Task-1

1.What is the UK Constitution?

UK Constitution- An Introduction
The United Kingdom has no constitution set down in a fully written legal document; however this
is not to say that the United Kingdom lacks constitution. In ‘The Law and the Constitution’(1959)
Ivor Jennings writes, “If a constitution means a written document, then obviously Great Britain
has no constitution…But the document itself merely sets out rules…The phrase ‘British
Constitution’ is used to describe those rules.” This quote highlights the idea that although the
United Kingdom lacks one single document outlining the institutional rules and regulations, it still
has a constitution. The House of Lords Select Committee on the Constitution 2002 expanded
this idea by stating “The British Constitution… is not ‘unwritten’…but it is uncodified.” The lack of
codification in the constitution can definitely lead one to the thought that the Constitution is
indeterminate.

History and Origin of UK Constitutional System

Many nations around the world govern through a written constitution, which lays out the
fundamental laws of the land and rights of the people in one single legal document. So why
doesn’t the UK have a written constitution? The answer can be found in our history.
Emerging nations around the world have had to start from scratch and produce a written
constitution setting out their laws and citizens’ rights. Some more established countries have
had to adopt a written constitution due to revolt or war. However Britain escaped the
revolutionary zeal of the late 18th and 19th centuries, and so the UK constitution, often referred
to as the British constitution, has evolved over centuries.
Democracy in Britain is based on Acts of Parliament, historical documents, court judgments,
legal precedence and convention. The earliest date in the history of our constitution is 1215
when the barons forced King John to accept the Magna Carta, the ‘Great Charter of the
Liberties of England’, which limited the power of the king, making him subject to the law of the
land. Two of its key principles, the right to a fair trial by one’s peers and protection from unlawful
imprisonment, form the basis of common law in Britain. Magna Carta would also be a major
influence on the US constitution.
The Provisions of Oxford in 1258 set out the basis for the governance of England. 24 members
would make up a Council governed by the monarch but supervised by a parliament. The first
parliament, made up of knights, lords and common men drawn from the towns and cities, was
presided over by Simon de Montfort, widely regarded as the founder of the House of Commons.
The Petition of Rights of 1628 set out some further rights and liberties of the people, including
freedom from arbitrary arrest and punishment.
Another landmark piece of legislation was the Bill of Rights of 1689. This followed the ‘Glorious
Revolution’ of 1688, in which William III and Queen Mary replaced King James II. This bill
declared that the monarch could not rule without consent of Parliament. As part of the bill,
Parliament would meet regularly; there would be free elections and freedom of speech in the
chamber. It outlined specific liberties for the people, including the freedom to bear arms for
self-defence, freedom from taxes imposed by the monarch without the consent of Parliament
and the freedom from cruel and unusual punishment.
The Act of Settlement of 1701 controlled who should succeed to the throne and established the
vital principle of judicial independence. The number of men entitled to vote was greatly
increased by the 1832 Great Reform Act, and the Representation of the People’s Act of 1928
gave all men and women over the age of 21 the right to vote.
These and other written laws form just part of the constitution of the United Kingdom. Political
customs or conventions are the unwritten rules that are vital to the workings of government. The
office of Prime Minister is one of these conventions: legally the Monarch appoints the Prime
Minister, who by convention is the leader of the largest party (or coalition of parties) after a
General Election and commands the confidence of the House of Commons.
Role of UK constitution

Constitutions are responsible for defining and regulating state institutions, which guide the
state’s relationship with individual citizens. They are either written or unwritten with the written
constitution being highly codified. This sort of constitution is found in most states unlike the
unwritten form, which is possessed by merely three countries. The UK constitution is unwritten
and characterized by parliamentary supremacy, royal prerogatives, unitary and monarchical
tendencies. As such, a majority of laws are not documented and are subject to change by
parliament. As sovereign, parliament is the rule of law and is obligated to enact laws when
necessary. This trait makes the unwritten constitution highly advantageous. As a flexible entity,
the UK constitution is easily adaptable to constant changes within the society. This aspect has
made parliamentary conventions and even judicial courts responsive to these changes, which
makes the law relevant. In fact, this has spared the UK difficulties, which often accompany
change agendas in the written constitution. Furthermore, the UK constitution through the
sovereign parliament is able to regulate and monitor the government. It subjects the government
to limitations, thus fostering accountability and democratic legitimacy.
However, the UK constitution also faces limitations especially in regards to its politicization. The
very factor that renders the UK constitution advantaged, parliamentary supremacy, could exhibit
loopholes for making the constitution a political tool. Its flexibility is also susceptible to
unwarranted procedures where laws are altered or decisions made by parliament without due
process. Citizens are also entitled to having a grasp of the constitution but this can prove difficult
without the presence of a codified document where separation of powers is indicated distinctly.
Nonetheless, the unwritten nature of the UK constitution has seemed to work for the state and
may even propel other countries to adapt such characteristics.
Characteristics of UK constitution

