Critically analyse the extent which, if at all, the traditional foundations of UK Constitutional Law remain intact in 2018.Introduction The United Kingdom is a “complicated State”. Within the United Kingdom, there is no written constitution to secure the objectives of the State or serve as the foundation of the legal system. Although there is an absence of a written Constitution, the UK does in fact have a Constitution, Tomkins refers to the English Constitution as “unwritten”. The resulting vacuum is occupied by the doctrines of the legislative supremacy of Parliament and the rule of law.
Thus, albeit, the English Constitution is ‘unwritten’, much of it is written, somewhere. It is to be found in a variety of places and has been described as “a constitution of multiple sources”. The UK constitutional law has been described as descriptive rather than normative, meaning, they do not possess a document of what ought to be done, rather, their Constitution evolves over time, based upon the idea of experience and experiment. Munro describes it as the ‘product of experience and experiment’, meaning, the law can change merely as a result of political practices changing. The main features of the existing Constitution of England as it stood in 1885 and the leading focus of the following essay are Sovereignty of Parliament and the Rule of Law, the Conventions of the Constitution and the Separation of Powers. The UK Constitution has radically changed in the past twenty years.
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“The late 1990’s marked a major period of constitutional reform in the UK”, seeing the introduction of a whole host of constitutional changes, with devolution to Wales, Scotland and Northern Ireland; the Human Rights Act 1998; and the pressing issue of the UKs departure from the European Union being only some of the main challenging constitutional fundamental changes that have recently taken place. Sovereignty of Parliament Dicey argued that the law of the UK Constitution was composed of two cardinal rules, which he labelled the sovereignty of Parliament and the rule of law. The doctrine of legislative supremacy provides that as a matter of English law there is no source of law higher than a statute. Dicey considered the principle of Parliament Sovereignty, formulating that the principle meant no more or no less than, that “Parliament” has “the right to make or unmake any law and whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”. The doctrines only limitations at the time, being, the rule of law. The doctrines of legislative supremacy appeared in the first edition of the UK Constitution, in 1885 and have been repeated in each following edition published up to this present day.
However, over time, the understanding of parliamentary sovereignty has drastically altered. In the pre-1991 sense, Parliamentary sovereignty was legally unchangeable, a rule of the United Kingdom’s Constitution that placed serious limits on the ambitions of constitutional change. Since 1991, several constraints have been imposed on parliamentary sovereignty, resulting in the doctrine being far more limited and subsequently fading out through the years.
The old rule of sovereignty no longer prevents Parliament from placing limits of substance, as well as form, on itself. Parliamentary sovereignty has since become a much more refined doctrine with the scope being limited as a result of the Devolution Acts, the Human Rights Act and the UK’s relationship with Europe. The implications these concepts played on the fundamental foundation of Parliamentary sovereignty will be discussed at a later stage in this essay. Though, currently, the supreme legal authority in the UK Constitution remains to be Parliament, as “there is no piece of legislation beyond its reach, and it could repeal the European Communities Act or the Human Rights Act if it wished”. The older and more fundamental meaning of Parliamentary sovereignty has been modified through the enactment of several Acts in the 1900s and subsequently, the doctrine of Parliamentary sovereignty has ceased to be the key foundation of the UK Constitution. The doctrine has been said to have died out in recent years, as a result of various limitations placed on the doctrine.
Be it as it may a weakened doctrine, Parliament remains the supreme legal authority in the United Kingdom’s Constitution and has remained to be a feature present in each subsequent edition, up to present day, of the Constitution post publication of the original 1885 edition. Constitutional ConventionsAlongside, formal rules that govern parliamentary procedures, there are non-legal, informal practices, as “the constitution is not entirely legal”. The English constitution also relies on political sources called ‘constitutional conventions’. “A constitutional convention is a non-legal, but nonetheless binding, rule of constitutional behaviour. By non-legal is meant the notion that the rule is not enforceable by a court.” Therefore, conventions are not laws, they are accepted as obligations by those concerned in the working of the constitution and are ‘founded in conscience only’, dealing with rights, powers and duties. The idea of constitutional conventions being derived by social behaviour captures two of the UK’s “fundamental features: their normative quality, in prescribing standards of behaviour; and the fact that they are not enforced in the courts .
