GOVERNMENT AND POLITICS AS
LEVEL
UNIT TWO
GOVERNING THE UK

“Never, never, never give up”
Winston S Churchill 1874-1965

1

GOVERNING THE UK
50% of AS [25% of A2]
UNIT TWO
SAMPLE QUESTION
Answer one question from Section A and one question from Section B in 80 minutes.
Spend 40 minutes on Section A and 40 minutes on Section B

SECTION A
QUESTION ONE
PRIME MINISTERIAL POWER
“For too long the big political decisions in this country have been made in the wrong place. They are not made around the Cabinet table where they should be, but they are taken on the sofa in Tony Blair’s office. No notes are kept and no one takes the blame when things go wrong. That arrogant style of government must come to an end. I will restore the proper process of government. I want to be Prime Minister of this country not a President
(Source: David Cameron, The Times, 5th October 2006)

“The Cabinet is the committee at the centre of the British political system. Every
Thursday during Parliament, Secretaries of State from all departments as well as other ministers meet in the Cabinet Room in Downing Street to discuss the big issues of the day. The Prime Minister chairs the meeting, selects its members and also recommends their appointment as ministers to the monarch. The present Cabinet has
23 members (21 MPs and two peers). The secretary of the Cabinet is responsible for preparing records of its discussions and decisions”.
(Source: From a modern textbook)

(a) What criticism is David Cameron making of Tony Blair’s style of decision making in source 1? [5]
(b) Explain the main functions of the cabinet [10]
(c) To what extent have UK Prime Ministers become “presidential”? [25]
Or

2

QUESTION TWO
THE JUDICIARY
A powerful coalition of judges, senior lawyers and politicians has warned that the
Government is undermining the civil liberties citizens have taken for granted for centuries and that Britain risks drifting towards a police state. One of the country’s most eminent judges has said that undermining the independence of the courts has frightening parallels with Nazi Germany.
Lord Ackner, a former law lord, said there was a contradiction between the
Government’s efforts to separate Parliament and judiciary through the creation of a supreme court, and its instinct for directing judges how to behave. He cautioned against “meddling” by politicians in the ways the courts operate. “I think it is terribly important there should not be this apparent battle between the executive and the judiciary. The judiciary has been put there by Parliament in order to ensure that the executive acts lawfully”.
Lord Lester QC, a leading human rights lawyer, expressed concern that the
Government was flouting human rights law and meddling with the courts. The senior barrister remarked that judges had now replaced MPs as the defenders of basic civil liberties. “People used to look to their MPs as the first port of call to deal with any perceived injustice by the executive. Now there is an increasing tendency for people to look to the judges to protect their liberties”, he said.
(Source: From an article, “Judges liken Terror Laws to Nazi Germany, by Marie Woolf, Raymond
Whitaker and Severin Carrell, published in The Independent, 16th October 2005)

(a) According to the source, how is the protection of civil liberties being undermined?
[5]
(b) Explain how judicial independence is maintained. [10]
(c) To what extent have civil liberties in the UK been eroded? [25]

SECTION B
Either
3. How effective is parliament in checking executive power? [40]
Or
4. Should the UK’s constitution remain un-codified? [40]

3

UNIT TWO JUNE 2009
Answer one question from Section A and one question from Section B in 80 minutes.
Spend 40 minutes on Section A and 40 minutes on Section B.

SECTION A
QUESTION ONE
THE ROLE OF PARLIAMENT
Citizens need an effective Parliament. They need a body that can call the government to account, that can ensure that government answers for its actions and the actions of civil servants. They need a body that can scrutinise and, if necessary, change the legislative proposals brought forward by government. They need a body that can ensure that their voice is heard by government when they have a grievance, be it about the impact of a policy or the absence of a policy. They need the security of knowing that, if there is a problem, there is a body to which they can turn for help, a body that can force public officials to listen.
Government needs an effective Parliament. It needs it because its authority derives from Parliament. The more government distances itself from Parliament, the more it undermines popular consent for the system of government. It needs Parliament to give its approval to measures and, prior to doing so, to scrutinise those measures.
Adapted from Report of the Commission to strengthen Parliament

(a) With reference to the source, describe three functions of parliament. [5]
(b) With reference to the source, and your own knowledge, explain why government needs an effective parliament. [10]
(c) Analyse the main factors that limit the effectiveness of Parliament. [25]
Or
QUESTION TWO
PRIME MINISTERIAL POWER
For centuries Prime Ministers have exercised authority in the name of the monarchy without the people or their elected representatives being consulted. So now I propose that in key areas important to our national life, the Prime Minister and executive should surrender or limit their powers. The exclusive exercise of these powers by the
Government should have no place in a modern democracy.
These include:
 the power of the executive to declare war

4









the power to request the dissolution of Parliament the power over recall of Parliament the power of the executive to ratify international treaties the power to make key public appointments without effective scrutiny the power to restrict parliamentary oversight of the intelligence services the power to choose bishops the power to appoint judges

I now propose to surrender or limit these powers to make for a more open twenty first century British democracy.
Adapted from Gordon Brown, speech in Parliament, July 3rd 2007

(a) With reference to the source, outline the reasons Gordon Brown gave for proposing that prime ministerial powers be surrendered or limited. [5]
(b) With reference to the source, and your own knowledge, explain the ways in which
Prime Ministers are able to control Parliament. [10]
(c) To what extent has prime ministerial power grown in recent years? [25]

SECTION B
Either:
3. How effectively can the judiciary control executive and legislative power in the UK?
[40]
Or
4. “Constitutional reform since 1997 has not gone far enough”. Discuss. [40]

UNIT TWO JANUARY 2010
Answer one question from Section A and one question from Section B in 80 minutes.
Spend 40 minutes on Section A and 40 minutes on Section B

SECTION A
QUESTION ONE
THE JUDICIARY
“The judiciary is considered to be independent of the other two branches of government. Judges’ salaries are paid from the Consolidated Fund; this means that they do not have to be voted upon each year by Parliament. The House of Commons generally forbids MPs from making any reference to matters before the criminal and civil courts. By convention, a similar restriction is observed by ministers and civil servants. 5

For their part, judges by convention do not engage in politically partisan activity, thus upholding their neutrality. Indeed, they have generally avoided commenting on matters of public policy. However, the dividing line between judges and politicians was never quite as sharp as these features would suggest. The most obvious example to be found in the figure of the Lord Chancellor. Prior to the passage of the 2005
Constitutional Reform Act, he was head of the judiciary, the presiding officer of the
House of Lords and a member of the Cabinet. The 2005 Act, which also proposed the establishment of a new Supreme Court by 2009, changed this situation, providing for the transfer of his judicial role to the Lord Chief Justice”.
Adapted from “The Judiciary” by Philip Norton in Politics UK, Bill Jones et al, 6 th edition, Pearson
Education, 2007

1 [a] With reference to the source, describe the measures that exist to maintain the independence and neutrality of the judiciary. [5]
[b] With reference to the source and your own knowledge, explain how the judiciary has been reformed since 2005. [10]
[c] To what extent are UK judges both independent and neutral? [25]

QUESTION TWO
WHITE PAPER ON THE REFORM OF THE HOUSE OF LORDS
The White Paper sets out the government’s proposals for a reformed second chamber of the UK Parliament.
The proposals are based on the House of Commons votes for an 80% or 100% elected second chamber and follow cross-party talks on how this could be achieved.
The White Paper makes proposals for reform in a number of areas:


Role and Composition

The House of Lords plays a valuable role in holding the government to account and revising legislation. The reforms would strengthen those roles and make the second chamber more accessible. The House of Commons would continue to be the primary chamber in the UK legislature.


Membership of the chamber

The proposed reforms would create a second chamber with directly elected members, which would be smaller than the House of Commons. The remaining rights of hereditary peers to sit and vote in the second chamber would be removed.

6



Powers of the new chamber

The government proposes no changes to the powers of a reformed second chamber.


The possible role of appointed members to ensure independence

If it is decided that there should be a 20% appointed element, the government proposes that its key purpose would be to provide a significant independent element in the second chamber. A statutory appointments commission would seek nominations and applications for membership.
The government is also proposing changes to the arrangements for eligibility, remuneration and accountability.
Source: White Paper, An Elected Second Chamber, July 14th 2008.

2 [a] With reference to the source, what changes to the second chamber are proposed? [5]
[b] With reference to the source, and your own knowledge, explain the arguments for a fully or partly elected second chamber. [10]
[c] Make out a case against an elected second chamber. [25]

SECTION B
Either:
3. “The advantages of a codified constitution now outweigh its disadvantages”.
Discuss. [40]
Or
4. To what extent does the Prime Minister dominate the political system in the UK?
[40]

UNIT TWO MAY 2010
SECTION A
Answer either question one or question two.
QUESTION ONE
THE BRITISH CONSTITUTION
A Possible Codified Constitution for the UK?
Jack Straw, the Justice Secretary, has used a visit to Washington to hint that Britain could finally get a codified constitution spelling out citizens’ rights and codifying this country’s political system. He is already working on a new Bill of Rights and
7

Responsibilities, clearly defining people’s relationship to the state, as part of a wideranging package of constitutional reform. But he has, for the first time, also said that the Bill could be a step towards a fully codified constitution to “bring us in line with the most progressive democracies in the world”.
Britain’s constitution has developed in a haphazard fashion, building on common law, conventions, case law, historical documents, Acts of Parliament and European legislation. It is not set out clearly in any one document. Nor is there a single statement of citizens’ rights and freedoms. As Jack Straw put it yesterday, “Most people might struggle to put their finger on where their rights are”.
Supporters argue that producing such a document could tackle disillusionment with politics, at the same time as setting new, clear limits on the power of the executive.
Opponents of a codified constitution argue, “If it ain’t broke, don’t fix it”, insisting that the existing arrangements, however piecemeal their development has been, have worked well in practice. There are, moreover, formidable practical problems to be overcome before such a document could be drawn up”.
Source: adapted from an article by Nigel Morris in The Independent, 14th February 2008

(a) With reference to the source, describe three sources of the UK constitution. [5]
(b) With reference to the source, and your own knowledge, explain the arguments in favour of a codified constitution for the UK. [10]
(c) Make out a case against the adoption of a codified constitution in the UK [25]

Or

QUESTION TWO
A CABINET MEETING
Source 1 A Cabinet Meeting
The Prime Minister’s Spokesman began by giving a brief summary of the Cabinet of the previous day to the assembled press. Cabinet had met for an hour and 40 minutes that morning. There had been the usual update from Geoff Hoon [Leader of the House of Commons] on parliamentary business, there had been a brief discussion of the Draft
Legislative Programme being published tomorrow and there was an update from the
Foreign Secretary on the situation in Burma. Most of the Cabinet was spent discussing the economy in discussion led by the Chancellor of the Exchequer, where he emphasised the global nature of the economic situation we were facing at the moment – not only the global credit crunch, but also rising oil and food prices.
Source: Prime Minister’s Office press briefing, 14th May 2008

Source 2 Gordon Brown’s First Cabinet
8

Gordon Brown unveiled an almost completely new Cabinet today, as he attempted to make good on his pledge for a “politics of change” after the Blair years, including
Britain’s first ever female Home Secretary and its youngest Foreign Secretary in 30 years. As part of a huge overhaul, the Prime Minister appointed Jacqui Smith, formerly the Chief Whip, as Home Secretary, and David Miliband as Foreign Secretary. As head of the Home Office, Ms Smith will be in charge of the battle against terrorism, national security and policing. Standing outside the Foreign Office, Mr Miliband – who was himself widely tipped as Mr Brown’s rival for the Labour Leadership, before ruling himself out – said, “I’m tremendously honoured”.
Source: adapted from “Brown shuffles the pack for a new Cabinet” in Times Online, 28th June 2007

(a) With reference to Source 1, describe two types of issues discussed by the Cabinet
[5]
(b) With reference to Source 2, and your own knowledge, what factors does the Prime
Minister take into account when appointing cabinet ministers? [10]
(c) To what extent is the Cabinet an important body? [25]

SECTION B
Either:
3. To what extent does Parliament control executive power? [40]
Or
4. How effectively does the judiciary protect civil liberties in the UK? [40]

UNIT TWO JANUARY 2011
SECTION A
Answer either Question 1 or Question 2.
QUESTION ONE: HOUSE OF COMMONS
Extracts from three days proceedings of the House of Commons

January 12th 2010


Questions to the Secretary of State for Health



Third Reading of the Personal Care at Home Bill

9

January 13th 2010


Questions to the Secretary of State for Scotland



Questions to the Prime Minister



Opposition Motion presented by the Leader of the Opposition: “That this House notes with concern the increase in the number of young people not in employment or training . . . [continued]”.



Report presented by the Select Committee on Foreign Affairs on global security in
Afghanistan and Pakistan.

January 14th 2010


Public Bill Committee on the Financial Services Bill to consider proposed amendments to clause 26.

(a) With reference to the source, describe two functions of the House of Commons.
[5]
(b) With reference to the source, and your own knowledge, explain how the House of
Commons can control the power of government [10]
(c) To what extent is the House of Commons effective in carrying out its various functions? [25]
Total 40

QUESTION TWO: PRIME MINISTERIAL POWER
It is often asserted that “the British Prime Minister is not as powerful as he or she wants to be”. Margaret Thatcher wanted to be dominant and ensured that by removing her political opponents in the cabinet and replacing them with the people she could rely on. Tony Blair similarly strengthened his position by including his closest allies in the cabinet. Prime Ministers who want to be dominant will take their prerogative powers and stretch them to the limits. This can also be seen in the area of foreign affairs. Both Tony Blair and Gordon Brown spent much time attempting to take a leading role in world affairs, including conducting wars and negotiating international treaties.
This picture may, nevertheless, be misleading. There are powerful forces which can be ranged against them. The Prime Minister’s cabinet colleagues can turn against him or her, as occurred with Thatcher in 1990. In the case of Blair, his position was undermined by growing criticism within the party, particularly after the 2003 invasion of Iraq. The media, too, can become hostile. Brown received unfavourable press

10

coverage and he was presented as a weak and indecisive leader. A Prime Minister’s strength also depends on many factors beyond his or her direct control. These include the size of the parliamentary majority and the course of world events.
April, 2010

(a) With reference to the source, describe two limitations on prime ministerial power.
[5]
(b) With reference to the source, and your own knowledge, explain the Prime
Minister’s prerogative powers. [10]
(c) To what extent can the Prime Minister control the Cabinet? [25]

SECTION B
Either:
3. “The UK constitution is no longer fit for purpose”. Discuss. [40] or 4. Is the judiciary too powerful, or is it not powerful enough? [40]

JUNE 2011
SECTION A
Answer either Question 1 or Question 2
QUESTION ONE
THE JUDICIARY
Study the following passage and answer the questions that follow.
The government was slapped down in a judicial review by the Supreme Court when it ruled that a Treasury freeze on the bank accounts of suspected terrorists was illegal.
A panel of seven judges allowed a challenge by five men (all suspected terrorists) who had had all their assets frozen under orders made when Gordon Brown was Chancellor of the Exchequer. The terrorists’ assets were frozen in 2006 as a result of an executive order. This had been issued in response to UN Security Council resolutions calling for steps to be taken to hit the financing of international terrorism. But the orders were not voted on in Parliament.
Today the Supreme Court ruled that the Treasury had exceeded its powers, meaning that the orders were unlawful. The justices declared that if the Government
11

considered “far-reaching measures” were necessary to combat terrorism, “it must first obtain approval for them from Parliament”. The government has responded by saying it will “fast track legislation” through the Commons to make sure it can continue to freeze terrorists’ assets.
Liberal Democrat home affairs spokesman, Chris Huhne said: “It is simply not acceptable for Labour to behave as if it were a police state and go around arbitrarily arresting people or confiscating their property without due process under the rule of law. The Government’s desperation to avoid consulting Parliament is creating bad laws, legal defeats and hefty bills for the taxpayer. It has to stop”.
Source: adapted from Sky News online, January 27 2010.

(a) With reference to the source, why was the government criticised over the decision to freeze the assets of the suspected terrorists? [5]
(b) With reference to the source, and your own knowledge, explain judicial review and its importance. [10]
(c) To what extent is there a conflict between the judiciary and the executive in the
UK? [25]

QUESTION TWO
PARLIAMENTARY REFORM
Extracts from the document: “The Coalition: our programme for government”.
We will establish five-year fixed term Parliaments. We will put a binding motion before the House of Commons stating that the next general election will be held on the first Thursday of May 2015. Following this motion, we will legislate to make provision for fixed term Parliaments of five years. We will bring forward a Referendum
Bill on electoral reform, which includes provision for the introduction of the
Alternative Vote in the event of a positive result in the referendum, as well as for the creation of fewer and more equal sized constituencies. We will bring forward early legislation to introduce a power of recall, allowing voters to force a by-election where an MP is found to have engaged in serious wrongdoing. We will establish a committee to bring forward proposals for a wholly or mainly elected upper chamber on the basis of proportional representation. We will bring forward proposals . . . for reform of the
House of Commons . . . starting with the proposed committee for management of backbench business. A House Business Committee, to consider government business, will be established by the third year of the Parliament. We will ensure that any petition that secures 100,000 signatures will be eligible for public debate in Parliament.
Source: “The Coalition: our programme for government”, Cabinet Office, May 2010
© Crown copyright 2010

(a) With reference to the source, describe three proposals that seek to strengthen parliamentary representation by increasing popular participation. [5]
12

(b) With reference to the source, and your own knowledge, explain how three of these proposals seek to make the government more accountable to Parliament. [10]
(c) To what extent will the coalition government’s proposals bring about an effective reform of parliament? [25]

SECTION B
Either
3. To what extent has the location of sovereignty in the UK changed in recent years?
[40]
Or
4. Is the UK Prime Minister now effectively a president? [40]

JANUARY 2012
SECTION A
Answer either Question One or Question Two.
QUESTION ONE
PARLIAMENT
Select Committees
There is a House of Commons select committee for each government department, examining three aspects: spending, policies and administration. These departmental select committees have a minimum of 11 members, who decide upon a line of inquiry and then gather written and oral evidence. Findings are reported to the Commons, printed and published on the Parliament website. The government then usually has
60 days to reply to the committee’s recommendations.
Following the adoption by the House of Commons of recommendations from the
Reform of the House of Commons Committee:
Departmental Select Committee chairs are elected by their fellow MPs
A backbench business committee has been established with the ability to schedule business in the Commons chamber and in Westminster Hall on days, or parts of days, set aside for non-government business.

13

Legislative Committees
Both Houses of Parliament refer legislation to committees for detailed discussion and approval. These committees are part of the process of making laws. They scrutinise proposed laws and may consider amendments to improve the legislation.
Amendments approved in legislative committees must be approved by the whole
House.
Source: adapted from www.parliament.gov.uk, October 2010

1 (a) With reference to the source, why are legislative committees needed? [5]
(b) With reference to the source, and your own knowledge, explain the ways in which backbench MPs can call government to account. [10]
(c) To what extent has the formation of a coalition altered the relationship between parliament and government? [25]

QUESTION TWO
THE JUDICIARY
The Constitutional Reform Act of 2005 guaranteed the rule of law. The rule of law is the foundation of any healthy democracy, in that it establishes that all conduct and behaviour throughout society should conform to a framework of law. Its principles include equality before the law and punishment only for breaches of law.
The Constitutional Reform Act drew a better division between the role of the Lord
Chancellor and the Lord Chief Justice, as well as between the Lord Chancellor and the
House of Lords, which now has its own Lord Speaker. The Lord Chancellor is bound by oath to preserve the principle of judicial independence.
The Act also created the UK’s Supreme Court. Its opening in October 2009, together with the other reforms, marked the end of a long process towards establishing the separation of powers and the independence of the judiciary. The process by which judicial appointments are made is also more independent and distanced from government. Indeed, there is now no meaningful role for the government in the appointment of judges, except for the most senior. Even in the case of senior judges, the government’s influence is extremely limited”.
Source: adapted from a memorandum by Jack Straw to the Justice Select Committee, March
2010

2 (a) With reference to the source, what is the rule of law? [5]
(b) With reference to the source, and your own knowledge, explain how the independence of the judiciary is protected. [10]

14

(c) To what extent can judges check the power of the executive and the legislature?
[25]

SECTION B
Answer either Question Three or Question Four
(3) To what extent have constitutional reforms since 1997 reduced the powers of UK governments? [40]
Or
(4) Are UK Prime Ministers as powerful as is sometimes claimed? [40]

MAY 2012
SECTION A
Answer either Question One or Question Two
QUESTION ONE
PRIME MINISTER AND CABINET
There is no constitutional difference between a coalition government and a single party government, but working practices need to reflect the fact that the UK has not had a coalition in modern times.
The initial allocation [in May 2010 after the general election] of cabinet ministerial whip and special adviser appointments between the two parties was agreed between the prime minister and the deputy prime minister.
Future allocation will continue to be based on the principle that the parliamentary party with fewer MPs will have a share of the cabinet, ministerial and whip appointments approximately in proportion to the size of the parliamentary parties.
The prime minister, following consultation with the deputy prime minister, will make nominations for the appointment of ministers. The prime minister will nominate
Conservative Party ministers and the deputy prime minister will nominate Liberal
Democrat ministers.
The principle of collective responsibility, save where it is explicitly set aside, continues to apply to all government ministers. This requires that there is an appropriate degree of consultation and discussion among ministers, that the opinions expressed and advice offered within government remain private and that the decisions made by the cabinet are binding on and supported by ministers.
Source: Adapted from the Cabinet Office, the Coalition Agreement for Stability and Reform, 2010

15

1 (a) With reference to the source, outline how coalition government has affected appointments to the Cabinet [5]
(b) With reference to the source and your own knowledge, explain why collective responsibility is an important aspect of UK government. [10]
(c) How important is the Cabinet? [25]

QUESTION TWO
THE CONSTITUTION
We need wholesale constitutional reform, not piecemeal and compromised change. I want our democratic structures to be transparent and fair and I want them to be the basis of our pluralism – this is one of the ways we rebuild trust with the electorate.
For example, I support AV for the Commons and a directly elected Lords using PR.
We also need to look at how the rights and responsibilities of citizens are properly recognised and codified and how government is held to account. The 1998 Human
Rights Act brought about progress, but the case for a codified constitution remains a strong one, both for the benefits it would bring and crucially for the process of debate, discussion and democratic engagement through which it would be brought about. A codified constitution would be good for increasing citizen power and good for checking executive power.
On this Labour was too cautious in government. Our 1997 White Paper said “we ought to think about whether we should have a written [codified] constitution”. Again in
2006 Gordon Brown called for a codified constitution. But words were never turned into action and we never created a pathway to a codified constitution.
I want Labour to be a party of radical democratic and constitutional reform. This is how we begin to reshape the way we do politics so that it is more open, more plural and more real for citizens”.
Source: adapted from David Miliband’s blog, September 2010

2 (a) With reference to the source, outline two constitutional reforms proposed by
David Miliband. [5]
(b) With reference to the source and your own knowledge, explain the arguments in favour of introducing a codified constitution. [10]
(c) To what extent have the coalition government’s proposals to reform the UK constitution been controversial? [25]

SECTION B
Answer either Question Three or Question Four
(3) How effective are backbench MPs? [40]

16

(4) To what extent do judges protect individual rights and freedoms in the UK? [40]

JANUARY 2013
SECTION A
Answer either Question One or Question Two
QUESTION ONE
PRIME MINISTERIAL POWER
The decision to introduce fixed-term Parliaments was one of the key features of the coalition agreement between the Conservative and Liberal Democrat parties in 2010.
The policy was, in due course, enacted through the Fixed Term Parliament Act, 2011.
The introduction of fixed-term Parliaments had long been advocated by the Liberal
Democrats. It is often claimed that the reform will reduce prime ministerial power, because it means that Prime Ministers are no longer able to use their prerogative power to dissolve Parliament and call a General Election when events turn in their favour. But a fixed-year Parliament also means that they can plan ahead to complete their programme by a known date in the future.
The issue of fixed-term Parliaments is part of a long-running debate about how powerful UK Prime Ministers are. In addition to chairing cabinet meetings and controlling the cabinet system, Prime Ministers have attracted increasing media focus and become the “brand image” of their party at election time. Some commentators have gone so far as to claim that UK Prime Ministers have, effectively, become
“presidents”. Concern about the growing powers of the Prime Minister has led, amongst other things, to calls for a fully codified written constitution, which would outline the role and responsibilities of the Prime Minister and government. This would establish clear guidelines for the exercise of prime ministerial powers, rather than allowing the Prime Minister to determine his or her role as he or she sees fit”.
Source: Edexcel, 12th October 2011

1 (a) With reference to the source, describe how the introduction of fixed-term
Parliaments affects prime ministerial power. [5]
(b) With reference to the source and your own knowledge, explain three reforms, other than fixed-term Parliaments, which could limit the powers of the Prime Minister.
[10]
(c) To what extent have UK Prime Ministers become more “presidential”? [25]

QUESTION TWO
PARLIAMENT

17

House of Lords
Since the general election, David Cameron has created 117 new life peers, according to a report from the Constitution Unit at University College, London. This leaves the
House packed to the rafters and prompts “a major concern that if appointments continue, the House of Lords will simply cease to be able to function”. This will be because it is too large and cumbersome. The figures in April 2011 were that, compared to Labour’s 243 peers, there were a total of 311 representing the coalition partners. But added together this only accounted for 554 of the total 792 peers. The rest were a mix of crossbenchers, Bishops and others.
But is the Prime Minister doing anything other than adjusting the political balance in the Lords to reflect the will of the people at the last election? Certainly, the House of
Lords, with its 792 members, eclipses the size of the Commons. The coalition’s
Programme for Government of 2010: stated “Lords appointments will be made with the objective of creating a second chamber that is reflective of the share of the vote secured by the political parties at the last general election. The current system of appointing peers will therefore remain until the Government’s reforms are in place.
An angry Ed Miliband accused David Cameron back in November 2010 of filling the
Lords with Conservative Party donors – and claimed the move was undemocratic.
Downing Street was unapologetic, saying: “The Government will be bringing forward a draft Bill proposing a wholly or mainly elected House of Lords”.
Source: Adapted from Cathy Newman article, Channel Four News online, 20th April 2011

2 (a) With reference to the source, outline two criticisms of David Cameron’s appointments to the House of Lords. [5]
(b) With reference to the source and your own knowledge, explain three considerations that are taken into account when appointing Life Peers. [10]
(c) Assess the arguments in favour of a largely or wholly elected second chamber. [25]

SECTION B
Answer either Question Three or Question Four
(3) To what extent have constitutional reforms introduced since 1997 made the UK more democratic? [40 marks]
(4) In what ways, and to what extent, is the Human Rights Act controversial? [40 marks] MAY 2013
SECTION A
Answer either Question One or Question Two

18

QUESTION ONE THE UK CONSTITUTION
Study the following passage and answer the questions that follow.
Constitutions organise, distribute and regulate government power. They set out the structure of government, the major government institutions and the principles governing their relations with each other and with citizens. The UK is unusual in that it has an un-codified constitution. Unlike the great majority of countries there is no single legal document which sets out in one place the fundamental laws outlining how the state works. Its constitutional rules are also not entrenched, as there is no higher category of constitutional law in the UK.
The UK constitution is derived from a number of sources. For example, the most important source of the constitution is statute law, law passed by Parliament. By contrast, conventions are unwritten practices which have developed over time and regulate the business of governing.
An un-codified constitution has two implications. First, it can make it difficult to know what the content of the constitution actually is. Second, it is easier to make changes to an un-codified constitution than it is to a codified constitution. The flexibility of the
UK constitution is evident from the large number of constitutional reforms since 1997, including the removal of the majority of the hereditary peers from the House of Lords, the introduction of codified rights of individuals for the first time in the Human rights
Act of 1998, and the devolution of power to Scotland, Wales and Northern Ireland.
Source: adapted from UK Constitution Unit (www.ucl.ac.uk/constitution-unit)

(a) With reference to the source, outline two features of the UK constitution. [5]
(b) With reference to the source and your own knowledge, explain the sources of the
UK constitution. [10]
(c) Assess the strengths of the UK constitution. [25]

QUESTION TWO THE ROLE OF THE JUDICIARY
Study the following passage and answer the questions that follow.
Judges are becoming too politicised in their decision-making, encouraged by a
European Court of Human Rights which is progressively shrinking national sovereignty,

19

according to Jonathan Sumption, the newest appointment to the UK’s Supreme Court.
He implied that judicial reviews are in danger of trespassing on “the proper function of government”. In a speech to fellow lawyers, Sumption said “one of the most significant constitutional changes” since the Second World War has been the rise in the political significance of the judiciary, as a result of the increasingly vigorous exercise of its powers of judicial review”.
Judges are not politically biased, he stressed, but some cases involved them in “dealing with matters (namely the merits of policy decisions) which in a democracy are the proper function of Parliament and of ministers answerable to Parliament and the electorate”. The introduction of the European Convention on Human Rights into UK law, through the 1998 Human Rights Act has, Sumption argued, shifted the boundaries between political and legal decision-making in such controversial areas as immigration, sentencing policy, security and policing, privacy and freedom of expression”.
Source: adapted from The Guardian, November 2011

(a) With reference to the source, outline why the increasing use of judicial review is controversial. [5]
(b) With reference to the source and your own knowledge, explain the main effects of the Human Rights Act. [10]
(c) Should judges, rather than politicians, be responsible for protecting civil liberties?
[25]

SECTION B
Answer either Question Three or Question Four
(3) Has the experience of coalition government strengthened or weakened prime ministerial power? [40]
(4) “The House of Lords is now more effective than the House of Commons in checking government power”. Discuss. [40]

HOW TO ACHIEVE A TOP GRADE ON UNIT TWO
SECTION A [STIMULUS QUESTION]

20

[a] This only tests AO1 KNOWLEDGE AND UNDERSTANDING and you are simply required to explain the significance of three points from the document. In order to gain 5 marks your two of your three explanations need to be supported with some
APPROPRIATE DETAIL. NO CREDIT WILL BE GIVEN FOR ANY REFERENCES TO
MATERIAL OUTSIDE THE SOURCE. If you can detect any BIAS in the source do comment upon this; almost no candidates look at who is responsible for the source so do check who wrote it because that will provide a greater insight into the nature of the source. There could even be a comparison of two sources and candidates might be asked to comment on whether is, for example, a conservative or liberal interpretation and explain their reasoning. If you can do this you will be operating at an extremely high level. [5]
[b] In order to ensure that you achieve full marks here you must COMBINE
EXPLANATIONS FROM THE SOURCE AND FROM YOUR OWN KNOWLEDGE. In order to ensure that you are successfully doing this you could use phrases like, “The source highlights a particularly useful argument which, from my own knowledge, is supported by . . .”
PROVIDE FOUR SUPPORTED EXPLANATIONS TO BE ON THE SAFE SIDE! [10]
[c] You answer the essay question in the same way as you would a Unit One essay – in other words write a very COHERENT STRUCTURED essay which EVALUATES BOTH
SIDES OF AN ARGUMENT BEFORE REACHING A CONCLUSION. Your essay could still achieve very highly if it made no reference to the source; however if there is material in the source that it would be appropriate to deploy in your answer you should certainly do this too. [25]

SECTION B [40 MARK ESSAY]
This must be an extensive essay which thoroughly grapples with the question. Also, don’t lose time by doing unnecessary spadework. For example, too many candidates will begin “HOW IMPORTANT IS THE CABINET?” by explaining in their introduction what it does in exhaustive detail – this gets you no marks – a much better introduction would be to suggest that the influence of the cabinet, like that of parliament, depends on CIRCUMSTANCES; in short cabinet is at its strongest when the Prime Minister is at his weakest and vice versa. And then launch into your essay pursuing this argument.
A good way of introducing the essay might also be to begin with “This is an interesting question because . . .” and then suggest some of the main arguments that you will be considering. In the exam you are going to be marked according to THREE ASSESSMENT OBJECTIVES when you write your 25 marks and 40 mark essays. It is therefore important that you know what these Assessment Objectives are so that you can fulfil them:
AO1: Demonstrate accurate and relevant factual knowledge [defining terms / concepts; providing examples; describing institutions / processes; identifying

21

arguments and theories; ability to demonstrate detailed and / or developed knowledge. A02: Ability to assess points in the light of argument and evidence [weighing statements up; making points and proving / disproving them; making points and supporting / qualifying them. This is MICRO-EVALUATION and is different to making a series of unsupported assertions;
A03: Ability to make points in a clear and logical order thereby producing an appropriately BALANCED ARGUMENT THROUGHOUT THE WHOLE OF THE ESSAY
[MACRO EVALUATION]
In an essay you can present one side of the argument in its entirety and then respond with the contrary argument; although probably a better way would be to keep comparing both sides’ arguments throughout the essay before reaching your conclusion. NB: You do not need to write an equal amount for both sides of the argument; for example if you do think one side is more convincing you could focus on this. A 70% / 30% division would therefore be entirely satisfactory.

THE CONSTITUTION
KEY CONCEPTS: CONSTITUTION, CONSTITUTIONALISM, CODIFIED /
UNCODIFIED CONSTITUTION, UNITARY / FEDERAL CONSTITUTION,
PARLIAMENTARY SOVEREIGNTY, POOLED SOVEREIGNTY, DEVOLUTION,
QUASI-FEDERALISM, ELECTIVE DICTATORSHIP

22

CONTENT EXPLANATION
Nature of the constitution: A knowledge and understanding of the features of a constitution and of the benefits of constitutional government, including the differences between codified and un-codified constitutions, and an understanding of the nature, sources and key features of the UK constitution.
Sovereignty and the constitution: A knowledge and understanding of debates about the location of sovereignty within the UK constitutional system, particularly in relation to the significance of European Union membership and devolution.
Reforming the constitution: A knowledge and understanding of key reforms to the constitution since 1997, such as Devolution and Lords Reform, and an awareness of their advantages and disadvantages; and an understanding of the ongoing debate about constitutional reform, including the possible introduction of a “written” constitution. DEFINITION OF A CONSTITUTION
A Constitution may be written or unwritten and yet all constitutions have the same purpose which is to define the RULES and CONVENTIONS by which a state is governed, the RELATIONSHIP BETWEEN THE VARIOUS BRANCHES OF GOVERNMENT and the
CIVIL LIBERTIES that its citizens possess by right. For example, the US Constitution requires that a US President’s term office is 4 years, while in the UK it is a constitutional convention that the Prime Minister should be a member of the Commons rather than the Lords. The US Constitution also clearly defines the relationship between the sovereignty that the US states enjoy and that possessed by the federal government ensuring that there is no overlap, while in its BILL OF RIGHTS it also clearly defines the
LIMITS OF GOVERNMENT and the RIGHTS ALL CITIZENS HAVE IN RELATIONSHIP TO
THE GOVERNMENT.

FEATURES OF A WRITTEN / CODIFIED CONSTITUTION: SINGLE
SOURCE, TWO TIER LEGAL SYSTEM, ENTRENCHMENT, JUDICIAL
REVIEW
A Codified Constitution means that the RULES BY WHICH A STATE IS GOVERNED and
THE RELATIONSHIP BETWEEN THE INDIVIDUAL AND THE GOVERNMENT are
WRITTEN DOWN IN ONE PLACE. An obvious example of this is the CONSTITUTION of the UNITED STATES which was composed in 1787 and, within its BILL OF RIGHTS
23

[1791], DEFINES the LIBERTIES OF AMERICAN CITIZENS as well as the RELATIONSHIP between the EXECUTIVE, LEGISLATURE and JUDICIARY.

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed”.
Amendment Two
Bill of Rights / the US Constitution

A Codified Constitution also represents the SUPREME AUTHORITY in a state. For example, the US Constitution opens with the words, “THE CONSTITUTION SHALL BE
THE SUPREME LAW OF THE LAND”. A codified Constitution thus represents a HIGHER
“CONSTITUTIONAL” LAW than parliamentary law and so TAKES PRECEDENCE OVER
STATUTE LAW, ensuring that there are limitations to the sort of laws that a government may pass. A country with a Codified Constitution thus has a TWO TIER
Legal system in which the law of the constitution cannot be changed simply by statute law. This ensures that a temporary government cannot undermine long standing constitutional laws that determine how the state is governed and the protection of our civil liberties.

FEATURES OF AN UNWRITTEN / UNCODIFIED CONSTITUTION /
VARIETY OF SOURCES / FLEXIBILITY
Like a Codified Constitution an Un-codified Constitution determines how a state is to be governed as well as the civil liberties that its citizens enjoy. However, an UnCodified Constitution is much rarer than a Codified Constitution and DERIVES FROM
A VARIETY OF WRITTEN SOURCES AND UNWRITTEN CONVENTIONS. It is therefore
NOT CODIFIED IN A SINGLE DOCUMENT. Thus the British Constitution comprises a variety of sources, including PARLIAMENTARY STATUTES, THE DECISIONS OF JUDGES
IN COMMON LAW, WORKS OF AUTHORITY like WALTER BAGEHOT’S “THE ENGLISH
CONSTITUTION” and LANDMARK DECISIONS such as MAGNA CARTA [1215] and the
BILL OF RIGHTS [1689]. An Un-codified Constitution can also be changed simply by
PARLIAMENTARY STATUTE so it is therefore much more FLEXIBLE than a Codified
Constitution and it therefore does not ENTRENCH our CIVIL LIBERTIES within a TWO
TIER LEGAL FRAMEWORK. This means that an Un-Codified Constitution enables governments, if they have sufficient parliamentary majorities, to quickly introduce laws which can fundamentally change the rules by which the state is governed or the individual’s rights in relation to the government. This means that it has often been referred to as an “ORGANIC CONSTITUTION” since it develops gradually over time. In recent years, for example, the EUROPEAN CONVENTION ON HUMAN RIGHTS has been incorporated into British law, in the HUMAN RIGHTS ACT [2000], while the
CONSTITUTIONAL REFORM ACT [2005] confirmed the Separation of Powers by establishing an independent SUPREME COURT.

24

SOURCES OF UK CONSTITUTION: STATUTE LAW, COMMON
LAW, CONVENTIONS, WORKS OF CONSTITUTIONAL
AUTHORITY, EU LAWS AND TREATIES
The UK’s Un-Codified Constitution is not comprised in one document and so derives from a variety of different sources. For example it comprises, STATUTE LAW such as the 1928 REPRESENTATION OF THE PEOPLE ACT which enacted UNIVERSAL
SUFFRAGE as well as the COMMON LAW, the judgment of judges in certain important cases setting a LEGAL PRECEDENT for other courts to follow. WORKS OF AUTHORITY such as WALTER BAGEHOT’S “THE ENGLISH CONSTITUTION” [1867] as well as AV
DICEY’S “AN INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION
[1885] also comprise the Constitution, as well as LAND MARK DECISIONS such as
MAGNA CARTA [1215] which lays down the principle of our right, as citizens, to TRIAL
BY JURY, as well as the BILL OF RIGHTS [1689] which lays down the PRIMACY OF
PARLIAMENT OVER CROWN which all monarchs since then have had to obey.
The UK Constitution also derives from TIME HONOURED CONVENTIONS such as
INDIVIDUAL and MINISTERIAL RESPONSIBILITY as well as the convention that a Prime
Minister should sit in the COMMONS rather than the LORDS. The SALISBURY
CONVENTION also states that the House of Lords should not block any government bill that was part of its ELECTION MANIFESTO.
In recent years the UK Constitution has had new sources added to it. For example, in
1973 the UK joined the EEC thereby adding European law to British law and in 1991, in the FACTORTAME CASE the House of Lords confirmed that European law takes precedence over British law. The UK has also now incorporated into British law the
1951 EUROPEAN CONVENTION ON HUMAN RIGHTS by passing the HUMAN RIGHTS
ACT. Since 1997 a number of referendums have been used to confirm significant constitutional changes, such as devolved assemblies in SCOTLAND, WALES and
NORTHERN IRELAND. It has been suggested, too, that the GUS O’DONNELL RULES on what to do if a COALITION government seems likely will also achieve become a constitutional precedent for the future.

The role of the Judges in creating law through CASE LAW can be a difficult principle to understand. It is best illustrated by the case of DONOGHUE v. STEPHENSON in which
LORD ATKIN overturned the existing legal principle that you could only claim negligence if you had a prior recognised legal relationship with the negligent party. In this case, a bottle of ginger beer sold with a snail in it had poisoned the plaintiff and
Atkin ruled that we all have a duty of care to our “NEIGHBOURS” – essentially anybody who might be adversely affected by our negligence. The principle of DUTY OF CARE

25

enshrined in this case has thus become part of case law and is now used as a BINDING
LEGAL PRECEDENT IN SIMILAR CASES.

LOCATION OF SOVEREIGNTY WITHIN THE UK SYSTEM: NATURE
OF
SOVEREIGNTY,
PARLIAMENTARY
SOVEREIGNTY,
IMPLICATIONS OF EU MEMBERSHIP, “POOLED” SOVEREIGNTY
THE DEBATE OVER SOVEREIGNTY IN THE UK
Sovereignty is best defined as a principle of ABSOLUTE and UNLIMITED POWER by which a state can act in any way that it wishes without its actions being vetoed by a superior body. This means that a political body has UNRESTRICTED POWER and that no other authority can control how it manages its INTERNAL and EXTERNAL AFFAIRS.
It has often been claimed that the United Kingdom is a UNITARY STATE which means that SOVEREIGNTY in the UK is NOT DIVISIBLE and is therefore centred on the
WESTMINSTER PARLIAMENT. In a FEDERAL STATE, however, SOVEREIGNTY IS
SHARED between the CENTRAL GOVERNMENT and REGIONAL GOVERNMENT. For example, in the United States, states like VIRGINIA have certain sovereign powers which the FEDERAL GOVERNMENT in Washington DC cannot interfere with. This though is not the case in the United Kingdom since the WESTMINSTER PARLIAMENT
DOES NOT, IN THEORY, SHARE SOVEREIGNTY. Instead it has ABSOLUTE POLITICAL
SOVEREIGNTY which means that it can pass any ACT OF PARLIAMENT that it wishes to. It is therefore SOVEREIGN SINCE ANY PARLIAMENT CAN ENACT ANY LAW THAT
IT WISHES. Each new parliament also has total power to pass any new law that it wishes since we DO NOT HAVE AN ENTRENCHED CONSTITUTION which means that parliament cannot be stopped from passing an Act of Parliament by ENTRENCHED
CONSTITUTIONAL LAW since we don’t have this sort of law. In other words there is
NO AUTHORITY IN THE UK GREATER THAN AN ACT OF PARLIAMENT SO PARLIAMENT
IS THEREFORE A SOVEREIGN BODY.

UNITARY AND FEDERAL FORMS OF GOVERNMENT
In a UNITARY STATE SOVEREIGNTY is CENTRALIZED in one place. Thus in the UK, as a unitary state, sovereignty is centralized on the Westminster Parliament and even though certain powers have been devolved to regional assemblies, such as the
Scottish Parliament and the Welsh Assembly, and pooled in the European Union, these powers could still be RECLAIMED BY PARLIAMENT since Westminster alone is sovereign. As NEIL MCNAUGHTON has put it, “In a unitary constitution, the central sovereign power can overrule all other bodies and has the right to restore all political

26

power to itself”. This has happened, for example, when Westminster suspended the
Northern Ireland Assembly, while parliament also retains the right of withdrawing from the EU by passing a new act repealing the act by which we joined.
A good example of a FEDERAL STATE is the UNITED STATES since in this country
SOVEREIGNTY IS SHARED BETWEEN THE GOVERNMENT IN WASHINGTON DC and the
50 STATES. Thus, when the US CONSTITUTION was agreed by delegates from the original 13 states in 1787, as well as giving certain powers to the central government, such as foreign policy and defence, the states decided that they would retain sovereignty over more regional issues such as policing, education and criminal law
[which is why some states have the death penalty and others do not].

