by Peter Joyce
European law
There are two sources of European Law – primary and secondary legislation. Primary legislation embraces EU treaties, which once ratified take precedence over the national laws of member states. Secondary legislation takes the form of regulations, directives and treaties which are issued by the European Parliament acting jointly with the Council of Ministers, by the Council of Ministers or by the European Commission.
The UK’s membership of the European Community in 1973 involved the incorporation of the European Convention, the Treaties of Rome and 43 volumes of existing European legislation into UK law. These provisions and subsequent European legislation perform an important role in determining the operation of the UK’s system of government.
Common law
This is otherwise known as judge-made law or case law. Common law derives from decisions made by judges when trying specific cases, in which they became a source of the law through the doctrine of judicial precedent, whereby the future decisions of sentencers when trying a similar case should result in the same outcome. Many of the liberties of the subject (such as the freedoms of assembly, speech, movement and privacy) are rooted in common law.
Conventions
Many matters concerning the operations of government are governed by practices which have become the accepted way of behaving. One example of this concerns ministerial responsibility, which governs the relationship between the executive and legislative branches of government. One advantage of a convention is that it can be disregarded if circumstances justify this course of action. Harold Wilson’s suspension of the principle of collective ministerial responsibility during the referendum campaign on Britain’s continued membership of the European Economic Community in 1975 was an example of political expediency overriding normal constitutional practice. This enabled the Labour government to avoid having to take a decision which would have had damaging repercussions for the unity of the Labour Party.
Question
What are the main differences between codified and uncodified constitutions?
Constitutional reform in the United Kingdom
With the exception of European legislation and the Human Rights Act, there is no constitutional enactment superior to ordinary statute law. Other sources of the constitution are ultimately subordinate to this. Accordingly, the constitution is whatever parliament decrees it to be. This has significant implications for the conduct of government. The actions taken by parliament (and the government which exercises control over it) is limited only by adherence to popular conceptions as to what is correct behaviour. The restraints which Britain’s constitution imposes on the workings of government are thus spiritual rather than legalistic.
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Ministerial responsibility in the UK
There are two types of ministerial responsibility. Individual ministerial responsibility concerns the relationship between ministers and the departments they control. As the political head of a department, ministers are expected to be accountable for all actions which it undertakes. If a serious error is committed by that department, the minister may be subject to the parliamentary sanction of having his or her salary reduced, which would result in resignation. Alternatively, if the error is of the nature that causes the government serious political embarrassment, the minister may be put under pressure by the prime minister to resign.
In extreme circumstances the prime minister may dismiss the minister. In 2006, revelations that the Home Office had permitted over 1,000 foreign prisoners to stay in Britain once they had completed their sentences rather than being considered for deportation to their own countries resulted in the dismissal of the home secretary. The convention of individual responsibility does not apply to ministers who resign (or who are forced to resign) as the result of some form of personal indiscretion. It is solely concerned with the formal role which they occupy within a department.
Collective ministerial responsibility embraces the relationship of the entire executive branch to the legislature. It is assumed that major issues of policy, even if associated with one specific department, have been discussed at cabinet level and thus constitute overall government policy. There are two consequences of this. First, ministers are collectively accountable to the House of Commons for all items of government policy. Theirs is a ‘one out, all out’ relationship. A vote of ‘no confidence’ in the government requires the resignation of all of its members. Second, while a minister has the right to voice opinions on an issue discussed within the cabinet, once a decision has been reached it is binding on all its participants. A minister who is not in agreement with what has been decided should either resign or ‘toe the line’ and be prepared publicly to defend the outcome that has been reached.
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THE CONSTITUTIONAL REFORMS OF POST-1997 LABOUR GOVERNMENTS
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Insight
Since 1997 a number of key changes have been introduced into the operation of government in the UK. These include devolution, the 1998 Human Rights Act and reform of the composition of the House of Lords.
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The Labour government which was elected in 1997 enacted a number of measures designed to secure constitutional reform. The main changes are discussed below.
Devolution
Devolution measures designed to bring government and the people closer together were contained in three measures enacted in 1998 dealing with Scotland, Wales and Northern Ireland.
The 1998 Scotland Act provided for the creation of a Scottish parliament of 129 members serving a fixed term of four years. This body appointed a first minister who in turn chose other ministers who were responsible to the first minister. This body was initially termed the ‘Scottish Executive’ but assumed the title of ‘Scottish Government’ in 2007.
