Explain how this is achieved and why it is especially important and controversial in the British constitution.

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  • Created by: Jennifer
  • Created on: 27-04-15 22:27

 

The protection of fundamental human rights and the upholding of the rule of law should be a principle function of any democratic state's legal system[1].  The role of the courts in society is not static; it is in a continuous process of change and transition[2]. Historically the courts were viewed as a dispute resolution institution which was entrusted with the task of “declaring” the law, however, it is now recognised that the courts have a greater constitutional role[3]. The rule of law, as proposed by Dicey, is a fundamental principle which allows Britain to function democratic without tyranny. In the absences of a Bill of rights, Britain employs other mechanism to ensure individuals human rights and civil liberties are upheld. This essay will assess the role of the courts in regards to human right and the rule of law, whilst also contextualising the constitutional significances of this role.

The role of the courts is especially important in Britain for the reason that, unlike other nations, Britain has an unwritten constitution.  A constitution, amongst other things, declares the countries supreme law[4]. All other laws and all the institution of a state are subordinate to the written constitution, which is intended to be an enduring statement of fundamental principles[5], Britain employ an unwritten constitution thus already creating controversy as to where and what the British constitution is, and, where it can be found.  In the absence of a Bill of Rights, individuals human are protected by the courts, parliament and the democratic process, including public support and opinion[6].Dicey distinguished the British method from other countries by stating that our constitution was not the source but the consequence of right of individual, as developed by the common law courts[7].

 

The courts in constitutional cases is very specific. As Britain operates under the principle of the separation of powers and parliamentary supremacy it is especially important that the court act within their powers.  Constitutional judges however must have a must have a preference for the rule of law. All courts must respect the position of legislation as being the highest form of law in Britain under the doctrine in parliamentary supremacy. The common law, however, allows the courts to “discover” law. Thus, the courts cannot question acts of parliament and common law subordinate to the will parliament. Nevertheless, in spite of this the courts must be guardians of the rule of law in their application and interpretation of statue as we will see in the Waddington v Miah (1974)[8].

 

Dicey principle of the rule of law has no one definition and can be interpreted in various ways. It is generally understand as a “preference for, and maintenance of, social order by law as opposed to anarchy or warfare”[9]. The principle is also m referred to in the preamble to Universal Declaration of human rights 1948 “it is essential if man is not to…

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