- Created by: Natwallace
- Created on: 06-09-18 10:53
The UK Constitution
- A Constiution is a set of rules which protects indivuduals rights, sets out how the political system should be run
- A constituion can be 'codified', which means they are laid out in one systematic code and usually takes physical form in something like a single document, the most prominent example of this is the American Constitution that laid out several key points of how the law and government should function.
- In the UK we have an uncodified constiution that takes its rules from several documents, laws and statutes from historical and newer souces, for example the Magna Carta and the Humans Rights Act (1998).
- One of the more important rule is that the Parliament in Westminster has supremacy as the prime legslation creating authority.
- Due to a more unrigid constitution we have been able to grant powers to assemblies in Sco, NI and Wales, this has meant Sco and NI have a differing judical system compared to England and Wales.
- In the constitution there are things known as conventions, these are non-legal and unwritten sources of the consitution, they are essentially rules that although binding are not legally enforced like other statutes of the constitution, this is something like: the monarch most give Royal Assent to a bill.
- As the convetions are non-legal they do not require a procedure for creating them or dissmising them if neccesary.
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The UK Constitution Cont.
- The UK Consitutiononstitution has three importnat principles that it protects:
- The supremacy of parliament
- The seperation of powers
- The rule of law
- In the UK we have a parliamentry system of governance where the Westminster is the supreme law-making body.
- As it is supreme this means the courts accept that legeslation enacted by Parliament should take precednece over common law, which is judge-made law developed through cases.
- No one parliament binds another.
- No bill of rights to overide Parliament
- The are three poowers in the political system that need to be seperated to ensure a fair system these are:
- Executive - Goverment
- Legslative - Parliament
- Judical - Judges and Court System
- We also a monarch head of state, this is mainly cerimonial but certain things like the powers government has is dervied from Royal Pergoative and is carried out in their name and they remain legally responsible for their actions.
- Royal pergoative is the remants of power left over from when the monarch was the absolute ruler of the country derving powers from god that were not given to parliament, these are things like national security and deploying the armed forces.
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The UK Constitution Cont.
- The lack of a single codified physical constutituion there appears to be nothing that formally seperate the branches of government but their are measures like the 2005 Constitutional reform which have reulted in it being apparent how these are seperated:
- The Executive is the monarch, PM, other ministers, civil servants who work in thoose areas, the police and members of the armed forces
- The legeslate is the monarch, normal MPs, peers, the civil servants who work in that capactiy like the Serjant at Arms
- The Judicary is agian made up of the monarch as well as legally qualified judges and magistrates.
- Again the monarchs role in all three of these branches is solely cerimonial and is carried out in her behalf by the government.
- Specifically the Constitutional Reform Act 2005 imporoved the seperation of powers between the Executive and Judicary by transferring the Lord Chancellors traditional head of Judicary role to a newly created Independant Judical Appointments Committee to ensure judges are appointed only on merit instead of favours from MP's.
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The Rule of Law
- Lord Steyn: ‘Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces the minimum standards of fairness, both substantive and procedural.’
- AV Dicey identified three curcial factors that make up the concept of the rule of law;
- No punishment without law
- No man is above the law
- Judicial descions protect the rights of citizens
- Created laws are not then retrospective
- No person in gocernemtn or anywhere else bar the Queen and people with diplomatic immunity are above the law.
- Laws should be trnasparent, clear, precise and fairly enforced.
The rule of law is not neccesarily legally defined but is still recognised and followed although not being fixed.
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- One of the Judicary's most important roles is acting as a check and balance to the government ensuring that they exercise their power in lawful manner, they have developed certian ways to do this through common law:
- Residual freedom - A citizen should be free to do whatever they want to whenever they want to do unless there is a law prohibiting it
- Actions of the state - actions carried out by MP's, lords, civil servants, police etc. must all be done in a legal matter with reason.
