Title:
URL Source: blob://pdf/4cab0041728c6f299bb1039fe52b9e17
Markdown Content: 21
KEY QUESTIONS ANSWERED
l What is a constitution?
l How do we evaluate a constitution?
l What are the general features of the British Constitution?
l What are the main sources of the British Constitution?
l What are the main milestones in the history and development of the
British Constitution?
l What have been the main changes to the British Constitution since 1997
and how effective have they been?
l How well does the British Constitution and recent legislation protect
citizens rights?
l What are the differences between individual and collective rights, and
how can they both clash and coincide?
BACKGROUND INFORMATION
It might seem a strange way to begin a study of politics, but if you go to a
sporting event, what do you see? Well, you can see players in a competitive
game aiming to win and you can see supporters cheering on their team. We
can observe politics in a similar way politicians are competing for power
(to win) with supporters and opponents also taking part (cheering on their
team). But look more closely and you should also notice that the players are
observing a set of rules , like the offside rule, a set number of players in a
team etc. In politics, this role is fulfilled by a constitution the set of rules
by which politics is conducted. And what happens in parliament (or the US
Congress or the European Parliament for that matter) and in the national
media is the match. Therefore, to understand how politics runs, you need
to study and understand each countrys constitution. As the nineteenth-
century political journalist Walter Bagehot (whom we shall encounter later
on in this chapter) stated, On all great subjects much remains to be said
and of none is this more true than of the English Constitution.
Constitutions come in all shapes and forms, and many especially those of
authoritarian states and dictatorships may not reflect the reality of politics
in that country. For example, in 1936, Article 125 in the Constitution of the 1 The nature and sources of the British Constitution
3
USSR promised freedom of religious worship when in reality Stalins regime
saw intense persecution of all religions.
So how should a constitution in a Western liberal democracy be judged and
evaluated? Key points could include the following:
l
A guarantee of free, fair and democratic elections
l
Respect for individual human rights, individual consciences and promotion
of tolerance
l
Balance of individual rights with broader collective rights
l
Lays out clearly where power and decision-making lies, and addresses the
notion of sovereignty, i.e. where final power and authority lies
l
Has clear mechanisms for resolving problems and conflicts when
conventional decision-making proves problematic, e.g. in 2016 and 2019 in
relation to Brexit
l
Is easy to understand and encourages citizens to participate in the political
process
l
Can be adapted and is flexible to changing circumstances while retaining
core values and a sense of national identity (although the latter is likely to
evolve over time)
l
Upholds the rule of law through an independent judiciary, which ensures
that everyone is treated equally irrespective of position, privilege or wealth
More widely, a well-functioning constitution promotes a wider sense of
political stability and shared prosperity.
If you venture to Washington, DC you will be able to view the US Constitution.
The original parchment document along with subsequent amendments
is on display to the public in the National Archives, behind a formidable
bulletproof set of glass display cabinets. No such equivalent exists for the British
Constitution. Have you got a copy of the British Constitution? the journalist
Woodrow Wyatt once wrote to Prime Minister Margaret Thatcher. I would
like to see one. The question was of course ironic. The British Constitution is
actually found in multiple places and in various forms. It is not a single codified
document. It does, however, have several distinguishing characteristics:
l
The British Constitution is uncodified , m eaning it is not found in one
single document or place.
l
It is defined as unitary, meaning most power lies with the centre, namely
the Westminster Parliament. This contrasts with states such as the USA
and Germany, which have federal systems of governments in which
considerable power lies with individual regions or states. The Tenth
Amendment of the US Constitution expressly states that Powers not
delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States. Arguably the development of devolved
assemblies in the UK regions has weakened this aspect of the British
Constitution in recent years, leading some political commentators to define
the current Constitution as quasi-federal.
l
It is characterised by parliamentary sovereignty . I n other words,
parliament has the final say on what the Constitution contains. This is
sometimes phrased as No parliament can bind its successor, meaning
what one elected parliament enacts as legislation a later parliament can
change or revoke. A classic example is UK membership of the European
KEY CONCEPTS
Codified A constitution in which all provisions are written down in a single set of documents, e.g. the US Constitution. Uncodified A constitution that is not contained in a single set of documents, e.g. the British Constitution. Parliamentary sovereignty The principle of the British Constitution that makes parliament (as opposed to the courts or prime minister) the ultimate authority.
KEY CONCEPTS
Individual rights Rights that belong to each citizen, e.g. the right to free speech or to practise their religion or lifestyle choice without discrimination. Collective rights Rights that lie with groups of people, e.g. members of a trade union or people with disabilities. Rule of law The principle that the law is enforced and that it is applied equally to everyone, including the government. THE GOVERNMENT OF THE UK 4
Union. Parliament voted to join what was then termed the EEC through the
European Communities Act 1972. This Act was later repealed by the laws
that enabled Brexit, namely the European Union (Withdrawal) Act 2018
and the European Union (Withdrawal Agreement) Act 2020.
l
In addition, like the constitutions of all liberal democracies, the British
Constitution operates under the rule of law. This means that the law applies
equally to everyone, including those who make the law. For example, the
prime minister and ministers must not exceed their lawful powers, even
though they themselves made the law in the first place. If they do, their
actions can be challenged in the courts and they can be found guilty of
acting ultra vires (beyond the law). The nineteenth-century political writer
A. V. Dicey referred to parliamentary sovereignty and the rule of law as the
twin pillars of the British Constitution.
SYNOPTIC LINK
Parliamentary sovereignty is significant as it allows for the British
Constitution to be flexible and adaptable. It can be changed simply by an Act
of Parliament. By contrast, the US Constitution is sovereign, hence all laws
passed by Congress must comply with the Constitution. Formal amendment
of the US Constitution is complex and therefore rare. You can find out more
about the US Constitution in Chapter 11.
The British Constitution is derived from a variety of sources, including:
l
constitutional statute law
l
common law
l
the royal prerogative
l
conventions
l
works of authority
l
international agreements
Statute law refers to Acts of Parliament, which form the most important
source of the British Constitution. Constitutional statute law includes laws that
define who can vote (e.g. the Representation of the People Act 1969, which
lowered the voting age from 21 to 18) and human rights (e.g. the Human
Rights Act 1998, which incorporated the European Convention on Human
Rights into UK law). In addition, before the UK left the European Union in
January 2020, European law indirectly formed part of the British Constitution.
This meant that European laws and treaties (such as the Lisbon Treaty signed
in 2007) automatically took precedence over any laws passed by Westminster
and were binding on the UK government. This represented a clear if ultimately
temporary limit on parliamentary sovereignty.
The twin pillars of the British Constitution are parliamentary sovereignty and the rule of law
KEY CONCEPT
Statute law Any law that
has been passed by both
houses of parliament and has
received the royal assent.
STUDY TIP
In an exam answer, avoid
the error of referring to
the British Constitution as
unwritten. It is uncodified.
