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Tuesday, 25 May 2010

The dangers of not having a written constitution

The Queen's Speech today announced the European Union Bill, which will guarantee a referendum before any future treaty handing powers to the European Union can be ratified by the UK.  It also included the Parliamentary Reform Bills, which include the somewhat controversial proposal that 55% of MPs must vote to dissolve parliament before an election can be called ahead of the new fixed 5-year term.

Apart from the fact I don't believe the 55% threshold for the dissolution of parliament to be controversial, as Iain Roberts agues this is not restricting an existing power of parliament, but removing a power from the Prime Minister - to ask the Queen to dissolve parliament - and handing that power to the parliament; there is a loophole in both these pieces of proposed legislation.

What's to stop any future government, or even this current government, repealing the European Union Bill and then ratifying a controversial treaty without a referendum?  In short: nothing.  There is even a small possibility that a majority in parliament could push through a law changing the dissolution threshold to 50.1% and following that, push to dissolve parliament and hold an election.

Both these scenarios arise due to the lack of a written constitution in the UK.  Constitutional matters are dealt with using the same process as primary legislation (ordinary law).  In countries where a written constitution exists, the political process involved in changing the constitution is necessarily more rigorous than passing primary legislation in order to prevent this type of scenario arising.

In the US, for example, a constitutional amendment must pass both houses by a two-thirds majority before being ratified by all of the states.

I'm left wondering whether the European Union Bill in particular is worth the parliamentary time needed to pass it.

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