Britain Unwritten Constitution - Essay Example

Why has Britain unwritten constitution faced such criticism over the last 30 years Introduction The Constitution of the United Kingdom is an example of an uncodified constitution. It consists of written and unwritten sources and has no single written fundamental document.1 In other words, it means that there is no technical difference between ordinary statutes and laws considered as constitutional laws. In that case, the Parliament of the United Kingdom can perform constitutional reform by only passing Acts of Parliament and therefore has the power to change or abolish any written or unwritten parts of the Constitution. United Kingdom is consequently a nation under Parliamentary sovereignty because the entire sovereignty belongs to the Parliament. There is no entrenchment in the British constitution - meaning that there is no need of a supermajority or a referendum to pass some amendments - which can cause some minorities to suffer from majoritarianism.2This absence of a central written constitution may lead to believe that the United Kingdom has no formal constitution.3 It is true the British Constitution is often referred to as unwritten but it relies and incorporates many written sources such as the Magna Carta, the Habeas Corpus Act in 1679, the Bill of Rights in 1689, the Act of Settlement in 1701, the Act of Union in 1707, joining England and Scotland to form Great Britain, the Act of Union in 1800, joining Great Britain and Ireland to form United Kingdom, the Statute of Westminster in 1931, the Peerage Act in 1963, the European communities Act in 1972, being the key documents and conventions among many others. Therefore, the United Kingdom constitution is seen as a collection of Acts of Parliament, decrees, conventions, traditions and royal prerogatives.4However even if some accept it as an unwritten constitution, some go as far as saying that in the absence of a written constitution, Britain has no constitution. After explaining the effects of such a constitution to a democracy, we will try to decrypt the criticisms of the British unwritten constitution over the past 30 years and ask ourselves whether or not there is a justification for these critics. Codified and Uncodified Constitution Most political systems are defined by a constitution which is seen as a set of statements describing the fundamental rules of the very political system. Throughout the world we can see two types of constitutions: the codified and the uncodified ones. In a codified constitution, the articles describe a higher form of law, that is to say laws to which all other laws must conform and in consequence elected assemblies can not pass all the laws they wish. The codified constitutions are usually entrenched which means that they can only be changed or amended according to special procedures. In the political systems of codified constitutions, judges have the key role to interpret and apply the constitution, they have the power, for example, to decide that some rules which were passed by elected assemblies are unconstitutional - not in following the principles set of rules of the constitution. The codified constitution is also a tool to understand the powers of the different institutions that characterize a government and the relationship between them. Finally, they represent timeless principles. A Bill of Rights for instance, defines the liberty to practice one religion, the right to a fair trial or the freedom of speech. 5 However, United Kingdom does not have such a codified document, its unwritten constitution and therefore the fundamental rules are embodied in major statutes, precedents and legal decisions. It is consequently said that codified constitutions are more rigid than uncodified ones. Flexible constitutions are more reactive and adapt more rapidly to changing conditions. It is the usual characteristic of an uncodified constitution. However, United Kingdom's example is not as clear as this principle. The adaptation to the changing conditions is not easily seen in the United Kingdom. Even though an unwritten constitution should allow a greater power to the Parliament, we can observe that the official Opposition, internal party factions, the media, parliamentary scrutiny, the need to gain re-election, pressure group politics, the courts, the new HRA and so on, are limiting the government's powers. 6 As we stated before, there are several critics who may consider that, as United Kingdom does not have a codified constitution, it can be seen as it does not have any constitution at all. We do not believe that it shall be seen that way. United Kingdom has a developed set of constitutional rules which are composed of statutes, European Union law, Common law, judicial interpretation of law, conventions and the custom and privileges of Parliament All of these restrict the power of the United Kingdom Government which is increasingly submitted to constitutional checks. Nevertheless, all of these constitutional checks do not prevent the British government to pass laws which are seen as abusing fundamental liberties. The Public Order Act of 1986 for example, authorized the police to ban and impose conditions on processions. This lead to a severe critic of the absence of an unwritten document and numerous campaigners for a Bill of Rights argued that a written document was absolutely necessary to protect fundamental rights and liberties. This Bill of Rights would shift the burden of proof in order to give the Government the responsibility of justifying restrictions on liberties. In the following paragraphs we will see the different critics to the British constitution that have been raised in the previous years. Criticism of the British constitution: a complex approach Over the last 30 years, the British Constitution has been facing an important amount of criticism. But, as we shall see, the criticism is double edged. Not only, are they addressed to the long existing unwritten constitution and to the need of an official written document to which any British citizen can refer, but the critics have also targeted the reforms that have been made and the ones to come. One of the main critics of the United Kingdome unwritten Constitution was summed up by Mr. David Heathcoat-Amory7 while addressing the House of Lords: "Under the unwritten British constitution, however, no Parliament can bind its successors, and no law or Act, whether constitutional or otherwise, is entrenched". We come back to the idea of a flexible constitution being able to adapt to the changing positions of its time. However, having a flexible constitution is as problematic as having an inflexible one. What Heathcoat-Amory describes is the lack of continuity that the British Constitution is facing. Without any supermajority required and no entrenchment, it is therefore complex to have a strong change or amendment of the constitution and especially because it is unwritten. However, he also raised an important point that is also criticized in the United Kingdom but, according to him, that shall not be: the separation of power. Paradoxically, even if the powers are not separated, David Heathcoat-Amory states that the