Introduction Flashcards
What type of constitution does Britain has?
An unwritten constitution
What is a constitution?
A set of rules which details a country’s system of government.
What does a constitution does?
Sets out broad principles concerning who makes the law and how, and allocates power between the main institution of the state- government, parliament and the judiciary
What are the main institutions of the state?
Government, parliament and the judiciary
In what context does the English Legal System operate?
In the context of a constitution
What type of constitution does Britain has?
An unwritten constitution
When can a constitution could have been written?
After a major political change such as revolution or securing independence from a colonial power.
Sources of Britain’s constitution?
Acts of Parliament, judicial decisions and conventions
Are conventions law?
No, they are not law but are long established traditions which tend to be followed; social rules that people follow.
Example of a convention?
The queen does not refuse to give her consent at Acts of Parliament
Are conventions enforced by the courts?
No, they are not enforced by the courts as they are not law.
3 basic principles underlying in the British constitution?
- Seperation of powers
- Supremacy of the parliament
- The rule of law
Who was Montesquieu?
A 18th century french philosopher
What did Montesquieu said concerning to the separation of powers?
The power of the state can be divided into 3 types; Executive, legislative and judicial.
Into what types can the states power be divided?
- Executive (government and it’s servant; police and civil servants)
- Legislative (parliament)
- Judicial (exercised by judges)
Who are the ‘executives’?
Government and its servants (police and civil servants)
According to Montesquieu, what should be done to the 3 types of powers?
They should not be concentrated within the hands of one person as this would give them absolute control
Why should there be a separation of powers?
So as one person cannot have absolute control.
Other name of ‘supremacy of the parliament’?
Parliamentary Sovereignty
What does parliamentary sovereignty means?
Parliament is the highest source of the English Law
According to the rules of parliamentary sovereignty, what should therefore happend?
If laws has been passed according to the rules of parliamentary procedure, it must be applied by the courts.
What did legal philosopher Dicey explained?
‘According to the principle of parliamentary sovereignty, parliament has the right to make or unmake any law and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of parliament’
This signifies that whatever the law, the courts will be obliged to uphold them even if there might be a public outcry, and the law will be valid.
Why will have the courts obliged to uphold laws made by parliament?
Because according to the rules of parliamentary sovereignty and because the parliament unlike the judiciary is democratically elected, and therefore have the upper hand when making the laws that every citizen have to live by.
Why does the parliament have an upper hand in making the law?
Because the parliament is democratically elected.
What if parliament passed an Act stating that all newborn boys be killed?
There would be an enormous public outcry but still, the law would be valid
How can the rights of people be protected?
By incorporating what is known as a Bill of Rights
What does a bill of rights contains?
The statement of the basic rights which citizens can expect to have protected from the state interference.
How can a bill of rights be?
In the form of a written constitution or a separate document.
How the job a bill of rights is done in many countries?
By incorporating into the national law the European Convention on Human Rights.
What is the European Convention on Human Rights?
An international treaty which was agreed after the Second World War.
What does the treaty of the European Convention of Human Rights seeks to do?
It seeks to protect basic human rights such as freedom of expression, of religion and of movement.
What can you say about a Bill of Rights and other laws?
A Bill of Rights takes precedence over other laws and the courts are able to refuse to apply legislation which infringes any of the rights protected by it?
How can the court able to refuse to apply legislation?
By incorporating the Bill of Rights, thus rejecting legislation which infringes with it.
What can happen if the laws set in a Bill of Rights infringes with local law?
The courts have the rights to set aside and refuse to apply any legislation infringing any of the rights protected by it.
When was the European Convention of Human Rights incorporated into the English law?
In October 2000
Does the Human Rights Act 1998 takes over the English Law?
No, it requires that wherever possible, legislation should be interpreted inline with the principles of the conventio, but it does not allow the courts to override statutes that are incompatible with it, nor does it prevent parliament from making laws that are in conflict with it.
What does section 19 of the Human Rights Act 1998 states?
Whenever a new legislation is made, a government minister must make a statement before the second reading of the bill in parliament saying whether the bill is compatible with the convention, or even if they are not, the government wishes to proceed with the bill anyway.
