The United Kingdom Constitution - Report Example

The U.K. Constitution The United Kingdom is a Constitutional monarchy, with executive power purportedly vested in the Crown. However, in reality, the business of Government is carried out by the Ministers of State in the name of the Crown. The Government of the United Kingdom has a bicameral Parliament, comprised of the Houses of Commons and Lords1. While the United Kingdom does not have a formal written and codified Constitution, there is an unwritten set of rules comprised of the Acts of Parliament, judicial decisions as well as political practices that form the basis of Constitutional practice within the U.K2. Therefore, the Constitutional status quo that exists in the country has produced a very flexible system wherein governance is dependant upon political and democratic principles rather than a rigid system that relies upon written rules3. Parliament is sovereign, as articulated by Oxford Professor A.V. Dicey who stated that “in theory, Parliament has total power, it is sovereign” thereby it is the source of all valid authority.4 There is no formal separation of powers between the three branches of Government – the executive, the legislature and the judiciary. The functions of the executive and legislature are often mingled with that of the judiciary, since ministers who implement new acts are also involved in legislation, similarly judges in the House of Lords are also entitled to participate in the legislative business of the Upper House.5 Moreover, judicial independence under the UK Constitution is not exclusive of political interests. Judges are appointed by the Lord Chancellor, thus their functions cannot be judicially impartial, while the Chancellor and Judges also sit in the House of Lords, therefore their decisions cannot be seen to be politically impartial either6. The differences in the U.K. Constitution as compared to other countries: Based upon the features of the U.K. Constitution as spelt out above, it may be noted that it is different from the Constitutions of other countries. One of the most important differences is that the UK Constitution is uncodified, while most other countries such as the United States, European and Asian countries have a formal Written Constitution that clearly lays out the principles upon which the nation is founded. In the United States and the Commonwealth of Independent States, the Constitutions clearly spell out a Federal, decentralized system of Government and the exact division of powers between the Centre and the States, as for example the tenth amendment to the U.S. Constitution.7 In Australia, the Australian Commonwealth Act of 19008 has handed over Constitutional control of the Privy Council to the Federal Government9, while retaining the independence of the States in other portfolios such as education and health. South Africa has a quasi federal republic with its Constitution spelling out the President as the Head of State and a bicameral parliament.9a Therefore, secondly, in the United Kingdom, the three branches of Government are not granted equal powers. Parliament has been deputed as the supreme authority to make the laws of the land, through the principle of Parliamentary Sovereignty. In the balance of division of powers within the UK, Parliament emerges supreme and therefore this leads to a centralized form of Government. Canada also has a system of Government that was deemed to be too centrist to emulate while formulating the Australian Constitution.10 Thirdly, most other Governments such as those in the United States are characterized by the distribution of power equally between the three branches of Government – the legislature, the executive and the Judiciary. In the event of an abuse of legislative power through an infringement upon individual rights of citizens, the Constitution imbues the Judiciary with the power to challenge the law. However this is not the case in the U.K., where no person or body has the legal authority to set aside or to invalidate any act of Parliament, except Parliament itself. The independence of the judiciary11 from the executive and legislative branches of Government is an established principle in many countries, as embodied through the United Nations.12 According to United States Supreme Court Justice Sandra Day O’Connor, the sphere of authority of the judiciary must be “protected from the influence, overt or insidious, of other government actors.” 