The British constitution is
famous for its complexities, as HER Majesty Queen Elizabeth II
famously said that “The
British Constitution has always been puzzling and always will be.”; and this is
quite true for its current state as well. Generally, a constitution is a set of fundamental
principles or established precedents according to which a state or other
organization is governed and these rules in their entirety represent what that
state or organization constitutes; and when these principles are written down
into a single collection or set of legal documents, those documents may be said
to comprise a written constitution. This written document referred to as
the constitution, generally, embodies principals relating to; the basic values
or underlying values of the society it is to govern. Secondly, it provides the
blue prints for the machinery of the government, i.e. it would allocate powers
between the institutes of the state and impose necessary checks and balances.
Thirdly, this constitutions would provide a set of human rights for the
individuals of that state. And finally. It would provide provisions for its
amendment for the future.
Historically, the trigger for the
formations of a state’s constitution has been due to some key political event,
invasion/war or a revolution, e.g. the American Revolution led to the
ratification of the US Declarations of Independence and consequently the
formation of the US constitution in 1788. Some argues that in the UK, the
absence of a written constitution is largely a historical accident; as there
has been no invasion, revolution or disastrous political event in the last 300
years resulting in a change in the system of government and the need for a new
written constitution. However, even
though constitutional change has not gone so far as to lead to the adoption of
a new constitution, the subject nevertheless has been a matter of intense
debate.
As far as UK’s constitution is
concerned, it does not have any consolidated written form but instead has
identified sources which together could be referred to as the British
constitution. This is not as straightforward as it seems; because the British
constitution could then possibly lie in all those rules, whether legal or not,
which are regarded as being of “constitutional importance”. Thus in the absence
of a written constitution, it is not clear precisely which rules, statutory,
common law or conventional could be regarded as constitutional rules; as
Geoffrey Marshall explains: “[N]o easy logical limit can be set to the labor of
the constitutional lawyers … any branch of the law, whether it deals prima
facie with finance or crime or local government, may throw up constitutional
questions.”(1971, pg.6).
However a shortlist of sources
could be derived, namely consisting of statutes with constitutional importance
e.g. The Magna Carta 1215, The Petition of Rights 1628, The Bill of Rights
1689, The Act of Settlement 1700, The Treaty of Union 1706, The European
Communities Act 1972, The Human Rights Act 1997 and The Constitutional Reform
Act 2005; are just a few. At common law, all judicial decisions which carry
constitutional effect and secondly the Royal prerogative, as explained by A.V.Dicey
“the residue or arbitrary and discretionary powers legally left in the hands of
the crown”; form part of the constitution. Lastly, and the most troublesome are
Constitutional conventions or “unwritten maxims” of the constitution; which are
rightly described by Marshall and Moodie as “… rules of constitutional behavior
which are considered to be binding by and upon those who operate the
constitution but which are not enforced by the law courts … nor by the
presiding officers in the Houses of Parliament.”[1971, pg.23-24]
Sir Ivor Jennings famously stated
that conventions “provide the flesh which clothes the dry bones of the law”.
Thus in order to effective provide a written UK constitution, the issue of
conventions needs to be tackled. The whole idea behind a constitutional
convention is the flexibility it provides, that a rule may become a convention
over consistent usage over time and may be discarded easily as well. If a written
constitution is to be formed, it remains to be seen what the role of
conventions would be; as Professor Charles Sampford observed that codification of conventions would have a
total opposite effect as desired; The Australian Experiment 1975.
However, before we embark on the
journey to form UK’s constitution, we must observe the reasons why it is
desired. Firstly, UK is a member of a very small group of countries which have
no written constitution, namely including New Zealand and Israel; and the
creation of a supreme court would demand the promulgation of a written
constitution which the supreme court may use to strike down any legislation
enacted by parliament which is in conflict with that written constitution, as
Supreme courts throughout the legal world are empowered to do so; thus bringing
UK in line with the rest of the world’s legal culture. However, this seems
easier said than done, because at the heart of the current UK’s constitution
lies the doctrine of parliamentary sovereignty which suggests that parliament
can legislate on whatever topic it chooses with no authority to supersede it;
in the words of Lord Hailsham in 1976 “The limitation on its power are only
political and moral”[1].
In effect, the doctrine of
parliamentary sovereignty establishes the legal supremacy of statutes; meaning
that there is no source of law higher or more authoritative than an act of
parliament and the courts are obliged to uphold and enforce them. However, a
rising number of commentators argue that parliamentary sovereignty is becoming
increasingly compromised. One of the main reason for this is the supremacy of EU
law in matters of European community, by means of the European Communities Act
1972; as HWR Wade [2]
argues that for the first time in constitutional history, parliament succeeded
in “entrenching” a provision (s.2(4) of ECA 1972), so as to bind future parliaments.
However, commentator who argue for the doctrine tend to maintain on the line
that it is the parliament which voluntarily acceded to the European Community;
and the ECA 1972 remains, in legal theory, repealable. Therefore, one may
conclude that if parliament is to bound itself with a constitution or a Bill or
Rights, the constitution would remain sovereign only till the point in time
when a latter parliament repeals it; but if we are to observe closely, this is
exactly how written constitution evolve; whereby the old constitution remain in
force till the point the legislature amends or repeals it for a new
constitutional setup.
Arguments for the desirability of
parliamentary sovereignty tend to centre on the idea that it affords the uncodified
UK constitution with flexibility and strength; and guarantees democracy, since
the dominant part of parliament, the Commons, is elected[3].
