Britain and America's Constitution in Comparison

Introduction

In this essay I will be discussing Britain’s constitution and will look at America’s constitution briefly in comparison. Then I will be discussing whether Britain needs a codified constitution like America or whether Britain runs well as it is. I will be looking at different views and also political parties attempts at writing a constitution.

Discuss

As Hilaire Barnett stated “A written constitution is one contained within a single document or a series of documents.” According to Barnett the UK therefore do have a constitution which we do, it is written but not in one single document like the United States (US), but in many different places like statues, court judgements and through EU law.

Professor Vernon Bogdanor describes a constitution as being “a code of rules which aspire to regulate the allocation of functions, powers and duties among various agencies and officers of government, and describes the relationship between these and the public.”

Britain does not have one single codified document. Britain’s constitution has written documents as Elizabeth Wicks describes in her book, some being the Magna Carta in the year 1215, the Bill of Rights in 1686, and more recently the Human Rights Act 1998 coming from the European Convention of Human Rights 1950. Professor Bogdanor in his journal and review of Elizabeth Wicks’ book, stated “in 1686 men’s liberty was whatever was not prohibited by the Crown.” Bogdanor effectively affirms Dicey’s writings when Dicey stated “everyman’s liabilities are almost invariably determined by the courts… [they] are for less the result of our constitution than the basis on which our constitution was founded.”

The British constitution historically put Parliament as supreme and sovereign so the law made by parliament is the supreme law of Britain this is constitutional as stated in the Bill of Rights 1686.

The American’s Declaration of Independence showed a difference between where power should lie to where the British power lies. The drafters of the American constitution like Jefferson and Madison, believed sovereignty belonged with the American people. Hence the beginning of the American constitution “We the people of the United States….” The US constitution is described by the American Government website as “a federal Government in which each branch operates independently of the others (Separation of powers) but…the powers of each (branch) not restricted by others or not concentrated in any one branch (checks and balance).”

As Britain does not have a constitution which is entrenched, Parliament has the power to amend the constitution by a simple Act of Parliament. Britain therefore can be seen to have a flexible constitution easy to change with the changes in society which is ever changing. But is it not also worrying that Parliament can do as it pleases and that as it is sovereign and all powerful, citizens can do nothing to change that. Also citizens cannot look at one single document to identify what Parliament’s role is and what it can or cannot do, which is the same with the Government.

America, in its constitution states that it makes checks and balances as I stated above. Labour came to the conclusion that the British constitution should have the same and in 1991 the Institute for Public Policy Research (a Labour think tank) published “Constitution for the United Kingdom”. The Liberal Democrats in 1992 and MP Tony Benn have all written constitutions. Tony Benn’s constitution was a Bill called ‘The Commonwealth of Britain Bill’. The Bill was read in Parliament a number of times before Tony Benn retired then it never had a second reading.

Since Labour came to power in 1997, there have been numerous Acts and thousands of statutory instruments passed. The Labour government according to Professor Bogdanor “may have been transforming an uncodified constitution into a codified constitution ..without any sort of consensus on what the end result should be.”

In June 2007 Labour published a Green paper called ‘The Convenance of Britain.’ In this document it states in the introduction that the Labour Party wanted a “new relationship between the Government and the citizen..” and one of the questions they were asking and answering in that paper was, and still is, “How should we hold power accountable?”

It seems from this that the Government can see the confusion in power and especially since the MP’s expenses scandal do not want to be seen as unaccountable for their actions . . .and especially so now as a general election is imminent.

In a recent debate in the House of Commonsabout the Governance of Britain document, it seemed more emphasis is being put on scrutinizing the executive powers and wanting to place more power to parliament to hold the executive accountable. This seems to take away the theory and sense of making Britain a constitution whereby it begins “we the British people” and more towards a sense of “We the Government will not do this or will not do that.” As one Labour MP pointed out in the debate, there has been a window of change since 1997 to bring in a constitution and it may seem the Government has run out of steam on democratic reform.

Sir Stephen Sedley, Lord Justice of the Court of Appeal stated “No longer of Dicey’s supreme Parliament to whose will the rule of law must finally bend, but of a bi-polar sovereignty of the Crown in Parliament and the Crown in its Courts each of which the Crown’s ministers are answerable – politically to Parliament and legally to the courts.” I believe this quote is saying that actually something is changing especially recently with the MP’s expenses scandal that ministers are accountable both to the law of the courts and politically could lose favour in Parliament.

Conclusion

Labour has brought in so much constitutional statutes and law, more than any other Government. Citizens are being restricted even more by the law and reflecting on Dicey’s comments and everyman’s liberties are determined by the law seems even more so the case when we are supposedly becoming a more democratic society.

I would have agreed with Brazier when he said in 1992 that “Labour’s lasting achievements would be a new constitution in producing new legal rules which prescribe how the state is to be governed”, but this has not so far happened.

Citizens are becoming ever more enraged by some ‘antics’ going on with the executive and feel possibly that, yes they are not accountable and should be more so, more checks and balances. The people of Britain may be becoming more and more confused with the powers Parliament have which historically dictated Parliament was supreme but with the enactment of Human Rights Act in 1998 seems to have taken such powers away from Parliament as well as devolution of Scotland and Wales. Again, separation of powers people believed there were three separate powers but the Lord Chancellor sat on all three powers before the Constitutional Reform Act 2005 came in. This may again have confused citizens as to just what roles Government, Parliament and the Courts play.

Parliament changes effectively whatever it wants. As Dicey stated “Parliament…has, under the English constitution, the right to make or unmake any law whatever…and no person or body is recognised in the Law of England as having a right to override or set aside the legislation of Parliament.”

This is obviously not the case anymore with the HRA 1998 and membership of the EU.

In conclusion I agree Britain does run well as any other state but it also has flaws, such as separation of powers, government accountability and the confusion as to what functions courts, Parliament and Government play as it is always shifting.

Judges are interpreting law and changing Acts of Parliament. Government although elected by the people, do not do what we elect them for, arguably the Iraq war.

Even if there is a constitution, I am sure one way or another a Parliament in extreme conditions could legislate contrary to the constitution if they wanted too, if Parliament, as we are told by Dicey is sovereign and supreme.

Bibliography

Barnett,H, (2005) Constitutional & Administrative Law, Ed 5,London, Cavendish

Bogdanor & Vogenauer, (2008), Enacting a Constitution: Some problem Public Law Review, SPR, pg 38-57

Bogdanor,V (1998) Constitutions in Democratic Politics Dartmouth Publishing, Aldershot

Bogdanor,V (2007) The Evolution of a Constitution: Eight Key Moments in British Constitutional History, Law Quarterly Review, 123 (JUL) pg 480-484

Brazier,R, (1992), Enacting a Constitution, Statute Law Review, 13(2), 104-127

Dicey.v (1996), The Introduction to the Study of the Law of Constitution, Ed 8, Macmillion Publishing

Knight, C.J.S 2009, Bi-polar Sovereignty restated, Cambridge Law Journal, 68(2) 361-387

Loveland, I (2004) Constitutional law, Administrative law & Human Rights, 3rd Ed, (OUP, Oxford) pg 26 -27

Wicks, E (2006) The Evolution of a constitution: Eight key moments in British Constitutional History, Hart Publishing

www.america.gov/constitution – Accessed 22/11/09

www.official-documents.gov.uk

www.official-documents.gov.uk/documents/CM71/7170/7170.pdf – accessed 22/11/09