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Complete Summary Comparative Constitutional Law (Readings, Lectures, WGs)
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Constitutional Law summary
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• ConstitutionHow effective has constitutional reform been since 1997?
Labour were victorious from the 1997 GE after promising a program of constitutional reform
driven by: modernisation, democratisation, decentralisation and rights.
• Devolution - most significant constitutional reform
Yes- It has been effective
• Has modified the UK’s heavily centralised constitution by enabling policies that meet the
needs and wishes of people at local level - decision making closer to the people
• Creation of Scottish Parliament (primary, secondary and financial devolution -
control over NHS, education, criminal law, housing, economic development),
Welsh Assembly (primary, secondary and financial devolution - powers over
health and education), Northern Irish Assembly (primary and secondary but not
financial devolution - can set laws in a whole range of areas including SOME
reserved matters with consent of NI secretary including financial services)
• Power have increased:
• 2015 Smith Commission granted Scotland more devolved powers- 50p
alcohol charge, air passenger duty, can set own income tax
• 2016 Welsh Assembly introduced a bill that will established a new Land
Transaction Tax which is the first new Welsh tax for almost 800 years
• Helped end violence in Northern Ireland by creating a power sharing system of
government (BUT Assembly has been suspended since Jan 2017- a failure?)
BUT although it has been suspended it did help establish peace
• Allowed to have their own laws:
• Scotland 2012 Alcohol Minimum Pricing Act
• Human Translation Welsh Act 2013 - changed from opt-in to opt-out
• Can be used for policy testing after adopted by England
• UK Health Act 2005 banning smoking in enclosed public spaces first passed in
Scotland then UK passes same act in 2006
• Sugar Tax
• Welsh 2001 Children’s Commissioner (Children’s Act 2004)
• In theory should put off calls for independence
• Scottish ability to carry out own legislation ie tuition fees. Tony Blair hoped
devolution would end SNP and Scottish separatism
No- It has not been effective
• Uneven and cloudy- has created more issues than it has solved - there are centrifugal
forces pulling the system apart
• Barnett formula
• The West Lothian Question- refers to whether MPs from NI, Scotland and Wales
sitting in the HofC should be able to vote on matters that affect only England,
while English MPs are unable to vote on matters which have been devolved
, • Could be resolved by an English Parliament but there is little public
support for this and it is not espoused by any major political party
although there is evidence the cultural sense of Englishness and
nationalism is strengthening, partly in relation to the perceived
advantages enjoyed by Scotland under devolution
• Cameron was forced to shelve plans to extend Sunday trading hours in
England and Wales on 10th Nov 2015 after SNP MPs voted to block them
in Parliament. Supporters said it would help the high street compete
against 24hr web retailers but SNP claimed Scottish workers wages
would be cut. Philip Davies, tory MP said “this is absolutely shameless”.
• EVEL (English Votes for English Laws) introduced by Cameron in 2016. Idea was
to introduce a new stage in the lawmaking process, allowing English MPs to
block anything in bills deemed to be ‘England only’. Controversial as speaker in
Parliament would have final say on which bills concerned only England. Some
argue it is impossible for him to remain politically neutral in this position - hard to
bill as only England concerning because it had financial implications for the
whole of the UK
• Separate bodies may want further independence, weakening UK
• April 2019, Nicola Sturgeon SNP calls for a second referendum after Brexit to
happen in next two years after failed Scottish Referendum in 2016
• Rise of English nationalism - fuelled by things such as the Barnett formula allowing for
more to spent per head in Scotland than in England
Mini Conclusion
• Devolution has been able to address more issues of the people meaning more inclusive
politics.
• Although this may be beneficial for the devolved assemblies themselves, overall it has
weakened UK.
• Brexit has weakened devolution, especially Ireland potentially bringing back violence - it
has exposed the weaknesses of devolution whether than may be a second referendum
in Scotland or the NI issue of the backstop meaning the return back to violence and the
assembly discontinues to function - breakup of the UK - instability
2. Human Rights Act 1998 and Creation of Supreme Court 2005
Yes- It has been effective
• HRA Enshrined most of the provisions of the ECHR into UK law, representing a shift
towards an explicit, codified, legal definition of individual rights
• Previously, human rights cases took place in Strasbourg, but could now take
place in UK courts, making it easier for people to bring human rights cases to
court
• Provides protection of citizens rights without threatening parliamentary sovereignty
• The act is not entrenched so gov can modify the way it operates (ie control
orders 2005).
