Where does ultimate power lie in the UK constitution?

“...in every major social issue... in the last thirty years ...judges have supported the conventional, settled and established interests, ...they show a tendency to view the ‘public interest’ as the maintenance of established authority and traditional values”. 

The separation of powers prevents excessive interference in executive functions, thus the legislature’s role must be to enforce constitutional safeguards in order to prevent executive abuses of power. The safeguards are essentially conventions and given that these are ‘generally’ followed anyway, Parliament’s only significant function is to heighten awareness of Government threats to the constitution.

The doctrine of Parliamentary Sovereignty is another that makes up the constitution. Basically stating that Parliament is the supreme law maker with the power to make or unmake any law it chooses and the courts are bound to follow. Traditionally Parliament’s law takes precedence over any other and does so until such a time as a particular Act is repealed by another statute. The judiciary are therefore ultimately subordinate to Parliament and can only refuse to give effect to Parliaments will if it can clearly show that Parliament has acted unlawfully. This position has been somewhat compromised by  membership of the EU and the creation of a ‘new legal order’.

Parliamentary sovereignty also provides that no Parliament can bind a future one; every Parliament is free to unmake laws made by their predecessors. Giving rise to the principle of implied repeal whereby the courts, if faced with two conflicting pieces of legislation, are bound to apply the latest. 

“There is one and only one limit to Parliament’s legal power: it cannot detract from its own continuing sovereignty.” 

Lord Denning however, cast doubt on this theory, “We have all been brought up to believe that in legal theory one Parliament cannot bind another ...legal theory does not always march alongside political reality”.

There are limitations, both legal, and practical, i.e. public opinion, political and economic constraints. Plus the impact of the European Communities Act 1972 and the European Communities (Amendment) Act 1993; whilst the UK remains a member of the EU, is significant.

Joining the EEC created new sources of law for the UK, and all Community law became part of UK law with effect from 1 January 1973. UK law should be interpreted and have effect to the principle that EC law is supreme. This means that EC law now takes precedence over all domestic sources of law. UK courts should disregard domestic legislation that conflicts with any directly effective EC law. This was demonstrated in the Factortame case(s). The House of Lords’ decision to set aside statutory provisions 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...’, 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.

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. This amounts to a retention of the doctrine of express repeal.

In the absence of a written constitution, there is greater dependence on the Government’s respect for a third principle of the constitution, the ‘Rule of Law’.

“...a somewhat abstract concept based on the principle that the Government must be seen to be legitimate”. 

The 19th Century writer, Dicey, said there were three elements that went in to maintaining a legitimate system of government; (i) nobody should be punished by the state unless they had broken the law; (ii) one law should govern everyone, both ordinary citizens and state officials, and (iii) the rights of individuals should be secured by a judge, not a written constitution.

The rule of law today can essentially be translated into: ‘the law should not be applied arbitrarily and the state should use its power according to agreed rules’.

Change in the UK’s constitutional order is achieved simply by ordinary legislation. Many argue this flexibility allows for change according to the needs of society. Others say it is more desirable to have special procedures for change i.e. referenda or an increased majority, to ensure a true, long term reflection of national opinion and to act as a curb on the enormous powers of the executive.

Given a decent majority, Governments can make whatever law they want; they can legislate rights and freedoms away, secure in the knowledge that the courts must apply their legislation. The idea that a person is free to do that which is not specifically prohibited, also applies to the state, who may violate individual rights on the grounds that it is not prohibited from doing so.

Much is made of the role of Parliament as ‘watchdog’ over the executive, ensuring oppressive legislation is not passed. However, the modern nature of the party system has fundamentally altered the ethos of Parliament. The whipping system virtually ensures that Government legislation is passed. This is demonstrated by the fact that in the 1980’s, only one Government Bill was defeated.

“What is needed is fundamental political reforms that would allow a democratically elected legislature genuinely to supervise the acts of the executive, and to fetter the exercise of executive discretion”.

The current system means that membership of the Commons is dependent on elections. It could be argued, that the Government is ultimately accountable to the electorate. In reality the power base is an oligarchy of self interest, promoting the notion that Parliament is representative and therefore the Government is the preferred choice of the electorate.

Obviously elections cannot be held annually, or referendums held on every point during a Government’s term. Thus accountability to the electorate is periodic. A general election must be held at least every five years. 

“This gives rise to the fear of the possibility of an ‘elective dictatorship’, with a carte blanche to govern in whichever way it pleases for the term of its office”. 

This is, to an extent, an unfounded fear given the possibility of the dissolution of Parliament; although this is a constitutional convention which can be suspended.

“...I certainly think the doctrine should apply, except in cases where I announce that it does not”.

Purists say the executive is collectively responsible to Parliament, but experience has shown how (in)effective this is when the Commons is effectively controlled by the party that holds office.

With the Commons dominated by a Government with a large majority and the fact that ultimately the Commons can achieve its political will over the House of Lords, it is clear that the executive, weald extraordinary power. 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.

BIBLIOGRAPHY

Dicey, A. Law of the Constitution.

Elliott, C. & Quinn, F. English Legal System, (1996) 1st Ed. Harlow: Longman.

Fenwick, H. & Phillipson, G. Source book on Public Law, (1997) 1st Ed. London: Cavendish.

Griffith, J.A.G. Politics of the Judiciary, (1985) London: Fontana Press.

Keenan, D. English Law, (1989) 9th Ed. London: Pitman.

Montesquieu, C. The Spirit of the Laws, Cambridge: Cambridge University Press.

Lord Templeman, (Consultant Editor) Constitutional Law: The Machinery of Government, (1997) 1st Ed. London: Old Bailey Press. pp. 66 & 107.

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