English for Law Students: University Course. Part I

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M.V. Lomonosov Moscow State University Law School

M.V. Lomonosov Moscow State University Law School

Department of Foreign Languages

Part I

ENGLISH FOR LAW STUDENTS is a part of the university course of legal English for academic purposes. It is addressed to law students of non-common law countries. It is aimed at teaching students to understand the language of English law, its fundamental concepts and institutions. Its goal is to enable students to deal with different types of legal texts, to become knowledgeable in current legal issues, to use proper English legal terms with regard to their own legal systems. The final objective is to stimulate students’ interest in law and language. Although English for Law Students is designed as a part of the university course of legal English it can also be useful for students of the humanities, economics, social and political sciences, etc. in their self-study of English law and language.

ENGLISH FOR LAW STUDENTS UNIVERSITY COURSE

Department of Foreign Languages

ENGLISH FOR LAW STUDENTS UNIVERSIT Y COURSE

Part I

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M.V. Lomonosov Moscow State University Law School Department of Foreign Languages

ENGLISH FOR LAW STUDENTS UNIVERSIT Y COURSE

Part I

ÌÎÑÊÂÀ 2014

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 УДК 802/809.1 ББК 81.2 E 58 Edited by Tatiana Tarasova CONTRIBUTORS: Natalya Berezhneva Asya Goloborodko Dina Karpova Tatiana Tarasova REVIEWED BY Eugenia Yakovleva Professor of Linguistics Suren Avakjan Professor of Law E 58

English for Law Students: University Course / Ed. by T. Tarasova. Part I. – Moscow: STATUT, 2014. – 343 p. [Английский язык для студентовюристов. – М.: Статут, 2014. – На английском языке] ISBN 978-5-8354-0978-5 (Part I; softback) ISBN 978-5-8354-0977-8 ENGLISH FOR LAW STUDENTS is a part of the university course of legal English for academic purposes. It is addressed to law students of noncommon law countries. It is aimed at teaching students to understand the language of English law, its fundamental concepts and institutions. Its goal is to enable students to deal with different types of legal texts, to become knowledgeable in current legal issues, to use proper English legal terms with regard to their own legal systems. The final objective is to stimulate students’ interest in law and language. Although English for Law Students is designed as a part of the university course of legal English it can also be useful for students of the humanities, economics, social and political sciences, etc. in their self-study of English law and language.

ISBN 978-5-8354-0978-5 (Part I) ISBN 978-5-8354-0977-8

УДК 802/809.1 ББК 81.2

© Contributors, 2013 © Издательство «Статут» (Statut Publishing House), 2013

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CON T E N TS Foreword..................................................................................................5 UNIT I HISTORY AND SOURCES OF ENGLISH LAW Text 1. Case Law......................................................................................6 Text 2. How Do Judges Really Decide Cases?.........................................19 Text 3. Equity.........................................................................................30 UNIT II CONSTITUTION Text 1. The Development of the uk Constitution...................................38 Text 2. Evolution of the british constitution in the 17-th century....................................................................44 Text 3. Structure of the UK Constitution................................................52 Text 4. Constitutionalism........................................................................63 Text 5. Separation of Powers...................................................................71 Text 6. Separation of powers in the united kingdom..............................79 Text 7. The Rule of Law..........................................................................84 Text 8. Federal and unitary constitutions..............................................95 UNIT III MONARCHY Text 1. Nature of the crown.................................................................107 Text 2. Functions of Monarchy.............................................................118 Text 3. Personal Powers of the monarch...............................................124 Text 4. The Royal Prerogative...............................................................136 Text 5. Dwindling power of the crown.................................................141 Text 6. A Right Royal Argument...........................................................147 Text 7. Referendum set to Back the Queen of Australia.........................150

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UNIT IV PARLIAMENT Text 1. Rise of english parliament........................................................157 Text 2. Formation of two houses of parliament...................................162 Text 3. Legal history of parliament.......................................................164 Text 4. British parliament today..........................................................172 Text 5. Composition of parliament.......................................................187 Text 6. Composition of the modern house of lords..............................202 Text 7. Composition of the modern house of commons . ....................224 Text 8. Meeting of Parliament...............................................................236 Text 9. Types of legislation..................................................................240 Text 10. Passage of a Public Bill Introduced by the Government  into the House of Commons....................................................242 Text 11. Parliamentary privilege...........................................................249 UNIT V THE EXECUTIVE Text 1. Parliamentary government.......................................................259 Text 2. Cabinet and prime minister......................................................268 Text 3. Growth of the executive............................................................272 Text 4. ‘Hollowed-out government’.....................................................277 Glossary...............................................................................................291 Keys.....................................................................................................326 References............................................................................................342

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FOR E WOR D English for Law Students is designed • to meet the students’ needs in acquiring both language through law and law through language; • to strengthen their reading and writing skills; • to develop the students’ ability to analyse, summerise and interpret legal texts concerning particular legal area or issue; • to introduce common law terms, concepts and institutions to the students of a different law system; • to increase their competence in legal language usage; •  to provide thought provoking materials; • to encourage analytical approach to  and comparative studies of current legal issues and reforms; • to equip students with linguistic tools to advance in their scholarly activity. English for Law Students contains five UNITS: History and Sources of English Law, Constitution, Monarchy, Parliament, The Executive. Each unit includes a number of texts on a particular theme followed by LANGUAGE PRACTICE AND COMPREHENSION CHECK with TASKS ranging from word building to complicated legal vocabulary, grammar, syntax, discussion points. They focus on reading comprehension, speaking and writing activities. Each unit ends with the task to write an essay based on the texts of the unit on one of the exam questions. The KEY at the end of the book gives the answers to some exercises. The GLOSSARY provides definitions for most legal terms used in the units. English for Law Students is designed for all those who strive for academic excellence and professional success.

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UNIT I HISTORY AND SOURCES OF ENGLISH LAW

TEXT 1 CASE LAW The word source can mean several different things with regard to law, but for our purposes it primarily describes the means by which the law comes into existence. English law stems from seven main sources, though these vary a great deal in importance. The basis of English law today is case law, a mass of judge-made decisions which lays down rules to be followed in future cases. For many centuries it was the main form of law and it is still very important today. However, the most important form of law, in the sense that it prevails over most of the others, is statute, or Act of Parliament, which today is the source of most major changes in the law. As well as being a source of law in their own right, statutes contribute to  case law, since the  courts occasionally have to interpret statutory provisions, and such decisions lay down new precedents. Delegated legislation is a related source, laying down detailed rules made to implement the broader provisions of statutes. An increasingly important source of law is the legislation of the European Community, which is the only type of law that can take precedence over statutes in the UK, and is increasingly influencing the decisions of the courts in interpreting statutes. 6

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Finally, custom, equity and obligations relating to international treaties are minor sources of law, though Britain’s obligations under the  European Convention on Human Rights have produced notable contributions to law reform. Before the Norman conquest, different areas of England were governed by different systems of law, often adapted from those of the various invaders who had settled there; roughly speaking, Dane law applied in the north, Mercian law around the midlands, and Wessex law in the south and west. Each was based largely on local custom, and even within the larger areas, these customs, and hence the law, varied from place to place. The king had little control over the country as a whole, and there was no effective central government. When William the Conqueror gained the English throne in 1066, he established a strong central government and began, among other things, to standardize the law. Representatives of the king were sent out to the countryside to check local administration, and were given the job of adjudicating in local disputes, according to local law. When these ‘itinerant justices’ returned to Westminster, they were able to discuss the various customs of different parts of the country and, by a process of sifting, reject unreasonable ones and accept those that seemed rational, to form a consistent body of rules. During this process – which went on for around two centuries – the principle of stare decisis (‘let the decision stand’) grew up. Whenever a new problem of law came to be decided, the decision formed a rule to be followed in all similar cases, making the law more predictable. The result of all this was that by about 1250, a ‘common law’ had been produced, that ruled the whole country, would be applied consistently and could be used to predict what the courts might decide in a particular case. It contained many of what are now basic points of English law – the fact that murder is a crime, for example. 7

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The principles behind this ‘common law’ are still used today in creating case law (which is in fact often known as common law). From the basic idea of stare decisis, a hierarchy of precedent grew up, in line with the hierarchy of the modern court system, so that, in general, a judge must follow decisions made in courts which are higher up the hierarchy than his or her own. This process was made easier by the establishment of a regular system of publication of reports of cases in the higher courts. The body of decisions made by the higher courts, which the lower ones must respect, is known as case law. Case law comes from the decisions made by judges in the cases before them (the decisions of juries do not make case law). In deciding a case, there are two basic tasks; first, establishing what the facts are, meaning what actually happened; and secondly, how the law applies to those facts. It is the second task that can make case law, and the idea is that once a decision has been made on how the law applies to a particular set of facts, similar facts in later cases should be treated in the same way, following the principle of stare decisis described above. This is obviously fairer than allowing each judge to interpret the law differently, and also provides predictability, which makes it easier for people to live within the law. The judges listen to the evidence and the legal argument and then prepare a written decision as to which party wins, based on what they believe the facts were, and how the law applies to  them. This decision is known as  the  judgment, and is usually long, containing quite a lot of comment which is not strictly relevant to the case, as well as an explanation of the legal principles on which the judge has made a decision. The explanation of the legal principles on which the decision is made is called the ratio decidendi – Latin for the ‘reason for deciding’. It is this part of the judgment, known as binding precedent, which forms case law. All the parts of the judgment which do not form part of the ratio decidendi of the case are called obiter dicta – which is Latin for ‘things said by the way’. 8

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These are often discussions of hypothetical situations: for example, the judge might say ‘Jones did this, but if he had done that, my decision would have been . . .’ None of the obiter dicta forms part of the case law, though judges in later cases may be influenced by it, and it is said to be a persuasive precedent. LANGUAGE PRACTICE AND COMPREHENSION CHECK

case court case case law to stem from to lay down statute to interpret precedence

ACTIVE VOCABULARY

possible crime and its investigation by the police legal action or crime law as established by precedents to derive from, to originate to declare or start firmly law passed by a law making body to place a particular meaning on the right to be put or dealt with before others, especially because of the greater importance

to take precedence to give precedence to apply the law to effect; be directly related justice 1. fair treatment ( in law ) 2. magistrate 3. title given to High Court judge itinerant justice traveling justice evidence the answers given in the court of law judgment a decision made by a court in respect of the matter before it

TASK I. a) Complete the  following sentences using the above words: 1. This rule does not … to your particular case. 9

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2. The police do all they can to bring criminals to … . 3. He passed … on the guilty man. 4. ... … were sent out to the countryside to check the local administration. 5. In the dispute over custody of the child, the court decided to … … to mother`s claims. 6. My … against the local council will be heard today. 7. The police have a clear … against the prisoner. 8. The witness gave her … in a clear firm voice. b) Learn the following legal terms and Latin expressions: • Source of law Something (such as a constitution, treaty, statute, or custom) that provides authority for legislation and for judicial decisions; a point of origin for law or legal analysis. • Ratio decidendi [Latin ‘the reason for deciding’] 1. The principle or rule of law on which a court’s decision is founded. 2. The rule of law on which a later court thinks that a previous court founded its decision; a general rule without which a case must have been decided otherwise. • Obiter dictum [Latin ‘something said in passing’] A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). Often shortened to dictum. • Stare decisis [Latin ‘to stand by things decided’] The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation. • Precedent 1. The making of law by a court in recognizing and applying new rules while administering justice. 2. A decided case that furnishes a basis for determining later cases involving similar facts or issues. 10

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TASK II. Verb ? accept ? ? ? ? ? Apply ? TASK III. on the right: 1. modern 2. stem from 3. prevail 4. vary 5.influence 6. contribute 7. treat 8. source 9. gain 10. body of 11. establish 12. judge TASK IV. on the right: 1. accept 2. gain 3. occasional

Complete the following table: Noun Adjective ? different ? ? Precedent ? judge ? Evidence ? ? predictable report ? ? ? ? relevant Match the words on the left with their synonyms a. affect, persuade, motivate b. add, bestow c. originate d. acquire, get e. consider, deal with f. create, set up g. arise, come, derive h. predominate i. justice j. accumulation, collection, mass k. change, deviate, differ l. present Match the words on the left with their antonyms a. general, easygoing b. general, national c. frequent, regular 11

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4. particular 5. common 6. local 7. obvious(ly)

d. distinctive, unusual e. reject f. miss g. hidden, obscure

TASK V. Change the form of the words by adding negative prefixes so that the meaning becomes opposite: relevant, important, effective, equality, legal, reasonable, rational, consistent, regular, predictable, relevant, representation TASK VI. Add adjectives to the following nouns and make up sentences with the word combinations to describe case law: j------- precedent l---- custom b------ precedent t--------- justice p-------- precedent i------- justice l---- law l---- argument c----- law w------- decision j---- m---- law l---- principle TASK VII. a) Study and compare the meanings of the words various and different: Different able to be distinguished; unlike in nature, form or quality Various

