Public Constitution and the Government

Introduction

There have been many different approaches to defining what a constitution actually is, however, for the purposes of this text, I will be using the broad definition that:

A constitution is a set of rules (e.g. conventions), procedures and laws

which divide the government into identifiable institutions and determines how power will be distributed between them, gives the procedures through which the power is to be exercised and explains the relationship between these governmental institutions and the individual citizen.

Compared to other countries

Most countries have a written constitution, that is a single document which encompasses all of the above, for example the Constitution of the USA within which is found the ‘Bill of Rights'. Evidence of this is to be found in the first three articles of the document which set out the roles and powers of the Congress (Art 1), the President (Art 2) and the Supreme Court (Art 3).

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Structure

There are only three countries in the world which have an unwritten constitution, or more specifically, un-codified, namely New Zealand, Israel and the United Kingdom (although New Zealand has recently taken steps towards a written constitution with the enactment of the Constitution Act 1996). In his book ‘Constitutional and Administrative Law,' Alex Carroll describes the UK constitution as ‘a myriad of judicial decisions, Acts of Parliament and established political practices (conventions). It is in this sense, therefore, that the constitution may be defined as ‘unwritten'.' He goes on to explain that the reason why our constitution has remained unwritten could be put down to the fact that we haven't had ‘the sort of cathartic political events (e.g. defeat in war or civil insurrection) which, in many other countries, have led to the abandonment and replacement of a pre-existing constitutional order.'

Sources

The UK constitution has a number of sources, the traditional ones being legislation, whether primary (Acts of Parliament) or delegated (made by other authorities on whom Parliament has conferred the power to legislate); judicial decisions, whether that be in the interpretation of statutes or in the formation of common law; and constitutional conventions which Dicey described as ‘constitutional morals.'

Characteristics

Due to the structure of our constitution, it is far easier to make changes to it than in other countries. For example, to make an amendment to any part of the constitution of the USA, it is required that a majority of two thirds of both houses of Congress, and the legislatures of three quarters of the several states, agree upon it (Art 5). This method of protecting constitutional fundamentals is called ‘entrenching.' However, in the UK there

are three ways to make amends. The first is through legislation. A new piece of legislation, passed according to normal Parliamentary procedure may change any part of the constitution. Judicial decisions in normal cases may also have an effect, making this the second method. Changes in existing conventional practices can also lead to a change in our constitution. Because there are three methods and they are each easily implemented, then it's shows us that our constitution has the ability to be very flexible. This has been both criticised and praised. Those in support of the current, unwritten, format emphasise its ability to change quickly with changing times and this characteristic of flexibility. Those who are in favour of forming a written constitution argue that due to the executives' majority in the House of Commons, it is possible that the government could, Alex Carroll says, ‘impose constitutional change purely for reasons of political expediency and ephemeral ideology.'

While it can be said that our constitution is open to abuse due to it's extreme flexibility, there are examples of clauses which are immutable, for example the basic human rights requirements of the 1949 German Constitution.

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