Features - UK Constitutional ReformBy Lesley Dingle and Bradley Miller, Published on June 21, 2004
Lesley Dingle is the International & Foreign Law Librarian at the Squire Law Library, University of Cambridge where she teaches legal research
courses in the Law Faculty. She received her BA, LLB from the University of Cape Town and has postgraduate qualifications in library science and teaching. Lesley has previously held positions in the law libraries of Nottingham and City University of London. Bradley Miller is a reference librarian at the Squire Law Library. He holds a BA in English and History from the University of Toronto and was formerly Departmental Historian at the Department of Justice, Canada.
- Present Constitution: Status Quo
- Background to post-1997 proposals for constitutional change
- Changes influenced by domestic policy post-1997
- Changes influenced by European Legislation
- Constitutions in other jurisdictions with a Common Law tradition: Sources of Information
- Ancillary Information and useful websites
- Explanatory Notes
The United Kingdom of Great Britain and Northern Ireland consists of four countries: England, Northern Ireland, Scotland and Wales.1 Legislative competence for the UK resides in the Westminster Parliament, but there are three legal systems (England and Wales, Northern Ireland, and Scotland) with separate courts and legal professions. These legal systems have a unified final court of appeal in the House of Lords.2 The Isle of Man, and the two Channel Islands (Guernsey and Jersey) are not part of the UK,3 being possessions of the Crown and having their own legal systems.4 They are represented by the UK government for the purposes of international relations, but are not formal members of the European Union.5
The United Kingdom is a constitutional monarchy with a bicameral parliament composed of the Houses of Commons and Lords. Formally, executive power is vested in the Crown in the person of the Sovereign, but in reality, central government is carried out in the name of the Crown by ministers of state.6 The powers of the Sovereign and the Crown derive either from Acts of Parliament or are prerogative (recognised in common law). There is no formal separation of the powers of the legislature and executive and while legislative authority is vested in the Sovereign in Parliament, ministers responsible for implementing new acts are also involved in the process of legislation. Similarly, in the House of Lords, the Lords who sit as judges in the Appellate Committee can also take part in the legislative business of the upper house.7
It is often suggested informally, that the United Kingdom does not have a written constitution. This is not strictly true, but what it does not have is a single document setting out the legal framework and functions of the organs of government and the rules by which it should operate. Such documents are a declaration of a country’s supreme law and have overriding legal force to empower a constitutional court to declare acts of the legislature illegal if they conflict with the rights embodied in such a formal constitution. In this, the UK currently differs from most other countries, for instance, the United States, Ireland, Germany, France and South Africa etc.
The constitution of the United Kingdom, in contrast, is a “whole system of government...(with a)...collection of rules which establish and regulate or govern the government”.8 The system is based on a combination of “Acts of Parliament and judicial decisions...political practice…and detailed procedures established by various organs of government for carrying out their own tasks”.9 Examples of the latter are “the law and custom of Parliament” and the “rules issued by the Prime Minister to regulate the conduct of ministers”.10 In effect, Parliament has the right to modify the constitution of the United Kingdom on the basis of simple majorities in the two Houses of Parliament.11
The constitutional status quo in the UK has resulted in a very flexible system, in which governance depends on political and democratic principles rather than a rigid system that relies on legal rules and safeguards.12 This can be construed as both a strength and a weakness, but for reform it has several important consequences. For example, there are no special procedures for proceeding with new constitutional arrangements, and all such acts must pass through the Westminster Parliament in the normal legislative manner. In addition, no truly federal arrangement can be established within the United Kingdom while the Westminster Parliament remains supreme: it currently retains the right to revoke power recently devolved to Northern Ireland, Scotland and Wales.
There are numerous items of legislation from mediaeval to modern times that have affected the constitution13, and a few can be singled out as particularly significant. - Magna Carta. Granted by John in 1215, with the current version approved by the English Parliament granted by Edward I (1297). It established that punishment should be by judgment of one’s peers or the law of the land, and that justice cannot be denied to an individual.
Petition of Rights. Enacted by the English Parliament in 1628. It outlawed without Parliament’s consent taxation, arbitrary imprisonment, use of martial law in peacetime and billeting soldiers on private persons14.
Habeas Corpus Act 1679. Habeas corpus is a remedy against unlawful detention, and this Act placed heavy penalties on the evasion of the writ by transfer of persons outside the jurisdiction of English courts.
Bill of Rights and Claim of Rights. Enacted by the English and Scottish parliaments in 1689 at the time of the restoration of the monarchy. Laid the foundations for the modern constitution in a series of articles. Many of its provisions are still in force.
Act of Settlement 1700. Dealt with succession to the throne and complemented the provisions in the Bill of Rights. Inter alia, it established that judges should not hold office at the pleasure of the Crown.
Treaty of Union 1707. Act formalising the union of England and Wales with Scotland.
Union with Ireland Act 1800. Act formalising the union of England and Wales and Scotland with Ireland.
Reform Act 1832. Enacted large-scale changes to the franchise, resulting in a more equitable distribution of seats, and a shift of political power away from the landowning classes. This Act disposed of the infamous “Rotten Boroughs”.
Parliament Act 1911 and 1949. Acts including fixing the duration of Parliament, and defining the relations between the houses of Lords and Commons.
Crown Proceedings Act 1947. Government departments and ministers became liable to be sued for wrongful acts, establishing a doctrine of government according to law. The Sovereign has personal immunity.
European Communities Act 1972. (http://www.legislation.hmso.gov.uk/acts/acts1972/19720068.htm) Gave effect within the UK to those provisions within EC law which according to various treaties have direct effect within member states. This is held to mean by the ECJ that Community law prevails over any inconsistent provisions of the national law of member states15. In effect, if Parliament legislates in breach of Community law, the courts within the UK must not apply the conflicting domestic law.
British Nationality Act 1981. Defined nine categories of citizenship and five ways of acquiring British citizenship.
Public Order Act 1986. Introduced statutory powers allowing the police to severely limit public processions and assemblies.
Also, since 1973 when the then Labour government held a referendum on confirming membership of the European Economic Community, a practice has developed of holding referenda on important constitutional matters.
Judicial decisions also provide rules of law which can have constitutional significance, and the doctrine of precedent dictates that such decisions are binding on lower courts. This is judge-made law can emanate from two sources: common law and interpretation of statutes.
Common law decisions have been authoritative in a variety of areas, such as prerogatives of the Crown, remedies against illegal acts of officials and public authorities, the writ of habeas corpus, and the obligation to give a hearing. Such decisions can be overturned by Parliament, however, and even House of Lords’ decisions are vulnerable to the European Court of Justice (ECJ) on matters of EU law, and the European Court of Human Rights (ECHR) in relation to the European Convention on Human Rights.
While the courts cannot rule on the legality of Acts of Parliament, they can interpret statutes where the meaning is disputed, and they are to divine objectively the intention of Parliament. It is presumed that the legislature will not intentionally remove common law rights by implication, so that fundamental rights cannot be overridden except by express wording16. However, since joining the European Union, British courts must follow the ECJ’s lead in interpreting legislation flowing from EC directives. Consequently, if any statute enacted by Parliament after 1st January 1973 is in question, the courts are obliged to interpret it so as to reconcile it with any relevant EU law in force in the UK.
