Why the UK needs a "Fundamental" Constitution

The doctrine of “Constitutional Supremacy” is based on the rule of the law doctrine, accordingly to which no man or government or branch of the government is above the law.3 This is sometimes expressed as “a government of laws and not of men”.4 The American Constitutional system is based on rule of law, the constitution itself being the supreme law. Therefore if the Constitution needs to be changed, only the people can change it and then only by the special amendment process.5 The other doctrine implemented in a modern constitution that further helps to enforce the concept of constitutional supremacy is the separation of powers. French Jurist, Montesquieu explains this doctrine which in its basic form elucidates that the three distinct functions of the government - the legislative, the executive and the judicial, should be vested in distinct bodies so that excessive power is not concentrated in the hands of one body or else it could lead to abuse of the power which he termed as ‘tyranny’.6 By separating the personnel and functions of the government, a constitution provides a mechanism that facilitates the achievement of Rule of Law.7 The American system of government rest on the separation of powers doctrine. The Legislative branch, the Congress, makes the laws, the Executive branch, the President and other executive departments, execute and enforce the laws and the Judiciary branch, applies and interprets the laws and resolves the disputes that arise under them.

Contrary to the doctrine of constitutional supremacy is the doctrine of the Parliamentary Supremacy. This principle accordingly to Dicey’s definition means - that the Parliament ‘has, under the English Constitution, the right to make or unmake any law whatever; and further, that no one person or body is recognised by the law of England as having a right to override or set aside the legislation of the Parliament’.8 This doctrine prevails over both the rule of the law and the separation of the powers doctrine in context of the UK Constitution and the two prominent supporting examples from recent case history of the UK are Burmah Oil Co. v. Lord Advocate [1965] and Pickin v. British Rail Road (1974).  In Burmah Oil Co v. Lord Advocate, the House of Lords ruled in favour of the plaintiffs8 but the Parliament then acted to pass a War Damages Act 1965 which was applied as a retrospective act (which is against the underlying principles of the rule of the law) to deprive the plaintiffs of the entitled damages. This proves that the Parliament is above the rule of the law and no country is free until the government is above the law.9 In Pickin v. British Rail Road (1974), the court held that once an Act is passed through the relevant legislative stages, no body could question its validity. This is against the systems of ‘checks and balances’, which is another outcome of the proper implementation of the rule of the law and the separation of powers doctrine, since there is no body keeping a check on the actions of the parliament which is the legislative arm of the state.

In a country where the constitution is the supreme law there exists a system of ‘checks and balances’. Looking at the American constitutional system, where because of  the ‘checks and balances’ concept each branch has some power over the other branch for example, the President can veto legislation passed by Congress, which can, in turn, override the veto. The President appoints most federal judges, but the Senate must approve them. The courts interpret the laws that Congress enacts and may declare them unconstitutional. Contrary to this example is the distorted implementation of the fundamental doctrines within the UK systems where instead of separation of powers, fusion between the three different arms exist. For example, the result of the British electoral system combined with the party system produces a dominant executive that actually sits within the legislative,10 the Lord Chancellor is his or her capacity as the head of the Judiciary, is a member of the executive, sits in the Cabinet, and is also a member of the legislative. Because of an absence of a fundamental constitution there is no basic guidelines governing the British system of government and hence such inconsistencies such as single member being part of all the three arms of the government are still visible and in fact prevalent.

Another major issue due to the absence of a fundamental constitution is that a citizens fundamental rights such as freedom of speech, freedom of press, right to a fair trial, etc are not guaranteed by the state.  In absence of these fundamental rights, the Parliament is free to fabricate any type of legislation based on prejudices as it may please.  Since the judicial arm is not equipped to challenge Parliaments law making powers there is no immediate remedy available either to emancipate the statue or to rectify the situation. A potent and blatant incident that supports the above made argument is that which occurred in 1968 when the parliament enacted emergency legislation to deprive 200,000 British Asian passport holders fleeing from racial persecution in East Africa of their right to enter and live in their country of citizenship.11 

Existence of a fundamental constitution does not provide a ‘silver bullet’ protection. There are and will be many issues in the present and in the future respectively that the fundamental laws will be unable to resolve but it would provide the much needed agnostic and consistent perspective derived from concrete fundamental laws to fabricate a holistic, pragmatic and a long term solution for that issue. For example the American Constitution has resolved many issues over the past 200 years. Issues such as those pertaining to slavery and discrimination but it is still not able to directly answer questions regarding to issues of Gay Rights and Marriage or Abortion. Along with immediate benefits such as guarantee of basic rights to the UK citizens and proper governance of the government, a fundamental constitution provides many other benefits. Armed with it our negotiators in Brussels would have  stronger bargaining powers in their dealings with EU institutions. A fundamental constitution would provide clarity for those working under the system and also for those who wish to scrutinize the system. It would help to resolve issues in a more consistent manner (for e.g. questions pertaining to the Powers of the Prime Mister, Parliament in whole, what is constitutional and what counts as unconstitutional, etc) and would provide resolutions in terms of deadlock situation such as an hung parliament during the time of general elections.

In the financial world there is a very popular convention, ‘if it isn’t broken don’t fix it’. But there is no guarantee that something that gives the perception of being effective, as we have seen in the case of Parliamentary Supremacy from some of the examples above, will become effective tomorrow. Based on the facts and examples mentioned above, I believe that the UK needs a fundamental constitution which would be a derivative of the Political Culture, of a modernized legal system and of the historical experience12 of the UK but at the same time the framers of this new fundamental Constitution for the UK need to be agnostic enough to build in special procedures for its amendments so that it could hold its validity for years to come.

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