Evolution and Challenges of British Constitutionalism

The article discusses the concept of democracy and constitution in Britain. It highlights that Britain's constitution has evolved over centuries through a mix of common law, case law, historical documents, Acts of Parliament, and European legislation, making it difficult to define or codify. The article questions whether Britain needs a written constitution like other flourishing democracies, citing both pros and cons.

THE CONSTITUTION HUMAN ACT RIGHT
This essay explains the doctrine of parliamentary sovereignty and it relevant to the UK constitution. .
The essay is divided in three main sections. The first explores the doctrine of parliamentary sovereignty
and defines its meaning. Then it focus on the key constitutional principles that make up UK constitution.
Finally, the effect of HRA and ECA have had on the UK constitutional and parliamentary sovereignty.
The doctrine of parliamentary sovereignty (or supremacy) is one of the fundamental principles of the
constitution of the United Kingdom. For some academics it is even the most important one. It is the
doctrine of parliamentary sovereignty which explains why there is no codified constitution in the UK. If
British Parliament is sovereign, then the constitution and law is what the Parliament enacts. The
doctrine was first described by academics in the 19th century. However, in the post-war UK history,
especially the latest history, the principle of parliamentary sovereignty has been put under strain as a
result of some of the constitutional reforms enacted by Labour governments in 1970s and at the turn of
the 20th century. Going back to 1970s the major constitutional implications had the British entry into
the European Communities.
The purpose of this essay is to analyse constitutional human act right in UK and the doctrine of
parliamentary sovereignty. Therefore, the first section defines and explores the constitutional principle
of parliamentary sovereignty; the second describes in short the key constitutional principles that make
up UK constitution; finally, before summarising and concluding with argumentative words that are
supported by authority.
The parliamentary sovereignty
The British doctrine of parliamentary sovereignty is a very complex one. Therefore, it is essential to
explain in the first place the meaning of basic terms such as ‘sovereign’ and ‘sovereignty’, and then the
concept of ‘parliamentary sovereignty’. According to Merriam-Webster Dictionary a term ‘sovereign’
refers to a person “that exercises supreme authority within a limited sphere”. Originally this term
denoted a monarch or a ruler. However, the meaning of ‘sovereign’ evolved in the Age of
Enlightenment, when philosophers like Thomas Hobbes, John Locke, and Jean-Jacques Rousseau
elaborated the ‘social contract’ theory. According to this theory the people were considered to be the
legitimate sovereign, but they contracted their sovereignty to a ruler in return for his maintaining their
safety. Hence, if the ruler failed to do this, the people were released from their obligation to obey him.
According to the Penguin Dictionary of Politics (Robertson, 1986: 305) ‘sovereignty’:“means the right to
own and control some area of the world. It has nowadays nothing to do with monarchy […]. Its basic
meaning is legitimate rule, as opposed to actual power.”
In democracies the understanding of the sovereignty is often connected with the rule of the people,
thus one can talk about the sovereignty of the people. Although these two terms defined in that way are
quite easy to understand, problems arise when an institution is designated as a sovereign instead of an
individual or the people. This is because an institution such as parliament needs to be precisely defined.
It is necessary to specify rules of working, nominating members and determining what is to count as a
correct procedure or valid enactment. This view has been supported in the work of Bogdanor (2009:

280). He also states that “Parliament is sovereign only when it acts in a certain manner prescribed by the
rules” (Bogdanor 2009: 280–281). But what does it mean that Parliament is sovereign?
Probably the first person who described the sovereignty of Parliament as one of the fundamental
features of the constitution of the UK was a British constitutional lawyer Albert Venn Dicey. In his book,
An Introduction to the Study of the Law of the Constitution, Dicey (1959: 40) explains that the principle
of parliamentary sovereignty means that Parliament has:
“the right to make or unmake any law whatever; and, further, that no person or body is recognized by
the law of England as having a right to override or set aside the legislation of Parliament”
The first implication of Dicey’s definition is that the courts cannot overrule the legislation of Parliament.
The second implication is that no Parliament of the day can pass laws that future Parliaments cannot
change. For Dicey (1959: 39) the doctrine of parliamentary sovereignty was “from a legal point of view
the dominant characteristic of our political institutions”. Dicey’s understanding of this principle was,
therefore, similar to that what is called the ‘rule of recognition’ and consequently made it the most
important part of the British constitution; the rule which simply identifies other rules.
Although it is still strongly believed that the sovereignty of Parliament is the central principle of the
British constitution, many theorists argue that British and every other legal system is based on more
than one fundamental principle and it is hard to grade them. For instance Barber (2000: 137) claims that
“the English legal system possesses multiple unranked sources of legal power” and “that neither
Kelsen's Grundnorm nor Hart's rule of recognition can be accepted as universal truths of legal systems”.
One of the other crucial principles of the British constitution is the rule of law (Garnett & Lynch, 2009:
118). This principle consists of ‘two sovereignties’ (Bradley, 2004: 27). The first one is the sovereignty of
Parliament and the second is the sovereignty of the courts. However, the former refers to ‘law making’,
and the latter to ‘interpreting and applying the law’. Therefore, both courts and Parliament must coexist
and it makes the principle of parliamentary sovereignty much more complicated. The quotation below
illustrates it perfectly: “the sovereignty of Parliament can be said to be based upon decisions of the
courts in applying Acts of Parliament” (Bradley, 2004: 29) .Sir Ivor Jennings and his thoughts. He agreed
with Dicey that the Parliament can enact legislation dealing with any subject (Jennings, 1959: 170) and
that the legislation of the Parliament is superior to the jurisdiction of the courts (Jennings, 1959: 254).
However, Jennings (1959: 170) claimed also that the supremacy of the Parliament exists only in theory,
because it “is a legal fiction and legal fiction can assume anything”. To prove this he gave a famous
example that:“if Parliament enacted that all men should be women, they would be women so far as the
law is concerned” (Jennings, 1959: 170).
The British government by virtue of the Royal Prerogative has power to enter into international treaties
that bind the state. However, the doctrine of parliamentary sovereignty implies that no alteration of the
rights of British citizens and all the other individuals within the UK can be done without the
Parliament’s consent. These rights can be altered only by Acts of Parliament. For that reason, if the UK
does not want to be in breach of its international obligations, the Parliament has to incorporate
international law into UK law by enacting Acts. (Bradley, 2004: 41–42)
In 1972 the Parliament enacted the European Communities Act which incorporated the Community law
into the British legal system. By doing this the Parliament incorporated also two revolutionary
principles – the principle of direct effect and the principle of supremacy. The first one means that

Community law (Barber, Nicholas. 2000; 131–154) is capable of conferring rights and duties directly on
the individuals and national courts are obliged to interpret all legislation in compliance with the
Community law. This doctrine was established by the decision of the European Court of Justice in Van
Gend en Loos case in 1963. The supremacy of Community law was, on the other hand, established in
1964 by the decision of the ECJ in Costa v. ENEL case. It refers to the fact that the accession of the
community.
Community law is superior to national laws. In other words, Community law takes precedence in the
case of conflict with provisions of national law
THE CONSTITUTIONAL PRINCIPLE THAT MADE UP UK CONSTITUTIONAL.
Historic feature of the UK constitution is the Royal Prerogative. These powers are formally
exercised by the monarch acting alone, but in reality are exercised by government ministers. It gives the
Crown many powers including the power to declare war, make treaties, deploy armed forces, appoint
and dismiss ministers and dissolve parliament. In reality, the existence of the Royal Prerogative within
the UK constitution means that the Government can exercise its powers without recourse to Parliament.
The most important principles of the UK constitution are those of parliamentary sovereignty and
the rule of law. The former means that Parliament can make or unmake any law without being bound
by, or binding, its predecessors or successors respectively.
Parliamentary sovereignty therefore means that Parliament is the supreme law-making body,
although this is now challenged by the UK’s European Union membership, which gives European laws
superiority over any conflicting domestic law. Also, over the years, the application of parliamentary
sovereignty has been limited by the passing of certain laws by Parliament, such as the Human Rights Act
1998.
The rule of law incorporates fundamental principles to which the Government and the law have
to conform. For example, this includes the principle that ‘no person is punishable in body or goods
without a breach of the law’, meaning that individuals will not be punished unless they have committed
a clear breach of the law.
EFFECT OF HRA AND ECA ON UK CONSTITION AND PARLIAMENTARY
In order to ascertain whether Parliamentary sovereignty has been refined by the Human Rights
SOVEREIGHTYThe traditional perspective of parliamentary sovereignty has been derived by A V Dicey
who was “famously straight forward (Gordon, M. and Wade’, 2009) In his thinking. He places the
supremacy of parliament above all else: Acts of Parliament must be upheld as supreme in the court of
law and, through the doctrine of implied repeal as exampled in Vauxhall Estates v Liverpool Corporation,
no parliament can bind subsequent parliaments through the entrenchment of statutes. Thus, in a
traditional orthodox sense it seems reasonable to assume that no institution can threaten the
sovereignty of parliament, including the judiciary: parliament has unlimited law making powers above
and beyond the courts. (Burmah Oil Company v Lord Advocate (1965).
Firstly, the HRA 1998 has provided for domestic effect of the European Convention on Human
Rights (ECHR) in UK courts. Whilst section (3) provides the judges with an “obligation to go well beyond