In this guide, we shall outline steps that have been implemented in recent years to reform the constitutional system of the UK, but it must be remembered that this has been a subject for debate for over a century and that several important alterations have already been undertaken. These have been mainly in the matters relating to makeup and powers of the House of Lords. Some of these can be briefly mentioned.
A fundamental change was introduced in the Parliament Acts of 1911 and 1949, where the formal powers of the Lords in legislative matters was restricted to being able to impose a temporary veto on public Bills. This effectively moved the centre of gravity of power in Parliament to the House of Commons, and allowed the governing party ultimately to impose its will in Parliament. This limited the role of the upper chamber to revising (through imposition of amendments) and to delaying legislation17.
Important changes have also been affected to the membership of the House of Lords. Historically, this had been restricted to hereditary peers and 26 bishops and archbishops of the Church of England18, but was modified by the Appellate Jurisdiction Act 1876, which allowed for the appointment of Lords of Appeal in Ordinary to sit in the upper House (the so-called Law Lords, whose titles are not hereditary19), while the Life Peerages Act 1958, allowed for the appointment of peers to sit in the Lords for the duration of their lives (these titles are also not hereditary)20. The latter weakened the hereditary principle and at a stroke, strengthened the power of the government of the day to increase its power in the upper chamber. A further change was made in the Peerage Act 1963 to allow a hereditary peer to disclaim the title for life so that the holder could sit in the House of Commons21.
The life of a Parliament has been frequently altered by statute and the present life of a maximum of five years was set only in 1911 by the Parliament Act22.
Background to post-1997 proposals for constitutional change
Although the Labour party has long had a predisposition towards constitutional reform (both the Crown Proceedings Act 1947 and Parliament Act 1949 were products of this policy), the current major constitutional changes and proposals have their seeds in 198923 and 199324 party policy documents. Immediately on assuming office in 1997, the New Labour government established various review committees and initiated proposals covering a wide range of constitutional matters, in addition to reconsidering policies formulated for the election campaign. These included25: electoral reform and, in particular, the voting system for Westminster elections (Jenkins Commission 1998) http://www.archive.official-documents.co.uk/document/cm40/4090/4090.htm,
funding of political parties (Neill Committee 1998) http://www.public-standards.gov.uk/reports/5th_report/report5.htm,
electoral law and administration (Howarth Committee 1998)26 http://www.odpm.gov.uk/stellent/groups/odpm_localgov/documents/page/odpm_locgov_605342.hcsp,
modernisation of the House of Commons (Select Committee 1997-98) http://www.parliament.uk/commons/selcom/modhome.htm,
reform of the House of Lords (Joint Committee 2001) http://www.parliament.uk/parliamentary_committees/joint_committee_on_house_of_lords_reform/joint_committee_on_house_of_lords_reform_reports_and_publications.cfm,
introduction of a Bill of Rights (Consultation Paper 199628 ), introduction of a Freedom of Information Act (Joint Consultative Committee 199727), consideration of English regional government (Labour Party Policy Paper 1996), creation of a Ministry of Justice (Labour Party Policy Document 1995), and devolution to Scotland and Wales (White Papers 199729). Plans were also announced for a revitalisation of the government’s policy making capacity and capabilities (White Paper 1999) http://tinyurl.com/2m6dc.
Many of these “bold and ambitious"30 initiatives resulted in a surge of important constitutional legislation early in Labour’s first parliamentary session including:
Scotland Act 1998
Government of Wales Act 1998
Northern Ireland Act 1998
Human Rights Act 1998
Regional Development Agencies Act 1998
European Parliamentary Election Act 1999
Bank of England Act 1998
Registration of Political Parties Act 1998
Greater London Authority Referendum Act 1998
a White Paper 1997 on freedom of information, and reform of local government (White Paper 1999).
This activity was overseen by the Constitutional Reform Policy Committee of the Cabinet, under the chairmanship of the Prime Minister (more recently the Lord Chancellor), and gave the impression that a systematic policy of reform was underway, that has been described as “a new constitutional settlement” and “the most ambitious and far reaching changes in the British constitution undertaken …this century”31. Some academic commentators, however, have viewed it as lacking a master plan, with administrators merely adopting responses to political pressures on an ad hoc and incremental basis. The result has been a policy that is both incoherent and incomplete32, but nevertheless has been undertaken in “the evolutionary and pragmatic tradition of the British constitution...” 33.
A summary of the methods used in the implementation of the constitutional changes made by the government since 1997 is given by the House of Lords Select Committee (2001-02) http://tinyurl.com/2zzyg.
Changes influenced by domestic policy post-1997
“[W]e have embarked on a major programme of constitutional change realigning the most fundamental relationships between the state and the individual in ways that command the consent of the people affected.” This was the concluding remark in the Lord Chancellor’s statement of government policy, at the end of 1998 and set the tone for New Labour’s programme of constitutional reform. Since 1997 a good summary of the course of these events, including legislation, White Papers, and important political announcements and speeches, have been posted on the website of the Lord Chancellor’s Office, renamed in 2003 The Department for Constitutional Affairs.
Here we summarise various changes that have been made and /or proposed to specific institutions and procedures as a result of domestically driven policy. An up-to-date review of the major changes wrought so far is given by Bogdanor (2004), who lists fifteen major legislative events, any one of which he claims would have constituted a “radical change”.
Reform to the House of Commons
None of the major constitutional reforms have affected directly the House of Commons but there have been numerous attempts to “modernise” it. These have been made under the auspices of the Modernization Committee. Five main areas have been targeted34.
(i) Removal of some archaic practices and out of date rules (Select Committee 1997-9835). http://tinyurl.com/23aeq
(ii) Creating easier public access to Parliament http://www.parliament.uk/index.cfm, and creating a Commons website for Parliamentary committees. http://www.parliament.uk/parliamentary_committees/parliamentary_committees16.cfm.
(iii) Reorganisation of working hours.
(iv) Easing legislative programmes by allowing carry-over of bills.
(v) Improvement of parliamentary scrutiny of legislation.
Items (i)-(iv) have been addressed successfully, but little or no progress has been made in the last category.
The reform process is ongoing.
Reform to the House of Lords. (See a summary)
Radical reform to the upper House has long been mooted, and early in the last century, the Parliament Act 1911, in which the right of the House of Lords to effectively veto bills from the House of Commons was removed, stated that it was Parliament’s intention to create an upper chamber not based on hereditary qualifications. Progress was very slow until 1997, but since then New Labour has made a sustained, if ineffectual, effort to bring about meaningful change.
Further useful information can be found under the House of Lords Constitution Committee. This Committee enquires into “wider constitutional issues” and scrutinises public bills for matters of constitutional significance. It has produced two reports summarising progress, First Report 2001, and Fourth Report 2002.
The first step in this process was a White Paper 1999 (Cm 4183), and a series of Research Papers36. These culminated in the House of Lords Bill 34 1998 - 99 (discussed in Rp 99/7 http://www.parliament.uk/commons/lib/research/rp99/rp99-007.pdf and Charter 88 http://www.charter88.org.uk/pubs/brief/9901lords.html) and the passing of the House of Lords Act 1999, http://www.hmso.gov.uk/acts/acts1999/19990034.htm.
