Major changes to the British constitution in recent decades

The British constitution prior to its modifications in recent years established a simple system based on conventions for constitutional protocol and rights. The electoral system is based on the idea that the ruling government has a majority in Parliament – a “first past the post” plurality system.

Effectively, the old constitution is based on parliamentary sovereignty. The House of Commons dominates Parliament and there is an enormous concentration of power in the ruling government, but a vote of no confidence removes the ruling government from power, enabling easy transition of power and thus establishing arguably strong and accountable democratic institutions. As the House of Commons can oust a government, there is enormous pressure for MPs to support their party’s legislation, allowing a ruling government to pass legislation despite possibly representing a minority.

The character of the old British constitution allowed for less influence from the minority and thus the potential for “tyranny of the majority.” Yet traditions of democracy and tolerance, the necessity of popular support for rule, and the tendency of frequent alternation of power between parties in the House of Commons – easy transition of power – has allowed for a strong legacy of democracy in Parliament.

A period of significant constitutional changes, particularly under the government of Tony Blair, has ensued, and many of the changes have created confusion amidst the once simple characteristics of Britain’s old constitution.

A major modification to the constitution pertains to the devolution of Scotland, Wales, and Northern Ireland. No longer can one say that the United Kingdom is a unitary state ruled from Westminster, yet key policies are still established in Westminster and the devolved legislatures could be dissolved under Westminster’s authority.

Devolution has created somewhat of an uncertain situation and there has been an upsurge against some of its implications. For example, the West Lothian Question – which questions why MPs have different powers in different parts of the country – has been posed. The system of federalism is asymmetrical and representation is not proportionally correct; Wales, for example, is overrepresented.

The Barnett Formula, which is the basis for the block grant which finances public services under devolved administrations, has been deemed inefficient and inequitable. There are no budget constraints for policymakers in devolved administrations because public revenues for the most part are not handled by them. Three regions – Scotland, Northern Ireland, and London – receive significantly more public expenditure than it is believed that they should. Though it has been argued that this higher relative spending will quash nationalist threats, this has not been the consequence as the Scottish National Party remains the largest party in Scotland and nationalist parties in general remain forces to be reckoned with. Little has been done to replace this unsustainable system.

The Westminster “first past the post” system was not adopted in Scotland, Wales, or Northern Ireland. Forms of proportional representation were instituted instead to ensure that there was no clear majority on the basis of a minority vote. Among the different systems in Westminster, Scotland, Wales, Northern Ireland, the European Parliament, and London, voting systems in the UK have become quite confusing.

The implications of Europe and of the European Union have also prompted the modification of Britain’s constitution. The 1998 Human Rights Act placed Britain in compliance with the European Convention on Human Rights – which guarantees certain human rights – and made it unlawful for public authorities to act in any way that is incompatible with the Convention’s rights.

More significant to Britain’s political system is the implication of European Union membership for parliamentary sovereignty, a central characteristic of Britain’s old constitution: Effectively, EU law overrides British law. EU policy is now very influential on British policy. For example, about 75% of new environmental policy in Britain comes from Brussels. Though the European Union does not significantly influence matters such as taxes and healthcare, EU law has become an important aspect of Britain’s constitution.

Recent reforms to Britain’s constitution have also pertained to the judiciary. The Constitutional Reform Act 2005 created a supreme court, detaching the highest court of appeal from the House of Lords; it was established in October 2009. The Lord Chancellor is no longer the presiding officer of the House of Lords and a Judicial Appointments Commission was created to ensure transparency of judicial appointments.

Previously, if judges disagreed with a law, it had to be changed by Parliament. The European Convention on Human Rights becoming part of British law does not indicate a full scale judicial review. Rather, non-compliant laws are “fast tracked” to Parliament under the belief that it would be so embarrassing that Parliament would reform them. However, today there is an explosion of instances where judges are hearing cases of unfair treatment and discrimination – judicial review cases. The judiciary is planning a more active role in judicial review.

Referendums have also been a subject of debate regarding constitutional reform. Proposals for major constitutional changes are to not only be decided by an act of Parliament but by a referendum. Although an attempt to amend the Political Parties, Elections, and Referendums Bill in 2000 to require a referendum on significant constitutional matters failed, it has become apparent that major constitutional changes – for example, decisions regarding devolution or European Union membership – will face demands for a referendum. The implications of this norm, however, have been confusing. It is very difficult to say when or how referendums should be used. Questions of who is to write the question and what qualifies as a constitutional change remain unanswered.

The House of Lords has become subject of recent constitutional modifications as well. In 1999, Blair’s government removed the remaining ninety-two hereditary posts, the presence of which has always arguably represented the possibility of a Conservative majority. Currently all posts in the House of Lords are appointed. There is debate over whether House of Lords members should be appointed or elected (or a mixture of both), but any moves to make posts elected to date has failed.

It is clear that Britain has been going through significant constitutional changes in recent decades, particularly under the Blair government, which devolved powers to Scotland, Wales, and Northern Ireland, made significant changes to the voting system, oversaw the European Convention on Human Rights into British law, and reformed the judiciary and House of Lords. Many of these changes have resulted in confusion and uncertainty as to their future consequences. Furthermore, it has been argued that constitutional changes lacked coherence. Many believe that the constitutional reforms have made no significant difference, though it is clearly still too soon to evaluate the impact of some changes. The disproportionate nature of devolution, the questions of European identity and policy, the role of the judiciary, and the basis and protocol for a referendum are just a few of the uncertain issues of Britain’s constitutional reforms.

Politics | British politics

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