Unlimited power is apt to corrupt the minds of those who possess it.

William Pitt, Earl of Chatham (1708-1778)

 

The following issues will help you to answer the exam question UK CONSTITUTION: STRUCTURE AND PRINCIPLES and to write your essay:

1. The UK constitution differs from all other constitutions.

2. The main principles and institutions of the UK constitution.

3. The advantages and disadvantages of unwritten constitutions.

UNIT III MONARCHY

What must the king do now? Must he submit? Shakespeare, Richard II

TEXT 1 THE NATURE OF THE CROWN

The UK law has no concept of the state as an entity and sometimes uses the notion of the crown as a substitute. However, the crown is an obscure concept, particularly as to whether the Crown and the Queen are the same. The Queen/Crown is

A. part of the legislature;

B. the formal executive of the UK as a whole and of the devolved governments of Wales, Scotland and Northern Ireland;

C. head of the Church of England;

D. head of the armed forces;

E. source of the authority of the judiciary;

F. prosecutor.

The Monarch has a special ceremonial and symbolic function representing Bagehot's' dignified constitution as a focus for respect for authority. By convention the Queen must always assent to Acts of Parliament and almost always act on the advice of ministers. Sir Robert Armstrong, a former Cabinet Secretary, said that 'for all practical purposes, the Crown is represented by the government of the day'.

There is not one Crown but many. Australia, New Zealand and Canada each recognise the Crown as their Head of State. The office happens for historical reasons to be held by the Queen of the UK, but in each case she has a separate title and separate responsibilities. The same applies to the Queen as Head of the Commonwealth, a title of symbolic importance which carries no legal powers, but probably still has political significance. Indeed, a conflict could arise between the Queen's role as Head of the Commonwealth and her duty to accept the advice of the British government. For example in the mid-1980s the Commonwealth, contrary to the wishes of the UK government under Margaret Thatcher, wanted to ban sporting and trade links with South Africa because of apartheid.

The legal nature of the Crown is unclear. When speaking of the head of state we refer to the Queen, but when speaking of the executive we refer to the Crown. It may be that there is no legal significance in this terminology. For example the Scotland Act 1998 refers to the executive power as vested in 'Her Majesty'. However, the Crown in its official capacity must be separated from the Queen since under the Crown Proceedings Act 1947 the Crown can be sued but not the Queen in her personal capacity. The Crown is often said to be a corporation sole. A corporation sole is an office, which is a person separate from the individual who holds the office at any given time and which therefore exists permanently, not being affected by the death of the office holder. A bishop, for example, is a corporation sole.

An alternative view, which accommodates the reality of modern government is that the Crown is a corporation aggregate akin to a company.

NOTES TO THE TEXT:

Bagehot, William – English economist and political writer (1826-77)

corporation sole – an individual being a member of a series of individuals, who is invested by a fiction with the qualities of a corporation. (A series of individuals means that a continuous legal personality is attributed to successive holders of certain monarchical or ecclesiastical positions, such as kings, bishops, rectors, vicars, and the like) - единоличная корпорация

corporation aggregate – is merely the full name for what we generally know as corporation; the full phrase generally appears when a writer contrasts it with a corporation sole. – корпорация, являющаяся совокупностью юридических лиц.

Crown proceedings – Actions against the Crown brought under the Crown Proceedings Act 1947. The prerogative of perfection (the King can do no wrong) originally resulted in immunity from legal proceedings, not only of the sovereign personally but also of the Crown itself (including government departments and all other public bodies that were agencies of the Crown). It gradually became possible, however, to tae proceedings against the Crown for damages for breach of contract or for the recovery of property. The form of proceedings was a petition of rights (not an ordinary action), and the procedure governing them was eventually regulated by the Petition of Rights Act 1980. The Crown Proceedings Act 1947 replaced petitions of rights by ordinary actions. It also made the Crown liable to actions for the tort of any servant or any agent committed in the course of his employment, for breach of its duties as an employer and as occupier of property, and for breach of any statutory duty that is binding on the Crown.

 

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. a) Translate the text paying special attention to the meanings of the word power.

