unforgiven
Member
- Mar 18, 2008
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Since the philosophy and religion forums seem to be constantly full to the brim with intellectual debate, I thought I'd start some threads for the people on here with a legal interest to discuss. I know there are some people here who have some kind of legal qualification, actually practice the law or simply have an interest, whatever their jurisdiction may be. This will be very boring for anyone else though, I warn you.
I think I'll start by talking about constitutions, so this may be one for the armchair politicians as well.
I did an A-Level in British Government and Politics before I came to university, where I now study law with European law. Thus far, my degree has touched many times on questions of a political nature, since law and order are obviously key concerns for politicians. What it also has in common with politics, and what I'm talking about here, are issues to do with the constitution. However, political scientists and pure lawyers look at the consitutional issues differently. Whereas political scientists analyse the constitutional context as a whole and look at the pros and cons of different methods, law focusses on a narrow area in more detail, and it tends to make certain assumptions. I've found that a lot of my fellow students on my constitutional and administrative law courses have dogmatically bleated about human rights and democracy without really considering why they are good; it's as if they are chanting "four legs good, two legs bad". In politics, we were always taught all sides of the story; we did not start our analysis with the assumption that democracy was automatically better, and we also learned about its weaknesses e.g. weak decision making. Whereas the legal approach is more academic, the political science approach is more practical. Nowhere is this difference in approach more pronounced than in the question of whether or not the UK needs a codified constitution.
Let's begin by establishing a bit of background for people who may not be familiar with the UK constitution. Contrary to popular belief, the UK DOES have a constitution, comprised of conventions, statute law, case law, historical documents and treaties and authoritative opinion; of these provisions, the most important is perhaps the convention that Parliament is supreme. The fact that it's not codified into a single document does not mean in any way, shape or form that it doesn't exist. What it means is that there is a certain amount of debate as to the meaning and the extent of its provisions. This has attracted criticism from some who compare it with the constitution of, for example, the United States, where all of its provisions are clearly set out in a single document that anyone can read. However, the US constitution is a set of laws, and like any set of laws it is down to the judiciary to interpret them and then enforce that interpretation, hence the existence of the Supreme Court. This means that there is still a certain amount of ambiguity to be resolved, and that the judges still have a great deal of power in deciding what the constitution actually means. Is this, therefore, a problem that is sidestepped merely by codifying the constitution?
Another criticism levelled at the uncodified nature of the UK constitution is that while it remains uncodified there is no guarantee that people's fundamental rights will be protected from unwarranted state interference. I disagree with this view on three main points:
1) Not all codified constitutions contain a Bill of Rights. The French Constitution doesn't, and the French Parliament was able to pass a law banning the wearing of religious iconography in schools in order to counteract the problem of Muslim girls not being able to participate in PE lessons because they wore hijabs (SP?). In the UK, both politicians and lawyers would consider this a gross violation of people's rights to freedom of religion, but to a French politician or lawyer, church and state must remain separate. This is not a critique of French political/legal thought by any means, but it does show how even under a codified constitution individual rights are not automatically protected.
2) Even governments that are bound by constitutions with a Bill of Rights still have mechanisms to sidestep them if necessary. Codified constitutions can be amended and often contain provisions for the imposition of emergency powers in a crisis. For example, in Canada in 1944, over 20,000 Canadians of Japanese descent were forcibly relocated. Although this took place prior to the passing of the Bill of rights, Section 6(5) of the Canadian War Measures Act provided (though it was repealed in 1988) that any action taken under the Act would not amount to a contravention of the Bill of Rights, so such action was not prohibited from taking place again even after the Bill of Rights was passed.
To use another example, the International Commission of Jurists in 1997 investigated a court case in the Russian Federation. Note that the constitution of the Russian Federation is full of provisions to guarantee personal liberties such as freedom of speech and the right to a fair trial. The defendant, who spoke very little Russian but excellent English, was arrested in January 1996. She was not told what her charges were in her own language. It was only when she actually got to court over a year later that she was actually told what was going on. The judge failed to exercise her power to compel the attendance of witnesses, and only one out of six prosecution witnesses turned up. However, the defence were not allowed to call any witnesses at all, and the defendant was found guilty. I regret that I don't have a citation for this case, however I can provide a reference to the article I got it from if people wish.
3) UK courts in recent years have been moving further and further towards a role as constitutional guardians of individual rights. Not only has the Human Rights Act 1998 - which, inter alia, prevents public authorities (though not Parliament) from acting incompatibly with certain provisions of the European Convention on Human Rights - been given a warm reception, but courts have been extracting and applying "principles of good administration" seemingly from the air. For example, judicial review is traditionally viewed as the process by which the courts examine the legality of decisions made by public bodies, but in R v Panel on Takeovers and Mergers ex parte Datafin the House of Lords struck down the decision of a private body with quasi-judicial but not statutory powers due to the immense amount of de facto power that it wielded. The court stated that it was now necessary to have regard to the "realities of executive power". Furthermore, the former Lord Chief Justice, Lord Woolf, has commented extra-judicially that there may be some situations in which the courts would strike down an Act of Parliament for encroaching too far on people's civil liberties, even where it does not conflict with European Community law. The supremacy of Parliament in the UK constitution is thus being eroded by a conflict with the rule of law and notions of natural justice, so doubt has been cast on the argument that the courts do not have sufficient power to protect individual rights.