13 In order to enforce the principles of separation of powers between the various branches of Government, the procedures involving the formulation of legislation and the election/nomination of the representatives of Government often involves established procedures, designed in such a manner that effective checks and balances are maintained among the various branches of Government. This is based upon the principles laid out by Monstesquieu, wherein he stated that it is only by apportioning power between the different players in Government that minimal opportunity will exist for an abuse of such power14. This apportioning of power is often laid out in the written rules and principles of law that constitute a country’s Constitution. The UK Constitution, however has no such codified Constitution where the division of powers is rigidly spelt out and established procedures have been written down. The UK Constitution is therefore less rigid and its policy and practice is the result of unwritten rules and regulations that are based upon practices that have been handed down over the generations. This flexible system therefore allows Parliament to modify the Constitution of the United Kingdom as established through unwritten rules, the Magna Carta and the Bill of Rights, etc through a simple majority vote in the two houses of Parliament15. While the absence of rigidity in its Constitution presents an advantage for the UK in terms of flexibility of operation and the facility of introducing changes in law, it does not guarantee the independence of the judiciary that is deemed to be a vital necessity in any country’s Constitution, which is one of its disadvantages. Parliamentary Sovereignty in the UK has therefore posed the urgent need for Constitutional reform within the country.16 The Constitutional reform bill was introduced on June 12, 2003 to introduce “new arrangements for judicial appointments”.17 Fourthly, the UK Constitution also differs in the manner in which members of Houses are elected. In the United States for example, the executive head – the President – and the members of the two Houses are elected separately and may not necessarily belong to the same parties, hence the political composition at any given time would be different. In the U.K. however, it is only the members of the House of Commons who are elected by popular vote, membership in the House of Lords remains largely governed by inherited rights or nomination by colleagues. There is a statutory restriction of 95 members in the House of Commons, the rationale being that it is Parliament that holds the Government to account18. In the Commonwealth of Independent States, the head of the executive branch is elected by popular vote while the legislative branch consists of a bicameral Federal assembly with 450 seats, of which 225 are nominated from winning party lists while the remaining are from single member constituencies and are elected by popular vote. The judicial branch is separate from the executive and legislature and comprises judges who are appointed for life by the Federation Council on the recommendation of the President19. In Australia however, judicial appointments are made by the Queen or her representative20, which in effect is decided by the head of the Government in power, therefore, they have also become a subject of controversy and are deemed to be akin to political appointments.21 Fifthly, the U.K. Constitution has three separate legal systems – England and Wales, Scotland and Northern Ireland with a common Apex Court in the House of Lords. Criminal cases are tried at Magistrate Courts and appeal is rarely allowed. This stands in contrast to the legal system in most other countries, countries especially those which exist as a Federation,(example United States, Australia) where the states have their own Courts but they are all a part of one legal system that exists at District, High Court and Supreme Court levels. The procedures for appeal as spelt out within the Constitution of most other countries are flexible. Decisions of criminal Courts can be appealed in the Supreme Court without any restrictions, unlike UK where appeals on decisions of magistrate Courts that try criminal cases is rarely allowed. Moreover, litigants must seek permission of the Courts even to appeal. Sixthly, the UK Constitution has no preamble unlike most of the other countries, which spell out the goals of the Constitution in the Preamble, which also specifies the kind of republic/federation the Country is 21a. However there is no Preamble to the UK Constitution, which can more truly be said to be an oral tradition represented by Parliament, existing in written form through the Bill of Rights and the Parliament Acts of 1911 and 1949. Similarities with Constitutions of other countries: The UK Constitution is similar to other countries in that it is a constitutional monarchy, like New Zealand Australia and Canada. These countries also have a bicameral Parliament, except for New Zealand that has a unicameral parliament22. The United States also has a bicameral legislature. The existing concepts of Parliamentary sovereignty as enunciated through the two Houses of Parliament are also a feature in the Constitutions of several formerly colonized countries in Asia such as India and in several African countries. Another similarity is the fact that there are three branches of Government – the legislative branch that makes the law, the executive branch that carries out the law and the judicial branch that interprets and applies the law. A significant similarity that exists between the UK Constitution and those of the United States, Canada, New Zealand, Australia and other countries is that they are based upon common law principles, that have