"The absence of a written constitution….

Enables constitutional change to be brought about within the

UK with the minimum of constitutional formality".
 
A constitution is a system of rules that establish the structure of the state and the principles by which it
operates. Lord Bolingbroke defined a constitution as “an assemblage of laws, institutions, and customs”.
Nearly most other states, apart from the UK, New Zealand, and Israel, has a written constitution.
Generally, countries adopt a written constitution when there is a dramatic break with the past and there
is a need to make a fresh start with a new system of government. For example, the end of the nineteenth
century saw La Gran Colombia obtaining its independence (from Spain), each country consciously
embracing a new beginning with a new constitution. By contrast, the UK has changed gradually and there
has never been such a drastic break with the past for politicians or the people to want the “fresh start” of
a new, written constitution.

The UK is considered to a be a classic model in not having a constitution which is conveniently set out in a
single written document, rather its contains written sources such as legislation; case law; royal
prerogative; and constitutional convention; it is one of few in the world that is not “codified into a single
document”.
 
The British Constitution is based on parliamentary supremacy. Meaning that Parliament, is supreme law-
making body, and can pass any law, by a simple majority vote in parliament, on any subject matter, and
no legal constrain can -under the doctrine of sovereignty- fetter Parliament's power. In this vein, one key
feature of the UK's constitution which results from its evolution is its flexibility. Constitutional change can
be achieved with the minimum of formality with the passage of an ordinary Act of Parliament, with no
special or complex arrangements being required for constitutional amendments.
 
This essay seeks to examine the arguments for and against the UK constitution having a high degree of
flexibility.
 
The flexibility of the UK constitution arises from the political constitutionalism concept, the aim of which
is that people's will (sovereign power) be represented on Parliament decisions. Therefore, flexibility is
studied in the following sources:
 
Statute
A statute is quite simply an Act of Parliament. A legislative proposal begins bill, passing several readings in
the House of Commons, as well as the House of Lords, before receiving Royal Assent and becoming law.
 
In the context of flexibility, statutes are relatively easy to change. In real terms, they endure a lengthy
procedure before any changes can be made. It is a drawn-out process which can be dominated by the
political agenda of the government. Parliament can retrospectively change the law, even after a judicial
decision. Burma Oil Co Ltd v Lord Advocate concerned the retrospectively applicable War Damage Act
1965 passed by Parliament. This decision ultimately reflects the supremacy of the UK parliament and the
flexibility of statutes.
 
The Parliament Act 1911 limited the authority of the House of Lords, by limiting legislative powers and
proclaiming the supremacy of the House of Commons. An extension of the 1911 act can be seen in the
Parliament Act 1949 which further emphasises the limits enforced on the power of the Lords. A
predominant change to the constitution in more recent times can be found in the Constitutional Reform
Act 2005 which provides for the independence of the judiciary. It demonstrates the consistency, solidity
and the importance in relation to the separation of power in our constitution.
 
However, there are some statutes that limit the supremacy of Parliament; the Human Rights Act 1998,
and the Communities Act 1972. These are constitutional statutes which cannot be repealed by
implication. One of the advantages of the HRA 1998 is that it seeks to protect individual's rights and
liberties from infringements or violations of the government. The HRA has had a substantially positive
effect on "bringing rights home" to British citizen. Furthermore, section 2 of the HRA requires the courts
to consider the decision and jurisprudence of the section 2 of the HRA requires the courts to consider the
decision and jurisprudence of the Strasbourg Court when interpreting legislation. This can be seen in the
case of R (Carson) v Secretary of State for Work & Pension. This arguably questions the sovereignty of
Parliament and the power of the judiciary which is important in terms of the separation of powers which
is an important principle of the British constitution. Nevertheless, the judiciary is generally unwilling to
take too much advantage of its powers under section 2 HRA, as can be seen in R v Lyons. The HRA
demonstrates the impact that EU law has had on the British constitution, particularly in terms of ECHR.
The European Community law into the UK's domestic law. When this incorporation occurred, the UK
arguably, transferred its sovereign power, as well as part of the foundation of its constitution to the EU.
The EU exhibited its supremacy over the UK Parliament in Factortame, in which an injunction was granted
which subsequently required Parliament to suspend national legislation because it conflicted with EU law.
 
In regard to its flexibilities, the ruling of the European Court of Human Rights is not classified as binding
on UK court or the UK legislation per se. The only potentially binding effect of EU law is limited to section
3(1) of the HRA, which requires the UK courts to interpret domestic law in a manner that is compatible
with ECHR rights. Lord Judge indeed states that "having taken into account the decision of the court in
Strasbourg, our courts are not bound by them. Lord judge's statement represent the common resistance
that has developed in the UK to what has been the growing presence of ECHR interference in its judicial
system and decision-making processes.
 