Written: formal source of constitutional law in a single text, more accurately a “documentary”
constitution. Yet written document alone may not ensure government works properly, can not
contain all the rules. Written/ framed but must be fleshed out later. Many the result of political
events such as revolution (US/ France); independence (India); defeated in war (Germany);
regime change (South Africa) – which reflected political beliefs and aspirations of the drafters.
Writing gives sanctity. Unwritten: de Tocqueville – England had no constitution because not
written down. Tomkins – the distinction is exaggerated, it is written somewhere. The distinction
is not one of substance but one of form. Bradley & Ewing: “absence of a written constitution
means government depends less on legal rules and safeguards than upon political and
democratic principles”. Legal consequences of the distinction: written constitutions limit power
by federal structure or entrenching rights or separation of powers; UK unwritten we rely on the
rule of law and sovereignty of parliament.
Codified: since no constitution is fully contained in a single written text, we mean that the text
codifies the rules. Often codified because of political events: Uncodified: UK constitution
uncodified because of historical development; criticism that only codified constitutions merit the
term because no enforceable guarantees in uncodifed arrangement; but if codified must comply
with principle of constitutionalism to distinguish “real” from “façade” constitutions (Tomkins).
Problems: Bogdanor: “indeterminate” (rules are vague, uncertain); “indistinct” (no clear
demarcation between public law and other branches); “unentrenched” (nothing in it which can
not be changed – see below). But these problems would not necessarily be resolved by
codifying/ writing down – written laws can still be uncertain; written constitutions may still be
changed – amending provisions etc; but indistinct – ok yes we would see where a constitutional
rule was laid down.
Flexible: there is no aspect of our constitutional arrangements which could not be altered. In UK
done by Act of Parliament because of Parliamentary Sovereignty and doctrine of implied repeal.
Allows social change because it is adaptable; but flexibility not a good in itself. Flexibility could
explain success of UK constitution (Leo Blair). Inflexible: unchangeable rules or only changed
through an extraordinary process (Calvert). Further distinctions: (1) flexibility is not about a
regime being stable or not; (2) unwritten does not mean flexible necessarily or vice versa (eg
Singapore) – this confuses content with form. (3) But how to square flexibility with continuity –
eg the role of constitutional conventions – crystallisation of a practice – we need balance
between change and history.
Democratic: system of representative and responsible government where popular control is
exercised over the political leadership. UK – voters elect “members of a representative
institution, the House of Commons, and the government is accountable to the House and
ultimately to the electorate” (Turpin). Some claim the British constitution has embodied the
principle of universal suffrage (being able to vote) with the enactment of the Representation of
the People Acts 1918 and 1928 but consider later and changing position of university graduates,
women and prisoners. Idea of government of the whole people. Embraced by most political
parties. Citizens not only vote but take part in decision-making (but indirectly and in a limited
way). Referendums etc. Need institutional framework and more than 1 party state. Today,
“liberal democracy” – individual freedom. But for legitimacy must restrict majority rule to give
voice to minorities. “Moral force”. Undemocratic: opposite. Governments are not elected by nor
removed by the people thus they are neither representative of nor responsible to the people –
popular control is not exercised over the power of the government. Occurs through 1 party
states, opposition parties excluded, barriers to associations, freedom of speech and media
freedom restricted.
Monarchical: monarchy eg UK! The constitution of a king and queenship; hereditary usually.
Extreme monarchies depend on rule by the monarch, not merely reign. Old Russian Tsarist
system – divine right. Contemporary view = limited monarchy, simply a head of state.
Republican: Absence of monarchy! A state without a king (Plato’s Republic). But Blair form of
republicanism – doesn’t necessarily mean no monarch – they can have v superficial role in
power.
Presidential: Legislature and executive are elected separately and for different terms – president
may be one party, the legislature another. More common in undemocratic than democratic
regimes Parliamentary: no clear cut separation of powers – executive forms part of the
legislature and in this way usually the same political majority; but may be more flexible and
responsible to a public.
Federal: Division of power and tasks of government between central government and
federations or local government – eg Germany – Federal/ Lander and People/ State. Federal
power is formally writing down the structure/ codifying. Constitutional limits bind both levels and
these limits are enforceable in law. Unitary: centralised power so in UK at Westminster.
Controversial – because seen as being removed from local people – consider devolution,
London Mayor, calls for regional assemblies. Contrast devolution and federal structure – in
federal system a written constitution would prevent Parliament taking power back into its own
hands.
Role of legislature, executive and judiciary

Legislature

Parliament in the UK is made up of the House of Commons and the House of Lords. The House
of Commons is the lower, pre-eminent chamber of Parliament, which contains more legislative
power than that of the upper chamber, the House of Lords. One of parliament’s primary
functions is to hold the executive to account, this means that the house of commons forces the
government to do things such as justify bills, explain decisions and their motives defend their
actions, and defend their policies. This form of accountability is the most frequent case, as
whatever the government decides to do; the House of Commons will always look for a reason
why they decided to carry it out. The only time this does not happen is during election times,
where the general public holds the executive to account by voting for or against them.
Firstly, the meaning of ‘accountability’ is a complex concept, and has been used in a variety of
ways. The main meaning is; being held account, scrutinised or being required to give an
explanation. Lord Sharman in his 2001 Report reviewing audit and accountability for central
government split the notion into four different aspects;
1. giving an explanation – perhaps through an annual report, outlining performance and activity;
2. providing further information – perhaps by providing information (e.g. to a Select Committee)
on performance, beyond accounts already given;
3. reviewing and, if necessary, revising – examining performance, systems or practices, and if
necessary, making changes to meet the expectations of stakeholders; and
4. Granting redress or imposing sanctions – stakeholders might enforce their rights on those
accountable to effect changes.
To hold the government to account, in constitutional theory, there are a lot of parliamentary
mechanisms, or ‘checks’ carried out by the House of Commons, such as questioning, debates,
and select committees. The government relies on these, and parliament, to stay in power. It
does not matter as to how much of a majority the party may have in government, if there is a
vote of no confidence from the House of Commons, the party in office will be expected to resign
and a general election would be called. The last time this happened was in 1979, when James
Callaghan was the Prime Minister of the UK.
The main methods of holding the government to account in the Commons are; Parliamentary
Questions, Parliamentary debates and the select committee system. Firstly, Parliamentary
Questions are seen as the best method of gaining and accessing information on the
government’s intentions, these are also seen as opportunities for MP’s to ask questions
regarding their constituency, and allow them to get answers to questions asked by their
constituents. Obviously, this can be seen as a very effective method, as topical political
questions will be asked, and answered by the Prime minister and his ministers, this can make
the government accessible and transparent.
However, Parliamentary questions can also be seen as quite ineffective. During Parliamentary
questions an MP may only ask up to two oral questions and any amount of written questions a
day, and only one per minister. Supplementary questions can only be asked if the speaker
allows it, and questions can be examined as to whether or not they comply with the rules. This
lack of freedom to ask as many questions, to whoever, on any issue is surely detrimental.
Furthermore, all questions must be given in advance, so that the ministers of the specified
departments are able to draft an answer, this, and the fact that some questions (relating to
security service, or commercial confidence) are refused to be answered by ministers, weakens
the effectiveness of Parliamentary questions. If MP’s are given the chance to draft a generic
answer then it means they aren’t put on the spot spontaneously with the expectation of being
able to answer a question. Some may think this makes a mockery of the job they are doing, as
they aren’t able to answer a question on it, however it must be said that giving the MP time to
formulate a good response can increase the likelihood of the person questioning receiving a
good answer.
Furthermore, in relation to Parliamentary questions, Prime ministers question time takes place
every week. This, like earlier stated, can be effective in that the Prime minister is able to explain
policies and answer any questions; however, it can also be seen as ineffective because he is
also able to formulate a generic answer. Also, some believe that it has become more of a
‘contest’ between the opposing party leader and the Prime minister, in which a ‘slagging match’
takes place, which is more like a media show than real accountability.
Executive
The executive consists of the Crown and the government, including the Prime Minister and
Cabinet of Ministers. Moreover, the Civil Service is also a part of the executive. The executive
mainly formulates and executes the government policies. The government is accountable to
Parliament which has the ultimate power to dismiss a government and force a general election
in which the new government will be elected. The government is mainly elected from the
Members of Parliament who sit in either House of Common or House of Lords.
Judiciary
The main function of this branch is to hear upon and resolve the matters of law. However, in the
UK the judiciary has one more essential function: to develop the law through their judgements.
The judiciary consists of judges in courts, as well as those who hold judicial office in tribunals.
The senior judicial appointments are made by the Crown. According to various sources, the
judiciary in the UK is independent of both parliament and the executive. It may be argued that
this “independence” is not really genuine, because the Senior Judges are appointed by the
Crown. However, once these judges are appointed they are become completely independent
and have complete authority over all their actions. Their independence in protected in the “Act of
Settlement – 1700″, according to which, Senior Judges can only be dismissed by address to the
Crown from both Houses of the Parliament.

