Constitutional Reform since 1997 (2)
Political Studies: Edexcel A Level, topic 8.2.2
Human Rights Act
The 1998 Human Rights Act (HRA) incorporated the European Convention on Human Rights (ECHR) into UK law.
Human Rights Act
- The 1998 Human Rights Act (HRA) incorporated the European Convention on Human Rights (ECHR) into UK law.
- The freedoms contained in the ECHR include the freedoms to life, to a fair trial, of expression and from discrimination among many others.
- The ECHR requires states to hold free and fair elections, abolish the death penalty, preserve family life and give foreigners the same rights as all citizens in a state.
HRA: Supreme Court
- The Human Rights Act (HRA) means that any public body cannot act in a way that would break with the convention and that the judiciary must make rulings that are compatible with it.
- The Supreme Court can issue a Declaration of Incompatibility where primary legislation conflicts with the HRA, but cannot strike it down due to parliamentary sovereignty. Secondary legislation can be disapplied if incompatible.
Human Rights Act did enough
- The fundamental rights of all British Citizens are very clearly laid out in one easily accessible piece of legislation.
- There was an 8-fold increase in the number of human rights cases and claims brought to the High Court after the Human Rights Act was passed.
More reform is needed
- Some Conservatives resent the link to the European Court of Human Rights at Strasbourg and want to replace the HRA with a British Bill of Rights that defines certain rights more narrowly.
- Despite the HRA, it is possible for the government to restrict the human rights of individuals.
- In 2005 the government introduced control orders, allowing the authorities to restrict the movements of suspected terrorists.
- In order to do this, they simply had to declare an exemption from Article 5 of the HRA for those who fall under suspicion.
Constitutional Reform Act: Supreme Court
The 2005 Constitutional Reform Act created a separate Supreme Court as the highest court of appeal in the UK. Before this, the UK's senior judges sat in the House of Lords (known as the Law Lords).
Judicial reform
- The 2005 Constitutional Reform Act has three major effects:
- The Act separated the executive and the judiciary.
- The Act formed a Supreme Court which separated parliament from the judiciary.
- The Act reformed the process for senior judicial appointments.
Lord Chancellor
- The Act split the powers of the Lord Chancellor into 3 different roles as previously the holder of this position had been a member of the Cabinet, speaker of the House of Lords and head of the judiciary with the power to appoint judges.
- Now the Lord Chancellor is simply a government role with the Lord Speaker presiding over the House of Lords and the Lord Chief Justice as head of the judiciary.
- These reforms made the judiciary more independent.
Supreme Court
- The Supreme Court was formed to replace the ‘Law Lords’ as the UK’s highest court of appeal.
- This reform separated parliament from the judiciary.
- Justices must retire at 75, following the Public Sector Pensions and Judicial Offices Act 2022, which raised the previous mandatory retirement age from 70.
Appointments
- Prior to the reforms, senior judicial appointments were made by the prime minister and Lord Chancellor, who are political figures.
- The Act established a Judicial Appointments Commission (JAC) to recommend candidates based solely on their legal qualifications and ability.
- The JAC recommends candidates to the Lord Chancellor, who makes the final appointment. The Lord Chancellor may request reconsideration once, but cannot appoint outside JAC recommendations.
Reforms did enough
- There is now a clear separation of the 3 branches of government, which prevents abuse of power.
- The judiciary is physically and constitutionally separate from the executive and legislature, allowing for greater judicial independence, strengthening the rule of law.
More reform is needed
- The Supreme Court is much weaker than its counterparts in most other liberal democracies (with codified constitutions). It cannot strike down legislation, as that would weaken (or perhaps destroy) parliamentary sovereignty.
- In the US, impeachment resolutions have been tabled against justices, illustrating stronger accountability mechanisms.
- The composition of the Supreme Court is not very diverse; however, neither is the group of well-qualified, experienced judges from which they have to choose their ranks and this is a problem in the judiciary as a whole.
Electoral Reform
Electoral reform has remained an important issue in UK politics for many years including around voting age and the electoral system.
Electoral system
- New Labour introduced proportional representation for elections to the Scottish Parliament, Senedd Cymru and Northern Irish Assembly, and formerly the European Parliament.
- The additional member system (AMS) remains the system for Scottish Parliament elections.
- The Senedd Cymru (Members and Elections) Act 2024 replaced AMS with a closed list proportional system (seats allocated using the D'Hondt formula) for Senedd elections from 2026.
- The single transferable vote (STV) was used for the Northern Irish Assembly elections.
Electoral system: AV
- In 2011 a referendum was held on introducing the alternative vote (AV) system for general elections to parliament at Westminster.
- The referendum rejected the proposed electoral reform and a first past the post system (FPTP) remains the system used.
Voting age
- The voting age for UK citizens is 18 for UK general elections.
- In the 2014 Scottish independence referendum, the voting age was lowered to 16 for the first time.
- Scotland and Wales already allow 16–17-year-olds to vote in devolved/local elections.
- The Representation of the People Bill 2024–26, at its second reading in March 2026, proposes to extend the vote to 16 and 17-year-olds for UK Parliament elections, potentially enfranchising approximately 1.7 million young people.
Test yourself on Constitutional Reform since 1997 (2)
What do some Conservatives want to replace the Human Rights Act with?
Why might more Supreme Court reform be needed?
Which role was split into three different positions in parliament by the Constitutional Reform Act?
What was the voting age for the 2014 Scottish independence referendum?