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Published: Fri, 02 Feb 2018
Contract law (dl2)
In order to determine whether or not the United Kingdom really needs a written constitution (bill of rights), we will first look at what a constitution is, and what is the purpose of a constitution. Then, we will look at what written and unwritten constitutions are. Once that is covered, we will consider whether or not having a written constitution for the UK will give better effect to the purpose of a constitution, to decide whether or not the UK really needs a written constitution.
The Role Of The Constitution
A constitution is basically a body of principles and rules by which a society is governed by. The constitution is concerned with the authority and function of the institutions within the state, and the relationship between the state and the citizens. The powers which the state can exercise, and the manner in which the state can exercise those powers are limited by the constitution. The constitution should enable the government to efficiently govern the society, yet at the same time, the constitution must compel the government to control itself, and prevent the government from abusing its power and infringing the rights of the citizens.
Having looked at what a constitution is, we will now look at why a constitution can be seen to be necessary. Lord Acton, a British historian, made the following statement: “Power tends to corrupt; absolute power corrupts absolutely.”�? This statement suggests that that more power a person gets, the more likely that person will abuse his power. Thus, the state, which has so much power, will be very likely (and very able) to abuse that power if there were no precautionary measures taken against this. So, it can be said that a constitution is necessary A constitution is necessary in order to give legitimacy to the government and define the powers under which it may act. Thus, a constitution is necessary to ensure that the government uses its power in accordance with agreed rules, and not arbitrarily.
A written constitution is a constitution that is held inside a collection of documents or a sole document, with or without amendments, that defines the fundamental rules of the country.
In an unwritten constitution, on the other hand, there is no specific document (or collection of documents) in which the whole constitution can be found. Apart from the written sources of a constitution like Acts of Parliament and judicial decisions, unwritten constitutions also have unwritten sources, like customs and conventions.
The UK is very strange in not having a written constitution. All the other democratic Western states have a written constitution. However, the fact that the UK dose not has a written constitution does not mean that the UK does not have a constitution at all. The UK does have rules on how the country is to be governed and how the state’s power can and cannot be used, it is just that these rules cannot be found in a specific document or specific collection of documents, because some of these rules are in an unwritten form. Thus, the UK’s constitution is largely unwritten, and the UK constitution can be classified as an “unwritten constitution”�?.
A Written Constitution For The United Kingdom?
Having looked at what a constitution is and what its role is, and what are written and unwritten constitutions, we will now consider the question: does the UK really need a written constitution (bill of rights)?
In order to address the above question, we will now consider whether or not having a written constitution for the UK will give better effect to the purpose of the constitution.
Will Having A Written Constitution For The Uk Give Better Effect To The Purpose Of The Constitution?
In order to give better effect to its purpose, a constitution must be clear. This means that the constitution should clearly define the rights of the citizen and clearly define the powers of the state.
Clarity In The Uk Constitution
It can be argued that the constitution of the UK is very unclear. This is because, with the various written parts of the constitution found in different places, and with some parts of the constitution not written at all , sometimes it will be unclear as to whether something forms part of the constitution or not. Thus, it can be argued, that with written constitutions like that of the UK, where it is sometimes unclear if something forms part of the constitution or not, it is sometimes difficult to determine whether the government is acting within its limits, and likewise difficult to determine if ones rights are being violated or not, and such ambiguities may be interpreted by the courts in such a way which goes against the purpose of the constitution. Also, since there is no single document encapsulating all of the citizen’s rights under the UK constitution, it can be argued that the citizens’ awareness of their own rights is limited. To quote Justice Secretary Jack Straw on citizens awareness of their rights in the UK: “”¦most people might struggle go put their finger on what those rights are or in which texts they are located”�? Thus, without a good awareness as to what their rights are, the citizens of the UK will be less able to stand up for their own rights and seek justice through the legal system. Thus, it can be argued that due to the fact that the UK’s constitution is unwritten, it is not very clear, and thus can only achieve its purpose to a certain extent.
