The British Constitution - Essay Example

 Introduction Acherman (2007, p. 1741) states in ‘Living Constitution’: “We have lost our ability to write down our new constitutional commitments in the old-fashioned way. This is no small problem for a country that imagines itself living under a written Constitution…Conventional wisdom gives the happy answer: it’s a good thing that formal amendment is so hard; otherwise, the Constitution would become a mess, full of details signifying little”. The important feature of the British constitution is that it has no written constitution, which lends flexibility and discretion to the judiciary in taking decisions. This paper seeks to discuss the statement ‘Britain's constitution has by and large been a success’ made by Barber N.W (2008) to uphold the view that the position does not provide an argument for us to adopt one. History of British Constitution Parliamentary sovereignty is the main feature of British constitution. Though the constitution is unwritten in one single document, it is not entirely unwritten. It is also mostly embedded in the written form through various statutes, judgments and treaties apart from the conventional principles. In countries like the USA whose democratic origin has been very recent, writing constitution for a new country after their independence from British rule was a necessity. But, parliamentary democracy in Britain has a very long history and the Parliament of UK is one of the oldest democratic institutions in the world. After the merger of the Parliament of Scotland in 1707 and Ireland in 1801 with the English Parliament, it has been known as the Parliament of the United Kingdom. The country has an established judiciary system with a long history and the system has been evolving over the period of time mainly based on precedents in the legal landscape. Parliamentary sovereignty is the fundamental principle of the un-codified British Constitution. There were controversies at the time of UK’s accession to European community based on the concerns that law-making functions could eventually be transferred to the EC Commission and the Council of Ministers. After the accession of the UK to European Economic Community, European common law has gained preeminence in the UK which is inevitable. In Thoburn v Sunderland City Council [2002] it was observed “All the specific rights and obligations which EU law creates are by the ECA incorporated into our domestic law and rank supreme: that is, anything in our substantive law inconsistent with any of these rights and obligations is abrogated or must be modified to avoid the inconsistency”.  (Baili, 2002) But, it is important that the EU law for this purpose should originate from and authorized by the Parliament. It was asserted in the case that there is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom. In the Thoburn case there was criminal conviction of Steven Thoburn, a green grocer and other defendants for various offences inter alia calibration of weighing machines and the use of unapproved instruments or measures. In such cases which deal with constitutional issues, political and legislative implications are also involved. Drewry, G. (2007, p.112) states “the political and parliamentary implications are every bit as important as the legal ones. Both (one of which is Thoburn’s) cases, in their different ways, were concerned with important areas of national and European public policy, and with legislation that is a product of political processes’. The written constitutions in such cases are likely to pose adaptation problems as the issue covers various aspects of international importance and cross border activities. The establishment of European Court of Justice and its growing significance in the legal system of the United Kingdom and the supremacy of EC law in the event of conflicts with the UK laws have caused a great deal of discussions and debates in the legal circles and generated interest among the political scientists. Interpretation of law Ackermann, L. W. H. (2000, P. 1) states “An almost universal feature of modern constitutionalism is a Bill of Rights which forms part of the Constitution and which is designed to protect and enforce individual rights principally, although not exclusively, against the state”. The legal provisions cannot envision varied situations in constitutional matters as in the case of any law for that matter. The constant process of interpretation involving precedents plays a vital role in shaping up the British constitution laws, and many rules in respect of constitution are based on legal history. Perhaps adaptation to the changes which are taking place on a continuous basis makes unwritten constitution superior compared to the written one. The interpretation of law in the context of the prevailing circumstances is important for the judiciary in deciding on the cases. However, in the backdrop of the written