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WHAT IS THE CONSTITUTION

A constitution is the rule book for a state. It sets out the
fundamental principles by which the state is governed. It describes the
main institutions of the state, and defines the relationship between these
institutions (for example, between the executive, legislature and
judiciary). It places limits on the exercise of power, and sets out the
rights and duties of citizens.

CONSTITUTION-IN GENERAL

It is the fundamental or supreme law of the land. As a concept it

belongs to the Public law. Public law as a term is imported in the British
law In general, Public law deals with the public rights.

DEFINITION OF THE TERM CONSTITUTION

According to "Black's law Dictionary", Constitution is defined as:

"The organic or fundamental law of a nation or state, which may be

written or unwritten, establishing the character and conception of its
government, laying the basic principles to which its internal life is to be
conformed, organizing the government, and regulating, distributing and
limiting the functions of its different departments and prescribing the
extent and manner of the exercise of sovereign powers"

And as

"A charter of government deriving its whole authority from the

governed."

According to Hood Philips & Jackson,

"A body of laws, customs and conventions that define the

composition and powers of the organs of the state and that regulate the
relations of the various state organs to one another and to the citizens."

Constitutional law is a body of law which defines the role,

powers, and structure of distinct organizational units within a
governmental setup, namely, the executive, the parliament or legislature,
and the judiciary; as well as the basic rights of citizens.

Constitution is not an ordinary statute made in ordinary legal

procedure. It is the creation of a Constitutional Act and therefore the
sanctity of a Constitution is much higher than any statute made by the
legislature. A Statute is an act to fulfill a particular social, political or
economic need and so its efficacy of importance does not endure so long.
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But a Constitution is made to endure with the avowed purpose to fulfill

the aspiration of the people who made it. It is by the people, for the
people and a documentation of the cherished good of the people.
Constitutions are not conceived and acted in vacuum, and as an
instrument of Government. It is always intended the condition and as it is
itself conditioned by the circumstance and environment of the community
whose activities seek it to regulate. It is never internal and differs from
other laws only in respect of general national purpose, it has in view.
Constitution, written - unwritten has a philosophy of its own: it is the
means of ordering the life of people. This way we should have good
understanding of our constitution.

Most countries have the rule book codified in a single document,

known as a codified (or written) constitution. Codified constitutions are
typically produced following a revolution (like the American constitution
of 1787 or the French constitution of 1791); or total defeat in war (like
the post-war constitutions of Germany and Japan); or a complete collapse
of legitimacy of the previous system of government (like post-apartheid
South Africa, or post-Soviet Russia); or the attainment of independence
(like all the countries of the former British empire). None of these things
have happened to the UK, which is why it has never had cause to codify
its constitution. (A one revolution in Britain, in the 17th century, did
briefly produce a written constitution: Cromwell’s Instrument of
Government).

Codified constitutions contain fundamental, superior law, and are

harder to amend than ordinary law. Constitutional change typically
involves approval by a super-majority in the legislature, or a referendum,
or sometimes both. For example, an amendment of the Japanese
constitution requires approval by a super majority of two-thirds of both
houses of the Diet, and then by simple majority in a popular referendum.
Amendment of the US constitution requires a two thirds vote in both
Houses of Congress, followed by ratification by three quarters (38 out of
50) of all the state legislatures.

The layout of a typical constitution might resemble the

following:
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1) Preamble: a statement of the overarching motives and goals

of the constitution-making, sometimes referring to important
historical events, national identity or values.
2) Preliminaries: a declaration of sovereignty or of basic
principles of government; the name and territory of the state;
citizenship and franchise; state ideology, values or objectives.
3) Fundamental rights: a list of rights, including their
applicability, enforcement, limitations, suspension or
restriction during a state of emergency.
4) Social and economic rights or policy directives.
5) Parliament or legislature: its structure, composition, terms
of office, privileges, procedures, etc.
6) Head of state: the method of selection, powers, terms of
office.
7) Government (in a parliamentary or semi-presidential
system): government formation rules, responsibility, powers.
8) Judiciary: Court system, judicial appointments, judicial
independence, public prosecutors.
9) Sub-national government: federal or devolved powers,
local government.
10)Institutions of the so-called integrity branch (electoral
commission, ombudsman, audit institution, etc).
11)Security sector: commander-in-chief, any restrictions on
military power.
12)Other miscellaneous provisions: special provisions for
particular groups, language laws, particular institution, etc.
13)Amendment procedures, implementation timetable and
transitionary provisions.

SALIENT FEATURES OF BRITISH

CONSTITUTION
British Constitution as a constitution is not in one constitutional
document but in many constitutional documents. It connotes something
that is in the process of growth and development. British Society in fact
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reflects commitment of the British Society to their traditions and their

political system. On the whole-it remains a combination of history and
culture.

SALIENT FEATURES OF BRITISH CONSTITUTION

The British Constitution is one of the oldest and original existing

constitutions of the world and its salient features are analyzed as follows:

1. Un-codified constitution. The English Constitution to a large

extent is of unwritten nature and the portion that is written is
not in one document. It is not a pre-arranged pattern according
to which a government must be carried on. The fundamental
laws and principles, according to which the administration in
England is being am, are based on customs, usages and
understandings of the British society. Some of these principles
have been reduced into writing and are embodied in acts of
parliament. The Magna Carta, the Bills of Rights. Petition of
Team Rights, the Reforms Act, and the Parliamentary Act play a
very important role in the British administration and are the
component part of the British Constitution.

2. Evolutionary. The English Constitution is the child of evolution.

It can be traced back to the remote past. It was never enacted in
the form of laws by any constitution-framing body duly elected
by the English people at any stage of history. It has grown like
an organism and developed from age to age. The British
constitutional system has been peaceful and there have been no
serious political upheavals or revolutions for bringing about a
change.

3. Indigenous constitution. The British constitution is of

indigenous character. Though it is uncodified and mostly
unwritten but still it is an original constitution The English
people were the first to discover how to run a state and they
were also the first to discover how to run a state on democratic
lines. Prof Munro said, "The British Constitution is the mother of
all constitutions." This constitution is not the outcome of any
foreign thought but it is the child of the natives of Britain solely.
They were the one who decided the terms of various acts,
conventions and customs. They kept it in accordance with the
changing times and the needs of the British society and kept the
original spirit of the nation.
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4. Flexible constitution. The British constitution is a classic

example of flexible constitution. The method of amending the
British constitution is simple and easy. The English constitution
can be amended in the same way as an ordinary law of the
country.

5. Unitary constitution. The British Constitution has unitary

character as opposed to a federal one. All executive, legislative
and judicial powers have been concentrated in the hands of the
Central Government and the British Parliament can do whatever
it pleases The Central Government is all powerful and controls
the whole administration of England. There is only one
legislature. There are no political autonomous units as in a
Federation like those of U.S.A. There is no authority in England,
which shares the powers of Parliament except the powers given
by Parliament to the local units. There are no separate lists
showing the division of powers among the different
administrative agencies.

6. Sovereignty of parliament. The pattern of Government in

Britain is not only parliamentary, but it also stipulates the
sovereignty of parliament There is nothing the British
Parliament cannot do. The Parliament of England is so sovereign
that in the words of De Lolme, "it can do everything except to
make a man a woman and a woman a man." The laws of
Parliament cannot be declared illegal or unconstitutional by the
judiciary as in U.S.A. The Parliament has the right to make or
unmake any law. No person or body is recognized by the law of
England to have a right to override or set aside the legislation of
Parliament. The right or power of Parliament extends to every
part of the Queen's dominions.

7. Constitutional Monarchy. In the early ages, the king was

absolute, all powers were vested in him, but with the passage of
time through conventions and acts his powers were reduced and
monarchy became constitutional. The king today cannot use his
powers arbitrarily or discretionarily. He cannot levy taxes but
only with the consent of the parliament. He is answerable to the
governed through the parliament. Though he is not accountable
directly but his ministers in the parliament have to answer on
his behalf.
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8. Parliamentary form of government. The English Constitution

has a parliamentary form of government The Prime Minister and
the Ministers constitute the Cabinet. The Cabinet enjoys the
confidence of the Parliament. The ministers are accountable to
the Parliament and if the Parliament finds the working of these
ministers as not appropriate it has the powers to remove them,
making scope for another Cabinet, enjoying majority, to occupy
the office It is the democracy of this parliament that it appoints
or removes ministers according to their working and needs of
the citizens.

