Assignment on Constitution Essay

Introduction “A constitution is a thing antecedent to a government and a government is only the creature of a constitution. A government without a constitution, is power without a right”. A written constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. An important theme in the literature is that the UK lacks a codified.

A distinction is drawn between a constitution as the rules determining political conduct, which the UK like any other country has, and a codified constitution, that is a single document or collection of documents within which they are contained, which the UK lacks. We kept guessing that can a Witten constitution ensure the smooth working of a system of government? This is sometimes expressed by stating that it has an uncodified or “unwritten” constitution. However, absence of a Witten constitution means that British constitution depends less on legal rules and safeguard upon political and democratic principles.

Thus, the resulting vacuum is occupied by the doctrine of Separation of Parliament, the doctrine of Separation of Powers and the concept of Rule of Law. Parliamentary Sovereignty Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty, and is supreme over all other government institutions, it also include executive or judicial bodies.

The concept also holds that the legislative body may change or repeal any previous legislation, and so that it is not bound by written law (in some cases, even a constitution) or by precedent When Dicey wrote Law of the Constitution in 1885, a central part of his work was the sovereignty or supremacy of Parliament. By this he meant that Parliament had and should have the right to make or unmake any law whatever and further that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.

His reason for believing this was, in essence, that laws which passed through Parliament were subject to intense scrutiny and this intense scrutiny would ensure that only good laws would make it through Parliament. The first limb of Dickey’s definition, the idea that Parliament’s legislative competence is unlimited, is a radical one. A number of cases illustrate specific dimensions of this unlimited competence. In a case called Burma Oil v Lord Advocate [1965] AC 75, the House of Lords had granted compensation against the Crown for damage caused by British forces during wartime. Parliament passed that Act, legislating retrospectively to nullify the effect of the House of Lords’ decision. The case shows that parliament’s sovereignty is unlimited in time. (Although there is a presumption of statutory interpretation that Parliament does not intend to legislate retrospectively, nonetheless, clear wording certainly can produce a retrospective legislative effect, as this case shows. ) •Legislate to reverse or abolish any rule of common law, or any convention.

No one can set aside Parliament’s laws – the courts and the “enrolled bill rule” The courts will not set aside an Act of Parliament. The approach was confirmed in British Railways Board v Pickin [1974] UKHL 1, [1974] AC 765. Again the case involved the owner of land affected by railway development, whose rights granted in one statute had been extinguished by a later private Act. He argued that in obtaining the enactment of the later Act the Board fraudulently concealed certain matters from Parliament and its officers and thereby misled Parliament, the Lords rejected this.

Lord Simon of Glaisdale said The system by which, in this country, those liable to be affected by general political decisions have some control over the decision-making is parliamentary democracy. Its peculiar feature in constitutional law is the sovereignty of Parliament. This involves that, contrary to what was sometimes asserted before the 18th century, and in contradistinction to some other democratic systems, the courts in this country have no power to declare enacted law to be invalid….

Lord Simon’s reference to “other democratic systems” reminds us that under the Constitution of the United States, for instance, the written Constitution itself is the ultimate legal authority – Congress is not sovereign, and its legislation can be struck down by the Supreme Court. Parliament cannot bind its successors Although not mentioned in Dicey’s formulation, this principle is an important aspect of Parliamentary sovereignty. If Parliament is to be sovereign today, then its freedom to legislate must not be limited or encumbered by anything previous Parliaments have done.

It follows that today’s Parliament cannot bind future Parliaments. Obviously that means Parliament can repeal previous statutes. It almost always does so intentionally – most Acts of Parliament list in a Schedule the past enactments which they amend and repeal. This is called express repeal. Parliament can reform itself, and change its own procedures However Parliament can change itself, in effect determining the way future Parliaments can go about making legislation. For instance, the House of Lords Act 1999 abolished the right of most hereditary peers to sit in the Lords.

Particularly important examples of this are the Parliament Acts 1911 and 1949. The 1911 Act limited the power of the Lords to block legislation; it could delay a Bill for two years, but if passed by the Commons in a third successive session, it could become law. An important and interesting case relating to the Parliament Acts 1911-49 is Jackson v Attorney-General [2005] UKHL 56 . The case concerned a challenge to the Hunting Act 2004. However, there are significant statements relating to a possible changing view within the higher judiciary towards the doctrine of Parliamentary Sovereignty in its traditional form.

Lord Hope said If the 1949 Act was not validly enacted nothing that has happened to it subsequently can cure the invalidity. That would, of course, be true if it was delegated or subordinate legislation, in the true sense of these words, that the court was faced with. But the 1949 Act proclaims itself to be, and appears on the Parliamentary Roll as, an Act of Parliament. The Supremacy of Powers The term is ascribed to French Enlightenment political philosopher Baron de Montesquieu. [2][3] Montesquieu described division of political power among a legislature, an executive, and a judiciary.

