British constitution
- Created by: anurai95
- Created on: 10-11-16 07:37
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- British constitution
- what is constitution?
- set of rules
- governs roles & responsibility of state, rights of citizens and the relationship b/w the state & the individuals
- regulates human conduct
- 2 types
- written
- rules related to the governmental power & process, contained in a
single document
- does not require a process of ascertainment
- rules related to the governmental power & process, contained in a
single document
- unwritten
- not contained in an accumulated or unified pattern/ document
- requires a process of ascertainment
- not contained in an accumulated or unified pattern/ document
- charactertistic
- written
- Clarity & certainty
- Greater reverence & loyalty
- Rigidity of a written constitution
- Superiority of written constitutions
- unwritten
- two elements by Prof A V Dicey
- law of the constitution
- sources: legal rules
- 1. Legislation
- acts of parliament/ statutes or delegated legislation
- 3. Customary international law
- international obligations arising from established state practice
- results from a general & consistent practice of states that they follow from a sense of legal obligation
- Lord Denning: incorporated automatically in (Trendex Trading Corporation v Central Bank of Nigeria)
- results from a general & consistent practice of states that they follow from a sense of legal obligation
- international obligations arising from established state practice
- 2. Judicial precedent
- similar cases treated alike
- stare decisis
- common law
- interpret & clarify law
- rule of law
- common law
- stare decisis
- similar cases treated alike
- 4. European Community law
- applicable under ECA 1972
- 1. Legislation
- sources: legal rules
- conventions of the constitution
- sources: non-legal rules
- Rules of political parties
- General political and moral values
- democratic values & the ethics of liberalism
- Constitutional conventions
- rules of political practice
- flexibility so that evolution can take place without formal changes to the legal structure of the constitution
- e.g. monarch grants the Royal Assent to all legislation
- rules of political practice
- Customs
- rules & customs of Parliament
- royal prerogative
- "discretionary powers of the Crown that are employed by Gov. Ministers in the name of the Monarch
- authoritative works
- a.k.a "Academic Opinion"
- AV Dicey’s “An introduction to the Study of the Law of the Constitution”
- Erskine May’s “Treatise on the Law, Privileges, Proceedings and Usage of Parliament”
- Walter Bagehot’s “The English Constitution”
- a.k.a "Academic Opinion"
- sources: non-legal rules
- law of the constitution
- two elements by Prof A V Dicey
- written
- written
- set of rules
- do UK need a written constitution?
- No
- 1. change not good unless for best
- 2. difficult to entrench the written constitution against later repeal
- revolution or a declaration of independence
- 3. History: wc is not a guarantee protection of citizens' rights against dictators or other forms of anarchy or chaos
- attitude of the people, the character of the leader, the history of the country, and the overall political and social circumstance
- no guarantee/ safeguard against tyranny, totalitarianismor autocracy
- 4. practical difficulties and proposes that there is no reason to fix a system if it is not broken. (Barber)
- Untitled
- Yes
- 2. enhance clarity and certainty
- becoz constitutional rules operating as conventions => uncertainty
- convention sometimes followed sometimes not
- e.g. Ministerial Responsibility
- uncertain in its scope and its precise working
- e.g. Ministerial Responsibility
- convention sometimes followed sometimes not
- becoz constitutional rules operating as conventions => uncertainty
- 4. restrain the powers of Parliament
- becoz no Constitutional supremacy, Parliament is supreme
- courts cant declare laws invalid but only incompatible while the law remains vaild
- "A & Others v Secretary of state for Home office"
- HoL declared the Anti-Terrorism, Crime and Security Act (ATCSA) 2001 to be incompatible with Article 5 & 14 of the European Convention of Human Rights
- "A & Others v Secretary of state for Home office"
- courts cant declare laws invalid but only incompatible while the law remains vaild
- with written constitution , courts can declare laws invalid
- empower the courts to declare laws to be invalid
