the UK constituion

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Original post by Democracy2013

First question: what level is your course, A-level or 1st/ 2nd year university. Higher levels require more and lower levels, less.

"The introduction of a written constitution into the United Kingdom would be relatively straightforward legislative task"

The question asks you about the UK's Constitution, but does not refer to its sources. It does not ask you to refer to other country's constitutions, so my advice is stick to the main terms of the question. Keep referring your question to the UK's unwritten constitution when considering the prospect of an unwritten constitution. You do not have the word space to discuss everything.

First explain what a constitution is briefly and concisely, outlining the role of the Executive (ie the Prime Minister) in terms of initiating. A constitution is used to separate the powers of government and protecting citizens from dictators, based on the rule of law (no power without legal authority). How would a written constitution be initiated? The question suggest the executive initiates it? Is this true, if so to what extent? Well the executive could start it as government Bill by raising the matter in Parliament or do it through a royal prerogative (acquired from ancient rights of the Queen). Could it be initiated in any other way? What about Parliament MPs introducing a Bill of their own?

Next, is the legislature's entrenchment, ie Parliament. Mention what is entrenchment briefly. It means something that is very secure. So which devices are secure enough to entrench? If they use a statute (parliament act) it will be more secure, as primary legislation passes through Commons and Lords and scrutinised than secondary a statutory instrument, which it not scrutinised. What about the EU and Parliament, would a written constitution affect parliament, ie European Communities Act 1972.

What is the courts role and how would they enforce a written constitution? Briefly mention the USA Constitution it its highest legal source, interpreted only by the its Supreme Court: Marbury v Madison (1806). Try and think of some ideas such as the higher courts roles, which include interpreting legislation and lower courts following the higher courts' decisions (binding precedent). What about the EU, will this affect a written constitution?

Hi thanks for the input i find it really helpful. This is first year undergraduate level - although a module i have not studied before.
A few questions:

1) With regards to entrenchment, UK sovereignty means that future parliament is not bound by its predecessor. Does this mean that if enforced/entrenched by a government one year, the next year a newly elected government could simply 'un codify' the law again? Or does the the term mean its unchangeable?

2)Could you expand on the courts role? I see it as the judges duty to interpret legislation via the numerous powers etc. but does a constitution change the idea of binding precedent, with instead, the judges adhering simply to the constitution rather than previous cases.

Reply 21

Democracy2013

Is this an LLB law degree? How many words is your assignment essay? What is the deadline date? When talking about Parliament's binding nature, this is called Parliament sovereignty, as A V Dicey would say. Parliament is entirely the Houses of Lords and Commons (ie MPs) and the Queen (must give assent to statute) collectively. So Parliament is the legislator and proposes and creates legislation (primary, ie Parl. Act and secondary, ie Gov. regs - one example is the recent tax credits Regulations (introduced by the Executive, ie Osborne) where the Lords opposed it owing to being beyond the power of the Tax Credits Act 2002). Entrenchment generally means certain statute which is considered secure under the constitution ie, EU treaties. However what about statues which guarantee rights to the throne? What about Magna Carta or the Bill of Rights? As it is only first year the good news is that you do not have to be so in-depth or critical.

Do you have a guide to your question, if it's a law degree you will generally have basic guidelines such as 'Knowledge' and Cognitive Skills' sections. If so, stay within these guides. However, refer to what the relevant experts have said. The content will be based on your lecture's/ seminar content, assuming you attend a traditional university. My advice is go over your notes and get an idea of what you already have before you approach the question. If you answer the question incorrectly you'll lose marks or fail the assignment.

(edited 8 years ago)

Reply 22

Democracy2013

Original post by EconDal

Point 1. a constitution should restrict the powers of the government, courts, and the legislature. Have you read the US Constitution for an example of what a constitution is supposed to do? Perhaps it's a good idea to do so. Have you accessed the UK's Bill of Rights new source yet? I assume you have access to Westlaw, which is a good source for journals.

In terms of point 2, well constitutional law would be limited to constitutional issues (or constitutional common law as in the USA), which in the UK's would be potentially the Human Rights Act and likely the Police and Criminal Evidence Act 1984 (PACE). This is the point isn't it, does the UK's constitution really afford rights even at statute (a constitutional source), when there has been no mention of citizen's rights for about 300 years. How safe is binding precedent (common law, a constitutional source) in reality besides promoting consistency? A lower court judge can choose to distinguish the higher cases, so can the Court of Appeal or the High Court, when they're supposed to adhere to Supreme Court precedent - these courts could base it on 'slightly different facts.'