Britain’s concept of separation of powers that Parliament, executive and courts each have their own perimeters and each should exercise their powers accordingly. Monarchy used to influence over government but now it is like a symbolic for government however it is sovereign. John Lock and Charles Montesquieu are the significant figure for this doctrine. According to Montesquieu vision, the separation of powers is an idea where checks and balances works like you running after someone in a circle and they running after you. One person should not perform his duties in three organs of government at a time.

Each organ of government should not interfere with the other organ e. g. ministers should not have legislative powers. Subsequent writers have noted that this was misleading, because the United Kingdom had a very closely connected legislature and executive, with further links to the judiciary (though combined with judicial independence. Montesquieu did specify that “the independence of the judiciary has to be real and not apparent merely”. “The judiciary was generally seen as the most important of powers, independent and unchecked”, and also considered it dangerous’.

The Executive: It is the branch of a state mechanism which formulates and implements the policy to run the country which becomes the part and parcel of the separations of power. It uniquely deals with the formulation of policies, plans, distraction, rules, regulation in relation to overall government spending like finance, accounts, budget, education, foreign policies in international affairs, setting up trade linkage with other foreign countries of the world. It comprises of Member of Parliament, House of Commons, and selection criteria of House of Lords.

The Executive department focuses its action plan relevant to the affairs of the parliament. The Legislative: This department is charged with the responsibility of executing legislation wherein the UK legislature, it is known as ‘Parliament’ which comprises of three elements such as the Queen, the House of Lords and the House of Commons. The members of the House of Commons are elected on the basis of selection criteria as reflected in parliamentary voting system virtually. The legislative body has control of the executive finances, and has judiciary powers; it also has control of the way the judiciary works.

The Judiciary: This branch of state is responsible for adjudication of deputies and development of Common Law. This department relates to Legislative and other to set up a smooth administration ideally. The primary doctrine of separation of power has been promulgated by the Legislation department which authorizes others to be in operative in case of power authentication as well power allocation. ?The judiciary often has control of laws not being contradictory to the constitution or other laws and it has the power to correct and control the way the executive body exercises its powers (to execute the law)

Lord Acton said that ‘Power tends to corrupt and absolute power corrupts absolutely’. Therefore, in order to eradicate the corruption of absolute power, Montesquieu identified three branches of government between which power should be allocated and separated: the executive which takes action to implement the law, defend the nation, conduct foreign affairs and administer internal policies; the legislative which makes law, and the judiciary which applies the law to determine disputes and punish criminals.

According to the doctrine of the separation of powers, the executive cannot make law. Neither can the legislative determine disputes or any of the three branches exercise the power of the other. Nor can any one person be a member of any two of the branches. This is in order to protect our liberty as according to Montesquieu: ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty… there is no liberty if the powers of judging is not separated from the legislative and executive… here would be an end to everything, if the same man or the same body… were to exercise those three powers. ‘ To achieve a pure separation of powers in practice however is almost impossible. The closest constitutional arrangements to the doctrine of separation of powers are found in the United States of America where the Congress is elected separately from the President, the President can veto legislation passed from Congress if one third of the house agrees with him and the Supreme Court can declare unconstitutional the acts of both Congress and President. The constitution of the United States is arranged in such a way as to allow a complex system of checks and balances between the three branches of government while maintaining a clear separation of powers between them. The above mentioned are far from being the only overlaps between the three branches of government. The executive and legislature are seen as a ‘close union, [a] nearly complete fusion of the executive and legislative powers’8 which Baghot views as the ‘efficient secret of the English constitution. 9 Meanwhile, Lord Halisham suggests that ‘the current electoral process which generally returns a government with a large majority of seats in parliament, contributes to an electoral dictatorship. ’10 It might be argued that this close union is exactly what Montesquieu warned us against as he states: ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. In the UK, new law is enacted when the Bill has been approved by the House of Commons and Lords and has received Royal assent, however Under the Parliaments Act of 1911 and 1949 legislation maybe enacted even though it has been rejected by the House of Lords, House of Lords only can delay it up to twelve months. The interpretation of statutes is a vital part of the law-making process, because after such interpretation that is known whether the intentions of those who framed the law have been carried into effect.

During this procedure the judges must not challenge the political authority of the legislature to decide what net laws should be made. The judiciary includes all judges in the courts of law, including those who have judicial offices in tribunals and lay magistrates who staff the magistrates’ courts. This is preside in the civil and criminal courts by professional judges. Civil jurisdiction covers both private law issues and also public law questions. They the courts exercise certain minor legislative functions such as making rules, governing court procedures and also administrative functions.

Separation of powers divided into three organs of states and these organs must communicate with each other to run the country effectively even if constitution is written still certain requirements has to be followed to govern the country smoothly because if these three organs are conflicting with each and other it can be destruction for the country and its people. At the end of day all the things separation of powers, organs of states and Monarch etc. are for the welfare and rights of people of that country.

