British Constitution and the Rule of Law - Case Study Example

British Constitution and the Rule of Law Sovereignty of parliament and rule of law are the two chief principles that constitute the bedrock of the British constitution. The former compels parliament to specify by legislation the powers that it bestows upon the government. Furthermore, the rule of law principle, affords protection to the populace from the arbitrary acts of the state. A simple majority is sufficient to rescind or ratify a piece of legislation. In England, it had been established that the exercise of power by the government must have legal justification. Moreover, exercise of power by the government, which has no legal justification, cannot be justified on the grounds of state expediency. The landmark case, in this regard, is that of Entick v Carrington. In this case, the court ruled that the warrant issued by a government official had breached the legal principle1. Accordingly, it nullified the warrant and awarded damages to the plaintiff. With this case, the principle that a public official should prove that he had express legal authority to interfere with a person or his property became a legal requirement2. The most significant description of the rule of law was provided by A.V. Dicey. In this endeavor he integrated three important concepts. First, the law should prevail over any arbitrary power of the government. Second, everyone is equal before the law; and this equality applies to every class of society, and even the government officials. Third, the provisions of the constitutional law are to be incorporated into the ordinary law of the land, over which it should have a binding effect3. Subsequently, John Rawls expanded upon this description of the rule of law. According to him, the rule of law is the “regular, impartial, and in this sense fair administration of public rules”4. A.V. Dicey had propounded the concept of the rule of law. Subsequent legal scholars had expanded upon the scope and role of this concept. According to Dicey, the law must rule the people and the government must be subjected to the law. The government should not use its powers to circumvent the law. All classes of people and government officials were to be treated equally before the law. The courts have to ensure the proper implementation of the constitution, by emphasising individual rights5. The importance of the due process of the law and the necessity to prevent arbitrary treatment has been supplemented with the need to maintain order; which is indispensable for the reign of law. Several international human rights treaties have incorporated the notion of due process. Instances of this are, the United Nations declaration on Civil and Political Rights and the European Convention on Human Rights6. The rule of law is a political paradigm that is either absent or extant to a varying degree. The rule of law principle constitutes one of the yardsticks to gauge the nature of a legal system. It does not fall in the category of democracy, justice, equality, or human rights. Furthermore, it is not to be confused with human dignity or respect for persons7. In general, non – democratic systems entail rejection of human rights. In addition, some of these systems suffer from poverty, racial segregation, gender inequalities and ethnic rivalry. The rule of law is better adhered to in such systems of government than the well developed Western democratic systems8. A broader interpretation of the principle of the rule of law requires the people to abide by the law and to be ruled by it. However, legal and political theories tend to ascribe a much narrower interpretation to this principle. This narrower construal states that the government has to conform to the rule and be ruled by it9. From this perspective, the principle of the rule of law connotes a government that is founded on law and not a system that is controlled by the people. Consequently, from this point of view, the rule of law requires the government’s actions to be founded on the law and authorised by it10. The constitution provides protection to the citizens against official raids on their property. In the past, before the American Revolution, Crown officials were wont to invade citizen’s homes. They justified that their invasions by contending that they were searching for smuggled goods and evidence of crime. The protracted harassment at the hands of the hated British, actuated the Americans to incorporate the Fourth Amendment to the Constitution, provides protection against random official actions. Several states had already enacted such provisions in their constitutions11. As such, legal equality is of prime importance in England. Every class of people is subject to one law that is overseen by the judiciary. This is known as universal subjection of the different classes to one and the same law. From the Prime Minister to the lowest serving official, every member of the executive branch of the government is treated alike by the law12. Every citizen is bound by the same law and owes the same responsibility to follow the law. No official is allowed to perform any act without legal justification. Despite this imposition of legal responsibility and other legal requirements, there have been numerous incidents of infringement by the governmental officials13. Several cases have been lodged against officials for having breached their legal responsibility. The courts held the offending officials personally liable for their acts and imposed suitable punishment. The essence of these rulings was that an official, who does an act in his official capacity, but in excess of the authority vested in him, is liable to punishment or damages14. The government is bound by the law. This is the fundamental feature and requirement of the principle of the rule of law. The government must act and exercise its powers within the limitations of the law. A government that fails to do so is deemed to be one that does not acknowledge this all important principle15. The 1765 case of Entick v Carrington referred to the principle of English Law; which was subsequently, made an essential part of the Bill of Rights. The fundamental protection offered to citizens by this principle, became an integral part of the due process of law16. In the course of the hearing of this case, an important ruling was given by the court. It held that English law did not permit Crown officers to break and enter in to the homes of citizens, under the protection of a general warrant, in order to search for evidence of indulgence in libel17. Some of the reasons proffered by the court in this context were: that of a certainty the law does not require an individual to indict himself, on account of the fact that enforcing such self – accusation would not only be inequitable but also cruel; and as a corollary, search for evidence is precluded, because in such instances, there was every likelihood of confusing the innocent with the guilty18. A claim stating that Malone’s right to privacy had been breached was not countenanced by the court in Malone v. MPC. It had been stated that this right to privacy had been violated, when the authorities had clandestinely resorted to hearing and taping his telephonic conversations, during the course of investigating a crime19. The court had already established the principle in the case of Entick v