EVTV the UK consitution should not be condified (30) Flashcards
Elective dictatorship is a issue
Codification could remove parliamentary sovereignty, they would no longer be able to legislate and create statue law that removes previous statue law. This would remove the idea of a ‘elective dictatorship’ where a typical Westminster system state’s parliament is dominated by the government of the day. It refers to the fact that the legislative programme of Parliament is determined by the government, and government bills virtually always pass the legislature because of the nature of the majoritarian first-past-the-post electoral system. SYNOPTIC LINK.
This is further compounded by the absence in the UK of a codified constitution, which means that this tendency towards executive dominance is added to by the Salisbury Convention and the Parliament Acts of 1911 and 1949 which restrict the ability of the House of Lords to block government initiatives.
For example Rishi Sunak in January of 2021 blocked legislation passed by the Scottish Parliament that would make Scotland the first part of the UK to introduce a self-identification system for people who want to change gender. The government used the so called ‘nuclear option’ by blocking the bill from going for Royal Assent. Royal assent is a form of common law and part of the Monarchs Royal Prerogative powers.
HM Treasury v Ahmed 2010, The treasury imposed an asset freezing order on three suspected terrorists. The UKSC ruled that the government had ‘exceeded their power’ and the rule of law and the United Nations Act 1946. Within a week although the Brown government legislated in parliament to allow them to freeze the assets. The Terrorist Asset-Freezing Act 2010.
Laison committee
Amber Rudd
Furthermore the Parliament Act has only been invoked 4 times since its introduction in 1949, most recently in 2005 (the hunting act)
Elective dictatorship is not a issue
A uncodified constitution allows for strong and effective government, although the doctrine of parliamentary sovereignty gives parliament sovereignty, fusion of powers effectively allows the governing party to assuming this power. The governing party therefore has considering power over the legislative processes and can implement many of its policy and political objectives.
The Illegal Migration Bill 2023 to prevent and deter unlawful migration and faced strong opposition in the UK, In two unusually direct interventions in a legislative process, the Council of Europe Commissioner for Human Rights, Dunja Mijatović, said the Bill creates ‘clear and direct tension with well-established and fundamental human rights standards’. It could be argued that the passage of this bill has allowed the conservative government to follow through on policy in their manifesto.
Furthermore a ‘elective dictatorship’ is caused by a number of factors and not just a uncodified constitution. For example May was defeated 33 times in two years in the house of commons and she lost two votes on her EU withdrawal agreement. With a minority government, this proves that for the elective dictatorship theory to work they must have a majority in the commons.
Radical governments and their policies such as Attlee’s of 1945-51 which set up the NHS and nationalised a wide range of industries, and the Thatcher government of 1979 which introduce privatisation and deregulation in the economy.
May was also defeated in the UKSC, in R v secretary of state for the EU the UKSC ruled that the government could not trigger article 50 without parliament approval. Despite a uncodified constitution it is not always possible for the sitting government to control parliament and therefore use its sovereignty to its advantage.
Flexible and easy to change
One of the most important strengths to the UK constitution is that it is flexible and easily changed, because of statue law it is much easier to pass a act in parliament than it is to for example propose a amendment to the US constitution. It can therefore adapt and respond to change to remain relevant and up to date.
We saw this in the introduction of devolution in response to Welsh and Scottish Nationalism, the two national parties Plaid Cymru and the SNP grew in significance in the 1970s and by 1999 successful referendums were held pushed by labours election in 1997 to establish elections in the Scottish and Welsh parliaments. This would arguably not been possible with a codified constitution.
Therefore the constitution can modernise, respond the wills of the people and become a more democratic society.
Flexibility can be dangerous
There is much criticism that the current uncodified nature of the constitution promotes uncertainty and flexibility is not necessarily a positive trait of the constitution.
The job of the constitution is to tell the government where their power is and exactly what they are able to do as a result. Therefore confusion surrounds many constitutional rules as they are not clear, this applies particularly for the constitution unwritten elements such as convention.
For example before the 2010 election the House of Commons justice committee met constitutional experts and the cabinet secretary to discuss the issue of a ‘caretaker government’ and should there be any rules set out in convention on the matter.
This led to the publication of convention ‘period of restrictions on government activity’ on matter such as run up to elections, periods if no clear result had been found and if there was loss of confidence midterm.
In 2010 the scenario of a Boris Johnsons resignation had not been envisioned, since there was not vote of confidence the governed can still govern, huge questions and uncertainty over Boris navigating a caretaker period after he had resigned.
Unlawful prorogation of parliament?
It protects human rights well
The current uncodified constitution allows for effective protection of individual and Human rights and therefore should not be codified.
Statue Law, Human Rights Act 1998 incorporated the rights set out in the ECHR into UK law. The UKSC has the power to declare government actions or legislation incompatible with this statue law and therefore look to protect rights.
AM Zimbabwe v Secretary of state for the Home department, this case referenced statue law, or more specifically article 8 of the ECHR preventing deportation of a foreign citizen who would not be able to access medication which he could in the UK, this would subject him to inhuman degrading treatment or punishment under article 8.
R (Unison) v Lord Chancellor, the court ruled employment tribunal unlawful because they prevented fair access to justice, the government was forced to stop charging workers up to £1,200 for access to an employment tribunal. In this case the government upheld the rule of law (A key part of the UKs uncodified constitution) and the Tribunals, Courts and Enforcement Act 2007
A Uncodified constitution would take power away from a elected government and legislative body, and move it towards a unelected judicial body, that does not have sufficient legitimacy. Judges are chosen by a independent selection commission and have no relation to the vote.
A uncodified constitution also allows for rights to evolve over time, this could be a failure in a uncodified constitution. For example in the US constitution was written in 1787 and therefore has no explicit protection of abortion or LGBTQ+ rights. A unentrenched constitution allows for change, and new rights can be protected by the introduction of new statue law.
For example the UK Parliament passed the Gender Recognition Act 2004, which effectively granted full legal recognition for binary transgender people. In the UK statue law means that evolving individual rights can be easily protected, and there is no entrenched document that is difficult to change.
Human rights is not protected
The Human Rights Act 1998 is not entrenched, this means that it can be removed by a act of parliament, due to parliamentary sovereignty and the nature of the uncodified constitution.
The current Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice Dominic Raab has publicly shown his dislike towards the Human rights Act 1998 and shown intent to remove it, he claimed removal of such statue law would counter ‘wokery and political correctness’ and expedite the deportation of foreign criminals. Either way the removal of such document throws into question whether out human rights will effectively be protected in a uncodified system.
Furthermore because the Human Rights Act and other statue law is uncodified it means that parliament can overrule decisions through further statue law.
Judges being separate from the executive and legislative, and not being held accountable to peoples votes upholds independence and neutrality, therefore they do have a certain type of a legitimacy to protect peoples rights under a codified constitution.
