Dicey's insistence upon the virtues of am unwritten constitution have come under the pressure as constitutional arrangement in the UK change to respond to changing political, international, economic and social circumstances. Discuss
Discussion on the UK unwritten constitution
Dicey's insistence upon the virtues of am unwritten constitution have come under the pressure as constitutional arrangement in the UK change to respond to changing political, international, economic and social circumstances. Discuss
Introduction
When people talk of a constitution, they often refer to the single, codified document that exists in a physically tangible form. The most famous written constitution is the first three article of the Constitution of the USA 1789. (Carroll 2005 p1) However, within the UK, the constitutional principles, rules and practices have never been codified. As such, it is often described as an "unwritten" constitution. Turpin has defined British constitution as " A body of rules, conventions and practices which describe, regulate or qualify the organization and operation of government in the UK". (Turpin 2004 p4) Dicey claimed that according to the changing political, international, economic and social circumstances, the unwritten constitution of the UK has been no function to work and it is under the pressure as constitutional arrangement. (Jowell and Oliver 2004). This essay aims to consider the opinion of Dicey to discuss on both advantages and disadvantages in unwritten constitutions compared with written constitution, and examine whether unwritten constitution in UK has changed.
The UK unwritten constitution
The United Kingdom is a constitutional monarchy with a bicameral parliament composed of the Houses of Commons and Lords. Formally, executive power is in the Crown in the person of the sovereign, but in reality, ministers carry out central government in the name of the Crown. The powers of the sovereign and the Crown derive either from Acts of Parliament or are prerogative. There is no formal separation of the powers of the legislature and executive and while legislative authority is vested in the Sovereign in Parliament, ministers responsible for implementing new acts are involved in the process of legislation. Similarly, in the House of Lords, the Lords who sit as judges can also take part in the legislative business of the upper house. (Carroll 2005 p28)
Advantages and disadvantages of unwritten constitution
There are five sources of the British constitution, which are legislation, judicial decision, constitutional convention, European Community Law and The European Convention on Human Rights. (Carroll 2005 p46) Common law has deduced from custom or legal precedents and interpreted in court cases by judges. Conventions are rules and practices which are not legally enforceable, but which are regarded as indispensable to the working of government. Many conventions are derived from the historical events through which the UK's system of government has evolved. (Turpin 2004 p104, p 112)
Moreover, there are three key principles in British constitution, which are the rule of law, the separation of power and parliamentary sovereignty. They have both advantages and disadvantages in the UK unwritten constitution. The concept of the rule of law as influenced by Dicey appears to encompass the following notion: first, that powers exercised by government must be founded on lawful authority as opposed to being arbitrary. (Carroll 2005 p43) The famous case of this is Entick v Carrington (1765), which agents of the King, acting under a warrant issued by Secretary of State, broke into the house ...
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Moreover, there are three key principles in British constitution, which are the rule of law, the separation of power and parliamentary sovereignty. They have both advantages and disadvantages in the UK unwritten constitution. The concept of the rule of law as influenced by Dicey appears to encompass the following notion: first, that powers exercised by government must be founded on lawful authority as opposed to being arbitrary. (Carroll 2005 p43) The famous case of this is Entick v Carrington (1765), which agents of the King, acting under a warrant issued by Secretary of State, broke into the house of Entick, alleged to be the author of seditious writings, and remove certain of his papers. Entick sued. The court was held that the warrant was illegal and void. Because no specific legal authority justified the action, it was a common trespass, for which the Secretary of State was liable in damages. (Allan and Thompson 2004 p174) Secondly, that citizen should be equal before the law, which means that no man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land. Dicey stated, " Every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen." (Jowell and Oliver 2004 p7) Thirdly, that the power of government should be clearly specified and predictable. Statues often give ministers and public authorities discretionary power; Dicey claimed that the public officers should not be used in a wide choice of discretionary power and be allowed to choose whether or in what way to exercise the power. (Carroll 2005 p42)
The separation of power includes the three main organs of government are the legislature-Parliament, the executive-government and the judiciary-courts and judges, and that only one class of function should be in the hands of each body. For example, the judiciary should apply, not create law. Thus, a system of checks and balances between each branch of government will be provided. It is not hard to find examples of the violation of this doctrine. Judges can create law, in the sense that they can declare and develop the common law. Moreover, the growing significance of judicial review is generally recognised as an important and necessary check on the exercise of official power. (Carroll 2005 p36) While the courts cannot rule on the legality of Acts of Parliament, they can interpret statutes where the meaning is disputed, and they are to divine objectively the intention of Parliament. It is presumed that the legislature will not intentionally remove common law rights by implication, so that fundamental rights cannot be overridden except by express wording. However, since joining the European Union, British courts must follow the lead of European Court of Justice in interpreting legislation flowing from European Community. However, it must be acknowledged that the separation of powers in Britain is less clearly apparent than under some systems. In America, for example, the President and his Cabinet cannot be members of Congress, and the President may veto legislation but may not dissolve Congress. The courts can declare legislation enacted by Congress invalid on the ground that it is unconstitutional. (Carroll 2005 p37)