Clarity In Written Constitutions
In written constitutions, as mentioned above, the constitution is held in a sole document or collection of documents. Many Western countries with written constitutions have something known as a Bill of Rights. A Bill of Rights is essentially a statement of fundamental liberties which the people of a country can expect to have protected from interference by the state authorities. Thus, in countries which have a written constitution and a Bill of Rights, the rights of the people are clearly defined and set out. Thus, in such countries, it will be easier to protect the rights of the people, since it would be easier to determine whether or not ones rights has been violated, since all of the peoples rights would have been encapsulated in the Bill of Rights. Having a Bill of Rights would also increase the people’s awareness of their rights, since they would not have to refer to various sources to determine what their rights are. With the people more aware of their rights, they will be better able to protect those rights and seek justice through the legal system. Thus, with a Bill of Rights, the constitution would be better able to protect the rights of the people.
Also, it can be argued that a written constitution would be better able to curb arbitrary abuse of power by the state. This is because, with a written constitution, separation of powers is arguably more achievable. This is because, in written constitutions, with the powers of the state institutions more clearly defined, there is less room for them to act against the separation of powers.
Thus, since written constitutions help better protect the rights of the people through having a Bill of Rights, and help better prevent the government from abusing its power through promoting the separation of powers by clearly defining the powers of the state, it can be said that a written constitution would give better effect to the purpose of a constitution.
In order to give better effect to its purpose, a constitution must be sufficiently constant. This means that the constitution must be dependable and only change when necessary.
Constancy In The Uk Constitution
When discussing constancy in the UK constitution, an important feature of the UK constitution that should be taken into account is the principle of Parliamentary supremacy , which is one of the dominant features of the UK constitution. The concept of Parliamentary sovereignty is about Parliament being the highest source of English law, and Parliament being able to make any law they like Parliamentary sovereignty requires that the courts must not question the validity of Acts of Parliament so long as they have been passed according to the proper procedure. Thus, in the UK, Parliament is supreme over the constitution. There is a long list of cases which support this principle, thereby illustrating that Parliament is indeed very sovereign.
Thus, the UK Parliament is free to make any law it likes on any type of subject matter, including constitutional issues. Through the party system, “party-whips”�? can often be used to obtain a simple majority in Parliament Thus, the UK Parliament would be free to change the constitution by simply passing another Act of Parliament which repeals or amends the previous constitutional provisions. Thus, the rights of the people can be simply legislated away, and similarly, the UK Parliament can pass new Acts of Parliament which grants them more rights. Any of these new legislations will have to be upheld by the courts, as according to Parliamentary sovereignty the courts cannot question the validity of Acts of Parliament. Thus, because the UK’s Parliament is supreme over its constitution, the people in power are more free to give themselves more power and take away the rights of the citizens. One example of a civil liberty being legislated away by Parliament is to do with the “right of silence”�?. This “right of silence”�? was arguably part of the UK’s constitution. However, this “right of silence”�? was effectively abolished by the Criminal Justice and Public Order Act 1994. Another example is to do with a provision under the Bill of Rights 1689 regarding the freedom of speech in Parliament. The aforementioned right was amended by Parliament through the Defamation Act 1996. Also, during the Thatcher regime, the state tried to take away many important rights: attempts were made to prohibit the publication of a book called “Spycatcher”�?, trade unions were successfully banned at Government Communications Headquarters, and Clive Ponting, who was a civil servant, was prosecuted under the Official Secrets Act 1911 for leaking official information which the Government wanted to remain secret. Thus, as can be seen from the above examples, without a written constitution, the Parliament will be free to legislate any laws it likes, even laws which take away the peoples rights.
So, it can be said that the principle of Parliamentary Sovereignty goes against the purpose of a constitution. To quote Chief Justice Marshall of the US Supreme Court: “The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative is true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.”�? The UK constitution is on level with ordinary legislation, as it can be altered simply by passing another Act of Parliament. So, what is the purpose of having a constitution if it can simply be changed when Parliament shall please to alter it? Since the constitution can be changed at the will of the Parliament, it can hardly be said to be said to guarantee the citizens rights, and thus does not fulfil the purpose of a constitution.
