W200 Exam Review, Unit 10

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B Sources of the UK constitution

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How does constitutionalism restrain the use of political power:

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(i) establishing a set of basic individual rights and freedoms protected by an independent judiciary

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(ii) democratic representation (i.e. Government institutions whose members are chosen and can be removed by the people)

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(iii) public participation in government decision making (e.g. By referendums and public enquiries)

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(iv) separation of powers

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The basic elements which make up the UK constitution are:

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(i) rules and practices governing the working of the political system

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(ii) institutions of British government (executive, legislative and judiciary) and the rules and practices which constitute them

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(iii) doctrines which influence the rules and practices of the constitution

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What makes up the UK constitution

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It is made up of legal sources (i.e. Staute and common law) and non-legal sources (i.e. constitutional conventions)

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Sources of the UK constitution

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(1)Legislation

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legislation is the most important source of

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constitutional law

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Important Acts are:

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Magna Carta 1215

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Bill of Rights 1689

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Habeus Corpus Act 1679

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Act of Settlement 1700

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Parliament Acts 1911 and 1949

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Crown Proceedings Act 1947

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Europena Communities Act 1972

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Representation of the People Act 1983

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Human Rights Act 1998

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what is probably the most important constitutional source

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legislation

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(2) Europen Union Law

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True or Fasle - The European Communities Act 1972 is a UK statute which incoporated EU law into national law

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TRUE

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True or False - Most laws from the EU are automatically part of UK law

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TRUE

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True or Flase - Sometimes a conversion of EU law into UK law is necessary through a statutory instrument

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TRUE

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(3) The common law

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what refers to a small group of customary rules recognised at common law which determine what an Act of parliament is and the principle of parliamentary supremacy

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Custom

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what refers to historical and symbolic duties of state carried out by the monarch

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The Royal prerogative

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some prerogative powers are:

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(i)summoning and disolving of Parliament

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(ii) assenting to bills

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(iii) appointing and dismissing ministers

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True and False - through convention, the Monarch exercises these powers only on the advice of her ministers

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TRUE

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In practice, the Monarch has no personal power in these matters and

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decision-making in relation to these rests with cabinate ministers

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Individual rights

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The function of the constitution is to regulate the relations between

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the state and private individuals

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what allows a detained person the right to go before a court at a certain time and date and question the legality of the detention

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Habeus Corpus

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if it is found that a person has been detained without good cause that person can seek other

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legal remedies such as a claim of false imprisonment

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Remedies under judicial review are

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A mandatory order, prohibiting order and quashing order are remedies for individuals who successfully challenge the acts of public authorities and officials

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Under the presumptions of statutory interpretation

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certain actions cannot be permitted without clear legislation

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(4) Conventions

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What are conventions

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(i) Conventions represent important rules of political behaviour which are necessary for the smooth running of the constitution'

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(ii) conventions are non-legal rules which are recognised but not enforced by the courts

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What is the interrelationship between law and convention

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there are not enough legal rules to say what should happen and therefore conventions are necessary to make the constitution work

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True or False - Conventions mean nothing without there legal context

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TRUE

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ministerial responsibility refers

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to the two aspects of collective responsibility and personal responsibility

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the doctrine of ministerial responsibility is a convention and not

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bound by law, they are non-legal rules

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Collective responsibility applies to the Cabinet and relates to

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(i) all ministers must be loyal to the policies of the government whether or not

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they are personally concerned with them

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(ii) a minister is not entitled to disclose any disagreement he may have

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with his colleagues unless they resign

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(iii) the government as a whole must resign if defeated

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on a vote of no confidence

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Individual responsibility applies to individual ministers

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(i) Ministers are accountable for all offcial acts carried out in their department whether or not

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they were actually involved

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(ii) Ministers should resign if guilty

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of any unsavoury conduct

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C Parliamentary supremacy

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(1)The doctrine of parliamentary supremacy refers

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to the relationship between Parliament (Acts of Parliament) and the courts

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The doctrine has two points

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(i) Parliament has the freedom to make the laws of any kind whether is unfair, unjust or impossible to enforce

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(ii) Statute cannot be overridden by any body outside Parliament, which means

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(a) UK and international courts have no power to declare an Act of Parliament invalid

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(b) Statute prevails when in conflict with another aspect of law

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(c) Parliament cannot bind its successors and a statute cannot be protected from repeal

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Will courts look behind the formal words of a Bill in order to correct any defects during its drafting

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No the courts have no jurisdiction to do this if a Bill has recieved

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(a) the assent of The Queen, Lords and Commons

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(b) The Queen and Commons and is certified by the speaker as complyingwith the Parliament Acts procedure (1911)

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(2) The scope of parliamentary supremacy

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What is public international law

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refers to law which deals with relations between states

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Public international law is enacted

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through treaty and agreements

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International law is only binding in UK courts

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if it is made part of our law

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In the UK statute may

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change the constitution

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3 Limitations on parliamentary supremacy

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Limitations established by the courts refers to

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Parliament cannot bind it succesors

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The doctrine of implied repeal refers to

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Earlier Parliamentary legislation that may conflict with more recent legislation being impliedly repealed in favour of the later legislation

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Ordinary statutes refers to

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Statutes which are impliedly repealed by the creation of another statute

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Constitutional statute refers to

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Statutes which require the intention of Parliament to alter them and cannot be considered impliedly repealed

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How to determine a Constitutional statute:

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(i) it must condition the legal relationship beetween citizen and state

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(ii) it must change the scope of fundamental constitutional rights

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Limitations arising from EU membership refers to

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the treaties which have been signed and bind the UK

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non-legal limitations refers to

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aspects which may affect Parliaments ability to pass statutes such as public opinion and international obligations (ECHR)