English constitutional law (lectures 1-6)

Constitutional Law

         Partie 1

        A)key-characteristics of the British constitution

“The fundamental parts of British constitutional law could be taken as to include the following statues :

Magna Carta 1215 — clauses 1, 9, and 29, as enumerated in 12975, remain in statute; clause 1 asserts the freedom of the English church, clause 9 the liberties of the City of London among other cities, and clause 29 establishes the right to due process;   «No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.»        

Habeas Corpus 1649 ---  is only procedural device used to examine the lawfulness of prisoner’s detention. Albert Venn Dicey «declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty.»

Bill of Rights 1689 — altered the balance of power in favour of Parliament over the Crown by asserting certain rights of Parliament and limiting the powers of the monarch;

Parliament Acts 1911 and 1949 — asserts the supremacy of the House of Commons by limiting the legislation-blocking powers of the House of Lords and fixes the maximum duration of Parliament as five years. On rare occasions will the House of Commons use the "Parliament Acts" (the Parliament Act 1911 and the Parliament Act 1949) to pass legislation without the approval of the House of Lords

Life Peerages Act 1958 — establishes standards for the creation of life peers which gives the Prime minister the power to change the composition of the House of Lords

Human Rights Act 1998 — incorporates the European Convention on Human Rights [long title : the European Convention for the Protection of Fundamental Freedoms and Human rights] into UK law;  

 House of Lords Act 1999 — reforms the House of Lords by removing hereditary peers, the elected rump of them remaining in the House of Lords are turned into life peers;  

And over but that the most important we can add : The Petition of right 1628 and habeas corpus 1675

                 B)the customary (coutumier) part of the B. constitution 

 The Monarch shall give [/grant] the Royal Assent to all Bills passed by Parliament – the Royal Assent was last refused by Queen Anne in 1708, for the Scottish Militia Bill, on the advice of her minister

The Monarch will ask the leader of the majority party in the House of Commons to form a government, and if there is no majority party, the person who appears most likely to command the confidence of the House of Commons to serve as Prime minister and form a government.

Conclusion: So to conclude on this section devoted to the key-features of the British constitution: the latter is mostly written; it relies somewhat on political custom and, above all, it is not, has never been, and one might even add, never will be codified into a single document as one of its unacknowledged [meaning “not officially recognised”], distinctive characteristics [/traits] is to partake of the British identity, alongside the monarchy and, as a result, to be politically untouchable.  

                C) Nature of the B. constitution

Eric Barendt argues that the uncodified nature of the United Kingdom constitution does not mean it should not be characterised as a “constitution” in fact that parliamentary sovereignty potentially allows Parliament to violate fundamental rights.

For him a written constitution, codified in a single or several documents would impose limits on what B.Parliament could do. Until now the Parliament of the UK has had no limit on its power.

        Conservatrice = unwritten constitution is good like the eighth wonder of the world.

        Labour or Liberal-Democrat = You might want to ring-fence (sanctuariser) fundamental rights and democratic processesby safeguarding them into a codified constitution.

Tony Blair ( Labour ) did a fair amount of constitutional reforms in the late 1990s with the European Convention on Humans Rights into UK. Gordon Brown follow this polity in 2007 but this polity finish by the reverse effect and the voting of the brexit in 2016.

I°] England's legislative and historical constitution  

The sources of British constitutional law: Many sources not been unified into a single document, the british constitution is derived from a range of sources Statues(Acts of parliament), Royal Prerogative, miscellanies and until 2019 European Union law

- Statues: Acts of Parliament are the most important source of the B. Constitution

The Petition of Right 1628 starts of the rule of law in Britain, this document presents specific liberties of the English subject that the king is prohibited from violating. This document was written by common law judges, common lawyers, sitting in the House of Commons (Sir Edward Coke)but simply reconfirm ancient liberties, rather than establish new rights.

- Common law: Court judgments are also generally considered as a significant source of the British constitution. “judicial precedent”

- The Royal Prerogative: There is lot of royal prerogative : - The power to declare war and peace

- The power to ratify and make treaties

- The power to dismiss and appoint a PM (most important)

The Royal Prerogative is not unlimited; this was established in the Case of Proclamations (1610), which confirmed that no new prerogative can be created and that Parliament can abolish individual prerogatives. However, as part of Parliamentary Sovereignty, Parliament could create new prerogatives if it so wished regardless. 

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