Constancy In Written Constitutions
Written constitutions promote the principle of constitutional supremacy through a Bill of Rights. Under the principle of constitutional supremacy, the constitution would be the highest source of law in the state, and the legislative powers of the governing would be defined in the constitution itself. Thus, if the legislature of such a state wanted to repeal or amend part of the constitution, they would have to do so in compliance with the relevant procedures laid down in the constitution itself. In the US constitution, under Article 5, it is required for a constitutional amendment bill to pass both houses of Parliament by a two-thirds majority, and once the bill has passed the legislature, it goes on to the states. Thus, it can be seen that in written constitutions, the constitution is more difficult to change due to a higher majority required in Parliament. Legislation which is protected like this is said to be “entrenched”�?. Thus, with a written constitution, it would be more difficult for the state to take away the peoples rights and give itself more powers. Thus, it can be said that a written constitution gives better effect to the purpose of the constitution.
Also, under written constitutions which have a Bill of Rights, it is provided that all the rights contained within it must be respected by all of the state authorities, and those rights would have a status that is higher than that of ordinary law. This means that the courts would be able to refuse to apply provisions of Acts which are in conflict with rights under the Bill of Rights. Thus, in countries with written constitutions, the ultimate determination of constitutionality is made by the courts, and thus the rights of the people are better protected since the courts have the power to refuse to apply statutes which violate rights protected under the constitution. Thus, it can be said that written constitutions give better effect to the purpose of the constitution.
In order for a constitution to give better effect to its purpose, it needs to be flexible so that it will be able to continue trying to achieve its purpose indefinitely. A flexible constitution would be able to expand to adapt to the varying requirements of society.
Flexibility In The Uk Constitution
As mentioned above, there are no special procedural requirements which need to be satisfied to change provisions of the UK constitution. Thus, it is easy for Parliament to change the UK constitution, and this is why the UK constitution can be considered very flexible. This flexibility of the UK constitution is said to enable it to adapt over time, and allows it to meet new requirements as they surface. Thus, it can be said that the UK’s constitution is very flexible, and thus it is better able to promote the purpose of the constitution, as it is better able to adapt with the changing requirements of the country.
Apart from there being no special procedures to amend the UK constitution, another argument which suggests that the UK constitution is flexible is to do with conventions. Conventions are very flexible, in the sense that changing convention is as simple as deciding not to follow the convention any longer. That is why many conventions have come about as a result of a desire to avoid the relatively complicated process of changing the law. Because of conventions, the role of the Queen in the affairs of the executive has almost completely vanished without the use of series of statutes. Similarly, through the use of conventions rather than legislation, the Prime Minister has obtained many powers. As illustrated above, the flexibility of conventions is very useful in bringing about changes in the constitution without changing the constitutions legal form, and it is thus one of the key advantages of unwritten constitutions.
Flexibility In Written Constitutions
It can be argued that written constitutions lack flexibility because the procedures for amending written constitutions often require higher majorities in Parliament , and thus changing written constitutions is not that easy. The constitution of the US, for which the amendment procedures was discussed above , has only been amended 27 times. Thus, the US constitution can be considered a somewhat inflexible constitution. Another example of inflexibility in written constitutions is the extreme case of the constitution of Australia. So far, in the case of Australia, 42 proposals have been put forward, but only 8 of those proposals met the requirements to change the constitution. Thus, Australia can be considered a “constitutionally”�? frozen state. Thus, as illustrated by the above two examples, written constitutions can be very inflexible, and thus be less able to adapt to the changing requirements of society and promote the purpose of the constitution.
However, it should be noted that in written constitutions, there is an another factor in effecting constitutional change: the judiciary. In written constitutions, the role of the courts is also to interpret legislation and decide on whether or not it breaches the constitution. Thus, the judges play a role in interpreting the constitutional provisions, and the fact that various possible interpretations can be drawn by the judges can be said to provide a certain degree of flexibility in written constitutions.
Will Having A Written Constitution For The Uk Give Better Effect To The Purpose Of The Constitution?
Having looked at the need for the constitution to be clear, constant, yet flexible, we can see that the constitution needs to be changeable to a certain extent so that it can meet new needs, but at the same time, it should also be sufficiently certain so that it can protect the rights of the people. To quote H.P.Lee : “In subscribing to the adage that a constitution which cannot bend will ultimately be broken, one must also be aware of a constitution which is extremely easy to amend for it may turn out to be worse than having no constitution at all.”�? Thus, it can be seen that a balance needs to be struck.
