1. Topic 1 the constitution Constitution: a set of principles, which may be written or unwritten, that establishes the distribution of power within a political system, relationships between political institutions, the limits of government jurisdiction, the rights of citizens and the method of amending the constitution itself

2. Distribution of power: institutions, house of lords, house of commons – how power is divided in parliament Relationships between political institutions: checks and balances – commons and lords, which institution is going to counteract the other Limits of government: how far their power/sovereignty will go Rights of citizens: human rights act Amending the constitution: changes of constitution Codified constitution: the law, rules and principles specifying how a state is to be governed are laid out in one single constitutional document eg America Uncodified constitution: the laws, rules and principles specifying how a state is to be governed are not set out in a single document but are found in a variety of sources eg the uk Constitutional countries: usa (1787), Iraq (2005), china (1949)

3. Main functions of a constitution Determines how power should be split within the state eg relationship between parliament and government – federal constitutions/society/ states have legitimate power- constitution shows that. How power is divied in the centre and different regions Political processes which make the system and how they operate. This includes the relationships between institutions and the rules that govern how they operate States the limits of government power. Parliament is sovereign- there are no laws as long as they have the backing of parliament. Can pass any law if it wishes, no limit on government power. Pm has patronage. We expect the pm to act by the rule of law and not dictatorial Rights of citizens: human rights act Capacity to change, has to have ways it can be updated

4. Codification and entrenchment Codification: a single source – public can identify with it, important document in the usa, iraq. People can connect to it

5. Codification produces two tier legal system (dual legal system) Safe guarding higher laws called basic laws and criminal laws Basic laws are the basics of the constitution: these are very hard to change. Eg citizen rights Criminal laws are ordinary laws eg a change in car tax. These are simple to change and requires a simple vote to change

6. Entrenchment Protecting (guaranteeing) constitutional principles and basic human rights from alteration, ie from future government. It is impossible in the uk as parliament is sovereign Constitutional changes: two important to be placed in the hands of a temporary government. Must satisfy two criteria's: Must be widespread popular support (referendum) Must be in the long term interests of the country (parliament procedure)

7. The uk is different Every parliament is sovereign and can amend the constitution Executive dominates parliament and therefore controls the constitution Examples of executive power: HRA 1998, a fundamental change was made through a single act of parliament. Because the uk constitution is not entrenched. Cameron wants to remove hra and replace it with a british bor Uncodified constitution: No distinction between laws so we have a single tier. All passed the same way via an act or parliament. Human rights act partly codified as it is considered important. They would need special arrangements eg a referendum, we do not have basic laws but to an extent we do they just are not encoded in the constitution Now it is more common to use a referendum on constitutional changes: (it has become a convention) Eu referendum, av, Scottish independence, devolution

8. Main characteristics of the uk constitution Uncodified: found in a variety of sources eg common law, Europe, conventions etc Not entrenched: parliament is sovereign you cant bind your successors. One tier legal system, no basic laws/ criminal laws. It can be changed very easily and quickly by parliament. There are not restrictions on how parliament can amend the british constitution

9. Constitutional monarchy and royal prerogative Passing of sovereignty from monarch to parliament/prerogative powers Monarch is accepting that they are becoming to change to a constitutional monarchy 1688 – glorious revolution 1707: refused act of royal assent – the monarch must give the royal assent to make bills into laws and is accepted that they never refuse the act of royal assent: now accepted norm, shows evolution of constitutional monarchy, queens role is ceremonial Prime minister: adopted that role: roles of the monarch are now he roles of the pm, became head of state, officially still the queen, have taken over the monarchy

10. Parliamentary government and parliamentary sovereignty (fusion) Government comes from the commons- parliament government, executive is drawn from parliament- executive is accountable to the parliament Parliament sovereignty: Ultimate law making responsibility executive dominates the parliament as it has the majority. The actual political sovereignty/power is held by the government. Sovereignty is controlled by the government. They can control the legislature through the executive. They can dominate through their majority