TASK II. a) Use a law dictionary or GLOSSARY to define the following notions or give their equivalents:

The executive power, power of attorney, resulting powers, war powers, emergency powers, legal powers, government of powers, statutory powers, powers of the government; parental authority, government authority, occupation authority, the authority of the judiciary;

b) Use the verbs: to confer, to exercise, to assume, to delegate, to undermine in the following sentences, choose between power/ powers or authority/authorities where necessary; translate the sentences:

1. If constitutions are about defining and regulating the institutions which … political power/authority, how power/authority is dispersed or concentrated is crucial to the future shape of the settlement.

2. Parliamentarian theories held that the powers/authorities were originally … on the community as a whole, subsequently represented by the King, Lords, and Commons in

3. Parliament, who could use the law-making power/authority to control other powers/authorities that the community had …  to the King.

4. Insisting on sticking to the letter of the legislation would lead to serious problems in policy-making – and also … UK legitimacy, by emphasising the lack of clarity about what devolution ‘means’ and the problems of enforcing the general public’s understanding of what it means.

5. Most countries have found out an art and peaceable order for public assemblies, whereby the people may … its own power/authority to do itself right without disturbance to itself, or injury to princes.

6. Concerns have been expressed that the proposals for a British Bill of Rights may ultimately … the protection of the rights of non-nationals by reinforcing distinctions between citizens and non-citizens.

7. Royalist theories maintained that God had … those powers/authorities directly on the King alone, despite the fact that in making new laws he was assisted by the two Houses of Parliament.

8. At present Queen’s functions may be formally … in only two ways: one for temporary purposes and one more permanently.

9. An element of circularity was involved, in that the King in Parliament … power/authority to judge and declare the King's authority to be valid.

10. If constituent units cannot raise the funds, they cannot provide the services and this can lead to huge disparities between poor and rich regions, which … any sense of collective solidarity.

11. To accroach means to …  power/authority without power/authority.

12. Act of Congress is a law that is formally enacted in accordance with the legislative power/authority … to Congress by the U.S. Constitution.

 

c) Use either power/ powers or authority/authorities in the following sentences; translate the sentences:

1. Local councilors are more trusted than MPs, civil servants and Ministers in opinion polls, but there is little evidence of demand for more powerful local … as opposed to better local services.

2. The Uniform Health-Care Decision Act (1993) states that the … of attorney for healthcare must be in writing and signed by the principal. Unless otherwise stated, the … is effective only upon a determination that the principal lacks capacity, and it ceases to be effective once the principal regains his capacity.

3. The defining features of a constitutional system broadly described as political are that the sovereign … of Parliament is paramount and electoral … is the first and foremost test of legitimacy.

4. A legal constitution is one which affords a high degree of … to rights as interpreted by and applied through the courts.

5. Both parties are likely to support growth in the number of elected mayors but only insofar as local … themselves wish to move in that direction.

6. The ‘political constitution’ of the United Kingdom, with its emphasis on the primacy of the … of elected representatives sitting in Parliament, means that fundamental rights have historically been governed by political, not legal, processes.

7. The terms ‘political constitution’ and ‘legal constitution’ describe the relative

8. … ascribed to the legal and political decision-making processes within the constitution.

9. The Police and Criminal Evidence Act 1984 closely regulates police … of detention and detained persons' rights.

10. Usually, general management … are vested in the directors acting collectively, although they may delegate some or all of these … to the managing director.

11. Attorney is a person who is appointed by another and has … to act on behalf of another.

12. The existence of such a state is declared by royal proclamation under the Emergency … Acts 1920 and 1964.

13. What distinguishes ethnically divided from ‘normal’ societies is the absence of impartial public … .

14. Certain reserved … , specified by the Companies Act, can only be exercised by a general meeting.

15. The centralisation/ peripheralisation axis reflects a variety of factors that strengthen the … of the central state in relation to devolved governments, other public bodies or individuals.

16. The anticipated elections to new local … would not now go ahead in 2009.

17. … may also be reserved by the articles of association of a particular company. Powers other than reserved powers are usually delegated in the articles to the directors. The general meeting can overrule the directors' decision in relation to these delegated … by special resolution, but this will not affect the validity of acts already done.

