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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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?                                                        

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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.’ 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. 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.’ Dicey’s doctrine though is subject to the fact that England has no written constitution. According to Laws, constitutional law has an element of dynamic settlement and historical experience. In other words, the constitution evolves with the times; adjusting itself to political events taking place. Since the UK does not have a written constitution, constitutional norms are largely dictated by political climate. This idea can be interpreted in light of Dicey’s theory of representative democracy where the will of the electors is mirrored in the legislature. From this perspective, the political climate will always be consistent with constitutional norms as the majority of the people view it, giving a democratic basis for Parliamentary sovereignty. If one adopts this argument, it is inherent in the nature of Parliament that it will pass constitutional bills.

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Academics though have argued Dicey’s theory does not represent reality. As Craig points out, Dicey’s conception of representative democracy was based upon his perception which, as many of his contemporaries noted, was becoming outdated due to the growing importance of the party system. The nature of elections ‘inevitably produces party groupings.’ In order to appeal to an electorate, the party system was centralised resulting in the growth of executive power. Subsequently, an increasingly Schumpeterian system of democracy emerged where Parliament was dominated by the executive and party hierarchy. As Oliver identified, this is still the case today. The House of Commons ...

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