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

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of representative democracy was based upon his perception which, as many of his contemporaries noted, was becoming outdated due to the growing importance of the party system.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 is dominated by ‘party political considerations’ encouraging ‘competitive rather than cooperative relations between parties.’ In such an environment, party considerations may well eclipse the Diceyan view of representatives embodying the will of the people. Hence, the need for some form of checks on legislative sovereignty can no longer be so easily dismissed. As Bradley wrote ‘it must be doubted whether any political system today works in such a perfect way as to justify the removal of all restraint upon the making of laws by a popular assembly.’

Whilst elected representatives in Parliament do give it a democratic basis, academics have illustrated that democracy has a broader definition. Elliot identified that because ‘the principle of democracy forms a key part of the normative foundation upon which Parliament’s legislative authority is based’, Parliament must adhere to democratic values. Since Parliament’s legitimacy derives from democracy, its legislation must follow constitutionally democratic principles, and hence the legislative process should ensure that bills adhere to these principles. Many of these principles are inherent in the European Convention of Human Rights, which was internalised into the UK by the Human Rights Act 1998. As Lord Hoffman suggests, the rights in the Act serve, to an extent, as ‘principles of constitutionality’ in a similar way to a written constitution. The Human Rights Act is Parliament’s recognition that its legislative sovereignty is limited by constitutionally democratic principles. Hence, there is a need for legislative processes to secure that bills follow these principles.

Select committees like the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee are formed to scrutinise bills. As Hazel said, these two committees represent ‘new pillars of the constitution.’ For instance, since the formation of the JCHR ‘fewer provisions are drafted in ways that leave rights subject…to inadequate safeguards.’ These two committees are examples of the efficiency of select committees as checks in the legislative process. Various reports though have found that most select committees are influenced by party Whips, have insufficient access to information and play a marginal role in scrutinising legislation. This is partly because they are guided by administrative and political guidelines rather than substantive principles. As Oliver suggest, the solution lies in the implementation of non-statutory scrutiny standards and checklists, independent from the subject matter of the bill. 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.’ 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. 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’ 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. 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.’ The non-partisan nature and the security of tenure of the Lords enable the house to give substantive considerations to constitutional issues. The problem though is whether the house has the democratic legitimacy to ensure that ‘unconstitutional’ bills are not passed.

When the 2001 Anti-Terrorism Bill was put through the legislative process, the Lords, despite JCHR objections, gave in to the government on a number of key issues including the derogation from article 5 of the ECHR in the bill. Phillipson proposes that if the Lords had ‘an unarguable claim to legitimacy’, it would have given them the confidence to take a stronger stance against the Commons. For the Lords to oppose the government effectively, it has to be perceived as ‘justifiable in a democracy.’ Hence, Phillipson argues that the majority of the House of Lords should be elected, which would give them ‘direct political power.’ The presence of independent members will continue to ensure the non-partisan nature of the house. Alternatively, Oliver argues for a house whose members are substantially appointed by an independent body to maintain the non-partisan and knowledgeable nature of the house. By appointing members more ‘reflective of the voices of sectors of society’, it could lead to a ‘more deliberative, participatory style of democracy.’ In my opinion, it is the development of such a modern democratic principle which will increase the legitimacy of the Lords without losing its non-partisan nature. This democratic principle should not be dependant upon the will of the electorate but on constitutional principles where the views of minority groups are represented. The legitimacy of the House of Lords will be derived from the members’ expertise and experience in constitutional principles. It is only when this constitutionally democratic basis for legitimacy is recognised that the legislative process will be well and truly secured against the passing of ‘unconstitutional’ bills.

The relatively recent development of constitutionally democratic principles has resulted in the idea that legislative sovereignty is dependant, not only on elected representatives, but also on Parliament adhering to constitutional principles. Thus, the legislative process should be designed to ensure that ‘unconstitutional’ bills are not passed. Whilst implementing scrutiny standards can act as a deterrent against ‘unconstitutional’ bills, it is the non-partisan and knowledgeable House of Lords which has the potential of securing that ‘unconstitutional’ bills are not passed. To achieve this, the Lords have to acquire a degree of legitimacy to block ‘unconstitutional’ bills. In my opinion, this legitimacy should arise from the conception of the Lords as the protector of certain sacrosanct rules inherent in democracy. It is only then that the full meaning of a democratic constitution in all its majesty will be embodied in the legislative process.

                                                                                                        Erwin Yau