Principles of an Autonomous Political Entity - Assignment Example

 "The united kingdom does not have a constitution it only has a "system of government"". Discuss. The constitution is often described as a system for governance, often codified as a written document that establishes the rules and principles of an autonomous political entity. The degree to which a constitution remains relevant to the needs of its electorates and the context under which certain rules and laws can change with the times often leave scholars and critics categorizing the functions of the constitution and even questioning whether some countries possess a constitution or is ruled under another form of government. One could agree with FF Ridley by saying that there is no British constitution because of the absence of the four major characteristics that make up a constitution. It does not establish nor constitute the system of government. It does not involve constituent power. Its form of law is not superior to other laws; and it is not entrenched. All these characteristics are an integral part of a written constitution. One of the major differences of the British constitution from that of other countries is that it is not composed, written or set out in any single document like for example, that of the United States of America. Rather, it is made up of statute law, common law and conventions. Thomas Payne stated that the United Kingdom does not have a constitution. Against this background one can agree with Payne in saying that the United Kingdom does not have a constitution because there is no official written document. Since the United Kingdom does not have a written constitution there are several elements that are lacking which would give the people more autonomy. Amendments cannot be made to a constitution if there are no written documents to refer to. Even if amendments are attempted at times these are not seen as having far reaching effects because they are not legally binding. The United Kingdom is not seen as having a constitution because having a constitution hinges on the rights of the people. One of the earliest documents to form a central element of the constitution, the Magna Carta, was drawn up by the rich landowners so the rights of the common man were not provided for. It would therefore seem more difficult for the common man to clarify his rights and protect himself against the state. The Justice Secretary Jack Straw in a visit to Washington of February 2008 commented well on the British Constitution when he said that, "Most people might struggle to put their finger on where their rights are." It is difficult sometimes to know what the constitution really say because of the many sources and the fact that there is no single document to refer to. If the government wishes, they have the power to rule tyrannically because there is no law that binds them legally. Montesquieu theory of separation of power gives an account of how governments can be less corrupt by separation of the three branches of power. Many critics argue that the UK does not have a constitution because separation of power is not as distinct as in the United States of America, for example. In countries where separation of power is more obvious there is a systematic split between the executive, the legislative and the judiciary. This prevents one branch from dominating the other and there is a balance in power. This is less identifiable in the UK constitution. There the prime minister plays an integral part in all three branches and therefore holds more power than the leader of a country with a true separation of power. Power is also centralised. Theoretically there is no body within the British constitution that has the power to overturn a law passed by parliament. All laws passed by parliament are deemed constitutional. Parliament therefore is seen as having the ultimate power even more than the courts. The constitution of the United Kingdom may be different in parts when compared with other constitutions of the world but there are also many reasons why it holds true to say that the UK has a constitution and not merely a system of government. Although the United Kingdom may not have a codified constitution, nevertheless, it contains a number of written instruments dating back to the Magna Carta and including The Petition of Right and The Bill of Rights. The Rule of Law is a basic principle to the constitution. Dicey defended the British constitution and argued that this was an advantage of the constitution. In essence the Rule of Law states that no man is above the law and government should also act within the constraints of the law. The law covers both private citizens and public officials. Another basic principle of the British constitution is The Supremacy of Parliament. This is a critical aspect of the law of any constitution. Dicey’s view that only good laws should be passed through parliament because of the intense scrutiny subjected to them serves as a reminder that the British has a constitution and not merely a system of government. Britain’s unwritten constitution is testament to a democracy free from revolts and social upheavals. Many countries that boast of a written constitution were forced to do so as response to revolts and civil wars. It therefore shows that the British constitution is strong and it does not have to be written to indicate a strong and positive democracy. Also the constitution contains a number of constitutionally conventions which limit the power of government. The United Kingdom has a constitution that is flexible and can easily adapt to the issues of the day. Many codified constitutions are enshrined in archaic laws that will need long and arduous methods to change even a simple outdated law. The opposite can be done with the British constitution. All that is needed is passing an act in parliament. This is a constitution that has passed the test of time. Steeped in history it is a constitution that has been very effective in upholding the tenets of democracy. The strengths outweigh the weaknesses and this shows that there is indeed a constitution rather than a system of government.   