Written Constitution Creates a Much More Rational Framework of Power Essay

‘In comparison with the ‘unwritten’ British constitution, a written constitution creates a much more rational framework of power. ’ A constitution is a framework of rules that govern an organisation; it therefore defines the powers, rights, duties and allocates them appropriately to particular departments within the organisation. Britain is one of the few countries with an unwritten constitution, which therefore means it is not contained in a single document, but can be found in Acts of Parliaments, the Common Law or even in conventions.

The British constitution has been criticised for not being written as it has been said that ‘a written constitution creates a much more rational framework of power’, however it is debatable as to whether this statement is correct or not. A more rational framework of power would be one that has a clear separation of power. It has been established by Montesquieu, that separation of powers is vital to constitutional success.

Lord Mustill has historically stated that, ‘It is a feature of the peculiarly British conception of the separation of powers that parliament, the executive and the courts have each their distinct and largely exclusive domain. ’ This therefore emphasises the fact that the essence of a constitution is so power is not centralised in any of the departments. In Britain however, most of the power seems to be in the hand of the Legislature as seen in R v Secretary of State for Transport, ex parte Factortame Ltd and others [1999] All ER (D) 1173.

The British constitution have what is called the doctrine of Parliamentary Sovereignty, which is the absolute authority of a parliament to enact, amend or repeal any law it wishes. Lord Hailsham famously described the doctrine in a Richard Dimbleby Lecture on the BBC in 1976 as an ‘elective dictatorship’, meaning even though members of parliament are chosen by the people; the government can still act as they wish as long as they maintain a majority in the House of Commons.

They may even be capable of increasing their own power. It may be said that the non existence of a written constitution may result in there being no official control upon how power is used by those in authority. It could be therefore said that the framework of power is not as rational as it could be as long as parliament’s legislative supremacy is maintained. This in turn makes it difficult for courts to protect citizens against legislation of parliament which consequently defeats the primary urpose of having a constitution; which is to regulate the relationship between the state and the citizen. Conversely, the United States, which have a written constitution in place, allows its courts to have ‘Strike Down Power’, this means that their Supreme Court can strike down any law which is against the constitution. This makes Judicial Review, (when legislative and executive actions are reviewed) much more accurate and fair. The first time they used this power was in the case of Madbury v Madison, 5 US 137 [1803].

So the absence of Legislative Supremacy means that power is spread out more evenly, and that it is not centralised. In conclusion, based on the evidence above, having a written constitution may create a more rational framework of power. This is due to the fact that a written constitution lays out the separation of powers more strictly. An unwritten constitution on the other hand may lead to unbalanced powers within the different branches, as one department may be found to have more powers than the others: for example the legislative in the case of Britain.

One could therefore go as far as stating that this ‘elected dictatorship’ could cause a lot of harm to society if the legislative happen to create a law which does not benefit the society; under a written constitution the citizens seem to have better protection.

Bibliography * Bradley, A. , W. , and Ewing, K. , D. , Constitutional & Administrative Law, 15th Edition, 2010, pp 11-15 * Bradley, A. , W. , and Ewing, K. , D. , Constitutional & Administrative Law, 15th Edition, 2010, pp 78 * Lord Hailsham Quote, BBC, Richard Dimbleby Lecture transmitted in 1976