Common Law
Common law is defined as "the ancient law of England founded on societal customs and acknowledged
and enforced by the judgments and rulings of the courts".
 
Its major advantage is the certainty and flexibility it provides. This was the key reason for the historic
inception of the common law (stare decisis). The principle of precedent states that the judiciary, in
attempting to apply often vague legislation to complex situation must not depart from earlier
authoritative judicial decision. This principle is based on the apparent need to keep judicial decision
consistent, predictable and thus fair. It is far easier and less time-consuming, for judges to make a ruling
in a case to amend the law in a particular area, that it is for Parliament to pass the relevant legislation in a
case to amend the law in a particular area, than it is for Parliament to pass the relevant legislation, which
involves drafting and debating. Lord Hobhouse stated that the common law involves “ as circumstances
change and the balance of legal, social, and economic needs changes.

The doctrine of precedent is not usually described as an entirely flexible characteristic of the UK
constitution because it is considered to prevent the law from developing. The courts cannot without valid
reason, change the rulings on precedent, although they can interpret it accordingly. For instance, they
can use the purposive rule, which is a form of statutory and constitutional interpretation when
interpreting precedent, it is also important to point out that the courts must consider rather than blindly
apply previous decision; this grants them some degree of discretion and allow them to adapt decision so
that they may apply them to novel and modern situation where necessary. The common law can
therefore be deemed a flexible part of the UK constitution because it allow to adapt to changing social
conditions, albeit within limits. This does not mean that the judiciary is free to determine cases as it
pleases: its discretion is indeed limited by ratio decidenci, fundamental principles contained in previous
decisions and the terminology of the relevant statute.

The Royal Prerogative

Dicey describes the royal prerogative as:
“the remaining element of the Crown’s original power, and it is subsequently the name for the
remainder of discretionary power left at any moment with the Crown, whether such power be in
fact excised by his Ministers, or the King himself”.
 
 In reality the royal prerogative is not greatly flexible. While in theory the Queen is able to appoint or
remove certain public appointees, or even declare war without recourse to Parliament, to do so without
governmental support, history has proven that a constitutional crisis would follow. In the 17th century,
both Charles I and James II were held to have used their power in such a way that Parliament deemed it
as an abuse and it this retaliated, ending in civil war in Charles’ situation. As a result of these incidents,
Parliament passed the Bill of Rights in 1689 to limit the power of the monarch. Thus, not only are
prerogative power inflexible and less potent, they are now fewer in number. Moreover, new prerogative
powers cannot be made; Lord Diplock has indeed concluded that “it is 350 years too late for the Queen’s
court to widen the prerogative”. Though, the Royal Prerogative has however been allowed to evolve and
adapt to a degree; in R v Secretary of State for the Home Department.

Constitutional Conventions
Dicey implies that constitutional conventions are unlike legal or moral rules because they are neither an
outcome of legislative or judicial decisions and they rarely govern matters that are morally debatable.

Constitution conventions bring flexibility to what would be a rigid legal framework bit also that the
constitution can be kept up to date with the changing needs of Government. The idea of the conventions
id to provide flexibility and have the capacity to evolve. Also, are an important non-legal source of the
constitution. These rules of constitutional behaviour are considered to be binding, but due to their non-
legal basis, they will not be enforced by any judicial body (Madzimbamuto and Attorney General v
Jonathan Cape). Because of their foundation as constitutional dispensation and can therefore appear or
disappear as constitutional conditions change. Examples of constitutional include:
 The monarch giving assent to Royal Bills
 The monarch acting on the advice of the Prime Minister to appoint and dismiss Ministers

However, the flexibility of conventions can be demonstrated by the suspension of CMR that occurred in
1975, with regards to the referendum on whether or not the UK should stay in the EU land in 2011 in light
of the referendum on potential reforms of the UK electoral system. On both occasions, ministers were
allowed to air their personal views in public.

Another example of the flexibility of conventions can be seen in the Partition reference - a historic
Canadian Supreme Court reference case in which a convention requiring a substantial degree of
provincial consent for any amendments to the Constitution was not enforced by the courts.
Subsequently, the Canada Act 1982 was enacted by the UK parliament.

