I have a hard time wrapping my head around your unwritten constitution. You have courts which review laws, but are they empowered to overrule an Act of Parliament? I understand that they do not have that power.
For example, say that for whatever reasons you collectively lost your minds and Parliament reinstituted chattel slavery. Would there be a mechanism where I (or alternatively an enslaved person) could challenge the act in the courts to have it declared unconstitutional? If so, and since the constitution is unwritten, what would such a court look at in determining that I have a right to be free from slavery?
Until recently, Parliament was absolutely supreme (except nominally over the monarch). Now Parliament has to bow to the European Convention on Human Rights, and the courts which interpret it. Parliament could probably unilaterally withdraw the UK from the ECHR, of course.
Article IV of the ECHR prohibits slavery and related servitudes. Absent the ECHR, the common law prohibition on slavery could be repealed by Parliament if it wanted to. Basically the rule in Somersett’s Case was not that slavery was prohibited in England, but that it could only be introduced by an Act of Parliament.
So, the slavery law would simply have to have two parts:
Sec. 1: We withdraw from the ECHR.
Sec. 2: Chattel slavery is allowed.
But can Parliament withdraw from the EU like that or would it be like the southern states signing up for the constitution? Sorry guys, that was a one way street and there will be war if you claim to renounce it.
The UK can withdraw from the EU. A mechanism to do so was introduced in the Lisbon Treaty.
Separately, the UK can withdraw from the ECHR, which is unconnected with the EU.
I don’t think supremacy of Parliament is abrogated by voluntary signing up to an international treaty and agreeing to be bound by decisions of organs set up under that treaty, assuming you are always free to leave.
The southern states made the same argument. Our right of self determination is not permanently eroded by signing this constitution which provides that we will be part of a nation of states. We can withdraw at any time.
But you say that the treaty establishing the EU explicitly allows for withdrawal? That makes it different.
It seems that Americans would be frightened if our Congress had the same absolute power. To use the analogy, the President (monarch) would not be able to veto any bills, nor would the Supreme Court be allowed to rule on their constitutionality.
What do courts in England do since they don’t have the power of judicial review?
They interpret the law - what our courts spend most of their time doing. The idea that the courts function as a check on the government doesn’t really exist in English law, except in terms of prosecution. AIUI, an English court could still strike down a law as ultra vires, but I don’t know under what circumstances.
Yes. And yes. As noted, the ECHR (and the court it created) are not EU organs. The ECHR was drafted by the Council of Europe, which is a different pan-European representative body.
The UK government can withdraw from the ECHR like any other voluntary treaty instrument. It’s a treaty, not a cessation of sovereignty. It’s more analogous to the US withdrawing from NAFTA than to South Carolina seceding from the Union.
It’s very easy to grasp it, if you are an American law student. Can US courts strike down provision the supreme law of the land, i.e the US constitution? No. It’s the same in England and Wales, only that the supreme law are statutes. The legislation of subordinate Legislatures, such as colonial ones and these days the devolved parliaments can and are challenged for repugnancy to statute. Hell, it’s easier than the differing levels of law in the US, with state and Federal constitutions and laws.
Note, I said, England, NOT the UK. Scottish legal position is rather different and confused. While no Scottish Court has ever struck down an Act of Parliament, in MacCormick v LA the Scottish Court of Sessions suggested (obiter) that the concept of Parliamentary sovereignty was a peculiarity of English law and had no counterpart in Scotland…and that the Courts might consider the Act of Union 1707 to be supreme law of the the UK.
RNATB, the HRA 1998 only gives the Courts the power to make a declaration of incompatibility not to strike down. Since the decision in R v A [2001] UKHL 45, the Courts have perferred to read down statutes to comply with the convention rather than making declarations, although some have been made.
The US constitution can be amended, including the repeal of earlier amendments, so, if Americans lost their minds in the same sort of way that you are postulating the British might, chattel slavery could be re-instituted in America too. If the law was written clearly, the courts would not be able to stop it even if every judge on the Supreme Court thought it was wrong.
I make the following substitutions when I compare the two countries. Please correct me where I am wrong:
President—Monarch
House of Representatives—House of Commons
Senate–House of Lords
Supreme Court–English Courts
States—No equivalent.
