The Structure of the United Kingdom Constitution - Case Study Example

Constitutional Entrenchment Entrenchment, according to Fred Ridley, is one of the essential characteristics of a Constitution, along with other factors such as constitutive origin of government, creation of a constituent power, and superiority. 1 A strict application of Ridley’s definition necessarily precludes Charters that are not entrenched – just like the United Kingdom Constitution. Constitutional entrenchment implies an integration of specific provisions into that Constitution that would make it difficult to modify or alter it. Entrenched constitutions cannot be changed unless a process so prescribed in the same document is followed. In most constitutions, this process is usually called an amendment. An amendatory process may, for example, a 2/3 vote from the appropriate body to pass such a proposal. 2 These intrinsic safeguards are usually activated by and needs the involvement of governmental bodies. Moreover, the complete amendatory process may also entail referendums, constitutional assemblies, extra-majority votes, and other set-ups involving the cooperation of regional units. Constitutionalists believe that entrenchment is necessary to institutionalize the rules that govern the limitation of governmental powers either through a law or by a constitutional convention, so that these organs of government whose powers are limited by the Constitution cannot easily tamper with these limitations to bend to their will. An example of an entrenched Constitution is the Bill of Rights of the United States, many provisions of which were adopted more than 200 years ago by an elite group of white male slave owners.3 On the other hand, an example of a Constitution that is not entrenched is the UK Constitution. There are moves by some quarters for a proposal to legally entrench the UK Constitution, particularly the Bill of Rights, but there is doubt whether this can be done unless the fundamental rule of the UK Constitution is itself changed. The UK Constitution: Fundamental Rule One of the characteristics of the UK Constitution is the absence of a single, unified document that enshrines it. Unlike most Constitutions that are evidenced by a single text and are deemed as their states’ supreme law, the UK Constitution needs to be extracted from several documents and sources, without a formal and official mechanism legally enforcing it. Nevertheless, there are objections to characterising it as completely unwritten considering that the laws constituting it can be found in the statutes passed by Parliament. The probable underpinning behind the present structure of the UK Constitution is the fact that there was never a revolutionary event that occurred in UK’s history that prompted the writing of a document that would embody the laws and provisions governing the freedoms and rights of a citizen as against the state and the limitations of the government’s exercise of its power. Thus, the transition from a pure monarchy to a parliamentary democracy did not happen as a revolution but as an evolution effecting gradually since 1689. 4 Although there was an evolution in the fundamental form of government in the UK, there was no parallel change in its external institutions that could have disrupted state continuity. Thus, a full understanding of the UK Constitution entails a study of the country’s history, evolutionary growth, the Westminster model form of constitutional government, UK’s system of government, and more importantly, the concept of Parliamentary Sovereignty. 5 Under the Westminster model of government, the executive, which constitutes the Prime Minister and his cabinet, is selected from a body of elected members. This body of democratically elected individuals is collectively called Parliament and under the Westminster model, it constitutes the legal sovereign. Thus, there is no parallelism between this model and the separation of powers underpinning other democratic systems such as that of the United States, because the executive branch does not only originate from Parliament but is also accountable to it. Moreover, members of both branches are separately elected to their respective and positions. As opposed to a separation of powers under the US and other democratic states, the UK abides by the principle of concentration of power and that concentration of power is lodged in the Parliament. The bottom line is that under the UK governmental system Parliamentary Sovereignty applies. 6 According to Dicey, renowned British jurist and constitutionalist, Parliamentary Sovereignty “means neither more nor less than this, namely, that Parliament thus defined has, under the English Constitution, the right to make or unmake any law whatever; and further that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” 7 Under Dicey’s definition of sovereignty, it is evident that Parliament enjoys legal sovereignty as opposed to political or actual sovereignty. The distinction between them is that the latter refers to the ability to exist independently and autonomously in the absence of external intrusion whilst the former, under the context of the UK system, refers to the definitive source of law-making power. 