‘ALTHOUGH FOR MUCH OF THE UK CONSTITUTIONAL HISTORY, THE DOMINANT DYNAMIC WAS A STRUGGLE BETWEEN THE CROWN AND PARLIAMENT, OVER THE LAST FIFTY YEARS, THE STRUGGLE HAS BETWEEN PARLIAMENT AND THE EXECUTIVE HAS COME TO DOMINATE CONSTITUTIONAL PRACTISE’

Becky Amankwah

Crown and Parliament

 

 

Legislative Conflict

 

A detrimental cause of the tension between the parliament and crown during the Stuart Era was the establishment of where legislative powers lay. There were constant disagreements between both branches. The root of legislative tensions was the Stuart Kings’ belief of having the ‘divine rights of Kings’ and therefore complete dominion over political occurrences[1]. Such issues included ‘tax-raising powers and imprisonment without trail’[2] . The tyrannical ways of the crown would inevitably lead to conflict. In the journal of Natalie Gibbs, she addresses a central cause of the conflict, delving into King James I’s problematic approach to ruling England. Being a foreigner at the time of his ruling, he attempted to rule England the same way he did in Scotland. The Scottish parliament, in contrast to the English, was regarded as ‘submissive’, having full authority over taxes and legislation. Whereas in England the concluding say of legislation and taxes were a role of the parliament[3]. His ruling has led to critique from historians, Moir in his book stated he “made little attempt to familiarize himself with English institutions[4]”. This ultimately infers that if King James educated himself on the legislative ways of England, such conflicts could have been avoided as seen with the ruling of the Stuart Kings. The ‘Case of Proclamations[5]’ held huge significance in relation to the struggle between the crown and parliament. The outcome of the case essentially placed boundaries on the power of King James I, establishing parliament’s legislative role. Lord Coke, in his judgement stated that “The King by his proclamation or other ways cannot change any part of the common law, or statute law”. This undermined and disregarded his belief of having ‘the divine rights of Kings’….

 

Parliament and Executive

 

 

Delegated Legislation

There has been a modern tendency to create powers for the government to become involved with law-making. Due to this, the government can legislate in various ways[6]. This is known as ‘delegated legislation’. An overlapping intersection is now apparent between the functions of the executive and Parliament, both being connected to legislation.[7] This has automatically created a struggle between both branches, as Parliament’s central role is to make and alter (primary) legislation. Which is now, to an extent, being obstructed by the executive. The significance of delegated legislation was reflected by Hayhurst and Wallington in their journal, where they drew on the present delegated legislation at the time when their journal was written. Addressing the fact that more of our legislation is delegated, giving examples of the Legal Aid Act 1988 and Education Reform Act 1988[8]. Ultimately, parliament to an extent still upholds its sovereignty, as legislation passed by Parliament is held ‘supreme’[9]. Nevertheless, Parliament’s legislative supremacy is prevailed by the executive. Despite the ability of parliament to check and review statuary instruments (SI)[10], which are a form of delegated legislation, in the Joint Select Committee. This is initially seen to uphold parliamentary supremacy, as they are still able to assert power over the executive in delegated legislation. However this is seen to be undermined due of the high amount of delegated legislation which is made annually. Parliament are not able to keep-up, so are not able to check the legislation[11]. This undermines Montesquieu's doctrine of the ‘separation of powers’ due to the overlap between the roles of parliament and the executive[12].  Dr Ruth Fox voices her contrasting views on the struggle between the executive and parliament. In one sense agreeing that there should be a set of principles to identify when power should and should not be delegated[13], as a means of easing the tension. However she also identifies the necessity for delegated legislation within the constitution as she states, “where Bills, which require a huge amount of technical detail, arguably could and perhaps should be delegated”. Moreover, using the recent contemporary example of Brexit, it further exemplifies the struggle between the Parliament and the Executive, with the executive’s authority in the decision to leave the supranational organisation is evident. The EU Withdrawal Bill is a form of SI. This blog voices the impact Parliament, stating that “if MPs are not happy with what the government wants to do, they will still be unable to exercise any real influence on the substance of a Brexit SI”[14]. Tensions have arisen over the executive’s power ‘take-over’ one of the main roles which have been vested exclusively to parliament.

