British constitution_Language and sources 2010

8/7/2019 British constitution_Language and sources 2010

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THE BRITISH CONSTITUTION

Language and Sources

Alison Riley

7th April 2010 Liceo G.Galilei di Dolo


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WHATISACONSTITUTION?

A legal document?

A set of rules and rights?

A fundamental law?

WHO IS AFFECTED BY A

CONSTITUTION? The people?

The rulers and state organs?


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Consider

The Italian Constitution

The U.S. CConstitution

Any other constitutions you have heard of:

T

he CConstitution of South Africa: Signed by Nelson Mandela in 1996 in 11 languages

The French CConstitution (Vth Republic)

A future constitution of Padania?

A future Scottish constitution?

andthe British constitution?


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Compare the Constitution of

the Italian RepublicPrincipi fondamentali

Art. 1

L'Italia una Repubblica democratica,

fondata sul lavoro. Form of state: ademocratic republic

La sovranit appartiene al popolo, che

la esercita nelle forme e nei limiti dellaCostituzione. Sovereignty belongs to the people

Sovereignty is exercisedwithin constitutional limits


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Parteprima

DIRITTI EDOVERIDEI CITTADINI

TITOLOIRAPPORTI CIVILI

Art. 13.

La libert personale inviolabile.

Non ammessa forma alcuna di detenzione,di ispezione o perquisizione personale, nqualsiasi altra restrizione della libert

personale, se non per atto motivatodell'Autorit giudiziaria e nei soli casi emodi previsti dalla legge.


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Compare the Constitution of the

United States of AmericaPreamble: We the People of the United States, in Order to form a

more perfect Union, establish Justice, insure domesticTranquility, provide for the common defence, promotethe general Welfare, and secure the Blessings of Liberty

to ourselves and our Posterity, do ordain and establishthis Constitution for the United States of America.

ARTICLEISection 1All legislative Powers herein granted shall be vested in

a Congress of the United States, which shall consist of aSenate and House of Representatives.


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A constitution

is normally but in the UK The constitution ispartof government

Does not consist of

superior rules, is notentrenched:

Is an integral part ofthe law

No specialparliamentaryprocedure

- antecedenttogovernment

a superior set of rules,entrenched:

Takes priority overordinary law

Can be amended onlyby special procedure


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A constitution

is normally but in the UK an act of foundation:

After a war, revolution,

constitutional crisis

Written:

In a single

constitutional text:

The Constitution

The UK has no act of

foundation:

Evolved over centuries

It is unwritten

No single constitutional

text a variety of sources

The constitution


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Does the UK have a constitution?

Of course its not an anarchy!

The British constitution is unwritten:i.e. there is no single constitutional text

X the Constitution X

Even if many written constitutionswritten constitutions in the world today havebeen shaped by the Westminster model of government


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A constitution is

the system of rules defining the composition, powers and relations of the

state organs:

the legislature, the executive, the judiciary

the headof state: (UK) the monarchy

The system of rules regulating relations between the

state and individuals: civil liberties, individual rights andduties

the scope andlimits of state powers in relation to the individual


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What are the sources of

the British constitution?

A variety of different sources:

Statute law

Common law (judicial precedent)

Constitutional conventions

Also:

EU law, ECHR law, legal treatises, the law and customs of

Parliament, the Royal Prerogative


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The importance of statute law

A statute is an Act of Parliament, legislation, enacted law, laws

Parliamentary sovereignty the fundamental

doctrine of the British constitution: there are no legal limits to the power of UK Parliament

to legislate

one Parliament cannot bind another


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The Queen in Parliament

the legal name for the legislature (or King )

composed of: the monarch (King or Queen)

the House of Lords (peers: Lords Spiritual, Lords Temporal)

the House of Commons (elected Members of Parliament, MPs)

The enacting words:

BE ITENACTED by the Queen's most Excellent Majesty,by and with the advice and consent of the Lords Spiritual

andTemporal, and Commons, in this present Parliamentassembled, and by the authority of the same, as follows:-

this formula introduces the text ofan Act of Parliament

expresses the authority of the legislature to create law


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Examples: statute law

Major source of the constitution a writtenconstitution today?

Recent constitutional reforms:

European Communities Act 1972 EU

Human Rights Act 1998 ECHR

Scotland Act 1998 devolution

Constitutional Reform Act 2005 Supreme Court of the UK

Common law constitutional statutes

Lord Justice Laws in Thoburn v Sunderland CC (2003)


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The importance of common

law The British constitution has no written charter of

rights (or Bill of Rights)

The courts have traditionally defended the rights

of the individual against state encroachment

Are Convention rights (ECHR/Human Rights Act1998) now effectively a charter of rights?

(to discuss next lesson)


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Example: common law

Judicial precedent / case law

The case ofEntick v Carrington 1765 FACTS: The Home Secretary authorised a raid on the home of MrEntick (a printer and Opposition sympathiser) with a general

warrant (manda

to); papers were taken away. CIVIL CASE: trespass to property (land and goods)

DEFENCE: general warrant, state necessity; custom and tradition

DECISION: Abuse of power: no positive law (statute or precedent)authorised the interference-

If it is law, it will be found in our books. If it not be found there, it is notlaw.