In the case of Attorney  General  v Jonathan Cape  Ltd the courts did not legally enforce the convention
governing the secrecy of cabinet discussions but did recognise it. The court dismissed Attorney-General’s
action but found that they did preserve the power to control the release of any information with regards
to cabinet discussions only if it would affect the doctrine of collective responsibility.
Written constitution would make a great improvement to the United Kingdom system of government

A Constitution is a collection of rules and principles which set out how a state will be governed. Lord
Bolingbroke defined a constitution as “an assemblage of laws, institutions, and customs”. It also sets out
the rights of everyone which must be respected by the state and therefore establishes the relationship
between the government and the people. The constitution grants legitimacy to the state and its
government, provides for how the state is to govern, limits the power of those who govern, and protects
the individual citizen from them.

Britain is unusual in that it has an “unwritten” constitution: unlike the great majority of countries there is
no single legal document which sets out in one place the fundamental laws outlining how the state
works. In other countries, many of whom have experienced revolution or regime change, it has been
necessary to start from scratch or begin from first principles, constructing new state institution and
defining in detail their relationship which each other. By contrast, the UK system of government has
changed gradually and there has never been such a drastic break with the past for politicians or the
people to want the fresh start of a new constitution.

The Constitution of Colombia 1991 is classic model written constitution, starting as it does (the Preamble)
with a declaration of values and principles. The UK has no such statement. Instead, writer such as Dicey
propound their constitutional values.

A written constitution often lays down a special procedure under which the constitution can be changes.
For instead, Article 347 of the Colombian Constitution 1991 stipules that “the constitution may be
amended by Congress, by a Constituent Assembly or by the people through a referendum through an
absolute majority”. In contrast, there is no special procedure to change any part of the UK constitution.

The written constitution of a republican country generally has a democratically elected president as its
head of state and government. Furthermore, it has a formal separation of powers between the executive,
the legislative and the judicial. The separation of powers is often the reason for adopting a written
constitution in order to reduce the overlap between the branches of the state. The UK has a monarchy
system, in which the queen is primarily titular head of state. They don’t have define a strict separation of
powers; however, in the Constitutional Act 2005, the legislature created the Supreme court which
replaced the Appellate Committee of the House of Lords, eliminating the overlapping between the
Legislature and the judiciary.

Many written constitutions contain a list of right. For example, Colombian has three categories of
fundamental rights to which the citizen is entitled. They are constitutionally protected and cannot be
easily withdrawn by the Executive or the Legislature. The UK has Bill of Rights from 1689, but that was to
impose limitation on the power of the Crown rather than to grant rights to the citizen. The Human Rights
Act 1998 incorporated the European Convention on Human Rights into the UK domestic law. It marks a
fundamental change in the protection of human rights before domestic courts. However, it carefully
preserves the supremacy of Parliament. The UK courts cannot “strike down” (judicially review) primary
legislation, even if it is incompatible with human right, and Acts of Parliament can still restrict human
rights. Nevertheless, it imposes enormous pressure on the Government to amend the offending piece of
legislation

Most written constitutions include some sort of “political organigramme” which explain whether there is
a President or Prime Minister, or both, and what their power are, who has the power to legislate, who
appoints the judges, and so on. There is no equivalent in the UK as the system of government. The UK
head of State is the monarch, which is a matter of ancient common law, and there is no law that says that
there has to be a Prime Minister.
The UK constitution contains written sources such as legislation; case law; royal prerogative; and
constitutional convention. Some Acts of Parliament have constitutional significance such as the Act of
Union 1706-07 and the European Communities Act 1972. These can be very important changes, for
example the Human Rights Act 1998, which makes human rights directly enforceable in UK courts for the
first time, which strengthens the separation of powers. This indicates that nothing is permanent in the UK
constitution; everything may change. For example, the European Communities Act 1972 is about to be
repealed by the Brexit.

The common law is an important source of the UK constitution. For example, in the case of Pickin v British
Railways Board (1974) Lord Reid, confirmed that the courts had no power to disregard an Act of
Parliament, or to investigate proceedings, in contrast, developing the “Enrolled Act” rule, which is at the
centre of Parliamentary Supremacy, but a few years later had to moderate it, to take account of
membership of the European Union, in Factortame (No. 2) [1991]. Unlike many of the countries with a
written constitution, the UK does not have a distinct Constitutional Court that rules on constitutional
issues. The Supreme Court, established under the Constitutional Reform Act 2005, deals with all types of
law not just constitutional issues and lacks the power of the Colombian Supreme Court to, for example,
strike down unconstitutional legislation. All legal cases, constitutional or not, go through the same court
system in the UK.

