Although the UK is made of number of jurisdictions, i.e. Scotland, Northern Ireland, England and Wales, the ultimate legal and political power is centralized in the Westminster Parliament – the UK has a unitary constitution. It was the Westminster Parliament who permitted for the individual jurisdictions’ decentralized governments to exist by virtue of statuses passed by the Westminster Parliament and they can be abolished by passing another ordinary Act of Parliament. This clearly reinforces the flexibility of the UK constitution.
In theory the head of the state is the monarch. On the other hand her role in the constitution has been only ceremonial for some time. She still has some legal power vested in her – royal prerogatives. Such as she can legally dissolve Parliament, appoint Supreme Court Justices, to make a war or peace, etc. Those powers, though, are exercised strictly in accordance with constitutional convention that she acts on advice of her ministers and therefore, it is in fact the Parliament exercising those powers. So classifying UK constitution as “monarchical” appears somewhat an academic term.
Parliament, or Queen in Parliament, is only one part or body of the UK government. Under the doctrine of Separation of Powers each body of the government (the legislature – Parliament, the executive and the judiciary) should be able to act independently of each other and neither of them should dominate the rest. The UK has historically been characterized as failing the strict separation of powers due to the various overlaps in personnel and functions between the government bodies. The Constitutional Reform Act 2005 has made an attempt at moving towards a clearer separation of powers by removing judicially active law lords from Parliament and recomposed them in the Supreme Court - independent from the Parliament and the executive. Nevertheless, UK has what is called a “parliamentary executive” where the executive is drawn from the legislature – i.e. they are fused. Therefore, the separation of powers is, as Bartlett stated, only partial.
To conclude in the light of the above, it would appear that Bartlett’s statement is fairly accurate.
It is apparent from the information given that Ed is in matter of form trying to prove that the later Act - the Anti-Terrorism Act 2012 (the “ATA”) is not valid as the Parliament did not follow the manner and form stipulated in the earlier Act - Criminal Justice Act 2010 (the “CJA”).
Parliamentary sovereignty consists of three principles: the Queen in Parliament can make any law it chooses, the courts cannot challenge the authority of an Act of Parliament (British Railway Boards v Pickin  AC 765), and Parliament cannot bind its successors or be bound by its predecessors.
The second principle is a common law doctrine and exists because judges have for centuries upheld this doctrine. In Cheney v Conn  1 WLR 242 Ungoed-Thomas J said:
“What the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the higher form of law that is known to this country” (Allen & Thompson, 2011, pg 57)
Historically in order to establish what constitutes an Act of Parliament the courts would apply the “enrolment bill rule” i.e. see whether the Act in question has passed both Houses of the Parliament and that it received the Royal Assent (Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 C1 & F 710). In these days the courts do not even have to consult the parliamentary roll. The Acts themselves provide this information with the words of enactment at the beginning of the Acts. The courts will not be concerned with the internal process – this would infringe the parliamentary privilege to determine and monitor its own proceedings and very likely the separation of powers as well.
The third principle, i.e. that the Parliament cannot entrench legislation, has been in place in order to ensure that it retains its sovereign power to pass any law it chooses. This principle is also in place so the law adapts with the needed requirements of the time and the Parliament is not stuck with the views of a Previous Parliament, maybe from centuries ago. This principle operates under the doctrines of express repeal (Parliament expressly and explicitly repeals an earlier inconsistent Act) and implied repeal (a later Act impliedly repeals the earlier one to the extent that it is inconsistent with the principle of the later Act dealing with the same subject matter – Ellen Street Estates v Minister of Health  All ER Rep 385).
It is not clear from the facts given whether or not the ATA expressly repealed the inconsistent part of the CJA. Although the CJA is not trying to prevent its repeal altogether, it is purporting to make it difficult to repeal its provisions by requiring later Parliaments to follow a specific manner and form of a later legislation (in this case the ATA).
Following the traditional principles of the parliamentary sovereignty the ATA would prevail even though it did not comply with the manner and form stipulated in S. 19 of the CJA. Simply because the courts would just look whether the ATA is on the parliamentary roll or whether it has the words of enactment at be beginning of the Act and would not investigate the interim proceedings of the Parliament (the Pickin case).
On the other hand some commentators support the idea that the CJA should prevail and ATA should not be enforced or constitute an Act as the CJA has actually entrenched itself by requiring the manner and form to be followed by later legislation in order to repeal it. The cases normally quoted to support this argument are Attorney General for New South Wales v Trethowan  AC 526 where on an appeal from the High Court of Australia the Privy Council confirmed that the manner and form stipulated in the Constitutional Act 1902 (as amended in 1929) had to be comply with to reply it. Then Harris v The Minister of the Interior (1952) (2) SA 428 where the Supreme Court of South Africa decided that the Separate Representation of Voters Act 1951 was void and null as it did not follow the manner and form stipulated by the South Africa Act 1909. The Bribery Commissioner v Pedrick Ranasinghe  AC 172 also ruled that a later Act had to follow the manner and form stipulated in previous Act in order to be valid. This argument may however fall flat as Commonwealth Authorities are not completely analogous with the sovereign UK Parliament.
Another argument runs that the Parliament has already altered the manner and form of passing the legislation which is accepted and recognized by the courts – the Parliament Acts of 1911 and 1949 under which the consent of the House of Lords is no longer needed to pass an Act of Parliament as long as the Speaker of the Commons indicates that a Bill has passed under the 1911 and 1949 Acts. Therefore, a question as why should it not be possible to add an extra element arises.
Allowing a partial entrenchment of legislation would mean a big constitutional change in respect of the Parliamentary sovereignty as later Parliaments would not be able to pass any law they choose without making sure it follows the manner and form stipulated in the previous legislation in order to repeal it. Also, it would allow the courts to question the primary Acts of Parliament.
Biles, G., Evans, S., Matthews, M., Pothecary, J. and Tayleur, T. (2013) Law: the individual and the state Manual 1, Milton Keynes, The Open University
Allen, M. and Thompson, B. (2011) Cases and Materials on Constitutional and Administrative Law, New Oxford, Oxford University Press
Table of Cases:
Attorney General for New South Wales v Trethowan  AC 526
British Railway Boards v Pickin  AC 765
Cheney v Conn  1 WLR 242
Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 C1 & F 710
Ellen Street Estates v Minister of Health  All ER Rep 385
Harris v The Minister of the Interior (1952) (2) SA 428
The Bribery Commissioner v Pedrick Ranasinghe  AC 172
Thoburn v Sunderland City Council  EWHC 195
Table of Statues:
Constitutional Act 1902 (as amended in 1929)
Parliament Acts of 1911 and 1949
Separate Representation of Voters Act 1951
The Constitutional Reform Act 2005
The Freedom of Information Act 2000
The Human Rights Act 1998
The Terrorism Act 2006
Word count: pg.