Jury awarded 300 damages to Mr Entick

LAW: Placed limits on the power of the Crown to interfere with acitizens person or property without lawful authority


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Example: Rice v Connolly

High Court of Justice (Divisional Court) (1966)

FACTS: Police officers asked Rice questions:

Where are you going?

Where have you come from?

Whats your full name?

Mr Rice was behaving suspiciously / early morning / break-ins in the

area

Mr Rice refused: If you want me, you will have to arrest me


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The decision

Rice was arrested and charged with:

wilfully obstructing the police contrary to s. 51(3) of

the Police Act 1964

Lord Parker, CJ: wilful = not merely intentional, but without lawful excuse

Though every citizen has a moral duty to assist the police

there is no legal duty. The whole basis of the common law is

the right of the individual to refuse to answer questions put to

him by persons in authority, and to refuse to accompany

[them], short, of course, of arrest.


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The law

The general principle of the common law is that it is nota criminal offence not to answer questions (especially ifthe answer would be incriminating)

But: under common law and statute, there are manyexceptions: Motorists (poss. Accident / traffic offence)

Official secrets

Investigating companies

Terrorism, drugs etc.

Many common law rights have been limited by statute


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Historical landmarks

1066 William I The Conqueror - the Duke ofNormandy invaded from France.

Land was recorded in the Doomsday Book

Henry II important legal reforms relating toapplication ofcommon law

King John Magna Carta 1215 (and subsequentversions) limitations on Royal authority imposedby the Barons (the people)


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Some significant steps in history

Henry VIII broke away from the Roman Catholic Church

head of the Church ofEngland

Elizabeth I ruled with advice from her ministers but also with reference toParliament

Elizabeth I died without an heir. 1603 Thrones ofScotland and Englandwere united under James I (James VI of Scotland), son of Mary Queen ofScots.

Charles I believed in the divine right of kings.

He tried to rule without Parliament constitutional crisis

Civil war between King and Parliament (1642-1649) the Roundheads (Parliament creates New Model Army)

and the Cavaliers (loyal to the King)


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The trial of Charles I

Parliament tried the king for:

waging war against his people and against Parliament

Westminster Hall, 20th January 1649 : Trial commenced before 50 Members of Parliament

King refused to recognise legality of proceeding heclaimed to be above the law

27th January: King found guilty Sentenced to death by execution

30th January: Kings execution in Whitehall


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The Kings last words

For the people I truly desire their liberty andfreedom as much as anybody whatsoever;

but I must tell you that their liberty and freedom

consists in having government, those laws bywhich their lives and goods maybe most theirown.

It is not their having a share in the government;

that is nothing appertaining to them; a subject and sovereign are clean different things


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An interlude

1649-1653 The Commonwealth (Republic)

1653-1659 The Protectorate:

a monarchy, but not in name

Lord Protector - Oliver Cromwell (then his son, Richard)

Cromwell ruled with:

A Council of 15

A Parliament of 400

1660 Restoration of the monarchy:

Son of Charles I, Charles II (1660-1685)

James II (Catholic rule) (1685-1688)


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1689: a new

constitutional settlement

Glorious revolution/English revolution William III and Mary II were offered the throne in 1689 to rescue the

nation and the religion

BUT strict conditions were attached: a contract

BILLOFRIGHTS 1689 - shift in the balance of power

Parliamentary sovereignty

No army could be raised without parliamentary approval;

Taxation required parliamentary approval;

no special courts for political ends; free elections and annual parliaments;

freedom of speech inside Parliament;

protestant monarchy guaranteed (+ Act of Settlement 1701)


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Looking back at a

dramatic period in history Revolution and civil war (1642-1649)

the legal execution of a King (1649)

an interlude of republican government

(1649-1660)

Restoration of the monarchy

The glorious revolution (1689)

Between 1649 and 1659 England had

four constitutions


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Revolution or evolution?

In modern times:

no single event has created the need for

comprehensive revision of the constitution

The British constitution:

has evolved in phases reflecting the political, social,

and economic experiences of many centuries

Peter Leyland, op.cit.

It is a flexible constitution: it is not entrenched


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Now examine

The Bill of Rights 1689

See selected extracts in Legal English andthe CommonLawpage

49

Suggested website for historical documents:

www.britannia.com


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For further reading

Legal English and the Common Law Alison Riley(Cedam, Padova

2008)

Chapter 2 :

The Language of a Legal System

Laws, courts andconstitutions


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Suggested follow-up in Legal

English and the CommonLaw

Chapter 2, in particular pages 49-69

2.1 Introduction

Including Bill of Rights 1689

2.2 Legislation and the legislature Including 2.2.3 Constitutional monarchy

Task 3

2.3 Consulting legislation: British constitutional reform

(Scotland Act 1998)

Tasks 4 and 5

2.6.1 Legislation as a source of constitutional law


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Suggested reading on sources

The Constitution of the UnitedKingdom. A Contextual Analysis

by Peter Leyland

(Hart Publishing, Oxford, 2007)

Chapter 2: The sources of the constitution (pages 19-33)


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Suggested websites

www.royal.gov.uk UK monarchy

www.parliament.uk - UK Parliament

http://europa.eu - European Union

www.opsi.gov.uk - UK legislation

Documents

British constitution_Language and sources 2010