Constitution Flashcards
What is a constitution?
A set of laws and rules that govern a country
What did AV Dicey state that a constitution was?
” A constitutio consists of all rules which directly and indirectly affect the distribution and exercise of the Soverign Power in the state”
Describe the Uk’s constitution
= uncodified (collection of historical developments)
-details our system of government by defining fundemental polices that establish the procedure, powers and duties of the government and outline the rights of people and who can make and apply law
State some key constitutional events in British Histroy
1215 Magna Carta (first attempt to set out the rights and freedoms of the people and constitutional powers)
Parliament Act 1911 and 1949
European Convention of Human Rights
Human Rights Act 1998
Seperation of Powers
Rule of Law
Parliamentry Soveriegnty
Who came up with the Seperation of Powers theory?
French judge Montesquieu
What is the Seperations of Power theory?
“Government should be set up so no man need be afraid of another”
3 Branches of state:
The Executive = Government = Purpose the LAw
THe Legislative = Parliament = Create the law
The Judiciary= Judges = apply the law
State a previous example of fusion and what got rid of it
Previosuly senior judges sat in the Hosue of Lords (Legislative) however Constitutional Reform Act 2005 got rid of this fusion by creating the new Supreme court which removed the judges from the house of lords
State an example of fusion which still exisits today
Judges can create common law though this is deemed exceptable because they can feel in the gaps
e.g donoghue v Stevenson = Neighbour principle
Who came up with Parliamentary soveriengty?
AV Dicey
What is Parliamentary Soveriengty?
1) Parliament can legislate on any subject matter
(Includes prospectively and retrospectively e.g War Crimes Act 1991
It can pass laws effecting itself e.g Parliament Acts 1911 and 1949)
2) No Parliament can bind another Parliament
(Each Parliament enjoys the same power as the previous, meaning Parliament can repeal any previous law
If Parliament create a new law that on the same subject of a previous law, the new law must be followed, this is knwn as inplied repeal)
3) Nobody can strike down an act of Parliament
No act can be challenged nor have its validity questioned
Courts cannot refuse to apply it
Any change has to come from Parliament
What limitations exist of Parliamentary Soveriengty ?
Human Rights Act 1998
(S.3 judges must strive to interpret law to be compatible with the ECHR, if not under S.4 they can issue a decleration of Incompatiabilty)
Devolution
Delegated Bodies can delegate on certain area in behalf of Parliament
Who came up with Rule of Law?
AV DIcey
What is rule of Law?
1) No punishmetn without law
there should be proper legal procedure in place that is transparent and public Knowledge
It follows that laws should not apply retrospectively
=Judical reviews allows fro government action to be challenged
e.g Collins (CPS decision not to prosecute was challenged)
helps to limit arbitary powers, though the state often writes Laws broadly to allow them to stretch it cover vast areas
2) Equality before the law
It follows that everyone is equal before the law
Exceptions:
The Crown is not Bound (though is bound under S.12 Hunting Act 2004)
Children under 10 are “Doli incapax”
MPs have parliamentary privedge when in Parilament, cannot get prosecuted for anything they say
3) Indepedent Judiciary to uphold our rights
the rights of the individual are protected by the rulling of judges, therefore they must be indepedent from the executve and legislature
-Judges are appointed by an indepdent body (Judical Appointment Commission) created by Constitutional Reform Act 2005
-Judicial salary controlled by an indepedent body
-Judges can issue S.3 and S.4 HRA 1998
What happened in Miller (No2) 2019?
SC ruled that Boris Johnson prorogation of Parliament was unlawful so Parliament went back to working the next day.