Although the original intention of the government in the Bill had been to remove all hereditary peers, a compromise had to be reached between the Labour and Conservative parties allowing a proportion of the peers, along with the deputy speakers, the Earl Marshal and the Lord Great Chamberlain to remain. The rationale for this was that the government had at that stage no firm policy for determining the composition of the chamber after the passage of the Bill. As a result, the House of Lords Act 1999 leaves the number and composition of members currently as follows37: 575 life peers, 26 bishops, 28 law lords (active and retired), and 92 hereditaries (total: 721). The Act removed 600 hereditary peers from the House of Lords.
Following passage of the House of Lords Act 1999, the government had to consider how best to reconstitute the future upper chamber, now shorn of all but 92 of the original hereditary peers, and it established a Royal Commission 200, http://www.archive.official-documents.co.uk/document/cm45/4534/4534.htm, under the chairmanship of Lord Wakeham (Cm 4534). (See summaries: Charter 88, http://www.charter88.org.uk/pubs/brief/0001wakeham.html, UCL http://www.ucl.ac.uk/constitution-unit/files/preleases/roycompr.htm. Research Paper 2000, http://www.parliament.uk/commons/lib/research/rp2000/rp00-060.pdf, summarised the ideas put forward by the Royal Commission, and was followed by a White Paper 2001 http://www.dca.gov.uk/constitution/holref/holreform.htm (Cm 5291) setting out the government’s proposals for the next phase House of Lords reform (summarised in a further Research Paper 2002, http://www.parliament.uk/commons/lib/research/rp2002/rp02-002.pdf38). The 2001White Paper (Cm 5291) had accepted many of the recommendations contained in Lord Wakeham’s report, but rejected others. If eventually adopted, the government’s proposals would see the removal of the remaining 92 heriditary peers, and would result in a newly-constituted upper House comprising 120 independent members appointed by the Appoinments Commission, http://www.parliament.uk/commons/lib/research/notes/snpc-02855.pdf, 120 directly elected members, 16 bishops, at least 12 law lords, and no more than 332 nominated political members for which the party bias was to be determined by the Appointments Commission. The Appointments Commission had been proposed in the 1999 White Paper39, and was established in 2000.
A Joint Committee on House of Lords Reform, http://www.parliament.uk/parliamentary_committees/joint_committee_on_house_of_lords_reform.cfm, was set up in 2002 to consider the “… composition and powers of the second chamber and its role and authority…”. It published its second report in 2003 and the government’s response was published in a Special Report 2003, http://www.parliament.the-stationery-office.co.uk/pa/jt200203/jtselect/jtholref/155/155.pdf. The matter was referred to the Constitutional Affairs Committee, http://www.parliament.uk/parliamentary_committees/conaffcom.cfm, which reported in June 2003 (see Government's response http://www.dca.gov.uk/pubs/reports/jascresp.htm), and resulted in the Constitutional Reform Bill (HL) http://www.publications.parliament.uk/pa/ld200304/ldbills/030/2004030.pdf, which was published in February 2004. A House of Lords Select Committee on the Constitutional Reform Bill, http://www.parliament.uk/parliamentary_committees/reformbill.cfm, was established in March 2004 after the Bill’s second reading to consider issues raised by it and is due to report in June 2004. In its current form the Bill contains proposals for the abolition of the office of Lord Chancellor, the Creation of a Supreme Court, and reform of the judicial appointments process.
Pressure has been building for a clear cut separation of powers between the judiciary on the one hand and the legislature and executive on the other. It comes from two sources: domestic politics and European Human Rights law. Because judges are appointed by the Lord Chancellor (who is a member of the Cabinet and effectively the Minister of Justice40) they cannot be politically independent. Similarly, because the Lord Chancellor and Lords of Appeal in Ordinary (who constitute the Appellate Committee of the House of Lords – the law lords) also sit in the House of Lords, which is part of the legislature, their decisions cannot be seen to be politically impartial. Based on the same logic, recent rulings in the European Court of Human Rights41 imply that decisions of the Appellate Committee of the House of Lords are incompatible with Article 6 of the European Convention on Human Rights, http://www.hri.org/docs/ECHR50.html (access to an independent and impartial tribunal). The latter topic will be reviewed in the section dealing with European legislation.
Devolution has further heightened the issue of separation of powers, with cases relating to devolution legislation being referred to the Judicial Committee of the Privy Council, where the Lords of Appeal in Ordinary also sit.
Following the report of the Constitutional Affairs Committee the Government announced (on June 12th 2003) its next steps in the radical reform of the House of Lords, and other matters relating to the judiciary. These included: abolishment of the office of Lord Chancellor, the creation of a new, independent Supreme Court, and the creation of a new Judicial Appointments Commission. The last-named would be responsible for selecting candidates for appointment as judges. A detailed summary of the proposals are: “…to bring more transparency to our constitution: to create a system to ensure the judiciary remain unequivocally independent from political influence - where they are visibly separate from Parliament and Government - but where there is, at the same time, a robust and sustainable working relationship between the judiciary and the executive.” Apropos the post of Lord Chancellor, provision 53 stated “The office of Lord Chancellor will be not be abolished until all the relevant provisions of the Constitutional Reform Bill have been brought into effect and cannot be abolished until alternative arrangements for carrying out his functions are in place” (for details see DCA). With this announcement the Lord Chancellor also became the Secretary for State for Constitutional Affairs (and the Lord Chancellor’s Department became the Department for Constitutional Affairs: the incumbent Lord Chancellor, Lord Irvine, was replaced by Lord Falconer).
This announcement was followed by three Consultation Papers42 which set out in detail the proposals for (i) the creation of a Supreme Court http://www.dca.gov.uk/consult/supremecourt/index.htm (including the fate of the Appellate Committee of the House of Lords (i.e., the Law Lords) http://www.parliament.uk/documents/upload/HLLAppellate.pdf, and the Judicial Committee of the Privy Council, http://www.privy-council.org.uk/output/page5.asp), (ii) Creation of the Judicial Appointments Commission, http://www.dca.gov.uk/consult/jacommission/index.htm (i.e., mechanism for appointment of judges), (iii) abolition of post of Lord Chancellor (see CP 13/03, http://www.dca.gov.uk/consult/lcoffice/index.htm).
Recently (Feb 2004), the Government introduced its Constitutional Reform Bill, http://www.parliament.uk/parliamentary_committees/reformbill.cfm, to the House of Lords, where it had its second reading in March. It contains, inter alia, proposals for the creation of a Supreme Court and the abolition of the post of Lord Chancellor. At this stage the upper chamber voted to establish the House of Lords Select Committee on the Constitutional Reform Bill to examine the Bill further. The Committee is empowered to cross-examine witnesses and pass amendments.
Publication of the Constitutional Reform Bill provoked comment from across the political and professional spectrum, including a widely reported speech by Lord Woolf, the Lord Chief Justice of England & Wales, http://www.dca.gov.uk/judicial/speeches/lcj030304.htm, during the Squire Centennial Lecture at Cambridge University in March 2004. There has also been criticism from within the Lords (for example by Lord Hope May 2004, http://tinyurl.com/3aucw)
The Select Committee is due to report in June 2004, and in the meantime it has received written evidence from the Secretary of State for Constitutional Affairs and Lord Chancellor. Press leaks suggest that the Supreme Court and the Judicial Appointments Commission will materialise, but that although the Lord Chancellor will give up the duties of Speaker of the House of Lords and head of the judiciary (i.e., will no longer be a judge), the post will not disappear and will become the title for the Secretary of State for Constitutional Affairs.