Would a written constitution be better able to strike that balance than the UK’s current unwritten constitution?
As seen above, the UK’s constitution is very flexible due to its customs and due to the fact that there are no special procedures needed to amend it. However, the UK constitution is not very constant due to its Parliamentary sovereignty. The UK constitution is also not very clear because it partly consists of unwritten sources and its written sources are not conveniently contained in a single document or collection of documents.
On the other hand, written constitutions are very clear because they are set out in a sole document or collection of documents. Written constitutions are also more constant because they are harder to amend. However, the only flexibility in written constitutions lies in their judicial discretion in interpreting the provisions of the constitution.
In other words, when comparing the two of the above options, unwritten constitutions are relatively unclear, inconstant, but more flexible when compared to written constitutions. However, it should be noted that written constitutions can be drafted using open and imprecise language to allow for more flexibility in the judicial interpretations of the constitution. Thus, if drafted as suggested, written constitutions can be clear, constant, and flexible. By being clear, constant, and flexible, it can be said that a written constitution would give better effect to the purpose of the constitution, which is to limit the government’s power and protect the citizens’ rights from governmental abuse. Thus, it can be said that the United Kingdom does really need a written constitution.
However, it is important to bear in mind that it is possible for a government to act arbitrarily even with a written constitution which requires a two-third majority to amend it. Due to the nature of the party system: in the vast majority of cases, a government can expect its own members to obey party discipline, so that government proposals will invariably be passed if the opposition lacks the numbers to prevent this. The fact that, given a decent majority in Parliament, governments can make whatever law they like, means that they can simply legislate freedoms away. Thus, whilst a written constitution does ensure more certainty than an unwritten constitution, a Bill of Rights or something similar is needed in addition to a written constitution to ensure better protection of rights by providing that legislation conflicting with the constitution need not be upheld by the courts.
The Human Rights Act 1998
Many people feel that the Human Rights Act 1998 (HRA) is the first step in the right direction when it comes to protecting the people’s rights. The HRA encapsulated in one document all of the people’s rights under the ECHR , and made those rights enforceable in domestic law. Before the HRA, the people of the UK were less aware of their rights, but since the HRA contains all of their rights in one document, the people’s awareness of their rights has increased. However, s3(1) of the HRA only requires the courts to give effect to the convention rights so far as it is possible to do so. Thus, if an Act of Parliament expressly went against a convention rights, the convention right will not be protected. However, considering the cases of R v Secretary of State for the Home Department, Ex p Simms and Thoburn v Sunderland City Council it can be argued that the rights in the HRA are protected to some extent because the doctrine of implied repeal does not apply to the HRA because it is a “constitutional Act”�? However, this does not prevent Parliament from undermining the people’s rights through express legislation. Thus, whilst the HRA did improve the protection of rights to a certain extent, ultimately, the UK needs a written constitution with a Bill of Rights in order to better safeguard the people’s rights and thereby give better effect to the purpose of the constitution.
BBC News, Straw’s written constitution hint, 2008, < http://news.bbc.co.uk/1/hi/uk_politics/7241942.stm>
Bennett, Scott and Sean Brennan, Research Paper 2 1999-2000: Constitutional Referenda in Australia, 1999, < http://www.aph.gov.au/library/Pubs/rp/1999-2000/2000rp02.htm>
Cooray, Mark, The Australian Achievement: From Bondage To Freedom, 1995,
Books and Articles
Barnett, Hilaire, Constitutional and Administrative Law (sixth edition, 2006), Routledge-Cavendish
Blackstone’s Commentaries on the Laws of England (1765-69), Vol I
Bradley, A W and K D Ewing, Constitutional and Administrative Law, (fourteenth edition, 2007), Pearson Education Limited
Elliot, Catherine and Frances Quinn, English Legal System, (eight edition, 2007), Pearson Education Limited
Lee, H P, in “The Process of Constitutional Change”�? in The Constitution of Malaysia – Its Development: 1957-1977
Seng, Mark Goh Wah, Sovereignty Under Siege! A Critique of UK’s Parliamentary Sovereignty in Light of the Human Rights Act 1998, (2007) 2 HLR
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