United Kingdom: Bicameralism, sovereignty, and the unwritten Constitution

摘要

The Jackson case graphically illustrates the fluidity of the British Constitution and the contested nature of its fundamental aspects. In the absence of a constitutional text prescribing the locus of legislative power, it appears that Parliament was able, in 1911, effectively to place its authority in the hands of the House of Commons, and so—bearing in mind the absence of a clear separation of powers between legislature and executive in the U.K.—in practice, in the hands of the administrative branch of government. This having occurred, the executive-dominated lower chamber, according to the analysis in Jackson, now has ultimate control of the Constitution. The conclusion to which this points—that the terms on which legislative authority is held are, at least to some extent, under the control of Parliament itself—is a significant one. Yet the feature of Jackson that is, in a sense, the most striking is the possibility, raised by three of the judges, that the extent of Parliament's lawmaking power may ultimately be subject to judicial control through the identification and enforcement of hitherto latent restrictions within the British Constitution. This, in turn, calls into doubt not just the nature of parliamentary sovereignty but whether that concept exists—or should exist—in any absolute sense. Of course, the U.K. is hardly alone in having to confront questions concerning the extent of legislative authority and the legitimacy of judicial control thereof, but doing so in the absence of a written constitution is an unusual—and unusually difficult—task.