Major Constitutional Changes Since 1997

The Human Rights Act

The 1998 Human Rights Act (HRA) incorporated the European Convention on Human Rights (ECHR) into UK law.

The freedoms included in the HRA include the freedom to life, to a fair trial, to express yourself freely and from discrimination, among many others. The ECHR requires states to hold free and fair elections, abolish the death penalty, preserve family life and give foreigners the same rights as all citizens in a state.

The HRA means that any public body cannot act in a way which breaks the convention and that the judiciary must make rulings which are compatible with it. The Supreme Court can strike down secondary legislation that is incompatible with the HRA, but for primary legislation they can only issue a ‘doctrine of incompatibility’ urging parliament to change the statue; this is due to the principle of parliamentary sovereignty.

The fundamental rights of all British citizens are very clearly laid out in a single document which is easily accessible. There was an 8x increase in the number of human rights cases bought to the Supreme Court after the act was passed.

Some Conservatives resent the European link that the HRA has and want to replace the act with a British Bill of Rights that defines certain rights more narrowly. Despite the HRA, it is still possible for the government to restrict the rights of some individuals:

• In 2005, the government introduced control orders, allowing the authorities to restrict the movement of suspected terrorists. In order to do this, they had to declare an exemption from Article 5 of the HRA for those who fall under suspicion.

2005 Constitutional Reform Act

The 2005 Constitutional Reform Act created a separate Supreme Court as the highest court of appeal in the UK. Before this, the UK’s senior judges sat in the House of Lords (known as the Law Lords).

This had three major effects:

• Separated the government and the judiciary
• Formed a Supreme Court
• Reformed the judicial appointment process

The Supreme Court was formed to replace the Law Lords as the UK’s highest court of appeal. This reform separated parliament from the judiciary.

Prior to the changes, senior judicial appointments were made by the Prime Minister and Lord Chancellor, who are political figures. The Act established a Judicial Appointments Committee (JAC) to appoint candidates based solely on their legal qualifications and ability. The government makes the final decision on appointments but they must then be approved by the JAC.

Reforms were successful	– There is now a clear separation of the 3 branches of government which prevents abuse of power – The judiciary is physically and constitutionally separate from the executive and legislature allowing for greater judicial independence and strengthening rule of law
Reforms were not enough	– The Supreme Court is much weaker than its counterparts in most other liberal democracies. It cannot strike down legislation as that would weaken parliamentary sovereignty – The composition of the Supreme Court is not very diverse, however, neither is the group of well-qualified, experienced judges from which they have to choose from and is a problem in the judiciary as a whole

Electoral Reform

Electoral reform has remained an important issue in UK politics for many years including around voting age and the electoral system.

New Labour introduced various forms of proportional representation for elections to the European Parliament, Scottish Parliament, Welsh and Northern Irish Assemblies. The Additional Member System (AMS) was introduced for the Welsh Assembly and Scottish Parliament elections. Single Transferable Vote (STV) was used for the Northern Irish Assembly Elections.

In 2011, a referendum was held on introducing an Alternative Vote (AV) system for general elections to Parliament at Westminster. The referendum rejected the proposals and therefore the First-Past-the-Post (FPTP) system remained.

The voting age for UK citizens is 18 for general elections. In the 2014 Scottish independence referendum, the voting age was lowered to 16 for the first time. Many have since called for the voting age to be lowered nationally to 16.

Reforming the Constitution: Applying your knowledge

These are some example questions with example points that can be used in both 9 and 25 mark questions.

Has the House of Lords reform gone far enough?

The House of Lords Act 1992 removed all but 92 hereditary peers, making the Lords a mainly appointed chamber. This has modernised the chamber and made it more legitimate. The house is still unelected which allows for experts to be appointed who have experience in all realms of public life. Lord Norton, for example, is a politics professor and constitutional expert.

However, the idea that there are any hereditary peers is arguably archaic and outdated in a meritocratic society. There are 26 bishops called the Lords Spiritual but no representation like this for other religions. It could be argued that the Church and state should be completely separate in the Lords. The 2017 Burns Report argued that the Lords are bloated in size and costly to the taxpayer.

Overall, the House of Lords does perform an important function in scrutinising legislation but it is hard to reform the chamber as there is little political agreement on what to do with it. The Conservatives, for example, do not want to make the Lords elected as this could threaten the primacy of the Commons.

Was the Constitutional Reform Act 2005 sufficient in reforming the Judiciary?

The Act more closely separated the branches of government and embedded the idea that the judiciary is physically and constitutionally separate, strengthening the Rule of Law.

However, the Supreme Court is much weaker than other liberal democracies with codified constitutions. Parliament can pass any act it wants and the Supreme Court can merely declare them incompatible with the law as Parliament has the ultimate sovereignty. In addition, the Supreme Court is meant to protect the rights and liberties of citizens through the Human Rights Act but Parliament can overturn this with a new act. The composition of the Supreme Court is not diverse.