Of the four countries comprising the United Kingdom, only Northern Ireland experienced devolved government between 1800 (Union with Ireland Act) and 199743. Since 1998, however, each country has had its own arrangement, and although they wield authority delegated from the Parliament at Westminster, they all differ in form and power. Constitutionally, the result of this is that Members of the national Parliament have now lost, effectively, their right to play any part in legislation for the domestic affairs of Scotland and Northern Ireland, and their right to draw up secondary legislation for the domestic affairs of Wales. They retain these rights only for England, in addition to which, members sitting for constituencies in Scotland, Wales and Northern Ireland have been deprived of most of their constituency duties44. As summarised by Bogdanor (2004, p.257), the process of devolution followed by New Labour has transformed the Parliament in Westminster into a quasi-federal institution: a Parliament for England, a federal Parliament for Northern Ireland and Scotland, and a Parliament for primary legislation for Wales.
Early attempts at devolution begun with the Royal Commission on the Constitution 1973 (Cmnd 5460) under the chairmanship of Lord Kilbrandon45 which reported in 1973. Its recommendations were not unanimous46, but the then Labour government resolved to establish elected assemblies in Scotland and Wales, proposals for which were set out in a White Paper 197447. This resulted in legislation for devolution in 197848, but negative returns in referenda held in the two countries caused the Acts to be repealed.
New Labour committed itself to devolution prior to the 1997 election and upon assuming office introduced White Papers in 199749 setting out proposals for Scotland and Wales. These were submitted to referenda in the two countries following the Referendum (Scotland and Wales) Act 1997 http://www.hmso.gov.uk/acts/acts1997/1997061.htm, which resulted in positive returns in both countries50. Bills based on the 1997 White Papers were introduced in 1997, and these culminated in the Scotland Act 1998, http://www.hmso.gov.uk/acts/acts1998/19980046.htm, and Government of Wales Act 1998, http://www.hmso.gov.uk/acts/acts1998/19980038.htm. The Northern Ireland Act 1998, http://www.hmso.gov.uk/acts/acts1998/19980047.htm, also devolved power to an elected assembly in this country and brought Direct Rule from Westminster to an end. These pieces of legislation are backed up by various formal agreements between the UK government and the administrators of the devolved institutions that set out the principles by which they will conduct their business. Although these are not legally binding, they establish the spirit and letter to be observed by all parties51. The most important of these is Memorandum of Understanding, http://www.cabinet-office.gov.uk/cabsec/previous%20years/1999/memorandum/cm4444.pdf52, which established a Joint Ministerial Committee, http://www.dca.gov.uk/constitution/devolution/jmc.htm, that acts as a consultative forum for Ministers of the United Kingdom Government, Scottish and Northern Ireland Ministers, and Welsh Secretaries. There are also a series of Concordats between opposite government departments that, while not being legally binding, Turpin (2002, p. 265) suggests will be justiciable in proceedings for judicial review.
Issues relating to devolution of power to Scotland and Wales are to be resolved ultimately by the Judicial Committee of the Privy Council (s 4 and Sch 8).
None of these bodies can make legislation that is incompatible with EU law.
The Scotland Act 1998 devolves primary legislative powers but does not violate fundamentals of the Act of Union passed in 1706 by the English and 1707 by the Scottish Parliaments. It created a unicameral parliament with ministers and civil servants who are servants of the Crown. It currently has 129 members, some elected by proportional representation, for a four year term. Fifteen areas of legislation are not within the competency of the Scottish Parliament and are “Reserved Matters” for Westminster (Schedule 5 of Act)53. Notwithstanding the devolved powers, Westminster retains the power to legislate for Scotland (s 28(7)), and in law may override decisions taken in Edinburgh on devolved matters54.
Scottish devolution has created a new constitutional anomaly: 72 Scottish Members of Parliament currently still sit in the House of Commons and are able to vote on legislation that affects only England. This anomaly is referred to as the West Lothian Question.
The Government of Wales Act 1998 lead to the creation of the National Assembly for Wales. This is a unicameral body with 60 members who are elected for four years, partly by proportional representation. The body exercises its power on behalf of the Crown, but its legislative competence extends only to subordinate matters: it lacks a general power to make laws for Wales and exercises only a secondary role in legislation. Its function covers 18 fields which have been transferred to it from Westminster and which were formally handled by the Welsh Office (Schedule 2 of the Wales Act 1988)56. The Secretary for State for Wales represents the country’s interests at Cabinet level, while he/she is allowed to attend, but not vote in, Assembly proceedings.
Northern Ireland Assembly57
The Union with Ireland Act 1800 created the United Kingdom, which survived until legislation in 1922 (Irish Free State (Agreement) Act, Irish Free State Constitution Act, and Irish Free State (Consequential Provisions) Act) created the independent Irish Free State within the Commonwealth. Six counties remained within the United Kingdom by the Government of Ireland Act 1920 to create Northern Ireland. Subsequently, the Ireland Act 1949 and the Northern Ireland Act 1998 confirmed that the country will remain part of the United Kingdom until a majority of the population of Northern Ireland vote in a referendum to re-unite with Ireland.
Devolved government was transferred to Northern Ireland by the Government of Ireland Act 1920, which created a bicameral parliament that endured until 1972, when political violence forced Direct Rule to be imposed from Westminster. This persisted, except for short breaks (1974, 1982-86) until 1998 when the Northern Ireland Act 1998 gave legal effect to a 1985 Inter-governmental Agreement58 and the 1998 Anglo-Irish Belfast Agreement or Good Friday Agreement. In these agreements the UK government came to an understanding with the Irish government and republican para-military groups under the terms of the Northern Ireland (Entry to Negotiations etc) Act 1996 for various forms of “power sharing”. The latter process resulted in referenda being held simultaneously in Northern Ireland and the Irish Republic on the terms of the 1998 Belfast Agreement, which was accepted in both countries. The 1985 Inter-governmental Agreement was replaced by a new Agreement in 199959.
The Northern Ireland Act 1998 also authorised the establishment of the following bodies: North/South Ministerial Council, British-Irish Council, Human Rights Commission, and an Equality Commission.
The Northern Ireland Assembly has 108 members who are elected for four years by proportional representation. It has powers of primary legislation in matters not excepted or reserved from devolution by Westminster . Membership of the Assembly is strictly regulated into “Nationalist” and “Unionist” categories so as to enforce the Belfast Agreement and passing important decisions has to constitute “cross-community support”, which is achieved by a complicated formula (s.4(5)61.
Because of continued violation of the Belfast Agreement, the Assembly is currently suspended and Direct Rule again prevails.
