Rule of Law within the United Kingdom Constitution - Research Paper Example

..."Even withstanding recent anti-terror and related legislation that have restricted individuals' civil liberties, the rule of law is as strong as ever within the United Kingdom constitution." The changes ushered into the British legal system ride on the crescent wave of voices and policies in the European community that seek to uphold the primacy of human rights and due process, particularly when made vulnerable by antiquated state structures and legal institutions. The clear trend has been to favor the sanctity of individual liberties over the preservation of traditionalist and vanguardist policies. As stated by O'Donnell (2004): "a truly democratic rule of law ensures political rights, civil liberties, and mechanisms of accountability which in turn affirms the political equality of all citizens and constrain political abuses of state power." (p.32) This is consistent with the idea of the Rule of Law propounded by A.V. Dicey in his book "Introduction to the Study of Law of the Constitution" (1885). Dicey posited the following propositions. Firstly, no man could be punished or lawfully interfered with by the authorities except for breaches of law. In other words, all government actions must be authorised by law. Secondly, no man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land. Thirdly, there is no need for a bill of rights because the general principle of the constitution are the result of judicial decisions determining the rights of the private person. Joseph Raz, on the other hand, espouses eight guiding principles for the rule of law. 1. All laws should be prospective, open and clear; 2. Laws should be relatively stable; 3. The making of particular laws must be guided by open, stable, clear and general rules; 4. The independence of the judiciary must be guaranteed; 5. The principles of natural justice must be observed; 6. The courts should have review powers; 7. The courts should be easily accessible; and 8. The discretion of crime prevention agencies should not be allowed to pervert the law. This paper will address the question of whether or not the Rule of Law is still applicable in the United Kingdom, given the recently passed anti-terrorism legislation. The Anti-Terrorism Act of 2001 was passed by the Parliament of the United Kingdom in November of 2001, a mere two months after the historic 9-11 attacks on the World Trade Center in New York City. Criticized by many for the undue haste in its passage, with concerns of political pressure being raised, the law in its original form contained passages that human rights groups deemed to be violative of established human rights principles. Amidst the outrage surrounding the 911 attacks, the Anti-Terror Law was heralded as a measure to combat the worldwide phenomenon of terrorism and to arrest its spread and development. Legal scholars and free speech advocates, however, unite in condemning the law for trampling constitutionally-protected liberties. There is also the possibility that the law might give rise to or at least encourage racial profiling, particularly the provisions on proscription of terrorist organizations. It might further alienate minority groups and exacerbate the political violence by radicalizing "moderate" groups. Human rights advocates scored a victory when the Law Lords ruled that a provision in the Law allowing the indefinite detention of foreign terrorist suspects was contrary to human rights principles. Lord Nicholls of Birkenhead, in his ruling, said: "Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law." This decision was reached when nine detainees lodged their appeal before the Court. However, concerns on free speech and freedom of association still remain. Notwithstanding these concerns, valid though that they may be, this paper will argue that the rule of law is still very much flourishing in the United Kingdom. While there are many reasons that could be cited, this paper will discuss a major development in British Law, specifically the Constitutional Reform Act of 2005. This paper will focus on two legal issues at the forefront of the Constitutional Reform Act of 2005 that impact greatly on the human rights project, particularly the right of a party-litigant to an impartial trial. First, how the Act strengthens judicial independence and insulates judicial appointments and decisions from the vagaries of politics; and second, how the Act strives to eliminate judicial impunity. The harmonization of these two policy goals, it is posited, is what makes for a more stable legal order in consonance with the needs and visions of the 21st century. The question raised by Fallon (1997) is significant: "Should invocations of the rule of law be dismissed as empty rhetorical appeals to an ideal whose time has passed" (p. 4) I. Strengthening Judicial Independence Under the former arrangement, judges are appointed by the Lord Chancellor, who is a member of the Cabinet and effectively the Minister of Justice. Also, the Lord Chancellor and Lords of Appeal in