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GovernmentDemocratic Government

In a democracy, ordinary people have the right to vote, and in doing so can influence government policy. In the UK, and many other western democracies, there are a range of constraints on the actions of the government. In any democracy there has to be a separation of power between the Executive, the Legislature and the Judiciary.

a) The Executive

This represents the government, i.e. the Prime Minister (PM), the Cabinet, which includes all the senior ministers, and, outside the Cabinet, junior ministers, who work in the various government departments. This Executive body is responsible for deciding what policies should be introduced in Parliament.

b) The Legislature

This represents the Houses of Parliament, i.e. the Commons and the Lords, whose main job is to scrutinise government Bills and suggest amendments. There are various committees that scrutinise Bills and the actions of government departments.

c) The Judiciary

This represents the judges and the courts. The most senior judges are called the Law Lords, led by the Lord Chancellor. Their main role is to study the legal position of government policy. If the government acts beyond its power, then the Law Lords can force government to change its policy.

The UK only has a partial separation of power, because the PM and the Cabinet are MPs and are therefore in the Legislature as well as the Executive.

The Role of the Prime Minister

The Prime Minister has a number of different roles:

He or she appoints members of the government. This includes all members of the Cabinet and all the Junior Ministers

Controls government policy – the PM directs and coordinates government policy The PM organises the departments within government. He/she has the right to abolish

departments and create new ones. Tony Blair abolished the position of Lord Chancellor and plans are in place to replace the Law Lords with a Supreme Court, as in the USA.

Controls the House of Commons, through the Leader of the House. He/she also controls the timetable of the Commons

He/she provides leadership to the nation. The PM is the figurehead of government. He/she is responsible for leading the nation in times of crisis. Tony Blair was able to show leadership after the 9/11 crisis

The PM has the power to dissolve Parliament, by going to the Monarch and requesting dissolution. There will then be a general election and a new Parliament and government

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i) The Powers of the PM:

The office of the PM is based largely on convention (an unwritten rule). Once the Monarch stopped attending Cabinet meetings, the First Lord of the Treasury began chairing Cabinet meetings. This is still the formal title of PMs in the 21st century. This is a formal title, however we refer to the Prime Minister. It can be argued that Sir Robert Peel (1841-1846) was the first modern PM. The powers of the PM have evolved gradually over the years. The following represent the main powers of the PM:

a) The Royal Prerogative

Over the years, the Monarch’s powers have been transferred to the PM. These Royal Prerogatives include the decision to declare war, making treaties with other countries, controlling the armed forces and the power of patronage.

b) Party Support

The PM and his Cabinet can often rely on the support of the Party. Over the years, party loyalty has grown much stronger, giving the PM and the opposition leaders even greater power. At the same time, many MPS are called career MPs, i.e. they want to gain promotion and become a future Cabinet minister. To do this, they must support the party and the PM. Also, the whip system is used to put pressure on MPs to vote for their party. Whips will threaten MPs if they are likely to vote against the government or abstain. If there is a 3-line whip, then they must vote for their party, otherwise they could be dismissed from the party (the whip is withdrawn).

c) Media Attention

Increasingly, the media focus on the PM, rather than the Cabinet. The media highlight the image and personality of the PM. The media were able to undermine certain PMs, eg. John Major, and Gordon Brown. In contrast, Tony Blair was able to take advantage of the media attention. He was able to manipulate the media by saying the right things and using sound bites. Blair would dress for the occasion and be prepared to answer any question. In conclusion, the media has highlighted the importance of the PM and relegated other members of the Cabinet.

d) The Appointment of Special Advisors

In modern times (since Margaret Thatcher), PMs have appointed political advisors to work in key government departments. These people tend to be friends and loyal supporters of the PM. They will report back to the PM about problems within government, i.e. whether a top civil servant is not doing his job. This keeps the PM informed of what is going on in government.

e) Control of Parliament

The PM controls the timetable of the House of Commons. He does this through one of the members of the Cabinet – the Leader of the House. He is responsible to the PM for getting through government Bills, eg. the Bill to abolish fox hunting with dogs was pushed through the House of Commons in one day, because the PM instructed the Leader of the House to get rid of all other business that should have been discussed on that day.

f) Cabinet Committees

The PM has the power to create Cabinet Committees. These are made up of a small number of Cabinet members, picked by the PM to discuss a particular issue. The PM will ensure that on each Committee, the majority will support the PM’s view. Once the issue is discussed, the Committee send

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their report to a full meeting of the Cabinet. The PM will do this to avoid major opposition within his Cabinet over a particular proposal.