So, yes, if Americans went crazy and wanted chattel slavery, we would need to garner the support of 2/3s of the House of Representatives and then 2/3rds of the Senate. At which time a full 3/4ths of the states would have to agree to bring back chattel slavery. Even then, it wouldn’t be brought back except by each state (or Congress) passing an affirmative law legalizing it. IOW, it’s a huge obstacle to overcome. At that point the Supreme Court would likely be powerless to stop the new laws.
If we look at the American system like the British system, then all it would take to bring back slavery is a simple 218-217 vote in the House!!! The Senate (House of Lords) would have been stripped of power and the President cannot veto it. The Supreme Court would likewise have to bow to the Supremacy of Congress.
I don’t think there is any comparison to how powerful Parliament actually is.
What I’ve always wondered is what keeps Parliament representative (MPs must be voted in), instead of a self-perpetuating oligarchy whose members sit for life and can suspend elections when the result might be inconvenient.
I realize of course that sooner or later it comes down to “who guards the guardians?”; but I suppose what I’m asking is, given that Britain is presumably no freer of power-hungry megalomaniacs than any other country, why the system never devolved into the sort of one-party state headed by a Prime Minister For Life that so many other countries have. Can it really be that culture and culture alone prevents this?
“I realize of course that sooner or later it comes down to “who guards the guardians?”; but I suppose what I’m asking is, given that Britain is presumably no freer of power-hungry megalomaniacs than any other country, why the system never devolved into the sort of one-party state headed by a Prime Minister For Life that so many other countries have. Can it really be that culture and culture alone prevents this?”
Britain (or really England) has already been through this, with the rule of Cromwell. That was many hundreds of years ago, and though I don’t presume to know the details of school curricula in the UK, I’m guessing they’re taught that the Protectorate was a Bad Thing, which in a lot of ways it was.
So I would suggest that it is, in large part, culture.
One thing that’s always bothered me about British-style parlimentary democracies is that they can monkey around whith the timing of elections. They must hold elections every 4 or 5 years (I forget which), but the ruling party is allowed to schedule elections whenever they think it will be most benifical to them to do so.
Imagine the kind of underhanded hijinks that would occur if the Democrats or Republicans could pull crap like that, scheduling elections early or late depending on which way they saw the political winds blowing.
Britain’s got fixed-term Parliaments these days, although there are still the usual caveats about votes of no confidence, and Parliament itself can override the legislation with a two-thirds majority.
And although Prime Ministers can have/did have control over the timing of elections, it doesn’t always translate to automatic victory. Ask ex-Prime Minister Gordon Brown.
Let me turn the question around for the Americans on the board.
Do you think that the only thing keeping the US from falling under the control of a power hungry megalomaniac is a piece of paper, and nine guys and gals in black robes?
Or is that the piece of paper, and what it says, means something crucially, fundamentally, important to all Americans, so that you’re prepared to fight for it, and to fight anyone who tries to overturn the system of free government it establishes? Enemies, domestic and foreign? That as a nation, you’ll do whatever you can to fulfill Ben Franklin’s admonition: “A republic, if we can keep it.”
Ultimately, in every country, it is popular support which maintains the system of government. And in the US, that popular support is not for any particular person, nor for any particular political grouping: the ultimate popular support is for “We the People.” That is what has kept the American experiment going for over two centuries, and serving as a beacon for people in other countries.
And that similar popular support for an idea is what keeps Britain a liberal democratic state: because the people support free speech and free elections, and the rule of law. They’ve fought for those rights over the centuries. Heck, they developed principles which were a couple of centuries old before the US incorporated them into the Constitution. That’s the British heritage of freedom and liberty under the law.
It finds different legal and political expressions, but ultimately, in Britain that heritage of freedom and liberty depends on the deep-rooted popular support, not the particular legal and political mechanisms which implement that heritage - just as in the United States.
That’s something I don’t think Americans really get. We don’t have a stable government because we have a super duper constitution and system of government. We have a stable government because of the reverence the institutions of government are treated with. There’s nothing stopping the POTUS or Congress from ignoring the courts except respect for the rule of law (“he has made his decision; now let him enforce it.”)
I agree with this, but it is just one simple step away from all of it going to hell: a majority vote in the House of Commons. In the U.S. such would have to be distributed among all areas of life and government. You don’t agree that there are more built in protections against such a thing in the U.S. system instead of the UK system?
But imagine what hijinks wouldn’t occur if the executive and legislators knew that not working together means a new election in 6 weeks.
The PM does have a powerful ability to (within limits) time their re-election; but at the same time they can lose a confidence vote and have to go to the polls at any time.