Wednesday, 8 February 2017

Royal Prerogative Powers

The Royal Prerogative is a major source of governmental power.  As a result of recent litigation concerning leaving the European Union ("Brexit") it has very much come to public notice. The litigation was concerned with whether Ministers require the authority of Parliament in order to give notice to the European Council under Article 50 of the Treaty on European Union that the UK intends to leave the EU.  The Supreme Court held, by 8 to 3, that an Act of Parliament was required to give the authority.

Royal Prerogative powers are particular powers of the Crown which have survived into modern times and which are, in practice, powers exercisable by Ministers who are, ultimately, accountable to Parliament.  Some of the powers are highly important and necessary to the efficient workings of government.

A brief note about Treaties:

The government has entered into around 14000 treaties with other nations and recognised international bodies.  Treaties bind the UK in international law and they operate on the international plane.  As a basic rule, because the UK operates a "dualist" as opposed to "monist" system,  a Treaty will not affect domestic law unless Parliament has legislated for it to do so

The UK is a signatory to the European Convention on Human Rights (ECHR) which operates under the aegis of the Council of Europe.  The European Court of Human Rights (ECtHR) is a Council of Europe body.  The ECHR binds the UK internationally with regard to the protection of those rights set out in the ECHR.  Domestically, the Human Rights Act 1998 has woven into national law certain of the rights in the ECHR.

Thursday, 17 November 2016

Governmental Powers and Duties - Sources

Governmental Powers and Duties arise from (1) the General Law; (2) Statute Law and (3) Royal Prerogative.  This post briefly examines the first two of those sources.  

The Royal Prerogative is a major source of governmental power and is examined in a later post - Governmental Powers and Duties - Royal Prerogative Powers.

I.  General law:

The law permits the Crown (basically the government) to do many things such as own property and make contracts.   These are sometimes referred to as "third source" powers.  At  common law the Crown, as a corporation possessing legal personality, has the capacities of a natural person and thus the same liberties as the individual - see the Court of Appeal's judgment in R v Secretary of State for Health ex parte C [2000] 1 FLR 627 and the further discussion in Shrewsbury and Atcham Borough Councils v Secretary of State for Communities and Local Government [2008] EWCA Civ 148.

See also the Supreme Court judgment in R (New College London) v Secretary of State for the Home Department [2013] UKSC 51 at para 28

II.  Statute Law:

Friday, 28 October 2016

Referendums and Representative Democracy

In March 2010, the House of Lords Constitution Committee published a report on Referendums in the UK.  The government response to the report was issued in October 2010.

As noted in the report, the impact of holding referendums could be either to complement the British system of representative democracy or to undermine it.  The report noted significant drawbacks to the use of referendums but acknowledged arguments that, if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues.  The committee said: "We do not believe that it is possible to provide a precise definition of what constitutes a "fundamental constitutional issue". Nonetheless, we would consider to fall within this definition any proposals:

Thursday, 11 August 2016

United Kingdom Statistical information - Population

Statistical data:

The availability of reliable present-day data and forecasting is essential to modern government.

The United Kingdom Statistics Authority is an independent body operating at arm’s length from government as a non-ministerial department, directly accountable to Parliament. It was established on 1 April 2008 by the Statistics and Registration Service Act 2007.

The Authority’s statutory objective is to promote and safeguard the production and publication of official statistics that serve the public good. It is also required to promote and safeguard the quality and comprehensiveness of official statistics, and ensure good practice in relation to official statistics.

The UK Statistics Authority has three main functions:

Tuesday, 9 August 2016

The United Kingdom of Great Britain and Northern Ireland - an overview

The United Kingdom of Great Britain and Northern Ireland has a long, fascinating and complex history containing considerable political struggle over many issues.  It a subject that the serious student of constitutional law will need to examine.  This article seeks to outline how the United Kingdom has developed and an introduction to the legislative bodies in the UK.

The title United Kingdom of Great Britain and Northern Ireland - commonly abbreviated to United Kingdom or UK - informs us that the UK is a Monarchy and that it comprises Great Britain and Northern Ireland.  Great Britain is the combination of England, Wales and Scotland.

The term "British Islands” means the United Kingdom, the Channel Islands and the Isle of Man.  This is not considered further here.

Saturday, 6 August 2016

Sovereignty ~ What is it?

"Do you want to see sovereignty back?  Then vote to leave the EU."  That was the headline to an article in The Telegraph 8th February 2016.  It suggested that, by being in the EU, the United Kingdom had lost its sovereignty but what does that word actually mean?

There is a large amount of discussion in texts on International Law as to what a STATE actually is; how one comes into being; how one ceases to exist.  Basically, a State in international law has a population, defined territory (including airspace and water adjacent to the land territory), a government and the capacity to enter into relations with other States.  Moreover, it will be recognised as a State by other States and, of course, States can enter into alliances with eachother or other agreements (such as trade treaties, extradition treaties etc).  It is said that the State has SOVEREIGNTY. 

Tuesday, 2 August 2016

What is a constitution?

" ... it would be very difficult for a living writer to tell you at any given period in his lifetime what the constitution of this country is in all respects" - Stanley Baldwin, Prime Minister 1923-29 and 1935-37.

This post offers some very basic points which will need to be amplified by later posts.

A constitution, whatever its form, provides a fundamental framework for the governance of a nation.  In the Quark Fishing case 2005, Lord Bingham commented (para 12): "Any constitution, whether of a state, a trade union, a college, a club or other institution seeks to lay down and define, in greater or lesser detail, the main offices in which authority is vested and the powers which may be exercised (and not exercised) by the holders of those offices ....."

A constitution of a State will deal with matters such as:
  • the structure of the State;
  • the various institutions of the State;
  • the methods to be used for law-making - the legislative power;
  • how important decisions affecting the State are to be made;
  • how the State will be governed - the executive power;
  • how disputes (including those involving government) will be dealt with - the judicial power.
Many nations have a formal,  or codified constitution and links to some examples are provided below.  Some of them are very lengthy, detailed documents seeking to address all (or most) eventualities.  Such constitutions tend to form a fundamental law of the State and other laws may be assessed for their validity against the constitutional position.  Formal constitutions often prescribe a particular procedure for their amendment so that it is more difficult to alter the constitution than other laws.