1. different; diverse (e. g. the modes of procedure were various; types so various to defy classification. 2. separate, several; more than one (come across various people; for various reasons.

b) Use different, differently, various in the following sentences: 1. It is useful to explore … aspects of the democratic principle of the supremacy of the sovereign will of the people laid down in the Constitutional law. 12

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2. To some extent the  variation of law reflects … social conditions and … attitudes by the public toward similar problems. 3.  … justices use oral argument … . 4. Both Canadian and British laws are … from American jurisprudence in a way that directly impacts court reporting. 5.  Cases scheduled for oral argument are handled quite … . 6. There are … ways of solving the problem. 7.  For … reasons it has not been possible to  carry out improvements. c) Find the sentences with different, differently, various in the text and translate them. TASK VIII. a) Fill in the  gaps with the  following words: separate, differences, association, ruled, originally, single, substantial, similar, unitary. Characteristics of English Law 1.  The United Kingdom is a … State, not a federation of States. 2.  Nevertheless, it does not have a … system of law within that State. 3.  There are … systems operating in (i) England and Wales, (ii) Northern Ireland, and (iii) Scotland. Due to the closeness of the … since the twelfth century between England and Wales on the one hand and Northern Ireland on the other, these countries have … legal systems. There are, however, … between the law of Scotland, influenced by Roman law, and that of the remainder of the United Kingdom, although since the Union with Scotland Act, 1707, these … are now less marked on broad issues. 4.  Two important links uniting the system are: (a) Parliament at Westminster is the supreme authority throughout the United Kingdom; (b) The House of Lords is the final court of appeal. 13

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5.  English law is one of the great legal systems of the world, and a … proportion of it is … today by laws that came … from this small island. b) Compare the following definitions of source of law borrowed from Black’s Law Dictionary and explanations offered by the two scholars: • ‘The term ‘sources of law’ is ordinarily used in a much narrower sense than will be attributed to  it here. In  theliterature of jurisprudence the problem of ‘sources’ relates to  the  question: Where does the  judge obtain the rules by which to decide cases? In this sense, among the  sources of law will be commonly listed: statutes, judicial precedents, custom, the  opinion of experts, morality, and equity. In the usual discussions these various sources of law are analyzed and some attempt is made to state the conditions under which each can appropriately be drawn upon in the  decision of legal controversies. Curiously, when a legislature is enacting law we do not talk about the ‘sources’ from which it derives its decision as to what the law shall be, though an analysis in these terms might be more enlightening than one directed toward the more restricted function performed by judges. Our concern here will be with ‘sources’ in a much broader sense than is usual in the literature of jurisprudence, Our interest is not so much in sources of laws, as in sources of law. From whence does the law generally draw not only its content but its force in men’s lives?’ (Lon L. Fuller, Anatomy of the Law – 1968). • ‘In the context of legal research, the term ‘sources of law’ can refer to three different concepts which should be distinguished. One, sources of law can refer to the origins of legal concepts and ideas ... Two, sources of law can refer to governmental institutions that formulate legal 14

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rules ... Three, sources of law can refer to the published manifestations of the law. The books, computer databases, microforms, optical disks, and other media that contain legal information are all sources of law’. (J. Myron Jacobstein & Roy M. Mersky, Fundamentals of Legal Research–1990) c) Compare the definition of ‘precedent’ with the comments made by the scholars: • ‘In law a precedent is an adjudged case or decision of a court of justice, considered as furnishing a rule or authority for the determination of an identical or similar case afterwards arising, or of a similar question of law. The only theory on which it is possible for one decision to be an authority for another is that the facts are alike, or, if the facts are different, that the principle which governed the first case is applicable to the variant facts’. (William M. Ule et al., Brief Making and the Use of Law Books – 1914) • ‘A precedent ... is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large’. (John Salmond, Jurisprudence 191 (Glanville L. Williams ed. – 1947)) • ‘One may say, roughly, that a case becomes a precedent only for such a general rule as is necessary to the actual decision reached, when shorn of unessential circumstances’. (James Parker Hall, Introduction, American Law and Procedure – 1952) • ‘One may often accord respect to  a precedent not by embracing it with a frozen logic but by drawing from its thought the elements of a new pattern of decision’. (Lon L. Fuller, Anatomy of the Law – 1968) 15

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TASK IX. Compare the following definitions of common law with the one given in the text. Which of them do you find the most precise? The body of legal principles evolved by judges from custom and precedent. …Common law is contrasted with statute law, the written law of parliament to which it is complementary; with equity jurisdiction in Chancery; and with canon law, the law of the church. Collins Dictionary of British History 1. The part of English law based on rules developed by the royal courts during the first three centuries after the Norman Conquest (1066) as a system applicable to the whole country, as opposed to local customs. The Normans did not attempt to make new law for the country or to impose French law on it; they were mainly concerned with establishing a strong central administration and safeguarding the royal revenues, and it was through machinery devised for these purposes that the common law developed. Royal representatives were sent on tours of the shires to check on the conduct of local affairs generally, and this involved their participating in the work of local courts. At the same time there split off from the body of advisers surrounding the king (the curia regis) the first permanent royal court – the Court of Exchequer, sitting at Westminster to hear disputes concerning the revenues. Under Henry II (reigned 1154–89), to whom the development of the common law is principally due, the royal representatives were sent out on a regular basis (their tours being known as circuits) and their functions began to be exclusively judicial. Known as justiciae errantes (wandering justices), they took over the work of the local courts. In the same period there appeared at Westminster a second permanent royal court, the Court of Common Pleas. These two steps mark the real origins of the common law. The judges of the Court of Common Pleas so 16

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successfully superimposed a single system on the multiplicity of local customs that, as early as the end of the 12th century, reference is found in court records to the custom of the kingdom. In this process they were joined by the judges of the Court of Exchequer, which began to exercise jurisdiction in many cases involving disputes between subjects rather than the royal revenues, and by those of a third royal court that gradually emerged – the Court of King’s Bench. The common law was subsequently supplemented by equity, but it remained separately administered by the  three courts of common law until they and the Court of Chancery (all of them sitting in Westminster Hall until rehoused in the  Strand in 1872) were replaced by the  High Court of Justice under the Judicature Acts 1873–75. 2. Rules of law developed by the courts as opposed to those created by statute. 3. A general system of law deriving exclusively from court decisions. A Dictionary of Law (fifth edition), Oxford University Press As distinguished from statutory law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and in this sense, particularly, the ancient unwritten law of England. In general, it is a body of law that develops and derives through judicial decisions as distinguished from legislative enactments… Black’s Law Dictionary (abridged sixth addition)

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1. The body of law originating in England and the modern systems of law based upon it. 2. The unwritten law, especially of England, based on custom and court decisions rather than on laws made by Parliament. Longman Dictionary of English Language and Culture Unwritten law of England, applied by the national courts, purporting to be derived from ancient usage and judges’ decisions. The Concise Oxford Dictionary TASK X. Read the passage ‘How judicial precedent works’ and explain what is meant by: a)  following a case – b)  distinguishing a case – c)  overruling a case – d)  reversing a case – How Judicial Precedent Works When faced with a case on which there appears to  be a relevant earlier decision, either by that court (if bound by itself), or a higher one, the judges can do any of the following: Follow. If the facts are sufficiently similar, the precedent set by the earlier case is followed, and the law applied in the same way to produce a decision. Distinguish. Where the facts of the case before the judge are significantly different from those of the earlier one, then the judge distinguishes the two cases and need not follow the earlier one. Overrule. Where the earlier decision was made in a lower court, the  judges can overrule that earlier decision if they disagree with the lower court’s statement of the law The outcome of the earlier decision remains the same, but will not be followed. The power to overrule cases is only used sparingly because it weakens the authority and respect of the lower courts. 18

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Reverse. If the decision of a lower court is appealed to a higher one, the higher court may change it if they feel the lower court has wrongly interpreted the law. Clearly when a decision is reversed the higher court is usually also overruling the lower court’s statement of the law. In practice the process is rather more complicated than this, since decisions are not always made on the basis of only one previous case; there are usually several different cases offered in support of each side’s view of the question. TASK XI.

Comment on the following QUOTATION:

Custom, that unwritten law, by which the people keep even kings in awe. Charles D’Avenant (1656–1714)

TEXT 2 HOW DO JUDGES REALLY DECIDE CASES? The independence of the judiciary was ensured by the Act of Settlement 1700, which transferred the power to sack judges from the Crown to Parliament. Consequently, judges should theoretically make their decisions based purely on the logical deductions of precedent, uninfluenced by political or career considerations. The eighteenth-century legal commentator, William Blackstone, introduced the declaratory theory of law, stating that judges do not make law, but merely, by the rules of precedent, discover and declare the law that has always been: ‘[the judge] being sworn to determine, not according to his private sentiments ... not according to his own private judgment, but according to  the  known laws and customs of the  land: not delegated 19

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to pronounce a new law, but to maintain and expound the old one’. Blackstone does not accept that precedent ever offers a choice between two or more interpretations of the law: where a bad decision is made, he states, the new one that reverses or overrules it is not a new law, nor a statement that the old decision was bad law, but a declaration that the previous decision was ‘not law’, in other words that it was the wrong answer. His view presupposes that there is always one right answer, to be deduced from an objective study of precedent. Today, however, this position is considered somewhat unrealistic. If the operation of precedent is the precise science Blackstone suggests, a large majority of cases in the higher courts would never come to court at all. The lawyers concerned could simply look up the relevant case law and predict what the decision would be, then advise whichever of the clients would be bound to lose not to bother bringing or fighting the case. In a civil case, or any appeal case, no good lawyer would advise a client to bring or defend a case that they had no chance of winning. Therefore, where such a case is contested, it can be assumed that unless one of the lawyers has made a mistake, it could go either way, and still be in accordance with the law. Further evidence of this is provided by the fact that one can read a judgment of the Court of Appeal, argued as though it were the only possible decision in the light of the cases that had gone before, and then discover that this apparently inevitable decision has promptly been reversed by the House of Lords. In practice, then, judges’ decisions may not be as neutral as Blackstone’s declaratory theory suggests: they have to make choices which are by no means spelt out by precedents. Judges themselves still cling to the image of themselves as neutral decision-makers, even though they admit that there are choices to be made. In a 1972 lecture Lord Reid agreed that the declaratory theory was something of a ‘fairytale’, but argued that ‘everyone agrees that impartiality is the first essential in any 20

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judge. And that means not only that he must not appear to favour either party. It also means that he must not take sides on political issues. When public opinion is sharply divided on any question – whether or not the division is on party lines – no judge ought in my view to lean to one side or the other if that can possibly be avoided. But sometimes we get a case where that is very difficult to avoid. Then I think we must play safe. We must decide the case on the preponderance of existing authority’. The caution extended even where there was ‘some freedom to go in one or other direction’; in these cases ‘we should have regard to common sense, legal principle and public policy in that order’. Lord Reid made it clear that the  first two criteria were unlikely to leave much room for the application of the third, but his reasoning fails to take into account the fact that common sense is by no means a fixed quality – it may be common sense to an employer, for example, that pickets should not be allowed to  disturb those employees who want to  work, and equally common sense to those pickets that they should be able to protect their jobs in any peaceful way possible. Common sense may be as much a value judgment as public interest. LANGUAGE PRACTICE AND COMPREHAENSION CHECK ACTIVE VOCABULARY

judiciary, to sack a judge, to make a law, to reverse a law, to overrule a law, precedent, to look up a case, to bring a case, to defend a case, to lose a case, to win a case, Court of Appeal, Appeal Court TASK I. a) Consult a dictionary to find the meanings of the words and word combinations from ACTIVE VOCABULARY. b) Use the above words and word combinations to complete the following sentences: 21

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1.  This intervention in another nation`s affairs has set a … that we hope other nations will not follow. 2.  The … Court … the original verdict and set the prisoner free. 3.  He sued the newspaper for libel, but … … . 4.  The boss … my decision. 5.  The … has been consulted on the issue. 6.  The case will be … to court next week. 7.  According to the existing practice, he should be … for abusing his powers. TASK II. Add nouns to the text: to sack a j ---to make a d------to introduce a t------to make a l-to defend a c--to provide e------to follow a p-------

to  the  following words according to pronounce a l-to look up a c--to bring a c--to fight a c--to apply a p------to maintain a l –

TASK III. Match the words on the left with their synonyms on the right: 1. to offer a. to presume, hypothesize 2. to make a law b. to assert, to declare 3. statement c. accurate, well-defined, explicit 4. to consider d. to create, to establish 5. to presuppose e. to contemplate, to judge 6. to pronounce f. to come forward, to propose 7. precise g. assertion, declaration TASK IV. Add negative prefixes to the following words so that the meaning becomes opposite: pure, realistic, precise, equal, like, possible, agree, developed, logical 22

