Didn’t want to hijack the thread about ex post facto laws, but it raised a point I wanted to discuss. In England/Britain there seem to be two conflicting principles at work: on the one hand, in theory Parliment can pass a law doing anything: authorize summary execution, suspend elections indefinitely, institute a theocracy, grant all MP’s the privilege of droit du seigneur, etc. Yet there’s an extremely strong tradition, expressed in the English Bill of RIghts, against doing any of these things. And this long-standing precedent is respected even though there’s nothing (except laws of Parliment that Parliment could revoke) to support these rights. I guess what I’m asking is, why is the British government so much less despotic in practice than it is in theory?
You have already answered your question: Tradition. Which holds the minds of the voters as well as the pols. Any government that tried any abuse of power too far beyond the pale would immediately face a vote of no confidence, and lose the election thus precipitated. As the pols know this, they do not try to test the boundaries. Certain things are simply Not Done.
There is also a healthy tradition of popular dissent. Take a look at Thatcher’s attempt to impose a Poll Tax for what happens when a British Government goes too far.
And, technically, the Queen could refuse her assent to the bill. That’s also something that falls under the “it’s just not done” category as well.
What’s this “British Law” that you speak of?
U.K. law. “British” is a useful adjective for the country of which the three largest nations are located on Great Britain. True, it disses Northern Ireland, but in point of fact people tend to forget that the Providence Plantations participate in electing Senators, Representatives, and electors to choose the President and Vice President, attributing their voting strength to Aquidneck Island’s old name.
There is the law of England and Wales. There is Scots law. And N Irish law. Hell, even the laws of various Channel Islands and Crown Dependencies. There is no such thing as “UK” Law or “British Law”. Well Immigration law is handled on a UK wide basis and the Island of Great Britain has a common Employment law setup, but these are not what really what you would think of as “UK law”.
To the OP.
The Parliament of the UK consists of three parts, the Commons, the elected part, the Lords, the heredity/ nominated part and the Monarch who assents to all legislation. Unlike the United States, the Lords is (non longer) not a co equal chamber, instead its a revising/reviewing chamber. The Commons is elected and it has pretty much most of the political power. Almost all legislation emnates from the Commons, not the Lords (though there are exceptions). So if the Government of the day (which remember is the one which holds a majority in the Commons) gets through Commons a bill doing the things that you mention. The check is the Lords, a chamber which is unelected and thus not beholden to the transitory whims of the electorate. In the last decade, the Lords has probably done more for Civil liberties than the Commons, usually by throwing out or delaying bills passed by the Commons.
Further you have the Courts, there is an established convention for interpreting statutes that restrict liberties very narrowly and requiring that such actions be justified by those who seek to employ them; no US style deference to the executive here. Finally since 1998, the Human Rights Act has permitted the Courts to declare legislation to be in contravention of the European Convention on Human Rights, and although Courts may not strike legislation down, the mere declaration can add the pressure to the Government to back down. Further, the Courts have also, using the Human Rights Act, shown the inclination to read down (meaning interpreting broadly) statutes which are in contravention, in R v A, the section of the Youth Justice and Criminal Evidence Act 1999 prevented sexual history from being adduced at trial, the Courts held that the Judge retained a residual discretion to permit such evidence in order to preserve the right to a Fair Trial.
So in conclusion, there are checks and balance. Just because these checks and balances are different from those in the US, should not be construed to mean that they do not exist.
Yeah, but that seems so horrible. If something bad happens, the only way to stop it is physical violence.
Could there not be some sort of petitioning system that could then be used to declare a lack of confidence? Or does such exist now but not then?
The English Parliament cannot pass any law it wants, and frequently has to enacts laws it would rather not.
All British (and that includes Scottish) law must comply with he EU directive on humans rights, which means the death penalty is out - there are plenty of others and plenty of cases that are affected, such as the deportation of suspects - this cannot take place to any nation where the death penalty is a possible sentence for the charges that such a deportee may face in the nation requesting their extradition.
Ahem, the concept of popular dissent encompasses far more than violence. True there was a well publicised riot in London following a demonstration, and yes it did have an impact, but it came following a successful non payment campaign, with up to thirty per cent of former rate payers refusing to pay in some Northern areas and many many non violent actions (not confined to demonstrations) all over the country. I myself am a veteran of the campaign but not the riot.
There is another element at play here.
