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UK Written Constitutionshould the legislative process in Parliament be designed to secure that 'unconstitutional' bills are not passed? How could that be

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Introduction

Given that the UK does not have a written constitution, should the legislative process in Parliament be designed to secure that 'unconstitutional' bills are not passed? How could that be done? 1,479 words The issue of whether legislative processes should be changed to ensure that 'unconstitutional' bills are not passed largely depends on one's definition of 'unconstitutional'. This essay will follow Lord Reid's definition of 'unconstitutional' acts as those acts where 'the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things.'1 It is apparent from this definition that the relationship between legislative sovereignty and democracy is central as to whether processes should be put in place to secure that 'unconstitutional' bills are not passed. Once this relationship has been established, the various ways to prevent the passing of 'unconstitutional' bills will be discussed. The doctrine of parliamentary sovereignty, as proposed by Dicey, states that Parliament has, under the English Constitution, the supreme right to make or unmake any law whatsoever. No person or body has the legal right to override or set aside Parliamentary legislation.2 Subsequently, if legislative processes prevented Parliament's ability to pass 'unconstitutional' bills, this would undermine Parliamentary sovereignty. This democratic basis is further supported by Ewing; 'parliamentary sovereignty is the legal and constitutional device which best gives effect to the principle of popular sovereignty.'3 Dicey's doctrine though is subject to the fact that England has no written constitution. ...read more.

Middle

they are guided by administrative and political guidelines rather than substantive principles.20 As Oliver suggest, the solution lies in the implementation of non-statutory scrutiny standards and checklists, independent from the subject matter of the bill.21 These standards would serve a referential and educational role for committees, improving the scrutinisation process and the substantive content of bills. However, as Oliver concedes, select committees cannot prevent Parliament passing 'unconstitutional' bills as they can only ensure that Parliament is aware of 'the departure from normal expectations.'22 Hence, scrutiny standards can only act as checks against 'unconstitutional' bills. A body that can prevent the passing of 'unconstitutional' bills has to have legitimacy to exercise legislative power and maintain constitutionally democratic principles. Whilst the House of Commons has the legislative authority, it is highly partisan and with the government's majority in the house, it is unlikely that it will perform non-partisan function vital to democracy.23 This is illustrated in the failure of Parliament to make changes to parliamentary scrutiny recommended by the Liaison and Modernization Committee. The House of Lords however is fairly apolitical as its members are 'relatively free from party pressures'24 and there are a large number of cross-benchers. Furthermore, its members tend to be experienced and experts in their respective fields. This means that debates in the house is based more on merits rather than party loyalty.25 As Russell concludes, an independent upper-house 'can help create a form of consensus politics which results in better political outcomes in the longer term.'26 The non-partisan nature and the security of tenure of the Lords enable the house to give substantive considerations to constitutional issues. ...read more.

Conclusion

8 P.P.Craig 'Dicey: Unitary, Self-Correcting Democracy and Public Law' (1990) 106 L.Q.R. 105 at132 9 D.Oliver 'The Modernization of the United Kingdom Parliament' at 260 in Jowell and Oliver, eds, The Changing Constitution, (2004) Oxford University Press, 5th edn. 10 Ibid at 260 11 Ibid. 12 Bradley, supra n5, at 60 13 M. Elliot 'Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention' 22 Legal Studies (2002) at 344 14 R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 15 R. Hazell 'Who is guardian of legal values in the legislative process: Parliament or the Executive?' [2004] Public Law 495, at 495. 16 D. Feldman 'The Impact of Human Rights on the UK Legislative Process' [2004] 25(2) Stat.L.R. 17 House of Commons Liaison Committee; HC 300 (1999-2000); HC 748 (2000-1); HC 321 (2000-1) 18 Modernization Committee; HC 224 (2001-2), para 4 19 Ibid. 20 D. Oliver 'Improving the Scrutiny of Bills: The case for Standards and Checklists' [2006] Public Law 219 at 222 21 Ibid at 239. 22 Ibid at 239. 23 Oliver , supra n9, at 267-8 24 Ibid at 272. 25 Ibid. 26 M. Russell Reforming the Lords: Lessons from Overseas (Oxford University Press, 2000) at 164 27 G. Phillipson '"The greatest quango of them all", a "rival chamber" or "hybrid nonsense"? Solving the Second Chamber Paradox' [2004] Public Law 352 at 379. 28 Ibid at 359. 29 Ibid at 366. 30 Oliver, supra n9, at 278 31 Ibid. ...read more.

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