|
| 阅读上一个主题 :: 阅读下一个主题 |
| 作者 |
 ZT：英国宪法：宪法的组成(英文) |
 |
芦笛
[博客]
[个人文集]
论坛管理员
.gif)
加入时间: 2004/02/14
文章: 31805
经验值: 519217
|
|
|
作者：芦笛 在 罕见奇谈 发贴, 来自 http://www.hjclub.org
THE BRITISH CONSTITUTION
http://www.rdg.ac.uk/AcaDepts/lp/PolIR/SummerSchool99/TheBritishConstitution.html
The Sources of the Constitution
Having considered the nature of the British Constitution, the main sources will now be examined.
A. Written aspects
i. Acts of Parliament
Statutes are the main source of the 'part-written' aspects of the Constitution and are the most significant source of constitutional
law in Britain. For example, the following matters are all regulated by statute:
The composition of the electorate. The franchise has been altered by a succession of Representation of the People Acts from
1832 to 1969.
The relationship between the Crown and Parliament (Bill of Rights 1689, Act of Settlement 1701 etc.)
The relationship between the two Houses of Parliament (the Parliament Acts 1911 and 1949)
The constitutional structure of the UK (the Act of Union 1707,etc)
The relationship of the UK to the EC (the European Communities Act 1972 etc.)
Statutes are superior to the other sources of the Constitution, are enforced by the authorities and take precedence over any
conflicting Common Law decisions. However, it must be emphasised that such Acts do not require any special legislative
procedure for their enactment, despite their far-reaching nature.
ii. Authoritative books
Some writers on political and constitutional matters have had a significant impact on the development of the Constitution, in that
they have helped to guide and persuade politicians and others as to the correct way to do things. Their works do not, on the
whole, have legal status; their importance mainly has been that they have helped to create a climate of thought and action. This
is of particular importance in the case of the part-written and uncodified British Constitution, which lacks an institution such as a
Supreme Court to make authoritative rulings on disputed matters.
Some important examples include:
Walter Bagehot: The English Constitution, 1867, A.V.Dicey: An Introduction to the Study of the Law of the Constitution,
1885, Sir Thomas Erskine May: Treatise on the Law, Privileges, Proceedings of Parliament, 1844
B. Common Law
In Britain there are basically two kinds of law:
Statute Law, which is made by Parliament
Common Law, which is law made by the decisions of the courts in specific cases brought over the years.
As a source of Constitutional Law, the common law is now less important than statute, having declined in significance especially
over the last 200 years. However, in three main ways it remains significant:
a. the principle of Parliamentary Sovereignty derives from the common law
b. the Royal Prerogative also derives from the common law
c. in the past (especially in the 18th and 19th centuries) common law decisions have had an important impact on the
development of civil liberties. In the 18th century, common law courts were highly significant in establishing many basic liberties,
often in the face of the hostility of government and Parliament, in matters such as the freedom of the press, freedom of speech,
etc.
In Britain, unlike in the USA, the courts have no power to rule on the constitutionality of statutes. But they do have two
important roles:
they have to interpret an Act when there is a dispute about its meaning; important points of constitutional significance may thus
arise. For example, in Fox versus Stirk (1970) the courts decided that university and college students could vote in the
constituency in which their institution was situated and not necessarily where their homes were
judges also have the power to review executive action, in that (amongst other things) they apply the doctrine of ultra vires
(beyond powers) to ensure that ministers, local authorities and other public bodies act only within their legal powers.
An example of ultra vires was the Tameside case of 1976. In that year the newly elected Conservative council in Tameside
(a Metropolitan District in Greater Manchester) decided not to follow the plans of its Labour predecessor to convert its
grammar schools into comprehensives. Under section 68 of the 1944 Education Act the Secretary of State for Education had
power to give directions to the local education authority if satisfied that it 'had acted or was proposing to act unreasonably'. The
Secretary of State,Fred Mulley, gave a directive to Tameside Council requiring the implementation of the comprehensive
scheme. Tameside took the minister to court and eventually won in the Lords, where the case turned on the meaning of
'unreasonably'. The Lords decided that Tameside had not so acted and the minister was declared 'ultra vires'.
