'A written constitution is a mixed blessing'. Is this the lesson to be learned by would be reformers of the British constitution from studying the workings of the US constitution?
'A written constitution is a mixed blessing'. Is this the lesson to be learned by would be reformers of the British constitution from studying the workings of the US constitution? Gursharonjit Kaur Sond A constitution is a system of laws and customs established by the sovereign power of a state for its own guidance, to form an established form of government. The majority of liberal democracies have a constitution, including the UK, USA and France, but with each being unique and specifically designed to meet each countries need. For instance, 'the US constitution is written within a single document, at a particular date in time as a product of revolution'. (pg 109, McKay, 2001) The UK constitution on the other hand is instead derived from a number of sources, including Statute law, Common law and conventions rather than being written down in a single document. Due to this it is embedded with customs and tradition. One thing that constitutions do have in common though is that they intend to serve the same purpose, with the aim being to serve its citizens and to define the role and power of and between governmental institutions. A written constitution is often regarded as being a 'mixed blessing,' warning would be reformers of the British constitution that along with its advantages there are also disadvantages to having a written constitution. Codified constitutions have a
The Question "Is The Separation Of Powers In The United Kingdom Constitution Myth Or reality?" Can No Longer Be Posed Once The Constitutional Reform Act Has Received Royal Assent
The Question "Is The Separation Of Powers In The United Kingdom Constitution Myth Or reality?" Can No Longer Be Posed Once The Constitutional Reform Act Has Received Royal Assent During the case of Duport Steels v Sirs (1980) Lord Diplock stated that 'the British Constitution is firmly based upon the separation of powers', if however, adherence to this concept was accordingly clearly apparent in our constitution, why then has the question of its realism ever been posed? This essay will attempt to establish the extent to which conformity of the doctrine of the separation of powers has been adopted in the United Kingdom constitution and thus determine if the passing of the Constitutional Reform Bill will adjust current procedures to adhere flawlessly to this doctrine. The separation of powers is a doctrine that divides the working of a constitution into three distinct branches of executive, legislature and judiciary. The origins of the doctrine date back to the 3rd century BC when Aristotle identified the three elements of the state. In The Politics, he proclaimed that: 'There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these
Crown, Prerogative, Government: The Crown The central, organizing principle of government in the United Kingdom is the Crown. It 'personifies the executive government of the country'1: the Crown is associated with executive authority rather than with that of the common interest. Major public powers are seen to rest with the Crown, but are generally vested in ministers, servants of the Crown. Lord Diplock in Town Investments Ltd v Department of the Environment , "to speak of 'the Crown' as doing legislative or executive acts of government, which, in reality...are decided on and done by human beings rather than the Queen herself, invokes risk of confusion." 2 therefore we should instead of speaking of 'the Crown' speak of 'the government'. This establishes two points; firstly that the concept of the Crown distorts reality in representing the different elements of the executive as a unified whole and secondly, Lord Diplock holds the view that executive acts done by ministers are essentially to be considered as acts done by the Crown. However, here Lord Diplock's analysis can be criticized as ministers have often been invested by statute with powers or duties to which they become legally answerable in cases of excess or improper use of such powers and in such cases the immunities of the Crown cannot shelter them. This is illustrated in the case M v Home Office ,
How far is the survival of the royal prerogative a standing affront to the principles of democratic constitutionalism?
James Cook, Selwyn College How far is the survival of the royal prerogative a standing affront to the principles of democratic constitutionalism? The royal prerogative is best defined by Dicey who describes it as "the remaining portion of the Crown's original authority" and notes that "every act which the executive government can lawfully do without the authority of the Act of Parliament is done in virtue of this prerogative." In essence, it is the power the executive (through the Crown) has to act in situations where Parliament has not specified the law. The notion of the government exercising prerogative powers has been described as "outdated" 1 and "ill-defined"2 by writers and thirty years ago, it would have been impossible to reconcile with the fundamental principles of democracy, the rule of law and parliamentary sovereignty. However, the recent refinement of the prerogative through reconciliation with the basic rule of law, ruling on its relationship with parliament, subjection to judicial review and binding by convention has lead to the prerogative becoming an effective tool for governing within democratic constitutional principles. The prerogative as defined by Dicey suggests that the Crown (directed by the executive) can effectively do anything that it is not forbidden to do under law. This can be seen in Malone v Metropolitan Police Commissioner 3which held that
" The Constitution of 1937 was formulated, presented and adopted by the people within a very short time-span, but none the less it encapsulated the mores and ethos of the people. However change was inevitable and Irish society would be transformed over the ensuing decades". Discuss this statement in detail regarding all of the following: . The content of the Constitution as originally enacted. 2. Outline how the Constitution responded to the changing needs of Irish society. 3. Outline ONE Article (or sub-article) the inclusion (or non-inclusion) of which you would regard as surprising given the history of Irish Constitutional emergence. Name: Vivienne Matthews O'Neill Student Number: 00394556 Subject: Constitutional Law Date Due: 18th February 2004. Word Count: 7586. 13 CONTENTS . Introduction 2. The Anglo- Irish Treaty 1921 3. The 1922 Constitution 4. Original content of the 1937 constitution 5. Reaction to the new constitution 6. Status of the country in 1937 7. The doctrine of precedent 8. Conclusion 9. Bibliography. 13 INTRODUCTION The Irish Constitution is necessarily a product of it's time; the immediate post-revolutionary period of Irish history. To a greater extent than is perhaps generally appreciated, the 1937 Constitution re-enacted that of 1922 with a re-ordering of the contents which served partially to disguise its
