LLB CONSTITUIONAL AND ADMINISTRATIVE LAW

The main flaw with the constitution of the United Kingdom is that it allows the
government of the day too easily to remould constitutional issues in ways which
suit their own interests.
Critically discuss
In this paper I will consider the nature of the existing United Kingdom
constitution, from the perspective of the debate about the constitution allowing
the government to change constitutional issues in whatever way suits their
interests. In particular the main topic to be discussed is parliamentary
sovereignty. This has a huge impact itself in the UKs constitution and a major
issue which will be expanded upon.
Introduction:
A constitution has been recognized as 'A code of rules which aspire to regulate
the allocation of functions, powers and duties among the various agencies and
officers of government, and defines the relationship between these and the
public' by Vernon Bogdanor. 1
In the United Kingdom there is a fundamental principle in the constitution and
this applies to Parliamentary sovereignty. The power to end or create any law is
in the power of Parliament because it is the supreme legal authority. Legislation
by the courts cannot usually be overruled and no parliament is permitted to pass
a law that a future parliament cannot change. Generally, a statue is regarded as
the highest form of the law in the British constitution, therefore, the sovereign
law maker is Parliament. 2
Unwritten nature:
Britain is referred to as having an uncodified constitution in the sense that there
is no single document that can be classed as Britainss constitution unlike
America, South Africa or the proposed European constitution. It is therefore said
that Britain, have an unwritten constitution.
S.E FINER, VERNON BOGDONOR AND BERNARD RUDDEN
1995
COMPARING CONSTITUTIONS
IN THE UNITED STATES BY OXFORD PRESS NEW YORK
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CONSTITUTIONAL LAW, ADMINISTRATOVE AND HUMAN RIGHTS, A CRUCIAL

INTRODUCTION
SIXTH EDITION
IAN LOVERLAND
OXFORD
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States that have a written constitution have experienced a historical break with
the past and a fresh constitutional start. For example, the American War of
independence, French revolution and the independence of the colonies.
Therefore, in British history the absence of such a break explains the largerly
unwritten nature of the British constitution which is the result of a largely slow
and peaceful process of evolution. 3
Contained within the written constitution is a single document or a code. Taking
the United States of America as an example and defining the basic rule of state is
where the ultimate source legal authority, all actions of the government and the
legislature must conform to it and any controvert will be both unconstitutional
and unlawful. A supreme court is available to uphold and interpret constitution. 4
Power in the UK is concentrated in the central government and this is known as
unitary constitutions, it has ultimate law making power over al, constituent
nations. Although in Northern Ireland, Scotland, Wales and the local government
some these powers are devolved, and remain subject to United Kingdom
parliaments ultimate control and can be withdrawn thereby as there is no
written down constitution in the UK defining an controlling these powers, this
the UK parliament is sovereign.5 Whereas, in South Africa and Australia, these
are considered to be federal states constitution and therefore, the written
constitution is sovereign and their respective powers are defined and controlled
by constitution. Therefore, in the UK this does not exist and so the government
does have its own power.
Parliament sovereignty:
The constitution in the United Kingdom is the sovereignty or supremacy of
parliament as a domain characteristic. There was a struggle between both the
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Contained within the written constitution is a single document or a code.

Taking the United States of America as an example and defining the basic rule of
state is where the ultimate source legal authority, all actions of the government
and the legislature must conform to it and any controvert will be both
unconstitutional and unlawful. A supreme court is available to uphold and
interpret constitution.
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CONSTITUTIONAL LAW, ADMINISTRATOVE AND HUMAN RIGHTS, A CRUCIAL

INTRODUCTION
SIXTH EDITION
IAN LOVERLAND
OXFORD
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parliament and the King, and so the concept of parliamentary sovereignty