Parliamentary Sovereignty is regarded as the main principle of the British Constitution. In other words, Parliament holds the supreme authority in the UK. Dicey wrote that Parliament "has under the British Constitution, the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament". (Turpin 2004 p23) The doctrine of parliamentary sovereignty states that only Parliament may make laws. Similarly, the judges must give effect to all valid Acts of Parliament and may not question the desirability of their content. Parliament can legislate on any subject and therefore could pass laws severely curtailing civil liberties without facing the possibility that such legislation might be declared unconstitutional. In many countries, for example, the USA, the legislature is limited by the Constitution in the laws it can or cannot make. The U.S. Supreme Court can declare laws passed by the legislature to be unconstitutional and therefore invalid. (Supreme Court of the United States of America 2006) However, the Parliamentary sovereignty has full powers to invade civil rights are thus maintained, at least as a matter of law. This lack of legal restraint also has a negative aspect. It may therefore be argued that there is a need for a further check on Parliamentary power. At least, it should allow the judiciary to act as a more effective check on Parliament. A UK court can neither inquire into the manner in which it was introduced into Parliament nor into what passed in Parliament during its progress through the various parliamentary stages. (Carroll 2005 p86) This rule was relied upon in Pickin v British Railways Board (1974): Mr Pickin had sought to challenge a Private Act of 1836on the basis that Parliament had been misled by fraud. The House of Lords held that he was not entitled to examine proceedings in Parliament to show that the Act had been passed due to fraud. That action therefore failed. (Allan and Thompson 2004 p71)
The constitutional status in the UK has resulted in a very flexible and no entrenchment system, in which governance depends on political and democratic principles rather than a system that relies on legal rules and safeguards. (Carroll 2005 p18) This can be construed as both strength and a weakness, but for reform, it has several important consequences. For example, there are no special procedures for proceeding with new constitutional arrangements, and all such acts must pass through the Westminster Parliament in the normal legislative manner. In addition, no truly federal arrangement can be established within the United Kingdom while the Westminster Parliament remains supreme.
Changes of the UK constitution
In recent years to reform the constitutional system of the UK that has been a subject for debate for over a century and that several important alterations have already been undertaken. There are numerous items of legislation from mediaeval to modern times that have affected the constitution, and a few can be singled out as particularly significant. Magna Carta 1215, it established that punishment should be by judgment of one's peers or the law of the land, and that justice cannot be denied to an individual. A fundamental change was introduced in the Parliament Acts of 1911 and 1949, where the formal powers of the Lords in legislative matters was restricted to being able to impose a temporary veto on public Bills. (Turpin 2004 p5) This effectively moved the centre of gravity of power in Parliament to the House of Commons, and allowed the governing party ultimately to impose its will in Parliament. (Turpin 2004 p655)
Moreover, nowadays, British constitution cannot ignore the international relations, especially as a member of European Union. As the UK is a dualist State, Community law had to be given effect by domestic legislation. This was achieved by the European Community Act 1972 which mentioned before. And the judges have accepted different rules of implied repeal follow from s 2(4) of the European Communities Act 1972. (Turpin 2004 p371) It appears to follow from Macarthys Ltd v Smith (1981) that Parliament has succeeded in partially entrenching s2 (1) of the European Communities Act by means of s 2(4), due to the imposition of a requirement of form on future legislation designed to override Community law. (Turpin 2004 p379) This development lends more force to the argument that entrenchment of a written constitution is possible. In addition, the UK adopts a dualist approach to international law and effect was given to the European treaties by the European Communities Act 1972 which made EU law part of domestic law. According to ECA 1972, which directly effective EU law automatically becomes part of domestic law without the need for an Act of Parliament. The implications of this are that domestic law must comply with EU law and in cases of conflict EU law will prevail. (Jowell and Oliver 2004 p123)
Further, because of the developing of the socitey, people have been thought much more on their human rights, such as discrimination and equilty. The Human Rights Act 1998, which came into force in full on 2nd October 2000, is a key part of the Government's programme to modernise the constitution. It incorporates into domestic law the European Convention on Human Rights (ECHR) to which the UK has been committed since 1951. Convention principles were therefore already reflected in Government legislation and policies and have been informing best practice in health and social care. (Carroll 2005 p 349)
Conclusion
In conclusion, it is clearly that Dicey's consideration has appeared that the unwritten constitution has the pressure and been changed by the political, international and social factors in the UK. Under the parliamentary sovereignty, the traditional check for powers seems not to be effective; also, the European Community Act 1972 and Human Right Act 1998 have strengthened the doctrines of the UK constitution. Economically, UK is one of the richest countries in the world; they need to keep their legislation updated. Constitution is the basic law for every other legislation. Therefore, if the constitution were not up to date, other legislation would be affected as well. However, the parliamentary sovereignty is still the dominant feature of the UK constitution, and the objections to the unwritten UK constitution will still remain, expect it can be fully addressed by a new constitutional settlement.
Reference
Books:
Allan & Thompson (2004) Cases and Materials on Constitutional and Administrative Law (7th edn), New York: Oxford University Press
Carroll (2005) Constitutional and Administrative Law (3rd edn), Edinburgh: Pearson Education Ltd
Jowell and Oliver (2004) The Changing Constitution (5th edn), New York: Oxford University Press
Turpin (2004) British Government and the constitution (5th edn), London: Butterworths
Internet:
Supreme Court of the United States of America, updated 2006
http://www.supremecourtus.gov/about/about.html
Cases:
Entick v Carrington (1765) 19 St. Tr. 1030
Macarthys Ltd v Smith (1981) QB 180
Pickin v British Railways Board (1974) AC 765
Legislation:
Magna Carta 1215
Parliament Act of 1911 and 1949
European Community Act 1972 s 2(4)
European Convention on Human Rights (ECHR)
Human Right Act 1998
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