CONSTITUTIONAL PRINCIPLES
Sir William Wade (1918-2004)
Sir Ivor Jenning(1903-1965)
JAG Griffith (1918-2010)
Introduction
‘The constitution of the UK lives on, changing from day to
day the Constitution is no more and no less than what
happens. Everything that happens is constitutional. And if
nothing happens that would be constitutional also.’ (Griffith
‘The Political Constitution’).
As there is no codified constitution Dicey recognised that it
is based on the principle of the sovereignty of Parliament
and the rule of law.
Separation of powers has emerged as a principle of
increasing importance in the contemporary constitution.
PARLIAMENTARY SOVEREIGNTY
Qualifications of absolute power of monarch:
Magna Carta 1215
Statute of Proclamations 1539
Case of Proclamations (1611)
Dr Bohnam’s Case (1610)
"The principle implicit in the Bill of Rights 1689
is the supremacy of Parliament in the law".
Parliament consists of House of Commons,
House of Lords and the Monarch.
Dicey and legal sovereignty
(1) Parliament recognised as the supreme law making
body with unlimited law making capacity.
(2) No Parliament can bind its successors doctrine of
implied repeal, namely, later statute prevails over earlier
one: see Ellen Street Estates v Min of Health
(3) No other bodies can challenge the validity of
legislation.
Challenging statutes in court
The courts are often called upon to interpret legislation but they do not
have the power to challenge primary legislation.
Enrolled act rule s.9 Bill of Rights 1689
Edinburgh & Dalkeith Railway Co v Wanchope (1842)
British Railways Board v Pickin [1974] unsuccessful attempt to argue
that statute invalid because of a defect in procedure followed in
Parliament.
Jackson v AG [2005] Hunting Act 2004 challenged in the courts.
Jurisdiction acknowledged to determine the validity of an act of
Parliament.
‘The judgment is an affirmation of the principle of sovereignty and it
recognised that the courts have a subordinate role to Parliament.’
Express and implied repeal
Sovereignty means that, in theory at least, no Parliament can bind its
successors. Under the Doctrine of Implied Repeal a later statute
prevails over an earlier one. See Ellen Sreet Estates v Min. of Health
[1934]
Maughan LJ: "The legislature cannot, according to our constitution,
bind itself as to the form of subsequent legislation and, and it is
impossible for Parliament to enact that in a subsequent statute dealing
with the same subject-matter there can be no implied repeal”.
Implied repeal however has been modified by UK membership of the
EU under the ECA 1972 and by the HRA 1998. This is in the sense that
these pieces of legislation continue to be valid and their provisions in
effect over ride subsequent pieces of domestic legislation.
European Union Law
Bulmer v Bollinger [1974] - Lord Denning referred to EU
law as: ‘an incoming tide which cannot be held back’.
European Communities Act 1972 – s.2 (1), s.2 (2), s.2
(4) and s.3 (1)
Direct applicability of EU law in the UK
Articles and regulations without further action, directives
need to be implemented domestically.
S.3(1) decisions of ECJ used to interpret e.g. Costa
ENEL case and EU supremacy doctrine.
R v S of S for Transport ex p Factortame
Ltd (No 2) [1991]
The case concerned fishing rights. The Merchant Shipping Act 1988 s.14 had established a new register of UK vessels which was only open
to those whose who satisfied certain conditions, e.g., that vessels were
at least 75% UK owned.
Claimants who were Spanish argued that the Act infringed the Treaty
on grounds of discrimination on the basis of nationality.
House of Lords held that Community law had to be interpreted as
meaning that a national court must set aside any measure of national
law which precludes it from granting interim relief to protect rights which
had been established under Community law. See Lord Bridge’s
judgment.
The courts clearly accepted the supremacy of EU law and the
modification of the Diceyan approach. It spells the end of the doctrine
of implied repeal.
The nature of parliamentary sovereignty
How did sovereignty come to be recognised. Different
views on this.
It is argued by Jennings and Heuston that there is a
common law acceptance of Parliamentary sovereignty by
the courts which is implicit in the constitution.
But for Wade this is not something given by Parliament or
taken away by Parliament rather it is a rule of recognition
by which the courts recognise the Sovereign will of
Parliament. Wade argues that the supremacy of Parliament
is due to a rule beyond the reach of Parliament. If this rule
was not followed there would be a ‘revolutionary’ change
and the end of sovereignty.
UK Constitution and entrenchment
• Can sovereignty be limited so that a current Parliament
binds its successors?
• Two recent examples the Fixed Term Parliament Act
2011 (5 years between elections) and the European
Union Act 2011 (referendums before extension of EU
law).
• Manner and form approach (AG for NSW v Trethowan).
• Is there authority to suggest that a special procedure in
such an act will be binding. Earlier act prescribes (e.g.
two thirds majority plus referendum) to repeal provision.
