SQE1

Constitutional Principles

The multifaceted sources of the UK constitution uphold numerous cardinal principles that fundamentally shape and define its structure and character.

Three pivotal principles underpin the UK constitution:

  • The separation of powers

  • The rule of law

  • Parliamentary sovereignty

While these principles are cornerstones of the constitutional framework, they can, at times, intersect and potentially conflict when applied to their extremes. The ensuing sections delve into these principles, exploring their interplay and the delicate balance that defines the governance and legal structure of the UK.

The Primacy of Parliamentary Sovereignty

Parliamentary sovereignty is the bedrock principle of the United Kingdom's constitutional framework. It enshrines the preeminence of Parliament in the legal hierarchy, establishing it as the apex law-making authority within the UK. This principle manifests in three fundamental tenets:

  • Firstly, Parliament possesses the unrestricted legal authority to legislate, amend, or repeal any law.

  • Secondly, there exists no entity or individual with the jurisdiction to invalidate or supersede legislation enacted by Parliament.

  • Thirdly, the principle of continuity and renewal is intrinsic to parliamentary sovereignty, meaning that no Parliament can impose limitations on the legislative powers of its successors.

Collectively, these elements affirm the absolute legislative supremacy of Acts of Parliament within the UK's legal system.

1.1 The Unbounded Legislative Authority of Parliament

The legislative supremacy of the UK Parliament allows it to craft laws on any conceivable subject, without restrictions on the scope or nature of the legislation it enacts. This means Parliament holds the power to pass laws on any topic, no matter how controversial or peculiar they may be, such as hypothetically legislating to harm blue-eyed infants or to regulate activities in a foreign city like Paris.

Self-Definition and Adaptation

Parliament holds the unique ability to redefine its structure and processes by enacting new laws. This self-modifying capability enables Parliament to adapt and evolve through its own legislative instruments.

The conventional route for a bill to become law involves its passage through both Houses of Parliament and culminating with the Monarch's Royal Assent. However, under the unique provisions of the Parliament Acts 1911 and 1949, a bill can become law with the approval of the House of Commons alone, circumventing the House of Lords entirely.

Judicial interpretation upholds that such Acts, even without the concurrence of the House of Lords, are fully legitimate Acts of Parliament, indistinguishable in legal status from those passed via the customary legislative process.

Parliament's Position on International Agreements

In the domestic sphere, international treaties ratified by the UK don't automatically become part of UK law. For international agreements to take effect domestically, they must be transposed into UK law by way of parliamentary enactment, thus affirming the principle that legal obligations on an international level must be explicitly accepted and integrated by Parliament to have internal legal impact.

When the United Kingdom ratified the United Nations Convention on Contracts for the International Sale of Goods (CISG), it undertook certain obligations on an international level to adhere to rules facilitating international trade. However, without specific legislative action, the provisions of the CISG would not apply to contracts within the UK. To give domestic effect to the CISG, Parliament would need to pass an Act incorporating the treaty's provisions into the UK legal system, thereby making them enforceable in UK courts.

Extraterritorial Legislative Reach

The UK Parliament can extend the jurisdiction of its laws beyond the nation's geographic confines, exerting legal influence or control in international or extraterritorial contexts.

The UK's Bribery Act 2010 has wide-ranging implications for UK businesses operating internationally. It holds that a UK corporation or individual can be held accountable for bribery offences committed anywhere in the world, as long as they have a connection to the UK. This means that a British company found to be involved in corrupt practices overseas may face prosecution back in the UK, even if the actions occurred in countries with different legal standards regarding bribery.

Retroactive Legislative Power

While it is standard for legislative bodies to enact laws with a forward-looking perspective, Parliament is also vested with the capacity to legislate retroactively. This means it can pass laws that alter the legal status of actions after they have occurred. Such retrospective legislation can convert previously lawful actions into unlawful ones, which raises significant considerations concerning the rule of law, as it touches on the principles of legal certainty and predictability. These issues are explored in depth in subsequent sections of this discussion.

