De Montfort University of Leicester School of Business and Law British Government and Politics
The British Constitution is a set of rules shaping the political governance of the United Kingdom. It’s not contained in a single code, British Constitution have emerged in its present state over years of reforms. British constitution and that of Northern Ireland is formed by the specific rules of law which are being governed by the United Kingdom. The United Kingdom doesn’t have any single constitutional document unlike many other nations in the world. The constitution of the United Kingdom has emerged into its current written state through a set of statutes for example “the Magna Carta (it is a charter agreed to by king John of England promising the protection of church rights, protection against illegal imprisonment, quick justice to common people and making the feudal payments to British crown) or the Act of Settlement (Passed in 1701 to settle the rules for succession of crown)”, contracts and legal decisions done between parties. The constitutional conventions of parliament and the royal prerogatives are other oral resources of constitution; in fact The United Kingdom has a flexible constitution, comprising of laws with a constitutional nature, conventions and customs.
The main sources of these reforms are statute, case law, political conventions and social consensus. The main feature of British Parliament is that it is not in written form thus there is no compact and concise form of a document. This aspect of constitution made people to believe that English constitution doesn’t even exist and needed to be reformed.
There are many ills in constitution that need to be addressed and reformed. Will Hutton a British Political economist state that ‘Unqualified shareholder sovereignty and parliamentary sovereignty are two sides of the same coin.’
Un-codified form of British Constitution
Britain has unwritten constitution, there is not a single legal document which can set out in one place the basic laws to govern the state. It can be summarized in eight words ‘Queen whatever enacts in parliament becomes a law’ means that parliament can enact any law of its own choice by using ‘power of crown’ which cannot be challenged by anybody.
An un-codified written constitution has two basic problems, making it difficult to understand the actual state of constitution, and making changes in constitution is easier as compared to other countries having written constitution. Importance of written constitution cannot be denied. Constitution organize and regulate state power by setting out the state’s structure, structure of major institutions of state, and the principles which govern the relation of state institutions with each other and with citizens of the state.
Structure of Britain’s constitution
Constitutions help to organize, regulate and distribute the power of state, Set out state’s structure. However Britain doesn’t have any written constitution because it is evolved and emerged over a long period of time it reflects the stability of the parliament of Britain. So it was not felt important to get constitution in black and white.
Concentration of power with the Queen:
It is necessary for constitutions to allocate power to various institutions for carrying out the function of state effectively and efficiently. Power can be allocated in many different ways. Generally an institution is required having power to legislate new laws, implementing policies, hear complaints from aggrieved, resolve individual disputes, and resolve boundary disputes between institutions. Another limitation of British constitution is power is concentrated mostly in central Government and it lacks safety features to prevent arbitrary exercise of power. Because of the reason of un-codified nature of British constitution and Sovereignty of parliament main aspects of law remain unprotected thus making Britain an elective dictatorship. For example a Government having strong majority in commons can exercise its power to push through the legislation thus undermining the civil liberty and weakening the power of other Government institutions. Constitution not only allocate power but it also divides it thus avoiding excessive accumulation of power with any one institution supplementing it with various checks and balances so that if one institution exercises power wrongly it can be counter checked and balanced by another institution. Thus British constitution needs to be reformed to enable the distribution of power equally between all institutions.
Ambiguity in constitution
There is an ambiguity in British constitution. The British constitution is called out for being undemocratic, devoid of clarity and undemocratic, giving other Government bodies option of interpretation of their own choice. Most important of these is judiciary who can interpret the constitution according to its own discretion and it is tough to prove the fact that the judiciary acted unconstitutionally. Government by using its power pushes through acts of parliament thus overturning unfavorable rulings in courts. Therefore rights and responsibilities are defined poorly and rooted in constitution.
Likelihood for politicization
The Constitution of Britain is flexible which makes it prone to whimsical changes by parliament, individual human rights can be violated because of lack of a legal system which can be enforced strictly. Due to lack of written constitution individuals can exploit the laws for their own benefits and to harm others. It can be politicized to achieve individual objectives.
Scottish independence referendum
For the independence of Scottish from U.K a referendum took place on 18 September 2018. This was done because Scottish National Party campaigned for an independent Scotland However UK Government wanted Scotland to be a part of it. 55.3 percent voted in favor of Scotland remaining part of UK while 44.7 percent people opposed against it.
Brexit and constitution
Brexit can also be defined as constitutional crisis of Britain. Intangibility of British constitution, accountability of Government ministers, Independent judiciary, and sovereignty of parliament are tested nearly to destruction in the matter of brexit.
