Essence of the British constitution

The essence of the British constitution is……. Better expressed in the statement that it is a historic constitution whose dominant characteristic is the sovereignty of parliament than in the statement that Britain has an unwritten constitution." Derived by Vernon Bogdanger; supporting this argument, let me focus on the main events that took place in the history of the British parliament and how it maintained its sovereignty throughout centuries. Compiled below is the evaluation of my study, the points in which I wish to proceed are; characteristics of the British constitution, sovereignty of parliament, Acts of parliament, supremacy of Legislator, limiting supremacy and the devolution.

There are various types of constitutions in this world. From one constitution to another defer. But there are main characteristic of a constitution. They are written/unwritten, Monarchical or republican, flexible or inflexible, parliamentary or presidential and federal or unitary. The term constitution is defined in many ways by various kinds of constitutional scholars. Finer and Professor King are such constitutional scholars. Though words are different the meaning is the same. It gives a meaning of set of rules to regulate relation with government bodies and citizens of the state. Finer has defined the constitution as:

“codes of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government, and define the relationships between them and the public." [1] 

Professor King has defined it in a same meaning as:

“A constitution is the set of the most important rules that regulate the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country." [2] 

In a country if there a codified constitution, no other law is supreme than the constitution. It is mentioned in South African Constitution as:

“This Constitution is the supreme law of the republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled." [3] 

But in United Kingdom there is no codified constitution. It is an un-codified constitution. Therefore the UK parliament is supreme. There Acts are supreme because of not having a codified constitution. Basically nature of the UK constitution is unwritten, flexible, parliamentary, monarchical and quash-federal. Because of the supremacy of the parliament Act they can amend the constitution by just passing an Act. So it is flexible. UK constitution is quash- federal because of its devolution to Scotland, Wales and Northern Ireland.

The sovereignty of parliament was invented in the late eighteenth and nineteenth centuries by academic lawyers such as Blackstone and Dicey, influenced by Hobbesian political theory. The doctrine of parliamentary sovereignty has long being regarded as the most fundamental element of the British constitution. In his classic exposition of the doctrine, A.V Dicey described it as ‘the dominant characteristic of our political institutions’, ‘the very keystone of the law of the constitution’ it is said that Parliament is able to enact or repeal any law whatsoever, and that the courts have no authority to judge statues invalid for violating either moral or legal principles of any kind. Consequently there are no fundamental constitutional laws that parliament cannot change, other than the doctrine of parliamentary sovereignty itself.

Though Magna Carta gave birth to parliament, Sovereignty of parliament emerged after the “Glorious Revolution". Sovereignty of parliament emerged because of Bill of Rights in 1689. It gave special power to the parliament such as freedom of speech within Parliament, free election, King cannot raise taxes, King cannot suspend voted laws in the parliament and it also prohibited 'standing' armies without parliamentary consent. Glorious revolution was the turning point of the sovereignty of British parliament. From glorious revolution to modern times, parliament has intelligently created supreme laws doctrines for its own purpose.

Parliament can retrospectively alter the law, even after the court’s decision. In the case Burmah Oil Co Ltd v Lord Advocate [4] government has ordered the Burmah company to destroy certain oil installations so to prevent them failing in to Japanese soldiers. House of Lords held:

“By a majority of three to two, that the prerogative concerned the control of the armed forces, the waging of war, and all those things in an emergency which are necessary for the conduct of war. Such a wide residue of power to govern in the time of war was necessary since parliament may not be able to pass the necessary legislation in time. The company was entitled to be compensated for the destruction of its installation." [5] 

Because of this decision parliament subsequently passed the War Damage Act 1965. Since this Act had retrospective effect Burmah oil failed to obtain their compensation. It reflects the supremacy of UK parliament.

Courts of United Kingdom cannot argue about Acts passed in the British parliament. They are not allowed to do so. Courts cannot apply common law if there is a statute relation to it. The initiative must be given to statute law. ‘All that a court of law can do with an Act of parliament is to apply it’ [6] Morris has mention in the case Pickin v British railways board [7] that,

“In the courts there may be argument as to the correct interpretation of the enactment: there must be none as to whether it should be on the statute book at all." [8] 

Court can only check the process of the parliament Act, there is no such as Act that has mention courts can look in to the validity of the Act.