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TASK V. Change the following sentences using the words from the text so that the sense remains the same: 1.  Judges themselves adhere to the image of themselves as neutral decision-makers. 2.  Everyone agrees that neutrality is the first essential in every judge. 3. The judge must not form an alliance with anyone. 4. The case must be decided on the predominance of existing authority. 5. The argument fails to take into consideration the fact that common sense is by no means a fixed quality. 6. The independence of the judiciary was guaranteed by the Act of Settlement 1700. 7.  When deciding the case the lawyers could simply search for relevant case law. 8.  Judges often have to make choices which are by no means explained in a detailed way by precedent. TASK VI. Read the  following to  prove that there is a considerable room for maneuver within the doctrine of precedent. We can see that there is a considerable room for maneuver within the doctrine of precedent. What factors guide judicial decisions, and to  what extent? The following are some of the answers that have been suggested. Dworkin: a Seamless Web of Principles Ronald Dworkin argues that judges have no real discretion in making case law. He sees law as a seamless web of principles, which supply a right answer – and only one – to every possible problem. Dworkin reasons that although stated legal rules may ‘run out’ (in the sense of not being directly applicable to a new case) legal principles never do, and therefore judges never need to use their own discretion. 23

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In his book Law’s Empire, Professor Dworkin claims that judges first look at previous cases, and from those deduce which principles could be said to apply to the case before them. Then they consult their own sense of justice as to which apply, and also consider what the community’s view of justice dictates. Where the judge’s view and that of the community coincide, there is no problem, but if they conflict, the judges then ask themselves whether or not it would be fair to impose their own sense of justice over that of the community. Dworkin calls this the interpretive approach, and although it may appear to involve a series of choices, he considers that the  legal principles underlying the decisions mean that in the end only one result could possibly surface from any one case. Dworkin’s approach has been heavily criticized as being unrea­listic: opponents believe that judges do not consider principles of justice but take a much more pragmatic approach, looking at the facts of the case, not the principles. Critical Theorists: Precedent as Legitimation Critical legal theorists, such as David Kairys, take a quite different view. They argue that judges have considerable freedom within the doctrine of precedent. Kairys suggests that there is no such thing as legal reasoning, in the sense of a logical, neutral method of determining rules and results from what has gone before. He states that judicial decisions are actually based on ‘a complex mixture of social, political, institutional, experiential and personal factors’, and are simply legitimated, or justified, by reference to previous cases. The law provides ‘a wide and conflicting variety’ of such justifications ‘from which courts pick and choose’. The process is not necessarily as cynical as it sounds. Kairys points out that he is not saying that judges actually make the decision and then consider which precedents they can pick to justify it; rather their own beliefs and prejudices naturally lead 24

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them to give more weight to precedents which support those views. Nevertheless, for critical legal theorists, all such decisions can be seen as reflecting social and political judgments, rather than objective, purely logical deductions. Critical theory argues that the neutral appearance of so-called ‘legal reasoning’ disguises the true nature of legal decisions which, by the choices made, uphold existing power relations within society, tending to favour, for example, employers over employees, property owners over those without, women over men, and rich developed countries over poor undeveloped ones. Griffith: Political Choices In similar vein, Griffith argues that judges make their decisions based on what they see as the public interest, but that their view of this interest is coloured by their background and their position in society. He suggests that the narrow social background – usually public school and Oxbridge – of the highest judges, combined with their position as part of established authority, leads them to believe that it is in the public interest that the established order should be maintained: in other words, that those who are in charge – whether of the country or, for example, in the workplace – should stay in charge, and that traditional values should be maintained. This leads them to ‘a tenderness for private property and dislike of trade unions, strong adherence to the maintenance of order, distaste for minority opinions, demonstrations and protests, the avoidance of conflict with Government policy even where it is manifestly oppressive of the most vulnerable, support of governmental secrecy, concern for the preservation of the moral and social behaviour [to which they are] accustomed’. As Griffith points out, the  judges’ view of public interest assumes that the interests of all the members of society are roughly the same, ignoring the fact that within society, different groups – employers and employees, men and women, rich and poor – may have 25

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interests which are diametrically opposed. What appears to be acting in the public interest will usually mean in the interest of one group over another, and therefore cannot be seen as neutral. Waldron: Political Choices, but Why Not? In his book, The Law, Waldron agrees that judges do exercise discretion, and that they are influenced in those choices by political and ideological considerations, but argues that this is not necessarily a bad thing. He contends that while it would be wrong for judges to be biased towards one side in a case, or to make decisions based on political factors in the hope of promotion, it is unrealistic to expect a judge to be ‘a political neuter – emasculated of all values and principled commitments’. Waldron points out that to be a judge at all means a commitment to the values surrounding the legal system: recognition of Parliament as supreme, the importance of precedent, fairness, certainty, the public interest. He argues that this itself is a political choice, and further choices are made when judges have to balance these values against one another where they conflict. The responsible thing to do, according to Waldron, is to think through such conflicts in advance, and to decide which might generally be expected to give way to which. These will inevitably be political and ideological decisions. Waldron argues that since such decisions have to be made ‘the thing to do is not to try to hide them, but to be as explicit as possible’. Rather than hiding such judgments behind ‘smokescreens of legal mystery. . . if judges have developed particular theories of morals, politics and society, they should say so up front, and incorporate them explicitly into their decision-making’. Waldron suggests that where judges feel uncomfortable about doing this, it may be a useful indication that they should re-examine their bias, and see whether it is an appropriate consideration by which they are to be influenced. In addition, if the public know the reasoning behind judicial decisions ‘we 26

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can evaluate them and see whether we want to rely on reasons like that for the future’. TASK VII. Make up the list of arguments put forward by the author of each legal theory. Complete the chart to arrange them: Name of the author Waldron

Key ideas of the theory

Conclusion

1. Judges do exercise discretion. ? 2. Judges are influenced by political and ideological considerations.

TASK VIII. The text below discusses the  advantages and disadvantages of case law. Divide it into logical parts and entitle each of them. Discuss it in groups, add some arguments of your own. Advantages of Case Law and Judicial Precedent Judicial precedent means litigants can assume that like cases will be treated alike, rather than judges making their own random decisions, which nobody could predict. This helps people plan their affairs. Case law is a response to real situations, as opposed to statutes, which may be more heavily based on theory and logic. Case law shows the detailed application of the law to various circumstances, and this gives more information than statute. The right-wing philosopher Hayek has argued that there should be as little legislation as possible, with case law becoming the main source of law. He sees case law as developing in line with market forces; if the ratio of a case is seen not to work, it will be abandoned, if it works it will be followed. In this way the law can develop in response to demand. Hayek sees statute law as imposed by social planners, forcing their views on society whether they like it or not, and threatening the liberty of the individual Law needs to be flexible to meet the needs of 27

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a changing society, and case law can make changes far more quickly than Parliament. The most obvious signs of this are the radical changes the House of Lords has made in the field of criminal law, since announcing in 1966 that they would no longer be bound by their own decisions. Disadvantages of Case Law There are hundreds of thousands of decided cases, comprising several thousand volumes of law reports, and more are added all the time. Judgments themselves are long, with many judges making no attempts at readability, and the ratio decidendi of a case may be buried in a sea of irrelevant material. This can make it very difficult to pinpoint appropriate principles. The rules of judicial precedent mean that judges should follow a binding precedent even where they think it is bad law, or inappropriate. This can mean that bad judicial decisions are perpetuated for a long time before they come before a court high enough to have the power to overrule them. The fact that binding precedents must be followed unless the facts of the case are significantly different can lead to judges making minute distinctions between the facts of a previous case and the case before them, so that they can distinguish a precedent which they consider inappropriate. This in turn leads to a mass of cases all establishing different precedents in very similar circumstances, and further complicates the law. The advantages of certainty can be lost if too many of the kind of illogical distinctions referred to above are made, and it may be impossible to work out which precedents will be applied to a new case. Case law changes only in response to those cases brought before it, so important changes may not be made unless someone has the money and determination to push a case far enough through the appeal system to allow a new precedent to be created. Case law develops according to the facts of each case and so does not provide a comprehensive code. A whole series of rules can be built on one case, and if this is overruled the whole 28

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structure can collapse. When making case law the judges are only presented with the facts of the case and the legal arguments, and their task is to decide on the outcome of that particular dispute. Technically, they are not concerned with the social and economic implications of their decisions, and so they cannot commission research or consult experts as to these implications, as Parliament can when changing the law. In the USA litigants are allowed to present written arguments containing socio-economic material, and Lord Simon has recommended that a law officer should be sent to the court in certain cases to present such arguments objectively. However, Lord Devlin considered that allowing such information would encourage the judges to go too far in making law. Changes made by case law apply to events which happened before the case came to court, unlike legislation, which usually only applies to events after it comes into force. This may be considered unfair, since if a case changes the law, the parties concerned in that case could not have known what the law was before they acted. US courts sometimes get round the problems by deciding the case before them according to the old law, while declaring that in future the new law will prevail: or they may determine with what degree of retroactivity a new rule is to be enforced. In SW v United Kingdom, two men, who had been convicted of the rape and attempted rape of their wives, brought a case before the European Court of Human Rights, alleging that their convictions violated Art. 7 of the European Convention on Human Rights, which provides that criminal laws should not have retrospective effect. The men argued that when the incidents which gave rise to their convictions happened, it was not a crime for a man to force his wife to have sex; it only became a crime after the decision in R v R (1991) The Court dismissed the men’s argument: Art. 7 did not prevent the courts from clarifying the principles of criminal liability, providing the developments could be clearly foreseen. In this case, there had been mounting criticism of the previous law, and a series of cases which had chipped away at the marital rape exemption, 29

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before the R v R decision. Lord Scarman pointed out in Stock v Jones (1978) that the judge cannot match the experience and vision of the legislator; and that unlike the legislator the judge is not answerable to the people. Theories, like Griffith’s, which suggest that precedent can actually give judges a good deal of discretion, and allow them to decide cases on grounds of political and social policy, raise the question of whether judges, who are unelected, should have such freedom. TASK IX.

Comment on the following QUOTATION:

The justice or injustice of the cause is to be decided by the judge. Samuel Johnson

TEXT 3 EQUITY In ordinary language, equity simply means fairness, but in law it applies to a specific set of legal principles, which add to those provided in the common law. It was originally inspired by ideas of fairness and natural justice, but is now no more than a particular branch of English law. Lawyers often contrast ‘law’ and equity, but it is important to know that when they do this, they are using ‘law’ to mean common law. Equity and common law may be different, but both are law. Equity is an area of law which can only be understood in the light of its historical development. The common law was developed after the Norman Conquest through the ‘itinerant justices’ traveling around the country and sorting out disputes. By about the twelfth century, common law courts had developed which applied this common law. Civil actions in these courts had to be started by a writ, which set out the cause of the action or the grounds for the claim made, and 30

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there grew up different types of writ. Early on, new writs were created to suit new circumstances, but in the thirteenth century this was stopped. Litigants had to fit their circumstances to one of the available types of writ: if the case did not fall within one of those types, there was no way of bringing the case to the common law court. At the same time, the common law was itself becoming increasingly rigid, and offered only one remedy, damages, which was not always an adequate solution to every problem – if a litigant had been promised the chance to buy a particular piece of land, for example, and the seller then went back on the agreement, damages might not be an adequate remedy since the  buyer really wanted the land, and may have made arrangements on the basis that it would be acquired. Consequently, many people were unable to seek redress for wrongs through the common law courts. Many of these dissatisfied parties petitioned the king, who was thought of as the ‘fountain of justice’. These petitions were commonly passed to the Chancellor, the king’s chief minister, as the king did not want to spend time considering them. The Chancellor was usually a member of the clergy, and was thought of as ‘keeper of the king’s conscience’. Soon litigants began to petition the Chancellor himself, and by 1474, the Chancellor had begun to make decisions on the cases on his own authority, rather than as a substitute for the king. This was the beginning of the Court of Chancery. Litigants appeared before the Chancellor, who would question them, and then deliver a verdict based on his own moral view of the question. The Court could insist that relevant documents be disclosed, as well as questioning the parties in person, unlike the common law courts which did not admit oral evidence until the sixteenth century, and had no way of extracting the truth from litigants. Because the Court followed no binding rules, relying entirely on the Chancellor’s view of right and wrong, it could enforce rights not recognized by the common law, which, restricted by precedent, was failing to adapt to new circumstances. The Court of Chancery could provide whatever remedy best suited 31