This contrasts with most
modern constitutions. 1 The nature and sources of the British Constitution
5
Common law comprises laws or rights passed down over the years by legal
judgements in the courts, a process known as judicial precedence. Examples
include freedom of expression and the criminality of murder. Common law
can be and often is modified by statute law. For example, while there is not one
specific law that makes murder a criminal offence, there is the (obvious) notion
that it is a crime and has always been viewed as such by the state. Many statute
laws over time have dealt with the punishments for murder, such as abolishing
the death penalty in 1965.
The royal prerogative is the residual or remaining powers exercised in the
name of the Crown. They range from high-profile powers, such as the power
to seek a dissolution or prorogation (suspension) of parliament, to less well-
known ones, such as the issuing of UK passports. For example, in August
2019 Prime Minister Boris Johnson sought the Queens permission to prorogue
parliament for a longer than usual period of 5 weeks, a move seen by his critics
as an attempt to avoid full scrutiny of the governments Brexit proposals. The
date set for withdrawal was changed to 31 October. Prorogation was duly
granted, but then subsequently ruled illegal by a unanimous 11-0 judgement of
the UK Supreme Court in September 2019, which was of the opinion that the
action was unlawful.
When it comes to issuing passports, the relevant government guide states:
There is no statute law governing the grant, refusal of British
passports, which are issued in the United Kingdompassports are
issued in the UK at the discretion of the Home Secretary. They are
issued in exercise of the Royal Prerogative, which is an executive power
that doesnt require legislation.
In its modern incarnation, the royal prerogative could be seen as a key factor in
boosting the powers of the prime minister and the executive.
SYNOPTIC LINK
The controversy over Prime Minister Johnsons efforts to prorogue
parliament is a good example of the courts getting involved in party
politics. To Brexiteers, including the prime minister, this was portrayed
as a deliberate attempt by the courts to frustrate the task of getting
Brexit done. To others, it was the judiciary acting properly to uphold
parliamentary sovereignty and to rein in an excessive power grab by the
executive. You can find out more about the power and function of the British
judiciary in Chapter 4.
KEY CONCEPTS
Common law The body of
legal precedent resulting from
the rulings of senior judges.
Sometimes referred to as
case law or judge-made law.
Royal prerogative The formal
powers of the monarch that
are, in practice, exercised by
the prime minister and the
government. The modern
monarchy must be above
party politics and plays only
a ceremonial role. Important
prerogative powers, such as
appointing ministers, making
international treaties and
calling general elections, lie
with the executive and not the
legislature.
STUDY TIP
Most statute law is not
constitutional statute law.
For example, education acts
or the annual finance act
that passes the chancellors
budget do not affect the
Constitution. Additional
examples of constitutional
statute law include the
Constitutional Reform Act
2005, which set up the
UK Supreme Court, and
the Wales Act 2017, which
devolved further powers
to the Welsh Parliament/
Senedd Cymru. THE GOVERNMENT OF THE UK
6
If laws are the nuts and bolts of the British Constitution, then conventions are
the oil and grease that enable politics and particularly parliament to function
efficiently and smoothly. Conventions are not written down anywhere but are
generally agreed rules and procedures. One good example is the Salisbury-
Addison Convention of 1945. Following Labours landslide election victory, the
then Tory-dominated House of Lords agreed not to delay any of the manifesto
promises of Clement Atlees new Labour government, which included the
establishment of the NHS.
Another important convention is that after a general election, the
monarch formally invites the leader of the largest single party to form a
government. When one party has won an overall majority, as in the 2019
general election, this is straightforward. However, when there is a hung
parliament, i.e. no single party has won an overall majority, as happened
in the 2010 general election, the leader of the party with the most seats is
invited to be prime minister. In 2010, this was David Cameron. Had he
not secured a coalition agreement with the Liberal Democrats, the Queen
would then have appointed Labours leader, Gordon Brown, to be prime
minister.
Perhaps the most important convention in terms of legislation is that the
monarch gives royal assent to all bills that have been passed by both houses of
parliament. The last time royal assent was withheld was in 1707, when Queen
Anne refused to sign the Scottish Militia Bill. Denial of royal assent today
would create a constitutional crisis.
Works of authority are arguably the least visible and clear sources of
the British Constitution. They generally comprise a variety of books and
documents that deal with areas including parliamentary procedures and the
responsibilities and duties of government and ministers. Among the most
important are:
Walter Bagehots The English Constitution (1867)
Bagehot sought, among other things, to distinguish between dignified and
efficient aspects of the Constitution. For example, the monarch was clearly the
dignified part of the Constitution, having no real political power by the time
the book was written, while the cabinet (memorably defined by Bagehot as
A combining committee a hyphen which joins, a buckle which fastens, the
legislative part of the state to the executive part of the state) held most of the
real power, emerging as it does from the House of Commons, the ultimate
authority in the English Constitution.
A. V. Diceys Introduction to the Study of the Law of the
Constitution (1885)
Dicey was an Oxford law professor and sought to explain and identify the
main characteristics of the British Constitution. This included identifying
not only his twin pillars of democracy, but also conventions such as The
King must assent to, or (as it is inaccurately expressed) cannot veto any bill
passed by the two Houses of Parliament. He also strongly asserted the notion
of parliamentary sovereignty, commenting that parliament was an absolutely
KEY CONCEPT
Conventions Unwritten rules and procedures mostly concerned with parliament that facilitate the smooth running of the Constitution. When conventions are broken it can often lead to problems and deadlock. 1 The nature and sources of the British Constitution 7
sovereign legislature and that under the English Constitution it possessed
the right to make or unmake any law whatever. He memorably reinforced
this point by quoting from the eighteenth-century Swiss political theorist
Jean-Louis de Lolme, that parliament (in England) can do everything but
make a woman a man and a man a woman.
Erskine Mays Parliamentary Practice first published in 1844
Mays book, the most recent update of which was published in 2019, is
often referred to as the Bible of parliamentary procedure and is regularly
referenced by the speaker of the Commons when making rulings about the
conduct of parliamentary business and debates. It includes the standing
orders of each chamber, historical precedence and key rulings by the
speaker. While this might all sound arcane and technical, it does spring to
public prominence on occasion. For example, in March 2019 then speaker
John Bercow cited a 1604 convention to prevent Prime Minister Theresa May
from bringing her Brexit withdrawal deal before the Commons for a third
time in that particular parliamentary session.
The Cabinet Manual (2010)
This was produced by the Cabinet Office at the start of the coalition
government (the first such government for over 60 years) to offer a guide as to
how the British government and parliament would work. It covers a wide
range of topics in its 110 pages, including ministerial conduct, cabinet
composition and the scrutiny of government by parliament. The project was
initiated by former prime minister Gordon Brown. In the Foreword to the
document, David Cameron explained its purpose as follows:
The Cabinet Manual sets out the internal rules and procedures under which the government operates. For the first time the conventions determining how the government operates are transparently set out in one place. Codifying and publishing these sheds welcome light on how the government interacts with the other parts of our democratic system.
