The Principles Supporting Constitutionalism - Essay Example

Dicey’s Hierarchy Of Principle, With The Rule Of Law Playing Second-Fiddle To The Sovereignty Of Parliament, Might Be Changing, And That The Rule Of Law Enforced By The Courts Is The Ultimate Controlling Factor On Which Our Constitution Is Based."... Discuss This Assertion On The Role And Position Of Rule Of Law In The UK Constitutional System, Citing Appropriate Evidence In Support Of Your Arguments. Table of Contents Introduction 3 Underlying Values in the Rule of Law 4 Roles of the Rule of Law 4 Legality 5 Certainty 6 Equality 7 Access to Justice and Rights 7 Nature of the Rule of Law 8 Legality 8 Procedural Propriety 9 Irrationality or Unreasonableness 9 Replacing Parliamentary Sovereignty with Rule of Law 10 Conclusion 11 Annotated Bibliography 12 References 19 Introduction Since its inception and association with the British parliamentary mechanism, the rule of law has remained a significant factor in determining a decision-based framework that supports the public laws framed by the UK government as part of the legislative governing body. The rule of law has always been a centre of controversy, wherein a number of professionals have came up with certain principles that act as a platform for defining the rule of law. In this regard, it is worth mentioning that in 1885, Albert Venn Dicey, a law professor at the Oxford University in the U.K., suggested that the English British constitution was based on a number of principles, which acted as a guiding framework towards development of a supreme constitution body. According to the professor, the two supporting principles pertaining to constitutionalism were (i) ‘Sovereignty of the parliament’ and (ii) ‘the rule of law’1. Dicey held a strong viewpoint towards the rule of law, and suggested that discretionary powers of the ruling parties must not be considered while framing the rule of law, since it would lead to arbitration. Dicey also laid a strong emphasis to the fact that the rule of law was dominated by the sovereignty of parliament, and hence it needs to be properly adhered in order to ensure institutional morality along with constitutional democracy. However, in the contemporary era, the British parliament has been observed as undergoing major changes, owing to which, the decisions pertaining to the rule of law have shifted over to the courts, which are now being considered as the supreme judiciary authority. Hence, the paper is aimed towards highlighting the nature of the rule of law and would further discuss the roles and positions of the same, in association with the British parliament2. Underlying Values in the Rule of Law The principles supporting constitutionalism suggested by Dicey, asserted his views regarding the rule of law. According to Dicey, the rule of law is based on the views associated with restriction on the use of discretionary powers, upholding equality and the constitutional law based on the “judicial decisions that assessed the right of private persons in particular cases brought before the courts”3. Contrary to the views placed by Dicey, a number of scholars, theorists and critics gave differentiated views. In 1928, William Robson claimed that Dicey misinterpreted the rule of law pertaining to the French and English judiciary bodies, and was unable to identify the role of judiciary officials in determination of the rule of law. Professor W. Ivor Jenning, in his book ‘The law and the Constitution’, further pointed that Dicey consulted with several theorists and preferred collectivism prior to publishing his views, hence, his claims were supported by political views and upholding constitutional relations. Several years down the line, one of the greatest British judges, Tom Bingham, came up with a number of elements associated with the rule of law that define the roles pertaining to the rule of law4. Roles of the Rule of Law The rule of law, as defined by Bingham, suggests, “Everyone within the state, irrespective of public or private, must be bound and entitled to enjoy the benefits of the laws that have been publically designed, taking effect in future and publically administered in the courts”. In this regard, Bingham formulated the roles of rule of law encompass functions of ‘legality’, ‘certainty’, ‘equality’ and ‘access to justice and rights’ that underplayed the rule of law defined previously by Dicey5. Legality One of the prominent roles underlying the rule of law is legality, which suggests that everyone existing within the national boundaries governed by British legislation must respect the law. In this regard, it is worth mentioning that in the previously defined cases of rule of law, legality was a missing factor that was later asserted as an important role to be played by the judiciary bodies as well as public towards ensuring morality of the rule of law. Legality is also concerned with obligation of the rule of law towards the accomplishment of two features, wherein, firstly, ‘the law must be followed’, and