The rule of law, the separation of powers, and the existence of fundamental human rights serve as the foundational principles of the British Constitution. Without them our constitution could not work. Discuss. .

by andrewacch (student)

University Degree Law

LLB Law – Public Law I (M3006)

Public Law Essay

Student name: Chong Chi Hung Andrew

Candidate No: 107368

Seminar 19

Tutor’s name: Dr T Kochi

Date: 27/11/2012

Words: 1488

1. “A political constitution, more than a legal constitution, needs to be bolstered by principle. The ‘rule of law’, the ‘separation of powers’, and the existence of ‘fundamental human rights’ serve as the foundational principles of the British Constitution. Without them our constitution could not work.’

Discuss.

The nature of the constitution of the United Kingdom has been bound by many constitutional conventions, the sets of laws and principles governed by the UK government. The un-codified elements are clearly expressed through the Parliament, the Parliament being the key player of the English legal system is liable passing different primary legislation in the UK, but after joining the European Union as a consecutive member, the domestic legislations are sometimes amended by the secondary legislations of the European institutions within different tools. Among all the relevant factors, due to the traditional powers of the parliamentary constitutional conventions and the royal prerogatives, the doctrine of the parliamentary sovereignty still play a dominate role as a final source of law.

According to the current legal conditions mentioned in the title of the essay, the idea of constitutionalism drew up the main theme of the English legal system in the UK, as argued by the theory of politician John Locke saying that constitutionalism is the appropriate form of government due to government’s fiduciary role. (L. John, 1698) Following that there should be reasonable legally limits on the control of the powers of the government in order to define the scope and level of the government’s legitimacy and authority. Those limitations help maintaining the stability of the importance of the Parliamentary Supremacy because if the check and balance system of the UK’s government is contaminated, then there would be a great variation of the political values and principles and entrenching every single units of the interconnected legal system that was originally constrained. The political constitution has an obvious contradiction to the legal constitution in the UK, the political legislature and the judiciary of the constitution helps limiting the power of the executive and checks upon government. For the legal constitution in contrast with the political constitution, judiciary form the greatest check upon the use of executive power. Methods of official review may be used to move away political elements of to a legal constitution for example, by passing of the Human Rights Act. So in this essay I will discuss about the importance of the fundamental principles of the British Constitution in four main aspects, the ‘rule of law’, the ‘separation of powers’, the existence of ‘fundamental human rights and the ‘increasing involvement of the European institutions’. (A, Larry & S, Larry, 2005)

This is a preview of the whole essay

First of all, the rule of law in the UK set up the foundation of the English Legal System, it helps to make sure that every law apply firmly and equally to all. As mentioned by A. V. Diecy, a constitution expert, said that the rule of law ensured a government of law but not a government of men, and thereby arbitrating a constitutional government and which helping to establishes a strong relationship between the government and the people. (A.V. Diesy 1915) The rule of law provides equality to the public as no one is above the law, which retained the decisions and judgement of the courts and mainly the supremacy of the parliament by the practice of judicial review and through administrative law. As Parliament having the sovereign power in making or amending any law, it is upheld the rights of the legal system in all legal aspects. On the other hand, the law is always applied, cases must be resolved by the application of the law, although legal redress can be done via different courts, but parliaments still upheld the ultimate rights of punishment for the breach of law. Also for the area of law which defend fundamental human rights, there is no entrenched bill of right for the domestic law and the HRA can be set aside if parliament wishes. Moreover, in the UK, judges’ decisions are mostly susceptible to the potential political pressure. At last, the constitutional law has a major impact on the judicial system. As a result, it grants a lot power to parliament and parliament can set aside any provisions of the rule of law as wishes. Although the principles of the rule of law exist, the parliamentary sovereignty prevails and Constitutionalism additionally requires effective laws and their enforcement to provide structure to its framework. (Goldsworthy, Jeffrey, 2009)

