Lack of Written Constitution in U.K - Essay Example

WHY U.K NEEDS A WRITTEN CONSTITUTION? Introduction The United Kingdom is practicing an unusual model of a democracy as it does not have a written constitution. Its constitution is footed on usage and custom and majority of UK constitution contains of “conventions “that are not written by way of any sanctified document. Majority of principles of U.K constitution are originated from judicial pronouncements or from legislative acts. (A. V. Dicey, 1959). Lack of written constitution in U.K has been considered as a major issue in the legal sphere. The advocates of written constitution reiterate that it would offer greater democracy and accountability. Many are of the view that U.K constitution is unwritten. However, this is not true. It is to be noted unlike in USA, Canada, India or Germany, U.K’s constitution may not exist in a single document. If one analyses closely, one can find that it major parts are written down mainly through laws enacted in parliament which is called as ‘statute law.” This research essay analyses the need for a written constitution for U.K and its benefits for U.K citizen’s in detail. Why U.K is not having a written constitution? Britain is regarded as the homeland of the democracy. Further, politically, U.K has been steady and stable for long period. Unlike Germany and France, Britain has not been compelled to draw its constitution due to famous revolt like French revolution or through war. U.K has a cool political weather without any turmoil contrary to revolutionary inflammation that traversed the European continent in the nineteenth century. Rather than in one big bang, U.K constitution has been transformed incrementally over centuries. Whereas, in case of Australia and U.S.A, which are very young nations as compared to U.K , it is easy to codify their subject’s fundamental rights and political system as a significant step immediately after attaining independence. It is to be noted that majority of world’s democratic countries have structured their written constitutions on the footprints of unwritten version of British constitution. U.K is perusing a constitutional monarchy with a two-chambered parliament comprises of Houses of Lords and Commons. Informally, though the executive power is headed by the Crown but in actual life, it is being carried out by the ruling government in the name of Crown. The powers vested with the Crown and Sovereign is derived from the Acts of Parliament or from the common law. Virtually, in U.K, there is no separation of power between executive and legislature. The legislative authority is given authority in the sovereign in parliament, cabinet ministers are empowered to enact new acts who are also given power in the process of legislation. Likewise, Lords not only have taken part in the legislative business of the upper house but also sit as judges in the Appellate Committee. Where does British constitution lie then? Though , U.K doesn’t have a written constitution , the sources for its unwritten constitution lies in case laws which are commonly known as ‘precedents’ , common law , Acts of Parliament , historical documents like Magna Carta and European legislation. Thus, U.K’s constitution is not set out in one single document. It is a mixture of judicial decisions and Acts of Parliament. Thus, in U.K, governance depends upon democratic and political principles rather than steadfast system that rely on legal safeguards and rules. According to Straw, “the U.K’s constitution presents in minds and hearts and habits as much it presents in law.” Magna Carta can be said as a model where majority of symbolic value have borrowed by the Western democracy to frame their constitution. Magna Carta is the oldest document which has restricted the powers of the nation and safeguarded some of the citizen’s rights. Its offers major rights which includes the privilege to have a fair trial and to safeguard from unlawful imprisonment. Britain doesn’t have a single source of legal document or statement where citizen’s liberties and rights are explained. As such, this has made people to resist where to point their finger on where there are embodied. How UK’s constitution has been developed? The Bill of Rights which was introduced in 1689 is the first piece of legal document which in fact not only reinforced the powers of parliament but also granted various rights and bolstered the privileges of sovereign subjects. The specialty of this law is that it offered freedom from unfair taxes levied by the King and from being summoned up to serve in the army without parliament’s approval in the peace time. The Great Reform Act which was enacted in the year 1832 has actually established supremacy of sovereignty of citizens over parliament in authorising to vote by adult males in case of elections. This Act can be said to have laid the enactment of the Representation of the People’s Act of 1928 thereby granting voting rights to all men and women above the age of 21. The entry by Britain in the European Economic Community in 1973 had set the ball motion for U.K to come under the surveillance of degree of international judicial control. Habeas Corpus Act has been enacted in 1679 and it can be applied as a remedy against unlawful detention. Further, this act imposes heavy fines on the skirting of the writ by mobilising the concerned individual outside the jurisdictional limits of English courts. Some of the statutory foundations that are regarded as “part “of the British constitution are illustrated as under; Magna Carta as it recognises some fundamental rights. It was evolved in 1215 and it safeguards the rights of the society against the Crown. Bill of Rights of 1689 which has elaborated and extended the power of parliament and ascertained supremacy of parliament over the Crown. Settlement of 1701 which sustains the independence of judiciary and the legislation and treaties that unify both the Scottish and English Parliaments. The Reforms Act of 1832 which revolutionalised and reformed the structure of representation to parliament. The European Communities Act of 1972 which controls the U.K’s relationship in the European Union. Further, in U.K, there is no specific definition of common law. It is inferred from the legal precedents or custom and inferred and interpreted by judges in court cases. Further, there are conventions which are practices and rules which are regarded as inevitable to the functioning of government but they are not legally enforceable. Majority of conventions in U.K are drawn from the historical occurrences through which the British style of government has come into existence. For instance, one convention is that Ministers are liable and held responsible for what occurs in their departments. It is to be noted that there are many conventions that had been shown exit door from the British constitutions over passage of time and some of the illustrations are given below: The convention that the British Prime Minister should be a member of the House of Commons and he should command the political party that veil control over