Monday, June 30, 2008

 

The British Constitution

Cranmer writes that the hereditary peers in the House of Lords voted against the Treaty of Lisbon by a large margin (50 to 14), and it only passed because of the numerous other peers. The BBC says that the Lords voted against a referendum by 280 to 218.

If the House of Lords had voted against the measure, and the Labor government had gone to the country by setting a new election for the Commons, almost surely the Tories would have won the election. Thus, it seems this is a case in which the old hereditary lords would have enable popular opinion to win through.

In America, if Congress voted to delegate some of its power to a different elected assembly, the courts would rule the bill unconstitutional. (It has allowed Congress to delegate rule-making power to the executive branch (e.g. the EPA) and to independent commissions (e.g. the FTC), but that is different.)

Surely there must be some similar constitutional principle in Britain. Maybe it does not apply here because Britain can withdraw from the EU, so this is just like joining the WTC and agreeing not to set tariffs. Suppose, though, that Parliament voted to delegate all its power to a single person. If that person made a law, would the British courts administer that law, or would they refuse to issue penalties based on it?

That example is like the creation of the Vichy government in 1940. The French legislature by a massive majority (something like all but 3 legislators) freely delegated its authority to General Petain, amidst general recognition of its own incompetence. I don't know how the French courts responded.

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