Monthly Archives: February 2012

English constitution. Authorities

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1. What are the principal sources of the constitution?

They are statutes, documents such as Magna Carta, works of authority (Erskine May, Bagehot and so forth) as well as rulings by courts. Conventions are also part of the constitution.
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2. What is the essential characteristic of a source which is deemed constitutional? What, for example, distinguishes the status of the Act of Union with Scotland from the Road Traffic Act 1983?

The Act of Union touches on affairs of state. It is of major importance and was intended to have effect forever. Of course it is subject to repeal and may be repealed if the referendum calls for Scotland leaving the United Kingdom. The Road Traffic Act is of minor importance and does not affect affairs of state. The Act of Union is seen as having an influence on all other laws – Scotland and the rest of the UK have to conform to each other to a degree.

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3.

A constitutional convention is an unwritten agreement about the ways things should function and accepted patterns of behaviour. Such conventions are not laws and there is no legal sanction for breaking them.

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4. How can conventions be distinguished from understandings, habits, practices and legal rules?

A convention has higher status and is expected to be adhered to by all sides. However, such habits, practices and understandings may ossify into conventions over time. A legal rule has the force of law by definition. A legal remedy is available if this legal rule is broken.

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5. Which Act of Parliament?

a. Prevents Roman Catholics from succeeding to the Crown.
The Act of Settlement 1700

b. United England and Scotland?

The Act of Union 1707/

c. Incorporates the majority of substantive rights under the European Convention on Human Rights into UK law?
The Human Rights Act 1998.

Constitutional conventions

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Between 1909 and 1910 the House of Lords , in breach on convention, refused to agree to the government’s budget. Parliament then passed the Parliament Act 1911 which laid down strict rules for the scrutiny of financial legislation by the House of Lords.

Had the House of Lords acted unlawfully in refusing to agree to the budget? Did the House of Lords break the convention or merely introduce and exception to it?
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The House of Lords was the heavily Conservative dominated. The great majority of peers were then hereditary peers with only a sprinkling of bishops and law lords. The House of Lords did not like the so-called People’s Budget because it was passed by a Liberal Government – most peers were hostile to the Liberals. The budget was rejected for solely partisan reasons. It envisaged higher taxes on the rich, death duties and especially higher taxes on rent income. The House of Lords broke the convention. This was not unlawful since the convention was nowhere defined in law and there was no legal remedy. George V threatened to flood the Lord with Liberal peers if the budget were not passed after the 1910 election. It was then passed.

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In 1975 during the debates on Britain’s continued membership of the European Community the Prime Minister waived the convention of collective ministerial responsibility AND permitted free debate. Following the decision to remain in Europe, the convention was restored. Was there any unlawful or constitutional conduct on the part of the PM? Was the convention of collective responsibility broken or was an exception to it introduced?

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The Prime Minister was responding to an unusual situation. Harold Wilson, Prime Minister at the time, suspended collective cabinet responsibility. This principle is that cabinet ministers must in public defend government policy even if they are against it in private. This was not entirely novel. In the 1820s Lord Liverpool had done the same thing over the Catholic Emancipation issue. He had allowed his ministers to voice their opinions in public over this one most divisive issue.

The convention was not broken. It was a temporary exception to it. The exemption applied only to this issue. After the 1975 referendum the status quo was restored. The Conservative Opposition at the time also allowed its shadow cabinet to express their views freely on this issue during the referendum.

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English constitution – self-assessment questions.

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1. Define the word constitution.

2. Outline the matters that an ideal constitution would cover.

3. Give two examples of the separation of powers under the US constitution.

4. What is meant by a rigid constitution?

5. Which act of Parliament incorporates EC law into UK law?

6. Which parts of the UK have their own parliaments/assemblies?

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1. A constitution is a body of law in statutes or case law that comprises the fundamental laws of a state. A constitution propounds the essential rights of citizens and defines the character of a state and often its territorial boundaries. A constitution explains how the different bodies within a state shall work together and what the laws concerning government are.

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2. A constitution should state the full constitutional title of the state. It ought to law out the fundamental rights of citizens. It will declare what sort of polity the state is – one party state, democracy or dictatorship and so forth. A constitution will declare how different law-making bodies; provinces; courts and so forth are to interact. It will say who the head of state is and the head of government is. It will say how such persons are chosen; how long they can serve and how they can be deposed in case of dire need.

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The President is not allowed to be a member of the Congress. The Supreme Court can strike down laws that are unconstitutional.