Act of Parliament

Concerning the Acts of Parliament procedure it has to be said that, as general rule, every bill
has to be approved by the House of Commons, the House of Lords and ultimately the queen in
order to become an Act of Parliament. This process may start in any house but it is more
common for it to begin in the House of Commons. There is occasionally a pre-legislative
scrutiny before the bill enters into the Parliament. Once the bill is a draft the following stages
take place:
The bill starts in the First reading and the reading out of the title and the printing of the bill take
place here.
Then, in the Second reading, the Minister establishes the most important principles of the bill to
be debated and then, a vote is carried out. Anyway it is rare for the bill not to pass through this
stage successfully.
Subsequently in the Committee stage, a committee is created in order to examine each clause
of the bill in detail. There are three types of committees: Committee of the Whole House or
Grand Committee which is created for constitutional issues and some financial issues; Public
Bill Committee which is the most frequently used and between 16 and 50 members of
Parliament, in a proportional representation of the entire Parliament, take part in it and the
Select Committee which is composed by 18 Members of Parliament who are elected by a
committee of selection, and its composition has to be proportional to the bench composition in
the Parliament. The latter is rarely used.
Later in the Report stage, the bill goes back to the House of Commons and this is one more
chance to amend it.
Lastly the Third reading takes place here. This is a mere formal step and there is no possibility
to make any other amendment here. The vote about the amended bill takes place.
Once, these stages have carried out and the bill has been passed with a simple majority of
votes, the same procedure, with small differences, has to take place in the House of Lords. For
example, in the House of Lords amendments are possible in the third reading.
Afterwards, a consideration of amendments takes place in the House of Commons and finally
the last requirement to finish this procedure is the Royal assent of the queen that has to be
notified to both houses. This fact is a mere formality in the process because although the queen
is the head of legislative process in the United Kingdom, she does not create laws. Her role is
confined to the approval whatever bills the Parliament has created in order to become a
Parliament Act.
Significance of separation of power principle
The doctrine of separation of powers had influenced many philosophers, constitution makers,
like Montesquieu who all had deep thinking to this doctrine. Even though UK constitution is
unwritten but it is a golden principle of separation of powers for the world to follow.
In 1748 the French jurist, Montesquieu, put forward his theory that ‘there can be no liberty’ and
also said that “everything would come to an end if the legislative, executive and judicial powers
of government were to be exercised by the same person or authority” (L’Esprit des Louis 1748).
The UK has a separation of powers; there are clear overlaps both in terms of personnel and
function between the three organs of government which may be discerned. The government
powers should be exercised by legislative, executive and judicial, within their own limitations
and should also check each and other.
Britain’s concept of separation of powers that Parliament, executive and courts each have their
own perimeters and each should exercise their powers accordingly. Monarchy used to influence
over government but now it is like a symbolic for government however it is sovereign. John Lock
and Charles Montesquieu are the significant figure for this doctrine . According to Montesquieu
vision, the separation of powers is an idea where checks and balances works like you running
after someone in a circle and they running after you. One person should not should not perform
his duties in three organs of government at a time. Each organ of government should not
interfere with the other organ e.g. ministers should not have legislative powers . The executive
consists of government, including the Prime Minister and the Cabinet other than in the
legislative functions of Parliament The role of the executive is to implement government policies.
These include implementing legislation, security, providing social and economic welfare,
administrating public services and also try to make good relations with other countries.
Therefore the executive function techniques ranging from the formation of broad policies to the
detailed management of daily routine services.
In the UK, new law is enacted when the Bill has been approved by the House of Commons and
Lords and has received Royal assent, however Under the Parliaments Act of 1911 and 1949
legislation maybe enacted even though it has been rejected by the House of Lords, House of
Lords only can delay it up to twelve months. The interpretation of statutes is a vital part of the
law-making process, because after such interpretation that is known whether the intentions of
those who framed the law have been carried into effect. During this procedure the judges must
not challenge the political authority of the legislature to decide what net laws should be made.
The judiciary includes all judges in the courts of law, including those who have judicial offices in
tribunals and lay magistrates who staff the magistrates’ courts. This is preside in the civil and
criminal courts by professional judges. Civil jurisdiction covers both private law issues and also
public law questions. they the courts exercise certain minor legislative functions such as making
rules, governing court procedures and also administrative functions.
Separation of powers divided into three organs of states and these organs must communicate
with each other to run the country effectively even if constitution is written still certain
requirements has to be followed to govern the country smoothly because if these three organs
are conflicting with each and other it can be destruction for the country and its people.At the end
of day all the things separation of powers, organs of states and Monarch etc. are for the welfare
and rights of people of that country. Cabinet direct the activities of central government
departments , through their majority in the House of Commons, exert a controlling influence
over its timetable, business and legislative output. The government legislates in the form of
regulations controlled in statutory instruments. Before constitutional Reforms Act 2005 the head
of the judiciary of England and wales, a member of cabinet, and the speaker of the House of
Lords was Lord Chancellor. He was part of all three organs of state and this was exception to
doctrine of the separation of powers.
Extent of UK constitution’s adherence to Separation of power

