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Constitutional Law
KatarzynaGromekBrocUniversity of York
Constitutional Law
Overview of the CourseSyllabus1. Introduction to the Course, An overview and the Idea of the Constitution:Introduction to the British Constitution, Sources and Nature2. The UK’s Historical Framework, Particularity of the British Constitution,Constitutional Principles3. Separation of Powers4. Parliamentary Sovereignty and its limits: EU Membership, Human RightsAct 1998, Devolution5. The Rule of Law6. The Institutions of the UK, Government in the UK, the Crown, PublicBodies, Judiciary, Recent reform7. Delegated Powers and Delegated Legislation8. The Constitution and the Individual: Protecting Rights in the UK, Police9. The protection of privacy10. Revision lecture
Lecture 1.
Definition and scope of Constitutional LawThe starting point of studying Constitutional Law should be looking at the role of law and government in society and studying political philosophy in generalHow to reconcile individual freedom with social justice?Is the individual merely a tool in hands of state power?Constitutional law considers relationship between the individual and the state seen from the legal point of view
Definition of scope of constitutional law
‘ It is inherent in the special character of law, as a body of rules and procedures, that it shall apply logical criteria with reference to standards of universality and equity’,Thomspon,Whigs and HuntersConstitutional Lawyer would say, Law concerns the structure and powers of the state
Definition and Scope of Constitutional Law
Constitutional Law should express a degree of consensus about the organs and procedures by which political decisions are takenConstitutional Law should reflect the value that people attach to human relations, to individual freedom under the law and to institutions such as Parliament, political parties, free elections and a free press
Definition and scope of Constitutional Law
CriticsLaws seen as a product of human decisionsSometimes wrong? Questionable? Reflecting political willWeaknesses and imperfections of human nature reasons for lawLord Acton“Power tends to corrupt and absolute power tends to corrupt absolutely”.
What is Constitutional Law?
Flexible?More than one definitions?Marshall, Constitutional Theory‘Constitutional Law is the part of national law which governs the system of public administration and the relationships between the individual and the state’The problem of this definition in application to the UKMany rules, principles and practices under which the UK government operates do not have the force of law.
Definition and scope of Constitutional Law
Constitutional Law:Problems with definitionNo waterproof definition of constitutional law and other branches of law ( UK system does not have comprehensive codes) Human Rights: part of Constitutional Law, Freedom of Association ( a labour law theme) part of Constitutional Law, part of criminal law and procedure could be absorbed by Constitutional Law
Definition and scope of Constitutional Law
Constitutional Law deals with the legal foundations of the institutional hierarchy through which the state is governed.It deals with the composition, powers, procedures and immunities and relationship between the institutions of the state
Definition and scope of Constitutional Law
There is no clear distinction between Constitutional and Administrative lawMaitland defines administrative law as: “The law which determines the organisation, powers and duties of administrative authorities”It deals with the exercise and control of governmental powerAdministrative Law is more concerned with the work of official agencies in providing services and in regulating the activities of citizens
UK and the idea of constitutionalism
Constitutionalism as a evolving doctrine is associated with the existence of written constitution from which the state’s authority and legitimacy derives and which may limit the power of the state in order to protect the rights of individuals and minoritiesConstitutionalism: “the political authority should be bound by institutions that restrict the exercise of power”In Western Societies’ A written constitution, a democratic parliament shape a culture of respect for the law by the state’s organs and the system of courts that may protect groups and individuals against the abuse of power.In the UK there is absence of formal limits: example: the MP expenses scandal in 2009
What is Constitution?