g) The PM’s Office

The PM has a personal staff of around 100 highly specialised personnel. The PM’s office includes his private office, the press office, the political office and the policy unit. These experts based at No. 10 are there to support the PM and are often called the Kitchen Cabinet.

h) The Transformation of the Cabinet Office

The Cabinet Office has a staff of 1875 Civil Servants, who should support the needs of the Cabinet. These experts form the Cabinet Secretariat. Their main purpose is to support and brief members of the Cabinet Office. However, Tony Blair in 1998 reformed the Cabinet Office, giving the PM much more control. Blair created a new Cabinet position, known as the Cabinet Enforcer. The job of the Enforcer is to ensure that Civil Servants in the Cabinet Office reach their targets set by the PM.

ii) Constraints on the PM:

a) The Personality of the PM

Mrs. Thatcher had a strong personality and did not see her role as First Amongst Equals. She dominated and bullied members of her Cabinet. Tony Blair was another dominant PM – a control freak. Blair insisted on party loyalty, even to the point of insisting that Cabinet members should first check with the PM that what they were going to say to the media was acceptable. In contrast, John Major’s style was democratic. He allowed the Cabinet to express their views and did conform to the principle of First Amongst Equals. If he found himself in a minority then he would accept the majority view. The problem for Major was that many MPs and the Press regarded his democratic style as weak.

b) A Hung Parliament

A PM’s power largely depends on the size of the majority in the Commons. Both Thatcher and Blair enjoyed large majorities, giving much more power to the PM. In contrast, when there is a hung parliament, where the government does not have an overall majority, then the PM is very weak. James Callaghan (1976-1979) held on in power, even though there was a hung parliament. He could not ignore the views of the MPs and had to compromise with backbenchers. To keep in power, Callaghan joined forces with the Lib Dems, creating the Lib-Lab Pact. He had further compromise with the Liberals to maintain their support.

c) The Political Balance in the Cabinet

It is an important convention that the Cabinet remain united and stand together as one. However, John Major’s Conservative government became split over European integration. His Cabinet could not agree to sign the Treaty of Maastrciht, 1992. This split forced Major to resign as leader of the Conservatives. John Redwood stood against Major in a vote, which Major won. Major then sacked Redwood and the other anti-Europe Cabinet members. A split Cabinet weakens the power of the PM, particularly when the Press highlight the shortcomings of the PM.

d) The Flow of Business

A PM cannot possibly control the whole of government, so he will be forced to delegate to junior personnel. Even powerful PMs like Thatcher and Blair had to rely on others to complete government work.

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The Cabinet

i) The Role of the Cabinet:

The main roles of the Cabinet, which is the most important Executive body, include:

a) Decision-Making

The Cabinet will decide future government policy, eg. to introduce a ban on fox hunting. They ask senior Civil Servants to draft the Bill and will then present it to Parliament.

b) Coordinating Departments

Apart from the PM, most Ministers are responsible for a government department. The most important three are: the Treasury, the Foreign Office, and the Home Office. Each Minister runs a government department and relies on senior Civil Servants based at the various departments. The Cabinet meet once a week, where each Minister will keep the rest of the Cabinet informed of what is going on.

c) Forward Planning

The Cabinet is a form of “taking shop”, where they will discuss future policy, eg. in October 2009, Gordon Brown’s Cabinet discussed future policies, which will go in the Labour Party Manifesto before the 2010 Elections.

ii) The Size and Structure of the Cabinet:

Since 1945, there have been roughly 20 members of the Cabinet. There is a hierarchy around the PM – the three most important departments as well as the more junior departments, such as the Department for Overseas Aid. There are two basic guiding principles that govern the behaviour of Cabinet Ministers:

a) Collective Responsibility

Ministers are bound by a convention that they must not disagree in public with the PM or a Cabinet decision. If a Minister feels he/she cannot go along with a Cabinet decision, they should resign from the Cabinet and return to the back-benches. For example, Robin Cook, who was the Foreign Secretary, resigned from the Cabinet over Blair’s decision to go to war with Iraq. At the same time, Claire Short criticised the PM over the Iraq war, but did not resign. She has the right to disagree in private with the PM, but she broke the basic convention of collective responsibility by remaining in Cabinet.

b) Ministerial Responsibility

There are two sections of this convention: 1) responsibility to the department, and 2) personal responsibility.

1. A Minister takes full responsibility for the performance of his/her department. If there is evidence of a serious malfunction, then they should take full responsibility and resign. Stephen Byers was Blair’s Minister for Transport. Senior Civil Servants in his department had a heated argument in public, and it was felt Byers had lost control of his department and he therefore resigned.