Cabinet direct the activities of central government departments, through their majority in the House of Commons, exert a controlling influence over its timetable, business and legislative output. The government legislates in the form of regulations controlled in statutory instruments. Before constitutional Reforms Act 2005 the head of the judiciary of England and Wales, a member of cabinet, and the speaker of the House of Lords was Lord Chancellor. He was part of all three organs of state and this was exception to doctrine of the separation of powers.

Rule of Law The concept of equality of all persons before law is the basis of what is called the Rule of Law. The Rule was summarized by Dicey as follows: 1. The Rule of law states that, “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts. ” (Dicey). In other word, (a) there must be supremacy of law, (b) no one shall be punished except for definite breach of law and (c) the breach of law must be proved in a duly constituted court of law.

No citizen can be arrested or imprisoned, unless he violates specifically any law of the country in force and is accused of a charge by the court. Thus the rule of law implies equal protection of law. 2. In the second place, Rule of law means that, “no man is above law”. Every man whatever his rank or condition, is subject to the ordinary law of the State and amenable to the jurisdiction of ordinary tribunals. “What is law-legal right and legal obligation for me- must hold equally as such for all citizens. Dicey). In other words, Rule of Law means (a) equality before the law, (b) every citizen is subject to the ordinary law of the land and (c) the citizen has to face trial in the same law courts, irrespective of his status or position in the society. 3. In the third place, the Rule of Law is the result of statutes and judicial decisions determining the rights of private persons. Thus the constitutional law of the country follows from the ordinary law of the land. Criticism

The three principles, which Dicey described in relation to the Rule of Law, have been criticized by many jurists, including I. Jennings, H. Laski and W. A. Robson. The main criticisms are summarized below. 1. The emergency of Administrative Law: With the increase of constitutional complexities, the government departments have made many rules framed under various acts. This is known as Administrative Law. There are also special tribunals for the settlement of professional disputes.

At the time of Dicey (19th century Great Britain) there existed separate military courts and courts for churchmen. The executive department often uses the arbitrary and prerogative power in day-to-day’s work and for the purpose of performing the administrative work applies the discretionary power in most cases. Therefore, it is apparent that the Rule of Law is breached and the power of the government is far-reaching. 2. Economic Inequalities: In order to ensure legal equality Prof. Laski emphasizes the need of economic equality.

Punishment for the same offence varies because police enforcement is frequently partial. Therefore, from the standpoint of law, the word ‘equality’ is meaningless, unless there is economic equality followed by social and constitutional equality. 3. The supremacy of the Legislature: The third principle of the Rule of Law is the supremacy of common law. But, in fact the principal basis of the constitution of England is the supremacy of Parliament. The sovereignty of Parliament in Britain has not been established by the county.

Although the fundamental Rights of a citizen are established upon the basis of conventional rules and the Court is the protector of those rights, yet Parliament of Britain is the sole authority to bring any change over or to nullify the existing rules. Therefore, is understood that Parliament is the fundamental basis of the Constitution of England and judging from the standpoint of modern age, the concept of the Rule of Law is only a theoretical idea. This, however, does not apply to India because the constitution of India is written and there is a provision of fundamental rights in the constitution.

There has been debate over the Rule of Law suggesting a separation between the rules by law and rules made by mere power of a ruler. In the days of Aristotle and Plato, there was a clear distinction between rules and rule by mere power. These distinctions will be discussed below, detailing the benefits and defects of both types of rules. More recently, the Rule of Law encompasses both rules (mainly Statutes) and judiciary-made rules. Statutes are necessary to limit judges’ ultra virus but at same time, judiciary precedents are needed to ‘complete loopholes’ within these general statutes.

As seen throughout the discussion, notwithstanding defects/benefits statutes and judiciary-made rules have, both are incident to the Rule of Law. Aristotle and Plato have debated about the Rule of Law. Barker writes about Aristotle’s viewpoint and how being ruled by a constitution ; rotation of office provides everyone with the same rights and worth, rather than being ruled by a king judging in accordance with his/her own feelings ; thereby, not having a ‘neutral’ mind when exercising authority.

Plato suggests powers exercised by a ruler are governed by customary and community rules. Decisions are made by the minds of the rulers ; their delegates. Humans have some innate knowledge of what is important and good in human life and because of this, we should not be constrained by laws ; rules but by what our minds tell us what is right ; just in the circumstances. Conclusion

In conclusion I believe that the UK’s constitution should remain uncodified as it has served Britain well for many years and it continues to do so. If the constitution were to become codified then it would make it harder to pass laws and it is flexible which means that it can adapt to other changes in law. Although it has been acknowledged that the UK does not have a written constitution, it has been referred to as a recognizable entity and will remain serving Britain.