9. Responsible government. Whenever a government is elected

and it forms a Cabinet, it has a lot of responsibilities The real
functionaries are Ministers who are chosen representatives of
the people They belong to the majority party in the Parliament.
They speak for the citizens of the areas from where they came to
the parliament. They make policies and discuss them in the
parliament. They are answerable for their policies and the
actions of their respective departments to the parliament. It is
usually said about the ministers that they swim and sink
together.

10. Bicameral Legislature. The British parliament has two

houses, House of Lords and House of Commons. The House of
Lords is the upper house and it compromises of representatives
from the monarchy, church, jurists, etc. They are involved in
money related matters. It is also the highest court of law in
England. On the contrary, the representation in the House of
Commons comes through elections. It has the supreme law
making authority and there is no law in England, which the
House cannot make or repeal for social welfare.

11. Subordinate in nature. The British Constitution is

subordinate not because it originated through some other
constitution but because it is scattered and not in one document.

12. Balanced constitution. The British Constitution has become

balanced over the centuries. It was in the 17th century that
powers were transferred from the king to the parliament. The
constitution is termed as balanced because of the equilibrium
amongst the feudal estates of the king, aristocracy, clergy and
the middle class. Before this the king, aristocrats and the clergy
enjoyed all powers and the middle class people did not have
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much part to play in the order of things. The idea of giving them
voice was shocking initially but was accepted afterwards.

13. Liberal and democratic constitution. British constitution

is termed as liberal and democratic constitution. The high
lightening of the parliament, the rule of law and the conventions
all make it liberal and democratic. The shift of powers from king
to parliament can be divided in to two aspects legal and
political. The legal aspect of the division powers goes to the
parliament and the political aspect goes to the people.
Parliament is supreme lawmaker and its exercise of that power
gives effect to the will of the political sovereign i.e. the electoral
body, or the nation.

14. Rule of law. In the British Constitution the term 'Rule of law'
implies that Law is supreme in England. Every act of the
government must be authorized by law either by statute law
passed by parliament or common law, which has been
recognized for many hundreds of years. It states that no man is
punishable or can be lawfully made to suffer in body or goods
except for the breach of law.

15. Separation of powers. The separation of powers is the

differentiation of the powers of government, executive,
legislative and judiciary. It reduces the potential of organs for
the abuse of other organs. In the U.K. there is some degree of
separation, as civil servants may not be MPs, yet government
ministers must sit in one of the two Houses of Parliament. The
strongest aspect of separation is the independence of judiciary
from the executive and legislature although the most senior
judges, as members of the House of Lords, can be involved in
making the legislation.

16. Checks and balances. The balancing and checking that

occurs in the UK combines the French internal and the
American external. The legislative power of parliament is not
generally subject to external check by the courts; rather
legislation is produced by the institution of a liberal democracy,
which succeeded another internal arrangement, balanced or
mixed government, which was based on the estates or classes.
The actions of the executive are subject to the external checks of
Parliament and courts Party discipline reduces the stringency of
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the checks, which Parliament conducts on the executive. The

consequent dominance over parliament enables the executive to
make legislation and thus pass the judicial check, which is based
on the principle of legality.

17. Judicial review. Judicial Review is the power given to the

supreme courts to determine a particular law or act that
whether it is or it is not repugnant to the constitution. If it is
then it is called as void. A law can be called void if it violates the
common right or reason otherwise.

18. Role of conventions. A necessary corollary to the unwritten

character of the Constitution is that the Conventions play a vital
role in the British political system For instance, while the Queen
has the prerogative to refuse assent to a measure, passed by the
parliament, by convention, she cannot do so and the same has
become a rigid principle of the constitution itself. By convention,
again, the Queen cannot go against the advice of the Cabinet,
though in strict legal sense she can do so.

19. Fundamental rights. Unlike Germany or Ireland, England

has nothing which can be called by the name of fundamental
rights of Englishmen. The freedoms of Englishmen are
guaranteed to them by the ordinary law of land.

…….

SOURCES OF BRITISH CONSTITUTION

Sources of English constitutional law are not to be found in one
document. It can be only understood by reference to long serious of acts,
traditions and judicial decisions. Since the British constitution cannot be
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found in authoritative documentary form, we have to go through it from a

municipality of sources.

Now it has been written so far as it is clear that British Constitution

has been derived not from a single source but from different sources
which are as follow.

1. CONVENTIONS

Conventions are secondary sources of the English Constitution, but

their importance cannot be minimized. Conventions are not laws, but
they possess the force of a law and are obeyed because custom and
expediency demand it. Their existence is essential because they
supplement the legal framework of the Constitution and facilitate its
working.

Conventions arc dynamic in character. Many old conventions die

out while new ones spring up with the passage of time. In fact, the
workability of the English Constitution is based upon conventions without
which it would become unworkable. These conventions are regarded as
sacred as laws of the Constitution.

The most important conventions in Great Britain are the following:

(b) The Queen or King must accept the advice of the Cabinet.

(c) No tax can be levied without the sanction of Parliament.

(d) The Parliament must meet at least once a year.

(e) The leader of the majority party in the House of Commons must be
appointed as the Prime Minister.

(f) The Cabinet is collectively responsible to the Parliament.

(g) The Parliament shall consist of two chambers.

(h) Only the law lords shall attend the meetings of the House of Lords for
deciding judicial cases.

2. CHARTERS

The second important source of the English Constitution is the

great Charters and Agreements, which define and regulate the powers
of the Crown and the rights of citizens, etc. Such charters have
become historic documents and, therefore, an important part of the
British Constitution.

Among these documents, the important ones are the following:

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a. Magna Carta (1215): It defined the organization and

powers of the Great Council in Great Britain and prohibited
the imposition of certain taxes without the consent of the
Great Council.
b. Petition of Rights (1628): It laid down that no person in
Great Britain can be compelled to pay any loan, gift or tax
without the previous sanction of Parliament.
c. Bill of Rights (1689): It made the Parliament the supreme
law making body and declared that it should be called
regularly. It also provided a list of individual rights.
d. Act of Settlement (1701): It fixed certain rules regulating
the order of succession to the British throne.
e. Act of Union with Scotland (1707). It contains some
provisions which have permanently united Scotland with
Great Britain under one common Government.

3. STATUTES

The third important source of the English Constitution is the Statutes

(Laws) passed by the Parliament from time to time. It may be noted that
the British Parliament is fully empowered to change these statutes
whenever it likes. The following are the important statutes of the British
Parliament.

a. Reform Act of 1832: This Act extended manhood suffrage to

urban middle classes of Great Britain.
b. Parliament Act of 1911: It curtailed the powers of the House
of Lords and permanently established the supremacy of the
House of Commons. It also reduced the life of the House of
Commons from seven to five years.
c. Representation of People's Acts of 1918 and 1928: These
Acts established the principle of Universal Adult Suffrage by
guaranteeing the right of vote to women.
d. Statutes- of Westminster Act, 1931: It recognized the
Independence of the Dominions of Canada, South Africa,
Australia and New Zealand.
e. Indian Independence Act, 1947: It handed over all political
powers to India and Pakistan by the division of India.
4. JUDICIAL DECISIONS

Judicial decisions are the judgments and interpretations of the British

Courts which define the scope and limitations of the different charters,
statutes and Common Law of Great Britain. So great is the importance of
judicial decisions that Dicey termed the British Constitution as a judge
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made Constitution. Good illustrations are the decisions in Bushell's case

(1670), establishing the independence of juries, and that in Howell's case
(1678), vindicating the immunity of judges.

5. EMINENT WORKS OF JURISTS

Some of the eminent works written by authorities on the subject also

form a part and parcel of the Constitution. May's Parliament Practice.
Dicey's Law and Constitution, Blackston's Commentaries on English
Constitution are some of the notable examples.

6. STATUTORY RULES MADE BY VARIOUS AUTHORITIES

Juristic writings are a source of the English Constitution not only

because Constitutional rules can be gleemed from them, but also because
they have a great persuasive value. Their opinion may and sometimes do
influence the judges and thus accelerate the process of evolution in an
imperceptible manner. Celebrated jurist like Dicey have evolved order
from chaos and presented an exposition of the British Constitutional Law.
More important among the text book writers are Anson, Bagehot,
Jammings, Laski, Dicey and Lord Bryce.