During a speech in 2011, then cabinet secretary Sir Gus ODonnell, who was
mostly responsible for the first draft, described the manual as:
A guide to laws, conventions and rules on the operation of government. It is to guide but not to direct. It will have no formal legal status and it is not meant to be legally bindingIt is not intended to be a written constitution.
In addition, authoritative opinions and international agreements make up
the British Constitution.
KNOWLEDGE CHECK
1What is the significance of the twin pillars of the British Constitution? 2Wh at role does the royal prerogative still play in the British Constitution?
KEY CONCEPTS
Authoritative opinions Views and definitions that are important and regarded as the final word or authority on an issue. International agreements The UK is a signatory to a number of international agreements, such as the European Convention on Human Rights and protocols dealing with areas such as climate change. While these are in place, the government is obliged to abide by their terms or face legal challenges in the courts.
STUDY TIP
Be clear that authoritative opinions are just that opinions. They do not have the same power or authority as laws and indeed can be easily overruled by parliamentary statute. They are akin to conventions in this respect. THE GOVERNMENT OF THE UK
8
A number of key laws and documents have contributed to the development
and evolution of the British Constitution over time.
This was a royal charter of rights agreed between King John and his barons in
response to the political crisis the king was facing, namely baronial rebellion.
Among its 63 clauses the most important remaining to this day is the right of
all free men to justice and a fair trial. The relevant clause reads, To no one
will we sell, to no one will we deny or delay right or justice. On the one hand,
Magna Carta represents the first formal attempt to try and limit the powers
of the monarch and place him or her under the rule of law. This principle of
equal access to justice for all remains central to the UKs judicial system.
Magna Carta was reissued on several occasions by medieval monarchs.
Some of its clauses have also heavily influenced later documents, such as the
American Declaration of Independence, the Universal Declaration of Human
Rights and the European Convention on Human Rights. Its real importance
lies as a starting/reference point for the future.
On the other hand, some people believe that Magna Cartas importance should
not be exaggerated. Many of its terms were specific and particular to that period
in history. It was also essentially a peace treaty, and an unsuccessful one at that,
and not intended as a major turning point either in universal human rights or
the balance of power in the realm. Only four of its clauses, including the one
concerning the right to justice, remain unrepealed today. Most importantly,
perhaps, it was silent on the rights of ordinary subjects. Later documents and
laws proved more significant in the development of the British !Constitution.
Magna Carta, the Great Charter, was signed by King John at Runnymede near
Windsor on 15 June 1215
STUDY TIP
What is important when
studying historical
constitutional milestones
is not so much the details
and historical context, but
their overall significance
in contributing to how the
Constitution looks today. 1 The nature and sources of the British Constitution
9
Following the 1688 Glorious Revolution and the flight of James II, who was
accused of undermining the role and independence of parliament and trying
to return the country to Roman Catholicism, parliament invited William and
Mary from Holland to assume the Crown. As part of the deal, the newly
crowned monarchs had to accept the Bill of Rights, which was subsequently
passed into law in December 1689. Among its key terms were frequent
parliaments, free elections and freedom of speech within parliament, otherwise
known as parliamentary privilege. Crucially, the Bill of Rights also included
the principle of no taxation without parliaments agreement. Taken together,
these clauses could be said to represent the establishment of parliamentary
sovereignty and the parliamentary state.
The Bill of Rights is clearly significant, as parliament has continued to
meet every year since 1689 before this time it was more an event than a
permanent institution. The Bill also established the dominance of parliament
over the monarchy, meaning the latter would now exist only on the terms
set by parliament. This was built upon by further measures, such as the Act
of Settlement 1701 (see below). In addition, the principle of free speech for
MPs and peers when speaking in parliament without being subject to laws
of libel and slander (parliamentary privilege) prevails to this day. Finally,
the !creation of a parliamentary state is an enduring feature of the British
political system.
Equally though, we should not overestimate the importance of the Bill of
Rights. Despite its title, the Bill did not cover the rights of ordinary men, let
alone women. Nothing in the document relates to, for example, freedom of
expression and belief for all members of society. We also need to treat the
notion of a parliamentary state very carefully. Britain was far from being
a!democracy in 1689, and this was a parliament almost entirely composed
of !wealthy male landowners. Such democratic developments would not
occur !until a succession of reform acts from 1832 onwards, reaching a
conclusion only in 1928 when women were granted the vote on a fully
equal !basis to men.
This measure was largely a follow-up to the Bill of Rights. The main aim
of this legislation was to ensure a Protestant succession to the throne. It
achieved this by directly conferring the line of succession on the descendants
of Electress Sophia of Hanover, a somewhat distant relative of James I, all
closer descendants either having died childless or being Roman Catholic.
The Act of Settlement could be viewed as a key milestone in the development
of the British Constitution as, again, this was a case of parliament calling
the shots and laying down the criteria for British monarchy. Lineage and
bloodline, key !features of a hereditary institution, mattered less than meeting
parliaments requirements for a Protestant heir. On the other hand, this
Act !did nothing to propel England/Britain towards a modern democratic
state. !Indeed, settling the throne on one religious group strikes the
twenty-first-century reader as a retrograde step in terms of equality and
fairness.
SYNOPTIC LINK
Parliamentary privilege allows members of parliament (MPs) to debate freely and raise important issues in parliament. You can find out more about parliamentary privilege in Chapter 2. THE GOVERNMENT OF THE UK 10
These Acts severely reduced the power of the House of Lords. In 1909
the unelected and Conservative/Unionist-dominated Lords broke with
parliamentary convention and rejected the Liberal governments Peoples
Budget. The result was, unsurprisingly, a constitutional crisis, which, after
two inconclusive general elections in 1910, resulted in a law that ended the
absolute veto of the Lords over legislation and restricted their power to delay
a bill for 2 years. They were also prevented from delaying money bills, or
budgets. In 1949, the Act was modified to reduce the delay to just 1 year. Both
Acts significantly increased the democratic accountability of Westminster. No
longer could the unelected chamber (the Lords) frustrate the will of the elected
house (the Commons). In effect it meant that any bill passed by the Commons
would now automatically become law after a year.
Conversely, the Acts left much undone. Neither addressed the fundamental
issue of the upper chamber, namely that it was almost entirely comprised of
unelected members who owed their place to the accident (or good fortune)
of !birth. Life peers were only introduced in 1958 with the Life Peerages Act.
Even !the 1999 Blair reforms to the upper house, which removed most
hereditary peers, failed to introduce any elected element. While Mr Balfours
poodle (as the Liberal politician and future prime minister David Lloyd
George termed it) may have been neutered, Lords reform remains unfinished
constitutional business.
This measure enabled the accession of the United Kingdom to the European
Economic Community (EEC), the forerunner to the modern European Union.
