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.
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Chapter
Steve Peers
This chapter examines the possible tension between democracy and effectiveness in the context of the EU’s political institutions: the European Parliament, the European Council, the Council, and the Commission. To this end, it examines in turn the composition, powers, and functioning of each of these institutions, comparing them to national systems and assessing their democratic accountability and the effectiveness of their functioning. It shows that the role of various EU institutions has evolved over time - in particular to strengthen the legislative role of the European Parliament, and that body’s control over the Commission.
Chapter
This chapter examines the multifaceted and increasingly complex relationship between the European Union and its member states. The chapter begins with the transfer of sovereign powers and the democratic legitimacy of the Union and the establishment of constitutionalism within the Union. Section 3.4 considers the transfer of powers from the member states and the division and control of competences between the Union and the member states. In this context, the principles of subsidiarity and of proportionality are discussed, which are the political solutions to the very emotive questions about how power is shared between the Union and the member states.
Chapter
Steve Peers
This chapter examines the possible tension between democracy and effectiveness in the context of the EU’s political institutions: the European Parliament, the European Council, the Council, and the Commission. To this end, it examines in turn the composition, powers, and functioning of each of these institutions, comparing them to national systems and assessing their democratic accountability and the effectiveness of their functioning. It shows that the role of various EU institutions has evolved over time—in particular to strengthen the legislative role of the European Parliament, and that body’s control over the Commission.
Chapter
This chapter focuses on three principal issues concerning the UK Parliament. First, it addresses the democratic credentials of Parliament. Second, it considers Parliament’s legislative role. Third, it examines Parliament’s powers. The chapter shows that, at least in constitutional theory, Parliament is ‘sovereign’, meaning that its authority to legislate is legally unlimited, and considers why this is, whether it is acceptable, and whether the notion of parliamentary sovereignty remains accurate today.
Chapter
This chapter introduces the idea of a constitution, analyses its various definitions and characteristics, and explores the specific nature of the UK’s constitutional arrangements. It then examines the key concepts of legitimacy, democracy, legal and political constitutionalism, the conditioning of power (via the principles of the separation of powers and responsible government), and the state.
Chapter
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter, which discusses the process by which the EU enacts legislation and makes decisions, begins by considering the making of legislative acts. This includes the Treaty rules and practice concerning the initiation of the legislative process, and how the ordinary legislative procedure, in which the Council and EP act as co-legislators, has come to occupy centre stage. The focus then shifts to the making of delegated acts followed by an analysis of how implementing acts are made. The chapter concludes with discussion of democracy in the EU, and evaluates the extent to which the EU might be said to have a democracy deficit. The UK version contains a further section analysing issues concerning EU legislation and decision-making in relation to the UK post-Brexit.
Chapter
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter, which discusses the process by which the EU enacts legislation and makes decisions, begins by considering the making of legislative acts. This includes the Treaty rules and practice concerning the initiation of the legislative process, and how the ordinary legislative procedure, in which the Council and EP act as co-legislators, has come to occupy centre stage. The focus then shifts to the making of delegated acts followed by an analysis of how implementing acts are made. The chapter concludes with discussion of democracy in the EU, and evaluates the extent to which the EU might be said to have a democracy deficit. The UK version contains a further section analysing issues concerning EU legislation and decision-making in relation to the UK post-Brexit.
Chapter
This chapter examines freedom of expression in international human rights law. It discusses the freedom of the press and media; overlap with other rights (correspondence, privacy, and association); and exceptions to freedom of expression. The chapter concludes that the scope of the freedom of expression is still evolving and that international bodies are struggling with the challenges of the information technology age.
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This chapter explores local government in the UK, by which is meant the myriad bodies and institutions elected in localities across the country and tasked with providing governance and leadership for a specific area. The historical development of such institutions is explored, placing this development in a broad constitutional context. The chapter explains the way in which local government operates, looking at the various structures adopted across the different parts of the UK. It also discusses and explains councils’ executive arrangements, focusing in particular on distinctions between single- and two-tier models and the emergence of directly elected mayors. A key constitutional consideration with regards to UK local government, though, is councils’ relationship with centralised (or devolved) authority. This is discussed in the chapter, with a particular emphasis on the way in which central government exerts control over local bodies including on the question of finance. The chapter also discusses recent and potential reform of local government.
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court. On its face, this case (also known as the Incorporate References case) concerns the two Bills of the Scottish Parliament which sought to incorporate two international treaties into Scots law. More significantly, this case—alongside the Continuity Bill Reference case—speaks to the nature of the devolution settlement, its democratic credentials, and the relationship between the UK Supreme Court, the devolved institutions, and the Westminster Parliament. The document also includes supporting commentary and questions from the author, Thomas Webb.