11. Party government and unitary government Party government (crucial to the system): Winning party forms government, losing parties form the opposition. One part wins an election and forms the government alone Unitary government: Centre of power/sovereignty at parliament. Legal sovereignty is located at the centre, in one body

12. Judicial review: all about interpretation A progress undertaken by senior courts where judges are required to interpret, re-interpret or clarify constitutional rules. Judicial reviews take place in response to appeals by citizens or associations. In this way the meaning of a constitution can be clarified, adapted or applied to new circumstances

13. Uk example: the belmarsh case December 2001: After 9/11 parliament passed the crime and security act- gave the power to detain, without trial, anyone who was suspected of being an international terrorist December 2004: Nine men who were detained appealed against their detention without trial breached the European convention on the hra, and part of the uk constitution They won the case in hol, uk judges interpreted the convention to mean they could not be held indefinitely without trial March 2005: Nine men were released on bail, with certain restrictions July 2006 Amended hra/part of the constitution: agreed that suspected terrorists can be held without trial for up to 28 days, after which they must be tried or released

14. Advantages and disadvantages

15. Fixed term parliaments and entrenchment in the uk Fixed term parliament is a law stating that each new parliament should sit for a fixed term of five years before the next general election. The proposed law would take away the convention that the pm may name the date of the next general election It was intended that the fixed term parliament should be entrenched: every new parliament would have a life of 5 years However it is impossible to entrench laws in the uk as parliament is sovereign and there is no codified constitution. Therefore in the future it may become a convention: an unwritten (tacit agreement) (long term) agreement that is binding

16. Evaluating codification Should the uk codfiy Partyview ConservativesKeep it’s the same, if its not broken don’t fix it, bringing about codification could make it even worse than the original state LabourDevolution, hra- part of the constitutional set up but not entrenched, preferred to make gradual changes, would want a codified constitution Lib demsSubstantial change is needed, is a must of modern day society to write a new british constitution

17. Arguments for retaining an uncodified constitution

18. Flexibility Constitution can adapt to the changing world alongside/along with the british people. It is said that britains constitution is organic Monarchy: monarchy used to be sovereign, sovereignty was then passed onto parliament by the glorious revolution 1688. it was accepted and understood by the monarchy. It is a constitutional monarchy, the pm has taken the ‘prerogative powers’ of the monarchy. This happened over time- was not forced into place unwillingly, it was done in a peaceful way Prime minister: historically the cabinet was a historic part of the parliament. However, the attention has shifted towards the prime minister. We now have a prime ministerial government whereas before it was a cabinet governmne.t this is largely as a result of media concentration on the importance of that office. The growth in prime ministerial power, largely at the expense of the cabinet, has been a gradual and natural process. The pm is the centre of politics.

19. Executive power Positive for an uncodified constitution as it allows government to act quickly and decisively because there are no constraints. If it was codified it would put constraints on legislation and government preventing improvements on society Law making and the way laws can be introduced quickly and efficiently: governments can inact laws to face new problems, whereas if a government has an entrenched and codified constitution, it would have been extremely difficult for parliament to pass a ide range of measures because of too many constitutional constraints

20. Conservative pragmatism Argues the constitution has served well for centuries. There has been no violent revolutions and no major political unrest. Change has occurred naturally and when it has been necessary rather than when reforms have campaigned for it Conservatives also think that it will be an extremely difficult exercise and meagre benefits would not be worth the problems incurred If its not broke don’t fix it

21. Politicising the courts and judiciability Having a codified constitution immediately politicizes the judiciary by asking them to look at each law and see how it works/if it is interpreted the correct way. There would be disputes about its application/meaning. The supreme court would pass the interpretation, meaning, understanding. The problem is that judges are not elected and therefore are not accountable. Critics point out that such judges – it is for elected representatives, they say, to make the final decisions on constitutional meaning

22. Arguments for introducing a codified constitution

23. Human rights There is a need for stronger safeguards for individual and minority rights. We should have a codified and entrenched bill of rights that cannot be changed/manipulated by the government and prime minister if necessary, governments can change or take out words to suit their own needs. By having it codified/entrenched, it will be impossible to pass legislation that could offend that right/guarantee the rights of the individual Eg belmarsh case

