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The unwritten nature of the British Constitution is not simply an accidental failure to codify. It expresses a commitment to keeping the law subordinate to politics" Discuss.

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Unit Code and Title: LAWD10012 - Law & State

Coursework 1

Candidate Number: 41992

Degree: Law(LLB)                                                        Year: 1

Date due for submission:  24/01/11

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(1) "The 'unwritten' nature of the British constitution is not simply an accidental failure to codify. It expresses a commitment to keeping law subordinate to politics."

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“The unwritten nature of the British Constitution is not simply an accidental failure to codify. It expresses a commitment to keeping the law subordinate to politics”

Since the overhaul of the monarchy in 1688, Parliament (that is the House of Commons, Lords and the Queen) has been sovereign. Dicey was a strong supporter of Parliamentary Supremacy and the Rule of Law, but this was in a period where people had belief that “Parliament backed by consensus values could deliver stability and prosperity”[1]. Politics in Britain has ultimately changed since Dicey’s writing, for many reasons including the ever increasing powers of the executive over Parliament, the growing influence of the judiciary and Britain’s entrance into the European Union (EU). Together these changes have led many to believe that there is no longer a convincing argument as to why Parliament should be unlimited in its power. Leading many to question the legitimacy of Parliamentary Sovereignty or with regards to the lattermost development whether Parliament is even still sovereign. Cases such as Factortame[2]and Jackson[3]will need to be explored in more detail to assess this assumption. Moreover many submissions have been made by various legal writers in light of these modifications as to how Britain should now be governed. Intellectuals, such as Lord Hailsham believe the best way of controlling Parliament is through the law, whereas Griffiths argues that Parliament should remain sovereign but be controlled by more intense scrutiny and openness of their decisions. In this essay various arguments will be explored to understand the significance of recent changes to the constitution and whether Britain now needs to have higher order law or the system of political control we have now is one to be celebrated as power is still held by the majority. Firstly the traditional view of Parliamentary Sovereignty shall be explained.

The first major analysis of the British constitution was considered by Dicey over 100 years ago. In his view Parliamentary Sovereignty could be summarised into three main characteristics; Parliament is competent to legislate on any matter, Parliament cannot bind its successor and valid acts cannot be questioned in court.[4] Indeed political philosophers such as Hobbes and Rousseu, around before Dicey, supported Parliamentary Sovereignty too, they saw it as necessary that people give up their sovereignty to a higher body of government in order to be given protection by the state in return. Indeed this is justified as the majority have consented to be ruled by whoever is in power, and so must abide by his arrangements. Indeed Parliament have tremendous power to construct laws on any matter it likes and can even change basic laws that in countries which have written constitutions, would be much more difficult to change. Moreover Parliamentary Sovereignty also allows Parliament to be above the courts and can overrule the common law, by passing legislation[5]. This has the positive effect of government being able to legislate on proposals it sets out with ease, making for a quick transition to turn the country into the state it promised. However many believe Parliament’s powers to make significant changes to the unwritten constitution stretch too far, especially after passing the Parliament Act 1911. This change was of major significance as the Commons supremacy was asserted, by limiting the powers of the upper chamber to block legislation, and have since been able to pass provisions with little resistance. Indeed this led judges to query the source and the legitimacy of the age old norm; especially in the modern day executive dominated Commons, in one of the most infamous cases in recent British constitutional history.

The case was that of Jackson, which contended that the Commons could not unilaterally expand its own powers in the Parliament Act 1949 through the powers it set itself in 1911, and so the 1949 amendments—and the Hunting Act 2004—were thus invalid. Academics such as Wade, a Diceyan, support the claimant’s case, as in his view any act is ‘political fact’ , resulting from the 1688 revolution, therefore the only way Parliament could redefine itself was through an equally momentous event, such as another revolution; it cannot be determined by any legal authority. This fits in with the Diceyan theory as it would mean that Parliament could not redefine itself and therefore bind future Parliaments to legislation. Following the Diceyan view, 1911 created a separate legislative body. However this argument was firmly rejected by the court, preferring the ‘manner and form’ approach. Meaning Parliamentary Sovereignty is above common law rules and if Parliament set out that they would create law in a certain way, then the courts must follow that rule. The case therefore asserted that in 1911 Parliament was able to reconstruct itself so that the Commons had ultimate control; in the future Parliament could redefine itself again, possibly by even abolishing the Lords.

Given the structure of the Commons, this gave legislative power to the executive who now have “ultimate control of the Constitution”.[6] Indeed this concern was expressed by senior judges such as Lord Hailsham, years before, compounding what he called elective dictatorship[7]. For him and others such as Sedley LJ, Parliament is now controlled by the executive who through the British electoral and party system can control debates within the Commons. Its result being that legislation is easily pushed through the House by the executive, and the remaining safeguard which could block unsafe legislation has been rendered effectively useless. In his writings it is clear Lord Hailsham is concerned with the powers the government holds, especially minority governments. and suggests a new “constitutional package” consisting of a democratically elected House of Lords and an entrenched Bill of Rights which would limit Parliaments unrestricted right to legislate.[8] These provisions would go a long way to making Parliament subordinate to the law, and would certainly restrain governments from the amount of powers they hold to legislate.