secondly, ‘the public officials must act within the powers that has been conferred to them’, which would further allow the decisions taken by the officials to be legalized and incorporated within the legislative framework. In this regard, the rule of law plays the role of incorporating legality within the constitutional system of the UK, which further requires the public to maintain strict adherence with the public laws and further defines the scope to which, the officials can exercise their judiciary powers. In this regard, it is noteworthy that since the British Constitution is facing changes with time, there must be a certain degree of use of discretionary power by the judiciary authorities, which must be limited within the scope of legal framework and must not be incorporate with arbitration in any manner6. Certainty Certainty is considered as another important factor associated with the rule of law that must be accomplished in order to limit the exercising of powers by public officials and ensuring a moral governance structure. In this regard, the principles underlying the rule of law, as proposed by Dicey, suggested that the law must be predictable as well as certain in nature. Notably, certainty was one of the factors suggested by Dicey through his principles; however, he neglected the role of rule of law towards ensuring fairness in decision-making. In this regard, it is worth mentioning that fair warning is an essential aspect of the rule of law, and Dicey neglected the same since he criticized the idea of official discretion7. Dicey’s viewpoints concerning certainty carried an instrumental value since they enabled the public as well as officials to determine their future roles in advance. Contradictorily, legal certainty was found as surrounded by substantive fairness, since certainty led to compulsory punishments that could not be exercised on someone who did not carry any idea to the breach of the law. Hence, legal certainty can be considered as an important role encompassing the rule of law, wherein, there must exist a certain degree of flexibility that shall provide a space for amendments in the existing rules, apart from retaining certainty as well8. Equality With due consideration to the underlying principles associated with the rule of law as proposed by Dicey, Bingham considered equality as one of the prominent roles pertaining to the rule of war. In this regard, it is important to note that ‘no person can be exempted from the law, whether rich or poor and are within the equal reach of law’s implementation’. However, Dicey’s views on equality were somewhat suppressed by the responses made by others, who claimed that the notion of equality was restricted to the content of the law, rather than its application as well as enforcement. Dicey’s views hence portrayed the belief that the laws pertaining to the British legislation must not support arbitration; however, some of the laws themselves were designed in a manner that fostered inequality based on gender and castes, and hence were avoided to some extent. Furthermore, the aforementioned statement is supported by the opinions made by Lady Hale and Lord Hoffman, who suggested that equality acts as a building block towards ensuring an effective democratic structure9. Access to Justice and Rights Another prominent feature outlined as part of the rule of law, which acts as a basis for determining the role of rule of law, is its appropriate access to justice and rights. The role requires proper accessibility to courts and other judiciary bodies towards ensuring effective enforcement of the rights. Moreover, Bingham emphasized on the fact that the rule of law must ensure that people within constitutional boundaries are able to derive benefits from the laws and natural justice systems, which is taken into consideration at the time of decision-making. In addition, the rule of law must be unbiased in its decision-making as well as independence and confidentiality must be extended to the highest possible extent. Moreover, a fair trial must be incorporated once a person arrives at the court, which would ensure appropriate decision-making and promote the use of fair authoritative powers by the court10. Nature of the Rule of Law The Rule of Law, although earlier manifested by way of Dicey’s hierarchy principles, were later implemented within the British constitutional framework with the help of judicial review and actions taken by the public officials. Although, prior to the fall of the early twentieth century, the courts discarded control of discretionary powers pertaining to decision-making, later the courts decided to direct the powers to the hands of public officials, based on the three ‘grounds of judicial review’ associated with the rule of law. In this regard, it is worth mentioning that the decision-making authority shifted to the hands of the public officials, thereby changing the position of Rule of Law in the UK constitutional system11. Hence, there is a need to emphasize on the ‘three grounds