24. Executive power Executive government power is excessive and they say over powerful governmental power threatens individual rights, the position of minorities and he influence of public opinion. There are insufficient controls on what government does A clear, codified constitution would inhibit the apparently irreversible drift towards greater executive power. Needs a codified constitution to have more codified powers to enable it to control government on behalf of the people Elected dictatorship

25. Clarity Most british citizens do not understand the concept of a constitution. This is hardly surprising as there is no such thing as the ‘british constitution’ in any concrete form. There is an argument for creating a real constitution so that public awareness and support can grow. If people know their rights/understand how government works, it will cure the problem of political ignorance and apathy that prevails

26. Modernity The rest of the world has a clear, codified constitutional settlement Could show that we are out of date and have not yet entered the modern world as we don’t have a codified constitution. We have already started a process of codification and entrenchment Particular constitutional laws that are important to the public and constitution are proof that it is becoming increasingly written and codified eg human rights

27. Unitary and federal constitutions Union/unitary: power found in one place, sovereignty found in one place Federal: power is distributed/sovereignty is divided between central bosies and regional institutions

28. Devolution Devolution is not legally entrenched but powers would not be returned. Certainly would require a referendum. Argue that the british constitution is now quasi federation. The powers that have been developed to Scotland, wales and northern Ireland are effectively entrenched. The power could not be returned to parliament without the approval of a referendum

29. Federal constitutions have divided sovereignty why? Sovereign states merging and surrounding some, but not all, sovereignty A country that contains strong regional identities Federal powers: economic, foreign State powers: most criminal laws, education, tax Unitary constitutions: uk, france, china Federal constitutions: usa, Australia, Canada

30. Sources of the uk constitution Is neither codified nor entrenched 6 components make it up

31. Parliamentary (constitutional) statutes These are the acts of parliament that have the effect of establishing constitutional principles The hra 1998 incorporates the codified European convention of human knights into uk law. House of lords act 1999 abolished all but 92 of the hereditary peers in the hol

32. Constitutional conventions A convention is an unwritten rule that is considered bidning on all members of the political community Conventions cannot be challenged in law but have so much moral force that they are rarely, if ever, disputed Many of the powers of the pm are governed by such conventions Collective responsibility means that all members of the government must support official policy publically or resign or face dismissal Government formation is based on the role that, following an election, the queen must invite the leader of the largest party in the commons to form a government

33. Historical principles and authoritative works These principles have become effectively binding because they have been established over a long period of time The most important is the sovereignty of parliament Also, parliamentary government- that the authority of the government is drawn from parliament and not directly from the people The rule of law states that all, including government itself, are equal under the law

34. Common law Refers to the development of laws through historical usage and tradition The most important application of common law has concerned the protection of basic rights and freedoms from entrenchment by the government and/or parliament The prerogative powers of the pm are considered common law powers. They have never been codified or put into formal legislation. These powers are exercised by the pm on behalf of the monarch and including command of the armed forces, negotiating foreign treaties, calling general elections and making appointments to government

35. The practices and traditions of parliament The procedures of both houses of parliament are traditional in natural, as are some of their rituals. The practice of allowing the queen to announce the legislative programme for the coming year (the so-called queens speech) is such a tradition, as are many of the rules of debate Similar to common law, constitutional traditions govern many of the rituals of parliamentary government

36. Europe Parts of the constitution have come from Europe The echr originated in the council of Europe, and any future changes need to be approved by the council treaties adopted by the European union are also effectively part of the uk constitution This is because they determine the relationship between the uk and the eu and establish the division of sovereignty between the two

37. Sovereignty in the uk Sovereignty: ultimate power to make laws to be enforced Legal Popular Political Pooled sovereignty: a circumstance, as in the European union, where legal sovereignty is exercised collectively by a number of foreign states