Visible overlaps are found in legislative, judiciary and executive however system of checks and
balances are there. This involves each branch having eye on the others but also required each
organ to be protected against interference by others out of their perimeters The prime minister
can advise the queen to dissolve a Parliament but it must meet within a year. The Queen in
emergency can dissolve or refuse to dissolve Parliament. Individual ministers are accountable
before Parliament. House of Lords is a partial check over the executive. Judicial appointments
are made either by Queen on the recommendation of Lord Chancellor or in the case of lay
magistrate and certain other junior judges by Lord Chancellor directly.. The senior judicial
element must be chosen by the judges` Council. The lay members must be selected by a panel
of four persons. These comprise a lay chair, the Lord Chief Justice and the chair of Commission.
Civil servants are not members of commission. The Lord Chancellor can increase the number of
members subject to the approval of Parliament. Commissioners cannot hold their office for more
than ten years in total. In exceptional cases Lord Chancellor can remove judges on medical
ground. Superior court judges must retire at seventy. Courts cannot abolish Act however courts
can check weather a document is genuine Act. The Human Rights Act 1998 provides a balance
between the three branches by requiring the courts to scrutinise acts of all branches in the light
of main provision of ECHR. However Parliament can override Convention rights by using very
clear language. House of Lords held that the courts can look in Hansard where the language of
an Act is ambiguous.
After the 1688 settlement the house of lord was regarded as holding the constitutional balance
of power. Life peers were introduced in 1960 but there constitutional role remained
controversial. By convention and law the Lords must defer to Commons. Although Commons
exercised a control by executive, yet the House of Lords is accountable to no one. All above are
the checks and balances to prevent against abuses of powers in United Kingdom. Hence we
can say in trying to accomplish a state in which separation of powers exist it is imperative to
accomplish a system of checks and balances. Now we see what the current administration has
sought to strengthen these checks and balances. The theme of `modernization` has been
integral to new Labour project ever since Tony Blair became leader of the party in 1994. At
Labour party Conference 1994 Tony Blair said, “The government has a mission to modernize,
the biggest program of change to democracy ever proposed”.

Task-2
Human rights act and rule of law
Furthermore, the enactment of the Human Rights Act 1998 in the UK had the effect of
cementing the rights provided by the European Convention of Human Rights, into British Law
has acted as a further check on the actions of Government. In particular section 3 and 4 have
allowed for greater judicial scrutiny of the legislature and public authorities. This is because
courts are bound under section 3 to ‘So far as it is possible to do so, primary legislation and
subordinate legislation must be read and given effect in a way which is compatible with
Convention rights.’ Under s(4) if they deem that the legislation is incapable of being read in a
way which is compatible, they ‘may make a declaration of incompatibility.’ There has been some
debate over how far the courts should go in reading legislation to be compatible. Effectively the
traditional rules of interpretation no longer apply and Judges according to Lord Steyn may have
to ‘adopt an interpretation which linguistically appears strained.’ To add to this Lord Nicholls later
said a court is required to ‘read in words which change the meaning of the enacted legislation.’
Therefore, as orders made under their prerogative powers are deemed primary legislation they
must be compatible. Once a declaration of incompatibility has been made, then Parliament,
wary of political backlash, so far have taken steps to amend the offending legislation. In
addition, s(6) of the Human Rights Act also states that ‘It is unlawful for a public authority to act
in a way which is incompatible with a Convention right.’ Therefore, this is another area where it
is possible for courts to scrutinise the actions of Governmental bodies acting under their
prerogative.
Parialmentary sovereignty
Parliament sovereignty means that the Parliament’s power is unlimited and it can make law on
any subject matter. No one can limit the law - making power of any future Parliament. It is
impossible therefore for any Parliament to pass a permanent law or in other words to entrench
an Act of Parliament. According to Dicey, parliamentary sovereignty means that Parliament has
the “right to make or unmake ay law whatever”. This basically mean that there is no limit on the
subject matter on which Parliament may legislate. Sovereignty should be clearly differentiated
and distinguished. It is divided into legal sovereignty as well as political sovereignty
The doctrine of Parliamentary sovereignty is about the relationship between the parliament and
the courts. Parliamentary sovereignty is a principle of the UK constitution; it is the highest
authority in the UK. Parliament can repeal or amend any law it wishes. Thus through the
procedure of the House of Commons and the House of Lords passing the legislation to the
monarch and the monarch gives assent. In result, making the legislation and no court or higher
body has legal power to declare the legislation validity. The UK constitution is uncodified which
means it is unwritten. According to Professor Leyland’s he says that the history of the British
constitution is significant to the current practice . For example, the Bill of Rights 1689 gave
inheritance to the current principle that resulted in making the crown, House of Lords and House
of common with unlimited legislative authority. Therefore, the legal sovereignty of parliament
was Dicey’s regarded founding principle of the constitution. There are three principles that Dicey
outlined to explain the doctrine of parliamentary supremacy . This essay will discuss the
significance of parliamentary sovereignty to the UK constitution and Dicey’s interpretation of the
doctrine of parliamentary supremacy. It will also consider any exception occurred to Dicey’s
redefinition principle and other theorist.
Judicial appointments System and reforms

