reforming the constitution

reforming the constitution

1. evaluating codification

   • arguments for status quo
     • flexibility
       • power has moved away from the crown and towards the government. many of the prerogative powers were taken over by the PM and the power of the monarch to make law was lost in the glorious revolution. in countries with a codified constitution changes have tended to cause major upheaval and even violent revolutions e.g the two world wars
       • the PM has become more significant mainly due to media concentration and importance of the office. the growth in the power at expense of the cabinet has been natural and gradual
       • after threats from terrorism, in placed with a codified constitution it is hard to pass wide ranging terrorist measures because of constitutional constraint e.g. gun control. in the UK the lack of constitution allows parliament to act as it wishes e.g after the Dunblane massacre.
     • executive power
       • due to the lack of constitutional constraints in the UK the gopvernment can become more powerful. this can be positive or negative. some say that it is better for the government as they can deal with problems and crisis' without inhibition. however, in the USA the government and congress are prevented from acting decisively due to fear of the constitution stopping them. e.g the battle against crime has been compromised due to constraints. in the UK the relationship between the executive and parliament is flexible where in other codified countries constitutions can hinder effective government
     • conservative pragmatism
       • the typical conservative attitude tot he british constitution suggests that it has served britain well for centuries. there have been no violent revolutions or major political unrest. change has occurred naturally. also to codify the constitution it would be hard with few benefits and would not be worth the problems it may cause
     • politicising the courts and judiciability
       • a codified constitution would involve the courts . in the USA many issues have been politicised. there would be conflicts over the powers of the government, the nature of rights, relations with the EU or between devolved countries. these problems become more common with an uncodified constitution. the constitution can become judiciable. the problem with this is that judges are not elected and are not accountable and critics say that politicised issues should not be decided by judges, but by elected representatives
   • arguments for a codified constitution
     • human rights
       • reformers say there is a stronger need for safeguards for individual and minority rights. britain has adopted the european convention of human rights by this can be overriden by parliament as it remains sovereign and no constitutional legislation can remove it. in a codified constitution this could not happen
     • executive power
       • liberals and other reformers argue that the executive and governmental power is excessive in the UK. the say that the overly powerful government thtreatens individual rights, minorities and the influence of public opinion. a codified constitution would inhibit greater executive power. people also say that for us there are no effective checks and balances on our government or parliament
     • clarity
       • most citizens don;t understand the concept of the constitution as there is really no such thing as a british constitution. this means there is an argument for creating a real constitution so that british people are aware and support can grow. if people know and understand their rights better this might cure political ignorance and apathy
     • modernity
       • because britain doesn't have a constitution people say that we are backwards and haven't entered the modern world. this has become more pressing since we joined the EU as it has been frustrating trying to make a coherent relationship

2. strengths and weaknesses of our constitution

   • strengths
     • it is flexible and adaptable to changing circumstances. this was shown with the coalition government as plans were drawn up quickly and it was implemented with little disruption or conflict.
     • it is traditional and has stood the test of time. due to the fact that we have suffered no revolution or major political unrest suggests that the constitution has enduring qualities so we should keep the status quo
     • it ensures that the government and parliament can act decisively, unrestricted by constitutional restraints.
     • it has traditional elements such as the lords and the monarchy wich help to maintain public support for the system
   • weaknesses
     • the lack of restraints on the power of the government and parliament may be dangerous to individual and minority rights
     • it contains traditional and outdated institutions such as FPTP, the monarchy and the lords. these are also accused of being undemocratic
     • the lack of separation of powers between the government and parliament means that the government seems to dominate parliament. this is often seen as undemocratic as parliament represents the people
     • the fact that the constitution is uncodified means that people are ignorant to it. this is the result of political apathy and lack of support for the political system.