It was negotiated by the Conservative prime minister Edward Heath. Although
only 12 clauses long, the Act consumed some 300 hours of debate in the
Commons. It narrowly passed in its second reading by just 309-301 votes, a
reminder that Euroscepticism has a long history in UK politics.
This measure was undoubtedly important in the development of the British
Constitution. Under the terms of UK membership, all legislation had to conform
with European law, which represented an incursion into the hallowed doctrine of
parliamentary sovereignty. In addition, the Act was added to by further measures,
such as the Single European Act 1987 and the Lisbon Treaty signed in 2007.
During the UKs period of membership, the EEC/EU became a major part of the
British political scene and, indirectly, of the British Constitution too. As the EU
grew larger in membership and greater in scope, 1972 could certainly be viewed
as the starting point for the UKs often problematic relationship with Europe.
On the other hand, although there have been many criticisms of the erosion of
parliamentary sovereignty, both in 1972 and subsequently, as events between
2016 and 2020 showed, loss of sovereignty was purely temporary. This Act was
a classic example of what one parliament giveth, another taketh away. With
the EU Withdrawal Acts of 2018 and 2020, the 1972 Act was repealed.
It is also worth noting that European law and EU membership, although
very important in certain areas such as agriculture, fisheries and trade, had
far less impact on other key policy areas such as defence and education.
One !could argue, therefore, that the European Communities Act 1972 did not
fundamentally change the way the UK does domestic politics.
SYNOPTIC LINK
The European Communities Act 1972 has clear links with the European Union topic. The impact Europe had on domestic politics is relevant for the section on political parties, especially the recent history of the Conservative Party, which was riven by divisions over Europe, especially in the last 30 years. You can find out more about the European Union in Chapter 10 and UK political parties in Chapter 8. 1 The nature and sources of the British Constitution 11
KNOWLEDGE CHECK
3 Why should the importance of Magna Carta as a constitutional milestone
not be exaggerated?
4 Wh ich pre-1997 constitutional changes have helped the development of a
democratic state?
5 Wh y are the 1911 and 1949 Parliament Acts unfinished constitutional business?
Politicians, especially those in opposition, often promise bold and dramatic
action if elected to power. In a speech at the 1994 Labour conference,
then party leader Tony Blair did just that with regard to constitutional
reform, promising The biggest programme of change to democracy ever
proposed. Elected by a landslide in 1997, he duly delivered most of what
he had promised, and 12 constitutional bills were introduced in the first
parliamentary session. The main themes of his reforms included the following:
l
Modernisation of political institutions such as the House of Lords and the
top rung of the judiciary.
l
Greater democracy in the political system, for example elected mayors,
more use of referendums and some degree of electoral reform.
l
The devolution of many powers away from the centre (i.e. London and the
Westminster Parliament) to the regions, especially Wales, Scotland and
Northern Ireland, a move known as devolution.
l
An emphasis on human rights , e specially those of minority groups.
Under Conservative prime minister David Cameron, the coalition government of
201015 pursued a more modest programme of ongoing constitutional changes,
including a referendum on replacing the electoral system for general elections,
limiting the power of the prime minister to dissolve parliament and increasing
the powers of the devolved administrations in Scotland and Wales. Since 2015,
constitutional reform has been mostly consumed by the issue of Brexit.
Key measures have involved:
l
the modernisation of political institutions, including changing the
composition of the House of Lords
l
greater democracy in the political system
l
the establishment of devolved legislative bodies in constituent countries of
the UK
l
the adoption of the Human Rights Act
l
the introduction of a Freedom of Information Act
In recent years several constitutional developments have helped modernise
UK !political institutions.
l
House of Lords Act 1999: removed from the Lords all but 92 hereditary
peers and allowed for the introduction of more nominated life peers,
including so-called peoples peers. It did not, however, allow for elected
members of the Lords.
STUDY TIP
If you are answering an
essay question that requires
an evaluation of recent
constitutional developments,
it is much easier to approach
it thematically and not
chronologically.
ACTIVITY
After reading through the
key historical developments
in the British Constitution,
create a mind map that
reflects the relative
importance of each
development, for example
writing out the most
important in larger text. Give
a brief justification for your
choices. THE GOVERNMENT OF THE UK
12 l
Constitutional Reform Act 2005: created a separate Supreme Court, which
became the highest court in the land. It replaced the Law Lords, who, as
their name implies, sat in the Lords. It therefore generated a greater sense of
judicial independence and separation of powers.
l
House of Lords Reform Bill 2012: proposed that a reformed Lords should
comprise 80% elected members and just 20% nominated, removing
hereditary peers completely. The Bill was abandoned after 91 Conservative
backbenchers voted against it.
l
Succession to the Crown Act 2013: enabled the eldest child of the monarch
to ascend to the throne irrespective of gender, although it only applied to
royal offspring born after October 2011. It also allowed an heir who married
a Roman Catholic to retain their right of succession to the throne.
l
House of Lords Reform Act 2014: gave existing peers the right to resign or
retire from their seats in the Lords, as well as enabling the removal of peers
convicted of serious criminal offences or non-attendance. By early 2020, six
peers had been removed for non-attendance, including the business person
Baron Wolfson in 2017, and 106 had retired, including Lord Lloyd Webber,
who also left in 2017, and former Liberal Democrat leader Lord Steel, who
left in early 2020.
In recent years several constitutional developments have brought greater
democracy to the UK political system.
l
Referendums (Scotland and Wales) Act 1997: allowed referendums to be
held in Scotland and Wales over the creation of devolved assemblies. Yes
votes in both countries, although by a very slim margin in Wales, meant
that devolution could now take place.
l
Greater London Authority Act 1999: allowed for the setting up of a directly
elected mayor for London. The Local Government Act 2000 contained
provisions for elected mayors in other cities following local referendums.
l
European Parliamentary Elections Act 1999: changed the electoral
system for European Parliament elections in England, Wales and Scotland
from first-past-the-post to a form of proportional representation the
regional closed list system.
l
Police Reform and Social Responsibility Act 2011: allowed for the direct
election of Police and Crime Commissioners. The first ones took place in 2012.
l
2011 Fixed-term Parliaments Act (FTPA): required the prime minister
to secure the support of at least two-thirds of MPs to call an early general
election, instead of just doing it unilaterally.
l
A national referendum was held in May 2011 to change the electoral system
for Westminster to the alternative vote in place of first-past-the-post. The
move was defeated by a margin of 68%32%.
SYNOPTIC LINK
These recent constitutional developments link with both the topic of
electoral systems and devolution. First they show how different electoral
systems can produce different outcomes, for example devolved governments
are often coalition or minority administrations. You can find out more about
different electoral systems in Chapter 7. Second, they tie in with devolution
and how devolved assemblies can be different to Westminster. You can find
out more about the devolved assemblies in Chapter 5.
