Common law may also provide sources of constitution, as the doctrine of precedent allows decisive principles of a judgement to become a binding authority in later cases. The case of Entick v. Carrington (1775) involved a situation where Entick had suffered the seizure of his private papers under a warrant, an action which was ruled to be unlawful as there was no law authorising the act. The case is one of a number of judicial decisions which set out fundamental principles concerning the relationship between the state and the citizen. Case law has provided constitutional principles important in areas such as the doctrine of Parliamentary supremacy, the common law powers of the Crown, the development of judicial review and laws relating to civil liberties. Common law declarations may be significant as a declaration or a interpretation of the constitution.
Defining these legal sources as constitutional, or implementing a hierarchy of legislation would have great legal significance, in essence providing the UK with a written constitution. If the decision was made to create constitutional laws in this way, there would follow strong implications on the doctrine of parliamentary supremacy. Dicey’s version of parliamentary supremacy states that parliament has the power to make or unmake any law, as the guardian of fundamental rights itself. Legally defined constitutional sources such as the Human Rights Act (1998) would replace parliament as protector of fundamental rights, and so create limits on parliamentary sovereignty. Such acts could then be entrenched, preventing future governments from altering or overriding it.
An entrenched act would have implications for parliamentary supremacy and implied repeal. It was suggested in Thoburn v. Sunderland City Council [2003] QB 151 by Laws LJ that statutes seen as constitutional are not subject to the doctrine of implied repeal. As statutes are not legally defined as constitutional this is seen in practice as recognition that the courts will take into consideration the importance of the act and the rights that it protects when considered whether it is repealed by a later act. If acts were to be legally defined as constitutional the statement would be likely to taken literally and prevent government from repealing constitutional acts. Parliamentary supremacy would then be affected by the existence of set of constitutional laws which parliament does not have the power to legislate over.
The introduction of such constitutional laws would prevent government from being able to introduce laws which might be seen as ‘unconstitutional’ such as retrospective penal legislation. It would also have the advantage of being able to protect the separation of powers, in particular judicial powers. Lord Woolf alleges that ultimately there are existing limits to Parliament’s sovereignty that the courts should enforce, but with no existing laws in place this is questionable. If courts were to function to question parliamentary procedure, it could cause conflict between courts and parliament and go against the ‘whole trend of authority’ (Lord Reid). Sir John Laws argued that there should be a higher law, such as entrenched constitutional laws, limiting the powers of parliament as a fundamental democratic principle. He declares that constitutional principles should be articulated so they may be examined and justified.
This is undoubtedly important, but the risk it presents to the balance of powers between the courts and parliament may outweigh the benefits of having a clearly written constitution. Constitutional principles may be successfully identified and debated without the need for a written constitution, thus protecting the existing balance of powers.
Constitution also serves to define the basic values considered important to society, and individual human rights, such as by the ‘Bill of Rights’ in the US constitution. It has been argued that parliament alone cannot effectively protect fundamental rights. For example, the formation of convention rights provides a lot of capacity for inadvertent contraventions of rights through legislation introduced by later governments. A written constitution could provide for a form of bill of rights with special procedures put in place for legislative amendments. This would not be possible without the previously mentioned constitutional changes to the doctrine of parliamentary supremacy.
The incorporation of the Human Rights Act (1998) has provided a weaker form of protection, but without the strong implications of entrenched legislation. So far the main problem with the act has been lack of awareness rather than the level of protection it offers, and so it should be a more appropriate method of protecting rights in the long term than threatening parliamentary sovereignty.
The suggestions that are made by laws LJ have far reaching consequences which do not appear to be beneficial in light of the costs. The UK has never had a period of political upheaval which has required the introduction of a clearly defined constitution, instead developing its own form of democratic division of powers and protection of rights. There do not seem to be justifiable reasons to threaten this balance, the issues that are raised by not having an identifiable constitution are being successfully dealt with through other methods, and can continue to do so as far as is presently foreseeable.
Bibliography
Open University 2005, W201 Understanding Law, Units 1-4, The Open University, Milton Keynes.