This particular convention is not as strong as it was, because it now appears that if the PM supports, then the Minister need not resign, eg. Michael Howard, the Home Secretary in

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Major’s government, refused to resign over the Belfast prison walk-out. There was a complete breakdown of communication within a prison holding convicted terrorists, which resulted in these IRA bombers simply walking out into the city. This convention should have resulted in Howard’s resignation.

2. A Minister is also responsible for his own personal conduct. If they behave in such a way that they offend Parliament, then they should resign. Ron Davies, in 1998, was the Welsh Secretary of State, and resigned from Blair’s Cabinet because of a “moment of madness”, in which he met a male stranger in a public toilet in South London. Davies had to resign in disgrace.

In Major’s term of office, he introduced a Back to Basics policy. This was a response to the party being unpopular, because of sleaze and corruption. This meant any Minister having extra-marital affairs would be forced to resign, eg. David Mellor resigned because of an affair with an actress.

Ministers and Civil Servants

In principle, the Minister, who is an elected member of the House of Commons, is in control, and the master of his/her department. The top Civil Servants, who work in each department, serve the needs of the Minister. These Civil Servants brief their Minister before Question Time or to advise the Minister on how to introduce a Bill into the House. The Civil Servants, therefore, are there to serve the needs of their master.

i) Traditional Views of the Civil Service:

Civil Servants are assumed to have three main qualities:

1. Neutrality –

Civil Servants must be neutral in terms of their political views. They must serve their Minister equally well whether the Minister is Labour or Conservative. Civil Servants work in the interests of the government – the policies of that government will not matter to the Civil Servants.

2. Permanency –

Unlike a Cabinet Minister, who is switched from one department to another, Civil Servants are permanently employed at a particular department. They can spend 40 years working their way up through the higher positions. They become experts and their primary job is to advise the Minister on policy issues.

3. Anonymity –

Although these top Civil Servants are experts and authorities on a particular issue, they must remain anonymous. They are hidden behind the Cabinet Minister, who is the mouthpiece of the department. Civil Servants must not make public their views about various Ministers – they remain hidden in Whitehall.

ii) Department Hierarchy:

Within each department, there is a hierarchy, both in terms of Ministers and top Civil Servants.

a) Ministers

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Secretary of State (Cabinet)

Minister of State (not in Cabinet)

Parliamentary Under-Secretary

In each department, there is a Secretary of State, which is the official title of the Minister responsible for each department. He/she will be in the Cabinet. In the larger departments, such as the Home and Foreign Offices, there will be a Minister of State, who will support the work of the Secretary of State. The chances are that this MP might, in the future, become a Secretary of State. Within each department will be a number of Parliamentary Under-Secretaries. These will be junior MPs, who have taken their first job within the government. If they turn out to be successful, then in 5 or 10 years they could gain promotion to a Cabinet position.

All these MPs and Peers in these positions are appointed by the PM. They are bound by the convention of Collective Responsibility, i.e. they cannot criticise the PM or government publicly. If they disagree with government policy they should resign from the government.

b) Top Civil Servants

Civil Servants often start work in their early 20s, after graduating from university. They apply for employment at a particular government department in Whitehall. From junior positions within the department, where they gain experience and expertise, they eventually might be able to apply for the top positions in the department:

1. First Permanent Secretary

1a. Second Permanent Secretary

2. Deputy Secretary

3. Under-Secretary

4. Executive Directing Bands

5. Assistant Secretary

Civil Servants are professionals who devote all their working life to developing their expertise within a department. The very top Civil Servants, i.e. the First Permanent Secretary, will work on a day-to-day basis with the Ministers. They will advise the Minister and brief the Minister each day before the Minister’s engagements.

iii) Modern Views of Civil Servants:

The traditional view suggests that the Minister controls the department and the Civil Servants simply serve the needs of their Minister. However, there is reason to believe that Civil Servants play an active role in their department and can have political power. Some Ministers have complained that their Civil Servants try and undermine the Minister’s policies.

The following reasons explain why Civil Servants can influence political decisions:

1. Civil Servants can control the flow of information, i.e. they can deny the Minister essential information or they can drown the Minister with paperwork.

2. Ministers have many other commitments besides their department work, eg. they have commitments to their constituents, the party, Parliament as well as frequent visits to

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Brussels. While the Minister is absent from his department, the Civil Servants can have a lot of influence.

3. Top Civil Servants outnumber Ministers by 10 to 1.

4. Civil Servants can hold informal meetings (networking) throughout Whitehall and can therefore out-manoeuvre an awkward Minister.