SYNOPTIC LINK
As the Supreme Court is
the highest court in the land
it has the final say in most
legal matters. Its powers of
judicial review are particularly
important in deciding if the
judgements of lower courts
or of other individuals and
institutions are lawful. You can
find out more about judicial
review in Chapter 4. 1 The nature and sources of the British Constitution
13
In recent years the establishment of devolved legislative bodies in Scotland,
Wales and Northern Ireland has led to further powers in these countries.
l
Scotland Act 1998, Wales Act 1998 and Northern Ireland Act 1998:
set up elected devolved assemblies/parliaments in these countries. Further
powers were transferred in subsequent Acts, including to both Scotland and
Wales in 2006, and to Scotland in 2016 and Wales in 2017.
l
In November 2004, a regional referendum was held in the north-east of
England on the creation of an elected regional assembly. The proposal was
decisively rejected 78%-22%.
Human rights has been a core issue in recent constitutional developments in
the UK.
l
Human Rights Act 1998: incorporated the European Convention on
Human Rights (ECHR) into UK law. This enables UK courts to take the
ECHR into account when judging cases involving human rights, therefore
sharply reducing the number of cases referred to the European Court of
Human Rights in Strasbourg.
l
Freedom of Information Act 2000: gave individuals greater access to
information held by public bodies including local and national government.
l
Equality Act 2010: brought together around 116 individual measures into
a s ingle Act to combat discrimination and promote a fairer society. Among
the areas and characteristics protected were race, gender, disability and
sexual orientation.
l
Protection of Freedoms Act 2012: offered citizens greater protection from
the state by enhancing scrutiny of the security services, including MI5 and
MI6.
l
Data Protection Act 2018: this is the UK governments implementation of
the General Data Protection Regulation (commonly known as GDPR).
All EU member states were obliged to implement the regulations. It placed
strict controls on the handling and saving of all personal data by both
government and private bodies including businesses, schools and local
councils. It was intended to enhance citizens rights to personal privacy
over their personal details.
The following case studies provide more insight into two of the most
significant modern constitutional changes, the Freedom of Information Act
2000 and the Fixed-term Parliaments Act (FTPA) 2011 .THE GOVERNMENT OF THE UK
14
CASE STUDY
Freedom of Information Act 2000
The Freedom of Information (FOI) Act 2000 highlighted
transparency of government and institutions. The 1997
White Paper Your Right to Know stated:
Openness is fundamental to the political health of a
modern state. This White Paper marks a watershed
in the relationship between the government and
people of the United Kingdom. At last there is a
government ready to trust the people with a legal
right to information.
The Act applies to most public bodies including local
councils, police forces, the BBC and universities, as
well as central government. Under its terms public
institutions have two main obligations:
1 Th ey are obliged to publish and make freely
available (for example via free online access)
certain information about their activities, e.g.
minutes of meetings, public policy documents etc.
2 Me mbers of the public and pressure groups
are able to make requests via the Information
Commissioners Office (ICO) for information and
data. The institution must normally reply to such
requests within 20 days and is only able to withhold
information under certain circumstances.
Examples of FOI requests have included a request
by the BBC for local councils to reveal how many
individuals they recorded sleeping rough at any stage
in 2019, and the infamous MPs expenses scandal
in 2009, which resulted in five Labour MPs and two
Conservative peers being jailed.
But how effective has the FOI Act been? It is certainly
popular: in the period July to September 2020 alone,
some 11,042 requests were received. A total of 86%
were responded to in time, and around three-quarters
were deemed resolvable, i.e. the information could
be gathered. However, only 40% were answered
in full, 35% were denied in full and the remainder
were answered in part. There are several grounds
for legitimately denying requests, for example
on the grounds of national security, commercial
confidentiality, or that to collect the information would
be disproportionately expensive.
The Act has been invaluable for investigative
journalists, pressure groups and ordinary people
seeking information that public bodies might otherwise
prefer not to reveal. In that sense, it has provided a
major boost to open and transparent government.
It is perhaps telling that in his memoirs published in
2010, former prime minister Tony Blair reflected on
passing the Act:
I look at those words (freedom of information) as
I write them and feel like shaking my head till it
drops off my shoulders. You idiot. You naive, foolish,
irresponsible, nincompoop.
Back in 1996 he was more positive, noting:
Information is power and any governments attitude
about sharing information with the people actually says
a great deal about how it views power itself and how
it views the relationship between itself and the people
who elected it.
Perhaps he became disenchanted with how journalists
and political hacks frequently make use of FOI
requests, and also how it could restrict candid
confidential discussions in government departments.
Or perhaps the Act revealed too many skeletons in
Labours own cupboard, and not just those of the
partys opponents?
ACTIVITY
Research one of the FOI requests mentioned in the case study, or another of
your own choice, in more detail. What were its key points and what impact
did the disclosure have? 1 The nature and sources of the British Constitution
15
CASE STUDY
Fixed-term Parliaments Act 2011
The Fixed-term Parliaments Act (FTPA) 2011 was
created at the beginning of the ConservativeLiberal
Democrat coalition government. It essentially
removed the traditional right via the royal prerogative
for the prime minister alone to seek a dissolution of
parliament and call an early election simply by asking
the Queens permission, which by convention she was
obliged to grant. Prior to the Act, it was a common
tactic of prime ministers to go to the country early,
often around a year in advance of a proposed general
election, when the polls looked favourable. Margaret
Thatcher did this in 1983 and Tony Blair in 2001.
So why did the coalition government pass this Act?
Several explanations have been suggested, including
the desire to create stability and permanence for the
first coalition government since 1945. Other motives
include it being a long-term Liberal Democrat policy
and also to protect that party from being ditched by
their Conservative partners when the polls looked
favourable.
The two main terms of the Act are as follows:
1 Th e prime minister cannot unilaterally go to the
monarch and seek a dissolution of parliament and
an early election.
2 Th e only exceptions to this rule are when the
government loses a vote of no confidence in the
House of Commons and this is subsequently
confirmed by another vote 2 weeks later, or when
two-thirds of MPs (i.e. 434 or more) vote to hold an
early election.
How well the Act has worked is open to debate. On the
one hand it fulfilled its initial aim of guaranteeing a
5-year term for the coalition government and ensuring
political stability.
On the other, there are strong grounds for assessing
it as much less successful. It was easily overridden
by then prime minister Theresa May just 2 years
into her government, when the Commons voted
522-13 in favour of calling an early election. Labour
leader Jeremy Corbyn also favoured an election, as
few opposition leaders want to be seen as political
cowards. The only MPs to vote against it were a
handful of Labour rebels, one Social Democratic and
Labour Party MP from Northern Ireland, and three
independents. The Scottish National Party abstained.
In 2019, Prime Minister Boris Johnson tried three
times to call an early election to find a way out of
the Brexit impasse, but failed to get the two-thirds
majority. The Act was eventually circumvented by
a new piece of legislation, the Early Parliamentary
General Election Act, which only required a simple
majority. It passed at the end of October 2019 by
438-20 votes with 181 abstentions of mostly Labour
and Liberal Democrat MPs. The Act was fast-tracked
through parliament and became law within 2 days of
getting through the Commons.