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the case – the decree of specific performance, for example, would have meant that the seller of land referred to above could be forced to honour the promise. This type of justice came to be known as equity. Not surprisingly, the Court of Chancery became popular, and caused some resentment among common lawyers, who argued that the quality of decisions varied with the length of the Chancellor’s foot – in other words, that it depended on the qualities of the individual Chancellor. Because precedents were not followed and each case was considered purely on its merits, justice could appear arbitrary, and nobody could predict what a decision might be. On the other hand this very flexibility was seen as the great advantage of equity – where any rules are laid down, there will always be situations in which those rules produce injustice. The more general the rule, the more likely this is, yet it is impossible to foresee and lay down all the specific exceptions in which it should not apply. Equity dealt with these situations by applying notions of good sense and fairness, but in doing so laid itself open to the charge that fairness is a subjective quality. The common lawyers particularly resented the way in which equity could be used to restrict their own jurisdiction. Where the common law gave a litigant a right which, in the circumstances, it would be unjust to exercise, the Court of Chancery could issue a common injunction, preventing the exercise of the common law right. An example might be where a litigant had made a mistake in drawing up a document. Under common law the other party could enforce the document anyway, even if they were aware of the mistake but failed to draw attention to it. This was considered inequitable, and a common injunction would prevent the document being enforced. Matters came to a head in 1615 in the The Earl of Oxford’s Case, where conflicting judgments of the common law courts and the Court of Chancery were referred to the king for a decision; he advised that where there was conflict, equity should prevail. Had this decision not been made, equity would have been worthless – it could 32

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not fulfill its role of filling in the gaps of the common law unless it was dominant. Nevertheless, the rivalry continued for some time, but gradually abated as equity too began to be ruled by precedent and standard principles, a development related to the fact that it was becoming established practice to appoint lawyers rather than clergy to the office of Lord Chancellor. By the nineteenth century, equity had a developed case law and recognizable principles, and was no less rigid than the common law. Once equity became a body of law, rather than an arbitrary exercise of conscience, there was no reason why it needed its own courts. Consequently the Judicature Acts of 1873–1875, which established the basis of the court structure we have today, provided that equity and common law could both be administered by all courts, and that there would no longer be different procedures for seeking equitable and common law remedies. Although the Court of Chancery remained as a division of the High Court, like all other courts it can now apply both common law and equity. LANGUAGE PRACTICE AND COMPREHENSION CHECK ACTIVE VOCABULARY

equity, writ, to  fit the  circumstances to  the  writ, litigant, remedy, to offer a remedy, to seek redress, to petition, verdict, to deliver a verdict, specific performance, charge, jurisdiction, to restrict jurisdiction, High Court TASK I. a) Consult a dictionary to find the meanings of the words and word combinations from ACTIVE VOCABULARY. b) Use the above words and word combinations to complete the following sentences: 1. The prisoner refused to recognize the … of the court. 2. They presented the  … with a million of signatures to Parliament asking for the law to be repealed. 3. The jury took two hours to reach their … . 33

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4.  A plaintiff sometimes asks the court to force the other contractor to carry out the contract. In English law this is called … … . 5. The … against him were withdrawn. 6.  A plaintiff is seeking … through the courts. 7. The company issued a … to prevent the trade union from going on strike. 8. In England and Wales the  … … is divided into three divisions: the  Queen`s Bench Division, the  Chancery and the Family Division. TASK II. 1.  equity 2.  writ 3. litigant 4.  remedy 5.  damages   6.  redress 7.  wrong 8.  petition 9.  verdict 10.  injunction 

Match the legal terms with their definitions: a. person who brings a lawsuit against someone b. way of repairing harm or damage suffered c. money claimed by a plaintiff from a defendant as compensation for harm done d. legal document which begins an action in court e. fair system of laws or system of British law which developed in parallel with the common law to make it fairer f. written application to a court g. decision of a jury or magistrate h. court order compelling someone to stop doing something i. remedy, relief j. an illegal or immoral act

TASK III. Put the following events in the right order: 1. The Chancellor begins to make decisions on the basis of his own authority. 34

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2. The king advises where there is conflict between equity and the common law, equity should prevail. 3.  Equity becomes no less rigid than the common law. 4.  Common law courts are developed. 5. The Judicature Acts establish the court structure Britain has today. TASK IV. Compare the following definitions of ‘equity’ with the one given in the text. Which of them do you find the most precise? Justice administered according to the fairness as contrasted with strictly formulated rules of common law. It is based on the system of rules and principles which originated in England as an alternative to the harsh rules of Common law and which were based on what was fair in a particular situation… Equity is a body of jurisprudence, or field of jurisprudence, differing in its origin, theory and methods from common law, though procedurally, in the federal court and most federal courts, equitable and legal rights and remedies are administered in the same court. Black`s Law Dictionary The part of English Law originally administered by the Lord Chancellor and later by the Court of Chancery, as distinct from that administered by the courts of common law. The common law did not recognize certain concepts and its remedies were limited in scope and flexibility since it relied primarily on the remedy and damages. In the Middle Ages litigants were entitled to petition the king, who relied on the advice of his th Chancellor to do justice in each case. By the 15 century, petitions were referred directly to the Chancellor, who dealt with cases on a flexible basis; he was more concerned with the fair result than with rigid principles of law. Oxford Dictionary of Law 35

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The system of laws or system of British law which developed in parallel with the common law to make the common law fairer, summarized in the maxim: ‘Equity does not suffer a wrong to be without a remedy’. English Law Dictionary Peter Collin Publishing The principle that a fair judgment must be made in a situation where the existing law does not provide an answer. Longman Dictionary of Contemporary English The body of law established by judicial precedents in the Court of Chancery, concerned with providing remedies for wrongs not covered by the Common law. Collins Dictionary of British History TASK V. a) Fill in the  gaps with the  following verbs: granted, administered, held, emerged, observed, dispensed, enforced, refused, decided. 1. Despite its early popularity, equity as … in the Chancery was subject to criticism. 2. Its initial flexibility led to uncertainty in the seventeenth century, and the jurist John Seldon … that ‘Equity varies with the length of the Chancellor`s foot’. Whatever the demerits of the common law, it was possible to estimate a probable verdict by considering similar cases already and the statutes. 3. Equity, which was … as a matter of conscience, was unpredictable and the relief … by one Chancellor, might be … by his successor. Between flexibility and certainty there is much tension. Flexibility was advantageous because it gave relief from the rigidity of law, but could be disadvantageous if it led to uncertainty and hardship. 4. Eventually equity … from vagueness and conscience and became formalized. Lord Nottingham (Lord Chancellor in 1673–1682) … that equity should be … where possible 36

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in accordance with known principles and not by arbitrary discretion. Only where there was no precedent or where there was conflict in the rules or principles should conscience settle the matter. 5. Nottingham`s work was carried on by others, in particular Lord Hardwicke (Lord Chancellor in 1736–1756) who … that a judge exercising equity jurisdiction should follow existing principles. With the adoption of the system of precedent, equity became predictable and intelligible. b) Explain why equity was often subject to criticism and what was done to do away with its flaws. TASK VI. Comment on the statement: Justice is truth in action.

Benjamin Disraeli (1804–1881)

The following issues will help you to answer the exam question HISTORY AND SOURCES OF ENGLISH LAW and to write your essay: 1. The main sources of English law. 2.  Historical development of Common law. 3.  Historical justification of Equity Law. 4.  English law is judge-made law. 5.  Advantages and disadvantages of case law.

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TEXT 1 THE DEVELOPMENT OF THE UK CONSTITUTION The modern UK constitution is usually regarded as dating from the ‘Glorious Revolution’ of 1688. However, its main principles and institutions can be traced to medieval times or even earlier. In 1688 James II, the last monarch to claim to be superior to Parliament, having previously dissolved Parliament, fled the country, throwing the Great Seal into the Thames on his way. He was replaced by William of Orange and his wife Mary who were invited by a self-appointed group of anti-Catholic politicians to reign subject to the overriding power of Parliament. Mary was the daughter of James II, so that continuity was preserved. However James also had a son – a Catholic – who was his lawful heir. Principles which had been fought over earlier in the century were enshrined in the Bill of Rights 1689. These prohibit the monarch from exercising key powers without the consent of Parliament, such as the power to tax, the power to keep a standing army in peacetime, and the power to override legislation. It was generally accepted that ultimate legal power should be with Parliament thus laying the foundations of the modern representative democracy. Church and state were also linked by requiring the monarch to be a Protestant. In 1688 Parliament was not a democratic body in the modern sense. The House of Commons was largely made up of landowners 38

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and professional people elected by their own kind, it but at least embodied the principle that ultimate power should lie in the hands of a representative body, a principle that applies only in a minority of countries even today. The basic legal framework laid down in 1688 remains today, but its political content, and particularly the political balance between its main elements, Crown, House of Lords, and House of Commons, has changed radically. The self-appointed group that invited William and Mary to reign had no legal authority whatsoever under the previous constitution. It included former members of Parliament and other leading citizens. William and Mary’s invitation was backed up by the  presence of the Dutch Navy off the  coast. Thus 1688 marked a complete break in the constitution. On the other hand in political terms the 1688 constitution was a relatively conservative affair. This is perhaps one reason why there is still no written constitution. Events earlier in the seventeenth century are relevant here. A series of quarrels between kings (James I and Charles I) and Parliament turning upon religion and the kings’ claim to raise taxes independently of Parliament, reached a compromise solution in 1641. This lasted less than a year, and the Civil War of 1642–1648 temporarily dismantled the constitution. From the  end of the  Civil War until the  accession of Charles II (1649–1660), England and Wales were governed essentially as a military dictatorship. During this period Oliver Cromwell created a written constitution – ‘the Instrument of Government’ – which was effective only for a few years. By 1660 it became clear that chaos could best be avoided by restoring the  old traditional constitution. Cromwell’s constitution was expunged from the official records and Charles II and James II ruled on the basis of inheritance from Charles I and of the 1641 compromise, thus illustrating that ‘legality’ depends on your perspective. This uneasy stalemate was broken when James began to assert what the Protestant establishment 39

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regarded as similar notions of absolute monarchy to those that had cost Charles I his head. NOTES TO THE TEXT: Glorious Revolution (Dec 1688–Feb 1689) – the name given to the events during which James VII and II fled from England, effectively abdicating the throne, and William III and Mary II were established by parliament as joint monarchs. The title, coined by Whigs who in the long term benefited most from it, celebrates the bloodlessness of the event, and the assertion of the constitutional importance of parliament. James VII and II (1633–1701) – King of Scotland, as James VII, and of England and Ireland – as James II (1685–1688). The second son of Charles I of England, he escaped to Holland nine months before his father’s execution. William III, ‘of Orange’ (1650–1702)  – King of Great Britain (1689– 1702). Born in the Hague, he was the son of William II of Orange by Mary, the eldest daughter of Charles I of England. In 1677 he married his cousin, Mary, the daughter of James VII and II. Charles I (1600–1649) – King of England and Ireland (1625–1649). He failed in his attempt to marry the Infanta Maria of Spain, marrying instead the French princess, Henrietta Maria (1609–1669). This disturbed the nation, since the marriage articles permitted her the free exercise of the Catholic religion. Three parliaments were summoned and dissolved in the first four years of his reign; then for 11 years (1629–1640) he ruled without one. English Civil Wars (1642–1648) – the country’s greatest internal conflict, between supporters of parliament and supporters of Charles I, caused by parliamentary opposition to what it considered growing royal power. Charles II (1630–1685) – King of England and Ireland (1660-85). He was the son of King Charles I.

LANGUAGE PRACTICE AND COMPREHENSION CHECK CHALLENGING VOCABULARY

continuity – connectedness, unbrokenness, uninterruptedness to enshrine – to put or keep in a holy place (a shrine) relevant – 1) directly connected with the subject; 2) having practical value or importance to turn upon – to attack someone or criticize very strongly accession – a coming into possession of an office or right 40

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to expunge – to rub out or remove (a word, name, etc.) from a list, book etc stalemate – a situation in which neither side in a quarrel can get an advantage to assert – to make a claim to; defend (a right or claim) by forceful action TASK I. Use the above words and word combinations to complete the following sentences: 1. In each case the … statute will prescribe the procedure which must be followed when making the delegated legislation. 2.  One of the main purposes of the constitution is to maintain political stability and … in the country. 3.  ‘The state is responsible’, … the  feminists, ‘for the breakdown of family life…’ 4.  ‘The universities autonomy’ is … in their individual charters. 5. They demanded to … the clause from the contract. 6.  People all over the world hoped that nuclear … would lead to disarmament. TASK II. a) Explain the meanings of: overriding power, key powers, ultimate legal power, legal framework, lawful heir, military dictatorship. b) Use: legal power, overriding power, lawful heir, legal power, dictatorship in the following sentences: 1. The English courts retain an … to refuse to enforce (or even to recognize) provisions of foreign law that are against English public policy, foreign penal or revenue laws, or laws creating discriminatory disabilities or status. 2.  Monarchy is a government in which a single person rules, with powers varying from absolute … to the merely ceremonial. 41

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3.  Judicial jurisdiction is the … and authority of a court to make a decision that binds the parties to any matter properly brought before it. 4. Domestic authority is the  … to  use nondeadly force when reasonably necessary to protect a person for whom one is responsible. 5.  … is a person who succeeds to the rights and occupies the place of, or is entitled to succeed to the estate of, a decedent, whether by an act of the decedent or by operation of law. TASK III. Use the following verb forms from the text to sum up the development of the UK constitution: dates from, are traced to, claimed to be, replaced, appointed, was prohibited from, was required, was dismantled, was created TASK IV. a) Match the derivatives constitute, institute, substitute, restitution, constituency with their meanings: 1.  An area having separate representation in the House of Commons. 2.  A formal word for begin or start. 3. To make up, to compose. 4. The return or restoration of some specific thing or condition. 5. To put a person or thing in place of another. b) Use the above words in the following sentences: 1. … is a body of substantive law in which liability is based not on tort or contract but on the defendant’s unjust enrichment or the set of remedies associated with that body of law, in which the measure of recovery is usually based not on the plaintiff’s loss, but on the defendant’s gain. 2. Title is legal evidence of a person’s ownership rights in property or an instrument (such as a deed) that … such evidence. 42

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3. Instructed delegate is bound to vote according to a …’s expressed wishes. 4. …-ed contract is a contract made between parties to an earlier contract so that the  new one takes the  place of and discharges the earlier one. 5. Smoot-Hawley Tariff Act of 1930 is a protectionist statute that raised tariff rates on most articles imported into the U.S., and provoked U.S. trading partners to  … comparable tariff increases. TASK V. in the text.

