"While an unwritten constitution has the merit of flexibility, this flexibility is purchased at the expense of individual rights." - Discuss

Question:

“While an unwritten constitution has the merit of flexibility, this flexibility is purchased at the expense of individual rights.”

The United Kingdom has acquired for itself an unwritten constitution. The body of rules relating to the structure, functions and powers of the organ of state, their relationship to one another and to private citizens is to be derived from common law, statutes and constitutional conventions. It is therefore learnt that the English constitution does not impose limits on what may be done by ordinary legislation in the way that many other constitutions do. The constitution adapts for itself a flexible system of governing.

The legislative competence of the Uk Parliament is unlimited and therefore the law states that no Parliament can bind its successors or be bound by its predecessors. It also states that the courts cannot question the validity of an Act of Parliament. Therefore, no formal mechanism exists ensuring that the rights of the minorities and individual citizens are not infringed by Parliament.

In 1976, Lord Hailsham put forward the view that the current constitutional arrangements amounted to an elective “dictatorship” for which the only remedy was a written constitution, where there was a clear separation of powers. Lord Hailsham felt that although absolute power was conferred on Parliament, those powers were concentrated in an executive government formed out of one party which due to the electoral system, did not fairly represent the popular will. A written constitution might allow for more parliamentary check theoretically because it would allow the judiciary to act as a more effective check on Parliament through the ability to strike down legislation as unconstitutional.

At present, the judiciary will refuse to invalidate legislation which has been enacted by Parliament as seen in the case Pickin v British Railways Board (1974).At present,there is no Bill of Rights in the UK constitution. In particular, if a Bill of Rights was entrenched within the constitution, basic civil rights might be more surely guaranteed to UK citizens. Adoption of a written constitution might also address other problems identified by Lord HailSham, including over centralization and unfairness in the electoral system.

The government in power has a large majority at present and the problem of Parliamentary Sovereignty ...

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The government in power has a large majority at present and the problem of Parliamentary Sovereignty is likely to exacerbate. In response to the Omagh bombing, it showed how parliament may readily abnegate its scrutinizing and checking function, i.e. the legislation was passed through both houses (HOC and HOL) in two days, allowing only hours for debate. (No amendments of any substance were passed and scrutiny was cut to inadequate levels).Furthermore, the secrecy which “clocks” the actions of ministers hampers the opposition in scrutinizing their action thus leading to an infringement of their rights.

The Labour government of the UK constitution promised a “Freedom of Information Act” which will lay out the scheme “Your Right to Know” on white paper thus representing a strong assult upon official secrecy allowing more rights to be extended to individuals.

It could also be pointed out that the freedom of the media is in any event hampered by the laws of the libel, contempt, official secrets and particularly by the action for breach of confidence as seen in the case Attorney General v Newspaper Publishing plc (1987). The use of an interim injunction to preserve confidentiality combined with the extension of the law of contempt represented the most worry curb on the media’s freedom.

Traditionally,the operation of a free and diverse press has offered a further check to government power but without a Freedom of Information Act, the press is dependant on a system of official and unofficial “leaks”. There is a “danger” that certain organs of the press will merely peddle up in different form to suit the different markets.

Although it may be true that traditional checks on government power and sovereignty are ineffective, It is arguable that the newer ones like the EC Act 1972 has had an impact on parliament’s influence. The European Community Act 1972 has helped to curb government power in areas such as sex discrimination. Section 2 (4) of the European Communities Act 1972 provides in effect that, UK Acts of Parliament shall be construed and have effect subject to directly applicable community law. In this respect, it is both clear from the Treaty and from the statements made by the European Court of Justice (ECJ) (with reference to Costa v Enel (1964) ), that community law should prevail over national law, a principle broadly accepted in Factorame Ltd and Others v Secretary of State for Transport (No 2) (1991).

The rulings of the European Court of Human Rights have to an extent acted as a substitute for a domestic “Bill of Rights”, leading to better protection of human rights in such areas such as Prisoner’s rights (reference to Golder (1975) ), Freedom of expression (Sunday Times case (1979)) and privacy (Malone (1985) ) .

Another area where flexibility has indirectly caused an infringement on individual rights is the un-codified conventions.The process of invoking the convention has been extremely cumbersome, lengthy and expensive thus making conventions “unlawful” and thus not allowing a convention right to be taken to court.

This problem has however been addressed through the enactment of the Human Rights Act 1998. Litigants will now be able to assert their convention rights against any public authority in any and every UK courts and tribunals. The HRA will make it unlawful for a public authority to do ant act which is incompatible with the convention rights, unless legislation unambiguously mandates or authorizes such actions. (Section6). All Legislation will have to be read so far as possible to compatible with the convention rights. There is no doubt that this act will therefore represent a very real and substantial limitation upon Executive (Parliamentary) action.

In conclusion, while it may be argued that many of the traditional means of curbing government power and parliamentary sovereignty may seem ineffective in a flexible form of constitution like the UK, the Human Rights Act and the EC Act will likely constitute a new and powerful guarantee against an oppressive form of government where flexibility is “purchased” at the expense of individual rights.

The objects to the un-entrenched British Constitution will however be practically evident only with a new constitution.