Most of the UK constitution do not have the special or formal statutes as in the written constitution. This
means, that its constitution is not law at all but are constitutional convention, defined by Marshall and
Moodie as “rules of constitutional behaviour which are considered to be binding by and upon those who
operate the constitution, but which are not enforced by the law courts.” In this vein, a large part of the
Britain constitution is law down in convention, such as the Cabinet, ministerial responsibility, office of
Prime Minister, and how the considerable legal power of the Queen is exercised by ministers in her
name. In the case of Madzimbamuto v Lardner-Burke, Lord Reid said: ‘Their Lordships in declaring the law
are not
concerned with [conventions] ... They are concerned only with the legal powers of Parliament.’ This means
that constitutional conventions are not law at all, thereby are not legally enforceable. Parallel, they are
flexible regarding conventions do not require any particular step or procedure for their creation.
Similarly, if a constitutional convention becomes obsolete, it can be dispensed with without any formal
steps being taken.

This is supposed to be the main advantage of unwritten constitutions: its dynamism, flexibility, and its
ability to evolve. For example, the UK constitution is often described as a “living constitution” because it
evolves and adapts to reflect changing social attitudes such as the Marriage (Same-Sex Couples) Act 2013.
By contrast, it can be difficult the amending process of a written constitution. On the other hand, if
everything can change, as it can in the Britain constitution, then the protection of individual liberties is
less strong. Also, without a written constitution, the citizen, and even the politician, may find it more
difficult to discover the true constitutional position.

Critics have stated that the executive have too much power and can take away any right by simply using
Parliament to pass an Act or by merely changing a convention. However, even in countries with written
constitutions, that document is unlikely to reveal the full constitutional position. For instance, in
Colombia, the power of the Constitutional Court to strike down legislation for ‘unconstitutionality’ is not
found in the written constitution.

There is not a great difference between a codified and uncodified constitution, to the extent that
documenting all the laws, regulations, law cases in a single document are humanly impossible. For
example, Colombia has constitution, but the law cases nor the treaties do not rest on it, all of them enter
the legal figure called “constitutionality block”, which is not so different from the constitutional sources
of the United Kingdom. Therefore,
The main purpose of constitutional conventions is to ensure that the legal framework of the Constitution
will be operated in accordance with the prevailing constitutional values or principles of the period.
(Re Amendment of the Constitution of Canada [1982] 125 DLR (3d) 1 )

In countries with a written constitution, such as Canada or Colombia, there are several norms that are not
within the constitution and that have been developed for decades. An example of this are the customs,
repetitive actions that citizens carry out and become the accepted way of doing things by society. Then
they may be called conventions. In Re Canada, although the written Canadian constitution did not
require it, it was the convention that the consent of the Canadian provinces be obtained before changes
were made to the constitution.

The UK has an unwritten constitution. It is not contained in a single authoritative document, and instead
is derived from statute, case law, prerogative powers and constitutional conventions. In the UK,
constitutional conventions play a key role in ensuring the smooth running of the constitution.

Even with all of the effort, there is no agreement among different writers in regard to the definition of
constitutional convention. There is a different between the laws (Statute and Common law) and the
Constitutional Convention. Dicey set forth that conventions are “understandings, habits or practices” or
‘constitutional morality’ regulating the conduct of ministers and their officials. In the same line G.
Mashall stated that are non-legal rules regulating the way in which legal rules shall be applied as Marshal
said.

If one looks only at the legal rules of the constitution, this gives a significantly misleading impression.
Therefore, number of examples will be given: (i) As a matter of law, the monarch may refuse the Royal
Assent to a parliamentary bill. Notwithstanding, by convention the monarch usually acts on the advice of
the Government with the exception in 1707 Queen Anne refused to consent to the Scotish Militia Bill. (ii)
Legally, the Queen chooses her own ministers, but by convention they are chosen by the Prime Minister;
and (iii) by law the Queen chooses the Prime Minister, but by convention it is always the person who can
command a majority in the House of Commons.

Convention is a rule relating to an exacting conduct and that the rule does not have the force of law. The
judiciary have acknowledged convention in a court of law. This was illustrated in Attorney General v
Jonathan Cape Ltd (1976) where Lord Widgery stated that they are rules of practice which are accepted
as binding by those to whom they apply, which are not set out in any statute and which are
acknowledged, but not enforced by the courts

Examples of a convention include the assumption that a government will resign if it loses a vote of
confidence in the Commons, or the “Salisbury Convention” in the Lords, which is that the Lords will not
oppose the second or third reading of any Government legislation promised in its election manifesto or
those in the 2011 Cabinet Manual pertaining to what would happen in the case of a hung Parliament.

Conventions do not just affect politicians and the monarch, they apply also to the judges, to councillors,
and to all involved in the workings of the constitution. So, for example, it is a convention that judges do
not involve themselves in party politics.

