Law Making

The Rule of Law

Objectives
• Explain what is meant by Britain having an unwritten constitution.

• Explain separation of powers.

• Explain the supremacy of Parliament.

• Explain what is meant by the rule of law.

• Give examples of breaches of the rule of law.

• Critically evaluate the arguments for and against a written constitution.

The Rule of Law
• Britain – only Western democracy to have an unwritten constitution.

• What is an unwritten constitution?

• Our constitution is not found in a specific document – but we do have a

constitution from:

Rules about who governs, and the powers they have and how that power is
passed or transferred.
The Rule of Law

Areas/ Sources of our constitution include:

• Acts of Parliament

• Judicial decisions

• Conventions
The Rule of Law

3 basic principles of the British constitution are :

1. The separation of powers.

2. The supremacy of Parliament.

3. The Rule of Law.

The Separation of Powers
State power can be divided into 3 types
(Montesquieu, French Philosopher 18th century) :

1. Executive – Government
2. Legislative – Parliament
3. Judicial – judges

• Each power should be carried out by different bodies – why?

• Does our system operate according to the principle of separation of powers?

The Supremacy of Parliament
• Parliamentary sovereignty - Parliament highest source of law.

• No one Parliament binds another.

• Britain - No Bill of Rights to over ride Parliament.

• Dicey –’Parliament has under the English Constitution, the right to make or
unmake any law whatever, and, further, that no person or body is recognised
by the law of England as having a right to override or set aside the legislation
of parliament’.
The Supremacy of Parliament
• Human Rights Act 1998 – European Convention not superior to
Parliament.

• Effects of Sections 3 4 Human Rights Act 1998 on Parliamentary

sovereignty.

• The effect of E.U. membership on Parliamentary sovereignty.

• Changes to the constitution –Scottish Parliament, Northern Ireland

Assembly, Welsh Assembly.
The Rule of Law
Dicey – 19th century, 3 elements:

1. No sanction without breach – no one should be punished

unless they have broken a law;

2. One law should govern everyone;

3. Rights of individuals secure by decisions of judges.
The Rule of Law
Breaches of rule of law

• Extraordinary rendition – treatment of suspected terrorists.

Constitutional Reform Act 2005

• S 1 – ‘the Act does not .. affect … the existing constitutional

principle of the rule of law’.
 Modern day interpretations/ examples
of the rule of law

• John Hemming MP
• Abu Qatada
• Lord Bingham • Belmarsh detainees
• Joseph Raz • Black Spider Memos case
• The Constitutional Reform Act
2005
A Written Constitution?
Arguments for:

• Make things clearer

• Accessible for citizens
• Greater protection of rights and liberties.

Arguments against:

• Difficult to change
• Unwritten constitution part of our heritage
• Unwritten constitution allows flexibility.
Useful Websites

Abu Qatada
http://rightsinfo.org/stories/terror/
5th February 2016
http://rightsinfo.org/whats-going-on-wit
h-the-british-bill-of-rights
/
Binyam Mohammed:
http://news.bbc.co.uk/1/hi/programmes/ne
wsnight/7870826.stm