UK’s Unwritten Constitution

“The unwritten nature of the UK constitution has made the legal system of the UK even better structured. It has the most supreme authority over its institutions and is organised enough as to run the functions of parliament in comparison to the written constitution of the people’s republic of Bangladesh” Critically analyse. Every state has an ultimate source of legal authority. A written constitution is a document which provides the state an ultimate authority.[1] By contrast, United Kingdom (UK) does not have a written constitution[2], as a result, the ultimate law-making power lies with Parliament, the House of Commons (HC), House of Lords (HL) and the Crown[3]. For this everything that happening in UK it is constitutional and if nothing happens that would be constitutional also.[4] But as the parliament and judges are the safeguards of justice and liberty and they embody the spirit of the constitution[5]in compare to giving unconditional power to the Westminster Parliament and carefully limiting the powers of Bangladesh parliament by the constitutional or judicial supremacy concept it is very doubtful in reality that whether man is enough of a political animal to produce a good, sensible, serious and efficient constitution as all the evidence is against it.[6] (George Bernard Shaw). In other word in this question i will discuss the importance of a constitution and the nature of it exist in UK and Bangladesh and finally i will give a compare idea of two kind of supremacy exist in a constitutional system, which is most justifiable to uphold and maintain the liberty and justice in a democratic system, in reality. A constitution is defined by Aristotle (b. 384 – d. 322 BCE)[7] as the way of life that the state has chosen for itself[8] and it is the highest of all.[9] He identifies it as same with the government.[10] [11] But According to Thomas Pains and De Tocqueville the constitution means the aggregate[12] of only those written principles which regulate the administration of the state. K.C Wheare, Hood Phillips and Gilchrist included also the unwritten principles.[13]So, whether it is in written or unwritten, it is a collection of principles[14] and rules, which identify and regulate the major institution of the state and govern and define the relationship between the state and individual citizen; i.e. define the extent of civil liberty.[15] At first considering the UK constitution, which is a product of gradual evolution and its main features are- Unwritten, Flexible, Unitary, Supremacy prevail to parliament, generally centralised, Monarchical in nature with a Bicameral parliament.[16] It is wildly known as un-codified constitution for its main sources, like Israel and New Zealand.[17] As the main sources of UK constitutional are – (i) Parliamentary statutes (ii) Conventions and custom (iii) Historical Principles(the sovereignty of Parliament, rule of law) (iv) Common Law (v) Royal prerogative (vi) European laws. Due to its flexible nature, the constitution is described as a ‘constitution in flux’[18]. On the other hand the Constitution of Bangladesh (BD) is the product of the Liberation Struggle. After nine month war Bangladesh achieved its independent on 16th December 1971 from Pakistan and soon after only within eleven month on 4th November 1972 the final draft was adopted by its Constituent Assembly.[19]The Silent features of this constitutions are- Written, Rigid, Preamble, and Supremacy of the constitution, unitary govt. system, Independence of judiciary, Fundamental Principle and rights. It has a unicameral parliament.[20] So, in compare to the Bangladesh constitution some argued that British Constitution should be codified. As a written constitution would be a better safeguard for the people’s rights, Liberals and freedoms. It reduces the executive powers of the Politian’s. It’s creating much better public awareness. But there are some arguments for an un-codified constitution those are- It is adaptable to changing circumstances as it is easy to amend. The power of unelected bodies has simply passed to elected or accountable bodies. The constitutional safeguards are weaker in the UK Governments can respond more easily to crises such as the increased terror threat after 9/11. It has stood the test of time, unlike much of the Countries there have been no violent revolutions or civil wars for several centuries.