Another example is the doctrine of Wednesbury unreasonableness in UK public law. Lord Greene MR in Associated Provincial Pictures Houses Ltd v Wednesbury Corporation outlined two types of unreasonableness that can enable a court to declare a decision by a public body irrational and therefore not lawful. He described the first as reasonableness in the 'umbrella' sense, which meant the other traditional grounds of review such as illegality. The second and more important prong was unreasonableness in the 'substantive' sense, which was where a public authority made a decision so devoid of logic that no right-thinking public authority could have come to it. Lord Greene MR saw the potential here for the courts to exceed their traditional role by taking on quasi-legislative powers, so he was keen to emphasise the extremity of the kind of situation which would be substantively unreasonable; he did so by providing the example of firing a teacher for having red hair. However, the court in R v North and East Devon AA ex parte Coughlan held that the Wednesbury test also applied to where public bodies used flawed logic. Much to the dismay of more conservative English jurists, the courts are stretching Wednesbury unreasonableness to cover situations that it was never designed to handle in order to protect people's civil liberties.
None of the examples I've used are intended as attacks on their respective jurisdictions. The point I'm trying to illustrate is that the differences between the UK constitution and the codified constitutions of other democracies are largely academic. The same problems and methods of dealing with them are adopted.
If this is the case, why is it that the only nation states in the world with uncodified constitutions are the UK, New Zealand and Israel? I believe that the reason for the abundance of codified constitutions is largely due to history. Although the state now known as the UK has undergone many internal conflicts during its long history, actual regime change has never really happened since the Norman Conquest in 1066, save for a brief period in the 17th century known as the interregnum, where Oliver Cromwell ruled Britain as a dictator, after which Parliament had him executed, put his severed head on a pike at London Bridge, and reinstated the monarchy. Instead, the changes in the UK consitution have mainly been due to shifts in the balance of power between the various organs of the state. For example, the Magna Carta in 1215 required that King John should exercise his powers within the rule of law, and the Glorious Revolution of 1688, when Parliament ousted James II from the throne and invited William of Orange to take it, established Parliamentary Supremacy. There has never been a period where the UK has had to "start from scratch" and lay out a grand design for the future. France, on the other hand, needed a codified constitution due to the various regime changes brought on by the revolution in 1789, Napoleon's coup d'etat in 1799 and his eventual defeat in 1815; the state had to be pulled down and rebuilt.
With this in mind, I think the UK does not need a codified constitution, and having one would not solve any of the alleged problems with the UK system. Any thoughts?
I think I'll start by talking about constitutions, so this may be one for the armchair politicians as well.
I did an A-Level in British Government and Politics before I came to university, where I now study law with European law. Thus far, my degree has touched many times on questions of a political nature, since law and order are obviously key concerns for politicians. What it also has in common with politics, and what I'm talking about here, are issues to do with the constitution. However, political scientists and pure lawyers look at the consitutional issues differently. Whereas political scientists analyse the constitutional context as a whole and look at the pros and cons of different methods, law focusses on a narrow area in more detail, and it tends to make certain assumptions. I've found that a lot of my fellow students on my constitutional and administrative law courses have dogmatically bleated about human rights and democracy without really considering why they are good; it's as if they are chanting "four legs good, two legs bad". In politics, we were always taught all sides of the story; we did not start our analysis with the assumption that democracy was automatically better, and we also learned about its weaknesses e.g. weak decision making. Whereas the legal approach is more academic, the political science approach is more practical. Nowhere is this difference in approach more pronounced than in the question of whether or not the UK needs a codified constitution.
Let's begin by establishing a bit of background for people who may not be familiar with the UK constitution. Contrary to popular belief, the UK DOES have a constitution, comprised of conventions, statute law, case law, historical documents and treaties and authoritative opinion; of these provisions, the most important is perhaps the convention that Parliament is supreme. The fact that it's not codified into a single document does not mean in any way, shape or form that it doesn't exist. What it means is that there is a certain amount of debate as to the meaning and the extent of its provisions. This has attracted criticism from some who compare it with the constitution of, for example, the United States, where all of its provisions are clearly set out in a single document that anyone can read. However, the US constitution is a set of laws, and like any set of laws it is down to the judiciary to interpret them and then enforce that interpretation, hence the existence of the Supreme Court. This means that there is still a certain amount of ambiguity to be resolved, and that the judges still have a great deal of power in deciding what the constitution actually means. Is this, therefore, a problem that is sidestepped merely by codifying the constitution?
Another criticism levelled at the uncodified nature of the UK constitution is that while it remains uncodified there is no guarantee that people's fundamental rights will be protected from unwarranted state interference. I disagree with this view on three main points:
1) Not all codified constitutions contain a Bill of Rights. The French Constitution doesn't, and the French Parliament was able to pass a law banning the wearing of religious iconography in schools in order to counteract the problem of Muslim girls not being able to participate in PE lessons because they wore hijabs (SP?). In the UK, both politicians and lawyers would consider this a gross violation of people's rights to freedom of religion, but to a French politician or lawyer, church and state must remain separate. This is not a critique of French political/legal thought by any means, but it does show how even under a codified constitution individual rights are not automatically protected.