In reply political constitutionalists such as Griffiths object to this view, instead holding that “the law…cannot be a substitute for politics”[9], for it will merely ‘pass the baton’ on political questions from politicians to judges who do not have the wider range of knowledge to make decisions on an expansive range of political affairs.[10] Indeed such a situation arose in the USA in Bush v Gore[11], in a dispute over who was the legitimate President. Instead of looking for a political solution, the Supreme Court was asked to try and deduce from the Constitution who the victor was. Many thought that “when it [the court] gazed into the Constitution, saw only a mirror reflection of the justices’ own political preferences”.[12] Such a statement shows the precarious position a legal constitution could put Britain in when deciding such major political issues, for instead of leaving the democratically elected and accountable to make decisions -decisions they are said to make upon conciliating the views of the electorate-such cases would be left in the hands of a handful of judges who might be swayed by personal preferences.

However following on from this discussion in Jackson of whether the Commons hold unprecedented power, senior judges sitting on the case went onto question one of Dicey’s most founding principles; whether Parliamentary Sovereignty is still above the Rule of Law. Indeed three judges in particular seemed to state that if Parliament did pass an act that adversely affected matters of constitutional principle, the court may ignore the law, with Lord Hope stating “Parliamentary Sovereignty is no longer absolute”.[13] The importance of this is that, rifts could certainly emerge between the judiciary and Parliament in years to come about how much power each holds, with the three judges’ statements suggesting that Parliaments lawmaking power can be controlled by the courts. This would not be in line with Parliament’s commitment and shows how the judiciary are challenging the doctrine. Consequently such challenges may lead Britain toward a legal constitution, with recent Parliament acts not aiding their cause to keep supremacy.

The tools have been given to the judiciary by passing acts such as the European Communities Act and Human Rights Act, which have further questioned the extent of Parliaments powers. Firstly section 2 of the ECA sets out that if EU law exists on a particular issue and any domestic laws are inconsistent, then EU law shall prevail, clearly indicating that Parliamentary Sovereignty has been compromised. This issue did not arise in Britain until the Factortame[14]case, where the vital point was whether the claimants could seek interim relief, contrary to domestic law, whilst their case was being heard by the ECJ. When the case came back from the ECJ the Lords granted relief, thus confirming Community law being above domestic. The ruling by the Lords was obviously of constitutional importance, and one leading traditionalists, like Wade, to describe the case as a “constitutional revolution”[15]. Wade argues that Parliamentary Sovereignty is a fundamental common law rule, and can be changed only by revolution, which happened when Britain passed the ECA, which shifted the courts’ loyalty from Parliament to the European Court of Justice.

Conversely most commentators find his argument unconvincing. Firstly one must consider where the Lords got their power to determine questions on Community law; indeed this came from Parliament and as Lord Bridge recognised in Factortame when he stated that “whatever limitation of its sovereignty Parliament accepted when it enacted the ECA was entirely voluntary.”[16] Therefore what the courts did was not revolutionary at all, they were just doing what they had done for centuries; enforcing the will of Parliament. If the case had been decided under English public law, there would have been a revolution, but the case was in fact decided under European Law. Parliament has always known that in clashes between domestic and EU law, the latter will succeed. Yet this has not affected Parliamentary Sovereignty as Parliament can still pass any law whatsoever and it is still true that in English law no Parliament can be overruled; only in Community law can this be done, as it is now widely thought that Britain now has two legal systems operating in one jurisdiction.[17]

A further way in which Parliament seemed to limit their power was through the HRA. The traditional view held was that any higher order law would be detrimental to the doctrine. With regards to basic rights, people were seen as the Crown’s subjects, they could do whatever they liked unless it was contrary to common law. The only safeguards to protect citizens from infringements of their rights were constitutional conventions. This gave Parliament a tremendous degree of power to be able to abuse their authority, and in a legislature that was increasingly influenced by the executive, this was not ideal. Yet the HRA now gives judges a great deal of power to influence the legislature with regard to legislation conflicting basic rights. Firstly in Section 4, the courts are given the role to declare legislation ‘incompatible’ if it contradicts a convention. Many argue that this does not affect Parliamentary Sovereignty, as although the declaration means that the provision will be sent back to the legislature for redrafting, the government is not obliged to listen to the judiciary, and the act can continue being valid in its current form. However in reality every time a declaration has been made, Parliament has made the proposed amendments. Indeed it would be surprising if Parliament were to ignore the courts, as if an act had been flagged as incompatible, then any cases involving that legislation would no doubt go to Strasbourg, where as a convention right has been infringed, the law would effectively be inoperative.

