What is a constitution? A set of rules that seek to establish the duties, powers and functions of the various institutions of government. -Regulate relationships between and among the institution. -Define the relationship between the state and individual that is define the extent of civil liberty. The balance between written and unwritten rules vary from system to system but no constitution is entirely written or vice versa. The main types of constitution are codified/uncodified, unitary/federal, rigid/flexible.
Purpose of a constitution-Constitutions are vital to politics, both to its theory and to its practice. Important issue- the future of the constitution. Constitutions exist for one crucial reason, we cannot trust the government or, for that matter anyone who has power over us. As power tends to corrupts, we need to be protected from those in government and this protection is provided by a constitution. Without a constitution, the government can do anything- oppress minorities, violate freedom, tyrannize the mass of people.
Understanding constitutions- Constitution- the rules that govern the government. Government- lays down rules for society at large through laws, so constitutions establishes a framework of rules which are meant to check or constrain government. A constitution therefore gives practical expression to the principle of limited government.
Codified- in theory are enshrined in law (created). A codified constitution is one that is based on the existence of a single authoritative document. This document (written) constitution lays down the core principles of the system of government. In its main body it usually outlines the duties, powers and functions of the major institutions of government. It may also include a statement of citizens rights and freedoms, possibly in the form of a bill of rights. Codified constitutions have three key features- 1) in a codified constitution, the end document itself is authoritative, in the sense that it constitutes 'higher law'. The consitution binds all political institutions. This gives rise to a two-tier legal system, in which the constitution stands above statute law made by the legislature. 2) The provisions of the constitution as laid out in the codified document are entrenched, in the sense that they are difficult to amend or abolish. The procedure for making and subsequently changing the constitution must therefore be in some way more complex or difficult than the procedure for making ordinary laws. 3) As the constitution sets out all the duties, powers and functions of government institutions in terms of 'higher law', it is judiciable. This means that all political bodies are subject to authority of the courts and in particular a supreme or constitutional court.
Uncodified constitutions have become increasingly rare. Only 3 liberal democracies (UK, Isreal + New Zealand) continue to have uncodified constitutions. They have 3 defining features-
1) the constitution is not authoratative constitutional laws enjoy the same status as ordinary laws. States that have uncodified constitutions therefore have single-tier legal systems with no form of higher law.
2) Uncodified constitutions are not entrenched. The constitution can be changed through the normal processes for enacting statute law. This is reflected in the UK principle of parliamentary soveriegnty through which Parliament can make,unmake and amend any law it wishes, including laws that affect the constitution.
3) Uncodified constitutions are not judiciable. In the absence of a higher law, judges simply do not have legal standard (enshrined in a written constitution) against which they can declare that actions of other bodies are 'constitutional' or 'unconstitutional'.
Unitary and Federal constitutions
Unitary and Federal constitutions have also been classified in terms of their content, and specifically by the institution or structure they underpin. The most widely used such classification is between unitary and federal constitutions. Unitary constitutions establish the constitutional supremacy of central government over provincial or local bodies. They do this by vesting soveriegnty in the national legislature meaning that it can create or abolish, strengthen or weaken, all other institutions. In the UK, this is reflected in the fact that Parliament possesses unrivalled and unchallengeable legislative authority. Devolved assemblies do not, therefore enjoy a share of soveriegnty. By contrast, federal constitutions divide soveriegnty between two levels of government. Both central and regional government possess a range of powers that the others cannot enroach on.
Rigid and Flexible constitutions
On the face of it, codified constitutions are likely to be relatively inflexible, because their provisions are in some way entrenched in higher law. By the same token, uncodified ones appear to be flexible and adaptable, because laws of constitutional significance can be changed through the ordinary legislatibe process. However there is no simple relationship between codified constitutions and rigidity or uncodified ones and flexibility:
-Codified constitution can exibihit a suprising degree of flexibility. This doesn't apply in the formal process of amendment which is deliberately hard to bring about. However it may occur through a process of judicial interpretation.
