¡Descarga Topic 7. The British constitutional order y más Ejercicios en PDF de Derecho solo en Docsity! Topic 7. The British
Constitutional Order
DS qa)
An unwritten Constitution UK does not have a written Constitution: absence of a document (supreme and rigid) that lays down the fundamental rules of the State However, there exists a constitutional system that could be defined as follows: “a body of rules, conventions and practices which describe, regulate or qualify the organization, powers and operation of government and the relations between persons and public authorities” (Collin Turpin and Adam Tomkins) The features of the unwritten Constitution: a political constitution subject to the political process and to the commitment of the political actors and citizens Contains different sources: legal rules (statutes and common law), conventions and practices Undetermined: there is not a list of concrete sources Fluid: sources can be amended easily (no rigidity) Fundamental and material: constitutional sources could be identified for their material content and its fundamental value Principles (I): democracy Representative democracy: well-established principle The sovereignty resides in the people who elect representatives to rule and these representatives are accountable to the people Elective institutions in the UK: the House of Commons and the Prime Minister and the Cabinet (indirectly through their accountability to the House) The Institutions in the UK that are non-elected: Crown, House of Lords (the pending reform) Participatory democracy: a modern principle Referendum: local and national referendums Electoral system, organization of parties: bolstering representation Transparency and open government: access to documents, public hearings, etc. Principles (II): parliamentary sovereignty The orthodox doctrine There is no source of law higher than an Act of Parliament: statutes must be enforced, and must be given priority, over rules of common law, international law, subordinate legislation and earlier enactment of Parliament itself Practical problems of the orthodoxy Post-colonial independence: could be recuperated by the Parliament the transfer of sovereignty to the new independent states? Continuing sovereignty: can the Parliament bind itself “in manner and form” for future legislation? Current challenges to the orthodoxy The European integration process and the European Union The European Convention on Human Rights (ECHR) and the incorporation of fundamental rights Common law radicalism: belief that the entire constitution, including the doctrine of the sovereignty of the Parliament, is based on the common law Principles (III): the rule of law Formal version Government is subject to the law and may exercise its power only in accordance with law Equality before the law: all citizens are equal and government should not be treated differently in law from the ways in which ordinary persons are treated Substantive version Law should be general, prospective, open, clear and stable Recognition of certain fundamental rights and democracy Social Welfare State: removal of economic, racial and sexual injustice
