#16720 - Parliament - Constitutional Law

Parliament

Main notes:

1. Parliamentary structure

   1. Elected house of commons & unelected house of lords

      1. Divided into frontbenches (those with ministerial positions) and backbenches (those without)

   2. There is a convention that a vote of ‘no confidence’ in the government triggered the dissolution of Parliament and hence a GE

   3. Elections held every 5 years, however, within that period, the PM are able to call an election whenever they wanted until 2011. Thereafter, the Fixed-term Parliaments Act 2011 provides that an early election can only be held if either 2/3 of the MPs support it or a vote of no confidence passes by simple majority and a new coalition cannot be formed within 14 days (early election is no longer immediate following the vote since other parties will have the option of trying to form a new government)

   4. Vote of no confidence & fixed terms are incompatible – the ruling party, with a majority, will be able to engineer such a vote to get an early election

2. Democracy in general

   1. Fundamentally, a system in which people have a decisive say over how and by whom they are governed – democratic countries embrace the notion that no particular individual or group has any inherent right to govern

   2. Principal justifications:

      1. A normative view of the human condition – Recognition of the autonomy and moral worth of individuals, a consequence of which is that everyone should have the right to make their own decisions as to how they live their lives – manifested in civil/human rights given such as FoS/E/R/M, etc. When the freedom of one person to act transgresses the freedom of another, democracy requires it be collectively resolved in a way that is recognized to be legitimate. Giving everyone a voice ensures that their interests are not overlooked

      2. Encouragement of public participation and civic discourse in the business of governance leads to the intellectual flourishing of individuals and the development of moral capacities. Embracing the wisdom of the crowd leads to better results than rule by the few

   3. Representative & participative democracy

      1. Modest form of participative democracy might involve ensuring open and continuous dialogue – e.g. obliging the government to consult the public and take its views into account & govt supplying extensive information to the public

      2. In the UK & many other countries, the basis is representative democracy but with elements of participative democracy (referendums, + ci)

3. Democracy in the UK – the House of Commons

   1. GEs determine the make up of both HoC and the executive government as government ministers are drawn from the party (or a coalition) with a majority in HoC

   2. UK citizens, citizens of Ireland and certain commonwealth citizens can all stand for elections to the HoC and vote in parliamentary elections (subject to certain exceptions). However, some people are expressly disqualified from standing for HoC elections – many judges, HoL, civil servants, members of the armed forces, etc.

      1. Historically, only a minority of landowners were allowed to vote. This was changed in the Representation of the People Act 1918 which also empowered women to vote

   3. Prisoners are not allowed to vote, but this was held by the ECtHR in 2006 to constitute an indiscriminate violation of the right to vote in, and stand for, elections to national legislatures. The court required UK to comply with ECHR, but successive governments have delayed implementation of the ruling

   4. Voting system: FPTP – Problems: It challenges the idea that everyone’s vote should matter equally – 1. For in close electoral contests they matter more than when the result is a foregone conclusion, 2. that the only thing that matters is win/loss, not the margin by which it happens 3. Gerrymandering might be a problem, but the Parliamentary Constituencies Act 1986 attempts to prevent this by providing for the independent determination of constituency boundaries. Boundary commissions for E, NI, S, W are chaired by an electoral commissioner who is appointed by the Queen on the rec of HoC. They cannot be members of a current or recent political party.

   5. FPTP benefits: it delivers a clear majority for a party much more often than alternatives, resulting in stable government

   6. PR as an alternative – people vote for a party rather than individual candidates. However, there is no link between MPs and constituencies, and profusion of small parties is encouraged that results in fragile coalitions

   7. AV as an alternative – however, this is still a constituency system [is it necessarily? What about party based?] Advantages: Every constituency member gains majority acquiescence, tactical voting is no longer necessary, more likely to have stable govt. Disadvantages: Opposition party may become smaller, and it is still not proportional. A referendum on AV was held in 2011, by defeated by 67.9% majority that wish to retain FPTP

   8. In 1997, Tony Blair created the Jenkins Commission to review the voting system – recommended that 80-85% of seats in HoC filled by AV elected MPs, and the rest by party list system

   9. Issue of recalling MP by forcing a by-election in the event of corrupt or unethical behavior. In the aftermath of the 2009 expense scandal – Coalition govt proposed that a MP can lose his/her seat if guilty of serious wrongdoing and 10% of voters sign a petition. 3 alternative conditions: MP is convicted of an offence and receives a custodial sentence; following a report from the Committee on Standards, the MP is suspended from HoC for >10 sitting days; conviction of providing false or misleading information for allowances claims. The recall mechanism was enacted subsequently in the MPs Act 2015

   10. Political parties – most politicians behave tribally, expressing the views and voting in ways that tow the party line. They are effectively not independent representatives. Political parties are both inevitable and desirable (Elliot & Thomas), the first because like minded people tend to come together, & the latter because it provides a meaningful way of influencing membership of the govt – if there are 650 independent candidates, politics would be unpredictable and ineffectual

   11. 185-189

4. Democracy in the UK – the House of Lords

   1. Composition

      1. 701 life peers – the PM gets to decide how many new peers there should be from each party in any given year – the problem arises that the govt can manipulate Lords membership and offer peerage for political loyalty and favours

      2. 88 hereditary peers (reduced from 700 – hereditary peers used to be the majority until HoL act 1999 because it is considered an anachronism – since then, no party has held a majority in HoL)

      3. 26 Church of England bishops and archbishops – although it is recognized that there is a need to include religious, moral and philosophical views, it is criticized that this does not reflect the religious diversity that exists in society

   2. Functions

      1. HoL functions as a revising chamber capable of providing scrutiny of legislation and executive action in a manner that is different from those found in HoC – Royal Commission on HoL reform took the view that it should complement rather than replicate HoC and should be ‘distinctively different’

   3. HoL is less powerful than HoC

      1. Under the Salisbury convention, HoL should not reject a govt Bill that implements a manifesto pledge and for which the govt therefore has an electoral mandate – rationale being that HoL is undemocratic by nature

      2. Legal restriction introduced by Parliament Acts 1911 (amended by Parliament Acts 1949) which gives the HoL –

         1. 1 month delaying power on money Bills, e.g. those that the speaker certifies deal with taxation and govt spending)

         2. Effectively 1 year delaying power for non-money Bills – if in two successive sessions the HoL rejects a non-money Bill that has been approved by the Commons, it may be enacted nevertheless

         3. One exception – 1911 Parliament Act states that it cannot be used in respect of “a Bill containing any provision to extend the maximum duration of Parliament beyond five years” – held in Jackson that this is only possible with the consent of the HoL

      3. In practice, however, govt defeats in the HoL are relatively common – 99 in 2010 to 2015, effected by a combination of governing party rebels, opposition parties, independent crossbenchers, etc. and such defeats are not routinely overturned in the HoC

   4. Idea of complementarity:

      1. Whereas HoC is a political chamber, HoL is apolitical. No political...