{"id":328,"date":"2019-07-30T11:16:54","date_gmt":"2019-07-30T11:16:54","guid":{"rendered":""},"modified":"2019-08-07T11:57:26","modified_gmt":"2019-08-07T11:57:26","slug":"principle-parliamentary-sovereignty-uk-constitution-8354","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/constitutional-law\/principle-parliamentary-sovereignty-uk-constitution-8354.php","title":{"rendered":"Principle of Parliamentary Sovereignty and the UK\u2019s Uncodified Constitutional System"},"content":{"rendered":"

In this response, I will be critically discussing the principle of Parliamentary sovereignty<\/a> and the UK\u2019s uncodified constitutional system and how it can never truly adhere to a \u201cpure\u201d separation of powers. <\/p>\n

A significant doctrine that I will be discussing is the separation of powers<\/a>. It is concerned with three constitutional functions which include: the making of laws, the making of decisions and execution of policies in the process of government and the judging and settlement of disputes (John Stanton and Craig Prescott, 2018, Public Law,<\/em> Oxford University Press). These functions are satisfied by the legislature which is the institution of government that passes legislation \u2013 Parliament. Parliament is a bicameral institution as it contains two chambers \u2013 the House of Commons and the House of Lords. The functions outlined above are also fulfilled by the executive which is the body that makes decisions and implements the law on a wide range of matters and its main purpose is to execute the laws made by Parliament \u2013 carried out by government institutions. The final function is the judiciary which is carried out by the courts and judges who have responsibilities to reflect the law in judgments and settling disputes. <\/p>\n

Parliamentary sovereignty has various meanings for different
\npeople. However, the basic meaning of this term is famous within Dicey\u2019s late
\nnineteenth century seminal text an
\nintroduction to the Study of Law of the Constitution<\/em>. In this piece of work
\nDicey states: \u2018[\u2026] that parliament thus defined, has, under the English
\nconstitution, the right to make or unmake any law whatever; and, further, that
\nno person or body is recognised by the law of England as having the right to
\noverride or set aside the legislation of Parliament.\u2019[1]<\/a>
\nDicey\u2019s definition can be broken down into three points which are commonly
\nidentified as reflecting the essence of the orthodox principle: [2]<\/a>
\nThe first is Parliament can make and unmake any law on any subject matter
\n(positive aspect), the second is that no person or body has the power to
\noverride or derogate from an Act of Parliament (negative aspect) and Parliament
\ncannot be bound by its predecessors or bind its successors. This definition
\nillustrates that Parliamentary supremacy does not adhere to a complete
\nseparation of powers because it means that Parliament the legislature has
\nultimate authority which does not reflect the balance between the three: the
\nlegislature, the executive and the judiciary. However, it could be argued that
\nas the executive carries out responsibilities to uphold Parliamentary
\nsovereignty it also holds a significant function and the balance in terms of
\nseparation of powers can be seen. Furthermore, the judiciary plays a
\nsignificant role as without the courts there wouldn\u2019t have been Parliamentary
\nsovereignty as the courts agree to uphold the law and implement it through
\ntheir judgments.[3]<\/a><\/p>\n

On the other hand, Wade agreed that parliamentary
\nsovereignty was linked to the rule of judicial obedience. This rule of judicial
\nobedience notes that judges obey and abide by the instructions and enactments
\nof the democratically elected Parliament. 
\nWade explains the significance of the rule above and states: \u2018The rule
\nof judicial obedience is in one sense a rule of common law; but in another
\nsense \u2013 which applies to no other rule of common law- it is the ultimate
\npolitical fact upon which the whole system of legislation hangs\u2026\u2019 [4]<\/a>
\nThis statement can be interpreted in three key points. The first is that
\nParliament is sovereign because the courts recognise it\u2019s Acts as supreme. For
\nexample, In the case of R (Jackson<\/em>) v
\nAttorney-General[5]<\/a>
\nLord Steyn agreed that parliamentary sovereignty\u2019 is a construct of the common
\nlaw. The judges created this principle.\u2019[6]<\/a>
\nThe second key point to note from Wade\u2019s conception of \u2018The basis of Legal
\nsovereignty\u2019 (1995) is that he notion is not a legal principle but is instead
\npolitical. The third part is that Parliament\u2019s sovereignty cannot be said to
\ndescend from any Act of Parliament. The reason for this idea is that Parliament
\ncannot itself alter or change its own sovereignty. (Stanton and Prescott, Public Law<\/em>, p.121, 2018) Research of the
\nsecond Factortame case ((1996) 112 Law Quarterly Review 568) by Wade
\nillustrates that case overthrew the doctrine of Parliamentary sovereignty and
\nstated: \u2018When in the second Factortame <\/em>case
\nthe House of Lords [refused to apply the MSA] it was natural to suppose that
\nsomething drastic had happened to the traditional doctrine of Parliamentary
\nSupremacy.\u2019 (Group, 2018) The issue in this case was whether the EU Law was
\nsupreme over UK law remembering the doctrine of Parliamentary Supremacy. The
\nfact that the claimants succeeded means that the case confirmed the UK\u2019s
\nsubordination to the EU Law. (Webstroke.co.uk, 2018) Wade\u2019s conception of the
\nlink between Parliamentary sovereignty and the judiciary reflects the
\nseparation of powers concept to some extent, as the legislature and judiciary
\nwork together inline in order to run the UK in a reasonable manner which
\nreflects the positives of the UK constitution. However, it could be argued that
\nthere may be imbalance between the functions as not all three functions play an
\nequal role in upholding parliamentary supremacy. From Wade\u2019s quotation we can
\ninterpret that he suggests the legislature and the judiciary play a much more
\nsignificant role than the executive in upholding Parliamentary sovereignty. <\/p>\n

