Consider the Arguments For and Against Having a Written Constitution.

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 [1858] 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

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Discuss the relevance of the concept of the rule of law to current constitutional arrangements in the UK

"In the mouth of British Constitutional Lawyer, the term "rule of law" seems to mean primary a corpus of basic principles and values, which together lend some stability and coherence to the legal order". (TRS Allan). In the light of the quote above, I am going to discuss the relevance of the concept of the rule of law to current constitutional arrangements in the UK. I will be looking at the current constitution in the UK, the doctrine of the rule of law and the relevance of the doctrine in the operation of state power. The UK is said to have an "unwritten constitution", because it has no single codified documentary constitution. However most of the constitution does exist in the written form of treaties, statutes and court judgements. Due to the absence of a formal written constitution in the UK, there is no positive statement of the basic principles governing state actions and no guidelines that could be used to assess the legitimacy of government action. Lawyers and politicians have used the concept of the rule of law in order to provide such a measure.1 The rule of law is capable of being interpreted differently by different people. It is a recognised principle of the English constitution, which is frequently used to signify a notion of "law and order". At it's broadest it is a framework that constrains arbitrary use of power. The concept of the rule of law dates

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ROYAL PEROGATIVES

GRADUATE DIPLOMA IN LAW CONSTITUTIONAL LAW & ADMINISTRATIVE LAW Coursework Title Lord Frazer in the GCHQ case explained the past position of the courts in relation to the prerogative as follows - ''As De Keyser's case shows, the courts will inquire into whether a particular prerogative power exists or not and if it does exist, into its extent. But once the existence and extent of a power are established to the satisfaction of the court, the court cannot inquire into the propriety of its exercise.'' (Lord Frazer - Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374) Discuss the reasons for this limited judicial control of the prerogative in the past and critically assess the approach finally adopted in the GCHQ case and subsequently. Royal Prerogative derives from common law and they are not from statutes. By origin, royal prerogatives are attributes which of necessity inherent in the kings as the governors of the realm. The royal prerogative consists of those common law powers and immunities which are peculiar to the crown and go beyond the powers of a private individual. The history of the royal prerogatives was created by James 1 between 1603-1625. James 1 was the king of England and Scotland, and when he became king, he appointed himself head of parliament, courts and statutes. Powers of the King were legally based on the royal

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Essay on the function of Judicial Review

PUBLIC LAW ASSIGNMENT 2 MICHAEL ROBERTS TUTOR GROUP L ANNELIESE BLACKWOOD 'The primary purpose of judicial review ... is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse.' Discuss with reference to the common law grounds of review. Judicial review is a process which is widely recognised to incorporate three functions or purposes. Firstly there is the function whereby citizens of the state who have been wronged and caused grievance by a public authority may be redressed. Secondly there is the 'normative and expository' role which encourages good governance through the promotion of fundamental principles. Finally, as the title statement propounds, there is the control of government element which helps to ensure that the power exerted by parliament and public authorities does not go unchecked, although judicial review is only concerned with the procedural correctness and legitimacy of such power and usually administrative or political checks are present to assess the merits of decisions made1. The most effective way to explore these purposes would be to go through the three common law grounds of judicial review as set out by Diplock LJ in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 (illegality, irrationality and procedural impropriety) plus the effects of the Human Rights Act

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Prerogative powers are very important source of UK Constitution dealing with issues such as foreign affairs. There are not written down, and can only be followed in common law. All major prerogative is now regulated by conventions.[1] Despite being the Mo

Prerogative powers are very important source of UK Constitution dealing with issues such as foreign affairs. There are not written down, and can only be followed in common law. All major prerogative is now regulated by conventions.1 Despite being the Monarch's powers, they are being exercised by the Government. With no direct control, they are constantly being abused being seen as an indefinable constitutional power appearing in any form and under any circumstances. Prerogative remains a extensive mixture of rights, powers, duties and immunities operating in all the spheres of government.2 The most classic definition is by A. V Dicey ' the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.'3 Exercise of royal prerogative is expressed by formal documents, by orders in Council or by instructions from Ministers acting on the Monarch behalf. Some of them belong to the Monarch (like appointing Ministers, power to dissolve parliament, assent to legislation, granting honours), but most is exercised by the Government on the Monarch behalf. In case of domestic affairs it is: appointment and regulation of civil service (GSHQ case4), directing the deposition of the armed forces and commissioning its officers (Chandler v Director of Public Prosecutions [1964] AC 763), the prerogative of mercy (R v Foster [1985] QB

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To what extent (if at all) is it true to say that the United Kingdom constitution is based on a separation of powers?

