The UK Now Needs a Written Constitution - Essay Example

Page The UK Now Needs a Written Constitution Introduction The long lasting doctrine for parliamentary sovereignty in Britain, which has becomealmost synonymous to the British concept of democracy, can be regarded as a principal reason behind the fact that the UK still does not have a written constitution. Even in the case the country moves towards adopting a written constitution, there is an internal debate that what should be the nature of such an arrangement. A highly detailed and lengthy codified constitution may solve several legal issues, but it cannot fully reflect the people’s aspirations. A concise but broadly-worded constitution can help to achieve more political objectives and flexibility, but it cannot avoid conflicts between legislature and judiciary.1 Moreover, Britain’s integration in the European Union calls for clearer and codified legal arrangements for the country. Hence, there is the general feeling today that the UK now needs a fully written constitution. Arguments against a Written Constitution As early as the 1970s, Lord Halisham asserted that the UK required a written constitution to protect the country from a possible takeover by the communists particularly at the level of lawmaking and policy manipulation.2 In the view of the worldwide agenda of Soviet expansionism and ideological intrusion inside the British intelligentsia, such a possibility could not be ruled out too. However, situation changed dramatically in the 1990s, and today the communist threat does not appear to be materialistic any more. Further, the renowned legal expert Barber comments that “The United Kingdom is in the unusual position of having an unwritten constitution that works passably well—sufficiently well, at least, to allow us to consider whether we want a new constitution.”3 Critics of a written constitution for the UK hold that such an arrangement may lead to serious disruption of the functionality of legislature and judiciary both alike. The judiciary may become excessively powerful and the judges will be empowered so much so that they are able to strike down any legislation that they consider to be unconstitutional.4 The functionality of the democratic and electoral processes may be hampered as the courts may acquire the power to decide or enforce fix tenure parliaments5 or command how a minister should behave overriding the directives of the already existing Ministerial Code.6 7 Britain’s integration in the European Union is another important issue in this sphere. Presently, Britain has a highly undefined relationship with the EU, since the unwritten constitution provides it with an opportunity of not codifying the fundamental tenets of its foreign policy. In the case R. v Secretary of State for Transport Ex. p. Factortame (No. 2)8, the House of Lords did not effectively clarify the legal dimensions of the relationship between the British and EU legal practices. With relation to this case, the position of the UK merchant shipping legislation framework9 has been left largely unclear vis-a-vis the EU specifications. Similarly, there are certain points of conflict and confusion regarding the human rights laws10, effectiveness of European laws inside the UK11, etc. Some legal experts consider these sorts of vagueness actually provide enough flexibility even inside the orbit of European influence and eliminate the risk of forced political choices.12 13 14 Reasons to have a Written Constitution A written constitution would not only involve codification of the existing rules and conventions but also provide with an opportunity to reform the constitutional framework of the country as a whole. A written constitution would curb the excessive powers of the Parliament and safeguard the popular interests in front of aggressive political constitutionalism. Contextually, “The realisation that parliamentarians had the power to fix their own remuneration and their evident incompetence in managing their expenses gave substance to the view that a fundamental review of our constitutional arrangements is needed.”15 A written constitution can thus directly challenge the political authorities of the UK to exercise their power in a controlled way. Writing down Britain’s constitution cannot be envisaged as a mere codification process. The opportunity can be utilised for an effective “regulatory analysis”16 of the country’s politico-legal system with obvious social and economic implications. Writing down Britain’s constitution can effectively end the bipolar conflict between legal and political constitutionalism.17 In this process of constitutional review, the Labour Government of the UK devolved certain powers to the new legislative authorities of Scotland and Wales. Via the cases like Somerville v Scottish Ministers18, the popular aspirations for more regional autonomy and increased transparency in governance can be comprehended. Further, a written constitution can establish Britain’s status and position vis-a-vis the European Union. As the EU is emerging as a significant global economic power, Britain’s legal integration in this supra-national establishment can be eventually much beneficial. By clearly defining the UK-EU relationships through codification, legal conflicts can be avoided and this is certainly more important than maintaining flexibility of unwritten conventions.19 20 Conclusion Critics of a written constitution generally hold that an unwritten, convention-based legal framework is best suited for the UK’s sovereignty and self assertion since such an arrangement provides for a highly flexible political and legal system. This is essentially a Euro-sceptical view,21 which puts too much emphasis on avoiding the EU influence. International level trans-continental or regional cooperation does not undermine national interests; rather it provides better prospects for military, economic and social development as we have witnessed in the ASEAN countries, North America, etc.22 By the means of a written constitution, the UK can achieve a scientific middle path between Europhilic sentiments and Euro-sceptic actions. Through the Maastricht decision, the German Constitutional Court has already adopted such an intelligent position.23 In this model, the EU laws would be functional and relevant only within the UK’s pre-existing legal system. The written constitution for Britain can effectively achieve this end. It can also control the excessive powers of Parliament, lessen legal ambiguity and become instrumental in reflecting popular aspirations. The Constitutional Reform and Governance Bill24 appears to be an important step in this direction; and the Government must pursue it with due earnestness. Bibliography A McHarg, “Reforming the United Kingdom Constitution: Law, Convention, Soft Law”, (2008) 71 MLR 853 Brunner v The European Treaty [1994] C.M.L.R. 57. European Communities Act 1972 HM Government, Ministerial Code: A Code of Ethics and Procedural Guidance For Ministers (London: Cabinet Office, 2007) HM Government, The Constitutional Reform and Governance Bill (House of Commons Library, 2008) Human Rights Act 1998 Institute for Public Policy Research, A Written Constitution for the United Kingdom (London: Mansell Publishing, 1991) J Beatson, “Reforming an Unwritten Constitution”, (2010) 126 LQR 1 J. Weiler, ‘‘The Autonomy of the Community Legal Order’’, in J. Weiler, The Constitution of Europe (Cambridge University Press, 1999). K. Alter, Establishing the Supremacy of European Law (Oxford University Press, 2001) Lord Hailsham, The Dilemma of Democracy (London: Collins, 1978) Lord Scarman, Why Britain Needs a Written Constitution (London: Charter 88, 1992) Merchant Shipping Act 1988 N W Barber, “Against a Written Constitution”, (2008) 1 PL 11. N.W. Barber, ‘‘Legal Pluralism and the European Union’’ (2006) 12 E.L.J. 306. P. Oliver, The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada and New Zealand (Oxford University Press, 2005) R. v Secretary of State for Transport Ex. p. Factortame (No.2) [1991] 1 A.C. 603. Sir G Bindman, “Time to Write It All Down?” (2009) 159 NLJ http://www.newlawjournal.co.uk/nlj/content/time-write-it-all-down Somerville v Scottish Ministers [2007] UKHL 44 V Bogdanor, T Khaitan and S Vogenauer, “Should Britain have a Written Constitution?” (2010) 78 PQ 499. Table of Authorities Cases R. v Secretary of State for Transport Ex. p. Factortame (No.2) [1991] 1 A.C. 603…..3 Somerville v Scottish Ministers [2007] UKHL 44……………………………………..5 Brunner v The European Treaty [1994] C.M.L.R. 57…………………………………5 Other Authorities Merchant Shipping Act 1988………………………………………………………….3 Human Rights Act 1998……………………………………………………………….3 European Communities Act 1972……………………………………………………..4 Read More