The United Kingdom (U.K.) constitution is often described as ‘uncodified’ in the respect that it does not have one single document which underpins all of its constitutional arrangements. Rather, it is a result of ‘statutes, events, conventions, academic writings and judicial decisions’. The discourse will examine how the U.K. has established its constitution over time.
The main issue in Miller concerns the use of prerogative powers. Specifically, whether they should be exercisable ‘to bring about changes in domestic law’. The prerogative powers – defined by Dicey as ‘the residue of discretionary or arbitrary authority … legally left in the hands of the Crown’ – exemplify several constitutional traditions and concepts. Namely, those of parliamentary supremacy, rule of law and the separation of powers.
Firstly, on the issue of parliamentary supremacy, it is evident that the contemporary use of prerogative powers preserve this notion. Lord Neuberger in Miller said that any prerogative power ‘may be curtailed or abrogated by statute’. This point is important for the preservation of the doctrine as it shows statute law as hierarchically superior and therefore Parliament as supreme. Dicey viewed this point as fundamental, stating that Parliament has ‘the right to make or unmake any law whatsoever’. If prerogative powers were a higher source of law than Acts of Parliament, the result would effectively be a system where the executive branch have arbitrary rule. This claim is supported by Montesquieu, who argued that uniting the legislature and executive creates a system with ‘no liberty’’, a ’tyrannical’ hegemony. The Revolution of 1688 can be said to be one event which led to the end of the U.K.’s absolute monarchy in the respect that it gave rise to the Bill of Rights 1689. Article I of the Bill of Rights states:
By Assumeing and Exerciseing a Power of Dispensing with and Suspending of Lawes and the Execution of Lawes without Consent of Parlyament.
Prior to the 1689 Act, the monarch had the ability to repeal any piece of law they chose. In limiting the monarch’s law-making powers, Parliament gained all supreme competences in regards to the law. In effect, Parliament became free to legislate on any issue it chooses. This is illustrated in examples of ex post facto law such as the War Damages Act 1965. Or alternatively, in extraterritorial law such as the Highjacking Act 1971. It may be argued that both retrospective legislation and extraterritorial legislation limits an individual’s rights and freedom and is fundamentally unfair law to impose; however in a context where the legislature can legislate on whatever it chooses, the moral repercussions are merely irrelevant. Lord Reid astutely assessed this area in Madzibamuto v Lardner-Burke:
It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power or Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.
Conversely, in the context of a dualist state, European Union (EU) law is now supreme to our own. Dualism is where international law can only coincide or alter domestic law, on the condition that it is incorporated by statute. EU treaty obligations directly affect U.K. domestic law without requiring parliamentary approval. It would seem that this is contrary to Dicey’s principle: ‘Parliament is the supreme law-making body and may enact laws in any matter’. We can see EU law’s supremacy in practice in Factortame Ltd v Sec. of State for Transport where the House of Lords disapplied the Merchants Shipping Act 1988 as it was found to be in conflict with EU law. What is more, the case evidenced that financial sanctions can be set on a member state if the member state fails to meet EU treaty or regulatory obligations. Accordingly, not only does the case conflict with Dicey’s first principle, it also conflicts with his third: ‘no body … may question the validity of Parliament’s enactments’. The fact that EU law is supreme and that U.K. legislation must, in turn, be consistent with EU law clearly evidences that our domestic statute law is affected by EU law. Though, interestingly, a reasoned argument may be made that Parliament supremacy is upheld regardless. This is because it was Parliament itself who gave up their law-making supremacy by the enactment of the European Communities Act 1972. Lord Neuberger said in Miller: ‘without the Act, EU law would have no domestic status’. Therefore, Parliament could regain control simply if they were to repeal the 1972 Act. In this way, parliamentary supremacy is maintained; particularly as the Parliament’s enactment of the act was ‘entirely voluntary’.
Furthermore, Dicey’s third principle – ‘no body … may question the validity of Parliament’s enactments’ – is pivotal in determining Parliament’s hierarchical position in relation to the judicial branch. Parliamentary privilege – from Article IX of the Bill of Rights 1689 – firstly, gave parliamentarians freedom of speech and secondly, gave Parliament ‘control over it owns affairs’. The former is important as it is demonstrative of a system which protects members of Parliament from ‘being subjected’ to any legal sanctions and the latter is important as it shows Parliament as free from outside regulation. In this way, Parliament is shown as superior to the judiciary in the respect that it is not subject to its jurisdiction. Moreover, Acts of Parliament rank hierarchically superior to common law (law ‘laid down and developed by judged themselves’). Making judges unable to diverge from Parliament’s legislation. This is supported by Lord Neuberger in Miller:
It is not open to judges to apply or develop the common law in a way which is inconsistent with the law as laid down in or under statutes, ie by Acts of Parliament.
On the other hand, it could be argued that some methods of statutory interpretation offer judges too much discretion, which could be criticised as breaching parliamentary supremacy. For instance, the mischief rule – rather than giving the judges the role to merely apply the law – gives the judges the ability to find the ‘mischief’ in a statute. There is a clear susceptibility for judge’s internal beliefs to somewhat influence the undertaking of judgements. Sir Robert Megarry said as obiter dicta in Manuel v AG that ‘the duty of the court is to obey and apply every Act of Parliament, and that the court cannot hold any such Act to be ultra vires’. Critically, it would appear that judges having the ability to interpret some statutes flexibly conflicts with Megarry’s statement. Indeed, these methods of statutory interpretation are necessary for practicality; though there is no doubt that from a constitutional standpoint judges are over-stepping their authority. This evaluation could also be used to criticise the judiciary as offending the doctrine of separation of powers.
The separation of powers is a constitutional system which ‘organises the distribution of power and function between its different branches’. The three recognised branches in the U.K. constitution is the executive (the government), the legislature (Parliament) and the judiciary.