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BASIC PRINCIPLES OF THE CONSITUTION - Coggle Diagram
BASIC PRINCIPLES OF THE CONSITUTION
INSTITUTIONS
PARLIAMENT
The law-making body; highest position
have to be a member of Parliament to be a member of Government
holds government Ministers accountable
Stats
2019: 650 MPs, 220 Female, 65 BAME
COURTS
Head of Division
Composition
5 Offices
1 female
1 BAME
Court of Appeal
39 Justices
8 females
1 BAME
Supreme Court
Created in
2008
Role
adjudicate legal disputes
interpreting the law
hear challenges to legality
Composition
12 Justices,
2 Female
0 BAME
High Court
99 High Court Justices
28 females
4 BAME
GOVERNMENT
Executive body that carries out functions of the state
Cabinet are the most senior decision-making body
lead by PM
CROWN
potentially ambiguous term
role
= appointing PM
hereditary title
INTRODUCTION
Definition
= a set of rules/ practices, legal and non-legal that provide a basis for government/ organisation in a state
FUNCTIONS
constituting and distributing public power
creating mechanisms of accountability
creates its own legitimacy
Legitimacy
they have to at least try to look legitimate, in order to justify authority
if legitimacy is not achieved, there's the
possibility of a revolution
; "a nation has, at all times, an inherent indefeasible right to abolish any form of government if it finds inconvenient" -
T. Paine, 'Rights of Man', 1791
Codification
People like
F. Ridley
want the constitution to be codified as they're concerned with
safeguarding
certain documents
entrenching
others against an 'elective dictatorship'
SOURCES
CASE LAW
judicial decisions/ common law ; courts interpret statutes and statute is subject to amendment
"the common law is the main crucible of modern constitutional law" - S.Sedley, 'The Sound Silence'
Key cases :
Entick v Carrington (1765)
; key principle for Rule of Law
Burmah Oil Co v Lord Advocate (1965)
; introduced
War Damage Act 1965
M v Home Office (1994);
Government should be answerable for the inference of administration of justice
Al Rawi v The Security Services (2011)
; couldn't use closed proceedings (cases that are held in secret), under common law administration, if a statute doesn't authorise it
Bank Mellat v Her Majesty's Treasury (2013)
; closed material proceedings are more widely available now
ROYAL PREROGATIVE
unwritten source of the constitution; "the residue of discretionary or arbitrary authority...left in the hands of the Crown" - Dicey
exercise of the royal prerogative is often regulated by constitutional conventions
Key examples
power to govern foreign affairs
appointment of the PM
royal assent to legislation
prorogation; power to momentarily suspend Parliament
Limits
List of prerogative powers can be shrunk by moving to a statutory footing
"after statute has bee passed....it empowers the Crown to do what can henceforth only be done by and under the stature" -
Lord Atkinson, AG v De Keyser's Royal Hotel (1920)
Ways it can be shrunk
1. Piecemeal Reform
Parliament can occasionally move one discrete area of the prerogative power onto a statutory footing, e.g )
judicial appointments (2005)
Parliament is clipping away at the importance of the prerogative
2. Wholesale Reform
Abolition of the whole prerogative source and moving it onto a statutory footing
stated in
Conservative General Election Manifesto (2010)
3. Judicial Review
this idea was swept away in the
GCHQ (1985)
case though;
Lord Roskill
said "some parts of the prerogative are still not appropriate to argue about in Courts"
Lack of importance in the modern world
the royal prerogative isn't really royal at all as these powers keep getting dished out to the PM
List of prerogative powers cannot be expended
-"it is 350 years and a civil war too late for the Queen's courts to broaden the prerogative" -
Lord Diplock, BBC v Johns case (1965)
Controversies
Brexit and
Article 50
repealing the
Fixed Term Parliament Act 2011
Prorogation Scandal;
Miller/ Cherry case
STATUTE
law made by Parliament
supreme source of legal rules in the UK
examples of historic legislation: the
Magna Carta (1215)
Bill
= a draft law that Parliament is considering; once passed, a bill becomes legislation
statute has effect over
inconsistent
common law rules
CONSTITUTIONAL CONVENTIONS
Definition
= variety of non-legal constitutional rules , not enforced by the courts but still binding; can even modify the effect of legal rules
e.g)
Salisbury convention
; HL won't obstruct government legislation
e.g)
Sewel Convention
; manages the overlapping power between Parliament for the UK and Parliaments in devolved countries
Judges interacting with Convention
AG v Jonathan Cape (1976)
; issue of confidentiality turned on the
Ministerial Code
- Evans v Information Commissioner (2012)
; whether it was in the public's interest turned on a constitutional convention
"they act as restraints on the freedom of political parties in Government to pursue their sectional ends" -
Jaconelli
Controversies
People argue there's a need for Commons approval for the use of military forces
Sewel Convention
; controversy about its scope and how it has been breached with the passage of the
EU (Withdrawal) Act (2018)
Point/ Value of Conventions
law is not the only type of regulation
law is not always the best kind of regulation
some things need regulating;
Miller (2017) case
Transition from Convention to Law
Ponsonby Rule
= ratification of international treaties; treaties would be laid before Parliament and Parliament given an opportunity to veto them
the Ponsonby Rule is now statute; constraining the exercise of prerogative powers
How to Know if Something is Governed by Convention
Jenning's Test:
What are the precedents?
Did the action in the precedents believe that they were bound by a rule ?
the test is great for non-legal rules that have developed overtime, but some conventions do not fit this test; e.g)
Sewel Convention and Ministerial Code
CHARACTERISTICS
UNCODIFIED
not a single constitutional text
Debate
- Reform Post-Brexit
NOT ENTRENCHED
constitutional law is not supreme law; there is no special status to this law
Entrenched constitutions:
more difficult to change
higher status
protected against easy amendments
Debate
- Courts and Principles
PARLIAMENTARY DEMOCRACY
PM is not elected directly
powers exercised by democratic office holders
Debate
- Prorogation Scandal
FORMAL MONARCHY
The Queen is the head of state and so formal figurehead
has some constitutional powers, etc. granting a prime minister
Debate
- Prorogation Scandal
UNITARY STATE
definition
= one unit of government at the heart of the state making rules for the entire state
devolution in Scotland, Wales and NI has occurred;
not a federal state
as all four nations do not have equivalent powers , own insututions and are part of one state, e.g)
America
Debate
- Possibility of a second referendum