Significant Constitutional Principles in the UK

Omobolanle Spaine

‘There are two significant constitutional principles in the UK: (I) the sovereignty of Parliament; and (ii) that there are a plurality of sources of law in the UK. The latter will eventually undo the former, and this would be a progressive development’.

Discuss (your answer must include a discussion of relevant cases)

The basic principle of the British Constitution can be summed up in a fairly bold statement “A statute that is a piece of legislation produced by parliament is generally regarded as a he highest form within the British Constitution. The British parliament is said to be sovereign law maker”. This doctrine however is not laid down in a statute but it is a fundamental rule of common law, s, it is the judiciary that maintain the doctrine as a basic principle of the constitution. The most classic definition of the principle was given by AV Dicey in his book the Law of The Constitution as the doctrine that parliament has” the right to make or unmake any law whatever……..and…no person or body is recognised by the law of England as having the right to override or set aside the legislation of parliament”. This means Parliament has the power to legislate on any subject matter, for example Parliament can change the succession to the throne like in the Act of Settlement 1700, and parliament can grant independence to dependant states such as Nigeria and Zimbabwe in the Nigeria Independence Act 1960 and the Zimbabwe Independence Act 1979.

Whilst it appears that parliament can legislate on anything it wishes, that no legislation can be entrenched and therefore protected from the future change and that no other body can question the validity of a structure, there are significant limitations imposed on parliamentary supremacy, this can be said to be as a result of the plurality of sources of the law in the UK Kingdom (UK) key significance given to the European Union, Human Rights Act 1998 and Constitutional Statues.

In the words of Adam Tomkins “The biggest challenge to the doctrine of Legislative supremacy in recent years has been the united kingdom’s accession into the European Community (EC)” This is based on the fact that as matter of the community’s law, EC law prevails over domestic law in any domestic conflict, even with national constitutional law, because a key doctrine of the community is the supremacy of community law as well. So if to say parliament passes an Act that violates on conflicts with EC law it will be act of parliament that would be upheld under the English doctrine of legislative supremacy notwithstanding the incompatibility with community law, however if there would be provision of community law that prevails under the supremacy of EC law. The main cause of this limitation of parliamentary supremacy began with the European Communities Act 1972. The Act stated that all the community law would be brought into force with the domestic legal system.

Under community law the two provisions that are given legal effects are those that are “directly effective” and “directly applicable”, these terms need to be taken into consideration in order to full understand the implications that the EC law impose of parliamentary sovereignty. The EC law is a very complex legal system composed of multiple legal sources, the five principle sources been Treaties themselves, Regulations, Directives, Decisions and Recommendations. However only two of these key principles are directly applicable under Article 249 of the EC, the Treaties and regulations as they come into domestic effect foe members immediately and this is without any national legislative or executive action. So a term is said to be directly effective when it is sufficiently clear and unconstitutional to be invoked in litigation before a national court. Whereas direct applicability is found in the text of treaty, it is not only treaty and regulations that may have effect on the domestic legal system, so to that they may have effect on the domestic legal system, the direct effectiveness of a provision depends on its substantive content not its sources, thus all sources possess direct effect and only those that the court of justice verify to be sufficiently clear and unconstitutional are directly effective.

Section 2(1) stated “ All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable Community right” and similar expressions shall be read as referring to one to which this subsection applies.”. This clearly signifies that direct applicability and direct effectiveness apply not only to present provisions of the EC law but also in future.

Section 2(4) of the act stated “The provision that may be made under subsection (2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section; but, except as may be provided by any Act passed after this Act, Schedule 2 shall have effect in connection with the powers conferred by this and the following sections of this Act to make Orders in Council and regulations”. This section states that the UK is required to construe and to give effect to all legislation of whatsoever date.

Section 3(1)” started that “For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court).” This section confers on the domestic courts the power to determine and to adjudicate on disputes arising under the community law; this is a key feature distinguishing EC law from international law as it is enforced in the domestic legal systems of its member states courts. The UK courts only have the power to hear and decide cases concerning community law because it was parliament that legislated it. The Doctrine provides that the courts may not overturn or set aside a statute but they may off course interpret these statutes in appropriate cases in the light of the crown international treaty obligations, including obligations under the treaties that constitute the European community.

