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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UNIVERSITY OF BRISTOL

School of Law

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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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Question number and title:

(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."

Actual word length: 2698

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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”. 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 and Jackson 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.  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. 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  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.

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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 ...

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