Is There still Reason to Be Very Proud of British Constitution - Assignment Example

187547 With diverse issues surfacing everyday, with the tightening grip of the EU, with the unfortunate advent of home grown terrorism, with the almost suffocating political correctness and with an unnecessary war involvement, one would rightly wonder if Britain is still proud of its constitution. The European constitution is threatening to overtake British constitution, considered to be the mother of all the constitutions and there are apprehensions in the air. In his recent speech as party leader at Labour Conference, Prime Minister Gordon Brown Declared: "Britain has been tested and not found wanting. This is who we are," said Mr Brown..I will stand up for British values. I will stand up for a strong Britain and I will always stand for you" http://www.telegraph.co.uk/news/main.jhtmlxml=/news/2007/09/24/nlabour1324.xml Naturally, British are still proud of Britain, her constitution, and her unique place in the world. British constitution has never been an absolutely rigid constitution. It establishes the fundamental laws and judicial review of legislation and administrative law is not totally bifurcated from constitution law. "A distinction is commonly drawn in continental countries between constitutional law and administrative law; but because English law is not codified or officially systematized, English jurists have found difficulty in determining the distinction" Jackson, Hood and Leopold (2001, p.9). The British constitution and the constitution law, definition of both are rather controversial, though the scope is unlimited because it covers all aspects of the relationship between individuals and authorities. Fundamental law of the state does not remain unalterable, and British constitution is the result of constitutional conventions as the constitution still stands unwritten. It declares Parliamentary Sovereignty (now with the European dimension), with autonomous power to the judiciary, which could sometimes, momentarily thwart any government effort1. Then Britain has to reckon with the EU and the connected laws, where most of the British laws were undermined and become subordinate to the EU laws. European Court of Justice can overrule all the acts of the Member Countries and the Courts in every member country, including Britain are asked to uphold the EU justice. In Britain this has become an issue of contention that Community law could override national laws. There are arguments that British/People's/Parliamentary sovereignty is undermined and Constitution has lost its place. The limited sovereignty of the Member States still remains a difficult issue to gulp down not only in Britain, but also in many other member states. In addition, European Convention on Human Rights singed in 1950 could be considered as another encroachment in the national sovereignty. The decisions of the Court of Human Rights no doubt, are not directly enforceable depending on the circumstances; but it is coming closer. With the threat of home grown and external terrorism, Temporary Provisions are added into Prevention of Terrorism Act, 1989, might encroach individual rights in more ways than one. "Although constitutional theory tightly binds legitimacy and power with Parliamentary accountability, accountability and impartiality are considered to be increased by excluding certain functions from the constraints and influence of ministerial responsibility" Flinders (2002, P.17). Another issue that could threaten the constitution is the status of parliamentary sovereignty in Scotland, and the Queen's status was disputed on a few occasions2. Treaty and Acts of Union have been contested and the confusion still persists. "At any rate, with this possible, but unclear, exception for Scotland, the principle of parliamentary sovereignty in the United Kingdom remains probably the most basic tenet of our constitutional law," Yardley (1995, p.25). Under the British Constitution, even though Parliament is supreme, House of Lords, represented by hereditary and created peers continue to exist. The twelve Lords of Appeal called Law Lords, who are life peers, are appointed to work as the highest Court of Appeal in Britain. Soon the hereditary nature of representation might be discontinued. Only recently the individual liberties and the overwhelmingly democratic nature of British life has been threatened by the cloud of terrorism becoming darker over Britain. The complacent understanding that the terrorism threat is an external one was shattered during the London bombings that produced home grown terrorists, who never lived in any other country, other than their homeland, Britain. Complete religious and cultural tolerance had been practiced in Britain. In recent years, a slight backlash is building up against the cultural and religious fanaticism of the minorities. There has been an obvious hardening of the stand from both the sides and suspicions are building up due to the ongoing terrorism. There had been no encroachment in religious tolerance. Actually the