The Famous Former Chief Justice Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Much later in England, it was said by Lord Wilberforce in the Privy Council case of Minister of Home Affairs v Fisher that, unlike an Act of Parliament, a constitution should be treated as ‘sui generis’ calling for principles of interpretation of its own, suitable to its character….without necessary acceptance of all the presumptions that are relevant to legislation of private law.

Discuss how the UK constitution should be interpreted with reference to the above.

One of the greatest issues that have appeared to have gained momentum, within the borders of the United Kingdom, is its absence of a written constitution. One reason being that, it has been realized by experts that the line between freedoms and rights is often blurred. Second, being that; citizens don’t have a codified set of rights to rely on, if and when their rights are breached. [1] However, irrespective of whether or not a state has a written constitution and a bill of rights, it must be recognized that the actual protection of individual rights, as with so much of the constitution, is explained not solely by reference to written rules. Regardless of the form in which rights are protected, in any society, it will be the democratic political process, political practice and norms of acceptable governmental conduct which, while not having the force of law, provide constitutional standards which determine the respect accorded to individual rights. Such constitutional features also establish standards against which the probity of official conduct maybe measured. It is for this reason that a true understanding of constitutions and the concept of constitutionalism requires a deeper understanding than that provided for by an analysis of the formal written rules. [2] 

However, the greatest hindrance to the carrying out of any citizen’s right could be seen as the existence of ‘Parliamentary Sovereignty’. The evolution of Parliamentary Sovereignty dates back to the glorious revolution, in 1688, where the people having realized the unlimited amount of power that the Lord Chancellor possessed, and there by his aim to rule despotically; rose in revolt. This struggle between the King and the Parliament ended in victory for the people (i.e. the representative of the people - the parliament). A constitutional monarchy was now established in England. All the power rested in the hands of people and they availed long cherished freedom. Modern rules were framed according to which the King ruled only as per the wishes and will of the people. [3] However the irony here being that, the very element, of sovereignty that was seen, or at least intended to guarantee the citizens’ rights, is the very power that now violates it.

It is important to reiterate that it is the Parliament that is the one body that stands as the people’s representative, through the House of Commons which elects its members by means of representative election. However, despite the population of the United Kingdom, being one that is multi diverse, more than 400 ministers, 62% of the total is white men. [4] Doesn’t the Rule of law, which is yet another important characteristic of the UK constitution, then cease to function?

This isn’t a principle which would be universally accepted as embraced within the rule of law. Dicey, it has been argued, gave no such substantive content to his rule of law concept. This is close to what some economists have called a ‘thin’ definition of the rule of law. On the other hand, as Geoffrey Marshall has pointed out from Dicey’s great work, in which he discusses, what would now be called ‘civil liberties’. Both the Universal Declaration of Human Rights (UDHR) and later international instruments link the protection of human rights with the rule of law, and the European Court of Human Rights has referred to the ‘notion of the rule of law from which the whole convention draws its inspiration.’ The European Commission has consistently treated democratization, the rule of law, respect for human rights and good governance as inseparably linked. [5] 

The European Union (EU) is a unique economic and political partnership, which was created in the aftermath of the Second World War, between 27 European countries that together cover much of the continent. The first steps were to foster economic cooperation: the idea being that countries that trade with one another become economically interdependent and so more likely to avoid conflict. What began as a purely economic union has evolved into an organization spanning policy areas, from development aid to environment. It is important to note that the EU is based on the rule of law: everything that it does is founded on treaties, voluntarily and democratically agreed by all member countries. [6] 

However, it is the treaty, signed in Lisbon on 13 December 2007, better known as the Treaty of Lisbon, which marked the beginning to the chain of treaties formed soon after. This treaty was the result of negotiations between EU member countries in an intergovernmental conference, in which the Commission and Parliament were also involved. The treaty was ratified by each of the EU’s 27 members. The Treaty entered into force on 1 December 2009, in accordance with its Article 6. [7] 

Quite similar to the United Nations, the European Union too has its number of institutions; among which, the Court of Justice plays a vital role, where the interpretation of a constitution belonging to its respective members is concerned. Article 19 of the Lisbon Treaty makes provision for this.

"1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.

Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law." [8] 

The Court of Justice, referred to as ‘the Court’, is the main Court of the European Union. Article 19 Treaty of the Functioning of the European Union (TFEU) makes the main provision for the composition and activities of the court. The Court has the following forms of jurisdiction: plenary jurisdiction and preliminary rulings.

