A enacted in response to this crisis

A constitution is the rules and practices that govern the
state. It is said that A government without a constitution is power without right1,
therefore it can be said that A constitution is the source of legitimacy of the
power wielded by the state while also controlling the use of power of the state
and what it should do. The source of this legitimacy come from entities such as
the prerogative power and voting.

 

When A King
refers to a capital C constitution he is referring to codified constitutions,
this is where all rules concerning the constitutions of countries such as the
formations of governments, the powers they wield and the rights afforded to the
citizens are found in one document2. Within
Britain the constitution is regarded as uncodified, this means that the constitutional
legislation that governs Britain is not written down in one all-encompassing
document but rather can be found in thousands of individual statutory and
common law sources3.

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There are, of
course, both advantages and disadvantages of having either a codified or
uncodified constitutions. Uncodified constitutions, such as the UK, boast
flexibility within their regime. This allows for massive change within
constitutions within a relatively short period of time. Within Britain, this
gives parliament a wealth of power to enact any such law as they see fit. This
unrestricted power is known as the doctrine of Parliamentary sovereignty which
renders ‘parliament the supreme legal authority in the UK,
which can create or end any law’4. UK constitutional
law does not receive a special status or recognition to any other law that comes
into force through any sources. This lack of hierarchy means that in the eyes
of Parliament all laws are considered of equal importance. Due to this lack of
differentiation between ordinary and constitutional legislation parliamentary
sovereignty entitles parliament to amend and repeal law at their own will and
with relative ease whether it is of constitutional  significance or not. This can be an advantage
as it allows for policies to be approved quickly in times of need, for example in
the 2008
Northern Rock banking crisis. The flexibility
of Britain’s constitution allowed the Banking Act5 to be enacted in response to this
crisis allowing the government to nationalise high-street banks under emergency circumstances. This may be one of
the reasons why A. King argues that it ‘is far less important than is often
made out.’ that the UK does not have a codified
constitution, as the lack of codification in this instance has been beneficial.

 

 

However, this flexibility within the British
constitution also means that the laws and rights afforded by the constitution
are not entrenched. This means that there is no protection to such laws and
rights, and by effect the constitution as a whole. As discussed earlier, sovereignty
means that Parliament can change these laws as and when they see fit. This becomes
particularly controversial when comes to areas such as human rights, rights
that which many people would argue should be absolute and permeant and
therefore that need protection.

 

Many of these rights are seen as moral
codes or ‘natural laws’. Such laws should therefore be protected through the
constitution and the legal system, as well as being able to brand any law that
interferes with these natural laws or human rights illegitimate and
unenforceable by the judiciary. If Britain was to afford such protection to it
constitution then it would be moving towards encompassing a legal constitution6.

 

Legal constitutions heavily on the judicial as the main
check upon the executive’s power. The Executives influence over Parliament has resulted
in a fusion of power between these two arms of the state. The question is
should, the courts have the power to declare law unconstitutional in it role of
regulator upon the executive and parliament, to ensure constitutional governance.7.
Waldron (2006) argues that this giving the judiciary this power
‘disenfranchises ordinary citizens brushing aside cherished principles of
representation and political equality’8.
It has also been argued that giving Judges this power would be synonyms with
the abandonment of democracy instead of having a democracy that is run through
the decisions of the elite9.

 

The UK has been described as a mixture of both a legal
constitution

 

Waldron’s argument raises the question that if a fully legal
constitution were to be adopted would this lack legitimacy. The judiciary,
after all, are un elected servants to the public whose job it is to interpret
the law made by Parliament. Hence
if the judiciary were given the power to strike down laws they interpret as unconstitutional
not only would they, by default, overruling the will of the people who are
represented by the elected officials, they could also to be accused
overstepping the power they are entitled to wield through the separation of
powers. The separation of powers dictates that power should be spread equally
across the three arms of the state, and in so provide a balance of the power
with each arm acting as a check on the others. By empowering the judiciary in
such a way this equilibrium is no more, and in a way, this renders the
philosophy of the separation of powers null. However, the argument has been
made, that there is a fusion between the Executive and Parliament, which there
for means that is already imbalance of power across the arms of the state. Therefore,
giving the judiciary the power to strike down unconstitutional law could be
seen as a way to restore the equilibrium between them enable parliament and the
executive to be held more accountable.

 

 

 

 

The lack of entrenchment of the British
constitution coupled with the influence that the executive has on Parliament
means that this power can be abused or at the very least mismanaged. The lack
of protection afforded to the British constitution means that controversial
laws can be passed through parliament and receive royal assent with relative
ease and lack off opposition or critique. The constitutional reform act10
that was introduced by Tony Blaire demonstrates just how little process is required
to pass of an act in the British constitution, even one with as far reaching
consequences and significance as this. The constitutional reform act was
described by Tony Blaire himself as being bumpy, messy and last minute, none of
which would install confidence of the public in their constitution11.

 

On the contrary to A. Kings argument of the
lack of importance of codified constitutions, it could be said that the
codification of a constitution leads to the entrenchment of constitutional laws
and rights, laws and rights that are of great importance, if not fundamentally
imperative to the citizens of the state that the constitution governs.
Therefore, it could be argued that the lack of the capital C constitution is in
fact as important as people make out.

 

The un-entrenched nature of
the British constitution and the fact that it is not separated from normal law
has been challenged on a number of occasions. Laws (LJ) in his judgment of Thoburn v
Sunderland argued that there should be a distinction drawn between constitution
and ordinary legislation. In his judgment, he wrote “We should recognise a hierarchy of Acts of
Parliament: as it were “ordinary” statutes and
“constitutional” statutes” 12. Such recognition would provide entrenchment
of constitution rights and laws meaning parliament cannot change them with the
same ease as they can normal legislation.

1
Thomas Pain, The rights of man 1791

2 Public law, Mark Elliot and
Thomas, Third Edition, 2017

3 H Barnett, Constitutional and Administrative Law,
Twelfth Edition, 2017

4
Parliamentary sovereignty, available at -https://www.parliament.uk/about/how/role/sovereignty/
(accessed on 17/01/2018)

5 Banking
(Special Provisions) Act 2008

6 Public law, Mark Elliot and
Thomas, Third Edition, 2017

7 Public law, Mark Elliot and
Thomas, Third Edition, 2017

8 Waldron,
‘the Core of the case against judicial review’ (2006) 115 Yale LJ 1346, 1353.

9 Poole,
‘Dogmatic Liberalism? TRS Allan and the common law constitution’

10
Constitutional reform act 2005

11 House
of Lords Constitutional Committee, HL 30, EV 86-87

12 Thoburn
v