UK Government & Politics: Constitution and Human Rights Act 1998

Defining the Concept of a Constitution

• A constitution is defined as a set of laws, rules, and practices that establish the method in which a state is organised and how it functions.

• Constitutions determine the location of power within a state and between its major institutions.

• They outline the relationships that exist between the state and its citizens.

• A constitution can manifest in two primary forms:

  • Codified Document: A single document, such as the US Constitution, which contains specific articles (e.g., $7$ articles and $27$ amendments).

  • Uncodified Compilation: A collection of documents from various sources, such as the British constitution.

• The primary function of a constitution is to provide a defense against unchecked or arbitrary power. It facilitates limited government through appropriate checks and balances and ensures the state operates under the principles of "constitutionalism," which are underpinned by accepted rules and principles.

Fundamental Principles and Key Features of the UK Constitution

• The Westminster Model: Some view the UK constitution as straightforward, with power concentrated at the center in the hands of a few individuals.

• Key Characteristics:

  • Uncodified: The constitution is not contained in a single written document but derived from various historical sources.

  • Unentrenched (Flexible): There is no special procedure for amendment; the constitution can be changed by a simple Act of Parliament.

  • Unitary: A political system where all legal sovereignty is concentrated in a single place (the center), as opposed to a federal system.

  • Parliamentary Sovereignty: The principle that Parliament can make, amend, or unmake any law. It cannot bind its successors, nor can it be bound by its predecessors.

  • The Rule of Law: The principle that all individuals and bodies, including the government, must follow the law and be held accountable if they do not.

Historical Evolution and Constitutional Milestones

• The UK lacks a codified constitution due to its unique historical development, characterized by gradual and peaceful evolution rather than a revolution or major break (unlike the USA or France).

• The Interregnum ($1649$-$1660$): After the execution of King Charles I, Britain briefly became a republic under Oliver Cromwell. Documents like the "Instrument of Government" were attempted, but the restoration of the monarchy in $1660$ under Charles II ended the opportunity for a permanent written constitution.

• Chronology of Key Building Blocks:

  • Magna Carta ($1215$): An early document limiting the power of the monarch.

  • Bill of Rights ($1689$): Shaped parliamentary sovereignty and established principles regarding freedom of speech for MPs.

  • Act of Settlement ($1701$): Established rules regarding the succession to the throne.

  • Act of Union ($1707$): Joined the kingdoms of Scotland and England into Great Britain.

  • Parliament Act ($1911$): Reduced the power of the House of Lords to block legislation.

  • Parliament Act ($1949$): Further reduced the power of the House of Lords, limiting their ability to delay a bill to a maximum of one year ($12$ months).

  • Life Peerages Act ($1958$): Allowed for the creation of non-hereditary peers in the House of Lords.

  • European Communities Act ($1972$): Incorporated EU law into the UK constitution (highlighted later by the $2016$ Brexit vote as a demonstration of parliamentary sovereignty when the UK decided to leave).

Primary Sources of the British Constitution

• Statute Law: Laws passed by Parliament. It is the most significant source, allowing the constitution to remain flexible. However, because rights are not entrenched, they can theoretically be diluted or removed via statute.

• Common Law: Laws made by judges where existing law is unclear or does not cover an issue. These are based on precedents and judicial decisions.

• Royal Prerogative: Powers originally exercised by the monarch but now largely delegated to the government, such as the Prime Minister's ability to hand out honors or peerages.

• Conventions: Traditions and customs that are not legally binding but are highly influential in the operation of the political system. They lack legal backing but are traditionally followed.

• Authoritative Works: Long-established political texts written by experts that clarify the inner workings of the constitution. They possess "persuasive authority" rather than legal authority. Examples include:

  • Bagehot’s English Constitution ($1867$)

  • Dicey’s Introduction to the Study of the Law of the Constitution ($1885$)

  • Erskine May’s Parliamentary Practice ($1844$)

  • The Cabinet Manual ($2010$): Sets out how governments should be run.

• International Treaties: Formal agreements signed with other countries. A significant example is the European Convention on Human Rights (ECHR). All UK parliamentary legislation must conform with the ECHR.

Constitutional Reform Since $1997$

• Following the Labour Party's landslide victory in $1997$, Tony Blair introduced $12$ constitutional bills, aiming for "the biggest programme of change to democracy ever proposed."