“There is no judicial body in the country by which the validity of an Act of parliament can be questioned." [9] 

In a codified constitution judges can review the validity of the parliament Act whether it conforms to the constitution. But in United Kingdom due to its absence of a codified constitution judges cannot review the Act of the parliament. There is no constitution to conform. In the case Lee v Bude and Torrington Railway Co [10] Willes J has stated:

“We sit here as servants of the queen and the legislator. Are we to act as regents over what is done by parliament with the consent of the queen, lords and commons? I deny that any such authority exists." [11] 

Supremacy of legislator domain when there is no codified constitution. No one can question the legislator. Even legislator can abuse powers without an un-codified constitution. But Rule of law act, is against of abusing power. Procedural fairness and legal certainty are Dicey’s central features of the rule of law. Out of three elements, Dicey’s third aspect of rule of law is that:

“The general principle of the constitution, by which he meant such things as the right to personal liberty and not the legislative supremacy of parliament, were the result of judicial decision determining the rights of private person in case brought before the courts." [12] 

Parliament has power to legislate on any matter. But it is not the duty of the parliament. Parliament’s duty is to protect citizens of the United Kingdom and bring peace.

The doctrine of implied repeal, keep the late parliament sovereign. Former parliament cannot bind on its later parliament. For an example in the case Vauxhall Estates Ltd v Liverpool Corpn [13] section 2 of the 1919 Act protect from the same Act in the section 7(1) mentioning that provisions of other Acts had effect 1919 Act and that if they were inconsistent, they will have no effect. But section 46 of the housing Act 1925 also provide as section 2 in 1919 Act, but in different terms. DC held that:

“The suggestion that the hands of parliament could be tied so that it could not subsequently enact provisions inconsistent with the 1919 Act was contrary to the principles of the UK constitution. No Act of parliament could effectively provide that no future Act shall interfere with its provision." [14] 

Because of the doctrine of implied repeal, supremacy of parliament remains. It can repeal any act former parliament had and any Act they do not want.

The Parliament act of 1911 and 1949 rose after the House of Lords denied of passing the 1909 Finance bill. Parliament Act 1911 removed HL veto power of Bill passing. Now if the parliament wants they can extend their years more than five years. Parliament Act has passed the War Crime Act 1991 and Hunting Act 2004.

There are some bodies limiting the supremacy of the UK parliament. Human Right Act 1998, devolution and Communities Act 1972 limit the supremacy of the parliament. These are constitutional statutes. Constitutional statutes cannot be impliedly repealed. European Communities Act 1972 and the human Rights Act 1998 are not immune from express repeal but immune from implied repeal.

In the devolution UK parliament giveaway some powers to devolved counties. Scotland received great amount of power. Even to make laws. But still UK parliament can legislate laws for Scotts and Wales. When United Kingdom had a treaty with European Union, Communities Act 1972 automatically became a statute in United Kingdom. This limits the sovereignty of parliament because courts give first place to European Act. In the end, it goes to European Court of Human Rights.

The reason of the supremacy of European Communities Act 1972 is it succeeded in binding the parliament of 1988 and restricting its sovereignty. Lord Hope observed:

“Although parliament was careful not to say in terms that it could not enact legislation which was in conflict with Community law, that in practice is the effect of s 2(1) when read with s(4) of that Act. The direction in s2 (1)that community law is to be recognized and available in law and is to be given legal effect without further enactment, which is the method by which the Community Treaties have been implemented, concedes the last words in this matter to the courts. The doctrine of the supremacy of Community law restricts the absolute authority of parliament to legislate as it wants in this area." [15] 

In my opinion the essence of the British constitution lies in the statement that it is a historic constitution whose dominant characteristic is the sovereignty of the parliament rather than in the statement that Britain has an unwritten constitution. Finally I would like to stress on the fact that parliamentary sovereignty is the principle of the UK constitution. It makes Parliament the supreme legal authority in the Britain, which can create or end any law. And that the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution. Over the years, Parliament has passed laws that limit the application of parliamentary sovereignty. These laws reflect political developments both within and outside the UK. Lord Reid stated that:

“It is often said that it would be unconstitutional for….. parliament to do certain things, meaning that the moral, political, and other reasons against doing them are so strong that most people would regard it as highly improper if parliament did these things. But that does not mean it is beyond the power of parliament to do such things if parliament chose to do any of those things, the courts could not hold the act of parliament invalid" 16

As it could be observed even though with all the changes and evolutions; sovereignty of the parliament remained as the key character of the historic constitution of Britain.