18. Precedent is a judgment or decision of a court, normally recorded in a law report, used as an … for reaching the same decision in subsequent cases.

19. The Human Rights Act gives a court a wide … to grant such relief, remedies, or orders as it considers just and appropriate, provided they are within its existing … .

20. Legislature is the body having primary … to make written law.

21. Managing director is a director to whom management … have been delegated, either absolutely or subject to supervision, by the other directors of the company under the terms of the articles of association.

22. Managing directors are agents of the company and have wide … to act on its behalf.

23. The mediator, who may be a lawyer or a specially trained nonlawyer, has no decision-making … and cannot force the parties to accept a settlement.

24. Legal constitutionalism is a theory of limited government which constrains the supremacy of Parliament, subjecting it to a range of legal checks and balances and relocating the final … to interpret and enforce fundamental law in the judiciary.

                       

TASK III. Match the adjectives with the nouns:

1. alternative                                          a) concept

2. obscure                                               b) capacity

3. ceremonial and symbolic                c) view

4. political                                              d) significance

5. official                                                e) powers

6. executive                                           f) function

7. corporation                                        g) power     

8. legal                                                    h) sole 

TASK IV. a) Use the following expressions to describe briefly the British monarchy:

To use the notion, by convention, to act on the advice, to assent to Acts of Parliament,  for historical reasons, to carry no powers, to accept the advice, contrary to the wishes, in her/his personal, capacity, to hold the office, at any given time

           b) Use the following expressions to describe the Monarch’s status:

To possess private wealth, in her/his private capacity, to enter into a voluntary agreement, in relation to, to perform public duties, statutory instrument, to be subject to veto

TASK V. Join these sentences using the words in brackets and making any necessary changes. Then check against the text.

a) The Crown in its official capacity must be separated from the Queen. Under the Crown Proceedings Act 1947 the Crown can be sued. The Queen in her personal capacity can not be sued. (since, but not).

b) A corporation sole is an office. This is a person separate from the individual who holds the office at any given time. It exists permanently. It is not affected by the death of the office holder. (which, and which therefore).

c) The crown is an obscure concept. Are the Crown and the Queen the same. (However, particularly as to, whether)

* TASK VI. Summarise the text in not more than 70 words.

In Town Investments Ltd v. Department of the Environment (1977) the question arose whether an office lease taken by a minister was vested in the minister or the Crown itself since in the latter case it would benefit from crown immunities from taxation. The House of Lords held that the lease was vested in the Crown on the basis that a minister was part of the Crown. Lord Diplock thought that the Crown was a fiction describing the executive. Lord Simon of Glaisdale explained that the expression 'the Crown' symbolises the powers of government that were formerly wielded by the wearer of the crown, and reflects the historical development of the executive as that of offices hived off from the royal household. He stated that the legal concept best fitted to the contemporary situation was to consider the Crown as a corporation aggregate headed by the Queen and made up of 'the departments of state including ministers at their heads'. His Lordship added two riders: 'First the legal concept still does not correspond to the political reality. The Queen does not command those legally her servants. On the contrary she acts on the formally tendered collective advice of the Cabinet.' Secondly, 'when the Queen is referred to by the symbolic title of "Her Majesty" it is the whole corporation aggregate which is generally indicated. This distinction between "the Queen" and "Her Majesty" reflects the ancient distinction between "the King's two bodies", the "natural" and the "politic".

The Town Investments analysis weakens the important 'rule of law' idea that the Crown itself is not the same as the individuals who serve it. The Crown has special immunities in law but statutory powers are normally conferred specifically upon individual ministers. This makes it easier to challenge government action in the courts. Under the corporation-sole analysis ministers and officials are servants of the Crown but are not the Crown itself. They should therefore have no special immunity in litigation and can be sued for their personal wrongs just like anyone else. M. v. Home Office (1993), where it was held that the Home Secretary cannot shield himself behind Crown Immunity in order to escape liability for contempt of court, suggests that the traditional analysis has not been displaced. In that case Parliament had conferred the power in question directly upon the Secretary of State, whereas in Town Investments the lease had been made 'for and on behalf of her majesty'.