However, to suggest that sovereignty purely resides in parliament would be misleading. PARLIAMENT does possess LEGAL SOVEREIGNTY, because no parliament may bind its successor, but, sovereignty is increasingly dispersed within the UK and with the European Union, while the PEOPLE themselves possess POLITICAL
SOVEREIGNTY.

POLITICAL VERSUS LEGAL SOVEREIGNTY
It was pointed out by AV DICEY as long ago as 1885 that there is, in terms of constitutional theory, always going to be a SOVEREIGNTY GREATER THAN
PARLIAMENT and that lies with the PUBLIC. In short, whereas Parliament may indeed pass any law that they wish [LEGAL SOVEREIGNTY], the voters enjoy POLITICAL
SOVEREIGNTY and this is greater because Parliament’s sovereignty is LEASED to it by the voters and since parliament is ultimately ACCOUNTABLE to the public in a
GENERAL ELECTION they, necessarily, enjoy ULTIMATE SOVEREIGNTY. Similarly, the public also exercise political sovereignty in a referendum. Parliament could, legally, does enact the result, but once the public express their views in a referendum
Parliament could hardly ignore the result.

ROYAL PREROGATIVE
However, PARLIAMENT’S LEGAL SOVEREIGNTY is also quite flexible and may not be as total as we might think. The Royal Prerogative is now in the hands of the Prime
Minister and this means that in certain areas parliament is not sovereign. These areas include numerous PATRONAGE POWERS such as appointing ANGLICAN BISHOPS and
LIFE PEERSl, while when the Prime Minister negotiates foreign treaties, such as refusing to give greater economic powers over EU states to the European Commission in December 2011, he is not accountable to parliament. In short, even today there are certain areas where Parliament still lacks sovereignty because that sovereign power is possessed by the Prime Minister, while in exceptional circumstances the MONARCH
HERSELF could reassert her SOVEREIGN ROYAL PREROGATVE. If, for example, a Prime
Minister refused to call a General Election after 5 years the monarch would have the sovereign right to dismiss the government, while if there was no obvious party leader

27

able to secure a majority in the House of Commons, the Monarch could then select a
Prime Minister whom they believed would be most likely to have the CONFIDENCE OF
THE HOUSE OF COMMONS. GEORGE VI, for example, did this when, in 1940, he appointed WINSTON CHURCHILL rather than LORD HALIFAX as Prime Minister.
The location of sovereignty is always changing, too. For example, it has always been the case that the Prime Minister could use the Royal Prerogative to decide on the
DATE OF THE GENERAL ELECTION or whether or not to commit British forces to WAR.
However, DAVID CAMERON has now abandoned the right to determine the date of the next General Election as being undemocratic and it will now be the first Thursday in May 2015. Similarly the PRECEDENT has been set for PARLIAMENT having the right whether or not to commit British troops to war; Blair allowed such a vote in 2003
[IRAQ] and Cameron did so again in 2011 [LIBYA] and then in 2013 [SYRIA].

THE UK’S MEMBERSHIP OF THE EUROPEAN UNION
Since the UK joined the EUROPEAN UNION we have also had to accept a growing number areas, such as TRADE, FISHING and AGRICULTURE, on which decisions on the
COUNCIL OF MINISTERS [the 27 relevant ministers of the EU meeting in Brussels or
Strasbourg] are taken by QUALIFIED MAJORITY VOTING. This means that even if
Britain opposes a policy we will have to accept it. We could not refuse to implement the law since, in 1991, the FACTORTAME CASE declared unequivocally that
EUROPEAN LAW TOOK PRECEDENCE OVER THE 1988 MERCHANT SHIPPING ACT and that consequently British courts must implement European law over British law. In short, we have POOLED OUR SOVEREIGNTY with 27 other EU countries so it is no longer focused on just the Westminster Parliament. This naturally affects parliament’s sovereignty since it makes clear that European law is now greater than parliamentary statute law and that, given a choice, British courts would have to adhere to European law. Westminster does though, significantly, still remain SOVEREIGN OVER KEY AREAS
THAT DEFINE A NATION STATE such as DEFENCE, FOREIGN POLICY, TAX and
IMMIGRATION where member states still retain the VETO. The passing of the LISBON
TREATY has, of course, pooled sovereignty even more. However, it has also been suggested that Parliament could reclaim sovereignty by passing an act of parliament that renegotiated or even withdrew us from membership of the EU.

HUMAN RIGHTS ACT [INCORPORATION OF THE
CONVENTION ON HUMAN RIGHTS INTO BRITISH LAW

EUROPEAN

British courts can now refer to the HUMAN RIGHTS ACT in order to protect our civil liberties and there have been numerous occasions when the judges have used the Act to protect our civil liberties. The highest court of appeal for issues concerning human rights has thus become an EXTERNAL COURT, the EUROPEAN COURT OF HUMAN
RIGHTS in STRASBOURG.

28

However, the Human Rights Act still falls far short of being a codified constitution which really would limit parliament’s sovereignty. As it stands the Human Rights Act is, in fact, no different from any other act of parliament and so can parts of it can be
SUSPENDED BY A FRESH ACT OF PARLIAMENT [as happened to when Article 5 was suspended after 9/11 enabling the government to hold terrorist suspects indefinitely without trial]; while DAVID CAMERON has even said that he would like to REPEAL THE
HUMAN RIGHTS ACT. At the same time, if a new law is deemed to be in conflict with the Human Rights Act the judges should flag this up by issuing a FORMAL STATEMENT
OF INCOMPATIBILITY but, since no parliament may bind its successor, parliament could ignore this warning. In short, there is much evidence to suggest that the Human
Rights Act does not really limit parliamentary sovereignty. Over prisoner voting, too,
Parliament has refused to comply with Strasbourg’s demands that prisoners should be allowed to vote suggesting that sovereignty has not actually shifted to Strasbourg.

The UK has been on a collision course with Strasbourg since 2005, when the ECHR ruled that a ban on all prisoners voting was a breach of human rights, following a challenge by convicted killer John Hirst. In February 2013, MPs voted by 234 to 22 to keep the blanket ban, in response to a government proposal to give the vote to offenders handed a custodial sentence of less than four years. Mr Grayling, the
Justice Secretary, has told MPs they ultimately have the power to maintain the current ban, but there would be a "political cost" in doing so.
BBC News, 14th January 2014

FURTHER DEVELOPMENT OF DEVOLUTION
This is provides clearer evidence for a change in the location of sovereignty. In theory,
Westminster did not lose any of its sovereign power when it DEVOLVED POWER to the SCOTTISH PARLIAMENT, WELSH and NORTHERN IRISH ASSEMBLIES over domestic issues, since if you devolve power that means that you can take it back when you wish.
Thus, when power sharing was not working in Northern Ireland,
Westminster was legally able to re-impose direct rule.
However, devolution is an EVOLUTIONARY PROCESS and it would seem increasingly impractical that Westminster really could consider dissolving the Scottish Parliament when it has now been in operation for ten years and has a DIRECT MANDATE FROM
THE VOTERS OF SCOTLAND TO GOVERN THEM, while the WELSH ASSEMBLY has further increased its powers, further undermining Westminster’s sovereign powers and re-establishment of DIRECT RULE over NORTHERN IRELAND would be politically unacceptable in the province. In short one could argue that the constituent members of the UK are in the process of achieving de facto sovereignty and Scotland may, indeed, achieve full independence in 2014

29

REFERENDUMS
This is similar to Devolution. At least in theory Parliament could ignore the result of a referendum because of parliament sovereignty; however, in practise, this could cause significant problems and could lead to a clash between the public [POPULAR
SOVEREIGNTY] and Parliament [LEGAL SOVEREIGNTY] which Parliament would probably want to avoid. For example, if the Scots voted for independence in a referendum or if the public had voted for AV for Westminster Elections in 2011 it would have been very difficult for parliament to have ignored the will of the public, even though a referendum is, at least in theory, simply CONSULTATIVE.

GLOBALISATION
It could also be argued that our membership of some INTERNATIONAL
ORGANISATIONS as well as the impact of GLOBALISATION has RESTRICTED BRITISH
SOVEREIGNTY. For example, the UK has to obey the trading rules of the WORLD
TRADE ORGANISATION; while the government has to support the principles of
ARTICLE 5 [COLLECTIVE SECURITY] of NATO. It has also been pointed out that the
British government does not have complete sovereign power over many international economic issues and as the Italians and Greeks have learned a government can be brought down by GLOBAL CAPITAL FLOWS rather than by its own people. It is an interesting question, too, to what extent parliament is sovereign over the internet and that this has certainly diluted almost all states’ claims to sovereignty.

When I was elected in 1950, parliament controlled “the purse” i.e the budget; “the sword” i.e the army and thirdly, parliament could not bind its successors because every parliament could repeal every law passed by its predecessor. Today none of this is true [and parliament and people have accordingly lost sovereignty]. The framework of our economic policy is now global, i.e the IMF, the World Bank and the WTO. This is especially true today when the IMF is being given even greater authority.
Similarly, the sword – our defence policy – is subsumed within NATO dominated by the United States; the Americans have military bases here which they can use without the need of parliamentary approval and the technology for our nuclear weapons is supplied by the Americans. It is upon the Americans that we depend for the satellite

30

navigation system that enables them to be targeted. Thirdly, within the European
Union laws are made by the Council of Ministers, on which a British minister sits, but once made they apply throughout the European Union without necessitating the approval of national parliaments, including our own. Our parliament cannot repeal individual European laws even if voters elected a House of Commons specifically committed to do so.
The British parliament is therefore no longer sovereign in law and the British people who elect it are no longer able democratically and peacefully to restore their control, through parliament, of the purse or the sword or the statute book. In short, Britain has now become, in European terms, a big local authority, and this is one of the factors which has led to a certain cynicism about us as a self-governing democracy, and raises doubts about the value of voting. Because if we are a democracy the people must be sovereign and the government must be its servant and not its master.
Tony Benn “Letters to My Grandchildren”, 2009

CONCLUSION
Therefore, it would be misleading to argue that Westminster is sovereign. Indeed, where sovereignty lies in the UK has always been controversial with POPULAR
SOVEREIGNTY and the ROYAL PREROGATIVE providing an alternative to parliamentary sovereignty, while in recent years constitutional changes to the UK such as our entry into the EUROPEAN UNION as well as the changing relationship between the CONSTITUENT PARTS OF THE UK and the increasing use of REFERENDUMS has made it even more difficult to clarify where sovereignty lies. In short, even though, at least in theory, no parliament may bind its successor the competing claims of sovereignty in the 21st Century make it more problematic to exactly define where sovereignty lies.

DRAWBACKS OF AN UNCODIFIED CONSTITUTION: ELECTIVE
DICTATORSHIP, WEAK CHECKS AND BALANCES, WEAK
PROTECTION FOR INDIVIDUAL RIGHTS
The LIBERAL DEMOCRATS and CHARTER 88 both argue very strongly that the UK ought to have a CODIFIED CONSTITUTION since our existing Un-Codified Constitution does not provide us with any SAFEFUARD FOR OUR CIVIL LIBERTIES against the government. OUR CIVIL LIBERTIES ARE THEREFORE NOT ENTRENCHED AND ARE
CONSEQUENTLY EXTREMELY VULNERABLE.

Critics of the UK’s un-codified constitution argue that it leaves the basic structures of our constitutional arrangements, and the rights of the individuals, vulnerable to the whims of the government enjoying a majority in the House of Commons. The

31

government, it is argued, should work within the framework of the constitution and not see it as a political football, something to be kicked about to suit its own preferences. The government should be the creature of the Constitution and not the other way round.
Lord Norton of Louth, Politics Review 2013

The arguments that our civil liberties need to be protected in a Codified Constitution have also become more vocal in recent years since it has been widely felt that both
Conservative and Labour governments have been undermining our civil liberties; shifting the balance of power in favour of the government and away from the individual, even though their POPULAR MANDATES have been essentially nonexistent. In 2005, for example, only 35.2% of the 61.3% of us who voted, voted for a
Labour government and yet Blair and Brown were still able to significantly restrict our civil liberties.
If though we did have a Codified Constitution, like most other countries, we would have a TWO TIER form of law and so these NEW CONSTITUTIONAL LAWS would protect us against the dangerous innovations of statute law!
Since the mid 1990’s there have been serious concerns that both Labour and
Conservative governments have been able to restrict our civil liberties. In 1994
MICHAEL HOWARD’S CRIMINAL JUSTICE ACT, for example, dramatically undermined
British civil liberties by allowing the police to carry out “STOP AND SEARCH” even if they had no evidence that a crime had been committed or was about to be committed, while it also ended the convention that, if arrested, you cannot INCRIMINATE
YOURSELF BY REMAINING SILENT. Instead, the police could now DRAW CERTAIN
INFERENCES FROM YOUR SILENCE.
In 1997 MICHAEL HOWARD’S CRIME SENTENCES ACT then set MANDATORY
SENTENCES which judges have to give for certain crimes. This naturally involved a very significant interference by the government within what had previously been the domain of the judges and further highlights the government’s growing attempts to increase its power within the state.
Labour further infringed civil liberties since taking office in 1997. There were many examples of this including the 2003 CRIMINAL JUSTICE ACT which has overturned the principle of “DOUBLE JEOPARDY” allowing you to be TRIED TWICE FOR THE SAME
CRIME if fresh evidence is forthcoming; even though this undermines a key principle of Magna Carta, while the act also allows certain trials to take place WITHOUT A JURY
(another assault on Magna Carta) in serious fraud cases or where there are fears the jury might be tampered with.
The WAR AGAINST TERROR has, of course, further enabled the government to interfere with our civil liberties. The PREVENTION OF TERRORISM ACT [2005] allows the Home Secretary to impose “CONTROL ORDERS” on people the government suspects may be involved in terrorist activities, even though this undermines another

32

fundamental principle of MAGNA CARTA which is TRIAL BY JURY. The Coalition said that it would reform this draconian regime but, in fact, its new TERRORISM
PREVENTION AND INVESTIGATION MEASURES [TPIMS] are very similar.
The SERIOUS ORGANIZED CRIME AND POLICE ACT [2005] bans UNAUTHORIZED
PEACEFUL PROTEST WITHIN A ONE KILOMETRE ZONE SURROUNDING
WESTMINSTER and it can be extended throughout the UK, as required. As a result of this act, “Maya Evans and Milan Rai were arrested at the cenotaph on Whitehall for reading out the names of UK soldiers and civilians killed in the War in Iraq”. [Liberty
Website]

MPs have voted to back plans to allow more civil courts to examine secret intelligence in private, despite calls for more safeguards. MPs from all sides had tried to press for so-called secret courts to be used only as a last resort. But the government successfully saw off the challenge. Cabinet minister Ken Clarke said it was "common sense" for sensitive evidence to be admissible in trials without intelligence sources being exposed. Two Labour amendments, which attempted to introduce extra safeguards, were defeated by 297 to 226 and by 298 to 225 government majorities of 71 and 73 respectively. Shadow Justice Secretary Sadiq
Khan said he was "disappointed" with the result, but would look to the House of
Lords to "bring some balance to the government's plans" when the legislation returns there. BBC News 4th March 2013

GEOFFREY ROBERTSON QC has also pointed out that we need a Codified Constitution to protect those MINORITIES who, in times of national emergency could easily become victims of a TYRANNY OF THE MAJORITY [such as YOUNG MOSLEMS following 9/11]. He refers to them as “Classes of persons insufficiently numerous to wield electoral power but large enough to attract resentment”.

Therefore, a CODIFIED CONSTITUTION would make it much more difficult for governments to undermine civil liberties in the way that they have been doing so successfully. It would also, hopefully ENCOURAGE POLITICAL ACTIVISM because we would no longer simply have negative rights, but POSITIVE RIGHTS and so, knowing what they were, we would be more likely to value and defend them.
A Codified Constitution would also PRECISELY DEFINE WHERE SOVEREIGNTY LIES IN
THE UK, as well as providing a solution to the many constitutional anomalies in the
British state. Indeed, given the huge number of constitutional changes introduced by
Labour since 1997 a Codified Constitution would be very useful in DETERMINING

33

WHERE EXACTLY SOVEREIGN POWER LIES IN THE UK. For example, if we had a
Codified Constitution it would settle, once and for all, the WEST LOTHIAN ISSUE and the exact relationship of the devolved assemblies to Westminster. The status of
REFERENDUMS within the UK would also be clarified, while a Codified Constitution could also define where sovereignty lies at Westminster; at a time when all the main parties are in favour of introducing an elected element into the Lords. A Codified
Constitution would provide, too, the opportunity to examine the ROYAL
PREROGATIVE powers that the PRIME MINISTER still enjoys and decide whether such powers are in accordance with liberal democratic values.
By providing us with a TWO TIER LEGAL SYSTEM a Codified Constitution would finally clarify the role of the BRITISH JUDICIARY. At the moment their role in protecting our civil liberties and determining the exact relationship between the legislature, executive and judiciary itself is severely undermined by the fact that they cannot refer back to a Codified Constitution. It is this that has ensured their powers are still quite limited in protecting our civil liberties. A Codified Constitution would though provide them with clearer authority to decide on important issues of civil liberties, since the
LAW OF THE CONSTITUTION would clearly take precedence over ordinary statute law.
Finally, the un-codified nature of the UK Constitution means that, although dramatic changes to it have taken place in recent years, there has been NO OVERALL SENSE OF
PURPOSE OR CONSISTENCY to them. A codified constitution would, therefore provide a more unified approach to constitutional reform; reducing confusion and contradiction. As the HOUSE OF LORDS SELECT COMMITTEE ON CONSTITUTIONAL
REFORM put it in 2011, “We have no structural thinking going on about the interaction between the composition of the Houses of Parliament, the electoral system, the courts and so on. We have no thinking about how all this fits together into a system of government”.

STRENGTHS OF THE UK’s UNCODIFIED CONSTITUTION:
ORGANIC AND ADAPTABLE, RESPONSIVENESS TO PUBLIC
OPINION
Supporters of our un-codified constitution say that it can adapt to a changing world without major upheavals. It is therefore said that Britain’s constitution is “organic”.
This means that it is rooted in society, not separate from society. Thus, when society and its needs and values change, the constitution can do so automatically without undue delay or confusion. Parliament can pass a new act relatively quickly and new unwritten conventions can simply develop to take account of social and political change. Neil McNaughton “Government and Politics for AS”

There are also strong arguments in favour of retaining our Un-codified Constitution.
Its supporters argue that an UN-CODIFIED CONSTITUTION IS MUCH MORE FLEXIBLE

34

than a codified constitution so therefore government (which is, of course, accountable to the public) can RESPOND VERY QUICKLY TO CHANGED CIRCUMSTANCES without being RESTRAINED BY THE DEADHAND OF AN INFLEXIBLE CODIFIED CONSTITUTION.
There are many examples of this. In the 1960’s the reforming Labour Home Secretary,
ROY JENKINS, supported the introduction of a number of liberal reforms which fundamentally altered the nature of British society, such as the ABOLITION OF THE
DEATH PENALTY and the LEGALISATON of both HOMOSEXUALITY and ABORTION. All of these very important (and popular) reforms could be introduced simply by an ACT
OF PARLIAMENT without the cumbersome process of changing a Codified
Constitution and so they showed parliament being able to quickly respond to the changed mood of the public. In short the FLEXIBILITY OF AN UNCODIFIED
CONSTITUTION HAS ADVANTAGES OVER A RIGIDLY INFLEXIBLE CODIFIED
CONSTITUTION!

“We have a suppleness, a fluidity and a pragmatism to our arrangements, which many constitutional experts around the world recognise is a strength”.
Nick Clegg, 2011

More recently, the FLEXIBILITY of our Constitution has also made it relatively easy for governments to respond to CHANGING CIRCUMSTANCES; so that, when it became clear, that there were significant demands for DEVOLUTION in SCOTLAND, this could be catered for very quickly with a simple Act of Parliament only being necessary to establish a PARLIAMENT in Edinburgh. DEVOLUTION was, similarly, introduced very quickly into NORTHERN IRELAND with the GOOD FRIDAY PEACE AGREEMENT when it became clear that this would be the key to eradicating violence in the province.
The flexibility of the Constitution also raised no difficulties when it came to establish a COALITION GOVERNMENT in MAY 2010; even though the last time that one had been established was in May 1940! The fact, too, that the principle of COLLECTIVE
MINISTERIAL RESPONSIBILITY seems no longer to be operational once there is a
Coalition shows the capacity of our un-codified Constitution for gradual evolution.
The CABINET SECRETARY, GUS O’DONNELL, was also able to draw up highly effective plans for the SMOOTH TRANSITION of power to a coalition, even though these were relatively uncharted constitutional waters. In particular, he urged the Conservatives and Liberal Democrats to quickly form a government for fear of delay provoking market instability.

PETER HENNESSEY, a leading historian of the UK Constitution argues in favour of an un-codified constitution because its very vagueness is an advantage in enabling us to muddle through a series of potential crises; such as the 2010 establishment of a coalition, the introduction and then modification of acts of parliament protecting the country from the changing terrorist threat, as the changing relationship between the

35

UK and the EU and the shifting balance of self government towards the constituent parts of the UK.

Sometimes the very fact that a Constitution is un-codified allows for the ORGANIC
DEVELOPMENT of society. For example if the British Constitution was codified, it would have been an obstacle to the gradual development of Scottish self-government, similarly since 1973 our relations with the EU have been able to gradually develop and this would have been much more difficult if we had had a Codified Constitution defining exactly where SOVEREIGNTY lay within the UK. In short the FLEXIBILITY OF
OUR CONSTITUTION IS ITS GREAT STRENGTH SINCE NOTHING IS SET IN STONE AND
THEREFORE EVERYTHING IS POSSIBLE!
The way in which Parliament has been able to RESPOND VERY QUICKLY to the
TERRORIST THREAT since 9/11 and 7/7 might also be regarded as one of the strengths of our un-codified constitution. Parliament has thus been able to enact laws which protect the country without being constrained by constitutional safeguards which might not be appropriate at a particular time of national emergency. For example,
CONTROL ORDERS [PREVENTION OF TERRORISM ACT, 2005] and the laws against
“GLORIFYING TERRORISM” [PREVENTION OF TERRORISM ACT, 2006] might be seen as entirely justifiable attempts by the government to protect the nation from further terrorist outrages. As the imminence of the terrorist threat seems to have resided [at least for the time being] the coalition has also been able to modify some of these laws in response to changing circumstances; for example the replacement at the beginning of 2012 of Control Orders with more moderate TPIMS.
There is also a significant danger that we can MISINTERPRET a CODIFIED
CONSTITUTION or that the circumstances of the modern world may be so different to those when the Constitution was written as to make it dangerously counterproductive. For example, the 2nd AMENDMENT to the US CONSTITUTION lays down that, “A well regulated Militia, being necessary to the security of a Free State, the right of the people to keep and bear Arms, shall not be infringed”. It might now though be argued that, unlike in 1791, there is no pressing need for US citizens to be able to possess guns and that this, in fact, has contributed to the USA’s high murder rates.
ATTEMPTS TO LIMIT GUN CONTROL HAVE THUS ALWAYS BEEN UNSUCCESSFUL
BECAUSE THEY COME UP AGAINST THE CONSTITUTION! Similarly, in 1857 the US
SUPREME COURT ruled in the DRED SCOTT CASE that SLAVERY in the USA could NOT
BE RESTRICTED by reference to the 5th AMENDMENT [see below].

“No person may be deprived of life, liberty or property, without due process of law!”
5th Amendment to the US Constitution, 1791 [Bill of Rights]

It has been argued that a major constitutional change, such as a codified constitution, should only be introduced in response to clear public demand. This is not the case, while it is hardly proven that a Codified Constitution would reduce public apathy; after

36

all the US does have a codified constitution and yet significantly fewer Americans vote in general elections than in the British do in their general elections.
In short a Codified Constitution can become FOSSILIZED. Parliament, on the other hand, is REPRESENTATIVE OF SOCIETY TODAY and also ACCOUNTABLE TO SOCIETY
TODAY and so the fact that a simple Act of Parliament may be enacted to rectify our
Constitution means that we are never under the DEAD HAND OF TRADITION and that our Constitution is always RESPONSIVE TO CHANGES IN SOCIETY. One could argue too that since there has to be a General Election every five years if we do not like how the Constitution has been changed we can vote in to power another government which may better protect our civil liberties. In other words, with an Un-codified
Constitution the ELECTORATE remain the final arbiters which it could be argued is
MORE DEMOCRATIC than giving this power to UNELECTED JUDGES who are
INTERPRETING A DOCUMENT PRODUCED FOR A BYGONE AGE!
Finally, it is difficult to agree on those rights which should be enshrined in a Codified
Constitution. A right to freedom of speech can be abused, as well as freedom to assemble, while should it include social and economic rights as well as political rights?
This last point would likely stir up a very bitter debate between the left and the right of British politics. Even the RIGHT TO LIFE would be controversial; how would this relate, for example to the debate on ABORTION and ASSISTED SUICIDE?
Even habeas corpus can be dangerous in time of national emergency and should a
RIGHT TO PRIVACY really be enshrined in a constitution if this interfered with PRESS
FREEDOM and the ability of the government to use surveillance to try to foil terrorist atrocities. CONSTITUTIONAL REFORMS SINCE 1997: DEVOLUTION, PR
ELECTORAL SYSTEMS, REFERENDUMS, EVALUATING PAST AND
POSSIBLE FUTURE CONSTITUTIONAL REFORMS
In 1997 New Labour was swept to power and a significant part of their commitment to CHANGING BRITAIN DEPENDED UPON MODERNISING THE CONSTITUTION.
Conservative governments had not been much interested in constitutional reform and so in 1997 TONY BLAIR was determined to update the Constitution making it MORE
DEMOCRATIC and providing GUARANTEES FOR OUR CIVIL LIBERTIES. He also wanted to DECENTRALISE power away from Westminster in order to engage the public more with politics [STAKEHOLDER SOCIETY].
Since then many constitutional reforms have been introduced which have transformed the United Kingdom – the Scots now have the right to determine most of their DOMESTIC AFFAIRS and they have taken advantage of this to introduce the
PETITION SYSTEM and a FREEDOM OF INFORMATION ACT, as well as introducing radical measures such as FREE CARE FOR THE ELDERLY. Similarly, since 1998 there has been PEACE in NORTHERN IRELAND because of POWER SHARING which is, of

37

course, a dramatic achievement. There is an ASSEMBLY to in WALES with increased powers of domestic government.
Similarly the HUMAN RIGHTS ACT, although not a HIGHER LAW, has significantly increased JUDICIAL ACTIVISM, making our judges much more prepared to protect our civil liberties against the government. The FREEDOM OF INFORMATION ACT has also provided citizens with a great deal more access to hitherto secret information, most famously MPs’ expenses. Thus, it could be argued that there has been a dramatic transfer of power away from the government to the individual through, for example, devolution as well as greater safeguards from arbitrary government as illustrated by the HUMAN RIGHTS ACT and the FREEDOM OF INFORMATION ACT.
There is no doubt that these reforms have significantly changed the way in which the
UK is governed; it is less certain though whether these reforms have had more of a positive or negative impact on British democracy and civil liberties. A particularly significant criticism of New Labour’s reform programme is that many of the reforms were HASTILY INTRODUCED AND THEIR CONSEQUENCES NOT SUFFICIENTLY
THOUGHT THROUGH. The “ECONOMIST”, for example, has referred to Labour’s constitutional reform programme as, “A frenzy of constitutional reform which needs to be underpinned by some unifying political vision”. In other words, the consequences of these reforms have been so badly thought through that the
Constitution has become confused and in some instances our democratic rights have been threatened.
The intellectual support for the theory that New Labour was too hasty in introducing so many constitutional reforms in such a short period of time is provided by the eighteenth century political philosopher, EDMUND BURKE, who was similarly dismissive of those who were too easily thrilled by the sudden changes wrought by the FRENCH REVOLUTION; changes which Burke was right in thinking would ultimately have disastrous consequences, “Society is indeed a contract . . . it is a partnership . . . not only between those who are living, but between those who are living, those who are dead, and those who are to be born”.
On the other hand, LIBERAL DEMOCRATS and supporters of the pressure group,
CHARTER 88, argue that Labour did not do enough to reform the Constitution.
In
1997 and again in 2001 TONY BLAIR had MASSIVE LANDSLIDE MAJORITIES over the
Conservatives and yet he did not take advantage of these to introduce the sort of FAR
REACHING and COHERENT REFORM PACKAGE which would really have
TRANSFORMED THE CONSTITUTION.
According to ANDREW HEYWOOD the main failings of the ongoing constitutional reform programme is that the reforms have been too piecemeal to be really effective; this was especially true of the changes Tony Blair introduced from 1997-2007, “There was no constitutional blueprint that informed Blair’s reforms, which may have given the programme greater coherence and clearer goals. Instead, the reforms were individual solutions to particular problems. For instance, possible links between devolution and Lords reform (perhaps allowing constituent nations and regions to

38

have representation in a reformed second chamber) were not sufficiently discussed or explored. The reforms also failed to provide a solution for the problem of elective dictatorship, arguably the central weakness of the UK’s constitutional system. The major “hole” in the Blair reforms was thus the lack of meaningful parliamentary reform which might have given the legislature more real influence. It was notable that the government retreated on issues that could have brought this about – electoral reform at Westminster and an elected and more powerful second chamber. Also, no mention was made of the possibility of a codified constitution or an entrenched bill of rights”. CONSTITUTIONAL REFORMS SINCE 1997
HOUSE OF LORDS REFORM
In some ways the removal of the hereditary peers in 1999 is like the 1832 Reform Act which, for the first time, enlarged the electorate to include some of the middle class.
The number of new voters, as a result of the 1832 Reform Act, was very small, but a very important PRECEDENT had been set. It was the same in 1999 since the removal of the hereditary peers established that the Lords had to be modernized to make it more representative of society today.
Unfortunately though, having removed all but 92 of the hereditary peers, Labour lacked a CLEAR VISION of what the Lords should then look like. As a result of this, most of the new LIFE PEERS have been appointed by the leaders of the main political parties; in particular the Prime Minister. A criticism of House of Lords reform so far has therefore been that it has actually increased the PATRONAGE POWER of the
PRIME MINISTER, without actually making the Lords more democratic! When the
Coalition was established, NICK CLEGG was thus determined to transform the Lords into a primarily ELECTED CHAMBER. Indeed, he referred to the un-elected Lords as,
“An affront to the principles of openness which underpin a modern democracy”; maintaining that the un-elected Lords was a potent symbol of a “CLOSED SOCIETY” which is radically in need of reform.
Clegg thus proposed that the membership of the Lords be restricted to just 300; 80% of whom should be elected to serve a single term of 15 years – with a third of the seats up for election every five years, using the Single Transferable Vote.
Having a democratic Lords is though very controversial and a rebellion by Tory backbenchers has ensured that the Coalition will not now be able to proceed with a bill to make the Lords primarily democratic. Supporters of a democratic Lords argue that the Lords need to have a DEMOCRATIC MANDATE in order to have LEGITIMACY.
The Lords would also be ACCOUNTABLE to the public which is a key element of a
LIBERAL DEMOCRACY, while by having a democratically elected Lords the UK would no longer be acting in defiance of the EUROPEAN CONVENTION ON HUMAN RIGHTS.

39

An elected Lords would also remove outrages, whereby LORD RUDDOCK, for example, could be appointed to the legislature, in the New Year’s Honours List 2011, having donated £500,000 to the Conservative Party!

“We are not talking about a big bang overnight transition here – we are talking about electing the new House by thirds, with a transitional period of 10 years. Having laws made by people who are elected by those who have to obey the laws isn’t a very radical concept in the 21st century, I wouldn’t have thought, and was supported by all three parties in their manifestoes”.
Mark Harper, former Constitutional Reform Minister, BBC News 30th December 2011

It has been argued, too, that its DEMOCRATIC MANDATE would enable the Lords to hold the government accountable much more successfully since, at the moment, it is clear that only the Commons have democratic legitimacy so the Lords can only delay legislation for one parliamentary session. Equally, the age of the Lords are excessive
[and they serve until death] so elections would, hopefully, reduce the age of the Lords thereby making it more representative of society today.
However, critics of an elected Lords point out the dangers of having two democratically elected Houses of Parliament. This could mean them both claiming primacy over the other. This could therefore lead to GRIDLOCK if competing parties ended up dominating each of the Houses, or [and probably worse] a significant failure of SCRUTINY if the same party ended up dominating both Houses.
Professor VERNON BOGDANOR, one of the country’s leading constitutionalists has argued that, if elected, the Lords “would be much more likely to use its powers” which would create a great deal of un-resolvable conflict with the Commons, especially as we do not have a codified constitution which lays down exactly where sovereignty lies.
LORD NORTON further supports this view, pointing out if both Chambers were elected this would dangerously “FRAGMENT ACCOUNTABILITY”.

“It can therefore be predicted, I think, with some certainty, that an elected upper house would be much more powerful in practice than the current House of Lords and that would make Britain more difficult to govern. The outcome could well be gridlock, such as has occurred in countries like Australia, which has a directly elected upper house and the United States. We don’t have a formal constitution, we have no formal provision how to deal with gridlock, and unlike Australia we cannot dissolve the upper house – how would a deadlock be broken?
Vernon Bogdanor, BBC, 30th December 2011

It has also been argued that by electing the Lords, parliament will lose the WISDOM of many LIFE PEERS who have a WEALTH OF EXPERIENCE of POLITICS [LORD HURD,
LORD PRESCOTT], BUSINESS [LORD SUGAR], SCIENCE [LORD WINSTON] and the ARTS
40

[LORD BRAGG]. Such figures would be VERY UNLIKELY to put themselves forward for election and so the Lords would end up being filled with MORE PROFESSIONAL
POLITICIANS. This would, in turn, ensure that there were FEWER CROSS BENCHERS since the political parties would come to dominate the Lords have they have dominated the Commons, while as the WHIPS increased their influence so the
REPUTATION OF THE LORDS for INDEPENDENCE OF THOUGHT would diminish.
Indeed, one of the most pressing criticisms of the House of Commons is that it is too dominated by POLITICAL PARTIES and the STRANGLEHOLD OF THE WHIPS. If the
Lords were to be elected it is, of course, very likely that political parties would dominate these elections thereby bringing Party dominance into the House of Lords thus reducing genuine political debate. [NB It is generally recognised that the quality of political debate is particularly high in the House of Lords]. “A wholly elected second chamber would not have room for the independent element that those who sit on these Benches provide and by which those who have discussed these matters set great store”. [Lord Armstrong, March 13th 2007]

Representation in the House of Lords
2014

Labour

220

Conservative

221

Liberal Democrat

99

Crossbenchers

181

The informed wisdom of debate in the House of Lords is thus highly regarded, since a third of the members of the Lords make decisions based on principle rather than party loyalty. As the Lords now stand, it is clear that the Commons has a LEGITIMACY that it cannot challenge. However, the way in which the Lords has the power to force the
Commons to RECONSIDER a CONTROVERSIAL BILL is extremely useful, since it provokes the Commons to rethink an issue, without challenging its legitimacy. There are numerous examples of the Lords provoking a rethink in government policy over

41

contentious bills and a large government defeat in the Lords will often provoke a major, and probably appropriate, government rethink of policy, as Gordon Brown did when he decided not to continue with his plans for 42 DAY DETENTION and
SUPERCASINOS in deprived areas after significant defeats in the Lords.

I have always believed, and I thought this was a fairly general view, that the House of
Lords justified its existence by being a very effective revising chamber. Its primary purpose was to scrutinise and improve government legislation, not, like the House of
Commons, to be a party political slanging shop. It succeeds in being an effective revising chamber largely due to the quality and variety of its inmates”.
Lord Glasgow

The government has suffered a heavy defeat in the House of Lords over its plans for new injunctions to tackle anti-social behaviour in England and Wales. The government wants to replace ASBOS with IPNAS which a court could impose on anyone engaging or threatening to engage in anti-social behaviour, defined in the bill as “conduct capable of causing nuisance or annoyance to any person”. But a cross section of peers has argued that the threshold was too low and could put
“fundamental freedoms” at risk.
The House thus voted by a 178-majority in favour of an amendment to reinstate the
"harassment, alarm or distress" test used for Asbos. Former police chief constable
Lord Dear, who tabled the amendment, claimed the injunctions could apply to noisy children, street preachers, carol singers, and nudists.
BBC News, 8th January 2014

House of Lords SELECT COMMITTEES are, for the same reason, very highly regarded and so their reports are well-informed and influential. For example, a House of Lords
Select Committee, chaired by the former Health Secretary, LORD FOWLER, has stated, for example, that efforts to stop the spread of HIV/Aids in the UK are "woefully inadequate" and a new awareness campaign is thus required.

42

A major parliamentary report into the London 2012 Olympics warns that the prospect of an “effective and robust” legacy from the Games is in jeopardy unless there is a change in government approach. The House of Lord Select Committee on the Olympic and Paralympic Legacy says the Games were an “outstanding success”, but urges the government to appoint a minister with overall responsibility for producing legacy benefits which, it warns, “are in danger of faltering”.
The committee, which took evidence from Mayor of London Boris Johnson, former
Olympics Minister Tessa Jowell, and former Games organising committee chairman
Lord Coe among others, recommended that a minister be given responsibility for the
Olympic legacy, enabling greater co-ordination across Whitehall departments.
BBC News, 18th November 2013

Adoptive parents in England should have a legal right to support, a House of Lords report argues. Adopted children may have behavioural problems which are not resolved "simply by being adopted", says the Lords Committee on Adoption
Legislation. Adoption service bodies should have "a statutory duty" to provide postadoption support, says the committee. BBC News, 6th March 2013

The current system of appointment has also ensured that WOMEN and ETHNIC
MINORITIES are actually better represented in the House of Lords than they are in the
Commons so if the Lords were to be elected it is quite likely that its membership might actually become less representative of contemporary society.

One of the newest members of the House of Lords is Lord Loomba. A self made millionaire he now concentrates his energies on the Loomba Foundation, a charitable organization which helps poor widows and children and which he set up in memory of his mother, who was widowed at the age of 37. According to Lord Loomba, “I am not a politician, but I have a huge expertise on social problems. The House of Lords is a platform to discuss and understand different sorts of problems”.
BBC News, 28th February 2011

43

Finally, there is also the fear that the British public are already overburdened with elections [Westminster, Europe, Devolved Assemblies and Local Elections] and that too few would bother to vote for the Lords creating the worst case scenario of an elected Lords but without a SUFFICIENT MANDATE to be able to claim real
LEGITIMACY, “Whatever the process by which Members were elected, I wonder whether the British voting public have sufficient enthusiasm for electing Members of a Second Chamber to go out to vote for them. I suspect that the British public are beginning to suffer from election fatigue. A second Chamber elected on the votes of about a quarter of the electorate would lack the democratic mandate and the degree of democratic representativeness and authority that such a Chamber ought to have”.
[Lord Armstrong, March 13th 2007]

ASSESS THE ARGUMENTS IN FAVOUR OF THE FURTHER
REFORM THE HOUSE OF LORDS [40]
Those who support an elected House of Lords, like Nick Clegg, argue that in a modern liberal democracy it is profoundly wrong that the Upper Chamber of Parliament should be un-elected. This sort of “CLOSED SOCIETY” is entirely anachronistic and undemocratic and reform is thus urgently needed to give the Lords a real MANDATE and DEMOCRATIC LEGITIMACY. However, the House of Lords, in-spite of the fact, and perhaps because of the fact, that it is un-elected contains a great deal of WISDOM and
EXPERTISE and it is interesting to note just how little popular enthusiasm there is for the reform of the House of Lords.
Clegg has further argued that, by having an elected Lords, the United Kingdom would no longer be acting in defiance of the European Convention on Human Rights which lays down that legislatures ought to be elected, while the public would now have the right be able to vote for their legislators in the Upper House which would, at last, provide us with a fully democratic political process. As MARK HARPER, the former
Constitutional Reform Minister, put it, “Having laws made by the people who are elected by those who obey the laws isn’t a very radical concept in the Twenty First
Century”.
An elected Lords would also significantly reduce the excessive PATRONAGE POWERS of the Prime Minister who has the lion’s share of appointments to the Lords and, controversially, at the beginning of 2012 appointed Tory Party donor, LORD
RUDDOCK, to the Upper House. An elected Lords would also have the legitimacy

44

necessary to put greater restraints on the power of the executive since, once elected, their powers of scrutiny would have greater force than they have now. As long ago as
1976 LORD HAILSHAM referred to the British government as being an “ELECTIVE
DICTATORSHIP” and a legitimised Lords might provide a way of addressing this issue.
Clegg’s proposals were also designed to ensure that an elected Lords would keep its
INDEPENDENT SPIRIT. This would be guaranteed by ensuring that Lords served for 15 years and could not then stand for re-election. This would ensure that the Lords, unlike the Commons, could continue to speak their mind in an independent spirit without having to be concerned with either the reaction of their constituents or the party whips in case they said something controversial! The use of the SINGLE
TRANSFERABLE VOTE in elections to the Lords would also give the public more voting choice than FPTP and should help to stop Labour and Conservatives dominating the
Lords as they have been able to do in the Commons. It might even provide minority parties, such as UKIP, the Greens and the BNP, representation in the Lords, thus providing a fairer representation in parliament of contemporary voting habits.
However, the case for the Lords to be reformed, although superficially appealing, does have significant drawbacks. It is, for example, ironic that, in recent years, there has been much more public disaffection with an elected Commons. Indeed, the Lords, although un-elected, make a valuable contribution to the governing of the UK.
Although, some appointments, are primarily for political patronage, it is also striking how much wisdom and expertise can be found in the Lords. For example, it contains
LORD HURD [a former Home and Foreign Secretary], LORD NORTON [a leading academic in political science], LORD WINSTON [a leading scientist] and LORD BRAGG
[a leading literary figure] and, it could be argued that, although not democratically elected, they have, because of their achievements, a great deal to offer the governing of the country. Many Lords are also CROSSBENCHERS who act according to principle not party; indeed, a recent appointment, LORD LOOMBA, is a philanthropist and has explicitly said, “I am not a politician, but I do have a huge expertise on social problems”. Such figures would be most unlikely to stand for election and so the Lords, like the Commons, would be filled with more professional politicians, who unlike the
Lords, would be waged, thus probably increasing the expense of the chamber at a time of financial austerity. LORDS COMMITTEES are particularly held in high regard, because of the experience they can call upon, especially the LORDS COMMITTEE ON
THE CONSTITUTION, which investigates, with great perception, proposed changed to the Constitution. Clegg’s proposal, too, that Lords will not be eligible for re-election after serving 15 years, although rightly designed to protect their independence, does remove the principle of ACCOUNTABILITY which should lie at the heart of a democracy, thus undermining the principle justification for his reforms. The danger of DEMOCRATIC OVERLOAD should not be ignored either. The public has failed to vote in great numbers in recent referendums, thus undermining the legitimacy of the results. If few voted bothered to vote in elections to the House of Lords, which, judging from recent examples of public apathy is quite possible, then would the Lords, in reality, have any greater legitimacy?

45

The Lords have also proved to be impressively NON PARTISAN in rejecting controversial bills sent to them from both Labour and the Coalition. Thus, the Lords’ decision to decisively reject the 42 DAY DETENTION BILL and the SUPER CASINOS led to the BROWN GOVERNMENT ditching both policies, while, more recently, the Lords have sent back to the Commons bills on the REDUCTION IN HOUSING BENEFITS. In
2012 they voted by a majority of 142 that government proposals to charge single parents to use the CHILD SUPPORT AGENCY was wrong and in 2013 the government was defeated over its plans to allow ministers to order SECRET COURT HEARINGS in cases involving NATIONAL SECURITY. Instead, the Lords recommended, by a majority of 264-159, that judges have the final say which the Commons accepted.
At the same time, in cases of dispute, as the un-elected chamber, the Lords cannot seek to impose its will on the Commons. If both were to be elected there could, as
VERNON BOGDANOR, points out be a CONSTITUTIONAL CRISIS. For Clegg to argue that this would not be the case since, in spite of his reforms, the Lords will accrue no new powers is unpersuasive. Once the Lords has its own democratic mandate it will surely not be content to accept the primacy of the Commons and there could easily arise a situation whereby the Lords refuse to pass a Commons bill thus leading to a
GRIDLOCK that cannot occur in the present system.
Thus, to conclude, as EDMUND BURKE pointed out in the eighteenth century, the
British Constitution, should only ever be changed with the utmost reverence and when the case for reform is overwhelming. On these criteria, it is not certain that a democratically elected Lords would actually improve the way we are governed so, although an elected Lords would enjoy, at last, LEGITIMACY, whether this would actually improve law making and scrutinising at Westminster is open to a very great deal of debate.