- becoz no Constitutional supremacy, Parliament is supreme
- 1. need for constitutional controls on the political leaders and organs of state
- F.F.Ridley
- absence of legal criteria => distinguishconstitutional law from other laws
- definition becomes so broad that it defines nothing
- thus, Constitutional law is meaningless
- Legal & non-legal sources= everything is a source, thus dont need to define "everything"
- chicken & egg situation - "a tautology"
- Legal & non-legal sources= everything is a source, thus dont need to define "everything"
- thus, Constitutional law is meaningless
- definition becomes so broad that it defines nothing
- UK has a constitution => Parliament
- "can make/unmake any law"
- absence of legal criteria => distinguishconstitutional law from other laws
- prevent tyranny
- solve the problem of our "elective dictatorship" - Lord Hailsham
- gov doing anything with their powers
- F.F.Ridley
- 3. protect individual liberties and entrench the idea of it
- In UK, freedoms are protected through judicial activism and the Human Rights Act 1998
- hence, lack of entrenchment of liberties
- unalterable/ be altered only with a 2/3 majority in both Houses of Parliament
- In UK, freedoms are protected through judicial activism and the Human Rights Act 1998
- 5. clarify powers
- Legislature: makes laws
- Judiciary: applies law & adjudicates disputes
- Executive: day to day administration of the country
- Asylum and Immigration (Treatment of Claimants) Bill
- remove access to judicial review for asylum seekers (deny access to courts)
- thus, solve this problem
- remove access to judicial review for asylum seekers (deny access to courts)
- 2. enhance clarity and certainty
- No
- what is constitution?
- Untitled
- Yes
- 2. enhance clarity and certainty
- becoz constitutional rules operating as conventions => uncertainty
- convention sometimes followed sometimes not
- e.g. Ministerial Responsibility
- uncertain in its scope and its precise working
- e.g. Ministerial Responsibility
- convention sometimes followed sometimes not
- becoz constitutional rules operating as conventions => uncertainty
- 4. restrain the powers of Parliament
- becoz no Constitutional supremacy, Parliament is supreme
- courts cant declare laws invalid but only incompatible while the law remains vaild
- "A & Others v Secretary of state for Home office"
- HoL declared the Anti-Terrorism, Crime and Security Act (ATCSA) 2001 to be incompatible with Article 5 & 14 of the European Convention of Human Rights
- "A & Others v Secretary of state for Home office"
- courts cant declare laws invalid but only incompatible while the law remains vaild
- with written constitution , courts can declare laws invalid
- empower the courts to declare laws to be invalid
- becoz no Constitutional supremacy, Parliament is supreme
- 1. need for constitutional controls on the political leaders and organs of state
- F.F.Ridley
- absence of legal criteria => distinguishconstitutional law from other laws
- definition becomes so broad that it defines nothing
- thus, Constitutional law is meaningless
- Legal & non-legal sources= everything is a source, thus dont need to define "everything"
- chicken & egg situation - "a tautology"
- Legal & non-legal sources= everything is a source, thus dont need to define "everything"
- thus, Constitutional law is meaningless
- definition becomes so broad that it defines nothing
- UK has a constitution => Parliament
- "can make/unmake any law"
- absence of legal criteria => distinguishconstitutional law from other laws
- prevent tyranny
- solve the problem of our "elective dictatorship" - Lord Hailsham
- gov doing anything with their powers
- F.F.Ridley
- 3. protect individual liberties and entrench the idea of it
- In UK, freedoms are protected through judicial activism and the Human Rights Act 1998
- hence, lack of entrenchment of liberties
- unalterable/ be altered only with a 2/3 majority in both Houses of Parliament
- In UK, freedoms are protected through judicial activism and the Human Rights Act 1998
- 5. clarify powers
- Legislature: makes laws
- Judiciary: applies law & adjudicates disputes
- Executive: day to day administration of the country
- Asylum and Immigration (Treatment of Claimants) Bill
- remove access to judicial review for asylum seekers (deny access to courts)
- thus, solve this problem
- remove access to judicial review for asylum seekers (deny access to courts)
- 2. enhance clarity and certainty
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