Public Law

Drawing upon the constitutional and democratic models you have studied, explain the range and effectiveness of attempts to constrain arbitrary power.

Arbitrary power refers to power that is absolute. Its is the type of power that is unrestricted and unquestioned. It is usually used to describe a monarchy with no constitutional limitations and a lack of separation of power. There are many examples of rulers who had arbitrary power such as Louis XVI of France. Throughout history, however, absolute power in the hands of a single monarchy has proved to be unpopular with the citizens and resulted in many revolutions.

Many philosophers of the seventeenth century believed that certain people had power given to them by God and therefore it is wholly justified and furthermore shouldn’t be challenged by anyone[1]. This is called the doctrine of the Divine Right of Kings. Sir Robert Filmer was an important supporter of such theories as shown in his work in Patriarcha[2]. However not everyone believed that this was what constituted a just government. One such opposer of this view was John Locke. Locke, in criticism of Filmer’s Patriarcha, wrote his two Treatises of Government[3].

There are many examples of government that are constructed in such a way that arbitrary power is not attainable. The Athenian democracy is a good example of an early system that attempts to give power to the citizens of a country. In David Held’s book, Models of Democracy, he describes how the governmental structure was set up. At the heart of the Athenian democracy ideology is the idea that the highest honour in life was to represent your state in the political sphere. The government was made up of a large assembly of 6000 and from that an executive of 500. To control the amount of power a single person had the president only held office for a day[4].

The French Revolution brought significant change in the amount of power that the monarchy was allowed to have. For a long time King Louis XVI retained absolute power with certain privileges for the aristocracy and the clergy.[5] The French citizens wanted to have more powers in the form of a democratic a legislature separate from the monarchy. At the end of the revolution the citizens had successfully overthrown the King and a new constitution was written in the form of the French Civil Code. This outlines principles of who should rule France, and did not allow rights based solely on birth,[6] which similar to what Held says about Athenian democracy; “citizens faced no obstacles to involvement in public affairs based on rank or wealth.[7]”

In modern UK politics there are non-governmental organisations in place to prevent unjust power. The Parliamentary Ombudsman for example, described by Richard Kirkham as offering “alternative redress against acts of government maladministration.”[8] In addition to this there are parliamentary procedures that ensure government ministers act properly and in the best interest of their people.

In conclusion, there have been many attempts in the past to control arbitrary power. This has come mainly in the form of constitutional reform when the country is under the control of a absolute monarch and in the form of structures to prevent the rise of a tyrant. Athenian democracy is the inspiration for much of western political philosophy.

Evaluate whether individual rights can contend with profound inequalities. Use at least one example in your answer.

Many countries have adopted legislation to protect the rights of individuals. Good examples are the South African Constitution and the United States Constitution. These legal documents are designed to protect the rights of individuals and help to reduce inequalities. This essay will discuss theses two documents in particular to evaluate the extent to which individual rights can contend with inequalities in a state. Equality among individuals is a political ideal that Held says is a central to western philosophy that has its roots in ancient Athens.[9]

The United States constitution has 27 amendments that go with the original constitution. The first 10 of these are known as the Bill of Rights. A lot of the US Constitution and in particular the Bill of Rights reflects the ideas of John Locke, who was a supporter of the protection of property rights. The sixth amendment gives individuals the right to a “speedy and public trial.” This is a fundamental right that ensures all individuals are treated fairly in the eyes of the law. The speedy aspect of this amendment, a principle known as habeas corpus, means that the state cannot detain a prisoner indefinitely. The need for a trial to be public ensures that it is conducted correctly as it is viewable by anyone. These two significant factors in the treatment of prisoners means that trials will be conducted fairly and without discrimination. The right to a “speedy and public trial” is a vital tool against inequality. This right uses the principle of the rule of law, which states that all people are equal in the eyes of the law and ensures that this remains true.

Chapter 2 of the South African Constitution is the South African Bill of Rights. Due to the past inequalities found in South Africa during the Apartheid, there is a whole section, section 9, that gives equality to all individuals. The constitution takes a strong approach on the rule of law, shown in the first clause of section 9: “Everyone is equal before the law.”

It is possible however that some inequalities cannot possibly be combated against through the use of rights. Income inequality for example will always exist in society. The income inequality can cause many problems within a society, with the poorer classes often resorting to crime. It can be said then that, when a child is born into a poor family they will automatically not receive the same opportunities as a richer counterpart. The right to an education is a significant right that gives citizens an opportunity to further themselves, however this is not always taken advantage of by many people. In addition to the right to an education there are many rights that actively try to create opportunities for people that would otherwise not get them.

