Features of a constitution whether written or unwritten, and whether underlying values are better protected in the UK with a written constitution.

This essay aims to explain the basic features of a Constitution. It will draw upon examples found in the liberal democratic countries of the U.S and the U.K, as well as examining any methods for protecting some of the underlying principles and values, in the UK without a written constitution.

A constitution is a system of government, to establish and define, powers and duties. It describes the checks and balances, to ensure that law is effective, on behalf of the people of the State and approved by them. For this to be achieved it is necessary to understand the interrelation of 3 fundamental constitutional principles, the separation of powers, the rule of law and civil liberties.

Separation of powers assumes that there are 3 branches of power, legislative, executive and judicial. The purpose of the separation is that the holders of power can be checked and balanced off by each other as Lord Atkin said, “power tends to corrupt and absolute power corrupts absolutely”. The government must not exceed the powers delegated to it by the people, nor may it act contrary to their interests or to undermine their rights. If it does it should be brought back into check by the independent judiciary, through the rule of law and judicial review. For example In R v Secretary of State for the Home Department ex parte Pierson (1998) Lord Steyn ruled that the government had gone beyond its power, as it was not able to retrospectively increase the level of punishment of an already convicted man.

Strictly speaking it is the rule of law that unites the whole of the state, no one is above the law, neither government, nor its citizens nor the judiciary. A.V.Dicey also described it as “equality before the law” a citizen can only be punished for a distinct breach of the law not the arbitrary behaviour of authorities. The rule of law depends on the role of trial judges and the impartiality of judges, especially with cases involving the liberty of individuals against the state.

Civil liberties are fundamental to a liberal democratic constitution, for instance freedom of speech, free elections, the right to live an honest life without fear of oppressive authority. A leading case on civil liberties was later the basis of 4th amendment of the US constitution. In Entick v Carrington 1765 Lord Camden ruled against the Home Secretary who had issued a warrant for the entry into private property and seizure of seditious materials was illegal, on the basis that it was trespass to property. It is vital that a responsible governing power honours and protects civil liberties if it wants to maintain a democratic legitimacy, if it does not it could risk damaging the foundation of its governing power. The interrelation of these essential principles is featured in the US constitution.✓

The need for the U.S written constitution arose after the country had been divided from civil war 1787. The codified constitution entrenches the fundamental laws, the rule of law, the powers of the government body, procedure for amendment and the Bill of Rights, which guarantees civil liberties. If there are discrepancies from the legislature the Supreme Court can declare the law to be unconstitutional for instance in Marbury v Madison (1803). A written constitution is also said to be rigid and some of the provisions are now outmoded (for instance the rights of slave owners), there have been only 10 ...

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Since 1066 there has never been a need for a complete reworking of a system of government in the U.K, it merely evolved over hundreds of years. The House of Lords website says of the UK’s unwritten constitution ‘The UK has no single document defining the constitution. Instead, relations between the crown, parliament, government, the courts and citizens are governed by a combination of statute, common law and unwritten convention.’

How are the constitutional principles explained earlier, protected in practice in the unwritten nature of the U.K’s constitution? Firstly, the powers of executive and legislature are fused into one, Parliamentary executive. The elections are held to select members of Parliament are in fact the same as to select the Government. However their functions are separate and the passing of laws must go through both houses of Parliament and receive assent from the Queen to become an Act of Parliament before the executive can apply the laws. ✓

The powers of the Monarch as head of State are limited. The Bill of Rights 1689 came about to curb the arbitrary behavior of the monarch and confirm powers upon Parliament. What remains are the Royal prerogative powers which government Ministers largely exercises in the name of the crown and some of these are executed by conventions, which will be discussed later. Our current Queen has been described as the model constitutional monarch, as she has not had to test the boundaries of her prerogative, this could change with her successor. ✓

