Elective dictatorship and manufactured crises

An explanation of the phenomenon of ‘Elective dictatorship’, including an analysis of how it has enabled this Government to manufacture constitutional issues.

It was the conservative Lord Chancellor Lord Hailsham, speaking at a 1976 Richard Dimbleby lecture, who coined the phrase “Elective Dictatorship”. It is a rather concise explanation of the way in which the UK Government works. Our electoral system, to rather simplify things, mandates that the Government be formed from whoever can command a majority in the House of Commons. This immediately puts a squeeze on the checks and balances of our system. Because the executive branch (the Government) will always (ignoring the potential for minority Governments) have a majority in the legislative branch (The House of commons). As a result, of this, the Government have a great deal of freedom in terms of how they can legislate. In essence, the Government can pass anything that is not so intolerable that their own Mp’s vote it down. This marks the Government of the UK as one of the most powerful in the world.

Considering the power of the UK Government, the need for a strong constitution to protect citizens and the democratic process from Government overreach is clear. The UK has always been somewhat unique, in that our constitution, unlike most other states, is not written down in any cohesive or complete document. This has meant that the UK, more than most, sees frequent changes to its constitutional arrangements. Sometimes these changes can prove to be ill thought out, or worse deliberate attempts to subvert parliamentary scrutiny.

Historically, the unelected, House of Lords can be considered to have been the biggest check on the powers of Government, going back further they usually were the Government. However, this has, gradually, been eroded. Originally this represented the UK turning increasingly to democracy. In saying this it is worth remembering there was a time when the House of Lords was the most powerful of the two houses of parliament. The Parliament Act 1911 can be seen as key, enshrining the supremacy of the commons in statute. The act dramatically reshapes the powers of the Lords including the revocation of their ability to block bills. The power to block was substituted with the ability to delay; the period by which they can delay was further reduced, to just one year by the Parliament Act 1949. This creates the situation whereby, today, the House of Lords can only delay Bills by one year and cannot make any amendments which the commons do not accept. I would argue that this is, with the current undemocratic makeup of the lords, a good compromise. Bills demand a through debate in the commons and although it could be argued tribalism and party whips greatly lower the scrutiny that bills receive, this system, at least, ensures that elected members and not (mostly) appointed Lords have the final say on making the law of the land.

The issue, of the House of Lords debate, was once again raised by the tax credits debacle. The Government attempted to represent the House of Lords decision to block their proposed changes to tax credits as a “constitutional crisis”, it most certainly was not. The issue here rested upon the Government’s own misrepresentation of the purposes of parliamentary instruments. The changes to tax credits were attempted using a statutory instrument, statutory instruments are intended for tidying up legislation and making minor changes only. Accordingly, the debate time available to statutory instruments scarcely exceeds 90 minutes, which can hardly be considered proper scrutiny. Therefore, I find the Lord Strachclyne recommendation, that the Lords have their rights to veto statutory instruments replaced with a power which in effect mirrors that in place for Bills under the Parliament Act 1949, wholly intolerable. The use of statutory instruments to sneak sweeping legislation through the back door, something which over the last few years has increased exponentially, can be seen as nothing other than an attempt to avoid scrutiny and debate. Therefore, it is right that when such legislation is ill-thought through or even inappropriate to be passed by statutory instrument, the House of Lords retains the right to reject it; this should include the retention of the much malign fatal motion. Such powers do not threaten democracy or the supremacy of the commons, they merely force the Government to use parliamentary instruments as they were intended.

A further ‘constitutional issue’ which this Government have tried to tackle is the ‘West Lothian question’. This is one of the longest standing issues in UK constitutional law. The key question which presents itself is ‘what about England?’ As, while, each of the devolved nations has their own devolved parliament, England does not. Virtually every proposed solution to this problem has its own issues, this is why finding a solution has been on the agenda of constitutional theorists for years. I won’t waste your time commenting on the positives or negatives of the other possible solutions to the problem. Beyond saying, that of all the possible solutions, the one which this Government have chosen is the worst and least effective option. Firstly, it undermines the key parliamentary principle that all members of the house of commons have equal standing, as it can be argued that this creates a two tier system which privileges English Mp’s over other MP’s. Secondly, it fails to give England the ability to legislate independently of devolved nation MP’s, instead only giving English Mp’s a veto. For example, the SNP’s blocking of the Conservatives attempts to revoke the ban on fox hunting (which I am very grateful for) would not be at all obstructed by this. However, a prospective Labour Government would be dependent upon support from Scotland and Wales, whether that was in coalition with the SNP or through recovering from the catastrophe that was May 2015. This means that in the event that Labour ever emerge from the suicidal civil war that currently has hold of the party, and somehow find themselves in Government, they would find it very difficult to legislate on issues which impact only England, as the conservatives would, in effect, hold a vetoing power over them. Repealing English votes for English laws would likely count as English-only legislation, making it unlikely a future Labour Government would be able to remedy this scenario. What this Government has done in altering the standing orders of parliament in this way, is to bind all future parliaments to an aspect of their legislative regime.

If you take anything from this article, take this, the UK Government has a great deal of power, even in comparison to other governments, they really ought to be more thoughtful in how they use it.