Constitutionalism
In order to understand the doctrine of constitutionalism, and whether if the doctrine is something that is beyond the idea of legality in the United Kingdom (UK), we must first understand the nature of UK constitution itself and what the British Constitution comprised of. Both of the principles are abstract in nature but they are closely intertwined in a way that they work together to protect individual rights from arbitrariness of the state.The more we put the ideas of constitutionalism into practice, the more effective our constitution will be and among the rest of the ideas of constitutionalism (which will be addressed later), it is vital for a country to have a standard of governance and allowing legal theory to supplement the UK constitution in order for a constitutional democratic country to achieve what ought to be achieved.
What is a constitution?
A constitution is a set of rules and practices that determine the composition and functions of the organs, in terms of their powers and rights as well as duties, of the central and local government in a state and, nevertheless, it serves to regulate the relationship between the individual and the state. According to Thomas Paine, constitution is constituting of “the People”, created the “Government”. Thus, with the “Government” being inferior to the constitutions, and, the “Government” who exercises power without in accordance to the constitution, will be deemed as exercising “power without right”, or we can put it as being ‘unconstitutional’.
Unlike the United States (US), the United Kingdom (UK) has not got a ‘written document’ listing out all the fundamental constitutions, making the UK constitution to be known as the unwritten one. In fact, the UK constitution is made out of different kind of sources, ranging from the codified ones, such as statutes and common laws, and to the un-codified ones, such as traditions, customs, practices, maxims, precepts and conventions. Thus, Britain’s unwritten constitution could be categorized into two, the “conventions of the constitution” and the “law of the constitution”. It is important to have them distinguished in order to determine the differences of constitutionalism and legality. As per Dicey, constitutional conventions are not enforceable and may not be recognised by the courts but they create what is called the “constitutional or political ethnics”. Whereas, “laws of constitution” was rules that are enforceable by the courts making up what we usually call the constitutional laws. Rule that is enforceable by the courts, is law, and must be followed, and doing otherwise is illegal. This is different from the conventional rules, that is not enforceable by the courts, but when there is an action against the unconstitutional practice of conventions, it will be challenged by the people – based on moral or political judgment – to be deemed “unconstitutional”.
In respect of the UK Constitution, the actual power is in the hand of the people and it is vested on the 3 distinct bodies of the State via various sources of the constitution, giving powers of law-making, execution of laws and adjudicating matters related to laws to the legislative, the executive and the judiciary, respectively. As opined by Dicey, the people hold the political power, whereas, the legal power is with the ‘Queen in the Parliament’. It all started with the Great Charter, Magna Carta, signed in 1215 by King John, showing a change in the UK from absolutism to constitutionalism.
Doctrine of Constitutionalism
The doctrine of Constitutionalism suggests the need for the limitation of arbitrary power and also the state’s responsibilities to its people and as well as to protect their rights. It is both ‘descriptive’ and ‘prescriptive’, dealing with the legitimacy of the state’s behaviour by means of conferring and guiding the “legitimate exercise of government authority”. Actions taken by the State are against the following four important points suggested by the Doctrine of Constitutionalism, would be deemed unconstitutional:
The need for the power exercised by the State to be acted intra vires and to be accountable to law;
The need for the constitutional players to uphold the notion of respecting human rights
The need for separation of powers between the three main institutions within the state – legislative, executive and judiciary – so as to prevent abuse of power; and
The need for the government to be accountable to the electorate in policy-making, and the legislature, in validating a policy.
It is important for the Doctrine of Constitutionalism to be pragmatic than just an idealistic notion in order to ensure that the legal authority will exercise its power in the ambit of legitimacy, and most important within conferral of their powers as prescribed by the Constitution, so that the idea of Constitutionalism could be livened up. However, it is arguable that, in practice, it only disguised the legal and political practices behind the “false cloak of legitimacy”,than respecting and protecting the people’s rights. When dealing with the limitation of power of the powered, regardless of whether it is legal or not, the issue stressed by the Doctrine of Constitutionalism, however, is to curb the power of the powered and surely it is the priority of the Doctrine of Constitutionalism in hope of preventing any unwanted or ‘unconstitutional’ oppression by the authority unto “the people”. After the passing of Human Rights Act 1998, the legislations, whenever possible, would be interpreted in line with the European Convention of Human Rights,and has expressly legalised the fundamental human rights in the UK. By means of interpreting an act of parliament in line with the Convention, the courts will try to avoid repugnant result to the convention, for example, if an act is made to protect administrative action from judicial review, the judges will apply the legislation “restrictively” in order to prevent abuse of power, or declare incompatible to the Convention.