The Judiciary has enjoyed a secure and independent role since the Act of Settlement 1701. On ‘good behavior’ judges cannot be dismissed for unpopular judgments, or if they have taken the government to task over government decisions. This makes them well placed in their power to review the legality of bodies acting under powers conferred by an Act of Parliament. Whether this is in relation to disputes between, state institutions, state and individual, or between individuals. So it could be said that there is a system of checks and balances in place in the UK to protect the principle of the Separation of Powers, at least between Parliament and the judiciary. ✓

Secondly the Judiciary in the UK uses the rule of law when it can to limit the power of Parliament. Using tools such as judicial precedent to develop the common law. The 1966 practice statement allows them to depart from previous decisions when it seems right to do so. Using general notions of fairness, justice and morality. The judiciary can check the authenticity of an Act of Parliament using the Enrolled Bill Rule (Edinburrgh and Dakeith Railway Co v Wauchope (1842), that it has passed both houses of Parliament and received royal assent. It can also check that the Act is still effective and not been repealed by a later Act. Once this is done the judiciary are bound by the law contained in the Statute, and must apply it to the case accordingly. An Act of Parliament cannot be overridden by any decision made by any other body, only by the enactment of another Act from Parliament. This is Parliamentary supremacy.✓

Lastly, civil liberties have been given weight by Statute, since the enactment of the Human Rights Act 1998.✓✓ This gives further legal effect in the UK to the fundamental rights and freedoms contained in the European Convention on Human Rights. So that Acts of Parliament should be read and given effect in a way, which is compatible. There are many exceptions that Parliament can use, for instance, national security to override human rights. Unlike the US Bill of Rights it does not entrench the Convention on Human Rights into the UK constitution, as it has merely been enacted by an Act of Parliament, which can be repealed by a future Parliament. The current opposition leader David Cameron has recently pledged to do just that at a recent Convention on Modern Liberty, and replace it with a British Bill of Rights (Alan Travis, 2009). ✓

Without an entrenched codified written constitution to define powers and duties, many conventions have developed by those who operate the constitution, to fill the gaps between the laws. They are not enforced in a court of law, but are said to be binding on those to whom it would apply. They are obeyed for a need to legitimize the exercise of power, and to avoid a constitutional complexity. For example the Bill of Rights had left no provisions on how the powers left to the Crown were to be exercised by government ministers, it has developed over many years by convention. It is also convention that the Queen will accept legislation passed by the government, and give it royal assent. It would create a constitutional crisis if she refused to do this. These conventions are not brought into question by the people, as long as the end result is of an operating Parliament that works in the people’s interest.

There have been some recent criticisms that could put the effectiveness of the system to protect civil rights into question. The tensions between terrorism and human rights, the changes in prolonging detention, information of innocent people held on databases. Nick Gibson who was recently told by the police he had to have a CCTV installed in his pub in order to receive his pub license. Without a constitution it is not clear the basis for peoples rights in the UK. It has been said that the government holds too much power and can push legislation through giving more powers to the police and other public bodies. At least they are an elected body accountable to the people; the US model of a rigid unchanging constitution relies on the unelected judiciary to interpret the constitutional laws to bring them up to date. The UK constitution does not give as extensive powers to government as is sometimes indicated, external elements include, the official opposition, media, parliamentary scrutiny, pressure groups, pressure to gain re-election, all limit the governments power. The UK has enacted legislation that has kept up with public opinion, example the Civil Partnership Act 2004, through a simple speedy procedure, which might not have been possible with a written constitution.

It is the better opinion that in the UK there is no need to have a written constitution, to further protect values, as long as there is continued informed involvement from the people to maintain their civil rights, that the democratic legitimacy of the governments power is maintained, and that there are no significant change in the monarchy. As history as shown, the governing powers would rather reform their powers than to have to write a constitution from scratch. ✓

Word count 1685

Clear statement.

three

Good example.

✓ Yes, but also worth drawing upon the account of Raz.

Explain what this involves.

Worth expanding upon this a little.

Interesting points.

Very good points.