What is the Rule of Law and why is it an important principle of the UK Constitution?

The Law of the Constitution is AV DIcey’s most famous work.

Along with Parliamentary Sovereignty, the Victorian constitutional scholar A.V Dicey called the Rule of Law one of the ‘twin pillars of the UK constitution’. By this, he meant it was one of the things that was fundamental in making the UK constitution what it is. So, what is meant by the Rule of Law and why is it so significant?

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Level 5 Response – Evaluate the view that the Executive dominates Parliament in the UK political system (30 Marks)

Britain is a parliamentary democracy in which there is a ‘fusion of powers’ that Bagehot called the ‘efficient secret’ of the UK constitution. Yet, there is an argument that this system creates what Lord Hailsham called an ‘elective dictatorship’ in which the Executive have far too much power and can govern without sufficient scrutiny. To answer this question the following need to considered: the role of the House of Commons, the role of the House of Lords and the issue of the royal prerogative powers. Ultimately, there can be no doubt that under usual circumstances the Executive is able to exercise significance dominance of Parliament because of the FPTP voting system and the existing prerogative powers of the government.

In normal circumstances the government can dominate the House of Commons. The primary cause of this is the First Past the Post voting system which is heavily disproportional and provides the winning party with a ‘winners bonus’. For example, in 2019 it took just 38,000 votes to elect a Conservative MP but 853k to elect a Green MP. Subsequently, FPTP produces significant majorities even a less than significant proportion of the vote. For example, in 2019 the Conservative Party won 56.1% of seats from 43.6% of the vote and the average majority since 1945 is 58.5 seats. The parliamentary arithmetic is enhanced also by the power political parties have over their MPs. It is almost impossible to be elected without the support of a party and MPs rely on their party of their position. Consequently, few MPs are willing to rebel against their party and risk the withdrawal of the whip (as happened to 21 Conservative MPs in 2019) or deselection, as happened to Sam Tarry in 2022. Consequently, the government is normally able to pass its agenda without much resistance. For example, both Tony Blair and Margaret Thatcher only suffered four Commons defeats each in over a decade as Prime Minister. Nonetheless, it is important to note that this dominance of the Commons is not always the case and sometimes there are minority governments that cannot force through their agenda. The best example of this was between the 2017 and 2019 elections when neither Theresa May nor Boris Johnson were able to push their agenda, including their policies on Brexit, through Parliament. During this period Theresa May had her Brexit deal rejected three times, including by a modern record defeat of 230 votes. This shows that when party dominance is challenged, governments can no longer dominating Parliament. This can also be illustrated by the fact that even under majority government there are sometimes significant backbench rebellions. For example, in 2021 there were 99 Conservative MPs who rebelled against Boris Johnson’s Plan-B COVID measures which were able to be passed with the support of Labour. However, ultimately, the struggles faced by governments are unusual and normally Hailsham’s ‘elective dictatorship’ exists meaning the Executive is able to dominate the House of Commons.

The ability of the Executive to dominate is much less clear in the House of Lords than it is in the Commons. Firstly, since the House of Lords Act (1999) the in-built Conservative majority in the chamber has been removed and no party since has had a majority in the House of Lords. The lack of party domination is supported by the existence of are 184 Crossbenchers like Baroness Grey-Thompson who do not take the whip for any party. This subsequently means that rather than being able to force through its agenda in the Lords using the whips, the Executive has to persuade its members that their legislation is good. This results in far more Government defeats in the Lords than the Commons. For example, in 2021-22 the Government has suffered no contests defeats in the Commons but has suffered 133 defeats in the Lords. This shows the Executive cannot be seen to dominate the Lords in the same as it can the Commons. However, despite this, it has to be recognised that the Lords is limited by its structural limitations. Firstly, is the existence of the Parliament Acts (1911 and 1949) which mean that if the Commons passes a bill for two successive sessions then any veto by the Lords can be overridden. Whilst this has only been used four times since 1949 the very existence of it means that the Lords are likely to back down in any conflict with the Commons. For example, in 2017 the Lords inflicted two significant defeats on the Article 50 Bill but immediately backed down when the Government were unwilling to accept their changes. This indicates the supremacy of the Commons over the Lords and, by extension, that of the Executive. Secondly, the Lords is also limited by the existence of conventions like the Salisbury Convention and Financial Privilege that significantly limit its powers. The Salisbury Convention ensures that the Lords do not veto measures that were specifically included in the manifesto of the governing party. This means that even controversial legislation, like the Police, Crime and Sentencing Bill, is ultimately guaranteed to make its way through the House of Lords. Financial Privilege prevent the Lords from voting down the budget or any financial matter. This ensures, in almost all circumstances, that the Executive has a supply of finance and avoids the spectacle of government shutdowns that occur in the United States. These factors combined mean that while the power of the Lords is limited and the Executive do not directly dominate the Lords, the constitution ensures that their agenda will almost always make it through. Consequently, the House of Lords does not a significant amount offset the dominance of the Government over Parliament. A final area through which the Executive is able to dominate Parliament is through the existence of the Royal Prerogative powers. These are powers that traditionally belonged to the monarch but are now exercised by the Government. These powers are beyond parliamentary scrutiny, giving the executive dominance over key areas of policy.

