CONSTITUTIONAL PRINCIPLES

Question 1

CONSTITUTIONAL PRINCIPLES

Answer 1

The three main
principles of the constitution are the separation of powers,
the rule of law, and parliamentary sovereignty

Question 2

3

PARLIAMENTARY SOVEREIGNTY

Answer 2

1. Parliamentary sovereignty (sometimes referred to as parliamentary supremacy) is the central principle of the UK constitution. At its simplest, it is the principle that the highest source of law in the UK’s legal system is an Act of Parliament.
2. Parliamentary sovereignty has three basic elements:
   * Parliament has the right to make or unmake any law whatsoever;
   * No person or body is recognised as having the right to override or set aside an Act of Parliament; and
   * No Parliament can bind its successors.

Question 3

Parliament Can Redefine Itself

Answer 3

It has been held that Parliament can redefine and change itself by passing an Act.

EXAMPLE
Usually, legislation must be passed by the House of Commons and the House of Lords and then receive the Royal Assent from the Monarch. However, the Parliament Acts 1911-1949 provide an alternative method to enact an Act of Parliament that requires the consent of the House of Commons only. It has been held that Acts of Parliament enacted without the consent of the House of Lords under the Parliament Acts 1911-1949 are full Acts of Parliament and of the same legal status as an Act passed in the ordinary manner.

Question 4

2

Parliament and International Law

Answer 4

1. In the UK, the ratifcation of aninternational treaty has no
   effect in the domestic law, although it remains binding on the UK as a matter of international law.
2. For an international treaty to have domestic efect, it needs to be** incorporated** into domestic law through an Act of Parliament.
   EXAMPLE
   The UK signed the European Convention on Human Rights (‘ECHR’) in 1950. Under the provisions of the treaty, the UK is obliged to maintain certain human rights standards, and a challenge alleging a breach of those standards could be brought before the European Court of Human Rights (‘ECtHR’). Yet, an allegation of a breach of the provisions of the ECHR could not be argued before UK courts, as they were not part of UK law. This changed with the enactment of the Human Rights Act 1998, which incorporated certain
   rights protected by the ECHR into UK law, and these rights can now be relied upon before UK courts.

Question 5

Extra-Territoriality ofActs of Parliament

Answer 5

Parliament can enact legislation that has efect beyond the boundaries of the UK.
EXAMPLE
Under the Sexual Offences Act 2003, if a UK resident, while abroad, commits an act, which, if it had taken place in the UK would have been an ofence under the Act, such as rape or sexual assault, they could still be charged in the UK.

Question 6

Retrospective Legislation

Answer 6

1. Usually, Parliament legislates prospectively, meaning that they change the law for the future.
2. Occasionally, Parliament can legislate retrospectively, meaning that they change how the law applies to the past.
3. This means that actions which
   could have been entirely legal when carried out have since become illegal. This raises questions that involve the rule of law

Question 7

No One Can Set Aside Acts of Parliament

Answer 7

1. This element is sometimes described as the negative aspect of parliamentary sovereignty. It means that the courts cannot set aside an Act of Parliament for any reason. If Parliament enacts legislation which is outrageous or unethical, the courts cannot intervene and overturn (or ‘strike down’) that legislation. It has been recognised by the courts that Parliament’s power extends to passing legislation which can be described as ‘unconstitutional’
2. However, this stark and extreme position is softened signifcantly by two constraints on Parliament’s powers: the people and the courts.
   a.The People
   Given that the House of Commons is elected, members of the House of Commons who pass any such outrageous legis-lation are unlikely to be popular at the next general election.
   b.The Courts
   As previously stated, a signifcant function of the courts is to interpret legislation. The courts interpret legislation on the presumption that Parliament has intended to legislate in accordance with the principles of the rule of law and so the courts might strain to interpret the legislation accordingly.

Question 8

Enrolled Bill Rule

Answer 8

1. More generally, the notion that no one can set aside an Act of Parliament has an important practical impact. Firstly, the courts do not question the validity of legislation. This is known as theEnrolled Bill Rule. If an Act has been passed by the House of Commons and the House of Lords, and has been granted the
   Royal Assent, the courts will give efect to that legislation.
2. The Enrolled Bill Rule also means that the courts **do not consider the parliamentary process **by which an Act of Parlia-ment has been enacted. If, for some reason, there has been a procedural irregularity in either the House of Commons or House of Lords when enacting the legislation, the courts will still give efect to the legislation.