However, by 2020 the future of the FTPA looked grave.
In 2019, both Labour and Conservative manifestos
promised repeal. Labour argued that the Act stifled
democracy and propped up weak governments while
the Conservatives stated it led to paralysis at a time
the country needed decisive action. A draft bill for its
abolition was introduced in December 2020.
The ease with which the FTPA could be both passed
originally and overridden on two occasions within
2 years is a good example of both parliamentary
sovereignty and the relative simplicity with which
constitutional changes can be implemented but also
reversed.
SYNOPTIC LINK
The FTPA is a good example of parliament not necessarily scrutinising
or debating legislation that deeply, although scrutiny of legislation is one
of its key functions. You can find out more about the structure and role of
parliament in Chapter 2.
While there is little doubt that there have been many changes to the
Constitution since 1997, it is much more debatable how successful and
significant they have been. By examining a number of key areas we can review
the arguments for and against the success of constitutional change. THE GOVERNMENT OF THE UK
16
Successes
l
The House of Lords has undergone a substantial transformation since 1997.
It is smaller, more diverse and far less Conservative-dominated, and it is
now easier to remove peers for misconduct or non-attendance.
l
The creation of the Supreme Court has enabled a clear separation between
the executive and judiciary and given it a sense of corporate identity and
a higher public profile. It has remained politically neutral and apolitical,
unlike its US counterpart.
l
The notion of gender equality has reached even the traditions of the royal
family.
Failures
l
Reform of the House of Lords remains incomplete and unfinished. Attempts
to build upon the 1998 measure, most notably in 2012, have come to
nothing. The UK remains virtually unique in the democratic world in
having an entirely unelected second chamber.
l
The creation of an independent Supreme Court has arguably led to too
much power residing with unelected and unaccountable justices and has
therefore undermined parliament.
l
In regard to the royal family, the alteration to the line of royal succession is a
very minor tweak. It still remains illegal for the monarch to be Roman Catholic.
Successes
l
There is greater autonomy in some large cities, and the post of Mayor of
London has attracted high-profile incumbents such as Ken Livingstone,
Sadiq Khan and Boris Johnson. Several other cities have also embraced the
idea, with prominent Labour politician Andy Burnham elected as Mayor of
Greater Manchester in 2017.
l
The reform of European Parliament elections has over the years enabled a
greater variety of parties to be represented, including UKIP/Brexit Party and
the BNP, along with proportionately more Greens and Liberal Democrats.
l
The direct election of police and crime commissioners (PCCs) has also
enhanced opportunities for political participation and local democracy.
Failures
l
While the Mayor of London may be considered a successful reform, in the
regions the picture is much more mixed. Where referendums have been
held on whether or not to establish mayoral elections, the majority of cities
have rejected the proposal. In 2016, Torbay even voted to get rid of the
position of elected mayor having approved it in 2005. Turnout in many
mayoral referendums and PCC elections has often been abysmal even by
local government election standards. Just 15% of the electorate voted to
retain Middlesbroughs elected mayor in 2013 and an even more meagre
11.6% turned out in 2012 to elect the PCC for Staffordshire, although this
number did almost double for the 2016 election.
l
Lack of enthusiasm for reform of the voting system for national elections is
shown by the outcome of the 2011 alternative vote referendum.
l
The provisions of the FTPA were easily overcome in both 2017 and 2019 to
bring about early general elections. 1 The nature and sources of the British Constitution
17
Successes
l
The renewed emphasis on and landmark legislation in the area of human
rights has increased awareness and visibility of rights, especially those of
minority groups.
l
Laws concerning privacy and access to information have also enhanced the
rights of everyone and made public bodies and other powerful institutions such
as employers more accountable and responsible for the information they hold.
l
The important role of the UK Supreme Court in interpreting this legislation
has increased protection of citizens rights.
Failures
l
It could be argued that the expansion of rights has led not only to the rise
of identity politics but also to a clash between individual and collective
rights (see pages 2123).
l
The growing role of the courts in human rights cases has led to much
controversy, for example when the Supreme Court ruled aspects of anti-
terror legislation (such as the freezing of the assets of suspected terrorists in
l
With regard to the Freedom of Information Act many requests for
information are declined for various reasons (see case study, page 14).
Successes
l
Devolution has worked well especially in Scotland and Wales, and the
number of powers devolved has increased.
l
Popular support for devolution has also increased. Originally in 1997 Wales
backed the plan by the slimmest of margins: 50.3%49.7%. Another vote in
2011 to expand law-making powers was backed by 63.5% of voters.
l
Some argue that it was only a devolved parliament that stopped Scotland
backing full separation from the UK in the 2014 independence referendum.
l
In Northern Ireland, the devolution process, although more problematic,
has helped to end the violent period known as the Troubles.
Failures
l
Devolution has not succeeded everywhere. In Northern Ireland policy
disagreements and a scandal over a failed renewable energy scheme meant
that the Assembly was suspended between January 2017 and January 2020.
l
Support for devolution in England itself has not increased. A 2004 proposal
to create a North East regional assembly was emphatically rejected by 78% of
voters.
In short, the answer is yes. There are a number of areas that many would
consider vital and/or desirable for change. These include:
l
Lowering the voting age to 16 across the UK (as already occurs in Scotland
and Wales)
l
Making voting compulsory, as it is in Australia
USEFUL CONCEPT
Identity politics A relatively
new term used to describe
the phenomenon of people
of a particular religion, race,
sexuality etc. campaigning on
particular issues and moving
away from traditional broad-
based party politics.
ACTIVITY
Using the arguments outlined
in this section, and others
you have researched, write
a concluding paragraph on
whether or not you consider
changes to the British
Constitution since 1997 to
have been a success. THE GOVERNMENT OF THE UK
18
l
Introducing an elected component to the House of Lords
l
Reforming the voting system for Westminster elections to one that is more
pr oportional
l
Making more use of e-democracy such as online voting
l
Extending devolution to England
l
Widening public participation in candidate selection by political parties, for
example by using a US-style primary system
l
Requiring photo ID when voting to prevent voter fraud
However, while at first glance the issues in this list may seem attractive, they
all carry possible pitfalls.
KNOWLEDGE CHECK
6 In what ways have recent constitutional reforms enhanced democracy in
the UK?
7 Wh ich changes to the Constitution have bolstered citizens rights?
8 Wh at are the main limitations to the Freedom of Information Act 2000
and the Fixed-term Parliaments Act 2011?
The effectiveness of recent UK legislation is a complex but important debate.
Some would argue that the rights of citizens are well protected in the UK,
especially via recent statute law and the UKs links with Europe, not least
as a signatory to the European Convention on Human Rights (ECHR). An
independent, non-politicised judiciary also serves to defend citizens rights.
