June 2012- unit 2

Constitution
Outline two constitutional reforms proposed by David Miliband. * Replacement of the current House of Lords with a second chamber elected using PR, this would strengthen the representative function of the legislature by providing more representatives who have genuine legitimacy by the use of PR- making the composition accurate to the votes cast. * The introduction of AV would to commons would not change the current constituency structure of the UK, and would also be a bit more proportional than the current Westminster system FPTP.

Explain the arguments in favour of a codified constitution. * Codification is the only way of protecting individual rights and freedoms, the current quasi-entrenched HRA fails to do this, reflected in the conservative plans to replace it with a less powerful British bill of rights with will neither enjoy quasi-entrenchment nor a direct association with the ECHR. This shows how the government of the day can tamper with our rights in the absence of codification. * It may help prevent any further drift towards excessive executive power, codification will surely constrain possibly over-mighty governments who are easily able to alter to constitution. However, it may not necessarily be entrenchment de jure but possibly de facto, which would be unnecessary and fail to curb excessive executive power. * Codification will bring Britain into line with other modern democracies, the UK is one of three, including Israel and New Zealand to not have a codified constitution. However, we would be exchanging flexibility for rigidity, many people argue our organic constitution is a great advantage of our current system.

To what extent have the coalition government’s proposals to reform the UK been controversial? * In 2011 the coalition introduced the fixed term parliament act as a result of the Coalition agreement, which in effect meant UK elections are now fixed to the first week in May every five years. This was welcomed by the Lib Dems, Labour and some Conservatives as the previous system was seen as giving an advantage to the Prime Minister who could call an election at the most advantageous time for them. The old system would also mean there was always a period of uncertainty as to when an election would be called, this was seen to be bad for economic decision making. However, there has also been criticisms to the new reform, some have argued that knowing the date a long time in advance will lead to longer election campaigns, a lack of flexibility and the possibility of a ‘lame duck’ government limping on longer than it should. The last Coalition seemed to have run out of steam in 2014, leaving a year were no real substantial pieces of legislation were presented to parliament. Despite some disputes against the Act support was given by most parties, with little opposition or disagreement, aside from Conservative back benchers. * Nick Clegg pushed for the introduction of AV which was hugely controversial between coalition partners and within the Conservatives. Smaller parties and the Lib Dems were for the replacement of FPTP with AV as they believed too many votes are effectively wasted under the current system, with elections decided by a smaller number of voters, which they deemed undemocratic. Conservatives opposed the reform entirely, as it would mean a loss of votes and seats in parliament and make future coalitions far more likely. This reform was also controversial within the Labour Party, with Miliband for the reform, but many Labour MPs against it, knowing that a change to FPTP could lead to a rise in smaller parties in parliament and a loss for them. However, this controversy was settled by the referendum which had a low turnout of 41% and an overwhelming decision to keep FPTP. There will be no further look into reforming the FPTP system under the 2015 majority Conservative government, as it favours the two bigger parties, and the chances to look at a more proportional system is even slimmer. * During the dying days of the last parliament the Conservatives introduced the Recall of MPs Act (2015). This Act allows constituents to get rid of their MPs if they found them to have failed to undertake their duties leading to a suspension or committed a crime. The processes by which an MP would trigger the recall process, would be namely a custodial prison sentence, suspension from the House ordered by the Committee on Standards, or providing false or misleading expenses claims. In all cases it would be the Committee on Standards (a Parliamentary committee of MPs) that would allow for constituents to recall their representative. Conservative backbencher Zak Goldsmith felt it did not go far enough, with Parliament as the filter to trigger a recall not the people, as is the case in California. It is claimed it is a weak piece of legislation, however recent controversies over Lib Dem MP Alistair Carmichael’s dirty trick campaign against Sturgeon may be the first test of recall powers.

Judiciary
To what extent do judges protect individual rights and freedoms in the UK? * In terms of rights protections, perhaps the most important development in the protection of rights in the UK has been the installation of the European Convention on Human Rights into UK law via the Human Rights Act 1998. This act effectively has provided a concrete document that outlines the rights of citizens. Since the passing of this act, judges have been able rule more confidently based on the legislation rather than using complex declarations of the common law via precedents. The increased ease for judges and clarity for citizens has increased the effectiveness of rights protection by the judiciary because now the judiciary can use articles in the HR Act to rule in favour of individuals. For example, in the case of Catherine Zeta Jones v. Hello Magazine 2001, the court was able to rule clearly that the right to privacy outweighed the magazine's right to expression and thus Zeta Jones' wedding was allowed to remain private. This clearly shows an effective protection of liberty by judges.
BUT
The sovereignty of Parliament does provide a large hindrance to the judiciary's ability to protect liberty. Acts of Parliament are binding on all bodies within the UK, including the Supreme Court. The sovereign status of Parliament puts it above the judiciary, and if a ruling is passed that the government do not like, they can always legislate to avoid the ruling. This was seen in 2005 when in response to the Bellmarsh case when the government passed the 2005 Prevention of Terrorism Act. This act allowed the use of control orders which got around the judicial ruling banning detention without trial. This shows that the sovereignty of Parliament hinders the judiciary's ability to protect liberty. * A vital protection of liberties can be exercised via judicial review. Judicial review is a process that is conducted in the Supreme Court that hears an appeal over lawfulness of a case. Judicial review is simply an examination of the lawfulness of a case. For example, in 2010 an appeal allowing the government to detain AP on a control order was taken to the Supreme Court to review its lawfulness. The Supreme Court ruled that, based on the 2008 JJ case as a precedent, the appeal court's ruling in fact constituted a breach. The resulting ruling was that the government control order was 'ultra vires' and had to be quashed. In this way, the judiciary's ability to reverse executive action by ruling it beyond its powers provides a very effective protection of liberties in the UK.
BUT
Judges cannot be pro-active in Britain and must wait for appeals to come before engaging in their protective role. The Bellmarsh case of 2004 was 3 years after the original 2001 Anti-Terrorism Act and was not brought until the pressure group Liberty brought the case forward on behalf of the detainees. This means that erosion of civil liberty can stand for years until someone challenges it, making the effectiveness of judges appear weak. * The individual can take their appeal to the European Court of Human Rights. Rulings from Europe are effectively binding on government and often defend the individual. Examples include the Hurst case in 2004 where voting bans for prisoners were ruled in breach of the ECHR, and more recently in 2012 with the blocking of Home Office attempts to deport terror suspects. Both of these cases have proved effectively binding on Parliament with the prisoners vote issue is still ongoing. This shows the huge protections that judges can impart on civil liberties.
BUT
Due to the lack of an entrenched constitution, erosion of civil liberty is very easy for the government to do, and very difficult for judges to reverse. Labour's range of anti-terror laws followed by ID cards and expansion of CCTV all were programs that the judges could do nothing about. The sovereignty of Parliament and the implicit nature of the liberty erosion in these bills made it impossible for the judges to overturn any of these provisions, even though they constitute a clear breach of privacy and liberty. The fact that it took subsequent acts of Parliament to overturn these measures shows that while judges can act like an irritation, if Parliament is resolved it can do anything, including scrap the Human Rights Act. This hinders the effectiveness of the judiciary to protect liberty, because if they had outright power to strike down laws like the US Supreme Court, the protection would be far more extensive and effective.