emerged as a result of this. Supremacy of parliament was established in the year
1689 when the bill was passed. The bill therefore, found the supremacy of
parliament over the crown; this concept was called the constitutional monarch
being only a symbol. There are two main authorities which are very important
under the sovereignty. One of which is the legal sovereignty and the other is
political sovereignty. Thomas Hobbes, Rousseau, Thomas Paine are all political
theorists.
The courts cannot declare legislation made by parliament nor null or void where
there are no limitations. Legislative authority was made by the queen in the past
and this was known as the Queen in Parliament. She was able to pass any law.
Moreover, it has been argued that powers that have been owed by the
government have not been misused as a result of the conventions. Meaning that
the government has powers but they are not using them and so the constitution
isnt demanding them to do anything, they decide for themselves.
Statutes are said to be non-justifiable because they are created by the legislature
and so they cannot be challenged in the courts. This was seen in the case of
Pickin v British Railways Broad6. Furthermore, other aspects of this doctrine is
that parliament is not able to bind its successors as it is stated by Maugham LJ in
Ellen street Estates v The minister of health, parliament therefore have the
power to make any law they wish. However, the judiciary independence is
presented by the Constitution Reform Act 2005, and so the separation of powers
should be applied to separate the Rule of Law as well as the separation of
powers. These two aspects above both provide that no rule is above the law and
that individuals should act in accordance with the law.
Parliaments unlimited legislative powers can be desmonstrated in the case of
Queen v Liyanage7 and the others where it can be taken as a hypothetic example.
This case originated from Ceylon, whereby a group of individuals - identified as
Liyanage and the others, planned to overthrow the government headed by the
monarchy. This fell into the ears of the government which led to their arrest.
Thus, the government legislated retrospectively with the intention of convicting
them. Subsequently, after their conviction, an appeal was made to the Privy
Council who in turn acquitted them as they held the laws created by the
Parliament to be null and void because the situation was such that the Ceylon
CONSTITUTIONAL AND ADMINSTRATIVE LAW
MICHEAL ALLEN AND BRIAN THOMPSON
1OTH EDITION
OXFORD
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CONSTITUTIONAL AND ADMINSTRATIVE LAW

MICHEAL ALLEN AND BRIAN THOMPSON
1OTH EDITION
OXFORD
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government cannot legislate retrospectively. The important point to notice is

that, had the same circumstances arisen in England, amendments or even further
legislation made by the Parliament would be legal in view of the unlimited
nature of Parliamentary sovereignty. Yet the Liyanage decision is a good example
of Parliamentary use of its powers in an unacceptable manner which violates the
fundamental principles of law. Such an exercise is perfectly legal in England
though declared unconstitutional in Ceylon.
Moreover in the case of Gillian and Quilton v Uk8 the two appellants applied to
the house of lord in breach of their rights under the articles 5,8,10,11 of the
human rights the house of loads dismissed their appeal and held that the police
acted on authority under section 44 of the terrorism act, the appellants further
took their case to the European court of justice, there the European court of
justice held the section 44 of the terrorism act was violated article 8 of human
rights. Therefore the section 44 was not an adequate protection and that it
abused the rights of the citizens.
On the other hand, the governments response in the UK was that powers will
continue to be used by the police under section 44 which give them the right to
stop and search individuals under any reasonable suspection of terrorism and
any other activity that may be carried out which is not appropriate in the eyes of
the law.
In regards to the above scenario it is fair to say that the United Kingdom is not
bound by the European court of Justice or any other third party. The European
court of justice was held to be a limitation on sovereignty in reality therefore
parliament sovereignty prevails.
In Burham oil v Lord advocate9 the company sought compensation from the
government for the destruction of certain oil installations during the war period.
House of lords held that the company was entitled to be compensated. But the
effect of the decision in burmah oil was subsequently nullified by the passage of
war damage act 1965, which had been promised by the government if it was
defeated in the courts, abolished the rights at common law compensation in
respect of damage to or the destruction of property in the name of crown during
war time. This episode demonstrates the ease with which an inconvenient
judicial decision can overcome by a legislatively supreme parliament. Therefore
it is evident that the doctrine of parliament sovereignty can be used in an
CONSTITUTIONAL AND ADMINSTRATIVE LAW
MICHEAL ALLEN AND BRIAN THOMPSON
1OTH EDITION
OXFORD
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CONSTITUTIONAL AND ADMINSTRATIVE LAW

MICHEAL ALLEN AND BRIAN THOMPSON
1OTH EDITION
OXFORD
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oppressive or a tyrannical way. 10