Changes to Devolution since 1997

Referendums were held in Northern Ireland, Scotland and Wales in 1997-8 in which people voted for powers to be devolved to new regional assemblies.

In 1998, the Scotland Act, Northern Ireland Act and Government of Wales Act established the Scottish Parliament, Northern Ireland Assembly and Welsh Assembly.

There had been a growing demand for Scottish independence and a need to unite the unionist and nationalist parties in Northern Ireland.

Has Devolution been successful?

YES

NO

– The Good Friday agreement and devolution to the Northern Ireland Assembly transformed the situation in Northern Ireland. Until the collapse of the power-sharing agreement in January 2017, the two main parties had been working together. – Although there are more calls for devolution to England, when a referendum was held on the idea of an elected regional assembly for the North East, the idea was overwhelmingly rejected.

– There have been multiple pieces of legislation devolving further powers to Wales in 1998, 2006, 2014 and 2017. One of the reasons for this increased demand was the imbalance in the powers given in 1998 when Wales gained fewer powers than Scotland. The Welsh nationalist movement has been growing and demand for further devolution continues. – Devolution did not stem the demand for Scottish independence. The 2014 Scottish Independence Referendum was only narrowly won by the Unionists. The Scottish National Party are now more popular and electorally successful than in 1998. There has also been further devolution to Scotland since 2016. – Since the 2016 EU referendum, there have been ongoing discussions over how Brexit will work for Northern Ireland, as it shares a border with the Republic of Ireland (an EU member). The Northern Ireland Act of 1998 will need to be amended as part of the Brexit process, causing possible conflict in Ireland. – It is argued that more devolution of powers to England is needed.

Reforms to the House of Lords since 1997

Demand for reform

Demand for reform came from a broad range of groups who wanted to modernise British institutions and a growing distrust in traditional institutions. There was also growing demand for devolution to Scotland and to fix the problems in Northern Ireland.

When New Labour came into power in 1997 under the leadership of Tony Blair they promised a wide range of constitutional reforms. There is still a debate about whether these reforms went far enough.

The 1999 House of Lords Act

Removed all but 92 hereditary peers. The Lords became a mainly appointed chamber, with peers appointed based on merit as opposed to by birth with the removal of most hereditary peers.

Was it enough?

• Yes – Removal of majority hereditary peers modernised the House of Lords and made it a more legitimate and professional body.
• Yes – No one party had a majority.
• Yes – An unelected house means that experts can be appointed.
  • For example, Lord Norton, a politics professor and constitutional expert.
• Yes – People from underrepresented groups in society can be appointed.
  • Lord Bird (ex-homeless man and founder of the Big Issue) represents homeless people, a group who often go unrepresented.
• Yes – Life peerages
  • Life peerages mean that peers don’t have to worry about election or removal from office if they make decisions that are unpopular with their party. This means, therefore, that Lords can consider the long-term interests of the country.
• No – There are still 92 hereditary peers – an idea that is outdated in a meritocratic society.
• No – There are 26 bishops but no representation for other religions.
• No – Party leaders still make political appointments to the House of Lords.
• No – The House of Lords still remains unelected despite being able to influence lawmaking and holding the government to account.
• No – It is very large and very costly, with over 800 peers, making it the second-largest legislative chamber in the world.
  • The 2017 Burns Report called for a reduction in the size of the House of Lords and for term limits of members.

Sources of the UK Constitution

There are 5 main sources of the UK constitution.

Statute Law	Statue law is all legislation created by parliament. Not all laws are considered constitutional – only those that deal with the nature of politics and government or the rights of citizens. Statue law is the most important part of the UK constitution due to the principle of parliamentary sovereignty. All other sources can be overridden by statute law. For example, the 2005 Reform Act created a separate supreme court; the 1918 Representation of the People Act allowed all men and some women to vote.
Common Law	Made up of customs and judicial precedent (when judicial decisions clarify the meaning of statute law or make rulings in the absence of statute). A lot of constitutional principles, such as the Royal Prerogative are part of Common Law.
Conventions	Conventions are customs and practices that are accepted as the way of doing things. An example is that the Prime Minister is the leader of the largest party in Parliament. Conventions can be removed or made permanent by statute law. The 2011 Fixed Term Parliament Act put into statute law the Government should resign if defeated in a vote of no confidence.
Authoritative Works	Authoritative works, such as Walter Bagehot’s ‘The English Constitution’ are books or written guides to the UK constitution. Although they are widely respected, they are not legally binding.
Treaties	Treaties are agreements signed with other countries. The most important treaties affecting the UK constitution are the treaty that entered Britain into the EEC in 1972 and the Maastricht Treaty (1992) which established the European Union. The EU withdrawal agreement is also an example of a treaty.