3. LEGISLACIÓN NACIONAL.
3.7. Participación, Inclusión y Consulta Previa
It is wrong to say that the United Kingdom (UK) does not possess a constitution because the United Kingdom does have a constitution, but it is not in the form of a single document. The countries which have a written constitution also have constitutional law and the constitution is mostly in the form of a single text document. The UK does have ground rules which are found in the constitutional text of the constitutions of many countries. These ground rules deal with the distribution of power in the government, the accountability of the government for its deeds, the principles of consensus, legitimacy, permanency, amendments in the law and its interpretation.
The constitution of the United Kingdom is similar in many ways to the written constitutions of other countries. The central government of the UK is divided into three branches which are the legislature, the executive and the judiciary. The power is shared horizontally by these three branches. There is also a vertical sharing of power between the different departments of the gov- ernment. This vertical sharing of power is quite similar to the EU model and devolved and local governments are included. The government is made accountable legally and politically by claus- es which have a legitimacy established by consensus.
There are many similar features between the constitution of the United Kingdom and the written constitutions of many other nations, like the UAE. The main difference between the UK constitu- tion and constitutions of other countries is that the arrangements of the UK constitution lack a specific legal status. Since the fundamental tenets of the UK constitution are not in written form, it is possible for the legislators of the United Kingdom to make laws which are against the spirit of the constitution. It can be argued that fear of losing the next election is the only factor which prevents the legislators from making laws which go against the principles of the UK constitution. Laws passed by the Parliament of the United Kingdom cannot be cancelled by the courts even if they run counter to the principles of the constitution of the country, but the courts recognize that the legal status of the principles of the constitution is higher than that of parliament’s laws. In the legal case of R Jackson v Attorney General (2005), the Lords Hope, Steyn and Baroness Hale stated that the courts could cancel laws which were against basic constitutional principles. The courts could also refuse to enforce the application of these laws.271
Laws passed by the lawmakers in the House of Commons and the House of Lords can be regarded as interpretations of the different provisions of the constitution. The courts may also interpret the text of the law which can lead to the formation of constitutional law. If the constitutional text or other laws do not deal with a particular matter, then an informal resolution can be made by the people involved. The constitutional arrangements of the United Kingdom have several sources such as the ordinary law passed by the legislatures, the international treaties 271R Jackson v Attorney General UKHL, 56 [2006] 1 AC 262.
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signed by the government, the common law272, and precedents of the courts and politicians. Most of the laws deal with power sharing amongst the different institutions of the government such as the executive and legislative authority given to the governments of Wales, Scotland and Northern Ireland273. New laws were also introduced when the United Kingdom joined the European Union. The laws of the EU are enforced in the UK by the courts of the kingdom. The main function of the courts in the United Kingdom is to settle disputes and apply the law to the facts involved. The courts mostly make laws by referring to precedents of the judiciary.274
Common law gives the courts the power to make laws and does not limit them only to the inter- pretation of the law. The royal prerogative is contained in the common law and it allows the ex- ecutive to declare war and perform certain other functions. It has its basis in history, as the mon- archy used to rule the country by using the royal prerogative. Ministers usually exercise preroga- tive powers, but the monarch has the right to use them.275
International law also affects the laws of the United Kingdom because the treaties signed by the UK become laws when passed by the legislature. The laws of the country can also be interpreted in a way that complements international treaties which are entered into by the UK. 276
The UK constitution also has several political conventions which are not strictly regulated by the country’s laws. The Johnathan Cape and GCHQ case showed that the conventions can supply evidence which can lead to the enforcement of certain laws such as confidentiality or legitimate expectation.277
It is important to recognise important branches of government which have authority in framing the laws in the UK. The constitution of the country works on the principle of division of powers but in certain areas the divisions are not clear. The issue of the division of power between the 272 Including the royal prerogative.
273Scotland Act (1998) Government of Wales Act 2006, Northern Ireland Act 1998.