Parliament
How effective are backbench MPs? * Backbenchers are effective because of the action of select committees. Since the reforms of 2010 to elect the chairmen by secret ballot and give them increased pay, there has been an increase in the feeling of responsibility and prestige of select committees to hold government ministers to account. Select committees now perform the bulk of the scrutiny of government and their impact is widely visible. For example, George Osborne's 2012 Budget contained several controversial measures including the so-called 'Pasty-Tax' on hot baked goods. Following intense scrutiny from the Treasury Select Committee, Osborne scrapped the plans in a victory for backbench pressure. Similarly, in 2013 the Education Select Committee attacked Michael Gove's plans to reform GCSEs, Gove altered his initial plans in another victory for backbench members of select committees.
BUT
However, despite the strengths, it is argued that select committees need more powers. Government can routinely ignore the reports produced by select committees, as David Cameron chose to do to the Home Affairs Select Committee report on drugs legalisation, and select committees still have no powers to punish lying or pin down evasive ministers. These weaknesses indicate there is still work to do. * The increased willingness of backbenchers to defy the whip and rebel against the party line has increased the effectiveness of backbenchers. The government were defeated on the EU Budget Debate in 2013 because 53 Conservative backbenchers rebelled against the proposed freeze in the EU Budget, preferring a cut. This inflicted a government defeat and forced Cameron's hand in negotiations with Europe. Furthermore, backbench MP Mark Pritchard was successful in securing a ban on circus animals in another issue not originally endorsed by government, but his willingness to defy the whips eventually paid off. This shows increasing backbench effectiveness.
BUT
However, there is still a high degree of whips control and on all major legislation the government has won the vote since 2010. Indeed, there have only been 7 government defeats since 1997 in the House of Commons, and even the divided coalition government secured victories on its controversial tuition fees legislation and welfare reforms. These victories show that the government majority controlled by party whips still maintains much control over backbenchers, hindering their impact. * The new Backbench Business Committee has greatly increased the effectiveness of backbenchers. Effectiveness of backbenchers can be measure by how much they participate in House of Commons proceedings, and the BBC secures time on the floor of the House for the debate of backbench issues not addressed by government. This means that now more time is allocated in Parliament for issues of backbench concern. Two examples of this to gain ministerial attention were the Badger Cull Debate 2012 and the prevention of sexual violence in international conflicts. Both of these issues were adopted by government for action as a result of backbench participation showing the great effectiveness it gives backbenchers.
BUT
Still, backbench business motions are often ignored and can be easily defeated by a whipped vote from the government. For example, Caroline Lucas proposed an NHS reinstatement bill but was filibustered by Tory MPs talking about foreign policy. Furthermore, in many cases BBC debates often get packages off into Westminster Hall for debate, which means there is no vote on them. This makes the debate effectively irrelevant and diminishes backbench effectiveness. In practice, the government and official opposition still hold most of the control over the timetable leaving backbenchers little opportunity to participate. * Finally, the reduced government majority of the Coalition government has increased the effectiveness of backbenchers. Under the current arrangements, the government's majority is reliant on agreement across two political parties, on a contentious issue it only requires a small backbench rebellion to threaten a government defeat. This has happened on multiple occasions showing the effectiveness that backbenchers can have. On Lords reform, Conservative backbenchers withdrew support and the initiative had to be dropped. On boundary changes for constituencies, Liberal Democrats withdrew their support and again the government were defeated. The Government has also been defeated on the EU Budget Debate and following pressure from backbenchers on select committees and in the House of Commons the government has altered over 40 initiatives. This shows that backbenchers are very effective in their scrutiny of government policy.
BUT
However, once again the government has managed to pass the vast majority of its flagship programs. Schemes like scrapping the spare-bedroom subsidy, welfare caps, cuts to legal aid and reductions in policing numbers all add up to sweeping public sector cuts that have become very unpopular. The fact that the government has passed this program with little problems in Parliament shows that the government still has a high control over backbenchers when it matters.