Britains Uncodified Constitution - Literature review Example

The Essence Of The British Constitution Is Better Expressed In The ment That It Is A Historic Constitution Whose Dominant Characteristic Is TheSovereignty Of Parliament, Than In The Statement That Britain Has An Unwritten Constitution. Britain’s’ Uncodified Constitution A constitution can be defined as the set of laws by which a sovereign state is governed (Barnett, 2005). The British constitution is the set of governing laws and principles in the United Kingdom. This constitution is unlike many of those found in modern day states. It is not a written or codified constitution; it is uncodified. An uncodified constitution is one that does not have a single or formal document delineating the government’s powers (Barnett, 2005). As a consequence, parliamentary procedures create a framework upon which a government that has limited power exists and runs he country. The British Constitution has a long and rich historical background. The constitution is one of the most important features of the country’s history. The sovereignty of parliament is the constitution’s dominant characteristic, something that is normally not recognized when it is referred to as an Unwritten Constitution. The British Constitution is a symbol of the values, traditions and political life of the British society according to Allen and Thompson (2000). The principles in this constitution have been accumulated over many centuries. These principles are based not on codified texts and documents, but on precepts and ideas. It can therefore be said that the British Constitution is, the basis of UK politics, ideals and values, although it is not codified or written in legal terminology like the constitutions in modern day states (Hatchard and Slinn, 1999). To the British, the constitution is like a cohesive pillar that exemplifies the normative goals and political unity that they would want to achieve. The British parliament and its legislative responsibilities act as the cohesive bond. Parliament as an institution enjoys a dynamic interaction with the people and understands what their needs are. This parliament is also quite open to gradual transformation and development, something that has greatly endeared it to many as a model political system, even though it operates without any codified laws. All constitutions come with a certain amount of power which has to be dispensed and exercised by someone (Bradley & Ewing, 1997). In the United Kingdom, this power comes from or is dispensed by the monarch and it is exercised by the government and parliament. This is to say that parliament is one institution in Britain which has a big role to play in the political administration of the country. The Sources of the UK Constitution The history of the British constitution has an interesting past that is characterized by the unification of separate kingdoms and the struggle for supremacy between the Church and the Sovereign and between the sovereign and the parliament. The constitution is made up of many different documents (History Learning Site, 2010), which makes the term Unwritten Constitution quite misleading as noted by (Hatchard and Slinn, 1999). The sources for these laws come from: statutes, common law, conventions, treatises and treaties. Statutes are individual laws that are also commonly referred to as Acts of Parliament. Common laws are case laws or those laws that are created as a result of the outcome of a certain case in court. Conventions are long standing practices such as traditions and customs that have been accepted in society. Treatises on the other hand are the documentations of legal works and may also include constitutional authority. Treaties are agreements made with other nations and bodies, such as the EU agreements. Treaties do not automatically become law after their ratification. They have to be incorporated into the domestic law through an act of parliament. For instance, the European Convention on Human Rights has been incorporated into the UK Human rights Act 1998 through an Act of Parliament. Principles of the British Constitution Some of the salient features and principles of the British constitution include: the Rule of Law, Bill of Rights, Human Rights Acts and the Sovereignty of parliament (Hatchard and Slinn, 1999). Parliamentary supremacy as a concept only is dedicated to expressing the magnitude o importance and esteem with which parliament is held in the United Kingdom. Parliament is in effect accorded greater power over the courts and government institutions. Parliament can in fact overrule any legislation that might have been instituted by previous parliaments. The constitution of Britain also allows parliament to enact any laws regarding any government activities in so far as they are subject to change by future governments. The uncodified constitution governs four countries namely England, Wales, Northern Ireland and Scotland (Hatchard and Slinn, 1999). The four countries exist as independent states and have their own legislative and executive institutions. The constitution furthermore gives parliament the power to abolish the authority of the aforementioned countries at will making it simple to amend their laws. Rule of law In the United Kingdom, the rule of law is applied to all individuals equally. The law is deemed supreme like it happens to be in other countries. Justice is accorded to individuals and groups based on standards and known procedures. The country’s constitution also upholds the concept of judicial precedent and puts restrictions on how discretionary power is used. Bill of Rights The bill of rights is the short form of the Act of the English Parliament which is entitled: An Act Declaring the Rights and liberties of the Subject and Settling the Succession of the Crown. This Act is often also called the English Bill of Rights. This Bill was passed in December 1689 and has since been used as the basis for Human Right reforms in the United Kingdom. This bill sets out the limits on the sovereign and lays out the rights of parliament. It also lays down the rules for the freedom of speech in parliament as well as stipulating the requirement for regular parliamentary elections. In addition to all these, the bill also establishes the right to lawfully petition the monarchical authority without any fear of retribution. This is one of the oldest of the Bills that govern the United Kingdom. It is one of the main legislations that are followed in regards to matters related to succession to the throne. The bill of rights one of the main basic documents that makes up the uncodified constitution of Britain. The other documents are the Magna Carta of 1215, Habeus