5. Top Civil Servants stay in the department for 40 years, whereas Ministers might only spend 18 months in the department.

For the above reasons, Civil Servants might be able to manipulate their Minister.

a) The Village Life in the Whitehall Community Model

This model rejects the idea that Civil Servants simply do as they are told by their Minister. The model suggests that the expertise Civil Servants have gives them greater power and influence when dealing with their Minister. In fact, the Minister and Civil Servants work together – they complement each other. Ken Clarke, the Chancellor of the Exchequer in John Major’s government, admitted that he signed the Treaty of Maastricht without even looking at the document. Clarke had confidence in his top Civil Servants, and if they said the Treaty was a good idea, then Clarke was happy to sign. In this case, the Civil Servants are dictating to the Minister – Civil Servants are in no way inferior; they have political power.

b) Adversarial Model

In this model, there is a belief that there is a power struggle between Ministers and their top Civil Servants. In the 1960s and 1970s, Labour Ministers, such as Tony Benn, felt that his policies within his department were being undermined. Benn argued that his own Civil Servants had their own agenda and set about destroying the Minister’s ideas. Civil Servants in this model are hardly neutral and, it could be argued, are driven by their own political views.

c) Bureaucratic Expansionist Model

This model suggests that Civil Servants are building their own empire. They have their own agenda and will ignore the Minister’s input. Their ultimate aim is to expand the size of the Civil Service and control their Minister. This model is similar to the Adversarial Model.

iv) Arguments For and Against Powerful Civil Servants:

Civil Servant (Mandarin) Power Ministerial PowerNumbers – about 1000 Civil Servants have a direct input into the policy-making process, compared with 60 Ministers.

The Boss – numbers may not count for much when Ministers can use their power to over-rule Civil Servants.

Time – Civil Servants are full-time, whereas Ministers divide their time between many activities, eg. constituency and Parliament.

It does not take a good Minister long to come to terms with the essentials of policy making.

Permanent and experienced – Civil Servants are permanently employed at the department, whereas Ministers are temporary.

Some Ministers take charge of their department quickly; a few Ministers will have had a great deal of experience working in other departments.

Ability and training – top Civil Servants are exceptionally able, usually with outstanding educational qualifications. Ministers are untrained and not elected for their educational

Civil Servants have a general knowledge in a particular area, eg. an economics background working at the Treasury. They do not have specialised knowledge within economics, which

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qualifications. would allow them to deceive the Minister.Monopoly of Information – Ministers are dependent on their Civil Servants for advice on policy issues. Therefore, the Minister is in a relatively weak position.

Ministers are not totally dependent on Civil Service advice; they can use their own advisors, appointed by the PM, to support the Minister (Special Advisors).

Tricks of the trade – Civil Servants may use various tricks to undermine the Minister, eg. putting important documents at the bottom of the Minister’s in-tray. Or putting the Minister under pressure by giving him insufficient time to make a decision.

It does not take Ministers long to learn the ways in which Civil Servants operate.

It can be seen that there are arguments for and against the idea that Civil Servants manipulate their Ministers. However, it must be remembered that one of the most important factors is the character and competence of the Minister. Gordon Brown, as Chancellor, was recognised as an effective Minister; he was in control and demanded loyalty from his top Civil Servants. There were reports that he reduced a number of his Civil Servants to tears, because of his aggressive approach. In contrast, a weaker Minister is not likely to have the skills required to control the department, eg. inexperience, a less than strong personality etc., can result in the Civil Servants being able to manipulate the Minister. Therefore, strength of character is perhaps the most important factor when discussing the Minister-Civil Servant relationship.

v) Special Advisors:

Since Mrs. Thatcher, there has been a growth in Special Advisors. These are appointed by the PM to support the work of Ministers in the various departments. Thatcher appointed right-wing Advisors, just as Blair appointed left-wing Advisors. They work with the Minister and sometimes against the Civil Servants. Some people argue that these Special Advisors working in Whitehall are undermining the traditional view of Civil Servants being neutral.

Cabinet Government and Prime Ministerial Government

In the British constitution, we are supposed to be led by Cabinet government. The Cabinet make executive decisions, with the PM as First Amongst Equals (primus inter pares). In recent years, political commentators have suggested that the PMs power has grown, at the expense of the Cabinet, and we now have Prime Ministerial government.

i) What is Prime Ministerial government?

If Prime Ministerial government exists, the following should be present:

1. The PM dominates the Cabinet –

If the PM is more than First Amongst Equals, and is the senior figure who can determine the outcome of collective decision-making, then we have PM government.

