The Nature of the UK Constitution - Article Example

To understand the nature of the UK constitution, one simply has to identify the laws of which it is comprised. To the extent that the system of government in the UK operates under rules and practices that are not positively specified by such law, such rules and practices are unconstitutional. Critically evaluate this statement, supporting your evaluation with appropriate examples and authority.” A Constitution is normally defined as the basic framework by which a state is governed. It usually outlines, in broad terms, the powers of a state as well as their limitations vis-à-vis the rights of its citizens. Some of the broad classifications of constitutions are: written or unwritten; republican or monarchical; flexible or rigid; unitary or federal; supreme or subordinate, and; underpin by separation of powers principle or fused powers. 1 The UK Constitution is one of the few constitutions in the world that is characterised as written but uncodified although some see it as unwritten. It is sourced from statutes, judicial decisions, old legal codes, relevant legal textbooks such as those authored by Dicey and Anson, in addition to unwritten ones such as common law and convention. 2 The nature of the UK Constitution, however, cannot be thoroughly understood by a mere identification of these sources, but one must travel back in time and study the country’s history, its type of government and relevant legal concepts such as Parliamentary Sovereignty to fully understand its nature. Moreover, a correct understanding of its nature disproves the criticism that the rules and practices underpinning the government’s operation are unconstitutional because they were not made specifically enforceable by a document. The UK Constitution is characterised as largely written, although some see it as unwritten, but uncodified, a constitutional monarchy, flexible, unitary, supreme, and operates under the fused power principle.3 The fact that it has not been reduced to simple terms in one single written document, however, makes it lacking in simplicity and comprehensiveness. Thes underlying rules and principles of the UK Constitution, therefore, have to be gleaned, extracted and made sense of from a number of sources without guaranty that consensus as to their meaning will be reached. 4 These sources include: the Magna Carta 1215, which clipped the monarchical powers; the Bill of Rights 1609, which created the constitutional monarchy; Act of Union 1707 creating Great Britain by uniting England and Scotland; Representation of the People Act 1832, which restructured the electoral laws of the country; Parliament Act 1911, which reduced the power of law-rejection of the Lords to a two-year delay; Life Peerage Act 1958, reformed the House of Lords; Representation of the People Act 1969, which made 18 the minimum voting age, and; House of Lords Act 1999 that further reformed the House of Lords. 5 Aside from statutes, other sources of the UK Constitution also include prerogative powers or powers traditionally exercised by the Crown, most of which, at present, had been devolved to ministers on behalf of the Crown; judicial decisions or case law; convention, whose informal form often make it a source of disputes; and texts and other secondary sources. 6 To assail the constitutionality of rules and principles because of the absence of a document that compels their legal enforceability is to reject the distinction between written and rigid constitutions on the one hand, and customary and flexible constitutions, on the other. It implies a rejection of unwritten, codified and rigid constitutions such as those of the Romans and the ancient Greece, for example. In contemporary times, New Zealand and Israel, aside from the UK, have only partly codified constitutions. 7 The legitimacy of the Westminster model of government implies the legitimacy of the UK Constitution and all appurtenant rules and principles that are necessary for its enforceability. Under the Westminster model, power is concentrated in the hands of the legislature as opposed to having such power divided among various government branches as embodied in the separation of powers doctrine of the United States, amongst other countries. The core of this system of government is the Parliament. Parliament is not only empowered to select the Prime Minister and his cabinet, but also to enact and pass laws, with no other entity possessing power to supersede that prerogative. Since Parliament cannot bind its successors, the implication is that it cannot enact and pass laws of permanent nature, such as one prohibiting successor Parliaments from repealing that law. This is the essence of Parliamentary Sovereignty and this embodies the fundamental rule of the UK Constitution. 8 Additionally, to assail the constitutionality of rules and principles because of the absence of a document that compels their legal enforceability is to reject the distinction between written and rigid constitutions on the one hand, and customary and flexible on the other. It is implies a rejection the legitimacy of such constitutions as that of the Romans and the ancient Greeks, for example. In contemporary times, New Zealand and Israel, aside from the UK, are also with only partly codified constitutions. 