38. Legal sovereignty Lies within parliament (hoc/l/monarch). No other body can make laws or overrule those passed by parliament European laws have greater authority, it is a law that passed in the parliament to e a member of the eu. Uk can retain her sovereignty by withdrawing from the eu Devolution has seen sovereignty delegated. Scottish parliament has law- making powers (education, budget controls), but these could be repealed. Scottish parliament is a result of the british parliament. Scotland act 1998. it can take it back at any time Definition: is the power to make and unmake binding laws, to grant ultimate powers to individuals or other bodies and to determine the nature of the constitution

39. Popular sovereignty Popular means people. People are effectively sovereign in these three instances: 1: the people elect a parliament and a government at each election. Their verdict at an election cannot be challenged 2: if a single party government has been returned, that party has a mandate to enact its manifesto. Thus the public have granted the government authority/legitimacy, this represents a form of sovereignty 3: referendums are now regularly held. Although not binding (as parliament is sovereign), it is inconceivable that a referendum verdict would be overturned, form of direct democracy Definition: refers to those circumstances when the peoples decision, in an election or referendum, is effectively binding on the political system

40. Political sovereignty (where power effectively exists in reality) The government itself has a mandate from the people and a majority in the commons so they can control the legal sovereignty of uk parliament. Uk government is sovereign because it has a mandate from the people and most of its proposals are almost certain to be accepted through parliament The uk prime minister exercises considerable powers independently of parliament- the pm prerogative. Even parliament cannot overrule his prerogative powers without passing a special act of parliament The Scottish, welsh and northern Ireland governments have sovereignty over certain areas granted by devolution. Their assemblies and governments have political sovereignty over certain areas of policy making because the devolution laws have granted them wide powers Definition: refers to the location of real power it ignore where legal sovereignty may lie and concentrates on who realistically can exercise power within the state

41. The monarch Is sometimes refered to as the sovereign or her sovereign majestry but this is misleading. However times have changed. The monarch is certainly technically part of parliament an so shares its legal sovereignty, but this is only because the royal assent is required to make bills/legislation into laws. As the monarch cannot realistically refuse the royal assent, this aspect of her legal sovereignty is purely ceremonial Instance of 1702- rejected royal assent= constitutional crisis

42. Parliament Means the group of mps which have been elected at each general election (every 5 years). Sovereign. A new parliament could undo all laws in existence. It could not entrench any of its legislation. It cannot present future parliament from repealing or amending their legislation

43. The eu and the constitution Areas where jurisdiction has passed largely to the eu: agriculture, fishing, trade Areas where eu membership has influences but does not control government policy: economic, foreign, defence Areas where virtually no jurisdiction has passed to the eu: education, health provision, social security

44. How has the eu affected sovereignty in the uk U laws are simply superior to uk law Factortame case: the merchant shipping act, a uk law was inferior to the eu fisheries regulation. In this case, Spanish fishing vessels were given rights to operate in british waters against the wishes of the uk parliament. Eu law is superior to uk law, it supersedes it as eu had fisheries regulations British courts must implement eu laws Interpretation of the eu laws is required it must be referred upwards to the european court of justice. So the supreme court is not the highest court of appeal in all cases When on unanimous vote in the eu council of ministers is required, the uk effectively has a veto. Uk has constantly vetoed European tax harmonization and admission of new member states. The uk does not sacrifice sovereignty Not all eu proposals require unanimity (pooled sovereignty). Everyday eu proposals its out of our hands if the majority want it Parliament should not pass legislation that runs counter to eu legislation, eg removing workers rights entrenched by eu social chapter

45. Where has sovereignty in the uk gone? Parliament remains legally sovereign, it can reclaim power that has been granted eg devolution, eu membership However, much political sovereignty has transferred to the pm/government, devolved areas or to the people (referendum) direct political sovereignty Some legal sovereignty has been transferred to the eu (trade/environment/employment laws) pooled rather than lost though However britian is free to leave the eu and can restore all legal sovereignty to parliament Pooled sovereignty: a circumstance, as in the europen union, where legal sovereignty is exercised collective by a number of sovereign states

