Public Law - Core Constitutional Principles

  • Created by: Alasdair
  • Created on: 12-11-20 15:01
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  • Core Constitutional Principles
    • Rule of law
      • Should  be no arbitrary exercise of power by state or government
        • all actions of state or government must be permitted by law
      • Laws should be made properly, following a set procedure
      • Law should be clear
        • laws  should be set  out clearly and accessibly, and a citizen should be punished only for clearly defined breach of law
      • Law should be certain
        • Laws should not only operate retrospectively and citizen should not be punished for an act that was not a crime at time he carried out that act
      • Should be equality before the law
        • all citizens should have equal access to legal process for redress of grievances
        • law should treat all persons in same way
          • e.g. law should not provide special exemptions or 'get-outs' for government officials
      • Judiciary should be independent and impartial
        • courts should be sufficiently independent from legislature and executive so that judges can uphold law without fear of repercussions from other branches of state
    • Separation of Powers
      • C18th French political philosopher. Charles de Montesquieu
        • To prevent arbitrary or oppressive government, different branches of state had to be kept separate in terms of their functions and personnel
        • Identified three different  branches of state
          • legislature (or parliament)
            • body that makes law
          • executive (or government)
            • body that implements law
          • judiciary (or courts)
            • body that resolves disputes about law
      • As result of complex way in which modern state works
        • unrealistic for each branch of state to be kept completely separate from others
      • 'checks and balances'
        • each branch of state is  kept in check by powers given to other branches
          • so no one branch of state may exert excessive amount of power or influence
      • Separation of powers within UK
        • According to Halsbury's Laws of England
          • Executive branch of state
            • Queen
            • Prime Minister and other government Ministers
            • Civil service
            • Members of police and armed forces
          • Legislative
            • Queen
            • House of Lords
            • House of Commons
          • Judicial
            • Queen
            • all legally-qualified judges
            • Magistrates (non-legally qualified members of public who deal with some criminal matters)
    • Supremacy of Parliament
      • UK has unitary constitution, with Westminster Parliament being supreme law-making body
      • Common law doctrine
        • accepted by judiciary, under which courts acknowledge legislation enacted by Parliament takes precedence over common law
      • AV Dicey's definition of Parliamentary supremacy
        • Parliament can pass whatever legislation it likes
          • thus it can introduce or repeal any law as it sees fit
          • e.g. So  Parliament, could if it wished, ban smoking on streets of Paris.
        • No other person or body can change or repeal legislation which Parliament has enacted
          • Means courts  must uphold legislation passed by Parliament and cannot declare legislation to be unconstitutional
          • Can be contrasted with US, where Supreme Court can strike down Act of Congress as being unconstitutional
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