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 …
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