Principles of the Constitution

1. 1 Principles of the Constitution

2. 2 Parliamentary Sovereignty 1 This means that Parliament is the source of supreme power in law making. There are a number of aspects to this:- Parliament alone has the right to make or change the law. No other body can change or make the law without the consent of Parliament. There is no limit to what Parliament can make law about.

3. 3 Parliamentary Sovereignty 2 No Parliament can bind the actions of a future Parliament. The courts cannot declare an act of Parliament invalid.

4. 4 Parliamentary Sovereignty Limitations 1 Parliament alone has the right to make or change the law. Parliament has conceded the right to make law to:- The European Council of Ministers British Ministers by delegated legislation. Although the letter of Parliamentary Sovereignty is maintained in that an Act of Parliament gives these powers there is so much European and delegated legislation that the spirit of Parliamentary Sovereignty is undermined.

5. 5 Parliamentary Sovereignty Limitations 2 No other body can change or make the law without the consent of Parliament. In practice judges make law by their interpretations. There is no limit to what Parliament can make law about. There are obvious practical limitations to what Parliament can legislate about.

6. 6 Parliamentary Sovereignty Limitations 3 No Parliament can bind the actions of a future Parliament. In effect Parliament can be bound by a predecessor e.g. the Nigerian Independence Act 1960 It has been argued that certain pieces of legislation such as the Parliament Act have proved so difficult to change that they have effectively bound Parliament. This is dubious since if a Government and its supporters possessed the political will that they could change the Parliament Act.

7. 7 Parliamentary Sovereignty Limitations 4 The courts cannot declare an act of Parliament invalid. The European Court of Justice has declared some British legislation inconsistent with the treaties or EU law and therefore invalid. The Human Rights Act 1998 gave the courts the right to declare a statute inconsistent with the European Convention on Human Rights which places an obligation upon the Government to change the legislation.

8. 8 Parliamentary Sovereignty Limitations 5 Courts in Britain have interpreted legislation contrary to the wishes of Parliament. Judges in Britain have even declared the wording of an Act to be so obscure as to be meaningless and have turned to the principles of natural justice or the common law to apply the law. Although these are not declaring an Act invalid it is coming close to it.

9. 9 Parliamentary Sovereignty In general however we can accept that Parliamentary Sovereignty is adhered to.

10. 10 The Rule of Law 1 This means that all people including the government are subject to the law and should obey it. It is a difficult subject to define absolutely and it has meant different things in different centuries. It has been seen to include the following:-

11. 11 The Rule of Law 2 All persons are equal before the law. All people are subject to one law administered by the courts and there is no distinction in law between ordinary citizens and servants of the state. No one is punishable except for a breach of the law. The powers held by authorities must be conferred by law and exercised according to authorised procedures.

12. 12 The Rule of Law 3 It entails that redress i.e. legal remedy for wrongs - is available to all citizens both against any other citizen, no matter how powerful, and against officers of the state. Certain standards of justice should permeate the law. e.g. the right to a fair hearing before an impartial court.

13. 13 The Rule of LawLimitations There are laws for different groups and poorer people have less access to the law than the rich. The government can usually change the law because it has an overall judgements can be changed for the future. It is unusual for this to be done retroactively. Large areas of the relationship between the state and the citizen are subject to discretionary power and an individual citizen cannot normally appeal to the courts. Comment Politicians tend to talk about the rule of law in the sense that every one should obey it and argue that breaking the law threatens the fabric of society. However there may be reasons for breaking the law:- i) In self defence or to save anothers life e.g. an unlicensed doctor performing an operation in an emergency to save life. ii) To overthrow an illegitimate government e.g. the Marcos regime in the Philippines. iii) Because the law is unjust, perhaps in order to protest against the government or to protest against a policy e.g. Poll tax protesters and Nuclear weapons protesters. However there is a general belief that laws passed by a democratically elected government should be obeyed and that if illegal acts are accepted then order and legitimate government will break down. Yet sometimes limited illegality for political ends has produced success e.g. the Poll Tax. The official Opposition tends to be wary of such tactics:- a) It appears irresponsible and could make it less likely that they would win the next election. b) When they are in government they will want their laws to be obeyed.Comment Politicians tend to talk about the rule of law in the sense that every one should obey it and argue that breaking the law threatens the fabric of society. However there may be reasons for breaking the law:- i) In self defence or to save anothers life e.g. an unlicensed doctor performing an operation in an emergency to save life. ii) To overthrow an illegitimate government e.g. the Marcos regime in the Philippines. iii) Because the law is unjust, perhaps in order to protest against the government or to protest against a policy e.g. Poll tax protesters and Nuclear weapons protesters. However there is a general belief that laws passed by a democratically elected government should be obeyed and that if illegal acts are accepted then order and legitimate government will break down. Yet sometimes limited illegality for political ends has produced success e.g. the Poll Tax. The official Opposition tends to be wary of such tactics:- a) It appears irresponsible and could make it less likely that they would win the next election. b) When they are in government they will want their laws to be obeyed.