The most significant development on the issues of compatibility came about in the factortame case. The case was brought about by various fishing companies who owned a large number of boats that had not been registered under the Merchant Shipping Act 1894, as British and who had been permitted to ship in British waters . Section 14(1) of the Act stated that (1) Subject to subsections (3) and (4), a fishing vessel shall only be eligible to be registered as a British fishing vessel if—

(a) The vessel is British-owned, the vessel is managed, and its operations are directed and controlled, from within the United Kingdom; and any charterer, manager or operator of the vessel is a qualified person or company.

Section 14(7)“qualified company” means a company which satisfies the following conditions, namely— it is incorporated in the United Kingdom and has its principal place of business there, at least the relevant percentage of its shares (taken as a whole), and of each class of its shares, is legally and beneficially owned by one or more qualified persons or companies; and at least the relevant percentage of its directors are qualified persons;“qualified person” means— a person who is a British citizen resident and domiciled in the United Kingdom, or a local authority in the United Kingdom; and “the relevant percentage” means 75 per cent. Or such greater percentage (which may be 100 per cent.) as may for the time being be prescribed.”

Factortame and other applicants brought the preceding to the divisional court arguing that the relevant provisions of the Act were contrary to European Community law and accordingly should be set aside. Majority of the management of factortame and all the other companies were Spanish sp they argued that the Act went against EC law as it was discrimatory in terms of nationality and went against the Rights of free movement of services and establishment. When taken to the European court of Justice they ruled in favour of the applicants stating that the Act should be suspended as it was incompatible with a number of principles enshrined the Treaty such as Rights of free movement of services and establishment. The government however ignored this judgment because in R v secretary of state transport, ex parte factortame (No2), the house of lords granted interim relief to the applicants and disapplied the offending provisions of the Merchant Shipping Act. Which only occurred after the ECJ provided a preliminary reference. The reference focused on whether a constitutional principle had to set aside to secure an individual’s community rights. The court following the judgment it had given earlier stated that all principles of national law. Regardless of status within the national system, had to be set aside in such circumstances. Lord Bridge added” it was the duty of a United Kingdom court when delivering final judgment, to override any rule of national law to be fund to conflict with any directly enforceable rule of the community”. In Factortame 5 the house of lords ruled that the UK had come in direct breach of the applicant’s community rights and they should be awarded substantial damage.

As a result of the judicial interpretation of the obligation of section2 (4) if the ECA 1972, it can be concluded that there have been changed made to the traditional doctrine of parliamentary supremacy, particularly the constitutional principle of implied repeal which has been suspended in relation to both the ECA 1972 itself, meaning that it is to some extent entranced for change, thus binding a successive parliament and to any legislation passed post 1972. In other worlds all legislation passed post 1972 have to conform to EC laws and if a statue fails to do so the Doctrine of implied repeal would not apply and the act will be overridden by the EC legal principle. This however is now recognized by courts witnessed in the Thorburn v Sunderland City council (2002) by referring to the ECA as one of the “Constitutional Statues”.

Based on the above analysis EU is a more supreme that the parliament, but this can change because parliament can do whatever they wish. Take for instance in reference to the Factortame case if the parliament decided to re-enact the term of the Merchant Act knowing that it would be in conflict with EU legislation, but notwithstanding they want this legislation to be upheld and enforced by local courts and they included a “notwithstanding clause” into the Act, the local courts would have no choice but to conform with the Act and disregard community law this is only possible because parliament conferred them with the power to do so, and whatever parliament can give they can also take back. If however the parliament is sanction by the EC courts and the Act is overridden then the UK can withdraw from the community, but this would be a very drastic measure as the UK is not only in the EC for legal purposes bit also for political, Economic, Social etc, so it would be hard to withdraw. This can be judged in two ways that parliament is Supreme because it has the power to withdraw but it can be argued that the EU is more supreme because if they stay in the EC they would have to conform to EC laws.

Constitutional statues which is “An Act of the Legislature adopted pursuant to constitutional authority.”The case of Thorburn v Sunderland City council (2002) showed that Acts can be impliedly repealed only by subsequent Acts that deal with the same subject matter. Thus in the words of Justice John Laws “Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature’s actual—not imputed, constructive or presumed—intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes.” Such constitutional statues are Acts of Union and Reform Acts, the Bill of Rights etc.