The Scottish parliament was able to make laws on all domestic matters including health, education and training, law and home affairs, economic development and transport, local government, environment, agriculture, fisheries and forestry, and sports and the arts. It was financed by the Scottish block grant (or the ‘assigned budget’, which in 2009 was around £35 billion) and can be supplemented by the ‘tartan tax’. This permits the Scottish parliament to vary the standard rate of income tax by up to three pence in the pound, thus creating the possibility of supplementing its budget from self-generated revenue imposed on those who live in Scotland for more than half of the year. However, this power has not so far been used. A wide range of matters (including the UK constitution, foreign affairs, fiscal, economic and monetary policy, defence and national security, medical ethics, social security and employment) were reserved to the Westminster parliament. Additionally, the Scottish secretary was empowered to overrule the Scottish parliament and halt legislation believed to be inappropriate and to ensure that the UK’s international treaties were implemented in Scotland. The Scotland Act repealed the requirement (provided for in 1986 legislation) regarding the minimum number of Scottish MPs at Westminster.
The 1998 Government of Wales Act provided for an assembly of 60 persons. The body chooses a first secretary (Prif Ysgrifennydd y Cynulliad) who selects other assembly secretaries. The 2006 Government of Wales Act subsequently separated the Assembly from the Welsh Assembly Government. Powers administered by the Welsh Office were transferred to this new body, thereby subjecting them to accountability, and additional administrative functions were transferred in 2010 by Legislative Competence Orders made by the Queen in Privy Council. The assembly possesses no law-making or independent tax-raising powers and remained totally reliant on a block grant (which in 2010 totalled around £15 billion). This system thus primarily provided for a system which democratized existing administrative arrangements as opposed to devolution.
The 1998 Northern Ireland Act provided for an assembly of 108 members. The executive was composed of 12 ministers. The first minister and deputy minister were elected by the assembly and the ministers were chosen by a formula designed to ensure that the assembly’s
executive committee reflected the strength of the parties in the assembly. However, the problems in securing the co-operation of Loyalists and Republicans led to the assembly being periodically prorogued, which resulted in the continuance of direct rule from the Westminster parliament. The 2006 Northern Ireland Act introduced reforms to the Northern Ireland Assembly (including the creation of a fixed-term assembly) which helped to create a more durable governmental structure.
The electoral arrangements for these devolved structures of government also reflected the desire to bring government and the people closer together. The Northern Irish Assembly was elected on the basis of the single transferable vote. In Scotland and Wales the electoral system was a mixture of the first-past-the-post system topped by additional members elected by the regional party list system.
The Labour government also enacted the 1999 Greater London Act. This provided for a new strategic city-wide government for London consisting of an elected assembly of 25 members (14 of whom are elected by first-past-the-post and 11 are ‘top-up’ members chosen from party lists drawn up by the political parties) and a mayor who is directly elected by the supplementary vote system.
The 1998 Human Rights Act
The Labour government introduced legislation in 1998 which placed the European Convention for the Protection of Human Rights and Fundamental Freedoms (which was initially drawn up in 1950) into UK law. These rights are:
the right to life (Article 2)
the prohibition of torture (Article 3)
the prohibition of slavery and forced labour (Article 4)
the right to life and security (Article 5)
the right to a fair trial (Article 6)
the right not to be punished save in accordance with the law (Article 7)
the right to respect for private and family life (Article 8)
freedom of thought, conscience and religion (Article 9)
freedom of expression (Article 10)
freedom of assembly and association (Article 11)
the right to marry (Article 12)
the prohibition of discrimination (Article 14)
the protection of property (Article 1 of Protocol 1)
the right to education (Article 2 of Protocol 1)
the right to free elections (Article 3 of Protocol 1)
These rights are not, however, of equal standing. Article 3 is absolute and can never be contravened. Articles 2, 4, 5, 6 and 7 are fundamental but may be restricted for specific reasons identified in the Convention. Articles 8, 9, 10 and 11 are qualified rights that may be limited in connection with certain circumstances or conditions laid down in the Convention. The procedure of opting out of the Convention of Human Rights is known as ‘derogation’.
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Human rights
Human rights consist of the basic entitlements that should be available to all human beings living in any society. Unlike civil rights (which are specific to individual countries) human rights are universal in application.
