CONSTITUTIONAL PRINCIPLES Flashcards
CONSTITUTIONAL PRINCIPLES
The three main
principles of the constitution are the separation of powers,
the rule of law, and parliamentary sovereignty
PARLIAMENTARY SOVEREIGNTY
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.
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.
Parliament Can Redefine Itself
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.
Parliament and International Law
In the UK, the ratifcation of an international treaty has no
efect in the domestic law, although it remains binding on the UK as a matter of international law. 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.
Extra-Territoriality ofActs of Parliament
Parliament can enact legislation that has efect beyond the
boundaries of the UK.
EXAMPLE
Under the Sexual Ofences 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.
Retrospective Legislation
Usually, Parliament legislates prospectively, meaning that
they change the law for the future. Occasionally, Parliament
can legislate retrospectively, meaning that they change how the law applies to the past. 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
No One Can Set Aside Acts of Parliament
- 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 Parlia-
ment’s power extends to passing legislation which can be
described as ‘unconstitutional’ - 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.
Enrolled Bill Rule
- 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 the
Enrolled 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. - 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.
No Parliament Can Bind Its Successors
- 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. - 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.
EU Membership
- 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. - 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.
- 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.
- 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.
Supremacy of EU Law
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.
Separation of Power
- Legislature
- executive
- judiciary
executive
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.
judiciary
- The judicial part of UK government is the system of courts and tribunals that interpret the law and resolve legal disputes.
- The judiciary are also able to determine the respective pow-
ers 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. - 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.
RULE OF LAW
At its core, the rule of law requires the government to act only under lawful authority for its actions.