Devolution to English Regions
Devolution has created asymmetry in the constitutional framework of the UK, with England, which has 84% of the population, having no formal representative body. The government responded to this situation by issuing a White Paper 200262, in which it proposed to hold referenda to gauge support for the creation of Regional Assemblies, http://www.odpm.gov.uk/stellent/groups/odpm_regions/documents/sectionhomepage/odpm_regions_page.hcsp, in each of eight “regions” created by the Regional Development Agencies Act 1998 http://www.hmso.gov.uk/acts/acts1998/19980045.htm63. Currently, these have only Regional Development Agencies, http://www.consumer.gov.uk/rda/info/64, which are non-departmental public bodies, whose rationale to promote sustainable development and regeneration was set out in a White Paper 199765.
Three regions have been selected so far to hold referenda on the possibility of devolution of some administrative powers to regional bodies: North-West, North-East and Yorkshire & Humberside, although dates for these have not been announced (see ODPM site).
The eight regions created in England do not include the metropolitan area of Greater London which has its own arrangements for devolved governance. The Government in Westminster initiated this devolutionary process by issuing a White Paper 199866, which proposed an elected Mayor, http://www.london.gov.uk/mayor/index_mayorspublications.jsp, and London Assembly, http://www.london.gov.uk/assembly/assembly_about.jsp. These were approved by a referendum of London’s citizens in 1998 authorised by the Greater London Authority (Referendum) Act 1998, http://www.hmso.gov.uk/acts/acts1998/1998003.htm, and put into effect via the Greater London Authority Act 1999, http://www.hmso.gov.uk/acts/acts1999/19990029.htm. This created a new form of city government in the UK, with the election in 2000 of a Mayor and 25 assembly members sitting for four years. Voting was by a form of proportional representation. The new body has powers to promote economic, social and environmental development, and has various subsidiary bodies under its jurisdiction: London Development Agency, http://www.lda.gov.uk/index.asp, Transport for London, http://www.transportforlondon.gov.uk/tfl/, Metropolitan Police Authority, http://www.mpa.gov.uk/default.htm, and the London Fire and Emergency Planning Authority http://www.london-fire.gov.uk/lfepa/lfepa.asp.
Ultimately, under the Local Government Act 2000, other metropolitan areas in England may be given the option to have elected mayors.
Other areas of reform
Monarchy and the royal prerogative
Central government is carried out in the name of the Crown, which is the governmental aspect of the monarch’s power. The Crown has a legal corporate personality (distinguishable from the monarch), and separate from the Ministers and civil servants who act in its name. This personality is rooted in common law. Many of the government’s powers are based on the royal prerogatives that also derive from common law, while some special prerogatives are reserved for the monarch67.
Theoretically the latter can be exercised by the monarch, but conventionally they are used on the advice of his/her Ministers. There are three constitutionally important powers in this category: (i) to dissolve Parliament and precipitate a general election, (ii) choosing the Prime Minister in the case of there being no clear-cut candidate, (iii) assenting to legislation (i.e., withholding assent creates a veto on government Bills: last used in 1707). Currently, reform of these personal prerogatives does not form part of government policy, but the possibility of introducing fixed term parliaments would nullify (i)68.
An extension of the royal prerogative to Parliament allows the government to undertake a wide variety of actions in the name of the Crown. In particular: areas of national security, granting of royal charters, public and political appointments, the honours system, and accountability of Ministers. Regulation of these powers is political rather than formal or statutory69, and reform has proceeded piecemeal through case law70, and amendments to the Ministerial Code.
It is important constitutionally that civil servants enjoy tenure of office irrespective of changes in the political complexion of the government in power. Currently, professional standards in the civil service are regulated by the Civil Service Management Code that requires of them honest and impartial advice. The Code is constantly updated, but for several years there have been moves to put the civil service on a statutory basis to ensure more effective parliamentary scrutiny.
The parliamentary Committee on Standards in Public Life made certain proposals in 2000 (Cm 4557 http://tinyurl.com/2komj) to which the government responded (Cm 4817 http://tinyurl.com/27hch), and following legislation drawn up by the Public Administration Select Committee, http://www.parliament.uk/parliamentary_committees/public_administration_select_committee.cfm, in 2004 (see full text of draft http://www.parliament.the-stationery-office.co.uk/pa/cm200304/cmselect/cmpubadm/128/128.pdf), a bill was introduced which has reached the House of Lords as the Civil Service (No 2) Bill, http://www.parliament.the-stationery-office.co.uk/pa/ld200304/ldbills/050/2004050.pdf (introduced in March 2004).
Proportional Representation (PR)
On election to office, New Labour appointed the Independent Commission on the Voting System, under the chairmanship of Lord Jenkins (1997). This reported in 1998, and recommended the introduction of proportional representation, but so far no proposals for a change in the voting system for the Westminster Parliament have been made71. However provisions were made in the Scotland Act 1998, Government of Wales Act 1998, Northern Ireland Act 1998, and the Greater London Authority Act 1999 for the introduction of various forms of proportional representation (PR) to be made for elections to the devolved parliaments and assemblies72.
The European Parliamentary Elections Act 1999 introduced a closed party list PR system for the 1999 election of MEPs to the European Parliament which sits in Strasbourg and Brussels. It is also proposed to use this system for the election of the 120 elected members to the reconstituted House of Lords (White Paper 2001, http://www.dca.gov.uk/constitution/holref/holreform.htm)73
There has been increasing use of referenda to advise governments on important issues in recent years74 (see SN/PC/2809 2004 http://www.parliament.uk/commons/lib/research/notes/snpc-02809.pdf), and in 1996 the Independent Commission on the Conduct of Referendums http://www.electoral-reform.org.uk/, proposed a Referendums Act. So far this has not been initiated, although future referenda have been promised on acceptance of the proposed EU Constitution and the UK’s entry into the Eurozone. There is statutory provision for referenda in the Government of Wales Act 1998 and for polls or referenda for specific instances in local government, but no general regulations on the subject.
In 1997, the terms of reference of the Committee on Standards in Public Life, http://www.public-standards.gov.uk/new.htm, were extended to investigate party funding. Its report in 1998 Cm 4057, led to the passing of the Political Parties, Elections and Referendums Act 2000, which inter alia regulates the registration of political parties and public funding for campaign groups, including spending limits on referendum campaigns. This act has imposed a strict regime on the funding for parties, including banning donations from non-EU sources. It also legislated for the establishment and supervisory role of the Electoral Commission, which is a politically independent body, accountable directly to Parliament and is now responsible for regulating elections in the UK and for parliamentary and local government boundary reviews75.
Freedom of Information legislation
Prior to 1997, government practice in relation to access to official information rested upon a Code of Practice on Access to Government Information, that was introduced in 1994 and revised in 1997. This arose from proposals made in the White Paper 199376.
Immediately on assuming office in 1997, New Labour published its own White Paper 199777 setting out new proposals for a statutory right to access official information. This was hailed as a very progressive statement of intent78, and included the establishment of an Information Commissioner. There was considerable delay while the government considered the matter, and a series of reports was issued: House of Commons Select Committee 1999 http://www.publications.parliament.uk/pa/cm199899/cmselect/cmpubadm/570/57002.htm79; House of Lords Committee 1999 http://www.publications.parliament.uk/pa/ld199899/ldselect/ldfoinfo/97/9701.htm80 (and the government's response 81); and a Final Report of the Home Secretary’s Advisory Group 1999 on Openness in the Public Sector.
