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To What Extent Does the UK Have a ‘Constitution’?

Info: 3792 words (15 pages) Essay
Published: 3rd Jul 2019

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Jurisdiction / Tag(s): UK Law

In order to answer the question as to whether the UK has a ‘constitution’, this essay shall firstly define what is meant by the term. Secondly, establish that the bases of any constitution must have with it the philosophical and practical implementation within the State structure; namely the rule of law and the separation of powers. Thirdly, with reference to various sources of law, describe the type of ‘constitution’ the United Kingdom possesses. Finally, shall cross compare and analyse the differences and similarities with the US constitution, to reinforce the view that indeed the UK does have a constitution; albeit in a different form and preferential format compared to the rigidity employed in the constitutions of other states.

Thomas Paine depicted the constitution as ‘…not an act of government but of a people constituting a government and a government without a constitution is a power without right…’ [1] Ridley further analysed the importance of a constitution ‘having a constitution seems to be a matter of self respect: no state is properly dressed without.’ [2] A constitution can be portrayed as a set of fundamental political principles with the primary purpose of controlling the organs of government. The UK constitution is uncodified and has been critiqued by Eric Barendt as ‘a jumble of diffuse statutes and court rulings, supplemented by extra-legal conventions and practices’. [3] Such statutes however, act as a legal ‘aide memoire’, establishing boundaries which the state’s rulers cannot cross and comprise of the states fundamental rights [4] .

Philosophical and practical implementations apply to the state’s requirement for the separation of power so that constitution can be exercised. Philosophical foundation of a stable and cohesive state is one that abides by the rule of law, ensuring its institutions are kept apart through the doctrine of the separation of power [5] . Dicey’s rule of law is fundamental to the UK constitution; it is a legal maxim that states that no person is immune from the law. [6] The rule of law can be separated into three pillars. The first being that the state cannot interfere with your personal automatism unless there has been a breach of law, ‘… lawfully made to suffer…except for a distinct breach of law…’ [7] such an illustration is found in Enrick v Carrington. [8] Contradicting this, the Anti-terrorism, Crime and Security Act 2001 section 10 [9] , allows the government to hold a suspected terrorist without charge, which is contrary to Dicey’s principle that the state cannot interfere with your personal automatism unless there has been a breach of law. Although proportionality principle may account for the right to infringe the basic rules of law; the removal of someone’s liability should not be proportionate unless a law has been infringed. [10] The second pillar substantiates the equality of the people; [11] no man is of sufficient power to be above the law and its values, ‘every official… is under the same responsibility for every act done without legal justification as any other citizen.’ [12] This is not fully substantiated as all judges are immune from legal actions within their judicial functions provided they are acting within jurisdiction; displaying exceptions to this philosophy [13] . The proportionality principle encompasses the justification of such a right. [14] The final pillar constitutes that there is no written constitution code and that constitutional law is ‘the result of the judicial decisions determining the rights of private persons in particular cases brought before the courts.’ [15] The rule of law and separation of powers are entwined with regard to constitutional importance in the UK. The systematic way the UK electorate is involved in the political processes prevents a dictatorship however, this had been described by Lord Halisham of St Marylebone as a practice of ‘elected dictatorship’. [16] John Locke describes the fundamentality of the separation of powers ‘…for the same persons who have the power of making laws, to have…power to execute them…own private advantage’ [17] . Locke advised this paramount separation was for the public good. Montesquieu, identified three functions of the state within British constitution; the executive, that formulates and executes policy, the legislative comprising the law making body and the judicial responsible for the adjudication over disputes in law. [18] The constitution requires that these institutions and individuals with power must carry out intentions fairly and properly in accordance with the public duty; the separation of powers allows the state to safeguard peoples’ liberty under law [19] . Walter Bagehot stated that the separation of powers is capricious and that the close functioning of the three bodies creates an almost complete fusion of executive and legislative powers. [20] It is arguable however that the UK constitution has evolved since the eighteen century and now proceeds to sustain a coherent separation of powers.

