ChatterBank3 mins ago
Scrap The F T P A?
24 Answers
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it was only a sop to the Lib non dems anyway.
it was only a sop to the Lib non dems anyway.
Answers
Cant see a problem with it being put back as it was to be honest.
13:08 Wed 02nd Dec 2020
The distinction for prorogation was that this wasn't a proceeding in Parliament (as covered by the Bill of Rights), but an imposition on it. I think dissolution could be argued to be the same, as it's not something said or done *in* Parliament, but *to* it. In particular, I think most people would accept that the dissolution of Parliament must be followed in practice by an imminent election, so that a new Parliament can be summoned shortly afterwards, and, as a consequence, there is a clear limit on the prerogative power to dissolve for this purpose alone.
What happens, then, if a future PM decides to dissolve Parliament without calling an imminent election? Would this be a breach of the limits of that power? Is it not up to the Courts to decide this question?
What happens, then, if a future PM decides to dissolve Parliament without calling an imminent election? Would this be a breach of the limits of that power? Is it not up to the Courts to decide this question?
Perhaps not, although it also raises an interesting question over whether the Monarch could actually say no to any request from the PM, under our present understanding of Constitutional Monarchy. When was the last time it happened?
These questions will hopefully remain hypothetical, and in the long run I am confident that the British people, backed by the weight of tradition, can be trusted to arbitrate against anyone attempting a power-grab of the sort seen in other countries. (I'm thinking in particular of Russia, which recently saw its constitution rewritten to make Putin legally untouchable in perpetuity, and allow him to be leader in perpetuity, both of which are offensive to democratic principles.) Still, the biggest weakness of the UK Constitution is its overreliance on convention, good faith, and rule of law, all of which have at least been shaken recently.
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Returning to the narrower topic, it's presumably inevitable that the FTPA will be repealed and the old method returned to. I'm not sure that's the best answer to the failures of the FTPA, but that's not my real problem with the proposed Bill. There is no cause for including the clause excluding Courts for review, there is no particular benefit from it, and there is no particular permanence either. I'm not even sure, if it comes to that, that it guarantees that the Courts would be excluding from ruling on the lawfulness of the Clause in question itself. Would it not be a matter of law to decide what Parliament can, or cannot, say about what the Courts can do?* They are bound by Statute Law, but, presumably, there are clear limits to what Statute Law could say or do, most notably that Parliament can't pass a law that binds its successors. Even the present draft legislation had to be considered in light of potential violations of the European Convention on Human Rights (eg, by taking away the right to regular democratic elections, which the present legislation doesn't).
*See also R (Jackson) v Attorney General, which is the first (and I think only major) suggestion that judges have a role in assessing limits to Parliamentary sovereignty.
These questions will hopefully remain hypothetical, and in the long run I am confident that the British people, backed by the weight of tradition, can be trusted to arbitrate against anyone attempting a power-grab of the sort seen in other countries. (I'm thinking in particular of Russia, which recently saw its constitution rewritten to make Putin legally untouchable in perpetuity, and allow him to be leader in perpetuity, both of which are offensive to democratic principles.) Still, the biggest weakness of the UK Constitution is its overreliance on convention, good faith, and rule of law, all of which have at least been shaken recently.
* * * * *
Returning to the narrower topic, it's presumably inevitable that the FTPA will be repealed and the old method returned to. I'm not sure that's the best answer to the failures of the FTPA, but that's not my real problem with the proposed Bill. There is no cause for including the clause excluding Courts for review, there is no particular benefit from it, and there is no particular permanence either. I'm not even sure, if it comes to that, that it guarantees that the Courts would be excluding from ruling on the lawfulness of the Clause in question itself. Would it not be a matter of law to decide what Parliament can, or cannot, say about what the Courts can do?* They are bound by Statute Law, but, presumably, there are clear limits to what Statute Law could say or do, most notably that Parliament can't pass a law that binds its successors. Even the present draft legislation had to be considered in light of potential violations of the European Convention on Human Rights (eg, by taking away the right to regular democratic elections, which the present legislation doesn't).
*See also R (Jackson) v Attorney General, which is the first (and I think only major) suggestion that judges have a role in assessing limits to Parliamentary sovereignty.
Apparently there would be a problem simply repealing the legislation. It seems a royal perogative was removed when it was passed, and the system only allows for powers to pass from royalty downward and forbids passing power back up; which is what would occur if things were returned as they were. Parliament would have to find a way to emulate the perogative and argue for that.
