The Constitution (cont’d)

Features Uncodified – the British constitution is n ot contained in one book, it has a variety of sources to include, statues, books of authorities, conventions and EU treaties. Not entrenched – the British constitution can be changed easily merely by and Act of parliament. Constitutional monarchy and royal prerogative – the Queen is the Head of State but her role is largely ceremonial. The effective powers that were once exercised by the monarch – appointment of ministers, negotiate foreign treaties dissolve Parliament, etc - have passed toe prime minister.

Sovereignty of Parliament – this is regarded as the main feature of the constitution. A.V. Dicey stated that Parliament has the power to make and unmake any law, no person or body had the right to over-ride or set aside legislation passed by Parliament. (This power has been modified since Britain joined the EEC). Unitary government – all power resides in the central government. Parliament has the final say in all political and constitutional matters even though it has devolved some powers Scotland, Wales and N. Ireland and is subject to EU sovereignty in some respects.

Location of Sovereignty Ways to view sovereignty:  Legal – in the UK sovereignty lies with Parliament and no other body can over-rule laws made by Parliament (this power is qualified by the UK’s membership of the EU).  Pooled – legal sovereignty that is shared between a number of sovereign states, for example, the European Union.  Political – refers to where real or effective power lies.  Popular – refers to those circumstances when the people’s decision, in an election or referendum, is effectively binding on the political system.

Ways in which Parliament is sovereign: Parliament has the ultimate political authority. Most key decisions must be approved by Parliament.(exceptions: some military and foreign decisions are in the hands of the prime minister). All powers exercise by ministers, devolved governments, local governments and other public bodies are granted by parliament and can be removed by it. (exceptions: the prerogative powers of the prime minister). All new legislation must be passed by Parliament and secondary legislation made by ministers can be over-ruled by Parliament. Parliament is not bound by its predecessors, i.e. the past parliament cannot control the actions of the current parliament. Parliament cannot bind its successors, i.e. it cannot pass laws that cannot be repealed or Amended by future parliaments.

Limitations on the sovereignty of Parliament: Membership of the EU. When Britain signed the Treaty of Rome 1972 it ceded some of its sovereign power to the Community’s organizations. EU laws are superior to UK law. This was established in the Factortame case Examples of areas where EU law id binding include, agriculture, fishing, employment law, consumer law, etc. Examples of areas where the EU influences but does not control policy include, economic policy, foreign policy, defence, asylum and immigration, etc. British courts must implement EU law. Devolution – the Scottish, Welsh and Northern Irish parliament and assemblies have political sovereignty over certain areas of policy making because they were granted wide powers with the passage of the devolution laws. The people – though citizens do not exercise legal sovereignty it may be said that they are effectively sovereign in a number of ways; their election of a government and a Parliament cannot be challenged; the result of a referendum is unlikely to be set aside by the government and the people grant authority – the mandate- to the government to exercise power.

Arguments For and Against a Codified Constitution For: The key constitutional rules would be found in a single document, they would be more clearly defined and hence there would be less confusion about what they are and finally, they can be enforced. The wide powers exercised by the government would be constrained and a higher law would restrict government’s interference in the constitution. The interpretation of the constitution would be left up to senior judges who are considered to be ‘above’ politics. This would ensure that other public bodies uphold the law. A clear definition of individual rights would establish the relationship between the state and citizens (as in the case of a Bill of Rights), hence individual liberty would be more securely protected. Citizens can learn about the goals and values of the political system from a written document. Such knowledge would strengthen citizenship a goal that may be vey important in a multi-cultural society, as the UK has become.

Against:  It is more difficult to change a written law therefore a codified constitution may become outdated and unable to keep pace with current changes in the political environment.  To have judges who are unelected and representative of the wider society interpret the constitution may result in the document reflecting their preferences and values. They would not be the best people for this job given too that they do not have to account to parliament for their actions.  These constitutions are created at a certain point in time. Hence, they may be properly understood only by lawyers and judges.  Codified constitutions are biased because they enforce one set of values or principles over another. They may bring about more conflicts than they resolve.  A written constitution may not be the most effective tool for limiting government. Improving democracy or strengthening checks and balances may be better ways thus making a written constitution unnecessary.

Strengths and Drawbacks of the Uncodified Constitution Strengths: The UK constitution is more flexible than the constitution of some other countries. It may be adapted to suit changing political and social circumstances. For example, constitutional reforms, provisions for general elections, policy making and changing the system of government. The constitution has evolved over time. It preserves the link between past and present generations; the role played by conventions and common law help to ensure that the constitution adapts to social change; it is based on principles that have stood the test of time and gained historical authority. The constitution supports strong and effective government. Parliamentary sovereignty operates in the absence of a codified constitution. The power of government is supported by: a centralised political system (qualified by devolved assemblies); the dominance of the House of Commons; an electoral system that encourages one-party government; disciplined political parties and the absence of a Bill of Rights. The constitution also prevents non-elected from having the final say on what the constitution means.

Drawbacks: The constitution is too easy to change with no distinct procedures for constitutional amendment except changes to statute laws. There is a great potential for the government to do what it wants. This is described as an ‘elective dictatorship’. The Thatcher government is one such example. Individual rights are not adequately protected. The government can create and change laws that infringe human rights yet still will be considered constitution, e.g anti-terror legislation. Constitutional rules can also be vague and contested because of the emphasis of conventions within the UK constitution (an example is the convention of ministerial responsibility).