The UK Constitution (and devolution)

The UK Constitution (and devolution)

1. Evaluate the view the UK Constitution requires major change? Using points and evidence from planned source question

   • Paragraph 1 FOR ‘Without entrenchment it is too easy for a government with a simple majority to make significant constitutional change which may threaten fundamental rights’
     • Support: Parliament could overturn the Human Rights Act 1998 and therefore withdraw from the European Convention of Human Rights Conservatives have proposed replacing the Human Rights Act with a British Bill of Rights. The 2019 Conservative Party Manifesto provided a mandate to ‘update the Human Rights Act’. Following election victory the government set up a consultation exercise, with Johnson arguing for the HRA to be replaced by a British Bill of Rights, with supporters arguing this would distance the UK from European ideas and allow British common law and parliamentary determinations to prevail. Although critics like Sir Kier Starmer argue this specifically threatens the rights of poorer and more vulnerable citizens and would lead to an overpowerful executive.
       • AGAINST Paragraph 2 ‘Our rights have been protected and updated by political and protected by an independent judiciary’
         • Support: For example, in April 2016 judges overturned government plans to deny legal aid to people who have not lived in the UK continuously for at least 12 months. Other legislation includes the 2010 Equality Act The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society. It replaced previous anti-discrimination laws with a single Act, making the law easier to understand and strengthening protection in some situations. It sets out the different ways in which it’s unlawful to treat someone.
           • FOR Paragraph 3 'Many of the fundamental principles of the UK's political system exist in conventions, which are not enforceable.'
             • Support: Parliamentary conventions are not enforceable – Conventions such as the Sewel Convention and Ministerial Responsibility have become strained. Concerning the Sewel Convention which governs the relationship between Westminster and devolved assemblies, post-Brexit complications and the rise of nationalism in devolved nations have led to consent being withheld by devolved assemblies, the 2020 UK Internal Market Act was passed by Parliament anyway, which Scotland labelled it as a ‘power grab’ which ‘radically undermined the powers and democratic accountability of the Scottish Parliament. Secondly, ministerial responsibility has been undermined by Johnson’s ‘partygate’ scandal over breaking covid restrictions, as well as Home Secretary Pritti Patel’s ‘bullied’ her departmental staff by ‘shouting and swearing’ at them, no action was taken against her.
               • AGAINST Paragraph 4 Flexibility of the uncodified constitution allows Parliament ‘to respond flexibly to threats such as terrorism’.
                 • Support: Entrenchment of laws might eventually become out of date to social and political changes, we can look to the second amendment in the United States, first written 200 years ago, and has resulted in thousands of deaths to gun violence, as the codified US Constitution requires a 2/3 majority from Congress and approval from ¾ of the 50 states to overturn the amendment. Whereas in the UK, because of Parliamentary Sovereignty, gun laws were immediately tightened after the 1996 Dunblane Massacre, with the 1996 Offensive Weapons Act.
                   • Conclusion - Overall, the views in the source that the constitution requires major change, principally as laws need to be further entrenched and rights must be further protected, are outweighed by the opposing views in the source which place emphasis on the uncodified constitution’s flexibility, which is a strength, and that rights are already protected by legislation and the Supreme Court. In addition, we can look to the United States, whose codified constitution has resulted in major inflexibility to repeal the second amendment on gun rights for example, and whose Supreme Court has more power, so its judges are much more political than ours, which thus undermines their rights such as over abortion.
       • Exiting measures such as the ECHR could at anytime be overturned by a more authoritarian government with a substantial parliamentary majority. For example in 2004 it was argued the government dismantled Habeas Corpus when nine suspected but not convicted terrorists were imprisoned without trial. The House of Lords, the highest court at the time ruled the internment ran contrary to the HRA. Therefore, currently since judges still today can only rule on judicial review but cannot ultimately strike down legislation, suggests the need to further entrench the HRA and the powers of judges under a codified constitution.
         • Counterpoint - However, However, again, to further entrench human rights legislation to be constitutional, will thereforegive judges more power, which might, as has been seen in the US, unnecessarily politiicise them, at least in the long term. As in the US, Supreme Court justices have far more power, and have overturned human right rulings such as Roe v. Wade, 1973, in 2022, a woman’s right to abortion, which was arguably because of the numerous conservative minded justices amongst the nine of them. Therefore, to an extent rights may not be as protected as one would expect under a more powerful Supreme Court, under a codified constitution.