Formal sense:Constitution consists of laws, rules (conventions) and other practices that deal withThe institutions of governmentThe nature, extent and distribution of powers within those institutionsThe forms and procedures through which such powers should be exercisedThe relationship between the institutions of government and the individual citizen
Constitution
Narrow meaning of a constitution:A document having a special legal status which sets out the framework and the principal functions of the organs of government within the state and provides for principles and rules by which those organs must operate.The meaning of the constitution in the UK“ By constitution we mean, whenever we speak with property and exactness, that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed” Bolingbrook 1733
The UK Constitution
UK has a constitution: it has a comprehensive system of governmentIn sense“ the whole system of government of a country, the collection of rules which establish and regulate or govern the government”A system based upon:Acts of ParliamentsJudicial decisionsPolitical practices and detailed procedures
Constitution in the UK
studying a Constitution in the UK is studying various theories, principles, institutions of which the Constitution is composed.There is no comprehensive attempt to collect and codify in a single instrumentHowever there are some forms of codificationIndividual and the State:The Constitutional Reform Act 2005,The Public Order Act 1994, Terrorism Act 2006
Unwritten Constitution
Israel and New ZealandWhy?The degree of political continuityif it is too rigid in time of political change it leads to the abandonment and replacement of a pre-existing constitutional order
History
The English Civil Wars led to the creation of the most significant statutory elements of the post-revolutionary constitutional settlement, the Bill of Rights 1689 and the Act of Settlement 1700Gave rise to the principle of parliamentary sovereigntySince 1830 noticeable moderate and social reforms in order to ensure uninterrupted economic developmentSocial and cultural factors:Stable conditions of the UK unwritten constitutionsLack of strong historical events
Why unwritten Constitution?
A considerable level of agreement concerning the role of government and a reluctance to allow political groups to interfere with personal relationshipa willingness to favour graduate development and moderate change with a dose of suspicion to radical solutionsCherishing the political symbols: the monarchy, a sense of national identity and loyalty
UK Constitution:
Flexibility:The Constitution can be changed in the one of the following waysChanged by legislation enacted in normal parliamentary procedureBy judicial decisionsBy change in existing conventional practicesConstitution has no entrenched provisions( exceptions) special legislative procedure and/or approval in a referendum
UK Constitution
UnitaryUltimate authority is Westminster ParliamentUltimate legal authority is not divided between the central and regional authoritiesLocal government is conducted by county, district and unitary councilsDevolution: any legislation outside the prescribed limits or inconsistent with the Westminster legislation is invalid
Sources of the UK Constitutional Law
Formal sources:A) LegislationB) Judicial decisionsC) The Law and Custom of ParliamentD) EU LawE) International LawOther sourcesConstitutional Conventions: they do not have the force of law but they have a great importance in maintaining the UK Constitution
Sources of Constitutional Law
A) LegislationIn absence of written constitution, the Acts of Parliament determine the functions of governmenti) Statutes on the structure of UK and Commonwealth (Acts of Union, Statute of Westminster 1931, European CommunityAct 1972)ii) Statute on the Monarch power andRoyal Prerogative (Bill of rights 1689, Act of Settlement 1700, Crown Proceedings Act 1947-Crown could be sued in contract and tort)
Sources of the UK Constitutional Law
A)Legislationiii) Statutes on Election, Composition and working of Parliament (Parliamentary Constituencies Act 1986, Political Parties, Elections and Referendums Act 2000, House of Lords Act 1999-removal of hereditary peers)iiii) Statutes on JudicialSystem ( Courts Act 1971-created Crown Courts), Constitutional Reform Act 2005iiii) Statutes on administrative process (Tribunals Inquiries acts 1958-92)
Sources of the UK Constitutional Law
A) LegislationHistorically, some statutes have had constitutional significance1) MagnaCarta1215 (King John) later approved by the English ParliamentCollection of rights of various classes of the medieval society respecting their different needs
MagnaCarta1215
called: ‘fundamental statute’ the most important in the history of EnglandProtection from arbitrary punishment : right to fair trial and reliance on a fair judging system‘No man should be denied justice’‘no man should be punished except by the judgment by peers or the law of the land’Merchants should not be subjected tounjust taxationLondon and other cities could enjoy their liberties and customsThe Church enjoyed a special position to remain free.