9 Parliamentary Sovereignty is said to be cornerstone of the UK Constitution and according to Dicey, Parliamentary Sovereignty is defined “the right to make or unmake any law whatever; and further that no person or body is recognised by the law of England as having the right to override or set aside the legislation of the Parliament.” 10 Such a definition sets the negative and positive aspects of the doctrine: the positive aspect being the recognition of Parliament as the supreme legislative body subject to no higher authority, and; the negative aspect being that no other body, even national or international courts, could subject the acts of Parliament to review and override them. This perspective is supported by the Edinburgh and Dalkeith Railway Company v Wauchope 11 case where the Court held frankly that it is not empowered to subject the irregularity of Parliamentary business to a review. It thus stated: “All that a Court of Justice can do is to look to the Parliament Roll; if from that it should appear that a bill has passed both Houses and received Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament, during its progress in various stages through both Houses.” 12 This pronouncement, more or less, essayed the meaning of Parliamentary Sovereignty. Recent developments, however, had effected to place a limitation on the doctrine of Parliamentary Sovereignty. One of this is the Constitutional Reform Act of 2005 that, amongst others, clipped the powers of the House of Lords by removing its appellate powers and created the UK Supreme Court. The bigger development, however, was the membership of the UK to the European Union in 1973. UK’s acceptance of the Treaty of Accession implied a parallel acceptance of “past, present and future Community laws.” 13 The Human Rights Act of 1998, a domestic enactment, prohibits public authorities from acting in a way that is incompatible with a right guaranteed by the Convention, which implicitly obliges courts to respect Convention laws, even to the point of relegating the Wednesbury test. 14 In the case of Costa v ENEL, 15 the European Court of Justice declared, to the effect, that EU law is supreme to the national laws of its Member States and that when conflict between the two occurs, the EU law prevails. This was reiterated in the case of Factortame Ltd & ORS v Secretary of State for Transport, 16 a case that took a decade, more or less, to resolve. However, in an effort to reassert the supremacy of UK’s Parliamentary Sovereignty, Lord Denning had remarked in the same case that if Parliament decides in the future to reject or override the EU Treaty or any of its parts, then it is the duty of the UK courts to abide by that decision. 17 It is not enough to know and enumerate the sources of the UK Constitution to understand its nature. The UK Constitution is more complex than that. A study of its sources must also be accompanied by a study of the evolutionary growth of the country, its legislative history and the doctrines and concepts that are inherent in its existence. Moreover, it is not correct to declare that the rules and principles underpinning the government’s operations are unconstitutional simply because such rules and principles have not been identified expressly in a document. The UK Constitution is not only comprised of written statues and codes but also customary laws and convention. It is constantly evolving and growing, with such rules and principles adopted along the way and forming part and parcel of the country’s Constitution. Moreover, the country is underpinned by the Westminster type of government model where Parliamentary Sovereignty is its cornerstone. This reinforces the Constitution’s flexibility and ever-changing nature, growing and changing as the country grows. The UK Constitution is an evolving law, whose precepts and principles are the products of the continuous use of such conventions, customary laws, statutes and laws. References: Barendt, E. ‘Is There a United Kingdom Constitution?’ Oxford Journal of Legal Studies, Vol. 17, No. 1 Barnett, H. Understanding Public Law (Taylor & Francis, Oxon 2009). Constitutional Reform Act of 2005. Costa v ENEL [1964] ECR 585. Dicey, A.V. Introduction to the Study of the Law of the Constitution (Elibron.com, 2000). Edinburgh and Dalkeith Railway Company v Wauchope [1842] UKHL 710, 8 ER 279. Factortame Ltd & ORS v Secretary of State for Transport ECJ Case C-213/89. Jayapalan, N. Modern Governments (Atlantic Publishers & Distributors, 1999). Lapsley, I. Accounting in Politics: Devolution and Democratic Accountability (Taylor & Francis, 2008). Peele, G. Governing the UK: British Politics in the 21st Century (4th Edn Wiley-Blackwell, 2004). Watts, D. & Pilkington, C. Britain in the European Union Today (3rd Edn Manchester University Press, UK 2005). Read More