Overall Themes

1. Should the constitution be codified

2. Has devolution worked

3. Should England be devolved

Past paper Questions:

Evaluate the argument that there are more advantages to having a codified constitution than remaining with an uncodified constitution.

rights protection

could be argued that the constitution insufficiently protects rights

can be overturned by any new law

especially easy for a government with a large majority

rwanda bill struck down as incompatible with HRA, ignored

BUT

actually unlikely to really threaten rights

HRA is in practice somewhat entrenched, SC can offer declarations of incompatibility

A vs Home sec

popular support

laying out the separation of powers

a codified constitution would enable a clearer separation of powers and establish the roles of the relevant branches

conventions as especially ambiguous e.g. ministerial responsibility

proproguing parliament, authorisation for military action

BUT

in its nature the constitution actually enforces the balance of powers established in the UK

significance of statute law reinforces parliamentary sovereignty, twin pillar of constitution

has been successfully enforced e.g. SC ruling on proroguing parliament, Miller I case

modernising and evolving

allows for a modernising andn evolving constitution that adapts to new times

ability to pass the Equality act 2010, gun restrictions after Dunblane massacre, covid laws

constantly evolving, not bound by predecessors, no issue of out of date legislation

BUT

could give too much power to a government with a large majority

supremacy of statute law means that any parliament can change the actions of a previous one

Sunak suggested might leave ECHR to pass the Rwanda bill

Blair’s government passing

Evaluate the view that the logical next step after devolution to Scotland, Wales and Northern Ireland is the devolution of further power to England.

• most heavily populated but would upset federalism, could lead to specialised policies but already happens in Westminster, strong regional identities but don’t actually wan’t devolution

Evaluate the view that Constitutional reforms in the UK since 1997 have been weak, incomplete and require further change.

Have failed to achieve aims of democratisation, decentralisation and rights (New Labour) and are ultimately undermined and incomplete because of their weakness

Decentralisation:

Perhaps most successful area of reform

Achieved via devolution

• Scotland act, powers over social policy, laws, taxation, expanded by coalition government

• Good Friday Agreement, devolution in England and Wales (2011 referendum over lawmaking powers), Wales Act 2014 gaining control of Stamp Tax

Generally has successfully decentralised power away from Westminster, modernised the system (made it quasi-federal) and enabled more specific policy better reflecting different areas

BUT

Devolution has also created other issues, such as weakining the unity of the UK, and could also be viewed as an incomplete process

• Scottish devolution initially intended to limit calls for independence, but an independence referendum was held in 2014 (which led to greater devolution) and there have been calls for more referendums despite losing the 2014 one

• Lack of devolution within England has led to inequalities between citizens and political representation (e.g. Barnett formula, £11k vs £9k a head)

• EVEL as a continued problem, first used in 2016 but abandoned by 2021

Devolution has allowed for decentralisation and modernisation, satisfying some calls for greater representation and devolved powers but the way in which it has been carried out (uneven, limited in some areas) means that it is generally incomplete as a process and may have even undermined unity in the UK

Democratisation:

Have been attempts to democratise the UK system

• HoL reform under New Labour (1999) removed all but 92 hereditary peers, HoL appointments commission introduced, attempt to introduce an AV vote but 68% voted no in a referendum for it (using democratic processes like a referendum), introduction of the fixed term parliament act in 2011

BUT

many of these introductions have been weak and ineffective, ultimately because they remain un-entrenched as reforms and the PM ultimately retains power

• Fixed term parliament act was ignored in 2017 and 2019, and repealed in 2022 so had little effect (problematic because it gives PM and governing party an advantage e.g. Rishi Sunak currently choosing when to call an election)

• AV reforms haven’t been introduced despite Roy Jenkins’ report, and whilst there was a referendum the turnout was only 42%, so mandate is limited (link ideas of FPTP and governments who win are unlikely to change it)

• New Labour’s reforms to the HoL Judicial Appointments Commission have also been rendered relatively weak e.g. Johnson ignored them to appoint Lord Cruddas

Rights:

Have been some rights protections introduced, allowing the UK to protect citizens and modernise its system

• ECHR incorporated into law, Freedom of Information act 2000, creation of the Supreme Court in 2005 (has also meant a greater separation of powers and more checks and balances)

BUT

• Conservatives consistently pushing for a British Bill of Rights and scrapping the ECHR, more imbalance and uncertainty after Brexit

• Rights can be suspended to protect the group e.g. rights of suspected terrorists in 2005

• Incomplete: prisoners don’t have the right to vote

• Rights reforms have been largely ineffective because of the lack of codification e.g. the Supreme Court rejected the Rwanda Bill as unlawful in 2023, but the Conservatives just amended the law, currently ping-ponging between the Commons and the Lords,

Ultimately because of a lack of codification, rights protection in the UK has remained weak and incomplete, ultimately contingent on the PM who holds significant power over them

Evaluate the view that devolution is in danger of undermining the unity of the United Kingdom.

increases regional differences but actually limits calls for independence

In some ways devolution arguably highlights divides existing within the UK e.g. popularity of devolution in Scotland (74% yes, 1998) and the SNP’s push for independence continually

BUT

increasing powers to Scotland in 2016 Scotland Act in an attempt to limit calls for independence, Welsh independence actually very low e.g. a Plaid Cymru independence rally only had 10,000 attendees

Also essential for the unity of areas like Northern Ireland, although success of devolution has been limited (1972, 2002, 2017)

asymmetry across the UK but actually vital in preventing Westminster dominance

Devolution has led to differences in law and policy across the UK

education in Scotland and Wales, cultural preservation e.g. Welsh language, difference in health e.g. free prescriptions, expansion into tax powers (2016 Scotland - control 50% of all VAT, welsh control of 36% expenditure), policies are different to those in the UK, distinguishing different types of citizens, would appear to increase divides

