Summary MELS - Constitutions and EU Law

Week 4 – Constitutions and EU Law


Constitutions 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.




2