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4. A rigid constitution is one that cannot easily be changed and cannot be made, as a temporary provision, to adapt to the needs of a difficult situation such as a war. A rigid constitution would seek to provide for every eventuality rather than allowing authorities to respond as they see fit. A rigid constitution such as the US constitution says that 2/3rds of Congress or 2/3rds of the state must approve a constitutional change. That is why there have been thousands of proposals for constitutional amendments but so few have been carried – 25.

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5. The European Communities Act 1972.

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Northern Ireland

Wales

Scotland

London.

Questions on English law – constitution.

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2.3 Is is possible to distinguish between ordinary law and constitutional law? How would you do so?
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One can distinguish between the two to some extent. Constitutional law means those laws which define what the state is and what powers it has. Constitutional law further stipulates what separation of powers exist and how different agencies of the state inter-relate. Constitutional law further laws down how the state shall interact with the individual and declares those rights that are sufficient importance as to be regarded as being fundamental.

Ordinary law covers less matters such as about the detail of criminal justice; the law of contract, tort, the rules of litigation and so forth. Of course some of the core principles of constitutional law – such as justice – will inform the minutiae of these subordinate areas of law.

To use a metaphor – constitutional law comprises the pillars that hold up the roof the ordinary law is all that shelters beneath that roof.

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2.4 Consider the following issues and explain whether or not these should be classified as constitutional:

a. the right to strike

b. the right to abortion

c. the right to produce and publish pornographic materials.

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a. The right to strike, in England and Wales is not constitutional. The right to strike has never been recognised as such but as there is permissive liberty anything that is not specifically forbidden is allowed. Certain types of worker are forbidden by statute from striking such as the police and the armed forces. It is therefore taken as read that those outside these special categories are permitted to withdraw their labour.

Trades unions have been recognised by law in some form since 1834 and the release of the Tolpuddle Martyrs.

There is nothing in the constitution which declares or implies a right to strike.
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b. Abortion was banned until the Abortion Act of 1967. This act is an ordinary statute and cannot be said to have constitutional status. Some may argue that the right to terminate a pregnancy falls under the right to personal liberty but this is dubious. Pro-Life campaigners assert that termination goes against the right to life which trumps the 1967 Act.

The Abortion Act has limitations on it as it is – with time limits and the need for the consent of two doctors. Therefore it cannot be said to be by any means and absolute right. No, this right is in no sense constitutional.

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c. Pornogrpahy is hard to define. What some may regard as an artistic nude others see as obscence. There are some works that everyone would agree are pornographic. Hardcore pornography became legal by courts refusing to convict people when charged with obscene publications. The police then took the view that if the material in question is not obscene then nothing is. No statute law as such says that pornography is allowed nor does common law.

In arguing for a constitutional right to make and distribute such material one would have to look to a broader right such as the right to exchange information – under the European Convention on Human Rights. Furthermore, English law has long enshrined a right to free expression. This has been around in some form since Magna Carta.

One would have to argue that this is artistic or even lustful expression and therefore is permissible. Yes, one can make an indirect case for saying on has a constitutional right like this. In the US people plead 5th amendment rights to say they are entitled to free speech and this covers the right to disseminate images of sexual activity.

A dream of Paris

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I was in Paris on a very snowy day. I was in a park on a very steep hill. I walked up the precipitious slope – fir trees bounded the white piste. A few people were skiing and so was I after a while – except uphill. It reminds me of the last time I skiied 13 months ago.

Through a gap in the trees I saw the Eiffel tower miles away – it was up the hill.

Later I left the park. A few people were on the sloping street. Suddnely it was summer and this did not seem odd.

Later I was in a top floor flat of a smart building. I was with a few people in the flat. the walls were white and the furniture was minimalist. There was a window in the corner that looked towards another flat. Through the window I caught sight of a chap in the next flat. It was Alec. Alec was the year behind me in school. He chuckled and hailed me over.

I made my excuses and left the flat and knocked on the door of the next flat. Alec opened it and greeted me cordially. He is a top flight barrister and I looked up his profile lately – he wears glasses now. I discussed Alec with Robert lately. Alec grew up in Richmond and is or Irish and Scots ancestry. We chatted happily. We spoke about Fiona who is also in his set.

Maybe this dream is about benign jealousy towards Alec. I would also like to visit Paris soon or St Petersburg.

Rumour: John Terry is a dogger.

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Two well-informed barristers told me last week that the word on the street is that John Terry, the English footballer, is partial to a spot of dogging. I do not know if this is true.

Besides that he is accused of making a racialist remark to a black football player. If this accusation is true then it is a shame on him. I would like the FA to penalise him with a heavy fine but I do not consider such a thing a matter for the police. On the other hand I can see that if the police do not intervene then people may defend themselves. If someone racially insulted me I might lose my cool and lamp him. If I knew that this chap would be having his collar felt by the boys in blue then I could probably restrain myself.