Constitutional And Administrative Law Analysis Essay Example
Constitutional And Administrative Law Analysis Essay Example

Constitutional And Administrative Law Analysis Essay Example

Available Only on StudyHippo
  • Pages: 6 (1583 words)
  • Published: October 29, 2017
  • Type: Essay
View Entire Sample
Text preview

The legal system in Britain comprises both conventions and customs that have developed over time as well as statutes, since there is no written constitution or comprehensive Bill of Rights. Although not legally binding, conventions play a crucial role in providing guidelines and procedures for the effective operation of government.

According to McEldowney, the constitution is a constantly evolving entity that mirrors the ethical and political convictions of those under its rule. Despite being one of the most ancient and uninterrupted systems, the British constitution is typically deemed unofficial or normative since it has no written content. Consequently, the British constitution has been a product of growth, continuously undergoing alteration, amendment, and renovation without any fixed blueprint.

It has always remained standing without being completely destroyed and rebuilt on fresh foundations. Because the British const


itution is not documented, there isn't a single source for its content.

The British Constitution includes several sources, like Acts of Parliament, Common law, Conventions, European Law and Constitutional Writings. The statute law mainly consists of Acts of Parliament which hold the most importance. There is no constitutional constraint above the Parliament, and it's mandatory for the monarch to follow every legislation. Only the Parliament has the power to cancel a statute. The Prime Minister leads the government-dominated Parliament and can achieve a majority in the House of Commons.

The power to dissolve the lower house and trigger new elections lies with the executive. The constitution is influenced by several laws, namely Parliament Acts 1911 and 1949, Representation of the Peoples Acts from 1949 and 1969, as well as the European Communities Act 1972. The relationship between both houses is governed by Parliament Acts whereas

View entire sample
Join StudyHippo to see entire essay

Representation of the Peoples Acts regulate elections. Additionally, relations between UK parliament and EU are controlled by European Communities Act. Despite centuries of sovereignty, all branches of government acknowledge that EU-made law takes precedence within community competence according to the Union itself. Therefore, a united party with a majority in the House of Commons can create an exceptionally powerful government under these constitutional rules.

Modern political parties grant the ruling party unrestricted authority to create laws without interference from other state entities, including the Monarch, House of Lords, or courts. Despite this, membership in the EU adds complexity to this domestic scenario as European legislation takes precedence over British law. As a result, if UK laws contradict EU regulations, they may be suspended by the courts.

The European Union has the authority to override the power held by the British Cabinet, and Parliament in Britain is unable to vote on this legislation. As a result, Parliament's ability to create laws is impacted. Moreover, due to the absence of written citizen rights in the outdated unwritten constitution, it is easier for such rights to be violated. At present, citizens can use the European Convention on Human Rights as a means of recourse if their British law or government action infringes upon their rights. Nevertheless, they must first undertake an expensive and time-consuming process with the European Commission on Human Rights.

The high number of applications submitted by Great Britain to the EC is noteworthy due to various factors. To date, at least 37 cases relating to UK government violations have been heard by the European Court after citizens were given the option to submit complaints. Furthermore, unlike other European

countries, Britain lacks explicit rights such as freedom of religion, speech, assembly and conscience which may account for this trend. Although established by the EC in 1998, it was not until October 2000 that Britain embraced the Human Rights Act which could explain this disparity. For instance, Beatty v Gillbanks (1882) Queens Bench Division1 highlights a case where an “unlawful” gathering was created with charges pressed; if brought up today they would be able seek representation from the EC.

While the contracting states and the European Convention on Human Rights (ECHR) give precedence to political and civil rights, they do not offer as wide-ranging protection as the Universal Declaration of Human Rights. Nonetheless, they safeguard fundamental rights such as freedom of expression, association, and non-discrimination. Moreover, these rights are supplemented by guarantees for the right to life, privacy and family life, as well as freedom from slavery and torture. Nevertheless, unlike ECHR safeguards, the British Constitution is lacking in specific protections.

The absence of a single constitutional document is apparent. Constitutional Law, a collection of official Statutes in Force, covers 138 Acts of Parliament. Additionally, a separate volume focusing on the Rights of the Subject includes 32 Acts, including remnants of Magna Carta. In written constitutions, customs, conventions, and Standing Orders of the Houses of Parliament dictate several matters, such as procedures relating to finance bills or votes of no confidence. Bryce seminal work distinguishes between flexible and rigid constitutions.