Select the political and historical events mentioned

TASK VI. a) Compare the  definitions of constitution borrowed from 1) Oxford Dictionary of Law and 2) Black’s Law Dictionary: 1)  constitution n. The rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the  relationship between the individual and the state. Most states have a written constitution, one of the fundamental provisions of which is that it can itself be amended only in accordance with a special procedure. The constitution of the UK is largely unwritten. It consists partly of statutes, for the  amendment of which by subsequent statutes no special procedure is required, but also, to a very significant extent, of common law rules and constitutional conventions. 2)  constitution. (18c) 1. The fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties. 2. The written instrument embodying this fundamental law, together with any formal amendments. 43

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b) How is constitution defined in your legal system? TASK VII.

Comment on the following quotation:

The power to tax involves the power to destroy. John Marshall TASK VIII. Explain how the Revolution of 1688 determined the relationship between the Crown and Parliament. TASK IX. Contribute to the subject and prepare a talk about: a)  Oliver Cromwell; b)  Short Parliament; c)  Long Parliament.

TEXT 2 EVOLUTION OF THE BRITISH CONSTITUTION IN THE 17-th CENTURY The 1688 Revolution was a compromise designed to satisfy all influential political and economic interests. The seventeenthcentury revolutionaries were not motivated by any single coherent philosophy. They formed a loose coalition of interests – religious, trading, and landowning – temporarily united against Catholicism and the pretensions of the monarch. The revolution was justified at the time in two inconsistent ways. On one premise James II had abdicated; on the other, reflecting the social contract theory propounded by John Locke, James was regarded as having broken his contract with the people by abusing his power. This entitled the people to rebel in order to preserve the fundamental law. The first theory was the dominant one. The 1688 settlement was not based on full-blooded ideas of the sovereignty of the people 44

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and fundamental rights of the individual such as a century later would influence the French and American revolutions. The 1688 settlement rejected the concept of absolute monarchy by claiming to be restoring the ancient Anglo-Saxon constitution under which it was imagined that kings ruled with the approval of a representative assembly. The 1688 settlement exacted concessions from the Crown in favour of Parliament but conferred few rights upon individual citizens. The ‘right’ of William and Mary to reign was justified on the basis of the common law doctrine of necessity. James II was regarded as having abdicated and the resulting vacuum had to be filled. The settlement was legitimated by the  summoning of a Convention Parliament which met early in 1688 and which mimicked the  composition of a genuine Parliament. The Convention Parliament thrashed out the terms of the settlement and appointed William and Mary as joint monarchs (Bill of Rights 1688). William and Mary then summoned a ‘regular’ Parliament which ratified the acts of the Convention (Crown and Parliament Recognition Act 1689). Subsequent legislation (Act of Settlement 1700) consolidated the settlement by providing for the succession to the Crown and giving superior court judges security of tenure and therefore independence from the Crown. Thus the law can be seen in the role of public relations device and an instrument of power politics. The legislative basis of the 1688 settlement remains in place today. In the case of Scotland and Ireland force was needed to crush support for the Stuart monarchs which in Ireland has left a lasting legacy of anti- English sentiment. Since 1688 the unwritten constitution has attempted to adjust to  economic and social change within the  broad principles laid down in 1688. The main issues were firstly how to reduce the  influence of the  Crown. This led to  the  development of the modern cabinet system. The second issue was that of Parliamentary reform. The ruling classes who manufactured 45

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the 1688 settlement did not speak for the whole people. The early nineteenth century nearly produced another revolution, this time by the urban proletariat, but this was staved off by electoral reform. The 1688 settlement was not intended to be democratic in the  modern sense, but to  provide a balance between monarchy, aristocracy (the House of Lords), and representative government (the House of Commons). Only property-owners were thought fit to vote until well into the nineteenth century. Democracy was introduced slowly and reluctantly. The process was not completed until 1928 when women were given the franchise. By this time the main governmental institutions had become well established and the  executive had come to dominate Parliament. LANGUAGE PRACTICE AND COMPREHENSION CHECK ACTIVE VOCABULARY

coherent – (esp. of speech, writing, or argument) naturally or reasonably connected and therefore easy to understand; consistent pretensions – (often pl) a claim to possess premise – a statement or idea on which reasoning is based to abdicate – to give up officially (an official position, esp. that of king or queen) to propound – to put forth for consideration or discussion; to propose to entitle – to give a right to to exact (from) – to demand and obtain by force, threats, etc concession – granted rights or privileges to thrash out – to produce by much talk and consideration to mimic – to copy tenure – term of office legacy (of) – something passed on or left behind by someone or something 46

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reluctant, -ly – unwilling, -ly franchise – the right to vote at an election TASK I. Use the above words to complete the following sentences; translate the sentences: 1.  Without some additional principle, majoritarian democracy ... the majority to oppress the minority. 2. The format of legal writing is generally as follows: statement, statement, question, or in other words, ... , ... , conclusion (followed by a question mark). 3.  Edward VIII succeeded his father George V in January 1936, but ... in the face of opposition to his proposed marriage to  Mrs Ernest Simpson, a commoner who had been twice divorced. 4.  Medieval monarchs could not ... absolute obedience from their subjects. 5. This argument is ... by many legal philosophers. 6.  Universal ... came to be an important step in developing modern democracies. 7.  ...-ing a hypothetical question to an expert is necessary before the expert may render an opinion. 8. Designing a … system of ethical accountability is unlikely to be a policy priority for senior ministers or officials, where risks and pitfalls may outweigh any political benefits. 9. In 1674, a Bill to grant judges a measure of independence, by confirming their … and regulating their salaries, was defeated in the  Commons ‘by a number of backbenchers who were normally no friends of the  monarchy, but who feared that the judges would evolve into a separate species of political man, accountable to nobody’. 10.  Parliament … (and the Government even more …) agrees to amend the HRA to permit courts to quash any part of an Act of Parliament that does not meet the Convention right requirements. 47

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11.  ‘As a literary work the Theodosian Code has a dismal reputation as some quaestors possessed an elegant, powerful, or agreeably ornate style. Against these may be set others with literary … whose prose is ponderous or marred by excessive alliteration, assonance, or fondness for technical terms, or whose compositions are in other ways inept’. (Tony Honore, Law in the Crisis of the Empire) 12. The US courts are assured independence through good behavior … and security of compensation, and the judges through judicial review will check the other two branches. 13.  At Westminster the semi-reformed House of Lords is much more assertive, defeating the government on average 50 times per year, with many defeats resulting in significant policy … . 14.  Senator Thompson … this theory in arguing that ‘abuse of power’ is too narrow a category to encompass all forms of subversion of government that should be grounds for removal. 15. In Harris v. Nelson, 394 U.S. 286 (1969), the Court found statutory authority in the ‘All Writs Statute’ for a habeas corpus court to … interrogatories. 16.  Ministers’ public criticism of particular judges and judgments can be traced back to Michael Howard’s … at the Home Office during the mid-1990s, when the Government was subject to a series of defeats in the courts in relation to the lawfulness of policy. 17.  After the extension of the … , the principal justification for the doctrine of parliamentary sovereignty was Parliament’s democratic function of expressing the will of the people. 18. In dissent, Justice Rehnquist … a doctrine which was to obtain majority approval in League of Cities. 19. The UK judiciary have historically been very … to give effect to unincorporated international treaties within domestic law, even the core UN human rights treaties. 20.  As late as Williams v. Bruffy, 102 U.S. 248 (1880), the concepts were again … with the refusal of a Virginia court to enforce a mandate of the Supreme Court. 48

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TASK II. Match the  verbs and the  nouns to  make up sentences with them: 1. to break 2. to abuse 3. to propound 4. to design/to work out 5. to avoid 6. to restore 7. to reach 8. to dissolve/to summon 9. to preserve 10. to exercise 11. to override 12. to lay down 13. to confer 14. to exact 15. to fill 16. to crush 17. to ratify

a. rights b. concessions c. the acts d. support e. Parliament f. the vacuum g. foundations/principles h. the contract i. legislation j. powers k. power l. continuity m. theory n. compromise o. constitution p. solution q. chaos

TASK III. a) Match derivatives legislation, legitimacy, legacy, legislature, legality with their meanings: 1.  Strict adherence to  law, prescription, or doctrine; the quality of being legal. 2.  A gift by will, esp. of personal property and often of money; situation or attitudes left behind by a person or an event, and the influence they have on the future. 3. The legal status of a child born to parents who were married at the time of his conception or birth (or both); lawfulness. 4. The whole body of enacted laws. 5. The body having primary power to make written law.

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b) Use the above words in the following sentences, translate the sentences: 1. Disease and famine are often … of war. 2.  A lot of people question the  … of the  government’s decision. 3. The government will introduce … to improve the national health service. 4. The company had to prove the … of its business in that region. 5. The new treaty is to  be ratified by the  … of the  two countries. 6. The literature on constitutional reform tends to be ‘presentdescriptive’, describing how things are; or ‘future-prescriptive’, prescribing how they should be; few studies tend to be predictive. But policies should be made and … passed for the future. 7.  When Charles I imposed the levy known as ‘ship money’ by prerogative power, he ordered his judges to provide him with their opinion as to its … . 8.  As changes in … or policy for England trigger changes in grants for Scotland, Wales and Northern Ireland, those parts of the UK have an interest even in purely ‘English’ matters. 9. The inability to  cope with the  … of the  past and the socialisation of young people into a world of ‘parallel lives’ engenders enduring raw sectarianism, manifested in occasional, low-level violence at sectarian flashpoints and Northern Ireland remains a deeply divided society. 10. Insisting on sticking to the letter of the … would lead to serious problems in policy-making – and also undermine UK … , by emphasising the lack of clarity about what devolution ‘means’ and the problems of enforcing the general public’s understanding of what it means. 11. This distinction between … and constitutionality was by no means uncontroversial. William Paley objected that ‘the terms constitutional and unconstitutional, mean legal and illegal’. 50

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12.  An executive-dominated … like Westminster makes it difficult to establish a person or committee who can speak for ‘Parliament’ as an institution, and provide a clear, corporate view or leadership role necessary for an enhanced watchdogsponsoring function. 13.  A comprehensive, scholarly treatment of the background, development, failure, and subsequent success of this mendment is Bernstein, The Sleeper Wakes: The History and … of the TwentySeventh Amendment. 14.  Reform will give the Lords greater … and assertiveness. 15. The media has also been following a shift of power away from Westminster, not just to the broadcasting studios but also to European institutions (themselves poorly covered), to the judiciary, to devolved … and assemblies, and to semiindependent regulators. 16. There develop real possibilities of break-up, either as a result of a lack of energy and understanding, or because the insistence on formal matters (the impossibility of altering the Union) undermines public support for it in Scotland (and perhaps Wales), leading to a crisis of … . 17.  A new second chamber with these characteristics should remedy the deficiencies of the old House of Lords, which lacked the political … and confidence to do its job properly, while preserving some of its best features. 18.  ‘If the  possibility of abuse be an argument against authority, no authority ever can be established; if the actual abuse destroys its … , there is no legal government now in the world’. 19. The impact of the HRA (Human Rights Act) has been as strong on the executive branch of government, and on the … , as it has been in the courts. 20.  Early appointments to the Supreme Court have been notable for their relative lack of diversity and, unless future appointments rounds show some change, public perception of the judges as ‘out of touch’ and lacking … is likely to grow stronger. 51

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21. The defining features of a constitutional system broadly described as political are that the sovereign power of Parliament is paramount and electoral authority is the first and foremost test of … . TASK IV. Use the text to prove that 1688 was the turning point in the British constitutional history.