1.2 The Inviolability of Parliamentary Acts

The principle that no individual or entity has the authority to nullify Acts of Parliament underscores the negative facet of parliamentary sovereignty. This principle asserts that even if legislation is deemed morally reprehensible or fundamentally flawed, the judiciary lacks the jurisdiction to nullify or 'strike down' such Acts. The judiciary has acknowledged that the legislative reach of Parliament encompasses the authority to enact laws that could be characterised as 'unconstitutional.'

It's critical to recognise that Acts of Parliament stand as the apex of legal authority, rendering any judicial attempt to invalidate them as contrary to the doctrine of parliamentary supremacy or sovereignty. On the Solicitors Qualifying Examination (SQE), any suggestion that a court can nullify an Act of Parliament should be immediately recognised as incorrect.

However, the seemingly absolute power of Parliament is moderated by two significant checks: public sentiment and judicial interpretation.

  • Public Mandate. Considering that the House of Commons is a body of elected representatives, any MP involved in passing legislation deemed egregious is likely to face electoral repercussions in subsequent elections.

  • Judicial Interpretation. Another pivotal role of the judiciary is the interpretation of statutes. Courts operate under the presumption that Parliament's legislative intentions align with the rule of law, prompting a judicious interpretation of statutes to reflect this principle.

If a statute stipulates that a decision by a statutory body is beyond judicial scrutiny, the courts may interpret this to mean that only decisions made within the lawful authority of the body are protected from challenge. This interpretation permits judicial review of the body's decisions to ensure they comply with the law, thereby maintaining the rule of law and the ability to question the legality of governmental actions.

  • The Enrolled Bill Doctrine. This principle has practical implications, one of which is the court's non-interference with the legislative validity. According to the Enrolled Bill Doctrine, once an Act has been duly passed by both Houses of Parliament and has received Royal Assent, the judiciary will uphold the Act without contest. The term 'enrolled bill' refers to the formal ledger of legislation ratified by Parliament, which the courts would theoretically reference when assessing an Act's legitimacy.

The Enrolled Bill Doctrine further stipulates that the courts abstain from scrutinising the parliamentary procedures that led to an Act's enactment. Thus, should any procedural anomalies occur during the legislative process in either the House of Commons or House of Lords, the enacted statute remains legally effective. This notion extends to the concept of parliamentary privilege, which safeguards the procedural autonomy of both Houses from judicial scrutiny.

A party in a legal case may claim that a particular piece of legislation should be disregarded because it was passed during an uncommon late-night session in the House of Commons, which they argue compromised the quality of debate and scrutiny. However, as per the Enrolled Bill Rule, the court would not entertain this argument. The court's role is not to evaluate the circumstances or procedures under which Parliament passed an Act; if the Act appears on the official roll of legislation, it is considered valid and is to be applied as such, irrespective of the internal processes that led to its enactment.

1.3 The Principle of Non-Binding Successive Parliaments

A fundamental tenet of parliamentary sovereignty is that no parliament can create laws that will irreversibly bind future parliaments. This means that any legislative body has the capacity to overturn or modify the laws established by its predecessors. This can occur in two distinct manners: through express repeal or implied repeal.

  • Express Repeal. In an express repeal, the legislation explicitly specifies which Acts of Parliament, or portions thereof, are to be rescinded or annulled. This direct approach leaves no ambiguity as to which laws have been withdrawn.

  • Implied Repeal. Implied repeal occurs when Parliament enacts a new law that addresses the same subject matter as an existing one, leading to an inconsistency between the two. Although the newer law does not directly repeal the older one, the conflict necessitates a choice between them. In these situations, the judiciary will uphold the more recent legislation, based on the assumption that the latest Act reflects the current intentions of Parliament.

Consider a situation where the UK Parliament enacted a law in 2005 mandating specific safety standards for electrical appliances. Then, in 2020, new legislation concerning the same domain of electrical safety was passed but with different, perhaps more stringent, standards. If discrepancies arise between the two sets of standards, the latter law would supersede the former, effectively implying the repeal of the earlier provisions that are at odds with the new standards.

