• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
Page
  1. 1
    1
  2. 2
    2
  3. 3
    3
  4. 4
    4
  5. 5
    5
  6. 6
    6
  7. 7
    7
  8. 8
    8
  9. 9
    9
  10. 10
    10
  11. 11
    11
  12. 12
    12

Is it time to adopt a written constitution?

Extracts from this document...

Introduction

'For effective governance in the 21st century the United Kingdom requires a written constitution.' Constitutions perform three main tasks: they provide for the creation of the institutions of the State; they regulate the relations between those institutions and one another; and they regulate the relations between those institutions and the citizens they govern.1 Many believe that the United Kingdom's constitution is now outdated with an inherent lack of overall agreement between its statutes, common laws and conventions. The constitution is meant to be the main backbone on which power, control, order and authority are built upon and maintained by.2 Considering this, is it now therefore the time for the United Kingdom to adopt a written constitution in order to provide for effective interaction between these formal institutions and those of civil society in the 21st century? In this essay I will first of all differentiate and explain what is meant by the terms 'written' and 'unwritten' with respect to a constitution. I will then go on to determine the principal characteristics on which the present constitution of the United Kingdom is based and moreover, explore the arguments both for and against the adoption of a written constitution within the United Kingdom taking into consideration any possible advantages or disadvantages that may be apparent within these arguments. The somewhat misleading phrase, 'written constitution' really means 'codified constitution'. Thus, a written, or codified, constitution is one in which all the principal constitutional rules are written down in a single document named 'The Constitution'. An example of this type of constitution is to be found in the United States Constitution, with its major rules being codified and contained within its seven Articles with their subsequent amendments.3 In contrast, the constitution of the United Kingdom may be described as being uncodified in the sense that its constitutional rules and principles are located in a multitude of different sources which have not been brought together and codified.4 Although many of the rules of the United Kingdom's constitution may ...read more.

Middle

These values in themselves promote both formal and substantive qualities.19 They provide that the executive may do nothing without clear legal authority first permitting its actions. It is therefore self-evident that for the Rule of Law to be effective as a check on the executive, the courts must be able and willing to police rigorously the boundaries of the executive's statutory authority.20 Because Parliament is sovereign, however, it would seem that in theory Parliament can if it wishes 'contract out' of the common law principles which allow the court to regulate government activities. This is where the doctrine of judicial review comes to the forefront. Broadly stated, the modern form of judicial review is designed to uphold a certain interpretation of the rule of law, with its function being to ensure that executive bodies remain within the limits of the powers that the legislature has granted, or which are recognised by the courts as existing at common law.21 However, does the concept of judicial review, within the United Kingdom, go far enough in acting as a restraint on powers and, therefore protecting the citizen? Judicial review may be understood as an expression of, and as being underpinned by, the doctrine of the separation of powers. It represents one of the principal 'checks and balances' developed by the constitution to guard against the abuse of power. Its effectiveness and credibility depends on the existence of an independent and impartial judiciary.22 From a constitutional perspective, judicial review has frequently brought the judiciary into conflict with the executive and raises the question of the supposed independence of the judiciary.23 Within the United Kingdom there exists a somewhat limited existence of this separation of powers. The House of Lords has both legislative and judicial functions by acting as the second legislative chamber and as the highest domestic court of appeal.24 It must be stressed, however, that recent legislation has sought to address this issue with the introduction of The Constitutional Reform Act 2005. ...read more.

