Chapter 3 - Constitutional Principles Flashcards
Parliamentary Sovereignty
(name three basic elements)
Central principle of UK Constitution
Principle that the highest source of law in the UK legal system is an Act of Parliament.
Three basic elements:
(1) Parliament has the right to make or unmake any law whatsoever;
(2) No person or body is recognised as having the right to override or set aside an Act of Parliament; and
(3) No Parliament can bind its successors.
Can parliament redefine itself?
Parliament can redefine and change itself by passing an Act.
e.g:
Parliament Acts 1911-1949: Provide an alternative method to enact an Act of Parliament that requires the consent of the House of Commons only.
Parliament and International Law
Ratification of an international treaty has no effect in domestic law, but remains binding on UK as a matter of international law.
For an international treaty to have domestic effect it must be incorporated into domestic law through an Act of Parliament.
Extra-Territoriality of Acts of Parliament
Parliament can enact legislation that has effect beyond the boundaries of the UK.
Eg: Sexual Offenses Act 2003 - If a UK resident commits an act abroad that would have been an offence under the Act (rape), they could still be charged in the UK.
Retrospective Legislation
Occasionally parliament can legislate retrospectively - Change how law applied in the past. Actions which could have been legal when carried out have since become illegal.
Raises problems for Rule of Law.
Negative aspect of parliamentary sovereignty
No one can set aside Acts of Parliament for any reason. Even if Parliament enacts legislation that is unethical or unreasonable.
EXAM TIP: Be wary of questions that imply that a court has the power to strike down an Act of Parliament - They cannot.
This is softened by:
(a) The People - Members of House of Commons are elected, they will be unpopular if they pass outrageous legislation and suffer at next election.
(b) The Courts - Courts interpret legislation. Courts will interpret legislation with the presumption that Parliament’s intention was in accordance with the principles of Rule of Law.
Enrolled Bill Rule
Notion that no-one can set aside an Act of Parliament - Courts do not question the validity of legislation.
If an Act has been passed by HoC and HoL and is granted royal assent, courts will give effect to that legislation.
Name refers to the “parliamentary roll” which, in theory, courts would consult to find the legislation written. If it is on the roll, it is an enactment passed by parliament.
Also means that courts do not consider the parliamentary process by which the Act of Parliament was enacted. Procedures of the HoC / HoL are matters for them, not the courts (PARLIAMENTARY PRIVILEGE).
Express / Implied Repeal
No Parliament can bind its successors.
Express Repeal - Parliament repeals a previous Act of Parliament by providing which Act of Parliament or sections are no longer law.
Implied Repeal - Parliament has not made its intentions clear, but newer legislation deals with the same subject matter as older legislation and the two conflict. In such a case, courts will give effect to the later Act.
European Communities Act 1972 (ECA 1972)
The legislation by which EU law was made supreme in the UK.
Made EU law a source of law in the UK legal system. Any laws made by the EU that were automatically binding on member states automatically had effect in the UK.
All laws needed to be interpreted according to EU law and would be valid law only if compatible with EU law.
Supremacy of EU Law
“Disapplication” of Acts of Parliament that were found to conflict with EU law by the courts.
Rationale that it was Parliament’s voluntary decision to have its sovereignty limited by ECA 1972.
Separation of Powers
Principle of Separation of Powers: Executive, judiciary, and legislature are separate in their function and personelle.
Institutions somewhat function as checks and balances against each other.
Legislature (separation of powers)
Creates the laws to govern the country, this is fulfilled by Parliament.
Is “bicameral”, meaning it has two chambers. House of Commons is elected, House of Lords is unelected.
Parliament also scrutinizes the government.
Other legislatures exist in UK with limited legislative power: Scottish & Welsh Parliaments, Northern Ireland Assembly.
Executive (separation of powers)
Responsible for implementing the law and governing according to the law as enacted by Parliament.
Devolved governments responsible for specific areas of policy: Scotland, Wales, North Ireland.
Local councils exist as regional form of government across UK.
Judiciary (separation of powers)
System of courts and tribunals that interpret the law and resolve legal disputes.
Supreme court is the highest court in the UK.
Able to determine the respective powers of different bodies within the constitution.
Judicial Review - Ability to challenge the legality of executive action in the courts. Acts as a check on the executive through this process.
Rule of Law (name six principles)
Requires the government to act only under lawful authority for its actions. Prevents tyrannical and arbitrary ruling from those in power.
“The rule of law is the principle that the law applies equally to everyone, that no one is above the law, and, in particular, that the Government must comply with the law and that power is not exercised arbitrarily. It requires that all persons have access to courts that are independent. These courts must resolve disputes objectively in accordance with legal principles. Laws should be accessible, intelligible, clear, and predictable.” (attorney general speech, 2023)
(1) No Punishment Without Breach of Law - No one should be punished unless they broke a specific law, and punishment should be according to the law. Preference for law to determine actions of government rather than allowing discretionary authority to the decisionmaker (Prevents inconsistent / unfair decision-making);
(2) No Person is Above the Law - Nobody above law no matter status/rank/position etc.;
(3) Law should be accessible, intelligible, clear, predictable;
(4) Law must provide a method for resolving civil disputes without requiring disproportionate cost or delay;
(5) Procedures provided by the state to resolve disputes should be fair;
(6) Courts should be able to review the implementation of the other principles.
OTHER CONSIDERATIONS:
Is not necessarily absolute - technically can be departed from as a result of Parliamentary Sovereignty.
Parliamentary Privilege - Limitation to Rule of Law. Exemption given to Members of HoC / HoL. Statements made in Parliament cannot be challenged in courts.
Retrospective Legislation - Retrospective legislation appears to fall foul of rule of law as individuals could not have regulated their behavior according to the law if it didn’t exist.
Fundamental Rights - Rights that exist at common law and exist to give effect to the Rule of Law.