Corpus and the Parliament Acts of 1911 and 1949 (Jowell and Oliver, 2000). The Bill of Rights is a very important document in the past and present history of the United Kingdom as it also lays down the basic rights of all English citizens (Slapper and Kelly, 2009). These rights are applicable not only in the UK, but also in other Commonwealth countries and regions as well. Some of the things outlawed in the Bill of Rights include: 1. Law interference by the royalty 2. Taxation through royal prerogative 3. Standing army during times of peace 4. Royal interference of the freedom to own arms as provided for in the law 5. Royal interference in parliamentary elections The bill of rights provides the following freedoms: 1. Freedom to petition the monarchical authorities without fearing retribution 2. Freedom of speech and debates in parliament The British Bill of Rights does have an impact on the sovereignty of parliament. For one, it outlaws the interference of the monarch on the elections of parliamentary representatives. This means that the monarchy cannot influence the business of parliament through the elected members. Human Rights Act The constitution of Britain keeps changing over time making it hard for nationals of the state to know the changes that have occurred most recently (Slapper and Kelly, 2009). As a result, the nationals have to constantly live on the edge as they try to seek the direction that the country is probably going to take next. Since the constitution keeps changing, there are numerous human rights acts that get violated. Even though this may be the case in numerous circumstances, the advantage of the uncodified constitution is its flexibility and appreciation of reforms. In 1998, for the very first time the constitution accepted the codification of human rights. The changes that took root in the constitution also saw power getting devolved to other regions. The British constitution also gives rights to courts to proclaim legislations incompatible whenever it is deemed that they go against the Human Rights Act. The principle of parliamentary supremacy as accepted by the European Union makes it easy for the institution to modify or amend at any time the Human Rights Act. Sovereignty of Parliament The UK constitution was and continues to be an instrumental part of the country’s sovereign parliamentary system. It is through the constitution that most of the powers of the monarchy on the legislature were reduced. Parliament Sovereignty means that as far as law making is concerned, parliament has authority to make and amend any laws (Hatchard and Slinn, 1999). In other words, it is the supreme law-creating body. The acts that are passed n parliament are the highest sources of law in Britain. Parliamentary sovereignty assumes that the laws created in parliament and other government actions conform to the fundamental principles of equality in the application of the law (Jowell and Oliver, 2000). Equal application of the law means that there is no one who is above the law, even those in power. The laws also should conform to the principle that no one can be punished if he or she has not breached any art of the law. In Britain, parliament is allowed to pass any laws as it wishes. This is in great contrast to other countries which are governed through codified constitutions which bar them from enacting laws which go against the conditions set in the constitutions (Slapper and Kelly, 2009). There are several acts of parliament in the British Constitution that contribute towards the parliament’s sovereignty. For instance the Parliament Acts 1911 and 1949 provide for the default lifetime of a parliament to be five years (Jowell and Oliver, 2000). However the same acts provide members of both houses the power to alter the length of a parliamentary seating. In 1935, during the World War II, parliament voted to extend its lifetime to 1945. Despite this kind of parliament sovereignty, the sovereign has the power to dissolve parliament but that decision has to be made in full consultation with the Prime Minister. In the United Kingdom, Parliament has the freedom and power to alter the composition of the two houses or change how the two relate as noted by Jowell and Oliver (2000). A case in point is the House of Lords Act 1999 which ensured that the membership of the Upper House was changed. The Reform Act 1832 The Parliament Acts 1911 and 1949 made significant changes to the way the two houses related to each other. The European Union and Parliament Sovereignty Since the United Kingdom is a signatory to the EU Law, it has to abide by EU’s regulations (Slapper and Kelly, 2009). The Union’s legislative effect is only felt if and when parliament allows it to have that effect. This is because in Britain it is parliament that passes laws which can be regarded as part of the country’s constitution. Conclusion The nature and importance of the constitution of Britain is better appreciated by considering it as a historic document which maintains its main characteristic in giving greater power to parliament than in stating that it is a collection of laws that are not written. The constitution has been and so remains the backbone that holds the United Kingdom’s sovereignty an its system of parliament. The unwritten constitution allows parliament to conduct its legislative duties without any interference from any figures of authority including the monarchy. The two most important principles that are contained in the British constitution include the rule of law and the sovereignty of parliament. These two principles have formed the basis upon which the country has been governed and continues to flourish. Embodied in the supremacy of parliament are the traditions, political history and values that have been instrumental in shaping the country over the years. Bibliography M. Allen and B.Thompson (2000). Cases and Materials on Constitutional and Administrative Law (6th ed).Blackstone, London, chap 6. H. Barnett (2005). Constitutional and Administrative Law (5 ed.). (London: Cavendish). pg 9. A. Bradley & K. Ewing, (1997). Constitutional and Administrative Law. London. p. 271. J. Hatchard & P. Slinn 1999. Parliamentary supremacy and judicial independence: a Commonwealth approach: proceedings of the Latimer House Joint Colloquium, June 1998. (Routledge). pg10-30. History Learning Site (2010). The British Constitution. Available http://www.historylearningsite.co.uk/british_constitution1.htm Accessed 15th December, 2010 J. Jowell & D. Oliver (2000). The Changing Constitution (4th ed.) Oxford University Press, chap. 10. G. Slapper & D. Kelly (2009). The English Legal System: 2009-2010. (Taylor & Francis). pg 41-60. Read More