DEVOLUTION
One of the most significant constitutional reforms that New Labour introduced was to
DEVOLVE POWER AWAY FROM WESTMINSTER TO THE REGIONS. Particularly in
SCOTLAND, by 1997, there was enormous resentment that Conservative governments governed from Westminster and yet Scotland [and also WALES and LONDON] had decisively voted Labour. Therefore DEVOLUTION was introduced in order to ensure that the regions of the UK could ELECT GOVERNMENTS THAT MORE ACCURATELY
REFLECTED THEIR POLITICAL BELIEFS.
Devolution has achieved much success. The election of a LONDON MAYOR has ensured that policies in the capital can now better reflect what Londoners want [for example the introduction of a CONGESTION CHARGE], while in both WALES and
SCOTLAND their governments have been better able to respond to what the people want. In WALES the ABOLITION OF PRESCRIPTION CHARGES was an effective response to what the public wanted, while in SCOTLAND governments have introduced highly popular measures which have responded effectively to what Scots want, such as a LIBERAL FREEDOM OF INFORMATION ACT, FREE CARE HOMES FOR

46

THE ELDERLY and the NON INTRODUCTION OF TOP UP AND TUITION FEES. In
NORTHERN IRELAND there is no doubt, too, that DEVOLUTION has been fundamental to the PEACE PROCESS since it has enabled both Nationalist and Unionist parties to be involved in government. The MARCH 2011 REFERENDUM in which WALES voted decisively for the WELSH ASSEMBLY to be given MORE POWER provides the most contemporary evidence for the success of devolution, although it is concerning that only 35.2% bothered to vote!
However, devolution has also raised very controversial constitutional issues which could damage the very fabric of the United Kingdom. Most important is the WEST
LOTHIAN QUESTION which raises the issue of why SCOTTISH MPs at WESTMINSTER can still vote on English and Welsh domestic issues, although English and Welsh MPs can no longer vote on similar domestic matters in Scotland. This suggests that Scots have more democratic influence than the English, although in a LIBERAL DEMOCRACY all voters should be equal. The fact therefore that the Scots have a parliament, the
Welsh Assembly and the English nothing has created a very UNEQUAL DEMOCRACY.
There is also the ever present concern that devolution might, rather than satisfying nationalist demands, actually lead to the BREAK UP OF THE UNITED KINGDOM. For example, since 2007 the biggest party in the SCOTTISH PARLIAMENT have been the
SCOTTISH NATIONALISTS who are pledged to an INDEPENDENT SCOTLAND and are campaigning hard for independence in the 2014 REFERENDUM.

HUMAN RIGHTS ACT [1998]
The HUMAN RIGHTS ACT [1998] incorporated into British law the EUROPEAN
CONVENTION ON HUMAN RIGHTS thereby providing British citizens with safeguards for their civil liberties. The Act has been used to safeguard civil liberties in the UK, for example in 2004 the Court of Appeal used the Human Rights Act to release FOREIGN
DETAINEES from BELMARSH PRISON who had been held there by the government using post 9/11 emergency legislation since this infringement of civil liberties was contrary to the terms of the act.
However, the impact of the HUMAN RIGHTS ACT can be exaggerated. As it is itself a parliamentary statute it therefore cannot represent a form of HIGHER or
ENTRENCHED LAW. Therefore, even if a bill being debated in parliament was deemed to be INCOMPATIBLE with the Human Rights Act it could still be enacted if there was a sufficient parliamentary majority. Similarly, it is worth noting that even though the
Belmarsh detainees were released, a subsequent act of parliament; the PREVENTION
OF TERRORISM ACT [2005] authorised the use of CONTROL ORDERS to monitor such individuals showing how parliament can still find ways of limiting our civil liberties by acts of parliament in spite of the European Convention on Human Rights. Opponents of the Act also point to those ways in which it is being used to protect the human rights of law breakers, such as the murderer of Philip Lawrence, LEARCO CHINDAMO, who cannot be deported as it would separate him from his British family and so deny him

47

a home life1. ARTICLE EIGHT of the HUMAN RIGHTS ACT which protects our RIGHT
TO A PRIVATE AND FAMILY LIFE is thus extremely controversial.

SUPREME COURT [2009] / SEPARATION OF POWERS
In 2005, the government also passed the CONSTITUTIONAL REFORM ACT which has dramatically modernized the Judiciary. Before the Act the LORD CHANCELLOR was a member of both the EXECUTIVE [he sat in the cabinet] and the LEGISLATURE [he presided over the House of Lords] but he was also the head of the JUDICIARY. This clearly breached MONTESQUIEU’S “SEPARATION OF POWERS” which is the basis of a healthy liberal democracy and so, as a result of the Act, the Lord Chancellor’s Office has now been combined with that of the JUSTICE SECRETARY, while the LORD CHIEF
JUSTICE [A NON POLITICAL FIGURE] has been put in charge of running the Judiciary and training judges. The Act has also laid down that the Law Lords now sit in their own SUPREME COURT once again highlighting the separation of Powers. An independent JUDICIAL APPOINTMENTS COMMITTEE now makes recommendations for appointment to the Judiciary, rather than the Lord Chancellor. Indeed, the
Constitutional Reform Act has even gone so far as to put into statute law that the
Judiciary must be independent of the government! As a result of these reforms, it has been suggested that JUDICIAL ACTIVISM has increased since judges [equipped with both the HUMAN RIGHTS ACT and an independent SUPREME COURT are now more likely to be prepared to confront the government in defence of our civil liberties.
However, in some ways, the significance of these judicial reforms can be exaggerated.
If the government really did want to reform the Judiciary and give it greater influence and independence it would have gone further than the introduction of the Human
Rights Act and actually CODIFIED OUR CONSTITUTION since only this would really give the Judiciary an absolute right to strike down parliamentary statute law if it conflicted with our civil liberties. It might even be regarded as retrogressive that the new Justice
Secretary [who now has many of the powers of the Lord Chancellor) is a politician.
Equally, even though we do have an independent Appointments Committee, the
Justice Secretary and Prime Minister still have a veto over who is appointed a judge!

ELECTORAL REFORM
After the 1997 General Election Labour commissioned the JENKINS COMMISSION
[named after its chairman, the former Labour Home Secretary, ROY JENKINS], to investigate the possibility of introducing PROPORTIONAL REPRESENTATION to elections to the House of Commons in order to make the UK more democratic. The
Report strongly favoured the introduction of reform; however the Labour leadership decided in favour of retaining FIRST PAST THE POST for elections to the House of
Commons for the main reason that they would have been ELECTORALLY
DISADVANTAGED by the introduction of PR for Westminster Elections; after all in
2005 LABOUR won just 35.2% of the vote giving them a 55.1% share of the seats in the Commons and a 66 SEAT MAJORITY.

48

However, a wide variety of PROPORTIONAL REPRESENTATION was introduced by
Labour for elections to other assemblies [STV in NORTHERN IRELAND, AMS in
SCOTLAND and WALES, CLOSED LIST for EUROPEAN PARLIAMENT ELECTIONS and SV for the LONDON MAYOR]. One might therefore be quite critical of Labour and suggest that they have been prepared to accept idealistic arguments for the introduction of
PR where it mattered less [Wales, Scotland, Northern Ireland, Euro Elections and
London], but where real power still lies [Westminster] they were unprepared to abandon FPTP since they were doing so well from it!

FREEDOM OF INFORMATION ACT [2005]
Before it won the 1997 General Election, New Labour was committed to OPENING UP
GOVERNMENT by introducing a radical FREEDOM OF INFORMATION ACT which would enable the public to know much more about the secret workings of government. In fact, when the FREEDOM OF INFORMATION ACT was at last passed in 2005 it changed virtually nothing since the SECURITY SERVICES WERE EXEMPT
FROM ITS OPERATION and the government could still refuse to grant requests for information if this would “PREJUDICE” government! This is, of course, a very broad term which could be used to withhold almost anything from the public!

REFERENDUMS
Since 1997, referendums have become more integral to the way in which the UK operates and this has given the public a greater influence over MAJOR
CONSTITUTIONAL CHANGES. For example, all the devolved assemblies [SCOTLAND,
WALES, NORTHERN IRELAND and LONDON] were introduced as a result of a positive
“YES” vote in referendums, while cities and towns throughout Britain have called their own referendums on whether or not to have elected mayors. The public, similarly, voted for FPTP rather than AV in the 2011 referendum, while in 2014 the Scots will have their own referendum on SCOTTISH INDEPENDENCE. Consulting the public on a major constitutional issue has thus become a convention in our constitutional arrangements. HOW SUCCESSFUL HAS THE COALITION’S CONSTITUTIONAL
REFORM PROGRAMME BEEN?

“A hugely ambitious programme so that we transform the landscape so we achieve a better balance between Parliament and the Executive, clean, transparent politics and power handed back to the people”. [Nick Clegg]

49

The Coalition Government’s constitutional reform programme was designed to reinvigorate enthusiasm for politics by increasing the DEMOCRATIC ACCOUNTABILITY of government and giving more power to the people, thereby creating a MORE
CONSULTATIVE / MORE PARTICIPATORY DEMOCRACY.
Back in 2010, the government was, therefore, committed in FAVOUR OF MORE
ELECTED MAYORS, a DEMOCRATICALLY ELECTED HOUSE OF LORDS as well as
ELECTED POLICE COMMISSIONERS. The Liberal Democrats also insisted that there be a REFERENDUM on AV in order to give the voters more choice when they vote, while the government reduced the Prime Minister’s prerogative by introducing FIXED TERM
PARLIAMENTS so the Prime Minister can no longer choose the date of the General
Election. No more power would be centralized in BRUSSELS without a REFERENDUM, while the public would be given POWER OF RECALL over CORRUPT MPs. On the other hand, in order to strengthen government, it was decided that the government could now only lose a parliamentary VOTE OF CONFIDENCE if 55% of the Commons vote against it. These reforms have though, in reality, been very unsuccessful as a result of public opposition and the uneasy relationship over constitutional reform between traditionalist Conservatives and progressive Liberal Democrats.

HOUSE OF LORDS REFORM
The Coalition was, initially, in favour of an 80% ELECTED, in order to make the LORDS
DEMOCRATICALLY LEGITIMATE and so ACCOUNTABLE to the British people. This would also make it better able to REPRESENT the British people. As NICK CLEGG put it, “The time for talk is over. People must be allowed to elect those who make the laws of the land”. This though, as we have seen above, is highly controversial and there was much concern from constitutional theorists, such as VERNON BOGDANOR, that these reforms could lead to GRIDLOCK between the Lords and Commons as both claim LEGITIMACY.

Plans to reform the House of Lords are being abandoned after Conservatives "broke the coalition contract", Lib Dem leader Nick Clegg has announced. Agreement on an elected Lords could not be reached with Tory opponents, he said, and the plans would be shelved rather than face a "slow death". As a result, he said Lib Dem MPs could not now support Conservative-driven changes to Commons boundaries in 2015.Labour said the Lords climb down was a "humiliation" for the coalition. Changes to the Lords would have seen 80% of peers elected and the total number of members halved. An elected Lords is a long-cherished goal of the Lib Dems but one opposed by many
Conservatives - more than 90 of whom defied the government in a vote on the issue in July. BBC News, 6th August 2012

50

CHANGING CONSTITUENCY BOUNDARIES / REDUCING THE NUMBER OF
MPs
The way in which MPs are elected is unfair with some MPs representing huge constituencies [such as the 100,000 inhabitants of the ISLE OF WIGHT and others tiny constituencies [such as the 22,000 voters of the WESTERN ISLES]. Therefore, the coalition is going to ROUGHLY EQUALIZE ALL CONSTITUENCIES to between 72,000 –
80,000 VOTERS so that such dramatic discrepancies no longer exist. This will also enable the number of MPs to be reduced from 650 to 600 making a considerable saving to the cost of our democracy. Critics of these reforms have though pointed out that it would be unwise to undertake such reforms before the electoral register is updated, while fewer backbench MPs will actually make it more difficult to hold the government accountable for its actions.

Nick Clegg has confirmed rumours that the government has dropped a bill which would have introduced elected peers to the House of Lords and dramatically reduced its size, something he said he was forced to do after Tory backbenchers and the Labour party refused to back a crucial vote on the legislation last month. As a result, the deputy Prime Minister said he would instruct his MPs to vote against another bill which would have cut the number of MPs by redrawing the constituency boundaries
– a change opposed by many of the 57-strong Lib Dem MPs since it is expected they would lose 15 or more seats. In a statement to a news conference in London, Clegg was scathing about the bill's opponents, referring to them as "an establishment resistant to change [and] vested interests who benefit from maintaining the power of political patronage, while keeping the power of people out".
BBC News, 6th August 2012

FIXED TERM PARLIAMENTS / 55% RULE
A dramatic attempt to reduce the CONTROVERSIAL ROYAL PREROGATIVE, now mostly exercised by the PRIME MINISTER, has been the decision to remove Prime
Ministers’ right to call a General Election at whatever date they wish. As NICK CLEGG puts it, “The Government is determined that no government should be able to play politics with the date of an election”; which is what, for example, GORDON BROWN did, in 2007 when he considered calling an early General Election only to back down at the last moment. FIXED TERM FIVE YEAR PARLIAMENTS thus significantly reduces
Prime Ministerial power, thereby ensuring that no longer can Prime Ministers time a
General Election when they think they are most likely to win it! This has though been criticised since it may encourage “LAZY OPPOSITION” since, when the date of the
General Election was in doubt, the Opposition had continually to be prepared to fight

51

an Election and so had to be continually scrutinising government policy and developing manifesto commitments.
More controversial is the attempt to make it more difficult for parliament to bring down a government by raising the necessary % to 55%. This will make governments more stable, although it has also been suggested by many, such as JACK STRAW that this is “fundamentally undemocratic” since if a government has lost the confidence of parliament it has therefore lost the support of the country and should therefore resign allowing for fresh a General Election.

POWERS OF RECALL
Especially following recent scandals concerning MPs there has been a lot of concern about how well represented we are. The Coalition was thus committed to introducing legislation whereby if an MP is proved to have acted CORRUPTLY then his or her constituents could PETITION for an IMMEDIATE BY ELECTION to be held in order to allow them to re-elect a new MP if they so wish. This would certainly dramatically increase our representation making MPs significantly more accountable to their constituents between elections; however it is very unlikely that this reform will now be enacted this parliament.

It was the revelations over MPs’ expenses in 2009 that propelled the “right to recall” to the fore. So much so, in fact, that, the following year, both the Tory and Liberal
Democrat election manifestos promised to introduce one, and the commitment was written into their subsequent Coalition Agreement. With the exposé of Patrick Mercer
– itself just the latest on a growing list of lobbying-related scandals – only adding grist to the mill, the draft Bill published shortly before Christmas was more than welcome.
The Tory half of the Coalition is having second thoughts, though. As The Independent reports today, a tussle in the “quad” at the heart of the Government could see the right-to-recall Bill dropped from the Queen’s Speech. Given that this is the last such speech before next year’s election, parliamentary long grass beckons.
The Coalition’s term of office is littered with constitutional changes promised and either thrown out or abandoned. From proportional representation to redrawn boundaries to Lords reform, all efforts at improvement have fallen foul of specialinterest groups, short-term politicking or both. The absence of a mechanism to sack an MP is not only one of the more glaring flaws in our system, it is also one of the easiest to resolve. Yet while the current situation continues, it contributes to the sense of powerlessness draining public engagement with politics. The Liberal Democrat half

52

of the quad must push hard for the Bill’s inclusion in the Queen’s Speech. And the
Prime Minister and Chancellor must rethink their priorities.
The Independent, 13th February 2014

MAKING LOBBYING TRANSPARENT
One of the most significant THREATS TO REPRESENTATIVE DEMOCRACY involves the disproportionate influence that POLITICAL LOBBYISTS can wield in Parliament. This therefore means that MPs can end up being more influenced by political lobbying firms than by their constituents. DAVID CAMERON has actually called this the next parliamentary scandal waiting to happen and so, in order to better protect our representative democracy, NICK CLEGG is promising “to ensure transparency by introducing a statutory register of lobbyists”. So far, though, the result of this has been the LOBBYING BILL which has been criticised for over impacting on more vulnerable OUTSIDER GROUPS, rather than targeting the Elitist Groups that undermine democracy the most.

Charities have expressed their disappointment after the government's controversial
Lobbying Bill squeezed through the House of Lords on Tuesday, despite fears it could limit freedom of speech in the run-up to an election. Many voluntary groups and trade unions have been campaigning against the legislation, branding it the "gagging bill", because it would put new restrictions on how much they can spend while campaigning on political issues before an election. Ministers were forced to back down in several areas after peers rejected key parts of the legislation. Graham Allen, the Labour MP in charge of scrutinising the bill, accused ministers of presenting a "dog's breakfast". But on Tuesday the government won votes on two amendments and tied on another, meaning the bulk of the original proposal will pass into law. Liz Hutchins, senior campaigner at Friends of the Earth, said it was a "bad day for anyone wanting to protect the environment, save a hospital or oppose tuition fees".
The Guardian, 28th January 2014

RESOLUTION OF THE WEST LOTHIAN QUESTION
The Coalition has also established a Commission to resolve the West Lothian Issue since Scottish, Welsh and Northern Irish MPs can vote on English issues, but English

53

MPs cannot vote on affairs outside England. This means that, in terms of passing laws,
English MPs are under-represented and Scottish, Welsh and Northern Irish MPs

The UK government has announced the panel of experts who will look at issues raised by the so-called West Lothian Question. The commission will be chaired by former
House of Commons clerk, Sir William McKay. There has been a long-running debate about whether Scottish, Northern Irish and Welsh MPs should vote on legislation that affects only England. The commission has been tasked with recommending new ground rules.
BBC News, 17th January 2012

MORE LOCAL DEMOCRACY
The Coalition is committed to encouraging MORE DEMOCRATIC PARTICIPATION AT
ALL LEVELS in order to re-engage with the public. Therefore, the Coalition has introduced ELECTED POLICE COMMISSIONERS, as well as giving the voters in a number of big cities the RIGHT TO VOTE IN REFERENDUMS on whether they want
ELECTED MAYORS. Both initiatives have though been undermined by PUBLIC APATHY and INDIFFERENCE.

The media is reflecting on the low turnout at the Police Crime Commissioner (PCC) elections, which saw fewer than 15% of voters turning out in the 41 English and Welsh police areas, a peacetime low. The commissioners will be in post until 2016 and will have the power to set policing priorities, budgets and also to hire and fire chief constables. According to the Independent, “The plan for Police and Crime
Commissioners was central to Mr Cameron's early political vision. In opposition, his
"big idea" was the redistribution of power from the centre, and the election of police commissioners was cited as a key example, along with the revival of elected mayors.
In practice, there are few mayors, and police chiefs have now been elected on a wave of indifference”.
BBC News, 18th November 2012

David Cameron's plans to replace local council cabinets with directly elected mayors have been rejected by voters in nine English cities. Birmingham, Manchester,
54

Newcastle, Nottingham, Sheffield, Wakefield, Coventry, Leeds and Bradford voted
"no" to the idea, championed by ministers, but Bristol was in favour and Doncaster voted to keep its mayor. The average turn out in the mayoral referendums was just
24%.
BBC News, 4th May 2012

The introduction of E PETITIONS, by the Coalition, whereby the public can DIRECTLY petition for an issue to be debated at Westminster, has also been controversial. This is aimed at making the legislature significantly more RESPONSIVE TO THE
ELECTORATE, PARTICULARLY BETWEEN ELECTIONS when, as LORD HAILSHAM put it, the government is danger of becoming “AN ELECTIVE DICTATORSHIP”. Already, E
Petitions have provoked debate in the Commons on issues such as whether there should be a referendum on our membership of the EU, fuel tax, limits on Bulgarian and Bulgarian immigration and the publication of official documents relating to the
Hillsborough Disaster. A “rant” on Facebook that went viral garnered 165,000 signatures for an e petition urging action by the government to “cap” holiday price rises during school vacations.

MPs have suggested "staggering" school term dates and giving teachers more discretion on absences during a debate on the cost of holidays. The debate was sparked by an E Petition which calls for price caps to stop holiday firms "cashing in" on the school holidays. No MP backed price regulation during the Westminster Hall debate, and the government also rejected the idea. But term staggering and more power for schools received widespread support. Liberal Democrat MP John Hemming, who requested the debate, said the issue was a "considerable concern" to many people. BBC News, 24th February 2014

However, they have also proved controversial with not all E Petitions being granted a full debate in the House of Commons with some simply being debated in
WESTMINSTER HALL. There is also no necessity for there to be a bill to be introduced on an issue raised in an E Petition, while a significant number of E Petitions have been
POPULIST, such as those against Romanian and Bulgarian immigration, denying

55

benefits to convicted rioters and demanding a referendum on membership of the EU] or successful because they are associated with a POPULAR CELEBRITY.

Arguments against e-petitions range from the high-mindedly constitutional to the cynical. Ever since Edmund Burke, MPs have fiercely defended their role as independent-minded consciences, free to vote as they see fit, rather than as the mandated human tools of their electorates. Plenty would argue that the slow-moving, formal nature of parliamentary politics has saved Britain from foolish populist spasms and barbarities. And after all, even 100,000 people are only a tiny fraction of the public. E-petitions, being presumably easiest to arrange around populist topics (Europe, hanging) might well be seen as the thin end of the wedge, making parliament coarser and less thoughtful. Because already-existing organizations (the church, the National
Trust, Unison) might find it easier to garner large numbers of signatures, these petitions could also become a way for vested interests to further advance their causes.
Finally, plenty of people in politics see e-petitions as obvious window-dressing, an occasional nod to public opinion which, because they are debated in backbench time, not government time, will change nothing. They certainly cannot mandate the government. The Guardian, 23rd October 2011

Online petitions need to attract large numbers of signatures on their first day if they are to stand any chance of success, researchers have said. In a forthcoming book, a research team from Oxford University will show that 99.9% of e-petitions fail to reach

56

the 100,000 signatures needed to trigger the prospect of a Commons debate. Nearly all e-petitions are doomed to become "digital dust", they write. “After 24 hours, a petition's fate is virtually set”, the team concludes. Prof Helen Margetts, the Director of the Oxford Internet Institute at the University of Oxford, collaborated with a computer scientist and a physicist to analyse the vast amounts of data produced by epetitioners. Successful petitions are likely to have been launched, or at least bolstered, by extroverts with "larger than average online social networks", they suggest. The top badger petition was submitted by Queen guitarist and animal rights campaigner, Brian
May. If an e-petition gets 100,000 signatures, a parliamentary committee will consider whether it merits a Commons debate.
BBC News, 4th September 2013

HOW SUCCESSFUL HAS THE COALITION’S CONSTITUTIONAL
REFORM PROGRAMME BEEN? [40]
The Coalition’s reform programme was aimed at making the United Kingdom significantly more democratic, with public bodies being made much more accountable to the public. Thus, leading elements of the reform programme included an elected
House of Lords, E Petitions, the introduction of Power of Recall, the election of Police
Commissioners and referendums on whether or not introduce elected mayors. The government was also eager to make government fairer by equalising the size of constituencies, reducing the number of MPs, making lobbying more transparent and ending the right of the Prime Minister to determine the date of the General Election by introducing Fixed Term Parliaments. However, the reform programme has achieved much less success than its leading supporter, Nick Clegg, had hoped, due to a combination of public apathy and divisions within the coalition between traditionalist Conservatives and more progressive Liberal Democrats.
The Coalition’s proposal to reform the HOUSE OF LORDS has been a significant failure.
Liberal Democrats had argued that the Lords needed to be given democratic legitimacy, but there was so much opposition from more traditionalist backbench
Conservatives, who argued that the existing Lords are already a highly successful revising chamber, based on the accumulated wisdom it contains. As a result of this opposition, Clegg has admitted that he cannot proceed with the reforms. In response to this defeat the Liberal Democrats, consequently, refused to support
PARLIAMENTARY BOUNDARY REFORM designed to create more numerically equal constituencies, thereby providing constituents with fairer representation.
E PETITIONS have, though, been more successful and a number have been debated in parliament, ranging from demands that there be a public enquiry on the Hillsborough
Disaster to demands for a referendum on the UK’ membership of the EU and restrictions on Bulgarian and Romanian immigration. E petitions can, therefore, create a much greater sense of connectivity between the public and parliament and

57

contribute towards the “tension release” that Lord Norton refers to. However, these reforms are also controversial. E Petitions do not have to be debated in the House of
Commons; they can be relegated to Westminster Hall, while many of them have been populist, while there is a concern that those associated with celebrity endorsement are more likely to gain more votes which is hardly democratic.
POWER OF RECALL was supposed to be another way of re-engaging the public with politics, by enabling constituents to dismiss a corrupt MP without having to wait for the next General Election to vote them out of office. However, MPs are fearful that it would undermine the authority of parliament and, due to lack of support from government ministers [who are more interested in focusing on the economy] legislation introducing Power of Recall is unlikely to be introduced during this parliament. The LOBBYING BILL is, similarly, controversial since by limiting what groups can spend on campaigns, it will interfere with freedom of speech and disproportionately penalize outsider groups rather than elitist groups.
The government’s plans for FIXED TERM PARLIAMENTS has generally been seen as providing an appropriate way of reducing the excessive powers of the Prime Minister, although critics suggest that it creates a lazy government and Opposition since, as they know the date of the General Election, they will not have to continually engage with the public. The new rule that a VOTE OF CONFIDENCE in the government can now only be achieved with a 55% vote in the Commons could be seen as politically motivated and fundamentally undemocratic since, in a parliamentary system, a vote of confidence should be successful with 50% plus one vote if parliament is to truly represent the will of the public.
Reforms designed to give the public more influence over decision-making have also not achieved their objectives. The introduction of ELECTED POLICE COMMISSIONERS failed to generate any enthusiasm amongst the public and since 85% of the public did not vote for them, their democratic legitimacy has been called into question.
Similarly, opportunities to have ELECTED MAYORS in some of England’s and Wales’ biggest cities have been rejected by almost all of them on, on average, just 24% of the vote; once again suggesting that, although in theory, this was supposed to regenerate enthusiasm in politics, in reality the effect has been the opposite.
Thus, the Coalition’s reform programme has achieved rather less than it was ambitiously planned to, as a result of coalition divisions and public apathy. E Petitions have, at least in theory, made parliament more open to the public, but other reforms have either been abandoned, such as Lords reform, or have failed in their democratic objectives, such as elected police commissioners, elected mayors and more stringent rules on lobbying. To say then that the British Constitution has been dramatically modernized, as was promised back in 2010, would be a gross exaggeration.

TO WHAT EXTENT HAS CONSTITUTIONAL REFORM GONE FAR
ENOUGH? [40]
58

When it was defeated in the 2010 General Election Labour had already significantly modernized the UK Constitution by introducing devolution, removing the hereditary peers from the House of Lords, introducing electoral reform as well as a Freedom of
Information Act, reforming the Judiciary and incorporating the European Convention on Human Right into British law. It has though been argued that these reforms lacked an overall sense of cohesion and were so piecemeal that it is now up-to the Coalition to complete the work begun by Labour in 1997. There certainly are ways in which the
UK Constitution could be further reformed [in particular by encouraging GREATER
DEMOCRATIC PARTICIPATION in order to further develop the “BIG SOCIETY”] and yet we also need to beware of losing the many advantages of our existing constitution by legislating too far and too quickly.
It has, for example, been suggested that the UK now requires a CODIFIED
CONSTITUTION since this will better guarantee our civil liberties from the government. However, we should not forget that our UNCODIFIED CONSTITUTION had the FLEXIBILITY to cope with a COALITION GOVERNMENT, while, although the flexibility of our un-codified constitution did allow a dramatic reduction of our civil liberties under Labour it has equally well enabled NICK CLEGG to restore many of our civil liberties in his “GREAT REPEAL ACT” such as the decision to discontinue IDENTITY
CARDS, reform CONTROL ORDERS and reduce CCTV. Suggestions that the HUMAN
RIGHTS ACT does not go far enough in protecting our civil liberties and that our civil liberties needs to be protected by a codified constitution also need to be treated with caution. After all, because it is an Act of Parliament, the Human Rights Act does not threaten the democratic basis of our Constitution, while if there was to be a fully
Codified Constitution then it would make the final arbiters of our democratic freedoms those who drew up the Constitution and the un-elected judges who would then interpret it, rather than our elected representatives in parliament.
Equally, plans for a FULLY or PARTIALLY ELECTED LORDS need to be treated with caution. The existing system is not democratic and does allow too much scope for
POLITICAL PATRONAGE and yet by electing the Lords we run the risk of losing the
WISDOM of Lords, such as LORD SUGAR in the world of business or LORD WINSTON in Science, who have achieved great things in many different walks of life and would not be prepared to put themselves up for election. There is also the danger, as
VERNON BOGDANOR has forcibly pointed out, that an elected Lords might then seek to challenge the primacy of the Commons, thereby creating a CONSTITUTIONAL
GRIDLOCK that has never, fortunately, existed in our Constitution.
Further reform of WESTMINSTER ELECTIONS is also controversial since FPTP has many advantages such as the firm connection it establishes between a constituency and its
MP, as well as the way in which it usually establishes a firm government that can be held ACCOUNTABLE for its MANIFESTO COMMITMENTS at the next General Election.
PROPORTIONAL REPRESENTATION would, though be likely to make COALITIONS more likely [making it easier, as we have seen with Top Up Fees, for governing parties to abandon their manifesto commitments], while the prospect of extremist parties such as the BNP benefiting from these sorts of reforms is also worrying; indeed one of

59

the advantages of FPTP has been that, as well as establishing strong accountable governments, it has also generally stopped extremist parties from gaining influence at
Westminster.
However, this is not to say that we should be content with everything that has so far been achieved. It is surely right that WALES has been given a REFERENDUM to allow its people to vote in favour of having more similar powers to the SCOTTISH
PARLIAMENT. It is also important that the WEST LOTHIAN QUESTION be finally resolved so that Scottish MPs at Westminster do not have disproportionate influence over decision making, thereby undermining one of the key principles of a LIBERAL
DEMOCRACY which is that ALL VOTERS SHOULD HAVE EQUAL INFLUENCE. A step, too, in the right direction were plans to EQUALIZE THE SIZE OF CONSITUENCIES to between 72,000 – 80,000 which would encourage more equal representation, while, in the process, reducing the number of Welsh and Scottish MPs who have tended to be over represented at Westminster. Unfortunately, though, divisions within the coalition mean that this useful reform will not be implemented this parliament.
The coalition’s attempts to INCREASE DEMOCRATIC PARTICIPATION and to give us
MORE INFLUENCE OVER OUR REPRESENTATIVES has also encouraging. The introduction of E PETITIONS and the further encouragement of REFERENDUMS over issues such as ELECTED MAYORS, as well as the ELECTION OF POLICE
COMMISSIONERS are designed to make us a MORE VIBRANT DEMOCRACY, while ensuring that our REPRESENTATIVES have to RESPOND MORE TO OUR WISHES. Plans too to make the influence of POLITICAL LOBBYISTS MORE TRANSPARENT would also help to restore trust in our representative democracy, while a more all encompassing
FREEDOM OF INFORMATION ACT, such as that which Scotland has, would close that still enormous loop hole whereby the government can withhold information from its public if it can prove that disclosure would “PREJUDICE” government.
Unfortunately, though, many of these reforms have not achieved the desired success
– the LOBBYING BILL has been criticised for limiting freedom of speech, while the very poor turn-out in recent referendums over elected mayors and the police commissioner elections have meant that the results lack democratic legitimacy and there are serious concerns whether such elections should continue if so few are prepared to vote. POWER OF RECALL which would have given constituents greater influence over their MPs seems, too, to have been shelved, at least for the time being.
Thus, to conclude, it would be very complacent to say, as some Conservatives, have that constitutional reform has, indeed, gone far enough. Many constitutional reforms remain HALF FINISHED, such as its rather ineffective FREEDOM OF INFORMATION
ACT, as well as the still UNEQUAL NATURE OF DEVOLUTION and so there is a very good case for taking them further. Equally, politicians have ducked a number of significant issues, such as giving voters more influence over their REPRESENTATIVES through the POWER OF RECALL, while CONSTITUENCIES are still vey unequally divided. 60

There are though some very significant areas of reform, such as the reform of the
HOUSE OF LORDS or the CODIFICATION OF THE CONSTITUTION where further change might actually end up being counter-productive by, for example, confusing where democratic legitimacy lies within parliament and reducing the sort of flexibility that has not only allowed the formation of a coalition government and Nick Clegg’s restoration of a number of key civil liberties. E PETITIONS have also raised fears of
POPULISM, while giving power back to the public in REFERENDUMS and through the election of POLICE COMMISSIONERS has back-fired since so few have voted that the democratic legitimacy of the results has been questioned.
In short, in true BURKEAN fashion we should not set our face against any reform of the Constitution; but we certainly should ensure that those reforms we do introduce will improve the Constitution rather than undermining the sort of strengths that have enabled it to so positively evolve for so many generations.

TO WHAT EXTENT HAVE CONSTITUTIONAL REFORMS
INTRODUCED SINCE 1997 MADE THE UK MORE DEMOCRATIC?
[40 MARKS]
Since 1997, more constitutional reforms than ever before have been introduced by both Labour and the Coalition designed to make the UK more democratic by making government more accountable for its decisions and providing the public with greater opportunities to participate in politics. Some of these reforms, such as devolution and the greater use of referendums have certainly dispersed political influence to the public, while restraints on the power of the Prime Minister and the introduction of the
Human Rights Act have helped to reduce the arbitrary power of government.
However, all of the reforms are controversial and it could be questioned to what extent they have really made the UK more democratic.
House of Lords reform, for example, was ultimately designed to culminate in an elected Lords, once the Hereditary and Life Peers were finally removed from the Upper
House. However, the second stage of this reform programme never happened and so it could be argued that this reform has actually made the UK less democratic since the party leaders now have more control over appointments to the Lords than ever before. Devolution and elected mayors have been, similarly, controversial since, although they have encouraged self determination by dispersing power to the public, devolution has raised the still unresolved West Lothian Issue, since Scottish and Welsh
MPs still wield influence over English domestic affairs, but English MPs have lost influence in the affairs of Scotland and Wales. This, therefore, creates a very unequal democracy, while the greater use of referendums to legitimize important constitutional issues has also been controversial since many important decisions have been decided by a very small % of the public bothering to vote [just 24% in the recent mayoral elections] so it could be questioned whether too much democratic overload has undermined the legitimacy of the results.

61

E Petitions have generally been viewed as a way of successful way of engaging with the public and a number of issues, important to the public, have been debated in parliament as a result of e petitioning. The government, for example, in response to
E petitions launched a public enquiry into the Hillsborough Disaster, while E petitions have also been heard on issues such as whether there should be EU Referendum, the implications of Bulgarian and Romanian immigration, the badger cull and whether travel firms can increase their prices during the school vacation. However, E Petitions can also be an excuse for populism; most of those which have raised 100,000 signatures have been reactionary, while it has also been argued that E Petitions are more likely to give influence to popular celebrities and the press since over 99% of E
Petitions fail to achieve any Internet recognition. Equally, E Petitions do not guarantee a government response; the issue can simply be debated in the House of Commons or
Westminster Hall and then shelved so, for some critics, E Petitions, are simply window dressing. In order to guarantee our liberal democracy, the Human Rights Act was also passed, while the Separation of Powers was guaranteed by the establishment of an independent Supreme Court and the Freedom of Information Act was also introduced by the Blair government to provide more open government. Certainly the incorporation of the European Convention on Human Rights into British law has provided us, for the first time, with a legal definition of our civil liberties which has encouraged greater judicial activism in defence of our civil liberties. However, critics of the Human Rights Act point out that it is not a higher law and, since no parliament may bind its successor, the Human Rights Act could be repealed, while parliament could still enact legislation which was in defiance of the Human Rights Act and the judges could only issue a formal statement of incompatibility. The fact, too, that it gives an external court in Strasbourg influence over British legal affairs, without it being accountable to the British public has been seen, by some, as being undemocratic. The Freedom of Information Act has certainly opened up government, for example by highlighting the Expenses Scandal in parliament, but it is quite a limited reform since the government can still refuse to release information if it would
“prejudice” government; rather a catch-all phrase which is relatively easy to prove.
Limits on the royal prerogative, exercised by the Prime Minister have though been significant in making the UK more democratic. Most importantly, a convention has arisen whereby the Prime Minister will consult parliament before taking the country to war. This was thus the case when parliament refused to authorise military action in Syria and has made the Prime Minister much more accountable to the will of parliament. Fixed term parliaments have also shifted authority away from the Prime
Minister thus making the UK more democratic.
Thus, to conclude, there have been a great number of constitutional reforms and yet it is debatable to what extent they have noticeably guaranteed our civil liberties, successfully dispersed power to the public or made the government more accountable. Since we do not possess a codified constitution, parliament is still sovereign and can pass quite draconian legislation, like the introduction of Secret
Courts, in spite of the Human Rights Act, while the public is still disengaged from

62

“village Westminster” and reforms like the House of Lords have actually increased the patronage power of the party leaders. Reforms such as giving constituents the power of recall have been quietly shelved, too, so, in spite of the good intentions of both
Labour and the Coalition, little has actually been achieved in making the UK a more open liberal democracy with a more participatory electorate.

2. PARLIAMENT
KEY CONCEPTS: PARLIAMENT, WESTMINSTER MODEL, REPRESENTATIVE
AND RESPONSIBLE GOVERNMENT, PARLIAMENTARY GOVERNMENT,
PRESIDENTIAL GOVERNMENT, FUSION / SEPARATION OF POWERS,
BICAMERALISM, ACCOUNTABILITY

CONTENT EXPLANATION:
Legislatures and executives – a knowledge and understanding of the different relationship between legislatures and executives in parliamentary and presidential systems of government, and an awareness of the advantages and disadvantages of each.
Role of parliament – a knowledge and understanding of the composition, role and powers of the House of Commons and the House of Lords, and an awareness of the functions of Parliament and how effectively it discharges them, including an awareness of the relationship of Parliament to the European Union and devolved assemblies (A detailed knowledge of the workings of parliament is not necessary).
Reforming Parliament - a knowledge and understanding of recent and proposed reforms of Parliament, including an awareness of their implications and alleged benefits or drawbacks.

COMPOSITION, ROLE AND POWERS OF THE HOUSE OF
COMMONS
The House of Commons is an ELECTED CHAMBER which means that it therefore enjoys
DEMOCRATIC LEGITIMACY. It is composed of 650 MPs each of whom have been elected to represent a constituency. As the elected Chamber in parliament it therefore has SUPREMACY and the Commons may thus pass any bill that they wish and the Lords may only delay it becoming law. The Executive can therefore only govern if it retains the CONFIDENCE OF THE HOUSE OF COMMONS. If it loses a VOTE
OF CONFIDENCE, it has no option but to resign thus, probably, provoking a General

63

Election, as JAMES CALLAGHAN was forced to do in 1979. Given that there are two
Houses of Parliament, the system of parliamentary government at Westminster is known as “BICAMERAL”.

COMPOSITION, ROLE AND POWERS OF THE HOUSE OF LORDS
The House of Lords comprises FOUR types of Lords. The vast majority of members of the Lords are LIFE PEERS. These have been appointed to the House of Lords by the
Prime Minister on his own recommendation and that of the other party leaders; while a smaller number of PEOPLES’ PEERS have been appointed by the HOUSE OF LORDS
APPOINTMENTS COMMISSION. There are also still 92 HEREDITARY PEERS, who survived the removal of most of their fellows in 1999; while the LORDS SPIRITUAL, the
26 BISHOPS OF THE CHURCH OF ENGLAND, represent the spiritual realm in parliament. Since it is not elected and therefore DOES NOT ENJOY DEMOCRATIC LEGITIMACY the powers of the Lords are INFERIOR to those of the House of Commons. This means that, as a result of the 1949 PARLIAMENT ACT, all they can do to proposed legislation that they disapprove of is SUGGEST AMENDMENTS and DELAY IT FOR ONE YEAR.
They cannot though do this to a BUDGET, while, according to the SALISBURY
CONVENTION, they will not oppose proposals that were in the MANIFESTO that the governing party was elected upon.

Peers have accepted government plans to reform lobbying and charity campaign spending, avoiding a new stand-off with MPs by just one vote. The Lords had inflicted three defeats on ministers during the passage of the Transparency of Lobbying, NonParty Campaigning and Trade Union Administration Bill. MPs overturned all three amendments. Since the changes were not reinstated when the bill returned to the
Lords, it will now become law. One amendment resulted in a tied vote of 245 to 245, a highly unusual scenario in which the amendment falls as it is deemed not to have been positively agreed. A Friends of the Earth spokeswoman said the charity was
"bitterly disappointed" by the development. "This is bad day for anyone wanting to protect the environment, save a hospital or oppose tuition fees," she said.
BBC News, 28th January 2014

However, as well as being able to amend and delay legislation for a year the Lords do have the RIGHT TO VETO any attempt by the Commons not to call a General Election; while a JUDGE can also only be removed for bringing his profession into disrepute with the consent of both the Commons and the Lords. In spite of its limitations, the Lords do though still play an important parliamentary role:

64

Given that the Lords have a wealth of experience, the AMENDMENTS that they suggest to bills can be taken very seriously by the government, especially as these amendments are generally made without an obvious party bias.
On some occasions, when the Lords have REJECTED A CONTROVERSIAL BILL, the government have taken notice and withdrawn it appreciating that the Lords may well be articulating public concern or outrage. This happened when the Lords rejected plans for a SUPER CASINO in MANCHESTER and the 42 DAYS IMPRISONMENT
WITHOUT CHARGE FOR TERROR SUSPECTS and, on both occasions, the government quietly shelved their plans. More recently the Lords have rejected the ANTI SOCIAL
BEHAVIOUR, CRIME AND POLICY BILL because it would have made it much easier to issue Anti Social Behaviour Orders by reducing the criteria from action likely to cause
“HARRASMENT, ALARM OR DISTRESS” to “CONDUCT CAPABLE OF CAUSING
NUISANCE OR ANNOYANCE TO ANY PERSON”. It also amended the JUSTICE SECURITY
BILL so that the Judges, not only the government, would have to authorize a SECRET
COURT in matters involving NATIONAL SECURITY. The Lords have also frustrated the government by rejecting a private member’s bill to legislate for an EU REFERENDUM after the next General Election.

