Parliament is known as the ‘backbone’ on the British constitution. Lord Hailsham phrase an ‘elective dictatorship’ does exist to an extent. Power has always resided in Parliament however, ‘Parliamentary sovereignty’ over recent years has diminished.
Executives do have power if they win a majority of votes. Democracy within the United Kingdom still exists as power is ‘spread out’ to everyone. There is this idea of ‘separation of powers’ which exists due to the fact that ‘absolute power corrupts absolutely’ , which was written by Lord Acton in a letter which was sent to the Bishop of Creighton. Separation of powers is the fundamental concept that there are three bodies which make up the government: The Legislature, Executives and the judiciary should all be independent. This is so no one branch of state has total power. In this way, the system has checks and balances which forms a good government . This was outlined in 1978 by French lawyer Montesquieu, ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty .
‘ This is so no powers are taken from away from any of the branches they are all equal. Parliaments role is making legislations, they have the ability to pass bills which are passed through both houses of Parliament, the Queen then gives Royal Assent which then becomes an Act of Parliament if approved. The next branch of state is the Executives also known as an elected government, their duties are to make and apply public law. They are a body which represents the public and their interests. Executives bodies can include : her majesty’s government: The Prime Minister, Cabinet, Junior Government Ministers supported by government department and staffed by civil servants, local authorities, also the armed forces and the police. In the case of Fire Brigades Union case , home secretary refused to exercise his power under ss.
108- 117 of the Criminal Justice Act 1988. Issue of whether under the separation of powers it was appropriate for the government minister to repeal an act of parliament . Court held that home secretary had acted unlawfully.
No right to introduce a new scheme which was inconsistent with the statutory scheme when statutory provision remained unrepealed and that it was an abuse of the prerogative powers.William Blackstone expressed there is not a complete separation of power, that each part of the system meaning the executive, legislature and judiciary have some influence over each other because it is a system of checks and balances. Blackstone described the British constitution as a mixture of powers . However, the idea of separation of powers was rejected by Bagehot as he believed that ”there is this almost complete fusion of powers between the executives, legislatives and judiciary and this is the efficient secret of the British constitution. ” There is a joint relationship between the executive and parliament. Executives have power over parliament, a Prime Minister that has majority will have members of their party that will sit in the House of Commons so, this shows that executives have a saying in the making of laws.
Parliament delegates legislation making power to executives, parliament can scrutinise the government by holding them account using questions and committees to analyse details. Parliament can reject any bills that try to be passed. Recent changes, like the backbench business committee was creating in 2010 which was a way of giving MP’s more control over parliament such as more debates that are relevant for the public . An example of an imaginary legislations when implemented will create an overlap of powers of each branches of state: The Crime Act 2016 government drafted a new proposed offence in The Crime Bill. This is an example of executives formulating a policy which creates new criminal offence.
In the Queens speech, the Bill was amended to remedy some minor drafting inaccuracies. Once a legislation would be enforced by the police . There is also example of an imaginary legislation is the public order act 2016 which when implemented fuses powers from both parliament and executives. In section 1 of the act states that home secretary has the ability to pass such regulations this is an example of delegated legislations.
Shows that executives have the ability to draft a bill which can be reviewed in parliament. An example which, reinforces an ‘elective dictatorship’ as the government of the day decides is an example of a constitutional convention called the Salisbury Convention which is that the Lords should not reject the second or third reading against a government bill. This is on the basis that if a government has been elected on specified manifesto commitments, it would be inappropriate and undemocratic for the Lords to prevent the will of the people as expressed and represented in the House of Commons. There is also this idea of a ‘Whip system’ in parliament, a whip is an MP or member of House of Lords which appointed by each party in parliament try and encourage more people to vote for their party, also used to tell them information in parliament.
The United Kingdom however is seen as separate. Lord Templeman said’ parliament makes the law; the executive carries the law into effect and the judiciary enforce the law.’ The House of Commons Disqualification act 1975 ,which has reduced the number of government minister which sit in the house of Commons. This is so that the executives do not have total control in the Parliament. It also does not allow police and civil servants to sit in the house of commons either which creates a divide in power. Also, the Lord Chancellor, is not part of the cabinet and is not politically biased.