Although large number of the constitutions in the UK are still not expressly enforced by any acts of Parliament or case laws, these special characteristics of the UK constitution must be respected and keeping in mind that constitutionalism, predominantly, is attach onto “the concept of natural rights”.It involves more of a moral judgment than legal judgment. For most of the constitutional theorists will probably agree to the idea of morality and political commitments or political morality are incorporated in the principles of constitution, such as democracy, equality, freedom of expression, separation of powers, and as well as the rule of law.
Idea of legality
In some statutes, they provide a set of legal rules, conferring legal powers to the legal authority in exercising a particular conduct which might be beyond what is thought to be constitutional if the power given is abused. The court will as well review the legality of the conduct and preventing abuse of power. Under the Prevention of Terrorism Act 2005, the authority is given an arbitrary power to ‘stop and search’ without any reasonable suspicion. This form of power could easily be abused if the moral needs of constitutionalism is not understood by the performers of the power, and must be closely monitored and to ensure the doctrine of constitutionalism is followed and the power is to be acted within the power conferred by the legislation.
According to Timothy Endicott, the principle of legality is “allied” to the rule of law. The rule of law suggested that, “everything is allowed unless forbidden by a definite law”.However in the UK, the Parliament holds the supreme power in deciding what is to be legal and illegal. Does it mean that the Parliament is above the “Law”, since everything must abide to the laws duly enacted by the Westminster Parliament? In Article 1 of the Bill of Rights 1689, a performance to suspend or execute a law without the consent of the Parliament is to be deemed illegal,in result to be unconstitutional as well. This is because the doctrine of constitutionalism requires the powers to be performed within the legal scope drawn up by the legislature and respecting the principles of the constitution, and Parliamentary Supremacy is one of the principles.
Moreover, the idea of legality is undeniably important in the UK’s constitution in which it recognises the supreme power of the Parliament in making law.However, constitutionalism sees the legitimacy of the power as more important than the legality of the action of the performer in performing his power. In respect of Parliamentary Sovereignty, the Parliament can do whatever it wants including changing the fundamental rights, however, according to the principle of legality as explained by Lord Hoffman, the Parliament must bear the full-cost resulted of their actions. Yet, breach constitutionalism’s doctrines would not be penalized by law but will be detrimental to the mechanism of the state.
Furthermore, in some cases, an action of a legal authority in the absence of rationality in exercising his power would be deemed as illegal. As Lord Green suggested in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation, in order for the local authority’s action to be found as illegal, the local authority must act unreasonably or in ultra vires. However, Lord Diplock sees an action of irrationality as unreasonable, in the sense that it is a non-usual way of exercising power which “no reasonable body would do”. In practice, an unreasonable and unconstitutional action of a legal authority is hard to be challenged in the courts due to lack of legal accusation.
Parliamentary Sovereignty in Constitutionalism
Aforementioned, the Parliament has the supreme power to repeal or enact any laws or statutes, however, it is inconceivable for the parliament to be able to repeal a constitutional principle that binds the government with ease. Theoretically, the UK Parliament is sovereign, thus it can do and undo both fundamental laws and domestic laws by using the same ‘simple majority’ process. According to Dicey’s theoretical explanation, “Parliament has total power”, meaning no statute can bind the Parliament, thus, their action will not be govern by any sort of statutes or laws. In result, the unconstitutional acts of theirs will not be deemed to be illegal because being legal or illegal, irrationality or procedural impropriety is the power belongs to the law in the form of an act of Parliament.Albeit theoretically omnipotent, Parliament is limited by other means, such as internal and external political restrains as well as legal limitation by the European Communities Act 1972. In fact, it is not easy for the Parliament to pass an act that is contradict to the UK’s constitutions.