3. labour's agenda in 1997

   • they wanted reform and three things made this possible:
     • it had always wished to promote constitutional reform but lacked the political control. it had always been an ideological committment of the socialists. as a party they have always promoted popular democracy, equal rights and the reduction in establishment powers. the constitution was seen as the embodiment of traditional priviledge and inequality. the undemocratic lords is a good example as in the mid 90s it was clear they were going to win the election. in this knowledge they could include constitutional change in their political programme
     • labour had experienced two long terms of conservative power where it felt excluded. the constitutional change therefore included policies which would stop one party dominating the system. it was ironic that by 3005 labour had experienced so much power that its proposals could be used against itself.
     • there was public support for reform. polls had indicated that the majority would be in favour of change but this support had always been seen as soft as it was not high on anyones list of concerns. however, by 2005 support was hardening which also showed support for the lib dems
   • the principles of labour reform
     • democratisation
       • too much of the system was seen as undemocratic e.g lords as it was unelected, but also the unrepresentative electoral system
     • decentralisation
       • due to the powerlessness labour had felt due to the consrvative domiantion. labour designed a programme to disperse power away from central government to the regions and localities.
     • the restoration of rights
       • during the 80s there had been fears that the rights of citizens had been eroded. labour wanted to bring the UK more into line European practice of constitutional matters so they proposed to implement the european convention of human rights into british law. in addition the freedom of information act was seen as a drive to create a more accountable government e.g. expenses scandal
     • modernisation
       • the conservatives had not sone much modernising and the labour party wanted to turn towards modernising parliament. the composition of the HoL was key to this. but they also wanted to make the commons more efficient and effective.

4. parliamentary reform

   • human rights act
     • why?
       • desire to bring our constitution in line with the EU to protect individual rights
       • the increase in the power of the police and courts was seen as a threat to rights
       • our government had been brough before the european court of human rights 50 times and lost all of its cases, while not legally binding this was an embarrasment
       • new labour stressed active citizenship ehci included cotozens having reponsibilities to their communities and the country as a whole. in return it was believed that rights would be understood and safeguarded
       • it was part of the devolution settlements that they should be bound by the convention. this was designed to reassure citizens of the nations that devolution would not be a threat to their rights
     • how it works
       • it is binding on almost all public bodies and can be enforced by a british court of law. people who are bound are: the devolved nations political systems, local authorities, gov ministers, gov executive agencies and quangos
       • regulations and actions of these bodies can be scrutinised and declared unlawful which will cancel the action and may lead to compensation
       • the exception to this is parliamentary legislation as the convention cannot be considered superior to parliament. when declaring a law the minister has to say whether it is compatible or not with the convention. this is taken into consideration in debates.
     • in context
       • some say it is radical as it is the first codification of rights in british history. but is is also seen as an advance in protection fo individual rights against the state
       • some say it doesn't go far enough due to it oreserving parliamentary sovereignty. it also fails to deal with the central governents control over parliament. which it would have been if it was binding on parliamentary legislation
       • the belmarsh case with the suspected terrorists meant that parliamentary sovereignty dictated that the government didn't have to obey the decision of the fact that their holding was against human rights, the government felt that the repercussions of the act was so great thta they had to act. this suggested that the passage of the HRA was more drammatic than first thought
   • labour decided that it was no longer acceptable to have a legislature based on hereditary peerages but labour were scared due to the second chamber having a conservative majority. but labour had a majority in the commons so they could force reform through.
   • the easy part was to remove the hereditary peers, so in 1998 the peers were reduced from several hundred to 92, this removed the conservative majority and enhanced the demcoratic legitimacy of the chamber. but this was the first step
   • the difficult part of the reform was deciding on the best new composition for long term benefits. by 2008 there was still no agreement as to whether leave the lords as fully appointed without any hereditary peers or have a combination. this was never resolved as the 2010 election was a conservative and liberal coalition and the 2015 election is convervative.
   • reform of the commons has largely been superficial but there has been some stregthening of the departmental select committees and primeministers question time. attention has shifted to reform and pay due to the expenses scandal of 2009

5. electoral reform

   • new labour and electoral reform
     • originally they were split on the issue but they thought that they needed electoral reform to break the conservative hegemony.
     • they were also committed to modernisation and FPTP was beginning to seem out of date and undemocratic. due to the split they had the plant committee suggest reform and they came up with the additional members system used in germany. another report was made by jenkins which reccomended AV+.
   • reform after 1997
     • the coalition government posed the AV referendum question to the public but it was a resounding No. so there seems like little apetite for electoral reform and more mandate to stick to the status quo

6. freedom of information act

   • the lack of citizens rights to obtain publicly held information was where the constituion leagged
   • there were two strands to freedom of information: one gives the right to citizens to see information that is held about them by public bodies and the other concerns the right to see documents and reports that are held by the government and its agencies. in other words the public had the right to see into the workings of the government. . parlaiment and the media would have the most access to information. this in theory shows a move towards an open government and would end secrecy
   • however, there are exceptions as the british government has the power to conceal information if it feels it is in the national interest. so the outsider must prove that the information must be released.
   • when the act was passed, HRA campaigners though it was weak. but this is not so, shown by the expenses scandal of 2009 where the information was released under the freedom of information act which was leaked by the daily telegraph. it gave details into the abuse fo the expenses system by MPs. many were forced to give up their seats and meant that the system had to be radically reformed.