Conventions hold no legal basis and therefore, ‘courts do not “enforce” conventions’ . The only consequence attached to a convention, being a political consequence. Constitutional conventions are the fundamental rules of British political life, without which “relations between Government and Parliament would all go awry”.It is where conventions are enacted into law that they play a role in restricting parliamentary sovereignty.
For instance, Section 4 of the Statute of Westminster 1931 gave legal effect to a convention, providing that no future act of UK Parliament was to extend/deemed to extend to Dominion as part of its law unless request/consent of that Dominion expressly declared in that Act. Examples of constitutional conventions that present in the UK Constitution to this day include ministerial accountability, collective ministerial responsibility and cabinet confidentiality. Thus, a convention is a practice which enjoys a long history of unbroken observance, in respect of which there is a strong sense of obligation, and which forms an integral part of the constitutional order. Occasionally conventions play a role in restricting the sovereignty of Parliament, albeit, the main purpose of conventions being to give the Constitution the scope to evolve with society.
Separation of PowersIn the absence of a written constitution, the United Kingdom lacks a formal separation of powers. Be that as it may, Barendt argued that the doctrine of separation of powers has a fundamental role to play in the British constitution. No Act of Parliament may be held unconstitutional on the ground that it seeks to confer powers in breach of the doctrine. The functions of the legislature and executive are closely inter-related and ministers are members of both. Lord Mustill, recognised the significance of the separation of powers doctrine: “It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain”.Over time, the doctrine of the separation of powers has remained a constitutional fundamental in the UK.
The doctrine, however, has altered since the original less formal application, moving towards a more distinct separation of the powers as a result of various challenging constitutional fundamentals such as: the Human Rights Act 1998; the effect of the British membership of the European Union and the enactment of Section 3(1) of the Constitutional Reform Act 2005 removed the role of the Lord Chancellor in the judiciary. In a system of government based on law it remains important to distinguish in constitutional structure between the primary functions of law-making, law-executing and laws-adjudicating.Devolution The United Kingdom is the union of four unequal partners: England, Wales, Scotland and Northern Ireland. The ‘union’ status of the state, generally displaying a strong centralized trend.
When the UK constitution was first established England was by far the most dominant partner in regard to having the most political and economic power. In an attempt to address the imbalance of political and economic power the UK government introduced a process of devolution in the 1970’s, challenging the constitutional fundamentals by providing the other regions with more power and greater self-determination in an attempt to move away from the “over centralization of executive and legislative power in London”.In essence, devolution denotes the “vesting of legislative and executive powers in elected bodies in Scotland, Wales and Northern Ireland who have political”. A key aspect of devolution is the concept of subsidiarity; it is the principle which governs the choice of who should act, in situations where there is the potential for the ability for more than one actor being able to act. It is a principle about the functioning of democracy, helping to structure the ways in which democracy can operate and it is concerned with “the allocation of powers to pre-existing institutions”.
Therefore, devolution maintains the traditional foundation of undivided sovereignty of Parliament, however, “disperses governmental power from the centre”. In recent years, the UK has moved towards decentralization as a result of “‘yes’ votes in the various referendums on devolution”. Devolution now comprises of Acts such as: The Northern Ireland Act 1998; the Scotland Act 1998; The Government of Wales Act 1998; and the Government of Wales Act 2006, along with concordats and Henry VIII clauses.The term ‘Henry VII clauses’ refers to a provision in primary legislation which allows other primary legislation to be amended by secondary legislation. Subsequently, these clauses grant the hierarchy relationship to be inverted providing more flexibility, especially in emergencies, as it facilitates a law-making power by a democratic institution other than the Parliament, fracturing the unity, as another body can override a parliamentary decision.
There are significant provisions that give rise to this power: The Swell Convention, which renders it politically difficult for West Minister to legislate against the will of the devolved legislatures.Thus, it may be said that devolution can be considered as a positive thing, as a “devolved unitary state is a better thing than the old centralized unitary state”. However, in all, while the current devolutionary plan constitutes an improvement over the former centralist ideology, it would appear to be intellectually unsustainable and defective as a long-term constitutional solution for the UK. For the UK to avoid reverting back to the old centralised unitary state, Olowofoyeku suggests, “a clearly thought-out, coherent, comprehensive, decentralizing plan for the whole of the UK” needs to be set in place. This is perhaps how the future of devolution in the UK looks but for now the UK has moved away from the original overcentralised ideology to a more devolved unitary state. The Human Rights Act 1998 The Human Rights Act 1998 provides that Convention rights may now be enforced in the domestic courts. Prior to the enactment of this act “the tradition British approach to the protection of civil liberties and human rights” was covered under the common law.