David Cameron has pledged to get behind a fresh attempt to get an EU referendum bill into law after legislation was killed off by peers. The House of Lords voted not to spend more time debating Tory MP James Wharton's private member's bill. Its passage through Parliament had been delayed by Lib Dem and Labour blocking tactics.
The Prime Minister says he is committed to holding an in-out referendum in 2017 whether a bill is passed or not. But he said he was prepared to use the Parliament Act
- a little-used piece of legislation that asserts the primacy of the Commons - to force it on to the statute books. The Prime Minister blamed Labour and the Liberal
Democrats for the failure of the EU Referendum Bill. “Today the Labour Party in the
House of Lords voted to block our bill that would have ensured a referendum on
Britain's EU membership by the end of 2017”, Mr Cameron said. “This is disappointing news for all of us, but we are not going to give up in our efforts to turn our referendum commitment into law. Far from it. After all, we succeeded in passing it through the
House of Commons - a huge achievement. We are going to try to reintroduce the same bill in the next session of Parliament and, if necessary, rely on the provisions in the
Parliament Act to stop Labour and Liberal Democrat peers killing the bill once again"
BBC News, 31st January 2014

House of Lords SELECT COMMITTEES are also particularly well-regarded because of the informed membership they can claim. The recommendations that they suggest are, therefore, often taken very seriously by government. The Lords Select
Committees on AIDS has thus urged greater focus on PREVENTITIVE MEASURES, while

65

the Lords Select Committee on OLYMPIC LEGACY recommends that a minister be appointed to ensure that the momentum behind SPORT as a way of building up individual and social well-being is not abandoned. The House of Lords ECONOMIC
COMMITTEE, which includes two former Chancellors of the Exchequer and a former
Governor of the Bank of England, has also published a highly influential report questioning whether IMMIGRATION has had a POSITIVE IMPACT on the UK economy, as is generally asserted. It is currently investigating the potential ECONOMIC IMPACT of SCOTTISH INDEPENDENCE. “The House of Lords Economic Committee has said independence would have a damaging effect on higher education and research in
Scotland. The committee report said the Scottish government’s proposals to make students from the rest of the UK pay tuition fees, while allowing free access for students from the rest of the EU “would not be legally sustainable” if Scotland became independent. It said that based on current student numbers it would cost £150 million for Scotland to treat UK students the same as those from the EU. The report also found that Scottish universities currently received 50% more in research grants from the UK
Research Council than they would if allocation of funding was based on population share. It said the Scottish government must make clearer how it would deal with the loss of financial support” [BBC News, 2013]

Lords Select Committees do not shadow the work of government departments but are more thematic in their remits. They can take advantage of the experience of their members. Many members of the House of Lords have been appointed to the
Upper House because they have years of experience or have excelled in a particular field. There are five major Lords Select Committees specializing in Science and
Technology, Economic Affairs, the Constitution, Communications and the European
Union and each may appoint its own specialist sub committees. Ad hoc committees are regularly set up, too, to investigate other particular matters decided on by the
House.
Parliament.uk

Important PRIVATE MEMBERS BILLS can also originate in the HOUSE OF LORDS, such as, currently LORD FALCONER’S to legalise ASSISTED SUICIDE FOR THE TERMINALLY
ILL.

The legislation of assisted suicide has moved a significant step closer after the
Government made clear that it would not stand in the way of a change in the law.
Conservative and Liberal Democrat MPs and peers – including Coalition ministers – will be given a free vote on a Bill that would enable doctors to help terminally ill patients to die, The Telegraph can disclose. A Bill drawn up by Lord Falconer, a former
Labour Lord Chancellor, to legalise “assisted dying” – allowing doctors to prescribe a lethal dose of drugs to terminally-ill patients – is before the House of Lords. Peers are expected to vote on the plans in the next four months. If the Bill is supported there, it will then pass to the Commons where some MPs say they have detected growing

66

support for the move – influenced by opinion polls suggesting that up to three quarters of the public would support a change in the law.
Daily Telegraph, 8th March 2014

PARLIAMENTARY GOVERNMENT

PRESIDENTIAL GOVERNMENT

In a parliamentary system of government, the
EXECUTIVE
[GOVERNMENT] DERIVES FROM THE
LEGISLATURE. This means that the
Prime Minister and his executive are not separately elected from the legislature; instead they are both elected in one
General Election and the legislature then provides the government with its membership*. In other words, the
EXECUTIVE AND LEGISLATURE ARE
FUSED.

Presidential Government is different because a President is ELECTED
SEPARATELY from the legislature. This is, for example, the case in the United
States where PRESIDENT OBAMA was directly elected by the public and
Congress was elected in separate elections. This is why, incidentally, it is quite possible to have a Democrat
President and a Republican Congress (or vice versa). A US President thus will have his own PERSONAL MANDATE directly from the public.

*this point refers to the Commons; since the other part of the legislature, the Lords, are still un-elected. In this system of government, the
EXECUTIVE is therefore ACCOUNTABLE to the COMMONS and can be dismissed by it in a VOTE OF CONFIDENCE [1979,
JAMES CALLAGHAN]. This is because the Prime Minister and government do not have their own independent mandate and have to rely on the support of the legislature and if they lose that support they have no choice but to resign. Since a President is elected separately from his legislature the US President, for example, is not accountable to congress in the same way as a British Prime
Minister is accountable to parliament.
The simple reason for this is that the
British Prime Minister’s power drives from parliament; whereas the US
President has his own independent
MANDATE from the public and so his powers are not rooted in the confidence of the legislature. He can therefore only be removed by Congress for “HIGH
CRIMES AND MISDEMEANORS” against the Constitution.

67

The Government also derives its members from the legislature; for example DAVID CAMERON thus selects his ministers from the membership of both the Commons and Lords [once again highlighting the Fusion of Powers].

In the Parliamentary system the Prime
Minister may decide on the date of the
General Election at any time within the 5 year term of his government; while in this system the Prime Minister is Head of the Government but he is NOT HEAD OF
STATE.

In the Presidential System the President does not appoint his cabinet from the legislature [Separation of Powers] and instead appoints non elective figures whom he has confidence in. Thus, in direct comparison to our parliamentary system; when HILARY CLINTON was appointed Obama’s Secretary of State she had to resign her seat in the Senate.
In this system the President is bound by
FIXED TERM ELECTIONS [every four years in the US]; while a President will be both, as in France and the United States,
HEAD OF GOVERNMENT and HEAD OF
STATE.

PARLIAMENT’S FUNCTIONS
REPRESENTATION, SCRUTINY, LEGISLATION, ACCOUNTABILITY, LEGITIMATION
When writing about the role of Parliament make clear that Parliament’s main role is to SAFEGUARD OUR DEMOCRACY AGAINST OVER POWERFUL GOVERNMENT – it does this by LEGITIMIZING the bills that the executive introduces and then
SCRUTINISING the actions of government in a variety of ways such as through
GENERAL and SELECT COMMITTEES. The executive is also ultimately ACCOUNTABLE to the legislature and can be dismissed if it LOSES A VOTE OF CONFIDENCE.

WHY DOES THE
PARLIAMENT?

EXECUTIVE

NEED

A

STRONG

In the United Kingdom the executive sits in the legislature and if the legislature proves too weak then it will insufficiently hold the government to account as a result of which the executive may well act arrogantly, not sufficiently think through the consequences of its legislative proposals and ignore the wishes of the public. As Lord Acton once said, “power tends to corrupt and absolute power corrupts absolutely”.
Thus, if parliament is strong and self confident then it is much more likely to hold the executive ACCOUNTABLE and make it JUSTIFY its actions. For example, the PUBLIC

68

ACCOUNTS COMMITTEE has highlighted the huge waste of money that the BBC
DIGITAL MEDIA INITIATIVE has cost, while MINISTRY OF DEFENCE has been asked to justify plans to cut the army to 82,000 by 2018 given the uncertainty of global politics and the EDUCATION SELECT COMMITTE was so critical of Michael’s Gove’s hasty plans for an ENGLISH BACCALAUREATE that the plans were shelved.
An OPPOSITION DAY MOTION was also useful in making the government think through the likely impact of its proposals to sell off ENGLISH FORESTS, while an effective GENERAL COMMITTEE should ensure that legislation is well drafted and that appropriate amendments are made to it. At the same time, parliament has got to
REPRESENT the views of everyone in society so that when controversial proposals are discussed MPs and Lords can stand up for those who might be most adversely affected. Thus the COMMONS refused the 90 DAY DETENTION proposals of BLAIR because they felt it could discriminate against YOUNG MOSLEMS, while the LORDS also rejected 42 DAY DETENTION as discriminatory and SUPERCASINOS as immoral.
A strong parliament will also make the government continually think through the
CONSEQUENCES of its policies. A relatively weak parliament, for example, failed to sufficiently make MARGARET THATCHER think through the consequences of the POLL
TAX, whereas today parliament is continually probing the government to justify and explain its developing response to escalating violence in SYRIA. In August 2013, parliament thus voted against military intervention since it did not feel that the government had sufficiently made the case for war. This sort of scrutiny is thus vital in ensuring that the government’s policies take into account as many potential objections as possible. Finally, if parliament is weak then the executive has a weak pool from which draw future ministers. It is therefore in the interests of the government not to encourage a spineless / supine parliament because then it will end up with spineless / supine ministers.

HOW WELL DOES PARLIAMENT FULFIL ITS VARIOUS
FUNCTIONS?
How well Parliament fulfils its various functions depends on a range of factors. When there is a MINORITY GOVERNMENT, MPs wield disproportionate influence since the government will be much less able to bully them since they will need every vote to pass its legislation. This was the case when JAMES CALLAGHAN and JOHN MAJOR were Prime Ministers and it seems that, since the establishment of the Coalition,
Parliament has, once again, become increasingly proactive in its roles as a scrutinising.
Representing and legislating body.
In the first session of the 2010 parliament there an unprecedented number of backbench rebellions: 239 rebellions out of 544 divisions, which suggest that MPs are particularly free-thinking in this parliament. This is probably because the WHIPS have less patronage power than before since, in a coalition, government jobs have to be shared among so many more leaving many more MPs who know they are very unlikely to be given ministerial office.

69

REPRESENTATION
GRIEVANCE.

/

REDRESS

OF The representative role of Parliament means that each one of us has a constituency MP who represents us in the House of Commons. Therefore, an
MP represents all of his constituents whatever political party they voted for and a constituent will therefore contact their MP by letter or E Mail or attend their MP’s weekly surgery in order to express their views and concerns about various political issues. An MP will have, by virtue of his membership of the
Commons, special access to ministers thereby providing the link between the constituent and government.
Thus, if you are concerned about, for example, HUMAN RIGHTS [AMNESTY
INTERNATIONAL] or CLIMATE CHANGE then you can quickly make your views known by expressing them to your MP and because we all have a constituency
MP that means, at least theory, that all our opinions can be equally articulated in Parliament.
LORD NORTON refers to this role as providing “TENSION RELEASE” – in other words, through our MP, we have a
POINT OF CONTACT with government which we can take advantage of in order to make known our feelings.

LEGISLATION / LEGITIMATION

Parliament is the supreme law making body within the UK and bills can therefore only be enacted if they have been passed by both the Commons and the Lords. The government could not, by itself, pass laws without the consent of parliament and so parliament has
SUPREME LEGISLATIVE AUTHORITY.
For example, both Tony Blair [90 days, the Commons] and Gordon Brown [42 days, the Lords] failed to extend detention without charge because

70

parliament has not been prepared to enact these bills.
Parliament may also be said to
LEGITIMIZE the decisions of government since parliament’s AUTHORITY is recognized throughout the UK as legitimate. SCRUTINY

Since the executive and legislature is fused this gives the legislature a significant opportunity to be able to scrutinise the work of government. It can do this in a variety of ways. At
PRIME MINISTER’S QUESTIONS the
Prime Minister must defend his government’s policies in front of the
House of Commons; while at
MINISTERIAL QUESTIONS ministers must similarly defend their department’s handling of policy either in a written response or in the House.
GENERAL COMMITTEES scrutinise bills, after their second reading, and may suggest AMENDMENTS to them while
SELECT COMMITTEES scrutinise the work of DEPARTMENTS OF STATE in order to ensure that they are being run properly. They consider whether departmental policies have been sufficiently thought through and whether the department is being efficiently run. It may also recommend ways of dealing with serious mistakes by a department. For example, the
TRANSPORT SELECT COMMITTEE is a committee of backbench MPs from all political parties who monitor the work of that Department.

ACCOUNTABILITY

As we have seen, parliament scrutinises the government and, by doing this, makes government ACCOUNTABLE for its actions. Through being accountable

71

to parliament it is accountable to the nation. The government is also made ultimately
ACCOUNTABLE to parliament in a VOTE
OF CONFIDENCE. This means that if parliament is no longer prepared to carry on supporting a government and it loses a VOTE OF CONFIDENCE in the
House
of
Commons
[JAMES
CALLAGHAN, 1979] then it will have to resign. In short, the government is made accountable through the ultimate sanction of a parliamentary vote of no confidence. Cameron has controversially altered this so that now a vote of 55% of the House of Commons is necessary to dismiss a government.

PROVIDING

Unlike the American system, in the UK the executive derives from parliament and so parliament PROVIDES members of the government such as JUSTICE
SECRETARY, CHRIS GRAYLING, who as well as being a member of the legislature is also a member of the executive.

REPRESENTATION
In many ways our MPs do represent us well in the House of Commons. MPs represent a constituency and are accountable to the electorate at the next election so it is in their interests to listen to the concerns of their constituents. Good MPs can therefore be extremely RESPONSIVE to their constituents. Interestingly, MPs also seem to be prioritizing the INTERESTS OF THEIR CONSTITUENTS over the demands of the Whips and party discipline. For example, in 2005 the HANSARD SOCIETY discovered that MPs estimated that 45% of their time was spent on constituency work; by 2011 it had risen to 59%. MPs, especially in marginal seats, will, therefore, often self-consciously put forward the interests of their constituents against their party in order to prove their loyalty to their constituency.

This debate is about the retained fire service in general, but it is well known in the
House that I and my fellow Warwickshire MPs have a number of concerns that relate
72

to changes in the provision of fire and rescue services in Warwickshire in particular.
In my own constituency, the fire station in the town of Bedworth has faced the uncertainty of potential closure for many months. We have only recently learned the details of options that the county council will consider next week. Many people in
Bedworth will be relieved and delighted that it appears that Bedworth fire station will now remain open, but other fire stations in Warwickshire have not been so fortunate”.
Dan Byles MP, Hansard 14th July 2010

At a time when we anticipate large scale cuts to the public sector, something that the fire service is preparing for, it would be short sighted to reduce the number of retained fire fighters and yet that is exactly what has been proposed in my constituency.
Retained fire fighters combine high quality service with flexibility, and as we seek to keep a lean and effective fire service, they are essential. How can it be right, at a time when we have an admitted skills shortage and ever growing demands on our fire service, to get rid of these vital individuals who not only help to protect the public but do so with considerable savings to the taxpayer?
Chris White MP, Hansard 14th July 2010

The establishment of the PARLIAMENTARY BACKBENCH BUSINESS COMMITTEE has also given backbench MPs a greater opportunity to suggest issues for debate. “The committee can consider any subject for debate, including those raised in e petitions or national campaigns but an MP must make the case for their consideration”.
[www.parliament.uk]. MPs can thus respond to the will of their constituents by trying to secure a debate on an issue through the backbench business committee. MPs representing constituencies that will be affected by HS2 thus secured a debate on the issue on March 31st 2011. Other debates, often provoked by E petitions, have included the government’s BADGER CULL and the government’s response to RUSSIAN HUMAN
RIGHTS ABUSES.
However, there is a great deal of debate over how well we are actually represented by our MPs. FIRST PAST THE POST ensures that the House of Commons is not at all representative of how the public voted. After all, in 2005 the LIBERAL DEMOCRATS won 22% of the votes but only gained a derisory 9.6% of the seats in the House of
Commons. Similarly, Labour’s 35.2% of the vote gained them an extraordinary 55.1% of the seats in the Commons which is hardly what the public voted for. In 2010 the
CONSERVATIVES actually gained more [36.1% of the vote] but this was not sufficient for them to form a government on their own. Supporters of Minority Parties, which can fare well in elections with proportional representation, like the GREENS, BNP and
UKIP, are thus excluded from almost any influence in the House of Commons, although the Greens did actually manage to win BRIGHTON.

73

At the same time, representation in Westminster is complicated by the fact that some parts of the UK are OVER-REPRESENTED. As a result of the WEST LOTHIAN ISSUE
SCOTTISH MPs CAN STILL VOTE ON ENGLISH DOMESTIC ISSUES WHEN
WESTMINSTER MPs CANNOT DO THE SAME FOR SCOTLAND. Residents in some constituencies are significantly over-represented than others [the ISLE OF WIGHT has one MP for 100,000 voters; the WESTERN ISLES have one MP for 22,000 voters].
Equally, most MPs are generally WHITE, MALE and MIDDLE CLASS which is hardly representative of MULTI CULTURAL BRITAIN TODAY. For example, in the 2005
Parliament only 2.3% of MPs were from ETHNIC MINORITIES; while only 19.5% were
FEMALE which means that on many issues debate may be limited. However, as the
Chief Examiner points out the unrepresentative social nature of the Commons does not necessarily have to be a problem. As one high scoring candidate put it, “The argument around social background may also be flawed as it is untrue to say you have to be of a certain background to pass laws in that group’s interests. An example of this would be the laws passed in the 1970’s to ban sex discrimination by a predominately male Commons, or elected MP and aristocratic Labour MP supporting many measures to benefit workers”. Today, parliament has passed progressive legislation allowing
GAY MARRIAGE, even though it is socially very unrepresentative of society today.
MPs also do not need to represent the interests of their constituents in the House of
Commons and, as well as obeying the dictates of the WHIPS may also decide to vote according to the influence of PROFESSIONAL LOBBYISTS. This can make the representation of an MP’s constituents a much more marginal affair than it ought to be. Indeed, DAVID CAMERON has called the influence of PROFESSIONAL LOBBYISTS on the way MPs decide to vote, “THE NEXT BIG SCANDAL WAITING TO HAPPEN” since
“SECRET CORPORATE LOBBYING, LIKE THE EXPENSES SCANDAL, GOES TO THE HEART
OF WHY PEOPLE ARE SO FED UP WITH POLITICS”.
However, LORD NORTON shows that this parliament has seen a huge number of
BACKBENCH REBELLIONS which suggests that MPs are increasingly prepared to disobey the Whips on matters which they, or their constituents, feel strongly about.
This is probably because the Coalition Whips cannot offer much hope of ministerial office to their backbenchers so their influence is undermined, while, since Cameron did not achieve a parliamentary majority, he cannot rely on the sort of political loyalty from his backbenchers that Blair did after his stunning victories in 1997 and 2001. The influence of the Whips over MPs has also been reduced because the Whips no longer decide the membership of Select Committees further encouraging their independence. Therefore, MPs are increasingly becoming FREE AGENTS because of the declining influence of the Whips and the opportunities for better representing their constituents in debates arranged by the PARLIAMENTARY BACKBENCH
COMMITTEE, as well as through the growing power of SELECT COMMITTEES.

LEGISLATION

74

One of the key problems reducing the impact of parliament over scrutiny and legislation is the power of the WHIPS and PARTY DISCIPLINE generally. In order for parliament to function effectively there has to be TIGHT PARTY DISCIPLINE. The problem with this is that it DISCOURAGES INDEPENDENCE OF THOUGHT AMONGST
MPs since they will generally support their party’s line in order to foster their own
CAREER AMBITIONS. Most MPs, for example, want to achieve ministerial office and party leaders [especially the Prime Minister] have enormous powers of PATRONAGE so very often on key issues the parties will simply divide along party lines. This is very often the case on GENERAL COMMITTEES and in most DEBATES over legislation MPs will be whipped into supporting the party line. A new MP, in particular, may not want to gain the reputation of being a troublemaker since it might therefore be unlikely that he will rise up through the party ranks. For example, the Whips told any wavering
Labour MP who was thinking about voting against the LISBON TREATY that this would be “A HANGING OFFENCE”.

“Damn your principles; stick to your party”
Benjamin Disraeli, [Conservative Prime Minister, 1868, 1874-1880]

For the average backbencher, the Whip is the street-corner thug they need to get past on their way home from school. Treat him with respect, and life will be fine. If you cross him, watch out. Occasionally, whips can get literally physical: the Conservative
Derek Conway (“At my secondary modern, if someone hit you, you hit back as hard as you could”) was once seen trying bodily to pick up a fellow MP to push him into the right division lobby. David Lighthorn, another Conservative Whip, was notorious for his ability to use his twenty stone weight to pin reluctant MPs to the wall. But usually their methods are slightly more subtle. They have favours to dispense, places on factfinding missions to Switzerland or Australia with accommodation in comfortable hotels or trips to places in the Indian Ocean to promote British ideas of democracy.
Tess Kingham, a former Labour MP, has said the whips’ behaviour is “an affront to democracy”. Jeremy Paxman “The Political Animal” [2002]

Indeed, GEORGE GALLOWAY told JEREMY PAXMAN in an unpleasant exchange between them on General Election Night, 2005 that most MPs were, “Largely, spineless, a supine bunch”.

PAXMAN: “I put it to you Mr Galloway that Nick Raynsford had you to a T when he said you were a demagogue”.
GALLOWAY: “Sorry?”
PAXMAN: “Nick Raynsford. You know who I mean? Nick Raynsford. Labour MP?
GALLOWAY: “No, I don’t know who you mean”.
PAXMAN: “Never heard of him”.
75

GALLOWAY: “I’ve never heard of Nick Raynsford, no”.
PAXMAN: “What else haven’t you heard of?”
GALLOWAY: “Well, I’ve been in parliament a long time . . .”
PAXMAN: “He was a parliamentary colleague of yours until very recently”.
GALLOWAY: “Well, most of them just blend into the other, Jeremy; they’re largely a spineless, a supine bunch”.

However, it would be misleading to argue that parliament is failing in all of its functions, especially as this Parliament has been remarkably free-thinking! A lot depends on the PERSONALITY OF AN MP and not all MPs slavishly follow the dictates of the Whips and instead they try to represent what they regard as being the interests of the wider community. For example, a large number of Labour MPs did DEFY THE
WHIP in order to defeat the 90 DAY TERROR BILL in the Commons. [322 / 291], while since 2010 there have been an unprecedented number of BACKBENCH REBELLIONS which suggests that MPs are increasingly “FREE AGENTS” who appreciate that the support of their local party is as important as staying in favour with the Whips’ Office, not least because there is much less ministerial patronage available when there is a
Coalition, while local parties have become increasingly willing to deselect MPs who do not fulfil their expectations2! The government has thus lost debates on issues, such as the FOREST SALE and MILITARY INTERVENTION IN SYRIA, indicating that, although they can claim the support of 56% of the MPs in the House of Commons, very often
MPs will vote according to their own principles and those of their constituents’.

Even though only TWENTY PRIVATE MEMBERS BILLS may be introduced in a parliamentary session some very far-reaching PRIVATE MEMBER’S BILLS have been introduced by backbench MPs highlighting how a determined MP can really bring about significant changes in society in spite of the parties’ control of the Commons.
The ABOLITION OF THE DEATH PENALTY and the LEGALISATION OF ABORTION were both private members bills, while more recently, “The Sun-beds [Regulation] Act of
2010 came from a private members’ bill from Labour MP Julie Morgan and now bans the use of commercial tanning equipment by under-18s. And Conservative Cheryl
Gillian’s Private Members’ Bill became the Autism Act of 2009, which puts a legal duty on councils and NHS services to look after people with autism”. [BBC Politics, 31st
January 2012]. A further successful Private Member’s Bill which became the PRISONS
[INTERFERENCE WITH WIRELESS TELEGRAPHY] ACT 2012 enables prison governors to block mobile phone signals, thereby preventing inmates from carrying out illegal activities in prison.

2

In the first session of the parliament elected in 2010 there were 239 coalition rebellions in 544 divisions; an unprecedented number.

76

“In Parliament it is usually only the government which gets the chance to bring in new laws. But every year there is a ballot and 20 MPs whose names are drawn get a chance to bring their own bills forward and have them debated in Parliament. Some significant acts have been passed as a result of private members bills, including the abolition of the death penalty.
A limited amount of time is given in Parliament to debate private member’s bills. If the debate is not finished when the time runs out, the bill will not make it to committee stage unless 100 MPs are there to support it. This means that in most cases, if another MP does not like the private member’s bill, they can kill it off simply by continuing to talk during the debate until the time runs out. This is called a filibuster. Richard Ottaway MP, whose successful private member’s bill to make it more difficult for scrap metal merchants to sell stolen metal, said, “For a private member’s bill to be successful it has to have virtually unanimous support from colleagues. If you introduced a bill, for example, on Assisted Dying [which I did toy with] it is controversial and would attract opposition. Labour MP, John McConnell, for example wanted to make it a law that Parliament approved the Chancellor’s choice for
Governor of the Bank of England. This did not pass. Mr McDonnell said, “At George
Osborne’s behest a group of Tory backwoodsmen talked it out. I never cease to be amazed at the supine nature of MPs and the power of patronage at work in the
Commons”.
BBC News, 16th May 2013

The filibustering of controversial Private Members’ Bills thus ensures that most do fall by the wayside because the government, more concerned to pass its own legislative programme does, not give them sufficient time to be discussed. “The government has said it will not allow any more time to debate a bill on moving UK time forward by an hour, despite calls from MPs on all sides of the House for it to do so. Speaking during the business statement on 26th January 2012, Commons Leader Sir George
Young said the Daylight Saving Bill, a private members’ bill, introduced by Tory
Rebecca Harris, should not be given any more time because it stood no chance of becoming law. A small group of MPs talked out the bill during its report stage on a recent Friday sitting. Sir George said he understood the “sense of frustration” from

77

members, but insisted there was “no practical way” of the bill passing “even if the government gave it time”. [BBC News, 26th January 2012]

SCRUTINY
There are a variety of ways by which parliament holds the executive to account and these include: PRIME MINISTER’S QUESTION TIME; MINISTERIAL QUESTION TIME;
DEPARTMENTAL SELECT COMMITTEES, GENERAL COMMITTEES, DEBATES ON THE
SECOND READING OF A BILL and OPPOSITION DAYS. The introduction of the
PARLIAMENTARY BACKBENCH COMMITTEE, as well as SELECT COMMITTEE
REFORMS have further enhanced scrutiny, while the HOUSE OF LORDS, especially since the 1999 reforms which made the LIFE PEERS dominant in the Upper Chamber, has also become increasingly effective in scrutinizing the executive, both in debating proposed legislation and in the reports of Select Committees.

When writing an essay on how effective Parliament is in holding the Executive accountable you should make clear that a lot will depend on the strength of the government. If the government has a massive majority, as Blair had in 1997 and
2001, the Opposition will, consequently, lack the numbers and self-confidence to scrutinise the government. A government with a small majority, or a minority government, will, of course, be more vulnerable to the attacks of the Opposition.

PRIME MINISTER’S QUESTION TIME
Prime Minister’s Question Time provides the most regular and obvious way in which the Prime Minister (and by implication his government) is held to account. At PMQ the Prime Minister will answer “easy” questions from his own backbenchers and rather more difficult ones from the Leader of the Opposition and other opposition
MPs. Given media enthusiasm for the adversarial nature of this event the Prime
Minister and Leader of the Opposition will be more interested in maximising the most number of EFFECTIVE SOUND BITES that are likely to appear on the evening news bulletins so it is unlikely that PMQ will generate that much serious discussion and calm and reasoned scrutiny. Having said that, the enormous pressure that PMQ puts the
Prime Minister under will give the public a better insight into his or her ability to cope under a great deal of pressure and so this may therefore still be an entirely justifiable form of scrutiny. The fact that the Prime Minister knows that he has to face questions in parliament every week will ensure that he has to be as well-briefed as possible about all aspects of government policy. Also, not all exchanges are PUNCH AND JUDY;
78

the exchange on the British response to the UKRAINIAN CRISIS on 5th MARCH 2014 was actually useful in clarifying government policy.

Edward Miliband: “A picture tells a thousand words. Look at the all-male Front
Bench ranged before us. The Prime Minister says that he wants to represent the whole country. I guess they did not let women into the Bullingdon Club either, so there we go. He said that a third of his Ministers would be women; he is nowhere near meeting that target. Half the women he appointed as Ministers after the election have resigned or been sacked. And in his Cabinet – get this, Mr Speaker – there are as many men who went to Eton or Westminster as there are women. That is the picture. Does he think it is his fault that the Conservative Party has a problem with women?”
The Prime Minister: “The right hon. Gentleman is interested in the figures; let me give him the figures. Of the full members of the Cabinet who are Conservatives,
24% - a quarter of them – are women. That is not enough; I want to see that grow.
Of the Front Bench Conservative Ministers, around 20% are women. That is below the 33% that I want to achieve. We are making progress, and we will make more progress. Let me make this point: this party is proud of the fact we had a woman
Prime Minister” – [Interruption]
Mr Speaker: “Order, Mr Gove, you really are a very over-excitable individual. You need to write out 1,000 times, “I will behave myself at Prime Minister’s Questions”.
The Prime Minister: “To be fair to the Labour Party, it has had some interim leaders who have been women, but it has a habit of replacing them with totally ineffective men”. Prime Minister’s Questions, 5th February 2014

79

Edward Miliband: “When he was leader of the Opposition in 2008, at the time of the invasion of Georgia, he said this, “Russia’s elite value their ties to Europe – their shopping and their luxury weekends . . . Russian armies can’t march into other countries when Russian shoppers carry on marching into Selfridges”. Does he agree that if we do not see the required action from Russia, we should consider asset freezes and travel restrictions on designated individuals, so that Russia is clear about the consequences of its actions”?
The Prime Minister: “As I have put it, when we consider the diplomatic, economic and political steps that we can take, nothing should be off the table. We have already taken some important steps in ensuring that the assets of the corrupt
Ukrainian oligarchs are properly dealt with, including any assets that may be here in the United Kingdom. We should not rule out other things for the future, but, as
I have tried to explain today, I think that there are steps that we need to take in respect of the current unacceptable situation, and that we should agree with our
European and American partners - I shall be speaking to President Obama this afternoon, and will meet Angela Merkel and President Hollande before the
European Council tomorrow – what additional steps should then be taken”.
Edward Miliband: “I welcome that, and the provision of all necessary support for the Ukrainian Government. Let me finally say that we all recognise that this is a delicate and dangerous moment for international security, and that a combination of diplomacy, resolve in the international community, and support for the Ukrainian
Government and Ukrainian self-determination provides the best hope of securing an end to the crisis. I can assure the Prime Minister that, in pursuit of that goal, the
Government will have our full support”.
The Prime Minister: “I am very grateful for what the right hon. Gentleman has said this morning. Tomorrow we shall need to hear a voice of unity and clarity from the countries of the European Union – which is not always easy when there are 28 different nations around the table – but it is very welcome that such a clear and unified voice is going out from this House, saying to the Russian Government “What you have done is wring, what you have done should not be allowed to stand, and there will not only be costs and consequences from what has been done already, but further costs and consequences if you take this further”.

80

Prime Minister’s Questions, 5th March 2014

MINISTERIAL QUESTION TIME
Like the Prime Minister, ministers also answer questions in the House of Commons and this provides a good opportunity for their performance under pressure to be judged. In addition to this if an MP writes to a minister that minister must provide a written response and it will then be published in HANSARD highlighting the way in which ministers are continually made accountable to parliament. Ministerial Question
Time gets a great deal less publicity than PMQ, but in fact this probably means that scrutiny is better since the minister and his or her questioners do not feel that they have to “play to the gallery” so much!

Stephen Phillips [Sleaford and North Hykeham, Con]: “What steps is his
Department taking to protect minority Christian communities in the Middle East”?
The Minister of State, Foreign and Commonwealth Office [Hugh Robertson]:
“Government ministers regularly speak out against abuses of the right to freedom of religion or belief. I met minority Christian communities in Egypt in December and in Algeria during my visit there last week precisely to highlight this issue”.
Stephen Phillips: “My right hon. Friend will be aware of the plight of Christians in
Iraq, which often goes unreported in the western media. The scale of the exodus of Christians owing to sectarian violence is unprecedented and those who remain often flee to Kurdish-controlled areas to escape violence in Baghdad. However, although they are physically safer in places, such as Ibril, they are struggling to survive. What steps is the Department taking to encourage the Iraqi Government to protect Christians in that country and improve their security”?
Questions to the Minister of State for the Foreign and Commonwealth Office
House of Commons, 21st January 2014

81

Gemma Doyle [West Dunbartonshire, Labour]: “What steps is he taking to help households improve their energy efficiency?”
The Minister of State, Department of Energy and Climate Change [Gregory Barker]:
“More than 450,000 homes received energy efficiency improvements in 2013 as a result of the coalition’s energy company obligations and green deal measures. We expect that figure to grow substantially in 2014 and that the green deal market will continue to expand”.
Gemma Doyle: “I hear what the Minister says, but more than 7 million homes in the
UK are without adequate loft insulation and more than 5 million are without cavity wall insulation, so will he explain why the number of households getting help through the Government programme fell last year by more than 90%”.
Gregory Barker: “It is slightly misleading to talk about 7 million lofts with inadequate loft insulation. They may not have the full amount of insulation, but the amount that they lack varies significantly”.
Caroline Flint [Don Valley, Labour] “So it is inadequate”.
Questions to the Minister of State, Department of Energy and Climate Change
[Gregory Barker]
House of Commons, 27th February 2014

During an emergency a minister can also be asked to make a statement in parliament, and answer its questions, on an issue of national or international importance, as has happened during the UKRAINIAN CRISIS when the FOREIGN OFFICE has had to keep parliament informed about how the crisis is developing.

DEPARTMENTAL SELECT COMMITTEES

“Select Committees provide a clear contrast to questioning on the floor of the House which appears to prioritise wit over scrutiny!”

82

Departmental Select Committees were first established in 1979 and MONITOR THE
PERFORMANCE of government departments. Thus all the Departments of State, such as the Home Office, Health or Education all have their own Select Committee shadowing their performance; deciding whether policies are being appropriately implemented and whether the Department is doing its work efficiently enough. This is, of course, a key element of scrutiny and the findings of Select Committee investigations carry a great deal of influence because Select Committees are NON
PARTISAN and consult widely with experts in their field. Thus, when they publish their
REPORTS, they carry a great deal of weight.
Their influence has increased, especially since 2010 when their membership was, for the first time elected, rather than being determined by the Party Whips. This means that each political party elects the members of Select Committees while the Chairs are voted upon by a secret ballot of all MPs who are paid a £15,000 bonus salary to chair a committee. This has ensured that Select Committees are now much more representative of back bench opinion and independent of the party leadership. As they have become more representative of parliamentary opinion so they have gained more media attention which has further increased the influence they wield.
In order to achieve their objectives Select Committees can send for “PERSONS,
PAPERS AND RECORDS” when they investigate the work of a government department and if a Select Committee is well led by its Chairman then it will achieve the level of cohesion necessary to make a real impact on the work of a Department. For example, the DEFENCE SELECT COMMITTEE gained a great deal of favourable MEDIA PUBLICITY when it criticised the DEPARTMENT OF DEFENCE for not providing SUFFICIENT BODY
ARMOUR FOR BRITISH TROOPS IN IRAQ. The fact too that their questioning is available ON LINE has also raised their prestige and the best Select Committees achieve success by asking the sort of non partisan questions that the public would like to ask ministers.
Select Committees do not, therefore, possess any coercive power but they can be extremely influential in highlighting controversial decisions and can even persuade a department of state to rethink a policy if it can generate enough unfavourable publicity. The reports that both the Commons and Lords Select Committees publish are, since they are non partisan and there is such wide consultation, therefore, highly influential. Recent LORDS SELECT COMMITTEE REPORTS have urged greater

PREVENTIVE ACTION in reducing AIDS, while arguing for a MINISTER FOR OLYMPIC
LEGACY to ensure that the momentum for sporting achievement, together with its social and community benefits is not squandered.
Reports by COMMONS SELECT COMMITTEES have also led to MICHAEL GOVE abandoning plans for ENGLISH BACCALAUREATE CERTIFICATES. The DEFENCE SELECT
COMMITTEE has also been highly critical of the government’s defence cuts, while the

83

HOME AFFAIRS SELECT COMMITTEE heard from, “Comedian and actor Russell Brand has told MPs taking drugs should not be seen as a "criminal or judicial matter" but a
"health issue". Speaking at the Home Affairs Select Committee inquiry into drugs policy he said: "We need to change the laws in this country and have a more compassionate, altruistic, loving attitude to the people with the disease of addiction."
[BBC News, 24th April 2012]

Plans to scrap GCSEs in key subjects in England and replace them with English
Baccalaureate Certificates are being abandoned by the government. The reversal was announced by the Education Secretary in the Commons, alongside curriculum changes. Michael Gove said plans for the new exams had been "a bridge too far". He had wanted to bring in what he said were more rigorous exams in some core subjects from 2015, but faced criticism from MPs and teachers. It comes after a damning report by the Commons education committee which said the changes would mean "too much, too fast" and could threaten exam quality.
BBC News, 7th February 2013

Plans to cut soldiers could leave the Army "short of personnel" and unable to meet future national security needs, a report by MPs has warned. The Commons Defence
Select Committee also voices "surprise" at the lack of consultation over the Army 2020 plan. Under the plan, personnel numbers will be cut from 102,000 to 82,000 by 2018, with a doubling of reservist numbers. The MPs say they were "surprised" at the lack of consultation on such a radical change. The new size of the Army was not part of the original Defence Review in 2010 and had never even been discussed by the National
Security Council. The head of the Army, General Sir Peter Wall, wasn't asked for his opinion either. He was simply told by a senior civil servant what the future strength of his army would be. So, perhaps it is no surprise the committee feels the Ministry of
Defence needs to explain and justify how an army of 82,000 regulars and 30,000 reservists will be adequate to meet the threats of the future.
BBC News, 6th March 2014

84

A former Scotland Yard commissioner has admitted the police regularly fiddle crime figures. Lord Stevens, who ran the Metropolitan Police for six years, said officers on the ground had warned him that massaging of crime statistics is the “biggest scandal coming our way”. He called for an urgent investigation into the way every force in
Britain records crime figures. Giving evidence to the Commons' Home Affairs Select
Committee, Lord Stevens said: “Ever since I’ve been in police service there has been a fiddling of figures. I remember being a detective constable where we used to write off crimes.” Asked by Keith Vaz MP, the Committee Chairman, if it was still going on, Lord
Stevens replied: “Of course it is. In certain forces”.
Daily Telegraph, 7th January 2014

However, there are significant limitations to the effectiveness of the work of Select
Committees. They have a VERY SMALL SECRETARIAL SUPPORT STAFF which is no match for the enormous support staff of civil servants and political advisers that a
Department of State enjoys, while MPs with all their other responsibilities cannot always devote sufficient time to their work on a Select Committee. Ministers and MPs can also refuse to attend their meetings and departments are not obliged to act upon their recommendations; in short they have NO COERCIVE POWER. If badly chaired they can also become so partisan as to be unhelpful.

Chuka Umunna: How will the austerity measures affect you and your family?
George Osborne: “I lose my Child Benefit, or rather my wife does”.
Chuka Umunna: “You claim child benefit?”
George Osborne: “Of course, because I’ve got two children”.
Treeasury Select Committee, 3rd November 2010

This therefore means that the best Select Committees are those that are well led and focused and which achieve the necessary sense of cohesion to really influence the

85

work of a Department. The late GWYNETH DUNWOODY was an especially impressive
Chair of the SELECT COMMITTEE ON TRANSPORT and made the committee highly effective in investigating the work of that department. Indeed, the Speaker of the
House of Commons called her, in her obituary, “A GREAT THORN IN THE SIDE OF THE
GOVERNMENT”.

PUBLIC ACCOUNTS COMMITTEE
The PUBLIC ACCOUNTS COMMITTEE chaired by MARGARET HODGE is the most influential Select Committee since it investigates whether the public money is being efficiently spent. Its reports are widely publicised and can be acutely embarrassing for public bodies, including the government. Since the General Election it has been very vocal in questioning how well the coalition is spending public money at a time of such significant budget cuts and has been especially critical of both the ROYAL
HOUSEHOLD and the BBC for its disastrous DIGITAL MEDIA INITIATIVE.

Former BBC Director General Mark Thompson has said sorry for the £100m failure of the BBC's Digital Media Initiative (DMI). Giving evidence to a committee of MPs, he said DMI “failed as a project, in a way that meant the loss of a lot of public money. I want to apologise to you and the public," he said.
The Public Accounts Committee is examining why the efforts to move the BBC away from using video tape failed. The gross estimate of the amount spent on DMI was
£125.9m, although the net cost to the licence fee payer was estimated to be £98.4m.
A National Audit Office report said the BBC had hoped to save £98m in the long run through the new system - but in the end, the final estimate of the benefits it brought to the BBC was zero. The report blamed the project's failure on confusion, a lack of planning and insufficient scrutiny. In a statement published on the Public Accounts
Committee's website, Ms Hodge wrote: "This report reads like a catalogue of how not to run a major programme. “The BBC needs to learn from the mistakes it made and ensure that it never again spends such a huge amount of licence fee payers' money with almost nothing to show for it”.
BBC News, 3rd February 2014

86

The Queen’s household finances were at a “historic low” with just £1 million left in reserve, MPs said on Monday. Her courtiers were advised to take money-saving tips from the Treasury. A report by the Commons Public Accounts Committee found that the Queen’s advisers were failing to control her finances while the royal palaces were
“crumbling”. MPs said her advisers had overspent to such an extent that her reserve fund had fallen from £35 million in 2001 to just £1 million today. The Royal
Household had made efficiency savings of just 5 per cent over the past five years compared with government departments that are cutting their budgets by up to a third. MPs on the committee said the Treasury must “get a grip” and help to protect the royal palaces from “further damage and deterioration”. Margaret Hodge, the
Chairman of the committee, said: “We believe that the Treasury has a duty to be actively involved in reviewing the household’s financial planning and management — and it has failed to do so.”
Daily Telegraph, 28th January 2014

MPs on Wednesday questioned the way academies can employ trustees, family members and their companies without proper oversight. Chris Wormald, the
Department for Education's Permanent Secretary, said he would re-examine the way in which "related party transactions" within autonomous, state-funded schools are dealt with after Tory and Labour members of the Public Accounts Committee questioned whether civil servants were protecting public money. It followed the
Guardian’s disclosures in January that at least nine academy chains had paid millions of pounds into the private businesses of directors, trustees and their relatives.
Margaret Hodge, the Chair of the Committee, asked if the department was aware of the payments. “It is just wrong to hand money to a company in which you have a financial interest if you are a trustee”, she said. Stewart Jackson, a Conservative MP, said that local councillors appeared to face much stricter governance rules than academy trustees even though they were both in control of public money. In response,

87

Wormald said: “On that particular issue we will go away and consider the points made
… It is obvious that the committee feels strongly about this”.
The Guardian, 5th March 2014

LIAISON COMMITTEE
The LIAISON COMMITTEE includes the Heads of all the Select Committees and who can question the Prime Minister twice a year. However, as it includes all 33 Chairs of
Select Committees it is quite an unwieldy body and probably tries to cover too much ground to be that effective. For example, when David Cameron had to meet be interviewed by the committee it quizzed him on four huge areas: the SPENDING
REVIEW, the ENVIRONMENT, DEFENCE and AFGHANISTAN. “For two hours the committee skimmed across a huge range of subjects, from Trident to forestry policy and the PM had a firm grip on the facts . . . As the clock ticked over the two hour mark many of the seats behind the Prime Minister had emptied but David Cameron still clattered along and finished by signalling his support for a bank holiday to mark the royal wedding, about the only subject not raised by MPs”.

HOUSE OF COMMONS BACKBENCH BUSINESS COMMITTEE
This is a VERY IMPORTANT NEW COMMITTEE which was established by the
COALITION to, for the first time, give BACKBENCHERS the opportunity to CONTROL
THE SUBJECT FOR DEBATE ON 35 DAYS A YEAR. The debates that are arranged are those that backbenchers and their constituents feel strongly about and so debates about whether there should be a REFERENDUM on the EUROPEAN UNION, whether
PRISONERS OUGHT TO BE GIVEN THE VOTE and the justification for the BADGER CULL have all been called by the Parliamentary Backbench Committee.

