As well as complaints that the unwritten constitution is outdated in a modern society, it has been widely argued that the absence of written rights for the citizen makes it easier for these rights to be infringed. At present, the citizen may invoke the European Convention on Human Rights if his or her rights appear to be infringed by the government, or by a British law, but can only do so by first applying to the European Commission on Human Rights, a lengthy and expensive process. Great Britain has been the source of more applications than any other country and we need to ask ourselves why this is the case. In the time since citizens have been able to lodge complaints with the EC 37 cases against the UK government were heard by the European Court involving at least one violation in 27 of these. Another point in the case is that the United Kingdom is the only European country not to have explicit rights for example the freedom to religion, speech and assembly and the freedom to conscience. This is perhaps one of the reasons that the Human Rights Act, which was established in 1998 by the EC, was only enforced in Britain in October 2000.
Beatty v Gillbanks (1882) Queens Bench Division is a case in the point as it was in this case whereby Beatty and others were found guilty of forming an "unlawful" assembly. If this case were brought to court now it would be possible for them to put forward their case to the EC.
The ECHR is particularly concerned with the importance of political and civil rights for the contracting states. It protects most of the rights contained in the Universal Declaration of Human Rights, though less extensively. Rights included are the right to life, freedom from slavery, freedom of association, freedom of expression, freedom from torture, protection of privacy and family life, and freedom from discrimination in the application of these rights and freedoms.
The British Constitution is indeterminate, indistinct, and unentrenched. It is found in no single constitutional document. The volumes entitled Constitutional Law in the official edition of the Statutes in Force cover 138 Acts of Parliament, while a quite separate volume on Rights of the Subject gives another 32, including what is left of Magna Carta. Furthermore, many matters in written constitutions, such as the procedure on a finance bill or a vote of no confidence, are governed entirely by custom, convention, and Standing Orders of the Houses of Parliament.
There is a classic distinction drawn by Bryce on flexible and rigid constitutions. In a flexible constitution there is no difference between ordinary and constitutional laws. In terms of legal principle and procedures, the latter may be amended or repealed as easily as the former eg Act of Union with Scotland1707, which amongst other things abolished the English Parliament and instituted a new British Parliament in Westminster. Provisions in this legislation have been amended by legislation passed by the Westminster Parliament in the normal way.
On the other extreme is the constitution of the United States of America, which without a doubt is one of the most rigid constitutions in the world. Under the U.S constitution, formally adopted in 1789, an amendment maybe proposed in one of two ways. Either two thirds of all members (not just the members present) of each house of Congress may agree that certain amendments are necessary or they will be forced to call a special convention to consider amendments when petitioned to do so by the legislatures of two thirds of all the 50 states. However some have argued that a written constitution without a commitment to its principles and civil justice has often proved to be a temporary or rapidly reversed gesture. Adolf Hitler for example never formally abolished the constitution of the Weimar republic, and the protections of personal liberties contained in the Soviet constitution of 1936 proved to be empty promises.
Flexible constitutions that are those whereby they are amended by ordinary legislative procedure have been criticised as too small as it may comprise now only the U.K and New Zealand. However an advantage to our system of ruling as that opposed to codified systems is that it is more effective as, “ in the interpretation and application of the law the courts have and rightly have the last word.”. It may be argued on the other hand that often interpretation of certain statues can prove difficult especially as we are lacking in a real constitution. In the absence of a codified text and of statutes, which have an explicit constitutional status, it is important to decipher whether our rules and laws have in substance a constitutional character. It can be said that although the constitution remains unwritten, there is a clear body of rules, which have a certain constitutional calibre. This statement may be true to a certain extent however I believe that in the absence of a codified constitution it is difficult for judges to rule plainly that government conduct or perhaps even citizen conduct is unconstitutional. Judges have emphasised that the British parliament has unlimited legislative supremacy or that it is sovereign. It is therefore the courts rather than parliament itself that have formulated the principle, which is the cornerstone of the unmodified constitution, which we endure in. Parliament could declare by an act of parliament that it is legally sovereign and that it has unlimited power to enact any legislation it likes. In simple words, there is no body, which can override or derogate from an act of parliament under the British constitution.
This doctrine must be applied and obeyed by the courts e.g. the case of Cheney v Conn [1968] where a taxpayer argued that the use of nuclear weapons was unlawful under international law and part of his tax was being used towards the construction of nuclear weapons. Ungoed – Thomas J said:
“ What the statute itself enacts cannot be unlawful because what the statute says and provides is itself the law and the highest form of law that it known to this country. It is the law that prevails over every form of law and it is not for the court to say that a parliamentary enactment, the highest law in this country is illegal.”
This quotation clearly reinforces Dicey's beliefs, that the dominant legal principle regarding the constitution was that of parliamentary supremacy. It poses the question, ‘ what rights do we as citizens have if parliament have the last word in every issue or crisis?’ in simpler terms, the unwritten constitution proves more beneficial to the government rather than the governed.
The major features of modern democracy include individual freedom, which entitles citizens to the liberty and responsibility of shaping their own careers and conducting their own affairs; equality before the law; and universal suffrage and education. Can one argue that although these rights are present in our system, they are only present at face value? If parliament has the greater prerogative in any decision regarding the country and its citizens surely we cannot say that we are living in a democracy.
We might just as well say that we are living in an aristocracy which is when the sovereign power is vested in a small number of citizens who are theoretically the best qualified to rule i.e. Parliament (perhaps even the executive) since in a democracy, the ultimate authority is exercised by the entire body of citizens or their representatives and as we can clearly see, this does not happen in our constitution. We as citizens should have the prerogative of knowing our rights and so we can argue that this is not simple when the constitution is unwritten and based on outdated customs and conventions.
Stanley Baldwin states in his criticisms of the unwritten constitution, “ the historian can tell you probably perfectly clearly what the constitutional practice was at any given period in the past, but it would be very difficult for a living writer to tell you at any given period in his lifetime what the constitution of the country is.”
The former Prime Minister Margaret Thatcher claimed in response to the demands of charter 88 " the government considers that our present constitutional arrangements continue to serve us well and that the citizens in this country enjoy the greatest degree of liberty that is compatible with the rights of others."
In defence of our present constitution, many would argue that this system has served us well over the centuries, that our parliamentary traditions have combined stability and flexibility and that we should not cast away in a minute what has taken generations to build (‘ ...has not been made but has grown… the building has been constantly added to, patched and partially reconstructed’). However I strongly believe that it should be within our rights to demand a system that will improve consistency and steadiness in the quality of our government. There should also be reforms to assist in entrenching, clarifying and widening the present separations between the executive, the legislature and the judiciary as the branches of our government are over fused and no real separation exists. No constitution is or can be perfectly symmetrical, what it can be and must be is generally accepted as both fair and useable.
Beatty v Gillbanks (1882) 9 QBD 308 Queens Bench Division
Allan ‘ The Politics of the British Constitution: a response to Professor Ewing’s paper 2000
Constitutional and Administrative Law unit guide University of East London
Stanley Baldwin - Altavista web engine, look for constitutional and administrative law
Constitutional and Administrative Law, third edition, Michael Allen, Brian Thompson and Bernadette Walsh