• Major Themes of Reform:

  • Modernisation: Updating political institutions like the House of Lords and the Judiciary. The House of Lords Act ($1999$) removed most hereditary peers. The Constitutional Reform Act ($2005$) created a separate Supreme Court to uphold judicial independence.

  • Democratisation: Increasing public participation through the use of referendums, elected mayors, and electoral reform.

  • Devolution: Transferring power from Westminster to regional assemblies and parliaments in Scotland, Wales, and Northern Ireland to handle health, education, and transport.

  • Human Rights: Enhancing protections for individuals and minority groups. The Human Rights Act ($1998$) incorporated the ECHR into UK law, and the Freedom of Information Act ($2000$) increased transparency by allowing public access to government information.

The Extent and Clashes of Rights in the UK

• Protection Mechanisms: Rights are defended through statute law (e.g., Equality Act $2010$, Sex Discrimination Act $1975$, Race Relations Act $1976$) and an independent judiciary.

• Individual vs. Collective Rights:

  • Individual Rights: Apply to the single citizen (e.g., right to privacy, free expression, right to free education until age $18$).

  • Collective Rights: Protect specific groups (e.g., religious groups, disabled people, workers in specific jobs).

• Scenarios of Conflict:

  • Privacy vs. Security: Suspected terrorists may have phone calls monitored by the government, clashing individual privacy with the collective right to security.

  • Free Speech vs. Religious Belief/Hate Speech: The right to free expression may clash with the collective right of minorities or religious groups not to be subjected to hate speech.

  • Individual Privacy vs. Free Press: A celebrity's desire for privacy vs. the collective right of a free press to investigate stories in the public interest.

• Institutional Conflicts: The Human Rights Act has empowered judges to challenge government ministers. Terror threats have led to enhanced security and surveillance legislation, which some argue comes at the expense of civil liberties (protest rights, detention of suspects).

The Debate on Codification

• Arguments in Favor of Codification:

  • Clarity: Provides a clear definition of what is and is not constitutional/lawful, removing reliance on misunderstood conventions.

  • Modernisation: Removes the vagueness of custom and tradition to create a modern political process.

  • Entrenchment: Key rights would be protected from the "mercy of parliament" and made inalienable.

  • Executive Limitation: Reduces the heavy concentration of power in the hands of the executive.

  • Protection of Regions: Provides local governments and regional assemblies with permanent constitutional protection.

• Arguments Against Codification:

  • Flexibility: The current system allows for easier adaptation (e.g., calling early elections) compared to the rigidity of a codified document.

  • Tradition: Evolution is the hallmark of UK politics; codification would be an unnecessary revolution.

  • Judicial Politicisation: Unaccountable judges would gain the power to rule on the constitutionality of Acts, similar to the US system.

  • Practicality: Parliament would likely fail to reach a consensus on the content (e.g., which voting system to stipulate).

  • Lack of Demand: There is little popular demand for such reform, as evidenced by low engagement in the $2011$ Alternative Vote referendum.

  • Parliamentary Sovereignty: Codification would undermine the long-standing principle of sovereignty that many believe has served the country well.

Strengths and Weaknesses of the UK Constitution

Strengths:

• Flexibility: The uncodified nature allows for easy amendments and adaptations to changing societal needs and political climates, enabling swift legislative responses.

• Stability and Continuity: The gradual evolution of the constitution has provided political stability without the need for revolutionary change, fostering a sense of continuity in governance.

• Parliamentary Sovereignty: The constitution empowers Parliament to enact, amend, or repeal laws without being bound by previous legislation, representing a strong democratic principle.

• Protection of Rights through Statute Law: Many rights are protected through legislation (e.g., the Human Rights Act $1998$), providing a means for individuals to seek redress.

Weaknesses:

• Lack of Clarity: The absence of a single codified document can lead to confusion regarding constitutional rules and principles, making it difficult for citizens to understand their rights and obligations.

• Potential for Abuse of Power: With no entrenched rights or strict limitations, the government could potentially undermine individual freedoms or rights, given the strength of parliamentary sovereignty.

• Inconsistency in Interpretation: The reliance on conventions and common law can result in varied interpretations and applications, which may lead to unpredictable legal outcomes.

• Limited Protection against Changes: Rights could be easily altered or repealed by ordinary legislation, leading to concerns about the protection of fundamental rights and freedoms from populist pressures.