Derecho constitucional
Soberanía parlamentaria, estado de derecho, separación de poderes y devolución.
Introducción
El derecho constitucional establece el marco de gobierno del Reino Unido, incluyendo la soberanía parlamentaria y el estado de derecho.
Principios fundamentales
Parliamentary Sovereignty — Parliament can make or unmake any law; no body can override or set aside an Act of Parliament; and no Parliament can bind its successors (A.V. Dicey). This remains the dominant constitutional doctrine, though its absolute nature has been questioned (R (Jackson) v Attorney General [2005]; R (Miller) v Secretary of State [2017]).
The Rule of Law — Everyone, including the government, is subject to the law. A.V. Dicey identified three elements: no punishment without law, equality before the law, and constitutional rights derived from judicial decisions. Lord Bingham's eight principles in 'The Rule of Law' (2010) provide a modern articulation.
Separation of Powers — The three branches of government (legislature, executive, judiciary) should be institutionally and functionally separate. The Constitutional Reform Act 2005 reformed the role of the Lord Chancellor, created the Supreme Court (separated from the House of Lords), and established the Judicial Appointments Commission.
Constitutional Conventions — Non-legal rules that regulate the conduct of those in public office. Key conventions include: the Salisbury Convention (Lords do not block manifesto commitments), collective ministerial responsibility, individual ministerial responsibility, and the Sewel Convention (Parliament will not normally legislate on devolved matters without consent).
Royal Prerogative — Residual powers of the Crown exercised by ministers, including foreign affairs, defence, mercy, and (formerly) prorogation of Parliament. Prerogative powers are subject to judicial review (GCHQ case [1985]; R (Miller) v The Prime Minister [2019] — prorogation was justiciable and unlawful).
Devolution — The Scotland Act 1998, Government of Wales Act 2006, and Northern Ireland Act 1998 transferred legislative competence to devolved legislatures. The UK Parliament retains sovereignty but by convention does not legislate on devolved matters without consent (the Sewel Convention, though not legally enforceable — R (Miller) v Secretary of State [2017]).
Constitutional Statutes — Certain Acts have constitutional significance and cannot be impliedly repealed (Thoburn v Sunderland City Council [2002] — the 'metric martyrs' case). These include Magna Carta, the Bill of Rights 1689, the European Communities Act 1972, the HRA 1998, and the Constitutional Reform Act 2005.
Sovereignty of Parliament vs. Rule of Law — The tension between parliamentary sovereignty and the rule of law remains a live debate. Some judges have suggested that fundamental rights might limit parliamentary sovereignty in extreme cases (obiter in R (Jackson) [2005] per Lord Steyn; AXA General Insurance v Lord Advocate [2011]).
Leyes clave
Constitutional Reform Act 2005
Human Rights Act 1998
Parliament Acts 1911 and 1949
Scotland Act 1998
Fixed-term Parliaments Act 2011 (repealed by Dissolution and Calling of Parliament Act 2022)
Casos principales
R (Jackson) v Attorney General
[2005] UKHL 56
Thoburn v Sunderland City Council
[2002] EWHC 195 (Admin)
Escenarios comunes
Government tries to change the law without an Act of Parliament
Under the principle of parliamentary sovereignty, primary legislation can only be made by Parliament (the Crown-in-Parliament). The executive cannot legislate by prerogative alone (Case of Proclamations [1611]). Henry VIII clauses (allowing ministers to amend primary legislation by statutory instrument) are subject to parliamentary scrutiny and can be challenged for exceeding the scope of the parent Act.
Prime Minister advises the Queen to prorogue Parliament
Following R (Miller) v The Prime Minister [2019], the Supreme Court held that prorogation is justiciable and will be unlawful if it frustrates Parliament's ability to carry out its constitutional functions without reasonable justification. The court unanimously declared the 2019 prorogation void and of no effect.
Scottish Parliament passes legislation beyond its competence
Under s.29 Scotland Act 1998, an Act of the Scottish Parliament is outside competence if it relates to reserved matters, is incompatible with Convention rights, or breaches EU law constraints. Such legislation is 'not law' (s.29(1)). Challenges are heard by the Supreme Court under the devolution jurisdiction.
Government refuses to comply with a court order
The rule of law requires that the government obeys the law and court orders. Refusal to comply would be a contempt of court and would undermine the constitutional principle that the executive is subject to law (Entick v Carrington [1765]; M v Home Office [1994] — ministers can be found in contempt).