7. COMMON LAW

Common law may be defined as an "assemblage of all those rules and

important principles, which are the product of slow process of long
historical growth, being based upon the customs and traditions of
English Society, and later on recognized by the Courts of the country.”

8. PREROGATIVE OF THE CROWN

A source of English constitutional law is found in the prerogatives of

crown. The prerogatives may be direct e.g., summoning, proroguing and
dissolving parliament appointment of ambassador or pardoning
criminals, or it may be personal e.g., the king can never dies, or that he
can do no wrong.

.........

ROYAL PREROGATIVES
In theory, Government of England is absolute monarchy. Every law
must be signed by the King. The Ministers are his ministers, the law
courts are his courts of justice. All actions of government are undertaken
in the name of the Crown. But practically all these powers are exercised
by the parliament. The King is like a rubber stamp. Although the crown
has some Royal Prerogatives. It means the powers exercised by the king
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in virtue of common, Law or custom these prerogatives are created for

the benefit of the people and cannot be exercised to their prejudice. In
early days crown has the absolute power, but after long constitutional
struggle between crown and parliament. The powers of the crown are
limited. Therefore, it is said the prerogatives are the remaining powers of
the crown's original authority. It is also clear that no new prerogative
powers can be created.

DEFINITION

According to Black's Law Dictionary. “Those rights and

capacities which the king enjoys alone in contradistinction to others and
not to those which he enjoys in common with any of his subjects. It is that
special pre-eminence which the sovereign has over all other persons and
out of the course of the common law by right of regal dignity.”

HISTORY OF THE PREROGATIVE

In early days king was Feudal Lord and head of the Kingdom. H:
had all the rights of a Feudal Lord and certain exceptional rights above
these of other lords.

In the 17th Century, the main disputes arose over the undefined
residue of prerogative power claimed by the Stuart Kings. The main
dispute arose between Charles-I and the parliament. The arbitrary
powers of the king was declared illegal by the petition of right 1628 for
the first time.

Finally, the problem of the prerogative was solved in two stages.

The first of that was by Bill of Rights 1689, which declared illegal certain
specific uses and abuses of the prerogative. Thus it was cleared that
there was no extraordinary prerogative above the law. The second stage
was the growth of responsible government and the establishment of a
constitutional monarchy. It became established that prerogative powers
could only be exercised through and on the advice of ministers
responsible to parliament.

PREROGATIVES TODAY

Today the greater part of government depends on statute. But

certain powers, rights immunities and privileges of the sovereign and of
the crown which vary widely in importance, continue to have their legal
source in common law.

The Queen is the legal head of the state. It is supreme head of the
church of England, and head of state in relation to foreign affairs, and is
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also the head of the executive and all acts of government. But in practice
all these regal powers are exercised in the name of the crown by the
government of the day. However, still crown has some prerogatives these
prerogatives are mentioned briefly below.

CLASSIFICATION OF ROYAL PREROGATIVES

The prerogatives of the crown may be classified into two main

points.

(a) Personal prerogatives.

(b)Political prerogatives.

A. PERSONAL PREROGATIVES. Personal prerogatives means

such prerogatives which the crown has as a person. These
consist mainly of immunity and property rights. These
prerogatives are:--
i. The king can do no wrong. This personal prerogative of
the king has a two-fold meaning, firstly it means that the
king cannot be held responsible for anything done by him
or done in his name by ministers, as in Bainbridge v/s The
Postmaster General it was held the crown is not
responsible for wrong acts done by his employees".

No proceeding civil or criminal, is maintainable against

the crown in person, as in the eyes of law no such wrong
can be done so in law, no right to redress can arise.

ii. The king never dies. It means that a particular king may
die but the institution of kingship is perpetual i.e., the
sovereign always exists. The person only is changed. Brow
The king has the attribute of immortality. Hence the king
is always there, he never dies.
iii. Time does not run against the king. It means that the
king can claim his right at any time and there is no time on
the king rule of limitation does not apply to king.

B. POLITICAL PREROGATIVES. The political prerogatives are

further sub-divided into two kinds, they are as follows:--
(a) Domestic prerogatives. They are those prerogatives
which deals with the internal matter of the state, it has
following kinds:
a. Legislative prerogatives. According to common law,
king has power to legislate on conquered and ceded
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colonies only. In regard to parliament the king has

following prerogatives.
i. Summon, prorogues and dissolution of
parliament. By virtue of the prerogative
the king summons, prorogues and dissolves
parliament. The dissolution of parliament
refers to the process by which an existing
parliament is brought to an end with at new
parliament coming into being following a
general election. The dissolution of
parliament is perhaps the most important
prerogative of the crown. The king dissolve
a parliament on the advise of Prime
Minister or if a vote of no confidence is
passed in the parliament, against any
member of the cabinet. If the crown does
this without the advice of Prime Minister, it
will be held ultra vires.
ii. Royal assent to the bills. The crown has
also the prerogative of giving. Royal assent
to bills which have been passed by both the
houses of parliament.
iii. Appointment of Prime Minister. In
theory the Queen appoint as Prime Minister
whosoever she pleases. But in practice, this
prerogative is govern by a convention i.e.,
Queen will ask the leader of the majority
party in the house of common to make
cabinet.
iv. Immunities and privilege. The crown
benefits from the principle of
interpretation; crown is not bound by the
statutes unless it is by express statement or
necessary implication. Many of the
privileges and immunities of the crown in
civil litigation were removed by Crown
Proceedings Act, 1947. But it have still
certain privileges e.g., sovereign cannot be
sued.
b. Judicial prerogatives. The king is the fountain of
justice and general conservator of the peace of the
kingdom. The crown exercises many functions in
relation to judicial powers, they are follows:--
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i. Pardon. The crown can pardon convicted

offenders on the advice of the Home Secretary or
the Secretary of state for Scotland. If is under the
prerogative that the crown grants special leave to
appeal from colonial courts to the Judicial
Committee of the Privy Council where the right of
appeal to the Privy Council has not been
abolished.

The right of pardon does not extend to civil

matters. The adviser (Home Secretary) is
accountable to parliament. The crown therefore
has no personal involvement in its exercise.
ii. Appointments. On the advise of the Prime
Minister or other Ministers, crown appoints
ministers, judges, magistrates and many other
holders of public office, including members of
royal commissions. Thus the crown is the sole
fountain of honour and alone can create peers,
confer honour and appointments.
iii. Minimizing the sentence. The crown can also
minimize imprisonment of a offender in criminal
proceedings.

c. Executive prerogatives. The king has some executive

powers also these powers are:
i. Powers relating armed forces. Both by
prerogative and by statute the sovereign is
commander in-chief of the armed forces of the
crown. The Bill of Rights 1688, prohibited the
keeping of a standing army within the realm in
time of peace without the consent of parliament.
Although, many matters regarding the armed
forces are regulated by statute their contract
organization disposition are within the
prerogative and cannot be questioned in a court.
ii. Emergency. In the time of emergency the
powers of crown are extended immunity. The
crown can demand personal services and he has
the power to start war for defence.

(b) Foreign prerogatives.

(i) Receive diplomats and ambassadors of the foreign countries.
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(ii) Give recognition to the new states.

(iii) Enter into treaties with foreign states.
(iv) Appoint ambassadors and deployments.
(v) Declares war and peace in the kingdom.

EFFECT POWERS OF STATUTES UPON PREROGATIVE

Parliament may expressly abolish or restrict prerogative rights,

whether or not coupling this with the grant of statutory powers in the
same area of government. But often parliament has not expressly
abolished prerogative rights but has merely created a statutory scheme
dealing with the same subject. So they have to consider it under
statutory powers or under prerogatives.

Case: Attorney General v/s De Keyser's Royal Hotel (1929).

Held: It was held that the crown could not revert to prerogative powers
when the legislature had given statutory powers to the crown.

.......

CONVENTIONS
The British System of Government is an amalgam of Statutes,
Customs, Precedents and Social Norms. This is particularly because of
the 'unwritten nature' of their constitution. This collection of legal
instruments that have developed into a body of law known, as
constitution evolved through centuries. Conventions in this regard, are
rules or generally agreed practices relating to the working of the political
system, which have in most cases evolved over time.

DEFINITION
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"Conventions are constitutional behaviors observed by sovereigns,

they are neither expressed in a statute nor in a judicial decision they
attain their status through regular usage over centuries."