[21]So, it is so much justified that the un-codified nature of UK constitution is more efficient from a written one. Now, I will give a compare idea about constitutional supremacy in Bangladesh with the parliamentary supremacy in UK. Firstly considering the UK constitution the doctrine of the unlimited sovereignty of parliament in UK is a product of a long struggle between parliament and the crown which culminated in 1688 with the bill of rights 1689.[22] As According to A.V. Dicey (1885) sovereignty are of two types, legal sovereignty and political sovereignty. [23] The people hold political sovereignty whilst legal sovereignty rests with the “Queen in Parliament” in UK.[24] Dicey had illustrated three main rules of legal sovereignty. According to the first principle of Dicey, Parliament is the supreme law making body and may enact laws on any subject matter. For instance UK parliament in 1716, to extend its own life enacted the Septennial Act to extending the duration of parliament from 3 to 7 years (Now 5 years by Parliament Act 1911, s.7). By enacting the Act of Settlement 1700[25] and His Majesty’s Declaration of Abdication Act 1936,[26] now UK parliament may legislate to change the succession to the throne. By passing the Union act with Scotland in 1706[27], Parliament may abolish itself and reconstitute itself as a different body. Now it may also legislate to alter its own powers (Parliament Act 1911 and 1949) by enacting the House of Lords Act 1999, its removed the hereditary peers from the Upper House. UK Parliament may grant independence to dependent states, whether dominions or colonies, as with the Nigeria Independence Act 1960 and the Zimbabwe Independence Act 1979. UK Parliament can pass laws which are retrospective or prospective. Following the House of Lords decision in Burmah Oil Company v Lord Advocate, [28]parliament passed retrospective legislation, the War Damage Act 1965 to nullify the effect of the House of Lord’s decision.[29] UK Parliament may legislate with extra territorial effect beyond the jurisdiction of the UK even if this produces a conflict with international law. (See Cheney v Conn [30]and Morisneen v Peters [31]case). As, the Aviation Security Act 1982, which extends the jurisdiction of the courts to try the hijacking cases irrespective of the territory in which the offence occurred. It can also pass laws which are contrary to fundamental constitutional principles (R v Jordan[32]). In R v Secretary of state for the Home Department ex parte Simms Lord Hoffman stated that the principle of Parliamentary Sovereignty means that parliament can if it chooses; legislate contrary to fundamental principles of human rights.[33]So we can say that according to Sir Ivor Jennings (1882) parliament can legislate to ban smoking on the streets of Paris. However it is important to note that Dicey’s theory is concerned purely with the absence of any legal limitations on Parliament. He acknowledged that there were clearly political limits on what parliament could do. According to him sovereignty is limited on every side by the possibility of popular resistance. The second limb of Dicey is, No Parliament may be bound by his predecessor or bind his successor. That means each parliament must enjoy the same unlimited power as any before it. In Austin’s word “illimitable”. Two forms of repeal exist to signify that fact that parliament are not bound. They are; As Express Repeal is where legislation is passed which expressly states its intention an act should be repealed. There are some strong arguments that the UK has succeeding in binding itself in this way in considering the effect of human rights act 1998 and the European Communities 1972. However there is also the argument that the requirement to use express words is not particular onerous and represents at best a limited form of entrenchment. Another, the doctrine of implied repeal provides the mechanism by which the judge gives effects to the rule against Parliament being bound by previous Parliaments. If Parliament passed an Act and did not repeal the previous Act expressly, then the doctrine of implied repeal come into the play and the judges will apply the latest statute deeming that the earlier Act was impliedly repealed. The two cases (Vauxhall Estates LTD v Liverpool Corporation 1932[34]) and (Allen Street Estates LTD v Minister of Health 1934[35]) illustrated the principle of doctrine of implied repeal. As The Statute of Westminster 1931, s4 was enacted to give statutory force to the convention that the UK parliament would not legislate for Dominions without their consent. The Statute imposes substantive and procedural restrictions on Parliament’s ability to legislate for former colonies. In Blackburn v AG Lord Denning stated that, in legal theory one parliament cannot bind another. But legal theory does not always march alongside political reality. Legal theory must give way to practical politics.