This essay will examine the UK’s constitution through the historical development of the state’s statute, common law, constitutional conventions, royal prerogative and the influence of the supra-national power of the European Union. The Magna Carta 1215 settlement established that the power of the crown was not limitless, which for the first time gave state protection to individuals from the freedom of the church and granted the UK trial by jury [21] . The Bill of Rights 1689 altered the balance of power away from the crown in favour of Parliament as taxes were now controlled by Parliament [22] . Lord Mustill highlighted the dominance of the separation of powers in relation to this Bill ‘boundaries of distinction between court and Parliament …ever since the Bill of Rights.’ [23] This demonstrated inter alia that checks and balances are necessary in the separation of powers for a constitution. The Act of Settlement 1700 complemented the Bill of Rights and further transferred power from the monarch to Parliament, which became the dominant constitutional body in the UK. [24] The Act of Union 1707 is now largely defunct given the constitutional reform act. The 1707 statute that brought Scotland and England under one Parliamentary diadem [25] ceased to exist with the Constitutional Reform Act 2005. This exhibits the flexibility and functionality of Parliament to change the constitution with ease and precision for the public requirement of the time. The Parliament Act 1911 limited the authority of the House of Lords by blocking legislative powers and asserting supremacy of the House of Commons. The Parliament Act 1949 is an extension of the 1911 Act; further limiting the power of the Lords [26] . Baroness Hale stated ‘If Parliament can do anything, there is no reason why Parliament should not re-design itself…’, [27] further developing Parliamentary supremacy within constitutional boundaries. The prevalent change to the constitution in recent years is the Constitutional Reform Act 2005; creating the independence of the judiciary ‘all with responsibility for matters relating to the judiciary or otherwise to the administration of justice.’ [28] It primarily abolished the Lord Chancellor’s duplicate role, as he ceases to be a judge and created the Supreme Court. Reinforcing the prevention of interchangeability between the executive and judiciary [29] , this deters centralised power becoming too concentrated. It displays the stability and consistency of separation of powers in the UK constitution.

The Common law contributes immensely to the development of constitutional law and set precedents which still remain in practice. In Burmah Oil Parliament successfully passed the War Damage Act to override the inventive ruling by the House of Lords for recognition of compensation attributed by wartime destruction [30] . Retrospective effects display Parliamentary supremacy when changing the constitution [31] . Prohibitions Del Roy led by Sir Edward Coke excluded the monarch from being a judge ‘No King after the conquest…give any judgment in any cause whatsoever which concerned the administration of justice…causes were solely determined in the Courts of Justice.’ [32] this indicated early Parliamentary supremacy and separation of powers. Enrick v Carrington is illustrative of Dicey’s first pillar in the rule of law, where the Secretary of state issued an unlawful warrant. Lord Halifax stated ‘what? has a secretary of state a right to see all a man’s private letters…monstrous indeed, and if it were lawful, no man could endure to live in this country…’ [33] Pickin v British Railways Board display the courts wariness to encroach on an act of Parliament, it seems an act is unquestionable except by Parliament itself. [34] Lord Reid stated ‘The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution…’ [35] it displays how reluctant judges are to intervene in the executive’s role. Finally, M v Home Office, the Home secretary Michael Howard disobeyed a judges undertaking that was ruled unlawful and unconstitutional ‘It is a fundamental tenet of constitutional law that the Sovereign can neither do wrong nor authorise wrongdoing. An officer of the Crown who engages in wrongdoing thereby places himself outside the scope of his authority to act on behalf of the Crown.’ [36]

Prima facie, conventions are ‘gentlemen’s agreements,’ creating a constitution that is flexible with the ability to function in a manner which is relevant to changing times. Conventions dignify the uncodified constitution. Peter Hogg described them as ‘…rules of the constitution which as not enforced by the law courts…’ [37] nevertheless they are considered to be binding. [38] Conventions are abided by creating constitutional ‘norms’ as the UK knows them. The European Convention on Human Rights is brought into the UK law by the Human Rights Act 1998. This illustrates how the UK although unwritten, practices and conventions have the susceptibility to interpret and incorporate a written convention, however, Lord Nicholls stated the human rights act ‘is anathema in any country which observes the rule of law’. [39]

The royal prerogative emanates from common law powers which Dicey stated were ‘every act which the executive government can lawfully do without the authority of an act of parliament.’ [40] These range from foreign affair powers to declare war and make treaties to domestic affairs for summon and dissolvement of Parliament [41] . It is highly unlikely that the Queen would act without Parliament’s recommendation or approval as convention states [42] . Such powers are subject to judicial reviews since the case of Council civil service Unions v Minister for the civil services [43] .

