Constitutional Law Homework Assignment
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- Parliamentary Sovereignty
The idea of parliament sovereignty focuses on diverse concurrent principles. It means that parliament possess the autonomy to develop or abolish any law. Also, the law pf England does not allow any person or body to override or put aside parliament legislation. The right to mend or unmake the law by parliament extends to each part of the Kings dominion[1]. In this case, the parliament’s rights cannot be questioned by any other institution. The principle of parliament sovereignty makes parliament the supreme legal entity in the United Kingdom. An example of parliament sovereignty in case law can be viewed in the fact that the law courts are under the parliament. They have no powers to review the judiciary and they cannot question parliamentary legislation. Moreover, parliamentary legislation is guarded such that the law court in the United Kingdom cannot rule or judge against it. It is due to the fact that the law courts are bound to always decide in support of the legislation. In this case, Brexit offers a push to the separation of power. First, the government seeks to maintain flexible powers, however, the parliament is tasked with determining the extent of the powers.
- Role of the Courts in safeguarding the Rule of Law as well as Parliamentary Sovereignty
The Courts have the responsibility to safeguard the rule of law and parliamentary sovereignty. First, in the UK the courts are considered significant based on the constitutional order. Mainly, individuals rely on sovereign judges to ensure that the law is applied fairly, especially in cases where there are disputes[2]. The courts are tasked with protecting the rule of law. They have the mandate to enforce the rule of law as a constitutional principle. Mainly, upholding the rule of law includes protecting the parliament’s will. The courts have the responsibility of ensuring unlawfulness does not go unpunished. They ensure that everyone follows the laws that are stipulated in the constitution. The courts are tasked with preserving the rule of law. In this case, they are required to go beyond protecting private rights. They have the responsibility to exercise a supervisory jurisdiction. Additionally, the courts are tasked with applying legislations that are approved by the parliament. However, the courts have to ensure that the parliament is acting based on the rule of law.
- The effect joining the European Union had on Parliamentary sovereignty
The parliamentary authority is still the highest principle of the United Kingdom constitution. In this case, the parliament is considered as the highest legal authority in the UK. The particular system is known as the Westminster system. Initially, the place of Britain in Europe was unclear and one could not explain it easily. However, the politicians in Parliament were keen to ensure that the role was well established. Therefore, they passed the European Communities Act 1972 that enabled UK to join the EU in 1973[3]. By joining the EU, the application of parliament sovereignty was limited. Throughout the centuries, Parliamentary sovereignty has undergone through diverse challenges. One of the challenges is presented by the EU membership based on the terms of Europeans Communities Act 1972 and its ensuing changes.
One of the challenges presented is the tension between the political exercise of parliament sovereignty and the authority of the EU legal and political order. The order is characterised with a unique EU formal set-up and the predominance of EU law. Also, it includes direct impact for set EU rights in national courts. However, based on the definition of parliamentary sovereignty, there is no person or body that has power over the parliament based on the law of England. The particular definition is questioned under the European Communities Act 1972[4]. It is also challenged under the contentious factortame case law. Based on the Court of justice in Europe there is no ultimate right to supersede or put aside the regulation of parliament. The contest of EU membership is different from other lawful challenges. It involves ministers in the government transferring more powers to EU institutions. Whereby, they engage through the EU and European Council. It includes a promotion of nationwide judicial planning in its connection with the court system of Luxembourg. Eu members affects parliament’s authority due to the European parliament’s effective power are comprehended in the framework of the post-Lisbon Treaty provisions. Parliament’s sovereignty is unsettled since 1973 as the membership of EU has led to a strong combination of the executive and judicial powers within the EU planning at the cost of the weakening of domestic government. Also, parliament’s sovereignty is unsettled due to the known helm has made the European parliamentary depiction compete with it and mainly for its ability to jointly embody its electorate. Also, the Parliamentary sovereignty is challenged in the fact that the UK has included the decision-making of EU into it. It minimises parliamentary final decision-making power over political decisions. In this case, the EU membership has minimised the parliament’s powers thus affecting its sovereignty. There are decisions that it cannot make.
