renounced Parliament and pledged themselves to the Court of Justice of the EU, creating a new legal order where the courts are supreme (‘legal’ Constitution). This is unlikely44 as the courts themselves, and Laws LJ, explain it as a product of the ‘new view’ of Parliamentary sovereignty— the courts assume Parliament’s will is to hold the executive to their international law obligations, referencing the European Communities Act 1972, unless it expressly legislates otherwise. This was Lord Bridge’s reasoning in Factortame II itself.45 Laws argues that “the limits which for the time being it sets to the power of Parliament are at the grace of Parliament itself ”46 and Parliament remains supreme (‘political’ Constitution). However, this is rather artificial and Craig’s,47 and Allan’s,48 third model of “regard[ing] decisions about supremacy as being based on arguments of legal principle the content of which can and will vary across time”49 is a more accurate explanation of the current state of the Constitution. Although still largely ‘political’, the UK has moved toward a ‘legal’ Constitution via a “principled legal revolution”50 as the courts have shifted towards a substantive conception of the rule of law— preventing human rights infringement51 by the executive, and ensuring compliance with international law.52 This is significant because just as the courts acknowledge Parliamentary sovereignty, the rule of law carries weight in politics53— it is recognised,54 and the independence of the judiciary55 and tribunals56 reinforced. The uncodified nature of the UK Constitution renders it flexible and moulded by both the courts and Parliament,57 albeit recent developments have inched the UK toward a ‘legal’ Constitution. Thus,
44
Keith Syrett, The Foundations of Public Law (Palgrave Macmillan 2011) 121
45 46 47
Factortame (No 2) 658-659 John Laws, ‘Law and Democracy’ [1995] Public Law 72, 89
Paul Craig, ‘Britain in the European Union’ in Jeffrey Jowell, Dawn Oliver and Colm O’Cinneide (eds), The Changing Constitution (8th end, Oxford University Press 2015) 123
48
T.R.S. Allan, ‘Parliamentary Sovereignty: Law, Politics, and Revolution’ (1997) 113 LQR 443
49
Paul Craig, ‘Britain in the European Union’ in Jeffrey Jowell, Dawn Oliver and Colm O’Cinneide (eds), The Changing Constitution (8th end, Oxford University Press 2015) 123
50 51
ibid
Paul P. Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] Public Law 467, 478
52
Lord Bingham, ‘The Rule of Law’ [2007] Cambridge Law Journal 67, 81
53
Martin Loughlin, ‘Constitutional Law: the Third Order of the Political’ in Nicholas Bamforth and Peter Leyland (eds), Public Law in a MultiLayered Constitution (Hart Publishing 2003) 51
54 55 56 57
Constitutional Reform Act 2005, s 1 ibid s 3 Tribunals, Courts and Enforcement Act 2007, s 1 and pt 2
Graham Gee and Gregoire C.N. Webber, ‘What is a political constitution?’ (2010) 30(2) Oxford Journal of Legal Studies 273, 292
“clashes” between the two are only indicative of a healthy Constitution58 as it evolves in response to changes such as the UK’s EU membership. Referring back to Jackson, Lady Hale commented that “the courts… might even reject any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny”.59 It is this dialogue between the courts and Parliament when keeping the executive in check that is crucial, such that the courts can overrule primary legislation, if ever Parliament expressly legislates to abolish judicial review60— not unlike Parliament protecting its legislative supremacy in Section 18 of the EU Act. Barring this exception, the UK Constitution remains largely political. Over the past three decades, Parliament has also expanded its hold over the executive through new legislation and consultations. For example, Parliament’s EU Act 2011 prevents ministers from ratifying treaties increasing EU competences without Parliamentary approval or a referendum.61 The Parliamentary Ombudsman published Principles of Good Administration in 2007 as guidelines for the executive to avoid maladministration in the first place; the courts only react to cases brought before them.62 Parliament also reformed the select committee system to render it independent of executive control.63 Parliament eradicated its “fault-line” of lack of ownership of the rules determining individual ministerial responsibility by passing the Resolutions of March 1997,64 instead of leaving it purely up to the Prime Minister to draft his Ministerial Code. Implementation of Code of Practice on Access to Government Information 1994 required government to be more forthcoming when Parliament requests information for scrutiny65 (alleviated Parliament’s “fault-line” of the government’s lack of openness).66 The UK merely inched toward a ‘legal’ Constitution but “the political constitution is alive and well”.67 If we had to describe the position of the UK constitution on our constitutional spectrum, it would be described as still occupying a position on the political end of the spectrum, albeit its position has shifted towards the legal end such that it is now closer to the mid-point of
58
J.A.G. Griffith, ‘The Political Constitution’ [1979] 42(1) The Modern Law Review 1, 20
59 60
Jackson [159] (Baroness Hale)
61 62
European Union Act 2011, ss 2-4 and 6
63
Adam Tomkins, Public Law (Oxford University Press 2003)
64 65 66 67
ibid 158
Alison Young, ‘R (Evans) v Attorney General [2015] UKSC 21 – the Anisminic of the 21st Century?’ (UK Constitutional Law Association, 31 Mar 2015) <http://ukconstitutionallaw. org/2015/03/31/alison-young-r-evans-v-attorney-general-2015-uksc21-the-anisminic-of-the-21st-century/> accessed 21 December 2015 J.A.G. Griffith, ‘The Common Law and the Political Constitution’ (2001) 117 LQR 42, 64-65 167-168
ibid 156 ibid 152 ibid 169
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