8 Several fundamental principles can be extracted from Dicey’s definition of Parliamentary Sovereignty and these are: legal sovereignty implies that no other body can dispute or subject to review Parliament’s supremacy as far as law-making is concerned, and; the successors of the present Parliament cannot be bound by it. 9 The principle that Parliamentary Sovereignty implies no higher body that can dispute or subject the its power to make law further reinforces the lack of separation of powers among the different branches of the government resulting in the absence of checks-and-balance system often found in other democratic systems such as the US. Furthermore, this means that even courts cannot subject Parliament’s law-making power to any kind of test, except legal test, and cannot overturn or stop it from exercising that power. Time and again, courts have accepted and reinforced its inability to exercise judicial review over Parliament through decisions declaring this supremacy to be beyond the ambit of “international law; territorial boundaries (even the granting of independence to former colonies); fundamental civil liberties; or any form of so-called ‘higher law’ such as natural law, law of God or natural justice.” 10 The bottom line is that with respect to law-making powers, Parliament has no equal and no superior. The principle that Parliament cannot bind its successors, except that it can abandon previously enacted law by its predecessors, implies that it cannot pass a law that expressly stipulates and prohibits future Parliaments from repealing or abandoning it. Thus, Parliament can freely pass any law it wants, whether the public opinion approves of it or not as MPs are not compelled to follows their constituents, subject only to the discretion of future Parliaments to repeal it. 11 Legal Entrenchment: Unattainable without Abandoning Fundamental Constitutional Law As can be seen, the previous discussion on the fundamental principles under Parliamentary Sovereignty precludes legal entrenchment of a UK Constitution and this is manifestly illustrated in the case of Ellen Street Estates v Minister of Health, 12 which involves two acts: the Acquisition of Land Act 1919, and; the Housing Act 1925. The earlier law, Acquisition of Land Act 1919 specifically provided that any provision of law that is contrary to its provision should have an invalid effect. Subsequently, the Housing Act 1925 was enacted, which provided particularly that in the event the local authority’s power to enforce it has lapsed, such powers can be revived – a provision that ran counter to the provision of the Acquisition of Land Act 1919. The conflict between these legislations was put to a test when a local authority created an improvement scheme under the Housing Act but before it can implement it, its powers lapsed. The local authority revived the scheme and the Minister of Health confirmed it. When this was questioned on the strength of the Acquisition Act, the Court held that the revival was valid because of the principle of implied repeal. Under this principle, The Housing Act 1925 impliedly repealed the earlier law because of the inclusion of a provision that ran counter to a provision of the latter. Implied repeal is underpinned by the power of Parliament not to be confined and bound by an earlier law. 13 The implication of this case and other similar cases like Vauxhall Estates ltd. v Liverpool Corporation, 14 which likewise dealt with the same aforecited legislations, is that any attempt for legal entrenchment to the UK Constitution can only bind the present, but can be made subject to repeal by subsequent Parliaments, which makes such entrenchment impermanent and futile. But whilst the above hindrance to legal entrenchment is hinged on the nature of the fundamental law of the UK Constitution, another perspective points out that it is precisely the absence of fundamental law in the UK Constitution that serves as an obstacle to its entrenchment. According to Christian Fritz, member of the American Bar, entrenchment entails the creation of a fundamental law and this power is simply not within the ambit of Parliament’s power, despite its legal supremacy. The creation of a fundamental law implies the restructuring of the entire UK government structure, something that needs to be done without a parallel transformation in its Constitutional law. According to this theory, fundamental law and the UK government structure conflicts with each other because the latter is not founded on the widely acknowledged political truths by which the essence of fundamental law stands on: one, the consent of the governed is the basis of the government’s legitimacy and; two, such consent constitutes at least the majority. Fundamental law therefore, is the expression of the consent of the governed manifested by the majority, something which cannot be said of the UK Constitution. 