The European Communities act 1972; enables citizens to exercise their European Union law rights within UK courts and bounds of UK law; such as article 8 of European Convention. [44] The UK has partially transferred its sovereignty to the European Union and Parliament is now bound by community law. Transferring some sovereign power is problematic in relation to the hierarchy of powers, as Parliament is no longer supreme within the UK; there is reluctance within the UK jurisprudence to fully acknowledge the transfer of legislative sovereignty and a belief that Community law was purely a form of delegated legislation under the European Communities Act, however European courts have declared that it is original powers. [45] If the UK has transferred sovereign power, it has also transferred part of the foundations of its constitution which is not transferrable. European Union, asserted its powers of superiority over the domestic law of communities ‘Community law must prevail over conflicting rules of national law even if enacted subsequently to the Community rules…’ [46] The European Union displayed this supremacy over the UK in Factortame, where an injunction was granted and the UK was required to suspend national legislation because it contravened with European Union law ‘…Terms of the Act of 1972…override any rule of national law found to be in conflict with any directly enforceable rule of Community law…obligation to make appropriate and prompt amendments.’ [47] If our Parliament is no longer supreme it creates a ‘black hole’ for the constitutions foundations, however Parliament is able to repeal any statute, including that of the European Communities Act, an example of this is when Parliament approved cession of Heligoland to Germany and then 60 years later repealed the statute that had allowed for this [48] , displaying that flexibility could amount to instability and confusion.

Finally this essay critically compares the US and the UK constitutions. The US constitution; ‘The governing constitution is a synthesis of legal doctrines, institutional practices and political norms’ [49] all written and codified in one document. Conflict within the constitution by legislative or administrative acts may be held by the courts to lack legal force. In this context the UK has no constitution as it does not possess a written constitution document to consult. The US written constitution occupies the hierarchical pinnacle among ‘assemblage of laws, institutions and customs’ [50] this differs to the UK where the most constitutional documents have become developed and established over time and change. A written document has no greater authority than the people referring to it and hence the UK and US have strong similarities as many of their customs show resemblances. A written constitution like the US’ can create confusion, as all detailed rules are not documented, such as whether an act of congress that was inconsistent with the constitution must be applied by the Supreme Court or whether the court declare the act to be unconstitutional and thus unlawful. Chief Justice Marshall said if the constitution was superior, it was unchallengeable by ordinary means such as legislative acts [51] . In the UK Parliamentary sovereignty however leaves a lack of entrenchment to protect the UK constitution against a parliamentary majority [52] , it is however able to develop and change its constitution with the changes occurring within the country, being very flexible and adaptable to the point in time. The US has a rigid structure that leaves it stuck in the past. A prime example is the continued right to bear arms in the US which is in the written constitution and is obsolete.

In conclusion the UK has a constitution, although some have claimed that it does not. These are people who are thinking in relation to a single document and not a collection of documents. The challenges posed by a single document are that it creates a rigid and inflexible constitution, shown by the US; the codified nature can lead a constitutional entrenchment. The UK constitution is uncodified, unitary, monarchical and forms a bicameralism state. There can be confusion as to what a statute is introducing or removing in relation to constitutional importance. The electoral power allows the UK to have a fair and consistent constitution, however as Parliament is not bound by its predecessors, if the UK has a leader which does not abide by the consensus with the conventions and practices it may create an unfair and unconstitutional dilemma. The turning point is the constitutional reform act 2005 which moved forward to a formal separation of power and to devolution, which in balance reflects flexibility to change the constitution with ease and in clear terms within a statute, a procedure to change the constitution may indicate a move towards a reliance on codified statutes and diminishing of reliance on other sources.

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