BUT

the extent of asymmetry is actually limited e.g. Scotland tried to pass a gender recognition bill in 2022, which Westminster and the courts refused as it would have created too profound a kind of asymmetry

Also allows for specialised policy and regional protection e.g Welsh being a compulsory subject in all schools

issue of English devolution and lack of but actually very limited desire

Perhaps where the question of devolution poses the biggest questions is on the subject of English devolution, should England be devolved, EVEL, disadvantaged under Barnett formula (£11k per head in Scotland versus £9k per head in England), asymmetry and a lack of unity is most evident here - London having devolved powers undermining unity within England itself

BUT

although this would appear to challenge unity, actually isn’t a very popular policy; 78% voted against devolved powers in the North East (regionalist area) in 2004, EVEL was repealed as a policy in 2021, clearly not a demand showing an apathy about devolution: not actually causing issues?

Evaluate the view that the UK needs a codified constitution.

protection of human rights, modern evolving constitution, ensuring democracy

argument: no, although it is unusual to have an uncodified constitution it allows for the UK to constantly modernize and adapt without truly threatening human rights or democracy

Paragraph 01:

for codification: would protect and entrench human rights

• US bill of rights cannot be altered whereas 1998 human rights act can (attempted by conservatives in 2015)

• codification means people could call upon their rights more easily e.g. calling upon the fifth in America)

• Suella Braverman calling for amendments to human rights act

• Rights of the most vulnerable have been negotiated with for political gain e.g. Rwanda and prisoner

BUT:

no significant change has actually happened and it even stays up to date

• freedom of information act in 2000, still enforced even though it was unpopular,

• Emergency powers can be easily affected e.g. Coronavirus Act 2020 – removal of rights in the interest of public safety

• reflects changing opinion e.g. same sex marriage act 2013

• bills causing significant change undergo a lot of scrutiny

Summary: actually allows for up-to-date human rights without any real threat being posed to human rights, relies on popular support for major constitutional change (rights are socially entrenched)

Paragraph 02:

against codification: allows for a modern constitution in line with current principles that can constantly adapt to new events

• gun laws tightened after Dunblane massacre (human rights compared to US),

• devolution demands responded to

• independence for Scotland could be considered

• more democratic future as a result of uncodified constitution

BUT: some reforms have been unpopular or unsuccessful

• AV referendum voted against hugely

• low demands for welsh devolution

But even when constitutional reform is unpopular/does not take place, it still demonstrates the ability of the constitution to adapt and modernize to people’s desires, stay democratic

Paragraph 03:

against codification: ensures the UK stays democratic

• changes to the previously less democratic house of lords in the house of lords act 1911 and salisbury convention

• house of lords reform

• referendums for constitutional change e.g Brexit

BUT:

• these changes can be ignored such as House of Lords blocking money bills in Oct 2015 and breaking salisbury convention - conventions are weak -

• also, issue of parliamentary sovereignty, can technically reform whatever it wants to

BUT: it won’t, parliament relies on popular support

thus: uncodified is good

Other options:

Restoring judiciary power if it were codified

Would rightfully move power from executive to judiciary · Independence/neutrality secured by appointment process (JAC) · Moreover, would move power away from the executive allowing for greater accountability o Ministerial code is negotiable presently e.g. BJ in 2022 · Currently, courts have had their powers reduced by government o Judicial Review Act 2022

BUT

Would unfairly move power from executive to judiciary · Judges already have appropriate powers to protect rights – DoI, JR · Judges are unelected and don’t reflect the people o Descriptive issues e.g. 87.5% male, 87.5% Oxbridge educated · Executives cannot execute their will without parliamentary consent – they can be voted down

Respecting pre-existing principles if it was codified

Codification would bring clarity to our constitutional principles · Conventions are too easily negotiated with o Prerogative powers such as Syria 2013, Yemen 2024 or Salisbury Convention – 2015 Lib Dem Lords vote down Right to Buy extension in Lords · Confusion over the unitary state/devolution - Sewel convention ignored with Brexit

BUT

Parliamentary sovereignty would be usurped by constitutional sovereignty · PS ensures Parliament can act quickly, and express the will of the people · Current set up offers a flexible arrangement with devolved nations constitution has afforded e.g. extension of powers through Scotland Act 2016

★ Evaluate how far constitutional reforms since 1997 have undermined the power of Parliament.

Evaluate the view that the UK’s constitution requires major change.

Evaluate the view that the most important source of the constitution is statute law

convention vs statute law

as unwritten rules considered to be binding on all members of a political community, conventions are significant in informing political action

e.g. convention that royal assent is given, last denied in 1701, would cause uproar if it wasn’t given

referendums used on constitutional decisions since 1997 e.g. Brexit

salisbury convention

BUT

conventions are not always strongly enforced e.g. ministerial responsibility

perhaps that has motivated the conversion of conventions into statute law

e.g. lascelles principle — fixed term parliament act (since repealed)

following the 1909 budget crisis, the 1911 parliament act was introduced

more weight behind statute law, making them more important

common law vs statute law

another important part of the constitution, particularly regarding the ‘rule of law’ (A V Dicey) is common law

significant parts of common law e.g. innocent until proven guilty

also important for legally interpreting statute law e.g. equality act 2010

BUT

similarly to conventions, common law is increasingly being converted to statute law

innocent until proven guilty became statute law in 1671

2013 crime and courts act clarified what reasonable force meant

parliamentary sovereignty

statute law is particularly significant as a source of the constitution because it reinforces the fundamental principle of parliamentary sovereignty, where no parliament is bound by its predecessor

e.g. statute law can be overturned