Criticisms of the Constitution
Criticisms have been directed at the ‘traditional’ constitution, the constitution that existed before the Blair government’s reforms started in 1997 (discussed below), but many commentators argue that they remain relevant to the contemporary, ‘reformed’ constitution.
Critics of the UK constitution point out that it is sometimes difficult to know what the constitution says. Confusion surrounds many constitutional rules because, quite simply, they are not hard and fast. This applies particularly to the constitution’s unwritten elements. For instance, the convention of individual ministerial responsibility requires that ministers are responsible for blunders made by their departments. But does this mean that they should resign when civil servants make mistakes or only when mistakes are made by the minister? Further, does ‘responsibility’ imply that anyone has to resign, or just that the minister must provide answers and promise to put mistakes right? It is difficult, in such cases, to escape the conclusion that the constitution is made up as we go along.
The most serious and challenging criticism of the UK constitution is that, in practice, it gives rise to the problem of ‘elective dictatorship’. This term was coined in 1976 by Lord Hailsham, a former Conservative minister and later a Lord Chancellor under Thatcher. It draws attention to the simple fact that, once elected, UK governments can more or less act as they please (that is, act as dictators) until they come up for re-election. This occurs through a combination of two factors:
• Sovereign power is vested in the hands of Parliament.
• Parliament is routinely controlled, even dominated, by the government of the day.
The problem of elective dictatorship is that, in concentrating power in the hands of the executive, it allows the government of the day to shape and reshape the constitution however it wishes. This creates the impression that, in effect, the UK does not have a constitution. As John Griffiths (1997) put it, the constitution in the UK is ‘what happens’. The other concern is that, in widening the powers of government, it creates the possibility that government may become oppressive and tyrannical.
A further target of criticism has been that the UK has an overcentralised system of government with weak or ineffective checks and balances. One of the key features of liberal democracy is that government power is limited through internal tensions between and amongst government bodies. However, UK government is characterised more by the concentration of power than its fragmentation. This can be seen in many ways: The constitutional reforms that have been introduced since 1997 have certainly tried to address this problem, particularly through devolution and the early stages of Lords reform.
Rights are not well protected
The final criticism is that the UK constitution provides weak protection for individual rights and civil liberties. In part, this is a consequence of elective dictatorship and the fact that, except for elections, there is nothing that forces the government to respect individual freedom and basic rights. Elections, indeed, can only do this inadequately as they tend to empower majorities rather than minorities or individuals. However, this concern also arises from a traditional unwillingness to write down individual rights and freedoms, to give them legal substance. Individual freedom in the UK traditionally rested on ‘residual’ rights that were supposed to be part of common law. The passage of the Human Rights Act 1998 has certainly changed this, by both defining rights more clearly and making it easier for them to be defended in the courts. However, it stops well short of being an entrenched bill of rights as its provisions could be set aside by Parliament, as has occurred, for instance, over terrorism legislation.