of judicial reviews’ as stated henceforth. Legality Legality required the public officials engaged in utilization of judiciary powers to act as per powers allocated to them and restrict unlawful decision-making. The courts, prior to shifting the decision-making powers to the officials, also ensured that the officials must consider ‘relevant considerations’, which would enable a successful implementation and abidance of the rule of law. Moreover, emphasis must be laid on the fact that the courts acted as a protector of the rule of law, since they were associated with defining the job roles and authoritative limitations pertaining to the officials, which further suggested that the powers were restricted to the courts12. Procedural Propriety Procedural Propriety is observed as another ground of judicial review, which requires the court as well as public officials associated with decision-making to be unbiased and ensure the claimants of a fair hearing, prior to restricting their interests. One of the most important aspects associated with the rule of law is the “right not to be condemned unheard”, which prioritizes the need to comply with the rule of law by the parliament and is further marked by procedural protection. In this regard, the courts associated with transfer of judiciary powers to the hands of the public officials have emphasized on the need to incorporate a fair decision making process, even in case there does not exist any scope of opportunity to resist himself/herself from punishment13. Irrationality or Unreasonableness Irrationality and unreasonableness are considered as important elements to be considered in the rule of law, which suggest that the rule of law must be fostered by way of developing decisions in a rational and an unbiased manner. In situations, wherein, the fundamental rights face considerable challenges, the courts take pertinent decisions focusing on deploying high level of care and ensuring that legality is maintained in the course of decision-making. Moreover, there is a need to emphasize that irrationality and unreasonableness can result in unjust decision-making, thereby, depriving claimants from their basic rights. This ground of judicial review is in direct relation to access to justice and rights, and hence enhances the position of the rule of law within the British constitutional framework14. Replacing Parliamentary Sovereignty with Rule of Law In case there does not exist any specific constitutional source pertaining to decision-making, it is worth mentioning that the parliamentary sovereignty is entirely replaceable with the rule of law. Moreover, there is a need to emphasize that the rule of law can act as a ‘primary constitutional principle’, in case of abolishing judicial reviews. Additionally, the courts, while acting as a prime judiciary power, can challenge the rule of law, thereby discarding the public officials from their authoritative powers. Henceforth, it cannot be claimed that government in the contemporary democracy is able to infringe the restrictions pertaining to the rule of law15. Conclusion The study provides an understanding of the roles and position held by the rule of law in British parliament. The study further elongates the nature of rule of law and the changing nature of the rule of law from the perspective of Dicey’s principles to the shifting of discretionary powers to the hands of courts. Moreover, the study clarifies the fact that the parliamentary sovereignty can be replaced with the rule of law, and hence it can be claimed that the rule of law holds a prominent position in the British parliamentary framework. Annotated Bibliography Gordon, M. Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy. Bloomsbury Publishing, London, 2015. With respect to the UK Parliament, this book elucidates the ‘status of the doctrine of the parliamentary sovereignty’ within the constitution existing in the nation. Parliamentary sovereignty in the nation has been a major source of contest based on power and authority and has observed a decline in the authoritative powers further. Hence, the book emphasizes the importance of the doctrine of parliamentary sovereignty in the UK and its influence on the rule of law existing within its national boundaries. Beale, A. Essential Constitutional Law. Cavendish Publishing, New York, 1997. This book is associated with providing a comprehensive knowledge and understanding to the rule of law and the laws framed by the constitution of the UK, which play an important role in highlighting the factors associated with constitutional powers. The book further provides an insightful understanding to the various administrative as well as constitutional laws framed by the UK parliament and its cumulative impacts on the Rule of Law. Visser, M. Constitutional Review in Europe: A Comparative Analysis. Bloomsbury Publishing, London, 2013. This book provides a detailed understanding of the UK constitution and its significance in highlighting the roles and responsibilities to be performed