formed the basis for administration of law and justice within all the countries. It may be noted that in most of these other countries as in the UK, the need to ensure that the rights of individual citizens are not trampled upon has resulted in the judiciary assuming a larger Constitutional role, even in a country such as the UK where Parliamentary sovereignty imbues Parliament with the supreme power. British judges have used their powers to protect infringement of individual fundamental rights in a similar manner as judges in other countries have done23. It is the common law perspective that has implied the judicial right to question Government actions that infringe upon individual rights and where necessary invalidate such Government action24. Another aspect in which the UK Constitution is similar to other countries such as South Africa. USA and Canada is in the existence of a Bill of Rights enacted in 1689 and the Petition of Rights enacted in 1628 which help to ensure that individual rights are accorded importance in the Constitution and in the framework of the country’s administration and law. Conclusion: In conclusion, it may be stated that the significant difference in the UK Constitution as compared to other countries, is its unwritten uncodified nature. Parliamentary sovereignty has been supreme in the UK, with an unclear separate of powers between the three branches of Government. However, the UK Constitution is also similar to other countries in that the basic source of power that underlies it is the principle of democracy, where it is the people who determine the course of lawmaking and execution. The purpose of the Constitution, unwritten as it is, is therefore similar to other countries – ultimately, it is to protect and ensure the freedom and protection of the rights of every individual citizen of the country. Bibliography * Bradley, A.W. & Ewing, K. D. 2003. Constitutional and Administrative Law. (13th ed.), Harlow: Longman. * Bangalore principles of judicial conduct, Commission on Human Rights resolution 2003/43 * Commonwealth of Australia Constitution Act, Section 122 [Online] Available at: http://scaletext.law.gov.au/html/pasteact/1/641/0/PA001470.htm; accessed 2/14/2006; Internet * Constitution of Bahrain: Section 4, Article 104. * The Constitution of the United States , 1977. Washington: United States Government Printing Office * DeSecondat, Charles, 1873 (First published 1748) Baron de Montesquieu: The Spirit of the Laws (Nugent Translation, revised edn). Bk XI, Ch VI, pp 748-749 * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press. * Hobson, John Atkinson. Imperialism. New York: James Pott & Co., 1902. [Online] available from http://www.econlib.org/library/YPDBooks/Hobson/hbsnImp14.html; accessed 2/14/2006; Internet * JA La Nauze, The Making of the Australian Constitution, Melbourne: Melbourne University Press, 1972, at 17, 27-8 * Lord Bingham, Dicey Revisited (2002) Public Law 39 * Lord Browne Wilkinson, 1992. The infiltration of a Bill of Rights. Public Law 397, at 409. * Oliver, D. 2003. Constitutional Reform in the UK. Oxford, Oxford University Press * O’Connor, Sandra Day, 2003. “The importance of judicial independence” remarks before the Arab Judicial Forum in Bahrain. [Online] available at: http://usinfo.state.gov/journals/itdhr/0304/ijde/oconnor.htm; accessed 02/13/2006; Internet * Section 6 of the High Court of Australia Act, 1979 * The “Constitution reform Act – Introduction” [Online] available at: http://www.dca.gov.uk/constitution/reform/intro.htm; accessed 02/14/2006; Internet * The House of Lords: Completing the reform., 2001. White Paper No: Cm 5291. [Online] Available at: http://www.dca.gov.uk/constitution/holref/holsdocs.htm; accessed 2/14/2006 * Turpin, C, 2002. British Government and the Constitution. Text, Cases and materials 5th edn. London: Butterworths, pp 10 * The New Zealand Constitution Act of 1986 * www. gks.ru; www.odci.gov; accessed 2/14/06 .* Williams, George, 2004. Judicial Appointments are political appointments. The Australian. [Online] Article available from: http://www.onlineopinion.com.au/view.asp?article=2768; Accessed 02/14/06; Internet * Walker, Neil, 1999. Setting English Judges to Rights Oxford Journal of Legal Studies, 133 at 145. End Notes: 1. Section 4, Article 104 (a) states: “No authority shall prevail over the judgment of a judge, and under no circumstances may the course of justice be interfered with. The law guarantees the independence of the judiciary….” Bahrain Constitution. [Online] Available at http://www.oefre.unibe.ch/law/icl/ba00000_.html; accessed 02/13/06; Internet 2. The Bangalore Principles of judicial conduct state the importance of judicial independence as follows: “Convinced that an independent and impartial judiciary and an independent legal profession are essential prerequisites for the protection of human rights and for ensuring that there is no discrimination in the administration of justice…” [Online] Available at: http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.RES.2003.43.En?Opendocument; accessed 02/13/2006; Internet Read More