46. To what extent has the location of sovereignty changed in the uk/is parliament still sovereign Intro: types of sovereignty 1: parliament is sovereign (legal sovereign) 2: lies with the people (popular sovereign) 3: political sovereignty (pm and gov realistically lies with them) with links to the executive - executive domination of legislature 4: the eu + pooled sovereignty, can still retain / keep full sovereignty by leaving 5: devolution in general if a 40 mark 6: Pm prerogative if 40 mark

47. How effectively does the uk constitution limit the power of government Into: 2 sides How does the constitution limit government? 1: judicial review challenges government laws 2: decentralisation via devolution 3: decentralisation via the eu 4: Legal sovereignty – parliament sovereignty 5: Popular sovereignty – people - give mandate to implement manifesto How does it fail to limit government? 1: lack of separation of power 2: lack of entrenchment 3: argue that more people vote against gov in elections so do they really have the legitimacy? Conclusion: not effective, electoral dictatorship

48. Constitutional reforms since 1997: labour Constitutional reform: a process whereby the fundamental nature of the system of governmnet (as well as the relationships between governing institutions) is changed, or where change is proposed. In the case of the uk. This may also involve the process of codification

49. Britain is a conservative county- traditional, cautiour about change/reform of our constitution The labour party have always favoured reform and now had a mandate Proposed to avoid one party domination (18 years out of power) fragmented political system – impossible for one party to dominate for that long ‘soft’ public support for reform- people felt that there was a need for constitutional reform

50. Democratisation The british system was seen as undemocratic. Length in opposition (18 years) was too long Examples: House of lords: abolition of voting rights of the most hereditary peers Wales, Scotland voting reform Failed attempts: Electoral reform of fptp- unsuccessful – av referendum in 2011

51. Decentralisation To disperse power so it wasn’t all in the centre Examples: Devolution Elected mayors Failed attempts: Scottish independence referdnum- breakdown of the uk

52. Restoration of rights Fears that the rights of citizens in Britain had been consistently eroded while the conservatives were in power. They had to take those fears away- get the constitution in line with other European states Examples: Incorporation of the echr into british law Freedom of information act was seen as essential in a drive to create a transparent, more open and accountable government

53. Modernisation To bring the british constitution into line with other modern arrangements which exist in western democracies Judiciary: lack of separation of power/ independent hol Examples: Fixed term- parliaments Referendum use growing Reform of the judiciary: the political office of lord chandellor was abolished. He was no longer the head of judiciary or speaker of the hol. He was replaced by an office known as justice minister. The house of lords appeal court was replaced by a separate court in 2009 – supreme court. Senior judicial appointments are controlled by an independent commiee of senior judges Failed attempts: Codify the constitution Failure to reform the second chamber

54. The conservative critique of new labour reforms

55. Restoration of rights – echr Too far. Undoing to the constitution Hra constrains government. Also determined outside the uk. Too much of a controlling element over the government/legislature – belmarsh case – handicaps the government, also stops the government from oing what it wants. Not designed by us, gives too much power to unelected judges

56. House of lords reform Is now subject to the favour of the pm, insufficiently independent. 92 hereditary peers, now Cameron is pm and he has the main say of who is appointed in the lord He has the decision when it comes to th emake up of the lords He wants it stocked full of tory peers. It can work both ways

57. Decentralisation – devolution Threatens the unity of the uk Proved to be correct- Scottish independence referendum, just a starting point to the breakdown of the uk. They want more power/independence

58. The supreme court Puts too much power in the hands of the unelected, unaccountable and unrepresentative judges. They can advise or make recommendations. Taking away from parliamentary and government power

59. The liberal critique

60. House of lords reform Incomplete Britain remains fundamentally undemocratic. 92 hereditary peers Was supposed to be stage 1, 2 and 3 but still stuck on stage 1

61. Restoration of rights – echr Is inadequate as it is still not binding on parliament It should be entrenched in a codified constitution- should be introduced. As it can be taken away- like Cameron wants to do