One example of a Royal Prerogative power is the ability of the Prime Minister to call a General Election at the time of their choosing. Whilst between 2011 and 2022 this power was given to Parliament through the Fixed-Term Parliaments Act, it has now been returned to the government through the Dissolution and Calling of Parliament Act 2022. This power allows the Government to call an election at a time of their choosing which gives them a strategic advantage. This is, for example Tony Blair, did in 2001 winning a 166 majority. Another Royal Prerogative power is the ability to order military action. Whilst some Prime Ministers have allowed Parliament a say on this matter, this is at their discretion, and, for example, in 2018 Theresa May ordered air strikes in Syria without parliamentary approval leading to Jeremy Corbyn to call for a ‘War Powers Act’. This clearly indicates that the Executive can use prerogative powers to dominate Parliament even regarding some of the most important political decisions that can be taken. Nevertheless, recent years have seen the judiciary intervene to ensure that the Royal Prerogative powers cannot be abused. Traditionally, such issues were seen to be non-justiciable, but since 2009 the Supreme Court has heard important cases surrounding them. In 2017 the Supreme Court ruled in Miller vs. Brexit Secretary that Theresa May could not trigger Article 50 using the Royal Prerogative and instead the issue should be decided by Parliament. Further, in September 2019, the Supreme Court ruled that the prorogation of Parliament by Boris Johnson had been unlawful and that its effect was “null and void”. Both of these cases saw the Supreme Court challenging the misuse of Royal Prerogative to undermine representative democracy and ordered that Parliament should be given a say on both issues. Yet, whilst these changes have given more power to Parliament in certain instances, they have not re-addressed the constitutional imbalance that the existence of the Royal Prerogative brings and it remains an area of clear Executive dominance.

Overall, it is very clear that the Executive does dominate Parliament to a significant extent. In the UK political system the Commons dominates the Lords and there is no dispute that under normal circumstances the Executive is able to dominate Parliament. The power given to a Government due to FPTP means that they are able to push their agenda through the Commons and are unlikely to be significantly challenged by the Lords due to structural powers it lacks. Whilst there are periods when this is not the case, these are a constitutional anomaly. In addition, the royal prerogative powers put a range of Executive decisions beyond parliamentary scrutiny. Despite recent challenges to these powers by the judiciary, the constitutional situation remains unchanged and Royal Prerogative powers are significant. Therefore, it cannot be doubted that the Executive dominates Parliament to a significant extent.

What is good about this response?

  • The introduction immediately shows the examiner the candidate understands the topic. It also lays out the different themes that will be discussed and sets out a clear argument.
  • Three body sections are completed each which put forward a clear point and corresponding counter point.
  • Detailed knowledge is deployed throughout the piece, which is often very specific.
  • Analysis is built upon this detailed knowledge, with a consistent focus on answering the question.
  • Clear mini-conclusions are used at the end of the section which consider what the view on the question is as regards the issue that has been discussed.
  • The conclusion is comparative in nature and synthesises the entirety of the arguments made before coming to a clear judgement.
  • Political terminology is deployed throughout the essay. For example, terms like ‘non-justiciable’ are very high-level terminology.
  • Synoptic links are made to Paper 1 through considering of FPTP. (This in only required in Paper 2).