Week 4_ The History of British Institutions and the Constitution Problem Introduction: Start from what they know

of British Institutions. What are they? How do they work? What did they learn from the brochure (see appendix 2 and 5)? Contemporary institutions: Define legislative, executive and judicial powers. The legislative: power to make and repeal laws, the executive, power to enact them and the judiciary, power to apply the rule of law and condemn breaches of the law. In the UK, legislative power = House of Commons (lower chamber) + House of Lords (upper chamber). House of Commons composed of 646 elected MPs. Lords are not elected. They belong to three categories: bishops, life peers and hereditary peers. Parliament is thus bi-cameral Parliament House of Commons 646 MPs Opposition Parties Shadow Ministers Backbenchers Prime Minister Ministers Governing Party House of Lords c.750 Members Governing Party Government Ministers Opposition Parties Backbenchers Law Lords Bishops

Backbenchers

Backbenchers

The executive power is in the hands of the Prime Minister and his team, forming what is called the Cabinet. Contrary to what happens in France, the Prime Minister, whose power roughly corresponds to that vested in our President, is not directly elected. The Prime Minister is chosen as the head of the ruling party in Parliament. Is there a real separation of power between the legislative and the executive or should we rather talk about a confusion of powers? The last general elections were won by the Conservatives and David Cameron, as the head of the Conservative Party, was thus elected PM. Role of the House of Commons to pass law >> explain difference between common law and Roman law

to vote for taxation, and thus to provide the means of carrying out the governments actions to scrutinize goverment to debate the major issues of the day to examine European proposals to protect the individual

For each session, the ruling and the opposition parties seat in front of each other. The opposition is organized in a shadow cabinet behind which seat the opposition backbenchers (other MPs from the opposition). Thus when, for instance, the Health Minister has a speech to make in Parliament, he/she stands up from his/her chair and adress directly the shadow ministers and the opposition backbenchers seated in front of her. The House of Lords or upper chambers. Although it used to play a fundamental role in British politics, its power has been greatly reduced over the last century. Role of the Lords: to initiate, revise and amend legislation (all laws must be agreed by both Houses; the House of Lords can issue bills or review bills sponsored by the Government; however, its powers are limited: if it does not approave of a piece of legislation, it can only delay its passage into law for up to a year; it cannot amend budgetary bills proposed by the Commons) to scrutinize governments to provide independent expertise to carry out judicial work (the House of Lords is the highest court of appeal) Role of the King or Queen: The power of the monarch has been drastically reduced over time. Nowadays, her function is symbolical. The monarch is the head of Parliament but does not interfere with it. Each bill needs to receive Royal Assent before being passed but the monarch cannot be withdraw. The monarch comes to Westminster for the ceremonial opening of each new Parliamentary year and reads the speech, prepared by the Cabinet, which sets out her Governments plans for the forthcoming year. History of the construction of the British institutional system: Monarchical system. Never experienced a revolution and a complete overthrow of the institutions, except for a very short period, called the Interregnum period, between the execution of Charles I in 1649, and the Restoration of Charles II in 1660. Britain only became a Republic between 1649 and 1660. Evolution of the repartition of powers over the centuries: the power of the King was gradually reduced proportionately to the increase of the powers of Parliament, and particularly the House of Commons. No absolute monarchy in Britain. But early notion of King- or Queen-in-Parliament referring to refers to the Crown in its legislative role, acting with the advice and consent of the House of Commons and House of Lords. No clear separation of legislative and executive branches of power as in a presidential system but clear indication that the King never ruled by himself but with the consent of the Mps. Bills passed by the houses were sent to the sovereign for royal assent (today, royal assent is only nominal) and become Acts of Parliament. And, conversely