A further power the courts have been given under the HRA, is under section 3, which enables them to interpret legislation “in so far as it is possible to do so” with convention rights. Showing that when assessing the issues of interpretation, Parliament’s intentions now become a secondary consideration. Moreover cases such as GhaidanvMendoza illustrate how wide a discretion judges are exercising when interpreting European cases, when they effectively wrote in the words “[as if] living as husband and wife”, so as to make a Parliamentary act compatible.[18] This suggests judges are becoming legislators, as this was not what Parliament intended when passing the original act. Therefore it seems that although it is necessary to safeguard against abuses of Parliamentary power occurring, there also needs to be safeguards against judges extending their powers so widely. Therefore if democracy is to be upheld, then it would be wiser for Parliament to make it clear that section 4 should be abided by more stringently, as that way Parliament can continue to legislate rather than it being left to the judiciary. Either way as Ewing notes “it [HRA] has transferred a significant power to the judiciary” when it comes to the legislative procedure.[19]

However, recently the Coalition government proposed the creation of a Sovereignty bill, which would set out that if Parliament passed an act, contrary to European Law or the HRA and it contained wording that stated that incompatible constitutional law were to be disapplied, then the courts must follow UK law[20]. This seems to show a mark of intent on the governments part, to protect their sovereignty from further encroachments by the EU, such as in the case of Factortame and from the growing threat from the judiciaries interpretation of the ECHR. However it is without doubt that if the Coalition were to pass this bill, they would be met with a fierce opposition, particularly from the judges and EU. The EU could simply impose sanctions on the government in such a case and if not complied with may threaten to throw the UK out of the EU. More notable though, is resistance that can be expected from the judges who would not want their powers of interpreting European law being reduced. Here it is worth remembering the statement of Lord Steyn when it became apparent that Parliament were trying to pass an act to stop immigration and asylum cases going to judicial review, where he suggested that if such an “unnecessary change” was made to the unwritten constitution then the judges may be inclined to ignore it.

To conclude it seems certain that Parliament is still sovereign, despite the passing of what some like Wade, believe to be higher order laws, and the recent suggestion of a Sovereignty Bill being passed by Parliament only adds more weight to this point. It also seems quite certain that the government are committed to keeping the law subordinate to politics, so they can maintain control of the legislative affairs. Although in recent times acts such as the ECA and HRA have given the judiciary more power to influence Parliaments decisions, it was set out in the government white paper that they purposely intended to the judiciary not to have the power to “set aside” legislation because it was a “democratic mandate” that Parliament kept that power. However with the rise of executive dominance in the UK it does not seem right that in the 21st century Parliament have such a right that could be abused so easily, but it is also not good to give power to an unaccountable judiciary. Therefore one would have to agree with Griffiths’ view that Parliament should keep power if we are to remain a democracy, but we must enforce more stringent ‘checks and balances’ within the Commons to ensure that Parliament is no longer dominated by the executive, to prevent any abuses of power occurring and the possible rise of a totalitarian state.

Bibliography

Books

Alder J. Constitutional & Administrative Law 7th ed. Palgrave Macmillan 2010

Barendt E M. An introduction to constitutional law - Oxford Univ. Press – 1998

Jowell J & Oliver D.  The Changing constitution 6th ed- Clarendon Press – 2007

Tomkins A.Public law - Oxford Univ. Press - 2003

Journals

Elliot M. “Bicameralism, Sovereignty, And The Unwritten Constitution” International Journal Of Constitutional Law-2007

Ewing, K. Constitutional and administrative law.Pearson Longman-2008

Griffiths J. “ThePoliticalConstituion”ModernLawReview-1979

Griffith J 'The common law and the political constitution'LawQuarterlyReview-2001

Hazell R TheConservativeAgendaForConstitutionalReform-UniversityCollegeLondon-February2010

Tomkins A  “InDefenceOfAPoliticalConstitution”OxfordLegalJournal-2002

Wade,W. "Sovereignty - Evolution or Revolution?". Law Quarterly Review-1996


[1] Alder. Constitutional & Administrative Law 6th ed. London, Palgrave Macmillan 2007, p204

[2] RvSecretary of State for Transport ex parte Factortame ltd(No.2)[1991]1AC603,643

[3] R(Jackson)vAttorney General, 2006] 1AC.262

[4] Dicey. Introduction to the study of the law of the constitution-Macmillan-1905

[5]Burmah Oil Company Ltd v Lord Advocate[1965]AC75

[6] Elliot . “Bicameralism, Sovereignty, And The Unwritten Constitution” International Journal Of Constitutional Law-2007

[7] Hailsham. “Elective dictatorship". The Listener: 496–500.21October1976

[8] Griffiths. “The Political Constituion” Modern Law Review-1979

[9] ibid p16

[10]Griffith. 'The common law and the political constitution'Law Quarterly Review-2001

[11]531 U.S. 98 (2000)

[12] Tomkins.  “In Defence Of A Political Constitution”Oxford Legal Journal-2002

[13] [2006] 1 A.C. 262

[14]  [1991] 1AC603,643

[15]  Wade. "Sovereignty-Evolution or Revolution?". Law Quarterly Review 112-1996

[16]  [1991] 1AC603,643

[17]Tomkins. Public Law Oxford University Press–2003

[18] [2004]UKHL30

[19] Ewing. Constitutional and Administrative Law. Pearson Longman-2008

[20] Hazell.  The Conservative Agenda For Constitutional Reform-UCL-2010

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