Issues and Debates Around Recent Constitutional Changes (AQA A-Level Politics): Revision Notes
Issues and Debates Around Recent Constitutional Changes
Introduction: Blair's constitutional revolution
In 1994, Tony Blair made a bold promise at the Labour Party conference: he would deliver "the biggest programme of change to democracy ever proposed". After winning the 1997 general election by a landslide, Blair's government introduced 12 constitutional bills in the first parliamentary session alone—a remarkable achievement that transformed key aspects of British politics.
Blair's constitutional reforms represented the most comprehensive package of constitutional changes in modern British history, fundamentally reshaping the relationship between citizens, government, and political institutions across the United Kingdom.
Blair's reforms focused on four main themes:
- Modernising outdated political institutions like the House of Lords and the judiciary
- Enhancing democracy through elected mayors, more referendums, and electoral reform
- Devolving power away from Westminster to Scotland, Wales, and Northern Ireland
- Protecting human rights, particularly for minority groups
Under the Conservative-Liberal Democrat coalition (2010-15), Prime Minister David Cameron pursued a more modest reform programme, including a referendum on electoral reform, limiting prime ministerial powers to dissolve parliament, and increasing devolved powers. Since 2015, constitutional reform has largely been overshadowed by Brexit.
The modernisation of political institutions
House of Lords reforms
The House of Lords Act 1999 removed most hereditary peers from the Lords, leaving only 92 in place. This allowed for more nominated life peers, including "people's peers" designed to make the chamber more representative. However, it did not introduce any elected members, leaving reform incomplete.
The House of Lords Reform Bill 2012 proposed a dramatic transformation: 80% elected members and just 20% nominated, with all hereditary peers removed. This ambitious reform was abandoned after 91 Conservative backbenchers voted against it, demonstrating the difficulty of achieving consensus on Lords reform.
The failure of the 2012 Reform Bill highlights a persistent challenge in UK constitutional reform: while there is broad agreement that the House of Lords needs reform, achieving consensus on how to reform it has proven extremely difficult. The UK remains virtually unique among democracies in having an entirely unelected second chamber.
The House of Lords Reform Act 2014 introduced practical improvements by allowing peers to resign or retire voluntarily. It also enabled the removal of peers convicted of serious crimes or guilty of persistent non-attendance. By early 2020, six peers had been removed for non-attendance and 106 had retired, including notable figures like Lord Lloyd Webber and former Liberal Democrat leader Lord Steel.
Creating the Supreme Court
The Constitutional Reform Act 2005 established a separate Supreme Court, which became the UK's highest court. Previously, the Law Lords had sat in the House of Lords, blurring the lines between legislature and judiciary. The new Supreme Court enhanced judicial independence and created clearer separation of powers between the executive and judiciary. It also gave the court a stronger corporate identity and higher public profile.
The creation of a separate Supreme Court was inspired by similar arrangements in other democracies and aimed to address concerns about the perceived lack of independence when senior judges sat as part of the legislature. This reform strengthened the UK's adherence to the principle of separation of powers—though critics argue the UK still lacks complete separation compared to systems like the United States.
Modernising the monarchy
The Succession to the Crown Act 2013 introduced gender equality to royal succession, allowing the eldest child to inherit the throne regardless of gender. However, this only applies to royal children born after October 2011. The Act also removed the ban on heirs who marry Roman Catholics maintaining their right to succession, though the monarch themselves still cannot be Catholic.
Greater democracy in the political system
Referendums and devolution
The Referendums (Scotland and Wales) Act 1997 allowed voters in Scotland and Wales to decide whether to establish devolved assemblies. Both countries voted "yes", although Wales supported devolution by the slimmest margin: 50.3% to 49.7%. This paved the way for significant constitutional change through devolution.
