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Chapter

Cover The Changing Constitution

15. The Democratic Case for a Written Constitution  

Jeff King

Written constitutions have often been viewed as the bridle for unchecked political majoritarianism, as a restraint on government, and hence as a limiting device rather than a form of democratic political expression. Breaking with that tradition, this article sets out a democratic case for a written constitution and contrasts it with the rights-based and clarity-based cases. It then proceeds to show why the case against written constitutions—which are broadly located in a conservative critique, an anti-rationalist critique and an anti-judicialization critique—are misguided. Nevertheless, a democratic case for a written constitution necessarily raises challenging questions about how the constitution will be enacted, and how rigidly entrenched it should be. Answers to these questions are presented in Parts III and IV of the article. In the former, it is argued for a constituent assembly consisting of party and direct citizen representation. In the latter, defence of a model of entrenchment is discussed that permits amendment through a simple majoritarian parliamentary procedure in conjunction with a referendum, and, most controversially, a provision requiring a new constitutional convention about once in a generation. This is the type of democratic constitution, in the author’s view, that accommodates the need for a liberal egalitarian constitutional order that takes both rights and democracy seriously.

Chapter

Cover Complete Public Law

4. The Rule of Law  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter explains the meaning and significance of the rule of law, briefly tracing the history of the rule of law and considering the main similarities and differences between various theories of the rule of law. It then assesses the impact of recent legal reforms on the operations of the rule of law in the UK. These reforms include the extension of detention without trial; the developing body of anti-terror legislation; and the Constitutional Reform Act 2005, which reinforces the importance of the independence of the judiciary and puts measures in place to attempt to strengthen the separation of the courts from the other arms of the state. Finally, the chapter discusses judicial interpretation of the rule of law through a selection of cases that have examined the legality, irrationality, or procedural impropriety of the actions of the executive or public bodies and whether their actions conform to the Human Rights Act 1998.

Chapter

Cover The Changing Constitution

14. Federalism  

John McEldowney

Federalism, to date, has proved unattractive to the United Kingdom. The United Kingdom is commonly described as a unitary state, whereby governmental power is primarily exercised through a sovereign Parliament at Westminster. The UK may be distinguished from Federal countries, notably the United States or Germany. In federal systems, sovereign power is shared between the federal government and the states. However, the description of the United Kingdom as a unitary state is an oversimplification as there are many instances of devolved, shared and autonomous powers that do not easily fit under a centralized view of the state. These ‘quasi-federal’ elements of the constitution arise through the UK Parliament delegating to regional and local communities a variety of powers and responsibilities through elected local and municipal authorities as well as devolved ‘deals’. Since 1989, powers have been distributed to the four nations of the United Kingdom: England, Scotland, Wales and Northern Ireland through extensive, and increasing, devolved powers (devolution) including a variety of tax-raising powers. There is also a London Assembly with devolved powers. The future of the UK after Brexit is uncertain and there are deep divisions of opinion. England and Wales voted for Brexit while London, Northern Ireland and Scotland voted to remain within the EU. Different constitutional configurations were suggested for the four nations, during the nineteenth century, including federalism, Irish home rule and independence as well as strengthening local government. No exact definition of federalism emerged from the different variations supported at one time or another during this period. Consequently supporters of federalism have struggled to have a single configuration to make their case. Overall federalism was rejected as inconsistent with the orthodoxy of a unitary state formed from an incorporating union centred around a sovereign Parliament. Has the extent of substantial devolved and delegated powers reached a tipping point that places a form of divisible federalism as a way of addressing current concerns and controversies including Brexit? Any formal adoption of federalism would alter the role of the UK Supreme Court as well as future relations with the EU after Brexit. Federalism might provide a mechanism for a changing unitary state to address 21st-century challenges amidst a perceptible shift to a ‘quasi-federal’ state with devolved governments and many shared or delegated powers.

Book

Cover Constitutional and Administrative Law
The purpose of this book is to introduce the reader to the fundamental principles and concepts of constitutional and administrative law. It is highly popular with undergraduates for its clear writing style and the ease with which it guides the reader through key principles of public law. This twelfth edition incorporates the significant developments in this ever-changing area of the law. The book also includes a range of useful features to help students get to grips with the subject matter. These include further reading suggestions to support deeper research, a large number of self-test questions to help reinforce knowledge, and chapter summaries and numbered paragraphs to aid navigation and revision. This new edition has been fully updated to cover all the latest reforms in constitutional and administrative law, including those relating to devolution and Brexit.

Chapter

Cover Complete Public Law

3. The Nature of the British Constitution  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter outlines the characteristics of the UK constitution, which is not a traditional written constitution and, thus, is defined as an ‘unwritten’ constitution. It is not hierarchically superior to all other law in the country, which means that Acts of Parliament cannot be compared with it by judges and be declared as unconstitutional and invalid. Neither can the UK constitution be enforced against the legislature as a result, nor is it entrenched and protected, because it can always be changed by Act of Parliament. However, it can be legally enforced by the mechanism of judicial review against the executive, meaning that the executive may legally act only within its legal power. The chapter also considers the sources that make up the UK constitution and proposed constitutional reforms.