in association with the rule of law. The book intends to signify the importance of constitutional frameworks, especially in the context of the UK, wherein the constitution is associated with ensuring basic rights of people and deregulating the powers influenced by authoritative and judiciary level personnel. The book further elongates the raison dêtre and composition existing within the constitutional courts and provides a detailed understanding to the role of non-judiciary players in upholding the UK’s constitution. Bradley, A., Ewing, K. & Knight, C. Constitutional and Administrative Law. Pearson Education Limited, Harlow, 2014. The book presents a detailed knowledge and understanding of the public law existing in the UK and position of rule of law with respect to the UK parliament. In this regard, it is worth mentioning that the book outlines a sophisticated knowledge of the principles associated with UK’s constitutional laws, apart from highlighting the existing regulatory and dominancy relationships underlying the government and common public. Dicey, A. V. Introduction to the Study of the Law of the Constitution. Oxford University Press, Oxford, 1914. The book authored by Dicey, A.V., provides an introduction of the UK parliament and the laws associated with constitutional framework existing within the nation. The book further elaborates the hierarchy of principle as proposed by Dicey, which supports the fact that the authoritative powers must not be retained by the topmost authorities and that the constitutional laws are a consequence of the decisions pertaining to the public. Moreover, the principles framed by Dicey, as mentioned in the book, provides due consideration to the importance of rule of law that must be adhered by everyone and decisions associated with the same rests with the UK’s constitution. Gosalbo-Bono, R. ‘The significance of the rule of law’. University Of Pittsburgh Law Review, Vol. 72, 2010, pp. 229-360. A thorough understanding of the scholarly article provides an in-depth understanding to the importance of the Rule of Law, in context of constitutions applied to the nations. The paper further highlights the role of the UK government in emphasizing the development of a rule of law that supports public views and respects the constitution of the nation. Moreover, the article outlines the various principles associated with the rule of law prevailing in the nations, such as restrictions of use of arbitrary powers in defining the rule of law and application of the rule of law on all towards ensuring restriction of discrimination, amongst others. Jowell, J. The Changing Constitution. Oxford University Press, Oxford, 2015. Based on the historical British political framework, this book intends to provide an insightful knowledge of the changing political scenarios and constitutional norms underlying the UK. Furthermore, the book aims at clarifying the stages of development underlying the constitution of the UK and further emphasizes discussion of the debates pertaining to the nation’s constitutional framework. Moreover, the book describes the role of changing constitutions of the UK and further emphasizes on the need to assess the role of rule of law in association with the constitutional laws. Turpin, C. & Tomkins, A. British Government and the Constitution: Text and Materials. Cambridge University Press, U.K., 2011. The book aims at providing an in-depth assessment of the constitutional developments within the UK’s political framework and further attempts to highlight the case laws that illuminate on the roles and responsibilities of the Supreme Court and the UK parliament with respect to the rule of law. Moreover, the book delivers profound knowledge of the British constitution and the changes undergoing its constitution that play an important role in determining the position of the rule of law within the nation. In addition, the book also lays strong emphasis on the contemporary constitutional laws and further presents knowledge extracted from within the parliamentary sources that define the role and position of the rule of law in the UK. Jowell, J. & Oliver, D. The Changing Constitution. OUP Oxford, U.K., 2011. ‘The changing constitution’ by Jowell & Oliver is one of those contemporary books that highlight the rule of law in the constantly changing constitution of the UK. The book stresses on the ‘rule of law and its underlying values’ associated with the hierarchy of principles as suggested by Dicey that further intends to emphasize the role of changing constitution in diminishing the impact of Dicey’s hierarchy structure. Moreover, the book provides an understanding of the discussions pertaining to the authority of the courts in enforcing rule of law in the nation, which is considered as the eventual factor to define the role and position of rule of law in the UK. Jowell, J. ‘The rule of law and its underlying values.’ Introduction, pp. 11-34. The scholarly article by Jowell aims to highlight the factors associated with the development of a successive understanding of the rule of law and the legislation of the UK. Moreover, the article intends to provide a detailed understanding of the rule of law proposed by Dicey, Horwitz and Thompson. The article hence stresses on the fact that the rule of law, as proposed by Dicey, has underwent massive deconstructions, owing to which, the decision making authority and powers pertaining to determination of the rule of law has shifted over to the courts, who are now evolving as the prime decision-making authority within the UK’s constitutional framework. Clark, M. L. ‘Advice and Consent vs. Silence and Dissent? The Contrasting Roles of the Legislature in U.S. and U.K. Judicial Appointment.’ Louisiana Law Review, Vol. 71, No. 2, 2011, pp. 451-502. The article aims at developing a comprehensive understanding of the role of advice and consent in developing the rule of law as part of the UK constitution. Moreover, the article provides an understanding of the judiciary appointments as well as the impact of judiciary decision making and transfer to authority to Supreme courts. Vick, D. W. ‘The human rights act and the British constitution.’ Texas International Law Journal, Vol. 37, 2002, pp. 329-372. The article is based on the development of a pertinent understanding of the constitutional development and progression in the UK and how the same is associated with safeguarding the rights of the individual. Moreover, the article provides a justification to the role of rule of law, which is above all, and further stresses on the role of rule of law in protecting the people of the UK. Tamir, M. ‘Public law as a whole: the case of selective enforcement and racial profiling.’ Constitutional Law, Administrative Law and Judicial Review, 2006, pp. 1-70. The article lays strong emphasis to the constitutional and public laws underlying the UK’s political framework and its association with the rule of law. Moreover, the article elaborates judicial reviews pertaining to the enforcement of discretion and provides an understanding for the changes undergoing the UK’s constitutional framework. Bogdanor, V. ‘The sovereignty of parliament or the rule of law? Magna Carta Lecture, 2006, pp. 1-24. The article emphasizes providing an in-depth understanding to the dominion of the parliament in framing laws and further provides a platform for discussing the controversies associated with parliamentary independence in framing decisions and influencing the rule of law as placed within the constitutional amendments. Oliver, D. & Drewry, G. The Law and the Parliament. Cambridge University Press, U.K., 1998. The Law and the Parliament are the most prominent books associated with law that provides an understanding of the debates pertaining to constantly altering British constitution and further highlights the differences existing between the rule of law and European high courts and other judiciary bodies. Furthermore, the book relatively suggests the judicial framework based on which, the legal advice is obtained by the parliament to devise appropriate laws that govern the UK parliament. Additionally, the book emphasizes the roles and responsibilities of lawyers, judges and other professionals associated with law in acting on the decisions framed by the courts, apart from stating the role and position of the rule of law. References Beale, A. Essential Constitutional Law. Cavendish Publishing, New York, 1997. Bogdanor, V. ‘The sovereignty of parliament or the rule of law? Magna Carta Lecture, 2006, pp. 1-24. Bradley, A., Ewing, K. & Knight, C. Constitutional and Administrative Law. Pearson Education Limited, Harlow, 2014. Clark, M. L. ‘Advice and Consent vs. Silence and Dissent? The Contrasting Roles of the Legislature in U.S. and U.K. Judicial Appointment.’ Louisiana Law Review, Vol. 71, No. 2, 2011, pp. 451-502. Dicey, A. V. Introduction to the Study of the Law of the Constitution. Oxford University Press, Oxford, 1914. Gordon, M. Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy. Bloomsbury Publishing, London, 2015. Gosalbo-Bono, R. ‘The significance of the rule of law’. University Of Pittsburgh Law Review, Vol. 72, 2010, pp. 229-360. Jowell, J. & Oliver, D. The Changing Constitution. OUP Oxford, U.K., 2011. Jowell, J. ‘The rule of law and its underlying values.’ Introduction, pp. 11-34. Jowell, J. The Changing Constitution. Oxford University Press, Oxford, 2015. Oliver, D. & Drewry, G. The Law and the Parliament. Cambridge University Press, U.K., 1998. Tamir, M. ‘Public law as a whole: the case of selective enforcement and racial profiling.’ Constitutional Law, Administrative Law and Judicial Review, 2006, pp. 1-70. Turpin, C. & Tomkins, A. British Government and the Constitution: Text and Materials. Cambridge University Press, U.K., 2011. Vick, D. W. ‘The human rights act and the British constitution.’ Texas International Law Journal, Vol. 37, 2002, pp. 329-372. Visser, M. Constitutional Review in Europe: A Comparative Analysis. Bloomsbury Publishing, London, 2013. Read More