Dicey's view:
EU, ECHR, devolution
The political sovereignty lies with people and when its entrusted to the state it
has the ability to exercise legal sovereignty. This is in accordance with the case of
AV Dicey. Dicey says that the British parliament is sovereign and in propounding
this theory he deals with three principles. 11
The rule of law has three notions and professor AV Dicey has stated them. The
first rule according to his view is that no man is punishable or can be lawfully
made to suffer in body or goods in an ordinary legal manner before the ordinary
courts of the land. He therefore stated that no person should be punished just
by using restrospective or arbitrary penal laws. However, in the case if Burmah
Oil Company v Lord Advocate 1965, compensation was awarded by the house of
Lords because oil tanks were destroyed in the World War 2.
Legal limitations are put against Parliament because it is sovereign, however, it
cannot be challenged by the courts . This sort of unlimited convention is purely
based on parliament respect rule of law.
The second notion from Dicey is that any person whether a man or a woman
should be treated equally in courts. Furthermore, it was also stated by him that
individuals should be given liberties and equal rights. However, it was argued by
Sir Ivor Jennings that there is no such thing as having equality before the law and
states that it is highly impossible , people cannot have equality between one
another. Similar to parliamentary sovereignty and the rule of law, these two
principles cannot be treated in the same way which suggests that the rule of law
is not sufficient at all. In regards to judicial review in Government
Communication Head Quarters 1985, Allen brings out the above statement
where juries are indicating the importance of the rule of law over providing
sufficient evidence.
CONSTITUTIONAL LAW, ADMINISTRATOVE AND HUMAN RIGHTS, A CRUCIAL
INTRODUCTION
SIXTH EDITION
IAN LOVERLAND
OXFORD
10

CONSTITUTIONAL AND ADMINSTRATIVE LAW

MICHEAL ALLEN AND BRIAN THOMPSON
1OTH EDITION
OXFORD
11

The third and final point to make from Diceys three notions is the most
complexed one. He states that people should have their fundamental liberties
which are essential for their personal conducts. People should be given their
own common law rights which are awarded to them by the government. So in
order to have a better society they introduced the Human Rights Act which
establishes better protection for people.
Overall, there is a definite indication that these instances that Parliament has
used its sovereignty to its own advantage overlooking the fact that justice is
done.

post 2005 reforms, rule of law, human rights act 1998:

Between 1980 and 2005 especially during 1997 and 2005 , United kingdoms
constitution started changing. The reason for this was because of the devolution
to Wales, Scotland, devolution to Northern Ireland the constitutional reforms act
and the Human Rights Act 1998.
The Human Rights act 1998 enactment, incorporating the European court of
Human Rights has made a remarkable change to the sovereignty of Parliament.
In the EU act 1972 the community and union became members. In order to do
this parliament therefore, had to surrender its unlimited law making power to a
certain extent. 12
In Scotland there has been an issue concerning the act of union in the
sovereignty. In the case of Mac Cormick v Lord Advocate (1953) where lord
cooper stated that ; he has not found in the act any provision that parliament of
great Britain hold be absolutely sovereign to alter the treaty at will. 13
Conclusion:
To conclude, constitutional law is the supreme law of the country is enacted
through the sovereignty of the parliament,and the British constitution is not
unwritten it is uncodified. So we can therefore establish that yes the United
Kingdom is that it allows the government of the day too easily to remould
CONSTITUTIONAL LAW, ADMINISTRATOVE AND HUMAN RIGHTS, A CRUCIAL
INTRODUCTION
SIXTH EDITION
IAN LOVERLAND
OXFORD
12

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constitutional issues in ways which suit their own interests.

I 1029746 declare that this piece of work contains 2087 words. I have read and fully
understood the provisions relating to unfair practices (including plagiarism) as cited
on the blackboard.
BIBLIOGRAPHY
STATUE BOOK:
BLACKSTONES STATUE ON PUBLIC LAW & HUMAN RIGHTS 2012-2013
ROBERT G. LEE
2012-2013
22ND EDITION
CASE BOOK:
CONSTITUTIONAL AND ADMINSTRATIVE LAW
MICHEAL ALLEN AND BRIAN THOMPSON
1OTH EDITION
OXFORD
NORMAL BOOK:
CONSTITUTIONAL LAW, ADMINISTRATOVE AND HUMAN RIGHTS, A CRUCIAL
INTRODUCTION
SIXTH EDITION
IAN LOVERLAND
OXFORD
http://www.lawteacher.net/public-law/essays/the-doctrine-of-parliamentsovereignty-law-essays.php
S.E FINER, VERNON BOGDONOR AND BERNARD RUDDEN
1995
COMPARING CONSTITUTIONS
IN THE UNITED STATES BY OXFORD PRESS NEW YORK