Critical evaluation of the relationship between the rule of law

Introduction

The UK constitution is amongst the few uncodified constitutions in the globe. Various political philosophers provide various reasons for this. However, it is worth noting that the lack of a codified constitution raises significant questions as regarding, what government institution has the ultimate power, and coexisting UK institutions undertaking the obligation of governance whilst the parliament is concerned with law marking (Lakin, 2008). Notably, power divisions enable the UK’s uncodified constitution to operate smoothly. It is significant to note that the debate on such kind of a governmental system has often raised questions regarding what should be and what is the existing relationship between the rule of law and the parliament supremacy. In this regard, this paper purposes to stress on the fact that whilst putting into consideration the UK constitution, the rule of law should be a substantive concept, which is able to provide a strong legal check on the sovereignty of parliament. For students who are seeking politics dissertation help, understanding these intricacies of the UK constitution is crucial.

Traditionally, the parliamentary sovereignty and the rule of law are linked directly to the legislator body and the judiciary respectively. Question have been raised, as to whether the rule of law is capable of providing a legal check on the sovereignty of the parliament and this thus implies that there is a significant relationship between the two. In this regard, the case that involved R (Jackson) v Attorney General [2005] 3 W.L.R. 733 (HL) purposed to provide significant issues, which questioned the legitimacy of the parliament in relation to the rule of law in Act 1949. Clearly, this was raised in the highest court of appeal then, which was the House of Lords, whereby, the parliamentary sovereignty concept and that of the rule of law were placed on a thorough test (Loveland, 2018).

First, looking at parliamentary sovereignty, it is worth noting that the parliament clearly defined its concept on its official website as a principle bestowed in the UK constitution that renders a parliament a sovereign legal authority in the United Kingdom, and as such, it can either create a law or end it. Notably, courts are in no position of overruling any of its legislations. Moreover, no parliament is also in a position of passing laws, which future parliaments cannot. The sovereignty of the parliament poses as the most vital part bestowed in the UK constitution and clearly, many philosophers have the same perception (Gee & Young, 2016). The concept of sovereignty of the parliament ensures that a significant check of activities of the parliament is kept. On the other hand, the rule of law refers to governance according with the stipulated law and thus, not arbitrarily. It poses as one of the most complicated concepts provided in the constitutional law. It is defined in three significant parts. The first is the predominance of law, the second is for the fact that every individual is equal before the eyes of the law and the last one that is concerned with the uncodified constitution, which is that constitutional code is derived from ordinary law. This then brings forth the fact that in the creation of most laws, the three definitions should be applicable. However, it is evident that problems are usually risen when issues relating to public policy are brought forth and as such, the rule of law becomes manipulated (Ahmed & Perry, 2017). For instance, as it was clearly witnessed in the case of the Belmarsh detainees, where the court confidently ruled against the detention of the terrorists, who were suspects, yet that was contrary to the provision of the Prevention of Terrorism Act 2005, which suited their needs, within a two-week period. This then implies that although the parliament has the final and supreme power, this power can still be manipulated by the rule of law, owing to the fact that it has a substantive concept, which is able to provide a strong legal check on the sovereignty of parliament. Evidently, this substantial concept poses as a political idea, which it possesses as a legal system. However, it should not be confused with some other ideas, which include democracy, human rights, or even justice equality (Williams, 2016).

More recently, various judicial supremacists, and academicians challenged the traditional parliamentary supremacy, owing to the fact that they believed that the judiciary (rule of law) is in a position of challenging and even amending parliamentary Acts, because of its strong legal check on the sovereignty of parliament. In this regard, there are certain ideas such as implicit power separations that are significant in maintaining the rule of rule in the UK, because only judicial supremacists can be allowed to pose as the vital element of check, ensuring that there is no power abuse (Grace, 2015).

Moreover, it is evident that the aforementioned first and third definitions of the rule of law, the implications brought forth by the authority of the parliament, and a discussion of separation of powers are of great significance to this paper. The Separation of Powers poses as a political theory and stresses that the government is divided into three bodies, which are the legislative, the judicial, as well as the executive bodies. Different sets of people operate them, in order to avoid tyranny or rather, power concentration within one body. However, it is clear that it is merely a theoretical concept, as the practical applications of it are different. However, there have been significant efforts towards implementing the concept more practically, wherefore, significant steps like the Supreme Court have been created, yet the distinction is still limited (Douglas‐Scott, 2016). For instance, based on the Constitutional Reform Act 2005, and the Supreme Court creation, Lord Chancellor’s post was abolished, in order to avoid overlapping of any official obligations, which would make the rule of law to be distinct whilst maintain the parliamentary sovereignty. However, the institutions were left independent, with no powers bestowed on the Supreme Court. The two institutions have clashed for many reasons. For instance, in the case of R (Jackson) v Attorney General [2005] 3 W.L.R. 733 (HL), it presented a challenge after the Hunting Act 2004 was passed. The point of concern was whether the Hunting Act held any legal legitimacy, and whether it was passed by the Parliament Act 1949 (amended from the Parliament Act 1911). It was stressed that the 1949 Act was a delegated legislation, and as such, did not have an authority of forming a new legislation (Hunting Act 2004). Notably, the issue raised in this case was to determine whether the principles of the rule of law, or of the parliamentary sovereignty prevailed (Gordon, 2015).

The case became sensitive because first, there a statute that the parliament passed and on the other hand, courts were granted the task of providing a decision whether Hunting Act 2004 entailed the existence of any legal authority at all, and this relied on the courts to regard whether the Parliament Act 1949 was valid. Not only did this concern the rule of law and parliamentary sovereignty, it was also concerned with the requirement of redefining the significance of separation of power in the UK legal system, and the strong legal check that on the sovereignty of parliament. Lord Carswell denoted that there could be implied limits regarding the utilization of Parliament Acts (Ewing, 2017).

It is significant to take note that the problem raised in the case of Jackson was that of essence, the parliament has two houses, which have the obligation of passing an Act of parliament. However, only one house purpose to pass an Act and thus, limiting the approval need of the other house (the house of the Lords). Notably, this is against the principles of a vital bicameral parliament that the British government characterized under its constitution. Of importance to note, these are some of the reasons giving the rule law a substantive concept, which is able to provide a strong legal check on the sovereignty of parliament (Ewing, 2017). It is evident that this case was not more than a constitutional ‘curio’ and as such, it is worth considering that at the time it was heard, the highest appeal court was the House of Lords, which at that time, was the judicial parliament committee. In this regard, it can be deduced that the decision could have been different had it been heard upon the establishment of the Supreme Court, owing to the fact that it could have brought forth significant inputs. Lord Philips (the first Supreme Court president) held a significantly strong opinion regarding the rule of law. As such, he purposed to express it in a given BBC documentary, and noted that the UK Supreme Court is the highest court that exists in the UK land, and this was following a question that was raised regarding the detention of the terrorists without trial. This then implies that the rule of law should be a substantive concept, which is able to provide a strong legal check on the sovereignty of parliament (Loveland, 2018).

Conclusion

Based on the provision, it is worth noting that indeed, the rule of law should be a substantive concept, which is able to provide a strong legal check on the sovereignty of parliament. This is owing to the fact that there are some parliamentary aspects (mentioned above), which the rule of law stands against, whilst providing facts, which provide a significant implication to the sovereignty of parliament.

References

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