Should the United Kingdom Introduce a Written Constitution - Essay Example

Should the United Kingdom introduce a written constitution? Introduction Society is governed by a set of beliefs, norms, customs and traditions thatripened into standards or rules dictating how society should function, act and interact thus the birth of sovereign or governmental power to execute the standards or rules and to demand compliance from its subjects or citizens for an orderly and peaceful existence. More importantly, rules and regulations are instituted for a sovereign to operate in an efficient and effective manner, otherwise anarchy or chaos would ensue. In this context that a state or sovereign whether large or small needs to have some fundamental organizing principles in order to run effectively.1 These sets of rules and regulations which command respect and compliance are embodied in written instruments but not necessarily a written constitution. To better understand whether a sovereign is governed by a written constitution or not, it is imperative to state at the outset what a constitution means. A constitution is a compendium or anthology of a sovereign’s history, principles and ideals which is considered the most fundamental law of the land. In the hierarchy of laws, the constitution is considered the supreme law of the land and all laws, rules and regulations enacted must conform. This edict is known as the doctrine of constitutionalism.2 The constitution shall set the path of the policies and laws which a sovereign shall embark and enforce. The constitution is similarly touted as a binding agreement between the government and its people; apart from this, it is a social contract3 that is expected to be followed by citizens residing within the country in exchange of the protection provided by the state or sovereign. In carving or creating a written constitution however it must be fashioned to contain basic characteristics and these are-- first, to limit and delineate the power of the government so that it cannot do whatever it like; secondly, to protect the rights and liberties of the individual not just from the government but also from other powerful groups; and third is legitimacy.4 It is reiterated that the governmental functions, rights and liberties of individuals infused in the constitution are patterned after the countrys traditions and culture. A constitution may come in two forms --the written and unwritten constitution. When these set of laws are put in writing and bound in a single document it is then called a written constitution, otherwise it is referred to as an unwritten constitution. Presently, most countries have formulated and are functioning and enforcing their laws through a written constitution. In the United Kingdom of Great Britain and Northern Ireland (United Kingdom) however is far removed from these modern day countries since they do not have a written constitution as yet. Aside from these two countries, there are only a handful of countries that remain without a written constitution, namely--New Zealand, Israel and San Marino. Countries that function without a written constitution are similarly referred to as countries with an uncodified constitution as the sources of laws, governmental and individual rights are not contained in one fundamental instrument but rather embodied in a series of documents. The judicial branch makes use Acts of Parliament, Treaties, European Union Law, Common Law, Conventions and Works of Authority as their reference in deciding a case. Royal prerogatives and Parliamentary constitutional conventions are equally used as their sources of law.5 From the given characteristics of a constitution the question still remains: Is there a need for the United Kingdom to introduce a written constitution? This paper aims to weigh the advantages and disadvantages of introducing a written constitution in the United Kingdom and to arrive at an educated opinion whether it would be best for the United Kingdom to create its own constitution. The position of the researcher is for the United Kingdom to maintain its current disposition on the grounds that it has long survived without a written constitution and it has created safeguards that would ensure that its citizens’ rights and liberties would be protected from the self-interest of those people in power. Historical Background The essence of having a Monarchy is that the royalty has the supreme power to rule over the nation, the English government was constructed in this form up until the formulation of the English Bill of Rights dated 1688, where it states "By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;".6 The backbone of the British constitution is the doctrine of parliamentary sovereignty a concept under constitutional law that states that the legislative body or the law making body that has complete and absolute sovereignty over all government bodies may they be executive and judicial bodies.7 Another important notion attached to this concept is that the legislative body is conferred the sole and exclusive power to repeal any prior laws and statutes as deemed fit. The concepts surrounding a parliamentary sovereignty are in extremes with popular sovereignty or democracy wherein the power lies in the people and that the highest judicial body or the Supreme Court may declare legislations invalid or unconstitutional should it transcend or run counter with the basic principles of law. In the United Kingdom, its House of Lords is conferred the same power as its supreme courts; which is equally its law making