THE BRITISH CONSTITUTION THE BRITISH CONSTITUTION Introduction The study of the constitution of the UK involves acquiring an understanding of a variety of historical and, legal philosophical and political factors which have, over the centuries, shaped the organisation of the State. UK appears to be almost unique in not having a constitution which is conveniently set out in a single document. Thus, if a constitution is meant as a single document or set of documents which create a set of institutions-parliaments, executive govt, head of state, courts etc. If that is what is a constitution is, then the UK does not have one. It is certainly true that is what we would normally expect a constitution to have. Note: The UK , New Zealand and Isreal are the only countries in the world which lack a written constitution (although New Zealand
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THE BRITISH CONSTITUTION THE BRITISH CONSTITUTION
Introduction
The study of the constitution of the UK involves acquiring an understanding of a variety of historical and, legal philosophical and political factors which have, over the centuries, shaped the organisation of the State. UK appears to be almost unique in not having a constitution which is conveniently set out in a single document. Thus, if a constitution is meant as a single document or set of documents which create a set of institutions-parliaments, executive govt, head of state, courts etc. If that is what is a constitution is, then the UK does not have one. It is certainly true that is what we would normally expect a constitution to have.
Note: The UK , New Zealand and Isreal are the only countries in the world which lack a written constitution (although New Zealand has rules codified in its 1990 Bill of Rights).
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Why the UK has an unwritten constitution?
Britain's largely unwritten constitution is the product of history. Most countries have experienced an event which marked a clear break with history and provided the opportunity to codify their constitutioanl arrangements. It has not been thought necessary to frame a single document which would deal with matters relating to the constitution. This has been due to the gradual development of the UK constitution and the absence of an event requiring an abrupt change in the constitution, such as a revolution, a defeat in war, or a major change in political idealogy eg the American War of Independence 1775-83 and the French Revolution 1789 gave birth to a written constitution.
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Definition of a constitution(a) Narrow/concrete definition: It is a single document containing the most
important rules of a state's constitutional law which is enacted by the legislature. Or it is a set of document containing the basic rules of a State.
Note: The problem with the above definition is that in the UK there is no single document to be pointed at and say that this is the constitution of the UK.
(b) Wide/abstract definition:
Prof. Hood Phillips defined the constitution of the State as “the laws, customs and conventions which define the composition of powers of organs of the State and regulate the relation of various State organs to one another and to the private citizens”.
Prof Wheare defined the constitution of a State as “a whole system of government of a country, the collection of rules which establish and regulate or govern the government”. (See also the definition given by Bolingbroke)
THE BRITISH CONSTITUTION THE BRITISH CONSTITUTION What are the contents of most constitutions?
* A stipulation of the powers, functions and limitations of the three organs of State i.e., the executive, legislature and judiciary;
* A stipulation of the rights and liberties citizen possess-'positive rights' i.e., rights that are given by the constitution;
* The ideology of the State i.e., unitary or federal etc;
* The constitution is usually regarded as the highest law of the land unless, like the UK there is an unwritten constitution;
* Provisions of the entrenchment of the constitution against later repeal by a mere Act of the legislature which will usually be insufficient to change the constitution unless the special procedure stipulated in the constitution is followed.
Note: The difference between an unwritten and written constitution, if there is such...are one of form, but not of substance.
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Why study the constitution/constitutional law?
* It bestows authority: Politics is pre-eminently about power. In prescribing a framework, the constitution bestows a particular form of power on certain players-legitimate power or authority.
* It represents a political prize: It is part of the political process. Although it has usually reflected change rather than caused it, those engaged in historic struggle have seen the constitution ultimate goal.
* It shapes political consciousness.
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What is the nature of the UK constitution?
Some constitutional law jurists are of the view that the UK does not have a constitution. For example, Thomas Paine had in mind when he complained that “no such thing as a constitution exists in England” & de Tocqueville remarked, rather dismissively, that in England 'there is no constitution'. The reason why they said so is because there is no single document that can be pointed at as the UK constitution. However, take note of the legal and non-legal rules forming part of the UK constitution.
The UK constitution applies throughout the UK that comprises of several countries. For example the UK is the union of England, Wales, Scotland and Northern Ireland. England, Wales and Scotland make the Great Britain and the state is usually known as “The UK of Great Britain and Northern Ireland”.
Note: Where reference is made to the UK constitution, it refers to the constitution of the UK as a whole.