- Brexit and Parliamentary Sovereignty
Based on the two Miller cases (2017 and 2019), Brexit increased Parliamentary Sovereignty. For instance, in the miller case (2017) , the judgment sustains, pronounces, clarifies, creates and applies important principles protecting the place of parliament in the constitution. It also clarifies relationship of the parliament with the executive. The court extended the legality principle which ensures that people understand it. In its judgement, the court holds that the UK democracy is based on parliamentary sovereignty[5]. Therefore, the legislation should be offered the opportunity to carry out its constitutional role. The court was ready to highlight the legal constitutional inferences of the political, constitutional principle of executive responsibility to parliament. The court, in the Miller case ascertains the parliamentary sovereignty. Although it does not add any power to the parliament, it ensures that the powers are well spelt-out. Based on the judgement, the court invokes parliamentary accountability which is an important principle. In this case, it states that parliament’s accountability is not less important to the constitution compared to parliamentary authority. Based on the court’s judgment, the laws implemented by the authority in parliament are the ultimate form of law in the UK legal system. Therefore, every person including the government should comply with. However, the principle is not confined.
The court also affirmed parliamentary sovereignty in its judgement in Cherry/Miller (No 2) (2019). In this case, the court ruled that it was unlawful to prorogue the parliament for five weeks. Based on its judgement it showed that the government did not have supreme power over the parliament[6]. The UK is a democracy that is based on parliament sovereignty as well as executive accountability. It shows that the government does not have powers to stop parliament from conducting its duties. The courts are required to ensure that parliamentary sovereignty is protected. Hence, it is evident that Brexit has increased the parliamentary sovereignty. The court ensured that it is protected and the government did not interfere with it. Based on the judgment, the idea of parliamentary sovereignty would be considered lost, in case parliament would be hindered from performing its constitutional duties. In its judgment the court also raised the issue that the Government is accountable to parliament and should not interfere with it work. It shows that despite Brexit, the parliament will continue performing its duties without any hinderances. The Miller case has constitutional significance as it decided royal privilege in foreign affairs. Hence, it showed that the parliament has its powers that cannot be affected in any case.
Section B
- Which one of the following statements is a basic principle of constitutionalism? What is meant by acting “constitutionally”? Give an example
A. The three powers of a state must fall on one individual.
B. State institutions do not need to be held accountable.
C. The basic rights of individuals should be safeguarded and protected.
D. Judges are drawn from the House of Lords.
Brief explanation: The principle of constitutionalism is a significant factor. It is a doctrine that protects the legitimacy of government action. One significant features of constitutionalism are respecting the individual rights. The inclusion of individual’s rights in the constitution is important. There are different rights that cannot be avoided even when there is state of emergency. The government and the courts are obliged to ensure that people’s rights are protected. The courts should ensure that people have fair trials at all times and their rights are not infringed.
- The Entick and Carrington effect on the British constitutional system can be summarised best by which of the following statements? Briefly set out the facts of the case and the decision.
A. The Monarch does not have absolute powers since that ruling.
B. There is a pure and a less than pure separation of powers.
C. The rule of law is the basis to control the arbitrary use of power.
D. The UK constitution is flexible.
Brief explanation: The facts of the Entick and Carrington case includes that it established that the entitlement powers of the monarch and the government were below the law of the land. It ensures that the government officials have no authority to exercise public power. Instead, they have to ensure that the exercise is allowed by certain rule of law. Lord Camden held that the warrant of a secretary of state could not be used to authorise a search. The House of Lords ruled that the Home Secretary disdained the court as it did not respect the court order concerning a deportee.
- Which of the below describes better the difference between laws and constitutional conventions? Provide 4 examples of a constitutional convention, briefly explaining what each one seeks to do
A. Laws are passed by Parliament, Constitutional Conventions are passed by Judges
B. Law are published in the Parliament Gazette, Conventions in the Executive Gazette
C. Laws can be enforced by Judges, Constitutional Conventions cannot.
D. None of the above.
Brief explanation: One example of constitutional conventions is that the monarch has the legal authority to grant or deny the Royal Assent. In this case, it exercises the right under the advice of the ministers. Another example of the constitutional conventions is that the Monarch has the legal obligation to appoint the Prime Minister. Under the convention, he or she is considered the party leader that has the majority of votes at a General Election. The third example of constitutional conventions is that a government will resign in case it loses a vote of confidence in the commons. In this case it means that the Lords cannot oppose the second or third reading of Government legislation that is promised in the election manifesto. The fourth one, is that the House of Lords cannot oppose a money bill that is proposed the Government.
- The Miller case (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5) can be best summarised by which statement below? Briefly explain the facts of the case and summarise the decision.