Madam Deputy Speaker [Mrs Eleanor Steinbeck]: Order. “Before I call speakers from the Back Benches, may I say that it will be obvious to the House that a large number of Members wish to speak this afternoon and so, as a courtesy to other Members, it would be helpful if Members limited their speeches to about eight or nine minutes?
If they do so, everyone will have the chance to be heard”.
Mr Russell Brown [Dumfries and Galloway, Labour]: “I thank the Backbench Business
Committee for enabling the debate to take place. It has become clear over recent weeks and months that some colleagues who initially supported a cull are now

88

beginning seriously to question that position. I thank the hon. Member of St Albans
[Mrs Main], who, I appreciate, has now left the Chamber, because she was one of the first people to draw to my attention some serious reservations about what the
Government had done”.
Emily Thornberry [Islington South and Finsbury, Labour]: “Does my hon, Friend agree that that shows the danger of Governments trying to be seen to do something when they have no idea what to do? In this case, it has resulted in great cruelty and a failure”. GENERAL [LEGISLATIVE] COMMITTEES
General Committees examine PROPOSED LEGISLATION, after its second reading in the
House of Commons, and suggest AMENDMENTS to it. Both the Minister responsible for the bill and the Opposition spokesman sit on it and, like Select Committees a
General Committee includes MPs from a variety of political parties. However, because they are investigating government legislation they are more likely to divide along party lines with Opposition MPs opposing policy and government MPs, unsurprisingly, being in favour of it. Opposition amendments are very unlikely to be successful because government MPs will always have a majority on the committee and, even if they are successful, they can still be defeated when the whole House votes on whether to accept proposed amendments or not. The effectiveness of General Committees is also reduced by the fact that the government can impose a GULLLOTINE setting a time limit on the amount of time each clause in a bill can be debated.
The effectiveness of General Committees is thus ruined because its members almost always vote according to their party line. “The most shocking thing about the
Commons is the way in which laws are made. If you want to see what it is like sit on a
General Committee! The government has a majority on that committee and it selects a tame majority. I am not easily shocked but I was when I saw government party MPs spending their time on a Standing Committee writing their Christmas cards”. [Tony
Wright, former Labour MP]

DEBATES ON THE SECOND READING OF A BILL
Debating proposed legislation can be a particularly effective way of holding the government to account and during the SECOND READING OF A BILL, MPs can rigorously question the ministers introducing legislation.
The Secretary of State for the Environment, Food and Rural Affairs, Mr Owen
Paterson: “I beg to move, that the Bill now be read a second time. The Bill will promote growth for the long term, improve the resilience of our water supplies and the environment and increase choice for customers”.

89

Caroline Lucas [Brighton Pavilion, Green]: “Given that the Secretary of State says that the Bill is designed to protect the environment, will he agree to amend the Bill to require fracking companies to have a full liability guarantee to cover a range of eventualities before an environment permit is allocated”.
Mr Owen Paterson: “On the issue of fracking, I have made it absolutely clear that we will in no way dilute or diminish any of the existing regulations relating to the extraction of hydrocarbons from underground”.
Second Reading of the Water Bill, 25th November 2013, Hansard
However, the government can still decide how much time legislation may be debated and, if it is especially controversial, can even limit the amount of time it is debated in order to save itself from embarrassment. For example, in January 2008, GORDON
BROWN cut the amount of parliamentary time that would be given to debating the
LISBON [REFORM] TREATY from 25 DAYS to just 12 DAYS. According to one outraged
Labour MP, JON TRICKETT, “These plans are an attempt to limit debate. I have not seen anything like it in my 12 years as an MP”. BUDGET DEBATES are similarly unsatisfactory because Opposition Parties are only given 24 HOURS TO STUDY THE
DOCUMENT BEFORE RESPONDING TO IT.

OPPOSITION DAYS
There are about 20 Opposition Days during a parliamentary session when the opposition parties can choose the subject of debate and will therefore decide to debate issues that are most likely to discomfort the government, although, of course, the effectiveness of Opposition Days is rather reduced because such debates generally take place in an atmosphere of heightened political debate and the WHIPS, in particular, will ensure that MPs vote according to party lines. Backbench Business
Committee debates are generally more useful, as they are less partisan and, as the exchange below, illustrates Opposition Days can often generate more heat than light!

Tristram Hunt [Stoke-on-Trent Central, Labour] “I beg to move That this House endorses the view that in state funded schools teachers should be qualified or working towards qualified teacher status while they are teaching”.
Mel Stride [Central Devon, Conservative]: “The hon. Gentleman is, in my opinion at least, a fine historian. He will recall that when he was at school he was taught by a very fine teacher, Terry Morris, who was head of the history department. Will he tell the House whether Mr Morris was a qualified teacher or just an inspiration?”
Tristram Hunt: “The great thing about teachers is that they can be both qualified and an inspiration [Interruption]. I know that the Conservative Party is developing something of an obsession with me, so let me say that if Conservative members

90

want to invite me to a special session of the 1922 committee to talk about my past and history, I shall be more than willing to take up their invitation”.

However, in certain circumstances Opposition Days can be effective in forcing a government rethink of policy if it is combined with public pressure and if the government is itself unsure of the wisdom of a policy. A Liberal Democrat Opposition
Day Motion condemning the government’s proposals to deny GURKHAS the RIGHT OF
UK RESIDENCY passed by 267 / 241 votes with 27 Labour MPs voting with the opposition which led to Brown quickly scrapping the policy.

Gordon Brown’s government has suffered a shock defeat in the Commons on its policy of restricting the right of many former Gurkhas to settle in the UK. MPs voted by 267 to 246 for a Liberal Democrat motion offering all Gurkhas equal right of residence with the Tories and 27 Labour rebels backing it. Immigration minister, Phil Woolas, told
MPs new proposals would be published before Parliament’s summer recess. In a statement he said, “The Government respects the will of the House of Commons”.
BBC, 29th April 2009

This was also the case when the Opposition moved a debate on the government’s plans to sell of England’s forests. The following exchange shows how effectively the government was caught napping by MARY CREAGH’S successful opposition day motion: Mary Creagh: [Wakefield / Labour] Let us look at the Maths. The Forestry
Commission costs each of us 30p a year. Our ancient trees, worshipped by our ancestors as a source of food, fuel and shelter, will go on this sale of the century. The
Secretary of State wants to finish a task that proved too much even for Mrs Thatcher.
The Minister of State, Department for Environment, Food and Rural Affairs, Mr
James Paice: How many acres of ancient trees?
Mary Creagh: The Minister should perhaps talk to his staff a little more. I have been talking to a lot of them, and I have not met a single one who supports his plans.
Emily Thornberry [Islington South and Finsbury / Labour]: My hon. Friend refers to the countryside being on the march. Is she aware that in Islington South, where we have the smallest amount of green space in the whole of England, I have had 323 letters on this issue? They are our trees too.
Mary Creagh: I am grateful to my hon. Friend. Perhaps I should have said that the country is on the march. The Secretary of State did not reckon on the campaigns against these plans, both national and local, which have united people from across the

91

political spectrum. Some 360,000 people have signed the “Save our Forests” petition
– the largest public protest since the Government were elected.
Geraint Davies [Swansea West/ Labour]: Does my hon. Friend agree that Lloyd
George, who set up the Forestry Commission in the previous Tory – Liberal
Government in 1919, would turn in his grave at the thought that this coalition was selling off England’s forests and leaving only Wales and Scotland to manage and own our public land and forests?
Mary Creagh: I am sure he would be spinning in his grave.

HOUSE OF LORDS
The House of Lords, even though it can only delay proposed legislation for a year, has an important scrutinising role, since if it rejects legislation with a SUFFICIENTLY LARGE
MAJORITY then the government may decide not continue with such controversial legislation. This happened when the Lords CONDEMNED the introduction of SUPER
CASINOS into DEPRIVED AREAS and when they rejected plans to increase DETENTION to 42 DAYS with HUGE MAJORITIES. More recently Lords AMENDMENTS have led to the reinstatement of “HARRASMENT, ALARM OR DISTRESS” rather than the much broader “CONDUCT CAPABLE OF CAUSING NUISANCE OR ANNOYANCE TO ANY
PERSON” in the issuing of ANTI SOCIAL ORDER, as well as the acceptance that judges must be consulted on the circumstances in which specific SECRET COURTS are established. HOUSE OF LORDS SELECT COMMITTEES, because they contain such expertise, have also provided highly effective scrutiny of the government over issues such as PREVENTIVE RESPONSES TO AIDS and the potential squandering of our
OLYMPIC LEGACY.
As we have seen, the reports of HOUSE OF LORDS SELECT COMMITTEES are also very highly regarded by the government because they include such a WEALTH OF
EXPERIENCE AND EXPERTISE. HOUSE OF LORDS SELECT COMMITTEES on the
OLYMPIC LEGACY, AIDS / HIV and on ECONOMIC AFFAIRS have also been highly influential, in recent months, questioning how we can best maintain the Olympic
Legacy, reduce AIDS as well as questioning the economic implications of Scottish independence. Vulnerable adults are being kept virtual prisoners in care homes because of misuse of mental health laws, a House of Lords committee says. The Report expressed serious concerns that safeguards brought in to protect vulnerable patients are actually being used to “oppress” them. It looked at how reforms passed in 2005 are working, but called for a new system to be drawn up from scratch. Care and Support Minister Norman Lamb said he shared the report's concerns. The report found that vulnerable adults are being failed by the 2005 Mental Capacity Act. The
Act introduced a series of principles aimed at protecting people with mental illnesses, including those with dementia or severe learning difficulties. However, the report found that

92

social workers, healthcare professionals and other people involved in the care of vulnerable adults are not aware of the act and are failing to implement it. The report, by a House of Lords
Select Committee set up to examine how the act is working in practice, concluded that the legislation “is not working at all well”. “We were very concerned by what we heard about the safeguards”, Lord Hardie said. “The evidence suggests that tens of thousands of people are being deprived of their liberty without the protection of the law, and without the protection that Parliament intended”.
BBC News, 13th March 2014

WHAT ARE THE MAIN FACTORS THAT
EFFECTIVENESS OF PARLIAMENT? [40 MARKS]

LIMIT

THE

Parliament is limited from being as effective as it should because the power of the executive is still very great and this can undermine the ability of the legislature to effectively scrutinise and legislate, while, according to others, the way in which parliament is elected and appointed significantly undermines its representative functions. In the House of Commons, the WHIPS are still very influential and continue to exert significant amount of influence in the COMMONS potentially making MPs simply
“LOBBY FODDER” who will vote for their party without necessarily thinking about the wishes of their constituents. After all, most MPs want to eventually become ministers and if they continually vote against their own party this is unlikely to happen.
PARLIAMENTARY DIVISIONS are therefore usually very strictly whipped, while
GENERAL COMMITTEES are also whipped and by dividing on party lines this means that constructive amendments to bills are only very rarely made. There is also growing concern that the influence of POLITICAL LOBBYISTS at Westminster has become too great and that this £2 BILLION A YEAR INDUSTRY is encouraging MPs and Lords to favour ELITIST SPECIAL INTEREST GROUPS, such as the ENERGY COMPANIES,
BANKING INDUSTRY, even though they lack democratic legitimacy and wield disproportionate influence at Westminster.
The effectiveness of the legislature is also reduced by the competing claims on an MP’s time, as well as the VERY LIMITED ANCILLARY SUPPORT that they have. For example, an MP may represent as many as 80,000 constituents so that, as well as having to deal with all their potential problems with a tiny support staff he or she may also be serving on a General or Select Committee, as well as voting in numerous divisions on proposed legislation. Select Committees, in particular, are expected to monitor the work of huge departments of state and yet their secretarial support is minimal and, unlike the ministers, political advisers [spin doctors] and civil servants with whom they are dealing, its members will LACK EXPERTISE KNOWLEDGE, as well as the necessary time to thoroughly investigate the necessary issues. The fact too that the FREEDOM OF
INFORMATION ACT still does not apply to MI5 or MI6, while the government can still
93

refuse to release information that could “PREJUDICE” government also means that the effectiveness of parliament to scrutinise the executive is severely limited. The ability, too, of MPs to question the Prime Minister effectively is weakened by the fact that PRIME MINISTER’S QUESTION TIME only takes place once a week for just 30 minutes and much of the time is taken up by a media duel between the Prime Minister and the Leader of the Opposition which involves much more political point scoring than genuine debate.
MPs’ ability to advance the political agenda themselves is also hampered by the fact that only 20 PRIVATE MEMBERS’ BILLS can be introduced during a parliamentary session and the government provides very little time to debate these issues so they can easily be FILIBUSTERED out of existence, however important they may be. Indeed, the government, by controlling the lion’s share of parliamentary business, can even limit the time in which a controversial bill like the LISBON TREATY is debated in order to avoid too much embarrassment to the government.
MINISTERIAL COLLECTIVE RESPONSIBILITY also ensures that government MPs cannot publicly speak out against a policy, even if they disagree with it, as a result of which genuine debate in the Commons is further eroded. It has been argued too that the
PRIME MINISTER’S exercise of the ROYAL PREROGATIVE is particularly
UNDEMOCRATIC since on key issues, such as his decision not to accept revisions to the European Treaty, he did not have to consult parliament. Even the ability of parliament to dismiss the government has been reduced by the fact that parliament now requires a 55% majority in order to achieve this!
The LEGITIMACY of both Houses of Parliament has also been brought into question since the Commons are still elected by FIRST PAST THE POST which means that minority parties such as UKIP and the BNP are un-represented even though, in a proportional form of election, they would have seats. Equally, it seems hardly fair that
Labour should win 35.2% of the vote in 2005 and be able to form a government with a 66 seat majority, while in 2010 the Conservatives achieved 36.1% of the vote, but because of where the votes were cast could only form a government with the Liberal
Democrats. It has therefore been suggested that the Commons lack legitimacy because it fails to fully represent the voting intentions of the nation. The House of
Commons is also still primarily MALE, WHITE and MIDDLE CLASS so is, therefore, hardly representative of the social and gender configuration of the UK today, while constituencies range hugely in numerical size, from 20,000 to 100,000 so some constituents are going to be significantly better represented than others. SCOTLAND is also significantly over-represented at Westminster, while, since the WEST LOTHIAN
ISSUE has still not be resolved English MPs at Westminster wield less power than Scots and Welsh MPs since they can no longer vote on Scottish and Welsh issues, but Scots and Welsh MPs may still vote on domestic affairs in England.
The Lords might, of course, be said to be even less legitimate since it is un-elected and a large number of its members have been appointed because of services to one or other of the main political parties, such as LORD RUDDOCK who has donated £500,000 to the Tory Party. The fact too that only the Bishops of the Church of England are represented in the Lords is also controversial because it means that in an increasing

94

MULTI CULTURAL BRITAIN only one faith is represented. The Lords are thus wholly
UNACCOUNTABLE to the public ensuring that they need not RESPOND to our wishes which may be seen as peculiarly undemocratic in a modern Twenty First Century democracy. The fact too that Lords remain members of the Upper Chamber until death also ensures that it can lack energy and diversity. As DISRAELI once said, “Not dead; merely in the House of Lords”!
Thus, to conclude, parliament can still be weak in regard to the executive, in particular when the executive has a MASSIVE MAJORITY as Blair had after 1997 and 2001 and when the governing party is UNITED. Indeed, recent evidence, in particular the growth of lobbying, which DAVID CAMERON has called the next parliamentary scandal waiting to happen as well as the decision to make it more difficult for the government to be brought down by a VOTE OF CONFIDENCE suggests that there are still significant, yet resolvable, factors limiting the effectiveness of parliament.

WHAT ARE THE COALITION’S MAIN PLANS FOR THE REFORM OF
PARLIAMENT?
“I’m talking about the most significant programme of empowerment by a British government since the great enfranchisement of the 19th century. . . Incremental change will not do. It is time for a wholesale big bang approach to political reform”.
Nick Clegg

The aim of the government’s parliamentary reform programme was to reduce the power of the executive and thus increase the influence of the legislature. The reforms were also intended to make MPs more accountable for their actions, while giving the public greater influence over what is debated in parliament and ensuring that we are all equally fairly represented. Such reforms were thus intended to make the UK more democratic and ensure that parliament becomes more accountable to the public thus encouraging greater participation in politics

ELECTED LORDS
Nick Clegg spear headed plans for an elected House of Lords; the aim of which was designed to ensure that, at last, the Lords would have a DEMOCRATIC MANDATE and so would be better able to hold the government accountable now that they had real
LEGITIMACY. Critics, though of this reform lamented the loss of expertise and public service that would occur if the Lords were to be elected and pointed out that an elected Lords would be very likely to challenge the powers of an elected Commons since, following Clegg’s reforms, both Houses of Parliament would be able to claim legitimacy. This sort of GRIDLOCK cannot currently occur because it is clear that the
Commons, as the elected Chamber, has greater legitimacy than the Lords. In 2012
95

though, these reforms were scuppered, for the life-time of this parliament, when a considerable Tory backbench rebellion “killed off” the plans.

EQUALISATION OF THE SIZE OF CONSTITUENCIES / REDUCTION IN THE
NUMBER OF MPs
The number of voters in constituencies varies dramatically with some constituencies diverging by over 30% from the average. This, of course, means that some constituencies are dramatically under or over-represented. “For example, the
Conservative MP for the Isle of Wight answers to 103,480 voters, while the MP for
Arfon in North Wales answers to just 42,998 voters”. [BBC News, 15th January 2011].
Therefore, the coalition was committed to trying to equalise the numerical size of constituencies, while reducing the number of MPs from 650 to 600 in order to reduce costs. Almost all seats would, therefore, have had between 72,000 and 80,000 voters.
However, there were some criticisms of these proposed reforms. Fewer MPs would have meant a smaller “pool” of talent to select the government from. Also, the new seats would have cut across traditional interest boundaries, “It would mean that urban seats in cities like Coventry would have to take in countryside wards with few shared interests. One constituency would have to unite areas in the Isle of Wight and
Hampshire, the island of Anglesey would be joined to Bangor across the Menai Strait and a “Devonwall” seat would give one MP responsibility for parts of Cornwall and
Devon”. [BBC 15th January 2011]. This reform, in the end, was also not introduced because, as it was a Conservative initiative, the Liberal Democrats withdrew their support of a Conservative backbench rebellion “killed off” House of Lords reform; an example, perhaps, of party politics being prioritized over the democratic good of the country? BACKBENCH BUSINESS COMMITTEE
A popular complaint against the effectiveness of parliament has been that the government controls too much of the legislative programme giving the executive a virtual stranglehold over parliamentary business.
The establishment of the Parliamentary Back Bench Committee has though given backbenchers a great deal more influence over parliamentary business and the
Backbench Business Committee now controls parliamentary business on 35 days per parliamentary session. This, therefore, provides a highly effective way of reducing the excessive power of government. “The Backbench Business Committee meets weekly on Tuesdays at 1PM to hear representations from MPs for debates in backbench time.
This is the first business committee of any kind to be established by the House and gives an opportunity to backbench Members to bring forward debates of their choice.
The committee can consider any subject for debate, including those raised in e petitions or national campaigns, but an MP must make the case for their consideration”. [www.parliament.uk]

96

The Backbench Business Committee has scheduled a general debate on 26 th January
2012 on progress on defence reform and the Strategic Defence and Security Review following representation to the committee by the Defence Committee. The
Committee received a representation from the Defence Select Committee that there should be a debate on defence issues and that this would be of considerable crossparty interest. www.parliament.uk E PETITIONS
A major innovation of the government has been to introduce E Petitions whereby the public can now e petition parliament directly for a particular issue to be discussed.
This is a vital way of renewing one of parliament’s ancient functions which is to provide
REDRESS OF GRIEVANCE. So far E Petitions have proved extremely popular with the public and a number have already been debated in parliament, such as the publication of official documents relating to the HILLSBOROUGH DISASTER, and whether there should be a referendum on our membership of the EU. They do not therefore become law, but they do highlight issues on which the public feels strongly about and their supporters argue that they are a highly effective way of encouraging DIRECT /
CONSULTATIVE DEMOCRACY in the UK.
However, given the popularity of E Petitions, the procedure probably needs to be updated to ensure that all E Petitions, once they reach 100,000 signatures, are all treated equally and thus all merit a full debate in the House of Commons. This is currently not the case. The BACKBENCH BUSINESS COMMITTEE has to timetable when the debates occur and on a number of occasions, such as on the internment of
BABAR AHMAD they have decided they do not have sufficient time to provide a full debate on the issue.

Natascha Engel, Labour Chair of the Backbench Business Committee, has highlighted tension between the “lumbering” nature of parliamentary procedure and the
“incredibly swift” take up of E Petitions. In an interview with BBC Democracy Live she praised E Petitions, saying, “It’s a way of encouraging people to engage, but I worry about raising expectations”. “The public perception is that once an E Petition reaches
100,000 signatures it will be debated – and there are a lot of people out there who think not only will it be debated but it will be made into law, because the public has spoken”. Ms Engel explained that e petitions do not automatically make it into the chamber; they must be supported by an MP who has already explored other avenues for bringing the issue to the government’s attention. Even where an on-line petition has reached the threshold of 100,000 signatures and has the support of an MP, its chances of making an appearance on the floor of the House are still limited. A petition on fuel prices brought forward by Robert Halfon, the Conservative MP for Harlow, was under consideration for several weeks before the committee decided that it would get an airing. One problem is the limited amount of time that the Back Bench Committee has available to it.
97

BBC News, 3rd November 2011

POWER OF RECALL
A major way of making MPs more accountable to constituents between elections would be provided by the introduction of POWER OF RECALL. This would mean that if an MP was sent to prison, or if a committee of MPs decided that his or her behaviour warrants it, then they would have to fight a by election if 10% of constituents sign a petition demanding one. This is another reform, though, which is now very unlikely to be enacted in the life-time of this parliament since the government has preferred to focus more on the economy than on more “peripheral” issues such as this.

Douglas Carswell MP told the House of Commons Constitutional Reform Committee that MPs had “nothing to fear from” from the judgement of their constituents and suggested the recall proposals were the work of Whitehall mandarins. Campaign group Unlock Democracy said the process being proposed had nothing in common with any system currently used around the world and was “not worth the paper it is written on”. “This bill, in its current form, is actually a disciplinary code for MPs”, its
Director, Peter Facey, said. “It is one of the most restrictive forms of recall I have ever seen”. BBC News, 19th January 2012

RESOLUTION OF THE WEST LOTHIAN ISSUE
The Coalition is committed to resolving the West Lothian Issue, whereby Scottish,
Welsh and Northern Irish MPs can vote on English domestic affairs in the Westminster
Parliament, although English MPs at Westminster can no longer vote upon their domestic affairs as they have their own parliament and assemblies. This has, therefore, created a rather unequal British democracy.

The UK government has announced the panel of experts who will look at issues raised by the so-called West Lothian Question. There has been a long-running debate about whether Scottish, Northern Irish and Welsh MPs should vote on legislation that affects only England. As it now stands, Welsh, Scottish and Northern Irish MPs may vote on

98

issues such as health and education in England but English MPs cannot vote on similar issues in the devolved nations.
BBC News, 17th January 2012

FIXED TERM PARLIAMENTS
The controversial power of the Prime Minister to decide the date of the General
Election has also been removed. Until now Prime Ministers have been able to decide the date of the General Election, within five years of the last General Election, and have therefore chosen a date when they think they are most likely to win and, in the process, tried to wrong-foot their opponents. Gordon Brown, for example, almost called a snap General Election in the Autumn of 2007, but in the end waited until May
2010. Now, all parties and the electorate will know when the next General Election will be, thus removing a significant Prime Ministerial power to manipulate the political process. Ministers have narrowly won their parliamentary battle over plans to hold General
Elections every five years. The Fixed Term Parliaments Bill finally cleared the House of Lords when peers, who had twice blocked the plan, accepted a compromise solution, whereby the changes will be reviewed in 2020.
The government has argued that fixed term parliaments will eliminate the power of the executive to call elections when it was politically convenient to do so. Under the bill, an election could still be triggered before the end of a five-year term if a motion of no confidence was passed in the government and no alternative administration could be formed, or at least 2/3 of MPs approved calls for an early election.
BBC News, 14th September 2011

55% RULE / VOTE OF CONFIDENCE
The government has also introduced a controversial new rule under which 55% of MPs will have to vote for a dissolution of parliament; rather than just 50% plus one. Critics of this reform argue that it is undemocratic because it would enable a government to carry on in office even after it had lost the support of the House of Commons3. Nick
Clegg has, however, argued that it is necessary in order to ensure stable government.
“This is a much lower threshold than the two thirds required in the Scottish Parliament
3

In 1979 the Labour government of James Callaghan was forced to resign when it lost a vote of no confidence in the House of Commons by 311 / 312. Callaghan then had to call an immediate General
Election which the Conservatives under Margaret Thatcher won.

99

but it strikes the right balance for our Parliament, maintaining stability, stopping parties from forcing a dissolution to serve their own interest”. [Nick Clegg] In short,
Fixed Term parliaments and the 55% Rule should both ensure that a stable parliament that will last for exactly five years and so be able to put into practise its manifesto commitments without an early dissolution.

FURTHER SELECT COMMITTEE REFORMS
House of Commons Select Committees have been investigating Departments of State since 19794. However since 2010 a number of reforms have been introduced in order to make them more effective. The majority of Select Committee Chairs are now elected by MPs in a Secret Ballot in order to encourage the election of more independent minded MPs. Previously votes had been whipped The Chair of a Select
Committee also now receives an additional salary of £15,000 in the hopes that this will make the role increasingly prestigious and thus attract the best candidates for the post. Secretarial staff and ancillary support is though still very minimal!

The Wright Committee, set up to propose moves to strengthen the Commons, had criticised the element of “party patronage” involved in appointing MPs to committees.
Its report said it was “unacceptable” that, in the past, the power of the Whips had been used to keep MPs considered to be “mavericks” off committees or that they could offer the chairmanship “as a reward or consolation prize to former ministers”.
BBC News, 11th August 2011

EUROPEAN UNION
David Cameron, in response to parliament voting for the Lisbon Treaty in 2009 without a referendum, has said that in future there will have to be a referendum if parliament’s considers any further POOLING OF SOVEREIGNTY TO THE EU. This is because the voters temporarily give parliament sovereignty in a general election and parliament cannot give away the public’s powers without the public agreeing to this in a referendum. TO WHAT EXTENT HAS PARLIAMENT BECOME MORE EFFECTIVE
SINCE 1997? [40 MARKS]
Under both Labour and the Coalition a number of attempts have been made to ensure that parliament is better at fulfilling at its functions of scrutinising, representing and
There are 5 House of Lords Select Committees which investigate specific issues [the UK’s relationship with the EU, Science and Technology, Communications, Economic Affairs and the
Constitution]
4

100

legislating. For example, since 1999 the HOUSE OF LORDS has been being reformed, while a number of far reaching reforms have been made to the Commons; SELECT
COMMITTEES have been modernised and the LIAISON COMMITTEE introduced, while backbench MPs have been given greater influence over parliamentary business through the BACKBENCH BUSINESS COMMITTEE, while E PETITIONS have already proved a highly popular way of enabling the public to engage with parliament.
However, to a great extent the effectiveness of parliament is determined less by institutional reforms than by the strength of the executive and the willingness of MPs to put the interests of their constituents first and defy the Whips, while the continued use of FPTP for Westminster Elections still produces a House of Commons that is highly unrepresentative of how the public voted in a General Election.
Under Labour, as long ago as 1999, all but 92 of the hereditary peers were removed from the HOUSE OF LORDS which was important in modernising the institution.
However, Labour subsequently stalled on Lords reform so the vast majority of new appointments to the Lords were made through political patronage, which further increased political patronage and did nothing to make the Lords more democratically accountable or legitimate. However, the dramatic increase in the number of LIFE
PEERS could be seen as having improved the scrutinizing strengths of the Upper House since Life Peers are appointed as a result of their wisdom and experience and so the
Lords now has a greater range of intellectual talent than ever before, ranging from constitutional experts such as LORD NORTON to businessmen like LORD SUGAR. At the same time, since there is a Coalition, the SALISBURY CONVENTION could be said to be suspended so the Lords have become increasingly proactive in amending government legislation, while LORDS SELECT COMMITTEES are now more highly regarded than ever before. For example the LORDS ECONOMIC SELECT COMMITTEE has just published an influential report questioning the economic viability of SCOTTISH
INDEPENDENCE, while LORD FOWLER’S SELECT COMMITTEE ON AIDS has generated a great deal of debate on how best to deal with HIV / AIDS.
Labour also introduced the LIAISON COMMITTEE [a committee of all the Chairs of
Select Committees] which the Prime Minister is questioned by twice a year. However, the range of questions asked is so broad that there is little opportunity for genuine scrutiny and skilled debaters like Tony Blair or David Cameron thus have little to fear from it. The way, too, in which PRIME MINISTER’S QUESTION TIME was reduced from twice a week to just once a week has been more efficient in terms of reducing the
Prime Minister’s need to be in parliament, although this does allow the executive to be more distant from the legislature and it could be argued that by halving the amount of times when the Prime Minister had to attend parliament the influence of parliament was reduced.
Labour’s support for devolution has also had a highly damaging, although unintended consequence for parliament, which is the WEST LOTHIAN ISSUE, whereby Scottish
MPs at Westminster can still vote on English domestic affairs and yet Westminster
MPs can no longer vote upon domestic legislation in Scotland. This has certainly undermined the equality of MPs at Westminster and the Coalition, although it has promised to, has yet to address this unresolved constitutional problem.

101

More successful have been the reforms of SELECT COMMITTEES, whereby the selection of Chairs of Select Committees is no longer whipped and the Chairs themselves are now given an extra salary of £15,000. This has increased their independence and authority and thus increased their influence in scrutinising the various Departments of state. More though could certainly have been done to increase their ancillary support which is still hopelessly inadequate when it comes to scrutinising a great department of state like the Foreign Office. However, the fact that the Whips no longer control the membership of Select Committee has made them a great deal more representative of backbench opinion and the highly effective way in which, for example, the EDUCATION SELECT COMMITTEE has questioned the speed of MICHAEL GOVE’S REFORMS suggests just how important Select Committees have become; especially as their reports are now much more thoroughly reported in the media. The introduction of the BACKBENCH BUSINESS COMMITTEE has also further enhanced the importance of backbenchers since, on 35 days per year, the Committee can choose to debate the issues that MPs and their constituents feel most strongly about. This reform has also combined well with the introduction of E PETITIONS in which the public can have issues they feel strongly about debated at Westminster if they achieve 100,000 signatures. Thus, the Backbench Committee has organized debates on issues of major public concern such as the HILLSBOROUGH DISASTER, the case for an EU REFERENDUM and the justification for the BADGER CULL. The fact, too, that the Whips have little influence in these debates has further increased the quality and significance of the debates. However, not all E Petitions have been treated equally; for example one concerning the right of Babar Ahmad to be given a trial rather than being held indefinitely in detention has been relegated from the Commons to
Westminster Hall.
The Coalition’s introduction of FIXED TERM PARLIAMENTS will also reduce the power of the Prime Minister to determine the date of the General Election thereby significantly reducing a controversial, and possibly undemocratic, executive power.
However, it has been suggested, too, that this might actually make for a LAZY
GOVERNMENT and LAZY OPPOSITION since, as both sides now know the date of the next General Election, they will not continually have to be prepared to appeal to the public in a sudden General Election. At the same time, the new necessity for a 55% vote in the Commons to trigger a MOTION OF NO CONFIDENCE is, according to Jack
Straw, “undemocratic” and could be seen as having significantly reduced the authority of the Commons simply to bolster the Coalition.
The establishment of a Coalition in 2010 has also increased the authority of parliament since, as we have seen, the SALISBURY CONVENTION is no longer operational, thus encouraging the Lords to question government policy, while the influence of the
Whips has been reduced since they can no longer appoint to SELECT COMMITTEES, while government MPs are much more prepared to defy their Whips and put the interests of their constituents first since the chance of ministerial office in the
Coalition has been severely weakened. All of this has made MPs much more prepared

102

to rigorously scrutinise government, putting the interests of their constituents before the demands of the Whips, such as when the FORESTRY SALE or MILITARY
INTERVENTION IN SYRIA failed to pass the House of Commons.
Thus, a great deal has been done to modernise Westminster, while the experience of a Coalition Government has made MPs rather more independent-minded. However, it is worth noting, too, that the Commons are still elected by FPTP which ensures that minority parties are dramatically under-represented, while a MORE EQUAL
CONSTITUENCIES and tighter controls on LOBBYING are still urgently needed if
Parliament is going to be better able to carry out all its functions.

ASSESS THE EFFECTIVENESS OF THE COALITION’S PLANS FOR
THE REFORM OF PARLIAMENT? [40]
The Coalition pledged to introduce a number of reforms designed to make parliament more efficient and more accountable, such as E Petitions, Power of Recall, the establishment of a Parliamentary Backbench Committee, the equalisation in the size of constituencies, a reduction in the powers of the Prime Minister and Fixed Term parliaments. Select Committees have also been further reformed, while there were major plans to make the House of Lords primarily elective.
However the effectiveness of many of these reforms has been limited. HOUSE OF
LORDS REFORM has, for example, stalled since Tory backbenchers have been unprepared to accept Nick Clegg’s reforms for a primarily elected second chamber.
The Lords thus remains appointed and there is now no hope that democratisation will be introduced during the lifetime of this parliament. In response, the Liberal
Democrats then refused to support Conservative plans for the EQUALISATION IN THE
SIZE OF CONSTITUENCIES to between 72,000 – 80,000. This could have removed existing anomalies whereby some constituencies can have 30% more voters than others and could have made representation fairer, but this reform is now ditched until at least 2015. Thus on two flag ship policies to reform parliament, Coalition divisions have ensured that no progress has been made.
The Coalition did though agree to the introduction of FIXED TERM PARLIAMENTS, whereby the Prime Minister can no longer choose the date of the General Election.
This has significantly reduced a traditional prerogative power of the Prime Minister, although it has been questioned whether the reform has actually made parliament more effective. Certainly it has made the Coalition more stable and it makes clear the timeframe which parliament has to complete its business and yet it could make for a lazier parliament since, knowing the date of a General Election, MPs will not have to be continually appeal to their constituents in case there is a snap General Election.
The ruling that a VOTE OF CONFIDENCE in the government can only be provoked by a vote of 55% in the House of Commons has been more controversial and has been condemned as being undemocratic and giving too much power to the executive to

103

carry on in government after it has, potentially, lost the approval of the House of
Commons.
Perhaps the Coalition’s most successful reform has been to introduce the BACKBENCH
BUSINESS COMMITTEE which now has responsibility for arranging the business of the
House of Commons on 35 DAYS OF THE PARLIAMENTARY YEAR, which is approximately one day per week. This has been a popular reform since it gives an elected committee of backbench MPs a great deal of influence on determining the business of the House, thus significantly reducing the previous stranglehold of the executive on parliamentary business. This reform is closely linked to the introduction of E PETITIONS whereby the public can now petition directly for an issue to be debated at Westminster if 100,000 signatures are garnered. The Backbench Business
Committee will thus decide when, amongst other issues of parliamentary concern, E
Petitions are debated and so both have reduced the government’s control of parliamentary business and enhanced the influence in Parliament of both backbenchers and even the general public. Interesting debates have thus been had on major areas of public concern such as the Hillsborough Disaster, a referendum on the
EU and the Badger Cull showing how parliament has become more responsive. Having said that the new system is hardly perfect some argue that the overburdened
Backbench Committee’s right to decide which petitions deserve a full debate in the
Commons, and which can be relegated to a debate in Westminster Hall is undemocratic. For example, a controversial petition that Babar Ahmad, an interned terrorist suspect, should be put on trial on the UK was not given a full debate in the
House of Commons.
The influence of backbench MPs has also been increased by the new way in which the membership of SELECT COMMITTEES is now elected. Previously membership had been controlled by the Whips, but now there is a free vote for both the membership and the chairs. This has, thus, ensured that Select Committees are increasingly selfassertive as independent-minded MPs who would previously never have been appointed by the Whips are now more influential on them; the fact, too, that the
Chairs are now paid a £15,000 salary has also raised their profile, particularly in the media, and Select Committee reports are becoming increasingly influential, for example the Education Select Committee’s condemnation of the English
Baccalaureate and the Defence Select Committee’s concerns that the British military is being reduced to 82,000.
Thus, a great deal has been done to address some of the problems that parliament has in representing, scrutinising and legislating. Some reforms, like E Petitions, the
Backbench Business Committee and the growing independence of Select Committees have shifted the balance of influence back towards the legislature and significantly undermined the influence of the party whips. However, critics argue that there are still many unresolved issues, such as the future of the House of Lords, the West Lothian
Issue, boundary fairness and the way in which filibusters can ruin the chance of a private member’s bill becoming law which will need to be resolved if parliament is to be successfully modernized into the Twenty First century.

104

THE PRIME MINISTER AND CABINET
KEY CONCEPTS: CABINET GOVERNMENT, CORE EXECUTIVE, PRIME
MINISTERIAL GOVERNMENT, PRESIDENTIALISM, POLITICAL LEADERSHIP,
COLLECTIVE RESPONSIBILITY, INDIVIDUAL RESPONSIBILITY

CONTENT EXPLANATION: Role of the Prime Minister and Cabinet – a knowledge and understanding of the role of the Prime Minister and Cabinet within the context of the core executive and the conventions of collective and individual responsibility.
(Separate questions will not be set on the Civil Service).
Powers of the Prime Minister – a knowledge and understanding of the sources of prime ministerial power and of the key constraints on the Prime Minister, including external factors that affect executive policy making.
Prime Ministerial leadership – a knowledge and understanding of the leadership style adopted by Prime Ministers and of the changing relationship between Prime Ministers and their parties, cabinet and parliament, including debates about the
“presidentialism” of UK politics

STRUCTURE OF THE EXECUTIVE BRANCH OF
GOVERNMENT: PRIME MINISTER; CABINET; JUNIOR
MINISTERS; CIVIL SERVICE
PRIME MINISTER
The EXECUTIVE BRANCH of government proposes legislation which the LEGISLATURE
[PARLIAMENT] then votes upon. If parliament agrees to pass the legislation the executive will then put it into action. The PRIME MINISTER HEADS THE
GOVERNMENT and it is his or her task to SELECT who should serve in the CABINET, as well as appointing all the other members of the government such as MINISTERS,
JUNIOR MINISTERS and PARLIAMENTARY PRIVATE SECRETARIES. The Prime Minister will SET THE AGENDA for meetings of the cabinet and then chairs it, if necessary, summing up the mood of the meeting. The Prime Minister will also establish CABINET
COMMITTEES in order to investigate certain aspects of government policy.
105

CABINET
The CABINET is a committee which all the most important members of the government are part of. Most of the members of the cabinet are SECRETARIES OF
STATE which mean that they are in charge of the great departments of state, like the
HOME OFFICE or the FOREIGN OFFICE. Cabinet meets once a week and its purpose is to provide an opportunity to privately debate the most important political issues of the day. As a result of the principle of COLLECTIVE RESPONSIBILITY all members of the government must support government policy so it is therefore important that cabinet provides a forum for the most senior members of the government to discuss the most important issues of the day and express their dissent in private if they are unhappy with government policy [ROBIN COOK would have done this over the invasion of IRAQ in 2003]. Therefore, on CONTROVERSIAL ISSUES such as the response to the RUSSIAN / UKRANIAN CRISIS the cabinet will discuss the issues thoroughly since the Prime Minister will need to know that he has a united government behind him before announcing a policy.
The Cabinet can also be important as a FINAL COURT OF APPEAL IN A MINISTERIAL
DISPUTE. If two members of the government cannot agree on the resolution of an issue then it may end up in Cabinet where the Prime Minister and Cabinet will be able to debate it fully and make a judgement that has the weight of the cabinet behind it.
At meetings of the Cabinet the GRID is also distributed which makes clear government business for the coming week and allows the Prime Minister to highlight the most important issues that his colleagues need to be aware of. Interestingly, the CHIEF
WHIP also attends meetings of the Cabinet and it is his important task to express how the PARLIAMENTARY PARTY will react to controversial legislation. Thus, the Chief
Whip’ presence at Cabinet is vital since the cabinet need to know if their fellow MPs are unlikely to support their proposals in the Commons.

JUNIOR MINISTERS
Beneath the Secretary of State come JUNIOIR MINISTERS. These are known as
MINISTERS OF STATE and they work with the SECRETARY OF STATE in developing appropriate policies. Like the Secretary of State they are also members of the government and are therefore also bound by the principle of COLLECTIVE
RESPONSIBILITY. They will also be advised by their own POLITICAL ADVISERS
[sometimes known as SPIN DOCTORS].

CIVIL SERVICE

106

The Government is not simply made up of politicians. CIVIL SERVANTS are also required to DRAFT LEGISLATION and to ensure that it is APPROPRIATELY
IMPLEMENTED. According to the principles of the NORTHCOTE-TREVELYAN REPORT
[1854] civil servants should be INDEPENDENT OF GOVERNMENT. This means, according to the Report that they should be “PERMANENT, ANONYMOUS and
NEUTRAL”. In other words their job is to ensure the best possible FUNCTIONING OF
THE STATE, and they should therefore ensure, whatever government is in power, that legislation is drawn up and implemented in as efficient a way as possible. Thus, by being permanent, governments are stopped from employing their own supporters; neutrality means that civil servants work equally well for whatever government is in office, while their anonymity is supposed to ensure that elected and accountable politicians take responsibility for government policy rather than civil servants who simply carry out policy rather than deciding it.
However, in recent years the relationship between civil servants and ministers has become more complicated. Much of this derives from the CIVIL SERVICE REFORMS of
MARGARET THATCHER in the 1980’s. She decided that the Civil Service was MUCH
TOO LETHARGIC and that it did not show enough INITIATIVE. Therefore, the NEXT
STEP REFORMS were designed to make civil servants MORE INVOLVED IN DECISION
MAKING by placing them in RESULTS DRIVEN EXECUTIVE AGENCIES and giving them
PROBLEMS TO SOLVE and TARGETS TO REACH.
This may have increased the efficiency of the Civil Service but it has been argued that the price has been to POLITICISE THE CIVIL SERVICE. The principles of NORTHCOTETREVELYAN may not have encouraged initiative but they did ensure that the Civil
Service was independent and it was clear who made decisions and were thus accountable to the public for them [politicians] and those who were simply implementing policy that had already been decided upon [civil servants] and who therefore did not need to be accountable to the public. Now though it can be difficult to know who is responsible for policy making since civil servants have been given a great deal more of an opportunity to make decisions themselves!
This has therefore had a potentially NEGATIVE IMPACT ON DEMOCRACY since politicians, who should be accountable to the voters, are now much more able to shift responsibility on to their civil servants who now have a share in developing government policy without ever having been elected. The classic example of this
BLURRING OF DEMOCRATIC ACCOUNTABILITY involves the refusal by HOME
SECRETARY, MICHAEL HOWARD, to resign over a series of prison escapes since he said the responsibility for this lay with one of his senior civil servants, DEREK LEWIS.
This, of course, has a very negative impact on democracy since we should be able to expect that it is our elected politicians who make political decisions and who are therefore ultimately accountable for them.
The issue of accountability between civil servants and ministers has been further clouded by the increasing use by ministers of non-elected POLITICAL ADVISERS [SPIN
DOCTORS]. These are controversial appointments since they are not democratically accountable and are also not bound to be independent. This means that they can end

107

up putting pressure on civil servants to become TOO ASSOCIATED WITH
GOVERNMENT POLICY which, as independent servants of the state, they should not be. The most notorious example of this dates from the morning of 9/11 when one
Labour spin doctor, JO MOORE, at the MINISTRY OF TRANSPORT, advised a civil servant, MARTIN SIXSMITH, “that this would be a good day to bury bad news on”.

THEORIES
OF
EXECUTIVE
POWER:CABINET
GOVERNMENT; PRESIDENTIAL GOVERNMENT MODEL;
CORE EXECUTIVE MODEL
There are various interpretations of how the executive governs and they all tend to be determined by the PERSONALITY of the Prime Minister.

