‘Britain should have a written constitution’ Do you agree? A major issue in the United Kingdom legal system is the lack of a written constitution. Many people believe that a written constitution would provide greater accountability and democracy. However, other people believe that the traditional unwritten British constitution would provide greater protection. The fact that we have pressure groups and associations such as Charter 88, who are campaigning for a written constitution, show that this concept is very controversial. A constitution sets out the system of government and performs three functions. First, the constitution allocates governmental activities, defines what the scope of government power is and what political structures will perform these various actions.
For example, the US constitution gives Congress the power to levy taxes but forbids it to establish an official state church. Secondly, the constitution establishes the formal power relationships among the political structures. For example, a British Prime Minister can appoint or dismiss other cabinet ministers. Thirdly, the constitution limits the power of the rulers and guarantees the rights of the ruled. For example, British citizens have a longstanding right under the common law to a jury trial. Constitutions also provide details of election procedures (in the UK the Quinquennial Act requires a general election to be held at least every five years), the composition of elected assemblies, the powers of the Executive and rights of the citizens.
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Constitutions are also important sources of a society’s culture, value system and historical heritage. A written (or codified) constitution is where there is a single document that gathers together the major rules about the system of government. Written constitutions are usually the product of independence struggles (the USA, Nigeria); revolutions (China, Russia) or the impact of wars (Italy, Germany).
All modern states except the UK, New Zealand and Israel have a written constitution.
The UK does not have a Written constitution because historically Britain has not had a sufficiently traumatic event to provoke a new start (like a revolution or defeat in a major war), geographical isolation and security from invasion has been important and those in power have been adaptable and have made reforms when faced with pressure. Britain does have a constitution in the general sense of a ‘collection or rules which establish and regulate or govern the government.’ Our constitution is made up of several distinct sources- statuates, EU law, conventions, the customs of parliament and books of authority, the common law and judicial interpretation of statuates. For the Austrian Liberal Friedrich Hayek (1960) written constitutions were nothing but a device for limiting the power of government so many people are in favour with keeping the traditional unwritten British constitution, as they believe it makes government stronger. British government is strong in the sense that there are few constitutional restraints on al elected government with a majority in the House of Commons. American government, on the other hand, is full of ‘checks and balances’ and many European governments are weakened because they are made up of coalitions of several political parties.
Mac naught says, ‘The vital quality of British government, much admired in the USA and on the European continent, is its ability to control legislature, to carry out its electoral mandate without undue delay or opposition and to deal with unforeseen circumstances without encountering the hindrance of too many constitutional restraints.’ British governments have a great deal of power because of a combination of factors including a centralised political system, the dominance of the House of Commons over the House of Lords and the Monarchy, an electoral system which encourages one party governments so they control the Commons and the absence of documents like Bill of Rights or a written constitution which establish barriers to what any government can do.
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An unwritten constitution also produces a flexible government. The British tradition is that the political system and features that characterise it must be allowed to evolve naturally with society so it cannot be a fixed set or principles, but should, instead be allowed to reflect constantly shifting public sentiment. Flexibility applies to both policy making and to changing the system of government. For example, in the aftermath of two gun-related killings (In Hungerford and Dun blane), British governments responded by passing very restrictive gun ownership laws.
In the USA, the second amendment of the constitution, written at a time when citizen militias were necessary for national defence, guarantees citizens the right to bear arms. This has greatly limited attempts to reform the law, despite several massacres. As our government is very flexible, Labour has been able to embark on a constitutional reform programme to ‘modernise’ democracy. For example, devolution has been introduced, a Human Rights Act and Freedom of Information Act have been enacted through simple, ordinary law-making process, no special majorities have been needed. Traditionalists see the system of government as effective and flexible, allowing governments to govern, to tackle important issues and problems.
They also defend the system as producing an accountable government because it is clear who is responsible for policy and the electorate can make judgements of the performance in a government. Although there are not the formal constitutional checks on political power which are typical of written constitutions, governments in the UK are limited in a whole host of ways. They need to face a general election within five years, they need to fight a range of other elections such as local elections and by-elections, they have to face an official opposition in Parliament that criticises the government and offers alternatives, they have to face scrutiny during parliamentary questions, there is a pluralist pressure group system and there is also a watchful and critical media. Also if governments lose the confidence of the voters they pay a heavy price, Mrs Thatcher was ejected by her own party on the fear that she would lose the next election. Although it did not specifically mention a written constitution, the Conservative Party manifesto in 1997 strongly implied that the Party was opposed and wanted to stick with the traditional unwritten constitution: “Alone in Europe, the history of the United Kingdom has been one of stability and security; We owe much of that to the strength and stability of our constitution – the institutions, laws and traditions that bind us together as a nation. Our constitution has been stable, but not static.
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It has been woven over the centuries – the product of hundreds of years of knowledge, experience and history. Radical changes that alter the whole character of our constitutional balance could unravel what generations of our predecessors have created. To preserve that stability in future – and the freedoms and rights of our citizens – we need to continue a process of evolution, not revolution.’ However, many people believe that Britain should have a written constitution so that elected assemblies cannot pass any laws they wish. Written constitutions are generally entrenched, i. e. they can only be amended by special procedures.