constitution, interpretation of law cannot deviate too far from the provisions expressly provided for in the constitution. Therefore, the judiciary is constrained to take decisions within the frame work of the written laws which might offer very limited scope for discretionary powers to the judiciary in deciding the cases. In the case of written constitution, the responsibilities of the judges are technically restricted to administration of law. Whereas, in the interpretations in respect of unwritten constitution, the decisions are always guided by the precedents, subject to the new facts of the case and its admissibility with regard to its constitutional relevance under the current circumstances. Reference to single document is an advantage in written constitution, whereas in the case of unwritten constitution, in finding the thread one has to go through several documents for the principles and application of law, often found contradictory in view of the contradicting circumstance based on several factors. Minor differences and finer points may lead to several decided cases, which could act as precedents in deciding a case. However, that cannot be considered as a justification for written constitution, because, earlier decisions on similar cases are nevertheless important in legal proceedings even under written constitution. It may be difficult for a common man to do the exercise of going through several documents and case histories, but not for the lawyers and judiciary. Constitutional changes In the case of unwritten constitution of the UK, the changes are continuously taking place over the period of time, and in fact, it is an evolutionary process. Shepherd & Wedderburn LLP (2008) states “When he came into office last Summer, Gordon Brown's first speech to Parliament as Prime Minister was aimed at seeking to redress the balance between Parliament and the Executive. The Prime Minister's "to do" list sought to reform 12 existing prerogative powers, introduce a public petition procedure for the House of Commons, provide for … the possibility of a written constitution. The aim of all these proposals was an attempt to increase the accountability of those who hold power and enhance the rights and responsibilities of the citizens”, but, the moves were not successful.  The written constitution of a country, for example the USA, has an element of rigidity in the structure. Here, a change in constitution can be accomplished in legislatures only under certain conditions, say, by a majority of two-thirds in both Houses and the amendments ratified by three-fourths of the constituent states, and the specific provisions vary from country to country. Also, the judges of the Supreme Court have to decide whether an action on the part of the legislature is permitted by the constitution. Therefore, the most important feature of written constitution could be the mechanism in the law to resist changes. There is formal protection of rights under written laws, which is very difficult for the legislature to make amendments. For example, an amendment to the constitution in the State of Massachusetts in the USA must first be endorsed by a special majority in the legislature during two consecutive terms, and then submitted to a referendum, which makes the process more difficult in a federal structure. Herman, S. N. (2006, p. 131) argues “the Supreme Court should reconsider the sycophantic Fourth Amendment doctrine that does little more than defer to whatever decisions Congress makes, even when the Fourth Amendment’s “people” disagree, and even when a minority of those people bear the brunt of those decisions. This may well reflect the inadequacy in the written constitutional structure. It is to be noted that the special status of the constitutional rights is recognized in the unwritten constitution. In the judgment of Lord Justice Laws in the Thoburn v Sunderland City Council [2002] it has been stated “We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes …The special status of constitutional statutes follows the special status of constitutional rights”. Amendments to Britain’s unwritten constitution need simple majority support in both the Houses of Parliament. “One conspicuous feature of the English constitution, by which it is broadly distinguished from written or artificial constitutions, is the presence throughout its entire extent of legal fictions”. (Classic Encyclopedia, 2006)  These principles are like legal inventions to implicitly justify a rule of law on ethical standards. Accommodating legal fictions in written constitutions would not be possible. Recent developments in UK and its constitutional implications Norton notes that ‘they [New Labour] have taken the Westminster model, the traditional constitution, and modified it, some would say vandalized, and not actually replaced it with a new form of constitution’… Lijphart notes from a comparative perspective, ‘fundamental constitutional