The British Has A Constitution - Essay Example

The British has a CONSTITUTION. Introduction Every British citizen is tasked with understanding its government, its mechanism and its mechanics. This task could prove daunting for one of the United Kingdom because there is not one document where he can study the matter. This is possible only with an intelligent citizenry. This is work will explain the nature of British constitution. What is a constitution? Jurispedia (2003) defines a constitution as, "...A set of rules... to establish the duties, powers and functions of the various institutions of government, regulate the relationships between them, and define the relationship between the state and individual." Constitutions, McEwen (2004) adds, establish the composition, powers and functions of the institutions of the state, regulate the relations between these institutions, and enshrine the legal rights and duties of the citizenry. The Unwritten UK Constitution Constitutions of all other states are codified. “Codified constitutions are largely written, centered around a single document incorporating key constitutional provisions that are binding on all political institutions.” (McEwen 2004) In contrast, the British constitution is not written or codified in a single document. Where codified constitutions are entrenched and enjoys the protecition of a Supreme Court, and can only be repealed or amended by special provisions, the uncodified constitutions are beyond the ordinary legislative process. Sources of the UK Constitution: The UK Constitution is found a number of sources, namely they following: 1. Statute Law: Many Acts of Parliament concern constitutional law. 2. Common / Case Law: The British constitution is “judge made”and derives some of its principles from jurisprudence. 3. Royal Prerogative: This refers to powers originally exercised by the monarch traditionally, among which powers. Most prerogatives are now directly exercised by ministers, such as the power to regulate the civil service, or the power to issue passports. 4. Convention: The conventions are unwritten understandings and customs, non-legal rules of constitutional behaviour of the constitutional actors. Although not supported by law, these are considered to be binding upon these actors but the judge cannot enforced them. 5. Works of Authority: These are works that are sometimes cited interpretations of aspects of the UK constitution, written by Constitutional Theorists and are used sometimes to establish procedure. 6. Treaties and International Conventions: They are not, in theory, direct sources of constitutional law because of the supremacy of the Parliament. A treaty binds the government to the level of the international law but so that it has the force of law, it must be ratified before by the Parliament. Basic Characteristics of the UK Constitution: Written: The UK constitution is constantly called unwritten, but it is more uncodified and written in the various sources from which it is derived. There is no one place or text where the basic relationships of state and citizen are all set out neatly together. Flexible: The UK constitution is based on the concept of Parliamentary sovereignty, so the concept of entrenchment cannot exist. The Parliament can repeal any constitutional legislation by another legislative act in response to need. In theory, its flexibility makes its responsive to political and social change, especially through political principles expressed in conventions. Unit: Legislative power of the Parliament is unitary. While there are occasions when the Parliament delegates a part of its legislative power to the government of the local authorities but according to the doctrines of the sovereignty of the Parliament, this delegation can be repealed and the power delegated will be reverted to the Parliament. Dicey (1885) opined that federal government tended to be weak, conservative and legalistic. Key Principles of the UK Constitution Parliamentary Supremacy: This means that Parliament is the supreme law making body, that it alone can make legislation on a national level, under which principle, Parliament can make or unmake any law on any subject whatsoever. Also, no one Parliament is bound by the decisions of its predecessors, nor can it bind its successors. There is no higher body that constrains the legal authority of Parliament. Blackstone (1979) declared that “The distinguishing mark of ‘sovereign power’ was ‘the making of laws’, which power, in Britain, was exercised by the King-in-Parliament...” This is because, in theory, the King or the Queen is the head of the Parliament. Rule of Law: This is otherwise known as the principle of equal application of the law: everyone is equal before the law. Separation of Powers: The three of powers of the state are distributed into separate institutional hands. This feature of British political system, Montesquieu (1889) identifies, is responsible for frustrating the principal forms of political and legal tyranny, which over all arrangement ‘forced’ them ‘to move in concert’; so that whenever public power was deployed, these institutional checks against the abuse of power were mobilized. Lord Bingham (2001) qualifies the foregoing statement and opines: “While the British constitution does not, quite obviously, provide for the separation of legislative and executive authority, it does (save in two respects) provide for an absolute separation of judicial from legislative and executive authority. Other Principles Concerning the UK Constitution The of a unitary state is a corollary of Parliamentary sovereignty, and means that sovereignty resides only at the centre of the state. Constitutional monarchy means that the monarch does not actually rule, he or she has a ceremonial or figure head role only. The moe recent principle is European Union membership and the principle that EU law takes precedence over UK law. This appears to undermine the principle of Parliamentary sovereignty, but Parliament could still withdraw from the EU by repealing the European Communities Act 1972. (Wikipedia, 2005) The Efficiency of the UK Constitution The success of the UK Constitution is credited not only to its structures and institutions but also the intelligent citizenry which constitute the true sovereign and for which it was constituted. In a way, the purpose for which the constitution was drafted continues to breath life to it. “The organizing principle for much of the eighteenth-century celebration of the English constitution was the commonplace idea that structures of government could preserve political freedom only where they frustrated the abuse of political power.” (Lieberman 2000) The Mixed Constitution The UK Constitution comprised a mixed form of government, combining elements of rule by one, rule by the few, and rule by the many, in conformity to that proposed by Cicero in The Republic. Blackstone (1979) agrees that, “The ‘British constitution’ entrusted the ‘legislature of the kingdom ... to three distinct powers’: the king (‘a single person’), the lords (‘an aristocratical assembly’), and the commons (‘a kind of democracy’); which by operating jointly escaped ‘the inconveniences of either absolute monarchy, aristocracy, or democracy’, while uniting ‘so well and so happily’ the benefits of each pure form. Each component part provided a potential ‘check’ to the abuse of power committed by any other component part, which in turn secured a political order best equipped to sustain public liberty.” The Balanced Constitution ‘The Great Rule’ of English government was ‘to Preserve the Just Balance of the Constitution’ (Mackworth 1701). The constitution has equipped each institution with particular Powers that served to assist each against the encroachments of the other and to prevent any one part from defeating the right or power that is lodged in any other. This system enables the people to change any of the parts of the system suddenly on an emergency. Thus cabinet could be abolished and substituted with a statesman who had the precise sort of merit wanted at the moment and the Prime Minister the cabinet or the legislature and further the legislature the Prime Minister. Cabinet government demands the mutual confidence of the electors and a competent legislature. Controversies Relating to the Proposal for a Written Constitution Many assert that the UK needs a written constitution in order to restrain the unbridled power of the executive. This myopia forgets that the executive came from members of the Parliament and anything that limits the power of the Government undermines the traditional doctrine of Parliamentary sovereignty. A written constitution would refute the convention that no future Government can be bound irrevocably by the actions of a former Government. As such, the notion of a written constitution would act as a brake on the democratic supremacy of Parliament. Being uncodified law and consisting of both written and unwritten sources, there is no technical difference between ordinary statutes and law considered "constitutional law". Both are passed by the Parliament. The informal nature of the constitution is responsible for a lack of the concept of "constitution government" or "constitutionalism." According to Dicey (1885), the sovereign Parliament was unconstrained by law, but the practical exercise of power was constrained by the constitutional principle of “the rule of law.” This principle required that government act only as authorized by law, according to the principles of the common law that protected individual rights. It required that government officers be subject to the same legal actions as ordinary citizens, who therefore could bring suit when damaged by abusive official conduct. The United Kingdom’s constitution evolved gradually or organically over time. This evolution means it is less partisan than one which would be decided at a particular point in time might be, as the current constitution has been contributed to by many different people from different eras. (Jurispedia 2003) The “…fact remains that the written constitution has been less susceptible of development than the unwritten.” (LoveToKnow 1911 Online Encyclopedia 2004) The “… British constitution was primarily descriptive rather than prescriptive. It amounted to the sum of the laws, customs, and traditions that determined how Britain was governed. Its general principles were well understood and sustained by a general consensus. Since there was little if any prescriptive content— and what prescriptive content there was not legally sanctioned—there was slight opportunity for constitutional rhetoric. The “axiomatic authority and finality” of the constitution’s “core value” of parliamentary sovereignty “pre-empt[ed] the need for, and the relevance of, constitutional debate.” (Foley 1999.) Conclusion There can be no quarrel if one understands that the Constitution existed in the heart of the citizens as much as it exists in the mechanism that run the State, even if it does not exist in any one document. The inexorable conclusion is that British Constitution not only exists, it continues to evolve as the State and the people do. ‘Some have said that the whole body of the laws’ makes the constitution; ‘others that King, Lords and Commons make the constitution.’ But even though neither definition seemed quite ‘satisfactory’, ‘Yet I cannot say that I am at any loss about any man’s meaning when he speaks of the British constitution, or of the essentials and fundamentals of it’ (Adams 1998). REFERENCE: 1. Adams, John (1998 [1766]). “The Earl of Clarendon to William Pym”, in Jack N. Rakove (ed.) Declaring Rights, Boston. 2. Bingham, Lord of Cornhill 2001. The Evolving Constitution. Department for Constitutional Affairs, Justice Law Society Annual Lecture. [online] Available from http://www.dca.gov.uk/judicial/speeches/sla041001.htm [Accessed on December 13, 2005] 3. Blackstone, William (1979 [1765-9]). Commentaries on the Laws of England [online] Chicago. Available from http://www.constitution.org/cmt/avd/law_con.htm. [Accessed December 13, 2005] 4. Dicey, A.V. [1914 (1885)] An Introduction to the Study of the Law of the Constitution Oxford. 5. Foley, Michael 1999. The Politics of the British Constitution. Political Analyses Series. Manchester, England and New York: Manchester University Press. 6. Jurispedia [13 October 2005] ConstitutionUK [online] Available from "http://en.jurispedia.org/index.php/Constitution_%28uk%29" [Accessed on December 14, 2005] 7. Lieberman, David [2000]. The Mixed Constitution and the Common Law. Boalt Working Papers in Public Law (University of California, Berkeley) Year 2000 Paper 68 8. LoveToKnow 1911 Online Encyclopedia [2003, 2004]. CONSTITUTION AND CONSTITUTIONAL LAW [online]. Available from http://9.1911encyclopedia.org/C/CO/CONSTITUTION_AND_CONSTITUTIONAL_LAW.htm [Accessed on December 11, 2005.] 9. Mackworth, Humphrey 1701. Vindication of the Rights of the Commons of England. London. 10. McEwen, Nicola [2004]. The UK Constitution. Available from http://news.bbc.co.uk/1/hi/programmes/bbc_parliament/2561719.stm [Accessed on December 11, 2005] 11. Montesquieu, Charles-Louis de Secondat (1989 [1748]). The Spirit of the Laws, trans. And eds. Anne M. Cohler, Basia Carolyn Miller, Harold Samuel Stone, Cambridge. 12. Tschentscher, A. [1992] International Constitutional Law. United Kingdom Constitution [online] Available from http://www.oefre.unibe.ch/law/icl/uk__indx.html [Acessed on December 12, 2005] 13. Uk Politics News, 12 December 2005. Politics Unspun: Written Constitution [online]. Available from http://www.politics.co.uk/issues/written-constitution-$2072982.htm [Accessed on December 11, 2005] 14. Wikipedia Free Encyclopedia 6 December 2005, Constitution of the United Kingdom [online] Available from http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom [Accessed on December 11, 2005] Read More