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The Constitution of the United Kingdom

By rinayou07 Nov 27, 2014 966 Words
The Constitution of the United Kingdom is creaking.  Based on unwritten conventions and an ineffectual separation of powers the government fails to be truly accountable.  The House of Lords remains an anachronism and our membership of the European Union raises fundamental questions relating to the doctrine of parliamentary sovereignty.  Discuss. There are several arguments applicable to the context of the constitution of the United Kingdom (UK); the effect of the UK constitution not being composed of written or codified rules, the doctrine of rule of law as put forward by Professor Albert Venn Dicey in ‘The Law of the Constitution’ 1 and the doctrine of parliamentary sovereignty and the effects of the new Labour government’s encouragement of devolution, joining of the European Union (EU) and suggested reform of the House of Lords thereon. lism, as in the United States.

The UK constitution is comprised of unwritten conventions and rules, though the Bill of Rights 1689 has provided the basis for the legislative powers of Parliament and common law for the powers of the Monarch. Dicey was of the view that the UK constitution, although being unwritten, was based upon the principles of the legal sovereignty of Parliament and the rule or supremacy of law. However, there is the argument that this form of constitution, being without legally enforceable guarantees cannot fulfil the definition of a constitution 2.  Dicey’s view was that the rule of law stated that firstly, individuals could not be subject to a wide discretionary legislative power, that everyone would have the same fair treatment in the courts, and that as there was no written constitution, that constitutional law was the “result of the judicial decisions determining the rights of private persons in particular cases brought before the courts”. 1 [1885], 10th edition

2 Vernon Bogdanor in “Essays on British Government”: ‘The Politics and the Constitution’ (Dartmouth 1996) 3 [1933] 309-310
The United Kingdom does not have a codified constitution, unlike France or the United States, and this has a historical basis.  From the end of the eighteenth century and throughout the nineteenth century there was a push towards the principle of constitutionalism, that there should be limits upon the absolute power of government, as it was recognised that this was very dangerous if unchecked, and the revolution in France in 1789 and 1830, the appointment of an absolute monarch in Spain in 1812 and the establishment of the constitution of the Kingdom of Italy are examples of the wave that occurred at this time This view was criticised by subsequent authorities such as W. Ivor Jennings in “The Law and the Constitution” 3, which stated that this view reflected Dicey’s political leanings as a ‘Whig’ resisting the discretionary power of the State. The problem with this theory is that it is not broad enough to encompass the modern principles of democracy in the United Kingdom, including the freedoms of the individual introduced by the Human Rights Act (HRA) 1998 set out in the European Convention in Human Rights (ECHR), and it therefore merely supplies a foundation to the notion of democracy In the context of parliamentary sovereignty (Parliament in the UK being the supreme and absolute power) which has long been accepted as the fundamental doctrine of constitutional law in the UK, the purpose of a constitution is to limit such powers of government and divide powers amongst different bodies with a view to establishing a check on those powers, called the separation of powers In the eighteenth century, there was a balance of powers of the King, House of Lords and the House of Commons in the United Kingdom, and at the time that Dicey advocated his views about the constitution, this balance of power was followed more avidly than in the present day, as the Monarch had considerable discretion to choose the Prime Minister, and the House of Lords had the same powers as regards participating in making of legislation as the House of Commons.  The Preamble to the Parliament Act 1911 removed the House of Lord’s power to veto legislation passed by the House of Commons, and since thereafter there has been no constitutional mechanism by which the House of Common’s supremacy can be challenged. The new Labour government has proposed to reform the House of Lords with a view to making it more representative of the population, and the House of Lords Act 1999 excluded hereditary peers from membership, also a Royal Commission was established in February 1999 with Lord Wakeham as chairman with a view to make recommendations on a second chamber and the composition thereof. The report, published in January 2000, made recommendations which were largely supported by the government in their White Paper 4, and it was stated that hereditary peers would cease to have any privileged rights of membership, the majority of members of the second chamber (comprising of up to 600) would be nominated by political parties to reflect the shares of the national vote, 120 of those members would have no affiliation to a political party and 120 would represent the regions and nations. Some authorities consider that constitutional conventions are not of much worth in their role as fulfilling the principle of constitutionalism 5, but it is clear that some conventions are more followed than others. During the Ulster crisis of 1913-1914 George V thought about refusing the Royal Assent, but nowadays that would be almost unthinkable because of firm conventions limiting the powers of the Monarch, which have led to the evolution of a democratic society in the United Kingdom. Another convention which is always followed is the leader of the majority being chosen as the Prime Minster in government.  The conventions which are subject to the government’s discretion are those which apply to the relationship between the political executive, Parliament and the public

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