Explain and analyse three different ways in which the British Constitution upholds
citizens rights.
One way in which the British constitution upholds citizens’ rights is through statute law. For
example, a series of private members’ bills in the 1960s decriminalised abortion and
homosexuality, whilst the Equalities Act 2010 provided for protection from discrimination on
the grounds of sex, religion, age and other protected characteristics. Theoretically, due to
the lack of an entrenched constitutional settlement akin to the US and the principle of
parliamentary sovereignty, these rights could be revoked by simple acts of Parliament, and
during the Covid pandemic over 500 SIs were used to implement sweeping curtailments on
civil liberties. However, Hailsham’s ‘elective dictatorship’ has yet to transpire, with political
checks proving effective at warding off the abuse of parliamentary sovereignty (e.g.
pandemic-era restrictions on freedom of assembly and association were withdrawn and
repealed after the public health threat subsided).
Another way in which the British constitution upholds citizens’ rights is through the
interpretive powers of the judiciary exercised under the HRA 1998, which incorporated the
ECHR into UK law, including protections for freedoms of speech, assembly and private life.
Under the HRA, judges can strike down secondary legislation that violates human rights law
as ultra vires (e.g. the Rwanda plan). The HRA further gives judges under Section 3
extensive interpretative authority to read in, out, or down so as to interpret primary legislation
in a manner compatible with human rights law and to issue a Section 4 declaration of
incompatibility if it is impossible to do so. Whilst said declarations of incompatibility can be
ignored (and were over prisoner voting rights), generally they are complied with through the
Joint Committee on Human Rights’ fast-track amendment procedure and successive
attempts to replace the HRA with a ‘British bill of rights’ by Conservative governments have
been abandoned in the face of backbench rebellions by One Nation Tories amid concerns
over threats to civil liberties and the peace process in Northern Ireland. The enduring
strength of judicial power under the HRA and the manner in which political constraints have
checked government attempts to curtail it evidences its effectiveness in upholding citizens’
rights.
A final way in which citizens’ rights are protected in the UK is through the action of the
House of Lords, which acts as a constraint upon the ability of a government commanding a
Commons-majority to push through legislation curtailing civil liberties. Whereas the
government can dominate the Commons through its control of the timetable under Standing
Order 14, its powers of patronage and the whip, and the ‘payroll vote’, the Lords has no
single-party majority, controls its own timetable through unanimous agreement, and depends
on cross-party support for legislation to be passed. Although due to the Parliament Act 1949
the Lords only possesses the power of an annual delay, and tends to concede before the
greater democratic legitimacy of the Commons (backing down, for example, on its attempts
to block elements of the government’s Public Order Act 2023, which significantly curtailed
freedom of protest), the effectiveness of the Lords in holding governments to account and
protecting citizens’ rights can be seen in its defeats of attempts by the Blair government to
introduce mandatory ID cards and restrict trial by jury.
,Explain and analyse three ways in which constitutional changes since 1997 have
affected the British constitution.
- Devolution → various acts since 1997 referenda; movement away from
unitary state to quasi-federal constitutional settlement; greater power
vested in sub-national, regional and local governments HOWEVER
asymmetric nature of devolution, limited extent in England (less than 10%
of revenue raising power devolved within England) + Supreme Court
decision on Sewel convention with regards to Internal Market Act
demonstrates continued supremacy of UK Parliament/potential
vulnerability of devolution settlement
- Creation of UKSC by 2005 Constitutional Reform Act; greater legitimacy →
selected through transparent, independent process rather than through
‘sounding out’ by Lord Chancellor; increasingly assertive in recent years
e.g. Miller Cases; HOWEVER power remains fundamentally limited by
Parliamentary sovereignty e.g. government effort to overturn Rwanda
policy decision through act of Parliament + even Miller cases demonstrate
court’s limited tangible power (May passed Article 50 revocation through
Parliament just weeks later; Parliament had already rendered Johnson’s
illegal prorogation futile through passage of Benn Act, forcing extension to
withdrawal process, weeks before Supreme Court decision)
- CRAG Act 2010 → codified Ponsonby convention; treaties have to be laid
before Parliament 21 days prior to ratification HOWEVER powers under
statute weak e.g. Commons can only delay, not vote down, international
treaties and this delaying-power is largely theoretical because government
can use command of timetable through Standing Order 14 to simply deny
the Commons the opportunity to hold a vote e.g. as it did with the Rwanda
Treaty (the international agreement with the Rwandan government as
opposed to the separate bill declaring Rwanda a ‘safe country’) against
recommendation of Home Affairs Select Committee
Explain and analyse the significance of three sources of the British Constitution.