One of the problems of the constitutional conventions is whether a convention has come into existence,
and also whether it has ceased to operate. Jennings proposed a threefold test for the identification of
conventions. For a convention to be established the following three elements must be established: (i)
What are the precedents? (ii) Did the actors in the precedents believe that they were bound by a rule?
and (iii) Is there a constitutional reason for the rule?
This test works well with some of the major conventions but must be present if the convention is to be
fully established, for example: the rule that the sovereign must not refuse the Royal Assent to Bills passed
by Parliament. The precedents are robust, no monarch having refused since 1708. It seems clear that the
present and future Monarch consider bound themself by the convention, in order to follow the
predecessors. The main reason for the rule is that a hereditary monarch should obey by the democratic
government; it would be unacceptable for an unelected monarch to interfere. Whilst the convention
regulating Royal Assent is a strong, well-established example of the Jennings test. However, Munro has
argued that Jennings´ Test is inadequate, because of lack of clarity over who decides what is a sufficient
constitutional reason and it emphasises precedents not recognising some conventions are based on
agreements.

Convention appears to be to be constantly evolving. For example: (i) At the begging of the twenty century
a Prime Minister could be member of both houses; then, they have to be chosen by the elected chamber.
(ii) In 2011, the Government set a convention whereby the House of Commons would have the
opportunity to debate the deployment of military forces. Despite having committed to legislating on this
issue in 2011, the Government dropped its proposals in April 2016. Regarding the previous examples is
appropriate to say that conventions may evolve over time, leading to uncertainty over what is the exact
constitutional position. Conventions are called rules, but they do not look much like rules. They are often
ambiguous. In contrast with laws, there is no body or designated procedure for making a convention. In
many cases, despite the efforts of writers like Jennings, it is hard to say whether a convention exists or
not.

In considering the uncertainty of conventions it would not be plausible to either codify or legally enforce
a set of regulations that are so vague and unclear. Dicey stated that “ultimately a breach of convention
would lead to a breach of law”. His example was that if Parliament must meet each year and if it failed to
do so the authority for the maintenance of the army would lapse (under Article 6 of the Bill of Rights
1689). On the other hand, Munro argues “…the breach of a convention carries with it a destructive effect,
which is absent with laws....” A convention that is not adhered to does not necessarily cease to exist but
may require future affirmation. In the same line, Jennings notes that “conventions are observed because
of the political difficulties which arise if they are not. For example, if the Queen refused her Royal Assent
there would be a crisis, as indeed there could be if the Prime Minister tried to govern without a
Commons’ majority. But there would be no crisis if an unimportant minister declined to resign. So, if
certain conventions are found to have serious consequences when. breached, it would be reasonable to
enforce a selection as law and codify them.

As mentioned in the previous paragraph, the UK system, heavily reliant on convention, is able to develop
and adapt to ever-changing is require without the need for a revolution or new constitution. For example,
in the UK the Monarch no longer governs. The weakness is that the evolution of the constitution cannot
be halted, and government may be tempted by the lack of legal restraint to take more power for it.
Besides that, conventions should be written to try to make them less flexible and more explicit, however,
this creates the possibility of conflict between the actual practice and the text of the convention. The
Ministerial Code, first published in 1992, does go some way to enunciating the constitutional conventions
in relation to Ministerial Responsibility.

Insofar as Dicey’s general statement of the rule of law may be taken to involve the existence in the
English constitution of certain principles almost amounting to fundamental laws, his doctrine is
logically inconsistent with the legislative supremacy of Parliament

The rule of law is based on the fact that the law is supreme, and therefore the government must act
according to law and within its limits. Lord Denning said, “be you ever so high, the law is above you”.
This concept is very old. It derived from the French phrase “the principle of legality”, which implies
that government authority may only be exercised in accordance with the written laws, which were
adopted through an established procedure. One of the most important advances has been the
Magna Carta, which embodies the principle that no man is above the law and introduced the right to
protection from unlawful imprisonment; another examples, Habeas Corpus Act 1679, which
introduced to prevent the king from detaining prisoners without trial or charge.

A.V. Dicey who develop three principle of this doctrine: first one was, no one can be punished or
made to suffer in body or goods except for a clear breach of law proved in an ordinary court. In
other way, no man could be reprimanded or legitimately hindered by the ruling classes except for
breach of law. Besides, Dicey alleged that executive officers should not possess wide discretionary
powers. For Example, in Entick v Carrington, where the courts declared that government officials
acting in an executive capacity “cannot exercise public power unless such exercise of it is authorised
by some specific rule of law”. Government officials cannot enter private premises without legal
authority.