CHARACTERISTICS OF CONVENTIONS

The various characteristics that are associated with conventions

are as follows,

i. Unwritten. Conventions are unwritten in form, they cannot be

found in black and white in any piece of document. This is because
they evolve through a long period of time.
ii. Regular usage. Conventions attain their status through regular
usage. They are to be practiced by the members of society as if
they are obeying laws.
iii. Representation of people's will. Conventions are the
representation of the people's will; they are the ones who validate
the existence of a convention through their regular usage.
iv. Public interest. People are the best judge of their interest. They
never adhere to something that is against their policy and is devoid
of their interest. The conventions that they follow are the reflection
of their interest.
v. Sanction of public opinion. Conventions are not enforceable by
law therefore if there is noncompliance to a convention then the
sanction is not of law but criticism from the public.
vi. Binding upon law makers. Whenever lawmakers would sit to
make a law, they are to consider conventions as they reflect public
interest and laws are always made keeping people and their
interest in view.
vii. Not against statutory law. A convention has to be in harmony
with statutory law. Any conflict would result in difficulties not only
for people but for the government also.
viii. Supplement the constitution. Conventions supplement the
unwritten aspect of the constitution that is if the constitution does
not provide a legitimate answer then conventions can be of help.

INSTANCES OF CONVENTIONS

Some of the instances of conventions are as follows,

A. Conventions related to the monarch. Some of the

conventions related to Monarchy are as follows,
1. The Monarch will act on the advice of the ministers
(cabinet).
 [18]

2. He will ask the leader of the majority party of redone so in

the House of Commons to form the government.
3. He will not refuse his assent to bills passed by the
parliament.
4. He will not dissolve the parliament in his discretion but
only at the advice of the Prime Minister.
5. The Monarch will not make a treaty, which does not
command approbation of parliament.

B. Conventions related to the Prime Minister. The

conventions related to the office of the Prime Minister are as
follows,
1. The Prime Minister will be from the House of Commons.
2. The Prime Minister will have a free hand in the formation
of the cabinet.
3. The Prime Minister alone can request the Queen to
dissolve the parliament.
4. The Prime Minister will resign on an adverse vote in the
parliament against him.
5. The Prime Minister will distribute the portfolios among the
ministers.

C. Conventions related to the parliament. The conventions

of the parliament are,
1. The parliament must convene at least once a year.
2. Money bills will initiate in the House of Commons.
3. Every bill will be read thrice before the final vote upon it.
4. No peer except the Law Lords will sit when House of
Lords is acting as Court of Appeal.
5. A speech from the government benches in parliament is to
be followed by a speech from the opposition.

D. Conventions related to ministers. Certain conventions are

related to the ministers and they are;
1. The ministers must be members of parliament.
2. The minister must resign, if losses the confidence of the
House of Commons.
3. The ministers are collectively responsible to the House of
Commons.

SANCTION BEHIND CONVENTIONS

 [19]

There are certain sanctions that are related to conventions and

they are as follows,

(i) Public opinion. The biggest sanction behind a convention in

case of its noncompliance is that of the public criticism. There is
no sanction of law sing since it cannot enforce it. They are made
in public interest and they develop criticism in case conventions
are not followed.
(ii) Breach of law. The violation of a convention, in one sense, is
actually the violation of law for instance if no session of
parliament convenes in a year then there will be no-budget and
no revenue will be raised for the armed forces creating chaos.
Such violation has to be dealt by the courts.
(iii) Fear of impeachment. In case the government does not follow
conventions then it can have the fear of impeachment. Similarly
if any ministry, who is asked to retire, does not agree to it then
he can also face impeachment, making it essential to follow
conventions.
(iv) Political difficulties. Conventions when not followed create
problems not only at domestic level but also at international
level-Politics get affected most in a country like Britain that has
no constitution to define everything. The entire system- cannot
survive where the sources of constitution are many.

CONVENTIONS AND LAWS

Conventions are not laws as they are not found in a single

document of a statute or in common law and courts cannot enforce them.
Laws are made to understand and apply whereas conventions are an
outcome of regular understanding of people who adopt it Courts can
apply sanction in case a law is not followed yet in case of noncompliance
of a convention, courts cannot force a sanction as conventions lack legal
entity.

CONVENTIONS AND CUSTOMS

There is a very slight difference between conventions and customs,

both are evolutionary in nature and both attain their status by regular
and continuous usage of people. The difference remains that customs
need to have the backing of the time factor that is a custom has to be
immemorial but time factor is not a necessity as far as conventions are
concerned.
 [20]

CONVENTIONS AND COURTS

Conventions can be regularized and recognized by he courts but

they cannot enforce them. Conventions are binding as they are practiced
for centuries. In this regard following is a case where courts recognize
conventions, Attorney General ys. Jonnathan Cappes (1976), where
it was held that "Courts can recognize conventions but cannot
enforce them."

.......

HOUSE OF LORDS
In British politics, the House of Lords is the non-elected upper
house of the United Kingdom Parliament The House of Lords is unique in
combining both legislative and judicial functions in one body: it is both
the upper house of the Parliament and the highest court of appeal for
criminal cases in England, Wales and Northern Ireland and for civil cases
in the whole of the United Kingdom.

HISTORICAL BACKGROUND

House of Lords evolved in the 11th century in the time of William of

Normandy and it was called the 'King's Council' later on this council was
changed into 'Magnum Concilium' (the chief men of the nation). The
people who sat in the House were called 'Barons', who were the King's
men and 'Peers', who were appointed on by the king because of their
land holdings.

APPOINTMENT OF MEMBERS
 [21]

The members of House of Lords were appointed by the king.

Initially the king used to send 'Writ of Summons' to persons whom he
wanted to make barons or peers as a part of the House of Lords. Today, a
'Letter Patent' carrying an official seal is sent to persons who are to be
made the members of this House. And afterwards a 'Writ of Summons' is
sent to the members to attend the proceedings of a session in the House
of Lords.

CLASSIFICATION

i. Hereditary peers. Initially this was the biggest category. The king
had unlimited powers to create them It was with the rise of
democracy in the 18th century that reduced their influence and
number. Ultimately the House of Lords Act 1999 reduced the
number to 92 only and no further hereditary peers are made today.
In 1983, Margaret Thatcher suggested three names for hereditary
peerage and out of them Harold MacMillan was made as one of
them was issueless and the other had no male issue.

The politician best known for disclaiming his inherited peerage is

Anthony Benn in accordance with Disclaimer Act 1963 14
hereditary peers have left House of Lords under this Act.

ii. Lifetime peers. Lifetime peers are created under Life Peerage Act
(1958). They are created on basis of their ability. These are people
who have certain capabilities through which they serve the nation
Their successors are not ipso facto entitled to the membership of
the Lords These peers are created irrespective of sex By 1994
there were a total of 402 life peers in the House of Lords.

iii. Spiritual lords. England is basically a Protestant state. The

Spiritual Lords who sit in the House belong to the various churches
of England. These Lords are 26 in number 5 of them are
Archbishops, belonging to Canterbury, London, York. Durham, and
Winchester The rest of the 21 come from the Council of Churches
Recommendation When a sitting bishop dies or resigns, the one
next of the list, in order of seniority, becomes the member.

iv. Law lords. House of Lords is also the highest court of appeal.
Initially Law Lords were not a part of this House and the members
used to pass judgments in cases. In the 19th century the need was
realized and judges were appointed under the provisions of
 [22]

Appellate Jurisdiction Act (1876) Today there are 12 judges who

are assisting the House in the performance of its judicial functions.
These judges are appointed on merit, experience, knowledge and
legal intelligence. To become a Law Lord, they must have served as
a barrister in Britain for 15 years or as a judge in a higher court of
appeal or higher legal office for 2 years.

DISQUALIFICATION

Any person who falls under anyone of the following category is

disqualified for membership of the House of Lords,

(i) The person is an alien and not a citizen of Britain.

(ii) The person is less than 21 years of age according to Standing
Order no. 2.
(iii) He is an un-discharged bankrupt.
(iv) He is convicted of treason-until sentence is completed or
pardon is granted, according to Forfeiture Act (1870)

GENERAL PROCEDURE WITHIN THE HOUSE

(i) Total membership. The total number of members of the

House of Lords is 704. This number has reduced over the
years as the increase in popularity of House of Commons.