There may be conflicts between different aspects of the Crown. In R. v. Preston (1993) Lord Mustill said "the Crown is an ambiguous expression often used to denote those who conduct prosecutions on behalf of the state but on other occasions denoting the state as an indivisible entity." In that case there was a conflict between the Crown's duty as prosecutor to disclose relevant material to the defence and its wider security duties involving secret surveillance.

Notes to the Text:

fiction – an assumption that something is true irrespective of whether it is really true or not – фикция

contempt of court – 1. (civil contempt) Disobedience to a court judgment or process, e.g. breach of an injunction or improper use of discovered documents. 2. (criminal contempt) Conduct that obstructs or tends to obstruct the proper administration of justice.

 

Task VII . Use the verbs from the box below  in proper tense-forms:

exempt, to possess, to fund, can increase, to fund, to enter

Financing the monarchy

The Queen … considerable private wealth and even in her private capacity … from taxes unless statute specifically provides otherwise. The Queen … however into a voluntary agreement to pay tax on current income and personal capital. Many of the royal expenses, particularly in relation to the upkeep of Crown buildings and for foreign relationships - for example, overseas visits and entertaining visiting heads of state - … by government departments. The basic expenses of the monarchy and of those members of the Royal Family who perform public duties … from the 'civil list'. This is an amount granted by Parliament at the beginning of each reign. It consists of an annual payment that … by  statutory instrument made by the Treasury and subject to veto by the House of Commons .

Task VIII. Discuss possible developments of Monarchy:

PREDICTIONS FOR MONARCHY?

The Queen has made it clear that she sees her obligation is to serve for the whole course of her life. Acknowledging that lesser thrones may have gone in for serial abdication to make way for younger replacements, talk of abdication has been discouraged. In any case it is typically the sort of action that is not discussed until it is resolved upon.

This does not, however, end the matter. The Queen is now 82 and the heir 60. There seems every likelihood that the Queen enjoys the good health of her mother and may therefore be expected to live an equally long life. However, even in the most favourable circumstances, her energies are bound to diminish, and she will no doubt taper her activities and expect the heir to take on more of her role if not, of course, all her functions.

At present her functions may be formally delegated in only two ways: one for temporary purposes and one more permanently. Under the Regency Acts of 1937 and 1953, Counsellors of State may be appointed for temporary purposes, for example, should the Queen be incapacitated by a passing illness or be out of the country.

The Counsellors of State consist of the heir and the next four in line of succession. The Counsellors have to act jointly, and cannot without the sovereign’s express permission consent to a dissolution or grant any rank, title or dignity of peerage. Should a demise occur or a regency be necessary, the delegation to Counsellors automatically ceases.

A regency may occur if any three of the sovereign’s spouse, the Lord Chancellor, the Commons Speaker, the Lord Chief Justice of England and the Master of the Rolls declare on medical evidence that the sovereign is by reason of infirmity of mind or body incapable for the time being of performing the royal functions or is for some definite cause not available to perform them. The regent acquires all the powers of the sovereign except that he may not assent to any Bill changing the succession or for repealing the Queen Anne legislation securing the position of the Church of Scotland.

There are therefore limits to what an heir may undertake without a regency, but a regency may occur only as a result of the sovereign’s incapacity. It follows that ordinarily, although the heir may take on a wide range of ceremonial functions, he could not, for example, appoint prime ministers or bishops, give assent to legislation, confer honours or grant dissolutions. On the other hand, there is a lot he could still do from reading the Queen’s speech at every new parliamentary session, leading attendance on Remembrance Day, fronting diplomatic including Commonwealth occasions to presiding over the presentation of honours. Attending the Prime Minister’s audiences with the sovereign would also be sensible. For so long as the sovereign could signify assent to Bills, regency would not be necessary.

