In that what the UK does not

In theexcerpt provided above, the political scientist King clarified a significantaspect concerning Britain’s constitutional layout: id est that what the UK does not have is not a “written constitution”,but a codified and thus entrenched one.  Thelatter is what King calls in his book “Constitutionwith a capital C”1:it is codified is the sense that it contains written provisions all coherentlyjoint together within a single document, and is procedurally entrenched for thepurpose of legal protection from possible repeal.Neverhaving been through such a process, English constitutional arrangements alsolack the required rules that set out the way amendments to the Constitutionshould occur – provisions usually required by capital-C Constitutions. Thisparticular circumstance suggests that, in theory, Parliament is capable ofdrafting new statutes that modify the Constitution at anytime and simply byfollowing the statutory routine, without undergoing the same tortuous path asmost of the governments with entrenched constitutions.From theanalysis of England’s constitutional panorama and the consideration of theissues arising with an uncodified constitution, two school of thoughts argue respectively that entrenchment would eithersurely guarantee the protection of universal rights from tyranny by placingthem above ordinary law, or, on the other hand, deprive the legislative of thatflexibility that has always distinguished the UK and that has permitted to letgo of anachronistic  norms. Whenconsidering the question whether procedural entrenchment is applicable withinthe English legal context, the orthodox position brings us back to the GloriousRevolution of 1688, where it was decreed that “sovereigntylay with Parliament”2, meaning that, almost paradoxically, an executive may notbind its successor and consider invalid its Acts, since otherwise Parliamentcould not be regarded as sovereign.

Therefore, it follows that the process ofenactment is just one, and that any Act resulting from that process couldpotentially be repealed or amended by any other Act; according to Dicey’sexplanation of the principle of parliamentary sovereignty, Parliament has “theright to make or unmake any law whatever; and, further, that no person or bodyis recognized by the law of England as having a right to override or set asidethe legislation of Parliament”.3On theopposite side to the orthodox position, there are legal theorists who disregardthe practicability of the doctrine of parliamentary sovereignty and support theintroduction of procedural entrenchment, such as Sir Jennings, who introducedthe “manner and form”view. The academic not only considered that the absolute supremacy ofParliament could only exist in theory, but was alsoof the idea that Parliament could actually bind its successors simply bymodifying the manner and form of the law-making process – for, ifParliament “has for the timebeing power to make laws of any kind in the manner required by the law”, any Act of Parliament “will be recognised bythe courts, including a rule which alters this law itself”.4 Moreover,the doctrine of parliamentary sovereignty was deeply challenged when the UKjoined the European Union and passed the European Communities Act 1972, whichembodies the Community law into the English legal system. In addition to suchincorporation, the Act also provides that Community law is superior to domesticlaw, even in case of conflict with national legislation enacted after the ECA.Thefirst example of conflict was given by R(Factortame Ltd) v Secretary of State for Transport, a judicial review case (here, a process of reviewing acts done bypublic authorities) where a companyof Spanish fishermen sued the UK for breaching European Union law by demandingships to have a majority of British owners, were they to be registered inEngland.

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Following the procedure of judicial review, courts held that they hadpower to restrain the application of the Merchant Shipping Act 1988 (MSA) pending trial and eventuallyto repeal that Act, as not compliant with European provisions.Inlight of the legal possibility of entrenchment in the British legal system, Factortame No.2 represents a milestone. As suggested by the dictum of Lord Bridge, “under the terms of the ECA 1972,  it was the duty of a United Kingdom court …to override any rule of national law found to be in conflict with any directlyenforceable rule of Community law”5, there are Acts ofParliament that enjoy a superior status compared to others. Thedistinction between ordinary statutes, held by courts to be capable of beingimpliedly repealed, and constitutional ones, which are not, was later drawn byLaws LJ in Thoburn v Sunderland CityCouncil, where he established the existence of a statutory hierarchy: “In my opinion, a constitutional statute is one which (a)conditions the legal relationship between citizen and state in some general,overarching manner, or (b) enlarges or diminishes the scope of what we wouldnow regard as fundamental constitutional rights. (a) and (b) are of necessityclosely related: it is difficult to think of an instance of (a) that is notalso an instance of (b). The special status of constitutional statutes followsthe special status of constitutional rights”.