(ii) Quorum. The minimum number of members required by

House of Lords to begin its proceedings is 3, in other words
the quorum of the House is 3.

(iii) Average attendance. The average attendance of the

members of House of Lords per session during 2002; 2003
was 362.

(iv) Leave of absence. A member of the House of Lords is

expected to attend regularly but may obtain leave of absence
according to Standing Order no.20. Once granted, the
member is expected not to attend sittings of the House. If the
member wishes to attend before the leave period ends, they
should give one month's notice

PRIVILEGES
 [23]

The Parliamentary Privileges Acts (1701 &1704) provides

privileges to both the Houses and the members of the House, which are
as follows.

A. Privileges of the house. These privileges are available to

the House of Lords in total are exercised as a chamber by the
House are,

(i) Defines its own composition. House of Lords defines its

own composition. The number of peers, law lords, spiritual
lords etc. is at the discretion of the House. The House also
determines that whether a person is capable enough for its
membership or not. The House has a Committee of Privileges,
which scrutinizes the abilities of persons for the membership
of the House. And this committee has made 16 peers and 4
law lords It also has the power to disqualify any member.

(ii) Determines its own proceedings. House of Lords

determines its proceedings, it decides its own forum Though
a quorum of 3 is required to begin a session but the House
makes sure that a reasonable attendance is there in the
House during the proceedings of a session If there is less
attendance then the House devises methods to make the
attendance better.

(iii) Punishment and contempt. The House determines the

procedure of punishment and contempt in case a member of
the House is obstructed from attending the session of the
House, or any derogatory material is published against the
House, or if there is some disorderly behaviour on part of
some member. In either of the cases the decision rests at the
discretion of the House.

(iv) Summoning a judge. The House also enjoys the privilege of

summoning any judge for explaining any law. It can also
summon a judge for assisting them in a judicial matter And
the judge summoned has to respond to the House.

B. Personal privileges. The privileges that available to the

members of the House of Lords are as follows, are

(i) Freedom of speech. The members of the House have a

freedom of speech The British nation highly regards the
 [24]

opinions of the members of House of Lords Though they have

the privilege of freedom of speech yet this freedom has to be
identified with limitation and responsibility.

(ii) Freedom from arrest. The members of House of Lords

cannot be arrested in civil matters, whereas in criminal
matters they can be arrested in treason and felony But even
in criminal matters they cannot be arrested 40 days before
and 40 days after the session in accordance with the
Parliamentary Privileges Act (1704), which states that, "Every
peer whether he is a Lord or not is sacred and inviolable"

(iii) Access to the monarch. The members of the House also

enjoy the privilege of meeting the Monarch directly, this is a
privilege that the members of House of Commons do not
enjoy The members of House of Lords can advice the
Monarch directly

FUNCTIONS OF HOUSE OF LORDS

Till the 11 century the Queen, House of Lords and House of

Commons made laws but later this power shifted in the hands of the two
Houses Since 1708 no king or Queen has refused a bill. After the
strengthening of House of Commons, the powers of House of Lords
reduced further Parliamentary Act (1911) made the powers of both the
Houses equal but Parliamentary Act (1949) gave maximum powers to
House of Commons and left House of Commons with very nominal
powers. The functions of House of Lords are as follows.

(1) Revision of bills. House of Lords is a composition of the

cream of the British Society, they are experts of various fields.
Whenever a bill passed by the House of Commons comes for
review in House of Lords, all the members of the House review
it as their opinions are respected.

(2) Delay in legislation. House of Lord delays a bill so that they

can form a public opinion and see how people respond to it. The
House can delay a bill for 2 years according to Parliamentary
Act (1911) but according to Parliamentary Act (1949) this delay
has been reduced to 1year.
 [25]

(3) Financial legislature. House of Lords does not have any

powers relating to financial matters All financial bills originate
in House of Commons. Matters of budget, tariffs, duties etc are
discussed in House of Commons. Whenever a financial bill
comes to House of Lords they can delay it for 6 months in
accordance with Parliamentary Act (1911) but according to
Parliamentary Act (1949) a financial bill can be delayed only for
1 month only.

(4) Control over executive. House of Lords maintains a check

on the working of the executive and his cabinet Certain
members of the House of Lords attend the session of House of
Commons They allowed to criticize the working of the cabinet.
House of Lords also checks that no vindictive action takes place
between the government and the opposition.

(5) Highest court of appeal. House of Lords performs judicial

functions in the shape of being the highest court of appeal. It
applies appellate and original jurisdiction under Appellate
Jurisdiction (1876) and Criminal Jurisdiction (1907) for civil and
criminal purposes respectively It is the first and final court of
appeal regarding cases involving Lords under Criminal
Jurisdiction Act (1948) whereas it cannot be entertained as a
court of first instance in civil matters and this principle was laid
down in Skinner vs. East India Company (1666)
........
 [26]

HOUSE OF COMMONS
In the politics of the United Kingdom, House of Commons is purely
an elected House of the parliament. It is the lower house and it
completes the bicameral nature of the British Parliament. It is the
dominant and most popular chamber in the British society. It examines
all proposals for new laws, scrutinizes government policies and
administration, and debates on major issues of the country.

GENERAL HISTORICAL BACKGROUND

Historically in accordance with the years of formation, House of

Commons is the least experienced of the three elements of the British
Parliament. The idea of a lower house was conceived in the era of
Edward 1 in 1275, but it came into practical form in the 13th century.
The formation of House of Commons was a social phenomenon and was a
result of the racial division in Britain.

BASIS OF REPRESENTATION

House of Commons has a representative character. Initially people

who were not barons or peers were allowed by the King to sit in the
House; these were mostly knights and other dignitaries of society in the
14th century nominations for this house were finished and it became an
election-based house. Representation is based on certain principles and
these are:
 [27]

(i) Democracy. Rise in the importance of democracy made the

people of the United Kingdom aware of their right to vote, their
thoughts and ideas regarding the government.

(ii) Elections. The process of elections allows the people of United

Kingdom to declare their opinions and elect their
representatives in the British Parliament.

(iii) Universal adult suffrage. Universal adult suffrage provides the

people of Britain the right to vote. It also tells that people who
are 18 years of age and above have the right to vote in the
elections.

(iv) Boundary commissions. There are four permanent

independent Boundary Commissions in the United Kingdom.
They reviews roughly once a decade that whether a constituency
needs to be increased or decreased and provide their
suggestions to the Home Secretary.

LAWS REGULATING THE CONDUCT OF HOUSE OF COMMONS

There are certain laws which are required for the administration of
the conduct of the House of Commons. These laws are 4 in number and
they are.

(i) Reforms Act (1832)

(ii) Reforms Act (1867)
(iii) Reforms Act (1918)
(iv) Reforms Act (1928)

ELECTIONS OF THE HOUSE OF COMMONS

House of Commons is an 'Elected House' and the provisions that

regulate the elections are;

(i) Representation of People's Act (1983)

(ii) Representation of People's Act (1985)

QUALIFICATION FOR HOUSE OF COMMONS

The qualifications required to be fulfilled by a candidate for the

elections of the House of Commons are as follows:
 [28]

i. He should be a citizen of Britain.

ii. He should not be less than 21 years of age.
iii. He should not be disqualified by any law or by court (in accordance
with the Treason Act).
iv. Period of residence in the constituency he wishes to cast his vote
should not be less than 3 months.

DISQUALIFICATION FROM HOUSE OF COMMONS

Disqualification from the membership of House of Commons can be

general or / specific. Any person who falls under anyone of the following
categories is disqualified from membership of the House of Commons.

GENERAL DISQUALIFICATION

Generally a member is disqualified on these grounds:

(i) If he is less than 21 years of age.

(ii) If he is an alien and not a citizen of Britain.
(iii) If he is a peer (unless there is a disclaimer under the Peerage
Act 1963).
(iv) If he is bankrupt until discharged (Insolvency Act 1986)
(v) If he is guilty of treason (until sentence completed or pardon
granted).
(vi) If he is a person of unsound mind (Mental Health Act 1983).

SPECIFIC DISQUALIFICATION

Specifically a member is disqualified under House of Commons

Disqualification Act (1975) on these grounds,

(i) If he is a judicial officer (but not a magistrate).

