Topic 7. The British constitutional order, Ejercicios de Derecho. Universitat Pompeu Fabra (UPF)
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Topic 7. The British constitutional order, Ejercicios de Derecho. Universitat Pompeu Fabra (UPF)

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Asignatura: LEGAL ENGLISH, Profesor: Joan Solanes, Carrera: Dret, Universidad: UPF
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Topic 3. Constitutional Law of the United States

An unwritten Constitution

 UK does not have a written Constitution: absence of a document (supreme and rigid)

that lays down the fundamental rules of the State

 However, there exists a constitutional system that could be defined as follows: “a body of

rules, conventions and practices which describe, regulate or qualify the organization, powers and

operation of government and the relations between persons and public authorities” (Collin

Turpin and Adam Tomkins)

 The features of the unwritten Constitution: a political constitution subject to the

political process and to the commitment of the political actors and citizens

 Contains different sources: legal rules (statutes and common law), conventions and

practices

 Undetermined: there is not a list of concrete sources

 Fluid: sources can be amended easily (no rigidity)

 Fundamental and material: constitutional sources could be identified for their

material content and its fundamental value

Constitutional sources (I): legal rules

 Statutes: written Acts of Parliament which regulate the system of the government or the exercise of public power

 Historical statutes: Magna Carta 1215, Habeas Corpus Act 1679, Bill of Rights 1689, Act of Settlement 1701, Act of the Union with Scotland 1707

 European Communities Act 1972

 Human Rights Act 1998

 Subordinate legislation: legislation made by the executive

 Delegated

 Primary (not delegated): Orders in Council

 Common law: rules created by judges

 Legal powers of the Crown

 Rules related to the safety of the State, public order, prevention of crime, moral welfare of society

Constitutional sources (II): conventions and

practices

 Two possible definitions

“Main political principles which regulate relations between the different parts of our constitution and the exercise of power but which do not have legal force” (Lord Wilson of Dinton)

“Social rules of a constitutional character which govern the relations between political parties or the institutions of government, regulating the manner in which government is to be conducted” (Jaconelli)

 Nature of conventions

 Rules that are part of the constitutional order

 Not-legal rules: not enforced by courts, political enforcement relies on political bodies as the Parliament

 Examples of conventions

 Relations between the Crown and Parliament: Parliament is summoned to meet every year

 Government accountability to Parliament: functioning of committees, ministerial responsibility, etc.

 Other examples: access by ministers to the papers of a previous administration, restrictions on public spending on political campaigns of the government, etc.

Principles (I): democracy

 Representative democracy: well-established principle

 The sovereignty resides in the people who elect representatives to rule and these representatives are accountable to the people

 Elective institutions in the UK: the House of Commons and the Prime Minister and the Cabinet (indirectly through their accountability to the House)

 The Institutions in the UK that are non-elected: Crown, House of Lords (the pending reform)

 Participatory democracy: a modern principle

 Referendum: local and national referendums

 Electoral system, organization of parties: bolstering representation

 Transparency and open government: access to documents, public hearings, etc.

Principles (II): parliamentary

sovereignty

 The orthodox doctrine

 There is no source of law higher than an Act of Parliament: statutes must be enforced, and must be given priority, over rules of common law, international law, subordinate legislation and earlier enactment of Parliament itself

 Practical problems of the orthodoxy

 Post-colonial independence: could be recuperated by the Parliament the transfer of sovereignty to the new independent states?

 Continuing sovereignty: can the Parliament bind itself “in manner and form” for future legislation?

 Current challenges to the orthodoxy

 The European integration process and the European Union

 The European Convention on Human Rights (ECHR) and the incorporation of fundamental rights

 Common law radicalism: belief that the entire constitution, including the doctrine of the sovereignty of the Parliament, is based on the common law

Principles (III): the rule of law

 Formal version

 Government is subject to the law and may exercise its power only in accordance with law

 Equality before the law: all citizens are equal and government should not be treated differently in law from the ways in which ordinary persons are treated

 Substantive version

 Law should be general, prospective, open, clear and stable

 Recognition of certain fundamental rights and democracy

 Social Welfare State: removal of economic, racial and sexual injustice

Principles (IV): separation of powers

 British constitution is not based in a formal separation of powers doctrine: but in a kind of dynamic version or checks and balances

 Parliamentary system: mixes executive and legislative powers

 Importance of subordinate legislation made by the executive

 However, the principle has some relevance for certain issues

 The scope of the delegation of legislative powers in favour of the executive

 The independence of the judiciary and the protection of the judicial function

UK and the European Union (EU)

 European Communities Act 1972

 Recognition by the UK Parliament of the accession of the UK to the EU and the incorporation of present and future EU Law

 Transformations of UK constitutional order

 The sovereignty of the Parliament and UK Law in question: supremacy of EU Law

 Statutory interpretation changes: UK Law must be interpreted according to EU Law

 The role of judges increases in applying EU Law: they are EU judges

UK and the European Convention on

Human Rights (ECHR)

 Before the Human Rights Act 1998

 UK merely ratified a ECHR without an incorporation in the domestic legal system by an Act of Parliament: binding under international law, but not direct internal legal effect and not enforceable by courts

 However, courts took into account the ECHR as an interpretative tool of UK Law

 The Human Rights Act 1998

 Incorporates almost (not all) the substantive provisions of ECHR: qualified/non- qualified rights

 Legislation

 New Legislation (Bills): compatibility statement by a Minister (s.19)

 All legislation must be interpreted according to ECHR

 Declaration of incompatibility by courts (s.4)

 Remedial order by a Minister (s.10)

 Acts of public authorities

 Their acts must be compatible with the ECHR: judicial remedy for this breach

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