Does the UK constitution provide a framework for representative democracy?

Secondly, with a typically strong executive, there needs to be effective accountability of the government at all levels in order to maintain representative democracy within the UK.  The key question is whether the constitution provides sufficient checks to achieve this.

According to Sartori, the whole ‘essence of constitutionalism lies in the notion of a limit upon the power of government’.  This idea of entrenchment is one of the characteristics outlined by James Bryce at the beginning of the twentieth century.  As part of entrenchment, he believed that only special procedures could amend the constitution because it has origins in an external, higher authority.  However, information asymmetry can severely impede the accountability of the government.  Firstly, the lack of shared information between ministers and backbench MPs limits the latter’s representative role and this undermines the principle of representative democracy. Information asymmetry between the government and the opposition can reduce the degree of scrutiny and accountability of the government in the House of Commons.  Secondly, the Freedom of Information Act (2000) has too many exceptions for it to provide a real check on governmental power. Thirdly, frequent cabinet reshuffles have increased information asymmetry between ministers and the civil service such that it is to the detriment of an efficient and accountable department.

Another area where the UK constitution fails to hold the government sufficiently to account is that of constitutional law.  The UK government may amend or repeal any constitutional law just as they would a standard law.  Theoretically, they could abuse this power to change significant parts of the constitution, although this has been the exception rather than the rule in the twentieth century.  Furthermore, UK courts do not recognise any distinction between constitutional law and standard laws, thus they do not have to give any special attention to unconstitutional acts.  If the government can act almost arbitrarily, once in power, then representative democracy is stymied.

In a purely democratic system, the authority which holds the government accountable ought to be the people.  Since this is clearly impractical, for the most part, in a country of sixty million, MPs are elected as the people’s representatives.  However, in the UK, parliamentary sovereignty exists as opposed to popular sovereignty and therefore there is nothing to protect the constitution. The final authority of the unelected judiciary is considered and criticised as being undemocratic with no place in a system purporting to be democratically representative.

The strong unitary chain is the centre of Saalfeld’s article.  He states that its presence minimises efficiency and transparency losses.  It also ‘avoids confusion about political responsibility, as power is not shared among a large number of actors with veto powers’.  However, it does not ensure accountability because it lacks checks and balances and can limit civil liberties. It can be an effective ‘elective dictatorship’ as was seen during the Conservative hegemony of the 1980s.  

The UK’s two-party system can encourage competition and act as an automatic, informal check on the government.  This can fail for two main reasons.  Firstly, the opposition may be too weak to effectively contend with the government and question its policies. This was the case during the 1980s when the Labour Party was in crisis.  Secondly, as is arguably true today, the two parties may have similar policies.  Proper accountability to ensure representative democracy depends upon a separation between the two parties and that the population may have a suitable choice.

Britain does not have a written constitution in the same way as France or the U.S.A for example.  Thus, the constitution ends up being informal, relying on conventions, customs, traditions and precedents.  Foley’s view is that these informal constitutional provisions prevent the government exploiting the gaps and ambiguities within the constitution.  The majority of the constraints on governmental power are informal and can be internal and external, domestic and supra national.  

One of the most importance domestic constraints is the House of Commons who have a number of instruments to limit the government’s power.  The Commons may express a lack of confidence and there have been 27 votes of ‘no confidence’ between 1945 and 1999.  However, the majority did not result in the removal of the executive.  Two other methods are debates on legislation and select committees to try to hold ministers to account.  The government may curtail the former and the latter cannot force a minister to appear before them, which reduces the elected representative to hold the government to account. Since 1997, MPs have effectively been given more time to question the Prime Minister.  This shows that the Labour Party is beginning to address some of the accountability of the executive problems. The Prime Minister must be a member of the House of Commons so that he is answerable to the people’s elected representatives.  However, the Commons have no formal role in appointing the Prime Minister or the Cabinet.  Government accountability to Parliament ‘is largely governed by the constitutional convention of individual ministerial responsibility’ and is preserved in the Questions of Procedures for Ministers.  The government is also bound by a number of formal reporting requirements such as the Chancellor’s Budget Speech, which allows some scrutiny over economic decisions.

