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Summary MELS - Constitutions and EU Law
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Includes notes on: - Constitutions and Sovereignty - Sources of EU Law - Institutions of the EU - Application of EU law in UK (pre-Brexit)
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Week 4 – Constitutions and EU LawConstitutions and Sovereignty
Constitutions
- key documents which establish the outline of the state, its institutions, their powers
and their relations between one another.
- different types, taking up more or less central positions
o written
eg: US, India, France, Germany, South Africa…
two levels of law – Constitution (bill of rights) and ordinary law
Constitutional review
Often an “act of the people”, stemming from some sort of revolution
Empowers parliament
o unwritten – eg: UK
Single level of law (bill of rights equivalent as part of ordinary law)
Limited scope for judicial reviewing
Parliament is the authority of law making
Scholars argue that the UK does have a Constitution, but it simply isn’t
codified as such. All the Acts that would make up a constitution are
there.
1215 Magna Carta - Signed by King John, limited the power of
the sovereign
Bill of Rights 1689 – statement of citizen’s rights
Acts of Parliament
Important court judgement
Conventions
Human Rights Act 1998
o domestic/regional/global
o monarchical/republican
o federal – eg: US (individual states), Switzerland (individual cantons)/unitary
Parliamentary Sovereignty
- Seen as a central value of the English legal and governmental system.
o Yet, there still is a lot of space for the monarch
- Definition of sovereignty
o The authority of a state to govern itself (in international law)
- Parliamentary sovereignty
o There is no higher power than that of Parliament. It is the supreme legal
authority which can create or end any law.
- Popular vs Parliamentary sovereignty
o Popular: sovereign power is vested in the people and that those chosen to
govern, must exercise it in conformity with the general will of the people.
1
, Did the Brexit referendum therefore only have an advisory authority
as there is no popular sovereignty in the UK?
o Parliamentary: Parliament is the supreme legal authority which can create or
end any law
Separation of Power
- The legislative
o Task of making law and keeping the executive under scrutiny
- The executive
o Task of implementing laws and governing through public policy
The government, incl the police
- The judicial
o Task of adjudicating the law in order to uphold the law
- Blurring of the lines
o Common law can be seen as judge-made law merger of legislative and
judiciary
o Is judicial independence really a thing?
o No check in parliamentary acts because of sovereignty
- The Queen
o Royal assent is given to new Bills
It’s only a convention that the Queen won’t override the act of
Parliament, but it isn’t actually explicitly stated anywhere
o Open and dissolves Parliament
o Weekly audiences with Parliament
The rule of law
- “Government by law and not by men”
The UK and statehood
- Article 1, Montevideo Convention
o “The state as person of international law should possess the following
qualifications: a) permanent population; b) a defined territory; c)
government; and d) capacity to enter into relations with the other states.
- Colonialism didn’t happen despite law instead because of it
o Sovereignty was used as means to occupy and govern other territories, under
the assumption that these territories didn’t have the sovereignty and
therefore could be seized.
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