A. The Royal Prerogative cannot be used to alter domestic law.
B. The Judges are the enemies of the people.
C. The Monarch is bound to give Royal Assent to all Parliament Bills.
D. All of the above are correct.
Brief explanation: The Miller case focused on the constitutional obligations for the United Kingdom to offer notice of what it intended to do in terms of the exit from the EU according to Article 50 of the Treaty of EU. The two involved parties made proposals whereby, the government held that ministers, that were practicing Crown privilege did not have power to provide notice if there were no statutory authorisation. On the other hand, the applicants maintained that the process should be authorised by Act of Parliament. It is due to the fact that the UK’s exit would affect individuals’ rights based on the EU law. The court ruled in favour of the applicant. It was based on the idea that the Act of European Communities had recognised EU law-making entities.
- What is devolution? Provide a brief explanation of devolution as it applies in Wales.
A. Is the process by which power is decentralised to the regions.
B. Is a mechanism to hold Westminster to account.
C. is the process of redistributing the wealth of the nation.
D. It is the separation of powers stated in the Constitutional Reform Act 2005.
Brief explanation: Wales has various devolved areas such as education, transport, economic development as well as agriculture. The devolution in Wales applies in different ways. The White Paper which is considered as A Voice for Wales offers detailed proposals for development of the Welsh Assembly. The Assembly has sixty members and would take up most of the previous powers of the Wales’ Secretary of State.
- Which was the constitutional impact of the Factortame case (R v Secretary of State for Transport, ex parte Factortame Ltd and others (no2) [1991] 1 AC 603? Briefly set out and explain the primary sources of EU law and their constitutional effect in the UK.
A. None.
B. It proved that the UK Courts could set aside national legislation violating EU Law.
C. It affected the human rights of the fishermen.
D. None of the statements above are correct.
Brief explanation: There are various primary sources of EU law they include the founding treaties. Other primary sources are the treaties signed between Member States as well as the treaties that were signed between EU and third parties. The law has huge effect in the UK as they control certain quarters. Also, they cause conflict as they have differing features.
- What is the relationship between the Rule of Law and Article 7 of the European Convention on Human Rights? Explain if and, if so, how the protection of human rights will be affected in the UK after Brexit materialises.
A. Laws must be prospective.
B. Laws must be retrospective.
C. Laws must favour the poor.
D. Laws must be reviewed on a yearly basis.
Brief explanation: The protection of human Rights will not be affected in the UK following Brexit. It is due to the fact that the law hold that every person needs to have a fair trial. It will be given a boost as the rule of law and Article 7 of the European Convention on Human Rights advocate on ensuring that every individual is treated equally and given a fair chance.
- The ‘first past the post’ electoral system has the following advantages: Briefly explain which are its disadvantages
A. It is a simple method and generally secures strong governments
B. Requires very little budged to be allocated to it.
C. It promotes inclusion and diversity.
D. It does not require Royal Assent.
Brief explanation: It has various disadvantages that include, it allows the election of representatives with a small amount of public support. Mainly, the size of winning margin is not considered. It permits tactical voting as people vote for the candidate that they do not like. It is also considered to be wasteful as it focuses on the losing candidate. It can hinder voter’s choice.
- Judicial review is an appellate jurisdiction. Explain briefly the concept of appellate jurisdiction.
A. True.
B. False.
C. It depends on the level of the Judge.
D. It is but only under the European Court of Justice perspective.
Brief explanation: It refers to the power granted to the courts to hear appeals from lower courts. In this case, the courts are allowed to monitor the lower courts and ensure that they apply laws effectively. In this case, if they are not applied correctly, they are subject to judicial review.
- The Judiciary’s independence in the UK is protected in which ways? Explain why the Executive power should not be involved in the process of appointing judges.
A. Sub judice rule, judges avoiding politics and contempt of court.
B. Adequate salary, no criticism of judges and judicial immunity.
C. Judicial discipline, Nemo judex in re sua and Judges avoiding politics.
D. All of the above are correct.
Brief explanation: The executive power does not have the authority to appoint judges as it may be considered as a political decision. The matters pertaining courts are protected from any political interference. Also, it helps in ensuring that judges are not involved in politics.
Bibliography
McConalogue, Jim, The British Constitution Resettled: Parliamentary Sovereignty Before and After Brexit (Palgrave Macmillan 2019).
Miller v Secretary of State for Exiting the European Union. [2017] UKSC 5.
Miller v Secretary of State for Exiting the European Union. [2019] EWHC 2381 (QB)
Pumuye, Glen Mola, The Doctrine of Parliamentary Sovereignty and its relationship with legislative review by the Judiciary: A comparative perspective between United Kingdom and Papua New Guinea. (10 June 2017).
Street, Amy Judicial Review and the Rule of Law: Who Is in Control, The Constitution Society (2013).