2. Judicial appointments: principles Fundamental principles 2.1 Chapter 1 of this consultation

paper focused on Britain’s wider constitutional framework, the importance of separation of
powers, and the steps this Government has taken to clarify the delineation of power between
the three arms of the state. Within that context, the remainder of this paper considers the
process for appointing the judiciary, which has clear implications for the separation of powers
and for the independence of the judiciary from both the executive and the legislature. 2.2 This
chapter of the consultation paper seeks to set out some fundamental principles that the
Government considers should form the basis of any judicial appointments process. Chapter 3
then considers current practice. An independent judiciary 2.3 Chapter 1 highlighted the
importance of the separation of powers in respect of the three arms of state. This is pivotal to
ensuring the independence of the judiciary as a whole. However, it is also important to ensure
the independence of the judiciary at an individual level, and this section considers how that is
achieved though the appointments process. 2.4 Judicial independence is vitally important to the
rule of law, and in particular to public confidence in judges as a means of upholding the law.
This in turn brings social and economic benefits. It enables people to be assured that when their
rights are infringed, or when others’ duties need to be enforced, the appropriate action will be
taken. It assures people that justice will be done when a criminal allegation is made. It also
helps to sustain international confidence in Britain as a stable country in which, and with which,
it is safe to do business. 2.5 The need to secure judicial independence must therefore be one of
the fundamental principles underpinning any system of judicial appointments. It is important to
be clear about the meaning of judicial independence – from whom or from what judges need to
be independent. The Executive 2.6 In a country operating under the rule of law, judges need to
be independent of the executive. It must not be possible for the executive to require or
improperly influence judges to decide cases in a particular way. Otherwise, there is an inevitable
danger that the law could be used (or would be 16 The Governance of Britain: Judicial
Appointments | Chapter 2 perceived as being used) to service the interests of the executive.
Just as important, it is essential that the public has confidence that judges will interpret the law
impartially and, where appropriate, stand up for the rights of individuals irrespective of the
wishes or interests of the state. The Legislature 2.7 The judiciary also needs to be independent
of Parliament. Parliament (in particular the House of Commons) is the national body where the
interests and views of the public are represented and with the ultimate power to make law. It is
the duty of judges to decide cases within the limits of the law Parliament lays down. However,
within those limits, it is in the interests of justice that the judiciary should be left free to decide
cases, protected from political pressure to reach particular decisions in individual cases. Parties
to a case 2.8 It is also vital that judges be independent of the parties in a case. Most obviously, it
means that no party to a case – including the Government, directly as a party in civil cases, and
indirectly through the Crown as prosecutor in criminal cases – should be able to procure a
favourable result by means of exerting improper influence. Further, it is a fundamental feature of
the justice system that judges should be free from bias, and from perceptions of bias. Securing
independence 2.9 One of the most important ways of securing judicial independence is to
ensure that the appointments process does not result in politically biased judges, or judges who
are, or feel, beholden to the appointing body or person, or to any individual or organisation. This
in turn helps to ensure that the judges who are appointed are able to act independently, free
from political or other improper pressure, in office. 2.10 There are a range of other factors –
beyond the appointments process itself – that are vital to securing independence while a judge
is in post. The first among these is security of tenure, ensuring that judges cannot be dismissed
because they make unfavourable decisions against, or are unpopular with, Government. Judges
are protected against threats of cuts to their salaries; against political pressure in relation to their
judgments, for example by clear practices restricting what may be said publicly by the legislature
or executive during ongoing legal proceedings; from intimidation; and may not generally be sued
for the manner in which they discharge their responsibilities of office. 17 The Governance of
Britain: Judicial Appointments | Chapter 2 Appointment on merit 2.11 Linked to independence is
the principle that judges should be appointed on merit. This aims to ensure that the
appointments process results in the selection of high quality individuals. This is another
fundamental principle that should underpin an appointments process designed to produce a
judiciary which is highly competent, politically impartial, has high standards of integrity and
which avoids any form of unfair discrimination. 2.12 Selection on merit has essentially two
objectives: no one should be appointed to a position unless they are competent to do it; and if
two or more people meet the criteria for appointment, the position should be offered to the
person who would do it best. 2.13 This is more likely to put appointments above suspicion of
patronage, and ensure that recruitment procedures reinforce the political impartiality of the
judiciary. Equality 2.14 Equality is another fundamental principle that should underpin any
judicial appointments system. Our judiciary is respected throughout the world for its values of
probity, fairness and judgement. It is a highly visible institution with a very public focus. It
represents and upholds many of the values that we as a society hold in high esteem: our
freedoms, respect for each other, and for the rule of law. 2.15 It is vital that all members of
society can look to the judiciary to uphold those values. The communities of Britain are ever
changing and our institutions need to adapt to ensure that they continue to reflect those
changes. 2.16 Part of this means ensuring that our judges have an effective understanding of
the communities they serve. This can be achieved in a number of ways. For example, through
ensuring that judges are drawn from the diverse communities that make up modern Britain; or
through ensuring that judges recognise and understand those communities, and reflect that
understanding in the way they carry out their duties. 2.17 Equality in the context of judicial
appointments needs to have both an inward and an outward focus. The inward focus must look
towards the working environment for judges, and the extent to which that environment supports
a diverse membership. This will help to support and encourage a more diverse range of
individuals to apply for judicial appointment, and to consider that the judiciary, as an institution,
is one in which they can play 18 The Governance of Britain: Judicial Appointments | Chapter 2
an active role. The outward focus must look at the level of engagement our judges have with the
communities they serve, and the extent to which they understand the complex needs and
experiences of the individuals who come into contact with them from a wide spectrum of
backgrounds. Openness and transparency 2.18 Another fundamental principle is openness and
transparency. The previous appointments system was criticised for a lack of transparency, and
the reforms under the CRA were designed to improve the openness and transparency of the
system. Openness and transparency should relate both to judicial appointments themselves and
to appointments to the selecting body itself – the Judicial Appointments Commission. 2.19
Confidentiality in relation to individual applicants must of course be respected, but the
procedures for appointment should be as open and transparent as possible. This supports
equality and diversity, by driving up public confidence in the justice system, encouraging
applications from a more diverse range of individuals and improving the public perception of the
judiciary. This in turn supports appointment on merit and quality, as well as confidence in the
independence of the judiciary. An efficient and effective system 2.20 Finally, the principles of
efficiency and effectiveness should be central to the design of any good judicial appointments
system, and the system then needs to be judged against efficiency and effectiveness criteria.
This is vital to ensuring that the process for appointing judges can deliver high quality judges, in
the right numbers, qualified for the particular office they are being selected for, as quickly and
efficiently as possible

Conventions

Another source of the British Constitution are non-legal rules called Conventions, these are
described by Jennings as; “The flesh which clothes the dry bones of the law.” Conventions are
binding upon the public bodies that operate the constitution, however they are not enforceable
by the courts, even still, they are an incredibly important part of the British Constitution.
Conventions are, though, probably the most indeterminate and un-entrenched parts of the
Constitution. It is difficult to identify a convention and they are incredibly easy to suspend,
reformulate or even ignore as they are not binding or punishable. Conventions of the British
Constitution include such things as the Queen’s right to refusing a Royal Assent, however it is
unlikely that the Queen will ever refuse royal assent due to convention. Similarly the Queen has
the power to appoint anybody to be her Prime Minister, but convention dictates that she will
choose the leader of the party with the most seats in Parliament. Another convention is that
minister has a responsibility towards parliament, in which ministers speak with one voice and
have confidentiality and unanimity. Although these conventions have no punishment failing to
comply with them will seriously damage political reputation and could lead to anarchy if, for
example, the queen decided to appoint a Prime Minister not part of the Commons or Lords.
Conventions have also been involved within cases one example of such is Carltona Ltd v.
Commissioner of Works [1943] 2 ALL ER 560 which established the idea that government
department official’s acts are synonymous with the ministers in charge, showing the convention
of unanimity between ministers being translated somewhat into case law. In general, however
constitutional conventions are unwritten, hard to identify and unenforceable legally speaking.

Royal Prerogatives

A final source of the Constitution are Crown Prerogatives, Dicey described this as; “…the
residue of discretionary and arbitrary authority, which at any time is legally left in the hands of
the crown.” Similar to Conventions these prerogatives that can be exercised historically by the
Crown only, however now the Prime Minister and Cabinet need to be involved for prerogative to
be exercise. One of the most important crown prerogatives is the dissolution of parliament and
the declaration of war. In theory the Crown can do this at any time; however in reality it would
cause many problems. Although Crown Prerogative is not usually demonstrated in these ways
much in the modern day, it doesn’t mean they are any less a part of our constitution, however
once again as they are unwritten and unknown to most citizens they can be seen to be another
indeterminate part of the British Constitution.