Elected mayors and local democracy
The Greater London Authority Act 1999 created a directly elected Mayor of London, a post that has attracted high-profile politicians like Ken Livingstone, Boris Johnson, and Sadiq Khan. The Local Government Act 2000 extended this model by allowing other cities to hold referendums on whether to introduce elected mayors.
The Police Reform and Social Responsibility Act 2011 introduced directly elected Police and Crime Commissioners (PCCs), with the first elections held in 2012. This aimed to increase democratic accountability in policing.
The introduction of elected mayors and PCCs represented a shift towards more direct forms of democracy at the local level, moving away from the traditional British model where local authorities were run by councils of elected representatives rather than single elected executives.
Electoral reform
The European Parliamentary Elections Act 1999 changed the electoral system for European Parliament elections in England, Wales, and Scotland from first-past-the-post to proportional representation using the regional closed list system. This allowed smaller parties like the Greens and UKIP to gain representation.
In May 2011, a national referendum was held on replacing first-past-the-post with the alternative vote system for Westminster elections. Voters decisively rejected the change, with 68% voting against and only 32% in favour, demonstrating limited appetite for electoral reform at the national level.
The 2011 referendum result was a significant setback for electoral reform advocates. It showed that despite criticism of first-past-the-post, British voters were not convinced that the alternative vote system offered sufficient improvement. This remains the only UK-wide referendum on changing the Westminster electoral system.
Fixed-term parliaments
The Fixed-term Parliaments Act (FTPA) 2011 removed the prime minister's power to unilaterally call early elections through the royal prerogative. Instead, the Act required either:
- A two-thirds majority of MPs (434 or more) to vote for an early election, or
- The government to lose a vote of no confidence, confirmed by another vote two weeks later
This reform aimed to create stability, particularly for the Conservative-Liberal Democrat coalition government, and prevent prime ministers from calling elections at politically advantageous moments.
Establishment of devolved legislative bodies
The Scotland Act 1998, Wales Act 1998, and Northern Ireland Act 1998 created elected devolved assemblies or parliaments in these nations. These bodies were granted significant powers over areas like education, health, and transport. Further Acts in 2006, 2016, and 2017 transferred additional powers to Scotland and Wales, deepening the devolution settlement.
However, devolution has not spread to England. In November 2004, a referendum on creating a regional assembly in north-east England was decisively rejected, with 78% voting against and only 22% in favour. This suggests limited English support for regional devolution.
The asymmetric nature of UK devolution—with Scotland, Wales, and Northern Ireland having devolved governments but England governed directly from Westminster—has created what some call the "West Lothian Question": Should Scottish, Welsh, and Northern Irish MPs be able to vote on English-only matters at Westminster when English MPs cannot vote on devolved matters in those nations?
Human rights legislation
Incorporating the ECHR
The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into UK law. This allows UK courts to consider the ECHR when judging human rights cases, sharply reducing the number of cases referred to the European Court of Human Rights in Strasbourg. It strengthened legal protection for fundamental rights like privacy, freedom from torture, and fair trials.
Freedom of information
The Freedom of Information Act 2000 gave citizens greater access to information held by public bodies, including local and national government, police forces, the BBC, and universities. Public institutions must publish certain information and respond to information requests within 20 days, though they can withhold information on grounds like national security or commercial confidentiality.
Equality and protection
The Equality Act 2010 consolidated around 116 individual pieces of legislation into a single Act to combat discrimination and promote fairness. It protects against discrimination based on characteristics including race, gender, disability, and sexual orientation.
The Protection of Freedoms Act 2012 enhanced citizen protection from state overreach by strengthening scrutiny of security services like MI5 and MI6.
The Data Protection Act 2018 implemented the EU's General Data Protection Regulation (GDPR), placing strict controls on how government and private organisations handle personal data. This aimed to enhance privacy rights and give citizens greater control over their personal information.