This was greatly influenced by Dicey, Dicey saw no need for any statement of fundamental principles operating as a kind of higher law, because political freedom was adequately protected by the common law and by an independent an independent Parliament. The traditional approach saw the rising of issues regarding the protection of human rights and as a result, the courts became gradually more active in protecting human rights, seeing the enforcement of human rights in cases such as Reg v Home Secretary, ex p Brind. Lord Nicholls in Ghiadan v Godin -Mondoza, captured the essence of the current approach to the protection of human rights in the UK under the 1998 Act. The courts may have to construe legislation consistently with Convention rights even where there is no ambiguity in the legislation, even if this means departing from the intention of Parliament but it must remain consistent with the feature of the legislation.
Therefore, Parliament has retained the right to enact legislation which is not convention compliant. The Human Rights Act 1998 appears to give the courts a great deal of scope ‘to decide the limits of their own decision making’. The Act has led to the courts having greater regard to the human rights of UK citizens. “The scheme of the Act is such that with the British constitution system the traditional legal principle of parliamentary sovereignty has been preserved, with the courts having powers that fall short of invalidating legislation on human rights grounds”.European Union Law Britain became a member of the European Union in 1973, by virtue of the European Communities Act 1972.
The UK’s entry into the EU was challenged “on the ground that it constituted an abuse of the prerogative treaty-making power to the extent that it would undermine the sovereignty of Parliament”. Section 2(4) of the 1972 Act affirmed that statutes ” shall be construed and shall have effect subject to the foregoing provisions of this section”, that is to say, following the enactment, the British legal system had to incorporate European Laws. This was a direct challenge to Parliamentary sovereignty, an attempt to impose a substantive limit on the effective legislative capacity of subsequent parliaments. Thus, as was highlighted in R v Secretary of State for Transport ex p Factortame, the UK voluntarily accepted the limitations the 1972 Act placed on the sovereignty of Parliament upon the agreement of enactment and were aware that from that date on, that EU law would be the supreme legal authority, which was recognised by the House of Lords in Factortame.Prior to the enactment of the 1972 Act, Parliament was the supreme legal authority, however, as a result of the 1972 Act “the old absolutism of sovereignty is no longer viable”.
After the enactment, the courts possessed a “political capacity to alter the fundamental rule of the British constitution”.Accordingly, with the UK’s entry to the EU, followed the slow fade out of the constitutional fundamental of Parliamentary sovereignty, on the account that EU law now held supremacy over Parliamentary sovereignty leading to the doctrine being weakened, albeit, not dead.For all that, on 23 June 2016 a majority of the UK electorate voted at a national referendum to leave the European Union.
Presently, the United Kingdom is commencing its departure from the European Union through the enactment of Article 50 of the Lisbon Treaty. Following this, EU law will no longer have supremacy in the British legal system. This poses many challenges for the UK Constitution, raising questions revolving around “roles of UK government, UK parliament, and devolved institutions in Brexit”.
The aftermath of Brexit on the allocation of powers remains to be seen, after all, with EU law no longer having supremacy over Parliamentary sovereignty, does this lead to this assumption that the UK will revert back to the traditional doctrine of parliamentary sovereignty? Brexit has been a highly topical issue since the British referendum and continues to be a topical issue to this current day as the implications of the UK’s withdrawal from the EU are yet to be establish. Only time will tell if the UK’s withdrawal from the EU will see the UK revert back to the old fundamental and traditional approach to the sovereignty of Parliament. Conclusion Since the first edition of the British Constitution in 1885, several deconstructing constitutional fundamentals have modified the tradition constitutional foundations of parliamentary sovereignty, constitutional conventions and the separation of powers. Despite the challenges, these three traditional foundations of UK Constitutional law have been present in every edition of the Constitution post the 1885 edition to this present day.
As a result of the challenging constitutional fundamentals, the UK has a more distinct allocation of powers compared to the 1885 approach. Alongside this, the UK’s Constitution saw parliamentary sovereignty become a much more refined doctrine with the scope being limited as a result of the Devolution Acts, the Human Rights Act and the UK’s relationship with Europe. However, with the decision of the UK to withdraw from the European Union in 2016, the UK may revert back to the older and more fundamental approach to the sovereignty of Parliament, albeit, this remains to be seen.