conventional domestic law modes of interpretation” Sales, P. (“Judges and Legislature: Values into Law”,
2012 Cambridge Law Journal, C.L.J. 294) to read legislation in a way that is compatible with Convention
rights, it is often argued that it presents no real threat to parliamentary sovereignty: the judges are
limited to operate within existing legal boundaries (Kavanagh, A. “Statutory Interpretation and Human
Rights after Anderson: a more contextual approach” 2004 Public Law 540) and can only interpret
statutes in a way that falls within their judicial jurisdictions. This is exampled in In Re (S) (Care Order)
where Lord Nicholls held that the judiciary were being impermissibly creative in their interpretative
processes, to the extent to which the court was exceeding its duty and in fact amending legislation – an
exclusive function of the sovereign UK parliament – rather than interpreting it. In his judgment, Lord
Nicholls stated: “the reach of this tool [of interpretative means] is not unlimited (HL(E)), [2002] AC 2 AC
313) [C] (Lord Nicholls of Birkenhead) and wrote that the Act aims to protect the doctrine of sovereignty
and in seeking to preserve the separation of powers, he argued that the Court of Appeal’s ruling could
not be “justified as a legitimate exercise in interpretation”[6](ibd). To interpret to such an extent would
be, in the words of Lord Bingham, “judicial vandalism (R (Anderson) (2002), (Lord Bingham). and thus it
may appear that the judiciary are limited in terms of the HRA because they are forced to work within
and below parliamentary proceedings was subordinate to Community Law but it was also held that the
so-called sovereign parliament was required to grant interim relief to the applicants. This, in contrast to
the HRA which seeks to preserve the validity of an Act of Parliament, in my opinion, completely
relegates domestic legislation. What is more, caselaw is continuingly more consistent in furthering this
concept set by the lucid precedent inFactortame. For example Costa v ENEL(Case 16/64) [1964] ECR
585)reaffirms the ECJ’s decision in Van Gend en Looz That the “transfer [into the EU] by states…carries
with it a permanent limitation to their sovereign rights”. These cases undeniably convey rights, under
the ECA 1972, to be sufficiently clear, precise and definite, which suggest parliament is now at threat
from the judiciary.
In light of this discussion I believe it is indisputable that Dicey’s theory, in contemporary
understanding, has lost its predominant nature. Although the HRA attempts to preserve parliamentary
sovereignty, case law is demonstrating confusion over the extent to which parliament reigns supreme
over the judiciary; leaving the doctrine blurred due to a lack of consistency. This volatility is, in my
judgment, cemented to demote parliamentary sovereignty when one considers the UK’s membership in
the supreme EU. This thesis reflects Lady Hale’s judgments in R (Jackson) v Attorney General Where it
was stated that: “parliament has…limited its own powers by the European Communities Act 1972 and, in
a different way, by the Human Rights Act 1998.” Such initial limitations have, in my assessment,
politically entrenched the UK constitution and in doing so have jeopardized, to the judiciary, the once
well established doctrine of parliamentary sovereignty.
Below is Argumentative question:
How don't we have a written constitution?
Essentially because the country has been too stable for too long. The governing elites of many
European nations, such as France and Germany, have been forced to draw up constitutions in response
to popular revolt or war.
Great Britain, by contrast, remained free of the revolutionary fervor that swept much of the
Continent in the 19th century. As a result, this country's democracy has been reformed incrementally
over centuries rather than in one big bang. For younger countries, including the United States and