[36] (British coal corporation v The King case )[37] But In manuel v AG[38]and Megarry v C case clearly restated the orthodox view of sovereignty. In this view, “it is a fundamental of the English Constitution that Parliament is supreme. As a matter of law the courts of England recognize Parliament as being in all same the power to destroy its own omnipotence”. There can be seen that the grants of independence do impose political limits on parliament but do not limit the legal power of Westminster to pass laws governing these states. Furthermore, The Act of Union with Scotland 1707 provided a fertile source for academic debate which remains a powerful argument against the unlimited freedom of any Parliament at any time to legislation. In the words of Prof. J Mitchell the near parliament was ‘born unfree’, because the Acts bind and limits the power of Parliament [39]( MacCormick v Lord Advocate [40]and Gibson v Lord Advocate stated the above also). In Attorney-General for New South Water v Trethowan[41]case others the validity of the Constitution (Legislative Council) Amendment Act 1929 was tested also.[42] But according to Dicey’s viewed the acts as having no higher legal status than any other act and could not threaten sovereignty. As the UK Parliament has altered may of the principles contained in both the Scottish and Irish Acts of Union. Further the judicial remarks were obiter and for others arguments some academics have challenged that as parliament cannot bind its successors as a result of some commonwealth cases.     The third limb of A. V. Dicey is, no person or body – including a court of law- may question the validity of Parliament’s enactments. As the manner in which sovereignty is upheld in UK is through judicial decisions. Lord Denning stated this as “in my opinion, it is the function of the court to see that the procedure of the Parliament itself is not abused and that undue advantage is not taken of it. In so doing the court is not trespassing on the jurisdiction of Parliament itself. It is acting in aid of Parliament, and, I might add, in aid of justice. If is proved that Parliament was misled, the court can and should draw it to the attention of Parliament.” But, the House of Lords rejected this view and Lord Reid stated, “The function of the courts is to construe and apply the enactments of Parliament. The courts have no concern in the proceedings how the Act was passed.” (Pickin v British Railways Board 1974[43]and Jackson v Attorney General 2006 )[44]   The U.K. has incorporated the European Convention of Human Rights (ECHR) into domestic law through the Human Rights Act 1998 (HRA 1998). It imposes some obligations on Parliament and judges. Under this act Section 3 requires the legislation to be interpreted as far as possible in a way which is compatible with Convention rights. Section 4 allows the higher courts to make a ‘declaration of incompatibility’ but the courts cannot declare an Act of Parliament invalid. If the Act is not compatible with Convention rights, then the courts have to leave it to Parliament to enact the necessary changes. (Thoburn v Sunderland City Council 2002)[45]   Furthermore the UK became a member of European Community by means of European Communities Act 1972 (ECA 1972). The ECA 1972, Section 2 and Section 2(4) has radically altered the standing of Parliamentary Sovereignty. In Van Gend en Loos (1963) the European Court of Justice (ECJ) held that by signing treaties, the member states had created a new legal order in which individual states had limited their sovereign rights.[46] In Internationale Handelsgesellschaft (1970[47]) where ECJ stated that EU law is even superior to U.K. law. (Factortame no. 1 to 5.)[48] Moreover, in Simmenthal case, ECJ held that EU law is superior to national law whenever enacted.