This article is written by Kalhan Safaya studying at Hidayatullah National Law University. This article discusses that there are a number of ways in which reform since 1997 hoped to achieve such improvements.
House of Lords
The government of 1997 wanted to reform the House of Lords quite radically but had to move in two stages.
- The first stage was the removal of the hereditary peers and their voting rights.
- Stage two was to be an elected or partly elected, chamber. However, this ran into more obstruction. The measure was, therefore, taken off the agenda.
Although the House of Lords Act 1999 did reduce the number of hereditary peers to 92, the House of Lords threatened to use its powers to obstruct and delay reform. It was in return for the Lords compliance that the government left a number of hereditary peers in place.
It should be emphasized that, although the 1999 Act was a limited reform, it did have the effect of making the Lords a largely appointed chamber. The much higher proportion of peers who held their position on merit rather than by birth meant that the Lords became a more professional and efficient body
House of Commons
Reform of the Commons was piecemeal and superficial. The main reform concerned the departmental select committees of the House of Commons. These committees of backbench MPs that scrutinise the work of government departments are becoming more important and have enjoyed some enhancement in status. In 2004, the chairs of the committees were awarded additional salaries to raise their status. In 2010, one of the last acts of the outgoing Labour government was to introduce a system for electing members of the select committees. Before the reform, they had been largely selected by party leaders. The election of members (by other MPs) has increased their independence of mind and action.
Human rights reform
In 1998, the UK Parliament passed the Human Rights Act. Its provisions came into force in 2000. What the Act did was to incorporate the European Convention on Human Rights (ECHR) into UK law. The convention was made binding on all public bodies, including the government. All UK courts have an obligation to enforce the convention whenever it becomes relevant in any case coming before them. In practice, therefore, the terms of the ECHR are now binding in all parts of the UK
The ECHR contains 18 articles that establish the following freedoms:
- To life
- From torture
- From servitude (slavery)
- To liberty and security
- To a fair trial
- From being accused of crimes retrospectively
- To privacy
- Of conscience and religion
- Of expression
- Of association
- To marry
- Of redress against the state when rights are abused
- From discrimination
- From unreasonable emergency powers
- To equal treatment for all citizens of the European Union
In addition, the convention required all signatory states to do the following:
- Abolish the death penalty
- Grant foreigners the same legal rights as citizens of the state
- Preserve family life
- Hold free and fair elections
- Not deny anybody an education
- Not threaten the right to own property
A number of factors led the Labour government that came to office in 1997 to incorporate the European Convention on Human Rights into British law:
- General desire to bring the UK Constitution in line with Europe.
- The increase in the powers of the police and the courts were seen as a major threat to our rights.
- The UK had been brought before the European Court of Human Rights more than 50 times since 1966 and had lost most of the cases.
- The government stressed the idea of active citizenship.
- It was part of the devolution settlements that the Welsh and Northern Ireland assemblies and the Scottish Parliament should be bound by the convention. This was designed to reassure the citizens of these nations that devolution would not threaten their rights.
So it was that the Human Rights Act (passed in 1998) made the European Convention on Human Rights part of UK law in 2000.
The Human Rights Act marked a change not just in human rights in the UK but also in constitutional development. For the first time, there was a genuinely codified element of the constitution and, furthermore, it was safeguarded by the fact that its terms were not set by Parliament.
Instead, the ECHR was set by an external body — the Council of Europe. Moreover, it was to be enforced and interpreted by a group of European judges — the European Court of Human Rights.
The UK did not actually lose sovereignty bypassing the Human Rights Act. Parliament can repeal it at any time and so the ECHR would no longer be enforced. Indeed, the Conservative government that came to power in 2015 was committed to replacing the Act with a new British Bill of Rights.
Electoral Reform takes three forms:
Votes at 16
The age at which citizens are entitled to vote in the UK was last changed in 1969 when it was reduced from 21 to 18. In the referendum on Scottish independence in 2014, for the first time in British history, 16- and 17-year-olds were entitled to vote. It was a great success and led to renewed calls to extend the lower age to all elections. An attempt to include the measure in the referendum on European Union membership in 2016 failed, and the issue was taken off the agenda.
A low turnout at all elections has been a concern for policymakers. Various proposed reforms have been suggested, the most persistent of which is the idea of making voting compulsory. However, like votes at 16, compulsory voting does not yet enjoy sufficient support to progress.
Measures have been taken to make postal voting easier and it is possible that online voting will be introduced in the future. This is problematic, given the possibilities of fraud on the internet, but it is the main idea that might have a positive effect.
Changing the voting (electoral) system
There were to be newly elected assemblies introduced in Wales and Northern Ireland and a parliament in Scotland. The question was: what electoral system should be used? It was decided at an early stage that the system used should reflect the party systems in those countries and should avoid domination by one or two parties, as was the case in England. It was therefore agreed that forms of proportional representation should be used. If FPTP had been adopted, Wales and Scotland would have been dominated by Labour and the Unionists would have controlled Northern Ireland. In the event, the additional member system (AMS) was adopted for Scotland and Wales, while the single transferable vote (STV) was used in Northern Ireland.
When a coalition government was formed in 2010, the junior coalition partner, the Liberal Democrats, insisted that electoral reform should be considered as a price of their cooperation. They wanted proportional representation introduced, but the Conservatives were opposed. A compromise was reached, which involved a referendum being held in 2011, not on proportional representation but on a less radical reform, the introduction of the alternative vote (AV). However, the referendum rejected the proposal decisively. Once again, the issue of electoral reform for general elections was set back a generation.