Structure of devolution of power in UK

The current system of devolution in the UK was introduced by the Blair Government in the late
1990s. It involved the creation of new legislative and executive institutions in Scotland, Wales
and Northern Ireland, and the conferral upon them of law-making and administrative powers. A
key purpose of devolution is to enable parts of the country that possess distinct political and
cultural identities to remain part of the Union without subjugating those individual identities.The
hypothesis upon which devolution was built is that it can strengthen the Union by equipping it to
accommodate diversity, a flexible structure being stronger than a brittle one. That hypothesis
was tested — almost to breaking point — by the independence referendum that was held in
Scotland in 2014. In Northern Ireland, devolution serves the further, and crucial, objective of
fashioning a system of government capable of bridging community divisions. The technical
operation of the different devolution schemes and the (significant) differences between them are
important, but are beyond the scope of this post. Rather, its focus is on the general nature of
devolution and on the broader insights it affords into the nature of the UK’s constitution.
One of the most striking features about the devolution system in the UK is its asymmetry.
Scotland and Northern Ireland can enact legislation — including laws overriding those enacted
by the UK Parliament in relation to Scotland and Northern Ireland respectively — on all matters
save those that are reserved to the exclusive competence of the UK Parliament in Westminster.
Wales was originally given sparser powers, being permitted to enact legislation only in relation
to specific matters, although legislation currently before Parliament will bring the Welsh model
into closer alignment with the other systems. England has no devolved powers at all; since the
devolution system does not extend to it, it relies upon the UK Parliament and the UK
Government to enact its laws and administer it. Those institutions therefore serve dual
functions, as the UK but also the de facto English legislature and executive.

Devolved powers of Scottish Parliament, Welsh Assembly and Northern Ireland

It is within Scotland that the nationalist movement has been the more prominent, with an
aversion to English rule being a far more common theme running through Scottish history than
for the Welsh. This is perhaps reflected in how devolution policies for Wales often seemed to be
made as an afterthought (McLean, 2007:497); always placed second to Scotland, with Wales
originally only being granted a secondary legislative Assembly whilst Scotland enjoyed a
Parliament that had a primary legislative role and tax varying powers (Laffin, Shaw & Taylor,
2007:89).
The combination of rising electoral support for the Scottish National Party (SNP) in the 1970s
(McLean, 2007:488) and the loss of the Labour Government’s majority in Parliament
accumulated in devolution being put on the political agenda (Anderson & Mann, 1997:279). The
resulting referenda in 1979 showed that support was far more widespread in Scotland than
Wales (Bogdanor, 2001:190), and despite neither being successful, support for the devolution
movement grew steadily through the 1980s and 1990s (Dodds & Seawright, 2004:108). By the
1997 general election, the Labour Party had explicitly adopted it as a policy commitment, with
both Scotland and Wales voting in favour for devolved administrations soon after (Bromley,
2006:192).
As previously mentioned, the Scottish Parliament had primary legislative powers and was able
to vary UK income tax by 3 pence in the pound (The Tax-varying Power, 1999). However,
Scotland’s legislative role is not unlimited, with certain policy areas being reserved for only
Westminster to legislate on, such as monetary and fiscal policy, defence and immigration
(Devolution to Scotland, 2002). Therefore, despite devolving certain powers to Scotland,
Westminster still retains control in some defined policy areas.
In Wales, Westminster’s control was greater, with the Assembly only having secondary
legislative powers; only being able to implement legislation that Westminster has already agreed
(Buller, 2011). However, the recent referendum on the 3rd March 2011 has seen Wales vote in
favour of having the same devolved powers that the Scottish Parliament benefits from, and thus
enabling them to directly legislate in 20 areas (Wales says Yes in referendum vote, 2011). The
power of the Scottish Parliament is also set to increase under the Scotland Bill currently going
through Parliament, which would allow Scotland control of one third of its budget, as well as
devolving power in areas including air weapon control and speed limits (Holyrood to get new
budget powers under Scotland Bill, 2011).
These latest developments could be perceived as a weakening of Westminster’s power, yet
despite marking another step away from a concentrated centralisation of power within the UK,
no threat is posed to central Government. It must be remembered that devolution is only at
Westminster’s choosing and that ultimately, should it choose to alter or withdraw power from
Scotland and Wales tomorrow, this could be done (Hague & Harrop, 2007:293).
The Northern Irish Assembly’s suspension from the 14th October 2002 until the 8th May 2007
(Devolved Parliaments and Assemblies, n.d.) shows well enough that devolution does not mark
a total sacrifice of power by Westminster. Instead, by continuing to have sovereignty over the
devolved bodies, Westminster retains the power it has devolved and reaps the benefits of
devolution; strengthening its power and legitimacy and thus benefitting both the people and
Government.

Scope and limitation of judicial review

It is important to take into consideration the political set up of England when talking about the
future of Judicial Review as increase in the role of Courts would entail limiting the Parliamentary
Sovereignty which is absolute in some respect. This aspect of judicial review is not dear to the
Conservatives of the Nation as one of their major point in the 2004 manifesto prior to election
was repeal of Human Rights Act, 1998. This issue is still a part of ongoing debate in England
where Tories want to scrape off the Act and introduce Bill of Rights. On the other hand the
Labour Party and the Liberal Democrats are in favor of the Act as it stands, as they are of the
belief that the Act serves the purpose of Bill of Rights and is essentially the same thing with a
different name. Moreover they want to increase the scope of the Act, so it can lead to a Written
Constitution. Leaving the political views aside, even the judiciary is not in complete favor of
moving away from the concept of Parliamentary Sovereignty as can be seen through the
majority opinion in the Fox Hunting Case. As the belief is that supremacy of Parliament is one of
the pillars of modern constitution that has been completely accepted by the courts. Lord
Carswell opines that “I do not, and I have no doubt your Lordships do not, have any wish to
expand the role of the judiciary at the expense of any other organ of the State or to seek to
frustrate the properly expressed wish of Parliament as contained in legislation.” [14] This opinion
was in fact reiterated by various other Judges. Thus there is a clear divide that is present within
judiciary itself as regards the concept of judicial review as it exists today and an increase in its
scope. It might still be early to decide the impact on the judiciary and the Parliament, but it can
easily be said that the orthodox view of absolute Parliamentary Sovereignty cannot survive in
the modern times when every individual is concerned with the human rights and fundamental
rights.

