This raises the main issue of accountability. The Lord Chancellor is not elected by the electorate, and therefore cannot be held accountable. Compare this to Parliament, who make law – the government are elected democratically, and thus are accountable for anything they do – this includes any attempts to undermine democracy.
From this, we can say that judicial independence is vital to uphold democracy. Aristotle states that democratic justice is based upon majority decisions; and whilst this is reflected in decisions made by judges and juries, it is still important to maintain the judiciary’s independence from the legislative and executive. This is due to their ability to undertake judicial reviews – these can include reviews upon how other powers are behaving, thus ensuring democracy is being served (that is, the government are doing as they promised when elected). Should they fall outside of these promises, they are in effect going against the theory of democracy (the idea of the majority of citizens having the power). A recent example of judicial review relates to the Hutton Inquiry.
Despite the judiciary’s usefulness in upholding democracy, they are criticized in that they are an undemocratic body in that the executive appoints the judiciary. A fair comment, yet such a system of “checks” appears across the three powers. The legislature enjoys dominance over the executive via the party and whip system, whilst the executive keeps check by the legislature through parliamentary scrutiny. This raises the question of whether the fact that they are undemocratic is truly a problem. As far as accountability goes – yes, it is a problem. As far as upholding democracy goes, so long as there are safeguards for democracy, there is no problem with them being undemocratic. As each power keeps in check with the other powers, this promotes Beetham’s idea of democracy, in that democracy is a mode of decision making about collectively binding rules and policies, over which people exercise control. If it is such, which it would appear to be, then democracy is being upheld.
The second safeguard for democracy relates to the Rule of Law. The principle states that the rule of law is a core minimum that everyone agrees to, and everyone in society is bound by the law and should follow it. Perhaps such an idea already goes against the idea of democracy in Aristotle’s view; that every man can do as they wish. But the concept needs to be explored further to see just how important it is as a safeguard to democracy.
Entick –v- Carrington highlights the need for such a theory. The government were unable to find the necessary specific legal authority in order to obtain a warrant, and therefore went ahead anyway. Their defence for trespass was one of “state necessity”, but it was upheld that if there is no law, it is not legal.
This highlights the idea that government can , theoretically, only follow laws created due to public demand. It also follows Artistotle’s view of democracy, in that democratic justice is ensured by majority decisions i.e. laws made by the majority in the Houses of Commons.
Jennings backs this point up well, stating how legal sovereignty means that the legislature have the power to impose legal limitations upon itself, thus to promote and safeguard such fundamental rights as democracy. However, there is legally nothing to stop government creating new laws – the Parliament Acts 1911 and 1949 only allows the House of Lords to delay Bills for up to a year. In theory, there is no true safeguard in this area for democracy – government could pass an act stating that democratic voting is no longer a necessity. Politically, however, it is debatable whether government could get away with creating legislation against the public interest.
Dicey goes on to expand this theory with his “Formalist View”. This states that certain formalistic requirements are needed, such as the need for specific powers, prospective law and ordinary, accessible and independent courts. Should all of these be available to a state, Dicey believes that the rights of the individual are both upheld and protected, therefore ensuring democracy. However, Laws opposes this view with the classic argument in relation to the codified constitution. As the UK does not have a codified constitution, Laws argues that such key principles as democracy are not protected in any way, shape or form.
There are some areas under Parliamentary Sovereignty that suggest a constitution is not necessary to ensure the safeguard of democratic rights. For example, the Representation of the People Act 1832 suggests that there is a link between democracy and parliamentary sovereignty. This link is due to decisions being made based upon Public Policy – in other words, the demands of the majority ensures the decisions made by Parliament.
The other safeguard for democracy originates from the European Union. The UK incorporated Europe as a new legal order via the European Communities Act 1972. It means that European law has primacy over national legislation, and where conflicts occur, European law takes priority. National law should be interpreted in a community-based frame of mind.
European MEPs are democratically elected by each Member State, and this is important as it shows an example of a democratic safeguard that is democratic within itself. Although the powers of the European Parliament are restricted primarily to the co-decision procedure, they can invoke the European Ombudsman, who acts as mediator for poor administrative behaviour e.g. any Member State’s legislature trying to remove such key principles as democracy.
The Council are another important aspect of the new legal order of Europe. Although it can be argued that they are not democratically elected directly, they have been elected by each Member State to represent national issues, both in the national domain and the European one. This is an interesting idea; if, for example, a Member State’s legislature decided to create an Act of Parliament that was against the idea of democracy, the individual member of that Member State may have been forced to vote in agreement for the Bill, due to the party whip system. However, in the Council, there is no such system. Therefore, in theory, the individual member could debate the issue in the Council, with their “true” opinion on the matter (remembering that a politician from each Member State represents their country based upon the subject matter). It would seem that this is a fundamental safeguard, where each Member State could, in theory, safeguard their democracies.
To conclude, there are many safeguards for our democracy. The accountability of our Parliament means that they are politically entrenched and therefore are highly unlikely to be able to remove democracy. The Separation of Powers provides checks between all three powers to ensure that core fundamental principles are upheld; however such recent developments as the abolition of the Lord Chancellor’s post indicates that should power become too concentrated within one power, devastating effects are likely to occur. The Rule of Law and Parliament Sovereignty work hand in hand, with the idea that we do not necessarily need a constitution to ensure democratic rights. Finally, the European aspect means that there are many checks on each Member State’s legislature; however there is the idea that Parliament could withdraw from Europe by revoking the European Communities Act 1972. The issue of political entrenchment would occur, however.
Our safeguards for democracy do exist; despite several concerns. There is primarily the argument of whether such safeguards should be legally entrenched, but political entrenchment alone should be enough. However, many of our safeguards are undemocratic; but if they uphold democracy, it can be argued that these safeguards need not be democratic.