- Some aspects of the UKs uncodified constitution have remained remarkably resistant to change. These include the principles of parliamentary soveriegnty and the constitutional monarchy, both which date back the late 17th Century, with the formal powers of the monarch, the Royal Prerogative being much older still.
The UK constitution
A series of events in the 1970's including the onset of recession, membership of the EC, clashes between government and unions, rise of Scottish/Welsh nationalism- combined to raise concerns about the how the UK was governed and about the constitution in particular. Main issues- sources of constitution, principle of constitution and the strengths and weaknesses of the 'traditional' constitution.
Sources of the constitution
The UK constitution is best thought as a part-written and uncodified constitution. Over time it has become uncodified but mainly written constitution. This reflects the fact that although there is no single authoritative constitutional document in UK, most of the rules of the constitution are written down and many of them have a legal status. The rules and principles of the constitution, however can be found in a variety of places. By contrast with codified constitution, this makes the UK constitution seem untidy, even confusing. The most important source are-
The main sources of the British constitution are: statute law (Parliament made law); case law (successive rulings of judges); delegated legislation (laws made by bodies other than Parliament but with its authority); EU law (especially since the Factortame ruling, 1991, which made it clear EU law had priority over British law); conventions (rules of political practice not recognised by the courts); royal prerogatives (now usually exercised by the PM); written works by well-known experts on the ‘constitution’; the rules of international bodies Britain chooses to belong to e.g. the UN or NATO); and the European Convention of Human Rights (especially since this was incorporated into British law with the Human Rights Act, 1998). In simple terms, the British constitution is the aggregated total of all these various sources.
Principles of the constitution
Constitutions do not just exist as a collection of simple rules- who can do this, who must do that, and so on. Rather, these rules put into practice a framework of principles which, in a codified constitution, tend to spelt out in the preamble of the written document. The UK constitution may not have a written document, nor a preamble, but it does have a set of core principles. Most important are – Parliamentary Sovereignty, The rule of law, Parliamentary government, constitutional monarchy and EU membership.
Sovereignty is a key concept in all constitutions. This is because it defines the location of supreme constitutional power. If constitutions define the duties, power and functions of the various institutions of government, the sovereign body, or any body that shares sovereignty, has the ability to shape or reshape the constitution itself. In this way, it defines the powers of subordinate bodies. In the UK, sovereignty is located in Parliament or, technically the ‘Crown in Parliament’. Parliamentary sovereignty is strictly, a form of legal sovereignty: it means that Parliament has the ability to make, unmake or remove any law it wishes. As J.S Mill (1806-73) put it, ‘Parliament can do anything except turn a man into a woman’. Parliamentary sovereignty is, without a doubt, the most important principle in the UK constitution, but it is also it’s most controversial
Parliamentary Sovereignty continued..
However there are doubts about the accuracy and continuing relevance of parliamentary sovereignty. This is for three reasons: 1) Parliament is not and has never been, politically sovereign. Parliament has the legal right to make, amend or unmake any law it wishes, but not always the political ability to do so. A simple example would be that Parliament could in theory, abolish elections, but this would be likely to result in widespread public protests, if not popular rebellion. The main political constraints on parliamentary sovereignty therefore include the following-
- Powerful pressure groups, especially major business interests. - Public opinion, particularly electoral pressures - The views of major trading partners, notably the USA and leading EU states - The policies of international organizations, such as the EU, the WTO and the UN. 2) There has been a shift from parliamentary sovereignty to popular sovereignty. Evidence of the growth of popular sovereignty can be seen, for example, in the wider use of referendums, the establishment of popularly elected devolved assemblies and in more clearly defined citizen’s rights, particularly through the Human Rights Acts.
3) Parliament may no longer be legally sovereign. This view has developed primarily as a result of EU membership. It is also implied by the idea that devolution has resulted in ‘quasi federalism’, reflected in the reluctance of Parliament to challenge decisions made by devolved bodies.
The rule of law and Constitutional monarchy
The rule of law
The rule of law is the second key principle of the UK principle of the UK constitution. It has traditionally been seen as an alternative to a codified constitution, showing that, even in the absence of higher law, government is still subject to legal checks and constraints. Government, in short is not ‘above the law’.