In the event, the public’s right of access was greatly watered down in the resulting Freedom of Information Act 2000, which contains a less strict code for enabling refusal to disclose data and broad exceptions (e.g. for “prejudice to the public interest”). As Oliver (2003 p. 168) remarks, the delay in implementation and regression in degree of access to information suggests that there is little sign of genuine desire for openness in government.
The post of Information Commissioner has been maintained. Inter alia, it is his/her responsibility to promote good practice by public authorities, but orders for disclosure by the Commissioner can still be overridden by a minister, as at present. The Act does not come into force fully until 2005, and in the interim, the Code of Practice on Access to Government Information remains in place.
Guidelines have been issued as to how the FOIA will operate in tandem with the Data Protection Act 1998 (see Rules for applying the FOIA to DPA), and other statutes (see Information Commissioner’s Office Freedom of Information Workplan and Department of Constitutional Affairs http://www.dca.gov.uk/foi/bgch7.htm) and the management of public records82.
Changes influenced by European legislation
General European legislation
The European Economic Community was established by the Treaty of Rome 1957, and the United Kingdom became a member by signing the Treaty of Accession 1973. This was facilitated by the European Communities Act 1972. Constitutionally, signing the Treaty created a novel problem, in that legislation was needed that would accept “…in advance as part of the law of the United Kingdom… provision to be made in the future by instruments issued by the Community institutions…” 83
The EEC changed its constitution by adopting the majority rule for decision making in many areas (it had previously been based on unanimity) and this was accepted by the UK when Parliament passed the Single European Act 1986. These changes were overtaken by the Maastricht Treaty 1992, which ushered in the European Union.
The various European treaties have had major constitutional significance for the United Kingdom because, as Oliver (2003 p. 63) summarises “ …the terms of the European treaties as interpreted by the European Court of Justice require members to subordinate their sovereignty and that of their Parliaments to the Community institutions, and to give direct effect and primacy to European law.”
The European Court of Justice (ECJ) sits in Luxembourg and has the responsibility of ensuring that “…in the interpretation and application of [the] Treaty the law is observed”84. Its judgments have ensured that the loss of sovereignty by member states includes their constitutional laws, and applies not only to the states, but also to their nationals85. EC law supremacy was confirmed in the UK courts through five cases (1989-2000) known collectively as the Factortame series86. The final judgment resulted in an Act of the Westminster Parliament (Merchant Shipping Act 1988) being “dis-applied”.
The European Parliament, was established as an “Assembly”, which was confirmed in its present form by the Single European Act 1986. Member states of the EU elect Members of the European Parliament (MEPs) for five-year terms. The UK currently has 87 MEPs, but this reduces to 72 in the 2004-2009 session. They are elected by proportional representation on a closed party list system, which was ushered in by the European Parliamentary Elections Act 1999. The European Parliament does not have independent legislative competence and it cannot initiate proposals for legislation by the Council of the European Union. “The Council is the main decision-making body of the European Union…[its] acts …can take the form of regulations, directives, decisions, common actions or common positions, recommendations or opinions. The Council can also adopt conclusions, declarations or resolutions. When the Council acts as a legislator, in principle it is the European Commission that makes proposals. These are examined within the Council, which can modify them before adopting them.” 87 Council is obliged to “consult” Parliament on its acts, and if Parliament accedes then the process is passed as a “co-decision”88, but should disagreement arise, Council can dispense with Parliament’s opinion89.
The European Scrutiny Committee of the House of Commons (ESC) “assesses the legal and/or political importance of each EU document, decides which EU documents are debated, monitors the activities of UK Ministers in the Council, and keeps legal, procedural and institutional developments in the EU under review.”90 A Commons resolution (17 November 1998) stated that no Minister could agree to any proposal for EC legislation until the matter had been scrutinised by the ESC91.
The Maastricht Treaty committed member states of the European Union to respect fundamental rights as enshrined in the European Convention on Human Rights 1950 (ECHR). This document was drawn up by the Council of Europe, comprising 45 states, most of which are not members of the EC/EU. The UK ratified the treaty in 1951, and in 1966 signed up to allowing the individual right to petition. However, because international treaties cannot give rights that are enforceable in domestic courts unless incorporated into law by statute, interpretations of the European Court of Human Rights of the ECHR were not enforceable by UK courts until the passing of the Human Rights Act 1998,92. This act is a “…constitutional instrument introducing into domestic law the relevant articles of the Convention...93” so that while rights are theoretically enforceable only against public authorities, there are implications for the common law and for litigation between private parties (Bradley & Ewing 2003, p. 420). There is provision within the Convention for derogation on certain matters, and the UK used these powers in respect of detention provision for terrorism legislation.
The Nice Treaty 2000 proclaimed the Charter of Fundamental Rights of the European Union but it was not incorporated formally. Consequently, it is not binding on member states, but in the opinion of Turpin , the ECJ can be expected to have regard to the Charter in applying and developing Community law.
Bradley & Ewing96 see three major constitutional issues facing the UK in the medium term with respect to EU legislation: (i) the pressure for closer political union, (ii) the “democratic deficit” of the legislative process that is operated by unelected and hence unaccountable members of the EU structure, (iii) the constitutional base upon which the whole “enterprise” is constructed.
Currently the matter of adoption, or not, of the European Constitution is a controversial issue that bears on item (i). (See the following for additional information and comments: text, BBC site, Essex University, Squire Law Library). The Prime Minister has recently announced a referendum in the UK before acceptance, but no date for this has been announced. Agreement could not be reached on the terms of the Draft Constitution by the end of the Italian Presidency in 2003, and the text is currently (June 2004) under discussion as part of the Irish Presidency agenda.
Agreement was reached on the Final Text (see summary) of the Constitution at Heads of Government Summit held in Brussels on 18th June 2004. Depending on details of the final text, and whether it is accepted by the Westminster Parliament, this document has considerable potential constitutional implications for the UK.
Constitutions in other jurisdictions with a Common Law tradition: Sources of Information
A federal republic with President as Head of State. Bicameral legislature.
US Constitution 1787. See modern version with amendments.
US Supreme Court interprets the constitution.
A constitutional monarchy with a federal government. The Monarch’s representative is the Governor General of Canada. There is a federal Prime Minister and a Bicameral Parliament.
“Canada's Constitution is not a single document. It is made up of acts of the British and Canadian Parliaments, as well as legislation, judicial decisions and agreements between the federal and provincial governments” (citing website of Canadian Embassy in Washington).
Primary constitutional documents:
Constitution Act 1867
Canada Act 1982
Constitution Act 1982
The first part of the Constitution Act 1982 contains the Canadian Charter of Rights and Freedoms.
The Supreme Court of Canada rules on constitutional matters.
A constitutional monarchy within a Commonwealth (Federation) of States. The Monarch’s representative is the Governor General of Australia. There is a federal Prime Minister and a Bicameral Parliament.
Primary constitutional documents:
Commonwealth of Australia Constitution Act 1900. (See commentary). This forms the main constitutional statement (see summary).
Statute of Westminster Adoption Act 1942 (see discussion). This established in law the independence of the governments of Australia, Canada, New Zealand, Eire and Newfoundland.
Australia Act 1986 (see discussion) – repatriated the constitution.