2. The PM has a separate source of power and authority –

If the PM can claim a number of sources of power and authority, then PM government exists. The PM should draw his/her authority from his majority in the House of Commons. However, some PMs have additional sources of power, eg. through the media and the general public (electorate).

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3. The PM can dominate the policy-making process –

However much influence his/her party, Parliament and the Cabinet may have, the PM is ultimately responsible for all key policy decisions.

4. The PM is the principal spokesperson for the government –

The media treat the PM as the ultimate interpreter of government policy.

5. Departmental Ministers must clear all important decisions with the PM before they are announced to a full meeting of the Cabinet, the Commons or the media.

6. The PM will make full use of his powers as quasi (semi) Head of State, i.e. all the powers the Monarch enjoyed 300 years ago, such as declaring war and responsibility for the defence of the UK, have been transferred to the PM.

ii) Short-Term Factors affecting Prime Ministerial Government:

a) The Size of the Parliamentary Majority

The PM’s power depends, to a large extent, on the size of his/her majority in the Commons. Both Blair and Thatcher benefitted from large majorities, which gave them power to ignore the rest of the Cabinet. In contrast, James Callaghan (1976-79) was in a weak position because of a hung parliament.

b) The State of the Ruling Party

If the party is united, as it was for much of the time under Blair and Thatcher, the PM gains more power and authority. In contrast, John Major (1990-97) was in a weak position, because the party was split over European integration (the Treaty of Maastricht).

c) Personal Popularity

Tony Blair was able to manipulate the media and consequently gained a reputation as being honest and straight with the electorate. Mrs. Thatcher also enjoyed popularity, particularly after the Falklands War. In contrast, John Major was never able to create a positive image.

d) Events

From time-to-time, events take place which either improve or destroy a PM’s popularity. Tony Blair did suffer after 9/11 from the decision to go to war with Iraq. In the same way, events have helped to undermine Gordon Brown’s position as PM, eg. the recession.

iii) Long-Term Factors affecting Prime Ministerial Government:

In addition there are a number of long-term factors that must also be considered:

a) The Cabinet Office

In recent years, a growing number of Civil Servants are responsible to the PM. At one time, they supported the activities of the Cabinet, but now many Civil Servants support the work going on at Number 10.

b) Special Advisors

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Since Mrs. Thatcher, PMs have been able to appoint people they can trust into key positions within the Civil Service. They are responsible for making sure the PM’s programme of work gets through (this is far from the idea that Civil Servants are neutral).

c) Cabinet Committees

In recent years, PMs have been able to appoint Cabinet Committees from within the Cabinet, eg. the PM could create a Cabinet Committee of 5 Cabinet members to discuss whether we should increase the numbers of soldiers in Afghanistan. The PM will ensure that the majority on this Committee will do what he wants. He will make sure that his critics in the Cabinet are in a minority on these Committees. The Committee simply reports back to the full Cabinet and its decision is not usually discussed at full Cabinet.

d) Media

Increasingly, the media highlight the PM rather than the Cabinet. Certainly since Blair, the PM is often regarded as the single representative of the government as a whole.

e) External Factors

Since 1973, the UK has grown ever closer ties with the other members of the European Union. This has involved the PM attending Summits of the European Council. The 27 leaders of the member states make executive decisions, in Brown’s case, without the Cabinet. It could be argued that certain institutional changes have weakened the PM, eg. devolution, which has transferred power to Scotland, Wales and Northern Ireland. This has reduced the PM’s influence.

Constitutions

A constitution establishes the rules and principles that govern an organisation. In the case of countries, it refers to the political principles that govern the structure, procedure, powers and duties of a government. Most national constitutions also include a statement of the rights of the individual (in the USA, a Bill of Rights).

Constitutions will set out:

The division of government activities The power relationship between the various institutions – the relationship between the

Executive, the Legislature and the Judiciary The limitations upon the powers of rulers, which will guarantee the rights of the people

i) The Purpose of Constitutions:

Constitutions have several functions:

1. They provide legitimacy to those in power

2. The protect freedom of citizens, by restricting the actions of government

3. They encourage stability in that they introduce rules which force governments to act in predictable ways

4. They can draw attention to the values of society, eg. in the 1958 French Constitution there was a reference to the “rights of man”

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5. They set out the relationship between central and regional governments, eg. the power relationships between state and federal government in the USA of the Westminster Parliament and its relationships with the devolved bodies in Scotland and Wales

ii) Characteristics of Constitutions:

a) Written or Unwritten

These terms are confusing, because the UK is said to have an unwritten constitution. However, what it really means is that our constitutional laws are not found in one document. Our constitutional laws are made up of different rules created throughout our history, eg. the Magna Carta in 1215, the Bill of Rights in 1689 and the Parliament Acts of 1911 and 1949. Constitutional rules also include conventions, which are unwritten rules that shape the behaviour of government.