CABINET GOVERNMENT
CABINET GOVERNMENT provides the classic interpretation of how the executive should operate according to WALTER BAGEHOT in his “ENGLISH CONSTITUTION”
[1867]. According to Bagehot, the Prime Minister is simply “FIRST AMONGST
EQUALS” and in a properly functioning cabinet all issues should be openly discussed and, if possible, a CONSENSUS achieved. The Prime Minister should therefore not seek to impose his will on the rest of the Cabinet and instead decisions should be taken as COLLECTIVELY as possible.
It has been argued that this model is outdated; however there are certainly still Prime
Ministers who are less likely to try to impose their will on Cabinet and are genuinely interested in trying to achieve consensus. The classic example of CABINET
GOVERNMENT, operating according to the principles of Bagehot, occurred in 1976 when JAMES CALLAGHAN allowed his cabinet to FREELY DEBATE whether or not we should accept a LOAN FROM THE IMF.
GORDON BROWN seemed more enthusiastic about CABINET GOVERNMENT than
Tony Blair was and actually tried to gain political capital from emphasising that he wants to work with cabinet colleagues rather than ignoring the cabinet in favour of
Blair’s preference for “SOFA GOVERNMENT”. For example, within days of becoming
Prime Minister Brown told the Daily Telegraph that, “We had a very long discussion at the first Cabinet meeting about the constitution, which involved every single member of the cabinet. This is not what some people have called sofa government. It is cabinet government and the cabinet ministers have got to be directly involved in the decisions”. [Daily Telegraph, July 2nd 2007].

CORE EXECUTIVE MODEL

108

The CORE EXECUTIVE MODEL probably provides a more accurate interpretation of how government operates. According to this model, there is a much broader network of inter-linked power structures that determine the development of policy than simply the Prime Minister and Cabinet. In fact, power is quite widely diffused at the centre and a wide variety of different individuals and bodies will have an impact on the development of policy.
In other words, the key figures in decision making are, in reality, led by the PRIME
MINISTER, leading figures in the government such as the CHANCELLOR OF THE
EXCHEQUER who will have his own access to the Prime Minister, the CABINET itself as well as CABINET COMMITTEES which report to full cabinet on specific issues. Senior figures in MI5 and MI6, the GOVERNOR OF THE BANK OF ENGLAND and SENIOR CIVIL
SERVANTS are also particularly influential. It will be vital, too, to ensure that NICK
CLEGG and DANNY ALEXANDER [CHIEF SECRETARY TO THE TREASURY] are thoroughly involved in decision making in order to ensure that the Coalition remains strong. Indeed, CAMERON, OSBORNE, CLEGG and ALEXANDER are known as the
QUAD at the heart of government since they need to agree before policy can usefully be discussed in Cabinet.
Leading members of the Prime Minister’s own PRIVATE OFFICE such as his PRESS
SECRETARY and the CHIEF OF STAFF will also be extremely influential in decision making, while most Prime Ministers will have an inner circle of trusted confidents whom they consult with informally. Cameron, for example, sees every day especially trusted advisers such as GEORGE OSBORNE, EDWARD LLEWELYN [his CHIEF OF
STAFF] and AMEET GILL [his STRATEGIC COMMUNICATIONS OFFICER]. These close connections with core individuals have increasingly been referred to as a
“CHUMOCRACY” at the heart of government.
This interpretation thus suggests that government is so COMPLICATED and INTERLINKED that it would be misleading to suggest that Prime Ministers and their cabinets can make decisions without consulting widely with a number of other extremely influential players. For example, in prosecuting the War Against Terror the Prime
Minister will naturally work as closely with the Heads of the Intelligence Services as with the Cabinet, while, with economic issues being so prominent today, the advice of the cabinet is probably less important to the Prime Minister than the BILATERAL
MEETINGS that he will have with the CHANCELLOR OR THE EXCHEQUER and the
GOVERNOR OF THE BANK OF ENGLAND.

PRESIDENTIAL GOVERNMENT MODEL
Since the 1960’s political commentators have offered a third interpretation of executive power which has become known as the “PRESIDENTIAL THESIS”. According to this model Prime Ministers have become so dominant in cabinet, and the media have become so obsessed with their characters, that their PERSONAL CHARISMA AND
INFLUENCE has enabled them to dominate decision making as a pseudo-Presidential figure. 109

The Presidential nature of executive power was first noted by RICHARD CROSSMAN, who served in HAROLD WILSON’S, first government and saw from first-hand experience how little he listened to the advice of cabinet and preferred to confer with his “KITCHEN CABINET” of trusted friends and advisers. It was also noted how Wilson used the TELEVISION to REACH OUT DIRECTLY TO THE PUBLIC thereby rooting his power base firmly in the public, in much the same way as both MARGARET THATCHER and TONY BLAIR did by distancing themselves from traditional Conservative and
Labour supporters [SPATIAL LEADERSHIP] and SEEKING LEGITIMACY DIRECTLY FROM
THE PUBLIC. Blair did this, for example during the 2003 IRAQ WAR, when he put the case for war directly to the public through television discussions and debates; while he frequently referred to government policy as though it was his own, “The people entrusted me with the task of leading their country” and “This is the Britain I offer you”. According to the Presidential model, the Cabinet becomes almost IRRELEVANT to decision making in the same way as it is essentially a rubber stamp for decisions already taken in the United States by the President. The Prime Minister can also increasingly afford to ignore the Cabinet because he has own POPULAR MANDATE given to him directly from the people through PUBLIC ACCLAMATION and so has less need to have his policies legitimised by Cabinet. Such was the extent of Tony Blair’s
MASSIVE PERSONAL MANDATE from the British public that he therefore, unsurprisingly, did not feel that the support of the Cabinet was particularly important to him!

Tony Blair’s “sofa” style of informal government came under attack last night from a former Cabinet Secretary. Lord Butler, who worked closely with the Prime Minister when Labour swept to power in 1997, said Cabinet government had “virtually disappeared” under Mr Blair’s leadership. He claimed just one decision was taken by the Cabinet as a whole during Mr Blair’s first eight months in power – and that was to leave the Millennium Dome to the Prime Minister to sort out! He also voiced concern about the “informality” of the way Mr Blair would make crucial decisions with a handful of aides in his Downing Street “den”. There were often no ministers present and no written records of such discussions”.
Mail on Sunday, 29th May 2007

COLLECTIVE RESPONSIBILITY – THEORY AND PRACTISE
Collective Ministerial Responsibility is a CONVENTION by which the UK is governed and it means that all members of the government [EXECUTIVE] must PUBLICLY
SUPPORT GOVERNMENT POLICY. This applies not only to Secretaries of State but to
Junior Ministers and even Permanent Parliamentary Secretaries. Therefore, whatever
110

your private feelings, you must publicly endorse government policy. In other words, you may express private doubts about a policy to the Prime Minister but you do not criticise it in public. It is because of this convention that cabinet discussions need to be secret. If you cannot bring yourself to publicly support a policy you have no alternative but to resign from the government [as ROBIN COOK did in 2003 over the decision to go to war with IRAQ]. If this convention did not exist then government would be impossible since government divisions would be latched onto by the media and policy making could become confused and anarchic, while public trust in government would be reduced as we would realise just how divided it is!

Collective ministerial responsibility requires that ministers should be able to express their views frankly in the expectation that they can argue freely in private, while maintaining a united front when decisions have been reached.
The Ministerial Code

Collective Ministerial Responsibility also means that if the Prime Minister is defeated on a VOTE OF NO CONFIDENCE in the House of Commons then all members of the government must immediately resign since they have therefore lost the confidence of the legislature to govern the country. The last time that this happened in the UK was when JAMES CALLAGHAN lost a vote of confidence in his Labour government thus leading to the immediate RESIGNATION OF HIS GOVERNMENT which thus precipitated the 1979 General Election.
In practise governments do “LEAK” though and investigative journalists are always keen to discover whether the government really is as united as it must claim to be over controversial policies. This means that collective ministerial responsibility does not always work as well as it should do, as illustrated by JOHN MAJOR’S reference to the “BASTARDS”: three Euro sceptic members of his government [PETER LILLEY,
MICHAEL PORTILLO and JOHN REDWOOD] who were regularly criticising government policy over EUROPE to journalists and did not though resign from the government.
Today, there is a great deal of debate over whether NICK CLEGG has broken collective ministerial responsibility by, for example, withdrawing his support for parliamentary boundary reforms.

INDIVIDUAL RESPONSIBILITY: THEORY AND PRACTISE
Individual Ministerial Responsibility means that ministers are responsible to parliament for what happens in their own department. This is why ministers need to come to parliament to defend and explain the work of their department; this is done either in MINISTERIAL QUESTION TIME or in the regular scrutiny that a SELECT
COMMITTEE has over a particular department. This convention also suggests that if your department makes a significant mistake, the minister should be made
ACCOUNTABLE for what has happened in his department (whether or not he was

111

personally involved) and should therefore resign. A minister is therefore ULTIMATELY
RESPONSIBLE for everything that happens in his department, including the work of his civil servants, and should therefore resign if things go wrong even if he or she was personally uninvolved.
The classic examples of individual responsibility are the 1954 resignation of the
Secretary of State for Agriculture, SIR THOMAS DUGDALE, over mistakes that his civil servants had made and the 1982 resignation of the Foreign Secretary, LORD
CARRINGTON, who took responsibility for not being better informed that ARGENTINA was planning to invade the FALKLANDS.
In recent years, individual ministerial responsibility has not been adhered to as much as the convention suggests that it should. Instead, ministers have increasingly “HUNG
ON” to office even when serious questions have been raised about the work of their
Department. The classic example of this was MICHAEL HOWARD’S refusal to resign as HOME SECRETARY even though major Home Office incompetence had led to a number of prisoner escapes. Instead he publicly put the blame on, DEREK LEWIS, the civil servant responsible, which is entirely in defiance of the principle of individual minister responsibility.

WHAT FACTORS INFLUENCE THE
APPOINTMENTS TO THE CABINET?

PRIME

MINISTER’S

A Prime Minister will want to POLITICALLY BALANCE his cabinet in order to please all wings of his party; if he only included one faction of the party in government the party could FRACTURE. Thus, TONY BLAIR was eager to balance his cabinets by including figures who were popular with OLD LABOUR [such as JOHN PRESCOTT] alongside
MODERNISERS, such as JACK STRAW and PETER MANDELSON.
Today, Cameron has within the government ONE NATION TORIES such as KENNETH
CLARKE, while balancing their influence with those more associated with the right of the party, such as THERESA MAY [Home Secretary] and CHRIS GRAYLING [Justice
Secretary].
Of course, too, because there is now a COALITION GOVERNMENT the Prime Minister also has to fairly distribute seats in government to the two parties. If this did not happen the coalition would, of course, collapse. Therefore, Cameron has had little choice but to make NICK CLEGG Deputy Prime Minister, as well as appointing four other Liberal Democrat MPs to the Cabinet [Edward Davey; Energy, Danny Alexander;
Chief Secretary to the Cabinet, Vince Cable; Business, Michael Moore; Scotland]
A Prime Minister will also be well advised to include those who are intensely LOYAL to them since they can be relied upon in a crisis to support you. GEORGE OSBORNE, for example, is a very loyal Chancellor of the Exchequer with economic principles that are very similar to those of the Prime Minister.

112

You may also want to include potential RIVALS in government since this binds them to COLLECTIVE RESPONSIBILITY and stops them from making trouble for you on the backbenches; this is why Blair had to have GORDON BROWN in his Cabinet as he would have been a very real threat to him from the backbenches.
The Cabinet should also include figures who are popular with the media, and trusted by the public, since such “big hitters” will help the government retain popularity.
VINCE CABLE gained such a position of respectability following his publication of the acclaimed “THE STORM” so was an obvious choice as BUSINESS SECRETARY.
It is also important to have in your cabinet those who are capable of handling a very pressurized work load and will not buckle under the strain; THERESA MAY is very hard working and committed at the Home Office and has shown great resilience under the strains of that notoriously difficult office. It is important, too, to include ministers who are capable of generating ideas and moving forward the political agenda which is why
MICHAEL GOVE has been such an influential Education Secretary. At the same time you want a politician who can SCORE POINTS FROM THE OPPOSITION and give your party a fighting chance in a General Election; GEORGE OSBORNE has, for example, become increasingly confident in his savaging of ED BALLS.

WHY DO MINISTERS RESIGN FROM THE GOVERNMENT /
CABINET?
Ministers can resign from the government if they feel they can no longer support a government policy that they fundamentally oppose. ROBIN COOK, for example, could no longer obey COLLECTIVE RESPONSIBILITY in favour of the INVASION OF IRAQ in
2003 and therefore had no choice but to resign from the cabinet so that he could publicly speak out against the war. In the same way NIGEL LAWSON [1989] and
GEOFFREY HOWE [1990] resigned from the Thatcher Government because they could no longer keep silent on their opposition to her increasingly sceptical policy on Europe.
A minister can also resign from the government with the express purpose of
DESTABILISING THE PRIME MINISTER IN ORDER TO PROVOKE A LEADERSHIP
CHALLENGE. This was certainly a key reason why GEOFFREY HOWE resigned in 1990
[“it is up to others to consider their own response to the tragic conflict of loyalties with which I have wrestled for perhaps too long”. This is also why JOHN REDWOOD resigned from the government to challenge Major for the leadership of the
Conservative Party in 1995.
Ministers can also resign as a result of taking INDIVIDUAL MINISTERIAL
RESPONSIBILITY for mistakes within their Department. This is why SIR THOMAS
DUGDALE resigned over CRICHEL DOWN and why LORD CARRINGTON resigned over the Argentine invasion of the FALKLANDS since he felt that the Foreign Office should have been better informed about Argentina’s war plans.
113

However, ministers can also resign because of more PERSONAL REASONS. DAVID
BLUNKETT first resigned over allegations that he had used his influence as Home
Secretary to extend his girlfriend’s children’s nanny’s visa [NANNYGATE], while DAVID
LAWS resigned from the Coalition when it was suggested that he had claimed inappropriate expenses on behalf of his partner. A minister may also resign if they break the MINISTERIAL CODE OF CONDUCT. For example, LIAM FOX resigned as
DEFENCE SECRETARY when it became clear that his friend ADAM WERRITY, a political lobbyist, was inappropriately using his influence to provide business contacts with special access to Fox.

SOURCES OF PRIME MINISTERIAL POWER
A Prime Minister’s power derives from the fact that he is able to COMMAND THE
SUPPORT OF THE MAJORITY OF MPs IN THE HOUSE OF COMMONS. This means that he has the support of a majority of MPs in parliament and so will be able to get his legislative programme through Parliament. As a result of this the monarch will therefore request that that individual form a government. In short, the Prime
Minister’s authority derives from the fact that the Monarch is confident that he has the confidence of the House of Commons. The Monarch therefore devolves ROYAL
PREROGATIVE POWERS, such as forming a government, on the party leader best able to maintain the support of the House of Commons. David Cameron thus became
Prime Minister in 2010 because the support of 307 Conservative MPs and 57 Liberal
Democrat MPs would give a MAJORITY in the House of Commons. [364 MPs out of
650 / 56% of MPs]
A Prime Minister’s authority also derives from the fact that he is usually a PARTY
LEADER and therefore also has the support of his political party to form a government.
Thus DAVID CAMERON was the leader of the political party with the most MPs in 2010 and so was asked by the monarch to form a government on her behalf.
A Prime Minister’s authority can also depend upon a PERSONAL MANDATE from the public; generally in an emergency. This often provides a Prime Minister with his or her own legitimacy during a crisis. Thus, in 1940, WINSTON CHURCHILL’S stirring speeches gave him an informal, but nonetheless important, mandate from the British people not to surrender to the Nazis; while TONY BLAIR in 2003, knowing that parliament was very divided over the IRAQ WAR sought his own personal mandate by reaching out directly to the public through the medium of television.

POWERS OF THE PRIME MINISTER

114

The Prime Minister APPOINTS TO THE CABINET and can PROMOTE, DISMISS or
RELEGATE MINISTERS. This gives the Prime Minister a very important role in constructing the sort of government that he or she believes will carry out government policy most effectively. For example, as Conservative policy has shifted rightwards,
CHRIS GRAYLING replaced KENNETH CLARKE as JUSTICE SECRETARY. He can also
OVERRULE A CABINET COLLEAGUE, as CAROLINE SPELMAN at the ENVIRONMENT discovered when the Prime Minister abruptly cancelled the sale of forests.

The highly contentious plans for a £250 million sale of England’s forests will be abandoned because of the furious backlash that has hit the Government. David
Cameron humiliated his Environment Secretary, Caroline Spelman, in the House yesterday, and shocked MPs, when he disowned the policy.
The Independent, 17th February 2011

The Prime Minister also SETS THE AGENDA for meetings of the CABINET, directs the debate and finally sums up the meeting; deciding what the mood of the meeting is.
This is a particularly important power because by directing a cabinet meeting, a Prime
Minister can often move the discussion in the direction they want.
A Prime Minister can also establish CABINET COMMITTEES to deal with specific problems that are too specialized for the whole cabinet. Thus, DAVID CAMERON has established STAR CHAMBER to sort out disputes over CUTS IN PUBLIC SPENDING between the TREASURY and DEPARTMENTS OF STATE. During the 2011 crisis over
Libya a NEW CABINET COMMITTEE on LIBYA was established; chaired by the Prime
Minister.
The Prime Minister also has extensive influence as PARTY LEADER, especially at PARTY
CONFERENCE TIME when he can use his or her KEY NOTE SPEECH, which will be extensively analysed in the MEDIA, to focus or refocus the party’s direction. David
Cameron has, for example, put his personal prestige as Prime Minister behind the proposed EU REFERENDUM.

The Prime Minister still retains significant ROYAL PREROGATIVE POWERS, such as negotiating on behalf of the UK’s best interests, with other foreign leaders, at, for example, meetings of NATO and the EUROPEAN UNION or in BILATERAL MEETINGS with FOREIGN LEADERS. This was certainly the case when BLAIR and BUSH together decided on the OVERTHROW OF SADDAM HUSSEIN.
As a result of the royal prerogative the Prime Minister also has great powers of
PATRONAGE and, as well as appointing to the cabinet, also has the right of veto over
JUDICIAL APPOINTMENTS and appoints SENIOR CIVIL SERVANTS, LIFE PEERS in the
HOUSE OF LORDS and advises the Monarch over the appointment of ANGLICAN
BISHOPS. INTELLIGENCE SERVICES REPORT DIRECTLY TO THE PRIME MINISTER.

115

HOW IS THE
PARLIAMENT?

PRIME

MINISTER

ABLE

TO

CONTROL

The Prime Minister is able to control Parliament since he has a “PAY ROLL VOTE” of all those MPs that are members of the GOVERNMENT and therefore, because of the principle of COLLECTIVE SECURITY, have to vote for the government. Other MPs in his party [or coalition] can also be influenced by the WHIPS who can use both bribes and threats to ensure loyalty to the Prime Minister.
The Prime Minister also has a great deal of PATRONAGE POWER and can therefore hold open the promise of a MINISTERIAL ROLE, KNIGHTHOOD or appointment to the
HOUSE OF LORDS in order to gain the support of backbench MPs. He can also call upon the LOYALTY of his MPs to support the election manifesto commitments on which they were elected.

WHAT ARE THE MAIN LIMITATIONS ON THE POWER OF THE
PRIME MINISTER?
There will always be very potent factors that can dramatically reduce the authority of a Prime Minister, such as a SMALL PARLIAMENTARY MAJORITY. JAMES CALLAGHAN
[PM, 1976-1979] had such a small majority over MARGARET THATCHER and the
CONSERVATIVES that when they called a VOTE OF NO CONFIDENCE he lost and so his government resigned office; subsequently losing the 1979 General Election. JOHN
MAJOR, from 1992-7, also had a very small parliamentary majority which dramatically undermined his authority because rebels in his party who thought that Major’s policies were too pro European were quite prepared to vote against their own government on important issues!
A Prime Minister’s authority is also reduced if he or she LOSES THE SUPPORT OF THE
CABINET. For example, MARGARET THATCHER, for years dominated her Cabinet colleagues by the force of her personality but in the end her STRIDENT OPPOSITION
TO EUROPE ensured the resignation of first her CHANCELLOR OF THE EXCHEQUER,
NIGEL LAWSON [1989] and then the DEPUTY PRIME MINISTER, GEOFFREY HOWE
[1990]. Both these politicians were “TORY BIG BEASTS” and Thatcher could not afford to lose their support so publicly! The resignation speech of Geoffrey Howe was particularly brutal and by making clear just how much at odds she was with most of her Cabinet persuaded MICHAEL HESELTINE to challenge her for the leadership in
November 1990.
Like Brown, JOHN MAJOR’S authority was also weakened by DISLOYALTY FROM
WITHIN HIS CABINET and by a LACK OF SUPPORT WITHIN THE PARLIAMENTARY
PARTY. He was once heard complaining of “THOSE BASTARDS” in the Cabinet [PETER

116

LILLEY, MICHAEL PORTILLO and JOHN REDWOOD] who were constantly seeking to undermine him within the Conservative Party for being TOO PRO EUROPEAN. The
“BASTARDS” had, worryingly for Major, a lot of support from Eurosceptics within the parliamentary party and, because, as we have seen, MAJOR HAD A TINY MAJORITY
OVER THE LABOUR OPPOSITION, this gave them enormous opportunities to ruin the
Prime Minister’s authority. Indeed, on one occasion because of Tories actually voting against the government he lost a vote on the bill to incorporate the MAASTRICHT
TREATY, which was encouraging European integration, and could only survive by calling a vote of confidence in the government.
Even TONY BLAIR’S authority was weakened by the fact that for TEN YEARS his
CHANCELLOR OF THE EXCHEQUER, GORDON BROWN, had a virtual VETO over
ECONOMIC POLICY, as a result of a deal made at GRANITA restaurant in 1994, [Blair, for example, wanted to join the Euro but Brown made this impossible for him to achieve]. GORDON BROWN’S authority was also weakened because of GROWING SPLITS in his
CABINET, such as the damaging resignation of JAMES PURNELL, as the General
Election looms. His lack of authority is also neatly illustrated by his attempt in JUNE
2009 to replace ALISTAIR DARLING with ED BALLS as CHANCELLOR OF THE
EXCHEQUER. In the so-called “NIGHT OF THE BLUNT KNIVES”, Darling threatened to resign rather than go quietly ensuring that Brown had to back down. The fact that
Brown had also not won a General Election and lacked popular support in the country also further undermined his prestige.
If a Prime Minister loses the support of the PARLIAMENTARY PARTY it will also dramatically undermine their power and influence as Prime Minister. BLAIR’S SPATIAL
STYLE OF LEADERSHIP so DISTANCED him from the PARLIAMENTARY PARTY and
LABOUR’S GRASSROOTS that he had little choice but to leave office in 2007. After all, the invasion of IRAQ, TUITION AND TOP UP FEES, FOUNDATION HOSPITALS, CITY
ACADEMIES AND RESTRICTIONS ON CIVIL LIBERTIES had undermined his support within the Party. Indeed, enough Labour MPs rebelled to defeat the Blair’s 90 DAY
DETENTION BILL, while GORDON BROWN dropped attempts to DENY RESIDENCY
RIGHTS TO GURKHAS after the LIBERAL DEMOCRATS won an OPPOSITION DAY
MOTION on the subject with the support of Labour MPs. DAVID CAMERON has also
DROPPED PLANS FOR ENGLISH FORESTRY PRIVATISATION since these proposals were so unpopular on all sides of the House of Commons. In September 2013, David
Cameron was briefly humiliated by parliament when MPs refused to support him in his plans for military action in SYRIA.
The HOUSE OF LORDS can also be a significant restraint on the power of the Prime
Minister. GORDON BROWN’S authority was, for example, significantly undermined by the Lords when they voted with HUGE MAJORITIES against both SUPER CASINOS and 42 DAY DETENTION. In both cases, Brown dropped the policy since it was clearly so controversial! Under the Coalition the House of Lords has also become more proactive since the SALISBURY CONVENTION, whereby the Lords will not oppose any

117

manifesto pledge of the winning party, since neither party can claim they won on their manifesto. The influence of the MEDIA is also significant in checking the power of a Prime
Minister and if the media decides that it does not like the way in which the Prime
Minister is handling crises [“EVENTS, DEAR BOY, EVENTS”, HAROLD MACMILLAN] or directing policy it can dramatically undermine his authority; especially if members of the Prime Minister’s party and even cabinet are briefing against him. The authority of
JOHN MAJOR and GORDON BROWN was undermined by constant press attacks, while during TONY BLAIR’S last years in power the press were pushing hard for him to leave office because they now resented his perceived HYPOCRISY and were resentful of the way in which his government had manipulated the media with the “DODGY DOSSIER” in 2003 which had made a convincing case for NON EXISTENT WEAPONS OF MASS
DESTRUCTION in IRAQ.

Gordon Brown’s attempt at a fireside chat on the subject of MP’s expenses attracted ridiculer for his fixed, unnatural smile which continually appeared to slip, his nodding head, his waggly eye brows and stilted manner. Hundreds of ordinary viewers posted hostile remarks underneath the video on the Downing Street website and, after a while, the comments had to be removed. Gordon Prentice, a Labour backbencher, told the Commons last week that the broadcast made him flinch and “was just too horrible to watch”. According to the Communities Secretary, Hazel Blears, “you tube if you want to. But it is no substitute for knocking on doors”.
The Times, May 5th 2009
Mr Rawnsley’s book “The End of the Party” contains allegations that Mr Brown hit one of his officials during an incident when he was hurrying to a reception for visiting dignitaries. On another occasion his temper is said to have snapped when a secretary failed to keep up as he dictated a memo to her. He reportedly pulled her from her seat and sat at the computer keyboard himself, bashing out the memo.
Mail on Sunday, 31st January 2010

The authority of a Prime Minister can also be undermined by an increasingly SELF
CONFIDENT and ASSERTIVE OPPOSITION. For example, David Cameron, as leader of the Opposition, scored a lot of points off Gordon Brown, making him look petulant, illtempered and emotional; unfortunate characteristics to associate with a Prime
Minister.
PRESSURE GROUP ACTIVITY [especially if it has the support of the MEDIA and MPs] can also undermine the authority of a Prime Minister. As we have seen the POLL TAX
RIOTS fatally undermined THATCHER’S AUTHORITY, while the JOANNA LUMLEY led campaign in support of the GURKHAS gained so much support in the media [especially the Daily Mirror], as well as amongst MPs that GORDON BROWN backed down. DAVID

118

CAMERON backed down over the FORESTRY SELL-OFF when the NATIONAL TRUST came out against the policy.

The highly contentious plans for a £250 million sale of England’s forests will be abandoned because of the furious backlash that has hit the Government. The u turn came after MPs and hundreds of thousands of members of the public joined the vigorous protests against the proposed sell off. It had been condemned by more than
500,000 people in an online petition and a recent survey found that more than 80% of the public wanted the woodlands to stay in public hands.
The Independent, 17th February 2011

Heading a COALITION also provides a major restraint on the power of a Prime
Minister. For example, DAVID CAMERON is unable to implement certain policies since if he did he would lose the support of the Liberal Democrats and his government could fall. He thus had to accept a referendum on AV, while certain manifesto commitments such as repealing the HUMAN RIGHTS ACT are impossible so long as he is in a coalition with the Liberal Democrats. His authority, as Prime Minister, is also significantly reduced because, having to share office with the Liberal Democrats has reduced his
PATRONAGE POWERS since he can offer fewer places in government to his MPs, while
Cameron did not achieve a parliamentary majority in 2010 and, therefore, his MPs are less loyal to him than they were to Blair who achieved stunning parliamentary majorities in 1997 and 2001. Increasingly, too, MPs are becoming more rebellious and will not be cowed by the Whips, especially since their patronage powers are so reduced now. For example, Conservative MPs in marginal constituencies see political advantage in actively distancing themselves from unpopular government policies, such as HS2, since they think this is a better way of retaining their seats in 2015 than by slavishly following government policy; this is, of course, not helpful for Cameron’s authority. “Today, I voted against the Government’s Bill that would approve funding for High speed Rail 2.
I do not believe that this project is in the national interest or in the interest of local residents and although I was disappointed to see the Bill pass through the House of
Commons, I will continue to campaign for the Government to look again at this project and put in place an independent inquiry to assess the case for HS2.
Chris White MP [Leamington Spa and Warwick], 31st October 2013

CONCLUSION: The best sort of essay on the ways in which Prime Ministerial power is constrained will, of course, link all of these arguments together and show how a
COMBINATION OF THESE FACTORS will always undermine a Prime Minister.

DIFFERENCES BETWEEN PRIME MINISTERS AND PRESIDENTS

119

PRIME MINISTERS

PRESIDENTS

Even though it has been argued that
Prime Ministers are becoming more
“presidential”
the nature of parliamentary government means that a
British Prime Minister could not practically be a “president”.
This is because the British Prime Minister is NOT DIRECTLY ELECTED BY THE
PUBLIC. In a General Election we only vote for the legislature [parliament] and the party leader who has the confidence of the legislature thus becomes Prime
Minister.

In a presidential form of government like
France or the United States the
President and Legislature are elected
SEPARATELY which means that the
President has his or her own PERSONAL
MANDATE FROM THE PUBLIC. Thus in the United States the electorate vote for
President but they also vote separately for congress so you could end up with a
As a result of this, the Prime Minister is Republican President and a Democrat
ACCOUNTABLE to the LEGISLATURE and congress. if he or she loses the confidence of the legislature and loses a PARLIAMENTARY Since the President is separately elected
VOTE
OF
CONFIDENCE
[JAMES from the legislature then he is NOT
CALLAGHAN, 1979] then the Prime ACCOUNTABLE TO THE LEGISLATURE
Minister and government will be forced and so, as noted, it is perfectly common to resign. to have one party controlling the
Presidency and another congress.
A Prime Minister is also the HEAD OF
GOVERNMENT BUT NOT HEAD OF
STATE. In the UK the Head of State remains the MONARCH although most The President of the United States, for governing powers have now been example, combines the role of being devolved to the Prime Minister.
HEAD OF GOVERNMENT with also being
HEAD OF STATE.
EXAM HINT: If you are asked whether
British Prime Ministers are becoming more presidential therefore explain that this simply refers to whether their STYLE
IS PRESIDENTIAL. In terms of the nature of the office the characteristics are actually very different!

120

TO WHAT EXTENT HAVE PRIME MINISTERS BECOME MORE
PRESIDENTIAL IN RECENT YEARS? [40 MARKS]
It has been argued that, since the 1960’s, THE WAY PRIME MINISTERS CONDUCT
GOVERNMENT as well as their RELATIONS WITH THE MEDIA, and through the media,
THE PUBLIC have all contributed to a MORE PRESIDENTIAL STYLE OF GOVERNMENT.
In short, in a Presidential form of government the PRIME MINISTER can be seen as
SPEAKING ON BEHALF OF THE NATION.

In an essay on Presidential government make clear to the examiner that the issue is all to do with whether the style of Prime Ministerial government is becoming more presidential. A Prime Minister cannot ever be a true president because they are not directly elected by the public and so, however popular they are, they have no personal mandate from the electorate and their power base remains firmly based on parliament. At the same time, the Prime Minister is NOT HEAD OF STATE, in the same way as a President is, so cannot therefore be truly presidential!
The question, therefore, that we have to answer is whether a Prime Minister can have
PRESIDENTIAL CHARACTERISTICS.

Debate over the “presidentialism” of UK politics was apparent as early as the 1960’s when HAROLD WILSON was criticised for the way in which he used the MEDIA to develop his own BRAND OF PERSONALITY which came to dominate politics. He was, for example, photographed with “THE BEATLES” and his PIPE-SMOKING / YORKSHIRE
BURR and stirring “modern” speeches, “THE WHITE HEAT OF TECHNOLOGY” focused intense media attention on the personality of the Prime Minister.
Both MARGARET THATCHER and TONY BLAIR developed this style of government even further particularly by developing a DISTINCTIVE POLITICAL STYLE which
REACHED OUT BEYOND TRADITIONAL PARTY POLITICS to those who did not traditionally see themselves as either Conservative or Labour supporters. MICHAEL
FOLEY has called this “SPATIAL LEADERSHIP”, whereby a Prime Minister creates his own space by actually distancing himself from his party and thus secures a PERSONAL
MANDATE DIRECTLY FROM THE PUBLIC (in the same way that a President does). This therefore enables a Prime Minister to rise above party and, in a presidential manner, appeal directly to the public. Thatcher did this by contrasting her radicalism with the inertia and “One Nationism” of much of the Conservative Party, while TONY BLAIR was a superb example of Presidential Spatial leadership when he REACHED DIRECTLY
TO THE PUBLIC on issues such as “THE WAR AGAINST TERROR” and “EDUCATION
REFORM” realising that they would be more likely to support him than the Labour
Party itself!
Blair further encouraged such “presidentialism” by establishing a more “presidential” atmosphere in DOWNING STREET with a dramatic increase in the size of the Prime

121

Minister’s PRIVATE OFFICE; particularly the Prime Minister’s own POLICY UNIT ensuring that the various departments of state were implementing “JOINED UP
GOVERNMENT”, while new appointments like a CHIEF OF STAFF were reminiscent of the White House. Increasing numbers of decisions, such as on YOUTH CRIME and
COUNTER TERRORISM have thus derived from the Prime Minister’s Office rather than the Cabinet. Today the Prime Minister even has his own WEBSITE and you can
Directly E Mail him as well as listening to his PERSONAL BLOG. The way in which
DAVID CAMERON tweets his “followers” might also be seen as potentially presidential. Equally, Blair’s PERSONAL INTERVENTIONS IN CRISES [sometimes over the authority of the minister concerned] FOCUSED ATTENTION ON BLAIR RATHER THAN HIS
GOVERNMENT. For example, it was Blair who announced to the PRESS the DECISION
TO CONSTRUCT THE MILLENNIUM DOME as well as the DATE OF THE 2001 GENERAL
ELECTION, while on a number of occasions Blair was able to successfully encapsulate the MOOD OF THE NATION such as in his “PEOPLES’ PRINCESS” speech in 1997 and in his personal interventions in the NORTHERN IRELAND PEACE PROCESS, “This is not a time for sound bites. We feel the weight of history upon us”. During the IRAQ WAR he REACHED OUT DIRECTLY TO THE PUBLIC in TELEVISION SEMINARS focusing on the
Prime Minister’s personal integrity in being prepared to attack Iraq.
The DEVELOPMENT OF THE MEDIA has also provided MORE OPPORTUNITIES FOR
PRIME MINISTERS TO ACT IN A PRESIDENTIAL MANNER. Thus, the media’s
ENTHUSIASM FOR INDIVIDUAL CELEBRITY and their enthusiastic coverage of his
PERSONAL INTERVENTIONS IN GLOBAL CRISES further increased the spot light on
Blair rather than his government. Blair’s own personality did little to discourage this,
“The people entrusted me with the task of leading their country” and “This is the
Britain I offer you”.
DAVID CAMERON might, for example, be seen as having acted in a presidential manner in his high profile decision to stake the outcome of the next General Election on his decision to give the British people a REFERENDUM ON MEMBERSHIP OF THE
EU, as well as the way in which he used his authority to support GAY MARRIAGE.
However, it would be wrong to say that all Prime Ministers are inevitably becoming more presidential since whether or not a Prime Minister acts in a presidential manner depends upon his or her CHARACTER and POLITICAL CIRCUMSTANCES. Thus,
EDWARD HEATH [1970-4] never had the PUBLIC POPULARITY to enable him to be
Presidential [in fact Harold Wilson said of him that he was “like a shiver waiting for a spine to run down” and that in the 1970 General Election Heath was going around the country, “stirring up apathy”. Equally, JOHN MAJOR was personally ill suited to
Presidential government, while, after 1992, he had such a tiny parliamentary majority and New Labour was growing in such popularity that he lacked the power base and personal popularity to have the ghost of a chance of being presidential.
Brown himself was not a charismatic figure (unless you are die-hard Presbyterian Scots
Labour). Indeed, his initial political strategy was to distance himself from Blair’s

122

presidentialism, “NOT FLASH, JUST GORDON”, while the late ROBIN COOK once remarked that, he has, “A FACE LIKE A WET WINTER MORNING IN FIFE”. He also publicly condemned “SOFA GOVERNMENT” in which the Prime Minister makes major political decisions in his sitting room rather than cabinet and promised to involve the cabinet much more in decision making, while there was a great deal less media interest in Brown’s family than Blair’s. His LACK OF RESONANCE IN ENGLAND and
POOR POPULARITY LEVELS also did not give him the platform from which to project
“presidentialism”.
DAVID CAMERON’S style is also, by necessity, less presidential than that of Blair with him emphasising the closeness of his relationship with NICK CLEGG. After all, presidentialism would hardly be appropriate for a Prime Minister who requires the support of the Liberal Democrats to remain in office. Indeed, Cameron’s style, rather than presidential, is of the noblesse oblige of the ruling class! His unflappable style, assured manner, in reality, has more in common with HAROLD MACMILLAN than
TONY BLAIR!
To conclude whether or not a Prime Minister acts in a presidential manner depends very much on his or her personality and power base, while Prime Ministers should also beware of trying to act in too presidential manner since this is likely to antagonise the
House of Commons from where they derive their political power. For example, in 1990 when MARGARET THATCHER had so DISTANCED HERSELF FROM HER GOVERNMENT, the parliamentary party decided that it had no choice but to overthrow her, while
TONY BLAIR resigned from office in 2007 knowing that the party was eager to ditch a leader who had become increasingly alienated from grassroots Labour. In short, any
Prime Minister should be very careful about acting in too presidential a manner. After all, as we have seen, he is not directly elected and does not possess his own independent power base – as was nicely illustrated when Blair lost the 90 DAY TERROR
BILL VOTE on which he had staked so much. In a parliamentary system in which the
Prime Minister depends upon the support of parliamentary it is thus unwise to attempt a presidential style of government!

TO WHAT EXTENT HAVE PRIME MINISTERS BECOME MORE
POWERFUL IN RECENT YEARS? [40 MARKS]
It has been suggested that, in recent years, Prime Ministers have become MORE
POWERFUL since the size of the PRIME MINISTER’S PRIVATE OFFICE has dramatically increased, giving the Prime Minister increased access to non cabinet based information and obviating the need for debate. Thus the POLICY UNIT, for example, now provides the KEY FOCUS FOR THE DEVELOPMENT OF POLITICAL POLICY, rather than the Cabinet and since it reports directly to the Prime Minister this has naturally increased his authority.
The CABINET OFFICE now co-ordinates the work of the various Departments of State ensuring “JOINED UP GOVERNMENT”, thereby removing ministers room for

123

manoeuvre, while new “UNITS” with specific targets, such as the SOCIAL EXCLUSION
UNIT, the UK ANTI DRUGS CO-ORDINATION UNIT report directly to the Prime
Minister. The number of POLITICAL ADVISERS [SPIN DOCTORS] at NUMBER 10 has also increased dramatically under DAVID CAMERON, while he has also established
TARGETS by which to judge the performance of Departments of State, further increasing his authority over members of the Cabinet.
Charismatic Prime Ministers, such as MARGARET THATCHER and TONY BLAIR have also exercised “SPATIAL LEADERSHIP” deriving their authority from the public through the force of their personality, rather than as a result of their leadership of a particular party, while the INTENSE MEDIA SPOTLIGHT on the personality of the Prime Minister has enabled successful Prime Ministers to use the media to further increase their hold on power at the expense of the Cabinet. The CHILCOT ENQUIRY, for example, illustrates the extraordinary power that Blair was able to wield over government and how supine the Cabinet were in not standing up to him. Truly then, the two most important words in government were “TONY WANTS”. Many other key decisions were also made by Blair without them being fully discussed in cabinet such as
INTEREST VARYING RATES being given to the BANK OF ENGLAND and the decision to build the MILLENNIUM DOME.

Straw told the enquiry that the cabinet included a number of “strong-minded people”, among them Gordon Brown, John Prescott, David Blunkett, Charles Clarke and
Margaret Beckett: “None of them were wilting violets; their judgement was that it was not necessary to go into the process by which Peter Goldsmith, the Attorney
General, came to his view. I don’t recall cabinet as a whole receiving legal advice on the matter”, Straw told the inquiry. “All the cabinet wanted to know was: is it lawful or is it not lawful”. What was required in the end was “essentially a yes or no decision” from the Attorney General, he added.
Jack Straw before the Chilcot Enquiry into the Iraq War

However, although Prime Ministers may seem so powerful as to be impregnable, it is important to remember that, unlike a US President, they are not elected separately from the legislature and therefore DO NOT HAVE THEIR OWN PERSONAL MANDATE
WHICH DERIVES DIRECTLY FROM THE PUBLIC. This means that a Prime Minister cannot ignore the support of the CABINET, the PARLIAMENTARY PARTY and indeed the WHOLE PARTY MEMBERSHIP. If he or she moves away from these triple sources of their power they are likely to be doomed, while if they have a SMALL
PARLIAMENTARY MAJORITY they will always be vulnerable to any REBELLION from within their own party.

“The post of the Prime Minister is whatever its holder chooses and is able to make of it”. HH Asquith, Prime Minister, 1908-1916

124

It is therefore misleading to suggest that Prime Ministers have become more powerful in recent years. CIRCUMSTANCES were such that Prime Ministers, like MARGARET
THATCHER and TONY BLAIR could dominate politics for a time. But even their authority was ruined by as HAROLD MACMILLAN once put it, “EVENTS, DEAR BOY
EVENTS”; Thatcher and the Poll Tax Riots and Blair the Iraq War.
JOHN MAJOR was never able to dominate politics because he had a SMALL MAJORITY over Labour and a party and cabinet that was hopelessly divided over FURTHER
EUROPEAN INTEGRATION. GORDON BROWN was, similarly, weak because he lacked an ELECTORAL MANDATE and, when he failed to call an immediate General Election, lost the support of the PRESS who turned against him in a way reminiscent of their contempt for MAJOR. A Prime Minister is also only as powerful as PARLIAMENT allows him to be. GORDON BROWN was defeated over 42 DAY DETENTION and
SUPER CASINOS in the LORDS, while, when he lost the OPPOSITION DAY MOTION condemning the government’s policy denying residency rights to GURKHAS in the
Commons he abandoned the policy.
DAVID CAMERON has particularly significant constraints on his authority as Prime
Minister in a COALITION GOVERNMENT. This means that, in order to keep the support of his Liberal Democrat partners, he has had to abandon certain manifesto commitments such as the repeal of the HUMAN RIGHTS ACT, as well as accepting some policies such as the AV REFERENDUM. He has also enjoyed less freedom of appointment to the Cabinet than recent Prime Ministers, since he has had to include
FIVE LIBERAL DEMOCRATS in the CABINET as the PRICE OF COALITION which has, consequently, diminished his PATRONAGE POWERS within his own party as he now has fewer ministerial offices to offer them in return for their loyalty. The control he is able to wield over his party has thus been significantly diminished and his defeats over both the FOREST SALE and MILITARY ACTION in SYRIA illustrate that a Prime
Minister’s authority always depends upon whether or not they can rely upon a
PARLIAMENTARY MAJORITY.
It might also be argued that in a number of ways Prime Ministers’ powers are actually in the process of being CONSTITUTIONALLY REDUCED! As a result of DEVOLUTION, for example, the Prime Minister’s authority has diminished in WALES, SCOTLAND and
NORTHERN IRELAND, while much of the running of LONDON is now in the hands of its ELECTED MAYOR. At the same time, the ROYAL PREROGATVE is in the process of being reduced – it has now become a CONSTITUTIONAL CONVENTION that
PARLIAMENT SHOULD BE CONSULTED BEFORE THE PRIME MINISTER, ON BEHALF OF
THE MONARCH, DECLARES WAR [IRAQ, LIBYA and SYRIA], while the Prime Minister has also given up his RIGHT TO DECIDE THE DATE OF THE GENERAL ELECTION.
Equally, the POOLING OF MORE SOVEREIGNTY WITHIN THE EUROPEAN UNION has diverted power from Westminster and consequently the Prime Minister.
Therefore, in recent years there have been a number of strong Prime Ministers, especially Thatcher and Blair, who have tried to dominate the cabinet, and [especially in the case of Blair] achieved a strong relationship with the public and dramatically

125

increased the strength of their Private Office working through political advisers rather than through cabinet members. However, one might argue that these have been the exceptions rather than the rule and that, in fact, politics has, as usual, been dictated by circumstances with some Prime Ministers possessing the strength and circumstances to extend their authority much more effectively than others.

