Constitutional Law for LLB part I Punjab Universty

THE LEGISLATIVE PROCESS

In the British political system, almost all legislation is proposed by the Government and much of it comes from promises made in the manifesto of the relevant political party at the last election. At the beginning of each annual session of the Parliament, the main Bills to be considered are announced by the Queen in a speech opening that year's session of Parliament.

All legislation has to be approved by both Houses of Parliament.

In each House of Parliament, a proposed piece of legislation – called a Bill – goes through the following stages:

• First Reading – the Bill is introduced with simply a reading by a Minister of the long title of the Bill
• Second Reading – the general principles of the Bill are debated by all the members of the House and a formal vote is taken
• Committee Stage – each clause and schedule of the Bill, plus amendments to them and any new clauses or schedules, is examined in detail, in the Commons by a small, specially chosen group of members meeting as Public Bill Committee, in the Lords by the members as a whole on the floor of the House
• Report Stage – the changes made to the Bill in the Committee are reported to and debated by the whole House which is invited to consider the Bill as a whole, approve the changes by the Committee, and consider any further proposed changes that might be suggested
• Third Reading – the final version of the Bill is considered by the whole House in a short debate (in the Commons without the facility for further amendments)
• Royal Assent - the Crown gives assent to the Bill which then becomes an Act, the provisions becoming law either immediately or at a date specified in the Act or at a date specified by what is called a Commencement Order

Several points are worth noting about the legislative process:

• Under normal circumstances, all these stages must be completed in both Houses in one session of Parliament; otherwise the process must begin all over again.
• Debates on most Bills are timetabled through a programme motion (when Government and Opposition agree) or an allocation of time motion which is popularly known as a 'guillotine' motion (when Government and Opposition do not agree).
• As well almost all legislation coming from the Government, almost all successful amendments originate from the Government.
• The House of Lords has much more limited legislative powers than the House of Commons. Money Bills can only be initiated in the Commons and the Lords can only reject legislation from the Commons for one year. Furthermore there is a convention - called the Salisbury Convention - that the Lords does not block legislature in fulfillment of the election manifesto of the elected Government.

POLITICAL PARTIES

The idea of political parties first took form in Britain and the Conservative Party claims to be the oldest political party in the world. Political parties began to form during the English civil wars of the 1640s and 1650s. First, there were Royalists and Parliamentarians; then Tories and Whigs. Whereas the Whigs wanted to curtail the power of the monarch, the Tories - today the Conservatives - were seen as the patriotic party.

Today there are three major political parties in the British system of politics:

• The Labour Party (often called New Labour) – the centre-Left party currently led by Ed Miliband
• The Conservative Party (frequently called the Tories) – the centre-Right party currently led by David Cameron
• The Liberal Democrat Party (known as the Lib Dems) – the centrist, libertarian party currently led by Nick Clegg

In addition to these three main parties, there are some much smaller UK parties (notably the UK Independence Party and the Green Party) and some parties which operate specifically in Scotland (the Scottish National Party), Wales (Plaid Cymru) or Northern Ireland (such as Sinn Fein for the nationalists and the Democratic Unionist Party for the loyalists).

Each political party chooses its leader in a different way, but all involve all the Members of Parliament of the party and all the individual members of that party. By convention, the leader of the political party with the largest number of members in the House of Commons becomes the Prime Minster (formally at the invitation of the Queen).

Political parties are an all-important feature of the British political system because:

• The three main political parties in the UK have existed for a century or more and have a strong and stable 'brand image'.
• It is virtually impossible for someone to be elected to the House of Commons without being a member of an established political party.
• All political parties strongly 'whip' their elected members which means that, on the vast majority of issues, Members of Parliament of the same party vote as a 'block'.

Having said this, the influence of the three main political parties is not as dominant as it was in the 1940s and 1950s because:

• The three parties have smaller memberships than they did since voters are much less inclined to join a political party.
• The three parties secure a lower overall percentage of the total vote since smaller parties between them now take a growing share of the vote.
• Voters are much less 'tribal', supporting the same party at every election, and much more likely to 'float, voting for different parties at successive elections.
• The ideological differences between the parties are less than they were with the parties adopting more 'pragmatic' positions on many issues.

In the past, class was a major determinant of voting intention in British politics, with most working class electors voting Labour and most middle class electors voting Conservative. These days, class is much less important because:

• Working class numbers have shrunk and now represent only 43% of the electorate.
• Except at the extremes of wealth, lifestyles are more similar.
• Class does not determine voting intention so much as values, trust and competence.

