Category: society

3rd November 2020

Anyone else confused about how politics informs law making in the Western world?

More specifically, why is it at times that the President of the United States or the Prime Minister of the United Kingdom seem to have so much power and authority to push through their vision seemingly to bypass the institutions and laws existing around them. Yet at other times these same institutions and laws seem like shackles preventing any change. I am constantly surprised at what can and can’t be enacted and I find the media reporting on who is responsible for law making or promises failing or being broken vague. As I have considered my confusion, I have realised it is partly because I do not understand the structure of the office and how the ‘checks and balances’ operate. So here we go. Are you ready? Apologies for the length and dryness of what follows. I’d recommend cake as you read through. 

Let’s start with the US.

In the US, the Constitution has established three branches of Government. the Executive, Legislative and the Judicial branches. Broadly the Legislative branch (Congress) makes the laws, the Executive branch (Presidential office) implements the laws and the Judicial branch (courts) interprets the laws. 

But it’s more complicated than that (no surprise). The Legislative branch is formed of the House of Representatives (House) and the Senate which together form Congress. Congress develops legislation, can declare war and appoints the President.  The House and Senate each has exclusive powers on different decisions which I haven’t gone into here. The Speaker for the House is elected by the representatives of the House who are elected members from the states across the US plus a few other members. Members of the Senate are also elected by the states they represent. 

Proposed legislation has to be approved by both the House and the Senate. A bill introduced to Congress has to be introduced by a member of Congress whether it originates from the House or the Senate. It is then reviewed by one of the appropriate Congress committees where it can be amended but also rejected outright. If approved it will then pass to the members of the House or the Senate and a decision made on the date for it to be considered by such members. On that date the bill is debated and either passed or delayed.

For a bill to pass to the next stage and be signed by the President, it must be voted through by a majority in each of the House and the Senate. Oddly the bill that passes through the House may be slightly different from that considered by the Senate so if passed by both it needs to be reconciled before it it passed to the President for signature to become law. The Vice President’s position of power is that if there is ever a tie in the Senate on such a vote, he or she can cast a deciding vote. Strangely decisions by Congress can be vetoed by the President but that can be reversed if two-thirds of each of the House and Senate oppose the President’s position. This is how Congress can check the President’s power.

Is your head hurting yet?

The Executive branch cannot introduce laws in its own right. It issues regulation that fits with the laws passed by Congress or issues executive orders which can extend existing laws. It also manages the diplomatic relationship with other countries and can negotiate and sign treaties which will then need to be ratified by the Senate. The CIA and Environmental Protection Agency are under the control of the Executive office and the President can appoint many senior posts within them. That’s why when Trump speaks about what he is enacting, it often feels his power is much more wide-reaching than it actually is. 

The Judicial branch is appointed by the President and confirmed by the Senate. The Supreme Court is the highest court in the USA and the only one required by the US Constitution. The President appoints judges to the Supreme Court but any appointments can be rejected by the Senate, though if the President’s party controls the Senate then this would be highly unlikely to happen. The most widely known ability of the Supreme Court is to decide if a legislative or executive order is in violation of the Constitution so ensuring that the US Government regardless of party, follows constitutional expectations. That the fundamental values (or freedoms) for all Americans are upheld. Unlike the UK, The Supreme court does not deal with appeals from within the legal system. 

If you are still awake, get some more cake as we now turn to the UK. 

The UK (from 2005) has the Appellate committee (Supreme court), Legislature (Parliament) and the Executive (Government). 

The Government is usually the party that wins the most votes in a public election. The Government is responsible for the running of the country. They decide how to deliver public services, set taxes and how these funds are spent. The leader of this party is the Prime Minister who is leader of the Government and oversees the operation of the Civil service and other government agencies to help run the country. The Prime Minister appoints members to the Government (The Secretaries of State responsible for running departments, Chancellor of the Exchequer and the Lord Chancellor) which together form the Cabinet. Beneath these posts are Junior ministers – Ministers of state and and under secretary roles which are constitutionally very similar to each other. Ministers can be appointed from the House of Commons or the House of Lords. The Prime Minister can make changes to the structure of Government departments and the portfolios of such Ministers. 

Secretaries of State are responsible for leading departments, developing policies to take through Parliament and monitoring how these are implemented. They are accountable to Parliament. The responsibilities of the Junior ministers vary dependant on the department and role.

The role of Parliament is to represent interests and hold the Government to account by scrutinising Government individuals and their plans. Parliament is composed of two sections – The House of Commons whose members have been elected by the people of the United Kingdom from the winning and losing parties in the election. They work as Members of Parliament (MPs). The second section is The House of Lords whose members are appointed by the Government rather than elected and might not belong to a political party. 

Government puts a bill forward for a new law or a change to an existing law and Parliament exist to debate these new laws or changes taking into account the interests they represent. A bill can start in either the Commons or the Lords but must be approved by both Houses before becoming an Act (into Law). The bill can enter the House of Commons or the Lords through various readings (debates / question time), being amended in between each reading. The detail of the Bill at one stage is examined by a specialist committee before being returned to the House to be considered. It can still be further amended. At a final reading (debate) on the bill, no changes can be made and the House then votes on the bill. If it passes in the Commons it moves to the House of Lords for consideration. If the bill started in the House of Lords, it moves to the Commons and after all amendments it returns to the Lords for consideration. Both Houses must agree the exact words in the bill. Bills can end up ‘ping ponging’ between both Houses until amended and approved by both. 

Once a bill is approved it then is approved by Royal Assent and becomes an Act of Parliament and moves into law.

The UK Supreme court is an appeals court and only considers cases from lower courts. It is the final check on any UK law and the Constitution. The court rules on what a law is when there is a dispute affecting the nation. The judgement it provides sets out how a law should be interpreted and applied. So to be clear – Parliament makes the law and the Supreme court interprets it. Only Parliament can pass or cancel laws but the Supreme court can tell Parliament to reconsider legislation though Parliament is not legally obliged to do so. Unlike in the US, the Justices of the Supreme court are not political appointments; there is a much more independent process to appoint them here in the UK.

I’m not sure I am any the wiser for knowing this but being able to nod sagely and not appear a complete loser when asked a question on this by any of my cost centres is very valuable…..