It is perhaps more straightforward to say that the UK has an uncodified constitution, because our constitutional laws are found in many documents. In contrast, the USA, France and Germany have codified constitutions, meaning all its constitutional laws are found in one document. In the USA, they created their constitution when they declared their independence from Britain. The French created their own written constitution after the French Revolution of 1789. Germany created its own constitution in 1945, as a result of the defeat in World War 2. The UK has never had a massive political upheaval and this has allowed its political system to evolve over time.

b) Flexible or Rigid

Flexible constitutions, such as the UK can change their constitutional laws by a simple majority in Parliament, eg. the right to silence was altered by a simple majority in the Commons, just as during WW2 we suspended general elections until peacetime. Being flexible does allow the constitution to adjust to changing circumstances, but it is also a weakness because it offers little protection to its citizens.

A rigid constitution means it is difficult to change the constitutional laws. In the USA, the constitutional laws are regarded as a higher form of law and any amendments to the constitution need a 75% majority in both Houses (the Senate and the House of Representatives). To illustrate how difficult it is to amend the constitution, there have only been 27 amendments. The advantage of this system is that citizens are protected from the government, but the disadvantage is that the constitution cannot adjust to changing circumstances.

c) Unitary or Federal

The UK is a unitary state, in that Westminster controls the whole of the UK. It might have devolved power to Scotland and Wales, but, if it so wishes, it can return them to Westminster’s control. In contrast, a federal state is made up of a federal government and individual state governments, eg. in the USA, Washington, the federal capital, takes control of defence and security, but individual state governments take responsibility for their own internal affairs.

iii) Other Characteristics of the British Constitution:

a) Separation of Power

In any political system, there are 3 branches of government: the Executive, the Legislature and the Judiciary. The Executive directs the nation’s affairs (the Cabinet). The Legislature is responsible for scrutinising and passing laws (Parliament). The Judiciary represents the courts and judges, who

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interpret the law. According to Montesquieu, in order to protect democracy there should be a complete separation of power. The Founding Fathers of the American constitution followed Montesquieu’s philosophy:

By keeping the three branches of government separate, the Founding Fathers of the USA believed democracy would flourish.

In contrast, in the UK we only have a partial separation of power:

In the UK, members of the Cabinet are also in the Legislature, in either the Commons or the Lords. This gives the PM even greater power, because he can control the Legislative body, through party loyalty and through the power of patronage. An American President does not have this power and influence in Congress.

b) The Rule of Law

An important principle of the British constitution is that everybody is equal when faced with the law – no-one is above the law, including members of the Executive.

c) Sovereignty of Parliament

The British constitution assumes that Parliament is sovereign, i.e. no political body can challenge decisions made in Parliament – an Act of Parliament. However, in recent years Parliamentary sovereignty has been reduced. Two major events have weakened our sovereignty:

1. The European Union –

Since 1973, as a member of the EU if European Law conflicts with British law, then we must change our Act of Parliament.

2. The European Court of Human Rights –

The President and Whitehouse staff

Congress – the Senate and the House of Representatives

The Supreme Court

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In 1999, Tony Blair incorporated the Convention of Human Rights into UK law. If the British government, through an Act of Parliament, takes away these rights, then a citizen could go to the Court of Human Rights to get redress. This happened over Blair’s anti-terror laws, where the government could detain terror suspects indefinitely without trial. The European Court found the UK guilty of the contravening Right to a Fair Trial and the UK was forced to change its laws.

iv) Sources of Law for the British Constitution:

The British constitution is uncodified, in that constitutional laws are found in different areas, not just in one document. The following represent the main sources of law:

a) Major Constitutional Documents

The Magna Carta 1215 established the view that a Monarch should be controlled by their subjects. The Bill of Rights 1689 is considered to be one of the most important legal documents, which identifies the key elements of our democracy, eg. the rights of the people.

b) Statutes

A statute is an Act of Parliament, which, in some cases, contains constitutional laws, eg. the Parliament Acts of 1911 and 1949 have determined the relationship between the Commons and the Lords.