- Conventions → informal rules governing political behaviour and
institutions; e.g. Salisbury-Addison convention; conventions lack legal
force, rely on ‘good chaps’ theory of government and can be circumvented
with relative ease e.g. Johnson ignoring HOLAC recommendation; May and
Sunak deviating from convention for Parliamentary consent for military
action
- Statute law → most important source of UK constitution due to
Parliamentary sovereignty (can make and unmake any laws through
ordinary primary legislative process); examples would be devolution acts,
House of Lords Act 1999 etc; HOWEVER parliamentary sovereignty
, likewise means that constitutional reforms instituted through acts of
Parliament can likewise be overturned by acts of Parliament e.g. FTPA
2011 overturned by Dissolution and Calling of Parliament Act 2022
- Royal prerogative → powers formally vested in monarch but in practice
exercised by the PM and the executive; examples being prerogative
powers of treaty-making, military action, calling of elections; have been
efforts to curtail in recent years e.g. Miller 2 saw UKSC restrict power of
prorogation HOWEVER remain significant e.g. Sunak launching military
strikes against Houthis, Dissolution and Calling of Parliament Act restoring
prerogative power to call elections, PM has near absolute authority to hire
and fire ministers (compare to US)
‘The British Constitution provides very weak protection for citizens’ rights’. Analyse
and evaluate this statement.
- Theoretically, yes
- Due to principle of parliamentary sovereignty + restriction of power of Lords to at
most a 1-year delay on non-money bills, Parliament can make or unmake any law,
meaning that an elected government with authoritarian intent and a compliant
Commons majority could push legislate for sweeping restrictions on civil liberties
(Hailsham’s ‘elective dictatorship’)
- Unlike in US, whereby fundamental rights and freedoms are codified and entrenched
in the Bill of Rights and can only be altered through arduous Article V amendment
process, UK statute laws that ostensibly guarantee various civil rights and liberties
e.g HRA 1998; Equalities Act 2010 can be overturned by simple majorities; passage
of Minimum Service Levels Act 2023 (restricting democratic right to strike) and Public
Order Act 2023 (restricting freedom of protest) - both against criticism from
international bodies e..g. ILO and after Lords amendments having been rejected -
potentially demonstrate the vulnerability of UK rights before an empowered
Commons majority
- Likewise, the Covid-pandemic, during which over 500 statutory instruments were
enacted curtailing fundamental freedoms of association, assembly and movement,
only 30 of which were even debated in Parliament prior to their implementation and
many incl, rule of 6 were imposed using the made-affirmative process, meaning that
they entered into legal force at stroke of ministerial pen. Contrast this to situation in
US where federalism + constraints on executive power through Supreme Court’s
power of judicial review limited power of Trump and Biden to impose nationwide
lockdown restrictions e.g. Florida kept most of state open, Biden mask-mandate
executive order on public transport struck down by district court
HOWEVER…
1. In reality, UK enjoys strong political constraints upon the ability of the government
and Parliament to exercise power in an authoritarian manner; cite example of
attempts to replace HRA persistently being rejected as evidence of effective political,
as opposed to legal entrenchment; note growing willingness of Supreme Court to
, check executive abuses of delegated and prerogative powers e.g. Unison vs Lord
Chancellor; Miller cases
2. Note how UK political protections for rights appears to be stronger than US
constitutional/legal protections e.g. Dobbs vs Jackson vs UK decriminalisation since
1960s; Shelby vs Holder and voter suppression + gerrymandering + Article IV vs UK
Electoral Commission and independent Boundary Commission
3. Note how Covid-era restrictions were implemented to protected that most
fundamental right upon which all other liberties are predicated - life - and fact that
restrictions rolled-back as public health threat subsided as evidence of strength of UK
citizens rights even in the face of national emergencies
‘The British Constitution has stood the test of time extremely well and needs no major
reform.’ Analyse and evaluate this statement.
1. Lack of entrenchment
- Contrast to US
- Theoretically problem of elective dictatorship + some evidence of reality e.g. Strikes
Minimum Service Levels Act 2023, Public Order Act 2023
- HOWEVER…
- Political constraints strong e.g. HRA and Bill of Rights; compare protections of
abortion and voting rights vis a vis US
- Likewise cite danger of ossification and over-powerful judiciary e.g. US 2nd
Amendment; Bush vs Gore decision
- NONETHELESS…
- Elections Act 2022 raises concerns, as does Rwanda Bill over threat to
democracy and rule of law; Levitsky and Ziblatt on idea that even
democratic majorities should not be able to curtail basic civil liberties +
democratic rights → case for entrenchment of some aspects of UK
constitution e.g. HRA 1998; independence of Electoral Commission
2. Lords reform
- Concerns over lack of democratic legitimacy (raised since Parliament Act 1911
foreword); Brown Commission recommendation of elected Senate of Nations and
Regions
- Likewise concerns over size (second largest chamber in the world after China) and
abuse of patronage powers (e.g. Johnson appointments of Cruddas and Levedev
against advice of HOLAC)
- NONETHELESS…
- Elected upper chamber risk gridlock (witness US Senate) + not clear what additional
value it would add + loss of genuine Lords expertise e.g. Houghton, Norton, Hale
- Lords actually functioning relatively effectively; cited by Ian Dunt as one of only two
effective parts of Westminster (other being Commons Select Committees); >50% of
successful amendments originate in Lords; government defeated >400 times since
2019, 20% of which led to substantive changes acc. Hannah White of IFG;
government can ultimately overturn Lords decision e.g. Hunting Act 2004, or rejection
