The British Constitution

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  • Created by: Ella RR
  • Created on: 28-05-14 15:29

Judicial Review

  • Seeking judgement from courts that a public body has acted unlawfully in exercising its powers
  • JR cases have increased dramatically in recent years
  • WHY? JR of legislation following UK entry into the EU and declarations of incompatibility under the HRA 1998
  • E.G. Factortame with EU law, anti-terrorist legislation declared incompatible under the HRA
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Why the creation of a Supreme Court has taken the

  • Constitutional reform act 2005, by creating a Supreme Court which effectively removes judicial functions from the HoLs, has moved the UK towards a separation of powers
  • New judicial arrangements flowing from the Constitutional Reform Act 2005, in particular the replacement of the HoLs as the new Supere Court of the UK from October 2009
  • This reform, by removing judicial functions from the HoLs (which is the chamber of the legislature) goes some way towards creating a separation of powers
  • E.G. The USA comparisons
  • Even under the previous arrangements the Appellate Committee of the HoLs was effectively an independed court, and iformations about other aspects of the 2006 Act relevant to the concept of separation of powers (e.g. replacement of Lord Chacellor by Lord Chief Justcie as Head of Judiciary; new arrangements for judical appointments)
  • Fusion of powers in the UK
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Rule of Law

  • One of the bedrocks of liberal democracy - a principle/doctrine
  • May mean safeguarding citizens against tyrannical leaders
  • Key aspects of doctrine: the law applies equally to all, judgements must be made by an independent judiciary, no person is above the law, no person can be punished except for a distinct breach of the law
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Extent to which Parliament may be said to have 'un

  • Concept of judicial independence: principles such as the requirement that no one should be judge in their own cause and the doctrine of the separation of powers
  • Parliamentary sovereignty is a factor in this 
  • Features of the doctrine: only Parl can make law and no othe rbody can set aside a law made by Parl
  • This principle derives from the 1689 BoRs
  • contradiction between the two constitutional doctrines: parliamentary sovereignty and judicial independence
  • Parl has ultimate power over judiciary
  • Parl can act with little regard to exisiting law in various ways such as changing laws when they have not been happy with judicial rulings and interfering in penalties imposed by judges
  • Political controversies that have seen home secretaies in conflict with judges E.G....
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Judicial Precedent

  • The basis of the common law
  • Judicial decisions or practices of the past are accepted as a guide for the present
  • In the law, precedents are past decisions of the courts that are thought to apply to similar legal problems or situations in the present
  • Such decsions form part of the British const as the common law element
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Reasons why judges may have been accused of being

  • Concept of human rights
  • Judges have various opportunities to make decisions and judgements in the field of human rights, by reviewing legislation under the HRA and in the courts
  • 'Human rights agenda'?
  • ECHR?
  • Human rights aspects to be found in EU legislation
  • Way in which judges operate and their degree of influence in reviewing legislation and judging cases in the light of human rights
  • E.G. cases where legislation has been judged to infringe human rights and cases where judicial attention to human rights (often to those being accused of a crime - terrorist staying in England due to the 'right to family life') has aroused public and political concern
  • sources of the accusation that the judiciary is driven by a 'human rights' agenda, such as right-wing thinkers, politicians or the tabloids
  • alleged 'politicisation' of the judiciary
  • concept of the separation of powers
  • Parl retains its sovereignty in legislation
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Constitutional Conventions

  • Conventions are linked with another key component of the constitution (ie statute)
  • Established norm of political behaviour
  • Not enforceable by law
  • EXAMPLES: ministerial responsibility, appointment of Prime Minister, Salisbury convention, dissolution of Parliament
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How the establishment of the supreme court has 'si

  • Constitutional Reform Act created by the Supreme Court
  • Supreme Court replaces the previous arrangement where the highest court of appeal was the HOLs.
  • This new arrangement, by separating judicial and legislative insititutions, reduces the link between legislature and judiciary and, therefore, increases judical independence
  • Other relevant information: link with theory of separation of powers, concurrent reform of procedures for appointing judges and replacement of Lord Chancellor by Lord Chief Justice as Head of the judiciary
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Codified Constitution

  • UK is unwritten/uncodified
  • A const in which all the main provisons are brought together in a single document
  • Like the USA
  • sources of the UK constitutions - and how some are written/codified
  • features of codified constitutions - entrenched and difficult to amend
  • other characteristics of the UK const - flexible, parliamentary - not constitutional - sovereignty 
  • Lack of clear distinction between constitutional and other legislation
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Why having a flexible constitution may leave Briti

  • Flexibility and ease of changing constitutional laws and practices
  • how UK constitution is amended (statute, new conventional practice)
  • key constitutional doctrines, such as parliamentary sovereignty
  • focus on 'without adequate protection' explain how parl sov, the absence of a codified constitution with 'entrenched' rights, and exec domination of Parl, leave citizens unprotected
  • In practice, some legislation (HRA) and other political developments (ECHR) arguably do provide some protection
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Entrenched Provisions

  • Those constitutional provisions that cannot be changed by the normal legislative process
  • They must be subject to a complex amendment process
  • British Const does not contain entrenched provisions
  • Such provisions are placed in consts in order to make them immune to political manipulation by the gov of the day
  • Significance of the rule of law
  • Examples of consts with entrenched provisions - USA/France
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2 sources of the British Constitution

  • British const differs from most in that it is not drawn up in a single codified document
  • Often described as 'unwritten'
  • Uncodified
  • Much of it found in 'written' form in a number of sources (the royal prerogative, statutes, common law, conventions and authoritative opinion)
  • Explain: discuss the origins of the sources they have identified and note limitaitons and problems associated with them
  • Consider the consititutional effects of treaties, international conventions and membership of the EU
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