62. Decentralisation – devolution Limited devolution means power remains too centralised in Westminster More powers to be given- federal state: guarantee the powers in a codified satute law. May prefer to see a fragmented political system- more power to local governments and more power taken away from the centre

63. The lack of electoral reform Means that parliament will never be truly representative/democratic Referendum in 2011 was false as only offered av, they wanted pr

64. Assessment of constitutional reform

65. Human rights legislation Hra 1998 incorporated the echr into uk law. Put much common law into written legislation Hra though a vital development, has not been given the political status it needs. Rights can still be trampled on by powerful governments Freedom of information act; 2000 gave citizens power to see documents regarding public businesses as well as information about themselves- open and transparent government (expenses scandal 2009-10)

66. Electoral reform Wrong to assume there has been no electoral reform: Stv – northern Ireland Ams – Scotland and wales List- uk European parliament elections Sv – mayor elections The unsuccessful attempt to reform the electoral system for general elections is perhaps the greatest failure for reformers since 1997. the referendum that rejected to change to av in 2011 set back the argument for reform by at least a generation Pr has been introduced in devolved administrations

67. Elected mayors Introduced by referndum – London, now 16 in the uk Khan won the latest in London

68. House of lords reform Legislation scrapped all but 92 hereditary peers, the lords is now mostly appointed Is still an ongoing debate, no change

69. Reform od the judiciary Constitutional reform act 2005 created the supreme court- more independent and capable of protecting individual rights. The position of lord chancellor (formally head of the judiciary and mameber of the government) was also scrapped in this bill The principles of judicial reform have been seen (four) 1: To increase the separation of powers between government, legislature and judiciary 2: To improve the independence of the judiciary 3: To eliminate the ambiguity of the role of the lord chancellor 4: To bring Britain into line with a modern constitutional practice

70. Fixed term parliament Pm no longer calls the date of election Only way to change date is to have a vote of no confidence

71. Power of recall Constituency can have a petition for it if a mp is unsatisfactory by a by-election

72. Deduction of the commons by 10% Gery mandering – purposely redrawing the boundaries in he constituencies for their favour

73. Devolution Three types of devolution: Administrative devolution: transfer of limited powers to devolved administrations. This effectively means control over the allocation of public funds, the nature of administration the way in which laws, enacted elsewhere should be implemented Financial devolution: is the ability of the devolved administration to raise its own taxes. This is restricted to 3% either way Legislative devolution: the transfer of power to make primary legislature Scotland has all 3 but want independence Concern: devolution has/will lead to the breakdown of the uk, though it has been successful and powers have been granted and it works. It has fed the fires of nationalism

74. For more devolution: There has been a growing popular demand for more self-government in the national regions The national regions have different needs to England, which should be reflected in stronger regional government It places decision making closer to the people By conceding devolution the demands for duller independence will be headed off. Thus preventing the break up of the uk It is more democratic because government will be brought closer to the people It will reduce the workload of the british parliament and governments It recognizes the new idea of a ‘Europe of regions’ rather than separate states, that is, national boundaries will become less important than regional differences

75. Against more devolution: Conservatives in particular believe it may lead to the break up of the uk because demands for independence will be fueled by devolution It was argued that demand for devolution was over-exaggerated, especially in wales, so it was unnecessary It creates an extra layer of government, which will increase cost to the tax payer In Scotland it was feared that taxes there would inevitably rise because Scotland is less prosperous than the uk as a whole It will lead to confusion because there is an additional layer of bureaucracy Nationalists have argued that devolution does not go far enough. British government has retained all the important powers for itself Nationalists also argue that they should have a separate voice in Europe, but devolution does not give them this The west Lothian question

76. Constitutional reforms. The successes and failures SuccessesFailures Granting further devolution powersElectoral reform Fixed term parliamentsElected house of lords Human rights actReduction of hoc down to 600 mps Recall actHow of commons reform Freedom of information act Devolution in general Elected mayors Supreme court Epetitions