot look away. Perhaps the best illustration is the House of Lords. Some
around Tony Blair might once have thought that expelling all but 92 of the hereditary peers would solve the
problems of Britain's second chamber. Instead it's done the opposite, suddenly drawing attention to the
absurd democratic deficit in parliament. When the hereditaries were there, the whole body could be written
off as some Ruritanian joke. But Blair's reforms have prompted Britons to take a closer look. They now see a
supposedly reformed second chamber barely more democratic than the blue-blood body it replaced - in
which not a single member is elected. Leaving well alone, as the Tories used to advocate, was one thing.
Now, say many Britons, if you're going to tinker with the upper house, you might as well make it
democratic.

And that's a view which is beginning to apply to our entire constitution: now that Labour has broken the
taboo by daring to change it, logic demands that it be changed properly - and democratically. For the current,
spatchcocked arrangement of old custom and New Labour modernisation risks being the worst of both
worlds, creating a constitution that makes no sense and lacks the old (if spurious) defence of ancient
continuity. The mystique has shattered at last; now our very system of government is up for grabs. Even the
Conservatives are discussing radical, constitutional change: witness William Hague's flirtation with the
notion of an English parliament. There is one last factor which makes urgent our need for a new
constitutional settlement. Britain may be an island, but we are not alone. The changes inside the United
Kingdom have coincided with profound shifts outside it, too.

We are days away from a summit in Nice which will debate and decide the future shape of the European
Union. Who should govern? A simple majority of member nations or each state by wielding its individual
veto? How should the peoples of Europe be bound together? With a common currency and a shared military
force - or as a loose, free trade area? How should Europe declare its values? With communiques and treaties
or with a basic law? In other words, the European Union is in the midst of constitutional upheaval, too.

Beyond even Europe's boundaries, there is a similarly profound argument. The global anti-capitalist
movement unleashed in Seattle and Prague asks who should rule the world - its people or the corporations
and the World Trade Organisation? On the streets with the protesters or in the summit rooms of Nice, the
debate turns on a single word: sovereignty. Put simply, who should be in charge? That's an issue for the
world, as it grapples with the domination of Microsoft or Big Oil and gropes for a new regime of global
governance. It's an issue for Europe, as it works out whether sovereignty can be pooled or only diluted. And
it's an issue for Britain: who is sovereign in our land?

What it all adds up to - the weaknesses of Britain's old system, the changes made by Labour and the
worldwide confusion over sovereignty - is a need: we are crying out for a new constitutional settlement. We
urgently require a new dispensation that would work better than the current set-up, improve the quality of
our governance and yield better outcomes and better policies that would affect all Britons' lives. A new
dispensation would also complete some unfinished business left over from Labour's programme of
constitutional reform, turning today's "unsettlement" into a settlement. For those who care about the survival
of Britain that has become an urgent task: for if we do not decide a future for the union of our nations, then
that union will simply unravel. Britain will break apart.

Our country needs this new settlement within our borders to work out our place in the world beyond them.
Many reformers have argued that so long as we remain confused over our own sovereignty, we have little
chance of sharing or pooling it with others. When the relationship between Scotland and England is still
vexed, is it any wonder we cannot find the right connection between Britain and France?

We need to make a change. We need to replace an unwritten constitution which consists of one abstract idea
- the crown-in-parliament - with a settlement that fits the nation we have become and the world that now
exists. We cannot wear the old, moth-eaten garb of the past any longer: we have outgrown it. This is a new
century and a new millennium: we need a new constitution.

In Favour of an Uncodified Constitution

A. Strong Government

o ‘The vital quality of British government, much admired in the USA and on the European continent,
is its ability to control the legislature, to carry out its electoral mandate without undue delay or
opposition and to deal with unforeseen circumstances without encountering the hindrance of too
many constitutional restraints’. (MacNaught)

o British government is strong in the sense that there are few constitutional restraints on an
elected government with a majority in the House of Commons. American government, on the other
hand, is full of 'checks and balances' and many European governments are weakened because they
are made up of coalitions of several political parties.
 o British governments have a great deal of power because of a combination of factors, including:
o a centralised political system – until recently there was no regional level of
government in the UK. England still has no regional assemblies and local
government is weak.
o the dominance of the House of Commons over the other two elements which
make up parliament - the House of Lords and the Monarchy
o an electoral system which encourages one party governments even with a
minority of the popular vote. So governments control the Commons.
o The absence of documents like a Bill of Rights or a codified constitution which
establish barriers to what any government can do
o Political parties which are ‘disciplined’.

