Public Law

Public Law

Constitutionalism is the organisation of power within a government to

prevent the over-centralization, and possible abuse of state power.

Hence, by doing so, upholding the fundamental civil rights of the

public. Such beliefs may be manifested within a written document-a

constitution, which aims to enact these beliefs by outlining certain

terms which the government formed must adhere to. Such terms may

address the distribution of power within a government by specifying

the organs of the government and their respective roles. Basic

rule-making procedures, procedures to amend the document itself and

most importantly, fundamental civil rights, will also be expressed

within it.

Although the British have no codified constitution, as described

above, they claim to have a constituion compiled of many statutes.

These include: the Habeus Corpeus Act 1679; Bill of Rights 1689; Act

of Settlement 1701; European Communities Act 1972 and Human Rights Act

1998, to name but a few. Whether these suffice and the British

actually have a sense of constitutionalism is the essence of this

question.

Dicey originally emphasised the need for constraints on the wide

discretionary powers of government, in his ‘Rule of Law’ doctrine, to

prevent it’s abuse, claiming “wherever there is discretion there is

arbitariness”. Locke further developed this theory, suggesting that

the legislative (rule-making) and executive (rule-applying) powers of

a government should be placed in separate hands as there may be “too

great temptation…to exempt themselves from obedience to the laws…and

suit the law…to their own private advantage”, resulting in an

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is not possible, they must issue a ‘declaration of incompatibility’ in

relation to the legislation. This just places political pressure upon

the government to amend the act, as it is can scar their international

reputation. Yet the act fails to guarantee civil liberties from

infringement by the government, as shown by the Terrorism Act 2002,

which removes every man’s basic right to a fair trial (habeous

corpeus). On the other hand, if a person’s human rights are declared

to be infringed by the courts, they know have the right to appeal to

the European Court of Human Rights in Strasbourg. This can be very

damaging to Britain’s political reputation, but this path is not

accessible to all for it is a very expensive process and it is only

enforceable if Britain regards EC decisions as supreme-which is very

doubtful.