British Constitution

1
British Constitution

• Pre 1970
• Unwritten constitution in sense of U.S.
  Constitution e.g., Crown Privilege
• British Constitution also consists of documents
  such as
• Magna Carta 1215
• Act of Settlement 1700
• Acts of Union 1707

2
The United Kingdom

• Pre-devolution unitary rule from Westminster
• England and Wales
• Scotland
• Northern Ireland
• Channel Islands and Isle of Man
• Remaining colonies

3
Parliamentary Sovereignty

• One could say that the British Constitution is a
  one sentence constitution stating that Parliament
  can make or repeal any law whatsoever.
• Unlike the U.S. Constitution which grants
  restricted powers to the Federal Government

4
Parliamentary Sovereignty

• There are essentially two parts
• Parliament is free to legislate as it chooses
• One Parliament cannot bind its successors
• There is no constitutional supreme court
• English Courts do not have the power to declare
  an Act of Parliament unconstitutional

5
No Separation of Powers

• Queen in Parliament
• Prime Minister and other ministers are members of
  the House of Commons
• The Lord Chancellor is a member of the cabinet
  and sits in the House of Lords but is no longer
  the presiding officer or law lord
• Exception is judiciary after Constitutional
  Reform Act of 2005

6
Checks and Balances

• One of the attributes of Parliamentary
  Sovereignty is that there are no checks and
  balances as in the U.S. Constitution
• The English courts are not constitutional courts.
• The executive, legislative, and judicial overlap

7
Constitutional Reform Act of 2005

• Created a Supreme Court to separate powers of the
  legislative and judiciary functions
• Controversial because little consultation sought
• Opponents said that the current system worked
  well and gave good value for the money
• The estimated start-up cost was 56.9 million
  pounds

8
Supreme Court of United Kingdom

• Effective October 2009, the new Supreme Court of
  the United Kingdom started work
• It took over the Law Lords judicial functions in
  the House of Lords and some function of the
  Judicial Committee of the Privy Council

9
Supreme Court Jurisdiction

• The Supreme Court is the final court of appeal in
  all matters under English Law, Welsh Law (to the
  extent that the Welsh Assembly makes laws for
  Wales that differ from those in England) and
  Northern Irish law.
• Devolution issues (transfer from the Privy
  Council)

10
Justices

• Twelve justices in all
• The court has a president not the Lord Chancellor
• New justices appointed according to the selection
  process will not receive peerages nor be members
  of the House of Lords
• The Law Lords are the first justices

11
No Separation of Church and State

• Church of England is the established church in
  England and Wales
• Presbyterian Church is the established church in
  Scotland

12
Post European Union Membership

• UK membership in 1973
• European Communities Act of 1972
• Parliamentary Sovereignty now in question
• Judicial review of Acts of Parliament in conflict
  with EU treaties and laws

13
Parliamentary Sovereignty Post 1972

• All such rights, powers, liabilities,
  obligations and restrictions from time to time
  created or arising by or under the Treaties, and
  all such remedies and procedures from time to
  time provided for by or under the Treaties, as in
  accordance with the Treaties are without further
  enactment to be given effect or used in the
  United Kingdom shall be recognised and available
  in law, and be enforced, allowed and followed
  accordingly

14
Judicial Review Post 1972

• For the purposes of all legal proceedings any
  question as to the meaning or effect of any of
  the Treaties, or as to the validity, meaning or
  effect of any Community instruments, shall be
  treated as a question of law and, if not referred
  to the European Court, be for determination as
  such in accordance with the principles laid down
  and any relevant decision of the European Court
  of Justice or any court attached thereto.

15
European Court of Justice

• The European Court of Justice is the sole
  interpretor of the Treaties and is also
  responsible for judicial review and enforcement
  of European Community Law.
• The conclusion to be drawn is that the Community
  constitutes a new legal order for the benefit of
  which the states have limited their sovereign
  rights, albeit within limited fields, and the
  subjects of which comprise not only member states
  but also their nationals

16
Permanent Loss of Sovereignty?

• The transfer by the states from their domestic
  legal system to the Community legal system of the
  rights and obligations arising under the Treaty
  carries with it a permanent limitation of their
  sovereign rights, against which a subsequent
  unilateral act incompatible with the concept of
  the Community cannot prevail. Costa v. ENEL

17
Maybe, Maybe Not

• Lord Justice Denning in Macarthys v.Smith in 1979
  said If the time should come when our
  Parliament deliberately passes an Act with the
  intention of repudiating the Treaty or any
  provision in it or intentionally of acting
  inconsistently with it and says so in express
  terms then I should have thought that it would be
  the duty of ours courts to follow the statute of
  our Parliament

18
Direct Effect

• UK courts have been willing to interpret UK
  legislation in the light of an EC directive when
  the national legislation was passed to implement
  a directive
• On the other hand, they have been reluctant to
  interpret national legislation that predated a
  directive or that was not intended to implement a
  directive in the light of the directive.

