Constitutional Principles

“The constitutional statutes, conventions and prerogative powers that make up the UK’s uncodified constitution would not function as effectively as they do without three fundamental principles:

• the rule of law
• parliamentary sovereignty
• separation of powers.

These principles structure, strengthen and guide the legal and political aspects of a society.”

[The Open University, 2014]

The Rule of Law:

At level 1, I have already dealt comprehensively with The Rule of Law. We will meet this principle time and time again, so it is better to understand the basics of it now.

Separation of Powers:

Two philosophers contributed greatly to the theory of separation of powers; Montesquieu (1689–1755) who was French, and John Locke (1632–1704) who was English.

Montesquieu’s view was that:

“the administrative powers in France could be split into three: the executive, the legislature and the judiciary. The sovereign (monarch) stood alongside the administrative powers. The three powers would work and function separately from each other but still be linked in order to check and balance each other’s influences.”

[The Open University, 2014]

Locke had a slightly different view.

“He conceived of the legislative and executive as two different branches, as the law-making (legislative) and the law-executing power (executive). The judiciary was not seen as a source of power as its function was to interpret the existing law. According to Locke, it therefore did not need to be separated from the other two powers of legislature and executive.”

[The Open University, 2014]

In the UK, separation of powers means that the exercise of power is separated into three branches:

• Legislature – law making; refers to Parliament as the supreme (sovereign) law-making body.
• Executive – refers to all institutions of the state that apply the law. It includes the civil service, the police forces, and all the local authorities. The executive also relates to the Prime Minister, the Cabinet and other ministers.
• Judiciary – comprises of the courts, judges, magistrates and other personnel. Judicial officers have independence to prevent political interference, or any other type.

Previously, prior to the Constitutional Reform Act 2005 (“CRA”) which created the Supreme Court, the legislative and judicial branches of government were linked by the House of Lords. Remember that the House of Lords is the upper chamber of the legislative branch, but also 12 members made up the Judicial Committee of the House of Lords which was the highest court in the UK. This was considered a conflict and the CRA resolve this conflict by separating them through creation of the Supreme Court, which is now the highest court in the UK.

Parliamentary sovereignty:

“Parliamentary sovereignty is a key principle for the constitutional framework of the UK and unique to a common law system.

“A constitution provides the highest authority for a state. For example, the German constitution is a codified text which presents the sovereign authority of law in its interpretation by the constitutional court. The UK lacks this codified construct. There is no written and codified constitution that can be seen as embodying the sovereign authority of the law.

“The UK does, however, have a supreme law-making body: the Westminster Parliament. It is the highest law-making authority in the UK. The Westminster Parliament is sovereign – it can make and unmake any law, it cannot be bound by decisions of past parliaments and it cannot bind future parliaments.

“Parliamentary sovereignty is one of the essential pillars of the UK’s constitutional framework. However, this important principle is not enshrined in a constitutional statute. This is because the Westminster Parliament can make and unmake any law, so any statute regulating parliamentary sovereignty would be of limited effect.

“Constitutional statutes or conventions do not uphold parliament’s sovereignty. Constitutional statutes are the result of this principle. The courts and judiciary are the essential element of the UK’s constitution which secure parliamentary sovereignty. Hilaire Barnett summarises this in one brief paragraph:

Sovereignty is therefore a fundamental rule of the common law, for it is the judges who uphold Parliament’s sovereignty. For as long as the judges accept the sovereignty of Parliament, sovereignty will remain the ultimate rule of the constitution.

(Barnett, 2013, p. 112)

“Westminster Parliament, and therefore the legislature as a branch, is the most powerful institution in the constitutional framework. However, even Parliament can be held accountable for its actions. The Westminster Parliament is accountable to the electorate. The ultimate sovereign is the people as the electorate. The members of the Westminster Parliament are held responsible by citizens who vote in elections. The Westminster Parliament is given its authority and sovereignty by the citizens electing its members.”

[The Open University, 2014]

More on Parliamentary sovereignty later.