HAS THE EXPERIENCE OF COALITION GOVERNMENT
STRENGTHENED OR WEAKENED PRIME MINISTERIAL POWER?
[40 MARKS]
As a result of the establishment of the Coalition it could be argued that the power of the Prime Minister has been increased since he has the support of a clear majority of
MPs in the House of Commons, however coalition government also puts significant restraints on his freedom of manoeuvre since he will continually have to make compromises and cannot exercise the sort of patronage powers that Prime Ministers generally enjoy.
Since the Prime Minister chose to work with the Liberal Democrats in a Coalition, rather than trying to govern in a minority Conservative administration, this does mean that he officially has the support of 56% of the MPs in the House of Commons. This has ensured that, with such a comfortable majority, he has been able to pass the government’s legislative programme through the House of Commons with little difficulty. If, for example, he had not locked the Liberal Democrats into supporting the
Conservatives, it would have been much more difficult for a minority Conservative government to have increased top up fees and so drastically cut public spending, as the Liberal Democrats would have been much more likely to vote against such measures. The Coalition partners can also strong mandate from the public for their government since they can claim the support of 59% of the public [36% Conservative
/ 23% Liberal Democrat]. This has all provided the government with stable roots; added to, by the fact that to win a Vote of Confidence, the Opposition would now have to gain 55% of the vote in the House of Commons, which, given the arithmetic, is now virtually impossible.
However, the Prime Minister’s room for manoeuvre has also been significantly weakened by the establishment of the Coalition. He had, therefore to call a referendum on AV since this was the price of coalition with the Liberal Democrats, while he has been unable to proceed with the repeal of the Human Rights Act because the Liberal Democrats are committed to it. The Conservative manifesto also committed the government to parliamentary boundary reform, but they have been unable to proceed with this when, furious at the failure of Lords reform, Nick Clegg removed the support of his MPs for boundary changes. Having, therefore, to constantly compromise with his Coalition partners has thus meant that the Prime
Minister cannot control the legislative programme with the same sort of authority as
Tony Blair enjoyed after achieving such massive parliamentary majorities in 1997 and
2001. At the same time, the Quad [David Cameron, George Osborne, Nick Clegg and

126

Danny Alexander] agree policy before Cabinet ensuring that the Prime Minister cannot launch a major initiative without the consent of the Liberal Democrats. The Prime
Minister’s traditional right to balance the Cabinet in any way he sees fit has also been challenged by the fact that he now has to have 5 Liberal Democrats in the Cabinet.
As a result of the establishment of the Coalition, the Prime Minister’s authority within his own Party has been diminished and Conservative backbenchers, especially on issues such as HS2, have become increasingly rebellious. This is because the Prime
Minister now has fewer ministerial offices to offer, as patronage to his MPs, to encourage them to support the government. The Whips, therefore, exercise less authority over them than before, while Conservative backbenchers have less loyalty to Cameron than Labour backbenchers had to Blair since Blair provided them with massive majorities and Cameron failed to win his General Election. Indeed, a number of Conservatives feel they won their constituency in spite of, rather than because of the Prime Minister, and so are much more prepared to vote against the government.
The House of Lords has also become more proactive in questioning coalition bills, especially over welfare reform, since neither coalition partner can claim that the public voted for their manifesto. Because of this, it has been claimed that the Salisbury
Convention is not operating for the lifetime of this parliament, whereby the Lords will not oppose legislation that has been in the victorious party’s manifesto. This has naturally, therefore, raised the self-confidence of the Lords in opposing government legislation. It could be argued, too, that the introduction of the Fixed Term Parliaments Act in
2011 was a response to the establishment of the Coalition since it would stabilize the government by legislating that there would not be an early General Election.
However, by removing the Prime Minister’s right to decide the date of the General
Election this has greatly reduced the Prime Minister’s room for political manoeuvre, thus diminishing his ability to determine his party’s political strategy.
Thus to conclude, the Coalition has given the Prime Minister the sort of parliamentary support that he would not have enjoyed as Prime Minister in a minority government and this has certainly enabled him to rely on substantial Commons support for his legislative programme. However, there have been sacrifices, too, and, because of the compromises that he continually has to make with his Coalition partners together with his loss of authority within his own parliamentary party, it is little wonder that
Cameron is so eager to achieve a parliamentary majority in 2015.

IN WHAT WAYS DOES THE PRIME MINISTER CONTROL
CABINET? [10 MARKS]
The Prime Minister can PROMOTE and DEMOTE within the Cabinet and, as a result of this wields a great deal of influence over AMBITIOUS MINISTERS. A minister will therefore not want to criticise the Prime Minister for fear of losing his position in the

127

government. VINCE CABLE lost, for example, a number of his powers as BUSINESS
SECRETARY when he boasted he had “declared war” on RUPERT MURDOCH’S bid to take over BSKYB. TARGETS can also be established that members of the Cabinet are expected to achieve and if they fail to do this, that will considerably undermine a minister’s ability to stand up to the Prime Minister.

David Cameron has called in senior ministers to Downing Street to ask them to explain why their departments have missed key performance targets – which they themselves had set. Our sources refused to divulge which ministers had been spoken to but an analysis of the business plans clearly shows which departments have performed worst over the last year.
The Independent, 28th November 2011

The Prime Minister also SETS THE AGENDA OF A CABINET MEETING and SUMS UP
THE MOOD OF CABINET. It will therefore take a very brave cabinet member to suggest that the Prime Minister has not correctly represented the feelings of the cabinet. The only example would be MICHAEL HESELTINE who resigned over WESTLAND in 1986 when he claimed that Thatcher had manipulated the minutes of the last cabinet meeting. A Prime Minister can establish a CABINET COMMITTEE to discuss an especially contentious issue and, because the Prime Minister decides who is on the committee, he can generally ensure that it comes up with the conclusion he wants. Most significantly David Cameron has now established STAR CHAMBER which ministers who won’t accept the TREASURY’S CUTS ON THEIR DEPARTMENTS will have to argue their case before. Cleverly, its members are ministers are those who have already accepted cuts on their department’s spending!

The Star Chamber was re-established by David Cameron this summer to decide on cases where government departments can’t agree with the Treasury on what cuts they should make. As departmental ministers have reached deals with the Treasury then their names have been added to the membership of the Star Chamber.
Unsurprisingly, ministers from departments who have already settled for spending cuts are hardly going to allow concessions to any other colleague trying to avoid spending cuts on their department.
BBC, 13th October 2010

128

The Prime Minister can also meet with leading ministers before cabinet [SOFA
GOVERNMENT] in order to ensure that he has support from key ministers on controversial issues. Thus, before cabinet meetings key issues will have been discussed and decided upon by the QUAD; [DAVID CAMERON, NICK CLEGG, GEORGE
OSBORNE and DANNY ALEXANDER] since the four key figures in the Coalition will have, therefore, already have made their decision, it is unlikely that the Cabinet will reject them.

TO WHAT EXTENT IS THE CABINET AN IMPORTANT BODY?
[40 MARKS]
The Cabinet has been referred to as “THE ULTIMATE DECISION-MAKING BODY OF
GOVERNMENT” and WALTER BAGEHOT in “THE ENGLISH CONSTITUTION” [1867] put it at the heart of government. However, the rise of centres of authority within the
CORE EXECUTIVE has challenged its authority, while under strong Prime Ministers like
TONY BLAIR its influence can also be seen to have declined.
As the size of the PRIME MINISTER’S PRIVATE OFFICE has grown, increasing numbers of decisions have been made in the POLICY UNIT and by the significantly increased number of POLITICAL ADVISERS [SPIN DOCTORS] who are employed at NUMBER 10.
David Cameron’s highly influential CHIEF OF STAFF is EDWARD LLEWELLYN, while
DAVID CAMERON appears to make many key decisions within a very small group of advisers, outside normal cabinet meetings, notably his “CHUMOCRACY” which includes GEORGE OSBORNE, MICHAEL GOVE, EDWARD LLEWELYN and AMEET GILL, his Director of Strategic Communications.
The Cabinet itself only meets for ONE HOUR ONCE A WEEK and with OVER TWENTY
MEMBERS it is difficult for it to engage in GENUINE DEBATE. Too much time will often simply be taken up in ROUTINE MATTERS such as going through the GRID for the week ahead. On many issues the Cabinet may simply end up being a RUBBER STAMP since, before the Cabinet meets the most contentious issues will already have been resolved by the key representatives of both parties in the QUAD [DAVID CAMERON, NICK
CLEGG, GEORGE OSBORNE and DANNY ALEXANDER]. It is likely, too, that when
DAVID CAMERON and GEORGE OSBORNE agree on the importance of an economic policy, then it would be difficult for Cabinet to provide much of an opposition to such an important united front.
Under TONY BLAIR with his SOFA STYLE approach to government, the influence of the
Cabinet was also been diminished since many decisions were made informally with the Prime Minister before they even reached Cabinet. Thus, Blair decided to give
INTEREST RAISING POWERS TO THE BANK OF ENGLAND before Cabinet had even met for the first time in 1997, while Blair publicly endorsed the MILLENNIUM DOME even though the majority of Cabinet had expressed disapproval.

129

Tony Blair “leaned on” the Attorney General to mislead the Cabinet by saying the Iraq invasion was legal, Clare Short told the Chilcot Inquiry yesterday. The former
International Development Secretary made a damning on Labour’s “unsafe” style of government – accusing it of “secrecy and deceit” and saying too much power now rests with the Prime Minister”.
The Times, February 3rd 2010

However, the Cabinet can be very useful to a Prime Minister since it allows him to consult with the most senior members of his government on a weekly basis and he will, therefore, have the opportunity to use their accumulated wisdom. For example, in 1976 the IMF LOAN was fully discussed in the CALLAGHAN cabinet in order to achieve an important government consensus; similarly Thatcher fully discussed intervening in the FALKLANDS in 1982 in order to ensure the government was united behind her. The LIBYAN INTERVENTION was thoroughly discussed by David Cameron in Cabinet, while during the FLOODS CRISIS [2014] Cameron called an emergency meeting of the Cabinet to discuss the government’s response to the resulting energy, transport and housing crisis.

David Cameron is due to fly into Britain in the early hours of Tuesday morning on a special RAF flight to chair an emergency Whitehall meeting into the London riots.
The escalation in violence on Monday night persuaded the Prime Minister to fly home early from Tuscany where he was halfway through a two week family holiday.
Cameron will chair an emergency COBRA meeting at 9AM in the cabinet office which will be attended by Nick Clegg, who has cancelled a visit to the south west. Boris
Johnson, the London Mayor, who was flying home overnight after cancelling a family holiday in North America, is due in London at lunchtime. COBRA stands for
Cabinet Office Briefing Room A which is used for crisis meetings.
The Guardian, 9th August 2011

On the other hand if there had been freer debate in the Blair cabinet and a more genuine exchange of views it is quite possible that, as we have seen, there might have been a fuller debate about the justification for intervening in IRAQ. Without this debate in cabinet some very rash and ill judged decisions ended up being made which were not to the advantage of the government or the country. The fact, too, that the
CHIEF WHIP attends the Cabinet is important, too, because it provides the Prime
Minister with a good appreciation of whether he will have sufficient parliamentary support for his proposed legislation; this is especially important when there is a
Coalition and the support of two parties is required for bills to pass.
At the same time it is unwise for a Prime Minister to ignore Cabinet. In the end, both
Thatcher and Blair discovered that the Cabinet were not prepared to support them when they began to lose parliamentary and public support. Thus, Thatcher was

130

ultimately destroyed by the resignation of ministers whom she could not afford to lose
[MICHAEL HESELTINE, NIGEL LAWSON and GEOFFREY HOWE], as well as the particularly wounding resignation speech of Geoffrey Howe. By 2007, with mounting parliamentary unrest in the parliamentary party, Blair also discovered that there was very little enthusiasm for him to carry on as Prime Minister and that the Cabinet were eager for Brown to take over as soon as possible.
Thus, the Cabinet can be ignored by Prime Ministers who may prefer to work through other more personal channels in the Core Executive, but it its influence should not be ignored, since it can provide a Prime Minister with great political expertise and experience in a crisis which, rather than diminishing his authority, may actually enhance it.

TO WHAT EXTENT DOES THE PRIME MINISTER DOMINATE THE
POLITICAL SYSTEM IN THE UNITED KINGDOM? [40 MARKS]
The Prime Minister is certainly the most important figure in politics and can certainly been seen as, in many ways, dominant. The Prime Minister promotes and demotes within the Cabinet and set the agenda for cabinet meetings and then sums up the
MOOD OF CABINET [shows of hand are never taken]. The media spotlight is also always on the Prime Minister so he can always be GUARANTEED MEDIA COVERAGE which he can use to seize the political initiative, while he also has huge PATRONAGE
POWERS. However, the fact that we live in a PARLIAMENTARY and PLURALIST
DEMOCRACY also puts significant constraints on the power of the Prime Minister.
In CABINET, the Prime Minister is extremely powerful since he can transfer difficult problems to CABINET COMMITTEES, the membership of which, significantly, the
Prime Minister chooses. STAR CHAMBER has also been established to sort out disputes over spending cuts between the Treasury and Departments of State, while
Cameron the Prime Minister chairs emergency meetings of COBRA, during crises such as the 2011 LONDON RIOTS or the 2014 FLOODS. Powerful individuals, such as
THATCHER and BLAIR, can be also be particularly dominant in cabinet. For example,
Thatcher, achieved an unrivalled dominance over the cabinet following the
FALKLANDS WAR, while the CHILCOT ENQUIRY shows how little Blair was questioned by cabinet colleagues in the run up to the IRAQ WAR.
The Prime Minister’s PATRONAGE POWERS, such as APPOINTMENT TO THE
GOVERNMENT, or in some cases the LORDS, can also be used to keep the support of backbenchers, while the WHIPS REPORT DIRECTLY TO THE PRIME MINISTER and can be used to BULLY or CAJOLE recalcitrant MPs into supporting government policy. The
ROYAL PREROGATIVE also gives the Prime Minister a dominant role in FOREIGN
AFFAIRS, since the Prime Minister personally negotiates on behalf of the UK when meeting with heads of the EU, NATO or other world leaders. The Prime Minister also has the right, by means of the royal prerogative, to take the nation to war, while the

131

INTELLIGENCE SERVICES and CHIEFS OF STAFF report directly to the Prime Minister ensuring that he has a dominant role in the development of military action.
The huge resources that the Prime Minister’s PRIVATE OFFICE possesses also give him huge influence over the development of policy. The POLICY UNIT develops new political ideas and reports its findings to the Prime Minister, while the Prime Minister can also deploy advice from numerous POLITICAL ADVISERS, such as CHIEF OF STAFF,
EDWARD LLEWELYN and HEAD OF STRATEGIC COMMUNICATIONS, AMEET GILL. The constant MEDIA SPOT LIGHT on the Prime Minister also gives him an unrivalled opportunity to SET THE POLITICAL AGENDA, for example at PRIME MINISTER’S
QUESTION TIME, or in KEY NOTE ADDRESS. DAVID CAMERON, for example, successfully put the PERSONAL PRESTIGE of his office behind GAY MARRIAGE
LEGISLATION, even though the parliamentary party hardly thought it was a priority, while he has used his prime ministerial authority to make the EU REFERENDUM a deciding issue in the 2015 General Election. His “PHONE A FRIEND” speech has also generated a great deal of media attention, making the SCOTTISH REFERENDUM an issue for the whole of the United Kingdom.

Mr Cameron ended his speech with a plea to everyone in the UK to urge Scotland to stay. “I want to be clear to everyone listening. There can be no complacency about the result of this referendum. The outcome is still up in the air and we have just seven months to go. Seven months to do all we can keep our United Kingdom as one. Seven months to save the most extraordinary country in history. “And we must do whatever it takes. So to everyone in England, Wales and Northern Ireland; everyone, like me, who cares about the united Kingdom, I want to say this: you don’t have a vote, but you do have a voice. Those voting are our friends, neighbours and family”. “You do have an influence. Get on the phone, get together, e mail. Tweet, speak.
Let the message ring out from Manchester to Motherwell, from Pembrokeshire to
Perth, from Belfast to Bute, from us to the people of Scotland – let the message be this: we want you to stay”
BBC News, 7th February 2014

However, it would be misleading to suggest that all Prime Ministers are equally dominant since a great deal still depends on the political circumstances as well as the character of the Prime Minister. A Prime Minister’s authority can quickly drain away as a result of opposition from within the CABINET, PARLIAMENT and the MEDIA.
For example, since we live in a parliamentary democracy, the Prime Minister is only as powerful as parliament allows him to be. BLAIR, for example, was defeated by the
Commons over 90 DAY DETENTION, while BROWN was defeated in the LORDS over
42 DAY DETENTION and SUPER CASINOS. Popular and parliamentary protest have also made CAMERON backtrack over proposals to sell off ENGLISH FORESTS, while he has been unable to repeal the HUMAN RIGHTS ACT because this has been vetoed by

132

Liberal Democrat members of the Cabinet. In August 2013, he also failed to win the support of parliament for possible military action in SYRIA so was quickly forced to abandon the policy. Cameron’s influence over his parliamentary party is also hardly dominant. Since there is a COALITION he has fewer patronage powers than previous
Prime Ministers since he has fewer ministerial offices to offer backbenchers; he also commands less loyalty amongst his backbenchers than Blair since he did not win a majority in 2010 and so MPs do not feel as much loyalty as if he had given them outright victory.

MPs have rejected possible UK military action against Syria. David Cameron said he would respect the defeat of a government motion by 285-272 ruling out joining USled strikes.
Thirty Conservative and nine Liberal Democrat MPs voted against the government’s motion. BBC News, 30th August 2013

The CABINET can also dramatically decrease the authority of a Prime Minister.
THATCHER was brought down by resignation of GEOFFREY HOWE in 1990, while
BROWN was seriously weakened by the resignation of one of his brightest young cabinet colleagues, JAMES PURNELL, who used his resignation letter to call upon
Brown to stand down. JOHN MAJOR’S ability to dominate politics was, of course, ruined by a whole host of problems; his own LACK OF CHARISMA coupled with HUGE
SPLITS within both his MPs and the Cabinet over FURTHER EUROPEAN INTEGRATION
[which culminated in JOHN REDWOOD challenging him for the leadership in 1995] as well as the fact that he was facing an increasingly SELF CONFIDENT LABOUR
GOVERNMENT IN WAITING under TONY BLAIR!
DAVID CAMERON’s influence over cabinet is also less than that of many other Prime
Ministers since the QUAD [CAMERON, OSBORNE, CLEGG and ALEXANDER] regularly needs to meet in order to agree on policy; in other words if the Prime Minister cannot bring his key Liberal Democrat allies with him, he will have to ditch policy. When, for example, Tory backbenchers undermined Lords reform, Clegg made clear that he was withdrawing Liberal Democrat support for the REDRAWING OF PARLIAMENTARY
CONSTITUENCY BOUNDARIES; this undermined a key Conservative policy and yet, even though he was Prime Minister, there was nothing Cameron could do to stop it.
The MEDIA and PRESSURE GROUPS can also, of course, also put a Prime Minister seriously on the defensive. The ability of both JOHN MAJOR and GORDON BROWN was, for example, continually ruined by the MEDIA’S CONTEMPT for them, while
BROWN had to back track on his GURKHA POLICY because of the success of JOANA
LUMLEY’S opposition to the policy. Thatcher never recovered her authority after the
POLL TAX RIOTS, while BLAIR’S INFLUENCE dramatically waned once it became clear that the IRAQ INVASION might not have been justified.

133

Therefore, the Prime Minister does have a greater opportunity to dominate the political spectrum than any other politician and some Prime Ministers, such as
MARGARET THATCHER after the FALKLANDS WAR [1982] and TONY BLAIR, between his 1997 LANDSLIDE and the IRAQ WAR [2003] were so popular within the
PARLIAMENTARY PARTY, CABINET and MEDIA that they really could dominate the political direction of the country. And yet this state of affairs is actually quite rare and it is probably truer to say that Prime Ministers, for all their power, still have to balance many different threats to their power, particularly, as is the case today when there is a Coalition.

JUDGES AND CIVIL LIBERTIES
KEY CONCEPTS: JUDICIARY, JUDICIAL INDEPENDENCE,
NEUTRALITY, CIVIL LIBERTIES, RULE OF LAW

JUDICIAL

CONTENT EXPLANATION: Role of the judiciary – a knowledge and understanding of the role and significance of the judiciary in promoting rule-based governance.

134

Power and influence of judges – a knowledge and understanding of the relationship between the judiciary and other branches of government, and of the extent to which judges can check the power of the executive and the legislature.
Civil liberties and individual rights – a knowledge and understanding of the impact of the courts on the issues of civil liberties and individual rights including the implications of the Human Rights Act and possible reforms such as the introduction of a supreme court and a constitutional bill of rights, and of the relationship between the judiciary, the European courts and EU law.

The key areas for debate in this section are
1. The extent to which the judges can protect our civil liberties.
2. The extent to which the judges can limit the power of government.
3. The extent to which there is conflict between the executive and the judiciary.

THE RULE OF LAW: FEATURES OF THE RULE OF LAW, BENEFITS
OF RULE-BASED GOVERNANCE
The RULE OF LAW is the basis of the British judicial system and is based upon the principle that everybody, including the government, is subject to the law. This principle, that EVERYONE within the state, is SUBJECT TO THE SAME LAWS can be found in MAGNA CARTA [1215] and was firmly made by TOM PAINE in “COMMON
SENSE” [1776], “For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other”. The Rule of Law also means that one can only be imprisoned as a result of a trial, in which the status of the defendant is irrelevant to his or her guilt or innocence. As AV DICEY put it in 1885,
“Every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen”.

Asked about the jailing of his former cabinet colleague, Chris Huhne, Prime Minister
David Cameron said, “It’s a reminder that no one, however high and mighty, is out of reach of the justice system”.
BBC News, March 11th 2013

In order to safeguard this principle, the Rule of Law thus requires a SEPARATION OF
POWERS between the JUDICIARY and the GOVERNMENT since, if the government is able to control the judiciary, as is the case in TOTALITARIAN STATES then the Rule of

135

Law which protects our civil liberties from the government will not be enforceable and governments will be able to act in any way that they wish.
The Rule of Law is also based on the principle of LIMITED GOVERNMENT whereby government ought to respect the ANCIENT PRINCIPLES OF OUR COMMON LAW [as represented by MAGNA CARTA, for example] and should therefore not enact legislation that undermines our civil liberties. As MOYRA GRANT has put it,
“Essentially the concept of the rule of law seeks to equate law and justice, i.e it seeks to ensure that the law and legal system are fair and equitable”.

“When we say that the Rule of Law is characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean in the first place that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. We mean in the second place not only that no man is above the law but that every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. Third, the general principles of the constitution
(as, for example, the right to personal liberty or the right of public meeting) are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts”.
AV Dicey, “An Introduction to the Law of the Constitution” [1885]

RELATIONSHIP BETWEEN THE UK JUDICIARY, THE EUROPEAN
COURTS AND EU LAW
It used to be the case that the HIGHEST APPEAL COURT in the UK was the HOUSE OF
LORDS. However, since we joined the EEC [now the EU] in 1973 this is no longer the case. In 1990 the House of Lords declared in the key FACTORTAME JUDGMENT that in cases where British law conflicts with the laws of the European Union then
EUROPEAN LAW TAKES PRECEDENCE. In cases where the interpretation of European law is uncertain then the EUROPEAN COURT OF JUSTICE will reach a decision which is binding on British courts.
Since 2000 Britain has also been signed up to the EUROPEAN CONVENTION ON
HUMAN RIGHTS [HUMAN RIGHTS ACT, 1998]. This is SEPARATE to the European
Union but still means that in cases of conflict between British courts over the scope of the European Convention a final decision can only be reached by the EUROPEAN
COURT OF HUMAN RIGHTS sitting in STRASBOURG. This has been the case with ABU
QATADA whom the Supreme Court agreed should be deported from Britain, but their decision was subsequently overturned by the EUROPEAN COURT OF HUMAN RIGHTS in STRASBOURG.

136

PRINCIPLES OF JUDICIAL INDEPENDENCE AND HOW IT IS
MAINTAINED [INCLUDING LIMITATIONS]
The principle of Judicial Independence is vital to a healthy democracy because it is vital that citizens know that the Judiciary will always act ACCORDING TO THE RULE OF LAW and so not seek to discriminate against certain MINORITIES which the government may itself wish to discriminate against. It is crucial too that Judges are therefore selected, NOT BECAUSE OF THEIR POLITICAL OPINIONS, but because of their
“LEARNING AND INTEGRITY” and so they will therefore always put the rights of individual citizens before the claims of government.
Judicial Independence is thus maintained in a variety of ways:
Judges have SECURITY OF TENURE which means that they cannot be removed by the government if their judgments are contrary to what the government would wish. In recent years a number of judges, such as JUSTICE POPPLEWELL and JUSTICE COLLINS have been accused of a LIBERAL BIAS by the government, but they have not therefore been able to remove them from their positions. For example, when he was Home
Secretary, DAVID BLUNKETT, hit out at JUSTICE POPPLEWELL for not being sufficiently supportive of the government’s anti-terrorist legislation, “I just want judges that live in the same real world as the rest of us”. However, there was nothing that he could do to sack or replace Popplewell.
Judges’ SALARIES are also determined by the CONSOLIDATED FUND rather than by parliament which means that judges cannot be bribed to support certain government policies. Once a court case is being heard it is “SUB JUDICE” and so the government may not comment on the verdict they would prefer since this would be CONTEMPT OF COURT.
Judges may also NOT BE MEMBERS OF A POLITICAL PARTY since this could obviously politicise their judgments.
Since 2005 the government has also introduced a number of reforms designed to further protect the independence of the judiciary. The CONSTITUTIONAL REFORM
ACT [2005] thus ENSHRINES IN LAW THE PRINCIPLE OF JUDICIAL INDEPENDENCE; it also gives the LORD CHIEF JUSTICE [a non-political figure] responsibility for the
TRAINING AND GUIDANCE OF JUDGES, while a new INDEPENDENT JUDICIAL
APPOINTMENTS COMMISSION is responsible for selecting candidates to recommend for judicial appointment to the Secretary of State for Justice. A new independent
SUPREME COURT was opened in 2009 and the LAW LORDS, who sat in the House of
Lords moved to the Supreme Court ensuring that they no longer straddle both the legislature and the judiciary so breaking MONTESQUIEU’S famous SEPARATION OF
POWERS.
However judicial independence is still LIMITED. Judges can INTERPRET LAWS but they cannot strike down acts of parliament so judges HAVE TO ENFORCE ACTS OF

137

PARLIAMENT, whether or not they agree with whether they are just or not. The fact that parliament is also the country’s supreme lawgiver also means that when it, for example, passed new laws setting MINIMUM SENTENCES that judges have to give for certain crimes then the judges have had to abide by these news laws.
The Independent Judicial Appointments Commission also still only makes recommendations to the JUSTICE SECRETARY and the PRIME MINISTER so there is still an embarrassing overlap between the judiciary and executive which the Constitutional
Reform Act [2005] has not removed.

THE PRINCIPLE OF JUDICIAL NEUTRALITY AND HOW IT IS
MAINTAINED
The principle of Judicial Neutrality means that judges must not allow any POLITICAL,
SOCIAL, RELIGIOUS or ETHNIC BIAS to influence their judgments. This is different to independence since judicial independence means that judges must act without being influenced by the government. Judicial Neutrality simply means that when judging a case judges act purely according to objective standards of justice and do not allow any of their own PREJUDICES to influence their conduct of the case or eventual sentencing.
Judicial neutrality can hardly be legally enforced because you can hardly legislate against peoples’ prejudices; however it is maintained through a variety of methods such as:
OPEN COURTS: Since trials are not secret the way in which judges conduct trials is open to MEDIA and PUBLIC SCRUTINY. Therefore, the way in which judges advise juries on the points of law at issue as well as pass sentence can be MONITORED BY
THE PUBLIC so ensuring that judges act according to the rule of law rather than their own prejudices. A judge will thus have to explain in a LENGTHY EXPLANATION why he has decided on a particular sentence and if it was felt that a judge was not acting impartially then there would be a public outcry. For example, in 1998 LORD
HOFFMAN was forced to resign from GENERAL PINOCHET’S EXTRADITION TRIAL when the press discovered that Hoffman was a member of AMNESTY
INTERNATIONAL.
RIGHT OF APPEAL: Our COURTS OF APPEAL also mean that if the way in which a judge ran a trial in an inferior court is suspect, then THAT DECISION CAN BE QUASHED. This happened in regard to the BIRMINGHAM SIX and the GUILDFORD FOUR when it was proved that the judges in the initial trials had advised the juries to give too much weight to perjured police evidence against these IRA terrorist suspects.

JUDGES AND THE JUDICIARY – THE ROLE OF JUDICIARY ADJUDICATING THE MEANING OF LAW, PRESIDING OVER THE
COURTS, SITTING ON GOVERNMENT BODIES
138

Judges PRESIDE OVER COURTS and try to ensure that the JURY understands the
IMPORTANCE OF THE VARIOUS POINTS OF LAW AT ISSUE and will therefore SUM UP
BOTH THE DEFENCE and PROSECUTION CASES in order to ensure that the jury fully and fairly understands the significance of the main issues in the case.

“The defendant is not required to answer questions, that is his right. The defendant is not required to give evidence, it is his right not to give evidence. You must not assume that he is guilty because he has not given evidence. But you will appreciate that a defendant who has not given evidence has said nothing in the trial to undermine, contradict or explain the evidence put before you by the prosecution. A defendant’s silence at his trial may count against him. This is because you may draw the conclusion that he is not giving evidence because he has not the answer to the prosecution’s case or none that would bear examination”
Lord Potts summing up to the Jury in the Trial of Lord Archer on the charge of perjury in 2001

During a case Judges may also be called upon to INTERPRET THE MEANING, EXTENT or RELEVANCE OF STATUTE LAW in a particular case. For example, in the
FACTORTAME CASE [1990] the High Court decided that European Law did take precedence over British law represented in the MERCHANT SHIPPING ACT [1988]. As
ANDREW HEYWOOD has pointed out, “Although, in theory, judges apply the letter of the law, they are able to exercise a measure of discretion in the way that they interpret statutes. However, this can lead to conflicting interpretations by judges and by ministers”. “The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself”.
Lord Bingham, in the Belmarsh Trial, 2004

Since 2000 Judges have also been able to INTERPRET THE MEANING of the HUMAN
RIGHTS ACT [which incorporated the EUROPEAN CONVENTION ON HUMAN RIGHTS into British law] when defining the extent of our CIVIL LIBERTIES in relation to the government. For example, in 2004 the House of Lords ruled that, according to the meaning of the Human Rights Act, FOREIGN TERRORIST SUSPECTS held at BELMARSH
COULD NOT BE HELD INDEFINITELY WITHOUT A FAIR TRIAL.

139

As a result of their interpretation of statute law and the circumstances of a case, judges can ALSO MAKE CASE LAW so that judges in one case accept as binding judgments made in earlier relevant cases. This therefore creates a PRECEDENT which should be followed in subsequent cases. The classic example of this is DONOGHUE v.
STEVENSON [1932] in which LORD ATKIN laid down the principle of the “GOOD
NEIGHBOUR” which now forms the LEGAL BASIS of the TORT OF NEGLIGENCE.

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, is my neighbour? The answer seems to be – persons who are so closely affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question. [Thus] a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with knowledge that the absence of reasonable care in the preparation or putting up of products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care”.
Lord Atkin’s judgment in Donoghue v.Stevenson [1932] which has laid down the principle of the tort of negligence which is the basis of much consumer law

Crucially judges may also order JUDICIAL REVIEW into the actions of public bodies, including the government, if it is felt that they have acted either “IRATIONALLY”, “NOT
FOLLOWED PROPER PROCEDURE” or acted “BEYOND THEIR AUTHORITY” [ULTRA
VIRES]. For example, in 1996 JUSTICE COLLINS struck down a decision by Home
Secretary, MICHAEL HOWARD, to deny welfare support to rejected ASYLUM SEEKERS,
“It is impossible to believe that parliament intended that an asylum seeker who was lawfully here and could not be lawfully removed from the country, should be left destitute, starving and at risk of grave illness and even death because he could find no one to provide him with the bare necessities of life”. Judicial Review has thus become a potent way in which the judiciary can protect the human rights of vulnerable groups within society against the government.
In most cases, if a defendant is found guilty the trial judge will then decide upon the
APPROPRIATE SENTENCE, based upon a thorough examination of all the facts and any extenuating circumstances. “Sentencing the pair, trial judge, Mr Justice Sweeney said
Huhne had lied “again and again”. Vicky Price, the former wife of Chris Huhne, was described as being “controlling, manipulative and devious” by the judge, although the judge told Chris Huhne that he was “more culpable” for the offence. He said that
Huhne would have been sentenced to nine months, had it not been for his guilty plea which meant he was entitled to a “discount” on the term”.
[BBC News, March
11th 2013]

140

“He could cultivate a gruff and abrupt manner, striking terror into the heart of an accused appealing before him. But that was to bring the accused to realise his folly; the sentences he imposed were moderate and humane”.
Times Obituary for His Honour Judge Paul Clark, 1940-2008

Because of their HIGH STATUS in society, judges are also often put in charge of important PUBLIC ENQUIRIES in order to ensure that the public interest is served. For example LORD HUTTON headed the HUTTON ENQUIRY into the highly controversial circumstances involving the death of weapons inspector DAVID KELLY.

HOW SIGNIFICANT HAVE RECENT JUDICIAL REFORMS BEEN?
The Judiciary has been reformed in a number of crucial ways, since the
CONSTITUTIONAL REFORM ACT [2005] all of which have been designed to better protect its INDEPENDENCE. Thus the LAW LORDS have been removed from the
HOUSE OF LORDS and now have their own SUPREME COURT ensuring that the judiciary is not fully separate from the legislature.
The CONSTITUTIONAL REFORM ACT [2005] laid down that the LAW LORDS have now left Lords for their own SUPREME COURT which will be the highest court of appeal in the UK.
The main advantage of this is that it REMOVES THE LAW LORDS FROM THE
LEGISLATURE thereby contributing to MONTESQUIEU’S “SEPARATION OF POWERS” which is so important in a liberal democracy. The fact too that the Law Lords now sit in their own Supreme Court may well have increased their confidence in confronting parliament and defending our civil liberties. In other words, having a Supreme Court may encourage JUDICIAL ACTIVISM in defence of our civil liberties. As ANDREW
HEYWOOD has put it, “May encourage its Justices to be even bolder in defending what they see as the proper balance between the state and the individual”.
Significantly too its proceedings will now be much more OPEN AND TRANSPARENT than they used to be when proceedings took place in the House of Lords. Thus, it could be argued, that the SUPREME COURT, together with the HUMAN RIGHTS ACT, have together been important in developing the Judiciary’s SELF CONFIDENCE and ability to represent the people against a sometimes too coercive parliament.

The Supreme Court has not so far broken new judicial ground, but then it was never likely to, as Lord Phillips, its President points out. The justices have the same powers the Law Lords enjoyed [they cannot, unlike America’s Supreme Court judges, strike down primary legislation] and are mainly the same people. And the law lords themselves were already ditching judicial deference, certainly after the incorporation

141

into English law in 1998 of the European Convention on Human Rights. As it happened, no landmark case came to the Supreme Court in its first year.
Yet many think the court’s institutional independence will, in time, whet its appetite for a fight, adding to the checks and balances that restrain executive powers, “You need a new generation before this kind of change shows real results”, says Vernon
Bogdanor. Especially too in the field of Human Rights the court has made significant progress. Almost a third of its work concerns alleged human-rights violations, which made up a very small percentage of the law lords’ caseload a decade ago. On issues such as the right to help the terminally ill to die, for example, on which politicians have been reluctant to pronounce, the Court might have to step in.
The Economist, October 2nd 2010

At the same time the LORD CHIEF JUSTICE has now replaced the LORD CHANCELLOR as HEAD OF THE JUDICIARY [this, it has been argued, was so necessary since the Lord
Chancellor clearly breached the SEPARATION OF POWERS by being a member of the judiciary as well as the executive and the legislature!] As an independent figure the
LORD CHIEF JUSTICE now takes charge of the TRAINING of judges, while an
INDEPENDENT APPOINTMENTS COMMISSION now makes recommendations for
JUDICIAL APPOINTMENTS and rather than being selected lawyers may now apply to be a judge – significantly “opening up the field” of appointments.

LORD PHILLIPS, FORMER PRESIDENT OF THE SUPREME COURT said, “This is the last step in the separation of powers in this country. We have come to it gently and gradually, but we have come to the point where the judges are completely separated from the legislature and the executive. The change is one of TRANSPARENCY. It’s going to be very much easier for the public to come to our hearings”. Its building, in
Parliament Square, Westminster, includes a public café and education facilities. For the first time, television cameras have been fitted into the courtrooms meaning that many hearings will be available to broadcasters. According to Lord Phillips the
Supreme Court “is a very significant step in the constitution of this country”. But others have criticised the change, arguing that it is a largely cosmetic exercise”.
BBC Website, 1st October 2009

142

IN WHAT WAYS CAN THE JUDICIARY PROTECT OUR CIVIL
LIBERTIES?

“Someone must be trusted. Let it be the judges”
Lord Denning, 1980

UK judges cannot refer to a CODIFIED CONSTITUTION / HIGHER LAW which means that they do not have the authority to strike down parliamentary statutes. However, in recent years there has been a great deal more JUDICIAL ACTIVISM as judges have become increasingly more prepared to INTERPRET PARLIAMENTARY STATUTES IN
SUCH A WAY AS NOT TO UNDERMINE OUR CIVIL LIBERTIES. They have also become more willing to deploy JUDICIAL REVIEW if they feel that public bodies, including government ministries, have acted inappropriately.
The passing of the HUMAN RIGHTS ACT [which incorporated the EUROPEAN
CONVENTION ON HUMAN RIGHTS into British law] as well as the establishment of the
SUPREME COURT has certainly added to this GROWING SELF CONFIDENCE of the
Judiciary. Indeed, PROFESSOR DAVID FELDMAN has gone so far as to argue that the
Human Rights Act signals, “A major move away from the principle of parliamentary sovereignty.” Judge have also been more and more willing to breach the KILMUIR RULES tradition of not speaking out against the government if they feel that their decisions are undermining fundamental civil liberties. Given that judges are still highly respected members of society this last power may be seen as especially important.

THE SIGNIFICANCE OF THE HUMAN RIGHTS ACT
Article Two: Right to Life
Article Three: Prohibition of Torture and degrading treatment
Article Four: Prohibition of Slavery and Forced Labour
Article Five: Right to Liberty and Security
Article Six: Right to a Fair Trial
Article Seven: No Punishment without Law
Article Eight: Right to Private and Family Life
Article Nine: Freedom of Thought, Conscience and Religion
Article Ten: Freedom of Expression
Article Eleven: Freedom of Assembly and Association
Article Twelve: Right to Marry

143

In 1998 parliament voted to incorporate the European Convention on Human Rights
[1951] into British law. The Human Rights Act came into force in 2000 and since then, for the first time, those living within Britain have had STATUTORY PROTECTION FOR
THEIR CIVIL RIGHTS. This means that British Courts can now interpret the law according to the Human Rights Act; thereby providing a surer guarantee of our Human
Rights. The Human Rights Act is also important in an increasingly multi-cultural society since it ensures that all members of British society are protected by the same laws and pressure groups such as LIBERTY, THE EQUALITY AND HUMAN RIGHTS COMMISSION and AMNESTY INTERNATIONAL have deployed the Act to provide the public with a sharper understanding of the rights that they enjoy and the way in which public bodies, such as the police and schools, must respect those rights. The Human Rights
Act has thus made the judiciary more proactive in protecting our civil liberties, especially since the LAW LORDS now sit separately from parliament in their own
SUPREME COURT.

DOES THE HUMAN RIGHTS ACT AFFECT THE WAY GOVERNMENT AND PUBLIC
AUTHORITIES BEHAVE?
Yes. The Human Rights Act says that all public authorities must pay proper attention to your rights when they are making decisions that affect you. Public authorities include government departments, your local authority or health authority, and also agencies like the police, the courts and private companies when carrying out public functions. That’s nothing new – respecting rights and balancing rights and responsibilities has always been an important part of public service in this country.
But the Human Rights Act makes sure that those in authority over you will have to check that they do not ride roughshod over your rights, even when they believe they are doing so for a good reason. They will have to be careful about the balance they are striking and think hard about how they can cause the least possible harm to individuals. www.humanrights.gov.uk Significantly, the HUMAN RIGHTS ACT IS NOT A HIGHER LAW since it was enacted by parliament and so could be repealed by a future parliament. This means that parliament could still pass a bill which contravened the Human Rights Act, although the minister concerned would be expected to make “a formal declaration of incompatibility”. Equally, the judiciary could not demand the repeal of a law which, in their view, breached the Human Rights Act.
However, the Human Rights Act has increasingly been used in cases involving our civil liberties and the more it is used the more JUDICIAL PRECEDENTS are set which have thus established a clearer definition of our civil liberties. Governments, too, have generally been anxious to abide, as much as they are able to, to the terms of the

144

Human Rights Act which was most dramatically illustrated by the considerable amount of time that it took to deport Abu Qatada to Jordan

CASES INVOLVING THE HUMAN RIGHTS ACT
Supporters of the Act [especially on the Left of British Politics which has long believed that our rights are insufficiently protected by the British state] point out that any law protects both the innocent and the guilty and that notorious cases involving the
Human Rights Act should not be allowed to negate the fact that the judiciary has been able to use the Act to lay down important CASE LAW PRECEDENTS that better define the extent of our civil liberties and so protect us all from their infringement by public bodies. Since we do not have a codified constitution, if the Human Rights Act was repealed the extent of our human rights could, once again, be extremely vague thus giving disproportionate influence to public bodies to, if they so wished, undermine our civil liberties. The following cases thus illustrate how the Human Rights Act has been deployed to establish a firmer basis for our civil liberties; for example by DEVELOPING
CASE LAW to protect our rights to PRIVACY, GUARANTEEING THE EQUAL RIGHTS OF
HOMOSEXUALS.

“The Human Rights Act has protected the rights of all Britons. The populist press shout about its protection of prisoners and paedophiles. They never mention, for instance, that thanks to the ECHR, children with special needs have a right to be educated in mainstream schools, or that breast cancer sufferers have a right to drugs such as Herceptin. Our membership too of the Convention makes us an example to the world on human rights and gives us the moral authority to criticise other states, such as Belarus which routinely abuse its citizens’ human rights”.
The Independent on Sunday, 9th March 2011

In 2003 MICHAEL DOUGLAS v. HELLO MAGAZINE developed the RIGHT TO PRIVACY on the back of the European Convention on Human Rights. “Catherine Zeta Jones and
Michael Douglas have won damages from Hello! Magazine in their battle over unauthorised wedding photographs. According to Mr Justice Lindsay, a wedding is
“an exceptional event for any bride and groom and so the couple had the right to complain of intrusion despite being stars”. BBC News, 11th April 2003
Subsequently Article 8 of the Human Rights Act [the Right to a Private and Family Life] has been used to bring criminal proceedings against REBECCA COULSON and ANDY
COULSON of the NEWS OF THE WORLD for PHONE HACKING of MILLY DOWLER, the
MCANNS and celebrities such as HUGH GRANT.
It has also been used to force the withdrawal by Wiltshire Police of a negative control order on RACHAEL COX since their criticism of her briefly leaving her children unsupervised in a playground infringed Article Eight [her right to privacy]. The Human
Rights Act has also been successfully used to reopen the case of the death of
145

CHRISTOPHER ALDER in the custody of Hull Police since his death contravened both
Article Two [right to life] and Article Three [protection from degrading treatment]. In the case of PATIENCE ASUQUO Article 4 of the Human Rights Act [prohibition of slavery] was used to reopen her case that she had been brought to the UK, had her passport taken and forced to work without pay. Before the Human Rights Act was passed she had not had a case, once the act was passed she was able to win her claims for compensation; “So next time you notice a politician or commentator saying that the Human Rights Act is purely for terrorists and criminals, think again. Consider victims like Patience, and the justice the legislation has delivered for people like her.
Remind your family and friends – and local MP - that we already have a very British
Bill of Rights – it is called the Human Rights Act” [Liberty]
In 2010, in a landmark decision, the Supreme Court also declared that the Home Office was wrong in denying access to TWO HOMOSEXUAL ASYLUM SEEKERS on the grounds that although they lived in homophobic countries [Iran and Cameroon] they could hide their sexuality.