The presence of flexibility in a constitution implies that there is no differentiation between constitutional and ordinary laws, as both can be conveniently modified or revoked. An instance of this is demonstrated by the Act of Union with

Scotland in 1707, which eliminated the English Parliament and established a new British Parliament at Westminster. Amendments to this law have been executed through customary legislation sanctioned by the Westminster Parliament. In contrast, the United States has one of the most rigid constitutions globally.

The 1789 U.S. Constitution outlines two methods for proposing amendments: one involves a two-thirds majority agreement from both houses of Congress while the other requires a special convention after being petitioned by at least two-thirds of all state legislatures. However, it is argued that having a written constitution does not necessarily ensure adherence to its principles and civil justice, as demonstrated by Adolf Hitler's failure to formally abolish the Weimar Republic's constitution and the unfulfilled personal freedoms promised in the Soviet Constitution of 1936.

Critics have denounced flexible constitutions, which can be amended by ordinary legislative procedure, arguing that they are too limited since only the U.K. and New Zealand currently have them. However, one advantage of our ruling system compared to codified ones is that courts have the final say in interpreting and applying the law. On the other hand, the lack of a real constitution can make interpreting certain statues difficult, as our rules and laws may not have a constitutional character without explicit constitutional statutes or a code. Deciphering this is crucial in the absence of a codified text.

Although there is no written constitution, there are established rules with constitutional significance. However, it can be challenging for judges to declare government or citizen behavior as unconstitutional without a clear codified constitution. Despite the idea that the British Parliament has unlimited legislative supremacy or sovereignty, the principle upon which the unmodified

constitution stands was formulated by the courts rather than Parliament. It's possible for Parliament to declare its legal sovereignty and power to enact any legislation through an act of Parliament. Essentially, under the British constitution, no one can overpower or nullify an act of Parliament.

This principle requires compliance from courts, as shown in the case of Cheney v Conn [1968]. In this instance, a taxpayer contested the legality of using nuclear weapons under international law, claiming that a portion of their taxes was supporting their development. Ungoed - Thomas J declared that the statute itself cannot be considered unlawful because it constitutes the law and is the most authoritative legal form recognized in the country.

According to Dicey, the principle of parliamentary supremacy dominates the constitution and prevails over every other form of law. This means that parliamentary enactments cannot be deemed illegal by the court. However, this raises concerns about citizens' rights when parliament has final say in every issue. The unwritten constitution seems to favor the government rather than the governed, despite modern democracy's individual freedom, equality before the law, universal suffrage and education. Some argue that living under such conditions essentially amounts to living in an aristocracy where a select group of individuals deemed most qualified to rule hold sovereign power.

The principles of democracy establish that the supreme authority lies with either the entire populace or their elected representatives, such as Parliament and potentially the executive. Nevertheless, our constitution is unwritten and reflects antiquated customs and conventions. As conscientious citizens, it is essential to possess knowledge of our entitlements in order to challenge these intricacies effectively. Stanley Baldwin censures the unwritten constitution by

stating that while historians can lucidly recite past constitutional practices, modern writers encounter difficulty defining the constitution during their own era.

Former Prime Minister Margaret Thatcher responded to charter 88's demands by stating that the government believes our current constitutional arrangements are still effective and allow citizens to have the greatest amount of liberty possible while also respecting the rights of others. Many people defend our current constitution, arguing that it has worked well over the years and that our parliamentary customs have provided both stability and adaptability. They caution against hastily discarding what has taken generations to establish, emphasizing that our constitution has evolved through time rather than being deliberately crafted.

The building has undergone continuous additions, patches, and partial reconstructions. Nonetheless, I firmly assert that we should have the right to request a system that enhances uniformity and stability in our government's quality. Furthermore, there ought to be reforms to reinforce, explain, and broaden the current distinctions between the executive, legislature, and judiciary branches. As they are overly fused, there is no genuine separation among them.

Although no constitution can achieve perfect symmetry, it is important for it to be widely acknowledged as fair and functional.

Get an explanation on any task
Get unstuck with the help of our AI assistant in seconds