In 1994, Michael Howard, the Home Secretary, was declared to have acted unlawfully in introducing a criminal compensation
scheme which was radically different from that intended by Parliament. His claim that he could act under prerogative powers
was rejected by the House of Lords in a constitutionally significant case. In the Purgau Dam case the Foreign Secretary,
Douglas Hurd, was ruled to have acted beyond his powers when he approved an aid package which he was warned was
economically unsound. The linkage with an order from Malasyia for arms from this country was attacked by the judges as an
improper act.
In the 1980s the judges were criticised for their attitude to the legislation and actions of the Thatcher Government. Critics
accused the judges of being too ready to accept arguments based on ministers' interpretation of national security. However,
more recently the judges have come to the view that political accountability is inadequate, that Parliament fails to bring ministers
to account and that the courts must fill the gap left by the failings of politicians. The arguments about the political role of the
judiciary will be considered later in the course.
C. European Community Law
Since joining the European Community in 1972 Britain has been bound by laws made by the EU and which cannot be amended
by Parliament. So far these laws and other rulings have largely affected economic activity (though the increasing role of the EU
in social matters is a source of friction between the EU and the British government). However, membership is likely to have a
long-term and cumulative effect on the Constitution. Already the electoral system has been affected, in that British members of
the European Parliament are now directly elected instead of being indirectly chosen by Parliament. The Factortame Case was
of the utmost constitutional significance, in that it meant that British judges, enforcing EU legislation, for the first time prevented
the putting into effect of an Act of Parliament. This case will be discussed later. The interest in matters such as the Bill of Rights
has been stimulated by British membership, in that most European countries have such documents as part of their constitutional
arrangements.
D. Conventions
No constitution, whether written or unwritten, could work entirely by clearly-defined legal rules. A large part of the working of
the American Constitution is governed by political practices that have developed over time. Britain has even more need of what
in this country are called 'conventions'. These can be described as rules which are considered binding by and upon those who
are responsible for making the Constitution work. Not to follow them would produce political difficulties and might possibly
result in considerable instability. They help fill the gap between constitutional formality and political reality.
Conventions are rules of constitutional behaviour, generally agreed practices relating to the working of the political system,
which have in most cases evolved over time. They are not set out in any formal, authoritative document, they are not embodied
in Statute Law; the courts, though they may recognise them, have no power to enforce them. They are followed because of the
political consequences of not doing so.
Conventions are a major means by which the constitution adapts to changing circumstances. They develop gradually; the rule
that the Prime Minister must come from the House of Commons is a case in point. They can also disappear: in earlier centuries
the decision to 'advise' the monarch whether to dissolve Parliament was taken by the Cabinet as a whole; in this century this has
come to be a matter for the Prime Minister alone (though he or she may consult colleagues if he or she chooses).
Though the actual status and importance of a convention can be a matter of argument, the failure to follow a generally accepted
convention about a matter of constitutional importance would probably be followed by intense political agitation and the
replacement of the convention by a law.
An example is the failure of the House of Lords to pass the 1909 Budget. This broke the long-standing convention that the
House of Commons is predominant in matters of finance. After a long political battle, during which the King gave a pledge that
he would create enough Liberal peers to swamp the Conservative majority in the Lords, the Conservative peers gave way and
accepted the Parliament Act 1911 which virtually ended the power of the Lords, though it retains an important place in the
political system. This Act put into law what had previously been a convention.
Though some conventions are merely a matter of convenience, others regulate some of the most important features of the
British political system, such as the operation of the Royal Prerogative and the role of the Monarch, the position of the Prime
Minister and Cabinet etc.
作者：芦笛 在 罕见奇谈 发贴, 来自 http://www.hjclub.org |
|
|
| 返回顶端 |
|
 |
- 顺便向WM和大汉子部份认错 -- 芦笛 - (159 Byte) 2004-7-15 周四, 上午6:29 (273 reads)
- 吃草的老虎是个厚道人 -- 五骆驼 - (156 Byte) 2004-7-15 周四, 下午12:18 (191 reads)
- 老芦学毛选没到家 -- 郑若思 - (57 Byte) 2004-7-15 周四, 下午10:31 (151 reads)
- 疑义相与析 -- 大汉子 - (415 Byte) 2004-7-15 周四, 上午7:12 (234 reads)
|
|
|
您不能在本论坛发表新主题
您不能在本论坛回复主题
您不能在本论坛编辑自己的文章
您不能在本论坛删除自己的文章
您不能在本论坛发表投票
您不能在这个论坛添加附件
您不能在这个论坛下载文件
|
based on phpbb, All rights reserved.
|