The second principle the law applies to everyone equally and should not have any special
exemptions or protections from the law. Dicey disagree with the French droit administrative system,
where government activities were dealt with by separate administrative courts. These he considered
to be too partial to the government, and inferior to ordinary courts of law. Thirdly, Dicey noted that
there is no need for a bill of rights because civil liberties are respected anyway. This means that each
man’s individual rights are best protected under Common Law rather than a formal Bill of Rights.

This doctrine is a dynamic concept during years have been modified regarding the news rule in the
society, that means that today Dicey’s theory cannot be accepted in its totality and has been
criticised by eminent writers, in particular Jennings, who argued that he failed to deal with the
supremacy of Parliament. For example, Dicey failed to notice that the parliament, law-making body,
could use its arbitrary power, just like what happened in: (i) the holocaust, which was declared legal
even though violated all the rights and freedoms of Jews; or in (ii) Burma Oil Company v Lord
Advocate 1965 case when Parliament frustrated by retrospective legislation the War Damages Act to
exempt the British Government from liability for damages caused during war.

Regarding the second principle, there is not the same submission of all citizens to the law, this was
Dicey’s mistake insofar as the police have powers over and above ordinary citizen (under common
law and Criminal Evidence Act 1984); ministers also do have power to enact delegated legislation
and the government exercises prerogative powers, and members of Parliament have immunities not
available to citizen. For example, In R v Mullen [2000] QB 520, it was confirmed that whatever the
crime an appellant is accused of, it does not justify the state acting outside the law.

The third principle, relying on the fact that courts are protectors of the individual rights, is not
enforced in the UK since judicial review is contradictory to the principle of Parliament sovereign. This
implies that it is not possible for the courts to declare unconstitutional laws issued by the legislature,
violating Human Rights Act 1998 and the ECHR. However, the individual can challenge a decision of
the executive through the court thanks to the judicial review.

On the other hand, the main aspect of Dicey and Joseph Raz rule of law theory was that the
government must clearly define legal powers to authorize its actions. In particularly, Raz stated that
all laws should be prospective, open and clear in order to know what is permitted and what is not.

The British constitution has a complexity in to precises the legal power that the government holds.
Although prerogative powers still exist, it can be difficult to identify those powers accurately. For
example, in the case of R v Home Secretary ex parte Northumbria Police Authority (1988), the court
accepted the existence of prerogative power, to maintain peace in the realm, which had not
previously been identified. As we know, one of the bigger sources the of constitution are the
conventions, which are non-legal bind by court and regulate the Prime Minister’s powers. Therefore,
there must be some doubts about whether the courts are always keen to ensure that the
government keeps within its legal powers.

SEPARATION OF POWER

Democratic countries are relying on the political theory developed by Montesquieu, which identifies
three branches of state in order to prevent arbitrary government, these branches should not overlap
and should be separated with each other. The three organs of state are: (i) the executive, the law-
making body, consisting of the Queen-in-Parliament; (ii) the legislature which implements the law,
made up of the Crown, Prime Minister, Cabinet and the Civil Service; and (iii) the judiciary
responsible to interpret and enforce the law.

By contrast to Colombia, The United Kingdom appears to be almost unique in not having a formal
separation of powers because the legislature and executive are partly fused. However, the judiciary
is separated from the legislature and executive. According to Montesquieu “…the liberty cannot be
protected except by a strict separation of powers…”, but some fusions are acceptable, and that as
long as the judiciary remain separate: the aim of separation of power is to protect liberty and the
Rule of Law.

Lord Hailsham warned that Britain was in danger of sinking into an “elective dictatorship” because of
the first-past-the-post system, which often gives the government a disproportionally large majority,
so government bills virtually always pass the House of Commons.

This is compounded by the Salisbury Convention and the Parliament Acts of 1911 and 1949 which
restrict the ability of the House of Lords to block government initiatives. This lack of a strong upper
chamber means that there are few checks on the commons. Generally, given the government’s
typical dominance of the Commons, the effect is that the executive effectively dominates the
legislature in the UK. Nonetheless, Mrs May 28 defeats in Parliament during her premiership and
James Callaghan suffered 34 defeats in 3 years.

There are some areas of government activity over which Parliament has historically been unable to
exercise effective scrutiny, the Royal Prerogative, which include matters of national security, the
defence of the realm and the deployment of the armed forces. However, parliament has begun to
play a more active role in the exercise of the Royal Prerogative. For example, scrutiny of
international treaties prior to ratification (Constitutional Reform and Governance Act 2010) or when
Parliament authorised the deployment of troops in Iraq in 2003, and put the question of
intervention in Syria to vote in 2013.