In the British political system, there is a broad consensus between the major parties on:

• the rule of law
• the free market economy
• the national health service
• UK membership of European Union and NATO

The main differences between the political parties concern:

• how to tackle poverty and inequality
• the levels and forms of taxation
• the extent of state intervention in the economy
• the balance between collective rights and individual rights

THE U.K. GOVERNMENT

Historically most British governments have been composed of ministers from a single political party which had an overall majority of seats in the House of Commons and the 'first-past-the-post' (FPTP) electoral system greatly facilitates and indeed promotes this outcome. However, occasionally there have been minority governments or coalition governments.

Currently the UK has its first coalition government in 65 years since, in May 2010, the Conservatives went into coalition with the Liberal Democrats because in the General Election they did not secure a majority of the seats. In this coalition, the Lib Dems have 17 ministers led by the Deputy Prime Minister Nick Clegg.

The Prime Minister

The UK does not have a President. Constitutionally the head of state is the monarch who is a hereditary member of the Royal Family. However, the monarch has very few formal powers and stays above party politics.

So, in practice, the most important person in the British political system is the Prime Minister. The first modern Prime Minister was Sir Robert Walpole who served from 1721-1742, so the current PM - David Cameron - is the 53rd (and, on first taking office, the youngest since 1812, a few months younger than when Tony Blair became PM in 1997). In theory, the Prime Minister simply choses the ministers who run Government departments and chairs the Cabinet – the collection of the most senior of those Ministers. In practice, however, the Prime Minister is a very powerful figure and increasingly has been behaving much like a president in other political systems, especially in the area of foreign policy. The official residence of the Prime Minister is at 10 Downing Street.

Government Departments

The most important political departments are called:

• The Treasury – In most countries, this would be called the Ministry of Finance. It is responsible for the raising of all taxes and the control of all government expenditure plus the general management of the economy. The head of the Treasury is called the Chancellor of the Exchequer and is currently George Osborne (who, on taking office, was the youngest Chancellor for more than 180 years).

Link: Treasury site click here

• The Home Office - In most countries, this would be called the Ministry of the Interior. It is responsible for criminal matters, policing, and immigration. The Head of the Home Office is called the Home Secretary and is currently Teresa May.

Link: Home Office site click here

• The Foreign and Commonwealth Office – In most countries, this would be called the Ministry of Foreign Affairs. It is responsible for all our international relationships, especially our membership of the European Union. The head of the Foreign Office is called the Foreign Secretary and is currently William Hague.

Many other UK Government Departments are similar to those in other countries and cover subjects such as education, health, transport, industry, and justice. However, there are also departments for Scotland, Wales and Northern Ireland.

When talking about the British Government, the media will often use the term Whitehall because a number of Government Departments are located along a central London street very close to Parliament called Whitehall.

Government Ministers

All Government Departments are run by Ministers who are either Members of the House of Commons or Members of the House of Lords. We have three classes of Minister:

• Secretary of State – This is usually the head of a Department.
• Minister of State – This is a middle-ranking minister.
• Parliamentary Under-Secretary of State – This is the most junior class of minister.

The Prime Minster and all the Secretaries of State together comprise an executive body of government called the Cabinet. The Cabinet meets usually once a week on Tuesday morning. Cabinet meetings are confidential and all members are bound by any decision that it takes in a practice called collective responsibility. An extensive system of Cabinet Committees considers matters either before they go to Cabinet or (more usually) instead of them going to Cabinet.

Although all Ministers are appointed by the Prime Minster and report to him, ultimately all Ministers are accountable to Parliament:

• About once a month, they have to face questions in the House of Commons about the work of the Department.
• Each government department has a special committee of the House of Commons which watches the work of that Department.
• Any government initiative or important statement concerning a Department must be the subject of an appearance in the House of Commons by a minister from that Department.

The civil service

Each Secretary of State is able to appoint a couple of political advisers – formally known as Special Advisers – to serve him or her. I was a Special Adviser to Merlyn Rees in the Northern Ireland Office from 1974-1976 and in the Home Office from 1976-1978, while my son Richard was a Special Adviser to Ruth Kelly in the Department for Education & Skills in 2005 and a Special Adviser to Douglas Alexander at the Department for International Development in 2009-2010.