Reply 23

username1799249

Original post by sleepysnooze

oh okay, so I have to support the EU simply because it has a codified constitution?

Not at all. But the UK isn't going to get a constitution any time soon and when we (as you hope) leave the EU, the UK bill of rights won't have basic things like privacy or the right to a fair trial in it. Have you read 1984? Because that is kind of where we are headed.

Reply 24

Democracy2013

Original post by ByEeek

Human rights has already many legal principles decided for the purposes of the Human Rights Act 1998, so even if it were replaced by a UK Bill of Rights it may not matter so much. Would judges be bound by the authorities though is the question, as they will not longer have to interpret the terms of the HRA.

The UK has a constitution albeit not a written one like the USA's, based on separate sources ie common law (binding precedent, ie rulings by higher courts; statutory interpretation by judges), and certain constitutional statutes. Convention right to Privacy is likely entrenched in existing case law...in a democracy the existing law (ie constitutional case law) cannot be done away with, as that will be against the 'rule of law.' (the moral dimension).

Reply 25

username1799249

Original post by Democracy2013

Convention right to Privacy is likely entrenched in existing case law...in a democracy the existing law (ie constitutional case law) cannot be done away with, as that will be against the 'rule of law.' (the moral dimension).

I am not sure that is the case. The government's recent Investigatory Powers Bill only failed because of a quirk of our legislative process that allowed the Peers to throw it out in its current state. Had it gone through, we would shortly have had companies like Talk Talk sucking up all sorts of bits of private information like what we are reading and who we are communicating with, for the pleasure of our government's security services and teenage hackers alike.

If there is one thing I have learned since the Millennium, it is that there is no limit to our government's desire to intrude on our private lives in the name of security. Meanwhile terrorists are evading our security services by not using Facebook and other simple counter snooping measures. The whole thing is a farce!

Reply 26

Democracy2013

The state has a qualified right to interrupt our citizen rights in many situations. Nevertheless there must be a 'legitimate aim' and 'principle of proportionality, at common law pertaining to the Human Rights Act. There is no way Parliament will allow a new UK Bill replacement for the HRA if it were not as secure as the HRA. The Lords' role is to scrutinise any would be act or any secondary legislation. There is no way companies would have that type of power. We have Parliament sovereignty in this country, so as it stands Parliament is king (as it were). The UK Bill of Rights will be nothing like the US' Constitution. The Identity Card Act 2006 got hurled out of Parliament too. Stop worrying unnecessarily? If you have not studied law formally you're unlikely to be aware of how countries are protected.

Reply 27

sleepysnooze

Original post by ByEeek

yes but then you realise not only the very illiberal baggage that comes with the EU's supposed protections, but also the fact that the UK can and does sidestep a lot of the EU's regulations any way - it's just a shame that it doesn't do it more, because the only good thing about the EU in my opinion is that it tries to facilitate free trade with EU members through a collective trade area...but then you realise that this area comes at the price of tariffing all countries outside of this free trade area, effectively making it, by default, a protectionist block. that's a really bad aspect of the EU and it's a massive shame that more people don't see this. the EU clearly has a bargaining advantage over areas/countries that are poorer (most of the world), but then you realise that this bargaining isn't even necessary when all countries/zones of trade would benefit from completely free trade. it's one of those things where you think that "the advantage of the EU here is that it creates a convenience within a bigger inconvenience".

I mean, let's imagine that the EU didn't tariff the wider world (bar several countries that it favours/needs) - would that even be compatible with the EU project if it basically rendered the trade aspects of it redundant? the protectionism is basically considered as something political - you can harm countries (e.g. china) by reducing trade with them and making other countries trade with us instead so china economically declines to our advantage. but by doing this, via political economics, you are still harming yourself in the fact that *everybody* would benefit more through free trade, whether it's yourself or your enemies. in fact, there's the obvious case that free trade gives countries higher incentives not to be hostile or aggressive towards one another (in that this can cause trade relations to drop again), so the whole idea of politicising economics is, again, useless in my opinion. so without the trade aspects (which are negative), you are left with the purely political ones, which basically nobody even supports. the EU itself should really change itself, but why should it change when there's no incentive for it to change at the moment? an incentive for it to change would be if countries boycotted it (e.g. left the EU) so it would take seriously the problems that have been raised. if we keep simply accepting the EU in its current form while pleading for concessions as merely one country amongst many, we're never going to have influence in changing it - our influence would be through leaving it and damaging the EU itself regarding economics and political unity (argued). so obviously I think we should leave...

