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help needed with some constitutional law questions!!
Hi,
Just wondering if anyone can help me out with some of these questions:
1.whats the purpose of a constitution and why does a nation think it needs 1?
2. what are the main strengths and weaknesses of the uk constitution?
Any helpwould be much appreciated.
thanks
Just wondering if anyone can help me out with some of these questions:
1.whats the purpose of a constitution and why does a nation think it needs 1?
2. what are the main strengths and weaknesses of the uk constitution?
Any helpwould be much appreciated.
thanks
Scroll to see replies
One strength of the constitution is its flexibility, because it's not written.
dragon_1706
One strength of the constitution is its flexibility, because it's not written.
wrong, parts of it are written, it's just not codified.
It could be argued that the assumption that the consitutition is flexible because it is unwritten is misleading. The fact that a rule is non-legal, in other words a convention, does not necessarily mean that the rule is anymore flexible than a rule that is governed by a law. It could even be argued that conventions are more inflexible than legal rules because, if they are truly conventions, they will be rooted in a long history making them difficult to change because there is no established procedure to change a tradition as there is with a law.
poltroon
It could be argued that the assumption that the consitutition is flexible because it is unwritten is misleading. The fact that a rule is non-legal, in other words a convention, does not necessarily mean that the rule is anymore flexible than a rule that is governed by a law. It could even be argued that conventions are more inflexible than legal rules because, if they are truly conventions, they will be rooted in a long history making them difficult to change because there is no established procedure to change a tradition as there is with a law.
It is innaccurate to descirbe the UK constitution as "unwritten". It is not unwritten, but it is uncodified.
God I hated this topic.
Obviously the main sources are statute and common law - what is good/bad about both of those?
Read Dicey's Introduction to the Study of the Law of the Constitution, or at least some quotes in other textbooks.
Link the UK question to parliamentary sovereignty (we could legislate on it being illegal to smoke on the streets of Paris being a particular favourite example).
Compare with US written constitution. Compare separation of powers in both. Mention constitutional conventions such as ministerial responsibility, Royal prerogative.
Then go out, get hammered and hope you never touch the subject again!
Obviously the main sources are statute and common law - what is good/bad about both of those?
Read Dicey's Introduction to the Study of the Law of the Constitution, or at least some quotes in other textbooks.
Link the UK question to parliamentary sovereignty (we could legislate on it being illegal to smoke on the streets of Paris being a particular favourite example).
Compare with US written constitution. Compare separation of powers in both. Mention constitutional conventions such as ministerial responsibility, Royal prerogative.
Then go out, get hammered and hope you never touch the subject again!
Purpose of a constitution... a framework of rules which dictate the relationships between people and the state and how the state should govern. Perhaps consider Locke's thory of Natural Rights - the social compact - the notion that people surrender liberty in exchange for protection whilst reserving the right to "revolt" and replace that government should they fail to deliver what the people want. The purpose, therefore, of the constitution is to provide a set of rules that defines the relatiosnhip between all parties.
Strengths of the UK Constitution - Flexible, can be changed QUICKLY (by a simple statute as opposed to time-consuming development through the common law. By the same token it will be/should be relatively "precise" in its terms (unlike the US cosntitution which relies on interpretation of "oiginal intent").
Weakness - Parliament is supreme - however, where are the checks and balnces; the seperation of powers? Consider the role of the Lord Chancellor - Head of the judiciary, a memeber of the executive and, as a cabinet minister a member of the legislature... Consider the role of the Law Lords - High ranking memebrs of the judiciary and members of the legislature (although by CONVENTION - though not by law - they do not as of a rule get involved in the legislative process). And that takes me to another weakness - CONVENTION - much of the Uk consitituion relies on conventions - acts (or people omitting to act - e.g. Royal prerogative) which are not recognised in law. The conventions can be broken - often many times - but they will rmeain "convnetions" until the acto fo breaking them enough times develops the "new" convention - again, not recognised in law.
just a few things off the top of my head...
Strengths of the UK Constitution - Flexible, can be changed QUICKLY (by a simple statute as opposed to time-consuming development through the common law. By the same token it will be/should be relatively "precise" in its terms (unlike the US cosntitution which relies on interpretation of "oiginal intent").
Weakness - Parliament is supreme - however, where are the checks and balnces; the seperation of powers? Consider the role of the Lord Chancellor - Head of the judiciary, a memeber of the executive and, as a cabinet minister a member of the legislature... Consider the role of the Law Lords - High ranking memebrs of the judiciary and members of the legislature (although by CONVENTION - though not by law - they do not as of a rule get involved in the legislative process). And that takes me to another weakness - CONVENTION - much of the Uk consitituion relies on conventions - acts (or people omitting to act - e.g. Royal prerogative) which are not recognised in law. The conventions can be broken - often many times - but they will rmeain "convnetions" until the acto fo breaking them enough times develops the "new" convention - again, not recognised in law.
just a few things off the top of my head...
Fetters on parliamentary sovereignty via the European Communities Act 1972 and the HRA 1998 but are they true fetters since parliament could, theoretically anwya, revoke them at any time.