This is not subsequently followed in future legislation
which is intended to repeal the decision. Will the
subsequent legislation be valid?
Political sovereignty
Dicey also recognised that political (as opposed to legal)
sovereignty lies with the electorate and is associated
with representative and responsible government.
Based on the mandate i.e. an elected government has
authority to govern and to introduce its manifesto
promises.
RULE OF LAW
Dicey’s second major principle which qualifies the
unlimited nature of parliamentary sovereignty: ’a bridle
for Leviathan’.
‘The rule of law is both a legal rule and a political ideal
or principle of governance comprising values that
should be reflected in the legal system and should be
respected by those concerned in the making,
development and enforcement of the law’ (Turpin and
Tomkins).
In other words the rule of law is the essential part of
‘constitutionalism’.
But it also meant that the courts exercise a control
function over Parliament and government e.g. through
the emergence of judicial review.
Defining the rule of law
(1) The predominance of regular law over arbitrary power.
It means there can be no punishment without law
Judicial resistance to arbitrary executive action/Royal authority e.g.
Entick v Carrington (1765) insistence on due process - overlaps with
requirements of Article 6 ECHR.
Congreve v Home Office [1976] qualifies improper exercise of
discretionary powers
(2) No-one is above the law - equality before the law.
Everyone including the executive organs of the state are under the
jurisdiction of ordinary courts and subject to the law.
Exceptions exist: parliament, diplomats, public interest immunity e.g.
Conway v Rimmer [1968], exemptions under the Freedom of
Information Act 2000.
(3) The constitution is a result of the ordinary law
according to Dicey the common law provides legal
protection for the individual.
M v Home Office [1994] modern example of the
courts standing up to executive authority (while the
application of an asylum seeker was before the court
he was deported in breach of an express undertaking
to the judge. A finding of contempt was upheld
against the Crown by the HL) but there have been
many examples of the courts not standing up to the
executive branch, especially in wartime e.g.
Liversidge v Anderson [1942]
Rule of Law and judicial oversight function
Under the common law the courts apply the rule of law to
ensure that public authorities act lawfully.
Citizen rights have been protected under the common
law.
Ridge v Baldwin [1964] - important aspects of
administrative law developed by the judges e.g.
principles of natural justice.
Consistent with the notion that the common law infused
with concepts of impartiality (e.g. Trevor Allen).
Negative liberty - citizens are free to do anything which
does not break a specific law. The HRA incorporates a
charter of positive rights.
Whitehall model: ‘The Government controls
Parliament and not Parliament the government’.
Majority party in the House of Commons uses
whips/managers to steamroller through legislation
(which may be unpopular).
MPs continue their support because losing a vote
could lead to an election and fall of government.
Lord Hailsham described this as ‘elective
dictatorship’.
Crucial to understanding how the system operates.
Separation of Powers
No formal separation of powers e.g. members of
government must be members of Parliament.
Until recently the highest appellate court was part of
Parliament.
Lord Chancellor used to conflict by being part of all
three branches.
A-G as government law officer also responsible for
taking decisions to prosecute requiring neutrality.
Constitutional Reform Act 2005
Constitutional Reform Act 2005 recognises separation of
powers by:
(1) Placing Lord Chancellor and other ministers under a
statutory duty to uphold the separation of powers.
(2) Removing the anomalies relating to the position of the
Lord Chancellor.
(3) Introducing a UK Supreme Court to replace the
appellate committee of the House of Lords.
(4) Changed the method for the appointment of judges at
all levels, including the introduction of a judicial
appointments commission.
Human Rights Act
• One of the effects of the HRA has been to incorporate
the rights contained in the ECHR into UK domestic law.
• Article 6 in particular had obvious implications because
of the previous lack of separation of powers.
• For example until 2000 the Lord Chancellor was able to
sit as a judge on the appellate committee of the House of
Lords.
• Separation of powers now recognised as an important
constitutional principle.
Contrast the USA, Italy
Marbury v Madison (1803)
The US Supreme Court determines whether laws are in
conformity with constitution. The courts have the final
word, not Congress or the President i.e. where there is
judicial supremacy.
* Danger of politicising the judiciary
* Note that the Human Rights Act 1998 recognises
supremacy by only allowing declarations of
incompatibility (s.4) which refers the matter back to
Parliament
Conclusion
UK has an uncodified constitution increasingly defined by statutes
i.e. recent trend towards codification
Constitution easily changed as Parliament is sovereign and no
special procedure is necessary.
Sovereignty has been diluted (no implied repeal) post EU and
HRA.
Rule of law is an important principle which has developed
alongside parliamentary sovereignty on the assumption that the
courts are a counter-balance to Parliament.
Judicial review as a manifestation of the rule of law is a significant
check on government but the courts have no power to override
Parliament.