Principle of Parliamentary Sovereignty and the UK’s Uncodified Constitutional System

In this response, I will be critically discussing the principle of Parliamentary sovereignty and the UK’s uncodified constitutional system and how it can never truly adhere to a “pure” separation of powers.

A significant doctrine that I will be discussing is the separation of powers. 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, Oxford University Press). These functions are satisfied by the legislature which is the institution of government that passes legislation – Parliament. Parliament is a bicameral institution as it contains two chambers – 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 – 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.

Parliamentary sovereignty has various meanings for different
people. However, the basic meaning of this term is famous within Dicey’s late
nineteenth century seminal text an
introduction to the Study of Law of the Constitution. In this piece of work
Dicey states: ‘[…] that parliament thus defined, has, under the English
constitution, the right to make or unmake any law whatever; and, further, that
no person or body is recognised by the law of England as having the right to
override or set aside the legislation of Parliament.’[1]
Dicey’s definition can be broken down into three points which are commonly
identified as reflecting the essence of the orthodox principle: [2]
The first is Parliament can make and unmake any law on any subject matter
(positive aspect), the second is that no person or body has the power to
override or derogate from an Act of Parliament (negative aspect) and Parliament
cannot be bound by its predecessors or bind its successors. This definition
illustrates that Parliamentary supremacy does not adhere to a complete
separation of powers because it means that Parliament the legislature has
ultimate authority which does not reflect the balance between the three: the
legislature, the executive and the judiciary. However, it could be argued that
as the executive carries out responsibilities to uphold Parliamentary
sovereignty it also holds a significant function and the balance in terms of
separation of powers can be seen. Furthermore, the judiciary plays a
significant role as without the courts there wouldn’t have been Parliamentary
sovereignty as the courts agree to uphold the law and implement it through
their judgments.[3]

On the other hand, Wade agreed that parliamentary
sovereignty was linked to the rule of judicial obedience. This rule of judicial
obedience notes that judges obey and abide by the instructions and enactments
of the democratically elected Parliament. 
Wade explains the significance of the rule above and states: ‘The rule
of judicial obedience is in one sense a rule of common law; but in another
sense – which applies to no other rule of common law- it is the ultimate
political fact upon which the whole system of legislation hangs…’ [4]
This statement can be interpreted in three key points. The first is that
Parliament is sovereign because the courts recognise it’s Acts as supreme. For
example, In the case of R (Jackson) v
Attorney-General[5]
Lord Steyn agreed that parliamentary sovereignty’ is a construct of the common
law. The judges created this principle.’[6]
The second key point to note from Wade’s conception of ‘The basis of Legal
sovereignty’ (1995) is that he notion is not a legal principle but is instead
political. The third part is that Parliament’s sovereignty cannot be said to
descend from any Act of Parliament. The reason for this idea is that Parliament
cannot itself alter or change its own sovereignty. (Stanton and Prescott, Public Law, p.121, 2018) Research of the
second Factortame case ((1996) 112 Law Quarterly Review 568) by Wade
illustrates that case overthrew the doctrine of Parliamentary sovereignty and
stated: ‘When in the second Factortame case
the House of Lords [refused to apply the MSA] it was natural to suppose that
something drastic had happened to the traditional doctrine of Parliamentary
Supremacy.’ (Group, 2018) The issue in this case was whether the EU Law was
supreme over UK law remembering the doctrine of Parliamentary Supremacy. The
fact that the claimants succeeded means that the case confirmed the UK’s
subordination to the EU Law. (Webstroke.co.uk, 2018) Wade’s conception of the
link between Parliamentary sovereignty and the judiciary reflects the
separation of powers concept to some extent, as the legislature and judiciary
work together inline in order to run the UK in a reasonable manner which
reflects the positives of the UK constitution. However, it could be argued that
there may be imbalance between the functions as not all three functions play an
equal role in upholding parliamentary supremacy. From Wade’s quotation we can
interpret that he suggests the legislature and the judiciary play a much more
significant role than the executive in upholding Parliamentary sovereignty.