6It istherefore conveyed the impression that the ECA is entrenched within the Englishlegal system, displaying a sphere of invulnerability from which national legislationof constitutional nature could benefit in the future, although entrenchment hasalready been found incompatible with the very bones of English law, chiseled byDicey’s precious precepts – yet, this was before the boundaries were pushedwith European provisions and their incorporation into domestic law.  Theabsence of a formally codified constitution in the UK is also a matter of greatimportance due to the administrative structure of the country, where thedoctrine of separation of powers elaborated by Montesquieu in “The Spirit of Law”7is not respected: in fact, it is the executive power that has a significantcontrol over both the legislative, as Parliament is formed by the majority ofwhichever party wins the elections, and the judiciary, since it is the LordChancellor who appoints Senior Judges. It ishence argued that, in a democratic society, it is essential to collocate at thetop of the hierarchy a Constitution with a capital-C, and Parliament rightbelow, in order to prevent an “electivedictatorship”8 from overlooking rights that should be untouchable. The conception of ‘higher-order’laws that cannot be abrogated the same way as ordinary statutes would alsosolve an illogicity that permeates the English legal system, as explained by SirJohn Laws (the former Lord Justice of Appeal who delivered the famous judgmentin Thoburn v Sunderland City Council)within several extrajudicial writings published on the journal “PublicLaw”. According to the judge, the existence of ‘higher-order’ laws is vital even for the advocacyof Parliament sovereignty, for, being Parliament an established legal body andthe most important one for law-making, there must be an original and entrenchedhigher-law beyond its reach that confers such powers onto it.9 Despitethe importance of the reasons rooted within the matter of entrenchment, BaronessHale in Jackson v Attorney General declaredthat “Courts will treat with particularsuspicion (and might even reject) any attempt to subvert the rule of law byremoving governmental action affecting the rights of the individual from alljudicial scrutiny. Parliament has also .

.. limited its own powers by theEuropean Communities Act 1972 and, in a different way, by the Human Rights Act1998.

… The notion of democracy ..

. more directly supports the orthodoxstance. This is weighed against the possibility of significant and prolongedinjustice stemming from entrenched measures and renders it morally unacceptable”.10The dictum, which puts forward thekey-points behind the orthodox view, endorses the idea that entrenching rightsmight lead to inequity which, at that point, could not be amended through aflexible law-making process; and that the protection of constitutional rightsis merely an onus for the courts. Instead,it results more reasonable to argue that in fact entrenchment should apply onlyfor those laws considered universal,in the sense of “existing everywhere orinvolving anyone”11in order to avoid injustice; and finally, as to the defense of such rights, thejudiciary cannot be considered an efficient tool for questioning parliamentarydecisions, as itself could be reformed at any time throughout ordinary statutoryinstructions. It thus results that, in essence, an entrenched Bill of Rights is a necessary restriction onParliament’s  omnipotent law-making (and occasionallyrights-abusing, as per the Belmarsh Case12) power, against thearbitrariness and interference of Parliament. 1 A.

King, The British Constitution (OUP, Oxford 2007) 5.2 I.Loveland, Constitutional Law, Administrative Law and Human Rights: ACritical Introduction (4th ednOUP, Oxford 2006) 37–38.

3 Sir A. Dicey, An Introduction tothe Study of the Law of the Constitution, (1959:40).4 Sir I. Jennings, The Law and the Constitution, 5th edn(1959, London: University of London Press), pp 152-4.5 1991 1 All ER 70.

6 2003 QB 151.7 C. L. de Secondat, Baron Montesquieu,De l’Esprit des Loix, Book XI, Chapter 6 (1748).8 Lord Hailsham, The Listener, (21 October 1976)496-500. 9 Sir J.

Laws, Law and democracy 1995, Public Law 72-89.10 2006 1 AC 262, 318.11 Cambridge Advanced Learner’sDictionary & Thesaurus © CambridgeUniversity Press. Available at: A and others v Secretary ofState for the Home Department 2004 UKHL 56.


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