British system is internationally recognized as one of the most fair and that no such separation should be considered in the years to come: "If the separation of powers is so important under the European convention on human rights and we are said to be vulnerable to a challenge, how is it that we signed the convention in 1950and have existed for more than 50years under the system whereby powers are not absolutely separated If there is a problem and an impending court case under the convention in which we are said to be in breach of article 6, let us hear about it and deal with it. However, I know of no such case. The reverse is true-the independence and impartiality of the British judiciary are widely admired throughout the world. Indeed, the Government suffered from that when the judiciary in the House of Lords overturned their attempt to incarcerate people in perpetuity without trial. That happened over detainees." He naturally, directly refers to the case of the Public Order Act of 1986 that we described earlier. It is very interesting to see that the debate over the sovereignty and the power under the unwritten constitution has been raised so often. This matter is directly linked to one aspect of the reform of the Constitution which seems to have brought a conflict within the different layers of power and the public: the status of the Prime Minister. In an essay called "the Last Prime Minister - Being Honest About the UK Presidency"8 Graham Allen, Member of Parliament in Nottingham North for the Labour Party presents the promotion of the UK Presidency. He first declares that the factors which have helped produce a UK President are: The centralisation of power in British politics, the role of the modern media, the end of Cabinet government, the evolution of political parties, the ethos of the civil service, the weakening of ideology and personalisation of politics. He therefore adds that: "The impact of these factors in the past 30 years has made it increasingly more difficult to deny the reality of Presidential power. In 1988 it could be written "In fact if not in theory, the Prime Minister is Head of State, Chief Executive and Chief Legislator, and while in office is not circumscribed by any clear or binding constitutions limitations. Against this in the UK is not a single alternative source of secure constitutional power at any level" (The Scottish Claim of Right)." However, the idea of Graham Allen is clearly to defend the UK Presidency and to declare it as the news political system. As the unwritten constitution, according to him, the Presidency already exists and the Prime Minister represents it. Naturally, this point of view, which is unconstitutional in the United Kingdom, has brought some opposition. In an organization publication named the Rise of the British Fuehrer9 - even if we can consider that the title and some of the arguments that are described in the content of the article go too far, we can still appreciate the quality of the demonstration made to present the point of view of the prime Minister regarding the need to see his role evolve - we are given a quote from Tony Blair's speech in Sedgefield on March 5th 2004. "In the end, believe your political leaders or not, as you will. But do so, at least having understood their minds." According to the authors, the statement contained in this speech can be seen as the greatest change in the British Unwritten Constitution since the establishment of the British Monarchy. Tony Blair, according to the United Kingdom Constitution, is the Servant of the Subjects of the Kingdom and of the Crown. However, there is no concept of leaders or of politics in this model, but only of Servant whose policies shall be approved by the Crown. This is one of the point that is largely discussed today regarding the Constitution: the role of the elected servants of the Kingdom. It is obvious that there is an evolution of the status of the lords or of the Prime Minister. But this evolution is not considered in the constitution, reflecting the obvious problem of the lack of an official written document. Finally, lately the British Constitution has been face with another type of criticism: its incompatibility with the European Constitution. In an article called "The EU's judicial land grab" 10 the main issue is described through the view of Lord Justice Laws: "the British Parliament does not have the right to abandon its own sovereignty, would the British courts refuse to give effect to the Constitution Or would they regard a "Yes" vote in the referendum as explicit public support for terminating the common law principle of parliamentary sovereignty - the foundation of the British constitution for centuries - and hence accept what would in effect be a revolution, in the strictest meaning of that word" Once again the lack of a written official document and also the history of conventions and traditions jeopardize the very existence of a British Unwritten Constitution because it could not cohabit with the European Constitution. However, this issue, as the European Constitution had been rejected by many countries is not to be tackled today. Conclusion The question is now to fully understand the reasons why these critics have risen for over three decades. The obvious answer is certainly the evolution of the political system in Britain and all around the world which ultimately leads to the major problems that we presented in our essay: the extreme flexibility of the constitution and the absence of a official written document. However, we shall point, as Mr. David Heathcoat-Amory pointed that the British system is recognized as one of the most fair in the entire world. Nevertheless, is this fairness strong enough to resist the changes of today's world and the reaction of the British people surrounded by a double edged conflict: the preservation of their political traditions and their place as a leading country in the developed world. Bibliography British unwritten Constitution "Political Information Net" available at: http://www.politicalinformation.net/encyclopedia/Unwritten_constitution.htm Constitution "Wikipedia" available at: http://en.wikipedia.org/wiki/Constitution Constitution of the United Kingdom "Wikipedia available at: http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom David Heathcoat-Amory "The United Kingdom Parliament" addressing the parliament on January 17th 2005 available at : http://www.parliament.the-stationery-office.co.uk/pa/cm200405/cmhansrd/cm050117/debtext/50117-32.htm Entrenched clause "Wikipedia" available at : http://en.wikipedia.org/wiki/Entrenched_clause Graham Allen "the Last Prime Minister - being honest About the UK Presidency" available at: http://www.grahamallen.labour.co.uk/ViewPage.cfmAction=LargeText&Page=2601 Ian Wright "Edexcel, Government and Politics Unit 6" Exeter School April 2002 The Business "The EU's judicial land grab" March 6th 2005. available at: http://www.vote-no.com/presscentre/newsarchive.aspxid=647 Truth, Honesty and Justice - The alternative to Wars, Terrorism and Politics "The Rise of the British Fuehrer" March 7th 2004 available at: http://www.truth-and-justice.info/2004/british-fuehrer.html Read More