Ordinary (who constitute the Appellate Committee of the House of Lords or the law lords) sit as well in the House of Lords, which is part of the legislature. According to Lesley Dingle and Bradley Miller in their paper UK Constitutional Reform, (Dingle and Miller, 2004, Internet), these considerations make it difficult for judges to remain politically-impartial. Section 3 of the Act states that, "The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary." Further, the Act reduces the role of the Lord Chancellor with respect to the judiciary and no longer makes it possible for him to act as both a government minister and a judge. This is by way of complying with the due process and fair trial principles enshrined in the European Convention on Human Rights, and other international conventions. It has been said that any new legislation must always be viewed against the backdrop of its contextual realities. Hence, on the issue of judicial independence, illuminating are the questions posed by the Select Committee on the Constitution, 5th Report of Session 2005-2006: "Does it have any application to ministers who publicly ask for judges to be tough on suspected terrorists, or who threaten the courts with the prospect of amending legislation if they do not give effect to current government policy" While there are certainly these factors to take into consideration, it is clear that the principle of procedural fairness and judicial impartiality is being promoted. At best it is a landmark policy shift that will yield clear benefits to those who come to the courts of law to seek redress. At its minimum, it sets the tone for a State agenda that is willing to dismantle existing infrastructure, if need be, to recognize the primacy of civil liberties and human rights. I. Whittling down Judicial Impunity The Constitutional Reform Act of 2005 prescribes lengthy and detailed guidelines for the judicial discipline. Under Section 62, an Ombudsman will be appointed by the Queen upon recommendation by the Lord Chancellor. Section 108, on the other hand, lays down the rules for disciplining an errant judge. Before this, there has been no prescribed procedure for making complaints about the conduct of judges, although in recent years, the Lord Chancellor has in fact received many such complaints and has dealt with these in various ways, with various degrees of publicity. (Select Committee on the Constitution, 2005). The absence of a formal complaints procedure is now to be made good by conferring powers on the Judicial Appointments and Conduct Ombudsman relating to discipline and complaints against judges. (Ibid.) What this seems to suggest is that, while a party-litigant may appeal an unfavorable decision, he or she has the option of filing a complaint against a judge whom he or she perceives to have acted with grave abuse of discretion, or perhaps with such a brazen demonstration of impartiality and bias. This is consistent with Raz's principle of accessibility to the Courts, and makes governance more effective. It cannot be gainsaid that an effective legal system makes the rule of law more possible. (Alter, 2001, p. 217) While it is certainly not healthy to have judges and their decisions always vulnerable to attacks from disgruntled party-litigants, this abused can be checked by a robust and efficient grievance mechanism with clear standards or criteria on what complaints may be entertained. At the end of the day, an added layer of protection against judicial impunity for the ordinary citizen, has more benefits than drawbacks. II. Reforming the Law to Uphold the Law Though the Act has been seen as controversial at its inception, it cannot be denied that the reforms it has introduced bodes well for a more stable and more responsive legal system. Indeed, it demonstrates a more marked sensitivity to the need to uphold the basic principles that animate and underlie the mature and robust British democracy. It reinforces the notion of the Rule of Law as conceptualized by Dicey and Raz, even at this age when more importance is placed on curbing terror. It is a departure from the past, yes, but more importantly, it is a return to what truly matters - fundamental freedoms, the highest standards of fairness, and the law as a reflection of the aspirations of its citizens. REFERENCES Alter, K. (2001) Establishing the Supremacy of European Law: the Making of An International Rule of Law in Europe. Oxford University Press, New York. Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Dingle, Leslie and Bradley Miller. UK Constitutional Reform. 21 June 2004. 23 May 2006. Fallon, R. (1997) The Rule of Law as a Concept in Constitutional Discourse. Columbia Law Review, Vol. 97, No. 1. , pp. 1-56. House of Lords Select Committee on the Constitution. 5th Report of Session 2006. Constitutional Report Act 2005. Report with Evidence. 13 December 2005. Published by the Authority of the House of Lords. O'Donnell, G. (2004) Why the Rule of Law Matters. Journal of Democracy, Volume 15(4). Raz, Joseph. The Authority of Law. Oxford University Press: USA. Read More