body. The United Kingdom follows a parliamentary sovereignty and other notable countries that operate their government under the same rules are: Finland, Israel, New Zealand, Jamaica, Papua New Guinea and Solomon Islands. Discussion It is submitted that it is not entirely correct to state that the United Kingdom does not have a written constitution. On the contrary, its edicts are written and contained in several instruments and what is apparent in the present set-up is that it does not operate and function under a consolidated constitution. The United Kingdom’s fundamental laws, governmental powers and functions are not limited to laws or statutes which are known as the Acts of Parliament but include other sources such as (1) Common Laws which comprise decisions or rulings that become the laws of the land upon justiciable findings by judges resulting from the law suits and cases; (2) Conventions that are generally accepted and long standing customs and traditions of the country; (3) Treatises which are authored works of constitutional authority8 and historical legal works; (4) European Union laws which encompass laws enacted by the European Union and other International conventions that the UK is a signatory of;9 and lastly, (5) Royal Prerogatives which are defined as the powers held by monarchs. The lack of a single written constitution however does not espouse reliability on judicial precedence but rather it provides a dynamic instrument to correct an injustice based on individual set of facts and evidence. Previously, the decisions of the House of Lords bind all lower courts;10 the decisions are applied irrespective of the circumstances surrounding the case—the decisions are inflexible rules which must be adhered became an instrument of oppression rather than an avenue to provide relief for the aggrieved party. Subsequently, the doctrine of judicial precedence but nonetheless carried persuasive effect was overturned in the advent of the Practice Statement or Judicial Precedent [1966] 1 WLR 1234. Under this Act of Parliament, to wit: "Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases..." "...Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.” "...They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so..."11 Another significant feature of an unwritten constitution is emphasized in the case of Miliangos v George Frank (Textiles) Ltd [1976] AC 443; [1975] 3 All ER 801 – where the medium of payment for damages in England was supposed to be made in sterling but taking into account the changes in the international trade and the status of sterling, the ruling was modified to accommodate a more progressive legal tender.12 This indubitably shows flexibility as an advantage for the English Legal system that revision or modification may be undertaken without going through the rigors of processing an amendment in its constitution. The advantages of introducing a written constitution in the United Kingdom are the following: first, clarity--this would provide the citizens a clear cut outline of their political system and their laws for the people to lead. It would give consistency to court decisions since there is a set of guidelines that would be followed in deliberating a case. It would also provide easier access and understanding for the people who would want to study their laws and customs. Secondly, it would provide safety nets as individual rights are indelibly written. These safety nets would be used for the protection of citizens from the self-interest and abuse of those in power. Thirdly, it would lay-out a pattern that should be followed to maintain and abide by due process. Lastly, there would be clear order in the execution of laws.13 Under the present system, the rule of law in United Kingdom is perceived as rather weak. There is marked paucity of checks and balances that are instituted in countries with written constitution. The supreme power is lodged upon the United Kingdom parliament where the extent or breadth of its power and authority are not delineated or limited. 14 The separation of powers between the judiciary and the legislative departments are not defined as the parliament is conferred with the concurrent power to overturn any decision and enact laws as well. The parliament cannot be held accountable for their actions making them impervious to inquiries and litigation. If the fundamental laws of the United Kingdom are consolidated into one written constitution, its own people would be more invested and committed to obey its letter and spirit. The rationale behind this proposition is drawn from the fact that the people themselves who crafted the constitution by ratifying it would respect and uphold it. Once the constitution is ratified, the people become the repository of power and the parliament become mere instrument of the people thus it can now be said that the citizenry have direct participation in the enactment of laws through the members of the parliament. And more importantly, the people can initiate amendment or revision to the provisions of the constitution themselves. The enactment of the constitution shifts the power from the parliament or government to the people.15 So also, the ratification of the constitution would reduce if not eliminate confusion as the citizenry shall refer to a single instrument that establishes their fundamental rights as well as to check any governmental abuses if any. The people will only need to read one instrument to know their rights and free from any anxiety that the law or judicial decision they invoke is not repealed or