1.4 The Impact of EU Membership on Parliamentary Sovereignty

The UK's historical involvement with the European Union (EU) presented a unique interplay with the principle of parliamentary sovereignty. This relationship was chiefly mediated through the European Communities Act 1972 (ECA 1972), which effectively wove EU law into the fabric of UK legal systems. The ECA 1972 stipulated that any binding EU legislation would be automatically assimilated into UK law, thereby negating the need for any additional legislative processes.

  • The Supremacy of EU Law. The principle of EU law's supremacy meant that it took precedence over conflicting national laws across all member states, including the UK. This was operationalised within the UK through the ECA 1972. In instances where UK law clashed with EU law, UK courts would set aside the conflicting domestic law. This practice was based on the understanding that the British Parliament had willingly curtailed its sovereignty by enacting the ECA 1972.

  • Reconciling EU Law with Acts of Parliament. When faced with inconsistencies between EU law and Acts of Parliament, the judiciary in the UK was tasked with the disapplication of the conflicting Act. This was not seen as a contravention of UK law but rather as adherence to it, under the premise that EU law was to take precedence over UK legislation as per the ECA 1972's mandates. This approach maintained the legal integrity of both EU law and the principle of parliamentary sovereignty within the context of the UK's EU membership.

The Principle of the Separation of Powers in the UK

The doctrine of the separation of powers posits that there are three main branches of government—the executive, the legislature, and the judiciary—each with distinct functions and personnel. This doctrine is instrumental in preventing the concentration of power by ensuring that each branch serves as a check on the others, thereby promoting accountability and safeguarding liberty.

In the context of the UK's constitutional framework, this principle is observed with some nuances:

  • The Executive: This branch comprises the Government, including the Prime Minister and other ministers, who are responsible for the day-to-day administration of the state, the implementation of laws, and policy-making.

  • The Legislature: Known as Parliament in the UK, this branch is responsible for creating laws and consists of two Houses—the House of Commons and the House of Lords. Members of the Government (executive) are typically drawn from the legislature, which is a departure from a strict interpretation of the separation of powers.

  • The Judiciary: This independent branch interprets the law and adjudicates disputes. In the UK, judicial independence is maintained through various means, including security of tenure for judges and the doctrine of judicial review, which allows the judiciary to oversee the legality of executive actions.

Although the Monarch is historically the source of all three powers, their contemporary role in legislative and judicial matters is largely ceremonial, with actual power being exercised by Parliament and the judiciary.

2.1 The Legislative Branch of the UK

In the United Kingdom, the legislative branch, which is tasked with creating laws, is embodied by Parliament. The UK Parliament operates as a bicameral institution, consisting of two distinct chambers:

  • The House of Commons. This chamber is composed of Members of Parliament (MPs) who are elected by the public. The House of Commons holds significant authority in the legislative process, including financial matters and the scrutinising of government activities.

  • The House of Lords. Unlike the House of Commons, the House of Lords is not an elected body. It includes life peers, bishops, and hereditary peers. Although it cannot ultimately block legislation, it plays a critical role in reviewing and revising proposed laws.

In addition to the UK Parliament, there are devolved legislative bodies within the United Kingdom with circumscribed powers over certain policy areas. These are:

The Scottish Parliament. Responsible for various matters specific to Scotland, such as education and health, it has the power to legislate within the confines of its devolved competencies.

The Welsh Parliament (Senedd Cymru). It has legislative authority in areas that have been devolved to Wales, including health services and local government.

The Northern Ireland Assembly. It holds legislative powers over certain areas specific to Northern Ireland, similar to the devolved powers of Scotland and Wales.

Each of these devolved institutions can enact legislation pertinent to their respective nations within the UK, operating under the constraints of their devolved powers and in harmony with the overarching sovereignty of the UK Parliament.

2.2 Executive

In the UK's constitutional framework, the executive branch is charged with the duty of enforcing the laws established by the legislature and managing the country's day-to-day governance. This includes adhering to legislation passed by Parliament and wielding powers granted by the royal prerogative. The executive comprises the following:

  • The Government. Led by the Prime Minister, the central government is composed of various ministers and their departments, each tasked with specific areas of public policy and administration.

  • Devolved Governments. In Scotland, Wales, and Northern Ireland, devolved executives have the authority to govern in certain policy areas that have been transferred from the UK Parliament to the devolved legislatures. These areas can include education, health, and transportation, among others.