Australia, codification of their citizens' rights and political systems was an essential step towards
independence. Ironically, several based their written constitutions on Britain's unwritten version.
What do our rights depend upon?
Britain's constitution has developed in haphazard fashion, building on common law, case law,
historical documents, Acts of Parliament and European legislation. It is not set out clearly in any one
document. Mr Straw said yesterday: "The constitution of the United Kingdom exists in hearts and minds
and habits as much as it does in law."
Nor is there a single statement of citizens' rights and freedom. As the Justice Secretary put it:
"Most people might struggle to put their finger on where their rights are."
Do we need a written constitution?
Yes...
* Britain's arcane hotch-potch of freedoms and rights cannot be defended in the 21st century
* It could help citizens clarify their rights and protect themselves against the state
* Most flourishing democracies base their institutions on a written constitution
No...
* The system should not be tampered with as it has served Britain well for centuries
* The practical problems over what to include and leave out would be a logistical nightmare
* It could undermine the power of Parliament to scrutinize ministers on behalf of the public
Conclusions
The place of the principle of parliamentary sovereignty in the UK has, in practice, definitely changed
after accession to the European Communities. Although further amendments of the founding Treaties
and integration processes undoubtedly have, from a practical point of view, bound the principle to a
greater degree. Nevertheless, this fundamental principle, at least in theory, is still far from erosion. It is
really hard to question the argument about withdrawal from the EU and the Parliament’s free will in
deciding whether the UK should stay in the EU or not. It is true that Parliament, in practice, is not
omnipotent and cannot do whatever it wants. But has it ever been omnipotent from that point of view?
After all, according to Sir Jennings (1959: 170) “the supremacy of parliament is a legal fiction” and
Parliament “cannot in fact change the course of nature” or “do all sorts of things”. The changes related
to European integration and globalisation processes which influenced the UK political and constitutional
system merely prove Jennings’ claim.

Sources
 Bogdanor, Vernon. 2009. The New British Constitution. Oxford and Portland, Oregon: Hart
Publishing.
 Bradley, Anthony. 2004. “The sovereignty of parliament: form or substance?”. In: The Changing
Constitution. 5th ed. Eds. Jeffrey Jowell and Dawn Oliver. Oxford: Oxford University Press.
 Dicey, Albert Venn. 1959. Introduction to the Study of the Law of the Constitution. 10th ed.
London: Macmillan.
 Jennings, Ivor. 1959. The law and the constitution. 5th ed. London: University of London Press.
 Robertson, David. 1986. The Penguin Dictionary of Politics. Penguin Books: Harmondsworth.
REFERENCES
[1] Gordon, M. ‘The Conceptual Foundations of Parliamentary Sovereignty: Reconsidering
Jennings and Wade’, 2009 Public Law 519, P.L 520.
[2] Reference to Burmah Oil Company v Lord Advocate (1965).
[3] Sales, P. “Judges and Legislature: Values into Law”, 2012 Cambridge Law Journal, C.L.J. 294.
[4] Kavanagh, A. “Statutory Interpretation and Human Rights after Anderson: a more contextual
approach” 2004 Public Law 540.
[5] In re S (Care Order: Implementation of Care Plan) (HL(E)), [2002] AC 2 AC 313, [C] (Lord
Nicholls of Birkenhead).
[6] In re S (Care Order: Implementation of Care Plan) (HL(E)), [2002] AC 2 AC 312, [H] (Lord
Nicholls of Birkenhead).
[7] R (Anderson) v Secretary of State for the Home Department (2002), [30] (Lord Bingham).
[8] (Case 16/64) [1964] ECR 585.