In light of the United Kingdom's membership of the European Union can it still be said that parliament is free to make and unmake any law? As a member of one of the twenty seven member states of the European Union (EU) the traditional power and authority enjoyed by the United Kingdom in its parliamentary sovereignty may be reduced in order to be subjected to the legislation of European Union. While there are ways of maintaining parliamentary sovereignty there are certain changes that are imminent and that comes with adapting to the rules of the European Union. The traditional view of UK parliament is that the UK courts have no power to make invalid any law passed by an act in parliament. According to Dicey, the sovereignty of parliament allows it to pass any law on any subject; to regulate the activities of anyone regardless where he may be; it cannot bind its successors as to the content, manner and form of subsequent legislation; and its laws cannot be challenged by the courts. As it stands and with the UK parliament theoretically in its sovereignty state then it is obvious that parliament is free to make and unmake laws. The United Kingdom is still able to make law under the European Convention on Human Rights (ECHR). Although the Human Rights Act states that domestic courts should interpret domestic law in a manner compatible with the ECHR if the court takes the view than an Act of Parliament cannot be interpreted in such manner then the court is unable to rule out the Act of Parliament. In this case parliament has the power and authority to change the law as it sees fit. Parliament is therefore free to make laws incompatible with ECHR yet those laws will remain as valid. In this case the sovereignty of parliament is upheld. The European law is seen as a source of UK law thus limiting the acts of parliament in making laws. Former Prime Minister Margaret Thatcher saw the EC as a threat to parliamentary sovereignty. She felt that the European law became binding on the people of the United Kingdom without the laws having gone through parliament as is the tradition of the British parliament. One of the conditions of joining the European Union was the observation by member states of the primacy of EC legislation. Thus EC laws become more important and take precedence over domestic laws. The treaties help to limit parliament to a certain extent in making laws and the treaties are the primary source of its laws. This is clearly outlined in Section 2 of the European Communities Act signed in 1972. It essentially gives power to the community to override the laws of the United Kingdom. It further states that European law must be considered to be a binding source of the United Kingdom law. The fact that the United Kingdom does not have a codified constitution makes it easier for the European law to have a more binding effect. Parliamentary sovereignty was seen to be compromised in the case of Factortame versus Secretary of State for Transport. European law prevailed after it was established that UK law had breached European law. In this case Dicey’s view of parliamentary sovereignty is not wholly true. The House of Lords which is the highest court in the United Kingdom allowed the EC to prevail thus accepting its supremacy over parliament. This can be viewed as a win for the European Council over the British parliament. The law of the European Union gave more power to the court which traditionally could not hold more power than parliament. The EC laws require national courts to disapply administrative or legislative acts that are in conflict with it. This allows the courts to participate in governmental activities that were previously out of bounds. The law of the European Union is superior to British law and by extension one can say to British parliament. It not only decide on the consistency of application of EU law but it also makes law and by this virtue has the power to interfere with British law and parliament. Former foreign secretary of Britain Malcolm Rifkin foresaw the compromising position of the British parliament and its losing sovereignty position. He felt that amendments should be made for the European Union to prevent it from abusing its power. The will of parliament was also upstaged in the case of Bulmer Ltd. v J. Bollinger. The European Union was accused by Lord Denning of interfering with parliamentary sovereignty. He felt that judgements should be ratified by parliament before they become law. This has been the view of many parliamentarians as well as observers alike. Many opposed to the European Union feel that the sovereignty of parliament will be eroded and European law will gain superiority over British parliament. They see this as loss of pride as over the years the British parliament has shown its strength and stability in the preservation of its sovereignty. The European Union, however, is not isolated in its policies and directives because it is run by several bodies which include members of the British parliament. The Council of Ministers is the largest decision making body and is made up of foreign ministers from member states. With the institution of the Qualified Majority Voting in 1986 Britain, as one of the largest member states is able to impact the outcomes of the decisions by virtue of the power to vote. On the other hand the British parliament does not always come out the winner as was evident in 1993 when Britain was overruled on the principle of a forty eight hour work week. The supranational nature of the EU will hinder parliament the freedom of making and unmaking any laws. This limits the creation of domestic law and focus instead on laws that will encompass all the member states. Bearing this in mind the doctrine of parliamentary sovereignty as Dicey described can be seen as changing some of its description in today’s Britain. With the growing trend of globalization and with the current recession taking place on the global market the economic and political strength that lies in blocs of country will impact the parliamentary sovereignty of Britain even on a wider scale. Sharma, S. Encyclopaedia of Constitutional Law. New Delhi: Anmol Publications Ltd., 2004 Read More