The British Constitution - Essay Example

TO WHAT EXTENT CAN IT ACCURATELY BE SAID THAT THE UNITED KINGDOM IS MOVING TOWARDS A DOCUMENTARY CONSTITUTION? GIVE REASONS FOR YOUR ANSWER. Introduction One of the most notable features of the British constitution is its unwritten or non-documentary nature. (Bradley and Ewing, 2003) The British constitution is held to be unwritten as there is no single document or body of documents that could be referred to as the ‘the Constitution of the United Kingdom of Great Britain and Northern Ireland’. Thus the British constitution can be contrasted with other constitutions like the Constitution of the United States of America. (Barendt, 1997) Brazier (2001) has for instance stated that: “A British citizen has to seek the rules of the constitution in a daunting number of places – legislation, judicial decisions, statements about constitutional conventions, the law and practice of Parliament, European Community law, and so on.” (p.3) Though the British constitution is conventionally held to be unwritten, a cursory look at the main sources of the constitution provided above by Brazier, reveals that to quite a large extent, the UK constitution has a written nature. The concept of parliamentary supremacy in the British constitution makes the Acts of Parliament superior to any other source of law and as such, Parliament can, and does amend the constitution and creates more statutes that are constitutional in nature. (Loveland, 2006) Whereas other sources of the constitution like conventions and the Royal prerogative are mostly unwritten and reflect accepted norms and practices established over time that are held to be binding, (Barnett, 2006; Durkin and Gay, 2005) they do not come into being on a consistent basis as do statutes. The increasing proliferation of statutes of a constitutional nature (especially under the Labour’s constitutional reform programme), thus implies a move in the direction of a more documentary nature of the British constitution. Consequently, to argue that the United Kingdom is moving towards a documentary constitution is to recognise the largely written nature of the constitution, coming from sources like statutes, while still conceding that: “The British constitution is … not codified into a single official document, or a limited number of such documents, setting out those legal rules which prescribe how the state is to be governed.” (Brazier, 2001 p.3) Despite the ‘infinite’ nature of the British constitution, a panoramic review of statutes of constitutional significance would show the historical trend towards a more written constitution. Acts like the Habeas Corpus Act 1679, the Bill of Rights 1689, the Act of Settlement 1701, Act of Union 1707, the Parliament Acts of 1911 and 1949, Representation of the Peoples Act 1928, Representation of the Peoples Act 1949 and the European Communities Act 1972, all hold important positions in the British constitution and they are all written. (Barnett, 2007) The coming into power of the Labour government in 1997 and its implementation of the constitutional reform programme has added to the increasing documentary nature of the British constitution. The passing of important statutes like the Human Rights Act 1998, the House of Lords Act 1999, Freedom of Information Act 2000, and the Constitutional Reform Act 2005, are testaments to the move towards a documentary constitution. The various devolution Acts (i.e. the Scotland Act 1998, the Government of Wales Act 1998, and the Northern Ireland Act 1998) have also established in a constitutional and documentary manner the relationship between Westminster and the devolved entities within the context of a unitary state. Also as Lord Justice Laws opined (obiter) in Thoburn v Sunderland City Council, statutes may be conceived of either in ordinary terms or in constitutional terms. Going by Lord Justice Laws opinion of Acts of Parliament would thus establish a hierarchy of statutes – some ordinary and others ‘constitutional statutes’. Thus the more ‘constitutional statutes’ that Parliament passes would be indicative of a move towards a documentary constitution. It must be noted though that having a documentary or written constitution is not all about having a definite, finite, and written document or documents that can be referred to as a constitution. Abbott (2006) for instance argues that: “Under a written (codified, judiciable) Constitution, no group of temporarily elected politicians would be able to unilaterally transfer power from Parliament to external authorities not elected by the people or make any other significant changes in the system of governance. Meanwhile, a new/comprehensively amended Bill of Rights would forbid a far wider range of official actions than the original 17th century Bill (etc.). As in the US and other countries, an independent Supreme Court would have the absolute power to nullify any parliamentary legislation or government policy that violated the basic law.” (p.4) Arguments have been made to the effect that a codification of statutes and other sources of the British Constitution into a document or documents, could result in a form of a written constitution (Brazier, 2001), but this argument does not take into account the above propositions advanced by Abbott. Would a written constitution for the United Kingdom affect such fundamental doctrines like the supremacy of Parliament, and by extension, the supremacy of statute law over common law? As evidenced in the UK’s accession to the EU under the European Communities Act 1972, adherence to a codified, judiciable treaty (the Treaty on European Union) puts laws from the European Community above Acts of Parliament. The judiciary can thus grant remedies to citizens in areas of EC competence even if the decision of the judiciary goes against an Act of Parliament as is evidenced in Factortame I-V where the judiciary recognised and applied Community law above statute. The flexibility of the British constitution lies in its unwritten nature and a codification of the constitution into a written document could have the effect of altering some long held pillars like the supremacy of Parliament. It can however be counter argued that even under a written constitution, as currently pertains with regards to commitments to European Community law, the limitations it puts on the supremacy of Parliament is a wilfully imposed limitation by Parliament. In essence, Parliament can repeal the European Communities Act and thus extricate itself of the limitations that it has imposed on itself by the enactment of the 1972 Act. However, the willingness of Parliament to subject its Acts to the supremacy of EU competence shows that, if it considers it desirable to adopt a written constitution, Parliament can subject itself to the limitations of its power that would ensue from such an undertaking. In conclusion, it can be argued that though majority of what can be referred to as the British constitution is written, the UK still has an unwritten constitution. the proliferation of Acts of Parliament especially under the constitutional reform programme of the Labour government has increased the documentary nature of the constitution. However, the persistence of the constitutional significance of other ‘unwritten’ norms like conventions, case law and the Royal prerogative shows that the British constitution is still ‘unwritten’. References Abbott, L. F. (2006). British Democracy: Its Restoration & Extension, Manchester: Industrial Systems Research Publications Barendt, Eric, (1997). ‘Is there a United Kingdom Constitution’, Oxford Journal of Legal Studies (vol. 137) Barnett, H. (2006). Constitutional and Administrative Law, 6th ed. Abingdon: Routledge-Cavendish, Barnett, H. (2007). ‘The UK Constitution – A Very Brief History’ in Public Law, University of London External Programme, London: University of London Press Bradley, A. W. and Ewing, K. (2003). Constitutional and Administrative Law, London: Pearson Brazier, R. (2001). ‘How Near is a Written Constitution’, Northern Ireland Legal Quarterly, 52(1) pp.1-19 Loveland, I. (2006). Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction, New York: Oxford University Press Durkin, M. and Gay, O. (2005) The Royal Prerogative’, House of Commons Library, Standard Note: SN/PC/03861 Read More