All modern states have a constitution, albeit each is very different. The main purpose of a constitution is to restrain government, in the sense of ensuring that governments are not arbitrary. Government must be carried out according to established rules. These rules are the constitution. The existence of a constitution also protects the individual, not just from the power of the government, but also from other powerful bodies and individuals. It is also the constitution, which grants a government the right to rule, thereby legitimizing authority. This essay is concerned with the incorporation of provisions from other states that might improve the present constitution of the UK. Accordingly, this essay deals with three substantive constitutional provisions, namely the entrenchment of a bill of rights, similar to that which exists in Canada, the correct application of the doctrine of separation of powers, as exists in America, and finally the establishment of a Constitutional Court, similar to that of Germany.
[...] Lord Steyn, the law lord, also supports the importance of “clear separation of powers”. Indeed, provisions can be implemented whereby the executive is not fused with the legislature, for instance the Lord Chancellor's Department, which in its current form has been held questionable by the European Court, should be abolished, and replaced by a Department of Law whereby the Secretary of the State would be an MP, without an overlap with the legislature and judiciary, as suggested by Brazier. With regards to the judiciary, whilst it ‘correctly' cannot control the legislature, the influence it has over the executive needs to be separated, and re-applied in the form of a Supreme Court, as proposed by Lord Steyn (discussed below), perhaps with the power of declaring statutes unconstitutional, although such situations would be less apparent in the UK due to the unwritten constitution. [...]
[...] Oliver, A Bill of Rights for the UK, in Government in the UK (Milton Keynes: Open University Press 1991). Dworkin, A Bill of Rights for Britain, (London: Chatto & Windus, 1990). S. E. Finer et al., Comparing Constitutions, (Oxford University Press, 1995), Chapter 4. Myers v. US 272 US 52 (1926). Marbury v. Madison 1 Cranch US) 137 (1803). Shaw v. DPP (1962) AC 222. H. Fenwick, Constitutional & Administrative Law, 3rd edn, (London: Cavendish Publishing, 1999), Chapter 9. R (1991) 2 All ER 634 S. [...]
[...] The effectiveness of the Human Rights Act is highly dependent on the willingness of the judiciary in being prepared to take a creative and activist stance in their interpretation, perhaps to the extent that individuals need to rely on the judiciary as much as they do on the Act itself. In addition to the Human Rights Act, there are a number of separate statutes covering a single area, such as the Data Protection Act 1984, however, serious gaps still remain, one example being the absence of a Privacy Act. [...]
[...] The extent of improvement to the British constitution by the incorporation of a Bill of Rights, particularly one that would be protected in the Canadian manner, is simple yet considerable. It would provide a strong protection against legislative encroachment on civil and political rights. With regards to the ‘notwithstanding clause' Dworkin states that in practice, “this technically weaker version of incorporation would probably provide almost as much protection (as formal entrenchment).” Separation of Powers To prevent the abuse of power, government powers should not be held in the hands of one person or body, but should be divided or separated in some way. [...]
[...] Whilst directly challenging parliamentary sovereignty, a Constitutional Court needs to be supreme, since otherwise it would be in danger of being disregarded by the Prime Minister, as has happened on two separate occasions with the Russian Constitutional Court. Bibliography Brazier, R., Constitutional Reform, 2nd edn. (Oxford University Press, 1998). Dworkin, A Bill of Rights for Britain, (London: Chatto & Windus, 1990) Fenwick, H., Constitutional & Administrative Law, 3rd edn, (London: Cavendish Publishing, 1999). Finer et al., Comparing Constitutions, (Oxford: Clarendon Press, 1995). [...]
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