Lord Borrie Statement, British Constitution and Constitutional Theory - Essay Example

PUBLIC LAW Introduction As the suggests public law is the part of the law and order that deals with the legal relationship between the government and general public. It also deals with the individuals who have direct concern with the society. There are four aspects of public law. Those aspects are: constitutional law, administrative law, tax law and criminal law (Martin, 2003). Along with these four there is another one, which is called as procedural law. There are certain mandatory rules prevail in public law. In contrast to public law there is private law that deals with the relationship between individuals. There is asymmetry and inequality can be seen in the relations of public law, that is the rights of the individuals are decided by the government bodies – both local and central. However, as per the law of doctrine the authorities too need to act within the boundaries of law. It is the government’s duty as well to obey and respect the law. For example a general public, who is unhappy with any decision of the government authority, can seek judicial review. Apart from judicial review general public can challenge the legality of decision made by the government bodies through two other methods. Those are: complaints procedures and ombudsman schemes. Lord Borrie Statement In this essay the discussion will revolve around the Parliament and the human rights. The main base of the discussion is upon the famous statement made by Lord Borrie, which says that "...while historically the courts have sought to carry out the will of Parliament, in the field of human rights Parliament will carry out the will of the courts". With this statement Lord Borrie tried to say that though Parliament is the supreme law-making body in the country, it also can legislate on any kind of subject matter (Elliot & Thomas, 2011). The carry out of legislation is solely on the grounds of human rights. The statement also says that like how the court carries out the will of Parliament that is the law made by the Parliament, the Parliament also has to carry out the order of the court is there is any. There is no rule that no Parliament can get restricted by the predecessor or can restrict the power of future parliament. Though there is rule no one, including the court of law, has the right to question the Act of Parliament there are certain constraints that need to be followed so that Parliament also act within the boundaries of law. This act comes under the parliament sovereignty. However, the exercising of unauthorized and oppressive power can be tried under the constitutional rule of law. British Constitution and Constitutional Theory There is one common question that arises – What are the things that people are referring to when they talk about the constitution? If the constitution is defined in a particular format it is easier to understand. For example, there is clearly written or codified constitution prevailing in the United States that clearly sets out the limits of the presidential government. However, in the United Kingdom the things are little complicated (Fabbrini, 2005). The constitution in the UK had risen due to historical development and it has never been formulized in a written or coded format. This does not mean that UK does not have a constitution. People often think that, which a wrong impression that they possess. There might not be a written constitution in Britain in the form of a single document titled “The Constitution” – but it does not mean that they do not have one. The truth is the UK does have a constitution even though it is not in written format (Berry & Hargreaves, 2007). At a simple level it can be said that the British constitution is often referred as an unwritten constitution. Though many of the sources of the British constitution are being documented and written most of the parts of the British constitution are uncoded. Whether it is written or unwritten, in practice a constitution has the power to define the limit of the Government and administration in a nation State. In short it can be stated that a country runs on the way that is set out by the constitution and Britain is no exception to that. There are three aspects that are generally defined in any constitution and the British constitution also has them. Those aspects are as follows: 1. The way of balancing the power between the governing bodies or institutions of the nation State. 2. The powers and limits, exercised by these institution or governing bodies, are imposed in order to safeguard the freedom and rights of the individuals. 3. The individual rights and freedom in the nation State are protected by the extent of the constitution. According to the “separation of powers” theory there are three institutional powers in the British constitution. Those are: the executive – Government that runs the country; the legislature – Parliament, who is the law-making institution and the judiciary – the adjudicators of dispute. Though there are three institutional powers in the constitution Parliament is identified as the supreme law-making body by the constitutional theorists (Kent, 2001). The theory of parliamentary sovereignty states that the Parliament can make or eradicate any law that it wants. However, as far as human rights is concerned like how the Parliament has the power to make or eradicate any law there should be provision that Parliament should be tried if there is any challenge by an individual made to any decision of Parliament and it should also obey the court of law. A 19th century theorist Albert Venn Dicey had developed an additional theory called