These three pieces of legislation—the Equality Act 2010, Protection of Freedoms Act 2012, and Data Protection Act 2018—represent a comprehensive framework for protecting citizens' rights in modern Britain, addressing discrimination, privacy, and state power. Together, they form a significant expansion of rights protection beyond the Human Rights Act 1998.
Case study: Freedom of Information Act 2000
The Freedom of Information Act represented a watershed moment in government transparency. The 1997 White Paper "Your Right to Know" declared: "Openness is fundamental to the political health of a modern state... At last there is a government ready to trust the people with a legal right to information."
The Act imposes two key obligations on public bodies:
- They must publish certain information freely (such as meeting minutes and policy documents)
- Citizens can request additional information through the Information Commissioner's Office (ICO), which must normally be provided within 20 days
Notable FOI requests include the BBC asking local councils to reveal rough sleeping numbers in 2019, and the infamous MPs' expenses scandal of 2009, which led to five Labour MPs and two Conservative peers being jailed.
Example: The MPs' Expenses Scandal
The 2009 MPs' expenses scandal demonstrates the power of the Freedom of Information Act in exposing misconduct. Journalists used FOI requests to obtain details of MPs' expense claims, revealing widespread abuse of the system including:
- Claims for luxury items like duck houses and moat cleaning
- "Flipping" of second home designations to maximize allowances
- Overclaimed mortgage interest payments
The revelations led to criminal prosecutions, numerous MPs standing down, and a complete overhaul of the parliamentary expenses system—showing how FOI can hold powerful institutions accountable.
How effective has the Act been?
Between July and September 2020, 11,042 FOI requests were received. While 86% were responded to in time, only 40% were answered in full, with 35% denied completely and the remainder answered partially. Legitimate grounds for refusal include national security, commercial confidentiality, or disproportionate expense.
The Act has proven invaluable for investigative journalists, pressure groups, and ordinary citizens seeking information that public bodies might prefer to keep hidden. However, its effectiveness has sparked debate.
Interestingly, Tony Blair later regretted passing the Act. In his 2010 memoirs, he wrote:
I look at those words (freedom of information) as I write them and feel like shaking my head till it drops off my shoulders. You idiot. You naive, foolish, irresponsible, nincompoop.
This contrasts sharply with his 1996 statement: "Information is power and any government's attitude about sharing information with the people actually says a great deal about how it views power itself." Perhaps Blair became frustrated with how journalists used FOI requests to uncover government secrets, or how it restricted candid discussions within government departments.
Blair's dramatic change of heart on FOI reveals the tension between transparency and effective governance. While in opposition, reformers often champion openness, but once in government, they may come to see transparency requirements as obstacles to frank discussion and decision-making. This illustrates the complex trade-offs involved in constitutional reform.
Case study: Fixed-term Parliaments Act 2011
The FTPA was created at the beginning of the Conservative-Liberal Democrat coalition to provide stability and prevent the prime minister from calling opportunistic early elections. It removed the traditional power of prime ministers like Margaret Thatcher (who called an early election in 1983) and Tony Blair (2001) to "go to the country" when polls looked favourable.
Why was it passed?
Several explanations exist:
- Creating stability and permanence for the first coalition government since 1945
- Fulfilling a long-standing Liberal Democrat policy commitment
- Protecting the Liberal Democrats from being abandoned by the Conservatives when politically convenient
How well did it work?
Initially, the Act achieved its aim of guaranteeing a full five-year term for the coalition government (2010-15), ensuring political stability.
However, serious questions emerged about its effectiveness:
Example: The 2017 Early Election
Prime Minister Theresa May easily overrode the Act just two years into her government. The Commons voted 522-13 for an early election, with Labour leader Jeremy Corbyn supporting the move (as few opposition leaders want to appear as "political cowards"). Only a handful of MPs opposed it.
This demonstrated a fundamental flaw in the FTPA: while it required a two-thirds majority, in practice this was easy to achieve if the main opposition party supported an early election.