Lord Hope, who read out the judgment, said, “To compel a homosexual person to pretend that his sexuality does not exist or suppress the behaviour by which to manifest itself is to deny his fundamental right to be who he is. Homosexuals are as much entitled to freedom of association with others who are of the same sexual orientation as people who are straight”. The court said that it would be passing guidance in the lower courts about how to treat such cases in the future.
The applicant from Cameron, who is identified only as HT, had been told he should relocate elsewhere in his country and be “more discreet” in future. He had been attacked by an angry mob after being seen kissing his partner. He has been fighting removal from the UK for the past four years. The other applicant was from a 31 year old Iranian gay man, HJ, who was attacked and expelled from school when his homosexuality was discovered”.
The Home Office v. HJ and HT, 2010

The Human Rights Act has though also been dubbed a “VILLAINS’ CHARTER” because it has been used in a number of very controversial cases to protect the civil liberties of those who have themselves broken the law and / or come to the UK illegally. This has often seemed irrational and, in some cases, has made it more difficult for parliament to protect national security.
In DECEMBER 2004 the Human Rights Act was deployed to release 16 FOREIGN
TERRORIST SUSPECTS from BELMARSH prison since there was not a sufficient
“THREAT TO THE LIFE OF THE NATION” to justify their detention and the Home
Secretary had breached the EUROPEAN CONVENTION ON HUMAN RIGHTS by discriminating against foreign terrorist suspects.

146

Lord Bingham, a senior Law Lord, said the detentions were incompatible with the
European Convention on Human Rights as they allowed detentions “in a way that discriminates on the grounds of nationality or immigration status” by justifying detention without trial for foreign suspects, but not Britons. Lord Nichols, in his ruling, also observed that, “Indefinite imprisonment without charge is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford”.
BBC News, 16th December 2004

In 2006 in the case of the NINE AFGHAN HIJACKERS the Human Rights Act was used by the judiciary to stop their deportation on the grounds that if they were returned to
Afghanistan they could be either killed or tortured. The UK government would thus be complicit in breaching Articles 2 and 3 of the European Convention on Human
Rights and so the men could not be deported.
The case of ABU QATADA also shows that the EUROPEAN CONVENTION ON HUMAN
RIGHTS can thwart government since both Labour and Conservative Home Secretaries found it very difficult to deport him to JORDAN since the evidence used against him might have been gained through TORTURE [thus the UK would be complicit in the breach of Article Two] and so would also be in breach of Article Six [the right to a fair trial]. Only in 2013 did THERESA MAY secure his deportation when Jordan had guaranteed that his human rights would not be infringed.

“No-one, however dangerous, however disgusting, however despicable is excluded from the European Convention on Human Rights. Those who have no respect for the rule of law – even those who would seek to destroy it – are in the same position as everyone else”5.
The Guardian 18th February 2009

LEARCO CHINDAMO has also been able to remain in the UK on his release from prison for the murder of Head Teacher, Philip Lawrence, in 1995, since, even though he is an
Italian national, he has no family ties in Italy and so, to deport him, would infringe
Article Eight [the right to a family life].

“If the law supposes that, said Mr Bumble, the law is an ass”.
Charles Dickens [1812-1870] “Oliver Twist”

In a similar case, MOHAMMED IBRAHIM could not be deported following the hit and run car accident in which 12 year old AMY HOUSTON died since, although he was a failed Iraqi asylum seeker, since the crime he had fathered two children and so Article
5

Lord Hope commenting on Abu Qatada

147

Eight would also be breached if he was to be deported, “Though the idea that foreign criminals are entitled to a family life is understandably repellent for the courts the main focus was on the right of his children. Ibrahim’s judge decided that his British children who had committed no crime should not be punished for the sins of their father by being forced to move to a country they had never known or having their family broken up”. [Daily Telegraph, 1st May 2011]

The Conservative party is prepared to withdraw from the European Convention on
Human Rights after the next election, Home Secretary, Theresa May, has announced. May’s explicit statement followed David Cameron’s hint on Sunday that the Tories were openly considering the “nuclear option” of withdrawing from the European Convention, despite warnings from the attorney general, Dominic
Grieve, and others, of the damage to Britain’s international standing. May also used her conference speech to confirm that illegal immigrants, criminal foreign nationals and others facing deportation will have their rights to appeal severely restricted.
The number of grounds on which they could appeal will be reduced from 17 to four, and the extent to which a fresh appeal could halt a deportation is to be limited. She said unless there was a “risk of severe and irreversible harm” foreign criminals should be deported first and their appeals heard later. The moves are to be included in the new immigration bill, which will be published next month and is intended to cut the 70,000 annual appeals by more than half.
The Home Secretary said the immigration bill would also put into primary legislation guidance that had already gone to judges to ensure that illegal migrants and others cannot abuse article 8 – the “right to a family life” – to prevent their deportation from Britain. “Some judges chose to ignore parliament so I am sending a very clear message to those judges” said May. “Parliament wants the law on people’s side, the public wants the law on the people’s side and the next conservative government will put the law on the people’s side once and for all”.
The Guardian, 30th September 2013

In a particularly controversial case, according to the EUROPEAN CONVENTION ON
HUMAN RIGHTS THE BRITISH GOVERNMENT IS UNJUSTLY DENYING PRISONERS THE
RIGHT TO VOTE. This has caused outrage in parliament but STRASBOURG has declared that our laws ought to change to be compatible with the European
Convention. In this instance though parliament voted by a huge majority not to act in accordance with the Human Rights Act. Many on the Right thus see this as further evidence that an EXTERNAL COURT should not wield any judicial authority in the UK

The European Court of Human Rights has told the government to present plans to allow inmates to take part in elections, but most MPs are opposed. The government and Labour both oppose giving serving prisoners the vote and David Cameron has said the idea makes him feel “physically sick”. But if parliament chooses to oppose the will

148

of Strasbourg it could create an impasse which would strain relations and could even involve e the UK leaving the European Convention on Human Rights, according to some analysts.
BBC News, 10th December 2012

At Prime Minister’s Questions on Wednesday, Mr Cameron responded to Tory MP
Phillip Davies who complained about a Supreme Court ruling that sex offenders could appeal against having to register with the police for life, because this infringed Article
8 – their right to a private life. The UK court ruled that the lack of a review was incompatible with the European Convention on Human Rights. Mr Cameron told MPs that Mr Davies, “Speaks for many people when he says how completely offensive it is to once again have a ruling by a court that seems to fly completely in the face of common sense”. The Prime Minister then added, “The Commission we are establishing to look at a British Bill of Rights will be established imminently because I think it’s about time we started making sure decisions are made in Parliament rather than in the courts”.
This was echoed by Home Secretary, Theresa May, who told parliament, “It is time to assert that Parliament makes our laws, not the courts, and that the rights of the public come before the rights of criminals and above all that we have a legal framework that brings sanity to cases such as these”. Tory MP, PHILIP HOLLOBONE, added that his constituents were, “fed up to the back teeth with human rights legislation and the way it is being used TO PROMOTE THE RIGHTS OF BAD PEOPLE OVER THE RIGHTS OF
GOOD PEOPLE”.
BBC, 16th February 2011

We can, therefore, see why the Conservative Party is committed to repealing the
Human Rights Act because it has been used in a way that seems to conflict with common sense, as well as undermining parliamentary sovereignty and making it more difficult to protect national security. They would thus rather replace it with a British
Bill of Rights, which would be compatible with parliamentary sovereignty and lay down both our rights but also our responsibilities.
Indeed, even LORD HOFFMANN, a rather liberal judge who was removed from the
EXTRADITION TRIAL OF GENERAL PINOCHET because of his membership of Amnesty
International has been highly critical of the UNDEMOCRATIC and INVASIVE nature of the HUMAN RIGHTS ACT. “We remain an independent nation with its own legal system, evolved over centuries of constitutional struggle and pragmatic change. I do not suggest belief that the United Kingdom’s legal system is perfect but I do argue that detailed decisions about how it could be improved should be made in London, either by our democratic institutions or by judicial bodies which, like the Supreme Court of the United States, are integral with our own society and respected as such”. [The
Spectator, 5th April 2009]

149

JUDICIAL REVIEW
Another power that the judiciary has to protect our civil liberties is that of JUDICIAL
REVIEW. This can be applied by the courts if an individual or association charges that a public body has acted illegally. Even the government can be subject to a Judicial
Review and on a number of occasions the decisions of ministers have been QUASHED.
For a Judicial Review to be upheld the following criteria need to be satisfied:
1. PROPER PROCEDURE has not been followed.
2. A public body has acted IN DEFIANCE OF NATURAL JUSTICE; for example the law has not been applied equally for everyone involved.
3. A public body has acted in defiance of the principles of the HUMAN RIGHTS ACT.
4. Or that the public body has acted BEYOND ITS AUTHORITY [ULTRA VIRES]
The Judiciary have thus used JUDICIAL REVIEW on a number of occasions to uphold the Rule of Law and our Human Rights. They can only act when a case is brought before them but when they have acted they have often successfully forced the government
[generally the Home Office] to reconsider their actions.
In 1996 the Home Secretary, MICHAEL HOWARD’S, attempts to make asylum seekers register at once on entering the country was defeated in the High Court by a JUDICIAL
REVIEW, “For the purpose of this appeal it suffices to say that I, for my part, regard the 1996 regulations now in force as so uncompromisingly draconian in effect that they must indeed be held ultra vires”. [LORD BROWN]. Indeed, from 1992-1996, 10 separate Judicial Reviews were used to quash controversial ministerial decisions by
Howard.
In 2004, in a JUDICIAL REVIEW, the LAW LORDS also declared that DAVID BLUNKETT’S attempts to deny SOCIAL SECURITY BENEFITS to those who failed to immediately claim asylum as soon as they entered the UK was contrary to the EUROPEAN
CONVENTION ON HUMAN RIGHTS and was thus unlawful.

Home Secretary David Blunkett has vowed to fight a High Court victory for six asylum seekers denied housing and benefits. Legislation introduced in January prevented people from claiming state-funded food and shelter if they did not immediately apply for asylum on arrival.
Mr Blunkett told BBC Radio 4’s “The world at one”: “Frankly, I’m personally fed up with having to deal with a situation where Parliament debates issues and the judges

150

then overturn them. I don’t want any mixed messages going out so I am making absolutely clear today that we don’t accept what Justice Collins has said”.
BBC News, 20th February 2003

The judiciary also quashed a number of, in their opinion, unwarranted CONTROL
ORDERS which the last Labour government introduced. For example, JUSTICE
COLLINS, in 2008, quashed a Control Order on Moslem convert, CERIE BULLIVANT, “In his judgment, the judge said it may have been reasonable to assume that the individuals with whom Mr Bullivant openly associated might have been involved in terrorist activities. But that did not make it reasonable to suspect that he had the same inclinations. He said, “The dangers of guilt by association are obvious”.
In a further assault on Control Orders the Supreme Court also declared that terrorist suspects under CONTROL ORDERS could not be made to remain indoors for more than
16 HOURS a day or separated from their families since this will “INFRINGE” rather than simply “RESTRICT” their freedom, while making the suspect live apart from his family denied him the right to a family life which is ARTICLE 8 of the EUROPEAN
CONVENTION ON HUMAN RIGHTS.

On 16th June 2010 a Supreme Court panel of seven judges ruled unanimously that a control order that required the controlee to live 150 miles away from his family in
London was a breach of his human rights. The controlee, AP, was moved away from
London to prevent him from associating with particular members of the Muslim community there and was moved to a location in the Midlands where he was isolated and had to remain indoors for 16 hours each day. For various reasons, it was difficult for his family to visit him there. The judges in their ruling held that the family circumstances of a controlee have to be taken into consideration before an order is imposed and the Home Secretary was wrong to argue that the personal circumstances of a controlee need not to be taken into consideration.
Coalition against secret evidence.com / July 9th 2010

In another example of a Judicial Review LORD JUSTICE SEDLEY condemned the Home
Secretary’s ban on non-European 21s coming to Britain to live with their spouses as
“ARBITRARY AND DISRUPTIVE” and in contravention of Article 12 of the Human
Rights Act [the right to marry]. The Home Secretary had said that the ruling was aimed at dealing with the problem of forced marriages, but Lord Sedley responded that, “Like some 5000 or so others, the plaintiffs were the innocent victims of a blanket policy designed to target a few case of forced marriage”. In other words the ruling was
“IRRATIONAL”.
In 2013 in NHS Trust v.LB Lewisham and Save Lewisham Hospital Campaign, the
Department of Health was forced to shelve its plans to close down the A&E facility at
Lewisham because it had not consulted widely enough and so had not followed proper procedure. In cases involving the principle of ultra vires the influence of the judiciary

151

should not though be exaggerated. For example, when the Supreme Court ruled that the government lacked the necessary authority to freeze the bank assets of suspect terrorists, the coalition enacted legislation that enabled it to do this in future.
In 1996 the Home Secretary, MICHAEL HOWARD’S, attempts to make asylum seekers register at once on entering the country was defeated in the High Court by a JUDICIAL
REVIEW, “For the purpose of this appeal it suffices to say that I, for my part, regard the 1996 regulations now in force as so uncompromisingly draconian in effect that they must indeed be held ultra vires”. [LORD BROWN]. Indeed, from 1992-1996 10 separate Judicial Reviews were used to quash controversial ministerial decisions by
Howard.
In 2004, in a JUDICIAL REVIEW, the LAW LORDS also declared that DAVID BLUNKETT’S attempts to deny SOCIAL SECURITY BENEFITS to those who failed to immediately claim asylum as soon as they entered the UK was contrary to the EUROPEAN
CONVENTION ON HUMAN RIGHTS and was thus unlawful.

Home Secretary David Blunkett has vowed to fight a High Court victory for six asylum seekers denied housing and benefits. Legislation introduced in January prevented people from claiming state-funded food and shelter if they did not immediately apply for asylum on arrival.
Mr Blunkett told BBC Radio 4’s “The world at one”: “Frankly, I’m personally fed up with having to deal with a situation where Parliament debates issues and the judges then overturn them. I don’t want any mixed messages going out so I am making absolutely clear today that we don’t accept what Justice Collins has said”.
BBC News, 20th February 2003

TO WHAT EXTENT DO JUDGES PROTECT INDIVIDUAL RIGHTS
AND FREEDOMS IN THE UK? [40 MARKS]
Judges ensure our rights and freedoms by conducting trials in a fair and open manner
– thus ensuring that trials are sub judice and outside the interference of politicians.
Thus David Cameron was firmly reprimanded by the trial judge when he said that he was on “TEAM NIGELLA” in the recent trial. Judges also have SECURITY OF TENURE, too, so cannot be sacked by government if they act against their wishes. The
SEPARATION OF POWERS and, with it the RULE OF LAW, has now been further guaranteed by the fact that the CONSTITUTIONAL REFORM ACT [2005] made the politically independent LORD CHIEF JUSTICE Head of the Judiciary, as well as establishing an independent SUPREME COURT. Government, therefore, cannot interfere with the way in which judges administer justice which would be the case if we lived in a totalitarian state like North Korea.

152

The ability of the Judiciary to protect our rights and freedoms is further illustrated by the way in which judges should INTERPRET STATUTE LAW according to the RULE OF
LAW. For example, in 2011 JUDGE ANDREW RUTHERFORD interpreted the EQUALITY
ACT [SEXUAL ORIENTATION] REGULATIONS 2007 to declare that owners of a Christian
Guest House could not use their personally held beliefs to deny accommodation to a gay couple. Then, in FEBRUARY 2011, a Christian couple, Mr and Mrs Johns, were banned from FOSTERING when they said they would not be prepared to say that homosexuality was as justified as heterosexuality. As they interpret statue law so judges establish CASE LAW – laying down PRECEDENTS to be followed in FUTURE
CASES.

“At the High Court they asked judges to rule that their faith should not be a bar to them becoming carers, and the law should protect their Christian values. But Lord
Justice Munby and Mr Justice Beaton ruled that laws protecting people from discrimination because of their sexual orientation “should take precedence” over the right not to be discriminated on religious grounds” BBC News, 28th February 2011

Since 2000, the judiciary has also been able to refer to the HUMAN RIGHTS ACT and on a growing number of occasions it has been deployed to advance our civil liberties.
We can see this in the way in which the Home Secretary used the Act to stop the extradition of CHRISTOPHER ALDER to the United States, as well as the way PATIENCE
ASUQUO was able to bring a case of false imprisonment in a case of forced labour and
RACHAEL COX’s successful appeal that Wiltshire police had invaded her privacy thus invalidating the case for her not being given a positive CRB Check. The Human Rights
Act was also used in 2011 to rule that CAR INSURANCE COMPANIES could not charge higher insurance premiums for men than women since this would be
DISCRIMINATORY.

“Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver and not the person who first wrote or spake them”.
Bishop Hoadly, 1717

Judges have also been increasingly prepared to be critical of the government, in defiance of the traditional KILMUIR RULES whereby judges would not comment on political decision making. In the process this has helped to stir up a lot of PUBLIC
DEBATE making it more difficult for governments to abuse our civil liberties. For example, LORD NICHOLS’ summing up during the BELMARSH CASE, for example, gained a significant amount of media attention, much to the government’s discomfort as it attempted to limit our civil liberties, “Indefinite imprisonment without charge or trial is anathema in any country that observes the rule of law”. Interestingly, 80% of the public trust judges – just 13% politicians!

153

The Judiciary can also grant a JUDICIAL REVIEW which can QUASH the decisions of a public body including the government as in the case of the BELMARSH DETAINEES, various CONTROL ORDERS including the one on CERIE BULLIVANT, as well as the cases involving ASYLUM SEEKERS which so outraged both MICHAEL HOWARD and DAVID
BLUNKETT when they were Home Secretary. The closure of LEWISHAM ACCIDENT
AND EMERGENCY facility was also quashed by Judicial Review thus protecting the rights of local residents from potential arbitrary government.
“The question is whether there is a threat to the life of the nation. The Attorney
General’s submissions and the judgment of the Special Immigration Appeals
Commission treated a serious threat of physical damage and loss of life as necessarily involving a threat to the life of the nation. But in my opinion this shows a misunderstanding of what is meant by “threatening the life of the nation”. Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom.
When Milton urged the government of his day not to censor the press even in time of civil war, he said, “Lords and Commons of England, consider what nation it is whereof ye arte, and whereof ye are the governors”.
This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill or destroy, but they do not threaten the life of the nation.
Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive al Qaeda. The Spanish people have not said that what happened in
Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community”.
Lord Hoffman, the Belmarsh Case, 16th December 2004

However, there are limitations, too, to how well the judges can protect our civil liberties. Parliament retains LEGAL SOVEREIGNTY, since there is no UK Codified constitution and could repeal the HUMAN RIGHTS ACT. As the SUPREME LAW
MAKING BODY parliament has also passed a number of laws which could be seen as undermining the ability of the Judiciary to maintain our civil liberties, but which they cannot legally oppose. Thus, even though if proposals for new parliamentary legislation come into conflict with the Human Rights Act the judges should declare a
FORMAL STATEMENT OF INCOMPTIBILITY parliament could still pass the new law on the principle that NO PARLIAMENT MAY BIND ITS SUCCESSOR.

“It is often said that it would be unconstitutional for parliament to do certain things
. . . but if parliament chose to do any of them, then the courts could not hold the act of parliament invalid”.
Lord Reid, 1974

154

Thus, when in 2004 the House of Lords used the HUMAN RIGHTS ACT to release foreign terrorist suspects from BELMARSH, parliament quickly responded by passing the PREVENTION OF TERRORISM ACT [2005] enabling CONTROL ORDERS to be placed on terrorist suspects even if they have not been convicted of any crime. In other words, parliament quickly produced legislation making it easier to fulfil their objectives. As we have seen Judicial Reviews dramatically undermined the effectiveness of Control Order, but the Coalition has been able to replace them with
TPIMS.

The government is replacing Control Orders with Terrorism Prevention and
Investigation Measures [TPIMS]. The bill removes the Home Secretary’s power to forcibly relocate a suspect, although in an emergency the government will be able to impose much tighter controls over movement and liberty”.
BBC News, 1st September 2011

Thus, to conclude, because we live in a LIBERAL DEMOCRACY governed according to the principle of the RULE OF LAW and the SEPARATION OF POWERS the judiciary is able to protect our rights and freedoms by opposing any illegal executive influence in judicial affairs, as well as by deploying JUDICIAL REVIEW to ensure government does not act beyond its authority or in defiance of natural justice. The SUPREME COURT has also increasingly proactively deployed the HUMAN RIGHTS ACT to develop CASE
LAW in order to better define and protect our civil liberties. However, in spite of this the UK lacks a codified constitution which would create a TWO TIER LAW which would place the law of the Constitution [and hence our civil liberties] beyond the reach of government. This means that parliament is still sovereign and could still legally pass a law that was in defiance of the Human Rights Act and the judges would have no choice but to accept its terms. This, it has been argued, does make our civil liberties vulnerable to government interference and so significantly undermines the ability of judges to fully protect our rights and freedoms from a potentially arbitrary government. “Inevitably there are going to be tensions, indeed if there weren’t tensions something would be wrong. If the judges always did things ministers liked then there would be understandable suspicion of what was going on”. But he said any government minister has “his or her own solution if a judge reaches a conclusion or adopts an approach the minister doesn’t like. They can appeal the decision and if the appeal fails and the minister still isn’t happy then the minister can go to Parliament to change the law”, he said”.
Daily Telegraph, 4th March 2013

155

TO WHAT EXTENT ARE BRITISH JUDGES INDEPENDENT AND
NEUTRAL? [40 MARKS]
Given that we live in a LIBERAL DEMOCRACY governed according to the principle of the RULE OF LAW it is very important that our judges are independent of government pressure and neutrally interpret the meaning of the law without prejudice or bias in favour of, or against, any group in society. Back in the 1970’s JOHN GRIFFITH argued that the British judiciary actually lacked independence and neutrality since it was too ready to side with the ESTABLISHMENT because of its highly elitist membership.
However, the evidence suggests that the judiciary has shown great independence and neutrality in recent years and these have been further safeguarded by the implications of the 2005 CONSTITUTIONAL REFORM ACT.
The SEPARATION OF POWERS, which ensures the independence of the judiciary is ensured by conventions such as the fact that a judge may not join a political party, while the only criteria taken into account when selecting judges are their “LEARNING
AND INTEGRITY”. Significantly, too, the government may not seek to influence the outcome of a trial since, it is SUB JUDICE. The payment of judges is also not voted on by parliament further ensures that parliament cannot seek to influence the judiciary by increasing the salary of judges in order to gain their support. The fact that judges can only be dismissed for corruption [and this requires a vote by both Houses of
Parliament] and so cannot be dismissed because their views may be obnoxious to the government of the day is also significant.
More recently, the Labour government sought to further guarantee the independence of the judiciary by passing the CONSTITUTIONAL REFORM ACT [2005]. This important act, at last, replaced the Lord Chancellor as head of the judiciary with the politically neutral Lord Chief Justice. This was particularly significant in guaranteeing the independence of the judiciary since the Lord Chancellor, as well as heading the judiciary had sat in the Lords [the legislature] and the Cabinet [the executive] and some Lord Chancellors, such as LORD HAILSHAM, had had a very obvious political background. At the same time, the act removed the Law Lords from the House of
Lords placing them in their own Supreme Court, while, as a result of the act, judges are now selected by an INDEPENDENT APPOINTMENTS COMMITTEE rather than, as had been the case, the Lord Chancellor’s Office.
The neutrality of judges is also ensured by the fact that in our liberal democracy we have OPEN COURTS and a FREE PRESS so that if a judge was acting in an obviously prejudiced manner then the media would be able to expose this. LORD HOFFMAN, for example, had to resign from trying the GENERAL PINOCHET EXTRADITION CASE when the press discovered that he was a member of AMNESTY INTERNATIONAL.
There are therefore a growing number of mechanisms in place to ensure that our judges are as independent and neutral as possible and recent conflicts between judges and the government seem to bear out the argument that judges have been prepared

156

to press the human rights of the most vulnerable in society even if this has meant risking a showdown with the government. JUSTICE COLLINS, for example, was a vocal critic of the 1994 CRIMINAL JUSTICE ACT arguing that its STOP AND SEARCH provisions could be used by the police in a discriminatory fashion against young black men, while in 2008, much to the outrage of the government, he quashed a control order on the Muslim convert, CERIE BULLIVANT, arguing that even though Bullivant may have known terrorist suspects, “the dangers of guilt by association are obvious”.
Governments of both the left and right have, interestingly, been equally vociferous in their condemnation of “liberal” judges making it difficult for government to stem the flow of illegal immigrants and effectively confront the terrorist threat. The former
Conservative Home Secretary, MICHAEL HOWARD, has, for example, condemned too much judicial activism, while DAVID BLUNKETT, a former Labour Home Secretary, in a fit of anger, on the quashing of his attempts to deny social security benefits to six illegal immigrants, stated that he was “fed up with having to deal with a situation where parliament debates issues and judges over-turn them”.

Mr Michael Howard cited the Law Lords’ decision in 2004 that the indefinite detention without trial of foreign terror suspects under the 2001 Anti-Terrorism Act contravened the Human Rights Act and referred to the difficulties the latter act creates for deporting extremists to countries where they may face persecution or torture. He said explicitly that political intervention by judges “could put our security at risk” and wrote in the Daily Telegraph that, “Parliament must be supreme. Aggressive judicial activism will not only undermine the public’s confidence in the impartiality of our judiciary, it could also put our security at risk – and with it the freedoms the judges seek to defend. That would be a price we cannot be expected to pay”.
The Guardian, 10th August 2005

Perhaps the most famous example of the judiciary proving themselves independent of the government came in 2004 when the Law Lords ordered the release of foreign terrorist suspects improperly held under the ANTI TERRORISM, CRIME AND SECURITY
ACT [2001] in the BELMARSH CASE and in remarkably forthright language [that outraged the government] LORD HOFFMAN declared that, “the real threat to the life of the nation comes not from terrorism but from laws such as these”. Indeed, such antagonism, far from being unique, if anything, seems to be increasing as judges become more confident in deploying the HUMAN RIGHTS ACT in defence of our basic civil liberties. The struggle between the judiciary and parliament over the fate of ABU
QATADA further illustrates the way in which judges have been prepared to stand by their interpretation of the Rule of Law in spite of a great deal of public and political criticism. There are still though some areas where it could be argued that the independence of the judges from the government should be further clarified; such as the role of the
Prime Minister and Justice Secretary in selecting senior judges from the list of judicial nominees proposed by the Appointments Committee. However, there are, in reality,

157

a large number of laws, conventions and practises to ensure that our judges are free from government interference and do not support the “establishment” against the people. Indeed, recent experience suggests that, far from finding this burdensome, judges have gone out of their way to protect our rights against increasingly draconian governments to the extent that that most illiberal of Home Secretaries, DAVID
BLUNKETT, once sighed that he “just wanted judges that lived in the same real world as the rest of us”.

TO WHAT EXTENT ARE CIVIL LIBERTIES IN THE UK BEING
ERODED? [ 40 MARKS]
There is no doubt that in recent years parliament has dramatically eroded a number of ancient civil liberties. However, we need to beware of exaggerating the threat to our civil liberties because, even though parliament remains the supreme law making body in our constitution, there is evidence to suggest that the judiciary have become more proactive in confronting parliament when our civil liberties are jeopardised. At the same time, the way in which pressure groups, such as LIBERTY, have effectively used the MEDIA to stir up debate about the government’s intentions, together with the Coalition’s more liberal approach to civil liberties suggests that, even though we do not have a codified constitution, our civil liberties are more secure than perhaps they were in the immediate aftermath of 9/11.
In 1994 the CRIMINAL JUSTICE ACT did, controversially, erode basic civil liberties by empowering the police to undertake STOP AND SEARCH even if they were not persuaded that a crime had, or was about to, take place. This dramatically challenged the principle that one is innocent until guilty, while the act also ended the PRINCIPLE
THAT ONE CANNOT INCRIMINATE ONESELF BY REMAINING SILENT which had been at the bedrock of British justice. Once LABOUR took office in 1997, a number of other significant restrictions of civil liberties were also introduced, such as ASBOS which could be initiated without guilt being proved, LIMITATIONS OF THE RIGHT TO TRIAL
BY JURY [a key principle of MAGNA CARTA] as well as the introduction of DOUBLE
JEOPARDY whereby one could now be tried twice for the same crime if new evidence came to light; another assault on the principles of Magna Carta. Under the Coalition
SECRET TRIALS have been introduced in cases involving NATIONAL SECURITY.
9/11 also provided Labour with further opportunities to strengthen the state at the expense of the individual. Thus in 2005 the SERIOUS ORGANIZED CRIME AND POLICE
ACT limited public protest at WESTMINSTER and wherever else the government regarded as sensitive, which has naturally eroded the fundamental right to protest, while this was followed by the 2005 PREVENTION OF TERRORISM ACT which, by enabling the government to place terrorist suspects [who had not been convicted in court] under CONTROL ORDERS, erodes the principle of HABEAS CORPUS. A further
TERRORISM ACT in 2006 has made it illegal to “glorify, exalt or celebrate terrorism” which could be seen as a significant erosion of freedom of speech.

158

A married couple have been jailed for posting videos on YouTube glorifying Fusilier
Lee Rigby's murder. Royal Barnes, 23, of Hackney, east London, recorded and uploaded three videos shortly after the murder in Woolwich, south-east London, last
May. In one of the videos, he hailed the murder as a “brilliant day”. At the Old Bailey, the Muslim couple were both jailed - Barnes for five years and four months, while
Rebekah Dawson, 22, was sentenced to 20 months.
BBC News, 14th March 2014

However, these restrictions on our civil liberties could only be passed with the support of parliament and it is important to note that on a number of occasions, parliament has been unprepared to support the government. The Commons, for example voted against Blair’s plans for 90 DAY DETENTION FOR TERRORIST SUSPECTS, while Brown’s plans for 42 DAY DETENTION were thrown out by the Lords with such a large majority that Brown decided to ditch the plans. More recently the Lords amended the government’s proposals that IPNAS [INJUNCTIONS TO PREVENT NUISANCE AND
ANNOYANCE] so that the criteria had to be “HARRASSMENT, ALARM OR DISTRESS”, rather than “NUISANCE OR ANNOYANCE” since the latter would have been much easier to prove and so could have dramatically undermined our civil liberties. The government has similarly accepted the Lords’ recommendations that SECRET COURTS can only be established by the government if the judges agree; another important safeguard to our civil liberties. The Coalition has also DROPPED PLANS FOR IDENTITY
CARDS and, following a ruling by the EUROPEAN COURT OF HUMAN RIGHTS, has deleted the DNA RECORDS of those arrested but not then convicted of a crime.

Hundreds of thousands of DNA profiles on the national database will be deleted the government has announced. Under the proposals, police will no longer be able to retain the DNA profile of most people who are arrested but not subsequently convicted. At present, the National DNA Database retains the profiles of anyone arrested, irrespective of the outcome. The changes will bring the law in England, Wales and Northern Ireland into line with Scotland. Under the measures, set out in the coalition's Protection of Freedoms Bill, any adult convicted of a crime, or child convicted of a serious crime, will still have their DNA profile stored indefinitely in the national database. But following a critical European Court of Human Rights ruling, there will be wide-ranging changes to when profiles can otherwise be kept. If an adult is arrested for a serious offence, but not convicted, the profile can be kept for three years with a possible further two-year extension with court approval. But most of those arrested for less serious offences will see their profile deleted if they are not subsequently charged.
BBC News, 11th February 2011
159

In many other cases, since the EUROPEAN CONVENTION ON HUMAN RIGHTS was incorporated into British law in the HUMAN RIGHTS ACT, judges have been able to protect the civil liberties of even the most vulnerable against the government. Thus, in 2004 the High Court released foreign detainees from BELMARSH on the grounds that they were not “A THREAT TO THE LIFE OF THE NATION” [which was the principle by which the government were detaining them], as well as pointing out that the
HUMAN RIGHTS ACT protected them, as foreign nationals, from INDEFINITE
DETENTION. Judges have also used the Act to quash a number of CONTROL ORDERS as ILLEGAL, while “PROTECTION FROM CRUEL AND INHUMANE TREATMENT”
[ARTICLE THREE] was used by the Home Secretary, Theresa May, to stop the extradition to the United States of the computer hacker, GARY MCKINNON, because of his severe autism.

British computer hacker Gary McKinnon will not be extradited to the US, Home
Secretary Theresa May has announced. Mr McKinnon, 46, who admits accessing US government computers but claims he was looking for evidence of UFOs, has been fighting extradition since 2002. The Home Secretary told MPs there was no doubt Mr
McKinnon was “seriously ill” and the extradition warrant against him should be withdrawn. Mrs May said the sole issue she had to consider was his human rights.
BBC News, 16th October 2012

Indeed, one could argue that, far from being an erosion of civil liberties in recent years, there has actually been renewed interest in seeing them secured. Pressure Groups like LIBERTY, as well as films such as “TAKING LIBERTIES” have made the public much more conscious of how important it is not to take civil liberties for granted and it is interesting to note how PROACTIVE the judiciary, emboldened by the establishment of a Supreme Court and the HUMAN RIGHTS ACT, has become in ensuring that our civil liberties are protected. DAVID BLUNKETT, for example, had his plans to DENY
SOCIAL SECURITY BENEFITS to FAILED ASYLUM SEEKERS quashed in a JUDICIAL
REVIEW, while the judiciary are currently taking a lead in ensuring that

160

HOMOSEXUALS are treated entirely equally by the law, as can be seen in the case of a Christian Guest House which was deemed to have acted illegally in not treating a gay couple in the same way as a heterosexual couple.
Therefore, it is true to say that, especially in the immediate aftermath of 9/11 there were genuine concerns that our civil liberties were being dangerously eroded, while the Coalition has itself by introducing SECRET COURTS acted in a potentially arbitrary manner. However, the SEPARATION OF POWERS, reinforced by the establishment of the SUPREME COURT, together with the HUMAN RIGHTS ACT has significantly helped to protect our civil liberties, while PARLIAMENT itself has been increasingly proactive in protecting our civil liberties from government interference.

TO WHAT EXTENT AND WHY HAS CONFLICT BETWEEN THE
JUDICIARY AND THE EXECUTIVE INCREASED IN RECENT YEARS
IN THE UK? [40 MARKS]
In recent years there has been growing conflict between the judiciary and the executive as the judiciary has accumulated more powers and used them to challenge the decisions of the government. Such increased JUDICIAL ACTIVISM has occurred at just the same time as governments of both the right and left have felt under increased pressure to PROTECT SOCIETY from terrorism and illegal immigration, while judges have antagonised ministers and MPs by applying the RULE OF LAW equally to everyone, including those who might be perceived as trying to undermine the very fabric of our society.
The way in which the EUROPEAN COURT OF HUMAN RIGHTS in STRASBOURG is the highest court of appeal in cases involving the HUMAN RIGHTS ACT has also frustrated many British politicians, particularly on the right, who feel that this EXTERNAL COURT is now interfering too much in how laws affecting British citizens are being made. In other words, FOREIGN and UNACCOUNTABLE judges are now wielding significantly too much influence in our parliamentary democracy and, too often, use it to protect notorious “villains” such as ABU QATADA.
There can be no doubt that the increased use of JUDICIAL REVIEW, the introduction of the HUMAN RIGHTS ACT into British law, together with a SUPREME COURT which is now located outside Westminster has all added to the SELF CONFIDENCE with which judges have been prepared to confront government, especially as recent governments have frequently been accused by the judiciary of undermining our civil liberties and not abiding by the principles of the RULE OF LAW. This has naturally enraged governments. At the same time, the judges have reacted angrily to the executive’s attempts to limit their powers; for example by the way in which the government is now trying to control
SENTENCING POLICY and the way in which the government put pressure on CROWN

161

COURTS and MAGISTRATES to hand out TOUGH SENTENCES following the LONDON
RIOTS.
Thus, governments of both the left and the right have often been frustrated by the judiciary from carrying out their policies. For example, JUDICIAL REVIEWS were deployed to stop MICHAEL HOWARD, when he was Home Secretary, from demanding that asylum seekers immediately register on entering the country, while Labour Home
Secretary, DAVID BLUNKETT was, similarly, stopped from DENYING SOCIAL SECURITY
BENEFITS to illegal asylum seekers. In both cases the Judicial Review declared that these actions would have been against the principles of NATURAL JUSTICE. David
Blunkett was though especially outraged by what he saw as being judicial obstacles to him carrying out his duties as Home Secretary.
More recently JUDICIAL REVIEWS have been used to QUASH a CONTROL ORDER placed on the Moslem convert, CERIE BULLIVANT, since the Home Secretary had
INSUFFICIENT EVIDENCE THAT HE WAS A TERRORIST THREAT, while the government right to put detainees under house arrest for more than 16 hours or move them from their families was also declared to be in defiance of the European Convention on
Human Rights. LORD JUSTICE SEDLEY also quashed THERESA MAY’S decision that
NON EUROPEAN UNDER 21 YEAR OLDS could not come Britain to live with their spouses, since the decision was IRRATIONAL and AGAINST NATURAL JUSTICE since it many would now suffer because of “a blanket policy designed to target a few cases of forced marriage”.

The judges have also been increasingly active in their use of the HUMAN RIGHTS ACT.
For example, in an extremely controversial case, the Law Lords released terrorist suspects from BELMARSH on the grounds that their detention was against the principles of the HUMAN RIGHTS ACT. This outraged the government since they argued such decisions were making it impossible for them to protect the country against potential terrorist threats. The government was thus, similarly, outraged when in 2006 the judiciary, once again, issued a Judicial Review, using the HUMAN RIGHTS
ACT to lay down that NINE AFGHANS, who had hijacked an internal flight and come to the UK, COULD NOT BE DEPORTED because they might be tortured in Afghanistan.
The deportation of ABU QATADA to Jordan was long delayed because the EUROPEAN
COURT OF HUMAN RIGHTS in STRASBOURG was concerned that torture had been used to extract evidence against him thus breaching both ARTICLE 3 [protection from
CRUEL TREATMENT] and ARTICLE 6 [right to a FAIR TRIAL] of the European
Convention on Human Rights. For Home Secretary, THERESA MAY, such reasoning was absurd given his threat to the nation and the costs of keeping him in the UK.
Strasbourg’s decision that BRITISH PRISONERS SHOULD BE ALLOWED TO VOTE further outraged parliament and many argued that it was yet another example of an
EXTERNAL COURT interfering in the sovereign affairs of the UK.

162

UK Justice Secretary Chris Grayling has spoken openly of the possibility of defying an
ECHR ruling on prisoners' right to vote. This would be a “violation of international law”, according to the European Court of Human Rights in Strasbourg. But Strasbourg declined to comment on the "political question" of whether the UK would be thrown out of the Council of Europe - the international institution that oversees the European
Convention on Human Rights - if it did defy the prisoner votes ruling.
The UK has been on a collision course with Strasbourg since 2005, when the ECHR ruled that a ban on all prisoners voting was a breach of human rights, following a challenge by convicted killer John Hirst. In February last year, MPs voted by 234 to 22 to keep the blanket ban, in response to a government proposal to give the vote to offenders handed a custodial sentence of less than four years.
BBC News, January 14th 2014

In another landmark Judicial Review, in 2010, the government was once again stopped from deporting two illegal asylum seekers since the Supreme Court declared that, as
HOMOSEXUALS, they might be tortured on their return to Iran and Cameroon. The government has naturally become very worried that this might provide a precedent for homosexuality being used as a justification for claiming asylum in the UK. The way, too, in which in such cases leading judges have been prepared to use language,
VERY CRITICAL OF THE GOVERNMENT, has further antagonised ministers. For example, during the BELMARSH CASE, LORD HOFFMAN announced that, “The real threat to the life of the nation comes not from terrorists but from laws such as these”.
The use of ARTICLE EIGHT [the RIGHT TO A FAMILY LIFE] has also caused outrage amongst right wing politicians who feel that this is being used to stop foreign criminals being deported from the UK.
Growing JUDICIAL ACTIVISM has therefore, unsurprisingly, caused a great deal of resentment amongst ministers who feel that they are now being stopped by
UNACCOUNTABLE judges from doing what they have to, to protect the nation from asylum seekers and suspected terrorists. To apply the Human Rights Act to protect, for example, terrorist suspects and foreign born criminals from being denied a family life is, in the eyes of the government, absurd when they are trying to protect the public from terrorist outrages.

The European Court of Human Rights has lost its legitimacy in Britain, Chris Grayling, the Justice Secretary, has said. Grayling, a senior Tory minister, said he is finalizing proposals to curtail the court's power after 2015 and make sure the UK Supreme Court judgments are final. The court has proved controversial because of judgments on issues such as prisoner voting, and overruling the wishes of parliament. It was recently criticized by Lord Judge, the former Lord Chief Justice, for getting too powerful.

163

The Guardian, 30th December 2013

At the same time, the Judiciary have been highly critical of the government when they feel that they have tried to extend their influence too far into judicial affairs thus
UNDERMINING THE RULE OF LAW by BREACHING THE SEPARATION OF POWERS.
For example, the Lord Chief Justice, LORD JUDGE, has urged that judges be given
GREATER DISCRETION in sentencing those convicted of murder, while the new Head of the Supreme Court, LORD NEUBERGER, has been highly critical of the government on a number of occasions, in particular criticising the Home Secretary, THERESA MAY, for her attacks on the European Convention on Human Rights.

“Lord Neuberger said the Home Secretary’s strongly-worded criticism of immigration judges was “inappropriate, unhelpful and wrong”. Mrs May said the failure of judges to take new rules into account meant she would bring in new laws to stop them allowing foreign rapists and violent criminals to stay in Britain by claiming a right to a family life. Asked about Mrs May’s attack, Lord Neuberger, president of the Supreme
Court, said “I’m concerned about it because I think it’s inappropriate and unhelpful for ministers to attack individual judges or groups of judges”.
Daily Telegraph, 4th March 2013

However, we should not exaggerate the conflict. The SEPARATION OF POWERS means that parliament enacts laws and the judges interpret them and because we lack a Codified Constitution, and hence a Constitutional Higher Law, the judiciary cannot, therefore, confront the British government in the same way as it would in a country like the USA.
Indeed, in February 2013, the Court of Appeal actually sided with parliament against Strasbourg stating that MANDATORY LIFE SENTENCES were not actually against ARTICLE 3 [CRUEL AND INHUMANE TREATMENT] of the European
Convention on Human Rights.

The Court of Appeal has upheld judges' right to jail the most serious offenders in
England and Wales for the rest of their lives. The European Court of Human Rights had ruled such terms breached human rights. In July, the European Court in Strasbourg said that, while it accepted whole life orders could be justified there should nevertheless be some way of having imprisonment reviewed after 25 years. Tuesday's
Court of Appeal ruling was welcomed by the attorney general, the Justice Secretary and the Shadow Justice Secretary.
BBC News, 18th February 2014

164

AND FOR MORE IDEAS AND DETAIL USE PRE
CHEWED
Log in using: jnj@warwickschool.org yellow195

165