Reply 28

username1799249

Original post by sleepysnooze

the only good thing about the EU in my opinion is that it tries to facilitate free trade with EU members through a collective trade area

Wasn't that the founding principal of the EU? To create a free market? And all that red tape that we hate so much - it only exists to ensure a level playing field. I agree that the remit of the EU has grown beyond that original idea, but given that one can trade products AND services, you can't really have one set of rules for one and another set of rules for the other.

You are also correct about it being a protectionist trade block. But being out of that puts us at the same disadvantage as all those countries desperate to sell into the EU but who are prevented. To compare us to Norway is a fallacy because Norway has a sovereign wealth fund big enough to buy every Norwegian a Tesla.

I am not saying the EU is perfect. I am not saying the EU is necessarily a force for good. But the current status quo on the whole works. Sure, we can grumble about the theoretical concept of sovereignty, but the reality for most is that we benefit directly from the EU. Whether it be out ability to buy Spanish tomatoes out of season or buy one currency for our travels around Europe, I feel that we as individuals will find life harder out of Europe than in it.

I work for a company that exports to EU. We will find things harder. My last company did half its business with the EU - they will struggle. In my industry (computing) finding good developers is very hard. The EU provides a ready supply of quality expertise which would be cut off should we leave.

Other than emotional sentiment, I can think of no reason whatsoever for leaving.

Reply 29

gladders

Original post by ByEeek

You are also correct about it being a protectionist trade block. But being out of that puts us at the same disadvantage as all those countries desperate to sell into the EU but who are prevented. To compare us to Norway is a fallacy because Norway has a sovereign wealth fund big enough to buy every Norwegian a Tesla.

It's also constantly overlooked that Norway is *not* outside the protectionist bloc of the EU - it's part of the European Economic Area (EEA), and is subject to a huge amount of EU legislation without having all that much influence on the formation of that legislation before it's enacted.

Seems considerably worse than our present arrangement, if you ask me.

Reply 30

username1799249

Original post by gladders

I think we agree. Many cite countries like Norway or Sweden as a reason to leave the EU forgetting that they are rich countries with large natural resources and small populations.

Reply 31

TheUKAmerican

Original post by Aphotic Cosmos

The only codified constitution in existence that even approaches the age of the British one is that of San Marino, which as a microstate faces a considerably different relationship with it's neighbours and citizens than a populous major power like the UK does. The inherent flexibility of our constitution means that we can change the nature of the state as and when necessary rather than relying on extremely painful and lengthy court battles or even revolution or rebellion to stir up the constitutional reality of the nation. We are one of just three states (along with New Zealand and Israel) which recognise the fact that setting out certain values in a static document which can barely change with the times is a terrible idea.

You can already see the problems in the US now, the oldest nation-state with a relatively unchanged codified constitution - whilst in the UK we've given up most (still got the important clauses) of Magna Carta, for example, because it's no longer relevant, Americans and the American establishment cling hopelessly out of a need for a common governmental structure for all the peoples and ethnicities of the union, to a constitution that is now simply not fit for purpose and has almost never changed (17 amendments made after 1800! We make that many in a year by passing Acts of Parliament). In fact the US constitution is a fantastic example of a nation failing to learn from it's mistakes. The US has had two constitutions - the Acts of Confederation were replaced by the Constitution in the 1790s after it was realised that the former was totally inadequate for the governance of a strong federation. For a nation populated by revolutionaries who actually admired the liberal, malleable constitution of England, they sure had a funny way of doing things since they managed to repeat a mistake that they had made less than twenty years prior. The US has been able to put off asking itself deep constitutional questions through a bunch of messy compromises and the Civil War, but the fact remains that every codified constitution, including that of the United States, is simply a tool used by revolutionary or restored governments to signify the start of a new era without much thought about what it will mean for future generations, and that there will be a day when the US constitution runs into a wall and the federal government is thrown into an existential crisis. That crisis will either precipitate the creation of a new constitution, the collapse of the United States altogether, a serious rewriting of the present constitution or the adoption of a malleable constitution like that of England and New Zealand.

