The UK's Problematic Separation of Powers and Lack of Meaningful Legislative Scrutiny

Constitutionalists have lamented the British constitutional order since Bagehot commented in 1867 that the legislative and executive powers of the State are fused together. Ministers exercise a dual role as members of both Parliament and the executive and this is scarcely of concern. The Commons ultimately controls the executive through its capacity to oust a government which has lost the ability to command a majority on an issue of confidence, as was seen with Callaghan's minority government in March 1979. Of more concern is the effect that a clear majority in the Commons can have on legislation as well as the role of Parliament in holding the government to account for its policies.

Paragraph 17 of the Ministerial Code established in 2001 states:

Collective responsibility requires that Ministers should be able to express their views frankly and in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet and Ministerial Committees should be maintained.

The continuation of the elitist doctrine of collective responsibility in the Cabinet is likely to be criticised in light of recent scandals and calls for greater transparency. Its greatest criticism however is that it effectively eliminates any opposition within the Cabinet to the policies of the Prime Minister. Former Lord Chancellor, Lord Falconer, has said that dissenting ministers are unable to debate important issues, citing the example of Robin Cook being forced to resign before policy had been concluded on the war in Iraq. The Butler Report of 2004 stated that two Cabinet ministers “expressed their concern about the informal nature of much of the Government’s decision-making process, and the relative lack of use of established Cabinet committee machinery." It also stated, "we are concerned that the informality… of the Government’s procedures… risks reducing the scope for informed collective political judgement." Certainly collective responsibility should be maintained to uphold party unity once a policy has been established, but it should not stifle debate at the earlier stages, at least not in a deliberative democracy.

When the government enjoys a majority in Parliament therefore, the power of the Prime Minister is subject to fewer checks than it would be under the constitutions of other democracies. This is merely one reason why the British Prime Minister is often said to be an 'elected dictator'. The presence of the Lord Chancellor in the Cabinet further reduces the separation of powers, because, as head of the judiciary, he is entitled to preside over the Lords, the final court of appeal from the courts of the UK. Nevertheless, judicial review has been increasing over recent years, despite the temptation to abolish the House of Lords or bypass it using the Parliament Acts.

Parliamentary select committees remain the only bodies to hold the executive to account and even they are appointed by the whips of the various parties. Inevitably this gives the committees a composition which mirrors the Commons and thereby neutralises their efficacy, as the government's MPs, forming the majority, are unlikely to back reports that criticise their policies. It is estimated that over 3,000 statutory instruments are authorised every year and only a very small proportion of these are actually reviewed by the select committees or in any other way. In practice, the reports of the committees are rarely given proper consideration as the Commons and the government are not obliged to debate their findings. Therefore, the committees must be given full powers to subpoena ministers and to approve major public appointments and its members should be chosen by a vote of the whole House of Commons rather than being appointed by the whips. Moreover, their powers should be extended to allow them to scrutinise proposed legislation before it reaches the Commons for its first reading in order to identify contentious areas and improve its drafting.

A Second Unelected Prime Minister? - Labour hijacking democracy to serve Party needs

Many commentators expect that Gordon Brown will resign as prime minister in the forthcoming days or weeks and will be succeeded most likely by Alan Johnson. Whilst this is constitutionally acceptable, as the prime minister is merely regarded as the representative of the party that wins an election, the effect of having a second unelected prime minister, even if only for a few weeks, undermines our democracy and the legitimacy of the Labour Government. At a time when constitutional reform and modernisation is on the agenda and when arguments that the current spending rules permit excessive expense claims from MPs are rejected, it would be equally as inappropriate to take advantage of the antiquated rules regarding the succession of a party leader/prime minister, especially when such an expedient move can only benefit the Labour Party.

It has been said by numerous constitutionalists that the high concentration of power in the figure of the prime minister effectively means that voters elect a democratic dictator. This level of power therefore should not be passed on in a hereditary, nonchalant manner and without popular consensus and democratic legitimacy. I wish to reiterate that I understand that our votes elect a party to occupy the position of government. However, contemporary politics in all western democracies is inalienable from the party leader or candidate for the premiership. It is this figure which receives the democratic mandate to govern as leader, whilst the governing party occupies the majority of parliamentary seats to facilitate the promulgation of legislation. I was pleased to read that the Queen has been advised to intervene and warn a newly unelected prime minister to establish a time table for an early election. This precaution evidently supports the premise of my argument; hereditary prime ministers undermine our democracy and the constitutional rules which permit them should be made redundant.

As such, the more favourable outcome to the current situation would be for Gordon Brown to ask the Queen to dissolve Parliament as soon as he accepts he can no longer continue as prime minister. This would save the country the time and the embarrassment of pointlessly having to endure the undemocratic process leading to the coronation of Alan Johnson, or any other equally worthy figure, especially when it is likely that he will be forced to call an election in any case. So why change leader when many of Brown's most ardent supporters have condemned these fractures and disputes for occurring during the economic and financial crisis? I believe that the Party's true concern lies more with hanging on to power than responding to the recession. Undoubtedly a new leader will renew confidence amongst Labour MPs and buy them enough time to futilely attempt to limit the extensive damage believed to be dealt through a general election. Has our democracy become something for the Labour Party to abuse and undermine to their advantage? Tony Blair's third election victory was not meant to consign British democracy to the servile subjugation of Labour. The outcome will prove where Labour's true interests lie; with itself or with the country.

The Privy Council: Antiquated and anti-democratic

A privy council is a judicial and governmental body that dates back to feudal times and usually advises a monarch on how to exercise the royal prerogatives before carrying them out on their behalf. The Judicial Committee of HM’s Most Honourable Privy Council is one of the highest British courts and remains the highest court of appeal for all UK overseas territories, Crown dependencies and several independent Commonwealth countries, including Antigua and Barbuda, Bahamas, Belize, Grenada, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines and Tuvalu, as well as the New Zealand states of Niue and Cook Islands. This may seem like a harmless relic that has survived the dissolution of the British Empire, yet its continued existence provides the government with an opportunity to bypass the mechanisms of democracy in a highly obscure manner.

There are currently 546 privy counsellors, all of whom are appointed for life and have usually been, or still are, ministers or senior members of Parliament, and can be recognised by their form of address (right honourable). The counsellors can make orders that circumvent Parliamentary scrutiny and still have the same force as democratically passed legislation. Evidently therefore, this is a vehicle for executive decisions that is open to abuse by any government that wishes to formally issue decisions in the name of the monarch. Commonly cited examples of its most high profile decisions include the eviction of Chagos islanders from their land during the late 1960s and the Blair government’s decision to allow its advisers to issue instructions directly to civil servants. Furthermore, privy counsellors are prioritised over democratically elected MPs to speak in the chambers of Parliament, and they are permitted to speak for longer if they wish.

Justice, the law reform body, has stated that very few members of the public understand the Council’s processes due to its lack of transparency and accessibility. The Council has the potential to take on the form of a constitutional court but this is unlikely due to its dysfunctional nature, which is charaterised by monarchic, judicial, governmental and ceremonial powers. A written constitution would clarify its role and greatly enhance transparency by eliminating the possibility of it being abused by governments wishing to undermine the Parliamentary processes of democracy.

Daniel Hannan on the American Constitution

It is amazing that Britain and the British people see themselves as a beacon of democracy, when there is no constitution, Lords are unelected, seats and lobbying can be purchased, there is no guarantee of free speech (the Home Secretary has now decided to ban more outspoken people) and our civil liberties are being further eroded on a daily basis.