In contrast to Wade’s concept of Parliamentary sovereignty
Jennings argues that it is the common law principle established as a result of
the evolution and Growth of the UK constitution. (Stanton and Prescott, 2018)
Jennings states: ‘[…] in the United Kingdom, which has no written constitution,
it derives from the accepted law which is common law.’ (Anon, 2018) Jennings
basic idea is that Parliament is sovereign because the courts have always
abided by their instructions and the Acts of parliament are embedded within the
common law. (Stanton and Prescott, Public
Law, p.122, 2018) Through this Parliamentary sovereignty is ‘a legal
concept, a form of expression which lawyers use to express the relations between
Parliament and the courts…’ [7]
Once again Jennings’s interpretation of Parliamentary sovereignty signifies
that the three functions which uphold this concept of Parliament being supreme
is unequal as the responsibilities between the legislature, executive and the
judiciary are not balanced, and this principle illustrates the disadvantages of
not having a structured system.

Goldsworthy discusses that Jennings theory has an issue as
he is wrong to claim that ‘the doctrine of parliamentary sovereignty was a
creature of the common law.’ [8]
Goldsworthy challenges Jennings theory that the sovereignty derives from common
law and supports Wades approach through a different path by seeing sovereignty
as deriving not from parliamentary legal authority but instead from a
‘consensus among the senior legal officials.’ [9]
Goldsworthy challenges my previous argument and is in favour that the three
functions play an equal role in upholding the principle as he argues that the
executive has an important role just as the other two functions have.

Defining a constitution can be problematic and there is no
core definition, however many theorists have given their view on what a
constitution is and how is applies to law. Professor KC notes that the word
“constitution” is ‘used to describe the whole system of government of a
country, the collection of rules which establish and regulate or govern the
government. These rules are partly legal and partly non-legal…’ [10]
where as Hilaire Barnett notes: ‘the constitution of a state… forms the
backcloth of government and its powers… it is a set of rules, written or
unwritten, which identifies the principal institutions of the state, their
powers and relationships with other state institutions and the relationship
between government and citizen.’[11]
Professor KC’s quotation demonstrates that the UK constitution upholds a pure
separation of powers as there is a clear separation of powers in the UK system
which upholds Parliamentary supremacy. In contrast, it could be argued that the
quotation is so broad that we cannot interpret whether Professor KC aims to
imply that the three functions in the UK constitution have equal
responsibilities in upholding the Parliamentary supremacy principle.

The UK constitution can be described as uncodified, similarly
to Israel and New Zealand. However, all other countries around the world take
the form of a codified document. This means that their constitution is written
down in one place, however the UK’s constitution is uncodified which means it
is not contained within one document however can is set out across a variety of
sources such as Acts of Parliament, case law and constitutional conventions.[12]
The fact that the UK constitution is uncodified means that we cannot adhere to
a “pure” separation of powers, especially as there is no single document which
states the responsibilities of the legislature, executive and judiciary are
equal in preserving Parliamentary supremacy. This does in fact express that
there is no equality between the three functions.[13]
However, it could be reasoned that the uncodified system supports the
separation of powers because the uncodified nature takes into account the three
categories: Acts of Parliament, case law and constitutional conventions which
means that the legislature, executive, and judiciary are all involved and an
apparent separation of powers can be established.

A significant doctrine that I will be discussing is the
separation of powers. 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, Oxford University Press). These functions are satisfied by the
legislature which is the institution of government that passes legislation –
Parliament. Parliament is a bicameral institution as it contains two chambers –
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 which is relevant to the day to
day running of the country and its sole purpose is to execute the laws made by
Parliament. This role is gratified by various 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.

To conclude, I agree that the principle of Parliamentary
sovereignty and the UK’s uncodified constitutional system means that we can
never truly adhere to a “pure” separation of powers.This is because these two concepts do not examine a clear balance
of separation of powers between the three functions, however as the law evolves
in the future we may be able to see equality between the function
responsibilities which may reflect a pure separation of powers.

Bibliography

Websites

• Group, C. (2018). Thomas Adams: Wade’s
  Factortame. [online] UK Constitutional Law Association. Available at:
  Thomas Adams: Wade’s Factortame
  [Accessed 16 Oct. 2018]
• Webstroke.co.uk. (2018). Factortame (No.
  2) [1991] | Case Summary | Webstroke Law. [online] Available at:
  https://webstroke.co.uk/law/cases/factortame-no-2-1991 [Accessed 16 Oct. 2018].

