To what extent do the Fixed-term Parliaments Act 2011 and The Constitutional Reform Act 2005 support the contention that the UK has shifted from a political to a legal constitution?
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My name is Dara Foody and I am a 20 year old law student from London. I am currently in the final year of my undergraduate studies. This essay seeks to critically evaluate the extent (if any) to which both The Fixed-term Parliaments Act 2011 and The Constitutional Reform Act 2005 have usurped the UK’s traditionally political constitution. Despite receiving less coverage than some other constitutional statutes (namely the Human Rights Act 1998), they have introduced highly significant reforms – in particular, the Fixed-term Parliaments Act transfers the power to dissolve Parliament from the executive to the legislature. I was therefore keen to explore whether the statutes have either orchestrated, or contributed towards, a material shift in what is arguably the constitution’s core characteristic. My research ultimately concluded that both pieces of legislation have largely preserved the political constitution. Arguably, they both enhance political accountability whilst also permitting political actors to retain considerable decision-making authority. Thus, if the UK constitution was to become highly legalistic, this would be unlikely to be due to either the Fixed-term Parliaments Act or the Constitutional Reform Act.
- Dara Foody, Author
Introduction
Political constitutions arise when the judiciary are largely unable to constrain politicians’ decisions.[1] The government is primarily held to account by legislatures as opposed to courts. Legal constitutionalists argue that these political control mechanisms are ineffective and advocate a more pronounced role for the judiciary.[2] Legal accountability is enhanced and courts may sometimes annul primary legislation.[3] Traditionally, the UK Constitution has been a political one. This paper will assess whether both the Fixed-term Parliaments Act 2011 (FTPA) and the Constitutional Reform Act 2005 (CRA) have orchestrated a shift towards a legal constitution. Both statutes impose some limits on politicians’ flexibility and decision-making and so adopt features of legal constitutionalism. However, neither statute profoundly constrains political actors’ decision making or meaningfully augments the judiciary’s contribution to contentious political decisions. Political accountability has also been bolstered. Consequently, both statutes have largely conserved the political constitution.
[1] Helen Fenwick, Gavin Phillipson and Alexander Williams, Text, Cases And Materials On Public Law And Human Rights (4th edn, Routledge 2015)
[2] Ibid.
[3] Ibid.