Why the UK needs a "Fundamental" Constitution By Iqbal Khan "...the Constitution in England (or properly, the United Kingdom) does not exist, since Parliament can always amend whatever arrangements are in place." (Alexis de Tocquivelle, Democracy in America) Contrary to Tocquivelle's enciphered view point stated above, the literal meaning of which is that the UK does not have a constitution, I partially adhere to the notion of scholars such as Lord Scarman, that the UK does have a constitution but it is hidden and difficult to find.1 What this basically means is that there is no single document, or a codified document, that contains all the required information for a document to be labelled as the "Constitution of the United Kingdom". At the same time the sources for the required data that needs to be incorporated in a written constitution are either hidden or scattered and hence difficult to find. However, the issue that I want to elucidate is not that of the need for a codified constitution, which is the accumulation of all the laws, processes and conventions existing in the UK into one single document, but that of an absence of a "fundamental constitution" for the UK and the ardent need for the existence of one in today's UK. This is the deciphered point buried under Tocquivelle's statement above. A fundamental constitution is one, which incorporates a set of rules,
Title: Does the idea of parliamentary sovereignty still provide a convincing explanation of constitutional realities in the United Kingdom? Word Length: 1532 Parliamentary sovereignty as described by Dicey is 'the right to make or unmake any law whatever; and further...no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament'1. This power of the Parliament has been progressively eroded in three contemporary issues: Britain's membership in the European Union, the devolution of legislative powers to Scotland, and the establishment of the Human Rights Act 1998. Although it can be seen that supremacy has been retained by law, the political reality is that it wouldn't be practical for the Parliament to exercise these rights. Hence, parliamentary sovereignty does not provide a convincing explanation of constitutional realities in the United Kingdom. The British membership of the European Union has posed a threat to the supremacy of the Parliament but it can be purported that by law, the power still resides with Westminster. In theory, it is possible for the Parliament to repeal the European Communities Act established in 1972 and withdraw from the European Union. This could simply remove the obligation of the courts to 'interpret [Community law] in preference to municipal law'2. Furthermore, Parliament is
Using case law illustrations, explain how the literal rule of statutory interpretation operates and how the golden rule modifies the literal rule
Using case law illustrations, explain how the literal rule of statutory interpretation operates and how the golden rule modifies the literal rule. The courts or the judges are left to interpret the legislation made by parliament. Legislation is supposed to direct judges in what decision to make but it is not always this easy. The case of Bennion (2005) identifies a number of these matters. * A word may be left out or have several meanings. * A broad term is used leaving the reader to decide what it means * An ambiguous word or phrase is used. * The object or circumstance may have only existed after the parliament1 for example if legislation was out to ban vehicles from entering London and skateboards were invented after it was introduced. Would it include it? In all these situations the court will try to figure out what the parliament was intending. As part of the judiciary, they are supposed to implement law so it would be wrong for them to make their own decision. Once this is done, then this becomes part of case law, but it will not be the final decision, a higher court may decide it is wrong. But if it was interpreted by a higher court to begin with, then the lower court must always follow that decision. The Interpretation Act 19782 provides guidance to interpreting legislation. The literal rule is following the literal meaning of words. In was stated in the case
Constitutional Law: In the late twentieth century it is no longer possible for Parliament to fulfil Parliament, the Commons and Lords, play an important role in calling the executive to account. They perform both a retrospective and prospective role to keep the executive in check. Retrospectively using question time and select committees and prospectively in standing committees and voting on legislation, amongst other things. Their authority to scrutinise is somewhat curtailed in that the executive, which can be described as the cabinet and top civil servants, is by convention limited to the government of the day which makes up the Cabinet. Parliament can scrutinise only the actions for which a Minister is responsible although this area may be large. Civil servants are not required to answer for their actions to Parliament only to their departmental Minister. They can however be questioned by Parliament regarding departmental matters on the running of departments. Junior ministers can also be questioned on government matters although they are not directly in the executive. This leads to a somewhat haphazard system of accountability which becomes more entrenched with the fact that part of the executive resides in the House of Lords. The Commons retrospective powers of scrutiny can be divided into two areas, those on the floor of the house and those not. On the floor of the
Jade Fallen Consider the Arguments For and Against Having a Written Constitution A constitution is a set of rules and principles which determines the relationship between those who govern and those who are governed. It dictates who is in authority and governs the relationships between those who are in authority. It determines the ways that these people exercise their powers and instructs how they must operate. As a source of principles and values in each individual society it maintains how free and open the society is. In the United Kingdom the constitution aims to perpetuate a representative democratic society, yet the sources and evidence for this can not be found in one, singular written document entitled "The Constitution". Instead it can be found in many sources and documents such as the Human Rights Act 1998 and the Bill of Rights, designed to protect citizens from an abuse of power, by those in authority. A written constitution would serve invaluable as a clear index for courts to ascertain where a constitutional breach has occurred. In the United States of America a case Marbury v. Madison  highlighted a situation where the government at the time passed a legislation which was contrary to the constitution. In this case the legislation was over-ruled by the courts as this was a right addressed to them by the legislation. This case highlights a fundamental