The Constitution LGS 2 Flashcards
**Intro **
Define constitution
Rules and principles which:
(3)
- Define a states fundamental political principles
- Establish the framework of governement of the state; and
- Guarantees rights and freedoms to citizens
Descrptive Rather than Prescriptive
Bradley & Ewing Constitutional & Administrative Law (2011)
Lord Bolingbroke A Dissertation upon Parties 1733-34.
Whitehall, Peter Hennessy 1986
[A document or documents] ‘having a special legal status which sets out the framework and the principal functions of the organs of government within the state and declares the principles or rules by which those organs must operate
‘By constitution we mean … that assemblage of laws, institutions and customs … that compose the general system.’
‘The Constitution is what happens’
Uncodified nature - no single document setting out the rules. Derived from 5 sources
Historical Documents
Constitutionally Siginficant Document - the ministerial code - Reaffirmed by each gov.
Legislation
Case Law
Constitutional Conventions
The Royal Prerogative
The Position of the United Kingdom
Rules and Practices which set out:
- the institutions of government;
- the distribution of powers within those institutions;
- how those powers are exercised and controlled;
- the relationship between the institutions of government and the citizens?
No modern and effective prescriptive constitutional document.
Some academics argue we do not have a constitution at all. See Ridley, F.F., 1988.
Constitutionally sigificant Law: HRA, Constitutional Reform act enchances consitutional powers
Constitutionall Significant Document: Ministerial Code - Liam Fox disciplined for contravening the code 2011, The Cabinet Manual October 2011
• Consideration of pure Diceyan doctrine of Parliamentary Sovereignty. No limits on what Parliament can legally do - doctrine of implied repeal; the “enrolled bill” rule.
• Recognition that the doctrine is, in a sense, a construction of the courts – it is the most important rule of the common law. It only holds good as long as the courts themselves accept and uphold it.
• The importance of statutory interpretation and presumptions in mitigating the potential harshness of the doctrine (e.g. RvA; Mendoza; Shaw v DPP).
2) THE UNDERLYING CONSTITUTIONAL PRINCIPLES OF THE UNITED KINGDOM
Monarch: where political power is vested, theoretically in the sovereign.
The Crown, Actng through ministers, remains effective sovereign body.
Domestic affairs, position is more complication
The four activieis of the state
Overseen by Leg, Executive and judiciary
Leg, • making rules;
Exec • administering public affairs; and
Judiciary • adjudication of disputes.
• the protection of the basic human and civil rights of the citizen.
Protection of Human Rights
Judiciary has the power to enfoce the principles and laws under the ECHR through the HRA. Previously had to go to the ECtHR
The rule-making or legislative function
Vested in the crown in Parliament, which is the sovereign legislature of the United Kingdom. A legislative act is valid if it is:
- an enactment duly passed by both Houses of Parliament and assented to by the Sovereign (primary legislation);or
- secondary legislation made and approved under powers conferred by a statute.
How are these sources reflected in the operation of our 3 constitutional “pillars”?
_ THE LEGISLATIVE FUNCTION:_
• Statutory provisions include:
- Magna Carta, the Bill of Rights 1688, the Parliament Acts 1911 and 1949
- *Case law includes:**
- The ‘enrolled Bill rule’ that an Act, if formally valid, cannot be impugned for procedural irregularity: Edinburgh & Dalkeith Rly Cos v Wauchope (1842) 8 Cl & Fin 710; British Railways Board v Pickin [1974] AC 765.
- The doctrine of implied repeal: Ellen Street Estates v Minister of Health [1934] 1 KB 590.
How are these sources reflected in the operation of our 3 constitutional “pillars”?
prerogatives
conventions
Writers of authority
• Prerogative powers include: the granting of royal assent to Bills of Parliament.
- Conventions include: that the monarch will always give their assent to Bills of Parliament, which is needed for Bills to become Acts.
- Writers of authority include: Prof A V Dicey on Parliamentary Sovereignty.
- THE JUDICIAL FUNCTION:
statutes
2
Case Law
2
• Statutes include:
The Act of Settlement 1700, which makes judges of the High Court and above, effectively irremovable by the executive and the Constitutional Reform Act 2005 which specifically refers to the independence of the judiciary.
- Telling the executive to keep distance from judiciary and that the judiciary will not loose their jobs for challenging the exeutive
• Case law includes:
M v Home Office [1992] QB 270;[1994] 1 AC 377
If a minister of crown is called to appear in court, will be held to be in contempt of court if doesnt appear or comply with an order. - Judicial review, Rule of Law.
- THE EXECUTIVE FUNCTION
- Statutes
- Case law
• Statutes include the Crown Proceedings Act 1947
- Removed the ability of the crown to seize buildings.
• Case law includes the 18th century general warrant cases such as: Entick v Carrington [1765] 19 St Tr 1030 and Wilkes v Wood [1763] 19 St Tr 1153
- warrants were issued without basis in law and so the entrance to the homes constituted trespass. Executive function has to have a basis in law.
And note limitations to prerogative power in the following cases:
BBC v Johns [1965] Ch 32
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 GCHQ case
The scope of prerogtive powers is fixed, and a diplock said, 350 years and a civil war too late to create new laws. when they are superceded by Legislation they are lost.
established tha prerogatives can be reviewed and sets out grounds for review.
Written Constitutions?Some other things to consider
Be clear about the difference between ‘written’ and ‘codified’
Be clear about the difference between ‘written’ or ‘codified’, versus ‘entrenched’
Be clear about what a constitution is supposed to do not just what it’s supposed to look like – otherwise, how can you really say if it’s any good?
There is often an assumption that a written codified constitution is inherently ‘better’. But what about the following?
- A prescriptive constitution is no actual guarantee of the rights it purports to confer, or even that the constitutional division of powers will operate as stated;
- A constitution can confer legitimacy on the political classes (or put another way, constitutions may be used by an otherwise dubious regime to confer legitimacy upon it);
- A constitution is often the focus for an emerging state, or a state trying to make sense of a new political reality. As such, constitutions are children of their time and may become outmoded, or perversely interpreted; and
- The special procedures needed to amend a constitution can lead to ossification and necessary modernisation cannot take place.
