Constitutional and Administrative Law Essay

The features given by Barnett all seem to apply to the British constitution. However, listing out "supreme" as being a feature of the constitution can be a bit misleading, because it gives an implication that the British constitution is supreme. That is far from true because it is the Parliament which is supreme. Such is the case in Barnett's classification, as she refers to the legislative authority being supreme rather than the constitution itself. Moreover, Barnett states that the British constitution consists of both legal and non-legal sources.

The legal sources are: European Legislation; Statutes/Acts of Parliament; Equity; and Common law. The non-legal source is said to be the conventions. The constitution is mostly made up of conventions. Conventions form an essential part of the constitution and play a significant rule in the way in which it operates. According to Barnett, historically the constitution has evolved gradually and pragmatically. However, in the past 3-4 decades the British constitution has undergone a lot of major changes. The latest and probably the greatest one being UK's membership into the European Union (1973).

This "involved not only entering into an agreement which affected the economic life of the country, but also joining a unique legal order". Moreover, the recent treaties of 1992 and 1997 gave rise to new implications in the field of politics, economics, foreign policies and many other matters. Another major development is the Human Rights Act 1998 which incorporates the European Convention on Human Rights into domestic law. This is said to be a significant development because it is for the first time ever that the rights of British citizens have been codified. 5

In an article published in the Independent by Nigel Morris, the issue of UK not having a codified constitution has been examined. According to him, the main reason as to why the UK does not have a codified constitution is because the country has been "stable for too long". This is in contrast with most of the other European countries which went through some kind of revolution or developed a codified constitution as a consequence of war. Morris says that developing a written constitution would be a formidable task; as it would require the compilation of all the statutes and principles of cases which have evolved throughout the centuries.

His main argument in favour of developing a written constitution is that a codified constitution would help the citizens to defend themselves against the state. However, this view can be challenged because the Human Rights Act 1998 already provides this right to the citizens. Moreover, he states that it is almost impossible to defend "Britain's arcane hotchpotch of freedoms and rights" in the 21st century. While it is possible to say that there is some truth behind these words, I believe that the rights can be defended through the Human Rights Act 1998.  

Parliament, the Commons and Lords, play an important role in calling the executive to account. They perform both a retrospective and prospective role to keep the executive in check. Retrospectively using question time and select committees and prospectively in standing committees and voting on legislation, amongst other things. Their authority to scrutinise is somewhat curtailed in that the executive, which can be described as the cabinet and top civil servants, is by convention limited to the government of the day which makes up the Cabinet.

Parliament can scrutinise only the actions for which a Minister is responsible although this area may be large. Civil servants are not required to answer for their actions to Parliament only to their departmental Minister. They can however be questioned by Parliament regarding departmental matters on the running of departments. Junior ministers can also be questioned on government matters although they are not directly in the executive.

This leads to a somewhat haphazard system of accountability which becomes more entrenched with the fact that part of the executive resides in the House of Lords. The Commons retrospective powers of scrutiny can be divided into two areas, those on the floor of the house and those not. On the floor of the house the most famous is that of parliamentary question time. The Prime Minister takes questions twice a week, Tuesdays and Thursdays at 3pm for 15 minutes, other Ministers do so on a rota basis.

M. P. s give notice to the Speaker of their main question and are then allowed to ask a subsidiary question. This area of scrutiny is becoming more and more impotent with the introduction of the Next Steps executive agencies as Ministers become less involved in the day to day running of their department, a trend which is set to continue with the Next Steps revolution. Opposition M. P.

s try and wrong foot the Minister involved and most noticeably led to the "dismissal" of Patrick Jenkins after several poor performances over the abolition of the G. L. C. The governing party have been charged with planting questions so as their colleagues appear competent. Question time only accounts for 8% of parliamentary business and its main significance seems to be the portrayal of a gladiatorial match between the parties in the interests of a good "sound-bite" for the media.

Of much more importance are the parliamentary select committees. The concept of select committees has been around since the nineteenth century but it wasn't until 1979 and the establishment of 12 committees, to shadow the main departments, against the wishes of the government, that a tangible system of examination of executive powers was introduced. Committees, usually made up of eleven back-bench M. P. s and the Chair elected by its members, investigate all areas of executive control.

These bodies have no formal power except to call for witness, Edwina Currie and the Maxwell brothers were forced to attend, although they did not say much. Mrs. Thatcher forbade William Whitelaw from attending the Home Affairs committee to answer questions on the Maze breakout. They can also summon civil servants and departmental working papers which has led, in theory, to the notion of a more open government. They also allow for specialisation, Frank Fields serving in two parliamentary sessions of the Social Security Committee, and they serve as an open a forum for outsider groups to be heard.