Constitutional Law of the UK - Term Paper Example

Introduction At first sight, this is a strange question. Any constitution would evidently be useless if it did not constrain seriously - under the threat of sanctions- at least the ways and means in which access to power is gained, and the limits of the authority of the principal power holder. Any violation of such provisions is usually called a "coup d'tat", and, as such, is considered evil, and when possible punished. This is supposed to correspond to the definition of constraint. The Constitution of the United Kingdom is uncodified, consisting of both written and unwritten sources. There is no technical difference between ordinary statutes and law considered "constitutional law." Therefore the Parliament of the United Kingdom can perform "constitutional reform" simply by passing Acts of Parliament and thus has the power to change any written or unwritten element of the constitution. The constitution is based on the concept of all sovereignty ultimately belonging to Parliament (Parliamentary sovereignty), so the concept of entrenchment cannot exist. The lack of a central written constitutional document explaining the fundamental principles of the state and relationship between its institutions and between the people leads some constitutionalists to regard the United Kingdom as having "no (formal) constitution." The phrase "unwritten constitution" is sometimes used, despite the fact that the UK constitution incorporates many written sources, statutory law being considered the most important source of the constitution. But the case remains that the constitution relies far more on unwritten constitutional conventions than virtually every other liberal democratic constitution. Conventions as a source of constitutional rules have been widely acknowledged. Regardless of whether a country possesses an unwritten1 or a written constitution, constitutional conventions usually play an important role in regulating constitutional relationships among different branches of government. A common definition of constitutional conventions is: "By convention is meant a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the constitution."2 Law and constitutional conventions are closely related. Constitutional conventions presuppose the existence of a legal framework, and do not exist in a legal vacuum. For example, in the UK, the constitutional conventions of forming a Cabinet presuppose the laws relating to the Queen's royal prerogative, the office and powers of Ministers, and the composition of Parliament.3 A difference between law and constitutional conventions is that laws are enforceable by the courts, but constitutional conventions are not enforced by the courts. If there is a conflict between constitutional conventions and law, the courts must enforce the law. In some countries, such as the United Kingdom (UK) and Canada, the courts acknowledge the existence of constitutional conventions as aids to judicial interpretation.4 Academics consider that such acknowledgement may at 1times appear to be similar to enforcement.5 The constitution ... is seen to consist of two different parts; the one is made up of understandings, customs, or conventions which, not being enforced by the courts, are in no true sense of the word laws; the other part is made up of rules which are enforced by the courts, and which, whether personified in statutes or not, are laws in the strictest sense of the term, and make up the true law of the constitution. This law of the constitution is, as we have further found, in spite of all appearances to the contrary, the true foundation on which English polity rests, and it gives in truth even to the conventional element of the constitutional law such force as it really possesses. First, as constitutional conventions can easily be adapted to new circumstances arising, they are therefore frequently used as a means of bringing about constitutional development, provided that those constitutional conventions do not contravene the existing laws.6 A flexible way to make constitutional changes is through developing and modifying constitutional conventions. This is especially applicable to a country which does not have a written constitution. For example, since the late 1970s, it has become apparent that a UK government need not resign merely because it suffers a major defeat in an important issue (such as major legislative measures or policy proposals) in the House of Commons. The current view is that a government can always feel entitled to assume the confidence of Parliament in its continued existence, notwithstanding any setbacks such as defeats or significant rebellions in the division lobbies.7 The existing convention is that a formal vote of no confidence is needed for a UK government to resign. Secondly, constitutional conventions can be used to fill in the gaps within the legal structure of a government. In the case of unwritten constitutions, constitutional conventions are essential to provide rules for a constitutional government. In the UK, there is no law requiring that a Prime Minister be appointed, and the office of Prime Minister is a creation of constitutional conventions. Moreover, as written constitutions are often brief and concise, there is always a need for additional rules to be developed to facilitate the implementation of constitutions. In the United States, constitutional conventions have