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Published: Fri, 02 Feb 2018
Constitutional authority in the uk
“Although it appears complex, the allocation of constitutional authority in the UK is actually very simple. Parliament is legally free to decide policy and to make laws. The courts ensure that the limits in the powers granted by parliament are observed; these limits now include the rights which the courts must uphold under the Human Rights Acts 1998. Thus both democracy and the rule of law happily co-exist.”
United Kingdom was traditionally adopting an unusual type of political system, given the parliament a wide range of power, including the power of legislating law and deciding policy. The parliament is in the highest position of the government. This type of government structure is uncommon in other countries. After the UK joined the European Community, the parliament’s powers are under the observation of the courts, make sure the parliament’s power are within the limits and did not overuse it, the situation is even more obvious after the Human rights Acts 1998 is adopted. The following is going to discuss the allocation of constitutional authority in UK, whether democracy and the rule of law can happily co-exist.
Parliament is legally free to decide policy and to make laws: (sovereignty of Parliament)
The UK Parliament is legally sovereign, according to Dicey, it is the sovereignty of Parliament. This legal doctrine of the legislative supremacy of Parliament is mean that the Parliament has the power to legislate without any legal limitations. This doctrine is accepted by the Courts, government and also the public. The Parliament is given the rights to make or unmake the law whenever needed, no one could able to override or to set aside the legislation that made by the Parliament. Whenever the Bill is approved by Lords and Commons, they become an Act of Parliament with the royal assent. In the case of Cheney v Conn  had proved that the Court is not willing to override the Act of Parliament. In this case, if Cheney had successfully challenged the validity of the Finance Act 1964, the supremacy of the Parliament would be denied. By this case, it shows the Act of Parliament dominate over the Court.
Strictly speaking, the doctrine of Parliamentary sovereignty is the Crown in Parliament, it is the combination of executive and legislative powers, it has been regarded as legally sovereign, therefore it can have unlimited power in statutory enactment. The Parliament is able and allowed to repeal any previous legislated statue. When there are conflicts between the law and courts, it will give priority to the most recent statute, therefore repeal is possible. In the case of Ellen Street Estates v. Minster of Health , it shows that when two measures conflict, the recently updated ad passed one will repeals the earlier one, therefore, it allows the Parliament to amend the laws which are passed by the previous Members of Parliament simply by passing another Act of Parliament.
The court ensures the limits in the powers granted by Parliament are observed:
The Courts are able to hold the government to account by a claim for judicial review. Judicial Review is a procedure that individuals can seek the court to review the legality of government decisions. Whenever the individuals think that they are affected by the unlawful administrative decisions, they can go to the High Court and seek to override it. The courts review the public decisions under three grounds; they are illegality, procedural impropriety and irrationality. These three principles are illuminated in the Council of Civil Service Unions v. Minster for the Civil Service ( AC 374) by Lord Diplock, this is also known as the CCSU case. Firstly, illegality concerns about whether the exercise of power had exceed the limits which set for it, for example, in White and Collins v. Minister of Health (  2 KB 838), if the local authority is given the power to purchase land besides park land by the statue, the purchase of the park land is unlawful. Secondly, procedural impropriety is whether the individual had been given a fair hearing in the decision-making procedure, the decision maker are required to let the people who are adversely affected by the decision to know what is declare against him so he had the opportunity to defense for the case (Ridge v. Baldwin  AC 40); and thirdly, irrationality is to test whether the decision was unreasonable or irrational, which other reasonable Minister would not decided in the same way (Associated Provincial Picture Houses v. Wednesbury Corporation  1 KB 223). Judges are engaged in the intensive review on the government’s decision making process. The judicial review has generated recognition that whenever the politicians are making decisions which would affect the individuals, they should comply with the basic standards. Besides observing the governmental decisions, the Courts have also had the ability to challenges the public decisions which made by the government. Judicial review didn’t only restrict to individuals which directly affected by the decisions, the pressure groups such as Friends of the Earth and Greenpeace are also able to apply the judicial review. Although they are not the body which directed affected, but they are acting for people who concerned about the legality of the public decisions.
Human Rights Act 1998:
After the UK has joined the European Community (EC), the European Community law has brought a great impact on the UK parliamentary sovereignty.
United Kingdom is bound by the European Convention on Human Rights (ECHR) which is enforced by the European Court of Human Rights (ECtHR) in Strasbourg since 1966. However, the terms of the ECHR were not incorporated into the domestic law until the Human Rights Act 1998 had come into force in 2000.
The situation changed when the Human Rights Act 1998 (HRA) had to be in effect in October 2000. The HRA has incorporated the ECHR which is known as Convention rights in English law into domestic law. In order to take a balance between the Parliamentary sovereignty in British’s traditional constitution and the desire to have the rights under the ECHR, Human Rights Act 1998 take the comprising format of the inclusion of the ECHR. The British courts are under the duty to implement the British laws in the way which should be compatible with the rights which stated in the ECHR. All the British laws, including the ordinary common law rules and the Acts of Parliament are required to be interpreted according to the rights granted by the ECHR. However, if the court cannot interpret Acts of Parliament to be consistent with those rights, the courts are unable to declare that the Act is unlawful, but it could issue a ‘declaration of incompatibility’ which means the Ac is not comfort with the ECHR.
Although the declaration of incompatibility will not lead to any immediate effect to the law, it might remind the government to take action on the offending Act of Parliament in order to make it compatible with the Convention rights.
Both Democracy And The Rule Of Law Happily Co-Exist?