The EC element is a very important one, I would say - the fact that an EC directive tends to lead to an Act of Parliament - therefore, although Parliament is supreme, the EC has an equally powerful hand in the development of our constitution... Might be worth mentioning the recent sounding off by David Cameron that the Tories would scrap the HRA and instsitute a Bill of Rights. How realistic is that and what effect might that have on the EC element/relationship?
Woah hold your horses!!!!!
HRA and EC are totally separate and not related in any way. One is via the European Court of Justice and one via the European Court of human Rights, they are in NO WAY AT ALL related, and should never be lumped together!!!!!!!!
however, I doubt europe would take too kindly to us taking our HR disputes away from a supranational system, as the ECHR regularly finds national courts have applied an incorrect interpretation ... but of a domestic bill of rights surely their interpretation would then be the correct one so this problem would be evaded ... the fact remains though that we should probably stay within the ECHR, if we weren[t a member yet I might have different views, but removing yourself from such a body after years of accession just looks dodgy and like you want to protect HR less!!
HRA and EC are totally separate and not related in any way. One is via the European Court of Justice and one via the European Court of human Rights, they are in NO WAY AT ALL related, and should never be lumped together!!!!!!!!
however, I doubt europe would take too kindly to us taking our HR disputes away from a supranational system, as the ECHR regularly finds national courts have applied an incorrect interpretation ... but of a domestic bill of rights surely their interpretation would then be the correct one so this problem would be evaded ... the fact remains though that we should probably stay within the ECHR, if we weren[t a member yet I might have different views, but removing yourself from such a body after years of accession just looks dodgy and like you want to protect HR less!!
Lewis-HuStuJCR
Woah hold your horses!!!!!
HRA and EC are totally separate and not related in any way. One is via the European Court of Justice and one via the European Court of human Rights, they are in NO WAY AT ALL related, and should never be lumped together!!!!!!!!
HRA and EC are totally separate and not related in any way. One is via the European Court of Justice and one via the European Court of human Rights, they are in NO WAY AT ALL related, and should never be lumped together!!!!!!!!
What would the implications for us in Europe be if we were to withdraw fom the convention? They are politically linked even if there are two separate court systems.
They are also linked in the fact that we have given up part of our sovereignty to accomodate the ECHR and EC legislation.
So I think they need to be clearly demarcated, but they can be compared.
That's the point, I don't think withdrawl from the ECHR would go down too well lol.
Just read ur stuff about Directives etc and perhaps more interestingly in terms of effect on sovereignty one should note the direct effect of Regulations together with direct applicability ... and the fact that the govt can be sued if it fails to implement a Directive on time so is bound to do so, Germany being notoriously bad for this
.
Just read ur stuff about Directives etc and perhaps more interestingly in terms of effect on sovereignty one should note the direct effect of Regulations together with direct applicability ... and the fact that the govt can be sued if it fails to implement a Directive on time so is bound to do so, Germany being notoriously bad for this
.Have you done that case about Germany banning LaserQuest on the grounds that the right to life was so strongly entrenched in their constitution (i think it is in Free Movt of Good, possibly services context)... I thought it was hilarious, they said it was a "killing game" lol. weak, and I think it is still banned to this day.
Dimebag
Ha ha, that's ridiculous!
My favourite case was that one in criminal where a thief drove onto and stopped on a policeman's foot! Can't remember the name though.........
My favourite case was that one in criminal where a thief drove onto and stopped on a policeman's foot! Can't remember the name though.........
Fagan v Metropolitan Police Commissioner?
Yeah, the "continuing act" doctrine lol.
Lewis -I never suggested that there was a link between the ECHR and the EC per sé. Two seperate albeit connected things. All i said was that the EC have an impact on our consitituion in the form of EC directives which generally/often lead to an Act of Parliament. I then said it would be interestign to see what effect the replacing the HRA would have with Europe - I never even suggested for a moment that we wouldnt remain subject to the ECHR.
As for the ECHR and the HRA... we were signatories to the ECHR back in the 50's - we were still subject to the ECHR WAAAAAAYY before the HRA came into existence. And even if the HRA is repealed and a new Bill of Rights put in it's place we would STILL be subject to the ECHR.
However, I think there is a principle at stake and it would be interesting to see EC reaction should we decide that the "rights" afforded by Europe aren't good enough for us...
I am aware that the ECHR is a completely independent entity and I'm not even suggesting that we'd a) no longer be subject to the ECHR or b) that it would be a DIRECT concern of the EC's.
As for the ECHR and the HRA... we were signatories to the ECHR back in the 50's - we were still subject to the ECHR WAAAAAAYY before the HRA came into existence. And even if the HRA is repealed and a new Bill of Rights put in it's place we would STILL be subject to the ECHR.
However, I think there is a principle at stake and it would be interesting to see EC reaction should we decide that the "rights" afforded by Europe aren't good enough for us...
I am aware that the ECHR is a completely independent entity and I'm not even suggesting that we'd a) no longer be subject to the ECHR or b) that it would be a DIRECT concern of the EC's.
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