Sources of the UK Constitutional Law
A) Legislation: Historical developmentPetition of Right 1628 (enacted by the English Parliament)Protest against taxation without consent of ParliamentProtest against arbitrary imprisonmentBill of Rights and Claim of Right 1688-1689Restoration of Monarchy in 2 Kingdoms: English and Scottish Parliaments
Bill of Rights and Claim of Right 1688/89
freedom from royal interference with the law (the Sovereign was forbidden to establish his own courts or to act as a judge himself)freedom from taxation by royal prerogative, without agreement by Parliamentfreedom to petition thekingfreedom to elect members of Parliament without interference from the Sovereignthe freedom of speech in Parliament, in that proceedings in Parliament were not to be questioned in the courts or in any body outside Parliament itself (the basis of modern parliamentary privilege)freedom from cruel and unusual punishments, and excessive bailfreedom from fines and forfeitures without trial
Sources of the UK Constitutional Law
A) Legislation, Historical developmentThe Act of Settlement 1700Succession to the throneseparation of the roles ofthe Crown, House of Commons and the Judiciarythe monarch'spowers becameconditional on the approval of Parliament.the judges in the higher courts,once appointed, donot have to be renewed subject to the approval of either parliament or theCrown.Themonarch could not sit in the Commons.
Sources of the UK Constitutional Law
A) LegislationOther statutes of constitutional importanceAct of Union with Scotland 1707Parliament Acts 1911 and 1949European Community Act 1972Human Right Act 1998Constitutional Reform Act 2005Constitutional Acts need to be referred to a committee of a whole HouseThe doctrine of implied repeal does not apply
Sources of the UK Constitutional Law
B) Case LawCourts against the use of tortureA v Home Secretary2005Statutory Interpretationalter the existing rights and privileges of the CrownLord advocate v Dumbarton DC[1990]Give retrospective effect to penal enactmentsWaddington vMiah[1974]interpretation of ex. Human Rights Act
Sources of the UK Constitutional Law
C) The law and custom of ParliamentThe Houses of Parliament have power to override their own proceduresAn example: procedure and setting up different stages how Bills are passed in Parliament.Codes of Conduct for Members of both Houses (each House has its own code of conduct)Parliamentary Standards Act 2009 (expenses scandal)
Sources: Conventions: Rules of constitutional morality
D) Constitutional conventionsRules which are not Acts of Parliament of fruit of judicial decisions but observed by the Queen, ministers, members of Parliament, judges and civil servantsDicey“conventions, understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power..... are not in reality laws at all since they are not enforced by the courts”
Constitutional Conventions
Dicey’sapproach:Constitutional Conventions: conventional conductTo do something what is customarily expected“a generally accepted political practice, usually with a record of successful applications or precedents”“ rules of constitutional behaviour which are considered to be binding upon those who operate the Constitution but which are not enforced by the courts..”Marshall and Moody
Sources of the UK Constitutional Law
D) Constitutional ConventionsExamples:Queen’s speech to open the session of Parliament.Royal Assent is given by the Queen on the advice of the MinistersMonarch has unlimited power to appoint whoever to become her Minister however appointments are made on the advice of Prime Minister thus by ‘convention’ a new Minister needs to belong to one or other Hoses of Parliament.‘conventional rule’ a new government must have the confidence of the majority in the House of Commons
Conventions
ExamplesConventions regulating the work of ParliamentThe House of Lords should give way to the House of commonsFinancial measures should be introduced by the House of commons and not altered by the House of LordsIn the event of a ‘tied vote’ in the House of Commons, the Speaker’s casting vote is cast for the government
Sources of the UK Constitutional Law
What happens when the conventional rule is breached?Loss of officeDeparture from the public lifeMinister is forced to resign

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Constitutional Law - Krakowska Akademia im. Andrzeja ...