In theory, written constitutions are ‘rigid’ and unwritten constitutions flexible because written constitutions require special provisions for change or amendment. The US constitution has a double protection, first proposals for change require a two-thirds majority of both houses of Congress (something achieved only 33 times in 200 years) and then three-quarters of the States must approve or ratify the proposals. Only 27 have been approved. The advantages of entrenchment are that they limit the damage political opponents can do when then obtain power as they must abide by the values embedded in the constitutional settlement.
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The separation of powers, balances and checks, federalism are all devices to restrict and control the potential misuse of power. Also a rigid constitution offers the general benefit of predictability to those subject to it. The ‘cost’ of not having entrenchment and having an unwritten constitution is that the government has a great deal of unchecked discretionary power. Reformers say that British government, because of their control of parliament, can, and do pass laws that abuse fundamental liberties.
In practice, many ‘rigid’ constitutions are more adaptable than they seem. At first glance the American constitution looks highly inflexible, as amendment requires two-thirds majorities in Congress and ratification by three-quarters of the states. Yet the constitution still responds as the Supreme Court has become skilled at adapting an old document to new times. The written constitutions of political systems are actually quite changeable. For example Sweden rewrote Europe’s oldest constitution to alter the structure of the legislature and reduce the power of the King. The constitutions of more that two-thirds of the contemporary countries have been enacted since 1945.
However, these days many political scientists say that constitutional texts are very limited as these documents are highly incomplete, if not misleading, guides to actual practice and constitutional rules do not cover all important aspects of the political system. As they are not easily amended, constitutions become dated. For example, the US constitution says nothing of modern problems like abortion. On the other hand there are many people and pressure groups such as Charter 88 that are campaigning for a written constitution.
Charter 88 said, ‘Charter 88 has always campaigned for a written constitution, the primary purpose of which would be to set out the limits of what governments may and may not do in our name. We have argued that a written constitution must contain a Bill of Rights, thereby granting every citizen a legal remedy, should they need it, if their rights are infringed by the State.’ Anthony Barnett appeared in the Mail on Sunday on December 7 th 1997 saying, ‘In Britain today the government can alter the laws affecting your freedom of speech in the same way it amends laws about dog licensing. A written constitution could protect fundamental rights and democracy better by requiring a special degree of consent from the people (a referendum say) if laws affecting rights were changed.’ The Labour and the Liberal Democrat manifestos in 1997 made no mention of supporting a written constitution. However, the Liberal Democrat Party does have policy in favour: “We believe that the new constitutional settlement, when it is complete, should be entrenched in a written constitution, which derives its validity from the consent of the people and which defines and limits the powers which politicians can exercise.” However, both the SNP and Plaid Cymru did support written constitutions for Scotland and Wales. The SNP said, “An independent Scotland will have a written constitution and Bill of Rights. This means that Scots will be citizens, not subjects.
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They will be protected from the type of arbitrary interference that is the hallmark of Westminster government, and they will be able to force the state to honour its commitments to them. Almost every country in the world has a written constitution: and virtually every democratic country in the world makes sure that citizens are guaranteed their rights. A modern Scotland must have the same concern for law and liberty.” Plaid Cymru said, “A constitution, including a Charter of Rights would [then] be put for approval by all the people of Wales. A fully self-governing Wales would, in addition, have a written constitution and a Bill of Rights.” In January 2000 an ICM Poll for The Scotsman asked: Do you agree that the United Kingdom should have a codified constitution? 60% of the English and 63% of the Scots said, “Yes.” From the evidence above we can see that lots of people are calling for change and believe that Britain should have a written constitution. One of the main reasons for this is to limit the powers of the executive and provide basic law and fundamental rights. People want it to be written down so they can have fundamental document.
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Without one, they remain powerless to exercise control over those who govern in their name between general elections. It will also make the rules easier to comprehend and everyone is clear on where they stand. When the new South Africa wanted to write a constitution following the end of apartheid it embarked on a wide-scale process of public discussion, debate and participation. This is what people want for the UK.
Charter 88 offers a set of principles, which it would like a Written constitution to be like. ‘It will: . Be created with maximum public involvement; . Guarantee political equality and help society aspire towards social equality; .
Protect democratic representation in and authority over government and public affairs; . Provide a framework for the stable rule of law; . Ensure that individuals can claim and protect their rights; . Empower citizens as individuals, in families and also in communities of place, occupation, choice and lifestyle; . Define being a ‘good citizen’ as exercising the power to say ‘no’, to hold authority of all kinds to account, and to resist as well as endorse and assist elected authority; .
Describe what citizens share and will protect the differences we enjoy; indeed, it will map and enable differences and help to ensure they are protected as a common, living inheritance; . Encourage an open society and economy, and clarity and honesty in public life; . Regulate the decentralisation of power and the sharing of sovereignty.’ On the other hand a written constitution might not provide as much protection from the government as the people think it would. Fascism and communism took root in countries in the 20 th century and have been responsible for the murder of millions.
Fascism happened in Germany and communism happened in Russia and both of these countries had written constitutions. It doesn’t matter what rules or restrictions you put on a government whose whole ideology is extremist, if they want something done they will do it no matter how many laws they break. If a written constitution had not protected a number of other countries from tyrannical governments, then why would it protect Britain. I do not believe there is a simple answer regarding the choice of a written or unwritten constitution, but any changes should be weighed up against the experiences of other countries.