  • Local Councils and Mayors. Across the UK, local councils serve as a tier of regional governance, responsible for local matters such as housing, planning, and community services. In some regions, directly elected mayors hold executive powers, providing leadership and making decisions on regional issues.

The executive operates within the constraints of the law as set by the national Parliament and is accountable to both the legislature and the public. Through its various levels and offices, the executive ensures that the nation's laws are put into practice and that public services meet the needs of citizens.

2.3 The Judicial Branch

Within the governance structure of the United Kingdom, the judiciary constitutes the network of courts and tribunals tasked with interpreting legislation and adjudicating disputes. At the apex of this structure sits the UK Supreme Court, serving as the ultimate arbiter in legal matters. Disputes subject to judicial scrutiny can arise between private parties; however, cases involving the state and individuals or disputes within state institutions hold particular constitutional significance.

Judges possess the authority to delineate the boundaries of power among various constitutional entities. A case in point is the judiciary's capability to determine whether the executive could utilise royal prerogative powers to initiate the UK's departure from the European Union or if such a significant step necessitated legislation passed by Parliament. Moreover, the judiciary functions as a guardian against executive overreach by employing the mechanism of judicial review. This legal process permits the examination and, where necessary, the challenge of the executive's actions in a court of law.

Rule of Law

The third foundational concept in the UK's constitutional framework is the principle of the rule of law. This principle dictates that the government's actions must be founded on legal authority. Consequently, it is the established law that governs, not the arbitrary decisions of those wielding power. It's essential to acknowledge that the rule of law is not absolute; rather, it serves as a guiding principle underpinning the legal system. Although theoretically possible, the principle of parliamentary sovereignty could allow deviations from the rule of law's standards.

3.1 No Punishment Without Breach of Law

A fundamental aspect of the rule of law is that individuals should only face punishment if they have contravened an established law, and any such penalty must be administered in accordance with legal procedures.

This principle underscores the preference for legally defined parameters over discretionary power in government actions. Discretion can often result in decisions that are arbitrary or inequitable, undermining fair governance.

In contrast, when actions are regulated by clear legal directives, individuals have the opportunity to align their conduct with the law, thus upholding a society that is steered by due process and legal predictability.

For instance, if a government official issues a directive to search a citizen's home based on their political expressions without any legal foundation for such an action, such a directive would be deemed invalid. Legal authorisation is a prerequisite for such invasive actions, and its absence renders the directive a violation of the rule of law.

3.2 Equality Before the Law

The principle that no individual is exempt from the law is a cornerstone of the rule of law. This dictates that every person, regardless of their status, position, or power, is subject to the law's mandates and constraints.

In practice, this principle is largely upheld within the legal system; there have been instances where government officials, including ministers, have been held accountable under criminal law, similar to any other citizen.

The judiciary has also demonstrated its commitment to this principle by holding ministers accountable for legal violations, such as contempt of court, thus reinforcing the concept that the law is supreme and applies equally to all individuals.

For instance, consider a scenario where a Member of Parliament (MP) is found to have engaged in fraudulent financial activities. Despite their position and influence, the MP would be subject to the same legal proceedings and potential penalties as any other citizen found guilty of similar offences. This example underscores the impartiality of the law, reinforcing the notion that all individuals, regardless of their role or status, are subject to the same legal standards and consequences.

3.3 Exception of Parliamentary Privilege

Parliamentary privilege stands as a notable exception to the principle of equal application of the law, providing certain immunities to Members of Parliament. Notably, comments made within the proceedings of Parliament are immune from legal challenge or judicial scrutiny, ensuring unfettered freedom of expression for MPs and Lords within the chambers.

This aspect of parliamentary privilege highlights a situation where the rule of law yields to other constitutional imperatives, demonstrating the dynamic balance between different constitutional principles within the UK's legal framework.

For instance, imagine an MP who, during a debate in the House of Commons, accuses a corporation of illegal environmental practices. If these allegations were made outside of Parliament, they might be subject to legal action for defamation. However, within the confines of parliamentary proceedings, the MP is protected by parliamentary privilege. This means the corporation would be unable to sue the MP for defamation based on the statements made in the House. This principle is crucial for maintaining the independence and efficacy of Parliament, allowing MPs to speak and act without fear of legal repercussions, thus fostering open and robust debate on matters of public interest.