Indeed, theoretically the Parliament in the UK is sovereign and is the source of ultimate authority, however, Thomas Paine treats Parliament as a creature of the constitution, in which according to Locke’s view, people are the one who is holding the unlimited sovereign who have the “normative power” to nullify the authority if they performed their power in ultra-vires, in which it went beyond its “constitutional limitations”. Dicey breaks down the Parliamentary power into two sovereignties, the political sovereignty held by the people and the legal sovereignty possessed by the ‘Queen in the Parliament’. From here, we can clearly differentiate constitutionalism and the idea of legality. The people, as a whole, has an impactful political effect on the decision making of the state, which mostly based upon the majority’s view on a particular subject in deeming whether a particular decision or a performance is to be viewed as in line with the doctrine of constitutionalism. Whereas, if a constitution is coded, with the Queen given her Royal Assent, then it would be legally binding to the person or group of people who it governs. However, it must be noted that Royal assent is a prerogative power of the Crown under constitution restrain,thus its power is under the supervision of the people as well.
Prerogative Power
Before Magna Carta 1215 was implemented, the Monarchy was holding absolute power, without being restrained by a Constitution nor by Law of the Land, since at that time, the King was the one making the laws, thus, he could be said to be above the Law (which is against Dicey’s rule of law, thus, went against the doctrine of constitutionalism). For that reason, the actions of the Crown would not be taken as illegal, since there was no law to govern the Crown’s misconducts. One of the fundamental constitutional conventions of the crown is to give royal assent to whatever Bill duly passed by the Parliament, unless if the bill contradicts to the Constitution, then as Harry Calvert argued, the royal assent shouldn’t be given. However, if the Queen choose not to give legal effect to the bill passed, by means of breaking her convention, ‘illegal conduct’ would not necessarily be followed.
In 1610, King James I made a speech to the Parliament saying: “The state of monarchy is the supremest thing upon earth, for kings are not only God's lieutenants upon earth and sit upon God's throne, but even by God himself they are called gods.” Clearly, in the past, the Crown was accountable only to God, not the people. Progressively, through the passing of the Magna Carta 1215, followed by other important bills and statutes, the UK gradually developed closer to the doctrine of Constitutionalism. By virtue of the Great Charter, Magna Carta 1215 stated that a person’s actions or behaviours can only be judged to be unlawful by his “peers”, and “by the law of the land”. In that, in virtue of the contract made between the barons and King John, the King could no longer has the legal authority to convict anyone as he likes, as for doing so would be unconstitutional.
Furthermore, if we look thoroughly to the origin of power of the ‘Queen in the Parliament’, the power was actually vested by the people through the “social contract” in the Queen. The crown was given to the Queen in exchange of Her Highness’ oath that was taken solemnly by the sovereign and will be “binding throughout her reign”.Thus, an action taken that is against the Oath will be considered unconstitutional, and to some extent, in the case of R v Hampden, the art. 4 of the Bill of Rights 1689 declared the Crown’s action to levy taxes without parliamentary approval in times of emergency is to be illegal.
Conclusion
In the UK the state holds the power to legislate law, execute law and adjudicate matters related to law, under political constraint by the electorate or the people, with the help of the living unwritten constitution in defining the limitation of powers of the State, in order to prevent deprivation of the basic human rights. By virtue of the Human Rights Act 1998, the people can now challenge the legality of government action and with the courts invalidating a Parliament’s legislation or a legal authority by making a declaration of incompatibility with the European Convention on Human Rights, if the courts find that the legislation contradicts to the convention. There are however critics against the judge for making interpretation based upon the judges’ subjective or own political ideologies which leads to “political suppression disguised in a cloak of false constitutional legitimacy”. Undoubtedly, a good interpretation could fortify the structure of a country. Thus, the judges need to be practical, and interpret the constitutions consciously in upholding justice.
In crux, the idea of legality supplements the doctrine of constitutionalism. Constitutionalism is a spectrum of principles that give an idea of how a country should be governed and functioned, with laws being enforced to ensure public order is maintained. For doing so, the State will need to know what they are doing, what their responsibilities are and the objectives of their respective posts. Constitution seems like nothing but a set of rules governing the state, whereas, domestic laws are enforceable rules governing the people. However, that is not all. A stable constitution will produce good and practical laws. Whereas, an unstable constitution will undoubtedly cause the making of bad laws. Therefore, upholding the doctrine of constitutionalism is the utmost important in keeping a country from falling apart. By controlling the constitution, we control the state, and by controlling the state, we control the laws, and thus, “the People” collectively will have control over our Land.