Secondly, the development of the doctrine of the separation of powers was essential elements of the British constitution. According to Lord Acton, 'Power tends to corrupt and absolute power corrupts absolutely', so the checks and balance of the government’s branches are vital in sustaining the operation of the English Legal System. The powers are separated into three sections, the parliament as the legislature, and the government as the executive function and the court as the judicial function. According to the doctrine of the separation of powers, the executive cannot make law. Neither can the legislative determine disputes or any of the three branches exercise the power of the other. Nor can any one person be a member of any two of the branches. The constitutional arrangements of these three powers are deeply entrenched and separated. After the Constitutional Reform Act 2005, it has established a close relationship between the executive and legislature and for this reason, the powers for implementing the legal responsible go downs to the politicians as the current electoral process induces government with more seats in parliament. So concluding the principles of the separation of powers, the historical values of the constitutional arrangements of the Montesquieu ‘ The Spirit of Laws’ tries to hold a balance between the crown and parliament and allows for power to be used to check on the other powers rather than a formal and complete separation of the three branches.

Thirdly, the Human Right Act 1998 had not been changed in a great perspective before the European Community start accessing the UK in 1973, the impact of the HRA on the British constitution is not affected by the judicial system of the English Legal System, as the matter of concentration of power in the earlier century, the public realised that they should rely on those who were directly responsible for policy making bodies. After joining the European Union, the power of the government was limited as it gives more autonomous power to the parliament and other institutions such as the EU. Although the power of the government was more widely dispread as subject to the argument of Dicey that there are no single sovereign within the UK constitution, the parliament remains the reconstructive power of the British constitution with the adaptability of the European Communities Act 1972 and starting to act according with different EC law. The Parliament will still remains the real power of the operation of legislation as the power enacted by it. (Human Rights Act 1998, C. 42)

Lastly, the UK is now currently subject to the supremacy of European law as being a member state of the European Union. The UK courts need to apply the secondary legislation declared by the EU if directly applicable or with the doctrine of direct effects. In the Factortame cases, the ECJ asked the UK parliament from setting aside the Merchant Shipping Act with is not compatible with the EU law, the House of Lords finally issued an injunction with the Act but at the same time challenging the EU from the matters of conflict with the European Communities Act of 1972. (Factortame (No 1) [1990] 2 AC 85; Factortame (No 2) [1991] 1 AC 603) Although the EU said the 1972 act was a special constitutional statute but it showed that the UK parliament still preserve the sovereignty by express repeal or even withdrawal from the EU. (European Communities Act 1972, C. 68)

All in all, the British constitutional system hold several distinguishing features which supported the operation of the constitution, firstly, the principles of the constitution do not develop from a single source document, secondly, there are both legal and non-legal components which is the political nature of constitution, thirdly, the English Legal System is much more adaptable to the public democracy and the influence of the other European institutions, fourthly, in United Kingdom the notion of parliamentary sovereignty is an inheritance of historically hierarchical social and political structures, lastly, there’s the effective control of Parliament that parliamentary sovereignty can be conceptualized as an expression of the political sovereignty of the people. As mentioned above, the rule of law and the doctrine of the separation of powers helped the British constitution from providing sustainable development and strengthening the position of the UK’s government from resisting the influence of other institutions. On the other hand, despite the difficulties from the European supremacy factors, the domestic law works well and can interoperate with the EU law if it applies strictly with the treaties or directives ensuring the quality of the compatibility of domestic law.

Bibliography

A, Larry & S, Larry, (2005) “Popular? Constitutionalism?” Harvard Law Review, 118(5, Mar): 1594–1640.
Goldsworthy, Jeffrey, (2009) “Constitutional Interpretation: Originalism,” Philosophy Compass 4(4): 682–702.
Human Rights Act 1998, Chapter 42, [9th November 1998], , (data achieved from 27-11-2012)
European Communities Act 1972, Chapter 68, [17th October 1972], , (data achieved from 27-11-2012)
L, John. Two Treatises of Government. [London, 1698]
A.V. Diesy, Introduction to the Study of the Law of the Constitution (8th Edition with new Introduction) (1915), , (data achieved from 27-11-2012)
Factortame (No 1) [1990] 2 AC 85; Factortame (No 2) [1991] 1 AC 603.