Ruling Principles of the British Constitution - Essay Example

? A constitution is defined as the set of rules and principles that have an itative value, which defines and specifies the location of powers that have to be regulated by the public authorities. These constitutional rules and powers are written down on a set of documents or papers and are regarded to hold a higher status than the normal laws and statuses, since they cannot be overruled by any other law. Once a constitution is in effect, the rules or the whole set of rules cannot be changed easily. The British Constitution is largely unwritten and much different than the constitution of any other nation or state. It is derived and exercised by a number of formal and informal sources that include statutory law, judge made law or precedents, constitutional conventions and the royal prerogatives. It is described at different occasions to be an expression of integration of history and experiences of the past, which led to a unified meaning of its political existence. It is also defined as the set of rules put down to the public, legally distributing the power laid to them, which is acceptable to the people belonging to different organizations of the government1. Hence it is a flexible unified set of ruling principles of the British Constitution that can easily be amended so as to meet the political and legal requirements. The rule of law is one of the main principles operating the British Constitution. One of the simplest definitions given to the rule of law is the sovereignty or supremacy of law over man. With that said, Parliament sovereignty too, is not compromised at any cost, which is also one of the fundamental principles of the British Constitution with the rule of law. Human rights are a crucial aspect in accordance with which the parliament and judges amend their rules making sure there are no compromises made, thus, the human Rights Act 1998 plays a fundamental role in the functioning of courts. However, the main object and definition of the rule of law in a wider sense also includes the upholding of basic human rights and values that are associated with justice and fairness towards its people. The preeminent function of the courts is to uphold the rule of law and human rights together. Generally, it was the parliamentary sovereignty that had been deemed the ultimate ruling principle of the British Constitution, which has recently been challenged due to the preceding constitutional changes brought about. Mainly because of the reason that Britain has an unwritten constitution, it can evolve, molding itself to the changes that take place over time in the political and legal circumstances.2 We will have to discuss the mechanism that endorses the rule of law in order to see how the constitution is based upon Human Rights Act 1998. 15 The 98 Act had magnified and enhanced the rule of law’s constitutional role since it had increased the courts ability to further scrutinize, question and reform the parliament’s legislative powers. It ensured that the rights mentioned in the 98 Act are not violated, while at the same time, the courts are bound to interpret legislation, as far as possible, to be compatible with the rules set out by the European Convention on Human Rights 1950, hereafter referred to as ECHR. This is a treaty contracted by the U.K when it became a member of the council of Europe. The rules of the 98 Act uphold the courts compliance with the rights of people as the main legislative principle in the English law and the legal system.3 Domestic courts have supported the substantive rule of law by understanding their powers under the 98 Act, making their legislation compatible with the ECHR. Declaring a directive to be incompatible with the ECHR signals that a right has been violated which is then directed to the European Court of Human Rights setup in Strasbourg. The treaty signed by the U.K, and being a member of the European council, binds them to initially follow the rules of the 98 Act and then to make a compatible legislation reconcilable with the legislation and rules of the ECHR. Upon violation of a rule, even if the government of UK refuses to make amends, people redirect themselves to the ECHR in Strasbourg.4The parliament of UK has, with time, enhanced their legislation to be compatible with the Convention, proving that the ECHR has played an important role in order to sustain the rule of law and human rights in the British Constitution. However, in no way does this mean that in order to uphold the rule of law and human rights, the sovereignty of the parliament is affected. Parliament’s supremacy and sovereignty is preserved and unaffected as it retains the right to extend legislation that is not ECHR compatible.5The power of Parliament to legislate is not undermined as it preserves the right to enact legislations, regardless of any power exercised by the courts under the relevant sections of the 98 Act. Acts of the parliament that are not specifically ECHR compatible are not to be invalid as long as the parliament itself does not amend or repeal it in a manner applicable by the court. While at the same time, in connection to the parliaments functioning, the judges adapt to the rules set out to them by the parliament. They show flexibility in exercising the 98 