Conclusion

1 Adam Tomkins, Public Law (2003) p.3. 2 <http://www.unlockdemocracy.org.uk> accessed 10th November 2008. 3 Adam Tomkins, Public Law (2003) p.7. 4Mark Ryan, Unlocking Constitutional & Administrative Law (2007) p.18. 5 Alex Carroll, Constitutional and Administrative Law (2007) p.16. 6Ibid. 7<http://www.ucl.ac.uk/constitution-unit/media/articles/2006/3110a.htm>accessed 12th November 2008. 8 Vernon Bogdanor et. al., Should Britain Have a Written Constitution? (2007) p.499. 9 Ibid. 10 E.C.S.Wade, Dicey, Introduction to the Law of the Constitution (1959) pp.39-40. See notepad jowell p.28. 11Mark Ryan, Unlocking Constitutional & Administrative Law (2007) p.168. 12 Ibid .p.30. 13 Sir John Laws, Constitutional Guarantees (2008) p.1. 14 Diarmuid F. O'Scannlain, Is a Written Constitution Necessary? (2005) p.795. 15 Rodney Brazier, The Constitution of the United Kingdom (1999) p.100. 16 Mark Ryan, Unlocking Constitutional & Administrative Law (2007) p. 654. 17 Ibid. 18Alex Carroll, Constitutional and Administrative Law (2007) p.45. 19 Jeffrey Jowell, Dawn Oliver (eds.), The Changing Constitution (2007) pp.13-14. 20 Adam Tomkins, Public Law (2003) p.81. 21 Ian Loveland, Constitutional Law, Administrative Law and Human Rights (2006) p.71. 22 Alex Carroll, Constitutional and Administrative Law (2007) p.349. 23Kevin Harrison, Tony Boyd, The Changing Constitution (2006) p.69. 24Mark Ryan, Unlocking Constitutional & Administrative Law (2007) p.99. 25Alex Carroll, Constitutional and Administrative Law (2007) p.43. 26 N.W. Barber, Against a Written Constitution (2008) p.13. 27 Diarmuid F. O'Scannlain, Is a Written Constitution Necessary? (2005) p.795. 28 Ibid. p.796. 29 Ibid. 30 Mark Ryan, Unlocking Constitutional & Administrative Law (2007) p.67. 31 Ibid. p.68. 32 Adam Tomkins, Public Law (2003) p.49. 33 Alex Carroll, Constitutional and Administrative Law (2007) p.438. 34 Anthony Lester QC, Kate Beattie, 'Human Rights and the British Constitution' in Jeffrey Jowell, Dawn Oliver (eds.), The Changing Constitution (2007) p.68. 35 Mark Ryan, Unlocking Constitutional & Administrative Law (2007) p.513. 36 David Jenkins, From Unwritten to Written: Transformation in the British Common-Law Constitution (2003) p.951. 37 Mark Elliott, United Kingdom: Detention Without Trial and the "War on Terror" (2006). ?? ?? ?? ?? 1 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Public Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Public Law essays

  1. Marked by a teacher

    Discuss the relevance of the concept of the rule of law to current constitutional ...

    4 star(s)

    Almost all legislation in fact, make distinctions between members of society according to the aims it wishes to achieve. Acts such as the Sex Discrimination Act and Race Discrimination Act are used as examples of Diceys notion of equality being upheld.

  2. Marked by a teacher

    This paper will deal with the common law legal system as a legal transplant, ...

    4 star(s)

    Political and Economic Factors Singapore and Malaysia have similar histories. Colonised by the British for trading purposes as part of the Straits Settlements,the common law was introduced into the region in 1826 through the Second Charter of Justice. In the absence of existing commercial codes, English commercial law was used via the Civil Law Act for commercial certainty.

  1. Marked by a teacher

    Essay on the function of Judicial Review

    4 star(s)

    Principles of good governance are still being encouraged albeit due to legislation which seeks to provide remedies for the individual. An important factor in the discussion of what primary purpose judicial review serves is its remedies. By looking at what courts do when they find a legal error in a

  2. Marked by a teacher

    EVALUATE THE EXTENT TO WHICH CONSTITUTIONAL CONVENTIONS ARE ABLE TO PROVIDE ANY EFFECTIVE PROTECTION ...

    4 star(s)

    According to a BBC article Heseltine felt he had no alternative but to resign from Margaret Thatcher's Cabinet since his views on the future of the Westland helicopter company were being ignored. Moreover, once again illustrating the powers of the Prime Minister, Mrs Thatcher sustained that all Heseltine's public opinions

  1. Marked by a teacher

    The Constitution of United Kingdom In Comparison with the Constitution of Russia

    4 star(s)

    appreciate the historical foundation of democracy and the idea of individual rights. Nowadays, the 'supremacy' of Parliament in the United kingdom must also be considered against the United Kingdom's membership of the European Community and European Union, which has significant implications for the classical doctrine of sovereignty .

  2. Marked by a teacher

    UK constitution

    3 star(s)

    correct balance of rights and powers between individuals and the state in free civilised societies [10]. The rule of law contains the values of legality, certainty, consistency, accountability, due process and access to justice. These Values in themselves promote both formal and substantive qualities.

  1. Marked by a teacher

    To what extent (if at all) is it true to say that the United ...

    3 star(s)

    This is a far less clear-cut issue. Professor Munro noted that two opposing camps have been established in the debate of whether or not the UK constitution is based on a separation of powers. The first camp is comprised of academic writers on constitutional law, in which the general consensus is that there is no separation of powers.

  2. Public Law Essay

    BIBLIOGRAPHY CASES [1] Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223. [2] Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms [1972] 1 All ER 280. [3] Boddington v. British Transport Police [1999] 2 A.C. 143. [4] British Oxygen v. Board of Trade [1971] A.C.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work