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Where to find the UK's unwritten constitution?
(a) Legal Rules/Sources: Under these rules, we have statutory sources/legislation i.e., Acts of Parliament or statutes eg the Magna Carta 1215, the Bill of Rights 1689, the Settlement Act 1700, the HRA 1998 etc. We also have delegated legislation; judicial precedent; European Community law-which becomes applicable under the European Communities Act 1972 etc.
(b) Non-legal Rules/Sources: Under these rules, we have custom such as royal prerogative and the rules of and customs of Parliament; general political and moral values (i.e., the doctrine of separation of powers, rule of law and Parliamentary sovereignty); constitutional conventions, authoritative works etc.
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What are the features/characteristics of the UK constitution?
* The Unitary Constitution: The UK constitution is unitary rather than federal and hence it is highly centralised state. There is no tradition of regional government. All there is below central government is a tier of quite small local authorities which have very limited powers. For example, local government is utilised for the administration of nation's affairs at local level. It is governed by the Local Government Act 1985. The powers of such bodies are delegated to them by the legislature. Hence they are not sovereign in their own right and therefore they cannot make original laws. (See also the concept of devolution or devolved government-The creation of a separate Parliament allowing powers to be given to regions such as Scotland (legislative), Wales (administrative) and Northern Ireland (legislative))
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What are the features/characteristics of the UK constitution?
* No written constitution: Unwritten constitution here refers to a constitution which is not written in a basic document or group of documents i.e., the constitution of the UK. However, it is important to take note that the laws of the constitution in this country can be found in statutes (European Communities Act 1972, making the UK part of the European Union, the Public Order Act 1986 (imposing restriction on freedom of assembly), law reports, parliamentary standing orders etc.
* Flexible constitution: This characteristic rests primarily on the question whether or not the constitution can be amended with ease. As for the constitution which no procedure for amendment is prescribed are prima facie flexible than others.
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What are the features/characteristics of the UK constitution?
* Parliamentary sovereignty: In the absence of a written constitution, Parliament is viewed as supreme. Parliament as a legislative body can enact any law whatsoever on any subject matter whatsoever in the eyes of the UK courts. Changes in rules of constitutional law can be effected by ordinary legislation.
* No strict separation of powers: Under the largely unwritten constitution of the UK, the separation is difficult to ascertain and evaluate. There is undeniably a distinct legislative body, executive and the judiciary, each exercising differing powers. In practice, there are so many exceptions to the pure doctrine that the significance of the separation of powers is called in question.
THE BRITISH CONSTITUTION THE BRITISH CONSTITUTION What are the features/characteristics of the UK constitution?
* Constitutional Monarch: Looking at the UK as an example of sophisticated western democracy based on Constitutional Monarch, the position of the Head of State is very different. Queen Elizabeth II is the Head of State, and all acts of government are undertaken in the name of the Crown. The Queen is the figurehead, the symbol of nationhood on domestic and international level. It is important to take note that legal powers held by the Crown are, for the most part, exercised in her name by the elected government of the day.
* Legislature is bicameral in nature: The composition of Parliament is viewed as consisting of the HOL and the HOC. However, it would totally be incorrect to sideline the Crown when it comes to the royal assent to the bill. Thus, making the Crown (Queen) becoming part of the Legislature in the UK.
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What are the features/characteristics of the UK constitution?
* Independence of the judiciary: the judiciary is appointed by the executive, but it is conspicously independent both of the executive and the legislature, partly because of the rules of strict law but mainly because of extra-legal factors. The prestige of superior judges in the UK is exceptional high by any international standard.
* Absence of a single document called the Bill of Rights setting out the rights of citizens. But take note of the available statutes i.e., the Human Rights Act 1998 (UK).
THE BRITISH CONSTITUTION THE BRITISH CONSTITUTION What are the features/characteristics of a written constitution?
* Clarity and certainty: Under a written constitution, fundamental rights are clearly stated e.g. Parliament would have to follow special procedures laid down in the written constitution. Also, laws are well defined under a written constitution.
* Rigidity of a written constitution: Amendment procedures must be followed but not a gurantee. For example, Kwame Nkrumah of Ghana who amended the constitution several times during his short stay in power. (A written constitution may give rise temptation to violence and may result in revolutions.
* Superiority of a written constitution: Written constitution operates under the umbrella that it is supreme. The effect of the constitution being supreme is that, any laws passed or made must conform to the provisions of the constitution.