This is a partly-fused separation of power. Note that this has its advantages such as the executive
prevents political deadlock and allows the government to push policies forward - Bagehot described
as the “efficient secret” of the UK constitution. The polarisation of views over Brexit in 2019
demonstrated the problems when that consensus disappears. Therefore, the legislature is able to
keep various checks on the executive’s exercise of power through questions, debates, select
committees, private member’s bills, and backbench revolts. The convention of individual ministerial
responsibility also limits the ability of the executive to act unchecked.
The judiciary and legislature are meant to have separation of power. Judges are appointed by an
independent body, have a security of tenure, and may not sit in Parliament (s.1. House of commons
Disqualification). The government may not dismiss judges’ ordinary circumstances and cannot
interfere with the working of the courts currently going through the courts (sub-judice rule);
secondly, the Bill of Rights 1689 guaranteed freedom of speech in Parliament by stating that
Members of Parliament cannot be made subject to legal sanction by the courts for comments made
in Parliament;

The constitutional reform act 2005 replaced the politically-appointed Lord Chancellor as head of the
judiciary, with the independent non-political Lord Chief Justice. The Law Lord no longer sit in the
house of Lords but in a separate Supreme Court. Other ways in which the independence of the
judiciary has increased in recent years include: the development pf judicial review, court challenging
the use of the prerogative, and the evolution of the concept of the rule of law in cases such as A &
Others and Jackson.

Likewise, the human Rights Act 1998 was drafted purposely to preserve the balance of power
between the judiciary and parliament. Nevertheless, the sovereign Parliament can overrule any
court decision by way of legislation. Note that the judiciary are in turn checked by the legislature-
this is in accordance with the “check and balance” theory of the separation of power. In Burmah Oil
v Lord Advocate [1965], parliament overruled court’s decision to reimburse a company that had a
refinery destroyed by enacting the War Damage Act 1965 with retrospective effect. This
demonstrates how the separation of power ties in with parliament sovereignty.

Secondly, the judiciary is supposed to follow the law that the legislature had made. On the other
hand, the judges violate the separation of powers and in such cases, Parliament can also support
them. In the case of R v R [1991], the judicial decision changed the decision of rape and parliament
supported the decision by incorporating it into a statute.

Referring to the interception of the executive and judiciary, the reality of the UK’s constitutional
settlement is pragmatic. Given that the executive effectively dominates the legislature, it often falls
to the judiciary to play a quasi-legislative role instead by checking the laws pushed forward by the
executive. In doing so, the judiciary assert their residual common law power to enforce the purpose
and morality of the law (shaw v DPP; A & Others). This achieves the purpose of the separation of
power by preventing arbitrary rule.

In the case of Council of Civil Service Unions v Minister of State for Civil Service [1985], the house of
Lords made it clear that the courts have jurisdiction to review the exercise of executing power
irrespective of whether the source of power is statutory or under the prerogative. However, the
house of Lords agreed that there are lots of matters that should only be dealt by the executives and
not by the courts. This results in full separation of power between executives and Legislature.

In addition to the above, the courts are dependent on parliament for their funding. However, they
are supposed to function independently since the Act of settlement 1700. Bradley from
constitutional and administrative law stated that the senior judges have held office during good
behaviour and that is not at pleasure for executives. In fact, the independence is reinforced by the
European Convention rights, art 6(1) which declares that anyone who is convicted for a criminal
charge, has the right to a fair trial. Finally, the judicial role of tribunal members has been recognised
and their independence is encouraged under the tribunals, Courts and enforcement Act 2007.

In Colombia, there is complete separation of power as the executive, the legislature and judiciary do
not interference with each other. According to the Colombian constitution the president has only
the executive power, the legislature is ruled by the congress and it consist of Senate and House of
Representative. Lastly the judiciary power lies in four senior court (constitutional court, supreme
court, council of state, the highest council of the judiciary).

Moreover, the Colombian president serves for only four years before another presidential election
takes place and he is elected separately from the Congress. Therefore, he may be of different party
compared to those holding in legislature and judiciary, but would hold the majority of votes for
executive. President and his cabinet ministers cannot sit nor vote in the Congress. However, the
president has the power to veto legislation passed by Congress. He is the commander-in-chief of the
armed forces. He executes the instructions of Congress and the spending authorised by
Congress. He has the responsibility to declare states of emergency, to publish regulations and to
execute orders. He has no power on legislature compared to the Prime Minister of UK.