been developed on the method of nominating presidential candidates and the President's choice of a Cabinet.8 Many constitutional conventions are a result of traditional practices. In the UK, many constitutional conventions came from the formulation of political practices in the 18th century and towards the end of the 19th century. Constitutional conventions can be established through a process of unbroken practice. Usually, it is difficult to know precisely when or how constitutional conventions come into existence except for those which are created by explicit agreements. A constitutional convention is known to be established when there is a general acceptance of it as obligatory and when it is respected by the people or institutions it supposedly governs. The constitutional convention then becomes part of a formal structure of rules which is preserved and upheld. Since there is neither entrenched constitutional law nor a formal separation of powers, Parliament has the ability to change any aspect of the constitution at will. The constitution is therefore often spoken of by political scientists as being "organic;" that is, it has "evolved" over time since its medieval origins. In theory, its flexibility makes it responsive to political and social change especially since many political principles are simply conventions; however, the absence of entrenchment means that in theory far-reaching changes could be made without significant popular support. Moreover, until recently, Acts of Parliament have not been subject to review by the courts They are that the constitution is built on the twin equal principles of Parliamentary sovereignty and Rule of law. The former means that Parliament is the supreme law making body, it alone can make legislation on a national level. This is an ancient principle, and can be traced clearly from the Restoration, and before. The latter is the principle of equal application of the law: 'everyone is equal before the law'. Although the theory is certainly ancient, from the Magna Carta, 1215 in practice equal application of the law to every subject/citizen in the state only seriously developed from the nineteenth century. Dicey's "twin pillars" interpretation is a legalistic interpretation, and has been criticised by commentators writing about the decline of Parliament's independence and the dominance of the executive in policy making. Though political interpretations of the UK constitution have changed much since Dicey's era, there is no consensus on an alternative legal interpretation. Conclusion In reality such action is unlikely so these restrictions on the legislative power of Parliament are likely to remain on the statute book for the time being. The passing of an unprecedented Freedom of Information Act has challenged the traditional British notion that governments should not disclose too many details of its operations. The government has shown a desire to abolish the position of Lord Chancellor, a position that unusually combines executive, legislative and judicial power in conflict with the notion of the separation of powers. This however has been defeated in the House of Lords. A further apparent breach of separation of powers, the presence of Law Lords (members of the judiciary) in the House of Lords, will be removed by moving the Lords to the new Supreme Court of the United Kingdom by 2008. Ironically separation of power was a concept described by the French philosopher Montesquieu after analysing the contemporary British constitution, which reflected the way in which the constitution actually operated. He did not necessarily anticipate a separation of offices, but was rather describing the separation of functions The Convention is required by the Act to produce a Report on its conclusions on its terms of reference, namely on what provision for the government of Northern Ireland is likely to command the most widespread acceptance throughout the community there. The Act requires the Convention to transmit its Report - or Reports to the Secretary of State, and he in turn is required by the Act to lay it before Parliament. The Act leaves it open to the Convention to produce more than one Report if it wishes - it could for instance produce an interim Report before its final Report. It would then be for Parliament to take the balance of opinion within the Convention into account in considering the Convention's Report References 1. Chau Pak-kwan and Cheung Wai-lam. Process of Appointment of Senior Members of Government in Selected Countries, HK: Legislative Council Secretariat, 2002. 2. de Smith, Stanley & Brazier, Rodney. Constitutional and Administrative Law, 7th ed., London: Penguin Books, 1994. 3. Delegation of the Panel on Constitutional Affairs. Report on Duty visit to Study the Systems of Executive Accountability in the United Kingdom, France and Germany, 13-24 June 2001. 4. House of Commons Library. "Confidence Motions," Research Paper 95/19, February 1995. 5. Marshall, Geoffrey. Constitutional Conventions: The Rules and Forms of Political Accountability, Oxford: Oxford University Press, 1984. 6. McEldowney, John F.. Public Law, 2nd ed., London: Sweet & Maxwell, 1998. 7. Phillips, O. Hood and Jackson. Constitutional and Administrative Law, 8th ed., London: Sweet & Maxwell, 2001. 8. Pierce, Roy. Choosing the Chief: President Election in France and the United States, Ann Arbor: the University of Michigan Press, 1995. Read More