3.4 The Issue with Retrospective Legislation

Adherence to the rule of law typically entails a set of procedural standards that uphold legal fairness. One of the fundamental expectations derived from the rule of law is that laws should be applied prospectively, not retrospectively. Retrospective legislation is problematic because it applies to actions that occurred before the law was enacted, potentially criminalising actions that were lawful at the time they were taken.

This retrospective application can appear as a form of governance by fiat, undermining the very predictability and stability that the rule of law seeks to ensure. Consequently, retrospective laws may be perceived as arbitrary, conflicting with the principle that laws should enable individuals to align their conduct with legal expectations.

For instance, consider a situation where a new law is enacted, imposing additional tax liabilities on certain financial transactions that were executed two years prior to the law's enactment. The individuals and corporations involved in these transactions had complied with the tax laws as they existed at the time. However, with the retrospective application of the new law, they suddenly find themselves liable for additional taxes.

Such retrospective legislation can be perceived as unfair, as it penalises actions that were lawful at the time they were taken. It challenges the rule of law principle that laws should provide a stable and predictable framework for governing conduct, thereby allowing individuals and entities to plan their affairs with reasonable certainty about their legal obligations and rights.

3.5 Additional Aspects of the Rule of Law

The rule of law encompasses various additional principles which are crucial for its effective application:

  • The law should be readily accessible to the public, and its provisions should be clear, comprehensible, and predictable to facilitate compliance.

  • The law must afford mechanisms for resolving civil disputes without incurring excessive costs or encountering undue delays.

  • The state's procedures for resolving disputes must be equitable, upholding principles of procedural fairness.

  • There should be judicial oversight to ensure the enforcement and application of these principles is consistent and fair.

3.6 The Status of Fundamental Rights

Within the common law framework, certain rights are recognised as 'fundamental'. These rights underpin the rule of law, including the unassailable right to access the courts.

Moreover, the principle asserts that governmental and administrative decisions should adhere to an elemental standard of fairness.

It is established that these fundamental rights can only be curtailed or modified by Parliament through explicit legislative action. In the absence of clear statutory directives to the contrary, the judiciary will interpret laws in a way that honours these rights, thus demonstrating the complementary relationship between the rule of law and the sovereignty of Parliament.

A new policy introduced by a government agency restricts the availability of legal aid, making it virtually inaccessible for certain disadvantaged groups. This policy is challenged on the grounds that it violates the fundamental right to access the courts. Since the policy effectively bars a significant section of society from seeking legal redress due to financial constraints, it is viewed as infringing upon this basic right.

The courts, in reviewing this policy, would likely scrutinise whether there is explicit legislative authority that permits such a significant curtailment of the right to access justice. Absent clear legislative intent to limit this fundamental right, the courts would typically interpret the law in a way that aligns with the principle of ensuring fair and equal access to justice, thereby upholding the rule of law.

3.7 Human Rights Act 1998

Beyond the common law protections, the Human Rights Act 1998 plays a pivotal role in ensuring that UK legislation aligns with the spectrum of rights safeguarded by the Act. Where it is not feasible to interpret a piece of legislation in a manner that is consistent with these human rights, the judiciary has the authority to issue a 'declaration of incompatibility'.

This declaration serves as advice to Parliament, highlighting potential human rights conflicts within the legislation. While Parliament frequently takes action to reconcile such discrepancies, the ultimate decision often lies with them, reflecting the enduring principle of parliamentary sovereignty.

3.8 The Role of Judicial Review

The judicial review process is a cornerstone of legal oversight in the UK, providing a mechanism to scrutinise the legality of public authority decisions. Rather than being an avenue for appealing the decisions themselves, judicial review focuses on the legal boundaries within which the decisions are made.

This process upholds both the principle of parliamentary sovereignty—by ensuring that authorities do not exceed the powers granted to them by Parliament—and the rule of law, by demanding that these powers are exercised within the legal framework established by legislation.