(ii) If he is a civil servant, member of the armed forces and the
police.
(iii) If he is a member of any legislature outside the Commonwealth.
(iv) If he is a member of a board, administrative bodies, chairman of
any public authority.
(v) If he is a steward of the Chiltern Hundreds (under section 4 of
the House of Commons Disqualification Act (1975)

CONSTITUENCIES

The country is divided into constituencies by the four Boundary

Commissions for England and Wales, for Scotland, and for Northern
 [29]

Ireland. On average each MP represents 69,281 people in England, but

fewer in Scotland, Wales, and Northern Ireland, although there is
considerable variation in the population and, size of constituencies. The
last general review increased the number of MPs from 651 (1992) to 659
(1997). After the next review the Boundary Commissions will be
absorbed into the Electoral Commission established in 2000, following
the creation of the Scottish Parliament in 1999.

GENERAL ELECTIONS

Whenever the Parliament is dissolved by the monarch, an election

is due. Each constituency returns one member Based on the First-past-
the-post election system. A citizen of the United Kingdom, Republic of
Ireland, or Commonwealth nation over the age of twenty-one may be
elected. The party winning a majority in the House forms a Government,
with its leader becoming Prime age Minister.

BY-ELECTIONS

Between General Elections vacancies often occur. These are filled

through. By-elections within the constituency whose seat is vacant These
elections are held with the consent of the Crown Vacancies occur for
several reasons, but resignation is not one of them as members of
Parliament are not permitted to resign The reasons for vacancies may be:

(i) If a member is appointed to a Crown office, such as a judicial

office.
(ii) If a member is detained for mental disorder.
(iii) If a member is declared bankrupt by the court.
(iv) If a members dies or is elevated to the peerage and appointment
to the House of Lords.

GENERAL PROCEDURE WITHIN THE HOUSE

(i) Total membership. The total number of seats in House of

Commons is 650. The number of seats alters according to the
need.
 [30]

(ii) Quorum. The minimum number of members required by House

of Commons to begin its proceedings is 40, in other words the
quorum of the House is 40.

(iii) Term of the house. The term of the House of Commons is 5

years, however, it can be terminated before 5 years by the
monarch on the advise of the Prime Minister. The term can also
be increased if required.

PRIVILEGES

The Parliamentary Privileges Acts (1701 &1704) provide privileges

to both the House and the members of the House, which are as follows,

(1) Privileges of the house. These privileges are available to

the House of Commons in total are exercised as a chamber by the
House are:

(i) Composition. House of Commons defines its own

composition. This composition largely depends on the reports
submitted by the Boundary Commission to the Home
secretary. It is at the discretion of the House to determine
that whether a person is capable enough for its membership
or not. It also has the power to disqualify any member.

(ii) Procedure. House of Commons determines its proceedings;

it decides its own forum. Though a quorum of 40 is required
to begin a session but the House makes sure that a
reasonable attendance is there in the House during the
proceedings of a session. If there is less attendance then the
House devises methods to make the better.

(iii) Punishment and contempt. The House determines the

procedure of punishment and contempt in case a member of
the House is obstructed from attending the session of the
House, or any derogatory material is published against the
House, or if there is some disorderly behaviour on part of
some member. In either of the cases the House determines
the punishment.

(2) Personal privileges. The privileges that are available to the

members of the House of Commons are as follows,
 [31]

(i) Freedom of speech. The members of the House have the

privilege of freedom of speech through which they have the
power to express their views on issues that arise in the
House. Though they have the privilege of freedom of speech
yet this freedom has to be identified with limitation and
responsibility.

(ii) Freedom from arrest. The members of House of Commons

cannot be arrested in civil matters, whereas in criminal
matters they can be arrested in matters of treason and
felony. But even in criminal matters they cannot be arrested
40 days before and 40 days after the session in accordance
with the Parliamentary Privileges Act (1704).

(iii) Access to the monarch. The members of the House of

Commons do not enjoy the privilege of direct access to the
Monarch; they can only suggest or advise the Monarch
through the Prime Minister, who is the only person of the
House who can directly meet the Monarch.

(iv) Right of regulate its own proceedings. The house can

interpret a statute in any way it likes within its precincts to
regulate its own proceedings. Even if the interpretation is
erroneous the court cannot interfere with it.

(v) Right of regulate its own constitution. The house has the
right to regulate its own constitution. It embraces the right to
determine the legal qualification of the members, the right to
eject a member right to settle disputed election etc.

(vi) Right to exclude strangers. The house enjoys the right to

exclude strangers.

(vii) Right to prohibit publication. The house also enjoys the

right to prohibit the publication of its own debate.

(viii) Right to commit for breach of its privilege. The house

has right to punish those whose commit a breach of its
privileges, or who are guilty of the contempt of the house.

(ix) Right to enforce its privileges. The house enjoys the right
to enforce its privileges.
 [32]

POWERS AND FUNCTIONS OF HOUSE OF COMMONS

The main function and powers of the house of commons may be

explained as follow.

1) Legislative. The house of common is the supreme law making

authority in the country. Any law can be made amended, or
repealed by it, be it an ordinary law or constitutional law. In fact its
power in law making is absolute and no court of England can
challenge the validity of any law passed by the House of Course,
any bill passed by the house of common does not automatically
become law. It requires the approval of House of Lords and assent
of monarch.

2) Control over the finance of the state. The house of commons

wields great authority over the nation's purse. It was through the
control of nation's purse that the House of Commons arose to
supremacy. According to Act of 1911 all money bills must originate
in the House of Commons. In short the power of the House of
Commons over money bill is complete and decisive.

3) Control over executive. The third great function of House of

Commons is to control the executive. Great Britain has as
parliamentary form of government and so the executive is
responsible to the popular chamber of parliament. The cabinet
continues in office so long as it enjoys the confidence of the house.

4) Redress of grievances. It is the time honored and cherished

function of house of common to call attention to abuses, redress of
public grievances.

5) Deliberative functions. The House of Commons act as debating

assembly for viewing the opinion of various parties on important
public question. In this way the public is kept informed and
government is kept in touch with different cross currents of
opinions of the country. This especially important with regard to
foreign affairs.
……
 [33]

PARLIAMENARY SOVEREIGNTY
In British system, parliament stand supreme and sovereign. All the
legislative powers are enjoyed by the parliament alone. These powers of
British parliament increased tremendously after the glorious violation of
1688.

DEFINITION

Parliamentary sovereignty. Dicey defines;

’’The principle of Parliamentary sovereignty means neither

more nor less than this, namely that Parliament has, under
the English Constitution, the right to make or unmake any
law; and, further, that no person or body is recognized by the
law of England as having the right to override or set aside
the legislation of Parliament.’’

LEGISLATIVE SOVEREIGNTY CLAIMANTS

Claims have been put forth on behalf of different bodies to legislature.

Previous to the Parliament, the legislative Sovereignty claimants were;

1. Monarch (King/Queen) 2. Judiciary

(1) Monarch (King/Queen). From the 9th to the 17th century for
almost 800 years laws for England were made by the Monarch as
his judicial prerogatives I were not defined. Till 1295 all authority
vested in the King-in-Council which had the right to make rules,
called Orders-in-Council. In 1539, Henry VIII made the Parliament
pass the Statute of Proclamation, which gave him the power to
make laws for England without recourse to the Parliament. By this
law the King was making laws in two ways.

(i) By Statutes (by the assistance of Parliament)

 [34]

(ii) By Ordinances

From 1539 to 1688' most of the laws were made in shape of

ordinances but afterwards the title legislative authority shifted to
the Parliament. Today, the King makes use of Proclamation when
he wishes to promote the executive will to the public while
summoning or dissolving the Parliament.

(2) Judiciary. Common law courts tried to make themselves as

sovereign as par their decision in the Dr. Bonham's Case (1604)
creating a check on the Parliament "Any act of Parliament that is
against common right, reason or is incapable to perform is void.
The judiciary withdrew as the title they were trying to assume
required absolute powers but judiciary in Britain has restricted
powers. Moreover, judiciary can only make laws when an issue
comes in front of them in shape of a case, and even in a case the
issues are discussed in the light of laws that are related to it.

