The British Constitutional System. Introduction. Early history Qualifying the power of the monarchy Path to democracy Characteristics of the present system. Feudal Monarchy. Legacy of Roman Britain e.g. towns and roads
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Qualifying the power of the monarchy
Path to democracy
Characteristics of the present system
Origins of modern legal system
Henry II established many features of common law, jury trial, legal uniformity by judicial circuits.
New remedies available in his own courts and abolition of trial by ordeal.
This common law is enforced throughout the land by itinerant justices, professional administrators of the law, all trained in one school.
Magna Carta sealed by King John. This set the founding principles for parliament and constitution. It defined some rights, legal practices (fair trial) and 'good lordship' - Set out what subjects could expect from their monarch and superiors.
It was forced on the monarch by the barons/lords
It placed real limitations on Royal Authority.
A committee of barons could overrule the King.
Due process of law is recognised from King downwards
Granted rights to London and other towns.
Edward established control over Wales defeated the Scots(William Wallace, Braveheart).
Scotland remained separate nation with its own Parliament, legal system and educational system but monarchy combined in 1603 and Parliaments combined in 1707.
British Prime Minister emerged after the introduction of the Hanoverian monarchy. George I spoke no English and his son, George II had only limited command of the language. The result was that the affairs of government were increasingly conducted by the king’s ministers. These ministers had to be members of parliament, answerable to Parliament. Most prominent among these was the First Lord of the Treasury, referred to as Prime Minister. Sir Robert Walpole recognised as first modern PM.
Professor Dicey in 1885 recognised: The fundamental principle of the constitution is Parliamentary Sovereignty, the concept is traced back to 1689. Parliament, comprising House of Commons, House of Lords with Royal Assent, has absolute power to pass or repeal any law. In theory no direct challenge is possible and Parliament cannot bind its successors.
The rule of law is Dicey’s second principle, it means government according to law and equality before the law, in essence that all public bodies must act lawfully within their powers.
Implicit in this concept is a separation of power between the executive branch and the courts who enforce the law.
In light of the convention that the government must maintain its Commons majority to survive, the party managers (whips) can put enormous pressure on MPs of the ruling party to support the government line or risk defeat in a vote of confidence (and, in consequence, an election). In practice, this means that the government can be sure to get its legislative programme enacted. The fact that MPs of the governing party nearly always follow instructions from the whips allows the PM, cabinet (party machine) to steamroller policy through parliament. The concern is that its scrutinizing capacity may be compromised as a result.
The parliamentary system in Italy (Article 94) also depends on the government enjoying the confidence of parliament, but until recently with less stability, because the government has tended to be formed from a coalition of large parties and smaller parties or factions, any one of which might break lose triggering a vote of confidence: e.g. fall of Prodi government.