15 The lack of fundamental law is an obstacle to legal entrenchment because it would imply the precise creation of that fundamental law by a legislative fiat. Such an act would strain the principle of Parliamentary Sovereignty from all angles. First, the courts would have to use its judicial power to determine if Parliament acts subsequent to such legislative fiat are not in conflict with the entrenched law. In addition, the courts will also have to resolve whether such contravention, if so determined, are in accordance with the provisions authorising it. The courts will have to undertake these determinations under the burden of notice that they must give respect to Parliament’s latest act under the principles of implied repeal and Parliament’s absolute freedom from restraint of prior acts. The real trouble begins when the courts ultimately determine that a conflict exists because this will entail declaring that such subsequent act is invalid. Such a potential declaration is inconsistent with Parliamentary Sovereignty. Moreover, the idea that an entrenched law necessitates the existence of a higher law further distorts and is incompatible with the concept of Parliamentary Sovereignty. 16 However, some have observed that the principle of Parliamentary Sovereignty, particularly its power of implied repeal, has weakened in the past few years as an effect of UK’s membership in the European Union. In the Factortame cases, 17 for example, the HL issued an injunction against the application of the Merchant Shipping Act 1988 pending the determination of the merits of the applicant’s case, after a referral to the ECJ results in the latter’s pronouncement that a national law that singularly stands in the way of the court granting an interim relief to the applicant must not be used. This decision was criticised by some quarters as a manifestation of the principle of Parliamentary Sovereignty. Nonetheless, Lord Denning’s counsel to uphold Parliamentary Sovereignty in Macarthys Limited v Smith 18 where he asserted that when the time will come that the courts must decide between the Law of Treaty, which obliges the government to respect treaties to which they have entered into and a subsequent act of the Parliament repudiating it, the courts must give application to the latter, still rings today. In the recent case of Thoburn v Sunderland City Council, 19 the Court attempted to create a balance between Parliamentary Sovereignty and laws exempted from implied repeal holding that while there are laws regulating special relationships that constitute superior class and therefore immune from implied repeal, such immunity is nevertheless, a consequence of the authority granted by Parliament and therefore still an exercise of Parliamentary Sovereignty. Any attempt to legally entrench the UK Constitution is pointless ultimately unless UK decides to change its entire governmental structure and discards the essential law that underpins its very system. This is because Parliamentary Sovereignty, the fundamental underpinning of the UK governmental system, precludes legal entrenchment of the UK Constitution despite recent assertions to the contrary. Legal entrenchment of the UK Constitution, if pursued, will render the principles inherent in Parliamentary Sovereignty unworkable. First, the idea that Parliament is the ultimate law-making body subject to no higher authority is contrary to the idea of legal entrenchment considering that the latter entails limitations set on future Parliament acts to keep within the bounds of such entrenched doctrine. This is in itself necessitates judicial review, a process alien to a system where Parliament is held as supreme because it would empower the courts to render future Parliament acts unconstitutional and therefore invalid. The very act of invalidating another’s act constitutes an affront to that body’s supremacy. Moreover, legal entrenchment will corrupt the principle of Parliament’s freedom from prior restraint and its inability to bind future Parliaments. Again, this is watering down the principle of Parliamentary Sovereignty and will entail judicial review. Any move to pursue legal entrenchment of the UK Constitution can therefore, be done only if the concept of Parliamentary Sovereignty is discarded as the country’s basic framework. This is unlikely, however. The present UK system is a historical and political legacy that is a testimony to a political system that works on the basis of a responsible and representative government despite its centralised power and the absence of a checks-and-balance system inherent in democracies operating under separation of powers. Why fix something that obviously works? References: Ellen Street Estates v Minister of Health [1934] CA 526. Fritz, C. An Entrenched Bill of Rights for the United Kingdom: The Constitutional Dilemma, Anglo-American Law Review, Vol. 10, No.2. April 1981. Macarthys Limited v Smith [1979] 3 All ER 325; [1981] QB 180. McAnulla, S. British Politics: A Critical Introduction. Continuum International Publishing Group, 2006. Peele, G. Governing the UK: British Politics in the 21st Century, 4th Edition. Wiley-Blackwell, 2004. R v Secretary of State for Transport (ex parte Factortame Ltd) [1990] 2 AC 85; R v Secretary of State for Transport (ex parte Factortame) [1991] 1 AC 603. Sharma, S.R. Encyclopaedia of Constitutional. Anmol Publications PVT. LTD., 2003. Thoburn v Sunderland City Council [2003] QB 151; [2002] 3 WLR 247; [2002] 4 All ER 156. Vauxhall Estates ltd. v Liverpool Corporation [1932] 1 KB 733. Waluchow, W. A Common Law Theory of Judicial Review: The Living Tree. Cambridge University Press, 2007. Waluchow, W. Constitutionalism. Stanford Encyclopedia of Philosophy. [2007]. accessed 12 December 2010. Wright, A. The British Political Process: An Introduction. Routledge, 2000. Read More