[49] As discussed above, EU and ECHR law is superior to English law and now U.K. parliament will not enact any law which is contrary to EU law and violates of Human rights. Therefore, rule 1 of A.V. Dicey is violated. As far as present U.K. Parliament is concerned, it is still bound by the obligations which were accepted by the Parliament of 1972 and HRA 1998. This is the violation of rule 2 of A.V. Dicey. Moreover, if U.K. Parliament enacts any law contrary to EU law, U.K. courts will never accept it. Moreover, judges now have the power to issue ‘Declaration of incompatibility’ if the law is contrary to human rights .This is a form of challenge and therefore rule 3 of A.V. Dicey is violated. However, theoretically Sovereignty of Parliament remains as the Parliament can repeal the ECA 1972 and HRA 1998 and take UK out from EU. But in practical, it may not be possible due to ever increasing involvement of the U.K. with the European Communities and as the HRA 1998 it provides basic rights and freedom to the citizen of UK. To sum up, it is to say that, by the passage of time, parliamentary sovereignty has become limited to some extent. Since 1689 to recent time, numerous changes has occurred and thus, Dicey’s limbs of parliamentary sovereignty has lost their significance to some extent and are not relevant with todays modern changed civilization. But, it is essential to say that, under an uncodified constitution of United Kingdom, Dicey’s theory and principles of parliamentary sovereignty has provided a guideline to the United Kingdom. In conclusion, it can be said that with the inclusion of membership of EU and incorporation of HRA 1998, it is obvious that Parliament’s law making power has been practically limited and partial, but theoretically parliamentary sovereignty remains in UK. In other words, all legally organised parliaments have limited powers. The Westminster Parliament has constitutionally limited powers, very much like banglad

[1] H. Barnett, Constitutional & Administrative Law (7th ed. 2008), chapter 6, at P.146. [2] H.A. Barnett and Morison, Public law, University of London subject Guide, 2012(London, UOL, 2012), P 20. [3] See (n) 1 H Barnett (2009) P.146 [4](Griffith ‘The Political Constitution’) Belal Husain Joy, Constitutional History of Bangladesh,1st ed (Dhaka, Bangladesh Law Book Company, 2008)P 7 [5] Lord Denning , The Changing Law , 1953 , P 18 [6] See (n) 3 Belal Husain Joy (2008) P 7 [7] < > [8] Abdul Halim, Constitution, Constitutional law and politics: Bangladesh perspective ( 2nd Edition, 2003)P. 25 [9] Pol. 1278b10-11. [10] Pol. 1278b11-14. [11] < > [12] Lord Bryce [13] See, Zink, Harold, Modern Governments , 2nd ed, ( New York : D. Van Nostrand Company, 1983), P.18 [14] Stong, CF, Modern Political Constitution , (London : ELBS, 1970), P 11 [15] See (n) 2 UOL subject Guide, 2012, P 18. [16] See (n) 1 H Barnett (2009) P.14. [17] See (n) 2 UOL subject Guide, 2012, P 20. [18] Ibid. [19] For details see: Chowdhury, A.K,The Independence of East Bangla, (Dhaka, Jatiya Granthakendra,1984 ) P 270-274. [20] See (n) 7 MD. Abdul Halim (2003) P. 41-44. [21] See (n) 1 H Barnett (2009) P.14. [22] Diplock Lj In BBC v Johons (1965). [23] Dicey, AV, Introduction to the study of the law of the Constitution, 10th edn, (London : Macmillan1959). P 39 [24] For more elaborate categorisation, see Rees, “The theory of sovereignty restated”, ( Latett, 1975), Chapter IV. [25] See (n) 23 said by Priestly in 1771 , cited in Dicey ,1885,P 47 [26] See (n) 23 Dicey, 1885, P 47. [27] < > [28] [1965] AC 75 [29] See (n) 1 H Barnett,(2009) P.159 [30] [1968] 1 All ER 779 [31] [1906] 14 SLT 227 [32] [1956] 40 Cr App R 152 [33] [1999] 3 All ER 400, [1999] UKHL 33 [34] [1932] 1KB 733 [35] [1934] 1 KB 590 [36] [1971] 1 WLR 1037 [37] [1935] A.C. 500 [38] [1982] 3 All ER 786,822 [39] Mitchell. JDB “Sovereignty of parliament –yet again” (1963) 79 LQR. [40] [1953]SC 396 [41] [1974] AC 763 [42] [1931] 44 CLR 395 [43] [1974] 2 WLR 208 [44] [2005] U.K.HL. 56 [45] [2002] EWHC 195 [46] [1963] EUECJ R-26/62 [47] [1970] E.C.R. 1125 [48] Factortame I [1991] 1 A.C. 603 Factortame II [1991] ECR 1-4586 Factortame III [1996] ECR 1-1034 Factortame IV [2000] EULR 40 R v S of S for Transport ex p Factortame Ltd (No 2) [1991] [49] [1978] ECR 629

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