In contrast to Wade\u2019s concept of Parliamentary sovereignty
\nJennings argues that it is the common law principle established as a result of
\nthe evolution and Growth of the UK constitution. (Stanton and Prescott, 2018)
\nJennings states: \u2018[\u2026] in the United Kingdom, which has no written constitution,
\nit derives from the accepted law which is common law.\u2019 (Anon, 2018) Jennings
\nbasic idea is that Parliament is sovereign because the courts have always
\nabided by their instructions and the Acts of parliament are embedded within the
\ncommon law. (Stanton and Prescott, Public
\nLaw<\/em>, p.122, 2018) Through this Parliamentary sovereignty is \u2018a legal
\nconcept, a form of expression which lawyers use to express the relations between
\nParliament and the courts\u2026\u2019 [7]<\/a>
\nOnce again Jennings\u2019s interpretation of Parliamentary sovereignty signifies
\nthat the three functions which uphold this concept of Parliament being supreme
\nis unequal as the responsibilities between the legislature, executive and the
\njudiciary are not balanced, and this principle illustrates the disadvantages of
\nnot having a structured system. <\/p>\n

Goldsworthy discusses that Jennings theory has an issue as
\nhe is wrong to claim that \u2018the doctrine of parliamentary sovereignty was a
\ncreature of the common law.\u2019 [8]<\/a>
\nGoldsworthy challenges Jennings theory that the sovereignty derives from common
\nlaw and supports Wades approach through a different path by seeing sovereignty
\nas deriving not from parliamentary legal authority but instead from a
\n\u2018consensus among the senior legal officials.\u2019 [9]<\/a>
\nGoldsworthy challenges my previous argument and is in favour that the three
\nfunctions play an equal role in upholding the principle as he argues that the
\nexecutive has an important role just as the other two functions have. <\/p>\n

Defining a constitution can be problematic and there is no
\ncore definition, however many theorists have given their view on what a
\nconstitution is and how is applies to law. Professor KC notes that the word
\n\u201cconstitution\u201d is \u2018used to describe the whole system of government of a
\ncountry, the collection of rules which establish and regulate or govern the
\ngovernment. These rules are partly legal and partly non-legal\u2026\u2019 [10]<\/a>
\nwhere as Hilaire Barnett notes: \u2018the constitution of a state\u2026 forms the
\nbackcloth of government and its powers\u2026 it is a set of rules, written or
\nunwritten, which identifies the principal institutions of the state, their
\npowers and relationships with other state institutions and the relationship
\nbetween government and citizen.\u2019[11]<\/a>
\nProfessor KC\u2019s quotation demonstrates that the UK constitution upholds a pure
\nseparation of powers as there is a clear separation of powers in the UK system
\nwhich upholds Parliamentary supremacy. In contrast, it could be argued that the
\nquotation is so broad that we cannot interpret whether Professor KC aims to
\nimply that the three functions in the UK constitution have equal
\nresponsibilities in upholding the Parliamentary supremacy principle. <\/strong><\/p>\n

The UK constitution can be described as uncodified, similarly
\nto Israel and New Zealand. However, all other countries around the world take
\nthe form of a codified document. This means that their constitution is written
\ndown in one place, however the UK\u2019s constitution is uncodified which means it
\nis not contained within one document however can is set out across a variety of
\nsources such as Acts of Parliament, case law and constitutional conventions.[12]<\/a>
\nThe fact that the UK constitution is uncodified means that we cannot adhere to
\na \u201cpure\u201d separation of powers, especially as there is no single document which
\nstates the responsibilities of the legislature, executive and judiciary are
\nequal in preserving Parliamentary supremacy. This does in fact express that
\nthere is no equality between the three functions.[13]<\/a>
\nHowever, it could be reasoned that the uncodified system supports the
\nseparation of powers because the uncodified nature takes into account the three
\ncategories: Acts of Parliament, case law and constitutional conventions which
\nmeans that the legislature, executive, and judiciary are all involved and an
\napparent separation of powers can be established. <\/p>\n

A significant doctrine that I will be discussing is the
\nseparation of powers. It is concerned with three constitutional functions which
\ninclude: the making of laws, the making of decisions and execution of policies
\nin the process of government and the judging and settlement of disputes (John
\nStanton and Craig Prescott, 2018, Public
\nLaw,<\/em> Oxford University Press). These functions are satisfied by the
\nlegislature which is the institution of government that passes legislation \u2013
\nParliament. Parliament is a bicameral institution as it contains two chambers \u2013
\nthe House of Commons and the House of Lords. The functions outlined above are
\nalso fulfilled by the executive which is the body that makes decisions and
\nimplements the law on a wide range of matters which is relevant to the day to
\nday running of the country and its sole purpose is to execute the laws made by
\nParliament. This role is gratified by various government institutions. The
\nfinal function is the judiciary which is carried out by the courts and judges
\nwho have responsibilities to reflect the law in judgments and settling
\ndisputes. <\/p>\n

To conclude, I agree that the principle of Parliamentary
\nsovereignty and the UK\u2019s uncodified constitutional system means that we can
\nnever truly adhere to a \u201cpure\u201d separation of powers.This is because these two concepts do not examine a clear balance
\nof separation of powers between the three functions, however as the law evolves
\nin the future we may be able to see equality between the function
\nresponsibilities which may reflect a pure separation of powers. <\/p>\n

Bibliography<\/strong><\/p>\n

Websites<\/strong><\/p>\n