In conclusion, individual rights can play a major part in reducing the profound inequalities found in a society without such rights. Individual rights work to give everyone a legal standing to be treated fairly and equally, regardless of who they are. Individual rights however can never create a state where every person is treated exactly equally, however they can minimise the difference effectively.

“In any country debating whether or not to adopt a national Bill of Rights, one of the most controversial issues is whether the Bill of Rights should include economic and social rights. This is hardly surprising: the debate is an outcrop of often deeply submerged but sincerely held differences between reasonable people about the most fundamental questions of political philosophy, including the nature of liberty and the appropriate role of the State in preventing inequality” (“A Bill of Rights for the UK?”, Report of the Joint Committee on Human Rights, July 2008, Ch. 5, p. 43)

Drawing on the political philosophy examined in the module this term, and your reading of the Joint Committee of Human Rights Report “A Bill of Rights for the UK?”, write a briefing note giving your opinion on whether economic and social rights should be justiciable if the UK adopted a Bill of Rights. (1000 words)

Economic and social have been a highly controversial subject in recent years[10]. There are examples of modern constitutions that have given legal provisions to economic and social rights, for example the 1996 South African constitution gives rights to housing and healthcare. However the debate continues in many countries, including the UK, whether or not they should be law.

The joint committee on human rights reports on the the issue of whether economic and social rights should be given the force of law in the courts. They analyse the advantages and disadvantages of granting justiciability to economic and social rights.

The report starts by accepting that the economic and social rights are “a core element of international human rights” however they do point out that human rights NGOs were “deeply pessimistic about the prospects of arriving at any political consensus.[11]” This shows that the idea of economic and social rights are believed to be a good in theory, however, there are political aspects that are as obstacles that appear to be too great to overcome.

The report give evidence that public opinion is in favour of a Bill of Rights that include economic and social rights. For example, its states that 88% agree with hospital treatment being received within a reasonable time should be a protected right[12].

The report, in paragraph 154, acknowledges that certain economic and social rights are indeed protected by legislation, however they tend to have “gaps or inadequacies” therefore meaning the “domestic legal system could could not…provide redress.” This could mean that a possible way of incorporating economic and social rights to law is by changing current law to fill the “gaps” and “inadequacies”

The government takes the position that economic and social rights should play a part in public policy making however they cannot be “enforceable legal rights.” The reasons for not being suitable for the courts is the vague terms used, such as the right to an adequate standard of living. The government also gave the reason that the introduction of economic and social right in a justiciable form would “involve a significant shift from parliament to the judiciary in making decisions about public spending and, at least implicitly, levels of taxation.” This issue is echoed by Karl Klare when he says that if in South Africa, where economic and social rights are legally protected, that they have “compromised the supremacy of parliament”[13]. The report does acknowledge that the “South African approach” shows that with significant “safeguards”, some economic and social rights could be protected without compromising parliament. The Prime Minister has also been mentions as saying that they will never be “off-limits in a debate”.

The report concludes that there are three possible futures for economic and social rights. The first is total inclusion and justiciability within a Bill of Rights. This options is however problematic as is poses “a risk that the courts will interfere with legislative judgements” and that this would be too undemocratic.

The second option is “constitutional recognition”. This is when the constitution will only contain economic and social rights as a guide to future law making. They will not be enforceable by law but act as a deceleration that the government will always act towards reaching these goals. Constitutions in India and Ireland have this set-up. The committee report suggests that in practice they will be meaningless.

The last option is a middle-path between the two previously stated. This option suggests that the economic and social rights should be given full constitutional backing and be justiciable in the courts of law. The only difference between this and the first option is that there are stringent restriction placed on the judges when making decisions. This is how the South African Constitution is praised for being so successful. The constitution states that “the state must take reasonable legislative and other measures, within its available resources….” The courts therefore have some role in the enforcement of economic and social rights but only on very rare and extreme cases will it do so. It is this option that the committee are suggesting should be seriously considered for the incorporation of economic and social rights into the Bill of Rights.

It is my opinion that the committee are taking a non-committal approach to the matter. I personally believe that economic and social rights should only be a part of public policy. They could be declared as so in a constitution but should not be justiciable. The government must constantly be considering these rights when making legislation to ensure that these rights do not get infringed. If possible certain pieces of legislation should be passed on certain individual rights that are of pressing urgency. Health care is already protected by the National Health Service Act 2006 but there could be greater provisions for housing for example.

There are cases where economic and social rights that, when seriously infringed, are acted upon. A good example of this is the Coughlan case[14] where the closing of a nursing home would cause homelessness for many vulnerable people.

To conclude, justiciable economic and social rights are desirable to have in a states constitution, however when the supremacy of the democratically elected legislature is under threat from such provisions they cannot possibly become a reality.