The British Constitution, Constitutional and Administrative Law - Essay Example

Constitution of the UK The British Constitution is not a single written document. It is a combination of legal and non – legal rules and practices. These practices act as the framework on which the government is based, and regulate the behaviour of political parties. From this perspective, it can be claimed that every country has a constitution. The British Constitution establishes the necessary framework for the operation of the Government. 1 As such, the courts had developed certain laws through their rulings, and these are collectively known as the common law. The Constitution is entirely based on Statutory and common law. As such, the British Constitution is an uncodified document. The British constitution renders Parliament a sovereign authority under the concept of the sovereignty of Parliament. Thus, Parliament can make or unmake any law. 2 The Constitution provides supreme authority to Parliament to make laws through its legislative power. As such, the UK does not have a written Constitution. It is a collection of practices and laws. It is not a codified Constitution and is derived from a number of sources. Parliament is the sovereign authority in the UK and it enacts statutes, which constitute the highest form of the law. No institution or courts can challenge the statutes. In the UK, the administration is governed through long established practices or conventions.3 The government operates within the boundaries of these conventions. Moreover, the courts in the UK have developed a form of law, which is known as the common law. Furthermore, the UK became a Member State of the European Union (EU). To make the accession easier, Parliament enacted the European Communities Act 1972. However, membership of the EU has made the British Constitution subject to the European Community Law. In addition, the UK is required to act in compliance with international law. 4 All these factors have a profound effect on the British Constitution, which is not a written document. Thus, the constitutional authorities have been referred to, whenever there is a need to interpret the Constitution. As the British Constitution is an uncodified constitution, it generates some problems during its interpretation, in certain areas. It is difficult to understand the actual nature of the constitution. 5 Moreover, amendments can be made to the constitution without difficulty. This is very difficult in countries with written constitutions. In such countries, the constitution will be in the form of documents, which enjoy the status of a higher law of the country. In such countries, the government is regulated by the constitution. As such, the Constitution of the UK is flexible and it permits amendments. There have been a number of constitutional reforms, since 1977. Some of the instances of its flexibility are described below. These include the abolition of hereditary peers in the House of Lords; the bill of fundamental rights or the Human Rights Act 1998, which is a codified bill of individual’s rights in the UK; and the devolution of Scotland, Wales, and Northern Ireland. 6 The constitution of a country can be defined as its fundamental principles of government. These principles can be collected in a single basic document or several such documents. In addition, these principles could be implied by the customs, institutions or laws of that nation. The British constitution falls under the category of customary and unwritten constitutions.7 The British constitution is to be inferred from the statutory and common law of the country. It is also to be deduced from the traditions and practices of the government. The flexibility of the British constitution is derived from the fact that it can be modified by a simple act of Parliament. As a consequence, the nation can quickly react to any constitutional emergency. However, the disadvantage of this flexibility is that there is no basic protection for civil liberties, personal rights, or areas where parliamentary legislation is undesirable. 8 In addition, the Parliament can amend the constitution by enacting an Act or by a general agreement to change a convention. The UK constitution is flexible and has been amended on several occasions. It has developed through the changes made to it. The UK became a member of the European Community in the year 1973. The European Court of Justice plays an important role in the EU. All Member States are required to give effect to the decisions of the European Court of Justice. 9 As such, Member States have to give a higher priority to the provisions of the EC Law than their national laws. The UK is no exception to this rule. Moreover, the rulings of the European Court of Human Rights have also to be adopted by the UK. These rulings have to be incorporated into its domestic law. As a consequence, the legal system of the UK is undergoing an inexorable transformation, whereby it is coming to resemble the legal system prevalent in Europe. 10 Furthermore, the Human Rights Act 1998 has incorporated the provisions of the European Convention on Human Rights into the national laws of the UK. This makes the ECHR an essential component of British law. With the impetus given by the ECHR, the UK has enacted the Bill of Rights. 