14. 14 The Independence of the Judiciary 1 This means that the judges should be independent from the government or any other outside interference so that the government does not determine the outcome of cases and there is no interference from any other outside body.

15. 15 The Independence of the Judiciary 2 The theory of the Separation of the Powers was put forward by Montesquieu a French eighteenth century philosopher (though a distinction between the powers of governing had been drawn by Aristotle). Montesquieu argued that in order to ensure liberty it was necessary to split the 3 powers of government. These are Making the law - carried out by the legislature. Carrying out or executing the law - undertaken by the executive. Adjudicating disputes about the law - carried out by the judiciary.

16. 16 The Independence of the Judiciary 3 Montesquieu argued that each body should be separate, should not form part of another, and should not carry out the functions of another. This theory heavily influenced the writing of the US constitution.

17. 17 The Independence of the Judiciary 4 Ideal Separation of Powers

18. 18 The Independence of the Judiciary 5 Separation of Powers in Britain

19. 19 The Independence of the Judiciary 6 The Separation of Powers and the UK Even in the US there are overlaps between the three institutions. In the UK there is little attempt to separate the executive and the legislature, indeed the executive forms part of Parliament. Only with the judiciary is there an attempt to keep a separation.

20. 20 The Independence of the Judiciary 7 The Constitutional Reform Act 2005 The Lord Chancellor was removed from being Head of the Judiciary and as Speaker of the House of Lords. The Lord Chief Justice became Head of the Judiciary. Government Ministers now also have a specific statutory responsibility to uphold judicial independence.

21. 21 The Independence of the Judiciary 8 A new Supreme Court was established as a final appeal court for the UK, with judges no longer in the House of Lords. Judicial appointments are now organised by the independent Judicial Appointments Commission, designed to make sure candidates are appointed on merit.

22. 22 The Independence of the Judiciary 9 They make a recommendation to the Lord Chancellor who can only reject a candidate on grounds of merit. The LC can only reject candidates twice, the proposed appointee or one of the previously rejected candidates would be appointed on the third occasion..

23. 23 The Independence of the Judiciary 10 Other factors in Judicial Independence Salaries These are substantial so that this lessens the chances of bribery. Security of tenureIn practice Superior court judges have complete security of tenure and inferior court judges are very rarely dismissed. Superior Court judges retire at 75.

24. 24 The Independence of the Judiciary 11 Practice at the bar is said to give judges an independent frame of mind. Contempt of CourtJudges have wide powers and may use them against any attempt to influence the outcome of a case.

25. 25 The Independence of the Judiciary 12 Judicial ImmunityA judge may not be sued in a civil action for anything said or done in the exercise of his judicial office. Insulation from Politics a) Judges may not be MPs. b) By convention judges keep clear of politics. c) In general the Government and MPs do not criticise a judge. d) Although Parliamentary Privilege means that sub judice does not apply, such cases cannot be raised in the Commons unless the Speaker agrees that it is a matter of national importance.

26. 26 Summary The three principles of Parliamentary Sovereignty, the rule of law and the independence of the judiciary all fit together. The law is the law as decided by Parliament and interpreted by judges and all are subject to it. The independence of the judiciary would be meaningless if the government (and others) were not subject to the law.