that House The convention that the Parliament member should desist from criticising the judiciary. The convention that Queen should accord royal assent to bills approved by the both houses of Parliament. The convention that the judges should not take active part in politics. The convention that the Crown will use its supreme power to suspend the Parliament only when advised by the Cabinet ministers. For instance, on October 2, 2000, The Human Rights Act of 1998 came into effect which contains the major provisions of European Convention on Human Rights or European Convention. . If any British citizens are of the view that his rights under European Union Convention have been violated, he can lodge a complaint with the European Court of Human Rights (ECHR). Any decision in favour of such individual by ECHR is restricted to that individual only and Esher’s decision is not considered as an obligatory precedent in U.K courts. Further, U.K is not under legal duty either to repeal or amend any of its law which considered being contradictory with E.U Convention. Why U.K needs a written constitution? A well documented constitution not only removes ambiguity and disillusionment but also draw new boundaries on the authority of executive. A written constitution will facilitate the public to know their rights and privileges, dos and don’t, their liberties and limitations. Involving the public in drawing up a written constitution would reinvigorate and rejuvenate the democratic operation and will make the public responsible for their action instead of leaving the framing of constitution in the hands of political parties and big business houses The time has changed and in view of the terrorism and other militant attacks on U.K, its constitution has to be redrafted to match the needs of twenty first century. Thus, a written constitution offer and assist citizens to know their rights and safeguard themselves against the state. Further, in the whole world, UK and the New Zealand are the nations which have no written constitution. A written constitution will place the U.K in the equal status of other major nations of the world. The grounds of opposition for the written constitution Britain has a 2000 years old history. Critics are of the opinion that the legal system with non-documented constitution should not be disturbed as it has been in operation for centuries. On the other hand, opponents stress that those countries who have written constitution may ignore rights under constitution as what had happened in erstwhile U.S.S.R and hence, traditions and customs and usage would offer a greater safeguard. Opponents argue that certain rights guaranteed in the written constitution may not be actually enjoyed and hence the argument that it provides greater democracy and accountability is far from truth. For instance, the U.S constitution has still a provision about the rights of slave owners. Though, these provisions are now defunct, a citizen cannot sue for the enforcement such right now. The process for drawing up a written constitution As U.K has no written Constitution, the Human Rights Act which was introduced in 1998 and was in effective from October 2000 can be construed as equivalent to Bill of Rights or fundamental rights granted to all U.K citizens. Thus, it is not an easy job for Britain to draw up its constitution as a single document. This has to be done on consensual and bipartisan basis. Further, there should be a national referendum to consider and include views of different section of the community. What are the potential legal consequences of a written constitution for the UK? If UK adopts a written constitution, it will restrict the power of UK government or clearly elucidate the rights or results in separation of powers between judiciary, executive and legislature. If a written constitution materialises, then the basic structure of constitution will remain for ever thereby making any amendment will be an arduous task requiring two third majority in the parliament. A written constitution will answer all the incertitudes that present in the U.K’s constitution. The following uncertainties may be addressed if a written constitution has been introduced. The poorly stated doctrine of separation of powers. The unlimited legislative authorities of parliament The direct election to House of Lords rather than nomination. Ambiguities present in the extent of royal prerogative and its use by the executive in the order of the Crown instead of Parliament. The significance and ambiguities that present in the majority of constitutional conventions like responsibility of ministers , dissolution of Parliament etc, The Conventional doctrine of civil liberties as against constitutionally – promised human rights The fundamental and historical shift a written constitution would create to UK. A written constitution is presumed to describe the spirit of a nation. Secondly, a written constitution will reflect the changing nature of a nation. Thirdly, a written constitution requires to be enforced. Thus, courts intervene and interpret when there is divergence of opinion on the interpretation of any clause of written constitution. Traditions or customs still carry great weight against the scripted constitution. UK government is seriously contemplating to introduce a written constitution which sums up a citizen privilege, their duties and a glimpse how the different divisions of the government function. According to Jack Straw, the British Justice Secretary, this process may take two decades and would involve a referendum. Thus, the proposed new written constitution will give clear idea to the citizens to their rights and duties as present unwritten constitution does not throw enough light on their duties and rights. Conclusion A written constitution may set rights many flaws that present in the unwritten constitution of U.K. Thus, the proposed written constitution could pin point the respective authority of Parliament and the British government. It may pave way to take vote in parliament in important issues like before initiating military action against any nation. Thus, U.K government will be required to get the concurrence of the Parliament if it wants to send its troop to any nation either to wage a war or to quell terrorism. Thus, this could avert the mistakes done by Tony Blair government in dispatching British troops to Iraq in future if written constitution is enacted in U.K. List of References Morris Nigel (2008) ‘The Big Question: Why doesn’t the UK have a written constitution, and does it matter?’ The Independent UK [online] Available from < http://www.independent.co.uk/news/uk/politics/the-big-question-why-doesnt-the-uk-have-a-written-constitution-and-does-it-matter-781975.html>[14 January 2009] Risman Brian (2002) A Written Constitution? [online] Available from < http://www.thelawjournal.co.uk/Article%20a_written_constitution.htm>[14 January 2009] UK IN THE USA (2007) Does British have a written constitution? [online] Available from < http://ukinusa.fco.gov.uk/en/faqs/uk-government/written-constitution> [14 January 2009] Read More