Question 9

2

No Parliament Can Bind Its Successors

Answer 9

1. Express Repeal
   As no Parliament may bind its successor, any Parliament may repeal an Act of a previous Parliament, either expressly or impliedly. Naturally, an express repeal provides which Acts of Parliament or sections are no longer law.
2. Implied Repeal
   With an implied repeal, Parliament has not made its intentions clear, but newer legislation deals with the same subject matter as older legislation and the two confict. In such a case, courts will give efect to the later Act.

Question 10

EU Membership

Answer 10

1. As stated previously, the UK was a member of the EU. One
   of the fundamental principles of the legal structure of the EU
   is that EU law is supreme across all member states.
2. In the UK, this was achieved through the European Communities Act 1972 (‘ECA 1972’), which made EU law a source of law in the UK legal system.
3. Under the ECA 1972, any laws made by the EU that were automatically binding on member states automatically had efect in the UK. No further legislation was necessary.
4. Moreover, under the ECA 1972, all laws (whether made before or after enactment of the ECA 1972) needed to be interpreted according to EU law and would be valid law only if compatible with EU law.

Question 11

Supremacy of EU Law

Answer 11

When a direct confict between EU law and an Act of Par**liament emerged, the Act of Parliament that conficted with EU law was ‘disapplied’ by the courts on the ground that Parliament voluntarily accepted this limitation of sovereignty when the ECA 1972 was passed. Rationale: Because the ECA 1972 was part of UK law, the courts, when disapplying an Act of Parliament that conficted with EU law, were complying with the requirements of UK law, which was to give efect to
EU law ahead of UK law.

Question 12

Separation of Power

Answer 12

1. Legislature
2. executive
3. judiciary

Question 13

executive

Answer 13

The executive is responsible for implementing the law and
governing according to the law as enacted by Parliament and as provided for by the royal prerogative.

Question 14

3

judiciary

Answer 14

1. The judicial part of UK government is the system of courts and tribunals that interpret the law and resolve legal disputes.
2. The judiciary are also able to determine the respective powers of diferent bodies within the constitution. For example, the courts were able to decide whether the government had the power, under the royal prerogative, to notify the EU of its intention to leave the Union or whether an Act of Parliament was required.
3. The judiciary also act as a check on the executive through the process of judicial review, which allows for the legality of executive action to be challenged before the
   courts.

Question 15

RULE OF LAW

Answer 15

At its core, the rule of law requires the government to act only under lawful authority for its actions.

Question 16

No Punishment Without Breach of Law

Answer 16

One core principle of the rule of law is that no one should be
punished unless they have breached a specifc law, and their
punishment should be according to the law. This also means
that there is a strong preference for the law to determine the
actions of government rather than giving discretionary author-
ity to the decision maker.

Question 17

Parliamentary Privilege

Answer 17

**One example of some people gaining special exemptions
from the law is parliamentary privilege. This is a collection of rules which apply only to Members of the House of Commons and House of Lords. For example, statements said in Parliament cannot be challenged before the courts, meaning that there is absolute freedom of speech within Parliament.
It is an example of how the rule of law can give way to other constitutional concerns.

Question 18

Other Rule of Law Principles

Answer 18

*The law should be accessible, and so far as possible, intelligible, clear, and predictable;
*The law must provide a method for resolving civil disputes without requiring disproportionate cost or delay;
*Procedures provided by the state to resolve disputes should be fair; and
*The courts should be able to review the implementation of the other principles.

Question 19

Fundamental Rights

Answer 19

1. It has been held that at common law, there are certain rights, described as ‘fundamental rights’, which exist to give effect to the rule of law.
2. These fundamental rights include the right of access to the courts and the notion that decisions made by the government (or its agencies) need to be made fairly and comply with a basic standard of fairness.
3. It has been held that only Parliament can interfere with these fundamen-tal rights through an Act of Parliament expressly stating that these fundamental rights are to be breached. Otherwise, the courts will seek to give effect to legislation by interpreting it in a manner which complies with the rule of law and fun-damental common law rights.

Question 20

Human Rights Act 1998

Answer 20

1. In addition to fundamental rights at common law, the Human Rights Act 1998 requires that legislation should be interpret-ed in a way which respects the human rights protected by the Act.
2. If this is not possible, then the courts may make a ‘declaration of incompatibility’, which essentially is a signal to Parliament that the legislation in question does not comply with human rights.

Question 21

Judicial Review

Answer 21

Judicial review is the process by which actions or decisions of public authorities can be reviewed for their legality by the courts.