Constitutional law

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Constitutional law in the UK is a varied and interesting topic, largely because of the peculiarities of the UK constitutional system. This essay will consider the issues surrounding constitutions, their definition, purpose and specifically whether the UK can be considered to have a constitution. There are several versions of the definition of ‘constitution’ in a legal context. Bradley and Ewing consider that there are two meanings to the term – one a wider construction and the other a narrower viewpoint. The narrower of the two meanings defines a constitution as: “A document having a special legal sanctity which sets out the framework and the principal functions of the organs of government within the state and declares the principles by which those organs must operate.” [1] The key element of this definition is the requirement that the constitution is a ‘document’, that it is written down in a codified form. Almost every country in the world has a written constitution which is contained within one document as this definition suggests, and in fact there are only three states who have an unwritten constitution – the United Kingdom, Israel and New Zealand.[2] According to this narrow definition, these states have no constitution as it is not written down in a document. Bradley and Ewing also discuss a wider definition of the term, which would encompass the constitutions of the UK, Israel and New Zealand: “The whole system of government of a country, the collection of rules which establish and regulate and govern the government”. [3] Under this meaning there is no need for the constitution to be written down or codified in a single document. Interestingly the same, ‘wider’, definition is adopted in the Oxford English Dictionary, which makes no mention of a ‘document’: “The system or body of fundamental principles according to which a nation, state or body politic is constituted and governed.”[4] The purpose of a constitution is to set out an “enduring statement of fundamental principles”.[5] It is around these fundamental principles that the law of the country is based and theoretically, as long as the fundamentals of the constitution are adhered to, the basic acknowledged rights of the people of that country will be met. A constitution will be the supreme law of a country, and will override any other law which is enacted. Another purpose of a constitution is to act as a ‘framework’ for other legislation. Bradley and Ewing state that that around any constitution will be a variety of rules and customs which will “adjust the operation of the constitution to changing conditions”.[6] In this way, a constitution can provide the basic, most important rules for a country which will always remain true, and still be kept up to date by altering the legislation around it to changing circumstances. Outside of the legal context, there is also a sense of nationalism in having a constitution. For example, the American Constitution is well known, and contributes significantly to a sense of pride that Americans feel that their country preserves their people’s most fundamental rights. This is somewhat behind the fact that the British public are weighted against signing a European Constitution, as this would identify them more with Europe than with Britain. In fact, on more than one occasion both as Chancellor of the Exchequer and as Prime Minister, Gordon Brown has commented that a codified British Constitution might strengthen the country’s sense of ‘Britishness’.[7] Considering the lack of a precise definition of a constitution, it is not surprising that many people question whether Britain actually has one. If we take the narrower meaning, that a constitution must be in a codified written document then the UK clearly does not have one. In contrast the wider definition would suggest that we do in fact qualify as having a constitution. There is even some debate as to whether the UK’s constitution can even be considered ‘unwritten’. Lord Scarman comments that it is “not ‘unwritten’ but hidden and difficult to find”.[8] However, we have also seen that the purpose of a constitution is to provide a ‘supreme’ law, which overrides all others. In the UK, the principle of Parliamentary Sovereignty prevents there being a ‘supreme law’, as Parliament may not bind itself or future Parliaments. To create a ‘supreme law’ would surely do this. UK law can be changed relatively easily and is therefore much more flexible than a constitution is meant to be, for after all a constitution is meant to be ‘enduring’. It is therefore this writer’s opinion that whilst the UK clearly has laws which provide for the fundamental right and freedoms of our people, this unfortunately cannot be classed as a constitution as such as it is not codified and not meant to be an overriding law in the same way as, for example, the American Constitution. This does not in any way detract from the greatness of the UK legal system, and indeed, as Bradley and Ewing state, it has been called “one of the most successful political structures ever devised”.[9] Bibliography Bogdanor, Vernon & Stefan Vogenauer, Enacting a British Constitution: Some Problems, P.L. 2008, Spr, 38-57 Bradley & Ewing, Constitutional and Administrative Law, Longman, London: 2007 Carroll, Alex, Constitutional and Administrative Law, Longman: London: 2007 De Wet, Erika, The International Constitutional Order, I.C.L.Q. 2006, 55(1), 51-76 Jowell, Jeffrey & Dawn Oliver, The Changing Constitution, Oxford University Press, Oxford: 2007 Turpin, Colin & Adam Tomkins, British Government and the Constitution, Cambridge University Press: Cambridge: 2007 http://dictionary.oed.com (as accessed on 10/11/08) www.westlaw.co.uk (as accessed on 10/11/08) 1

Footnotes

[1] Bradley & Ewing, Constitutional and Administrative Law, Longman, London: 2007, p. 4 [2] Carroll, Alex, Constitutional and Administrative Law, Longman: London: 2007, p.17 [3] Wheare, Modern Constitutions, p.1, quoted in Bradley and Ewing, Op cit (fn 4), p.4 [4] http://dictionary.oed.com (as accessed on 10/11/08) [5] Turpin, Colin & Adam Tomkins, British Government and the Constitution, Cambridge University Press: Cambridge: 2007, p.4 [6] Bradley & Ewing, op cit (fn 1), p.5 [7] See Bogdanor, Vernon & Stefan Vogenauer, Enacting a British Constitution: Some Problems, P.L. 2008, Spr, p. 39 [8] Why Britain Needs a Written Constitution, 1992, p.4 (Quoted in Turpin op cit fn 5, p.29) [9] Bradley & Ewing, op cit (fn 1) p. 4
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