Constitution Magna Carta | Free Law Essay

The United Kingdom has a constitution. Discuss.

The Magna Carta is often thought of as the corner stone of liberty and the chief defence against arbitrary and unjust rule in England. In fact it contains few sweeping statements of principle and is a series of concessions wrung from the unwilling King John by his rebellious barons in 1215. However, Magna Carta established for the first time, a very significant constitutional principle: that the power of the king could be limited by a written grant.

The constitution of the UK is the uncodified body of law and convention under which the UK is governed. Because the UK has no single codified documentary constitution, it is often said that the country has an 'unwritten constitution'. However, most of the constitution does exist in the written form of statutes, court judgments and treaties. The constitution does have some unwritten sources, though, including Parliamentary conventions and the Royal prerogatives.

The bedrock of the UK constitution has traditionally been the doctrine of parliamentary supremacy or parliamentary sovereignty, according to which the statutes passed by Parliament are the UK's supreme and final source of law. It follows that Parliament can change the constitution simply by passing new Acts of Parliament.

The purpose of a constitution is thought to be that they are necessary in order to control the power of the state. Another thought is that they emphasise the role constitutions play in ensuring that the power derives from a legitimate source. On the one hand, it tells us how power may be used and on the other, from where it is derived. The first idea may be attributed to the notions of the Rule of Law, and the separation of powers, whilst the second is clearly related to the notion of democratic legitimacy. It is clear that there can be tension between these two ideas.

The Rule of Law is considered the most fundamental doctrine of the constitution of the UK. The constitution is believed to be founded on the idea of the Rule of Law. AV Dicey's view on the rule of law cannot be ignored because of the lasting influence he has had. Dicey's views were derived from his understanding of the nature of democracy in UK as 'unitary and self-correcting' in which the will of the people are expressed through Parliament, and in which Parliament controlled the government. In setting out the Rule of Law, Dicey considered three distinct elements:

  • No punishment may be inflicted on anyone other than for a breach of the law;
  • Irrespective of rank and status, all men are equal under the law; and
  • The rights and freedom of citizen are best protected under the common law.

However Dicey's opinions have subsequently been analysed and criticized. Professor Jennings took Dicey to task on a number of points, including the idea that the Rule of Law was inconsistent.

The word constitution has two meanings. In its narrow meaning, it is a document having a special legal scrutiny that sets out the framework and the principle functions of the organs of government within the state and declares the principles by which those organs must operate. In this sense of the word, the UK has no constitution. There is no single document from which is derived the main authority of the main organs of government, such as the Crown, the Cabinet, Parliament and the Courts of Law. But the word also has a wider meaning, as Bolingbroke stated in 1733:

By constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed.

In more modern words, constitution in this wider sense refers to 'the whole system' of government of a country. So in this sense, the UK has a constitution since it has a complex and comprehensive system of government.

Also In 2001 the House of Lords Select Committee on the Constitution defined constitution as 'the set of laws, rules and practices that create the basic institutions of the state and its component and related parts, and stipulate the powers of these institutions and the relationship between these institutions and individuals'. Under this definition, the UK most definitely has a constitution. By virtue of the fact that there is a government, there is a constitution.

Although it has been acknowledged that the UK does not have a written constitution, the UK constitution has been referred to as a recognizable entity. However whilst this reflects the orthodox view, it is worth noting that there is an alternative view, namely there is no UK constitution. It has been argued by F F Ridley that the UK does not have a constitution because none of the four essential characteristics of a constitution is to be found here.

  • It establishes or constitutes the system of government and is thus not part of it
  • It involves an authority outside and above the order it establishes
  • It is a form of law superior
  • It is entrenched

When we look at the nature of Ridley's four characteristics, it is evident that they are likely to be satisfied by a documentary or codified constitution. Conversely, they are unlikely to be satisfied by a written constitution. Thus, the claim that the UK has no constitution rests on the fact that the UK has no written documentary constitution, which, in Ridley's analysis, is the only appropriate form in which a constitution exists.

Bearing in mind Ridley's analysis the UK should have a written constitution. But would they have any more value than an unwritten constitution? They would provide some indication of what actually happens in practice. A constitutional actor may look to the constitution to see what is required from them in a given situation. However, regardless of the length and complexity of a constitution, it is highly unlikely that it will contain all the answers to all the questions.

In conclusion although the UK does not have a single document codifying the way its political institutions function and setting out the basic rights and duties of its citizens, the UK does have certain important constitutional documents. But to say that the UK has no written constitution is not to say that it has no constitution. On the contrary, our political system is highly structured and the flexibility of the UK constitution helps to explain why it has developed so fully over the years.

Word count 1088

BIBLIOGRAPHY

  • Bradley, A.W. and Ewing, K.D., (2007), Constitutional and Administrative Law, 14th Ed., London: Pearson.
  • Fenwick, H. and Phillipson. G., (2003) Text, Cases and Materials On Public Law and Human Rights, 2ND Ed., London: Cavendish.
  • Parpworth, N., (2006) Constitutional and Administrative Law, 4th Ed., Oxford: OUP.
  • http://www.qi.com/talk/viewtopic.php? Start=0&t=6749 (last visited 16/11/2007)
  • http://www.bl.uk/treasures/magnacarta/basics.html (Last visited 16/11/2007)
  • http://www.ourconvention.com/British_constitutional_law/encyclopedia.htm (Last Visited 17/11/2007)

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