Example: The 2019 Early Election
Boris Johnson attempted three times to call an early election to resolve the Brexit impasse but failed to achieve the two-thirds majority. The Act was eventually circumvented by passing a new piece of legislation—the Early Parliamentary General Election Act—which required only a simple majority. This passed 438-20 with 181 abstentions. Remarkably, the Act was fast-tracked through parliament and became law within just two days.
This episode demonstrated that the FTPA could be bypassed simply by passing new legislation with a simple majority—undermining its entire purpose.
By 2020, the FTPA's future looked bleak. Both Labour and Conservative 2019 manifestos promised its repeal. Labour argued it "stifled democracy and propped up weak governments," while the Conservatives claimed it "led to paralysis at a time the country needed decisive action." A draft bill for abolition was introduced in December 2020.
The FTPA demonstrates both parliamentary sovereignty (parliament's supreme law-making power) and the relative ease with which constitutional changes can be implemented but also reversed in the UK system. Unlike countries with codified constitutions, the UK has no special procedures for constitutional legislation—it can be passed and repealed like any other law.
Evaluating post-1997 constitutional changes
Modernisation of political institutions
Successes:
- The House of Lords has been substantially transformed since 1997—it is smaller, more diverse, less Conservative-dominated, and easier to reform for misconduct or non-attendance
- The Supreme Court has created clearer separation of powers between executive and judiciary, giving it stronger corporate identity and public profile while remaining politically neutral (unlike the US Supreme Court)
- Gender equality has reached even the royal family through succession reforms
Failures:
- Lords reform remains incomplete and unfinished—the 2012 reform attempt failed completely. The UK remains virtually unique among democracies in having an entirely unelected second chamber
- Some argue the independent Supreme Court gives too much power to unelected, unaccountable justices, thereby undermining parliament
- Royal succession changes are minor tweaks—the monarch still cannot be Roman Catholic
Democratisation
Successes:
- Greater autonomy in large cities, with high-profile London mayors like Ken Livingstone, Sadiq Khan, and Boris Johnson. Other cities have followed, including Andy Burnham as Mayor of Greater Manchester (elected 2017)
- Reformed European Parliament elections enabled greater variety of parties to gain representation, including UKIP/Brexit Party, BNP, Greens, and Liberal Democrats through proportional representation
- Directly elected PCCs enhanced opportunities for political participation and local democracy
Failures:
- Outside London, elected mayors have had mixed success. Where referendums were held, most cities rejected the proposal. Torbay even voted in 2016 to abolish its elected mayor (approved in 2005). Turnout in mayoral and PCC elections has been abysmal—just 15% voted to retain Middlesbrough's mayor in 2013, and only 11.6% turned out for Staffordshire's PCC election in 2012 (though this almost doubled by 2016)
- The 2011 alternative vote referendum showed limited enthusiasm for electoral reform, with 68% voting against
- The FTPA was easily overcome in both 2017 and 2019 to bring about early elections
Human rights
Successes:
- Landmark human rights legislation has increased awareness and visibility of rights, especially for minority groups
- Privacy and information access laws have enhanced everyone's rights and made public bodies and powerful institutions (like employers) more accountable for information handling
- The Supreme Court's role in interpreting human rights legislation has increased citizen protection
Failures:
- The expansion of rights has arguably led to the rise of identity politics and clashes between individual and collective rights
- Growing judicial involvement in human rights cases has caused controversy, such as when the Supreme Court ruled aspects of anti-terror legislation (like freezing suspected terrorists' assets in 2010) incompatible with the Human Rights Act
- Many FOI requests are declined for various reasons, limiting the Act's effectiveness
Identity politics refers to the phenomenon of people from particular religions, races, sexualities, and other groups campaigning on specific issues, moving away from traditional broad-based party politics.