tolerance level has been heightened, with much show and pomp; but there is conclusive evidence that the communities are splitting apart. Naturally with the reiteration of fanatical views from one side, it is never a long time before the other side closes in. With the present altered dimensions and controls in the Administrative Law, there has developed a tussle between Administrative and Constitutional laws which cannot be ignored easily. Even though Constitution is not written, it has not reduced its scope in any way, because constitutional and administration laws depend upon statutes, conventions, judgements, precedents and Parliamentary Acts. Legislation and Law reforms have been carried out to enhance the credibility and scope of both the laws; but in recent years, some of the administration laws are in conflict with the constitutional rights and are called 'draconian'. Another question that had been till now, tactfully avoided is the Royal Prerogative and the Judicial Review as against the EU law. "Historically the sovereign is the fountain of justice in England. For this reason the administration of justice is, strictly speaking, a prerogative of the Crown. This prerogative has, however, been substantially whittled away" Ward (1998, p.141). There is a misty area here that has not been touched. Courts and people, no doubt, use the European Court of Justice against a negative judgement; but entire general public could not be stated as happy with EU intervention. In recent years, due to terrorism activities at home and abroad, stringent measures have been approved by the Parliament, which are not particularly popular not only amongst the minority communities, but also with the main community, who dread that their civic liberties could be drowned in the melee. The Police and the Law Enforcement Officers are not popular at the moment with 'stop and search', telephone tapping, overhearing, intercepting mails and emails, and detaining a person for 28 days without producing him at the Court of Law. No doubt, there is much truth in the Police argument which says that it is impossible to get all the evidences and admissions from fanatic, hardened criminals within a day or two, an innocent person could be imprisoned for 28 days without charging. There are clear apprehensions about the constitution and the democratic way of British life due to external and internal threats and also if the politicians are capable of dealing with difficulties. "If they can be overawed by the threats, seduced from their duty by bribes, or allured by promises, another Henry may rule us with a rod of iron, and drench once more the scaffold with the best blood of the nation; the parliament will be the humble and secure instrument of his tyrannies," Russell and Coote (1822, p.195). The dark future portrayed in 1822 is relevant even today. There is another totally different issue persisting nowadays. Many intellectuals and one section of the media thinks that due to the iron rule of labour party in its own ranks and in the administration, parliament has become a willing tool in the hands of Labour Administration. "We desperately need a new Constitution to protect us from the State, but this hugely authoritarian Government is the last one that should be trusted with the job. Be afraid. Be very afraid" commented a citizen. http://lastditch.typepad.com/lastditch/the_british_constitution/index.html Tony Blair's taking the country to war without much difficulty either from the Constitution or its checks had been incessantly cited as a non-democratic and unconstitutional highhandedness originated from a brute majority. With all the above issues raging in Britain, it had been no doubt difficult to be proud of the country's ancient constitution. But compared to many other countries who are struggling to achieve a modicum of democracy, Britain had been enjoying it, even without realising it for centuries now. The dents that have shown up recently are the very slightest and the constitutional institutions in the country are too strong to be sullied in any way. The combined constitutional and administrative laws of the land are there to stay and it is difficult to undermine them totally. What Britain is facing today is a short period of uncertainty, mainly due to the world terrorism and all countries are going through the same period of uncertainty. BIBLIOGRAPHY: 1. Flinders, Matthew (2002), 'Shifting the Balance Parliament, the Executive and the British Constitution,' Political Studies, 2002 VOL 50, 23-42. 2. Phillips, Hood et al (2001), Constitutional and Administrative Law, Sweet & Maxwell, London. 3. Russell, William and Coote, Charles (1822), History of Modern Europe, A. Small, Philadelphia. 4. Ward, Richard (1998), English Legal System, Butterworths, London. 5. Yardley, Sir David (1995), Introduction to Constitutional and Administrative Law, Butterworths, London. ONLINE SOURCES: 1. http://www.telegraph.co.uk/news/main.jhtmlxml=/news/2007/09/24/nlabour1324.xml 2. http://lastditch.typepad.com/lastditch/the_british_constitution/index.html 3. Read More