11 Subsequent to the UK’s accession to the EU, the UK was forced to give effect to the decisions of the European Court of Justice. This compelled it to change some of the sections of its national laws, so as to incorporate the provisions of the EC Law. The UK is a signatory to a number of international treaties, and is also a Member State of the EU. This is possible through the constitutional and legal arrangements made by the UK. This is a unique feature of the UK and the legal arrangements resemble those of the EU. Moreover, the UK has enacted the Constitutional Reform Act of 2005 to introduce some more changes to its constitution. Under the new reforms, the UK has established the Supreme Court, which is independent from Parliament. It has also made changes to the office of the Lord Chancellor.12 In addition, the UK enacted the Constitutional Reform and Governance Act 2010 to introduce changes to the constitution. Under the aegis of this act, the UK had given statutory effect to the civil service and the Ponsonby Rule. The Ponsonby Rule pertains to the obtention of the approval of Parliament for ratifying any treaty by the UK.13 Under the doctrine of the sovereignty of Parliament, the Parliament can enact any law it likes. It has the power to make laws and this power is absolute. No individual or institution can challenge this power of Parliament. The British Parliament enjoys the status of sovereign legal authority. It is the legislative authority and also the sole source for that authority. No individual or institution can question the legal authority of Parliament. 14 Under the doctrine of parliamentary sovereignty, there cannot be any legal or constitutional checks to regulate the power of government. In the case of Jackson, it was disclosed that supremacy does not rest solely with the Parliament and that to some extent the judiciary is influential in this regard. In general, supremacy of the Crown rests with Parliament, which denotes that the British courts are not empowered to set aside legislation, even though it is grossly unjust. However with the decision in Jackson, the extra judicial decision displayed a transition in the judicial attitude. 15 In other cases like Burma oil and Congreve v Home Office, the government amended the laws when the courts decided against them. In the Burma Oil case, Parliament enacted the War Damages Act 1965, in order to restrict others from obtaining compensation.16 In Congreve v Home Office, the Home Secretary attempted to restrict increase in the cost of licenses, by controlling the purchase of Television licenses.17 Moreover, no court, including the Supreme Court can declare an act of Parliament to be unconstitutional. Thus, the British Constitution provides the sovereign power to Parliament to make or unmake any law it wishes. The Constitution itself is a combination of the laws made by Parliament. Thus, any act of Parliament is constitutional. 18 However, it cannot be construed that every act made by Parliament is fair and morally correct. The constitutional power granted by the Constitution empowers Parliament to enact any law that it wishes. This makes it possible for unjust and unfair laws to be enacted. Parliament, per se, is a sovereign authority in the UK with the fullest legislative authority. 19 Each and every individual and institution has to abide by the laws made by Parliament. As such, there is a glaring absence of a formal system of checks and balances, whereby the integrity of the constitution of the UK can be preserved. The only measure of protection provided is that of the House of Lords, who enjoy a limited power to delay or rescind legislation. This is provided under the Parliament Acts. As a consequence, any government that has a majority in the House of Commons can change the constitution.20 Another major lacuna is the absence of a formal and established convention regarding the procedure to be adopted for effecting a major change to the constitution. Thus, a coalition or an individual party with the necessary number of MPs can change the constitution to serve their vested interests. Under these distressing and alarming circumstances, it is incumbent upon the parliament and government to realise the necessity for restrictions on the process for effecting constitutional change. This will prevent a government from changing the constitution to serve its narrow objectives. The constitution of the UK is endowed with considerable flexibility. Such flexibility should not be compromised by imposing a novel system that precludes a government from making changes to the constitution.21 However, the Constitution of the UK has been undergoing a gradual transition from a political to a legal entity. This development is of recent origin, and issues that had been subject to moral or political regulation are now coming under the ambit of the legal rules. Some of the reasons behind this change are membership of the European Union (EU), widening of the scope of judicial review, and the genesis of common law constitutionalism. Several constitutional reform measures have been adopted by the Labour Government, which have had a major influence in bringing about this change. 22 Despite these changes, the political constitution shows no sign of emasculation. The new legal arrangements have adopted some of the features of the written constitutions, with the result that new political practices have come to the fore. These political practices change or add to the letter of the law. An instance is provided by the Sewel convention, according to which the Westminster Parliament abstains from legislating on matters devolved to the Scottish Parliament. The exception arises, when the Scottish Parliament consents to such action by the Westminster Parliament. 