The next principle to look at is the rule of law which its main concern is about controlling the parliament and stopping discretionary power. Its divided in 3 main concepts and its meaning can be extracted from several short passages in Dicey’s book as quoted below:
“We mean in the first place that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land … [AND] we mean in the second place that everybody from the Prime Minister … is under the same responsibility for every act done without legal jurisdiction as any other citizen”.8
The first part is that no man can lawfully be made to suffer in body or goods. Its concern is about protecting individual rights and liberties, he stressed that this protection had to be effective to everyone including the citizens and the government. The second issue is that the government has to operate within a framework of laws that are superior to the action of their officials. Thirdly is that, any breach of law must be established in the ordinary legal manner before the ordinary courts of the land. This disadvantage is that the government will have the outmost power to determine if a law has been broken or not.9
The other important principle found in the rule of law is the separation of powers which check absolute power and prevents the concentration of power in the hands of one institution. It therefore seeks to balance separative legislative, executive and judicial powers.10 The government has to make laws under which people leave, in the UK context this function is carried out by parliament.
7 Council of Civil Service Unions V Minister for the Civil SERVICE [1985] AC 374 , ALL ER 395, HL.
8 Dicey AV, An Introduction to the study of the law of constitution (8th ed .London Macmillan 1915) at p.110&114.
9 op. cit no 2 at p.52
10 op. cit no 5 at p.7
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This has seriously undermined the rule of law as has been seen by the introduction of Officials Secrets Act 1989.11 , attempting to remove an individual’s right to trial by jury and the activities of the secret service (especially after September 11th), removing what were considered as traditional rights for example, the removal of workers right at GCHQ belonging to a trade union under the Thatcher government.
As specified in the introduction that since Dicey’s opinion there have been significant changes which might still affirm his theory especially the issue that parliamentary sovereignty has more edge compared to the rule of law. Since that period there have been the issues like being part of a greater Europe, human Rights Act, devolution and the judicial system which have had an impact in the sovereignty.
Parliamentary sovereignty seems to still have more power when it comes to domestic law enactment because, the fundamental constitutional duty of the courts is to give effect to law as laid down by parliament. The courts cannot refuse to give effect to an Act of parliament.
This is demonstrated in the House of Lords ruling between British Railways v Pickin.13 Pickin alleged that British Rail had steered a private bill without giving necessary notices to affected land owners. The Lords ruled that courts have no powers to question the legality of bills passage through parliament as was further supported by Lord Simon who stated that “a concomitant of the sovereignty of parliament is that the houses of parliament enjoy certain privileges… Among these privileges… is the exclusive right to determine their own proceedings.” 14
Parliament still retains its sovereignty over some European laws because the treaties that are signed by the government can only have legal effect in Britain if they are incorporated into domestic law by an Act of parliament. This can be illustrated in the case of Cheney v Conn .15 Cheney had claimed that some of his tax money was used to build nuclear weapon which was contrary to the principles of the Geneva Convention which the British government had signed to in 1957. The judge upheld that when a statute is enacted it can not be unlawful, as it is the highest form of law in the country and it was not for the courts to say that a parliamentary enactment is illegal.16
11 Officials Secret Act 1989
12 Miers D.R and Page A.C Legislation ( 2nd ed.sweet & Maxwell 1990) at p.14
13 British Railways Board v Pickin [1974] AC 765 HL.
14 op. cit no 9 at p.30
15 Cheney v Conn [1968]1 ALL ER 779
16 op. cit no 14 at p.33.
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The way how senior judges are appointed shows the strength that parliamentary sovereignty still have over the judiciary. This is because they are appointed by the Lord Chancellor who is a cabinet member, speaker of the House of Lords as a legislative forum and may also sit as a member of the Lords in the final appeal court. This is contrary to separation of powers, may lead to bias by appointing judges who are sympathetic to the current government and by so doing they strengthen parliamentary sovereignty while undermining the rule of law.
Recently parliamentary sovereignty has slowly been losing some of its powers especially since labour came to power in 1997. Its election manifesto was based upon a considerable commitment to constitutional reform, especially with regards to devolution of power to Scotland and Wales. Also included were the incorporation of the European convention on Human Rights into domestic law in 1998 and the removal of the right of heredity peers to sit and vote in the House of Lords.18
His (Dicey) ideas are outdated due to the development of democracy which is now a dominant feature in the current UK system. This is because every 5 years citizens go to the polls to choose their representatives in the commons who represent their constituencies as well as their views. This seriously undermines the Dicey’s theory as citizens are given a chance to participate in democracy by voting, unlike during his time when voting was limited to certain groups of individuals.