Procedural steps of judicial review

Challenges made via judicial review are limited to decisions made by public bodies[11] on
matters of public law. For example, a local authority making a decision on local housing using
the powers granted to it by an Act of Parliament. This means that issues between private parties
are excluded from JR; this serves the aim of ensuring that administrative courts does not
operate beyond its remit. Yet, by virtue of the fact that ‘public law is about the restrain of abuses
of power,[12] and protecting the citizen from the arbitrarily use of power, judicial review is
extended to certain non-governmental corporations performing a function which can be
classified as public.
To preserve administrative expediency and the efficiency and effectiveness of government, and
in order ‘to prevent abuse by busybodies, cranks and other mischief makers . . .’[13] those
wishing to rely on Judicial Review to challenge decisions of public bodies must have standing,
that is sufficient interest in the matter.[14] Further, the party challenging the decision must act
promptly, without undue delay and within a maximum of three months of the decision being
made.[15]
Further limits to the availability of judicial review are introduced by Parliament itself, which may
attempt to limit or exclude the effect of judicial review by drafting clauses within the statute
ousting the power of the courts to challenge decisions made by public bodies. Further, time
limits are imposed on judicial reviews by means of including a partial ouster clause
This is a clear attempt by Parliament, the majority of which is represented by the executive, to
stop the judiciary from exercising their inherent jurisdiction to uphold the rule of Law, and is in
breach of the separation of powers. So in order to allow the courts to preserve their power and
safeguard the citizens from potential unfair decisions, the courts decided that these clauses
have no power to oust their inherent jurisdiction to review void decisions.[16] The courts
therefore, will ignore the clause until the decision has been assessed; only then it can be
applied to valid decisions. And the operation of partial ouster clauses will be valid only on
grounds of administrative expediency.[17]
Although ouster clauses have the effect of excluding judicial review, the approach of the courts
to them, that is to fail to give effect to them arguably ‘amounts to outright disobedience to
Parliament’.[18] However, it is hard to accept that Parliament may want to retain the right to
arbitrary powers for unfair and irrational purpose.
Substantive and procedural breaches

It is obvious that criminal procedures are different from civil procedure and in the following
paragraphs I will state the difference between these procedures and give some examples in
order to support my point of view. In criminal matters if individual violate the law action will be
taken by state against individual. In criminal procedure the person who commit crime will be
punished such as fine, probation time in jail. In civil matter, the debate is between two or more
people and those people individuals, businesses or government agencies. In general, the result
of this type debate is a reward of money I mean money will be paid by one party to the other in
this case loser pays that money. In a civil matter, a judgment does not include the obligation of a
criminal sentence. [10] For instance, in England if someone defines as a defendant, English
criminal court can force the person who commit the crime to pay fine as a punishment and he or
she may have to pay the legal cost of the action. Nevertheless, the victim of a crime pursue his
claim for damages in a civil, not a criminal action. In France, a person who suffer from crime
may be rewarded damages by a criminal court judge. In criminal procedures the person who
commit a crime risks not only to pay financial penalties but also will be sent to prison and this
system is higher then civil one. According to online encyclopedia “In a criminal case a crime
cannot be proven if the person or persons judging it doubt the guilt of the suspect and have a
reason for this doubt. But in a civil case, the court will weigh all the evidence and decide what is
most probable.” (encyclopedia.thefreedictionary.com 2010) The evidence in civil action is more
necessarily acceptable then the evidence from in criminal trial. For instance, the person who
injured from road accident does not have benefit if the driver who injured him or her is found
guilty of careless driving crime. He has to prove his case in civil action even he might be able to
prove his civil case even the driver found not guilty in the criminal trial. [11] Also I would to state
that the rules of civil procedure are different than that of criminal procedure as proceedings are
different.

Parliamentary privilege

The term parliamentary privileges is used in Constitutional writings to denote both these types of
rights and immunities. Sir Thomas Erskine May has defined the expression ‘Parliamentary
privileges’ as follows:
The sum of the peculiar rights enjoyed by each house collectively is a constituent part of the
High Court of Parliament, and by members of each house of parliament individually, without
which they cannot discharge their functions, and which exceed those possessed by other
bodies or individuals.
Thus, privilege, though part of the law of the land, is to a certain extent an exemption from the
general law. Certain rights and immunities such as freedom from arrest or freedom of speech
belong primarily to individual Members of each House and exist because the House cannot
perform its functions without unimpeded use of the services of its members. Other such rights
and immunities such as the power to punish for contempt and the power to regulate its own
constitution belong primarily to each House as a collective body, for the protection of its
Members and the vindication of its own authority and dignity Fundamentally, however, it is only
as a means to the effective discharge of the collective functions of the House that the individual
privileges are enjoyed by Members.
When any of these rights and immunities is disregarded or attacked, the offence is called a
breach of privilege and is punishable under the law of Parliament. Each House also claims the
right to punish as contempt’s actions which, while not breaches of any specific privilege,
obstruct or impede it in the performance of its functions, or are offences against its authority or
dignity, such as disobedience to its legitimate commands or libels upon itself, its Members or its
officers.”

Boundaries between private and public law

It is not easy to give a simple one sentence definition of law-however; legal theorists
have tried to provide such a definition. John Austin, writing in the early nineteenth century,
defined law as being command issued from a superior (the State) to an inferior (the individual)
and enforced by sanctions. This definition, however, does not truly apply to regulatory law such
as that setting out how a will should be made: or does it cover the concept of judicial review,
where individuals may challenge the „command‟ made by a Minister of State. Austin was writing
at a time when the law was much less developed than it is today, so it not surprising that his
definition does not cover all types of law today.
Sir John Salmond defined law as being „the body of principles recognized and applied by
the state in the administration of justice‟. This is a much broader definition than Austin‟s and is
probably the nearest that one can get a workable „one sentence‟ definition. Law could also be
described as a formal mechanism of social control. It is formal because the rules set down in the
law can be enforced through the courts and legal system, while in a broad sense all law could
be
said to be involved in some area of social control.
Private law regulates relationships between people, organizations, and companies.
Examples include contract, tort, land, company, and employment law. Public law, on the other
hand, regulates t he relationships between individuals (and organizations) with the state and its
organs. Examples include criminal and immigration law and human rights-related matters.
Broadly speaking, private law is an umbrella term for all areas of law that are essentially
horizontal in nature, whereas public law is the term that covers all areas of law that bring us into
contact with state power and its application.

Rule of law

The Rule of Law is a fundamental doctrine encompassing the UK constitution; it exists arduous
to define due to its significant nature of acquiring differing meanings to various groups and
institutions.

