'ALTHOUGH FOR MUCH OF THE UK CONSTITUTIONAL HISTORY, THE DOMINANT DYNAMIC WAS THE STRUGGLE BETWEEN THE CROWN AND PARLIAMENT, OVER THE LAST FIFTY YEARS, THE STRUGGLE BETWEEN PARLIAMENT AND THE EXECUTIVE HAS COME TO DOMINATE CONSTITUTIONAL PRACTICE.'

Ellie-May Wood

Struggle between Crown and Parliament

Historically, the struggle was between Crown and Parliament as there was an absolute monarchy who ruled by divine right. The doctrine of divine right allowed the monarch to be above the law and rule as it was accepted by God. These powers being the royal prerogative, which can be defined by Blackstone as that “special pre-eminence which the king hath over and above all persons”[1]. Although Blackstone’s definition is archaic in a modern context, it demonstrates the monarch as being superior to others, enforcing the idea that the Crown is above the law, not equal to it. However, it is these powers that created the conflict as the UK constitution is un-written, meaning there is no formal document that outlines the nature of the constitution. Therefore, there was no established text or law that highlighted the powers of the monarch, causing an abuse of power.

 

Conversely, although the Magna Carta 1215[2] highlighted a glimpse of liberty, it was not enough to retain the struggle between Crown and Parliament. For example, the English Reformation of 1532 represented the conflict, but also highlighted the start of the change in dynamic as King Henry VIII established the English Monarchy as head of the church. The reformation symbolized the Crown’s substantive powers. For example, the Act of Supremacy 1534[3] that recognised the king as the supreme head of church. The change in dynamic supports the divine right doctrine as the king was above law and religion. Therefore, emphasising the struggle between Crown and Parliament as the monarch held all political, legal and religious power; and was the ultimate sovereign. However, it can be argued that the change was pushed through by political leaders, questioning the idea of whether the monarch had true power or was controlled by the court.

 

Similarly, the English Civil War of 1642 further symbolized the struggle. The power struggle between Crown and Parliament can be demonstrated by the ‘Roundheads’ who supported Parliament and the ‘Cavaliers’ who were in favour of the monarchy. The parliamentarian victory acted as a catalyst for the change in the dominant dynamic as it created the Commonwealth of England that replaced the monarchy. However, constitutionally, it established that the monarch was unable to govern without Parliament’s consent. Highlighting the separation of powers as power started to infiltrate and no longer became vested in the Crown, causing the dynamic to change.

Fall of the Crown and the emergence of Parliament

Over time, the Crown had gradually started to lose its powers. Charles I execution symbolized the end to any absolute monarchy[4], which can be further supported by the Glorious Revolution of 1689 that brought the Bill of Rights 1689[5]. The Bill of Rights is significant as it established a mini-constitutional settlement, demonstrating a distinct separation of powers as it limited the powers of the Monarch. However, the Act allowed Parliament to become supreme , forcing the monarchy to become reliant on Parliament. As Dicey notes; parliamentary sovereignty is the “keystone of the constitution”[6], meaning that the UK system of government runs on the sovereignty of Parliament. Also, the changing of the dominant dynamic gradually changed the constitution. It has now created a parliamentary democracy with a constitutional monarch.

 

Conversely, through the rise of government, Parliament has restricted the monarch’s powers. For example, the Act of Settlement 1701[7] placed restrictions on the Crown and can only be altered by Parliament. As Bagehot notes, “she reigns but does not rule”[8], demonstrating how the monarch is now a figure head and does not have the power to rule. Supporting this is the idea that the powers have now become residual as they are left over from a period of reining monarchs[9]. Residual suggests that the powers now lack superiority as they are vested in Parliament, reflecting the separation of powers as they are now retained by the government and are carried out by convention on behalf of the Crown. Due to the infiltration of power, the UK has no absolute separation of powers[10].

 

Similarly, relevant case law highlights restrictions on the Crown. The  leading historical Case of Proclamations[11] highlights the limitation of the prerogative. The legal issue was whether the monarch could change laws without the consent of Parliament. However, it was held that the king did not have the legal power to do so. Similarly, BBC v Johns[12] demonstrated that the monarch’s powers are out of date. Diplock LJ stated that it is “350 years and a civil war too late for the Queen’s courts to broaden the prerogative”[13], highlighting how the dynamic has changed as society has evolved from a period of dictating monarchs to a democratic society.

 

However, through the fall of the Crown and the increasing strength of parliamentary sovereignty, it has not only led the monarch to rely on Parliament, but it has created a more democratic process. The sovereignty of Parliament only applies to the legislation that Parliament makes[14], and although Parliament is the sovereign body in the land, it would not be able to pass legislation without the royal assent. Therefore, through the approval of the monarch, it symbolizes the legal moment where the two unite[15].

Struggle between Parliament and the Executive

Over the last fifty years, the dominant dynamic has drastically changed. The struggle is now between Parliament and the executive, causing a split in the legislative branch. Up until the constitutional crisis of 1910, both the House of Lords (HOL) and House of Commons (HOC) were equal legislatures. Systematically, this can be viewed as being a unicameral legislature, however, due to the Parliament Act 1911[16], it created a bicameral legislature. Highlighting the start of a noticeable separation, but also as Parliament maintaining superiority. However,  it can be argued that although there is a bicameral legislature, the HOL have previously gone against the government. An example would be the HOL vetoing against Theresa May’s Brexit negotiations[17], highlighting how the HOL are not afraid to go against the government….

 

[1] William Blackstone, Blackstone’s Commentaries on the Laws of England (Volume 1, The Law Exchange)

[2] Magna Carta 1215

[3] Act of Supremacy 1534

[4] Peter Layland, The Constitution of the United Kingdom, A Contextual Analysis (Hart Publishing 2012) 88

[5] Bill of Rights 1689

[6] A.V. Dicey, The Law of the Constitution (10th edn Macmillan 1959) 40

[7] Act of Settlement 1701

[8] C. Munro, Studies in Constitutional Law (2nd edn Butterworths 1997) 256.

[9] Layland (n 4) 31

[10] Munro (n 8) 528-532

[11] The Case of Proclamations [1610] 12 Co Rep 74; 77 ER 1352

[12] BBC v Johns [1965] CH 32

[13] Ibid at 79

[14] Adam Tomkins, Public Law (OUP 2003) 48.

[15] Ibid 48

[16] Parliament Act 1911

[17]Rowena Mason, ‘House of Lords defeat government for second time on article 50 bill’ (The Guardian 7 March 2017) < https://www.theguardian.com/politics/2017/mar/07/peers-vote-in-favour-of-veto-over-final-outcome-of-brexit-negotiations> accessed 19 February 2019

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