Others would note that the lack of entrenched rights makes them more
vulnerable to the whims of parliament.
Much depends on the following:
l
Whose rights and which rights are most important?
l
How far are certain rights inalienable and permanently protected, and how
far can a democratically elected parliament play a key part in the process?
l
Are rights better protected in other countries, such as the USA?
l
Are there ways in which rights could be better protected?
Most discrimination-related rights, such as pay equality, equal access to
services and employment rights, are currently found in the Equality Act 2010.
Most h uman rights issues, such as the rights to privacy and to freedom from
torture, are protected by the Human Rights Act 1998. As both Acts are statute
law, in theory they could be vulnerable to weakening or alteration by
parliament, since parliamentary sovereignty, unlike US constitutional
sovereignty , makes it easy to add new rights but particularly to amend many
existing rights. In that sense, there is more trust placed in the UKs elected
politicians than the Constitution or the courts to protect our rights. That being
said, as the UK is a signatory to the ECHR there is a constitutional double
lock to protect certain rights.
USEFUL CONCEPT
Constitutional sovereignty
When a codified constitution
has ultimate authority. No
parliament or government
can pass laws or undertake
actions that are ruled by the
courts to be unconstitutional.
SYNOPTIC LINK
Constitutional sovereignty
is a bedrock of the US
Constitution. You can find
out more about the US
Constitution in Chapter 11.
ACTIVITY
Research and note down
both the potential benefits
and drawbacks of each of
these suggested changes
to the British Constitution.
A good place to start your
research would be the
House of Commons Political
and Constitutional Reform
Committee document on the
British Constitution, which
you can find online at https://
publications.parliament.uk/ .1 The nature and sources of the British Constitution
19
The following debate summarises some of the key points concerning human
rights in the UK today.
Protesters gather at a national anti-racism rally in London
DEBATE
How well does the British Constitution protect rights?
It protects them well It does not protect them well
The UKs constitutional culture values civil liberties
(at least in the abstract). There is formal support of
human rights by the government. For example, every
parliamentary Act contains a declaration that the Act
complies with the Human Rights Act (HRA) 1998.
Current legislation provides a strong legal protection for core
rights via the interlinked HRA and European Convention on
Human Rights (ECHR) mechanisms. The HRA incorporates
the ECHR into UK law. EU law also provided additional
protection, for example in the area of workers rights.
The UK has a relatively strong institutional framework
for protecting rights, which extends beyond the courts,
including the Equalities and Human Rights Commission,
which often brings cases under the Equality Act 2010.
Little political consensus exists between parties as to
the actual substance of human rights guarantees. The
existing framework of UK legal rights protection (based
on the HRA and ECHR) is vulnerable to political attack,
with Conservative calls for a British Bill of Rights. European
judgements that go against UK policies regularly spark
media attacks on the European Court of Human Rights or,
more frequently nowadays, UK courts.
Brexit is removing the safety net for certain non-discrimination,
migrant and labour rights formerly provided by EU law.
UK governments have been repeatedly able to introduce
and pass legislation diluting rights protection, especially in
areas like national security with recent anti-terror laws, and
measures that seek to reform immigration and entitlement
to social benefits and housing.
Social and economic rights, for example to receive appropriate
healthcare, are seen by some as poorly established and weakly
protected. International human rights law has had a very
limited impact in practice on government policy.
Individually or in groups, draw up a policy paper arguing either for or against the notion that the British
Constitution adequately defends citizens rights. THE GOVERNMENT OF THE UK
20
ACTIVITY
Research some of the key rights protected by the ECHR. A good place to
start your research would be to access the Official Texts on the ECHR
website, which can be found at www.echr.coe.int .
Unlike many other countries such as the USA, where rights are entrenched in
the Constitution and are very difficult to alter or remove, in the UK the vast
majority of human rights are protected by the ECHR and the Human Rights
Act 1998. In theory, the latter could be repealed by parliament. Also, now that
the UK has left the EU, it could withdraw from the ECHR. Many Conservative
politicians in particular have from time to time argued for the UK to withdraw
from the ECHR and to draw up a British Bill of Rights instead. However, any
attempt to do so would create considerable political and legal opposition. It
is also worth noting that currently only the Vatican City and Belarus are not
members of the Council of Europe, the body behind the ECHR.
Concerning the measurement of the protection of citizens rights, a 2012
British Academy report stated that from 1966 to 2010 there had been
around 14,460 applications by UK citizens to the ECHR in Strasbourg. Yet
only in 1.3% of cases was the UK government found to have breached the
convention. Admittedly, some of these cases and, indeed, later cases
too concerned major issues such as votes for prisoners. Therefore,
perhaps UK citizens rights on the whole are relatively well protected under
an uncodified constitution relying largely upon statute law and its ties to
European bodies.
There has been much discussion over the years as to whether or not there should
be a complete overhaul of the British Constitution, with reformers arguing for a
modern, codified constitution. In times of political crisis, there have been
renewed calls for such a change. For example, during the protracted struggle
over Brexit between 2017 and 2019 parliament and the government appeared
incapable of finding a way forward despite the various options of a second
referendum, a Brexit deal, a no-deal Brexit or calling another election. For once,
the rules of the game were not allowing play on the pitch. In the event, the
December 2019 election returned a government with a strong majority, Brexit
was achieved, in principle if not in detail, and the parliamentary match resumed
play. But the argument for a codified constitution lingers on.
KNOWLEDGE CHECK
9 How does the European Court of Human Rights help protect citizens rights?
10 Wh at are the benefits of an uncodified constitution?
11 Wh at is meant by the term elective dictatorship?
USEFUL CONCEPT
Osmotherly Rules Drawn up
in 1980 and revised in 2014,
these rules give guidance
to civil servants and other
government officials when
appearing before select
committees.
STUDY TIP
The ECHR is nothing directly
to do with the European
Union. It was drawn up in
1950 by a completely separate
body, the Council of Europe.
It is the case, however, that
all EU members must also
be members of the Council of
Europe and so must sign up
to the ECHR. 1 The nature and sources of the British Constitution
21
DEBATE
Should the British Constitution be codified?
For codification Against codification
It would provide greater clarity on what is and what is not
constitutional and so lawful. A problem with conventions,
as constitutional expert Vernon Bogdanor remarked, is that
The understandings are not always understood.
Removing the vagueness of custom and tradition would
represent a desirable modernisation of the political process.
It would provide further and more easily understood rights
for all citizens, as the Constitution could entrench key rights
as opposed to leaving them to the mercy of parliament.
It could reduce the concentration of power in the hands of
the executive.
It would enable local government and the regional
assemblies outside England to enjoy proper constitutional
protection and permanence.
It would end the process of piecemeal codification such as
the Cabinet Manual and the Osmotherly Rules .