But Special Advisers are simply advisers. They have no line management responsibilities in respect of the staff of the Department. Besides these tiny number of Special Advisers, Government Departments are run by civil servants who are recruited in a totally open manner and serve governments of any political parties. The independence and professional of the British civil service is a fundamental feature of the British political system. My son Richard once worked as a civil servant in what was then the Department of Trade & Industry and my half-brother Chris was an official in the Treasury for five years.

DEVOLVED GOVERNMENT

The UK has a devolved system of government, but this is categorically not a system of federal government such as in the United States [click here] or Australia, partly because less than a fifth of the citizens of the UK are covered the three bodies in question and partly because the three bodies themselves have different powers from one another.

The three devolved administrations are:

The Scottish Parliament

This came into operation in May 1999 and covers the 5M citizens of Scotland. It has 129 members elected by a system of proportional representation known as the mixed member system. As a result, 73 members represent individual geographical constituencies elected by the 'first past the post' system, with a further 56 members returned from eight additional member regions, each electing seven members. All members are elected for four-year terms.

The Scottish Parliament meets in Holyrood, Edinburgh. It has legislative powers over those matters not reserved to the UK Parliament and it has limited tax-raising powers.

In the election of May 2011, for the first time a single political party gained an overall majority of the seats in the Scottish Parliament. That party is the Scottish National Party which intends to hold a referendum seeking support for Scottish independence from the remainder of the UK.

The Welsh Assembly

This came into operation in May 1999 and covers the 3M citizens of Wales. It has 60 members elected by a system of proportional representation known as the mixed member system. As a result, 40 members represent individual geographical constituencies elected by the 'first past the post' system, with a further 20 members returned from five additional member regions, each electing four members. All members are elected for four-year terms.

It meets in the Senedd, Cardiff. When first created, the Assembly had no powers to initiate primary legislation. However, since 2006, the Assembly now has powers to legislate in some areas, though still subject to the veto of the Westminster Parliament. The Assembly has no tax-varying powers. The Welsh Assembly, therefore, has less power than either the Scottish Parliament or the Northern Ireland Assembly because – unlike Scotland and Northern Ireland – Wales does not have a separate legal system from England.

The Northern Ireland Assembly

The present version of the Assembly came into operation in May 2007 and covers the 1.5M citizens of Northern Ireland. It has 108 members - six from each of the 18 Westminster constituencies - elected by a system of proportional representation known as the single transferable vote.

It meets in the Parliament Building, Belfast. It has legislative powers over those matters not reserved to the UK Parliament, but it has no tax-raising powers.

A First Minister and a Deputy First Minister are elected to lead the Executive Committee of Ministers. As a result of the sectarian division in Northern Ireland, the two must stand for election jointly and to be elected they must have cross-community support by the parallel consent formula, which means that a majority of both the Members who have designated themselves Nationalists and those who have designated themselves Unionists and a majority of the whole Assembly, must vote in favour. The First Minister and Deputy First Minister head the Executive Committee of Ministers and acting jointly, determine the total number of Ministers in the Executive.

THE UK JUDICIARY

The British judicial branch is extremely complex. Unlike most countries which operate a single system of law, the UK operates three separate legal systems: one for England and Wales, one for Scotland, and one for Northern Ireland. Although bound by similar principles, these systems differ in form and the manner of operation.

Currently a process of reform is in operation.

The Lord Chancellor's office - which for 1,400 years maintained the judiciary - has now been replaced by the Ministry for Justice which administers the court system. A Judical Appointments Commission has been set up to advise the head of the MoJ on the appointment of new judges.

The Appellate Committee of the House of Lords - previously the highest court in the land - was, by way of the Constitutional Reform Act 2005, replaced by the Supreme Court in October 2009 to allow the judiciary to operate in total independence from the Government. The Supreme Court is now the ultimate court of appeal in all legal matters other than criminal cases in Scotland. It consists of 12 judges and sits in the Middlesex Guildhall in Parliament Square.

The UK does not have its own Bill of Rights. However, since 1951 it has been a signatory to the European Convention on Human Rights (part of the Council of Europe) and since 1966 it has allowed its citizens the right of individual petition enabling them to take the government to the European Court of Human Rights in Strasbourg. The Blair Government incorporated the provisions of the European Convention in UK domestic law in 2000 so that citizens can now seek to have the provisions enforced in domestic courts.

CIVIL SOCIETY

One cannot explain a liberal democracy such as the United Kingdom simply by talking about the formal political and governmental institutions any more than one can understood fish without talking about water.

