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 (5th 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 (5th 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 (5th 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)