See a Summary of the Constitutional documents, as given on the Australian Government website.
The High Court was established under section 71 of the Commonwealth of Australia Constitution Act 1900.
Unitary state with a constitutional monarchy. The Monarch’s representative is the Governor General of New Zealand. Has a similar Parliamentary arrangement to UK (except with unicameral legislature), with a Prime Minister.
The constitution is “..not set out in one all-inclusive document – it consists of a series of formal legal documents, decisions of the courts and the practices…describe[d] as conventions. It increasingly reflects the fact that the Treaty of Waitangi is regarded as a founding document of government in New Zealand.
The Constitution Act 1986 is the principal formal statement of the constitution.” (see Government website).
Primary constitutional documents:
Treaty of Waitangi 1840
Series of documents signed between settlers and Maori chiefs (see background).
Constitution Act 1986 and Constitution Amendment Act 1999
Supreme Court Act 2003
The Supreme Court replaces the Judicial Committee of the Privy Council in London as final appeal court for New Zealand.
Quasi federal Republic with President as Head of State and a Bicameral Parliament.
The constitution was established as an Interim Constitution in 1993 and adopted by the Constitutional Assembly in 1996.
Constitution of the Republic of South Africa 1996 (Act 108)
The constitution incorporates a Bill of Rights.
Constitutional Court, “[T]he Court has the power to declare an Act of Parliament null and void if it conflicts with the Constitution and to control executive action in the same way.”96
Ancillary Information and useful websites
Additional data, comment and criticism on these issues can be found at the Squire Law Library Website.
House of Commons
House of Commons Committees
Home page of the House of Commons Select Committee on Constitutional Affairs
Homepage of the House of Commons Select Committee on the Lord Chancellor’s Department
Home Page of the House of Commons Select Committee on the Modernisation of the House of Commons
Homepage of the House of Commons Select European Scrutiny Committee
Homepage of the House of Commons Select Foreign Affairs Committee
Homepage of the House of Commons Select Committee on Public Administration
House of Lords
House of Lords Committees
Homepage of the House of Lords European Union Select Committee
Homepage of the House of Lords Select Committee on Delegated Powers and Regulatory Reform
Homepage of the House of Lords Select Committee on the Constitutional Reform Bill
Homepage of the House of Lords Select Constitution Committee
Homepage of the Joint Parliamentary Committee on House of Lords Reform
Homepage of the Joint Parliamentary Committee on Human Rights
Homepage of the Committee on Standards in Public Life
Judicial function of the House of Lords
Appellate jurisdiction of the House of Lords
Government Departments and Commissions
Her Majesty’s Stationery Office
HMSO: Legislation and Statutory Instruments
House of Commons Research Papers
The United Kingdom Parliament Publications Database
Lobby Groups, Think Tanks and Policy Centres
Homepage of the Centre for Policy Studies
Homepage of Charter88
Homepage of Devolution and Constitutional Change Research Programme
Homepage of DevWeb, Internet guide to devolution in the United Kingdom
Homepage of the Campaign for the English Regions
Homepage of the Electoral Reform Society
Homepage of the Scottish Council Foundation
Homepage of the UCL Constitution Unit
Homepage of the University of Manchester, School of Law, Constitutionalism Web-Papers
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Labour-Liberal Democrat parties, 1997. Report of the Joint Consultative Committee on Constitutional Reform.
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Public Administration Select Committee, 2004. A Draft Civil Service Bill: Completing the Reforms, HC 128, session 2003-4.
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Royal Commission chaired by Lord Kilbrandon, 1973. Royal Commission on the Constitution, 1969-1973. London, HMSO, Cmnd 5460.
Royal Commission chaired by Lord Wakeham, 2000. A House for the Future, London, HMSO Cm 4534
Select Committee on the Modernisation of the House of Commons, 1997-98. First Report, HC,190, Appendix I., Fourth Report, HC 600.
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The Government’s Response to Sixth Report of the Committee on Standards in Public Life, Reinforcing Standards, 2000, Cm 4817.
Turpin, C. 2002. British Government and the Constitution: Text, Cases and Materials. 5th Edition, London, Butterworths.
Wheare, K. C. 1960. Modern Constitutions, 2nd Edition. London, Oxford University Press
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White Paper, 1997. Building Partnership for Prosperity, London, HMSO, Cm 3814.
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White Paper, 2002. Your Region, Your Choice: Revitalising the English Regions, London HMSO, Cm 5511.
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Act of Settlement 1700
Administration of Justice Act 1968
Appellate Jurisdiction Act 1876
Australia Act 1986
Bank of England Act 1998
Bill of Rights 1689
British Nationality Act 1981
Canada Act 1982
Commonwealth of Australia Constitution Act 1900
Constitution Act 1982 (Canada)
Constitution Act 1986 (Canada)
Constitution Act 1986 (New Zealand)
Constitution Amendment Act 1999 (New Zealand)
Constitution of the Republic of South Africa Act 108 1996
Crown Proceedings Act 1947
Data Protection Act 1998
Ecclesiastical Commissioners Act 1847
European Communities Act 1972
European Parliamentary Elections Act 1999
Freedom of Information Act 2000
Government of Ireland Act 1920
Government of Wales Act 1998
Greater London Authority (Referendum) Act 1998
Greater London Referendum Act 1998
Habeus Corpus Act 1679
House of Lords Act 1999
Human Rights Act 1998
Ireland Act 1949
Irish Free State (Agreement) Act 1922
Irish Free State (Consequential Provisions) Act 1922
Irish Free State Constitution Act 1922
Life Peerages Act 1958
Local Government Act 2000
Merchant Shipping Act 1988
Meting of Parliament Act 1694
Northern Ireland (Entry to Negotiations, etc) Act 1996
Northern Ireland Act 1998
Parliament Act 1911
Parliament Act 1949
Peerage Act 1963
Petition of Rights 1628
Political Parties, Elections and Referendums Act 2000
Public Order Act 1986
Referendum (Scotland and Wales) Act 1997
Reform Act 1832
Regional Development Agencies Act 1998
Registration of Political Parties Act 1998
Scotland Act 1978
Scotland Act 1998
Septennial Act 1715
Single European Act 1986
Statute of Westminster Adoption Act 1942
Supreme Court Act 2003 (New Zealand)
Treaty of Union 1707
Union with Ireland Act 1800
Wales Act 1978
- 1 As defined by the 1969 Royal Commission on the Constitution 1969-1973 Report, Cmnd 5460, October 1973.
- 2 Except for Scottish criminal cases.
- 3 Although their citizens are subject to the British Nationality Act 1981.
- 4 Final court of appeal for these is the Privy Council.
- 5 They are exempt from much of the Treaty of Rome, although provisions relating to the free movement of industrial and agricultural goods apply, as does adherence to the European Convention on Human Rights.
- 6 Bradley & Ewing (2003), p. 233.
- 7 Ibid p. 79, 88.
- 8 Wheare (1966).
- 9 Bradley & Ewing (2003).
- 10 Ibid. For examples: Civil Service Code, Ministerial Code - A Code of Conduct and Guidance on Procedures for Ministers, Departmental Evidence and Response to Select Committees, Government Accounting.