However, the doctrine of parliamentary sovereignty is portrayed in certain
interpretations as a barrier to the existence of a codified constitution but
others suggest that a codified constitution could be compatible with
continuation of parliamentary sovereignty. The House of Commons Justice
Committee, Constitutional Reforms and Renewal (11th Report of
Session 2008-9)[4]
noted that the then Justice Secretary, Jack Straw, told it: “There are two
models of a written constitution. One is a text which seeks to bring together
the fundamental principles, sometimes called conventions, of our constitutional
arrangement, the most important of which is that Parliament is sovereign … the
second models is an entrenched and overarching Constitution which is more
powerful than Parliament.”
Although Jack Straw favored the
former idea, but the commonly held view is that there is in practice a direct
choice between either the retention of parliamentary sovereignty or the
establishment of a codified constitution; “There is no point in having a
constitution unless one is prepared to abandon the principle of the sovereignty
of parliament, for a codified constitution is incompatible with this principle”[5].
Thus, under this interpretation, a codified constitution would effective
include provisions to limit the powers of the UK legislature.
Conversely, some are concerned
that the overturning of parliamentary sovereignty in this way would transfer
power from parliament, i.e. the elected House of Commons to the unelected
judges who would be responsible for interpreting the constitution, and might
thereby be drained unsuitably into policy-making.[6] John
Kwan, in “A Written Constitution for the UK” suggests that “To vest the power
of interpretation of the constitution in the judiciary, following the model of
the Supreme Court of the United States, which can strike down legislations
ruled incompatible with the constitution. This will exercise better check on
the power of the Executive.”
Following, The Constitutional
Reforms Act 2005, whereby UK Supreme court judges are chosen by independent
appointment commission with plenty of checks to maintain the Supreme Court as a
body of interpretation independent from the government, John argues that judges
could be relied upon as professionals who are not influenced by other
considerations, although he favors a provision to the effect that a super
majority in the Commons can overrule a judicial decision; thus giving
Parliament a final say as a democratic body.
Another important issue here as
far a parliamentary sovereignty is concerned, is that parliament cannot be
bound even by an act of parliament, and that a codification of the UK
constitution that involved limiting the powers of Parliament cannot be brought
about from within the current UK legal structure. Nevertheless, Dawn Oliver
argues that the “transition to a new constitution” might involve “the present parliament
committing suicide”. Thus conceivably requiring “a referendum, or resolution of
the current two houses of parliament endorsing it, and then the two houses of
parliament irrevocable dissolving themselves or being dissolved by the
monarch”.[7] Alas,
it remains to be seems how the new coalition government deal with the issue of
parliamentary sovereignty.
Secondly and more importantly, as
John Kwan[8]
identifies that the current constitutional arrangement and the dominance of the
two major parties means that the executive controls a substantial majority in
the parliament and in effect, the government is given a carte blanche to enact
any laws it wants to and that its power is largely limited by either
conventions, independence of backbenchers or public opinion. Furthermore, there
is no clear demarcation between the institutes of the state; thus severely
aching the doctrine of separation of powers and often the status quo is built
upon mutual respect between the three branches of the state. For example, John
Kwan, in “A Written Constitution for the UK” explains
the case of the
Asylum and Immigration Bill 2002 which included an ouster clause removing right
to judicial review from failed asylum applicants, which paved the way for
severe criticisms. Former Chief Justice Lord Woolf believes it would have been
so “inconsistent with the spirit of mutual respect between different arms of
government that it can be a catalyst for a written constitution”.
Despite the benefits that a
written constitutional setup might bring, some commentators have leveled
objections to the very notion of having a written constitution in the first
place. First of all, some say that because Britain has been without a written
constitution for almost its entire history and the system has worked reasonably
well, then there is no need to take up on such an enormous task. Furthermore,
Vernon Bogdanor suggests in his book “The
Coalition and the Constitution” that the coalition is making British
government less responsive and accountable than it used to be and such a weak
government, in reality could not undertake such a colossal task of forming a
written constitution for UK, and tackling all its hurdles without some kind of
backdrop. He further evidences his arguments with facts about coalition
governments in the past and highlights their weakness.
Despite criticism, the adoption
of a codified constitution would provide legal safeguards of fundamental rights,
would bring UK in line with other legal systems in the world and could also
check the unfettered power of the Parliament. Having said that the task would
be colossal and consensus may be very difficult to be achieved, if at all. But
the question remains that would the British electorate want solid rights and
checks or would they rather rely on public opinion as protection.
Words: 2118
Bibliography
1. Constitutional
Law, Administrative Law and Human Rights: Loveland, 6th Edition
2. Constitutional
& Administrative Law by Hilaire Barnett, 9th Edition.
3. “A Written Constitution for the
UK” by John Kwan TWS Policy Paper Feb 2010
4. Vernon Bogdanor “The Coalition and the Constitution”
5. Dawn Oliver, “Towards a written
constitution?”
6. “Codifying –
Or Not Codifying – The United Kingdom Constitution: A Literature Review” by
Centre for Political & Constitutional Studies King’s College London, Series
paper 1, Feb 2011
7. “Codifying –
Or Not Codifying – The United Kingdom Constitution: The Existing Constitution” by
Centre for Political & Constitutional Studies King’s College London, Series
paper 2, May 2012
[1] Lord Hailsham, “Elective
Dictatorship, pg.4”
[2] HWR Wade, 1996
[3] Sir John Baker, “Our Unwritten Constitution,
pg.41”
[4] The House of
Commons Justice Committee, Constitutional Reforms and Renewal (11th
Report of Session 2008-9), HC 923, pg. 21
[5] Bogdanor, “The
New British Constitution, pg.14”
[7] Oliver, “Towards
a written constitution?”, pg.149
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