DEVELOPMENT OF PARLIAMENT AS SOVEREIGN

Parliament was initially known as the Legislative Sovereignty and it was

in the Reforms Act 1832 where Parliament assumed the title of
Parliamentary Sovereignty. Parliament started to exert its self in the 17
century and assumed sovereignty by defining the powers of the King as,

(i) Case of proclamation (1611). Parliament defined the law

making powers of King and took away his ordinary law making
powers by saying, "The prerogatives of King are under some law
and Parliament alone has the power to amend or alter those
laws.

(ii) Ship money case (1637). Through the decision of this case
financial matters were also taken away from him, "The King will
not levy special taxes without the consent of the Parliament.

(iii) Entick vs. Carrington. Suspension powers of law were also

taken away from the King, "The King shall not suspend
application of law that is meant for the general public welfare."

(iv) Bill of rights (1688). It was actually through Bill of Rights that
the Parliament started to assume itself as a sovereign body, this
bill declared:
 [35]

a. Parliament restricts King to make laws by ordinances or

proclamations.
b. King cannot suspend any law without consent of the
Parliament.
c. The King cannot pardon anyone without Consent of the
Parliament.

ASPECTS OF PARLIAMENTARY SOVEREIGNTY

Dicey says that,

"A law made by the Parliament is any rule which will be enforced by the
courts." He further points out that Parliamentary Sovereignty has two
aspects and these are;

(1) Positive aspect. The positive aspect may be any act of

Parliament, or any part of an act of Parliament, which makes a new
law, or repeals or modifies an existing law, will be obeyed by the
courts. It has absolute and unlimited legislative authority.

(2) Negative aspect. The negative aspect of Parliamentary

Sovereignty can be that there is no person or body of persons who
can, under the English constitution, make rules which override or
derogate from an Act of Parliament, or which will be enforced by
the courts in contravention of an Act of Parliament. The parliament
has no legislative rival.

CORE PRINCIPLES SOVEREIGNTY OF PARLIAMENTARY

Blackstone says,

"(Parliament) can do everything that is not naturally impossible; and

therefore some have not scrupled to call its power. by a figure rather too
bold, the omnipotence of Parliament." The core principles governing
Parliamentary Sovereignty are as under:

(i) It has the fight to make, unmake or alter any law, fundamental
or any other law because there is no distinction between
fundamental and ordinary law. It can do whatever it likes except
what is naturally impossible.
(ii) No person or body of persons is recognized by law to override
legislation of Parliament i.e. no authority has the right to nullify
the act of Parliament.
 [36]

(iii) The authority of the Parliament extends to every part of British

Dominions.

EXTENSION TO SUPREMACY OF PARLIAMENT

British Judiciary has played as vital role in the extension of the

supremacy of its Parliament by setting various precedents in judicial
decisions, some of them are as follows:

(i) Case of sheriff of Middlesex (1840). In this case the sheriff of

Middlesex was held for contempt of Parliament and therefore
imprisoned, he filed-an appeal to the courts that he should be
released on the writ of Habeas Corpus but the court held that.
"The courts cannot interfere with the matters and decisions of
the Parliament and that it had complete control over its
proceedings."

(ii) Bradlaugh vs. Gossett (1884). An M.P. being an atheist was

not allowed attending Parliamentary proceedings even after he
had affirmed that he would not disturb its proceedings. He filed
a suit and pleaded an injunction to restrain the defendant from
enforcing the order but the court said that "The House of
Commons is not subject to the control of her Majesty's courts in
its administration of that part of statute law which has had
relation to its own proceedings."

(iii) LEE vs. Torrington Railway. It was held that. "Acts of

Parliament are laws of the land and we do not sit as a court of
appeal from the Parliament."

INSTANCES OF PARLIAMENTARY SOVEREIGNTY

Several instances of the unlimited Parliamentary Sovereignty can

be cited, some of them are as follows,

(i) Act of settlement (1700). It was through this Act that the
Parliament changed the succession to the throne and the
Monarch was to occupy the throne under a parliamentary title.
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(ii) Septennial Act (1716). The Parliament increased its term from
3 years to 6 years through the enactment of this Act.

(iii) Acts of union. By the passing of the Act of Union with Scotland
(1707) and Act of Union with Ireland (1800). Scotland and
Ireland became parts of the United Kingdom.

(iv) Parliament act (1911). This act has considerable importance

in British Legislative History; as it curtailed the powers of House
of Lords in financial and ordinary bill matters. This Act also
authorized House of Commons to ask for the direct assent of the
King for a public bill approval. It also reduced the life of House
of Commons from 7 to 5 years.

(v) Life peerage act (1958). This Act changed the age old rule
regarding peers i.e. appointment of any person as peer required
the proof of his ability to be eligible for the membership.

LIMITATIONS ON PARLIAMENTARY SOVEREIGNTY

The British Parliament has imposed certain restrictions or

limitations on it and these.

(1) Subject matter. Through Union with Scotland Act (1707)

the British Parliament accepted that it would, not deal with certain
personal matters like religion, as the Church of Scotland is
precipitant and that of England is protestant.

(2) Independence. Through Statute of West Minister the

Parliament limited itself that it would not make rules or laws for
another parliament. It further established that one sovereign could
not control another sovereign.

(3) Procedure. Through Parliament Act (1911) and Parliament

Act (1949) the Parliament is restricting its own House in financial
and other bill matters etc.

(4) International law. The British Parliament cannot make laws

that are in contradiction with any International law. The same
principle was established in Dilates vs. Common Wealth (1946).
 [38]

(5) Public opinion. The power of Parliament comes down before

the force of public opinion. Therefore the Acts of Parliament
against public opinion is regarded as void, though a Parliament has
the privilege to do so.

(6) Pressure groups. Parliament does not go against pressure

groups as these pressure groups support the government in their
elections that being the reasons mostly the assents to the demands
of pressure groups.

PRESENT DAY PROSPECTIVE

The British Parliament is an age old institute and it has associated

with it Britain's hereditary history but in this age of fast moving world
the concepts in Britain are also changing. Today they are adopting the
doctrines of Separation of Powers and Checks and Balances by
separating judiciary from House of Lords and by moving towards a more
democratic system in place of the existing traditional system.

COMPARATIVE STUDY

In America the counterpart, of Parliamentary Sovereignty is the

Sovereignty of the Constitution i.e. like Parliament in Britain, the
American Constitution serves as a yardstick for every law or Act passed
by the Congress. In Britain legislature is supreme over judiciary but in
America the judiciary is supreme over legislature and this is because of
the power of judicial review.

......

PRIME MINISTER
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The cabinet is the real ruler of Britain and Prime Minister is key
man of it. He holds the most important position in the ministry. He is
virtually head of the administration while other ministers serve at his
pleasure. He is the repository of supreme executive authority and also
enjoys effective control over legislation as the leader of the house.

POSITION OF PRIME MINISTER

The Prime Minister holds the most important position in the
parliament and government. Basically the whole machinery of the
government revolves around him.
Dr. Jenning says: "Prime Minister is the sun around which the
planet revolvers".
John Morley says: "British Prime Minister is the key stone of
cabinet arch".

ORIGIN
The office of Prime Minister like other offices has an evolutionary
growth. Informally this office originated during Hanoverians period and
Robert Walpole was the first Prime Minister in 1721. But it was legally
recognized after Ministers of the Crown Act 1937 (under which the
salary of the Prime Minister was fixed).
(a) Privy Council. In the 18th century before the evolution of the
cabinet, the Privy Council, or rather the king-in-council was the
supreme executive body in the state. But as the cabinet system
developed, the Privy Council has become less prominent. Many of
its function have been transferred to the cabinet.

(b) Its membership. At present the Privy Council consists of

about 300 members.
Its members are the Cabinet Ministers, past and present holders
of important posts.
The members of the Privy Council are known as privy councilors.

PRESENT POSITION OF PRIME MINISTER

Prime Minister is literally the most important and dominant person

in the British system of government.

Therefore those persons are elected as Prime Minister who has

intelligence is also of great importance. The Prime Minister should be
good debator administrator. He also has had active and lengthy political
career.
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(a) Appointment of Prime Minister. The two most important

factors in choosing the Prime Minister.
i. Member of his party.
ii. Voters in the country.

(b) Member of his party. There are two parties in the England.
Labour party and Conservative party.
Each party elects its leader on the basis of his competence and
role in the party's activities.