7. local government

   • the governments enthusiasm for reform of local government withered after labours office in 1997. cities towns and districts have been goven opportunity to elect mayors following a local referensum but few were held and only 11 votes in favour of an elected mayor
   • it will also become an ineffective reform if mayors are marginalised like livinston was
   • local authorities have been goven option of changing to a cabinet system of government. which involves the creation of a central cabinet of leading councillors from the dominant party or from a coalition who may take over central control of the councils work, making key decisions and setting geneal policy. this replaced the previous system of the council being divided into fuctional committees. but the take up of this has been patchy.
   • the local governent reforms don't seem to tackle three major issues:
     • lack of autonomy from the central gov
     • lack of accountability to local electorates
     • low public interest in local government and politics- mainly due to the first two reasons
   • in 2010 david camerons big society ideal could mean a shift away from local authority and more towards voluntary groups but radical reform is unlikely.

8. london government

   • in 198t the greater london council, a powerful local government was abolished by the conservatives due to thatcher wanting to remove power from the socialist enclave. to her it was seen as wasteful and a burden on taxpayers. however, this left london without any central government. instead it was divided up into 33 borouhg each with their own powers.
   • labour wanted to restore the government to london which was seen as an extension of local government. they also introduced elected mayors with executive powers.
   • in 2000 following a referendum the people of london approved the introduction of an elected mayor and essembly and votes were held. however, legislation seemed to ensure that neither would enjoy a significant amount of political power
   • the mayor controlls the allocation of funds within london but the assembly has the power to veto his budget with a two thirds majority. thye mayor also has power od appointments but this is checked by the assembly as they can veto. this is similar to the checks and balances system in America. the assembly also uses AMS which is meant to mean that no single party can dominate. but this means the mayor will almost always face obstruction. e.g. in 2008 the conservatives won 11 seats while labour won 8 and the lib dems 3.
   • has the mayor made a difference
     • they were granted fairly limited power under legislation. howver, it could be said that Ken Livingston and Boris Johnson have been involved in several significant develooments in london
     • e.g. the implementation of a congestion charge was livingstons most decisive action. the revenue from this has been diverted into public transport.
     • livingston was influential in gaining central government approval for the crossrail system in london, in effect the construction of the new east-westrail link.
     • while the mayor does not control expenditure on the police, livingston and johnson secured home office funding for an increase in the number of police officers in the capital to its highest level ever. they also introduces 3,000 community support officers.
     • it was livingstons part in securing the securing on the london 2010 olympic games tha proves the most important in the longrun. he was one element of a large team that bid for the games. boris oversaw the development of the olympic sites
     • as a keen cyclist boris made london more cyclist friendly. he also promised to improve the bus system

9. reform of the judiciary

   • lord chancellor
     • it was seen as crucial that there was a clearer separation between senior members of the judicuary and the government. in the past the position of the lord chancellor had been ambigious and he was a cabinet minister, a senior member of the government and at the same time the head of the judiciary and the presiding officer of the HoL.
       • this meant he was in all three branched of government. people thought the roles would interfere with eachother and the lack of independence had to be addressed.
   • the highest court of appeal was the HoL
     • this meant the lords met as a court rather than as part of parliament. there were 5 law lords who would hear appeal cases often of plitical consequence. but people said that people part of the legislature shoudl not also be part of the judiciary. people wanted more separation of powers.
       • therefore in 2009 the supreme court was opened and began work immediately to establish its new independence. it has the same powers as the old HoL
   • the lord chancellor and PM appointing senior members of the judiciary
     • there was danger that such appointments would be made with a political bias rather than on legal qualifications.
       • as a result a judicial appointments committee was set up to ensure that candidates were suitable. but the government had final say
   • principals of judicial reform
     • separation of powers
     • independence of the judiciary
     • eliminate ambiguity in the role of the lord chancellor
     • bring britain into line with modern constitutional practice

10. assessment of reforms

    • lords reform falls short of being properly accountable , authoritative and representative, onyl fully elected chamber would fix this
    • the house of commins is still ineffective and inefficient due to lack of government accountability and only revitalisation of the commons would solve this
    • the HRA can be trampled on by parliamentary sovereignty
    • the freedom of information act is curbed by the government still being able to conceal info
    • labour has failed to deliver electoral reform

11. prospects of reform after 2010

    • fully elected chamber
    • fixed term parliaments
    • power to recall an MP
    • reduction in size of the commons