The Constitutional Reform Act states that the Lord Chancellor no longer be the head of the judiciary of England and Wales. This again reinforces the idea of separation of powers does exist. The Constitution is uncodified, meaning that there are both unwritten and written laws which are implemented and empowered. A.V. Dicey described the Rule of Law , the first meaning ”that no man is punishable can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.
” This means that no punishment without law. This second meaning is that ‘no man is above the law’, this reinforces the idea of Parliamentary supremacy that they able to make and unmake any laws, that no one can question. In the case of A-G v De Keyser’s Royal Hotel , the owner of a hotel claimed compensation for the use of his during wartime. Court held that owner entitled to compensation under an act , statutes stronger than a prerogative power. Lastly, the third definition is that the constitutional principles ae established in the ordinary courts.
However, Dicey was criticised as Thomas Carothers, in 2003 , observed that ‘There is also uncertainty about what the essence of the rule of law actually is’. Raz stated that the idea of the rule of law its primary function is to ensure that law conforms to the standards which guide you effectively. In the case of Thoburn v Sunderland City Council , defendant convicted of using apparatus which did not comply with the Weights and Measures Act 1985 . Thoburn claimed failed due to the fact that a constitutional statute cannot be amended it hold a higher status in law. Case Jackson , The Parliament Act 1949 had been validly made under the power contained in the Parliament Act 1911 to enact legislation without the consent of the House of Lords and therefore the Hunting Act 2004 was also made even though, it was seen as unlawful. Given less power even to the House of Lords so this idea, of an ‘elective dictatorship’ merely does not exist. Another case to consider is Factortame (No 2) , which involved parliamentary supremacy. Factortame and other owners of 95 fishing vessel sought an injunction against secretary of state who, preventing him from enforcing the merchant shipping act against them.
Court held, this breached European union law, and that for the first-time parliament sovereignty was not ‘sovereign’ as claimants won the case. The Royal Prerogative powers are described by Blackstone as ‘that special pre-eminence which the King has, over and above all other persons, and out of the ordinary course of the common law, in right of his royal dignity.’ In medieval times prerogative powers where used by the monarchs. Lord Dip lock stated in BBC v Johns: ‘it is 350 years and a civil war too late’ for creation of new prerogatives’ .
Prerogative powers are not laws it is a history of signed treaties. Also, a ‘GCHQ’ case , civil servants prevented from being member of unions. Found that the courts are willing to review cases regarding matters in order to check that prerogative powers are being used lawfully. In 2004 the House of Common Public Administration Select Committee divided the royal prerogative power into three broad types: The Queens constitutional prerogative so that power remains in the hands of the supreme ruler, includes dissolving parliament which is the formation of a new parliament every five years in the act also, appointing a prime minister, grant the royal assent. Other types are the legal prerogatives of the crown, prerogative executive powers . This shows that power is given to the executives and legislature equally despite the royal prerogatives existence.
In the case of Miller , government cannot trigger article 50 using prerogative powers. Only parliament can trigger article 50 or authorize a government to do so. The court of held that government has no power under the royal prerogative to withdraw from the European Union. Recent changes shown that used royal prerogative powers in terms of Brexit . That parliament has taken back its power and reinforced parliamentary supremacy. Devolution is described as”the delegation of central government control powers without the relinquishment of sovereignty” . Powers of the parliament have devolved however on the other hand, devolution brings benefits like ‘economic, social, political, security and defence’ . The Westminster parliament have limited legislative power when it comes to the welsh assembly, the Northern Ireland assembly and it need to ask permission to consult any law regarding the Scottish parliament which is the Sewell convention.
Westminster does have the legal right to repeal the devolution acts.There is no clear indication regarding the relationship between parliament and the executives. However, the ideology of parliament sovereignty over the years has slowly diminished. The executives hold power due to the fact they are the voice of the public. Both branches work together but, parliament still has sovereignty. An elective dictatorship does not exist as United Kingdom is more democracy.
The executives and the legislature work together in order so that they serve the public interests and also keep powers equal so that it does not lead to corruption.