19
Factortame

• Merchant Shipping Act required registration of
  British fishing vessels. Only British fishing
  vessels could fish in British waters.
• EC law required that the UK allow registration of
  all fishing vessels without prejudice to the
  enforceable Community rights of nationals of any
  Member State of the EC.

20
Factortame Decisions

• The effect of the EC law is as if it were
  incorporated into the Act of Parliament,
  effectively amending it.
• UK courts held that it was the duty of a United
  Kingdom court, when delivering a final judgment,
  to override any rule of national law found to be
  in conflict with any directly enforceable rule of
  law.

21
Pre-devolution Structure

• Pre-devolution unitary rule from Westminster
• England and Wales
• Scotland
• Northern Ireland
• Channel Islands and Isle of Man
• Remaining colonies

22
The Divided Kingdom

• Devolution is the transfer of certain legislative
  and executive powers to the constituent parts of
  the United Kingdom
• The Labor government embarked on a course of
  devolution in 1997

23
Wales

• Conquered by the English in 1282 and merged with
  England under the Act of Union of 1536
• The Government of Wales Act 1998 provides for a
  directly elected Assembly however, NO
  legislative capacity devolved.
• Assembly takes over many of the functions of the
  Secretary of State for Wales who still represents
  Wales in the Cabinet and is not bound by the
  Assembly

24
Scotland

• Scotland Act 1998
• Scottish Executive
• Separate parliament
• Increase tax rate up to 3 pence per pound
• Control local taxation
• Westminster Parliament remains sovereign and has
  exclusive competence in
• Registration of political parties
• Foreign affairs
• Civil service
• Defence and treason

25
Northern Ireland

• In the 1998 Peace Settlement the Republic of
  Ireland amended its constitution to remove claim
  to Northern Ireland
• Act of 1920 recognized the independence of the
  Irish Free State and the partition of Northern
  Ireland which remained with the United Kingdom

26
Irish Home Rule

• Government of Northern Ireland moves from home
  rule through the Stormont Parliament to direct
  rule from Westminster depending on the situation
• The problem is intractable with no solution in
  sight.

27
City of London

• Historically London was geographically one square
  mile and had its own lord mayor
• The Greater London Authority Act 1999 provided
  for a mayor and a centralised area government.
  There is provision for raising money from parking
  fees and road tolls.

28
What of England?

• No regional English parliament has been created
  (The West Lothian Question)
• Who looks after particularly English questions?
• The House of Commons is made up of English,
  Scottish, Welsh, and Irish MPs
• The Scottish, Welsh, and Irish MPs do not have
  Englands interest at heart.

29
Economic and Political Effect of European Union
and WTO

• One of the effects of the European Union and WTO
  is that it makes viable economies that before
  would not be able to survive without being
  incorporated into a larger state
• Examples the break up of Yugoslavia, Breakup of
  the former USSR
• Is devolution going to result in the break up of
  the UK?

30
Executive

• Queen The Crown
• The royal prerogative
• Prime Minister and the Cabinet
• Described as a temporary dictatorship
• Negotiations in international affairs
• Declaring war or peace
• Disposition of HM forces abroad

31
Legislative

• The Queen Royal assent
• The Privy Council
• Parliament
• House of Commons
• House of Lords

32
Privy Council

• Appointment for life but only government
  ministers participate in policy decision
• Administration of the Office of the Leader of
  House of Commons
• Secretariat
• Advises Queen on exercise of royal prerogative
• Governs chartered bodies (corporations,
  charities, other institutions with royal charter
• Higher education
• Governs professions

33
Privy Council Judicial Committee

• Final court of appeal for a number of the
  Commonwealth countries who have chosen to retain
  it (Lords Justices of Appeal and some senior
  Commonwealth judges)
• Appeals from disciplinary bodies
• Appeals in certain ecclesiastical cases
• Devolution issues

34
Judiciary

• The Queen
• Supreme Court
• Court of Appeal (Criminal and Civil)
• High Court
• Family Division
• Chancery Division
• Queens Bench Division
• County and Crown Courts
• Magistrates Courts

35
Post-devolution Structure

• Quasi-federal
• But most powers retained by Westminster
• Labor government lost last election so future of
  devolution uncertain
• Replaced Lord Chancellor Law Lords with Supreme
  Court
• Continued reform of House of Lords ?