Carrington with regard to trespassing into private property by the state authority. However, in this present case, the House of Lords held that the police action was legal. The reasoning for this decision was based on the fact that there was no right to privacy in English law. The parliament also did not consider such an action to be illegal20. Malone did not give up his efforts, on account of these adverse rulings. He approached the European Court of Human Rights under Article 8. This article provides for privacy to individuals from state interference. As such, it aims to prevent arbitrary intrusions by public authorities into the private life of an individual. The European Court of Human Rights ruled that intrusion by the English authorities did not have the weight of the law behind it, and as such was not justifiable under the provision of Article 8(2). This adverse decision prompted the English to enact the Interception of Communications Act 198521. In M v. Home Office a Zairian’s plea for asylum in the UK was refused by the Home Office. This prompted him to seek a judicial review of the Home Secretary’s decision. Thereupon, the Home Secretary was directed by the court to desist from deporting the plaintiff22. The House of Lords held that the Secretary of State was not eligible to claim crown immunity. However, the House of Lords granted an injunction against this Secretary in his official capacity. It also held that the Office of the Secretary had been responsible for the contempt of court23. As such the judiciary is precluded from entertaining misgivings about or challenging the legitimacy or constitutionality of an act of Parliament. However, the judiciary is at liberty to interpret any act, as well as pronouncing any act to be ultra vires of the enabling Parliamentary act. Moreover, Parliamentary sovereignty implies equality of status of Parliamentary, in respect of each other. These cases demonstrate that the judiciary intervenes, whenever individual rights are breached by the acts of government authorities. In addition, they bring to the foreground the role of judicial accountability in protecting individual rights and imposing checks and balances on the state executive. In the case of Burmah Oil v. Lord Advocate, British troops destroyed oilfields, belonging to Burmah Oil. This was done by them, in order to prevent the capture of these oilfields and subsequent use by the Axis Powers, during World War II. Their Lordships ruled that Burmah Oil was to be recompensed from public funds. The British Government was reluctant to do so; hence it enacted the War Damages Act 1965, which effectively indemnified it from any damage caused by it, at times of war, with retrospective effect24. The case of R v Chief Constable of Sussex, ex parte ITF Ltd, dealt with public opposition, by means of demonstrations, against the export of live animals. The police authorities, asked the exporting company to curtail its export activity, as they were unable to provide the necessary resources for the level of exports envisaged by the company. The exporters applied for a judicial review against this decision of the Chief Constable for breach of national law and violation of Article 29 of the EC Treaty. Their Lordships rejected both of these claims25. In their decision the House of Lords opined that the Chief Constable’s actions were not possessed of sufficient unreasonableness to warrant a challenge by a judicial review. Regarding the alleged violation of EC Law, their Lordships held that even if the Chief Constable’s actions fell under the scope of Article 29; they would nevertheless, be permitted by Article 30, which permits controls on imports, if public policy considerations are involved26. Human rights have to be protected by the rule of law. This is indispensable; otherwise, the people may be forced to resort to rebellion, in order to overthrow a tyrannical regime27. The rule of law is different from the modern concepts of democracy, justice, equality, human rights and the dignity of men. The rule of law does not have any moral content in it. The decisions arrived at by processes that had been approved of by the majority of the populace have to be implemented and every person has to comply with it28. If this is not done, the democratic system will be destroyed. This aspect makes it clear that the rule of law is not a unique trait of democracies. It is most appropriate and well suited for non – democratic and arbitrary states which dishonour the individual rights29. It is important to note that the absence of a written constitution precludes the necessity for special majorities to modify the constitution. Thus, in the case of the United Kingdom, constitutional reality is endowed with flexibility and admits of quick change. This flexible constitution is founded on common law, which is characterised by case law or precedent established by previous decisions. Such precedents can be utilised for settling disputes. In the English judicial systems, decisions are arrived on the basis of cases and not general rule. According to the principle of rule of law, government cannot be treated differently from the way, which an ordinary person is dealt with. In the UK, the government enjoys several privileges and immunities under the guise of the Royal Prerogative. This enables the government to enjoy a superior status, in comparison to the ordinary citizen. However, the extant case law reveals that their Lordships have taken pains to restrict these immunities. As such, the government has to be subservient to the law, while discharging its duties. For instance, Tony Blair circumvented the due process of law, while invading Iraq, by exercising powers under the Royal Prerogative. This reprehensible action generated severe criticism from several quarters. The situation was sought to be remedied by Gordon Brown, the successor of Blair, who had brought about the enactment of the Constitutional Reforms Act 2005. Furthermore, considerable legislation has been enacted by the European Union, so as to protect individual rights from the arbitrary acts of the government of a Member State. The Universal Declaration of Human Rights defined the rule of law as an important component of human rights. Therefore, it can be surmised that a democracy cannot survive for long, in the absence of the rule of law. Bibliography AV Dicey, Introduction to the Study of the Law of the Constitution (Adamant Media Corporation, 2005) 189 Burmah Oil v Lord Advocate (1965) AC 75 Colin Turpin & A Tompkins, British Government and the Constitution (Cambridge University Press, 2007) 77-79 Entick v Carrington (1767) 19 Howell’s State Trials 1030 Inspections and Searches, accessed 18 January 2009 Joseph Raz, The Rule of Law and its Virtue (1979) in Law and Morality (2001, University of Toronto Press) 291-292 Legal Theory Lexicon, ‘The Rule of Law’ < http://lsolum.typepad.com/legal_theory_lexicon/2004/01/legal_theory_le_3.html> accessed 18 January 2009 Malone v Metropolitan Commissioner of Police (No 2) (1979) Chancery Division 344 Malone v United Kingdom (1984) 7 EHRR 14 M v Home Office (1994) 1 AC 377 Preamble to the Universal Declaration of Human Rights R v Chief Constable of Sussex, ex parte ITF Ltd [1999] 1 All ER 129 Rule of law, In the Blackwell Dictionary of Political Science, Oxford: Blackwell Publishers, 1999, accessed 19 January 2009 Read More