 

Royal Prerogative

The Royal Prerogative was defined by the seventieth-century writer, William Blackstone as “powers which were once previously in the hands of crown”[15]. However, this is now an outdated concept as there has been a shift and these powers, such powers now personify the executive government of the UK, which A.V Dicey reflects in his definition. Stating that it is “an act the executive government can now do without the authority of an Act and Parliament”[16]. Royal prerogative has legal importance and contributes to the struggle between parliament and the executive. Some of the prerogative powers which have been left in the hands of the executive include foreign affairs; military action; issuing and withdrawal of passports and so on.  When looking into ‘military action’ under the prerogative power, it has been an established constitutional convention that the executive is free to decide this without consulting parliament[17]. As seen by the Gulf War and RAF in Bosnia[18]. The conflict between the two branches was exemplified in 2003, with Blairs ‘war-on-terror’ approach to Iraq, where he did not resort to parliament for approval or opinion. This resorts to conflict as it undermines and neglects the voice of parliaments in such affairs. Through Gaskarth’s analysis of the British political-system that “foreign policy is determined in top-down fashion, and parliament is a minor player[19]”, he identifies the fact that inequality is rooted within our constitution in regard to foreign policy. In the case of Chandler v Director of Public Prosecutions[20], Lord Hodson stated that under the prerogative the crown arranges the disposition of its armed forces’, Which is left in the hands of the executive, by the Crown. It could be inferred that parliament lack authority to challenge this as it is a role vested in the executive. On the contrary, David Cameron’s decision to hold a vote for parliament concerning going to war in Syria and following the results of the vote[21], held huge constitutional significance as despite this authority through royal prerogative to make such decisions without parliament he sought for its approval. This subverted from typical tension between the branches.

Written by Becky Amankwah

 

 

[1] Michael Doherty, Public Law, (2016) 156

[2] ibid

[3] Natalie Gibbs, The Stuart Kings: How Their Relationships with Parliament Doomed Their Reigns [University of East Anglia], December 2013

[4] Thomas Moir, The Addled Parliament of 1614 (1958)

[5] [1610] EWHC KB J22

[6] Gramae Broadbent, Public Law Directions, (2007) 117

[7] John Adler, Constitutional and Administrative Law (8th edition, 2011) 144

[8] J.D Hayhurst and Peter Wallington, ‘The Parliamentary Scrutiny of Delegated Legislation’, 1998

[9] Adam Wagner, ‘Does parliamentary sovereignty still reign supreme?’ The Guardian (27th January 2011)

[10] Saad Abdulbaqi and YR Rama Subbaiah, International Journal of Law ‘A comparative study of delegated legislation: with special reference to United States of America and United Kingdom’ (2007)

[11] ibid

[12] Keith Syrett, The Foundations of Public Law: Principles and Problems of Power in the British Constitution 2014) 20

[13] House of Lords, ‘The Legislative Process: The Delegation of Powers’ (16th Report of Session 2017–19)

[14] ‘Brexit is an opportunity for MPs to scrutinise legislation’ , (LSE, 31st January 2018) < https://blogs.lse.ac.uk/brexit/2018/01/31/brexit-is-an-opportunity-for-mps-to-improve-scrutiny-of-legislation/> accessed 15/01/19

[15] Michael Doherty, Public Law, (2016) 154

[16] ibid

[17] Emily Young, Britain Goes to War:  An Analysis of the Developing Role of the House of Commons in Determining Whether HM Forces Should Be Deployed on Military Operations

[18]ibid

[19] James Strong, Why parliament now decides on war: tracing the growth of the parliamentary prerogative through Syria, Libya and Iraq, 2015

[20] [1964] AC 763

[21] Emily Young, Britain Goes to War:  An Analysis of the Developing Role of the House of Commons in Determining Whether HM Forces Should Be Deployed on Military Operations

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