Act. Even if a decision made by them is not in compliance with the ECHR, they let the parliament handle the issue since it is its role, considering it has greater constitutional and institutional power to handle these matters. Courts have tried their best to avoid clashes with the decisions of the parliament, providing it with the best possible conditions to perform the jobs they are supposed to, without any external restrictions or hindrances. While judging matters related to human rights, courts always refer to what the parliament has set out for them in order to uphold the rule of law. Simultaneously, in practice, the courts are able to assess situations where judicial review is to be applied. Such power to protect the basic human rights is given to the courts by the 98 Act which makes it unlawful for any public organization to act incompatibly with convention rights and further enhances the role of the judiciary. This power of judicial review has ensured compliance with rules of the parliament, consequently upholding the rule of law by protecting fundamental rights from violation by the state. This limits the parliamentary powers from violating any rules of Human Rights Act 98 or the ECHR. The ultra vires doctrine plays an important role in this instance. It is an approach adopted by judges, aimed towards the protection of values and rights assisting them in making decisions to safeguard moral principles and human rights in the instant case.6 Viewing the facts and how the British constitution is evolving with time, we can see that the courts have to apply the primary legislation entrusted to them by the parliament, while making changes in the unwritten constitution. The judicial independence formed due to the enactment of different acts such as the constitutional reform act 2005 and the Human Rights Act 1998 proves that the rule of law has become a very strong constitutional principle. Further adding to the role of courts, the parliament has largely recognized and acted accordingly in order to comply with the rule of law and the human rights as upheld by the courts. The unwritten British Constitution being flexible and the mentioned reforms coming about, the rule of law and human rights will further be maintained by the courts. B) One of the very important cases to be cited while discussing the human rights and its significance is the case Regina v A.7 The respondent in this case was to face trial in the crown court, on offence of rape, having raped the complainant on 14, June, 2000. His defense being that the intercourse took place with the complainant’s consent. Crown’s case being that complainant and defendant formed a sexual / relationship weeks back while meeting through another friend, who was staying with the defendant in the same flat. The friend and the complainant had sexual intercourse while the complainant wasn’t at the flat. Later he returned and all 3 went for a picnic, the defendant, complainant and the friend. The friend and the complainant had whisky and beer and when returning back, the friend collapsed. An ambulance was called and the friend taken to the hospital. Later, the complainant and defendant decided to walk to the hospital when the defendant was leading the way and fell down. The complainants account is that she helped him get on his feet but he pulled her towards himself and had sexual intercourse. Later the same day, complainant made a complaint to the police on account of rape. The defendant was interviewed by the police but he did not answer any questions. However on his solicitor’s advice, he only read a statement that the complainant was never against this sexual relationship, being his main case, and this was just a continuation of a relationship that already existed, the last instance being a week prior to this event. A hearing took place in December, where the counsel for the defendant applied for approval to cross examines the complainant to account whether she had had the claimed sexual relationship. However, approval or leave for the cross examination was not given, and the judge ruled that a prepared statement by a solicitor could not be taken as evidence nor can the right to cross examine be given to the counsel on grounds of discouraging the possibility of discrimination that could arise due to the cross examination.8 These rulings by the judges clearly state that the judiciary is strictly in coherence with Human Rights Act 98 as it states that the cross examination can result in a breach of the right to a fair trial, since a woman’s past relationship is not to be considered as the basis of an event or occasion and might create a discriminatory attitude in the minds that of the judge and the jury. References British Constitution. 2013. [e-book] www.supremecourt.gov.uk/docs/speech_110628.pdf> [Accessed: 1 Dec 2013]. Foley, M. 1989. The silence of constitutions. London: Routledge. P87 Harkin, B. 2013. Human rights Act and the Rule of Law. [Accessed: 1 Dec2013]. Loveland, I. 2013. Constitutional Law, Administrative Law and Human Rights: A Critical Introduction. 5th ed. USA: Oxford University Press. Publications.parliament.uk. 2013. House of Lords - Regina v. A. [online] Available at: http://www.publications.parliament.uk/pa/ld200001/ldjudgmt/jd010517/regina-1.htm [Accessed: 1 Dec 2013]. Read More