c) Conventions

These are unwritten rules that shape our constitution, eg. the Monarch must sign a Bill whether he/she agrees or not. In addition, it is now a convention that the PM must come from the Commons. This convention was confirmed when, in 1963, Lord Hume had to renounce his peerage to become an ordinary MP before becoming PM.

d) Books of Authority

The UK constitution has been influenced by a number of distinguished authors, who have written constitutional books. On of the most important, “The English Constitution”, was written by Bagehot in 1867.

e) The Royal Prerogative

The Royal Prerogative comprises of a number of power performed by past Monarchs which are now performed by the PM, e.g. declaring war and making treaties.

f) Common Law and Case (Judge-made) Law

The Common Law is a body of rules that have evolved over a long period of time. These customs, which have been exercised for centuries, have the force of law, eg. public footpaths over private land. Common Law also relates to the Right to Free Speech and Free Assembly. Case Law is a body of law determined by key decisions made by senior judges. Judges, when they make a decision, set a precedent, i.e. if the same circumstances arise in the future, then a judge must act in the same way as that judge did in the past.

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g) The Law and Customs of Parliament

These relate to the procedures of the House, and the privileges of its members. These rules are set out in a book, sometimes consulted by the Speaker: Erskin May’s “Treatise on the Law, Privileges, Proceedings and Usages of Parliament”.

h) European Law

When the UK joined the EU in 1973, it agreed to be bound by legal decisions made by the European Court of Justice. The EU makes law for the whole of the Union. These regulations and directives cannot be challenged by British law. If ever there is a conflict between British and European law, then the government must change our law, eg. in the Factortame Case of 1990 the government was instructed to change its own law by the ECJ.

v) Concern Over the British Constitution:

The British Constitution is uncodified and extremely flexible – a simple majority in the Commons can change a constitutional law. There are people that believe that the constitution has significant weaknesses:

a) Flexibility

In the past, our flexible constitution has been seen as an asset, i.e. it changes with the time. However, pressure has been placed on our constitution in the last 40 years, because of a relatively weak economy and the troubles in Northern Ireland.

b) The European Convention on Human Rights

The UK, before 1998, was subject to criticism by the Court of Human Rights. At that time, we did not have to change our laws if the Court found us in breach of European rights. It seemed strange that we could be criticised by the Court but not need to change our laws.

c) The European Union

Since 1973, EU law is more powerful than the British law. It has, to some extent, undermined the doctrine of the sovereignty of Parliament.

d) Elective Dictatorships

Some people argue that governments have become increasingly powerful and undemocratic, eg. Thatcher and Blair ignored the views of their Cabinet and, with their large majorities, were able to push through controversial legislation. At the same time, powers of local government were being reduced and there was a growth in QUANGOs, i.e. bodies which can be controlled by the PM.

In general, those left of centred wanted change, particularly Liberals and New Labour. Conservatives, in the main, felt there was little need for change.

vi) Constitutional Change Since 1997:

The Blair government made 3 important constitutional changes:

1. The creation of a Supreme Court to replace the Law Lords and the Lord Chancellor

2. Most of the hereditary Peers have been removed from the Lords and replaced with life Peers

3. The transfer of power from Westminster to Scotland and Wales

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There have been other constitutional changes:

1. The incorporation of human rights into British law, which means if the UK has ignored the rights of its citizens it can be forced to change its own law, eg. the anti-terror laws.

2. The creation of an elected London mayor

3. The use of proportional representation for elections to the Scottish Parliament, Welsh Assembly and European Parliament. Brown is considering introducing a form of PR to our own general elections.

These changes made by Tony Blair have come about without much controversy. This is largely due to Labour’s big majority in the Commons. The Conservative Party, who were against devolution, are not likely to dissolve these devolved bodies. Cameron is unhappy about the European Court of Human Rights and is considering replacing it with a British Court of Human Rights.

vii) Do We Need A Written Constitution?:

There is concern that the Executive is far too strong and consequently we need stronger constitutional laws to constrain the actions of government.

a) Arguments For a Codified Constitution

1. The British Constitution has evolved over centuries and consequently its rules are found in a diverse range of sources, eg. conventions and Acts of Parliament. It is therefore difficult to see our constitutional laws. It would create certainty amongst the people if we had a codified statement of our constitutional laws.

2. The UK’s unwritten constitution does create uncertainty over the role of the Monarch in the event of a hung parliament. It is therefore desirable to have clear constitutional rules, which set out the procedure in the event of a hung parliament.