Although the monarchy lost its absolute power long ago, it remains a constitutionally significant body in the UK. During the 19th Century, most of the monarchy’s remaining powers were transferred to ministers accountable to Parliament, especially the prime ministers. As early as 1867, Walter Bagehot distinguished between the ‘dignified parts’ of the constitution, in which he included the monarchy and the House of Lords, from the ‘efficient’ parts of the constitution, the cabinet and the House of Commons. However, according to Bagehot, ‘dignified’ institutions still played a vital role even if they did not exercise meaningful political power. The role of the monarchy was thus to promote popular allegiance, to serve as a symbol of political unity above the ‘rough and tumble’ of conventional party politics. According to Bagehot the monarch has the right to- be informed, be consulted, warn, encourage.
Membership of the EC/EU has had growing constitutional implications for the UK. These have focused, in particular, on the role and significance of Parliament, and whether Parliament can any longer be viewed as a sovereign legislature. Sovereignty within the UK is now best understood as ‘parliamentary sovereignty within the context of EU membership’
EU membership encroaches on parliamentary sovereignty in three main ways-
1) European law is higher than statute law.
2) Some EU bodies, notably the European Commission, have supranational powers- Parliament has no power to resist or ignore directives that are issued by the Commission.
3) The decline of the ‘national veto’
Some people, nevertheless, disagree with this position, arguing that parliamentary sovereignty has largely survived the threats posed to it by EU membership. Parliamentary sovereignty may remain relevant for one of two reasons- 1) in joining the EC in 1973, Parliament did not, and could not, bind its successors. 2) European integration has not eroded parliamentary sovereignty so much as ‘pooled’ it.
Strengths of UK Constitution
Flexibility· Flexible, easy to change as UK constitution is not entrenched.
· Can be quickly changed through Acts of Parliament (statute law) than it is to amend the US Constitution.
· Thus it is relevant and up to date, and is adaptable to changing political and social circumstances e.g. the introduction of devolution was a response to rising nationalism in Scotland and Wales.
Democratic Rule· The long period of unbroken democratic rule is seen as evidence of the strength of our constitutional system.
· In the constitution, supreme power lies in the hands of the elected House of Commons so as a result; changes to it often come about due to democratic pressure, e.g. Parliament Acts as a response to the belief that an unelected chamber should not have the power to block the policies of elected governments.
· Influence of unelected judges is also kept to a minimum, unlike USA.
Strengths of the UK constitution contiuned..
Effective government· Government decisions that are backed by Parliament cannot be overturned by the judiciary, due to the absence of a ‘written’ constitution
· Due to parliamentary government, the government usually wins in Parliament
· Executive within legislative control means strong and decisive action. Allows governments to take action (often extreme action, such as Attlee government introducing NHS or Thatcher government introducing privatisation) again, unlike the USA
History and tradition
· Constitution links past to present by being based on custom and tradition, thus has historical authority as the constitutional rules and principles have been ‘tested by time’ and shown to work. Seen clearly in ‘dignified’ aspects of constitution, such as monarchy and H of L.
UK constitution grown over time, giving it an ‘organic’ character
Criticisms of the UK Constitution
Uncertainty · Difficult to know what the constitution says, leads to confusion and uncertainty · Particularly in regards to unwritten elements- the conventions. · E.g. the IMR convention: should they resign when a mistake is made by the minister or when civil servants make mistakes? · Can accuse us of ‘making the constitution up as we go along’
Elective Dictatorship · It gives rise to problem of elective dictatorship (Quentin Hogg/Lord Hailsham) · Once elected, governments can act as they please (dictators) until time for re election · Sovereign power vested in hands of Parliament · Parliament is controlled and even dominated by the government of the day · So by placing power in hands of executive, the government can shape and reshape the constitution however it wishes.