- Legal disputes must be carried out by the judicary and no other branch should be involved in deciding on legal disputes. For example the monarchy ust not decide leagl matters through arbitary rulings. Case of Prohibitions del Roy 1607
- Habeas corpus and individual liberty - a person detained by the state has the right to have their detainment reviewed by a court. This was originally developed through common law it is also present Article 5 of the European Convention on Human Rights 1998 which now forms part of the UK Human Rights Act 1998.
- Right to a fair hearing - Agian this was orginally developed through common law it became convened in the ECHR which now forms part of the UK law on human rights
- Royal Preogative - although this is a way it has been limited in the past in certain ways, for example before the 2010 Constiutional Reform and Governenece Act it was not required that most international treatys be subject to parliamentry ratification which is know the case.
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The Judiciary Cont.
- Judical review of exectutive actions - due to the parliamntry supremacy and no codified constiution the UK courts do not have the ability to review the way public exercise their powers in relation to what occurs on parliament. Judical review is the process by which the courts ensure public bodies do not exceed or abuse their powers.
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Legal System Form
- The Supreme Court is the last court of appeal in the UK and has been around since 2009. This court hears appeals based on arguable points of law that would impact civil cases for the whole of the UK and would impact criminal cases everywhere but Scotland which uses the High Court of Justiciary to fulfill the same function. People who live in Commonwealth can also appeal to the Judicial Committee of the Privy Council which also is the highest court of appeal to these countries and territories and feature some supreme court judges and others. There are 12 judges, through convention 9 are from England and Wales, 2 are from Scotland and 1 from NI. when a decision is made only an odd number of judges get to vote to stop any deadlocked rulings.
- The Court of Appeal and the High Court are the senior courts of England and Wales, as the name suggests the Court of Appeal is an appellate court and originally was the highest appeal court before the creation of the Supreme Court. The court is split into two categories Civil and Criminal. The High Court hears very complex and serious family and civil cases and is separated into three divisions: the Queens Bench, Chancer, and Family. The Queen's bench deals with the most cases in these categories and so is the largest of the three divisions it looks at cases in the following areas: the Admiralty, Commercial, Mercantile, Technology and Construction, and Administrative Courts. The Chancery Division deals with corporate and company law including partnership claims, conveyancing, land law, probate, patent, and taxation cases. To do this it is split into three sections: Companies Court, the Patents Court and the Bankruptcy Court.
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Legal System Form
- To make the practice of law more efficient and organized England and Wales is split into 6 circuits which High court judges travel around South Eastern, North Eastern, Midland, Northern, Wales, and Western.
- County courts - there are about 160 of these within their geographical catchment area, these solely deal with civil cases (non-criminal and non-family) as well monetary claims up to £100,000 and personal injury and damage claims up to £50,000, cases are usually heard where the defendant lives.
- Family Court - was created in 2014 and has national jurisdiction and was created to bring together all the family cases and laws to sit in one court.
- The Crown court has several centers around England and Wales and deals with criminal cases that have been transferred from the Magistrates court usually serious cases.
- Magistrate courts hear all criminal cases initially, non-serious cases and those involving minors and some civil cases are tried in this court. Magistrates deal with three kinds of offence: summary (less serious cases); either-way (cases that can be heard either in a Magistrates' Court or before a judge and a jury in the Crown Court); and indictable-only (serious cases).
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Criminal Law Basics
- Sets out the kinds of behaviors that are forbidden at the risk of punishment.
- Most criminal offenses are committed against the state and therefore they are prosecuted by the state usually through the CPS, the case notation is written as such: (R Vs. ...).
- The law states the right to punish those who break the law.
- The are four kinds of punishment:
- Custodial - a punishment by which an offender is detained for a period of time in a prison or educational institute etc.
- Community - a punishment by which an offender is forced to perform community service
- Financial - a punishment by which an offender is forced to pay a fine
- Discharge - this is a sentence where a punishment is not given as it is seen as being arrested and going court is punishment enough, a variation of this is a conditional discharge and is where a discharge sentence is enforced, but if the offender breaks the conditions they are then subject to a different punishment usually custodial.
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