274 Judicial precedent is when decisions made by courts when deciding cases bind all lower courts given the same or similar circumstances,
275 Garland v British Rail Engineering Ltd [1983] 2 AC 751, 771. 276 Ibid
277 Elliot & Thomas(2011) Public Law. OUP
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three main branches of the government is vital as it is responsible for preventing the institutions from using their powers unfairly. 278
3.2.1 Executive
The executive rules over the United Kingdom; it consists of a political party which has the ma- jority of votes or of an alliance of two parties when there is a hung parliament. Its main functions are to develop public policy and to implement laws which are made by the legislature. It is re- sponsible for handling the affairs of the country279 and is the branch of government which is re- sponsible for taking legal initiatives280. The UK has a strong executive system but it is not for- mally recognized by the law which does not use the term executive281. The reason for this lies in historical precedent and is also due to the fact that the UK constitution is not written down. The monarchy is still seen as the executive and the executive formed by the political parties is called the Crown in Parliament.
3.2.2 Parliament
The parliament of the UK is responsible for making the laws of the country. It also revises and amends the existing laws. Parliament is a vital component in the legal system of the country. Laws which are considered by parliament are usually presented before it by the ruling govern- ment.
In ‘The Sovereignty of Parliament’282, Goldsworthy argues that the sovereignty of parliament is recognised by orthodox constitutional principles and the courts also accept this sovereignty283. Parliament is thus free to make any kind of law. Dicy (1959) affirms that laws made by parlia- ment cannot be cancelled or abolished284. The UK courts are bound to apply the laws of parlia- ment, but there are certain laws which can only be altered or abolished if it is politically neces- sary.
278 Elliot & Thomas(2011) Public Law. OUP
279R v Secretary of State for the Home Department, ex p FIRE BRIGADES UNION [1995] 2 AC 613, 567-8. 280 Elliot & Thomas. ibid.
281Town Investments Ltd v Department of the Environment [1978] AC 359, 398, as per Lord Simon. 282 Goldsworthy [1999]The Sovereignty of Parliament Oxford.
283British Railways Board v Pickin [1974] AC 765, 782, as per Lord Reid.
284Dicy. 1959, An Introduction to the Study of the Law of the Constitution London, p38. 102
Parliament consists of the House of Lords and the House of Commons. The House of Lords con- sists of Lords who are politically selected or who have gained the title by birthright. The drafts presented by the politically elected representatives of the House of Commons are examined by the House of Lords.
Law-making powers are not only possessed by parliament, but are divided between the different institutions of the government and the power is exercised by the European Community Act 1972, the parliament of Scotland and the assembly of Wales. Local and regional governments have also developed law-making powers.
3.2.3 The Judicial System
There are several courts in the judicial system of the UK. The three main types of courts are Magistrates courts, Tribunals and County Courts. County Courts are the lowest courts; they ex- amine facts, hear the witnesses and determine the outcome. Cases presented for the first time are taken up by these courts.
The High Courts and the Court of Appeal are above the county courts and they serve as an appel- lant court or a court of first instance. The Supreme Court is the highest court in the UK and han- dles cases which greatly affect the public and those related to constitutional matters. It is also a major source of CommonLaw.285 The courts can also be classified according to the type of case that they hear: criminal, civil or administrative.
The judiciary can also introduce laws by precedent. Judges have to show great self-restraint as a great deal of responsibility lies on their shoulders. When Lord Philips was the Lord Chief Justice he stated that the limits of the judiciary were known to the judges; it was therefore necessary for judges to respect the rights of the other two branches of the state, Parliament and the Lords, and it was important for these branches to respect the functions of the courts.286
285http://www.supremecourt.gov.uk/about/role-of-the-supreme-court.html.
286The Lord Chief Justice’s Review of the Administration of Justice in the Courts (HC 448 2007-8). 103
The judiciary of the UK proudly states that it is independent. The division of powers between the three branches of the state provides the necessary restraint that is needed to prevent any one of them from abusing their powers, but it is necessary for each branch of the state to play its own role and not to interfere in the matters of the other branches. The separation of powers guarantees the independence of the judiciary.287