You wonder why we aren’t more despotic or dictatorial? Historically we have been. Pretty much all the alternatives have been tried at one point or another and that is what has shaped our “constitution” such as it is. Trial and error.
Our uncodified constitution is an advantage, I think. As the constitution has evolved over time based on particular popular attitudes and needs, every law that Parliament makes impacts on the functioning of the constitution.
Which is why some people get so frustrated when things like Lords reform don’t happen - because you can’t just change it in isolation: you need to consider the constitution in its entirety.
It’s the constitutional equivalent of the butterfly effect!
A second point: The UK Parliament has been sovereign since the 1690s, and therefore there is asbolutely zero history or conception of a powerful single ruler here - power has always essentially been shared and in commission. Furthermore, while the PM may be a potentially very powerful person, he is only powerful based on his support within the party and support in the country - there is no constitutional definition of his power. There’s a very real check and balance on his power through this party/parliament relationship.
But to BrainGlutton’s point, these checks and balances rest essentially upon tradition, and could be abrogated by Parliament (and more specifically, by the Commons). Many such changes would be politically difficult, but not in any strict sense illegal.
Of course, this is true in the US as well. The structure of the US government and its relationship to the states and the people has changed enormously since its beginnings, sometimes by formal amendment but more often by evolutionary change that the existing power structures have accepted as being in accordance with law. And it’s theoretically possible that a determined and popular political faction could pack the elected branches and the court to an extent that despotic powers would be enacted and upheld, and such changes would be strictly legal.
Ultimately, any democratic system rests upon a combination of law and political tradition, and the lines between those concepts blur at their deepest points.
Do not underestimate the power of ‘tradition’ which in the UK is often the product of precedent.
Legal systems rely on it all the time, in the US as much as anywhere else.There does seem to be a US-centric argument about constitution which is not really helpful when discussing the consitution of other nation states.
Just because our mechanisms do not resemble yours at the surface level, there is almost always some analogue that acts upon the legislature with a similar effect.
Prob helps to not elect nutters to Parliament in the first place.
If, however, the choice you are presented with is Nutter A vs. Nutter B, then we can see the underlying issue is the who’s and how’s of election candidates - this is not an issue the USA is unfamiliar with. Fortunately, the funding of election campaigns is very well managed and oversight is transparent.
I do agree that the back stop to all this is the one provided by constitutional checks and balances e.g QE2; any Prime Minister or governing political party holding ambitions of re-election does not want to be seen to be disrespecting that office of State and/or the occupant. Especially the occupant.
So we can act according to current situation instead of what was appropriate, say, 221 years ago. Our system might seem strange to you, but to me the US Constitution seems to have attained an almost quasi-religious status, as if the only important issue is what the authors intended and not why or even if that should be the case.
Well, the thing is it usually is quite helpful. Most modern nation-states have adopted some sort of explicit written constitution, and most of those are patterned at least in principle after the American model.
I agree that it’s completely useless in reference to England and Wales, because referring to the body of fundamental English/Welsh law as an “unwritten constitution” implies a frame of reference which has nothing to do with the subject. That being said, lots of eminent British scholars, such as Bagenhot and Dicey, do adopt that frame of reference and language.
The OP is really asking why Parliamentary sovereignty doesn’t lead to a dictatorship of the PM, without the moderating influence of judicial review (leaving aside the limited judicial review created by EU law). The answer isn’t really that complicated: Parliament doesn’t abrogate civil liberties (much) because it’s politically unpopular.
There is also the theoretical danger that the courts would refuse to enforce “unconstitutional” laws, which supposedly killed the Asylum & Immigration Bill.
You have GOT to be joking.
Feel free to persuasively cite any of the last, say, 100 created nation states, that did anything but swerve the “American Model”.
It’s a fruitcake of ‘model’.
I think you are misunderstanding me. The point is that the adoption of a governing charter which supercedes other laws is now nearly universal, and began with the US constitution. I’m not saying every country that adopts a constitution says, “let’s just use the American one”. I’m pointing out that the principle of adopting a constitution *at all *begins with the American one. If you didn’t know that, well, consider yourself educated.
Ever heard of the Magna Carta? The idea or adoption of a constitution hardly originated with the US and has evolved over time, much like the development of the light bulb. From one point of view it might make sense to define Edison’s creation as the “invention” of the light bulb, but versions of it existed before his and newer versions have been created since.
Just a clarification: I was agreeing with Malden Capell here and the “you” I refer to is the OP, i.e. Lumpy.