Constitutional and Administrative Law Coursework Assignment To what extent (if at all) is it true to say that the United Kingdom constitution is based on a separation of powers? In addressing this question, it would be useful to explain just what the doctrine of the separation of powers consists of. The concept of the separation of powers goes back to the time of ancient Greece however it only came to be considered as a real 'grand constitutional principle' when the French theorist Montesquieu wrote 'L'Esprit des Lois' (The Spirit of the Laws). In this work, there was an argument for a strict separation of powers, that is the legislature, the executive and the judiciary. So in other words, the power to make the law, the power to govern the state and the power to apply and interpret the law should be separate for the protection of the liberties and freedoms of the individual. Montesquieu justifies his view and this is effectively shown by several passages of his work. 'When legislative power is united with executive power in a single person or in a single body of magistracy, there is no liberty'. The reasons given by Montesquieu for this was that the holder of that power, whether it is an individual or a group can create tyrannical laws and then exercise them in a tyrannical manner. He also said, 'Nor is there liberty if the power of judging is not separate from legislative

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This paper will deal with the common law legal system as a legal transplant, focusing on the reception of the common law in South East Asian jurisdictions, before comparing it with that of East Asian India to analyse how the common law functions and evolv

Introduction This paper will deal with the common law legal system as a legal transplant, focusing on the reception of the common law in South East Asian jurisdictions, before comparing it with that of East Asian India to analyse how the common law functions and evolves as a legal transplant. We will start with an analysis of the historical, socio-cultural and political contexts of the respective countries, from which we can assess the extent of reception in each of these and the resultant issues that arise. Finally we will attempt to arrive at an understanding of the common law as a legal transplant, how it is beneficial and why it evolves differently in the respective countries. Legal Systems as Legal Transplants The term "legal transplants" was coined by Alan Watson to refer to "the moving of a rule... from one country to another, or from one people to another". This involves the spread of cultural items between individuals in the "continual mass borrowing... of rules" which Watson asserts is "the most fertile source of legal development". Watson's theory of legal transplants has been met with great criticism, from being "flawed" with "unconvincing" empirical evidence to "not [being] a theory at all"1. Some insist that legal transplants are impossible, as proponents of legal transplants must accept that law is simply a body of rules, and these rules are bare

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Consider the view that the royal prerogative is insufficiently controlled by either Parliament or the judiciary.

In historical times the royal prerogative was regarded as the sum total of the rights ascribed to the Monarch as feudal lord paramount over the entire realm. Dicey1defines prerogative in a more contemporary sense as the "discretionary authority of the Executive", explaining that this means everything which the Monarch or her servants can do without the authority of an Act of Parliament. Few prerogatives are exercised directly by the Monarch today. While some governmental powers are conferred or defined by statute the prerogative powers of the Executive exist in virtue of customary common law. Dicey's definition of Rule of Law states, in part, that there should be no arbitrary government power. Parliamentary procedure and judicial review are forms of control which when imposed, by the Legislature and the Courts respectively, upon the Executive enable compliance with this understanding of the Rule of Law. Government is dependent upon the support of Parliament for its existence. Ministers of the Executive must account to Parliament and be responsible for their exercise of the royal prerogative. These obligations of accountability and responsibility are owed both to the Legislature and to the various parliamentary select committees. The Separation of Powers doctrine requires the Legislature to assume the responsibility to influence, constrain, and demand justification for the

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EVALUATE THE EXTENT TO WHICH CONSTITUTIONAL CONVENTIONS ARE ABLE TO PROVIDE ANY EFFECTIVE PROTECTION AGAINST THE EXCESSES OF EXECUTIVE POWER

EVALUATE THE EXTENT TO WHICH CONSTITUTIONAL CONVENTIONS ARE ABLE TO PROVIDE ANY EFFECTIVE PROTECTION AGAINST THE EXCESSES OF EXECUTIVE POWER Firstly, in order to provide an adequate evaluation, 'constitutional conventions' and the 'executive' must be defined. The 'executive' can de described as the section of the state that creates policy and is responsible for the operation of those policies (Barnett, 2002). Therefore in formal terms the sovereign is the head of the executive although in practice this position lies primarily with the Prime Minister, his cabinet, and other ministers, followed by those in the Police and the armed forces. Whilst most countries have a written constitution to define the rules, regulations and practices of an executive, Britain (along with Israel and New Zealand) has no such document. It thus follows that formal protections against the exercise of power which exist in those countries with a written constitution do not exist in Britain (Bradley and Ewing, 2003). Instead, the British constitution has three sources of rules: Acts of Parliament; judicial precedent; and non legal rules known as constitutional conventions, (Allen and Thompson, 2002). A.V. Dicey (1965) defines constitutional conventions as: "...understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power, of the

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In what ways is the United States constitution a conservative document? What might have been the mot

In what ways is the United States constitution a conservative document? What might have been the mot The United States Constitution has been a cornerstone of the United States political system since its ratification in 1789. It has remained largely unaltered and continues to have a significant effect on political life. It is largely a conservative document in terms of its content. It can however be viewed as quite radical when it is noted that it was a pioneering document instilling a system of government with many new ideas. In this essay, I will firstly define what I mean by conservative; I will then explain some of the reasons why the document is conservative; I will go on to show how the document is in fact quite radical and it is only by our modern ideas about conservatism that it appears so; I will then examine the problems and influences which led the document to take the form that it did. The term 'conservative' can be taken in many ways. In this essay, it will essentially be taken to mean restrictive of any change or action which could be considered radical. Therefore, conservative ideas attempt to maintain the current political order and keep the system stable. With this in mind, the United States Constitution can be viewed in two ways. The document today looks very conservative and restrictive of change, but in 1789 it was very radical. "The Framers have undergone

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