(3) Constitutional Checks and Balances

Question 1

Can the UK constitution be said to operating under a checks and balances system?

Answer 1

A principled separation of functions is difficult in the UK due to Parliamentary Sovereignty, however, in practice there is seemingly an established system of checks and balances. Governmental powers in the UK are, therefore, seemingly subject to constraints on account of the existing constitutional arrangements.

Question 2

What are the two key ways in which the UK government bodies serve to check and balance one another?

Answer 2

1. Parliamentary controls on the executive

2. Judicial Review

Question 3

How do Parliament check the power of the executive in the UK?

Answer 3

1. The executive cannot enact primary legislation without the agreement of Parliament, legislative proposals must first be put before Parliament and then granted Parliamentary endorsement.
2. Parliamentary questions and debates and the activities of Parliamentary committees hold the executive to account for the discharge of its functions.
3. The doctrine of individual ministerial responsibility constitutionally obliges ministers to explain the actions of their departments and may, in some circumstances, require their resignation.

Question 4

What is meant by an ‘elective dictatorship’?

Answer 4

This means that strong governments, with large majority votes, will be a strong position to pass various motions and are unlikely to face significant opposition in the form of Parliament. In such situations the check by Parliament on the power of the executive may be reduced or lost altogether.

Question 5

How does judicial review act as a check to the power of the executive branch?

Answer 5

This process allows the courts to review the legality of the exercise of administrative discretion. Traditionally challenges are made on the grounds of illegality, irrationality or procedural impropriety. Furthermore, Article 6(1) of the HRA makes it unlawful for public authorities to act in a way incompatible with Convention Rights given effect under that Act.

Question 6

How is the check of judicial review perhaps somewhat limited?

Answer 6

It should, however, be noted that Judicial Review is primarily a procedural rather than substantive check on the power of the executive – the merits of the decision are not reviewed. Nor may the courts replace the decision of the public authority with their own – they do not have the powers of an appeal.

Question 7

What other checks to the power of the executive may the judiciary exercise?

Answer 7

While Acts of Parliament cannot be struck down by the courts there are very limited exceptions typically involving the disapplication by courts of Acts of Parliament only as far as is necessary to resolve an inconsistency between domestic and EU Law. Alternatively, instances may arise in which courts declare Acts of Parliament incompatible with the Convention Rights as introduced by the 1998 HRA – such a declaration, however, does not affect the ‘validity, continuing operation or enforcement’ of the provision(s) of which it is made.
The courts may also exercise a check to the power of parliament through statutory interpretation. They may for instance, utilise the requirement of express words to override a constitutional right existing at common law.