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What are the arguments for codification? Or should UK have a written constitution?
* Provide clarity and certainty e.g. fundamental rights are clearly stated in a written constitution and also laws are well defined.
* Written constitution will define the scope and set out the legal rules and to some extent political limitations on the functions and powers of the respective organs of government (limit the excesses of governmental power). For example, Art 1 of the US constitution vest legislative power in the Congress; Art 2 reveals that executive power is conferred on the US President and Art 3 provides information about the terms of office and the powers of the judiciary.
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What are the arguments for codification? Or should UK have a written constitution?
* Adoption of a written constitution does not destroy flexibility. Why? Because a written constitution does not contain all the detailed rules. There will be plenty of avenues available for enactment of rules, as long as these rules do not contradict the contents of the written constitution.
* Written constitution will preserve the best existing constitutional practices and will remove major defects. For instance exercise of discretion, abuse of power etc.
* Minorities who are certainly at present poorly represented in Parliament will be protected by a written constitution.
* A written constitution might educate the public about the nature of their rights and civil obligations. It might even generate reverence and public loyalty.
* Remedies will be available in courts.
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What are the defects of a written constitution?
* Rigid: give rise to temptation to violence and the end result may be a revolution. The term 'rigid' was used by Dicey. He defined a 'rigid' constitution: 'One under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws.
* Court interference with politics. Is it good or bad?
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What are the arguments against codification? (Or UK should not have a written constitution)
* No formal restraints upon the exercise of power i.e., the flexibility of the UK's constitution (parliamentary sovereignty).
* The passing of the Human Rights Act 1998 and its effect: there is no pressing need for a written constitution.
* Absence of special procedure prescribed for the enactment or repeal or amendment of legislation of constitutional importance i.e., the European Communities Act 1972.
* Dependence of the constitution is more on political and democratic principles than legal rules. Here you have to take note on the issue or question of trust i.e., the politicians.
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What are the arguments against codification? (Or UK should not have a written constitution)
* Question or issue of drafting the British constitution if it is to be codified i.e., who would draft it and what rights should it include would be potentially divisive.
* Question or issue of interpretation i.e., who would interpret it? The nation's judges would obviously have this power of interpretation, but this would probably give the judiciary new powers to strike down government legislation as 'unconstitutional'. The idea of unelected judges challenging measures passed by a democratically elected government is certainly controversial.
* Codification of the constitution will purchase certainty but it will be at the expense of flexibility.
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What are the defects of an unwritten constitution?
* Rights not well protected because Parliament is supreme.
* No remedies in court's because courts cannot question an Act of Parliament (see the case of Pickin v British Railway Board)
* Uncertainty-many parts of the constitution are obscure/imprecise e.g. Conventions on ministerial responsibility.
* Lack of entrenchment.
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How have the following affected the British Constitution?
* The European Union membership on the British Constitution i.e., the question of Parliamentary sovereignty. The ECJ has adopted the view that by becoming signatories to the Treaties, Member States have limited their own legislative competence in Community matters, conferring the supreme power to legislate on these matters on the law making institutions of the Community. (See the effect of ECA 1972)
* The effect of the HRA 1998 i.e., the higher courts power to strike down legislation that encroaches on human rights. However, the HRA 1998 to be effective, it rests on these three foundations i.e., the willingness of the judges robustly to defend rights in a manner favouring individaul protection against governmental encroachment; the govt willingness to make remedial orders to ensure compliance with declarations of incompatibility with Convention rights and the energy with which individual citizens are prepared to assert their rights in courts of law.
* The operation of the concept of devolution in Scotland, Wales and Northern Ireland.
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Changes of major significance that have occurred since 1997:
* The passage of the HRA 1998.
* The passage of the House of Lords Act 1999.
* The operation of the concept of devolution in Scotland, Wales and Northern Ireland.
* The passage of the Political Parties, Election and Referendums Act 2000.
* The passage of the Freedom of Information Act 2000.
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Conclusion:
Most of the world's written constitutions have been drafted following revolutions or granting of independence from a colonial power. The fact that Britain was once a colonial power and has enjoyed a relatively stable democratic heritage explain why the UK is the only country in the world (other than Israel and New Zealand) which has failed to codify its citizens rights and freedoms. In view of this, perhaps soul searching questions need to be asked about the nature of the British Constitution and attention paid to whether there is a need or 'fundamental reform' to codify the British constitution.
