#19894 - Legal And Political Constitutionalism - Constitutional Law

Explain what is meant by ‘political constitutionalism’ and ‘legal constitutionalism’. Does either of these terms accurately describe the nature of the United Kingdom’s constitutional arrangements?

Basics: Legal and Political Constitutionalism

1. Governmental Accountability

POLITICAL:

• Constitution is a set of political relationships and understandings – for example Wade thinks parliamentary sovereignty is just a political fact, not secured by law. Goldsworthy also believes the constitutional arrangements we have are just political norms.

• In democracy, the political process is the best at guarding against unconstitutional behaviour. As judges lack democratic legitimacy, they should be limited in their ability to scrutinise the actions of the elected authorities (consider – no judicial review?).

  • Elections alone can’t secure accountability, but things like public inquiries and parliamentary committees help the public judge whether the government is being proper, with that decision informing their vote at the next election. Possible issue – speed of accountability? Gvt can do what it wants for 5 years until the next election unless a no confidence motion is voted for. No confidence: regulates legislature’s relationship with gvt. But if the two are political, is there a real independent relationship? Need a simple majority.

LEGAL:

• Judicial system better at holding gvt to account.

• Philosophical argument: moral principles of natural ‘law’ should never be contravened. If Parliament passes a law doing so, it should not be enforced b courts. Therefore, courts are ultimately responsible for ensuring politicians behave, both in the gvt and parliament. No confidence.

• Practical argument: power between executive and parliament is fused. Has to be a separate, independent body to regulate the two. Can the political branches regulate themselves? The public don’t seem to think so.

2. Minority opinion

LEGAL:

• Political branches act on what’s popular, not what’s right. So if the majority wants to trample on the rights of the minority, there is no political mechanism here to stop them. Judges are needed to step in here. They need to be uninfluenced by public opinion and independent to protect the rights of everyone.

POLITICAL

• Law isn’t a substitute for politics. An undemocratic institution cannot regulate what is right and wrong. Disenfranchises ordinary people and ignores representation and political equality in resolving issues about rights (assumes rights can all be changed?). giving judges lots of power to ignore laws breaching rights is aristocratic.

3. On Conventions

There aren’t distinctive positions on this. Many conventions deal with things that probably shouldn’t be touched by the courts – ie forcing ministers to appear before parliament (I suppose strong legal constitutionalists might argue courts should enforce these things) so they probably shouldn’t be made law. Some conventions have become law though – like the sewel convention (although not technically enforceable) and the fixed-term parliaments act 2011 which formalised the procedure for a motion of no confidence. So do legal constitutionalism and political constitutionalism complement each other here? Does the constitution include judicial oversight of the government with political accountability? Elliot’s response: constitutional principles underpin both legal and political constitutional rules. These principles are upheld by both convention and law. Allan: you can’t always tell the principle behind a rule/convention, so this doesn’t always work. Elliot: might be iffy for courts to enforce conventions, but doesn’t mean they should ignore the underlying principle and be inclined to enforce that.

4. Judicial Review

Balancing legal accountability with Parliamentary accountability

LEGAL:

• Sedley: democracy best served where minority and individual rights protected from majority’s self-serving interest. If gvt represents majority, court needs to protect these rights from it. Following this argument, it would be acceptable for courts to strike down a ministerial decision (they can do this anyway with judicial review) that allows late-night airport flights, meaning those living nearby are unable to sleep. Courts provide an independent assessment of whether an acceptable balance has been struck between the rights and interests of the minority and majority.

• Ministerial accountability in Parliament is quite weak, so pragmatically, judicial review is needed. Hence a shift from parliamentary to judicial means of controlling the government. It’s less the courts should take up the slack left by Parliament, more they are the only ones left who can. However, this assumes the premise that judicial review should substitute ministerial accountability. Why not have both?

• Are rights political or legal? If they are not clearly one or they other, wouldn’t it be better to have an accountable minister making the decision or an unaccountable judiciary drawn from a narrow socioeconomic/racial background with no democratic credit?

5. Other Aspects

• In political constitutionalism, the legislature holds the most power because it is most electorally representative, therefore it has the most democratic legitimacy. However, this is not true in the UK as the gvt has the most power and fusion makes it hard for parliament to check gvt.

• Legal constitutionalists like separation of power and legal checks and balances.

• Why is political accountability in parliament failing? Government controlling parliament, shift from cabinet gvt to prime ministerial gvt, more ministerial secondary legislation, increase in multi-layered governance (devolution + EU) and crisis of public confidence (Sarah Pearson)

How far is the current constitution legal or political?

Shift to legal: HRA allows courts to declare incompatibility with human rights. Although you could flip this and say this declaration, although powerful, is political as there is no legal onus on parliament/gvt to repeal/amend the law. Sarah Pearson: UKSC more constitutional “if Parliament did the inconceivable, we might do the inconceivable as well!” (Lord Phillips). HRA: domesticated the rights of Europe, more checks on gvt power.

• Exercise of government power and the creation of law is legitimized through parliament elected in the general election

  • People elect members of parliament

  • Parliament holds ministers accountable

  • The role of courts should be fairly limited because judges lack democratic legitimacy

– skepticism towards the judges – because judges have Upper class upbringing – had a strong ideological bias – conservative values – decide against trade unions, demonstrations. Constitutionalism is not left or right

• No matter how democracy is defined judges can never hope to match the legitimacy of

elected politicians

• The political process protects us from politicians who are acting unconstitutionally

  • Answer of political constitutionalists

  • Politicians sense of morality will prevent them from acting unconstitutionally –

  • Parliamentary committees will examine and evaluate the work of the executive

  • Parliament will not support gov policy which is unconstitutional

  • People will vote differently next time

  • Civil disobedience will block grave violations of constitutionality

  • EVAL: not always effective – Nazis, violations of fair trial, women being unable to vote, racial segregation

  • Subsidiarity – if one fails – it will go to the next which will save us

• We should not put our faith in politics

• Based on the idea that the exercise of government power and the creation of law is legitimised through judicial oversight and the respect for rights

  • Parliaments control of government is ineffective

  • Only a state which protects fundamental rights and the rights of minorities can be seen as legitimate

  • The only way how to achieve this is through the principle of the rule of law enforced by the judges

• Is this democratic?

  • Majority of people cannot be trusted to do the right thing – profoundly undemocratic

  • Depends on what we mean by democracy:

• Majoritarian conception – democracy means giving effect to the wishes of the majority of people – 50% plus one person

  • Ignore other interests

  • People COULD recognise others and not ask in self-interest – it is their choice to do that though

• Counter majoritarian conception

  • Democracy means governing society in a way that takes account of everyone interests

  • Proportional representation

  • Important decisions will require more than 50%

  • Limit the power of legislative (parliament) – can’t pass laws that violate human rights. Nullify rules that violent the constitution

• Legal constitutionalism is based on a counter majoritarian view of democracy

  • The role of parliament is to make social and economic policy

  • The role of the courts is the act as a guardian of democracy and rights against the encroachment of the legislature

  • This is how the legitimacy of the exercise of government and the creation of laws is achieved

  • The role of gov is to bring about social good

  • EVAL – may require to overrule what parliament has passed - difficult in a country that is based on parliamentary sovereignty – maintaining strict legal constitutional view is

• Legal constitutionalism:

  • Parliament is unable to hold to executive to account

  • Perceived impartially of judges of the political process but judges are unelected – might have hidden agendas

  • Globalisation and the increased influence of international law

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