• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Where does ultimate power lie in the UK constitution?

Extracts from this document...

Introduction

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. ...read more.

Middle

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. ...read more.

Conclusion

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. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree English Legal System section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree English Legal System essays

  1. Discuss Dicey's three propositions on the concept of the Rule of Law in the ...

    on by central government, the Rule of Law is more important now than ever. They claim that central government has sought and seeks to undermine the three basic tenets of Dicey's code with an increase in things such as: * the Official Secrets Act * the attempt to remove an

  2. Consider whether the remaining limitations on the direct effect of EC Law should be ...

    idea that implementation is to be left to the Member States, as even before implementation they can affect national law. This again shows there to be no need to limit direct effect, as the ECJ seem to be ruling around their own limitations on this principle.

  1. Do we agree with Lord Diplock's view that the British Constitution is firmly based ...

    bringing a statutory scheme into force and then established a new tariff scheme under the prerogative. This case shows the abuse of prerogative power. However, the power to make subordinate legislation means that Ministers can create new regulation to deal with unforeseen problems and threats rather than have to find time in the main legislative programme.

  2. Insanity, diminished responsibility and automatism.

    On appeal he claim false identification and was successful. At his retrial he pleased guilty but pleaded manslaughter on the grounds of provocation citing cultural beliefs. He was successful and had his sentence reduced to six and a half years. In the judgment it was acknowledged that the victim's affair 'would be deeply offence to someone of your background and religious beliefs'.

  1. Explain what is meant by the rule of law.Consider whether the rule of law ...

    cases of social welfare, but we must wait and see if this will provide greater equality. Finally, Dicey focussed on what he saw as the constitutional importance of the rule of law. He thought that the common law provided better protection of the rights of the individual than a codified system of law.

  2. Parliamentary Sovereignty

    political and legal authority and it is not clear that the constitution of the UK, albeit unwritten and highly open to interpretation, allows for an action of this magnitude or nature. MacCormick presents a dual understanding of the sovereignty of parliament doctrine.

  1. Parliamentary sovereignty

    be whether it required courts to make a radical break for traditional interpretive principles, but to what extent it required them to do so. The interpretative obligation can have far-reaching effects, as exemplified in Litster v Forth Dry Dock and Engineering Co.

  2. A defamatory statement is statement which is false and which impugns another person's reputation, ...

    tone of the article - circumstances of the publication A very important aspect of this decision is the recognition that it was the duty of the news media to inform the public of matters of public interest. Previously, courts were unwilling to recognize a duty to publish to the public

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work