From: martin.baines@uk.sun.com (Martin Baines - Sun UK - SE Manager Cambridge)
Newsgroups: soc.culture.british
Subject: Re: The amazing disappearing British Const
Date: 10 Nov 1992 16:33:54 GMT
Organization: Sun Microsystems Ltd
Distribution: world
Reply-To: martin.baines@uk.sun.com
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In article 3Dv@unixhub.SLAC.Stanford.EDU, streater@unixjr.SLAC.Stanford.EDU (Tim Streater) writes:
>In article <lfqqn8INNa2s@exodus.Eng.Sun.COM> linden@positive.Eng.Sun.COM (Trelford Pinkerton) writes:
>>
>>Jon Livesy lists:
>>> Coronation Charter of Henry I, 1101.
>>> Great Charter, 1215.
>>> Declaration that the Commons shall Initiate Money Bills 1407.
>>> Habeas Corpus Act, 1679.
>>> Bill of Rights, 1689.
>>> Act of Succession, 1701.
>>> Septennial Act, 1716.
>>> Reform Acts, 1832, 1867, 1884.
>>> Ballot Act, 1872.
>>> Representation of the People Act, 1918, 1969.
>>
>>We've already established that mere laws cannot comprise a constitution.
>
>Unadulterated balderdash - we've established nothing of the sort; you have
>merely asserted this.
>
>>A Constitution is a framework within which all laws are made, and with
>>which all laws must agree.   It's a "meta-law" in comp sci terms.
>>
>Seems to me Jon's list fullfils this requirement. Several, at least, of these
>laws were passed after periods during which it became clear they were needed (I
>cannot think of a good way of expressing this). That is, injustices were
>perpetrated and people thought of a new principle, a constitutional principle,
>which would prevent *this set* of injustices from occurring again. We proceed
>in an evolutionary manner, you see. Further, while none of these laws binds
>successor Parliaments, those Parliaments interfere with this set of laws at
>their peril. 

A very minor quibble: laws *can* bind future parliaments. The parliament
acts do just that, they define parliamentary consititution and procedure.
Before the last major reform of the Lords was passed (I forget which
act did it) the Lords had absolute right of veto over all legislation,
after it (in the "new" parliament) they only had delaying rights
over all legislation except for legislation to extend the life
of parliament itself for which they still have an absolute veto.

>That is, these laws were not just some piece of political
>legislation likely to be repealed by the next administration, each was a
>landmark that moved the constitutional process forward. Some landmarks have not
>been in the form of laws; one such was the principle, established I believe by
>the Prince Consort (Viccy's husband, a German), that the Monarch shall not
>interfere in politics.
>
>>Perhaps you could provide a list of recent laws in Britain that have
>>been overturned as "unconstitutional" by the courts?
>
>This is not the role of the courts; their role is to interpret the will of
>Parliament, if I understand it correctly. Folks might however like to debate
>whether the Prevention of Terrorism Act could be called "unconstitutional" in
>this context.

Actually it can be argued that the European Communities Act, and
the Single European Act are constitutional laws that give the
courts the power to do overrule government legislation. On a number
of occasions the courts (either the British Courts, or the European
Court of Justice) have ruled UK laws to be in violation of the
Treaty of Rome (possibly amended by the Single European Act)
and parliament has had to redraft the law. There has never been
a case where parliament has not acted as instructed by the courts
so there has never been a practical test of the ultimate supremacy
of European Law over British, except by default. At this point we
disappear into the "what if" world loved by Constitutional Lawyers!

>In any case, the fact that the courts do not do this is a straw man. The 
>argument is about whether Jon's set of laws (or some other set) constitutes a
>Constitution (sorry about that). I argue that it does, especially since the
>US Constitution was based on British practice of the time, and on those laws
>in particular (ref: Britannica, 1980 edition), or at least those on the books
>in 1776 or so.
>
>I for one would appreciate a good modern reference to the British Constitution.
>Any offers?

So would I, most of my opinions on the matter come from Bagehot modified
by articles in the "quality press" and Radio 4 features...

Martin

---
"You might say that, but I couldn't possibly comment"

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