But should they though?
The whole thing smacks of something ever so slightly dictatorial. Why should a group of 350 unrepresentative people (all of whom are to the right of average, and many of whom are well to the right of average) be able to sidestep the legal system just like that?
Aren't there supposed to be checks and balances to prevent governments going rogue like this and thinking they are above the law?
It's worrying when government has so much power, and changing the law because you lose in court sounds very suspect.
Well, you're running into constitutional issues now. The reality is that, as currently constituted, Parliament is absolutely sovereign and as long as a bill receives a majority of votes in the House of Commons and Lords it will become law. The checks and balances are the Lords themselves as the "revising" chamber. They should vote down something which is clearly a massive problem and force the Commons to override them. But within the operation of Parliament that is about it for checks and balances.
I suppose if things got really
funky the monarch could try to refuse Royal Assent to a bill. I dunno say something like the Electoral Reform Act 2023 came in front of Charles for Royal Assent but the effect of the Act was to cancel future General Elections until such a time as the Prime Minister decides to hold one again then he could theoretically refuse to sign it and it would therefore not become law. But we'd be properly off to the constitutional races at that point as a) it's not happened since 1708 and b) it's questionable if the power really does still exist.
But yes, you have spotted a key part of the way that the British system works. Between elections Parliament (and in reality the Government and Prime Minister) have near dictatorial levels of power with very few checks on their power as they can pass laws however they see fit as long as they can command a majority within Commons. So...
But isn't that open to abuse?
At the moment we have a very strongly right-wing government (I'm making this comment due to its apparent strong dislike of "wokery", immigration and the EU and its desire to wage culture wars - see the imaginary "war on the motorist", anti-trans overtones, etc). Is it right that a government so far in one direction from the centre should be able to legislate how it likes without any form of checks and balances?
I'd say the same about a hypothetical very strongly left-wing government, for avoidance of doubt.
...yes it is open to abuse. However there are some checks and balances through custom and practice, the fact that I don't think that enough Tories are quite far gone enough for there to be an actual majority for my suggested Electoral Reform Act 2023 to actually pass and more importantly, and topically, thanks to things like the European Convention on Human Rights.
Our membership of the ECHR provides important protections from a rogue Government. For instance my proposed Electoral Reform Act 2023 would, if passed, no doubt face legal challenge and would fall flat on its arse as being incompatible with the ECHR as
Protocol 1 Article 3 obligates states to: "hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the electorate in the choice of the legislature".
Equally a Government could enact a Police and Justice Reform Act 2023 which allowed the police to use substantial physical force during interrogations such as beatings and allowed that people can be convicted of any crime if two police officers agree they're guilty. This would also no doubt be subject to legal challenge and would also fall flat on its arse as soon as it came into contact with the ECHR as
Article 3 states that: "No-one shall be subjected to torture or to inhuman and degrading treatment or punishment" being allowed to beaten by the police during interrogations would clearly be torture or could be inhume or degrading treatment whilst being convicted of a crime by the police would collapse on
Article 6: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
And this is why it is so important that the ECHR exists and isn't just a part of domestic law that a Government could amend easily at leisure. It provides a vital check and balance against Government overreach and excess state power against individuals. Of course it's not infallible. The Government could ignore it and not face much consequence, they could remove us from the ECHR full stop of course. But it being outwith domestic law is it's entire point. We saw what happened when Governments were not answerable to an outside check and balance during the 1930s and 1940s and decided that we'd quite like it if that wasn't possible again thank you very much.
It's also why I'm highly suspicious of anyone who argues that we should leave the ECHR and have a British Bill of Rights instead. The whole point is to ensure that the State cannot abuse it's awesome power and you want to make that same State the ultimate arbiter of what is and isn't abuse of its power? Why? Why can't your plans comply with Human Rights? Because if they cannot comply with the ECHR then that suggests to me that there's something fundamentally wrong with them and I don't think you should be trusted if you so insistent on implementing your plan that you'd rather leave the ECHR than make it compliant...
In R. v Leavett 1914 "Mr Justice Darling, in the course of counsel's argument, said they could not make a winkle into a fish by including it in the licence to fish, they could not make a pig into a fish. The Bible called the whale that swallowed Jonah a fish but the whale was not a fish". Leavett, prosecuted for fishing without a licence, had responded that the creatures he collected, winkles, were not fish. The local council replied that their fishing license terms stated that winkles were fish. The courts were not convinced and Leavett was acquitted on appeal.