Democratic government cannot operate with a strong civil society to support it and hold political and governmental bodies to account. The special history of the UK – involving gradual changes over long periods – has created a subtle but effective civil society that outsiders often find a little difficult to understand. So it is useful to list some of the more important elements of such a civil society:

Bill of Rights – Although Britain does not have a written constitution, it does have a Bill of Rights because it is a signatory to the European Convention on Human Rights which was drawn up by a body called the Council of Europe. The European Convention is part of our domestic law so that it can be enforced in our domestic courts as well as in the European Court of Human Rights.

Independent judiciary – Our judges are appointed through an independent process and operate totally independently of government. They can find that a Government Minister has acted against a law of the UK Parliament or a Directive of the European Union or against the European Convention and require the Minister to change his actions.

A free media – As long as they are not being libelous, newspapers, radio and television can say what they want about the Parliament, the Government and politicians. An important new development is the Internet. Web sites and blogs can say what they want about politicians and political issues. I have a web site and a blog and I often write about political issues. There is no need in the UK to register a newspaper or web site or to obtain permission to run it.

Freedom of information legislation – We have a Freedom of Information Act which is a piece of legislation that obliges national government, local government and most public bodies to provide any information requested by an citizen. The only exceptions are things like information which concern national security, commercial confidentiality or the private matters of citizens.

Trade unions - About a quarter of workers in Britain are members of trade unions representing different occupational groups or industries. These trade unions are totally independent of government and employers. I was a national trade union official for 24 years and believe strongly in independent trade unions.

Pressure groups – We have lots and lots of organisations that campaign publicly on political issues such as poverty, pensions, and the environment. They perform an invaluable role in putting forward ideas and holding politicians to account.

Charities and voluntary groups – Similarly we have lots and lots of organisations that do some of the things that governments does as well such as running schools and hospitals, looking after the poor and old, and cleaning up the environment.

CONSTITUTIONAL AND POLITICAL REFORM

Compared to many other democracies, institutional and procedural reform in the British political system has been very slow, gradual and piecemeal. However, there has been a growing movement for more fundamental reform. The appetite for constitutional change became much stronger in the aftermath of the May 2009 scandal over the expenses of Members of Parliament. Then the formation in May 2010 of a Conservative/Liberal Democrat coalition Government opened up new possibilties for change with a number of specific measures set out in the agreement between the parties establishing the new government.

The proposed changes on the agenda of the current Coalition Government are as follows:

• More power to backbench Members of Parliament - In the British political system, the party in Government has considerably more power in the legislature than the Opposition parties and in all the political parties the whips have considerable power over backbenchers. Ordinary MPs could be given more influence by measures such as more independent and stronger all-party Select Committees, more unwhipped votes (especially during the Committee Stage of Bills), more support for Private Members' Bills (those initiated by backbenchers rather than Ministers), more power to scrutinise Government spending, and a new power to subject ministers to confirmation hearings. The parties will bring forward the proposals of the Wright Committee for reform to the House of Commons in full - starting with the proposed committee for management of programmed business and including government business within its scope by the third year of the Parliament.
• The power to force a by-election - Currently a by-election occurs only when an MP dies or resigns or is sentenced to more than one year in prison. The Government has published a Bill proposing that a by-election could be forced if 10% of eligible constituents - around 6,800 in a typical constituency - voted for a recall. The ousted Member of Parliament would be free to stand for re-election. However, the proposal has been criticised on the grounds that the recall peitition would only be triggered by a vote of no confidence in the House of Commons or a prison sentence.
• Fixed term parliaments - In the past, elections to the House of Commons had to be held within five years of the previous General Election but the Prime Minister had complete discretion over the actual date which was often the subject of considerable speculation and frequently a year or more before an election was legally necessary. The coalition parties agreed to the establishment of five year fixed-term parliaments and the necessary legislation has now been enacted. Therefore, subject to at an earlier time either a vote of no confidence in the Government or a two-thirds majority vote, each General Election will now be held on the first Thursday of May five years after the previous election.
• A new electoral system for the House of Commons - Britain is unusual in Europe in having an electoral system which is 'first-past-the-post' (FPTP) and there are advocates for a system of proportional representation (PR), versions of which are already used for elections to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly and for British elections to the European Parliament. As a vital component of the coalition agreement, legislation was carried to enable a referendum to be held on an electoral system called the alternative vote (AV) which enables the voter to number candidates in order of preference and requires a winning candidate to secure more than 50% of the votes which, if not achieved on the first count, is achieved through successive withdrawal of the lowest-polling candidate and redistribution of that candidate's preferences. The referendum - only the second UK-wide referendum in our history - was held on 5 May 2011, but the current electoral system was supported by a margin of more than two to one (I voted for a move to AV).
• Fewer and more equal sized constituencies - Currently the House of Commons has 650 seats; the Coalition Government intends to cut this to 600. Currently the number of electors in each Parliamentary constituency varies quite considerably; the Coalition Government has legislated that no constituency should be more than 5% either larger or smaller than a national average of around 76,000 electors (which could eliminate some 40 Labour-held seats). The Government included these measures in the Referendum Bill on electoral reform and it is intended that the new constituencies will come into effect at the next General Election.
• Election of the House of Lords - At present, no member of the upper house is actually elected; most are appointed on the nomination of party leaders with a small number remaining from the originally much larger group of hereditary peers. The Government has outlined two initiatives: first, a draft House of Lords Reform Bill that would reduce the membership from over 800 to 300 of whom 80% would be elected by the single transferable vote form of proportional representation and, second, a White Paper containing proposals for a 100% elected upper house. Both proposals are to be scutinised by a cross-party committee of MPs and peers, but this examination will take at least a year and neither the Commons nor the Lords is keen on either of the proposals for very different reasons (MPs do not want the Lords to gain more legitimacy and nominated peers do not want to be replaced by elected representatives).
• More devolution nationally and locally - The Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly all have devolved powers and all of them want more, while many local authorities feel that, over past decades, their powers have been eroded by the national parliament. Some believe that a revitalisation of the British political system requires more devolution of power. The parties have agreed to the implementation of the Calman Commission proposals on further Scottish devolution and the offer of a referendum on further Welsh devolution. Also the parties intend to promote the radical devolution of power and greater financial autonomy to local government and community groups. This will include a full review of local government finance.
• Use of e-petitions - Citizens are to be encouraged to use the Government web site Direct.gov to create electronic petitions to promote specific political reforms. It is likely that the most popular petition will be drafted as a Bill and presented to Parliament, while those petitions that reach a certain level of support - probably 100,000 signatures - will be guaranteed a debate in the House of Commons.
• Funding and lobbying - All political parties find it difficult to raise the funding necessary to promote their messages and run their election campaigns and, in practice, the Labour Party receives much of its funding from a small number of trade unions and the Conservative Party is backed mainly by large companies. It has been argued that democracy would be better served and parties could be more independent if there was public funding of political parties with the actual level of funding depending of some combination of candidates and votes. The parties have agreed to pursue a detailed agreement on limiting donations and reforming party funding in order to remove 'big money' from politics. Also the parties intend to tackle lobbying through introducing a statutory register of lobbyists.

Candidates for further change would include the following proposals:

• A wider franchise - At present, every citizen over 18 can vote but it has been suggested that the voting age should be lowered to 16.
• A wider process for selecting Parliamentary candidates - Today candidates are selected by meetings of members of the political party that the candidate will represent in a future election, but it has been proposed that the process could be opened up to anyone in the relevant constituency who has declared themselves a supporter of that party, a process something like the primaries in the United States.
• A more modern culture for the Commons - Many of the traditions and much of the language of the Commons date back centuries and reformers argue that it is time for change to make the proceedings more accessible and acceptable to the public and electorate. The sort of changes mooted are no ceremonial dress for Commons staff, reform of terms such as "My right honourable friend" and a less gladiatorial version of Prime Minister's Questions.
• Limits on the Royal Prerogative - At the moment, the Prime Minister alone can exercise powers which once used to belong to the monarch, such as the right to apppoint certain judges and bishops, the signing of international treaties, and the declaring of war, but this could be changed so that Parliament has to decide such matters.
• A domestic Bill of Rights -The UK has a Bill of Rights but it is the European Convention on Human Rights which, since 2000, has been part of the domestic law and therefore enforcable in national courts as well as the European Court. Some people believe that Britain should draft its own specific Bill of Rights.
• A written constitution - For historical reasons, the UK is one of only three countries in the world not to have a written constitution (the others are New Zealand and Israel). The most radical proposal for constitutional change - supported especially by the Liberal Democrat Party - is that the country should now have a formal written constitution, presumably following some sort of constitutional convention and possibly a referendum.