This essay sets out to analyse the debate about the British Constitution and examine the arguments for and against a written or unwritten constitution.
The paper concludes that the arguments for a written constitution outweigh the ones against it and given the current political situation in Britain today it would be desirable to take a codified constitution into a consideration.
The British Constitution
This essay sets out to analyse the debate about the British Constitution and examine the arguments for and against a written or unwritten constitution.
Most countries in the world have some form of constitution. A constitution is a system of laws, customs and convention, which regulates the relation between the organs of the state and the rights and duties of its citizens. It often refers to a document or documents, which represent the most important laws establishing the framework of a state and the structures, powers, procedures and processes of the institution of government (Selby, 1995, p16).
In most world’s democracies, such as the USA (American Constitution of 1878), Germany (German Basic Law of 1949) and others the constitution is written down and codified, which means it can be found in a single document. At present there are three major democratic countries, which are governed by an unwritten constitution – UK, New Zealand and Israel.
In the UK there is neither a single enacted document codifying the constitution, nor 'constitutional' laws – laws of fundamental importance that can only be changed through some special legislative procedure; it is therefore often claimed that Britain does not have a constitution at all (Williams, 1995, p11). For example, the Bill of Rights 1689 could easily be amended in 1996 so that the former MP Neil Hamilton could pursue his libel action against the Guardian (Rozenberg, 1998). Even though being called “unwritten”, most of the British constitution can be found in written form. It comprises the body of a country's laws, enacted over time, coupled with an emphasis on political precedent and enshrined parliamentary procedure. Although these principles are not codified in a single law, they are still recognized by courts, legislators, and executives as binding upon government, limiting its powers. Thus, a court might cite "the constitution" in forbidding an exercise of power, even though no document exists. The British constitution has traditionally been seen to flow from five sources: royal prerogative, statutes, common law, convention and authoritative opinion. However, it has been affected by external factors to the domestic polity, such as the European Union (EU) and the European Convention on Human Rights (ECHR) (Kingdom, 2006, pp60-66).
The merits and faults of the British Constitution have been debated for many years. There is a variety of political issues, which revolve around this topic including a Bill of Right, electoral reform, devolution, and the role of the monarchy.
The main concern about UK’s unwritten constitution is the fact that Parliament is unrestrained (Williams, 1995, p12). Under the principle of its sovereignty Parliament can make or unmake any law on any subject, hence those parts of constitution that are written down, mostly in a form of statutes, can be changed or cancelled by the same process as any other less fundamental law. McEwen (2004) claims that there is no higher body, such as a supreme court, that constrains the legal authority of Parliament. However, since Britain has joined EU, all laws passed at the European level are considered legally superior to domestic law, thus they are ultimately protected by a higher constitutional court – the European Court of Justice. Nevertheless, as stated by Kavanagh (1996, p83) Parliament may at any time repudiate EU membership along with the obligations thus its sovereignty would still remain intact.
Another argument pointed out by Selby (1995, pp20-21) and Williams (1995, p12) is the steady increase of power as well as exercise of that power by the executive branch of government. Although the executive is supposed to the checks by Parliament and the courts, parliamentary majorities, backed by a strong party discipline, mean that the executive is able to dominate the legislature while the parliament’s ability as the principle controller and scrutiniser of the executive has declined. Also many argue that the power of the government has dramatically increased, however, they question the mandate to govern as the government has been largely elected with less than 50 per cent vote thus it is actually not representing the majority.
Further Kavanagh (1996, pp45-46) indicates the growing dissatisfaction with the workings of the political system, which has led to a general concern about the health of British democracy. While in the past party competition, elite culture and a broad political consensus had provided some insurance against the abuse of power, these safeguards, he claims, can no longer be taken for granted. The recent scandals in relation to MP’s expenses show just how easily it has been to misuse the power and calls for a more limited parliament as well as government.
Furthermore, according to Selby (1995, pp20-21) it is claimed that the judiciary is too weak to protect the citizens from abuses of power by the executive. Further, as the campaigners for a constitutional reform have realised that radical and complete constitutional reform is unlikely, they have turned their activities to a more limited goal of a Bill of Right, as it currently is concerned with the rights of Parliament in relation to the monarch, rather than those of citizens in relation to the state.
Nonetheless, it should be acknowledged that there have been some constitutional changes in recent years. These ranged from devolution (Scottish Parliament and a National Assembly for Wales), changes to the House of Lords as well as legislation on Freedom of Information and the Human Rights Act, the latter being perhaps the most significant reform, which gives people living in the UK the right to enforce the European Convention on Human Rights in UK courts. Although the Human Rights Act is not seen as a written constitution, the recent decisions about the detention of foreign terror suspects at Belmarsh revealed how power had transferred from Parliament to the courts, however, it did not abolish parliamentary sovereignty (Curran, 2005). Also some legal analysts have said that the act could give privileges to some minorities, which the rest of the population do not enjoy and research has shown that most of the organizations covered do not understand their new obligations. Finally Kingdom (2003, p79) argues that a “home-grown” Bill of Rights could meet UK needs better than the incorporation of the ECHR did.
On the other hand, the British political system along with its uncodified and partly written constitution has evolved over centuries and has functioned and served very well for a long time. In fact, the UK has been widely regarded as a country that demonstrates that a codified constitution is not necessary in order to be a constitutional democracy. As the main benefit of the unwritten constitution has been claimed its flexibility thus allowing it to adapt to changes in society. And it is the fact that it can adapt that explains its durability (Selby, 1995, pp21-22). However, according to Kavanagh (1996, p65), it is at the same time what most concerns critics of the present system, as the British constitution is largely what the government of the day say it is.
Another argument against a written constitution concentrates on the role that judges would play in the interpretation of a written constitution. This raises a number of difficulties, as judges are not elected but they would have the power to overrule the elected representatives of the people (Williams, 1995, p13).
An additional difficulty is that governments are unlikely to be willing to sacrifice the necessary time to draft a written constitution and governments also have little incentive to introduce any reforms, which might constrain their own powers or undermine their authority in office (Kavanagh, 1996, p64).
Finally a written constitution and a Bill of Rights are only as good as the willingness of the politicians to abide by both documents. There are examples of countries with a written constitution, where human rights have been breached in spite of being officially codified. Moreover there is more to a constitution than what is written in the lawyer’s books. The real constitution is the living constitution that is actually happening in the process of government. Nevertheless, as the arguments for a written constitution outweigh the ones against it and given the current political situation in Britain today it would be desirable to take a codified constitution into a consideration.
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- Quote paper
- Linda Vuskane (Author), 2009, The British Constitution. Arguments for and against a written or unwritten constitution, Munich, GRIN Verlag, https://www.grin.com/document/508859
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