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What, if anything, is wrong with the British constitution?
What constitutes the British constitution, unlike the American constitution or the
French constitution of 1958, is not immediately obvious. Britain does not have a codified constitution, but a constitution, in the sense of 'a collection of the most important rules prescribing the distribution of power between the institutions of government—legislature,
executive and judiciary—and between the individual and the state' undoubtedly exists
(Bogdanor 9). The conceptual reason behind Britain's not having a codified constitution is that sovereignty is embodied in the Parliament, so there is no need to have a constitution that represents the will of the people, especially one that limits the power of the
Parliament. In other democracies, a written constitution is typically enacted to mark a new beginning in the nation's history, for examples independence or a change of regime. The constitution serves almost as a 'social contract' of the people, giving legitimacy to the new regime and the new political system. However, in the case of Britain, using Sidney Low's words, the constitution has simply 'been allowed to grow' (Bogdanor 12). There is nothing inferior in the first principles of an unwritten constitution compared to a written constitution. In a sense a parliament that exists at a point in time is a better representation of the people than the founding fathers of a nation or the drafters of the constitution.
However, the way the British constitution has been allowed to grow is at best 'piecemeal,
unplanned and pragmatic' (Bogdanor 5) and at worst incoherent and short-sighted. Before launching into what, if anything, is wrong with the British constitution that resulted from the series of constitutional changes in the 20 th and 21st centuries, the essay must address what is meant when it refers to the 'British constitution'. The 'British constitution' is no longer the one described by Bagehot and Dicey. The British constitution they described adheres fully to the doctrine of the sovereignty of the Parliament. It is marked by a near complete fusion of
1 legislative and executive power, in the sense that the cabinet is formed by the party that holds majority in the Parliament. It also relies on conventions. For one, the Queen legally can refuse to give assent to laws passed by the Parliament, but by convention she would always give royal assent. The Salisbury Convention also stipulates that the House of Lords would not defeat any legislation that has been promised in the government's election manifesto (Bogdanor 16-7). McLean rightly points out that with changes such as UK's entry into the European Communities (later the EU), the practice of referendum and devolution to
Scotland, Wales and Northern Ireland, the British constitution is changing fast, and it no longer only rests on the sovereignty of the Parliament (McLean 5). This essay will explore the consequences of the short-sighted and unsystematic constitutional reforms, before turning its attention to the more fundamental question—did and does the Parliament possess the legitimacy to introduce constitutional reforms?
With entry into the European Communities in 1973, part of the sovereignty of the
Parliament was transferred upwards to the European level. Although treaties and treaty amendments have to be ratified by the domestic legislatures of Member States, it is not the case for ordinary legislation, which increasingly have to go through the co-decision mechanism. In the European Council, more decisions are made by qualified majority voting,
meaning that decisions binding on the Parliament in Westminster can be made against the will of the government democratically elected. Turnout rate for the European Parliament elections remain low (43% in 2014), and the election of MEPs in the UK has little relation to voter preferences in the general election. Therefore, the supremacy of EU laws means that part of the British people's sovereignty, embodied in the Parliament is being transferred upwards. In the 1964 case Costa v ENEL, the European Court of Justice ruled that 'the transfer by the States from their domestic legal systems to the Community legal system of
2 rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail' (Bogdanor 27, my emphasis). The consequence of this became apparent in the Factortame case (1991). In 1988, the Parliament passed a Merchant
Shipping Act that restricted the right of foreign-owned vessels to fish in British waters. It was meant to target Spanish fishing-boat companies that registered in the UK in order to use the UK's fishing quota. However, the ECJ ruled that it was contrary to Community law in that it discriminates against foreign EU nationals (Bogdanor 28). The simple transfer of sovereignty upwards itself is not a matter of concern (explain why it isn't), given that the decision was made by the Parliament first in 1973, then confirmed in a national referendum in 1975. However, the constitutional issues with the entry into the EU becomes apparent when the country voted to leave the EU in June 2016. Firstly, Alison Young rightly points out that the ECJ will remain influential after Brexit. 'EU-derived law', such as employment law,
competition law and data protection law, will remain to be interpreted in line with the case law of the ECJ, meaning that the ECJ can continue to set precedents for UK courts (Young 762). Secondly, it elucidates the problem with devolving sovereignty to the non-English parts of the UK. Scotland and Northern Ireland did not vote to leave the EU, and all three of the devolved nations show a desire to remain in the European Economic Area (Young 764).
The result of the Brexit referendum has prompted the Scottish First Minister Nicola
Sturgeon to announce her intention to hold a second independence referendum for
Scotland; Northern Ireland presents the unique problem of sharing a land border with a EU
country, the Republic of Ireland, and not with the rest of the UK. Brexit risks reversing the achievement of the Good Friday Agreement of 1998, which removed physical borders between Northern Ireland and the Republic of Ireland. The agreement was signed when
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