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

Hafsa Arif

The struggle between the Crown and Parliament:

Constitutional arrangements for the UK have evolved in phases. The continuing loss of supremacy of the Sovereign began from the signing of the Magna Carta in 1215 which culminated as a result of a dispute between the King and his barons. However, only selected provisions of the Magna Carta were later confirmed by the English Parliament, putting restrictions on the power of the King. The Tudor Monarchs were very powerful, but with time Parliament also became increasingly important. The sixteenth century had a concept of supremacy of law, embodied in the rule of the common law and sovereignty controlled by statute, which limited the free power of monarchy.[1] The constitutional law case of The Five Knights’,[2] further showed the King’s struggle with Parliament. It contributed to the enactment of the Petition of Rights (1628),[3] which was sent by the Parliament to the Stuart King, Charles I who complained about a series of breaches of law. One amongst four of its principles being, no taxation without the consent of Parliament.[4] Moreover, the struggle between the Crown and Parliament came to a head with the Civil War (1642-1649). Also, the King’s authority to summon and dismiss Parliament at will was  called into question.[5]

Having mentioned that, it can be argued that the struggle between the Crown and Parliament has come to an end. The legislative supremacy of Parliament was increasingly asserted in the sixteenth and seventeenth centuries.[6] Consequently, the UK Bill of Rights (1689) established that ultimate sovereignty was vested in the King-in-Parliament, not the King alone.[7] This key landmark gave birth to the idea of Parliamentary Sovereignty following the Glorious Revolution (1688-1689) [8]. Article 9 of the Bill of Rights set out the principle of privilege of Parliament: freedom of speech and debate[9], this eliminated royal interference. It was one of the basic instruments of the British constitution, the result of the long struggle between the Stuart kings and the English people and Parliament.[10] Moreover, the power of the Crown and the Prerogatives of the Crown were thereafter restricted.[11] These powers are those that have been kept and currently subsist after centuries of continuing loss of influence.[12]

Also, it can be comprehended that the struggle between the Crown and Parliament has terminated, as the Crown is a complete fusion of the executive, since the Crown is head of state, and is an integral part of the institution of Parliament. Furthermore, the Fixed-term Parliaments Act 2011 removed the prerogative power of the Queen, on the advice of the Prime Minister to dissolve Parliament and trigger a general election.[13] Similarly, Royal Assent is the Monarch's agreement that is required to make a Bill into an Act of Parliament. While the Monarch has the right to refuse Royal Assent, nowadays this does not happen; the last such occasion was in 1707, and Royal Assent is regarded today as a formality.[14]Also, over the years, Parliament has passed laws that limit the application of parliamentary sovereignty. They include; the devolution of power, the Human Rights Act 1998, the UK's entry to the European Union in 1973, and the decision to establish a UK Supreme Court in 2009.[15] Hence, it can be argued that the struggle between the Parliament and Crown has come to an end.

The struggle between the Executive and Parliament:

In recent years the UK has been going through a period of profound constitutional change.[16] On the one hand, the relationship between Parliament and the Executive can be seen as a dynamic struggle. The Prime Minister and a majority of the ministers are MPs and sit in the House of Commons. Hence, the Executives presence in Parliament facilitate scrutiny. For example, Question Time is a powerful procedure for holding the Executive to account, throwing ministers straight into the lion’s den of the legislature.[17] Furthermore, it has been said that parliament, ‘has little distinct life or identity of its own, separate from government and party.’[18] Despite the popularity of this view, it stands in need of substantial revision, primarily as how the labour backbench MPs of the 1997 and 2001 parliaments have been rebelling against the government multiple issues. The extent to which backbench members, as opposed to government whips, may set the commons agenda has grown through series of recent reforms to parliamentary procedure. Despite these advances, the domination of the house of commons by party and government continues to be seen as a forcible obstacle to parliaments performance of scrutinising the executive. So far as there is separation of powers between the parliament and government, it is not one in which equal powers are counter-balanced. The case of Regina v Secretary of State for The Home Department, Ex P Fire Brigades Union[19] further revealed the struggle between the executive and parliament when the minister acted unlawfully and frustrated the parliament….

Written by Hafsa Arif

 

[1] Peter Leyland, The Constitution of the United Kingdom; A Contextual Analysis (2nd edition, Hart Publishing) 14-16.

[2] [1627] 3 How St Tr 1.

[3] The Editors of Encyclopaedia Britannica, ‘Darnel's case’

< https://www.britannica.com/event/Darnels-case> accessed 11 February 2019.

[4] The Editors of Encyclopaedia Britannica, ‘Petition of Right’

<https://www.britannica.com/topic/Petition-of-Right-British-history> accessed 11 February 2019.

[5] Leyland (n 1) 16.

[6] Imran Ahsan Khan Nyazee, The British Constitution (1st Edition, FLH) 48.

[7] Leyland (n 1) 18.

[8] Robert Blackburn, ‘Britain’s unwritten constitution’ ( 13 March 2015) <https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution> accessed 8 February 2019.

[9] Richard Benwell and Oonagh Gay, ‘The Separation of Powers’ (2011) HC library 6.

[10] The Editors of Encyclopaedia Britannica, ‘Bill of Rights’

< https://www.britannica.com/topic/Bill-of-Rights-British-history> accessed 11 February 2019.

[11] Leyland (n 7) 18.

[12] Nyazee, (n 6) 48.

[13] Richard Kelly, ‘Fixed-term Parliaments Act 2011, ( 27 April 2017) < https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06111> accessed 10 February 2019.

[14] Glossary, ‘Royal Assent’ <https://www.parliament.uk/site-information/glossary/royal-assent/ > accessed 12 February 2019.

[15] --‘Parliament’s authority’ < https://www.parliament.uk/about/how/role/sovereignty/  > accessed 8 February 2019.

[16]  Colin Turpin and Adam Tomkins, British Government and the Constitution (7th edition, CUP) 24.

[17] Benwell and Gay,( n 9) 4.

[18] Stuart Weir and David Beetham, Political Power and Democratic Control in Britain (1999) 372.

[19] [1995] 2 AC 513 (HL).

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