Definition of Democracy:
“Democracy” is a word is a word originated in Greek; it is compose of two Greek words, “Demos” and “Kratos”. “Demos” is translated as “the people” and “Kratos” can be translated as “power”. Therefore, Democracy means “the powers of the people”, which the majority have the power to decide the matter in the government. Majority rule means the decision will make based on which side that had more than half of the total votes. According to the Universal Declaration of Human Rights (UDHR), it claims that the authority of the government should be based on the will of the people. Citizens’ wish shall obtain through a universal suffrage election which they are allowed to vote freely according to their preference.
There are 2 main forms of democracy; which are “direct democracy” and “representative democracy”.
Direct democracy is referring to that every citizen in the country, regardless of genders, beliefs and races, who aged over a certain age are having the rights to attend the political meetings, discuss the political issues in the meetings, votes for the issues as well as accepting the majority votes lead to passing the law in the meetings even though some of the individuals did not support. Direct democracy gives people the rights to participate in politics and encourage them to votes and show their desire, so whenever a law is passed, it is with the majority support from the citizens.
Representative Democracy is meaning that the people in the country elect the representative to express there opinion, represent them in the political meetings. In UK, it is adopting the representative democracy. The electorates are participating in the government through voting and holding the ministers to account through the Members of Parliament in the Parliament. The ministers of the government are required to be members of the House of Commons or House of parliament; while members in both of the two Houses are elected by the citizen in UK. The members of the Parliament are elected every five years and they are representing their electorate who voted for them. The MPs will discuss the issues and pass the law in the Parliament. Citizens do not have the rights to speak out their desire in the Parliament. The only way they could let the government knows their thinking is through the Members of Parliament. Since citizens are allowed to vote for people to represent them in the government every five years, so if people discovered the one they voted for is not always expressing their opinion and act for the benefits of the citizens, they would not vote for him in the next election. Therefore, during the term of office, the Members of Parliament are required to be responsible not only to their electors, but also to all of the constituents, in order to ensure to get a seat of the Parliament in the next election.
Definition Of Rule Of Law:
According to Dicey, the rule of law have three meanings, they are the absence of the arbitrariness, equality in front of the law and the general principles of the constitution.
Firstly, the absence of the arbitrariness means that the government should use known rules to govern instead of discretion. No one should be punished except they have breach of law. The rule of law ensures that there is no arbitrary powers exercise by the persons in authority. The law should lay down everything government does.
Secondly, everyone is the equal in front of the law; no one was above the law and could enjoy exclusive privileges regardless of his status or situation. People of the same country are have the duty to obey the same law, there do not have court which is especially set up for deciding the claims which made by the citizens against the officials of the state. That’s mean even you are the minister of the state, you are still required to obey to the same law and will be judged in the same court.
Thirdly, the rule of law means that the law of constitution and the rules are the consequence of the rights of the individuals which are defined as well as enforced by the courts.
The rule of law represents an orderly life within a well-organized community, instead of a lawlessness society. It expresses a fundamental principal which the government is required to conduct according to the clearly written law, any disputes in the community are settled by the judicial decision.
There is a debate about the relation of democracy and the rule of law in United Kingdom. Some argue that these 2 are conflict to each other while some said that they can happily co-exist.
Some people think that the rule of law is opposing to democracy, they cannot take place at the same time because democracy means the power of people while the rule of law means the supremacy of law. In the United Kingdom, Since the Parliament is responsible for making law, and with its superior status in the UK government, its decision are not able to be challenged by any authorities. The laws which made by the Parliament can be said with the consent of the public as they pass their rights of participating in the Parliament to the MPs which elected by them.
However, under the rule of law, which means the government, including the Parliament are under the observed of the Courts. The Courts are given the rights to judge whether the legality of action of the Parliament. The contradiction here appears.
In United Kingdom, the Queen has the rights to make the judicial appointments. The judges are appointed by the Queen after she adopted the advices from the ministers. The judges do not subject to any scrutiny or confirmation by the legislature. In this sense, the appointment is not democratic as the judges are not elected by the public. If the Courts are given power to judge the law which pass by the democratically elected parliament to be illegal, then it would cause the rule of law has the overriding power on the democracy.
On the other hand, some people argue that democracy and the rule of law can co-exist in United Kingdom. Although the Human Rights Act 1998 had come into effect in 2000, it does not affect the parliamentary sovereignty in the United Kingdom. The HRA is not designed t make the law prior over the legislation. It is intended to be compatible with the Parliamentary sovereignty and also give effective protection to the Convention rights. Even if it cannot interpret the legislation to be compatible with the Convention rights, the courts cannot turn down the legislation. The courts are not given the power to disapply any Act of Parliament unilaterally, the judicial declaration of incompatibility will no affect the enforcement or the validity of the offending legislation, and therefore it will only cause a political effect instead of a legal effect. The parliamentary sovereignty is still preserved.
To conclude, UK parliament is adopting the representative democracy which the members in the parliament are elected by the people, the MPs are responsible to make laws and policy in the UK. Parliamentary sovereignty can be displayed. Although the UK had joined the European Community and it granted the rights of overseeing the power of parliament to the courts, where judicial review take place. Even after the Human Rights Act 1998 was passed in 2000, the sovereignty of Parliament can still preserved. The purpose of the HRA is not to demolish the rights which given to the parliament, but is to counter balancing the power of the parliament, in order to prevent it make any discretionary decisions. Neither the Courts nor the Parliament had an overwhelming power over each others. Parliamentary power and the judicial power are able to survive together. Therefore, both democracy and the rule of law can happily co-exist.
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