changes are difficult to effect and therefore rare’. (Flinders, M., 2010, p. 57) The fundamental changes to the constitution or, for that matter, any law need to be guided by public opinion and debates by the intellectuals for the reform process to succeed. The issue of MP expenses scandal, which in the first place set the ball in motion for elaborate discussions on the subject, cannot be treated as a ‘systemic failure’ or as a ‘threat to democracy’ which call for ‘written constitution’ as the issue has very little relevance which warrants constitutional restructuring. It is also important to note that the recommendations of Commons watchdog Sir Christopher Kelly published in November 2009 have been silent about constitutional reforms, though it stated “The committee acknowledged there had been "a profound crisis of public confidence in the integrity of MPs" and warned that restoring trust would be a slow process”. (Summers, D., 2009) Though the MP expenses scandal has triggered public anger and outcry against the MPs or politicians, the people have not demanded any action on the part of the government to change the constitutional structure or introduce amendments to the constitution reiterate the argument that the basic issue of malpractices of the MPs which has resulted into erosion of public confidence cannot be treated as a threat to the democratic institutions or equated to a constitutional crisis, and call for adoption of a written constitution. Flinders (2010) states: In 1992 Gordon Brown called for ‘a decisive shift in the balance of power . . . the demand is not to tidy up the constitution, but to transform it’. And yet the constitution has not been transformed. It has been significantly modified, but as Nairn has argued ‘the mainframe has remained sacrosanct’; Conclusion The phenomenon of jurisdiction and the judiciary defending their territory against political encroachments has caused friction between legislature and judiciary. But, the embodiment of the principle of separation of powers of the three arms of the state, legislative, judiciary and executive and protection of their independence in constitution ensures effective checks and balances on the three arms of the state. The constitutionality with reference to the issues can be eminently discussed under unwritten constitution in respect of any point of law or its application to the case, taking into consideration the path followed in the earlier cases over a period of time in line with the changes taken place in the society since then. The rigidity setting into the process in the case of written constitution would make the judiciary less responsive to the need for a different treatment required based on the facts of case. The status quo is maintained till the constitution is amended despite the difficulties involved in this process. The dispensation of justice is delayed, denied or resulted into dependence on legislature. Therefore, it can be safely concluded that “Britain's constitution has by and large been a success’ and the position does not provide an argument for us to adopt written constitution. References Acherman (2007) The Living Constitution, Harvard Law Review, May 2007, Volume 120, No. 7. Ackermann, L. W. H. (2000) THE OBLIGATIONS ON GOVERNMENT AND SOCIETY IN OUR CONSTITUTIONAL STATE TO RESPECT AND SUPPORT INDEPENDENT CONSTITUTIONAL STRUCTURES, Potchefstroom Electronic Law Journal, Vol: 3 Issue: 1, http://www.puk.ac.za/opencms/export/PUK/html/fakulteite/regte/per/issues/00v1acke.pdf Bailii (2002) Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) (18 February 2002) http://www.bailii.org/ew/cases/EWHC/Admin/2002/195.html Barber, N.W. (2008) 'Against a Written Constitution', Public Law (2008), issue SPRIN, p. 11-18. Classic Encyclopedia (2006) Constitution and Constitutional Law. http://www.1911encyclopedia.org/Constitution_and_Constitutional_law Drewry, G. (2007) The jurisprudence of British Euroscepticism: A strange banquet of fish and vegetables, Utrecht Law Review, Vol: 3 Issue: 2 pp. 101-115 Flinders, M. (2010) Bagehot Smiling: Gordon Brown’s ‘New Constitution’ and the Revolution that Did Not Happen, The Political QuarterlyVolume 81, Issue 1, January–March 2010. http://onlinelibrary.wiley.com/doi/10.1111/j.1467-923X.2009.02063.x/pdf Herman, S. N. (2006) The USA PATRIOT Act and the Submajoritarian Fourth Amendment, Harvard Civil Rights-Civil Liberties Law Review, Vol. 41. http://www.aclu.org/files/pdfs/about/herman_usapaf.pdf Shepherd & Wedderburn LLP (2008) Constitution reform: a work in progress, 3 September 2008. Association of Corporate Counsel, Globe Business Publishing Ltd., http://www.lexology.com/library/detail.aspx?g=2e787134-c6e4-42f1-beaf-af5c624e5eea Summers, D. (2009) MPs' expenses: Christopher Kelly announces reform proposals, guardian.co.uk, 4 November 2009. http://www.guardian.co.uk/politics/2009/nov/04/christopher-kelly-mps-expenses-proposals?INTCMP=SRCH Read More