23 Another example is provided by the use of Concordats and Memoranda of Understanding, of a non – statutory nature, to regulate relations between the devolved administrations and the UK Government. Such use is aimed at addressing issues that are beyond the brief of the pertinent statutory provisions, which deal with only a few issues. 24 As such, a certain degree of change is now being effected upon the institutions and powers of the UK Government. This development is of recent origin, and prior to this, these had been impervious to constitutional changes. Evidently, they are liable to review and reform, and this has been enhanced with the enactment of the Human Rights Act 1997 and the Freedom of Information Act 2000. 25 In addition, the public sector is now being subjected to greater legal regulation. Furthermore, there is a greater availability of judicial review under at common law. However, the powers and institutions of the government have not been considered for sweeping changes. It is not to be concluded that the executive has remained invulnerable to change. Several changes have been effected, especially by the creation of the Next Steps Agencies and the New Public Management interventions. This was initiated by the previous Conservative Government and continued by the Labour Government. These changes are of constitutional significance. 26 These changes have been implemented with a modicum of statutory involvement. In addition, these changes have been independent of any concrete changes to the fundamental constitutional understandings and associations. As a consequence, the principles underlying the crucial institutions of Prime Minister, Cabinet and Civil Service, and the central constitutional relationship between the Crown and Parliament have largely remained unchanged. These continue to be based on convention and practice, and are not subject to enforceable laws. 27 Nevertheless, attempts have been made to rectify this situation. Thus, in July 2007, Gordon Brown, the then Prime Minister, published wide ranging constitutional reform proposals in the Green Paper, The Governance of Britain. Some of these proposals, merely attempt superficial change. Examples are the amendments to the Ministerial Code, restriction of the prosecutorial functions of the Attorney General, reforms relating to the reporting of expenditure decisions and the publication of government statistics. 28 Other instances are governance of the National Audit Office, enhanced scrutiny by Parliament of the legislative programme and departmental objectives of the Government, and increased accountability with regard to intelligence issues and national security. However, some of the proposed changes have considerable constitutional significance. Examples are the acceptance that prerogative powers should be based on a statute and should be subject to a much stronger scrutiny and control by Parliament. Other instances of this kind are proposals to diminish the powers of patronage of the Government and to enhance parliamentary oversight of public appointments. The erstwhile Prime Minister Tony Blair did not believe in constitutional reform. He was in fact opposed to any such move, and in one instance even contemplated amendment of the Human Rights Act 1998. He made this threat, after several adverse rulings by the courts in cases of terrorism and immigration. 29 Reforms have by and large been influenced by electoral calculations. An example is provided by the measures adopted after the 1997 election. Thereafter, reforms were not adopted with much enthusiasm, especially in areas, such as the voting mechanism for the Westminster Parliament. With regard to the Green Paper of Gordon Brown, it is to be realised that his initiatives were chiefly aimed at portraying to the public that his style of governance was markedly different from that of Tony Blair. It was also in response to the accusations made against him for allegedly functioning in an autocratic manner. 30 From the above discussion, it can be concluded that Parliament cannot amend the constitution, as and when it pleases. This situation has come into existence, subsequent to the UK becoming a Member State of the EU. Prior to this, Parliament had enjoyed supremacy, which has been significantly eroded, after the UK became a Member State of the EU. The Regulations and Directives of the European Community and the case law of the European Court of Justice, determine the legal system of the UK. This is the contemporary reality. 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Great Britain: Parliament: House of Lords: Select Committee on the Constitution, The process of constitutional change: 15th report of session 2010-12, report (The Stationery Office 2011). Human Rights Act 1998. McCorkindale C, and McKerrell N, ‘Assessing the Relationship between Legislative and Judicial Supremacy in the UK: Parliament and the Rule of Law after Jackson’ (2012) 101(4) Round Table 341. McHarg A, ‘Reforming the United Kingdom Constitution: Law, Convention, Soft Law’ (2008) 71(6) Modern Law Review 853. Packman JH, ‘The Effect of the Parliamentary Voting System Act on the British Constitution’ (2011) 89(5) Texas Law Review 1229. R (Jackson) v Attorney General [2005] UKHL 56. Tusalem RF, ‘Problems Associated with the Incorporation of the European Convention of Human Rights into British Law: Threatening Britain’s Parliamentary Sovereignty?’ (The Midwest Political Science Association, 15 April 2004) accessed 5 March 2013. Read More