TEXT 3 STRUCTURE OF THE UK CONSTITUTION The institutions of the unwritten UK Constitution have evolved over the centuries. There is no grand design which can be used to describe the constitution. The UK Constitution has been compared to an ancient house altered bit by bit over the  years by different owners so that its basic structure is difficult to discover. Indeed some regard it as pointless to ask what the ‘purpose’ of the UK constitution is. It has just evolved. Thus attempts to describe the constitution in general terms, for example, as a democracy, may express wishful thinking more than reality. The constitution that emerged during the seventeenth and eighteenth centuries has been described as a ‘balanced’ constitution combining the elements of monarchy, aristocracy and democracy, and the notion that the powers of government of whatever form should be limited by law runs through the constitutional history. However, no one has yet succeeded in defining the ‘proper’ limits of government power. Wolfe-Phillips provides a convenient idealised description of the  structure of the  United Kingdom Constitution. The constitution comprises a revered head of state insulated from politics, a government led by a prime minister with a parliamentary 52

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majority produced in a free and fair election by a mature electorate. Parliament ‘debates the great issues of the day, controls national expenditure and taxation’, criticises government, controls the executive and redresses grievances. The government is bound to carry out policy approved by the Cabinet and if it loses the support of Parliament it must resign. ‘Each minister can be called to account for the working of his department by Parliament’. If incompetence or maladministration be proved the minister must resign. The ‘unwritten constitution’ has the ‘virtue of flexibility’ and permits both evolutionary and constitutional change. The House of Lords is ‘removed from party politics’ and can provide a ‘measure of restraint on the popularly elected transient majority in the Commons’. Wolfe-Phillips does not mention the courts, but they could be regarded as another source of stability added to the monarch and the House of Lords, providing an independent forum for ensuring that government keeps within the law and tempering governmental decisions by applying widely accepted ideas of fairness and justice. Wolfe-Phillips himself seems doubtful whether this ideal represents reality. He seems to regard electors as the dupes of party political propaganda, and elections as providing only a limited choice between party machines. He appears to regard members of Parliament as corruptly subservient to the prime minister and party discipline. The courts could also be regarded as of limited importance. Only the very poor (legally aided) or the relatively wealthy have access to the courts, and Parliament can readily undo the consequences of a judgment by passing a new law. Elliot adopts a similar perspective. Asked to describe the British system of government to a visiting Martian, Elliot would describe the cabinet as a group of politicians who sink or swim together, their parliamentary supporters as pledged to support them on pain of losing the chance of preferment, and the opposition as, by definition, an ineffective minority. Parliament, except in very rare circumstances, provides at best 53

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lobby fodder for the government. Parliamentary supremacy is, like Bentham’s famous comment about ‘rights’, ‘nonsense on stilts’. ‘Into this increasingly rotten basket Britain has lobbed all its constitutional eggs’ subject to a small number of marginal reforms – the ombudsman and select committees who can report to Parliament about allegations of governmental wrongdoing. Others argue that the mainsprings of power are in the hands of informal networks of personal relationships both inside and outside government – the so-called ‘establishment’. These ‘networks’ of important individuals and groups are based on schools, universities and business and financial organisations. They include civil servants, judges, political parties and the holders of key positions in the media and business worlds. On this view the operation of the British constitution depends upon the relationship between the elected government and the  ‘networks’, and involves an ‘inner constitution’ based upon shared values and patronage. It is also argued that British parliamentary democracy is devised to benefit the large groups and institutions that support the main political parties. Other significant features of the UK Constitution depend on the perspective of the observer. For example Dicey, writing from the point of view of the lawyer, and also as a champion of private property rights, regarded the primary characteristics of the UK Constitution as (i) the rule of law; (ii) parliamentary supremacy; (iii) the distinction between conventions and law. He thought that in political terms these led to  the  ultimate sovereignty of the  people. Of the  three principles only the  distinction between law and convention has really stood the test of time. Nevertheless, such has been Dicey’s influence that even today no coherent alternative has emerged. Dicey was ambivalent about democracy which was a relative latecomer on the constitutional stage. From the lawyers’ perspective Dicey’s three characteristics must be supplemented by other important characteristics of 54

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the constitution. The main legal features of the constitution are as follows. •  A monarchy • The legislative supremacy of Parliament •  A ‘bicameral’ (two-chamber) Parliament •  An elected Lower House • No strict separation of powers, but an independent judiciary • The supremacy of European law • A highly centralised executive dependent mainly on statutory powers, but with significant common law or prerogative powers •  No general public right to official information •  No guaranteed civil liberties. LANGUAGE PRACTICE AND COMPREHENSION CHECK ACTIVE VOCABULARY

revere, insulate, mature, transient, temper, ambivalent, maladministration, institution, legal aid, convention, redress, grievances, patronage, Ombudsman, pledge TASK I. a) Match the terms with their definitions, consult GLOSSARY or a law dictionary if necessary: maladministration, institution, legal aid, convention, redress, grievances, patronage, Ombudsman, pledge. A)  1. An agreement or compact, especially one among nations; a multilateral treaty 2. A special deliberative assembly elected for the purpose of framing, revising, or amending a constitution. 3. A generally accepted rule or practice; usage or custom. B)  1. The giving of support, sponsorship, or protection. 2. All the customers of a business; clientele. 3. The power to appoint persons to governmental positions or to confer other political favors. 55

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C)  1. An official appointed to  receive, investigate, and report on private citizens’ complaints about the government. 2. A similar appointee in a nongovernmental organization (such as a company or university). D)  A bailment of personal property to secure an obligation of the bailor. If the purpose of the transaction is to transfer property for security only, then the courts will hold the transaction a pledge, even though in form it may be a sale or other out-and-out transfer’. E)  1. An injury, injustice, or wrong that gives ground for a complaint. 2. The complaint itself. 3. Labor law. A complaint that is filed by an employee or the employee’s union representative and that usu. Concerns working conditions, esp. an alleged violation of a collective-bargaining agreement. F)  1. The commencement of something, such as a civil or criminal action. 2. An elementary rule, principle, or practice. 3. An established organization, especially one of a public character, such as a facility for the treatment of mentally disabled persons. 4. Civil law. A testator’s appointment of an heir; the designation of an institute. G)  Free or inexpensive legal services provided to those who cannot afford to pay full price. It is usu. administered locally by a specially established organization. b) Use the above terms in the following sentences: 1.  Public-interest lawyer is an attorney whose practice is devoted to advocacy on behalf of a public … or nongovernmental organization, or to advising and representing indigent clients and others who have limited access to … . 2. In British constitutional law, the constitution is a collection of historical documents, statutes, decrees, … , traditions, and royal prerogatives. 3. The … may investigate complaints only if they are submitted to him in writing through a Member of Parliament; investigation is entirely at his discretion. 56

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4.  A … is something more than a mere lien and something less than a mortgage. 5. Inmate is a person confined in a prison, hospital, or similar … . 6. Inn of Court is any of four autonomous … , one or more of which English barristers must join to receive their training and of which they remain members for life: The Honourable Societies of Lincoln’s Inn, the Middle Temple, the Inner Temple, and Gray’s Inn. 7.  Goodwill is a business’s reputation, … , and other intangible assets that are considered when appraising the business, especially for purchase; the ability to earn income in excess of the income that would be expected from the business viewed as a mere collection of assets. 8. Although compensatory damages and punitive damages are typically awarded at the same time by the same decisionmaker, they serve distinct purposes. The former are intended to … the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct. 9. In England nobility is apt to  be confounded with the peculiar … of the British peerage. Yet nobility, in some shape or another, has existed in most places and times of the world’s history, while the British peerage is an … purely local, and one which has actually hindered the existence of a nobility in the sense which the word bears in most other countries. 10.  Malicious prosecution means the … of a criminal or civil proceeding for an improper purpose and without probable cause. c) Match the following mal- words with their definitions. One of them has more than one meaning malpractice, malfeasance, malversation, maladministration: 1.  Poor management or regulation by a public officer; specif., an official’s abuse of power. 57

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2.  A lawyer’s failure to render professional services with the skill, prudence, and diligence that an ordinary and reasonable lawyer would use under similar circumstances. 3.  Official corruption; misbehavior by an official in the exercise of the duties of the office (French ‘ill behavior’). 4.  A doctor’s failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances. 5.  A wrongful or unlawful act; especially wrongdoing or misconduct by a public official. 6.  An instance of negligence or incompetence on the part of a professional. To succeed in a … claim, a plaintiff must also prove proximate cause and damages. Also termed professional negligence. TASK II. a) Compare the meanings and usages of the verbs: ensure, assure, insure: •  ensure – make certain – (ensure that, ensure against) •  assure – make promises to, convince – (assure somebody, somebody is assured something) •  insurance companies insure – (insure against loss, insure one’s life, property, valuables) b) Use the verbs in the following sentences: 1.  Although the court’s instruction did petitioner no harm, it was thought that petitioner was … a new trial if counsel had complained. 2.  Changes were made … against over-expenditures in the new government program. 3. The verdict … that the accused would spend a long time in jail. 4.  Nowadays a lot of people … against future misfortunes. 5. The requirement of minimum contacts … that the states, through their courts, do not reach beyond the limits imposed on them by the status as coequal sovereigns in the federal system. 6. The lawyer … his clients of his ability to solve the problem. 58

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7. If there are statutory requirements before a treaty takes effect, the courts can … that these are obeyed. TASK III. Define the meanings of the words in bold type: a) The institutions of the unwritten UK Constitution have evolved over the centuries. b) It is also argued that British parliamentary democracy is devised to benefit the large groups and institutions that support the main political parties. c) It is idle to criticize institutions for performing the task they were created to perform and have performed for centuries. d) The separation of powers doctrine requires governmental institutions to respect each other as equals within acknowledged separate spheres of activity. e) Constitutions essentially set out broad principles concerning who makes law and how, and allocate power between the main institutions of the state – government, Parliament and the judiciary. TASK IV. Adjective Different

Complete the following table: Noun

Constitution Notion Power Expenditure

Significant

Verb Evolve Compare

Describe Succeed Alter Discover

Distinction 59

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TASK V. Express the same in other words: 1.  Parliament can readily undo the  consequences of a judgment by passing a new law. 2.  Elliot adopts a similar perspective. 3.  Other significant features of the UK Constitution depend on the perspective of the observer. 4. Dicey was ambivalent about democracy which was a relative latecomer on the constitutional stage. TASK VI. Analyse the following pairs of words, whether their meanings are: a) similar; b) opposite; c) complementing one another: 1) free and fair 2) inside and outside 3) fairness and justice 4) sink or swim

5) evolutionary and constitutional 6) individuals and groups 7) groups and institutions 8) incompetence and maladministration

TASK VII. Consult a law dictionary or GLOSSARY to provide definitions for the  following notions: democracy, aristocracy, monarchy, parliamentary majority, mature electorate, opposition. TASK VIII. Discuss the different views on the constitution expressed in the text, use the following phrases: attempts to describe; to provide a description; to succeed in defining; to seem/to appear to regard; to adopt a similar perspective/view; others argue/consider; it is argued that; from the point of view of the lawyer TASK IX. a) Read the passage about the constitutional reforms in the UK: Constitution Is in the State of Flux The UK is going through a period of quite extraordinary constitutional change. In the space of ten years the Westminster 60

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Model, formerly held up as the  ideal type of unfettered majoritarian government, has seen the introduction of a whole series of new checks and balances to reduce the power and discretion of the executive. Devolution, the Human Rights Act (HRA), Lords reform, proportional voting systems, freedom of information (FOI), a new Supreme Court and an array of new constitutional watchdogs have transformed the Westminster constitution. European Union law, meanwhile, is reshaping the  political and institutional context of the  UK. Some of the changes to the constitution have been described as the biggest since the Great Reform Act of 1832 and the subsequent grant of universal adult suffrage. b) Find more information about the mentioned acts on the site http://www.legislation.gov.uk c) Answer the following questions: •  Will devolution lead to  Scottish independence and the break up of the UK? •  Will a British bill of rights lead to yet more power for the judges? •  Will the introduction of proportional voting systems in Scotland, Wales, Northern Ireland and the European Parliament lead eventually to electoral reform at Westminster? •  Will this mean more power for Parliament, or less? Scotland Act 1998 1998 CHAPTER 46 An Act to provide for the establishment of a Scottish Parliament and Administration and other changes in the government of Scotland; to provide for changes in the constitution and functions of certain public authorities; to provide for the variation of the basic rate of income tax in relation to income of Scottish taxpayers in accordance with a resolution of the Scottish Par61

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liament; to amend the law about parliamentary constituencies in Scotland; and for connected purposes. Northern Ireland Act 1998 1998 CHAPTER 47 An Act to make new provision for the government of Northern Ireland for the purpose of implementing the agreement reached at multi-party talks on Northern Ireland set out in Command Paper 3883. Government of Wales Act 1998 1998 CHAPTER 38 An Act to establish and make provision about the National Assembly for Wales and the offices of Auditor General for Wales and Welsh Administration Ombudsman; to reform certain Welsh public bodies and abolish certain other Welsh public bodies; and for connected purposes. Human Rights Act 1998 1998 CHAPTER 42 An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes. Freedom of Information Act 2000 2000 CHAPTER 36 An Act to make provision for the disclosure of information held by public authorities or by persons providing services for them and to amend the Data Protection Act 1998 and the Public Records Act 1958; and for connected purposes.

