Protection of the Constitution

The British constitution – “the collection of rules which establish and regulate or govern the government” – has shown itself over centuries to be extraordinarily dynamic and flexible, with the capacity to evolve in the light of changes in circumstances and in society. There are many who would argue that it is this very flexibility which has allowed the United Kingdom to avoid the kind of upheavals which have forced other countries to return to the constitutional drawing board.

 It is both a strength and a potential weakness of the British constitution that, almost uniquely for an advanced democracy, it is not all set down in writing. There can be little question that the raft of constitutional legislation including the Devolution Acts, the incorporation of the European Convention on Human Rights into British law and the registration of political parties would have been impossible under the laborious systems required to amend the written constitutions of many other countries. The risk, however, is that a Government with a secure majority in the House of Commons, even if based on the votes of a minority of the electorate, could in principle bring about controversial and ill-considered changes to the constitution without the need to secure consensus support for them. It could force them through the second chamber by use of Parliament Act procedures if necessary. Similar concerns could arise in respect of legislation that might represent a breach of human or civil rights. As Professor Sir William Wade succinctly put it, “One safeguard conspicuous by its absence from the constitution is the entrenchment of fundamental rights”.

The open nature of the unwritten constitution relies on those in positions of authority operating within a web of understandings and conventions as to what is and is not permissible. As Gladstone wrote over a century ago, the British constitution “presumes, more boldly than any other, the good faith of those who work it”.

 Given those circumstances, one of the most important functions of the reformed second chamber should be to act as a ‘constitutional long-stop’, ensuring that changes are not made to the constitution without full and open debate and an awareness of the consequences. This is one of the classic functions of a second chamber and one the House of Lords has on occasion played in the past.

 

TEXT 7 THE RULE OF LAW

 

The concepts of the rule of law and the separation of powers are associated with the liberal notion of “constitutionalism”. Hunt describes the notion of constitutionalism thus:

“In any democratic system there are certain transcendental values that which enjoy a “constitutional” status, in the sense that they embody fundamental ideas or aspirations which democracy itself presupposes and which therefore cut across the political programmes of particular governments ... the bare minimum that is required of a commitment to constitutionalism is a rejection of the instrumentalist conception of law which sees it as a mere tool to be used by governments in order to achieve their political goals.”

Fuller identifies features necessarily associated with the idea of law such as openness, clarity and coherence that give a moral quality to a state. The rule of law is therefore a set of moral and political values. They support democracy but are not necessarily connected with democracy, being important whatever the complexion of the government.

The ideas of the rule of law and the separation of powers are deeply embedded in European political culture. Aristotle (384-322 BC) pronounced that it is better for the law to rule than for any of the citizens to rule. The rule of law was described by the thirteenth century jurist Bracton in terms that “the King should be under no man but under God and the Law because the Law makes him King”, and has been said to comprise “the government of laws and not of men”. Art. 16 of the Declaration of the Rights of Man (1789) states that “a society where rights are not secured or the separation of powers established has no constitution”. In X Ltd v. Morgan Grampian Publishers Ltd [1990], Lord Bridge said “the maintenance of the rule of law is in every way as important in a free society as the democratic franchise”.

The mythology of the rule of law is basic to English political culture. It goes back to the Anglo-Saxon notion of a compact between the ruler and the ruled under which obedience to the king was conditional upon the king respecting the law. Magna Carta (1215) although no longer in force symbolises this, notably in the principle of due process in independent courts and, in the subject's right to refuse financial support to a king who violates the law. The ideals of Magna Carta have been widely exported. In particular they form a strong element of the US constitution from whence they permeate back into UK law.

The eighteenth-century constitution was dominated by the mythology of the rule of law and the separation of powers. The theory of the “balanced” or “harmonious” constitution divided power between the three elements of monarchy, aristocracy (House of Lords) and democracy (to a limited extent, the House of Commons). The constitution was regarded as a delicately balanced machine held in place by the rule of law; as George III (1738-1820) put it, “the most beautiful balance ever framed”. For example, the monarch could make law only with the consent of both Houses but could appoint and dismiss the government and dissolve Parliament. The Crown however needed parliamentary support since financial power depended on the Commons. The rule of law also protected individual rights imagined as being grounded in ancient common law tradition. Unlike the case in France, there was no doctrine that State necessity could override the ordinary law.

LANGUAGE PRACTICE AND COMPREHENSION CHECK:

TASK I a) Form nouns from the following verbs:

to describe, to require, to reject, to achieve, to identify, to clarify, to pronounce, to declare, to state, to maintain, to obey, to refuse,  to violate, to export, to regard,                                          to appoint, to imagine

b) Which of them are used in the text? Use the rest in your own sentences to explain the importance of the rule of law.