But such a limbo life could also continue for a very long time, especially in the case of a sovereign’s prolonged ill-health short of incapacity. Temporary expedients could become strained and the heir be trapped in an endless weak lieutenancy – always the bridesmaid and never the bride. Whilst there would be great sympathy for an ageing sovereign and instinctive indulgence in recognition of a life of impeccable service, there would also be a growing sympathy for the anomalous position of the heir, confused simultaneously perhaps with growing attention to the next in line – a source of potential conflict. Could there be a case for a new kind of regency (for example, Brazier 1999: 204) which gave full powers to the regent but took none away from the sovereign?

In 2020 the Queen is 94 and the heir 72. You are the Prime Minister. What would you do?

TEXT 2. The Functions of the Monarchy

Since 1688 the functions and personal powers of the monarchy have gradually been reduced. The 1688 Revolution left the monarch in charge of running the executive but dependent upon Parliament for money and lawmaking power. The monarch retained substantial personal influence until the late nineteenth century, mainly through the power to appoint ministers and to influence elections in the local constituencies. Until after the reign of George V (1910-1934) monarchs occasionally intervened in connection with ministerial appointments and policy issues. The abdication of Edward VIII (1936) probably spelt the end of any political role for the monarch.

The modern functions of the monarchy can be outlined as follows:

1. To unite the nation participating for this purpose in ceremonies and public entertainments. It is often said that the popularity and public acceptance of the monarchy is directly related to the fact that the monarch has little political power and is primarily an entertainer. It is not clear why a modern democracy requires a personalised 'leader' in order to be united. There is a strong element of superstition inherent in the notion of monarchy, hence the importance of the link between the monarch and the Established Church.

2. To 'advise, encourage and to warn. The monarch, supported by a private secretary has access to all government documents and regularly meets the prime minister. The monarch is entitled to express views in private to the government but there is no convention as to the weight to be given to them.

3. Certain formal acts. The monarch must normally accept the advice of ministers. These include:

 (i) Assent to statutes. Today this function is usually performed on the Queen's behalf by a commission,
(ii) Consents to Orders in Council.

(iii) Appointments of ministers, ambassadors, bishops, judges,
(iv) Royal proclamations, for example dissolving and summoning Parliament or declaring a state of emergency,
(v) Ratifying solemn treaties,
(vi) Granting charters to universities, professional bodies, etc. These

bestow the seal of state approval and also incorporate the body

in question so that it can be treated as a separate person in law.
(vii) Awarding peerages, honours and medals.

 

NOTES TO THE TEXT:

Monarchy—the first element of the word is from Greek monos , "alone, single"; the second element comes from archos , "ruler" or "leader" - "undivided rule by a single person. A number of other terms for various forms of government are also based on Greek -arches and oligos , "few"; or an-, a-, meaning "without" - oligarchy, "government by the few", anarchy, "the absence of government altogether".

Orders in Council - Government orders of a legislative character made by the Crown and members of the Privy Council either under statutory powers conferred on Her Majesty in Council or in exercise of the royal prerogative.

Royal assent - The agreement of the Crown, given under the royal prerogative and signified either by the sovereign in person or by royal commissioners, that converts a Bill into an Act of Parliament.

Royal prerogative - The special rights, powers, and immunities to which the Crown alone is entitled under the common law. most prerogative acts are now performed by the government on behalf of the Crown.

Royal proclamation - A document by which the sovereign exercises certain prerogative powers and certain legislative powers conferred on her by the statute.

Royal style and titles - These were made by Proclamation in 1953, and are: "Elizabeth II, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith".

Emergency powers - Powers conferred by government regulations during a state of emergency. The existence of such a state is declared by royal proclamation under the Emergency Powers Acts 1920 and 1964. A proclamation which lasts for one month but is renewable, may be issued whenever there is a threat (e.g. a major strike or natural disaster) to the country's essentials of life.

Treaty - An international agreement in writing between two states (a bilateral treaty) or a number of states (a multilateral treaty). Such agreements can also be known as conventions, pacts, protocols, final acts, arrangements and general acts. In England the power to make or enter into treaties belongs to the monarch, acting on the advice of government ministers, but a treaty does not become a part of English law until brought into force by an Act of Parliament. (Paris Treaty (1951); Treaty of Rome (1957); Maastricht Treaty ( 1992).

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