Ministers having unusual records of failure kept their office because circumstances were politicized, Prime minister kept office despite failure of flagship policy, Cabinet colleagues openly disputed in parliament over choosing the best strategy to negotiate with European Union. The referendum done did not require the parliament to implement a decision with the will of public with which parliament agreed nor could it interpret it. Previous referendums in UK were usually related to housing reforms. These were sometimes opposed by general public however it never resulted in destruction of an existing system. The result of 2016 referendum resulted in a disempowered parliament making impossible for the legislature to get its job done. Because the parliament was divided in the matter and also the prime minister who was too vulnerable to control the situation executive insisted on the implementation of ‘will of people’
This placed a question on whether referendum should be done or not in future, whether referendums fit well in the constitution of Britain, putting a question on ability of the constitution of Britain to survive by evolving.
Reforms suggested in British constitution
Most important reform required in British Constitution is it must be written down in black and white. It would enable everybody to know the rules that are used to administer ministries, civil servants and parliamentarians. These are matters of significant importance thus they must be written in codified form moreover a written constitution would express the national identity of United Kingdom internationally and at home as well. It would be an assertion of institutions and values of the country, delineating the political and legal boundaries of Britain in its relationship with other countries, United Kingdom’s overseas territories, common wealth, European Union and rest of the world. Every other country in the world other than Canada and United Kingdom has written constitution.
Most basic rules rely on traditions and understanding which are comprehensible mostly by political elite and un-understandable by ordinary people. Rules which govern the office of prime minister rely on monarchial conventions and ancient royal prerogatives.
Constitution must be made comprehensible to all not just the political people who run the country.
Constitutional history must be taught in schools as it was done in Pre 1945 era when it was a mandatory part of history and civics classes at schools.
Ambiguity must be removed from the rules for example there is not clarity about existence of rule about parliamentary approval requisition before an armed conflict is being entered into by the Government.
Rules about important institutions of Government such as executive, legislature and judiciary must be clearly differentiated from the ordinary law.
Rules must be set out for making reforms in politics and constitution, as public and parliamentarians are not consulted on important matters. Parties in Government can easily push measures in statute to benefit their own selves.
People rather than parliament must be made sovereign in the democracy. Currently there are no limitations on parliament and it can legislate anything no matter how much distasteful, dictatorial or unpopular it is.
A role must be given to people in determining the principles central to constitution.
Rationalization and coherence must be provided to integrate different regions of the country with the United Kingdom. Scottish, Welsh and Northern Ireland at present have their own rules and regulations with no regional tier with English Government. There must be a written constitution which sets down principles and processes to govern the union.
A clear structure must be codified for to define controls and safeguards to rebuild public trust in ministers, parliamentarians and civil servants.
Modern roles and duties must be defined for the historic institutions and ceremonies of the past centuries.
Present legislature evolved with time has become an ‘elective dictatorship’ there is no separation of power between executive, legislature and judiciary. Policies and actions of Prime Minister and cabinet dominate in case queen stays neutral on an issue because there is no constitutional court present.
Opposition against written constitution
Some people believe it is unnecessary to write down the constitution, because in all other countries written constitutions were initiated because of evolution or other domestic catastrophe and no such situation exists in Britain
Witten constitution becomes rigid as it gets tough to make changes in it and adapt to emerging needs.
Written constitution will result in increased political litigation in courts. And the scope of judiciary will be expanded against Government ministers and departments.
Written constitution will slow down ability of elected candidates to respond to the needs of citizens quickly and flexibly.
Written constitution can cause disruptions to the normal working of Government and it would involve a huge effort and time to write down the constitution in a codified form.
The subject of reforms in British constitution has been discussed in Universities and politicians for decades and everyone has come to a point that it is need of hour to write down the constitution especially after Brexit. And it must be one engaging not only legal experts and parliamentarians but also involve everyone especially young people. It would help bring Government and the people it governs closer most importantly the rules for the operation of Democracy will be more accessible and intelligible to all.
Bloomsburyprofessional.com. (2019). [online] Available at: https://www.bloomsburyprofessional.com/uk/the-new-british-constitution-9781847317148 [Accessed 29 Nov. 2019].
The British Library. (2019). Britain's unwritten constitution. [online] Available at: https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution [Accessed 29 Nov. 2019].
InBrief.co.uk. (2019). The United Kingdom Constitution: Written or Unwritten? - InBrief.co.uk. [online] Available at: https://www.inbrief.co.uk/legal-system/british-constitution/ [Accessed 29 Nov. 2019].
Gregorio, A. (2019). The difference between English and Italian Parliament. [online] Lesnews-puglia.net. Available at: http://www.lesnews-puglia.net/index.php/cultura/331-the-difference-between-english-and-italian-parliament [Accessed 29 Nov. 2019].
Lawteacher.net. (2019). Britain and America’s Constitution in Comparison. [online] Available at: https://www.lawteacher.net/free-law-essays/constitutional-law/britains-and-americas-constitution-in-comparison.php [Accessed 29 Nov. 2019].
Quizlet. (2019). Constitutional and Administrative Law Flashcards | Quizlet. [online] Available at: https://quizlet.com/304023342/constitutional-and-administrative-law-flash-cards/ [Accessed 29 Nov. 2019].