TL;DR: uncodified constitutions are the only type that recognise the inherent need for change present in all humans. It's not enough to just write a document and say "from here on in, this will do", because inevitably it won't do some day and then a new constitution will have to be written with exactly the same problem. We have rewritten most of our constitution several times, but without rebellion or painful constitutional court-wrangling because we can do it piece by piece as it's convenient for government and the people, and as frequently as we mandate our politicians to do so. We also maintain our links to the past because we recognise that our ancestors did get a lot of things right - we do still honour Magna Carta in the law in a limited capacity, and other important constitutional documents and Acts of Parliament from throughout English, Scottish and British legislative history.

Really TL;DR: uncodified = good, codified = dumb.

The best example I can give of this is the number of nations calling themselves "The nth <demonym> Republic" like France (fifth) and Poland (third). On the other hand you can trace our nation back, essentially uninterrupted, for 1200 years to the founding of England. France had to rewrite it's constitution as recently as the 1960s after an attempted coup d'etat! In France! You know, that sunny place across Le Manche? Codified constitutions are a recipe for disaster.

You're missing the point of the bare bones American constitution in my opinion.

Whilst it is codified, it only does a few things:
1. Defines the branches of the federal government.
2. Defines the federal governments relationship to the individual states.
3. Defines the rights of the citizen to and from the state.
4. Defines the role of the American government as to protect these rights.

A lot of people would argue anything the federal government does outside of its original powers as unconstitutional, but they're missing the point.

The American constitution was designed as a living breathing document capable of changing, compared to other codified constitutions.

Anyway what you're falsely doing is equating amendment to our constitution = act of parliament. Amendments are a big deal because they change the wording of what was essentially the original act of congress. They don't get passed often because they're usually core changes to what we define as rights or the role of the government in relation to its citizens here in the United States. You're falsely portraying these amendments as analogous to your standard acts of parliament every year-stuff as innocuous as rubber stamp legislation that gets passed annually- with changes to the core of the country.

The American federal government does pass bills and acts of congress however all the time, because the constitution is bare bones and gives the federal government a lot of power to act within its boundaries. These bills and laws are more similar to most acts of parliament.

A lot of changes to the American constitution don't even have to actually be codified, simple reinterpretations of the wording occur over the years.

The American constitution isn't a set of rules of every single thing the government is allowed to do and isn't allowed to do, like you're portraying it. The constitution is a breathing document that changes in many ways outside of hard amendment as well.

Another thing to consider is the difference in meaning of the term constitution. In the UK every single piece of legislation is considered part of one long string of acts dating back to 800+ years ago that form a "constitution." Whereas the constitution as defined in America is the document that founded the country, and other laws and bills the government passes are not considered apart of it.

(edited 8 years ago)

Reply 32

Democracy2013

UKamerican

Yes this is my point.. we do not have a US-esque constitution...we're just brainwashed that we have a substantive constitution.

Reply 33

Goaded

To answer your question, no it wouldn't be. Because in order to get a codified constitution that works, we would need largely the structures of the U.S e.g being Federal and have a true separation of powers.

But also, what would we put in it? When the Americans proudly wrote theirs after the Articles (which is largely how quickly and badly a codified constitution would fail in our current system lmao) there were few social rights, if that makes sense? Abortions weren't legal, you could rape your wife. It was basic rights, e.g freedom of expression. So what do we consider a fundamental right in the UK? Healthcare? Well then, we'd have to write in our constitution that healthcare cannot be changed or removed from public ownership.

I think the issue is far more complex these days, it'd be far from simple, and far from easy. Unless there was a LOT of change, it'd fail.

Reply 34

Democracy2013

America has constitutional statutes and constitutional law, we don't even have a constitution of a type which binds institutions such as the CPS. In the US version, the accused has substantive legal rights. Freedom of expression is a privilege not a right as the state has the qualified right to intervene in several circumstances. As I said previously, quoting a constitutional writer in a relevant legal journal, the word 'right' never existed in any statute in the substantive sense until the Human Rights Act 1998. In the USA - even a disability is a constitutional protection...companies in the US benefit constitutional rights. At best here public authorities acts must be compatible with convention rights.