B. Flexibility

o Strong government produces flexible government. The British tradition is that the political system and the
features that characterise it must be allowed to evolve naturally with society. In Britain, the Constitution is
generally seen as part of the living, changing society and culture. It is rooted within them. It should, therefore, be
allowed to grow and develop in sympathy with social change. So, it cannot be a fixed set of principles, but
should, instead, be allowed to reflect constantly shifting public sentiment.

o So, for example, when it is felt that some individual rights should be sacrificed in the interests of public order,
the British Constitution is flexible enough to allow this to occur. Similarly, when it is widely accepted that
government should be granted more powers – or should be limited - this can be achieved without major
constitutional upheaval.

o Flexibility applies to both policy making and to changing the system of government. For example, in the
aftermath of two gun-related killings (in Hungerford and Dunblane) British governments responded by passing
very restrictive gun ownership laws. In the USA, the second amendment of the constitution – written at a time
when citizen militias were necessary for national defence – guarantees citizens the right to bear arms. This has
greatly limited attempts to reform the law, despite several ‘massacres’.

o Since 1997, Labour has embarked on a constitutional reform programme to ‘modernise’ democracy. For
example, devolution has been introduced, a Human Rights Act and Freedom of Information Act have been
enacted and the hereditary membership of the House of Lords has been removed. All this has been enacted
through the simple, ordinary law-making process. No special majorities have been needed.

o An example of the flexible nature of the UK constitution are the provisions for general elections. Unlike the
USA where there are fixed-term elections, there must be elections within a five year period but elections can
occur at any time within this maximum – as long as the monarch agrees with a Prime Ministers request. So, in
1974, elections in February resulted in no overall majority, so new elections were held in October of the same
year. In contrast, Americans have no flexibility. So elections had to be held in 1944 during a critical period of the
war.

o The constitution is so flexible because of the importance of conventions in the UK. The political role of the
monarchy has been transformed through changing conventions not the law. In theory, monarchs are still
commanders-in-chief of the armed forces and they can veto legislation. In practice, they do not – by custom.

C. Elected Government, not rule by Judges

o ‘The experience of the many democracies which have written constitutions is that the courts must
frequently become involved in resolving constitutional disputes. The question then arises as to
whether judges are fit to pronounce on issues with clear political implications. They are unelected
and not responsible. Opponents of written constitutions therefore argue that such conflicts must be
left to elected politicians at Westminster.’ (MacNaught)

o In the USA, for example, the Supreme Court has been embroiled in many areas – like abortion and
capital punishment – which in the UK have been dealt with by legislation.

D. Accountable Government

o Traditionalists see the system of government as effective and flexible, allowing governments to
govern, to tackle important issues and problems. They also defend the system as producing
 accountable government because it is clear who is responsible for policy and the electorate can
make judgements of the performance of a government (as it clearly did in 1997).
o Although there are not the formal constitutional checks on political power which are typical of
codified constitutions, governments in the UK are limited in a whole host of ways:
o The need to face a general election within 5 years
o The need to fight a range of other elections which give voters a chance to register
opinion about the government in London and other levels of government – local
elections, elections for the regional assemblies, parliamentary by-elections, European
parliament elections
o An official Opposition in Parliament organised to criticise the government and put
forward alternatives
o A more assertive House of Lords
o The need to keep political parties united
o Facing scrutiny in parliament from DSCs and during Parliamentary Questions
o A pluralist pressure group system – seen for example in the hunting with dogs issue
o A watchful and critical media

o If governments lose the confidence of the voters they pay a heavy price. Mrs Thatcher was
ejected by her own party on the fear that she would lose the next election. The Tories were
condemned to a long period out of power by the verdict of voters in 1997 and for most of the period
between 1992-97, John Major was a Prime Minister without authority, plagued by party divisions,
personal rivalries in his government, a hostile press, a small and diminishing parliamentary
majority, lack of public confidence.

o The UK is, in several ways, moving toward the American model of government and becoming
more accountable and limited. Devolution has restricted the centralised nature of UK
government. The HRA has established a firmer foundation for human rights. The House of Lords is
in the process of being made more legitimate.

o In reforming the political system, the merits of the system – the ability of governments to
govern – should not be lost. So many politicians and academics support some reforms which
restrict the government more but oppose reforms that would change the whole balance between
government and checks on the government. For most, electoral reform is a reform too far.

A. Tradition
o The UK is governed according to traditions which suit its history and its culture. Some aspects
of government are not strictly democratic – like the hereditary monarchy – but they have been
adapted to new circumstances while retaining traditional values. Defenders of themonarchy, say that
it must be a ‘grand’ monarch because it symbolises British history and greatness - to scale down
the monarchy would indicate that Britain is in decline.

o Defenders argue that the monarchy is not actually undemocratic and actually contributes to British
democracy in a way no elected president could match.

o A hereditary monarchy appears to contradict democratic principles (where leaders are elected and
accountable) and aspirations of 'social democracy' (a degree of social equality) but defenders say
that the British monarchy has no day-to-day political power and that this enables it to play
important roles in Britain - much better than any elected president could.

o The British monarchy has a heavy symbolic and socially unifying burden and is a 'grand'
ceremonial institution. The ways the monarchy performs this role include ceremonial functions,
being the ‘fountain of honour’, acting as chief diplomat, head of the Church of England and
Commander-in-Chief of the armed forces and setting a moral example.

o Because of its political neutrality, the monarch can also perform the role of constitutional umpire.
The monarch, with no political bias, is ideally suited to perform the task of constitutional umpire. A
hung parliament could provide a monarch with a situation where a choice of Prime Minster would
not be automatic but the monarch’s role is not to exercise personal choice but to ensure the
strongest possible government.
o The experience a monarch gains from reading state papers and having a weekly audience with the
Prime Minister, enables a monarch to act both act as an adviser and critic - in private, with no
political axe to grind - to the Prime Minister.