Most countries like Malaysia and Aus have a WC, however, countries like UK and NZ have a largely unwritten consti. It is said to be largely unwritten bcz it is not found in a single document like Federal Consti but it is derived frm many diff sources. Those sources are divided into 2 categories, namely, the legal source and also the non-legal source. The Legal sources are derived from the statutes, common law (case law and royal prerogative), EC law and also ECHR. However, for the non-legal source is the constitutional convention. Therefore, it is wrong to say that UK has no consti but its just that theirs remain largely unwritten.
Besides that, UK consti is unique due to parliamentary sovereignty. Since UK do not have a written consti, therefore the AOP is the highest law of the land. This is because normally WC will be the highest law of the land thus since there is a vacuum in the structure so parliament fill up the space above. Parliament was the entitled one to fill up the space and not the judiciary is because members of the Pt are elected and judges are not. We say Pt is sovereign is bcz they can make any laws they want. Its is so sovereign until nobody can question the law that had been passed, not even the judiciary.
One of the unique characteristics of the UK consti is that their parliament is sovereign due to the abscene of a WC. Members of the Pt have been seen as the representatives of the people. Pt only become truly sovereign after the Bill of Rights 1689.
What Is PS?
Pt can make or unmake any law in any subject matter and whatsoever. One of the examples is Declaration of Abdication Act 1936 where the Pt had legislated to alter the succession to the throne. This can be seen in the case of King Edward 8 who is in love with a divorcee so on order for him to get married with this lady, he needs to give up his throne. Thus, Pt. alter the line of succession to his brother. Pt also has the power to grant independence to their colonies such as Nigeria Independence Act 1960 and Zimbabwe Independence Act 1979. Moreover, Pt is free to legislate retrospectively and the most famous example is the War Damage Act and War Crime Act. Treaties can only take effect under the authority of an Act of Pt (Treacy v DPP).
No Pt can bind its successors nor could it be bound by its predecessors. According to John Austin, this aspect arises from the fact that the body to be sovereign, it must be ‘illimitable'. It also means that no AOP can be made permanent. In the case of Ellen Street Estates v Minister of Health, whereby should a later statute be inconsistent but not expressly repeal an earlier one, the court would apply the former as the latest expression of PT's will and deem the latter as impliedly repeal.
Diff Btw Legal & Political Sov.
There are constraints on pt legal sov in the form of practical sov. For examples, eventhough pt has the legal sov to pass laws which are something like what Sir Ivor Jenning had said that pt can even pass law like ‘kill all blue eye babies' but practically speaking, pt would have to think of the political consequences of passing such unpopular or absurd laws.
In the past few decades, there had been challenges to the doctrine of PS. Basically, there are 2 types of challenges, which is the modern and traditional challenges to pt's supremacy. Modern challenges such as the Devolution of powers to Scotland, Wales and N.Ireland to have a system of self-gov is seen as a threat to PS whereby Westminster remains free to legislate over ‘reserved matters' with devolved powers now matters of the devolved government's competence. These powers had been devolved through the Scotland Act, Gov of Wales Act and N.Ireland Act 1998. This is the promise that had been made by the Labour party during the 1997 election to devolved powers due to the discontentment from the countries as the powers are too centralized at the Westminster, London. It has been stated in the Scotland Act, saying that pt still has the rights to make law for Scotland. Moreover, in s1 of the N.Ireland Act, NI is still remain part of UK until if there is a referendum to pull out. It is seen to be a challenge to PS as the power now is no longer centralized and it is said to be not unitary now. However, PT can legally take back all the powers given to Scotland but practical speaking, they won't do that due to political wise. So in the end, theory must march alongside with political wise.
Besides that, the HRA 1998 also challenges PS. In Section 3 requires all legislation to be read, so far as possible, to give effect to the rights provided under the convention. As will be seen, this section provides the courts with new and extended powers of interpretation. It also has the potential to invalidate previously accepted interpretations of statute that were made, by necessity, without recourse to the convention. (see ghaidan v mendoza) Interpretation of statute is the duty of the courts; the enactments and amendments of statute is the duty of the PT. In GHAIDAN V MENDOZA, LORD Nicholls said that s3 means that the court may have to depart from the intention of Pt. it would be possible for the courts to read words into an ACT.
Section 4 empowers the court to issue a declaration of incompatibility on any primary legislation that is found to be conflicting with the rights under ECHR. This has the effect that the courts cannot invalidate the primary legislation which are found to be incompatible; they can only make a declaration of such incompatibility and leave it to the legislature to redemy the situation through new legislation
Section 19 of the Act requires that the minister responsible for the passage of any Bill through Pt must make a written statement that the provision of the Bill is compatible with ECHR rights. this is to create awareness about the particular Bill whether is or is not compatible with the ECHR and this seems that the PS had been challenged. Alternatively, the minister may make a statement that the Bill does not comply with ECHR rights but that the gov nonetheless intends to proceed with it.
Another modern challenges that challenged the ps is s2(1) and s2(4) of the ECA 1972. ECA 1972 was signed for economic uniformity which need the member state to give up their own laws and adopt the same laws among the member state in order to ensure uniformity. According to Lord Denning, he said that judges will not give effect to the treaties signed until an AOP said so. Besides that, he also said that EC law had been made part of our laws in ECA 1972 thus, the fact that we are following EC law because it is actually our own law. Therefore, pt had not lost their sov. This can be seen in the case of Jonathan…………
On the other hand, there are also the traditional challenges towards the doctrine of ps. One of it is the composition of pt has been redefined. This is because gov nowadays are having referendum before passing a bill. Thus, they are listening to their people's view and not them deciding for the people what is best for them. Hence, it seems like pt is not that supreme anymore. However, since having a referendum is something just like a political good view as it is not required in the legislation which is like in Aus.
As it is said that no PT can bound by its predecessor all it seems like all the procedure and manners to form a set of new rules has been set by the Pt long ago.
Granting of independence which is done mostly in the 1950s where Westminster has conferred partial competence on a subordinate legislature, the ques is whether Westminster could revoke that grant of power. In British Coal Corporation V the king, it was accepted that Westminster's power remained in theory unimpaired and it could be repealed, in practice it could not be as legal theory must march alongside practical reality. This shows that PT is nt bound by legal constraint but political constraints.
As a conclusion, as with the manner and form argument, it shows that pt is only truly sovereign at 1 point of time and after setting such a limit, future pts would be less than sovereign.