3. The UK has had a problem of a too-strong Executive, eg. Blair and Thatcher. This has resulted in an elective dictatorship, whereby the government can push through controversial legislation (Thatcher’s Poll Tax). Tony Blair was able to remove one session of PM’s Question Time each week by a simple majority in the Commons. This reduced the degree of scrutiny, which is an important characteristic of our Parliament. John Major was able to adjust the right to silence by a simple Parliamentary majority.

4. A codified constitution would give us an up-to-date statement of our rights.

5. A codified set of constitutional rules can be given protection from a dominant government. In the USA, constitutional rules can only be changed when both houses pass the Bill with a 75% majority.

6. A codified constitution would have an educational value, because schools would be able to highlight the constitutional rules that affect the liberties of its citizens. The nation would rally round this set of values.

b) Arguments Against a Written Constitution

1. The constitution has worked reasonably well over the past 300 years and therefore there is no need for change. It has provided its citizens with personal freedom and stability.

2. There is currently no widespread demand for a codified constitution.

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3. The British constitution has a degree of flexibility, eg. as the power has been transferred from the Lords to the Commons, it is now a convention that the PM must come from the Commons. In addition, during WW2 the British government was able to suspend general elections until the war was won. In the USA, their written constitution forced them to hold Presidential elections during the war.

4. The protection of citizens’ rights in the UK has been reasonable, eg. the right to free speech. In countries with written constitutions, freedoms are not guaranteed, eg. in Zimbabwe there is a written constitution, but citizens have no personal freedom. In the USA during WW2, Japanese-Americans were imprisoned for the duration of the war; their written constitution did not defend them. In the same way, black Americans were denied the vote and discriminated against; their rights were ignored.

c) Conclusion

There is always concern that our powerful Executive can undermine our constitutional rights. However, we must remember that two important developments have taken place, which have reduced the power of the British government:

1. The Court of Human Rights –

Tony Blair incorporated the convention of European Human Rights into UK law. Since that date in 1999, a British Act of Parliament can be destroyed if it conflicts with human rights, eg. in 2005, Blair’s anti-terror laws had to be struck down.

2. The European Union –

European law (directives) can overrule Acts of Parliament. The European Court of Justice has the power to force the British government to change its laws.

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h) European Law

When the UK joined the EU in 1973, it agreed to be bound by legal decisions made by the European Court of Justice. The EU makes law for the whole of the Union. These regulations and directives cannot be challenged by British law. If ever there is a conflict between British and European law, then the government must change our law, eg. in the Factortame Case of 1990 the government was instructed to change its own law by the ECJ.

v) Concern Over the British Constitution:

The British Constitution is uncodified and extremely flexible – a simple majority in the Commons can change a constitutional law. There are people that believe that the constitution has significant weaknesses:

a) Flexibility

In the past, our flexible constitution has been seen as an asset, i.e. it changes with the time. However, pressure has been placed on our constitution in the last 40 years, because of a relatively weak economy and the troubles in Northern Ireland.

b) The European Convention on Human Rights

The UK, before 1998, was subject to criticism by the Court of Human Rights. At that time, we did not have to change our laws if the Court found us in breach of European rights. It seemed strange that we could be criticised by the Court but not need to change our laws.

c) The European Union

Since 1973, EU law is more powerful than the British law. It has, to some extent, undermined the doctrine of the sovereignty of Parliament.

d) Elective Dictatorships

Some people argue that governments have become increasingly powerful and undemocratic, eg. Thatcher and Blair ignored the views of their Cabinet and, with their large majorities, were able to push through controversial legislation. At the same time, powers of local government were being reduced and there was a growth in QUANGOs, i.e. bodies which can be controlled by the PM.

In general, those left of centred wanted change, particularly Liberals and New Labour. Conservatives, in the main, felt there was little need for change.

vi) Constitutional Change Since 1997:

The Blair government made 3 important constitutional changes:

1. The creation of a Supreme Court to replace the Law Lords and the Lord Chancellor

2. Most of the hereditary Peers have been removed from the Lords and replaced with life Peers

3. The transfer of power from Westminster to Scotland and Wales

There have been other constitutional changes:

1. The incorporation of human rights into British law, which means if the UK has ignored the rights of its citizens it can be forced to change its own law, eg. the anti-terror laws.

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2. The creation of an elected London mayor

3. The use of proportional representation for elections to the Scottish Parliament, Welsh Assembly and European Parliament. Brown is considering introducing a form of PR to our own general elections.

These changes made by Tony Blair have come about without much controversy. This is largely due to Labour’s big majority in the Commons. The Conservative Party, who were against devolution, are not likely to dissolve these devolved bodies. Cameron is unhappy about the European Court of Human Rights and is considering replacing it with a British Court of Human Rights.