(c) Appointment/Summoning by Queen. Finally the last stage

is where the Queen Summons the leader of the majority party in
the House of Commons and appoints him as the Prime Minister.
He is the potential Prime Minister since he become a Prime
Minister of his party would become the majority party or if a
vote of no confidence is passed against the ruling, cabinet the
queen will unite the opposite party to form the cabinet.

(d) Tenure. The tenure of a Prime Minister is usually for five

years along with tenure or duration of the House of Commons.
(e) Salary. In 1975, the Ministerial and other salaries Act was
passed which provided a salary of 75,440 pounds.

POWERS AND FUNCTIONS OF PRIME MINISTER

Following are the some main and important functions and powers
of the Prime Minister of the British.

(1) Cabinet Chief.

(a) Chairman of the cabinet.
(b)Supervises and co-ordinates the work of other ministers.
(c) Resolves differences among ministers.
(d)Has the authority to take decisions either independently or in
consultation with other members.
(e) Manipulate his position and authority to seek approval on a
certain matter by threats of resignation since the fall of Prime
Minister means the fall of the whole cabinet.

(2) Leader of the house. Leader of the majority party in the

House of Commons.
(a) He issues important policy statements.
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(b)Remains in close contact with the opposite leaders.

(c) It is on the people's advice that the Queen;
 Summons.
 Prorogues.
 Dissolve the parliament.

Has the privilege to speak longer during the deliberation.

All members look towards him for guidance.

(3) National leader. Not only considered a leader in the house

but also a national leader. Gives his opinion on important national
issues. Prime Minister's office is an effective measure of moulding
public opinion.

(4) Advisor to sovereign. When crown addresses parliament

Prime Minister writes the speech. Advises her to dissolve or
summon the parliament. Queen grants honors on his advice.

(5) Link between Crown and Cabinet. Keeps crown updated.

(6) Powers of appointment. Advises and recommend the

monarch on the appointment of:
i. Civil officers.
ii. Military officers.
iii. Ambassadors.
iv. High commissioners
v. Honors.
vi. Other privileges.
vii. Power of removal.
(7) Foreign affairs and defence. His opinion carries great
weight in foreign affairs. Secretary of foreign affairs remain in
constant touch with Prime Minister. Represents the country on
important international conference. Heads the conference of Prime
Ministers of common wealth countries.

(8) Position of strength: Jennings says: "Prime Minister is the

key stone of the constitution".

SOURCES OF HIS STRENGTH. Following are the sources of Prime

Minister's strength.
I. His patronage. Has great power of appointments and
removals. Granting of powers and honours. Grants
knighthood.
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II. Party whips. Has several party whips. They keep him
informed of the opinion of members of parliament.
III. Control over the civil services. He is the head of civil
services. Whole government operates at his command.
Everyone works under his supervisions top ministers of civil
servant.
IV. Influence over media. He exercises great influence over the
media that is why he can change public opinion about his
policies.
V. Right to choose date of elections. Chooses the date of
election i.e., dissolve parliament and have polls.

........

RULE OF LAW
Rule of law is one of the unique characteristic of the English
Constitution. It means that it is the law of the England that rules of
country and not the arbitrary will of any individual. Law is supreme
overall no one can claim exemption or immunity from it.

MEANING OF RULE OF LAW

Lord Hewart says that,

"Rule of law means the supremacy or dominance of law, as

distinguished from mere arbitrariness, or from somewhat
alternative mode, which is not law, of determining or disposing of
the rights of individuals.”

CONCEPT OF RULE OF LAW

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Law cannot be stagnant; it is variable and multidimensional. It is

not possible to give a precise definition of law therefore concepts
associated to it are also not definable like rule of law. Rule of law is a
combination of two things.

(i) Supremacy of law

(ii) General observance or obedience

These two things do not form the concept of rule of law they are
only dimensions to it.

REQUISITES OF RULE OF LAW

(1)Laws should be prospective, open and clear.

(2)Laws should be relatively stable.
(3)Independence of judiciary must be guaranteed.
(4)Principles of natural justice must be observed.

RULE OF LAW IN THE BRITISH SOCIETY

1. Practical Application
i. Imported concept. Not an originated concept rather it is an
imported concept from the Romans in to the English system.
ii. Historical development.
a) Concept in the 9th Century.
i. Concept of law is Divine law i.e. law is that
provided by God.
ii. As the concept was of Divine Law so church was
the best interpreter of it.
iii. This made the institution of church strong.

b) Concept in the 10th century.

Bracton; “Law is supreme irrespective of the fact that it

man made or God made law."

Concept floated but was not widely accepted.

 From 9 to the 15th century the concept of Divine Law

prevailed.

c) Concept in the 16th Century.

 Rise of democracy.
 Rule should be of departments who represent
people.
 [44]

 Statute of Proclamation (1539). Henry VIII made

the Parliament pass this Statute so that he could
make law without the recourse, to the parliament
but in fact it was a genuine effort by the King and
the Parliament to deal with the problem of
proclamations.

d) Concept in the 17th Century.

17th century marked major political changes, which
ultimately led to the constitutional changes:
 Calvin Case (1609)
It was held that every Scot born after 1603 was
considered as English and vice versa.

 Ship Money Case (1637)

"The King shall not levy special taxes without the
consent of the parliament.

 Bill of Rights (1688)

"Law alone is to determine the conduct of the
Sovereign and his subjects by Parliament."
2. Theoretical application
DICEY
Dicey had made the first genuine effort to define rule of law in his
book "Introduction to the Study of Law of the Constitution.”
He also could not give a definition rather he ended up by
giving three attributes of Rule of Law.

I. Absence of arbitrary powers on the part of the

government. No man is punishable or can be lawfully made to
suffer in body or goods except for the distinct breach of law
established in the ordinary legal manner before the ordinary
counts of lands. He was of the view that law alone should be the
arbitrator and nothing should be beyond it.
Excludes the existence of arbitrary powers of prerogative or
even of wide discretionary authority on the part of the
government.

II. Equality of all persons before law

He was of the view
i. Even government is subject to the same law which an
ordinary person follows.
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ii. The courts will be same for all irrespective of the status of
the person, unlike that of France where there are
Administrative Courts for the diplomats.

Every citizen ranging from the Prime Minister to a humble

peasant is under the same responsibility for every act done
by him without lawful justification.

Case law: In Entide v/s Carrinaton. The King's messenger

was sued for illegally breaking into the house of the plaintiff
and seizing his papers.

III. Protection of fundamental rights

He observed that-the application of the above two requisites
would result in the protection of the fundamental rights of the
people.
This protection is guaranteed by the courts.
Ashby vs. White (1703), protection of right to vote.
Donoghue vs. Stevenson (1932), protection of the right to
life.

INSTANCES OF RULE OF LAW

 Right to personal freedom

 Right to freedom of decision
 Right to public meeting

EXCEPTIONS TO THE PRINCIPLE OF RULE OF LAW

(i) The crown, which in practice means government departments,

enjoy complete immunity from process of law. Particularity from
tortuous liability.

(ii) Government servants enjoys special privileges under the public

authorities protection Act, 1893, the proceedings against public
servants become time-barred if not started within six months.

(iii) Foreign states, their rules and diplomatic agents enjoy complete
immunity, both personal and proprietary from legal action.

(iv) Parliament may at any time suspend withdrawn any right of the
subjects. During war time parliament imposes a member of
restriction on individual liberty under the Defence of Realm
Acts.
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(v) No civil suit may be brought against a trade union under the
Trade Disputes Act of 1906.

(vi) The Home Secretary enjoy the privileges of opening and

detaining letters.

(vii) The judges enjoys complete immunity in regards towards spoken

and acts done by them in cause of judicial proceeding.

(viii) Delegated legislation and quasi-judicial powers of administrative

bodies area violation of the doctrine of separation of powers and
are likely to make the executive dictatorial in charaction.

MODERN DAY POSITION

a) Disputes will be solved by recoursing to law.

b) Every governmental action must have a basis in law.
c) Every individual brought before a court will be dealt with natural
justice i.e.
i. No one is to be condemned unheard.
ii. No one is to be a judge in his own cause.
iii. There must be reason and logic behind decisions

CASE LAW STUDY

Entick vs Carrington. "King shall not suspend application of law

that is meant for the general public welfare.

Governor Wall's Case. "A colonial Governor was held liable for an
illegal act in the same manner as an ordinary person.

5 Knights Case. "Law alone is the organ through which the

powers of the King are to be expressed by the Parliament."

……………………………
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