Hence, in the UK the executive dominates the legislature. The judiciary is largely separate. There is
some overlap between the legislature and the judiciary, but given the executive’s dominance of the
legislature, this serves to effectively check the executive’s actions. Even though it is not a
theoretically strict separation like Colombia, it is an effective separation, in which the aims of the
separation of power are upheld. The separation of power is the mechanism by which the principle of
the Rule of Law is upheld

SOVEREIGN POWER

Parliamentary Sovereignty is the bedrock of the UK Constitution. Parliament has the legal authority to
enact, amend or repeal over any law. Simply put, when any piece of legislation is produced and passed by
Parliament it will generally be regarded as the highest form of law within the constitutional structure.

This doctrine is a fundamental constitutional principle accepted by the judges. The historical origin of
Parliamentary Sovereignty lies in the political conflict and a civil war of the 17th century, between the
crown and the Parliament for supremacy, culminating in the Bill of Rights 1689.

The classic definition of this term was provided by Dicey, who perception of this doctrine can be broken
in three parts: firstly, Parliament is the supreme law-making body and may enact or repeal laws on any
subject. This means that the Parliament has no restriction in terms of subject, geographical nor temporal
limits. By contrary they can, is it chooses, legislate contrary to fundamental principles of human rights
such like in R v Secretary of State for the Home Department, ex p Simms or may alter constitutional rules;
as well as the right to create retrospective legislation, such as the War Damages Act 1965 – an act passed
retrospectively, which exempted the British Government from liability for damage caused during the war.

Secondly, no Parliament may be bound by a predecessor or bind a successor – a particular Act of

Parliament cannot be entrenched or be given a ‘higher’ status than any other Act; and thirdly, no other
person or body may question the validity of an Act of Parliament or declare that Act to be unlawful.
Further, no judicial review of the manner in which legislation has been passed. In British Railways Board v
Pickin (1974), Lord Reid confirmed that the courts had no power to disregard an Act of Parliament, or to
investigate proceedings which had taken place in Parliament to determine whether there had been any
irregularity of procedure or fraud.

Dicey's theory has certain incompatibilities with reality, the sovereignty of the parliament is not as
unlimited as it is mentioned in his theory. There are several examples where its power is limited: firstly,
we can see the limitation of this doctrine through the incorporation of the ECHR into the domestic law by
the Human Rights Act 1998, which empower the courts to challenge Parliamentary legislation by giving
wide discretion to interpret UK law in a way that is compatible with the ECHR and declare legislation
incompatible with the ECHR under s.4, if it cannot give a S.3 interpretation.
Secondly, the European Communities Act 1972 that in some extent transferred part of the parliament
sovereignty to the EU. In the ECJ established in Costa v ENER 1964 that if a national law conflict with an
EEC law, then the law of the EEC would have supremacy: in the case of Factortame, Lord Bridge
interested his power under s.2(1) to disapply the merchant shipping Act 1988, after seeking instruction
from the ECJ.

In Macarthys v Smith, where the UK Pay Equal Act of 1970 was not in line with EU equal pay provisions.
The courts went further, and stated that if interpretation was not possible, EEC law was an ‘overriding
force’ and had supremacy over a UK Act. So, this is a clear challenge to Parliamentary sovereignty. If
Parliament is sovereign, how can there be any higher law, which bind it? The answer is that Parliament
itself decided to renounce these powers, for this reason its sovereign power continues to prevail to the
extent that the ECA could expressly been repeal.

One of the most revolutionary cases regarding parliament sovereignty was the Brexit referendum. The
result was to leave the EU. Technically the way to formally withdraw is through the parliament, making
law body. In this sense, there was a great dilemma because the referendum has no legal effect, as only
Parliament can change the law. However, as Dicey had claimed, back in 1885, that although legally
Parliament had unlimited supremacy, in reality Parliament would fear to go against the will of the people,
and due to this referendum has great political significance

This referendum had ‘great political significance’. Dicey had claimed, back in 1885, that although legally
Parliament had unlimited supremacy, in reality Parliament would fear to go against the will of the people.

In order to fulfil, the citizen will the Parliament expressly repealed the ECA 1972 through the European
Union withdrawal bill 2017.19, but it is not a simple process, as the legislation has to take into account
that some of the UK’s law is direct legislation from the EU and even more of UK law is based on EU
requirements.
The legislation implementing the UK-EU trade deal is law and the UK is leaving the EU, 1 January 2021,
but it won’t remove all the law which has been built with the EU otherwise would produce huge gaps in
the legal system. The plan seems to be to keep the existing EU law and gradually remove it. The Act
makes clear that, after exit day, the EU cannot make any new law for the UK and the UK courts would
certainly not accept the supremacy of any of those new laws. UK courts or tribunals would no longer be
bound by decisions of the Court of Justice of the European Union and UK cases could no longer be
referred to that Court.