From: riaedwards@halls1.cc.monash.edu.au (AUDREY EDWARDS)
Subject: Re: Britain doesn't have a Constitution (Re: An astonishing Guy)
Organization: Halls of Residence, Monash University 
Date: Wed, 11 Nov 1992 07:24:12 GMT

In article <lfqrduINNa4m@exodus.Eng.Sun.COM> linden@positive.Eng.Sun.COM (Trelford Pinkerton) writes:
>From: linden@positive.Eng.Sun.COM (Trelford Pinkerton)
>Subject: Re: Britain doesn't have a Constitution (Re: An astonishing Guy)
>Date: 8 Nov 1992 19:42:54 GMT

> We do have a constitution, it's just in a different form. 

>If that different form does not comprise a framework within which all
>laws are passed, and with which all laws must agree, then it is not a
>constitution in the American sense, merely a set of bureaucratic
>procedures.

You are mixing up two separate arguments. We both agree that the British 
constitution is different from the American model. Where we differ is in 
defining a constitution only by reference to the American sense.

Prof. Harry Calvert in his work "An Introduction To British Constitutional 
Law"(1985) Financial Training Publications, commences by stating:
	"A  constitution is a common phenomenon. Every human organisation at 
	least has one. This is true as much of the local amateur dramatic 
	society as of the United Nations Organisation, a primitive nomadic 
	tribe, a modern independant nation state or one of its colonies....A 
	constitution seems to be what makes all the difference between a 
	mere collectivity of individuals, behaving utterly without 
	regard for eachother's interests and without any common goal or 
	purpose, and a collaberative enterprise towards a common end." 
        (page 3)

As far as the British constitution is concerned, he suggests that is 
	"those rules which relate to the organisation of the group as a 
	state or polity and the government and or regulation of its 
	activities as such" (page 4)

He goes on:
	" 'Written' and 'unwritten' constitutions are often considered to be 
	of two different kinds, and it is customary, in discussing 
	constitutions generally, to labour the distinction between them... 
	They have distinctive features, but the essential difference between 
	them is nevertheless formal rather than substantial".(pages 9-10)

He cites the examples of the U.S. and Britain:
	.."Consider the question whether our (British) courts may strike 
	down, as invalid, an Act of Parliament.....We would search in vain 
	for any formal written statement of the position in this respect as 
	far as the United Kingdom's constitution is concerned. Written 
	statement says neither that the courts may, nor that they may not, 
	undertake this task. It is left to the courts themselves, as authors 
	of the common law, to declare that they may not, aposition 
	progressively arrived at as a result of slow development over 
	centuries....
	
	We would, however, search the written constitution of the US equally 
	vainly.It has never been denied that that the USA functions under a 
	written constitution, yet the fundamentally important power  which 
	the Supreme Court exercises to declare invalid laws which transgress 
	the Constitution is nowhere written into it. Rather it derives from 
	what the Supreme Court itself has perceived to be the inherent logic 
	of the constitutional structure of the USA.....The function of 
	judicial review on grounds of constitutionality is a later 
	development of the Constitution of the USA, which has come to be 
	accepted. It is not a part of it...." (page 10)



>It will be straightforward to tell the difference: please provide a 
list
>of recent British laws which have been set aside by the courts as being
>"unconstitutional".   Perhaps your year of legal study covered this?

To paraphrase Prof.Calvert's comments, neither the UK or US constitutions 
states in writing that the courts have the power to judicially review 
legislation on the grounds of constitutionality. Rather, the courts in these 
countries have analysed their roles within the frameworks that exist (in the 
case of the UK, this comes in the form of legislation which generally 
codified long-standing custom and practice). Then, the courts have decided 
whether or not to take the role of judicially challenging legislation on the 
grounds of constitutionality. The Supreme Court of the US decided yes; the 
British courts (in all the various jurisdictions) decided not to.


>If there aren't any, then the British constitution isn't worth the paper
>that it isn't written on.

For the reasons stated above, your logic is flawed.


>          Trelford "yes, Phil really is a nice guy, and he loaned
>                    me a book on the Constitution too"  Pinkerton.
>--
>   Inventor of the Lambada-Calculus.


Audrey (who apologises for being so long-winded).
Xref: sparky soc.culture.british:15266 soc.culture.canada:8324