Human rights developed from the tradition of natural rights which sought to establish boundaries to protect an individual being interfered with by other citizens or by the government, and were thus intimately associated with the objective of liberalism that government should be limited in its actions, which was an important aspect of liberal thought. These rights were thus essentially negative, seeking to impose restraints on actions that others might wish to undertake. The English political philosopher, John Locke, suggested that human rights embraced ‘life, liberty and property’ while the American statesman Thomas Jefferson indicated that they included ‘life, liberty and the pursuit of happiness’. These were rights to which all persons were entitled simply as a consequence of being a human being and which no government could take away since to do so would constitute a denial of their humanity.
The European Convention on Human Rights was incorporated into the 1998 Human Rights Act. Under this legislation, contravention of these rights would constitute an offence: the High Court would be empowered to grant damages to plaintiffs whose complaints were upheld. The new law made it illegal for public authorities (including the government, courts and private bodies discharging public functions) to act in contravention of these designated human rights and required public authorities to act positively to defend the rights included in the legislation. The role played by the judiciary in adjudicating human rights matters considerably added to its powers.
In some countries (such as Canada) human rights legislation empowers judges to strike down any legislation which conflicts with such basic principles. This is not the case in the United Kingdom (save in the case of legislation passed by the Scottish and Welsh parliaments). Under human rights legislation, judges are empowered to declare a law passed by parliament to be ‘incompatible with the Convention’, thus upholding the concept of the sovereignty of parliament. Although it was assumed that declarations of this nature by the courts would induce the government and parliament to introduce corrective measures speedily to bring such complained-of legislation into line with the Convention on Human Rights, there was nothing to prevent either of these bodies from ignoring such rulings. This might induce an aggrieved person to refer the matter to Strasbourg, thus suggesting that the Act has failed substantially to improve the present situation regarding the defence of human rights.
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REFORM OF THE HOUSE OF LORDS
The major problem with the House of Lords (which is often referred to as the ‘Upper Chamber’) was that the majority of its members inherited their right to sit in the upper chamber of parliament. Although the power wielded by this hereditary element was to some extent diluted after 1958 by the presence of life peers (that is, persons nominated to sit in the House of Lords by the prime minister), no members of the House of Lords were elected by the general public. A further problem was that the vast majority of hereditary peers supported the Conservative Party, thus giving the House of Lords an inbuilt Conservative majority.
The Labour government proceeded cautiously with reforming the House of Lords. The 1999 House of Lords Act removed almost all of the hereditary peers (only 92 out of 750 remained) and in the same year a Royal Commission chaired by Lord Wakeham was set up to consider the future role, functions and composition of this body. Its report in 2000 (A House for the Future) proposed that the House of Lords should be a revising and advisory body whose role was to complement, but not undermine, the House of Commons. It also proposed that most appointments should be made by an Appointments Commission.
Following this report, an Independent House of Lords Appointments Commission was established in 2000 to take over the nomination of all members to the House of Lords other than those who were nominated by the political parties, and to scrutinize the suitability of all nominations including those made by the political parties.
In 2002 a Joint Committee (composed of members of the House of Commons and House of Lords) on the House of Lords reform was set up, whose first report in that year considered a number of options related to that body’s composition. The 2010 Constitutional Reform and Governance Act proposed to complete the process of removing the hereditary principle from the House of Lords.
Question
Select any one issue discussed in the section dealing with post-1997 Labour government constitutional reforms.
Discuss the significance of the changes that have been introduced in this period.
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THINGS TO REMEMBER
Government comprises three parts or ‘branches’ – the executive, the legislature and the judiciary.
Constitutions establish a framework for the operations of a country’s system of government.
Constitutions may be codified (‘written’) or uncodified (‘unwritten’).
Codified constitutions enjoy a superior status to that of ordinary legislation and actions undertaken by the executive and legislative branches of government (and also subordinate units of government such as local authorities) must conform t
o the constitution or be set aside by the judiciary through the process of judicial review.
The USA has a codified constitution which establishes the main principles underpinning the operations of the American system of government.
The American Constitution has been able to survive the passage of time through the processes of amendment and judicial review, which have enabled this historic document to be kept up to date.
The UK has an uncodified constitution. The operations of government are regulated by a range of sources including the law passed by parliament, European law and case law.
Constitutional reform has featured prominently in the legislative agendas of post-1997 Labour governments. Key reforms have included devolution, human rights and the reform of the House of Lords.
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9
The executive branch of government
In this chapter you will learn:
the functions of the executive branch of government
the role of chief executives
the features of presidential and cabinet government.
The role of the executive branch
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Insight
The executive branch of government consists of politicians and permanent officials who are responsible for implementing decisions relating to the conduct of a nation’s internal and external political affairs.
