‘The UK constitution is no longer fit for purpose.’ Discuss There is much debate whether or not the British constitution is fit for purpose in today’s society. A constitution is a set of laws and principles that governs a country. The UK constitution is uncodified which automatically means it is not fit for purpose. It is not found in one authoritative document and it has some unwritten parts, this makes it flexible and therefore not fit for purpose which is to govern. There are several arguments arguing against the above statement and they will be explored later on in this essay.
The doctrine of parliament sovereignty has been regarded as the most fundamental element of the British constitution. It can be summarised in three points: that parliament has the power to make any law they wish; that no parliament can create a law that a future parliament cannot change; that only parliament can change or reverse a law passed by parliament. Parliamentary Sovereignty thus gives unconditional power to the Westminster Parliament. A.V. Dicey describes it as ‘the dominant characteristic of our political institutions',and ‘the very keystone of the law of constitution'.
The UK has an unwritten constitution as there is no single authoritative document which establishes government regulations. There is a constitutional jigsaw of various sources, such as legislation, case law, Royal Prerogative and Constitutional conventions. These are the main sources of the UK constitution and so merit discussion. This can be contrasted to the USA which has a written constitution, setting out the fundamental laws. I argue that to some extent the UK has a flexible constitution, and Giussani’s statement is partly correct.
‘Constitutional conventions are not law but nevertheless play an important role in the UK constitution.’ Briefly define the nature of constitutional conventions and, with reference to examples examine their role in supporting a democracy, also summarising the position of the courts to these conventions, given that they are not law. There are no agreed definitions of ‘constitutional conventions’ however factually put it can be said; conventions are the unwritten elements of the constitution which are not legally binding but rather a set of rules for political practice “followed by those to whom it applies.” Therefore these rules are persuasive but unenforceable. Conventions therefore can be said to be informal, unwritten rules and regulations which formulate the structure of the United Kingdom constitution; “they provide the flesh which clothes the dry bones of the law; they make the legal constitution work” In the United Kingdom it can be said the constitution is ‘unwritten’ therefore importance of conventions cannot be underestimated and are of paramount importance as they provide the legal foundation in which parliament and the executive derive their authority from. Conventions provide a precedent to fall back onto when the distribution of power is discussed. On the face of it the head of state possesses unlimited power, enough to be an absolute monarch through the exercise of ‘Royal Prerogative (R.P)’.
In order to assess how constitutional conventions are recognised and enforced within the UK system of government, firstly, will require a look at the different definitions of what amounts to a constitutional convention, and to discuss their function or purpose, within the U.K's constitution. Furthermore, it will be necessary to identify and consider the different examples of constitutional conventions and also examine their characteristics. As way of a starting point, conventions according to AV Dicey are defined as: "conventions, understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power…are not really laws at all since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the 'conventions of the constitution', or constitutional morality…" This definition concentrates on what conventions are supposed to achieve. However, this view is not entirely accurate and it is important that conventions are distinguished from habits and practices.
Firstly, legal sovereignty should be distinguished from political sovereignty. The former refers to the unrestricted legislative power of Parliament that this essay is primarily concerned with, while the latter refers to unlimited political power – this power lies in the electorate in democracies. Secondly, it is important to note that Parliament’s legislative supremacy lies only in the primary legislation borne out of the agreement of the three bodies, namely the House of Commons, the House of Lords and the Queen. Hence, it can be said that ‘whatever the Queen-in-Parliament
The British Constitution Briefly explain the term flexible as used in the extract Flexible means that the constitution can be amended easily and quickly as unlike a rigid constitution such as the one in the US, there is no lengthy procedure for change that has to be followed. A flexible constitution it can be altered via the law-making process, by a simple majority in the legislature as no laws are regarded as fundamental. “There is no convincing case for a written/codified constitution in Britain” Discuss To a certain extent there is no convincing case for a codified constitution in Britain. The main reason against a codified constitution in Britain is because a codified constitution would totally undermine the sovereignty of Parliament, the idea that Parliament can legislate as it chooses and that there can be no superior authority to Parliament. Moreover, no such document could be entrenched whilst Parliament retains the power to alter it at will.
Unlike other nations, UK does not have a written constitution (codified constitution), for example United State has a codified constitution which can always referred to their constitution, and therefore the sources like Magna Carta 1215, the Bill of Right 1688 and etc are essentially important in UK. Constitutional Convention is a set of rules and practices that define the relationship and power of those institutions of state. Due to the absence of codified constitution in UK this leads to the difficulties in identifying the constitutional sources. There are two main sources made up of the UK constitution: legal sources (statues, judicial decision and prerogative power) are the principal source and the non legal sources (convention) which primarily relates to the political rules of behaviour. To investigate the proposition there is no clear definition what amounts to a convention.
Firstly, a codified constitution would clarify the nature of the political system to citizens of the state. Most British citizens do not understand the concept of the constitution, nor what the UK constitution entails. It is therefore an argument that having a codified constitution would raise public awareness and support for the government would grow. It would also enable the public and people in government to view the constitution whenever necessary for matters such as court cases, etc. This would encourage public involvement in politics and act as an improvement to our democratic society.
Arguments against adopting a codified constitution such as that it could lead to judicial tyranny are outweighed by arguments for it. However although a codified constitution may not beneficial a bill of rights would be as it would offer the protection of citizens rights, but could be written so that it wouldn’t become outdated. BODY – Codified and uncodified constitutions: A country’s constitution is often defined as being either codified or uncodified which can be said simply as written or unwritten (although no constitution is fully unwritten or written so this is not an all encompassing definition). Codified constitutions have three key features, chiefly that the document is authoritative, in that it is the highest law of the land and binds all political institutions. Another key characteristic is that it is entrenched as it is difficult to amend or abolish; there have been 27 amendments to the US constitution in over 200 years (mainly because it is extremely difficult to get both houses and the majority of states to agree on a bill).This type of constitution could therefore be described as being rigid.