Legal studies

The concepts of parliamentary sovereignty and a written constitution are fundamentally

incompatible in both theory and practice. To what extent do you agree with this statement?
On the one hand I would not agree that parliamentary Sovereignty and a written constitution are
fundamentally compatible in theory due to the fact by definition they contradict each other in many
different ways, as a written constitution is a statement of laws by which a country must abide by,
parliamentary sovereignty is defined by the concept of a legislative body that has absolute
sovereignty over all other powers within a country. Hence in theory they cannot work, The
Advantages of Parliamentary sovereignty are vast, in my opinion the main advantage being flexibility
for Parliament and judicial powers when it comes to passing new legislation. Parliamentary
sovereignty enables the executive bodies to be able to change constitutional laws with relative ease
compared with a written constitution as the process does not require the same amount of
bureaucracy or red tape, whereas with a written constitution it requires a number of skilled and
qualified individuals and usually takes a long period of time.
In theory when discussing parliamentary sovereignty, parliamentary law is the highest form of law
above the rule of common law, ie Parliament has the ability to make or undo any law with (in basic
terms) a majority in the house of commons, whereas with a written constitution it would not be
possible to do so as the law may contradict the written constitution, such as in the USA some
Executives are trying to abolish gun laws, whereas in the constitution it is written that all citizens
have the right to bear arms, hence the Executive powers in question in some areas have had
difficulty revoking this constitutional right. A relatively similar case in the UK may help to see how
Parliamentary Sovereignty can overturn a previous law, Edinburgh and Dalkeith Railway v Wauchope
[1842] UKHL J12,(1842) 8 ER 279 where by the owner of the land which the railway passed over was
to receive Royaltys in the private act setting up railways rights dependant on the amount of goods
and passengers that travelled over that part of the railway, this act was later reformed. Wauchope
challenged this on the grounds it affected his vested right but to no avail. In this case we can see
how Parliamentary sovereignty gives the Executive power the right to reform any previous passed
laws. Whereas if this were to happen in the USA it would have been difficult for the Executive power
to be able to reform the past law if it were to have been written in a constitution as if to do so may
have been in violation of his constitutional right. This shows by case law that parliamentary
sovereignty and a written constitution are fundamentally incompatible in theory.
Although in Practice I believe that parliamentary sovereignty and a written constitution can be
compatible but not in an obvious form, as the UK which is considered to adopt the concept of
Parliamentary Sovereignty; still has some what might be called written documents that in the UKs
history would be seen to have limited the parliaments power, since the UK joined the EU which has
a written Constitution of sorts, it may be seen that the UK Parliament is not the highest Executive
power in the UK. Debatably the European Union is the highest executive power as the UK must now
abide by any Laws passed by the EU as failure to do so could in theory result in The UK being forced
to leave this Union. Such Acts as the human rights act 1998 which forced the UK to bring The
European human rights act into domestic law (although the UK had similar laws in place some

alterations had to be made) hence this may again be seen as the EU being the highest Judicial power
in the UK. The UK also has The Magna Carta which may not be of any legal relevance in todays
courts it was a written document set out to limit the Executive powers and lay out a set of distinct
and written document of the peoples rights at that point in time, clearly courts would not lay
reference to this document in todays world, as we have arguably greatly improved our justice
system since then.
Right now in the U.K. our constitutional arrangements are continually debated in parliament (and
outside) and there are at least five areas where changes have recently arisen or are about to
happen. One is further changes to the House of Lords, and two changes in our libel laws. We have
empowered through acts of parliament in recent years (a) local government, (b) national assembly
for Wales (c) the European Human Rights Bill.
Our constitution unrefined and undefined as it may appear to be, works, and works well. To change
from this to a formal written constitution would be pointless and likely to cause a crisis in national
affairs.
It would not increase the power of the people if the U.S is anything to go by; it would probably
reduce it, make it more cumbersome and create a huge new industry called lobbying. Tony Blair
went to war with Iraq notwithstanding the wishes of the people (more than 1 million people
demonstrated against this in London), George W Bush invaded Iraq without consulting his people.
The written constitution of America was penned over 200 years ago and has had just 7 amendments
since then. This I believe is a moribund document unsuited to todays rapidly changing modern
world. Congress and corporate lobbyists rule, and in support they have the Supreme Court waiting
in the background to strike out change.
There are 3 branches of government which rarely agree and without agreement there can never be
change under the written constitution.
I believe that parliament could if it wished change or abolish the House of Lords, Abolish elections,
or declare a Republic. This may be seen as a weakness in our system.

I do not believe that it is our right to determine what future generations must do, but having a
written constitution which may prove impossible to amend is not what is needed, let future
generations (easily) make their own bed. A major problem would also be what should be in a
written constitution and what should not. Given the wide spectrum of opinion and debate in the
U.K. finding the definite answer to this would be an insurmountable problem. Would we hold a
referendum to decide on whether or not we should have a written constitution would we then (if
yes) hold a second referendum on what this constitution should contain. Should we hold bother
together? What happens if answer to 2. Is No.

On reading Richard Gordons recent book, repairing British Politics I find myself agreeing with him
in particular with regard to his comments on parliamentary sovereignty which he argues is the exact

opposite of what we need which is constitutional supremacy. Although Mr Gordon recognises the
history of parliamentary sovereignty he also sees it as the stumbling block to constitutional change.

He claims that parliamentary sovereignty is incompatible with a written constitution which would
place constraints on the power of parliament.

I do absolutely believe that no incoming government should be irrevocably bound by the acts of the
former government, and our parliamentary system enables the necessary changes to be made
swiftly.
Under the last government Gordon Brown and his Justice Secretary Jack Straw were reported to
have been working on a British Bill of Rights and responsibilities and there were suggestions that this
could lead to a written constitution. However, the present coalition has said it has no plans to adopt
a written constitution and I for one am happy with this.

I believe that parliamentary sovereignty and a written constitution are not compatible in theory, but
may be compatible in practice, although in practice it would not be in an obvious form.