amended. Should the United Kingdom adopt a written constitution, the overlapping judicial and legislative functions would be prevented. The people can expect accountability for any excess or abuse committed while in power. The tendency to cover up a wrongdoing will be precluded and more significantly, it would promote transparency in the performance of governmental responsibilities. The parliament will no longer exercise a judicial function thus it can concentrate on the enactment of laws for the betterment of its citizenry. On the other hand, the judiciary can perform its function to interpret and apply the law free from interference. With the establishment of a definitive system of government, the functions of government shall be defined and allocated gives rise to the judicious exercise of governmental prerogatives. The doctrine of checks and balances is clearly illustrated in the United States of America’s system of government where three co-equal branches function independently.16 The executive department executes or implements the laws and policies crafted by the legislature while the judiciary although perceived as the least powerful branch is conferred the power to declare an act or law valid if it in accord with the constitution or alternatively, nullify or avoid the same if it contravenes the constitution. The crafting of a written constitution would similarly promote judicial stability as a more uniform and consistent interpretation and application of the laws would be made. Judicial precedence shall be accorded greater respect which means that the law of the case shall remain in full force effect and not subject to varying judicial interpretation. Once the decision is made on a similar issue, it remains applicable and relevant to succeeding cases—it is not subject to change not even to accommodate public opinion or sentiment—the courts will adhere to the principles enunciated in the earliest pronouncement regardless of the personalities involved.17 The disadvantages of introducing a written constitution in the United Kingdom are—the identity of United Kingdom as the sole successful monarchical government would be lost. The system of government and its people were able to survive for over a hundred years without a written constitution.18 This is believed to be so as its society is able to work within the boundaries set by what society dictates. Equally, a written constitution is rigid and inflexible which would deprive the United Kingdom the resilience to cope with change and to accommodate the demands of its populace.19 It cannot be denied that the United Kingdom has survived crises by standing pat on its principles, ethical beliefs and norms. It is unafraid to turn against the tide. One concrete example is its firm stance on maintaining its currency amidst the pressure from the European Union to maintain a single currency for EU countries. As economies in the EU are on the verge of collapse, United Kingdom remains a force to reckon with as it continues to flourish economically despite the economic turmoil in other EU countries. It cannot be denied that adherence to judicial precedence is a sound policy but the unorthodox and unconventional turnaround made by United Kingdom in deciding cases have enriched the common law system. Cases are decided according to the circumstances presented and applicable laws thus justice is dispense with fairly and impartially. The common law system would be deemed repealed or revoked if a written constitution is created and ratified. Interpretation and application of the laws or statutes must conform to the constitution and any departure from its letter and spirit is null and void. The dynamism of the common law system which works so well in the United Kingdom would belong to the past. The argument that under the present system that there is no accountability and transparency in the conduct of governmental function is incorrect. The people have a direct participation in the election of the members of the parliament thus non-performing, unethical or dishonest politicians may be rebuked from office through the electoral process. It is equally important to stress that a ruling party or person may be evicted from office through a vote of non-confidence by his/her own peers. These are sufficient safeguards to prevent abuse or misuse of power. The parliamentary form of government is similarly effective in the United Kingdom as the ethical and moral standards of its people are high. Government officials are held at high esteem and any allegation of any wrongdoing or misconduct in office, whether true or not would propel them to resign voluntarily. Unlike in the some middle eastern or third world countries, voluntary resignation from office is unheard of. Violence and other processes are resorted to remove the erring official from office. 