Book

Cover Constitutional Law, Administrative Law, and Human Rights
Constitutional Law, Administrative Law, and Human Rights provides an in-depth cross disciplinary introduction to the subject of public law, covering the core elements of a constitutional and administrative law syllabus. In addition, it explores the latest ongoing debates around potential constitutional reforms. The book draws heavily on historical sources and on ideas from political science and political theory as well as legal and social history. It also includes detailed coverage of the UK’s proposed departure from the European Union after the 2016 referendum and the subsequent Miller litigations, as well as the negotiations on the terms of departure. It looks at the polarised positions of ‘soft brexit’ and ‘hard brexit’ and examines what brexit might actually mean for the United Kingdom.

Chapter

Cover Constitutional Law, Administrative Law, and Human Rights

9. Constitutional Conventions  

This chapter assesses the nature and purpose of constitutional conventions. The discussions cover the concepts of collective and individual ministerial responsibility; the relationship between the Monarch and her Ministers; the relationship between convention, statute, and the common law; the ‘Ponsonby rule’ and the Constitutional Reform and Governance Act 2010. It is argued that the concentration of effective political power is often very intense, even within a political party; small groups of senior Ministers or even the Prime Minister alone may occasionally be, to all intents and purposes, ‘elected dictators’.

Chapter

Cover The Changing Constitution

10. Devolution in Scotland  

Aileen McHarg

Scotland’s devolved Parliament and Government were established in 1999 under the Scotland Act 1998. The current devolved arrangements build upon earlier institutional arrangements for the distinctive governance of Scotland, elements of which date back to the Union of 1707. By creating both a distinct legislature and separate institutions of political representation for Scotland, the 1999 reforms were nevertheless of profound constitutional significance. This chapter traces the development of devolved government in Scotland, arguing that the history of Scottish devolution is best understood as a response to nationalist sentiment: the assertion of the right of the people of Scotland to self-governance and self-determination. The historical trajectory has been one of increasing autonomy and constitutional recognition, and this pattern has continued since 1999 (culminating in an—unsuccessful—referendum in 2014 on the question whether Scotland should become wholly independent of the United Kingdom). However, despite the extensive powers enjoyed by, and the political importance of, the Scottish Parliament and Government, the status of devolution within the United Kingdom constitution is ambiguous and contested. The chapter also explores the constitutional status of devolution across two dimensions: the juridical—i.e. how the powers of the Scottish Parliament and Government are understood and interpreted by the courts; and the political—how the devolved Scottish institutions relate to their counterparts at UK level. The chapter ends by exploring how the tensions between Scotland’s powerful political claims for constitutional recognition, yet weak legal protection, have played out in relation to Brexit, and may play out in future in a Scottish political context still dominated by the independence question.

Chapter

Cover The Changing Constitution

11. The Welsh Way/Y Ffordd Gymreig  

Richard Rawlings

Welsh constitutional development in recent times is characterized by a convoluted and ongoing set of legislative transformations and by the emergence of a distinct policy approach not only for the sub-state polity itself but also under the banner of a ‘new Union’ for the United Kingdom as a whole. Examination of the design and dynamics of the Wales Act 2017 serves to illuminate the difficulties and rewards of the territorial constitutional journey, especially in terms of central government conservatism in the face of principled argument and of the scope afforded for home-grown democratic renewal. In terms of the extended Brexit process, where competing conceptions of the UK territorial constitution are brought to the fore, the Welsh Labour Government is seen combatting potentials for centralization under the rubric of a ‘UK internal market’, deal-making in the name of mutual benefit, and championing a new brand of shared governance in the UK. Today, the workings of the justice system in Wales are being examined on their own for the first time in two centuries by an independent commission established by the Welsh Government. With a new stage in the Welsh constitutional journey in prospect, a series of foundational questions is raised. This chapter reviews the key elements of the arrangements made for devolving legislative and executive power to Scotland, Wales, and Northern Ireland, explaining how these arrangements have developed over time and are still doing so. Particular attention is paid to the implications of the result of the independence referendum in Scotland in September 2014, not just for Scotland but also for England. Consideration is given to how mechanisms for making devolution work more effectively might be devised and to what the effects might be on devolution if the UK’s membership of the EU or its commitment to the European Convention on Human Rights are seriously called into question.

Chapter

Cover Concentrate Questions and Answers Human Rights and Civil Liberties

4. The Human Rights Act 1998  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, caution advice, suggested answers, illustrative diagrams and flowcharts, and advice on gaining extra marks. Concentrate Q&A Human Rights & Civil Liberties offers expert advice on what to expect from your human rights and civil liberties exam, how best to prepare, and guidance on what examiners are really looking for. Written by experienced examiners, it provides: clear commentary with each question and answer; bullet point and diagram answer plans; tips to make your answer really stand out from the crowd; and further reading suggestions at the end of every chapter. The book should help you to: identify typical law exam questions; structure a first-class answer; avoid common mistakes; show the examiner what you know; all making your answer stand out from the crowd. This chapter covers the Human Rights Act 1998, including its central provisions, its impact on the protection of human rights in the UK, and its potential repeal.