· Government could then become oppressive and tyrannical
Criticisms of the UK Constitution
Centralization · Over centralized system of government with weak or ineffective checks and balances - No proper separation of powers, so limitation of the power of the government is not as strong as it should be in liberal democracy · PM tends to dominate cabinet · H of C more powerful than H of L · Executive controls Parliament · Central government controls local government
Weak protection of rights · Except for elections there is nothing that forces governments to respect individual freedom and basic rights. Even elections only do this weakly by favouring the majority view, not the minority view. · Rights and liberties not written down, so no legal substance. · Individual freedom rested on ‘residual’ rights that were supposed to be part of common law. · Human Rights Act 1998 has changed this by defining and making rights more clear, so easier for them to be defended in courts
It is not an entrenched bill of rights and its provisions can be set aside by Parliament, as has occurred over terrorism legislation.
Codified Constitution: For
- Clear rules-More defined, less confusion, greater certainty that constitutional rules can be enforced
- Limited government-End Parliamentary sovereignty and thus end problem of elective dictatorship. Higher law would safeguard constitution from interference by the government of the day
- Neutral interpretation-It would be ‘policed’ by senior judges. Judges would be the guardians of the constitution. This would ensure that the provisions of the constitution are properly upheld by other public bodies. As judges are ‘above’ politics, they would be neutral and impartial constitutional arbiters.
Codified Constitution: For (continued)
- Protect rights -Individual liberty would be more securely protected. It would define the relationship between the state and the citizens, possibly though a bill of rights. Thus, they will clearly defined and easier to enforce.
- Education and citizenship-It highlights the central values and overall goals of the political system. This would strengthen citizenship by creating a clearer sense of political identity, why may be particularly important in an increasingly multicultural society.
- Only a written constitution is a ‘proper’ constitution
- Constitutions must be independent form governments as its purpose is to limit government’s power.
- Overthrow Parliamentary sovereignty by an entrenched, judiciable constitution.
Codified Constitution: Against
- Rigidity -Higher law is more difficult to change than statute law. It could then become outdated and fail to respond to the ever changing political environment
- Judicial tyranny-Judges should not police the constitution as they are unelected and socially unrepresentative. The constitution could thus be interpreted in a way that is not subject to public accountability. May also reflect the preferences and values of senior judges (bias) (tyranny of judges over democratic politicians)
- Legalistic-Created by people at one point in time, so they are often only properly understood by lawyers and judges. Unwritten constitutions are endorsed by history and so have an organic character.
Codified Constitution: Against
- Political bias-Constitutional documents are inevitable biased because they enforce one set of values or principles in preference to others. Codified constitutions can never be ‘above’ politics. They may therefore precipitate more conflict than they resolve.
- Unnecessary-It is not the only way or most effective to limit government power. Improving democracy or strengthening checks and balances may be better ways of preventing over mighty governments, so then a codified constitution would be unnecessary.
-Artificial, legalistic device that would lead to the tyranny of judges over democratic politicians
-Goal of limited government can be achieved through other means, through the fragmentation of power and the strengthening of checks and balances than in the establishment of higher law
Brown and Blair reforms
Reform should continue to run with the grain of ‘unwritten’ or ‘unfixed’ constitution, rather than embrace an entirely different constitutional framework
Two major practical obstacles standing in the way of the introduction of a ‘written’ constitution:-No process through which a written constitution could be introduced. Opponents say it is unachievable as there is no mechanism within the UK’s political and legal system to establish higher law. ‘Indeed this appears to be impossible, as the sovereign legislature, Parliament, cannot bind itself’ (read more, page 188)
-Major parties disagree about the nature and the content of the constitution. Without a broad consensus on constitutional issues among the major parties, a codified constitution would be impossible. Would need to agree on principle of codification (which Labour and Conservative are unlikely to agree to, as they have the prospect of winning parliamentary majorities and so would be suspicious of the implications of a codified constitution) would also need to agree on the detailed provisions of the constitution which would be difficult as protracted and still unresolved debate about the nature of the second chamber has shown.
Brown and Blair reforms
A codified constitution would affect :
Power of government
- Relationship between executive and Parliament
- Relationship between central god and devolved and local bodies
- Relationship between judges and politicians
- Individual rights and freedoms