The second main challenge to the Doctrine of parliamentary supremacy is the Human Rights Act 1998. The Convention of the Human rights is a Treaty, which is as international Bill of Rights, it came into force in the 1980’s and the UK has been bound by it as a matter of international law, it is enforced by the European Court of Human Rights. The ECHR is a Bill of Rights that sets out, fundamental rights which a state must follow only in strictly limited circumstances such as a threat to the country as a whole. The relationship the HRA has with doctrine is stated in section 3 and 4 of the Act, section 3 suggested that whenever possible, courts must endeavour to interpret, so as to conform with the conventional rights, section 4 in turn suggested that declaration of incompatibility is a remedy which is merely declaratory of the fact that the courts views a statue or a certain provision in the statute, is incompatible with the convention rights. The effect of declaration of incompatibility is merely a political issue rather than a legal issue, which is that courts will be invited to revisit and decide whether, in the light of the declaration having granted by the court its wises to continue with the provision to amend or repeal it, the final decision rests with parliament and if parliament decided no toe amend or repeal a provision that has been declared by a court to be incompatible with convention rights. So therefore parliament contiunes to have supremacy to legislate in contravention to convention rights if it so wishes and no domestic court or tribunal can overturn that decision notwithstanding the incompatibility. Also in the worlds of Lord Bingham “In applying the Human Rights Act the courts have what has been called “a very specific, wholly democratic mandate”, but it is a mandate from Parliament and not one which overrides the sovereign legislative authority of the Queen in Parliament.” However if there is violation of an individual’s rights and if brought to the ECHR, the ECHR would adhere to parliament to act in accordance with the HRA and if they fail to do they would have to face the consequences, however still parliament is still sovereign.

On the grounds of the previous argument whether or not parliament supremacy can be removed is best summarised in the words of Ian Loveland “… Sovereignty [cannot] be altered by ‘legal’ means, no matter how ingenious an argument we came up with. The only thing that [can remove] the legislative sovereignty of Parliament [is] another revolution. This need not be a war or a violent insurrection, but it would have to be some momentous break in legal and political continuity, some fundamental redefinition of the way that the country’s citizens bestow law-making power on their legislature.”

The issue of whether or not “The latter will eventually undo the former, and this would be progressive development “. Depends on the importance parliamentary sovereignty has in the UK. The Parliament is the organ in the country that provides a democratic means of running the country based merely on the fact that the ministers in parliament are elected by the citizens of the country, also if the EU takes over the legislatures parliamentary duties, the country would suffer a democratic deficit because the EU is criticized for it democratic deficit, which is said to be due it its lack of due to a lack of legitimacy in its institutions and a lack of influence on the part of its citizens. Also the EU already does the through to the Principle of Subsidiary, the principle is defined in Article 5 of the Treaty establishing the European Community. It is intended to ensure that decisions are taken as closely as possible to the citizen and that constant checks are made as to whether action at Community level is justified in the light of the possibilities available at national, regional or local level. Specifically, it is the principle whereby the Union does not take action (except in the areas which fall within its exclusive competence) unless it is more effective than action taken at national, regional or local level. It is closely bound up with the principles of proportionality and necessity, which require that any action by the Union should not go beyond what is necessary to achieve the objectives of the Treaty. So the Legislature is needed to make sure the government is been run democratically.

On the other hand the Human rights Acts does not protect all the rights of the citizens so why would it be the goal of the nation to get rid of parliamentary sovereignty. The parliament also makes sure that the judges that pass their Acts and Statutes are Accountable and Responsible. The legislature is also kept in check by the judiciary, whom introduced and are enforcing the Doctrine of parliamentary supremacy through the process of judiciary review, whereby the judiciary examines the legality of the actions of the executive; hence it represents the means in which courts can control government power.

Based on the following analyses and the arguments it can be seen that it would be very difficult for parliamentary supremacy to be undermined by either the Economic Community or the Human rights, without their consent or against their wishes because at the end of the day final answer is vested in the hand of parliament they can decide to live the European Union or the can remove the Human rights acts from their constitution merely because it came into force in 1998 and it was enforced in 2000, so parliament can undo it because it was their decision to introduce it. Although constitutional statues limit the powers of parliament compared to the other organs parliament still remains supreme. And if at all it is possible for the plurality of laws to take over parliamentary supremacy it would not be seen as progressive government which is seen as movement towards a goal because of the key role parliament plays in the democratic running of the UK, also parliamentary sovereignty is the key principle of the UK constitution it would be unconventional to change that.