Topic 7. Asignatura: Topic 7, Apuntes de Derecho constitucional comparado

¡Descarga Topic 7. Asignatura: Topic 7 y más Apuntes en PDF de Derecho constitucional comparado solo en Docsity! TOPIC 7. INSTITUTIONS OF THE UNITED KINGDOM (I) 1) INTRODUCTION The constitution comprises the monarch as head of state and the three traditional branches of government: • Parliament is the lawmaker. It is widely regarded as the highest branch. • The Crown is the executive power (it includes monarch, queen and government), known generally as ‘the government’. It is accountable to Parliament and its decisions are in general reviewable by courts. • The independent judiciary is the third branch, comprising courts and tribunals. 2) THE CROWN THE NATURE OF THE CROWN It is an ambivalent concept. The ‘Crown’ may refer to the Monarch personally (The Queen), to the government, or to some aspect of the state or public authority. Crown Proceedings Act 1947 removes the immunity of the Crown as government in legal proceedings in tort and contract, but preserves the personal immunity of the Monarch from legal proceedings. The Crown Prosecution Service is the principal public prosecuting agency for conducting criminal prosecutions in England and Wales. But it does not involve the participation of the Queen or the government. The UK Constitution establishes a Constitutional monarchy so the Queen is the Head of the State: • Head of the Church of England (‘Supreme Governor of the Church of England’) • Commander-in-Chief of the Armed Forces Legal English Topic 7 1 • Head of the Commonwealth: in matters affecting Commonwealth affairs the Queen may act upon the advice of Commonwealth ministers THE PERSONAL POWERS OF THE MONARCH The difference between the Spanish monarchy and the British monarchy is that we have a number of personal powers in the hands of the British one. These personal powers are very limited. However, there are some power can be used in situations of constitutional crisis. Since 1688 the personal powers of the monarchy have gradually been reduced by constitutional conventions that require the monarch to act on the advice of Parliament and ministers. The Glorious revolution left the monarch in charge of the executive but dependent upon Parliament for money and law-making power. MODERN FUNCTIONS OF THE MONARCH: • To represent the nation: Mostly ceremonial duties. (e.g. makes State visits abroad, receives foreign ambassadors, confers honours). The Queen as an entertainer. • To ‘be consulted, encourage and to warn’: The Queen has access to all government documents and has regular audiences with the Prime Minister. • Certain formal acts: Assent to statutes, ratifying solemn treaties, etc. • Personal political powers of the Monarch which should be used in times of constitutional crisis. • Appointment of the Prime Minister (leader of the largest party ad determined by a general election). • Dismissal of government and the dissolution of Parliament (if a government is defeated on a vote of confidence in the House of Commons but refuses to resign or advice a dissolution). Legal English Topic 7 1 government in the Commons (Leader of the House) and the Lords (Lord Privy Seal). • Ministers • Each department has a minister who takes responsibility for the way in which the department functions. • By constitutional convention they need to be a member of Parliament. RESPONSIBILITY MINISTERIAL RESPONSIBILITY is a central principle of the British constitution. Ministers are bound by two constitutional conventions: 1. Collective ministerial responsibility • Originally developed so that government and Parliament could put up a solid front against the monarch. • When a decision is reached by the Cabinet, all ministers must publicly support that decision, even if they opposed it during the Cabinet discussions. • The government must resign as a whole if defeated on a vote of confidence in the House of Commons or if the PM resigns. 2. Individual ministerial responsibility • Means that each minister is answerable to Parliament for all activities of the department under his control. • Chain of accountability from Parliament through ministers to civil servants (civil servants are not personally accountable). 4) THE JUDICIARY Legal English Topic 7 1 The function of the judiciary is resolving disputes impartially. Since in a parliamentary system the distinction between the legislature and the executive is blurred it is very important that the judiciary is independent from the two other branches of government. The main courts are the following: • Superior courts (unlimited geographic or financial jurisdiction): High Court (major civil cases), Court of Appeal (civil and criminal appeals), Crown Court • Inferior courts: County courts (smaller civil cases), magistrates courts (minor criminal cases). The highest appellate court is the Supreme Court TRIBUNALS adjudicate relatively small and specialised disputes between government and individuals. COURT SYSTEM: 5) DEVOLUTION The UK is a ‘unitary’ constitution with an overriding supreme lawmaker which can devolve power to subordinate units but is free to take the power back. Devolution: Transfer of powers from the central government to the regions without the relinquishment of sovereignty. Reasons in favour of devolution: subsidiarity principle, weakening of public confidence in democratic process, overcentralisatisation. DEVOLUTION IN PRACTICE Legal English Topic 7 1 ▲ Scotland (was a separate nation from 1010 until 1706). Scotland Act 1998 creates a devolved government for Scotland (modelled broadly on the UK system). There is a Scottish Parliament and a Scottish executive. Scottish Parliament has limited legislative powers (limits: no amendment of the Scotland Act, reserved matters, taxation powers). What happens if the UK parliament legislate to the matters allowed to the Scotland parliament? UK parliament can legislate to matters reserved or alloed to the Scotland parliament. But by way of constitutional convention, the UK parliament has to ask tot he Scotland and it has to allows it to legislate on these matters. ▲ Northern Ireland Northern Ireland Act 1998 creates a devolved government (different from the UK system, especially the executive). There is North Ireland Parliament (‘North Ireland Assembly’) and executive. The executive is elected directly by the forces of the parliament, and not by elections. The legislator has limited powers (similar to Scotland) ▲ Wales (Has never been a separate state) Government of Wales Act 1998: Only executive devolution Government of Wales Act 2006: National Assembly of Wales may legislate on any of the devolved matters specified in it. Legal English Topic 7 1