Thomas Paine sets a more complex description:
“A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without right. A constitution is a thing antecedent to a government; and a government is only a creature of a constitution.”
I believe what Thomas Paine is clearly stating here is that the government cannot create a constitution, but the government is created from it, and constitution is created from the customs, belief of the people, who then appoint a government to regulate and follow the customs and beliefs of the people.
Well then does UK have a written constitution? Well what is a written constitution, a written constitution is a single or series of documents, which defines the basic rules of the State. UK does not have a written constitution as stated by Osborn Concise Law Dictionary, but “has bodies of rules, which regulate the exercise of state power.” Some theses rules are:
- The Magna Carta, this is a formal settlement made between the Crown and the barons in 1215. This law has been repealed but shows how the British constitution protects its servant from the misuse of power from the Crown:
“No freeman shall be taken or imprisoned, or be dissiezed of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroy; nor will pass upon him, nor condemn him, but by lawful judgement of his peers, or by the law of the land. We will sell no man, we will not deny or defer to any man either justice or right.”
- The Bill of Rights 1689, this law was passed to help try and resolve the conflict between the Crown, Parliament, Church and the State. This law tipped the power of the Crown to Parliament, the substance of the Right is; (read page 24)
- Other law are Act of Settlement 1700; this prevented the Crown from dismissing judges at will. Treaty of Union 1706, this Treaty united Scotland and England under a single Parliament of Great Britain.
Because a UK doesn’t have a written constitution, which sets out the basic rules a government or State must follow, Parliament can make any law it wants, because it has no higher law to challenge it. But this may seem that Parliament can introduce any law it wants to, but it has checks and boundaries before an Act can be enforced.
So at the end of this discussion of whether UK has a constitution or not, the answer is that UK has a constitution but not a written one.
How much weight or power an Act holds in UK?
In the UK an Act holds equal power to all other Acts, no Act can rise above another Act unless allowed by Parliament, but if Parliament does such thing it will then change the Act or repeal one or the another.
Parliament powers to change and to repeal Acts?
To answer this question we must look into the Separation of Powers, there are three the legislative, executive and the judiciary. Parliament is said to be the supreme, because it has a legislative role, in where it can make any law and the other two have to follow. The executives are the ones who enact the law, such as civil servants, but they can only enact laws, which are created by the legislative side. The judiciary are the ones who enforce the law; this basically means the courts, judges.
Since Parliament is supreme in making laws, and introduce any law it wants, and not forgetting it also has the power to repeal and modify, or to correct law. The procedure it must take is:
- A Bill is drawn up, and then is given its first reading in the House of Commons or the House of Lords. This is a debate of the propose Bill.
- Then goes through a second reading, by a select committee, who report back on the Bill, the report consists of advice and suggested amendments to the Bill.
- And then a third reading, where they vote if this Bill is to made law.
- Then it is passed to the House of Lords, who take it through similar process, but they only have the power to veto a Bill if it does not agree with it.
- Once the Bill has got the Royal assent then it can be taken as an Act of Parliament.
For Parliament to repeal an Act, it must either create a Bill to take its place, or vote it out of the law. Parliament can do this at any time, the perfect example of this was the case in Ireland, where the Irish Parliament collapsed and UK parliament had to rush a Bill through to bring back Northern Ireland back to UK rule.
What does the Human Right Act 1998 represents and why is it being introduced?
It is the UK government intents to incorporate the European Convention of protecting human rights into the UK legal system, to do this they have introduce the Human Right Act 1998.
The Human Right Act marks a significant constitutional change in relation to citizen’s awareness about rights, and their protection by judges in the domestic courts. The judges can use the European Convention of Human Rights as an aid to help resolve some of the ambiguities in domestic law. But not only this, but also require judges to make declarations of incompatibility wherever domestic law is judicially seen to conflict with the Convention. This method allows Parliament to keep it’s supremacy to change law and introduce law, the reason why is that no court can invalidate an Act because of incompatibility with the Convention, but ask Parliament to look into it and make changes if need be.
So the Human Right Act represents a clarification of the Human Rights in the UK, and the prevention of misuse of power from the government.
Conclusion
I conclude that the Human Right Act 1998, cannot be a higher form of law, because it has the equal weight and power as any other Act, and it still allows Parliament to remain supreme in introducing and changing law.
It can be argued that it can be higher law, but I believe it represents a new era in the UK legal system, of where courts can be more versatile in domestic cases, and allow the courts more power in questioning compatibility of Acts and Bills of Parliament. But still allowing Parliament to remain supreme.