- 11 See Turpin (2002) p. 10, Oliver (2003), p. 5
- 12 Ibid.
- 13 For example, listed under “Constitutional Law” in Halsbury’s Statutes (2001).
- 14 Bradley & Ewing (2003), p. 14.
- 15 Bradley & Ewing (2003), p. 68.
- 16 Bradley & Ewing (2003), p. 18.
- 17 Bradley & Ewing (2003, p. 196).
- 18 Bradley & Ewing (2003, p. 174). In the Ecclesiastical Commissioners Act 1847 appointments to new diocesan bishoprics were disallowed from sitting in the House of Lords.
- 19 Originally (1876) there were two Lords of Appeal in Ordinary, which by 1994 has risen to 12. Under the Administration of Justice Act 1968 the Sovereign may increase the number by a Statutory Instrument approved by both House of Parliament. They join Lords of Appeal who are already in the upper house by virtue of their hereditary peerages.
- 20 Bradley & Ewing (2003, p. 1973).
- 21 Bradley & Ewing (2003, p. 176). Re the case of Viscount Stansgate. This legislation has been superseded by the House of Lords Act 1999.
- 22 3 years - Meeting of Parliament Act 1694 (Triennial Act); 7 years - Septennial Act 1715. (Bradley & Ewing, 2003, p. 180).
- 23 Labour Party final report on policy review, 1989.
- 24 Labour Party policy commission, 1993.
- 25 Blackburn & Plant (1999), p. 3.
- 26 Home Office Working Party on Electoral Procedures. Concerned mainly with efficiency and fairness in the administration of elections and conduct in electioneering.
- 27 Consultation Paper 1996 by Straw, J and Boateng, P (1996).
- 28 1997 Labour-Liberal Joint Committee report. Summarised in Blackburn & Plant (1999), Appendix 2, p. 468.
- 29 White Papers 1997 on Wales (Cm 3718) & Scotland (Cm 3658).
- 30 Turpin (2002), p. 654.
- 31 Hazel (1999), p.3.
- 32 For example, Oliver (2003), p. 3.
- 33 Turpin (2002), p. 654.
- 34 Oliver (2003), p. 174.
- 35 This site has an archive of all discussions and reports from 1997.
- 36 For example Rp 99/5, 99/6, 97/28, 98/85, 98/103, 98/105.
- 37 As in Oliver (2003), p. 189.
- 38 This Research Paper 02/002, 2002, discusses the White Paper 2001, Cm 5291 and compares it to the Wakeham Royal Commission 2000 recommendations.
- 39 White Paper 1999, Cm 4183.
- 40 Oliver (2003) p. 330.
- 41 See Oliver (2003) p. 331, Masterman (2004), for discussion of some cases.
- 42 Consultation Papers 2003: CP 10/03, 11/03, 13/03.
- 43 From 1921 to 1972, under the Government of Ireland Act 1920, s. 75. Between 1972 and 1978 there was Direct Rule from Whitehall.
- 44 Bogdanor (2004), p. 257.
- 45 Cmnd 5460.
- 46 See Memorandum of Dissent (Cmnd 5460-I).
- 47 Cmnd 5732. Democracy and Devolution: Proposals for Scotland and Wales.
- 48 Wales Act 1978, and Scotland Act 1978.
- 49 Cm 3658 for Scotland and Cm 3718 for Wales.
- 50 Scotland: 74.3% (44.9% of total electorate), Wales: 50.3% (25.1% of total electorate). Figures from Turpin (2002), p. 264.
- 51 Turpin (2002), p. 265.
- 52 Revised 2001 by Cm 5420.
- 53 See Turpin (2002), p. 276, Bradley & Ewing (2003), p.43.
- 54 Bradley & Ewing (2003), p. 45.
- 55 See Turpin (2002), p. 283, Bradley & Ewing (2003), p. 45.
- 56 See Turpin (2002) p. 285.
- 57 See Turpin (2002), p. 288, Bradley & Ewing (2003), p. 46.
- 58 Cmnd 9657.
- 59 Cm 4707 See Turpin (2002), p. 295 for the terms.
- 60 Excepted matters are given in s4 and Sch 2 and reserved matters given in s 4 and Sch 3 of the Northern Ireland Act 1998.
- 61 See Turpin (2002), p. 297, and Bradley & Ewing (2003), p. 46 for details.
- 62 Cm 5511.
- 63 The regions are: North-West, North-East, Yorkshire & Humberside, West-Midlands, East-Midlands, East of England, South-East, South-West.
- 64 Under the auspices of the Department of Trade & Industry.
- 65 Cm 3814, 1997. See Turpin (2002), p. 267.
- 66 Cm 3897, 1998.
- 67 Oliver (2003) p.204, Bradley & Ewing (2003) p. 233.
- 68 See Blackburn & Plant (1999) for a pro-reform discussion.
- 69 Oliver (2003) p. 205.
- 70 For examples (Oliver 2003): Council of Civil Service Unions v. Minister for the Civil Service ( AC 374, introduced judicial review of government decisions into exercises of royal prerogative, M. v. Home Office ( 1 AC 377), found the Home Secretary in contempt of court.
- 71 This is a first past the post system with each constituency returning a single candidate.
- 72 Scotland and Wales have a mixed Westminster and additional member PR system, Northern Ireland has a single transferable vote PR system, and London a 3 vote regime one of which is used in an additional member PR system.
- 73 Cmd 5291, paras 48-53.
- 74 For examples: 1975 on EC membership, 1978 and 1998 on devolution. See Oliver (2003) p. 155.
- 75 See Oliver (2003) p. 149 for more details.
- 76 Cm 2290, 1993, Open Government.
- 77 Cm 3818, 1997.
- 78 See Oliver (2003) p. 164.
- 79 House of Commons Select Committee, Public Administration Third Report 1999.
- 80 House of Lord Committee, Draft Freedom of Information Bill - First Report 1999.
- 81 Department for Constitutional Affairs 1999.
- 82 Lord Chancellor's Code of Practice on the Management of Records Issued under section 46
of the Freedom of Information Act 2000.
- 83 White Paper 1967, Cmnd 3301. See Bradley & Ewing (2003, p. 135).
- 84 EC Treaty, art 220.
- 85 See for examples ECJ landmark rulings in Van Gend en Loos v. Nederlandse Tarief Commissie ( CMLR105, 129) (cited in Oliver 2003 p. 63, Bradley & Ewing 2003, p. 128), and Costa v ENEL (C6/64)  ECR 1141 (cited in Bradley & Ewing 2003, p. 128).
- 86 Initial case R v Transport Secretary, ex p Factortame Ltd (No 1)  2 CMLR 353 (CA). See Bradley & Ewing (2003) p 141 for a discussion of these cases.
- 87 Quoted from the official Council website.
- 88 Oliver (2003) p. 64.
- 89 See Turpin (2002) p. 341.
- 90 The European Scrutiny Committee’s brief from its website.
- 91 Bradley & Ewing (2003) p. 138.
- 92 See Oliver (2003, p. 112).
- 93 Lord Woolf, CJ in R v Offen  1 WLR 253.
- 94 Turpin (2002) p. 365.
- 95 Bradley & Ewing p. 144.
- 96 Quoting the website of the Constitutional Court.