the rule of law. This theory made law an important entity, which imposes a check on the arbitrary exercise of power by the Government. It also stresses that there is no one who is above the law and hence ensuring that everyone gets a fair trial before the court of law. The conventions in the rule of law ensured that the Parliament does not have any rights use its power of law-making any unauthorized manner. Constitutions Public law is basically a broader term. Instead of public law many people prefer to talk more about constitutional law, which is concerned with certain ground rules that determines the power of the government and fundamental rights of individual people (Kaczorowsky, 2008). Another law that people talk more instead of public law is the administrative law, which deals with the detailed rules that the government needs to comply with. This is the distinction that makes sense in the countries where the constitution is available in the written and coded format. In these countries the constitutional law is primarily about the application and meaning of the constitutional text. However, in the UK as there is no written constitution the thin line between the constitutional and administrative law is difficult to locate and it sounds somewhat artificial. The constitution of the UK had never been coded but there are many aspects where the UK constitution is consistent with what had been generally said about constitution. There are three vertical branches of the central government, namely legislature, executive and judiciary, where the power has been vertically divided along with the power distribution in the horizontal sections like European, UK, devolved nation and local (Horspool, 2006). This provision has been made in order to hold the government or parliament accountable both politically and legally. The people of the nation of the State are said to possess both constitutional and human rights and in this way the fundamental principles of constitution or rule of law are recognized. The consensus-based legitimacy in the UK is arranged by the democratic institution in the form of UK Parliament. However, the ones that do not have the consensus-based legitimacy can be replaced by the Parliament if it wishes to do so (Archer, 2008). The constitution gives the House the power to do so, which would regarded as acceptable clause in the constitution. However, the Parliament should not use the power in an unauthorized manner and that should not hamper the basic human rights in any way. Case Study There were immeasurable geopolitical consequences when Al-Qaeda terrorist executed their plan in September 11, 2001 (popularly known as 9/11 incident) in the most famous world Trade Center in New York. Around 3000 people get killed in that disastrous accident. The most obvious step that the US and UK government took was to invade Afghanistan and uproot the Taliban-led government in the country, which was supporting Al-Qaeda. In the domestic front both the governments took other drastic steps as well. The US government had set up the controversial detention camp in the US military camp established in Guantanamo Bay, Cuba. The enemy combatants were held in these camps and no charge had been filed against them and neither were they convicted for any offense. They did not receive any form of recognizable due process. These captives were facing torture named waterboarding, which is a practice of simulated drowning. However, the domestic response of the UK was somewhat different from that of USA, which was in some respect was no less draconian. The center of attraction of the domestic response in the UK was the formulation of Anti-terrorism, Crime and Security Act 2001. This Act had dealt with a variety of matters but there concern here is something different – something in particular (Papadopoulos, 2010). After the 9/11 incident there was a perception in the UK government that the security of the country is majorly threatened by the foreign Islamic extremists. But that did not let the government to jeopardize the basic human rights – even though he is a terrorist. Summary From the discussion it can be concluded that the constitution of the UK is messy and idiosyncratic. It possesses both strengths and weaknesses. From the above discussion it was evident that there was no one in the constitutional reform committee who can design and write the constitution on a blank white paper (Gargani, 2007). But this is also true that the constitutions that were written in the past, which are systematic and coded, are not perfect either. Each of the constitutions has their own complications and difficulties. This should be kept in mind while studying the UK’s constitutional arrangements and parliamentary affairs. In many literatures this has been mentioned as either merely eccentric or genuinely inadequate. References Archer, Clive (2008). The European Union. Volume 21 of Global institutions series. Taylor & Francis. p. 82. ISBN 978-0-415-37012-7. Berry, E. and Hargreaves, S. (2007). European Union law (2nd ed.). Oxford University Press. p. 60. ISBN 978-0-19-928244-9. Elliot, M. and Thomas, R (2011). Public Law (1st ed.). Oxford: Oxford University Press. ISBN 0199237104. Fabbrini, S. (2005). Democracy and federalism in the European Union and the United States: exploring post-national governance. Routledge. p. 4. ISBN 978-0-415-33392-4. Gargani, Giuseppe (2007). "Intellectual property rights: criminal sanctions to fight piracy and counterfeiting". European Parliament. Retrieved 30 June 2007. Horspool, Margot (2006). European Union law. Butterworths core text series (4th ed.). 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