Natural theory of law

The theory of Natural Law was put forward by Aristotle but championed by Aquinas (1225-74).Â
 It is a deductive theory – it starts with basic principles, and from these the right course of
action in a particular situation can be deduced.  It is deontological, looking at the intent
behind an action and the nature of the act itself, not its outcomes.
Traditional natural law is based on value judgements, which emanate from some absolute
source e.g. God’s revealed word. However the term “natural law” lacks a precise definition, and
there is “very little agreement, even among experts or proponents of natural law theory about its
application to specific, complex, moral, or legal issues”. [1]
The unwritten body of universal moral principles that underlie the ethical and legal norms by
which human conduct is sometimes evaluated and governed. Natural law is often contrasted
with positive law, which consists of the written rules and regulations enacted by government.
The term natural law is derived from the Roman term jus naturale. Adherents to natural law
philosophy are known as naturalists.

Positive theory of law

Positivism is from the Latin root positus, which means to posit, postulate, or firmly affix the
existence of something. Legal positivism is a school of jurisprudence whose advocates believe
that the only legitimate sources of law are those written rules, regulations, and principles that
have been expressly enacted, adopted, or recognized by a governmental entity or political
institution, including administrative, executive, legislative, and judicial bodies. The basic
question to be asked when talking about this theory is “What is law?” Is it written? Where does it
come from? Legal positivism is a theory which answers these questions.
Legal positivism is the legal philosophy which argues that any and all laws are nothing more and
nothing less than simply the expression of the will of whatever authority created them. Thus, no
laws can be regarded as expressions of higher morality or higher principles to which people can
appeal when they disagree with the laws. It is a view that law is a social construction. The
creation of laws is simply an exercise in brute force and an expression of power, not an attempt
to realize any loftier moral or social goals. Therefore, from a positivist perspective, it can be said
that “legal rules or laws are valid not because they are rooted in moral or natural law, but
because they are enacted by legitimate authority and are accepted by the society as such”.
Advantages and disadvantages of the ‘’ first past the post’’ system.

Advantages of FPTP

First Past The Post, like other plurality/majority electoral systems, is defended primarily on the
grounds of simplicity and its tendency to produce winners who are representatives beholden to
defined geographic areas and governability. The most often cited advantages are that:
▪ It provides a clear-cut choice for voters between two main parties. The inbuilt disadvantages
faced by third and fragmented minority parties under FPTP in many cases cause the party
system to gravitate towards a party of the ‘left’ and a party of the ‘right’, alternating in power.
Third parties often wither away and almost never reach a level of popular support above which
their national vote yields a comparable percentage of seats in the legislature.
▪ It gives rise to single-party governments. The ‘seat bonuses’ for the largest party common
under FPTP (e.g. where one party wins 45 per cent of the national vote but 55 per cent of the
seats) mean that coalition governments are the exception rather than the rule. This state of
affairs is praised for providing cabinets which are not shackled by the restraints of having to
bargain with a minority coalition partner.
▪ It gives rise to a coherent opposition in the legislature. In theory, the flip side of a strong
single-party government is that the opposition is also given enough seats to perform a critical
checking role and present itself as a realistic alternative to the government of the day. It
advantages broadly-based political parties. In severely ethnically or regionally divided societies,
FPTP is commended for encouraging political parties to be ‘broad churches’, encompassing
many elements of society, particularly when there are only two major parties and many different
societal groups. These parties can then field a diverse array of candidates for election. In
Malaysia, for example, the Barisan Nasional government is made up of a broadly-based
umbrella movement which fields Malay, Chinese, and Indian candidates in areas of various
ethnic complexions.
▪ It excludes extremist parties from representation in the legislature. Unless an extremist
minority party’s electoral support is geographically concentrated, it is unlikely to win any seats
under FPTP. (By contrast, under a List PR system with a single national-level district and a large
number of seats, a fraction of 1 per cent of the national vote can ensure representation in the
legislature.)
▪ It promotes a link between constituents and their representatives, as it produces a legislature
made up of representatives of geographical areas. Elected members represent defined areas of
cities, towns, or regions rather than just party labels. Some analysts have argued that this
‘geographic accountability’ is particularly important in agrarian societies and in developing
countries.

Disadvantages of FPTP

However, FPTP is frequently criticized for a number of reasons.

These include:
▪ It excludes smaller parties from ‘fair’ representation, in the sense that a party which wins
approximately, say, 10 per cent of the votes should win approximately 10 per cent of the
legislative seats. In the 1993 federal election in Canada, the Progressive Conservatives won 16
per cent of the votes but only 0.7 per cent of the seats, and in the 1998 general election in
Lesotho, the Basotho National Party won 24 per cent of the votes but only 1 per cent of the
seats. This is a pattern which is repeated time and time again under FPTP.
▪ It excludes minorities from fair representation. As a rule, under FPTP, parties put up the most
broadly acceptable candidate in a particular district so as to avoid alienating the majority of
electors. Thus it is rare, for example, for a black candidate to be given a major party’s
nomination in a majority white district in the UK or the USA, and there is strong evidence that
ethnic and racial minorities across the world are far less likely to be represented in legislatures
elected by FPTP. In consequence, if voting behaviour does dovetail with ethnic divisions, then
the exclusion from representation of members of ethnic minority groups can be destabilizing for
the political system as a whole.
▪ It excludes women from the legislature. The ‘most broadly acceptable candidate’ syndrome
also affects the ability of women to be elected to legislative office because they are often less
likely to be selected as candidates by male-dominated party structures. Although the evidence
across the world suggests that women are less likely to be elected to the legislature under
plurality/majority systems than under PR ones, some variation resulting of data from two studies
by the Inter-Parlamentary Union (IPU) in 2004 and 2013 is worth mentioning: whereas women
had representation to 15.6% of the seats of the low chambers in the different parliaments in
2004, this percentage amounts to 20.1% by 2012. Moreover, and here is where we find the
most representative variation, a comparison made in 2004 in established democracies showed
that the average of women in the legislatures of countries with majority systems was 14.4%,
while the quantity increased to 27.6% in countries with proportional systems, almost the double;
in this same comparison made in 2012, the gap decreases slightly as the average of women in
legislatures with majority system is 14% and 25% in proportional systems. In part, this may be
explained by the implementation of policies that have regulated or promoted gender equity
within countries, such as having a certain amount of seats reserved for women.
▪ It can encourage the development of political parties based on clan, ethnicity or region, which
may base their campaigns and policy platforms on conceptions that are attractive to the majority
of people in their district or region but exclude or are hostile to others. This has been an ongoing
problem in African countries like Malawi and Kenya, where large communal groups tend to be
regionally concentrated. The country is thus divided into geographically separate party
strongholds, with little incentive for parties to make appeals outside their home region and
cultural–political base.