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
- Should be no arbitrary exercise of power by state or government
- 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
- legislature (or parliament)
- 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
- each branch of state is kept in check by powers given to other branches
- 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)
- Executive branch of state
- According to Halsbury's Laws of England
- C18th French political philosopher. Charles de Montesquieu
- 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
- Parliament can pass whatever legislation it likes
- Rule of law
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