Books

• Stanton, J. and Prescott, C. (2018). Public
  law. P.121. p. 122.
• Sir Ivor Jennings, The law and the Constitution (5^th edn, University of
  London Press 1959) 156-7
• John Stanton and Craig Prescott, 2018, Public Law, Oxford University Press
• © Oxford University Press – Public Law – http://app.kortext.com/epub/271803,
  date accessed 28/10/18
• Stanton, J., Prescott, C and Mead, D. (2018) Public Law. Available at https://app.kortext.com/epub/271803
  (Accessed: 28 October 2018).
• AV Dicey,
  Introduction to the Study of the Law of the constitution (JWF Allison ed, first
  published 1885, OUP 2013)
• For further
  discussion of three points see AV Dicey,
  Introduction to the Study of Law of the Constitution (JQF Allison ed, first
  published 1885, OUP 2013) 27-8 and 39-40. And Alison Young, Parliamentary Sovereignty and the Human
  Rights Act (Hart Publishing 2009) 2-3.
• Stanton & Prescott, 2018, Public Law, Oxford Press, chapter 2,
  figure 2.1
• HWR Wade, ‘The
  basis of Legal Sovereignty’ (1995) 13 (2) Cambridge
  Law Journal 172, 188.
• R (Jackson) v AG
  [2005] UKHL 56
• Lord Steyn, R
  (Jackson) v Attorney General [2005]
  UKHL 56
• See sir Ivor Jennings, The law and the Constitution (5^th edn, University of
  London Press 1959) 156-7
• Jeffery
  Goldsworthy, Parliamentary Sovereignty:
  Contemporary Debates (Cambridge University Press 2010) 115, citing Peter C
  Oliver, And the Constitution of
  Independence: The Development of Constitutional theory in Australia, Canada and
  New Zealand (OUP 2005) 82. Also see Michael Gordon, Parliamentary Sovereignty in the UK constitution: Process, Politics
  and Democracy (Hart Publishing 2015) 101-7
• Michael Gordon, Parliamentary Sovereignty in the UK
  constitution: Process, Politics and Democracy (Hart Publishing 2015) 101
• KC Wheare, Modern
  Constitutions (OUP 1966) 1.
• Hilaire Barnett,
  Britain Unwrapped: Government and Constitution Explained (penguin 2002) 1
• Cabinet Manual
  or the Ministerial Code

Electronic Journal

• Anon, (2018). [ebook] Available at: https://watermark.silverchair.com/mor023.pdf

[1] AV
Dicey, Introduction to the Study of the Law of the constitution (JWF Allison
ed, first published 1885, OUP 2013)

[2]
For further discussion of three points see AV Dicey, Introduction to the Study of Law of the Constitution (JQF Allison
ed, first published 1885, OUP 2013) 27-8 and 39-40. And Alison Young, Parliamentary Sovereignty and the Human
Rights Act (Hart Publishing 2009) 2-3.

[3]
Stanton & Prescott, 2018, Public Law,
Oxford Press, chapter 2, figure 2.1

[4]
HWR Wade, ‘The basis of Legal Sovereignty’ (1995) 13 (2) Cambridge Law Journal 172, 188.

[5]
[2005] UKHL 56

[6] Lord Steyn, R (Jackson) v Attorney General [2005] UKHL 56

[7] See
sir Ivor Jennings, The law and the
Constitution (5^th edn, University of London Press 1959) 156-7

[8]
Jeffery Goldsworthy, Parliamentary
Sovereignty: Contemporary Debates (Cambridge University Press 2010) 115,
citing Peter C Oliver, And the Constitution
of Independence: The Development of Constitutional theory in Australia, Canada
and New Zealand (OUP 2005) 82. Also see Michael Gordon, Parliamentary Sovereignty in the UK constitution: Process, Politics
and Democracy (Hart Publishing 2015) 101-7

[9]
Michael Gordon, Parliamentary Sovereignty
in the UK constitution: Process, Politics and Democracy (Hart Publishing
2015) 101

[10]
KC Wheare, Modern Constitutions (OUP 1966) 1.

[11]
Hilaire Barnett, Britain Unwrapped: Government and Constitution Explained (penguin
2002) 1

[12] Cabinet Manual or the Ministerial Code

[13]
(Stanton, Prescott and Mead, 2018)