20 The existence of a written constitution does not preclude people from overthrowing an abusive or tyrannical leader. A written constitution may be cast aside to recognize the collective voice of the people and therefore it would not guarantee economic and political stability. The crafting of a constitution requires the direct participation of the people through ratification. The United Kingdom does not need a written constitution as its own people are not clamouring for constitutional change. There is no overt act to show that an overwhelming number of its people seek to have a single written constitution. It is safe to conclude that the instruments embodying their fundamental rights found in a series of instruments and the governmental functions notwithstanding its overlapping responsibilities is still relevant and continue to serve the needs of its people. The different organs of government operate and perform their responsibilities with each aware of their greater duties to uphold what is just and right. So also, it was earlier mentioned that a constitution reflects the sentiments and symbolizes the ideals, history and custom of its people but without the direct participation and initiative from its people, the United Kingdom constitution cannot be characterized as reflective and symbolic of its ideals, history and custom. And, lastly, the procedural requirements necessary to amend or revise a constitution is stringent making it difficult to comply with. It would thus depriving United Kingdom flexibility in enacting, amending or modifying laws which are being experienced by other countries with a written constitution such as the United States and France. Conclusion: For hundreds of years, several wars and throughout its written history the United Kingdom has survived and maintained both its cultural and national identity without any formal written constitution. As predicated by this research, a constitution mirrors the ideals, hopes and aspirations of its people however its absence has not deterred the United Kingdom from not only embodying a proud heritage and history but also being the bastion and vanguard of freedom and its way of life. The absence of a formal written constitution has not prevented the United Kingdom from enjoying the prosperity despite the many pressures and adverse reverses in the international economy. The lack of a formal written constitution has not dissuaded the hundreds if not thousands of capitalists from settling and conducting its business within the borders of the United Kingdom. The number of immigrants that constantly keep the culture, and gene pool of the United Kingdom healthy is likewise not daunted by the lack of a written constitution. The operation of the law including its application to cases that challenges its logic, essence and gist are not only healthy but is strictly maintained by the House of Lords. Unlike any other nation, the modicum of impropriety is not only taboo but even a hint of it can cause the down fall of a regime. The degree of freedom, responsibility and power humbles any public servant instead of being drunk from it. Bounding this freedom, responsibility and power may have an opposite effect. Instead of being bounded excuses to cross the line if not thread the line can now be defined as the norm. The people in public office tend to be more conservative without any written rule that would dictate the limits of his responsibilities, duties and conduct. Bibliography 1.) Prof. Dr. Weber, Helmut Who Guards the Constitution? (1999) Centre for British Studies Research Paper accessed 8 November 2011 2.) Goldsworthy, Jeffrey. Parliamentary Soveriegnty: Contemporary Debates. (Cambridge University Press, 2010). 3.) Pious, R. M. ‘The War on Terrorism and the Rule of Law’. (Roxbury Publishing Company, 2006) 4.) Ellenberg, M., et. al. Same Question, Different Outcome: s 2(a)(iii) of the ISDA Master Agreement under English and US Insolvency Law. [2011] Butterworths Journal of International Banking and Financial Law. accessed 8 November 2011 5.) Broadbent, G. Public Law Directions (Oxford University Press, 2009) 6.) Clements, R. & Jones, P. Constitutions; the Nature and Sources of the United Kingdom Constitution. Q & A Public Law 2011 and 2012 (Oxford University Press, 2011) 7.) English Bill of Rights 1688 8.) Morrison, J. Essential Public Affairs for Journalists (2nd Edn, Oxford University Press, 2011) 9.) Holland, J. & Webb, J. Learning Legal Rules, (7th Edn, Oxford University Press, 2010) 10.) Miliangos v George Frank (Textiles) Ltd [1976] AC 443; [1975] 3 All ER 801 11.) Practice Statement or Judicial Precedent [1966] 1 WLR 1234 12.) Rosenfeld, M., ‘Constitutionalism, identity, difference, and legitimacy: theoretical perspectives’ (Duke University Press 1994) 13.) Mueller, D., Constitutional Democracy (Oxford University Press, 1996) p.61 14.) Oliver, D., The Changing Constitution, (6th Edn, Oxford University Press, 2007) 15.) Abbott, Lewis F., British Democracy: Its Restoration and Extension, (Industrial Systems Research, 2006) 16.) Lijphart, A., Parliamentary Versus Presidential Government, (Oxford University Press, 1992) 17.) Manuel, P. C. & Cammisa, A. M., Checks and Balances?: How A Parliamentary System Could Change American Politics, (Westview Press, 1999) 18.) Evans, M., Constitution-making and the Labour Party, (Palgrave Macmillan, 2003) 19.) Young, A. L., Parliamentary Sovereignty and the Human Rights Act, (Hart Publishing, 2009) 20.) Beale, A., Essential Constitutional Law (1st Edn., Cavendish Publishing Ltd., 1995) p.2 21.) Harrison K. & Boyd, T., The Changing Constitution, (Edinburg University Press Ltd., 2006) 22.) Melding, D., Will Britain Survive Beyond 2020?, (Institute of Welsh Affairs, 2009) 23.) Williams, W. E., Liberty Versus The Tyranny of Socialism: Controversial Essays, Volume 564, (Hoover Institution Press Publication, 2008) 24.) Dickerson, M. O., Flanagan, T., ONeill, B., An Introduction to Government and Politics: A Conceptual Approach (8th Edn., Nelson Education, 2009) p.118 25.) Kathiann M. Kowalski, Checks and Balances: A Look at the Powers of Government, (Lerner Publications Co., 2011) p.12 26.) Magstadt, T. M., Nations and Government: Comparative Politics in Regional Perspective (6th Edn., Wadsworth Cengage Learning, 2011) p.296 Read More