In the issues arising with an uncodified constitution,

In the
excerpt provided above, the political scientist King clarified a significant
aspect 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.  The
latter is what King calls in his book “Constitution
with a capital C”1:
it is codified is the sense that it contains written provisions all coherently
joint together within a single document, and is procedurally entrenched for the
purpose of legal protection from possible repeal.

Never
having been through such a process, English constitutional arrangements also
lack the required rules that set out the way amendments to the Constitution
should occur – provisions usually required by capital-C Constitutions. This
particular circumstance suggests that, in theory, Parliament is capable of
drafting new statutes that modify the Constitution at anytime and simply by
following the statutory routine, without undergoing the same tortuous path as
most of the governments with entrenched constitutions.

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From the
analysis of England’s constitutional panorama and the consideration of the
issues arising with an uncodified constitution, 
two school of thoughts argue respectively that entrenchment would either
surely guarantee the protection of universal rights from tyranny by placing
them above ordinary law, or, on the other hand, deprive the legislative of that
flexibility that has always distinguished the UK and that has permitted to let
go of anachronistic  norms.

 

When
considering the question whether procedural entrenchment is applicable within
the English legal context, the orthodox position brings us back to the Glorious
Revolution of 1688, where it was decreed that “sovereignty
lay with Parliament”2, meaning that, almost paradoxically, an executive may not
bind its successor and consider invalid its Acts, since otherwise Parliament
could not be regarded as sovereign. Therefore, it follows that the process of
enactment is just one, and that any Act resulting from that process could
potentially be repealed or amended by any other Act; according to Dicey’s
explanation of the principle of parliamentary sovereignty, Parliament has “the
right to make or unmake any law whatever; and, further, that no person or body
is recognized by the law of England as having a right to override or set aside
the legislation of Parliament”.3

On the
opposite side to the orthodox position, there are legal theorists who disregard
the practicability of the doctrine of parliamentary sovereignty and support the
introduction of procedural entrenchment, such as Sir Jennings, who introduced
the “manner and form”
view. The academic not only considered that the absolute supremacy of
Parliament could only exist in theory, but was also
of the idea that Parliament could actually bind its successors simply by
modifying the manner and form of the law-making process – for, if
Parliament “has for the time
being power to make laws of any kind in the manner required by the law”, any Act of Parliament “will be recognised by
the courts, including a rule which alters this law itself”.4

 

Moreover,
the doctrine of parliamentary sovereignty was deeply challenged when the UK
joined the European Union and passed the European Communities Act 1972, which
embodies the Community law into the English legal system. In addition to such
incorporation, the Act also provides that Community law is superior to domestic
law, even in case of conflict with national legislation enacted after the ECA.

The
first 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 by
public authorities) where a company
of Spanish fishermen sued the UK for breaching European Union law by demanding
ships to have a majority of British owners, were they to be registered in
England. Following the procedure of judicial review, courts held that they had
power to restrain the application of the Merchant Shipping Act 1988 (MSA) pending trial and eventually
to repeal that Act, as not compliant with European provisions.

In
light 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 directly
enforceable rule of Community law”5, there are Acts of
Parliament that enjoy a superior status compared to others.

The
distinction between ordinary statutes, held by courts to be capable of being
impliedly repealed, and constitutional ones, which are not, was later drawn by
Laws LJ in Thoburn v Sunderland City
Council, 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 would
now regard as fundamental constitutional rights. (a) and (b) are of necessity
closely related: it is difficult to think of an instance of (a) that is not
also an instance of (b). The special status of constitutional statutes follows
the special status of constitutional rights”.6

It is
therefore conveyed the impression that the ECA is entrenched within the English
legal system, displaying a sphere of invulnerability from which national legislation
of constitutional nature could benefit in the future, although entrenchment has
already been found incompatible with the very bones of English law, chiseled by
Dicey’s precious precepts – yet, this was before the boundaries were pushed
with European provisions and their incorporation into domestic law.

 

The
absence of a formally codified constitution in the UK is also a matter of great
importance due to the administrative structure of the country, where the
doctrine of separation of powers elaborated by Montesquieu in “The Spirit of Law”7
is not respected: in fact, it is the executive power that has a significant
control over both the legislative, as Parliament is formed by the majority of
whichever party wins the elections, and the judiciary, since it is the Lord
Chancellor who appoints Senior Judges.

It is
hence argued that, in a democratic society, it is essential to collocate at the
top of the hierarchy a Constitution with a capital-C, and Parliament right
below, in order to prevent an “elective
dictatorship”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 also
solve an illogicity that permeates the English legal system, as explained by Sir
John Laws (the former Lord Justice of Appeal who delivered the famous judgment
in Thoburn v Sunderland City Council)
within several extrajudicial writings published on the journal “Public
Law”. According to the judge, the existence of ‘higher-order’ laws is vital even for the advocacy
of Parliament sovereignty, for, being Parliament an established legal body and
the most important one for law-making, there must be an original and entrenched
higher-law beyond its reach that confers such powers onto it.9

 

Despite
the importance of the reasons rooted within the matter of entrenchment, Baroness
Hale in Jackson v Attorney General declared
that “Courts will treat with particular
suspicion (and 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. Parliament has also … limited its own powers by the
European Communities Act 1972 and, in a different way, by the Human Rights Act
1998. … The notion of democracy … more directly supports the orthodox
stance. This is weighed against the possibility of significant and prolonged
injustice stemming from entrenched measures and renders it morally unacceptable”.10

The dictum, which puts forward the
key-points behind the orthodox view, endorses the idea that entrenching rights
might lead to inequity which, at that point, could not be amended through a
flexible law-making process; and that the protection of constitutional rights
is merely an onus for the courts.

Instead,
it results more reasonable to argue that in fact entrenchment should apply only
for those laws considered universal,
in the sense of “existing everywhere or
involving anyone”11
in order to avoid injustice; and finally, as to the defense of such rights, the
judiciary cannot be considered an efficient tool for questioning parliamentary
decisions, as itself could be reformed at any time throughout ordinary statutory
instructions. It thus results that, in essence, an entrenched Bill of Rights is a necessary restriction on
Parliament’s  omnipotent law-making (and occasionally
rights-abusing, as per the Belmarsh Case12) power, against the
arbitrariness and interference of Parliament.

1 A. King, The British Constitution (OUP, Oxford 2007) 5.

2 I.
Loveland, Constitutional Law, Administrative Law and Human Rights: A
Critical Introduction (4th edn
OUP, Oxford 2006) 37–38.

3 Sir A. Dicey, An Introduction to
the 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’s
Dictionary & Thesaurus © Cambridge
University Press. Available at: https://dictionary.cambridge.org/dictionary/english/universal.

12 A and others v Secretary of
State for the Home Department 2004 UKHL 56.