The unsuccessful attempt in 2011 to reform the electoral system for general elections is perhaps the greatest failure for reformers since 1997. However, proportional representation is now commonly used for sub-central elections in the UK and for elections to the European Parliament, so it is not true to say that no reform has taken place.
Freedom of information
The lack of any citizens right to obtain publicly held information was one of the features of the British Constitution that lagged behind the European and US experience in the 1990s. The Labour Party, supported by the Liberal Democrats, made a firm commitment to introduce such a measure. However, the legislation, when it appeared in 1997, proved to be a disappointment to civil rights campaigners. There are two strands to freedom of information:
- The first gives the right to citizens to see information that is held about them by public bodies. These include government, schools, medical bodies, and other institutions of the welfare state. This has been relatively uncontroversial. Indeed, the right to view records held on computer files had already been established under the Data Protection Act 1998. The main disappointment here was that this right would not come into existence until 2005.
- The second strand has caused more problems. This concerns the right to see documents and reports that are held by the government and its agencies. In other words, there was to be a public right to see inside the very workings of government. The ability to suppress information would be limited, while the media and Parliament would have much greater access to information. In theory, this represents a major move towards a more open government. If implemented in full, freedom of information would have virtually ended the British culture of secrecy in government.
The Freedom of Information Act 2000
This Act, as with electoral reform, the new Labor government of 1997 proved to be less enthusiastic about reform once it was in office than when it had been in opposition. The Freedom of Information Act 2000 was a watered-down version of similar measures in operation elsewhere in Europe. The security services were exempt, while the rest of the government was given a key concession. The normal situation is that governments have to justify any reason for suppressing information.
The UK version, however, gives the government the right to conceal information if it feels it might prejudice the activities of the government. In other words, the onus is on the outsider to prove that a document or other information should be released. Nevertheless, an Information Tribunal was also set up. The tribunal can rule on what information can and should be released. In the event, this tribunal has proved to be more sympathetic to freedom of information than was envisaged.
When the Freedom of Information Act was passed, human rights campaigners thought it was too weak. Experience tells us otherwise, however. One major development illustrates its power. In 2008 a request was made to the Information Tribunal to release details of expenses claims made by MPs. Parliament attempted to block the request through the High Court but failed. The information was released and immediately leaked to the Daily Telegraph. When the revelations were made in the newspaper, it became clear that there had been widespread abuse of the generous expenses system. As a result, a kind of witch-hunt was undertaken, in which hundreds of MPs were accused of milking the system for their own benefit (though most claimed successfully that they had operated within the rules). The results of the revelations were far-reaching. Many MPs were forced to give up their seats, Parliament was subjected to widespread ridicule and public condemnation, and the expenses system had to be radically reformed.
The Freedom of Information Act also proved to be significant in such areas as health care provision, defence procurement, and local authority procedures. It is, therefore, one of the most important constitutional reforms of recent times.
Reform of the judiciary
At the start of the twenty-first century, there was growing concern that the judiciary — that is, the senior levels of the court system — was in need of reform. The Constitutional Reform Act 2005 was passed to address these issues.
Effects of judicial reform
Separation of judiciary and government
Most importantly, it was seen as crucial that there be a clearer separation between the senior members of the judiciary and the government. In the past, the position of the Lord Chancellor had been ambiguous. He (or she) was a cabinet minister and senior member of the governing party. At the same time, the holder of the office as head of the judiciary and presided over the proceedings of the House of Lords. This placed the Lord Chancellor in all three branches of government. Although the occupant of the post might protest that they understood the difference between their neutral judicial role and their political role as a cabinet minister, suspicions persisted that one role would interfere with another. This perception of lack of independence of the judiciary had to be addressed in a modern system. The judicial role of the Lord Chancellor was therefore largely removed. The post was combined with that of the justice secretary, a cabinet post, but the holder ceased to have a judicial role; he or she was in charge of justice policy, but not practice.
The highest court of appeal had been the House of Lords, meeting as a court rather than as part of Parliament. The senior Law Lords — usually in groups of five — would hear important appeal cases, often with great political consequences. There was disquiet over recent years that it was not appropriate that members of the legislature (i.e. the Law Lords) should also be at the highest level of the judiciary. In other words, it was seen as vital that law and politics should be completely separated to safeguard the rule of law. It was therefore decided to take the senior judges out of the Lords and to create a separate Supreme Court. The Supreme Court was opened in the autumn of 2009 and began work immediately to establish its new independence.
In reality, the change to a Supreme Court is partly a cosmetic exercise. The new court has the same powers as the old House of Lords. However, it is symbolically important and the early signs have indicated that it will indeed prove to be a genuinely independent body.
Appointment of senior judges
Finally, there was opposition to the continued practice of senior appointments to the judiciary being in the hands of politicians — mainly the Lord Chancellor and the prime minister. There was a constant danger that such appointments might be made on the basis of the political views of prospective judges rather than on their legal qualifications. A Judicial Appointments Commission (JAC) was therefore set up to ensure that all candidates should be suitable, using purely legal considerations. The government has the final say on who shall become a senior judge, but this must be after approval by the JAC. The most senior appointments — to the Supreme Court — have been placed in the hands of a non-political committee of senior judicial figures.
The principles of judicial reform have been fourfold.”
- To increase the separation of powers between government, legislature, and judiciary.
- To improve the independence of the judiciary.
- To eliminate the ambiguity of the role of the Lord Chancellor.
- To bring Britain into line with modern constitutional practice.
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