The other irrelevant aspect of sovereignty is that a government with huge parliamentary majority can easily pass bills which they wish make laws. This is because its majority can diminish if the party members vote against the government, which means that parliament now, has limited sovereignty on passing laws as they wish. These have been demonstrated recently by ,1st vote to go to participate in the Iraq war in April 2003 when 138 Labour MPs voted against the government19,secondly the vote for tuition top up where the government won by 316 votes against 311.20
The passing of Human Rights Act 1998 have extended the powers of the judiciary as the judges can now apply European law over domestic statute. Some of the articles included (articles 2,3,4,7 and 14) are absolute and cannot be interfered with by the sovereignty.
17 Kelly and Slapper English Legal system (7th ed. Cavendish 2004) at p. 221
18 Tomkins A, The constitution After Scott: government Unwrapped ( 1st ed. Oxford University press 1998) at p. 266.
19 CNN.COM/NEWS
20 Guardian Unlimited 28 January 2004 at /archives.
Recently the EU included the charter of Fundamental Rights in part two of its constitution, which it’s yet to be seen what impact it will have upon domestic law. However, the government has already shown its concern of its threat by insisting that explanatory notes should be annexed to the constitution to guide and limit its interpretations.21
Judicial power on domestic issues is being recognised as an important principle, if we look at the recent events regarding the hunting bill. When the Prime Minister was asked a question about the disagreements between Lords and Commons he responded by saying “It was not possible to find a compromise in parliament. The action will no doubt now transfer to the courts.” 22
Therefore this shows that today the rule of law is also being recognised as being an important principle like the parliamentary sovereignty.
As there is a conflict between the rule of law and parliamentary sovereignty, one would agree with Dicey, as conventions are the ethics that bring out a compromise and are necessary for parliament to control the government. Conventions are unwritten elements of the constitution, essential being rules of political practice which may be used as a matter of expediency,23 that is at time when it is necessary depending on the circumstances, to ensure a smooth operation of the government.
Although they are not legal enforceable, they may have legal significance and courts may use them as foundation for a principle of common law.24 This was illustrated in the case of A-G v Jonathan Cape Ltd, when the judge acknowledged that although no rule had been broken ministers owed each other confidentiality a principle that was taken from common law.
The other important aspects of the conventions that determine accountability by ministers are the collective ministerial responsibility and individual ministerial responsibility.
Collective ministerial responsibility deals with how cabinet works and was supported by the Nolan committee recommendations in November 1985 which, stated that, ministers must uphold the principle and be accounted to parliament for the policies, decisions and actions of their departments.26 Accountability for the executive under parliament has always been on Labour party’s agenda as it was included on its constitutional reform programme in 1993. They expressed that
21 Student Law Review [2004] vol 43 at p. 16
22 The Times Friday November 19 2004
23 op. cit. no 6 at p. 11
24 op. cit. no 10 at p. 44
25 Attorney General V Jonathan Cape Ltd [1976] QB 752
26 op. cit. no 18 at p. 50
massive power was being exercised by the executive decree, without accountability to parliament.27 This is why the government has increased the prime minister question time and have set up select committees to scrutinise various government’s department’s actions. If a government fails to command a majority in the commons they will be required to resign as this was the case with James Callaghan’s labour in 1979. Ministers can opt out of collective responsibility by resigning if they do not agree with certain motions; recently in 2003 Robin Cook and Claire Short resigned when the commons voted in favour of war against Iraq.
Ministers are also responsible on individual basis for the conduct of their departments, and are expected to resign when knowingly something goes wrong in their department. Ministers might have to resign if their personal life compromises with discharge of their public duties. This has just been the case with David Blunkett who has Just resigned after allegations that he fast tracked a visa application for his former lover’s nan.
In conclusion parliamentary sovereignty might still be clinging to power by the virtue of parliamentary Act which gives them the advantage of being the highest law maker in the land. At the same time the rule of law have significantly gained powers especially through the human rights Acts where they have an opportunity to overrule over domestic law.
27 Blackburn R and Plant R, Constitutional Reform:The Labour Government Constitutional Reform Agenda ( 1st ed. Longman Press 1999)
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BIBLIOGRAPHY
1 Loveland, Constitutional Law, Administrative Law and Human Rights: A critical Introduction (3rd ed. Lexis Nexis Butterworths London 2003)
2 Barendnt E, An Introduction to Constitutional Law (1st ed. Oxford University Press 1998)
3 Hawke and Papworth , Introduction to Administrative Law (1st ed. Cavendish London 1996)
4 Mires D and Page A, Legislation (2nd ed. Sweet and Maxwell London 1990)
5 Tomkins A, The constitution After Scott: government unwrapped (1st ed. Oxford University Press 1998)
6 Kelly and Slapper, English Legal System (7th ed. Cavendish publishing London 2004)
7 Blackburn R, and Plant R, Constitutional Reform: The Labour Government Constitutional Reform Agenda (1st ed. Longman Press London 1999)
8 Student Law Review Autumn 2004 volume 43
9 The Times Friday November 19 2004
10 www.cnn.com
11 Guardian Unlimited 28 January 2004 at www.guardian.co.uk/srchives
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