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This chapter examines freedom of expression in international human rights law. It discusses the freedom of the press and media; overlap with other rights (correspondence, privacy, and association); and some of the permissible exceptions to freedom of expression. Freedom of expression is more complex than perhaps first appears. There are many situations in which law is engaged to ensure an appropriate balance is struck between competing claims. There are also diverse views on the appropriateness of limiting the exercise of the freedom. The chapter concludes that the scope of the freedom of expression is still evolving and that international bodies are struggling with the challenges of the information technology age.
Chapter
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court (also known as the Incorporation References Case). On its face, this case concerns the two Bills of the Scottish Parliament which sought to incorporate two international treaties into Scots law. More significnatly, this case—alongside the Continuity Bill Reference case—speaks to the nature of the devolution settlement, its democratic credentials, and the relationship between the UK Supreme Court, the devolved institutions, and the Westminster Parliament. The document also includes supporting commentary and questions from author, Thomas Webb.
Chapter
Robert Reiner
Trends and patterns in crime and criminal justice are shaped by variations in the overall structure of different political economies. The macro trends in political economy are mediated by varying institutional and cultural factors and, in turn, these feed down into more local neighbourhood and family patterns and ultimately the psychology of different individuals. Whilst there is an element of choice in the commission of crime, this operates in conditions that are influenced by micro, meso, and macro structures. The chapter analyses the history of political economy as a perspective in criminological theory, as well as how crime and criminal justice vary over time and space between different political economies, in particular social democratic and neoliberal ones.
Book
Edited by Sir Jeffrey Jowell and Colm O'Cinneide
Since its first edition in 1985, The Changing Constitution has provided analysis of the key issues surrounding the UK’s constitutional development, and debates around reform. The ninth edition of this volume is published at a time of constitutional turbulence, with Brexit putting pressure on key aspects of the UK’s unwritten constitutional system. Other aspects of the UK constitution are also in a state of flux, and continue to generate political and legal controversy: the legal protection of human rights, understanding of parliamentary sovereignty and the rule of law, separation of powers, restructuring of the system of justice, the regulation of access to information and data privacy, and pressures for increased devolution to Scotland, Wales and Northern Ireland. These issues and more are covered in this latest edition of one of the UK’s leading texts on the constitution, which includes contributions from a range of leading public law scholars.
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This chapter analyses what EU academics have termed the ‘democratic deficit’ in the EU. In EU law, the concept of the ‘democratic deficit’ is used to classify the EU as a system that may hold some of the qualities of a democratic government, but is lacking others. The chapter then investigates just how much ‘democracy’ exists in the EU decision-making processes. There are those who claim that the EU will never be democratic, and those who argue that the EU actually does not suffer from true shortcomings. The chapter evaluates both of those claims, and considers if recent big events in the EU — such as the ratification of the Lisbon Treaty, and the so-called Eurozone financial crisis — impact upon the debate. It also looks at the nature of Brexit during the Withdrawal Agreement's transition period, as well as the future relationship between the UK and the EU.
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Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter deals with Article 3 of the First Protocol which imposes on states a duty to hold elections. At the heart of Article 3 is the view that the best way to uphold human rights is through upholding an ‘effective political democracy’. Human rights require states to respect various rights and freedoms that are necessary for any system if it is to be democratic. Though Article 3 of the First Protocol appears to provide only a collective right to fair elections, it has been interpreted to also provide for individual rights to vote, to stand, and to sit, if elected. Article 3 does not, however, provide wide rights to participate in political processes. Its scope is confined to elections for ‘the legislature’, which do not include local elections or referendums. The controversy over prisoners’ voting rights is discussed in this chapter.
Chapter
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, discussion points and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter discusses the various concepts that pervade the way the European Convention on Human Rights (ECHR) is interpreted and, therefore, how Convention rights under the HRA are applied. The chapter considers the internal and external sources used to interpret the text. It goes on to consider the concepts that the European Court of Human Rights has developed when applying the Convention. In particular the ‘living instrument’ doctrine, the idea of the rule of law, the margin of appreciation, proportionality, and democracy (in a Convention context) are considered and explored.
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This chapter addresses the doctrine of common law constitutional rights. This is a controversial area where judges uphold the rule of law to restrict not only government power, but occasionally the meaning of statutes in order to protect the fundamental rights and values that permeate the UK constitution. This can create tensions between parliamentary sovereignty, separation of powers, and rule of law. There is no definitive list of common law constitutional rights and values and they are unwritten, but they are essentially the rights and values protected by the rule of law that have evolved as rules of ‘fair play’ and justice. They include justice; legality; fundamental rights such as liberty, freedom of expression, and equality; accountable government; and democracy.
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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 provides an introduction to public law. Public law regulates the relationships between individuals (and organisations) with the state and its organs. Examples include criminal and immigration law and human rights-related issues. Public law is made up of a number of key principles designed to ensure a healthy, representative, law-abiding country that strikes a balance between the needs of the state and the needs of its citizens. Each of these principles is discussed in turn: the rule of law, separation of powers, representative democracy, supremacy of Parliament, limited and responsible government, and judicial review executive action by the courts.
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