, • SC started work in 2009, enhancing separation of powers
• Became UK’s highest court and removed judicial role of House of Lords
exemplifying separation of powers. Judiciary is now fairer and less susceptible to
corruption.
• Created a further system of checks and balances to watch over the gov and
potentially hold them to account BUT only allowed to declare incompatibility
• E.g. Terrorism Act of 2005 was intended to deal with 2004 SC ruling about the
previous terrorism act in 2001 over the right to free trial Article 6 of ECHR
• HRA has been used to protect human rights
• E.g. under Article 2 Right to Life, Iraq soldier wasn’t given the correct equipment
• E.g. Under Article 8 Right to family life, an asylum-seeker mother cannot be
deported as it would breach her child’s right to family life (2011)
No- It hasn’t been effective
• Gov can still take away important liberties with a majority vote in Parliament
• Control orders 2005 - Prevention of Terrorism Act which provides very limited
rights to appeal
• Control orders in the Terrorism Act 2005: can be imposed on UK national and
foreign nationals including closed proceedings as well as restrictions on
employment, residence, travel, communication and association with others -
replaced with a modified version known as TRIMs
• Investigatory Power Act ('Snoopers' Charter') which increased the power of the
intelligence agencies by obliging Internet companies to store information about
customers' browsing history (2016)
• Evidence of clear erosion of human rights despite HRA:
• Anti-Terror Legislation (as above)
• Banning far-right groups from Facebook inc BNP in 2019- right of free speech?
• April 2019 ruled that have to give in victim’s phone for evidence in rape cases -
right to privacy?
• Not binding on Parliament due to Parliamentary Sovereignty
• Can only rule as “incompatible” with UK law. Can force legislation to be revised
but is not binding.
• ECHR has repeatedly ruled banning prisoners from voting is a breach of human
rights but no one can force Parliament, so has been ignored (Hirst v UK 2005 -
ruled that this blanket ban is contradictory to the ECHR right to free elections)
BUT the government has been reinstating voting rights for some low-crime
prisoners which shows the influence of a declaration of incompatibility
• Conservative critics think a ‘British Bill of Rights’ would be more effective
• Would make the UK Supreme Court the final judge of citizens rights- more
relevant and patriotic - right to appeal for a criminal foreign national would be
restricted from 17 to 4 and British traditional values such as right to a fair jury
included
• Counter argument that human rights should be an international trend
• Some critics say the act is not used to protect rights but gain money.
, • Article 2 Right to Life has been arguably exploited
• 70 000 are not deported every year as a result of the HRA
• Mostly used to sue public bodies and never been used to strike down
government legislation
• Compensation for family members who those who died in Iraq due to lack of
equipment.
• Critics argue SC is undemocratic
• Judges are unelected and unaccountable
• Do they have the ability/ authority to hold such power?
• E.g. Gina Miller Case 2017
• In theory have no political sympathies or ideologies but is this unrealistic?
Mini Conclusion
• A step towards a legal definition of individual rights and certainly upholds parliamentary
sovereignty, but lots of weaknesses undermine its effectiveness.
• Especially post-Brexit clear need to protect the right of migrants living in the UK
3. Parliamentary Reform
Yes- It has been effective
• House of Lords Act 1999
• Abolished the right of all but 92 hereditary peers. Lords now comprised mainly of
life peers and no political party had an overall majority - bills scrutinised on merit
not with political bias.
• More scrutiny now because of reforms; gender balance, political balance. Lack of
hereditary peers means there is now more legitimacy within the house (more
democratic) So in terms of checks and balances it has been improved.
• Wright Reforms 2010
• Off back of MP scandals- designed to modernise Parliament. Select committees
revolutionised for example, chairs now significant political figures e.g Sarah
Wollaston as they are elected by backbenchers so gov has lost control of them
and reports are more unanimous.
• Committees are significant- 40% of suggested amendments taken up by gov
• More independence, reports matter more, more embarrassing for government so
bigger pressure to comply, govt takes their reports more into account
• Creation of Backbench Business Committee in 2010 - more access points for BBs
• Allowed to choose topic for debate on 35 days each parliamentary session
• Led to introduction of Harvey’s Law in 2015 which obliges the Highway Agency to
notify the owners of pets who are killed in the roads
No-It hasn’t been effective
• Further HofL reform faltered
• Labour gov made little progress with the second stage of the reforms which was
due to fundamental division between the Commons and Lords on how the
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