Conventions can and are broken, for example with the Lords
and the 1909 Budget, or when Boris Johnson sought to
prorogue (suspend) parliament for 5 weeks in 2019. Only a
unanimous ruling by the Supreme Court stopped this attempt.
By convention, prorogation lasts for a much shorter period.
The UK is one of only three countries (the others are Israel
and New Zealand) not to have a codified constitution.
The current constitution encourages flexibility and
adaptability, e.g. in regard to the calling of early elections.
Codified constitutions are by nature far more rigid.
Codification would go against the tradition of UK politics,
which is one of constitutional evolution not revolution.
Parliament would struggle to come to a consensus on much
of the content of a codified constitution. Should it stipulate a
particular voting system, and if so, which one?
It would give unaccountable judges greater power, as
they would be required to make rulings on what Acts or
measures were constitutional, much as they do in the USA.
It would also in all likelihood considerably politicise the
judiciary.
The issue of education and awareness about the British
Constitution is best met by better political education in
schools.
There is a marked lack of popular demand for such a reform.
The alternative vote referendum of 2011 is a case in point.
It would seriously undermine parliamentary sovereignty,
which has served the countrys politics well over the
centuries. Philip Johnstone, writing in the Daily Telegraph in
January 2020 after the Brexit bill was passed, commented
that It turns out our system wasnt broken after all.
Individually or in pairs, decide which arguments on each side of the debate are most convincing.
So far, the term rights has been applied generally. We must also be aware that
citizens rights are often categorised as either collective or individual rights.
Individual rights, as the term suggests, are the rights held by an individual
citizen, such as the right to a fair trial or the right not to face discrimination.
Collective rights are those that belong to groups ranging from formally organised
groups such as trade unions to those that are faith based, or those that reflect a
certain characteristic such as gender, disability or sexuality. Collective rights can
also be applied to the population as a whole, such as the right to protection from
acts of terrorism and the safeguarding of national security.
These two sets of rights are often seen to conflict with each other. An obvious
example is that all individuals have the right to practise any (or no) religious
faith, which often involves following a particular moral code such as refraining
from drinking alcohol or a disapproval of homosexuality. Yet, such a stance
could be at odds with the collective rights of wider groups such as drinkers or
the LGBTQ+ community. THE GOVERNMENT OF THE UK
22
CASE STUDY
Can religious faith be used to justify
refusing to serve members of the
LGBTQ+ community?
In a case involving Ashers Baking Company Ltd in
Northern Ireland, the owners were prosecuted for
refusing to bake a cake for a gay rights activist who
had asked them to incorporate the slogan Support
gay marriage along with a picture of Bert and Ernie
from Sesame Street and the logo of the Queerspace
organisation in the decoration. In October 2018, the
Supreme Court overturned the judgements of lower
courts that the bakery was guilty of discrimination.
The argument was that the bakery did not discriminate
against the customer who happened to be gay, but
against the message on the cake, which they would
have objected to regardless of the customers sexual
orientation. Therefore, the issue was not about sexuality
but what is termed forced speech. For example,
can a Labour-supporting printer refuse to produce
Conservative Party publicity or vice versa? The answer is
probably yes.
This case is an example of how the individual right
to free speech or expression can prevail over the
collective rights of a particular group. A similar case
but with a different outcome occurred in 2013 when
the Christian owners of a Cornish guest house lost a
court case over refusing to allow a same-sex couple to
share a double bedroom.
CASE STUDY
Female circumcision
A particularly sensitive topic concerns traditional cultural
practices illegally practised by some minority groups
in the UK. Although illegal in most countries, female
circumcision (FGM) is a common practice among certain
(but by no means all) communities in parts of Africa and
the Middle East. It is, however, a practice clearly at odds
with most countries cultural norms and values. Under
UK child safeguarding rules, schools and social services
are required by law to report immediately to the police
any suspected cases of FGM, which is illegal under the
Female Genital Mutilation Act 2003. This results in a
potential clash between the individual rights of a citizen
to follow cultural practices, and the collective rights of
wider UK society, who rightly see the practice as a form
of child abuse. There are also, of course, the important
individual rights of the child to consider. In this instance,
the solution is clear in UK law. The individual rights of the
child are uppermost, and the lack of informed consent
makes it straightforward to ban the practice, despite it
being a collective tradition in certain communities.
CASE STUDY
Uber drivers
In 2016, two Uber drivers sued the firm claiming
that they were employees and not, as Uber claimed,
self-employed. By claiming to be employees, the
drivers would gain entitlement to benefits such
as holiday pay and the minimum wage. They were
therefore fighting for the collective rights of all Uber
drivers, and were supported in their court case by
the Independent Workers Union of Great Britain.
However, they were opposed not only by Uber, but
also by some of their fellow Uber drivers who enjoyed
the freedom of being self-employed and asserted
their individual rights regarding employment status.
Ultimately, Uber lost its case and the collective rights
of all its workers were protected at the expense of
some individual drivers.
The 2016 court case involving Uber is a classic example of the potential for a clash between individual and collective rights 1 The nature and sources of the British Constitution 23
There are undoubtedly times when these two categories of rights conflict with
each other. The outcomes follow no particular pattern in terms of which set of
rights usually prevails these contrasting case studies resulted in a victory
for both collective over individual rights and vice versa. In addition, several
clauses of anti-terror legislation designed to protect the collective right of
public safety have been successfully challenged in the courts. For example, in
2004 the courts ruled that indefinite detention of suspected terrorists broke
human rights laws, seemingly favouring individual rights to a fair trial over
collective rights to protection from terrorist outrages.
Much depends on the individual context, the interpretation of the judges
and public opinion. The latter can often persuade the government to pass
legislation to tilt the balance of rights in one or other direction. Yet, there
are times when the conflict can also be between competing sets of either
individual or collective rights within each category, such as in the case of the
Uber drivers. The issue of citizens rights is, therefore, a dynamic rather than
fixed aspect of the British Constitution.
SUMMARY
l
The main purpose of a constitution is to ensure
how politics and government are conducted.
l
The effectiveness of a democratic constitution can
be judged in several ways including how well it
upholds civil liberties, promotes democracy and
enables stable government.
l
The British Constitution is unitary/quasi-federal,
uncodified and flexible.
l
The main sources of the British Constitution are
statute law, common law, works of authority, the
royal prerogative, conventions and international
agreements.
l
The British Constitution has evolved from 1215 to
the present day through several key milestones,
such as laws determining who can vote.
l
Changes since 1997 to the British Constitution,
such as the Freedom of Information Act 2000 and
the Fixed-term Parliaments Act 2011, have had
mixed results.
l
The British Constitution defends citizens rights
primarily through statute law and the European
Court of Human Rights, and there is debate over
how effectively citizens rights are protected.
l
There are differences between individual and
collective rights, and they both clash and coincide
for individuals.
KNOWLEDGE CHECK
12 What is the difference
between individual and
collective rights?
13 Do es one set of rights
always prevail over the
other?