Where does ultimate power lie in the UK constitution?
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Public Law Where does ultimate power lie in the UK constitution? Most European nations have written constitutions; a single document which can be referred to in isolation. Unusually for a major western democracy, the UK has no such document. The rules on who makes the law, how the relationship between the principle organs of state is regulated and their functions, are contained in a variety of sources i.e. Statutes,1 the common law,2 and conventions. An unwritten constitution. Conventions, which are simply established traditions that tend to be followed, play a significant part, that have become 'the way to behave' and failure to observe them will normally result in political disapproval to the extent that most see them as binding. But they are not law and as such cannot be enforced. There are many coercive examples of conventions that affect our system of government, where a failure to observe could result in the person concerned having to resign, for example the conventions establishing ministerial responsibility and the Government must resign if it loses a vote of confidence. Some basic principles underpin the nature of the constitution. Among them, the doctrine of the separation of powers. The French theorist, Montesquieu, established, "The three main powers of government, ...executive, ...legislature and ...judiciary should be organically and functionally separated in order to avoid the risk of too much power being accumulated in one person or institution, i.e. the risk of tyranny".3 There are flaws in Montesquieu's argument, for example it requires that individuals shouldn't occupy positions in more than one of the three arms of state; that each should exercise its functions independently from the others, and that one should not exercise the functions of either of the others.
UK courts should disregard domestic legislation that conflicts with any directly effective EC law. This was demonstrated in the Factortame case(s).13 The House of Lords' decision to set aside statutory provisions14 in favour of EC law was severely criticised as compromising the sovereign right of Parliament to make law for this country. It was pointed out however, that when the UK agreed to join the Community, it was understood that doing so would mean giving up a degree of sovereignty. '...it is the duty of a United Kingdom court... to override any national law found to be in conflict with any directly enforceable community law...',15 This has posed somewhat of a constitutional dilemma. Membership of the EU obliges the UK to legislate consistently with European law. Under the UK constitution it is not possible to entrench legislation so, in theory, Parliament could repeal the European Communities Act 1972; therefore the loss of sovereignty mentioned in Factortame, is limited and partial. Admittedly, the European Communities Act(s) has the effect of entrenching EU law; Section 2(4), gets around the principle of implied repeal making it virtually impossible for subsequent Acts to be applied in preference to EU law. This is confirmed in case law.16 Although the UK has vested powers in the European Commission and Court over matters it formerly controlled and further powers to invoke sanctions if attempts to re-assert sovereignty by indirect means are made, the UK still retains the ultimate ability to re-assert its power directly by, disregarding its obligations under the Treaty of Rome, unilaterally withdrawing from the EU and expressly repealing the European Communities Act.
It is said by some that Parliament is merely there to legitimate executive policy. The majority of Bills are prepared for Parliament by Government and the bulk of the legislative programme is taken up by these Bills. The executive actively participate in the legislative process and essentially, when the Government have a strong majority, no legislation is enacted that the executive disapproves of. It is probably true to say that in the main, the Parliamentary function of legislation has effectively passed to the Cabinet. The answer to, Who has ultimate power in the UK constitution? is, in reality a shifting concept. Ultimate power can reasonably be said to lie firmly with the executive, particularly at times of strong majority. A party that wins an election with an outright majority is virtually unassailable and able to form a Government that has virtual control over Parliament. The whips ensure the party line is followed and that a majority can be summoned at short notice to vote in the House. The doctrine of collective responsibility increases party discipline and unity and thus strengthens the Government in Parliament. The Government also has devices, such as the guillotine, to curtail Parliamentary debate of legislation. In short, a strong Government usurps the function of the legislature and not only can, but does make the law. The effect on Government alters when faced with the situation John Major faced having lost his overall majority in the House of Commons in December 1996. Power clearly shifted, but it is debatable whether or not ultimate power was lost. With regard to Europe, power again has shifted but, the provisions above suggest that ultimate power remains with the executive, at national level.
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