Plenary Jurisdiction includes; infringement actions against member states brought under Article 258 TFEU, Article 259 TFEU etc; and, Direct actions under Articles 263 TFEU and Article 268 TFEU. While, under Preliminary rulings, Article 267 TFEU provides for references to be made by national courts to the Court of justice in cases concerning the interpretation of the treaty as well as concerning the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. [9] 

The case of Costa v Enel [10] highlights the supremacy of the EU law. Where, the European Court held that an international treaty could only be brought into effect in Italian municipal law by means of an ordinary domestic law. The Treaty of Rome created its own European legal order which was directly applicable to member States and their nationals.

Through the case of Francovich and Bonifaci v Republic of Italy (Cases C-6/90 and 9/90) [11] it would be clear that states are held liable, by the European Court of Justice, if convicted of having a constitution that isn’t compatible with the Human Rights act 1998. However, the Court of Justice makes provisions for the ‘Margin of Appreciation’ where the Human rights act 1998 is concerned. It yields a certain amount of flexibility in order to allow a country to entrench it’s constitution in keeping with national interests, traditions and circumstances. Furthermore, a minister per state is required to present a statement of compatibility which would affirm the court that his respective country’s constitution falls in line with the Human Rights act 1998. In the present case, thee courts held that the breach of Community law by the Member State had been established by a judgment of the Court. The result required by Directive 80/987 included conferring a right on employees to the guarantee of payment of their outstanding claims relating to pay.

Although, the European Court of Human Rights (ECtHR) isn’t necessarily a part of the European Union, it is made available to the members of the European Union. It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. It is only once all domestic remedies in a member state are exhausted, that the citizen concerned would have the right to make a direct appeal, to the ECtHR. Since 1998 it has sat as a full-time court; and, owing to the multitudinous judgments it has delivered over the past years, they are binding on the countries concerned and have led governments to alter their legislation and administrative practice in a wide range of areas. [12] However, considering the illimitable cases that are referred to the ECtHR, countries are greatly pressurized to make a greater attempt at solving its cases within its borders.

In any case, in spite of the countless number of laws and treaties that exist, reality is such that no country is under any sort of obligation to abide by them. The worst penalty though would be, to be ‘named and shamed’. The extent, to which such sanctions would be effective, isn’t even worth giving a thought to. This is clear evidence to prove that, international law, is nothing but a toothless remedy, as it serves no justice to citizens that come under an uncodified constitution. Not even the most vital component: the human rights act, has been entrenched. Thereby, in the case of a violation, what are the people expected to rely on? This is an outstanding example of power politics. This was quite cleverly worded by Wendy Brown, a political scientist; where she says "if rights are what historically subjugated peoples most need, rights may also be one of the cruelest social objects of desire dangled above those who lack them". [13] 

However, had the constitution been one that was codified it would be a different story all together. Take for example the constitution of the United States (USA), there is very little chance for any form of violation since the whole constitution is available in black and white, in the form of 7 Articles and 26 amendments. Unlike the bill of right of the British constitution that is a pseudonym, the US constitution has a bill of rights that’s entrenched. Moreover, instead of standing by for the judiciary to act, it is evident how US citizens have become the watch dogs of the constitution; they are aware of their rights. This is the very nature that should be adopted by the British citizens, where, they would be proactive; as it is both the duty, and the right of the citizen, to be able to hold governing personnel responsible, and demand transparency and accountability.

Therefore, it is evident; that in the triangle of concordance, finely maintained thus far by the European Union one characteristic can’t do without the other. Human rights, World Peace and development; each contribute towards maintaining that frame. Since these 3 factors are so tightly linked, quite obviously, one erroneous conduct is enough to disrupt this fine collaboration.

While it is quite apparent that interpretation of the UK law should be done in light of the EU law; what would be certainly hard to comprehend is that interpretation needs to also be done having realized that; human rights, is the foundation of the scale shared between Parliamentary Sovereignty and Rule of Law. If either one of them were to be given more priority, that would then clearly interrupt the link shared among, human rights, World Peace, and development.

Human rights promotion is the work of all levels of society; including international groups, national, state and local governments [14] . The understanding thus shared, having led towards Peace; would be the foundation stone laid towards a journey of Stability and development.