TASK II      Use the following verbs, suggest some other to discuss the views expressed in the text,

· Hunt describes…

· Fuller identifies…

· Aristotle pronounced…

· Bracton …

· Lord Bridge said…

· As George III put it…

 

TASK III    a) Compare the following definitions of the rule of law:

A).    BLACK’S LAW DICTIONARY:

A legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. Called a “rule”, because in doubtful or unforeseen cases it is a guide or norm for their decision. The rule of law, sometimes called “the supremacy of law”, provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application.

 

B).    JOWELL “THE RULE OF LAW TODAY”:

First, it is a principle of institutional morality. As such it guides all forms of law-making and law-enforcement. In particular, it suggests that legal certainty and procedural protections are fundamental requirements of good governance. These requirements are not unqualified. But they are qualified only by the fact that they may be overridden in the interest of other administrative virtues (such as responsive decision-making).

Secondly, the rule of law requires the provision of a system for identifying rights and liabilities and for redressing grievances, and thus helps to dissuade people from resorting to self-help.

 

C). The rule of law is developed from the writings of the nineteenth-century writer Dicey.

According to Dicey, the rule of law had three elements. Had three elements. First, that there should be no sanction without breach, meaning that nobody should be punished by the state unless they had broken a law. Secondly, that one law should govern everyone, including both ordinary citizens and state officials. Thirdly, that the rights of the individual were not secured by a written constitution, but by the decisions of judges in ordinary law.

b) Do they emphasise the same elements?

TASK IV Use the verbs in brackets in their PRESENT, PAST PARTICIPLE or GERUND forms:

The rule of law is both a political and moral idea, since it affects the way the law is (develop) and (apply). It concerns ideas of regularity, access to the courts, fair procedure and (honour) expectations. For example, a governmental practice of constantly (change) the law could be (analyse) in “rule of law” terms as (induce) instability.

Governmental decisions, and decisions made by courts, are subject the so-(call) “principles of natural justice”. There are elementary principles of fair procedure (involve) a right to fair hearing before an unbiased tribunal. The courts have also (develop) various presumptions which they use when (interpret) statutes. For example, powers which attempt to prevent government decisions from (be challenge) in the courts are (construe) strictly with a view to (uphold) the principle of equality before the law although in the last resort the courts will give way to a clear expression of government policy (contain) in a statute.

 

TASK V      PRE-READING DISCUSSION:

a)  Explain the connection between such concepts as the rule of law and disobedience to the law.

b) Read the text and say whether you and the author think alike.

The rule of law also means that a person has a moral duty to obey even a bad law and that legal rights cannot be overridden even for the public good. In X Ltd. v. Morgan-Grampian Ltd, Lord Bridge said that “to contend that the individual litigant ... has a right of "conscientious objection" which entitles him to set himself above the law is a doctrine which directly undermines the rule of law and is wholly unacceptable in a democratic society”. The Hobbesian view that any government is better than chaos supports this, since we cannot pick and choose which laws we should obey without destroying the very idea of law.

On the other hand it could be argued that a liberal concept of law should have room for the notion that a strongly held individual moral belief is a defence at least in cases where evil intention is a requirement of guilt. Indeed it could be argued that law which is so evil as to violate the basic values of the community is not a law at all, being contrary to the rule of law in its strong sense. This argument raises philosophical issues that were used by UK judges against Hitler Nazi Laws in the Nuremburg War Crimes Tribunal which followed the Second World War. The Nuremburg trials were based upon the assumption that some of the laws of Nazi Germany were not valid laws as they were repugnant to the basic standards of morality accepted by all civilised nations. On a more everyday level conscientious objection might influence a jury to acquit someone who breaks a law for a good reason. A jury can acquit an accused without giving reasons and cannot be punished for its verdict.

TASK VI |Use negative prefixes to form the words with the opposite meanings: moral, legal, accepted, directly, to value, to use, valid, democratic, personal

 

TASK VII   Make up pairs with the opposite meanings for the following words and expressions:

Rights and …              

Public or …      

Followed or … 

Chaos or …                     

Contrary to or…                 

Crime and …                

Better or …

Guilt or …

To acquit or …

Wholly or …

War and …

To break a law or to…

TASK VIII a) Read the text.

b) Comment on, agree or disagree with major arguments expressed.

c) Find examples to illustrate some of the arguments and statements.

d) Does the rule of law have the same meanings in your legal system?

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