British Law the United Kingdom

British Law

The United Kingdom government has been in existence for hundreds of years and in that time little has changed. Whereas other governmental systems divide up the power into three groups, the legislative, judicial and executive branch and all the powers of these branches are expressly spelled out in the Constitution, British law is run on precedent, written documents, statutes, treatises and judgments the power of which comes from parliament. As a result, British Law has become known as having the unwritten constitution. This premise is supported in history books with quotations such as, "No Act of Parliament can be unconstitutional, for the law of the land knows not the word or the idea." (Chrimes 42). As time passed, the right of parliament to make critical decisions and implement laws became known as the doctrine of parliamentary supremacy. Parliamentary supremacy is the historical idea that within a parliament rests the sole discretionary power to create, amend and nullify law (Lakin 399).

In modern times, however, actions on the part of the United Kingdom has called into question whether parliament still has true supremacy as more and more decision-making power has been given away and parliament itself has drafted laws which limit its ability to truly be the ultimate law of the land. In order to fully analyze the current state of parliament in British law the system must be addressed with regard tot he Dicey's doctrine, external limits, and internal limits currently effective parliament's sole power.

The Dicey's doctrine is a historical analysis of the power of Parliament as it existed in 1885. According to this doctrine Parliament is composed of the King, House of Lords, and the House of Commons. Those three branches have the complete power to make and unmake all laws of the land. Furthermore, all laws that these groups create, must be accepted by the people as law (Dicey). In other words, during this time Parliament had the sole power to make and unmake laws in Britain. During the time of Dicey's analysis, this was a simple and accepted fact (Lakin 402). Since the 17th century this was the way Parliament operated (Popcock 234). For the most part, this method seemed advantageous to the British system of law, however certain problems and criticisms began emerging. For instance, the Irish Free State Constitution Act of 1922 drastically subtracted from parliament's power by considering law only legitimate through consent not simple existence (Northern Ireland 1191). Modernly, power has continued to be taken from the Parliament through both internal and external measures, resulting in there becoming a question as to Parliament's current purpose.

There have been two primary external limits placed onto Parliament's sovereignty: European Union law and the European Convention on Human Rights. Upon entering the European Union, Britain gave up its sovereign statehood and agreed to abide by the European Union's laws. Under the European Union, there are primary, secondary and supplementary laws that all members of the union must follow. None of these laws are created by Parliament and any of the European Union laws that contradict Parliament immediately overrule Parliament's authority. As discussed in Himsworth's article certain European regions, including England, have called into question the practice by the EU as being a destruction of independent countries. Many others now see it necessary to consider the concept of being a global instead of a certain country's citizen (658). In other words, citizens that were once under the exclusive power of Parliament must now submit to an overarching authority. While such action would seem to usurp Parliamentary authority, the one sustaining point that over-acrches the European Union's authority is that the individual member's states must be insufficient to the EU law (Haughwout 24). Thus, Parliament could overrule EU law by enacting laws equal or greater in force to the EU laws. So, while the EU may currently model "ideal" law for Parliament, it is Parliament who has the ultimate power to legislate.

The second external restriction on Parliament is the European Convention on Human Rights (ECHR). The ECHR was enacted in 1953 and meant to protect the basic human rights of all citizens of European nations. This act permits the citizen of any country to bring a case before the ECHR court and should the action of the nation be found in violation of human rights, there is a penalty applied to that nation and whatever law violated the right must be removed (Ovey 50). So, similar to the EU issue, this limitation would seem to remove power from Parliament, however, it is removing power that in actuality Parliament never had, the power to violate inherent human rights.

In recent years, there has been one primary internal limitation placed on Parliament, that limitation is the concept of devolution. Britain is governed exclusively by Westminster, and decisions made by Westminster directly effect the entire country. This model in recent years has been considered less effective than those nations which use a separation of powers system, where individual states have sovereignty over most governing issues and must only submit to the Federal government where required by the Constitution. This idea of separation of powers is gaining force in Britain and many are proposing that a separation of powers should take place in Britain essentially limiting Parliament's power solely to law making and giving equal power to the courts and an executive for the enforcement and interpretation of the laws; however, according to most legal critics, the system would never be compatible in Britain and therefore must not be implemented (White 473).