Devolution
Successes:
- Devolution has worked well, especially in Scotland and Wales, with increasing powers devolved over time
- Popular support has grown—Wales originally backed devolution by just 50.3% to 49.7% in 1997, but by 2011, 63.5% of voters supported expanding law-making powers
- Some argue devolved Scottish Parliament prevented Scotland backing full separation in the 2014 independence referendum
- In Northern Ireland, devolution has helped end "the Troubles" (the violent conflict)
Failures:
- Devolution has struggled in Northern Ireland—policy disagreements and a renewable energy scandal led to the Assembly being suspended from January 2017 to January 2020
- English support for devolution remains low—the 2004 North East assembly proposal was emphatically rejected 78% to 22%
Could the British Constitution be reformed still further?
Several areas are considered vital or desirable for further change:
- Lowering the voting age to 16 across the UK (already implemented in Scotland and Wales)
- Making voting compulsory (as in Australia)
- Introducing an elected component to the House of Lords
- Reforming Westminster's electoral system to be more proportional
- Making greater use of e-democracy, including online voting
- Extending devolution to England
- Widening public participation in candidate selection through US-style primary systems
- Requiring photo ID for voting to prevent fraud
However, each proposal carries potential pitfalls that require careful consideration. For example, compulsory voting might increase turnout but could lead to uninformed voting; online voting could improve accessibility but raises serious security concerns; and photo ID requirements might prevent fraud but could disenfranchise vulnerable groups who lack documentation.
Current debates about rights and recent legislation
How well are rights protected?
The effectiveness of recent UK legislation remains hotly debated. Supporters argue that citizen rights are well-protected through recent statute law and UK links with Europe, particularly as a signatory to the ECHR. An independent, non-politicised judiciary also defends citizens' rights. Critics note that the lack of entrenched rights makes them vulnerable to parliamentary changes.
Key questions include:
- Whose rights and which rights matter most?
- How far are certain rights permanently protected, and how far can a democratically elected parliament alter them?
- Are rights better protected in other countries like the USA?
- Could rights be better protected in the UK?
Parliamentary sovereignty vs constitutional sovereignty
Most discrimination-related rights (pay equality, equal service access, employment rights) are found in the Equality Act 2010. Most human rights issues (privacy, freedom from torture) are protected by the Human Rights Act 1998. Because both are statute law, they could theoretically be weakened or altered by parliament.
Parliamentary sovereignty (unlike US constitutional sovereignty) makes it easy to add new rights but also to amend existing ones. This places more trust in UK elected politicians than in the Constitution or courts to protect rights. However, UK membership of the ECHR provides a constitutional "double lock" for certain rights.
Constitutional sovereignty means a codified constitution has ultimate authority—no parliament or government can pass laws or undertake actions ruled unconstitutional by courts. This contrasts with the UK's parliamentary sovereignty, where Parliament can theoretically pass any law it wishes, including laws that remove or restrict rights.
This fundamental difference explains why rights protection works differently in the UK compared to countries like the United States, where constitutional rights cannot be easily changed by ordinary legislation.
Remember!
Key Points to Remember:
- Tony Blair's 1997 reforms were the most comprehensive constitutional changes in modern British history, covering modernisation, democracy, devolution, and human rights
- House of Lords reform remains incomplete—the UK still has an entirely unelected second chamber, unique among democracies
- The Supreme Court (2005) enhanced judicial independence and separation of powers
- Devolution has been most successful in Scotland and Wales, less so in Northern Ireland, and has limited English support
- The Human Rights Act 1998 incorporated the ECHR into UK law, strengthening rights protection
- The Freedom of Information Act 2000 enhanced transparency but has been controversial—even Tony Blair later regretted it
- The Fixed-term Parliaments Act 2011 was easily circumvented in 2017 and 2019, demonstrating parliamentary sovereignty
- Constitutional reforms since 1997 have had mixed success—achievements in some areas but significant limitations and incomplete reforms in others
- Parliamentary sovereignty means rights are not entrenched and can be changed by parliament, unlike in countries with constitutional sovereignty