Constitutional conventions actually impede the cabinet’s accountability.  For example, collective responsibility shields the cabinet’s operation from public scrutiny rather than ‘expose it to public or political accountability’.  Accountability of the civil service has generally been made more difficult due to the secretive nature of British government.  In 1988, the Thatcher government amended the running of the civil service.  However, managerial efficiency was the priority and democratic accountability was not addressed.

As well as changing the civil service, there were also a number of reforms to local government during the Thatcher era, some of which were deemed unconstitutional.  The upper tier of local government was replaced by quangos and thus not directly elected.  In 1997, the Blair government replaced them with Regional Development Agencies which are now accountable to the government.  Although not directly elected as pre-1985, they are now at least accountable to a body.

There are a number of external constraints to the executive.  The role of the judiciary has increased since the 1980s and because of this, developments during the 1980s and the Human Rights Act (which came into force in 2000) have reinforced judicial accountability. There have been calls for the separation of the judiciary and Parliament.  This is to make the judiciary more representative of the people and less entwined with the workings of the government.

Devolution has led to the formation of assemblies in Northern Ireland, Scotland and Wales.  All members are elected according to the proportional representation system.  However, in their early stages all are unlikely to be a serious institutional check on the sovereignty of Parliament.  

In 1997, the independent Monetary Policy Committee (MPC) became responsible for setting interest rates.  This was praised because interest rates would be less dependent upon political expediency.  Nevertheless, it has been criticised as being undemocratic because none of its members are elected and it is mostly unaccountable to the people.  

Membership of the EU and increasing European integration on several levels has reduced the power of the executive.  European law is superior to British law and thus limits parliamentary sovereignty.  Although limiting the executive power, it transfers power to a supra national level, often seemingly removed from the population and perhaps even less accountable than Parliament.

The present government first took power in 1997 after eighteen years of Conservative rule.  Its manifesto promised significant constitutional reform involving the electoral system, devolution and the House of Lords.  It described its reform as ‘the most ambitious and far-reaching changes in the British constitution undertaken by any government this century’.  A form of quasi-federalism was gradually replacing the highly centralised government.  According to Hazell, this should lead to more accountability of the executive, the erosion of parliamentary sovereignty and a more pluralist form of democracy to replace the two-party system.  

It promised devolution, first proposed in Gladstone’s Home Rule Bill, and Scotland, Wales and Northern Ireland all had referenda.  In all cases, the Regional Assembly was accepted, although in Scotland it was easily accepted with 74% of the vote whereas only 50.3% of the Welsh said ‘Yes’.  This was with turnouts of 60% and 50.1% respectively.  The executive has devolved many powers to the Scottish Parliament including those on health, education and local government among many others.

Devolution has also allowed the Labour government to ‘trial’ alternative voting systems. The Welsh Assembly is elected under proportional representation and the Northern Ireland Assembly uses the Single Transferable Vote.  Even the London mayoral election used proportional representation.  The Jenkins Commission was charged with considering alternative methods to the first-past-the-post system, although as yet nothing has been changed for the general election.

Proposed in the opening to the 1911 Parliament Act, constitution reform of the House of Lords begun with Labour’s accession to power in 1997, with the removal of most hereditary peers in 1998 with only 92 remaining. The ‘House of Lords represents aristocracy and establishment – and by extension the Conservative Party’. More and more life peers have been appointed, and although this is probably more representative and democratic than the original House of Lords, it is still not elected by the people.

In conclusion, the UK constitution provides a distorting electoral system which undermines representative democracy.  Steps have been taken since 1997 to address this problem and its impact on the power of the executive.  However, there have been no reforms to the voting system for the general election, despite the devolved assemblies using a more proportional voting system.  The constitution provides some informal checks and balances on the government, but these are far from formalised and fully effective.  Thus the government is not always accountable to the people and this weakens the democratic system. Saalfeld concluded that the ‘core’ of the chain of delegation and accountability was still very stable although it relied heavily on informal screening rather than any formal constitutional checks.  The changes implemented by the Labour government have begun to address some of the gaps in the constitution and made Parliament more democratic and accountable but there is still a long way to go before the UK constitution can provide a proper framework in which representative democracy can operate effectively.

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