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TASK X. a) Comment on Bentham’s statement: Into this increasingly rotten basket Britain has lobbed all its constitutional eggs. b) Agree or disagree with the following quotation: Democracy is the worst form of Government except all those other forms that have been tried from time to time. Winston Churchill, speech in the House of Commons, 11 November 1947

TEXT 4 CONSTITUTIONALISM The concepts of the rule of law and the separation of powers are aspects of the notion of ‘constitutionalism’, that is, the idea that governmental power should be limited by law, and that there is a sphere of freedom which is not the business of the law. Indeed, in a liberal society one of the  main purposes of a constitution is to restrain the exercise of political power and to enshrine basic freedoms. The fundamental problem with ‘constitutionalism’ is that laws are made and enforced by governments, so how can government under law be anything more than a hope that the rulers will be benevolent? There are broadly three ways in which constitutions have grappled with this. 1 By creating substantive principles of justice, and individual rights policed by courts that are independent of the government. These set limits upon the extent to which governmental purposes can override individual liberties. This ‘bill of rights’ device is used in many countries, most famously in the USA but is open to the objection that it gives too much power to unelected judges. 63

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There is no such bill of rights in the UK, but judges are able to apply ideas of fairness and individual rights when interpreting legislation. They claim to base these upon generally accepted community values. Many writers regard this as nonsense and claim that the courts apply their own prejudices. 2 By placing structural limits upon powers in order to  encourage rival power centres to  restrain each other  – the doctrine of the separation of powers. This can be achieved in various different ways, for example, division of function, division between central and local powers, division between elected and appointed officials. 3 By procedural restraints requiring the exercise of power to be justified by pointing to definite rules and requiring disputes to be settled by independent bodies according to fair public and open procedures. Any constitution might adopt all or any combination of these devices which are of course interrelated. For example, the USA embodies all of them, in some cases in advanced form. Broadly speaking, the UK Constitution relies on structural and procedural restraints but in a diluted and unsystematic way. We shall examine these under the ‘catchwords’ of ‘the rule of law’ and the ‘separation of powers’. Constitutionalism has been part of the British political tradition at least since medieval times. Then it was believed that even the king was subject to the law. The law was largely the  creation of judges and was theoretically based upon the ‘custom of the realm’. Magna Carta (1297) is sometimes regarded as Britain’s closest equivalent to a written constitution. In fact, Magna Carta is an ordinary piece of legislation dealing mainly with specific grievances between the king on the one hand and the feudal claims of the king’s tenants-in-chief on the other. Although concessions were made by the king, these were wrung from him by force. Other groups including the Church, the cities, 64

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and the  boroughs also obtained a measure of protection. Nevertheless, Magna Carta is of symbolic interest revealing as it does the subservience of the king to ideas of law, and also setting up rudimentary enforcement machinery against the king (legalised rebellion). Chapter 39 recited ‘No free man shall be taken or imprisoned or be disseized of his freehold [his landholding], or liberties or free customs or be outlawed or exiled or any otherwise destroyed; nor will we pass upon him nor condemn him but by lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right’. This has been a source of rhetorical inspiration for subsequent constitutional development both in the United Kingdom and overseas. The Charter itself was reissued in 1225 with most of its constitutional provisions removed. It has now all been repealed. There is also the Bill of Rights of 1688. This again is an ordinary statute intended to limit the power of the Crown. It concerns mainly the relationship between Crown and Parliament. LANGUAGE PRACTICE AND COMPREHENSION CHECK ACTIVE VOCABULARY

benevolent, to justify, to remove, to reveal, to repeal, borough, to grapple (with), diluted, to override, to police, prejudice TASK I. a) Translate the following sentences with the above words: 1.  Benevolent association is an unincorporated, nonprofit organization that has a philanthropic or charitable purpose. 2.  Charitable corporation is a nonprofit corporation that is dedicated to benevolent purposes and thus entitled to special tax status under the Internal Revenue Code. 65

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3. In the 1640s Parliament was the principal guardian of the liberties of subjects, which justified its having unlimited authority. 4. The doctrine of the ‘dormant’ commerce clause, though what is dormant is the congressional exercise of the power, not the clause itself, under which the Court may police state taxation and regulation of interstate commerce, became well established. 5.  While expressing considerable reservations about the scope of delegations, Justice Scalia, in Mistretta, 488 U.S. at 415–416, conceded both the inevitability of delegations and the inability of the courts to police them. 6. The design of one congressional district was held to violate the Voting Rights Act because it diluted the voting power of Latinos. 7.  Rebellion against the King could never be justified, not even as a remedy for tyranny. 8.  Once acquired, this Fourteenth Amendment citizenship was not to  be shifted, canceled, or diluted at the  will of the Federal Government, the States, or any other government unit. 9.  Academics as well as the Justices grapple with the extent to which religious practices as well as beliefs are protected by the Free Exercise Clause. 10. There are some prize cases in which Parliament’s authority to override international law might seem to have been questioned 11. The Draft Constitutional Renewal Bill 2008 duly proposes to remove the discretion of the Lord Chancellor to reject or seek a reconsideration of appointments below the High Court (and the Prime Minister’s entirely formal role in the most senior appointments), although it does not take forward the proposals for any parliamentary involvement in the process. 12.  Judges are arguably more trustworthy than elected legislators because they are more able to  think calmly and 66

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impartially about difficult moral problems, independently of popular prejudices. 13. In Waters v. Churchill, 511 U.S. 661 (1994), the Court grappled with what procedural protections may be required by the First Amendment when public employees are dismissed on speech-related grounds, but reached no consensus. 14.  Political decision-making is taken by those who are open to public criticism and can be removed through the ballot. 15. In November 2006, an ICM poll for the  Sunday Telegraph revealed that 52 per cent of Scots respondents favoured independence. 16.  Parliament is entitled to override much of the common law, but not its most fundamental principles, because they are the ultimate source of its own authority. 17. By the end of the thirteenth century, as the wording of the writs of summons to Parliament indicates, the representatives of shires and boroughs were regarded as having full power to bind their communities to whatever decisions were made in Parliament, 18.  Statutory procedures for dissolution and government formation remove political pressures on monarchy. 19.  Possible prejudice that may result from delays between the time government discovers sufficient evidence to proceed against a suspect and the time of instituting those proceedings is guarded against by statutes of limitation, which represent a legislative judgment with regard to permissible periods of delay. 20. Disciplinary rules restricting extrajudicial comments by attorneys are void for vagueness, but such attorney speech may be regulated if it creates a ‘substantial likelihood of material prejudice’ to the trial of a client. 21.  Conscious legal change, often touching the  most important affairs of the realm and its people, is revealed in legal and political writings, year books, rolls of parliament, and chronicles. 67

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22.  James Madison said that authorizing the  judiciary to override the legislature’s understanding of the meaning of the Constitution ‘makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper’. 23.  According to the Conservative Party a preference for the HRA should be repealed and be replaced with a ‘British Bill of Rights’, which would ‘enshrine and protect fundamental rights’ (Cameron 2006) 24.  As the  voice of the  community, Parliament was the supreme interpreter of the common law, and could override even fundamental legal principles if reason required. 25.  According to the Liberal Democratic Party ‘A British Bill of Rights should be part of a written constitution and must be built upon the human rights legislation we already have in place’; ‘repealing the Human Rights Act would be a massive step backwards for rights in Britain’ (Heath 2007). TASK II. Match the verbs and the nouns and use them to discuss constitutionalism: 1. limit/to restrain a. laws 2. make/to enforce b. the  exercise of power/ governmental powers 3. police c. individual liberties 4. set/to place d. legislation 5. override e. ideas/prejudices/laws 6. apply f. rights 7. interpret g. limits 8. settle h. provisions 9. obtain i. disputes 10. remove j. protection

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TASK III. Say whether the  meanings of the  words in the following pairs are: a) similar; b) opposite; c) complementing one another. Outlawed or exiled Public and open (procedure) All or any (combination)

Deny or defer Justice or right Elected and appointed (officials) Structural and procedural Central and local (powers) (restraints) Diluted and unsystematic (way) TASK IV. Discuss the following text in terms of constitutionalism. The Importance of Magna Carta The achievement of the Magna Charta is found not only in the original meaning understood by Englanders of the thirteenth century, but also in the subsequent application of the document’s principles. The Magna Charta began as a peace treaty between the baronial class and the king, but later symbolized a written contract between the governed and the government, a contract that included the right of rebellion when the government grew despotic or ruled without popular consent. The Magna Charta also came to represent the notion of government bound by the law, sometimes referred to as the rule of law. The distinction between government according to law and government according to the will of the sovereign has been drawn by legal and political philosophers for thousands of years. This distinction was also made during the reign of King John. For example, Peter Fitz Herbert, an important landowner, complained that his father had been ‘disseised’ of land ‘by the will of the king’ despite evidence that the land belonged to his family as a matter of ‘right’. 69

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In another case, jurors returned a verdict against the Crown because the king had acted ‘by his will and without judgment’ (Holt 1965, 91). For subsequent generations, in both England and the United States, the Magna Charta signified the contrast between tyrannical government unfettered by anything but the personal whims of its political leadership, and representative government limited by the  letter and spirit of the  law. The Magna Charta implied that no government official, not even an autocratic monarch asserting absolute power, is above the law. Finally, the Magna Charta has come to symbolize equality under the  law. Although the  baronial leadership of 1215 represented a privileged class of male landowners, many provisions of the Magna Charta safeguarded the interests of women as well. For example, the Magna Charta granted women the right to refuse marriage and the option to remarry. It also protected a widow’s interest in one-third of her husband’s property. Some provisions of the Magna Charta applied more broadly to  all ‘free’ individuals (ch. 39), whereas other provisions seemingly applied to every person in the realm, free or not. Chapter 16, for example, stated that ‘no one’ shall be compelled to perform service for a knight’s fee, and chapter 42 guaranteed a safe return to ‘anyone’ who left the realm. The most telling provision in this regard was chapter 40, which provided that ‘justice’ will be sold to  ‘no one’. This provision embodies more than the idea that justice is cheapened when bought and sold. It also underscores the principle that all persons, rich and poor, must be treated the same under the law. An extension of this principle was captured by the equal protection clause of the Fourteenth Amendment to the U.S. Constitution, which, as interpreted by the Supreme Court, invalidates laws that discriminate on the basis of, among other things, race, gender, national origin, and illegitimacy. 70

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TASK V. Agree or disagree with the following quotation: That the king can do no wrong, is a necessary and fundamental principle of the English constitution. William Blackstone, Commentaries on the Law of England, 1765

TEXT 5 SEPARATION OF POWERS The ancient theory of the separation of powers tries to combat tyranny by dividing the functions of government between groups with different interests so that no power centre can act without the co-operation of others. There are different kinds of separation of powers. For example, the classical doctrine favoured by Aristotle would divide power according to  the  class interests of monarchy, aristocracy and democracy. This version of the separation of powers is reflected in the British institutions of monarchy, House of Lords and House of Commons. However, the most influential version of the separation of powers is that proposed by Montesquieu (De LEsprit de Lois, 1748) who, broadly following Aristotle, argued that government powers are of three kinds: (i) the legislative power of enacting general laws; (ii) the executive power concerned with policy-making, foreign affairs and law enforcement; (iii) the judicial power concerned with the settlement of disputes arising out of the application of the law. If any two of these fall into the same hands there is a risk of tyranny. Applied strictly, this version of the separation of powers would lead to  weak and cumbersome government and in all countries there is some form of pragmatic compromise. 71

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Montesquieu believed that the British constitution of his time embodied the separation of powers but possibly did not take into account the extent to which conventions were beginning to blur the distinction between legislature and executive. The US constitution has been particularly influenced by Montesquieu. The president who forms the  executive, and Congress the legislature, are elected separately and the same persons cannot be members of both. The US constitution is designed to encourage conflict between the two branches and regards weak government as desirable, whereas the UK system is more interested in ensuring that the will of the executive is carried out. The UK constitution is sometimes called a ‘harmonious constitution’ in that its efficient working depends not on checks and balances between contending forces as in the USA but requires the enlistment of different interests to form an all powerful government. A related version of the separation of powers is that of ‘checks and balances’. Each branch of government is subject to some degree of control by another branch but without that other branch being able to dominate completely. Thus the exercise of power requires the co-operation of at least two branches of government and each branch is kept within its proper sphere of action. For example, independent courts interpret legislation, and executive decisions can be challenged in the courts on the ground that the government has exceeded or abused its powers. The checks and balances principle features strongly in the USA. For example the President can veto legislation but can in turn be overridden by a special procedure and the Supreme Court can declare legislation unconstitutional. When the courts refer to the separation of powers they may therefore use the concept in different senses. For example in W.H. Smith Do It All Ltd v Peterborough [1991], Mustill L.J remarked that ‘according to the doctrine of the separation of powers as understood in the United Kingdom, the legislative 72

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acts of the Queen in Parliament are impregnable’. On the other hand, in X v. Morgan Grampian [1990] Lord Bridge seemed to have had the notion of checks and balances in mind when he referred to the ‘dual sovereignty’ of Parliament and the courts, the  one in making the  law, the  other in interpreting and applying the law. LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. a) Complete the following table: Noun adjective verb Tyranny Power Function Government Centre Separation different divide reflect influential general risk weak extent distinction harmonious contend dominate b)  Make up word combinations and sentences with the words from the table to discuss the separation of powers.

