What is the UK Constitution? | The Constitution Unit - UCL - London's Global University
Britain's lack of a 'written' constitution can be explained by its history. constructing new state institutions and defining in detail their relations with each other given the combined impact of Europe, devolution, the Courts, and human rights). The coming into force of the Human Rights Act (HRA) in , giving it with a British Bill of Rights that would alter the relationship between the UK . constitutional democracies to fail to provide 'equal protection of the. Introductions When I teach UK constitutional law to my students we often discuss the relationship between UK parliamentary sovereignty and the rule of law Rejection of human rights as a fundamental part of the Rule of Law.
The question of the value of the ECtHR must also be distinguished from the question of its legitimacy, which has generated a significant amount of scholarship in recent years.
Human rights and the UK constitution (or, why turkeys don’t vote for Christmas)
It might even be argued that the judgment actually has no impact in such circumstances. Considering the judgment from the perspective of value provides a more detailed picture.
The individual applicant has had the opportunity to have his or her claim determined by a court that is independent of national political pressures. While the judgment may have provided no advancement in human rights law at the national level, it may have implications for the future acts of other contracting states, particularly if the margin of appreciation was engaged. And confirmation from an international court that national law is in accordance with the ECHR has a special unique value in itself.
However, despite the importance of the question, estimating value where there is no obvious monetary value is notoriously difficult.
Instead, existing scholarship concerning the actual and potential value of international law — in particular, international human rights law — is utilized to assemble a value framework.
While all of the different types of value that international human rights law and courts might have are rarely considered together, many authors have tested one or two types of value in their research, and from this, three broad categories of value can be identified. In the following paragraphs, these are separated into levels. First, there is value identified at the individual level where the ECtHR has an impact on the individual.
Second, there is value at the global level where the ECtHR operates as a setter of minimum standards or strives to achieve solutions to particular global problems. Third, there is a value at the national level where the ECtHR has relevance for national law, policy or practice or the operation of national institutions. We owe it to the victims of State violence, and of domestic violence, to the victims of human trafficking and those subjected to extraordinary rendition, to people languishing in inhuman prisons, and many others, to ensure that we maintain a strong and independent human rights court for the whole of Europe.UK constitution (part 1)
Second, the ECtHR grants to the disenfranchised and those marginalized and pos sibly even excluded from mainstream society an opportunity to have their human rights claims considered by a specialist court, independent of national political pressures at minimal cost, albeit with considerable delay. All countries, having received the message transmitted by the creation and widespread adoption of a treaty, are arguably more likely to improve their practices or at least less likely to worsen them than they would otherwise have been.
Human rights in the United Kingdom - Wikipedia
Laurence Helfer and Anne-Marie Slaughter conclude that states committed to the rule of law at the national level are more law abiding at the international level.
Conversely, states wavering on their commitment to the rule of law at the national level are likely to display difficulties with the rule of law at the international level, indicating to other contracting states that something is going wrong: Accustomed to self-imposed constitutional constraints at home, constraints enforced by an independent judiciary, they are more likely to accept the constraints of international law as enforced by an international or supranational tribunal.
This is an important function of the ECtHR, which might not otherwise occur. Such is the volume of the literature, that it is helpful to break it down into two overarching types of value.
Here, the claim is that its mere existence is a disincentive for national institutions, particularly governments, to act incompatibly with the ECHR. Where such incompatible acts occur, the ECtHR can hold the national institutions to account and prompt a reversal or modification to ensure compatibility.
3. Human Rights and the UK Constitution - Law Trove
Both types of value are explained in more detail in the following sections. First, the existence of the ECtHR and its jurisprudence can act as a strong disincentive where states are contemplating a possible breach of ECHR rights. It has been argued that states may be prompted by a judgment to improve existing laws, policies and procedures in order to comply with the ECHR. Or the jurisprudence of the Court might encourage the adoption of entirely new laws, policies and procedures.
As above, such values can be realized as a result of a judgment against that particular contracting state or another contracting state. The potential of international courts as agents of change is the key finding of Alter in her book The New Terrain of International Law: ICs [International courts] are new political actors on the domestic and international stage.
Their international nature allows ICs to circumvent domestic legal and political barriers and to create legal change across borders. Other core principles of the British Constitution are often thought to include the rule of law, the separation of government into executive, legislative, and judicial branches, and the existence of a unitary state, meaning ultimate power is held by 'the centre' - the sovereign Westminster Parliament.
The British Constitution is derived from a number of sources. Statutes are laws passed by Parliament and are generally the highest form of law. Conventions are unwritten practices which have developed over time and regulate the business of governing. Common law is law developed by the courts and judges through cases.
The UK is also subject to international law. Finally, because the British Constitution cannot be found in any single document, politicians and lawyers have relied on constitutional authorities to locate and understand the constitution.
An uncodified constitution creates two problems. To start with, the Northern Ireland Actthe Scotland Act and the Government of Wales Act all require the devolved legislatures to comply with Convention rights.
- Human rights in the United Kingdom
- Luke McDonagh: What Future for the Rule of Law and Human Rights in the New Populist Environment?
- What is the UK Constitution?
Furthermore, any moves in the UK to uproot the Convention rights would limit the ability of the UK government to object if countries such as Russia, Turkey or Serbia did the same.
In general, it would be difficult and arguably undesirable for a new Bill of Rights to cut off UK law from the influence of Strasbourg, or to de-incorporate Convention rights. However, such an extended Bill of Rights would obviously extend the judicial role in protecting individual rights, rather than reining it in as many critics of the HRA would like. However, it is unclear how such proposals would alter the status quo in any meaningful way.
In general, it is difficult to identify reforms which would clearly improve the existing state of UK human rights law. In light of this analysis, and given the relatively smooth functioning of the HRA thus far, it remains open to question whether replacing the HRA with a Bill of Rights would improve UK law for the better.