for certain decisions, such as the raising of new taxes, the King needed the assent of Parliament. Today: powers of the monarch only symbolic; HL reformed in order (1) to reduce its powers and (2) to justify its persistence in a democratic system based on the notion of representation Parliament Act 1911 - removed the ability of the House of Lords to veto money bills, with any other bills, the House of Commons was given powers to overrule the Lords' veto after 3 sessions. Parliament Act 1949 - amended the 1911 act reducing the time the Lords could delay a bill from 3 sessions to 2. Life Peerages Act 1958 - This enabled the appointment of a new class of peers, who could sit and vote in the House of Lords, but the honour and rights would not be hereditary. These were merit-based. Peerage Act 1963 - Allowed hereditary peers to disclaim their peerage, allowing them to vote and stand for elections to the House of Commons. House of Lords Act 1999 removed the majority of hereditary peers (only 92 left). A second stage of reform was to follow. 2000 the Wakeham Reform: main function: to offer counsel and to offer an effective counter-balance to gvts policy and to the HC (have the capacity to force the HoC to reconsider a bill), to have appointed members, including people who are not politicians but experts in different issues of contemporary society (should be broadly representative of society in the United Kingdom at the beginning of the 21st century). Following the 2010 general election: The Conservative Liberal Democrat Coalition agreed on a wholly or mainly elected second chamber, elected by a proportional representation system. These proposals sparked a debate. Led to an interim measure with the appointment of new peers that would reflect shares of the vote in the last general election. 2011 - proposals for Lords reform, including a 300-member hybrid house, of which 80% are elected. A further 20% would be appointed, and reserve space would be included for some Church of England bishops. Members would serve single non-renewable terms of 15 years. Former MPs would be allowed to stand for election to the Upper House, but members of the Upper House would not be immediately allowed to become MPs. Britains unwritten constitution? What is the function of a Constitution? > to secure the separation of powers between the legislative, the executive and the judiciary branches. >> to state the powers and prerogatives conferred onto each state insitution and thus prevent abuses of power French Constitution adopted in 1791

American Constitution adopted in 1787. Various amendments added (first ten amendments contained in the Bill of Rights) No British Constitution. No document in which the prerogatives of king and parliament are stated. But rather a series of document which framed the separation of power in the UK ** Lord Scarman once said that the British Constitution was not so much unwritten, but just difficult to find ** A Constitution may be formally set in a document framed and adopted on a particular occasion, as in the case of the US Constitution, drafted during the War of Independence, or in France with the Declaration of Rights proclaimed at the Revolution; or it may be established gradually by precedent, as in Britain. The British have no single text enshrining the rights of citizens, but a compilation of texts. Thus, it is more accurate to talk of a disseminated rather than unwritten Constitution. The texts usually referred to as cornerstones for the establishment of the British political system are the MAGNA CARTA (1215), the principle of HABEAS CORPUS (1679), and the BILL OF RIGHTS (1689). MAGNA CARTA is not a constitutional document, but a peace treaty, signed at Runnymede in 1215 between the King of England, King John, and his barons. tense relationship because of kings fiscal policies raising taxes in order to wage wars ; defeat of the battle of Bouvines in France in 1214, baronial rebellion > King forced to sign Magna Carta drawn by the barons for the purpose of protecting free men from the unjust and arbitrary justice and rule of the King. Acquired a totemic function in its capacity to encapsulate the definition of English law and liberties. Clause 39 of the 1215 Magna Carta [NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of England. We will sell to no man, we will not deny or defer to any man either Justice or Right] still in force today. It was on every bodys lips in Britain when in 2008 Parliament extended the right to hold someone in custody without trial from 28 to 42 days in the case of suspected terrorist attacks. HABEAS CORPUS, is not the name of a document, but the name of a legal action, through which a person can seek relief from unlawful detention. Its purpose is thus to protect the individual from harming or being harmed by the judicial system. It is an important instrument for the safeguarding of individual freedom against arbitrary state action. In principle, it seems to be a replication of clause 39 of Magna Carta. However, it was fully codified in 1679 by the Habeas Corpus Act. The privilege of habeas corpus has been suspended or restricted several times during English history. Although internment without trial has been authorised by statute since that time, for example during the two World Wars and the Troubles in Northern Ireland, the procedure of habeas corpus has in modern times always technically remained available to such internees. BILL OF RIGHTS is a series of measures which protect individuals (in fact the representative of the people, namely Parliament) from the excessive power of the King. In their capacities as elected representatives of the people, the Commons claimed rights, which they believed had

been undermined by the previous King, James II, and which they wanted to strengthen and secure before the new King and Queen, William and Mary would take over. The texts: Charter 88, p.13-15 Democracys Second Age, p.15-17 Charter 88: Questions Q1: explain the notion of Britains unwritten constitution Q2: give and explain the historical references behind the name of Charter 88 Q3: Charter 88 was written in 1988. What do you know about the political background at the time that could account for the authors vituperations against the increased powers of the executive (2) and against the policies of the gvt then in place (see list 3)? Q4: What were the arguments that the author held against the unwritten status of the constitution? Q5: Comment on the tone, choice of words, of the author and the effects this tone is expected to produce in the readers? Q6: Start with what you know of the British institutional system and explain the reasoning lying behind each point of the Charter 88 Next Week: Finish studying Charter 88 New lesson on the Voting System Prepare tx in the brochure on p.18