Chapter

Cover Complete Public Law

5. The Separation of Powers  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The separation of powers is a theory or a doctrine that describes how a state organizes the distribution of power and function between its different branches. It is often used as an umbrella term to denote the extent to which the three ‘powers’ in, or branches of, the state are fused or divided—that is, the legislative, the executive, and the judicial powers. This chapter begins by sketching the history of the separation of powers in the UK. It then discusses the purpose of the separation of powers; the similarities and differences between different theories of the separation of powers; the impact of recent constitutional reform on the operation of the separation of powers in the UK; how courts have interpreted the separation of powers; and the relevance of the separation of powers today, including in the context of the balance of power between the executive and Parliament as regards the UK’s decision to exit the European Union.

Chapter

Cover Public Law Directions

7. Separation of powers  

This chapter looks at the separation of powers. The separation of powers is a doctrine requiring that executive, legislative, and judicial powers within a state should be clearly divided and allocated to separate institutions; the aim is to prevent the concentration of power in any one branch and reduce the potential for arbitrary or oppressive exercise of power. Although the degree of separation between the three branches varies between states, codified constitutions will regulate those spheres of power by allocating specific roles and functions to each branch and will allow checks or controls to operate between them to ensure accountability. The separation of powers in the UK is weakest between the legislative and executive, and strongest and most distinct between the judiciary and the other two branches. Indeed, the Constitutional Reform Act 2005 has brought stronger separation between the judiciary and the executive, making the judiciary more autonomous.

Chapter

Cover The Changing Constitution

8. The Foundations of Justice  

Andrew Le Sueur

Everybody agrees there is broad consensus that the constitutional principle of judicial independence is important. In relation to the core judicial functions of hearing cases and writing judgments, the central meaning and application of the principle is fairly straightforward: people holding public office (politicians, parliamentarians, and officials) must refrain from interfering with judicial decision-making in individual cases; and judges should be protected from illegitimate pressure from the news media and other organizations. But hearings and judgments do not ‘just happen’; they have to be facilitated by a wide array of institutions and processes (the justice infrastructure), covering matters as diverse as court buildings, litigation procedures, judicial careers, and legal aid. In the absence of a codified constitution, in the United Kingdom the justice infrastructure is set out in Acts of Parliament, delegated legislation and ‘soft law’ (including the 2003 ‘Concordat’). The day-to-day running of the justice infrastructure can be understood in terms of who carries out functions related to the administration of justice—the judges, government (in particular, the Lord Chancellor), functions shared between judges and government, and functions given to arm’s length bodies. Periodically, the justice infrastructure is reshaped. This is a constitutionally significant activity that may take place in different settings—the political environment, expert environments, and blended environments. The day-to-day running of this infrastructure, along with its periodic reshaping, presents numerous and complex challenges for a legal system intent on respecting judicial independence and facilitating access to justice.

Chapter

Cover Constitutional Law, Administrative Law, and Human Rights

10. Local Government  

This chapter examines the institution of local government. This topic is often neglected in constitutional law studies, on the rather simplistic basis that since the United Kingdom is not in a legal sense a ‘federal country’ it is only the national governmental system that merits close attention. The suggestion made here is that analysis of the role played by local government institutions reveals a great deal about the nature of ‘democracy’ within our modern constitution. The chapter focuses in general terms on the evolution of ideas relating to localism, tradition, and the ‘modernisation’ of local government and on local government’s changing constitutional status during the course of the twentieth century. More specifically, the chapter examines trends in the institutional structure of the local government sector (and especially the abolition of the Greater London Council and metropolitan counties in the mid-1980s), developments relating to the fiscal autonomy of local government throughout that period, the role played by the judiciary in determining the limits of local government autonomy, and changes in one of the most important areas of local authority activity – the provision of council housing.

Chapter

Cover Constitutional Law, Administrative Law, and Human Rights

23. Conclusion  

This chapter addresses the question of whether it is legally possible to entrench legislation in a way that safeguards it from repeal by the traditional ‘simple majority in Commons and Lords plus Royal Assent’ formula; and, if so, under what political circumstances it might legitimately be employed. It argues that the Blair government’s commitment to establishing a pluralist political culture is head and shoulders above any of their twentieth-century predecessors. This is most evident in its devolution legislation as well as in its embrace of the European Convention on Human Rights and Fundamental Freedoms and the provisions of the Amsterdam Treaty. The same observation may be made about the Blair government’s promotion of the Constitutional Reform Act 2005. Yet these initiatives, desirable though they may be, can hardly be seen as engineering a constituent reformation of the political system.

Chapter

Cover Cases and Materials on Constitutional and Administrative Law

4. Judicial Independence  

This chapter examines the notion of judicial independence. It discusses the Constitutional Reform Act 2005 and its provisions reforming the office of the Lord Chancellor, establishing a new Supreme Court, and restructuring judicial appointments. Judicial diversity and discipline, along with further change to the judicial appointments process, are also considered. The chapter also considers the accountability of the judiciary to Parliament and the public, and the relationship between judicial independence and parliamentary privilege.