Key principles and functions of the UK cons

Question 1

Magna carta and Bill of rights

Answer 1

⇒ Magna carta: formed independence of the church, liberties and customs of london and the right to free trial

⇒ Bill of rights [1689]: Etablished freedom of parliament, elections, and free speech in parli.

Question 2

Case law

Answer 2

⇒ Derived from common case law based on precedent ones

Question 3

Three main princples of the Uk cons.

Answer 3

⇒ Seperation of powers

⇒ Rule of law

⇒ Parlimentary soverginity

Question 4

Princ. 1: Seperation of powers- Montesqui doctorine

Answer 4

⇒Montesqui doctorine first espoused it as: Divsion of the three branches of gov: Legislative, executive and Judicary branches

⇒ M. Doctorine enforced that there should be no overlap of the functions to prevent the abuse of power

Functions of the branches:
(John branche)
⇒Legislative: Creates laws

⇒Executive: Implements laws and makes public policy

⇒ Judiciary: Enforce legisl.

Question 5

The application of S.O.P in the UK

Answer 5

It is a partial seperation, due to westminster system of parliament:

⇒ Shift in Uk from pure seperation post CRA:

⇒ There is an overlap of powers between the executive and legislative branch- Both in house of commons, and exec makes decisions with the legis branch

⇒The executive branch= delegated powers by parliament to enact sec. legis.

⇒ Legsil. branch= Makes primary legis. Is sovergin

⇒Still maintains checks and balance system to regulate power

Question 6

S.O.P: Branches must comply with each other

Answer 6

Branches must comply with the other branch:
Cases:
⇒M v Homes: Executive must comply with courts

⇒Anderson: Exec cannot perform judicial functions like setting prision sentences

⇒Fire bridage union: Sect of state exceeded their delegated power by refusing to bring into force new scheme required by statue

Question 7

Function of S.O.P

Answer 7

⇒ Ensures parlimentary encountability

⇒ Prevents elective dictatorship

⇒ Regulates any attempt at arbitary use of power to maintain UK citizens rights

Question 8

Importance and challenges of S.O.P

Answer 8

Importance:
⇒Effecient promotion- Tyranny is prevented through S.O.P

⇒ Ensures parlimentary encountability

⇒ Prevents elective dictatorship

⇒ Regulates any attempt at arbitary use of power to maintain UK citizens rights

Challanges
⇒But, when the branches overlap, that can cause challenges to maintaining distinct instutions-co-operation and co-ordination is required for effective function

Debate on complete S.O.P desirability in UK:
⇒ Advocates (Lord irvine) believe that it ensures a check and balance system and prevents excessive power

⇒ Critics (i.e. bagehot) argue that some level of overlap is required for effective goverance

Question 9

Princ (2) Rule of law:Diceys elements and Function

Answer 9

Dicey element on rule of law: ⇒Everyone is equal under law, no one is superior to the other “law over arbitary power”

Ensures
⇒ Government must be under the law
⇒Judicial review: When rights are breached

Question 10

Types of Rule of law

Answer 10

⇒ Formal: Predetermined by precendent laws, to ensure that laws are clear, evenly applied and equal/ fair

⇒ Substantive: Focuses on content of law to ensure that the laws are protects rights and promotes fairness for all

Question 11

Rule of law: balance

Answer 11

Balance of ROL:
⇒ The rule of law has to be balanced when aganist other cons. values

⇒ This involves weighing the importance of the R.O.L and the other cons. and possible curtailing the R.O.L to priortise of cons.princples

Question 12

Advantages and disadvantages of the R.O.L:

Answer 12

Advantages:
⇒ stability,
⇒equality,
⇒open access to justice when needed

Disadvantages:
⇒ Critics argue that a strictly formal concept of R.O.L creates to much vices in the form of exaggerated legalism and the neglect of real world conflict

Question 13

Princple 3: Parlimentary sovergnity

Answer 13

Diceys elements of Parlimentary sovergnity:
⇒ Supermacy of parliment in the UK

This includes:
⇒ Parliaments utmost ability to enact, amend and overide laws

⇒ Preventing any one from challenging parliament even the judiciary

Question 14

Historicial context of P.S

Answer 14

⇒ Bill of rights: This influenced the P.S as it intitially limited the monrachs party and etablished P.S

⇒HRA article 9: freedom of speech in parli. are protected- no cencorship

Question 15

Cons. Supermacy v Parli. Sov:

Answer 15

⇒ In Uk- Parli. is sovergin and in accordance with dicey cannot be challenged

⇒ Cons supermacy- Cons is sovergin and all laws must be enacted to align with the cons- As in US

⇒ Other systems: Contential- courts are the guardians of the cons to ensure that gov actions comply with the princples

⇒ In the UK there is no guardian of the cons, parli. is sovergin and cannot be challenged

Question 16

Parl sov in terms of brexit

Answer 16

Case: R (Miller) v Sect of state for exiting EU [2017]- Restated parl. sovergnity
⇒ Gov trigged the article 50 with preg.powers

⇒ But this was unlawful as as parli. approval was needed

⇒Sewel convention arised in causing challeges as well as scotland and N.I voting a majority to stay and under the sewel convention, devovled legis must consent to UK parliaments acts

Held:
⇒Courts ruled that preg power with parl approval was unlawful- Restated parli. soverginity

But
⇒ No scot or NI veto: No obligation to consent from dev legislation

Question 17

Parl. sovergnity v Popular sovergnity

Answer 17

⇒ Brexit triggered art 50 with preg powers

⇒ Parliament asked the people to stay or leave EU and majority voted leave

⇒In that case, soverginity of parli. was displaced for the sovergnity of people

⇒ Issue: Referendums are adivsory due to parl. sov
⇒but due to majority brexit votes, gen pub cannot be ignored- House of lords statement 2009

⇒ Brexieters wanted to art 50 triggered by remainers wanted the parl. sov to be upheld

⇒ Miller case restated Parl sov but parl did demonstrated that it is a cowed body

Counter- Referdums are acts of parliament- it is parliament giving the gen pub the power to decide their own fate

Question 18

Eu laws and parli. sov

Answer 18

⇒ Lord dennings highlighted that EU law was priorty over UK law in accordance with 1972 EC

Implication:
⇒ But parliament can pass Uk laws that repudiate EU and dennings stated that the courts have to follow them

Question 19

Limitations and regulation of P.S

Answer 19

Form of Regulation:
Devolution:
⇒ Devolution delegates power with reliquishing sovergnity of parliment

⇒ Sewel convention restricts parl. from legislating on devolved matters in scotland, wales and NI without devolved agreement

⇒ This holds parliament accountable from overstepping devolved powers

Limitations:
⇒ No judicial review or challenges allowed for P.S

⇒ Permits parliment to enact laws with little regulation on any subject matter

⇒Question legal validity as they cannot be challenged under P.S