2) Even governments that are bound by constitutions with a Bill of Rights still have mechanisms to sidestep them if necessary. Codified constitutions can be amended and often contain provisions for the imposition of emergency powers in a crisis. For example, in Canada in 1944, over 20,000 Canadians of Japanese descent were forcibly relocated. Although this took place prior to the passing of the Bill of rights, Section 6(5) of the Canadian War Measures Act provided (though it was repealed in 1988) that any action taken under the Act would not amount to a contravention of the Bill of Rights, so such action was not prohibited from taking place again even after the Bill of Rights was passed.
To use another example, the International Commission of Jurists in 1997 investigated a court case in the Russian Federation. Note that the constitution of the Russian Federation is full of provisions to guarantee personal liberties such as freedom of speech and the right to a fair trial. The defendant, who spoke very little Russian but excellent English, was arrested in January 1996. She was not told what her charges were in her own language. It was only when she actually got to court over a year later that she was actually told what was going on. The judge failed to exercise her power to compel the attendance of witnesses, and only one out of six prosecution witnesses turned up. However, the defence were not allowed to call any witnesses at all, and the defendant was found guilty. I regret that I don't have a citation for this case, however I can provide a reference to the article I got it from if people wish.
3) UK courts in recent years have been moving further and further towards a role as constitutional guardians of individual rights. Not only has the Human Rights Act 1998 - which, inter alia, prevents public authorities (though not Parliament) from acting incompatibly with certain provisions of the European Convention on Human Rights - been given a warm reception, but courts have been extracting and applying "principles of good administration" seemingly from the air. For example, judicial review is traditionally viewed as the process by which the courts examine the legality of decisions made by public bodies, but in R v Panel on Takeovers and Mergers ex parte Datafin the House of Lords struck down the decision of a private body with quasi-judicial but not statutory powers due to the immense amount of de facto power that it wielded. The court stated that it was now necessary to have regard to the "realities of executive power". Furthermore, the former Lord Chief Justice, Lord Woolf, has commented extra-judicially that there may be some situations in which the courts would strike down an Act of Parliament for encroaching too far on people's civil liberties, even where it does not conflict with European Community law. The supremacy of Parliament in the UK constitution is thus being eroded by a conflict with the rule of law and notions of natural justice, so doubt has been cast on the argument that the courts do not have sufficient power to protect individual rights.
Another example is the doctrine of Wednesbury unreasonableness in UK public law. Lord Greene MR in Associated Provincial Pictures Houses Ltd v Wednesbury Corporation outlined two types of unreasonableness that can enable a court to declare a decision by a public body irrational and therefore not lawful. He described the first as reasonableness in the 'umbrella' sense, which meant the other traditional grounds of review such as illegality. The second and more important prong was unreasonableness in the 'substantive' sense, which was where a public authority made a decision so devoid of logic that no right-thinking public authority could have come to it. Lord Greene MR saw the potential here for the courts to exceed their traditional role by taking on quasi-legislative powers, so he was keen to emphasise the extremity of the kind of situation which would be substantively unreasonable; he did so by providing the example of firing a teacher for having red hair. However, the court in R v North and East Devon AA ex parte Coughlan held that the Wednesbury test also applied to where public bodies used flawed logic. Much to the dismay of more conservative English jurists, the courts are stretching Wednesbury unreasonableness to cover situations that it was never designed to handle in order to protect people's civil liberties.
None of the examples I've used are intended as attacks on their respective jurisdictions. The point I'm trying to illustrate is that the differences between the UK constitution and the codified constitutions of other democracies are largely academic. The same problems and methods of dealing with them are adopted.
If this is the case, why is it that the only nation states in the world with uncodified constitutions are the UK, New Zealand and Israel? I believe that the reason for the abundance of codified constitutions is largely due to history. Although the state now known as the UK has undergone many internal conflicts during its long history, actual regime change has never really happened since the Norman Conquest in 1066, save for a brief period in the 17th century known as the interregnum, where Oliver Cromwell ruled Britain as a dictator, after which Parliament had him executed, put his severed head on a pike at London Bridge, and reinstated the monarchy. Instead, the changes in the UK consitution have mainly been due to shifts in the balance of power between the various organs of the state. For example, the Magna Carta in 1215 required that King John should exercise his powers within the rule of law, and the Glorious Revolution of 1688, when Parliament ousted James II from the throne and invited William of Orange to take it, established Parliamentary Supremacy. There has never been a period where the UK has had to "start from scratch" and lay out a grand design for the future. France, on the other hand, needed a codified constitution due to the various regime changes brought on by the revolution in 1789, Napoleon's coup d'etat in 1799 and his eventual defeat in 1815; the state had to be pulled down and rebuilt.
With this in mind, I think the UK does not need a codified constitution, and having one would not solve any of the alleged problems with the UK system. Any thoughts?