Parliamentary Sovereignty is not applicable to a written constitution, which means that the rule that parliament cannot bind its successor does not apply here. In the US the states are governed by a federal system headed by the president, so in this case entrenchment is possible, whereas in the UK’s unwritten constitution it is not possible to entrench laws. This is a way of protecting the fundamentals or key provisions of the constitution, securing the laws by making them relatively difficult to alter or repeal. This may ensure protection, but by making the laws harder to change or repeal may incur rigidity which can lead to obsolete laws. An example of this is the process of amending the American constitution. In the US these can only be changed by the process of an amendment which requires the consent of two-third majorities in both Houses of Congress and the agreement of the legislatures of three-quarters of the states. Largely for this reason there have only been 26 amendments in the past 200 years.
In the US the supreme court has an important role in the American political system as it has the power of judicial review of primary legislation. This means that the supreme court judges have the power to review any propositions for alterations to the constitution. This helps break down the complexity of laws and ensures that any amendments or application for repeal proposed by the government can be declared unconstitutional before it becomes part of the constitution. However it is a costly and lengthy process, but in the case of a written constitution, in which the laws are entrenched, this would help prevent the government from the difficulty of having to change or remove a law that was deemed unconstitutional after it was entrenched.
America’s written constitution is also marked by the idea of the Separation of Powers. This refers to the idea that there are three branches of the government: the legislature, which makes the laws; the executive, which put the laws into effect; and the judiciary, which judges in cases of dispute about the meaning of the law or where the law has been broken. Political philosophers such as Montesquieu (1689-1755) put forward the view that liberty could be protected by the separation of three branches so that no one person or group could control all the institutions of the state.
“There can be no liberty if the legislative, executive and judicial powers of government were to be exercised by the same person or authority”
(Montesquieu, Carroll, P34)
His views much influenced the men who wrote the American Constitution which is marked by the idea of one branch of government balancing and checking the others.
Written constitutions tend to adopt the monist approach, which means the consent of parliament is not needed when brining in a new law, this makes the process quick and easy, but may also lead to mistakes. Because of entrenchment these can be difficult to correct.
The United Kingdom is one of three countries in the world to have an unwritten constitution, the other two being Israel and New Zealand. Unwritten constitutions draw on a variety of sources. In the UK the unwritten constitution is made up of judicial decisions and acts of parliament, which is how it has evolved over the years. This may make it easier to add to, but not so easy to access as a single written document. The structure of the UK’s constitution implies that it is not totally left unwritten, it includes many written documents, which makes it partially written, but not codified. It does not consist of formal declarations or guarantees like a written constitution, this may result in lack of clarity and difficulty in grasping the content as it is subject to many interpretations. This also makes accessibility more challenging than it may be for a written constitution such as America’s. However, it gives the impression of freedom of thought as it does not confine the public to a single list of rules.
The UK’s unwritten constitution can be described as evolutionary as it has developed over time. Britain has had a long and continuous national history and the origin of constitutional practice dates back to the Saxon kings who ruled England before the Norman conquest of 1066. There has been a long tradition of strong central rule dating back to the Tudors, and since the upheavals of the 17th century constitutional development has been largely peaceful and evolutionary.
The UK’s constitution consists of many diverse sources such as the Doctrine of Parliamentary Sovereignty. This plays a major part in the UK’s constitution, it means that parliament is not bound by it’s predecessors and therefore cannot bind it’s successors. It is the claim to be the ultimate political authority, subject to no higher power and able to make and enforce political decisions without having to seek permission from any other body, this enables laws to be created or changed relatively easily. States may voluntarily enter into international agreements that limit their power; for example, membership of the United Nations entails accepting the UN charter which imposes limitations on member states’ right to go to war. However, sovereignty is not infringed, because the state concerned, having voluntarily entered into an agreement, can exercise its sovereignty by leaving the organisation or denouncing the treaty. However it can be said that the people of the state are in fact sovereign because if the majority are opposed to an act of parliament they can refuse to comply. Examples of such occurrences are Magna Carta 1215 and the petition of Rights following the revolution of 1688/9 these show the people fighting back very early on in the history of the constitution.
This also means that entrenchment is not possible in the unwritten constitution because of Parliamentary Sovereignty. This gives it some degree of flexibility, but could also be seen as a lack of security. The government can include entrenchment clauses in an Act or statute, but this can still be repealed simply by passing another statute to do so. This draws attention to the fact that Britain is marked by a formal concentration of authority rather than by the Separation of Powers in contrast to the USA. In Britain the emphasis has been on the concentration of authority in the hands of the government. This has grown in the last hundred years and is related to legal features such as the exercise by ministers of the Royal Prerogative, which is the legal powers of the crown, the use of which is not subject to parliamentary approval. Also the fact that control of parliament means that the government decides in most cases what legislation is passed or not passed. Therefore for all practical purposes the sovereignty of parliament allied to the use of the royal prerogative gives the government virtually unlimited authority, a situation found in few other democratic countries.
In contrast to the USA’s written constitution the UK does not have judicial review of primary legislation, so any bills passed through parliament by the government are not previewed and cannot be declared unconstitutional before hand as they are in America. However if an unconstitutional statute was to be passed, because of Parliamentary Sovereignty it can quickly and easily be amended or repealed before too much detriment is caused. If an Act conflicts with a previous Act, either partially or fully, then the previous Act is repealed to the extent of the conflict. This is known as the doctrine of implied repeal as it does not matter if the most recent Act does not contain any express words to effect the repeal or alteration.
The UK’s constitution uses the dualist approach when treaty making, firstly the treaty needs to be ratified or signed by the government, then requires the consent of parliament. For example the UK ratified the Treaty of Rome in 1951 but it did not become a part of our law until 1998 when it got passed through parliament. This two-stage approach gives the state a chance to consider the implications of including a treaty into their law, before it becomes part of their constitution.
In conclusion, a written constitution is indeed a revolutionary way of setting out and clarifying the rules and regulations of a state, but this is only appropriate in the right circumstances. Even the most narrowly-detailed written constitution cannot include every single feature or process of a political system, also most unwritten constitutions include at least some statute law or other written provisions. One of the main reasons that suggested that the UK should adopt the written constitution form was to protect Citizen’s rights, but now the Human Rights Act 2000 has been passed there does not appear to be a benefit of introducing one. This outlines the success of Britain’s present successful judicial system and democratic parliament, it has remained stable and has had a responsible government for years. Why risk detriment to the Country if the form of the constitution does not necessarily play a part in it’s effectiveness.
Bibliography
Barnett, A., Ellis, C. & Hurst, P. (Eds.) (1993) Debating The Constitution Polity Press
Bradley, A. W. & Ewing, K. D. (2003) Constitutional and Administrative Law (13th ed.) Longman
Carroll, A. (2002) Constitutional and Administrative Law (2nd ed.) Longman
De Smith, S. & Brazier, R. (1994) Constitutional and Administrative Law (7th ed.) Penguin Books