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TASK II. a) Add nouns from the  text to  the  following adjectives: influential, classical, ancient, powerful, different, pragmatic, proper, foreign, efficient, weak. b)  Use the above adjectives in the following sentences; translate the sentences: 1.  For good or ill, self-regulation in government and politics – even where it is underpinned, as in Westminster, by … law and practice – may no longer be acceptable to the general public. 2. The media will become more … power players. 3.  Royal prerogatives fall into two groups: the common law prerogatives requiring no Parliamentary procedure and nowadays at the disposal of the Prime Minister and his colleagues (for example, the powers to conclude treaties, wage war, conduct … relations, issue passports); and the so-called personal/direct prerogatives or reserved powers of the sovereign (for example, the appointment of the Prime Minister, agreement to dissolve Parliament – dissolution – prior to a general election, and assent to legislation). 4.  With the official opposition in a … position in the House of Commons, new sites of resistance grew up both in the Lords and on the government backbenches. 5. Both Blackstone and Austin, two ‘…’ exponents of the modern doctrine of sovereignty, were also able to accept the existence of a higher law by which human law should be evaluated: Blackstone called it natural law, and Austin, divine law. 6.  Should the Liberal Democrats find themselves in a more … bargaining position within the House of Commons, they would almost undoubtedly press for procedural reforms within that institution. 7. The changes since 1999 have come about not only through greater confidence amongst existing members, but also through the constant addition of new members who enter the chamber with … attitudes and expectations. 74

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8. Devolution ‘does not break with tradition but simply recognises the ‘less than perfect’ integration within the state in a new and ... way’. 9.  Where necessary for the … execution of its own powers, Congress may delegate some measure of legislative power to other departments. 10.  Judges as well as politicians speak of the need for a ‘… balance’ between rights and responsibilities. TASK III. a) Add nouns from the text to the following verbs: to combat, to propose, to divide, to veto, to settle, to override, to enforce, to interpret, to enact, to apply. b) Use the above verbs in proper forms in the following sentences; translate the sentences: 1. The draft bill addresses the civil service in a relatively narrow, ‘constitutional’ sense. It does not do much to … major questions about, for example, the nature and scope of ministerial responsibility. 2.  Just as equity could sometimes … the common law, in the interests of justice, so ‘reasons of state’ could sometimes override particular laws, in the interests of public safety and the survival of law as a whole. 3. Inertia and hard political calculation will be significant factors working to sustain the devolved arrangement, even if Northern Ireland remains a deeply … society. 4.  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 authority to … and … fundamental law in the judiciary. 5. Disclosure of information is now regulated by the Freedom of Information Act and … by the Information Commissioner. 6.  Whenever devolution within the United Kingdom has been proposed, the ‘English Question’ has always emerged as 75

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its inevitable corollary; if there is greater home rule for the rest of the United Kingdom, so the argument goes, should a similar ‘solution’ not also … to, or within, England? 7. The full impact of the devolution … in 1998 has still not been felt, or indeed properly understood – especially at UK level. 8.  Nearly 70 countries have introduced Freedom of Information (FOI) laws, 55 in the last 10 years alone, some laws aim to strengthen democracy, while for others FOI is primarily a device to … corruption. 9. The best-known sixteenth century parliamentarian theorist Richard Hooker sometimes spoke of the  King as supreme, because he could … … laws and was not subject to  human judgment. 10.  Other reforms … , such as providing more time for select committee reports to be debated and giving committees more formal power, would also boost the  ‘cross-party’ mode of operation which has traditionally been weak at Westminster. TASK IV. a) Consult a law dictionary or GLOSSARY to define the following notions: democracy, tyranny, convention, checks and balances, separation of powers. b)  Use the above words and word combinations in the following sentences; translate the sentences: 1. The dispersal of power has another dimension, in the shift from representative to direct and deliberative … , with more petitions and citizens’ juries; referendums on constitutional issues such as Lords reform and the British bill of rights; and the use of constitutional … or citizens’ assemblies to draft a bill of rights or written constitution. 2. There is a greater … , and the judiciary constrains legislative and executive freedom by means of interpreting the statutes. 3. In the space of ten years the Westminster Model, formerly held up as the ideal type of unfettered majoritarian government, 76

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has seen the introduction of a whole series of new … to reduce the power and discretion of the executive. 4.  Westminster Model represents the  ‘old’ constitution as it was 10 or 20 years ago, with a highly centralised system of government, little or no devolution and very few … on the unfettered executive. 5.  Members and supporters of governments, who naturally feared rebellion more than … , claimed that Parliament’s authority was legally unlimited, while their opponents, who were more fearful of … , denied that claim in order to emphasize Parliament’s subjection to higher principles. 6.  Like inquiries or royal commissions, watchdogs do not fit neatly within a traditional executive-legislative-judicial ‘ … ’ model, though they have complex operational and institutional relationships with, and across, these three branches. 7. It would be impossible to construct a workable system of ‘ … ’ in which every institution was subject to limits that were fully enforceable by some other institution. 8.  Not only was local government virtually ignored in the  national press, but there was virtually no coverage of the debates in Scotland which led to the Constitutional … of the late 1980s. 9.  Good books have argued that the  post-war role of the civil service was a fluke – a particular, temporary, British way to combine oligarchy with … by delegating the powers of elected governments to unelected groups of elites. 10. The horrors of the  Civil War seemed to  confirm the sixteenth century teaching that … was preferable to anarchy. 11.  Representative … is now under pressure from direct … , at the same time as the conventional broadcast and print media are being challenged by the internet and other forms of new media. 12. There is no agreement on when a referendum should be held. Britain has only had one nationwide referendum, in 1975, on whether to remain in the then European Community, but, 77

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just as with subsequent pledges to hold one, the decision was determined by political circumstance and expediency, not by clear-cut principles or a constitutional … . 13. The distinction between legality and constitutionality was perpetuated by Austin and Dicey, and survives today in the language of constitutional ‘ … ’. 14.  Greater constitutionalism is evidenced in greater … and in the growing transfer of functions from elected politicians to unelected bodies. 15.  Greater … is clearly visible in the much sharper separation of the judiciary from the other branches of government, through creation of the new Supreme Court, and replacement of the Lord Chancellor by the Lord Chief Justice as head of the judiciary. 16. It would be surprising if a bill in the Governance of Britain package did not adopt the basic formula of trying to restore faith in … by promoting independent regulators and transparency. 17.  According to Franklin, those who defended a right of popular rebellion against … almost always meant a collective right of the  community as a whole, exercisable only by its representative institutions. 18. In Britain, senior legal officials have long denied that the judges have authority to enforce the moral principles and constitutional … that are thought to bind Parliament. 19. The ‘nonjusticiability of a political question is primarily a function of the … . TASK V. Use the text to explain what the following phrases mean: 1. … If any two of these fall into the same hands there is a risk of tyranny. 2. … conventions were beginning to  blur the  distinction between legislature and executive. 3. … executive decisions can be challenged in the courts on the ground that the government has exceeded or abused its powers. 78

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4. The checks and balances principle features strongly in the USA. TASK VI. Explain the separation of powers principle as it was understood by: a)  Aristotle; b)  Montesquieu; c)  the authors of the US Constitution. TASK VII. a) Describe how the system of ‘checks and balances’ operates in: 1)  the USA; 2)  the UK; 3)  your country.

TEXT 6 SEPARATION OF POWERS IN THE UNITED KINGDOM The separation of powers has influenced the development of the UK constitution in a pragmatic, unsystematic way, although its high watermark may have been the eighteenth century when Blackstone wrote: ‘herein indeed consists the true excellence of the English government that all the parts of it form a mutual check upon each other. In the legislature the people are a check on the nobility and the nobility a check upon the people ... while the king is a check upon both which preserves the executive power from encroachments. And this very executive power is again checked and kept within due bounds by the two Houses ... For the two Houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, 79

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they mutually keep each other from exceeding their proper limits ... like three distinct powers in mechanics, they jointly compel the machine of government in a direction different from what either acting by itself would have done ... a direction which constitutes the true line of the liberty and happiness of the country’. Blackstone considered that Parliament was legally unlimited but believed that the common law as representing principles of reason restrained Parliament in practice. In the eighteenth century this seemed plausible since Parliament and the legal profession found common ground in the support of property rights. Even in the  eighteenth century the  ideal was diluted by the realities of politics. There was considerably less tension between the Lords and the Commons than Blackstone suggested. The ethos of both was aristocratic. A different balance was produced by the extension of the franchise during the nineteenth century. This led to the collapse of the monarchy as a political force, the weakening of the House of Lords and the emergence of a governmental system based on a powerful party political executive supported by the machinery of a professional civil service. Some modern commentators have therefore concluded that the separation of powers has little meaning today because the legislature is dominated by the executive. Dicey did not deal specifically with the separation of powers but implicit in his notion of the rule of law is the concept of an independent judiciary as a safeguard against both Parliament and the executive. Dicey regarded the strict separation of powers as applied in France, where government action is reviewed by a special administrative court rather than by the ordinary courts, as contrary to the rule of law. However the rule of law does not require any particular kind of court. The French Conseil detat has been widely admired as a check on government and has been copied in many countries. 80

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LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Translate the  text, paying special attention to the underlined parts. TASK II. Choose the right answer: 1. The … Constitution does not embody a strict separation of powers. a) US; b) UK; c) French 2. Parliament is supposed to control the … . a) Crown; b) courts; c) the executive 3. Majority support for the executive allows the executive to control … rather than vice versa. a) the Government; b) Parliament; c) the Crown 4. It is said that there is a fusion between … and executive in the UK. a) Judiciary; b) Legislature; c) legislation 5). The House of Lords … party politics. a) is involved in; b) depends on; c) is removed from 6. One of the main purposes of a constitution is … the exercise of political power. a) to restrain; b) to encourage; c) to prohibit 7. Governmental power should be limited by … . a) Parliament; b) law; c) the Crown TASK III. a) Find each, other, another, the other, either, neither, others etc. in the text. b) Use them in the following sentences: 1. The functions of government are divided between groups with different interests so that no power centre can act without the cooperation of … . 2.  … branch of government is subject to some degree of control by … branch. 3.  … branch is kept within its proper sphere of action. 81

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4.  Lord Bridge referred to the ‘dual sovereignty’ of Parliament and courts, the one in making the law, … in interpreting and applying the law. 5. The doctrine of the separation of powers states that three branches of power should be separated from … … . 6.  Ministers who in practice constitute the executive are also members of … House. 7. The separation of powers doctrine requires governmental institutions to  respect … … as equals within acknowledged separate spheres of activity. 8.  A treaty is an agreement made between the executive and … state. 9. In a federal state such as the USA, the constitution divides power between a central federal government and separate state units in such a way that … is independent within its own sphere and … can override … . TASK IV.

a) Read the text.

b) Find the key expressions in each paragraph, use them in your answer to the question: Why are treaties relevant to the separation of powers doctrine? Treaties and the Separation of Powers Treaties raise important separation of powers issues between judiciary and executive. A treaty is an agreement made between the executive and another state. A treaty can neither create nor take away legal rights because of the principle that the executive cannot change the law by itself. Treaties are also non-justiciable in the sense that a court cannot review the validity of a treaty as such, although if there are statutory requirements before a treaty takes effect, the courts can ensure that these are obeyed. The courts take the provisions of a treaty into account when interpreting legislation although the scope of this is unclear. 82

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The narrowest view is that the courts will take a treaty into account only where the legislation was introduced to give effect to the treaty and then only where its meaning is unclear. A wider view is that the courts will always take account of the treaty in the case of implementing legislation. A still wider view is that even in the case of non-implementing legislation the courts will take account of a treaty but only where the legislation is ambiguous. This is probably the consensus modern view. The widest view, supported by ambivalent dicta is that the courts will interpret all legislation enacted after the relevant treaty in the light of the treaty on the assumption that Parliament would not have intended to contradict treaty obligations. All four views rest on the premise that Parliament has recognised the treaty, thus giving the court the key to enter. TASK V. Read the text to discuss how Parliament and its Houses are affected by the constitutional reforms. Protection of the Constitution The British constitution  – ‘the collection of rules which establish and regulate or govern the government’ – has shown itself over centuries to be extraordinarily dynamic and flexible, with the capacity to evolve in the light of changes in circumstances and in society. There are many who would argue that it is this very flexibility which has allowed the United Kingdom to avoid the kind of upheavals which have forced other countries to return to the constitutional drawing board. It is both a strength and a potential weakness of the British constitution that, almost uniquely for an advanced democracy, it is not all set down in writing. There can be little question that the raft of constitutional legislation including the Devolution Acts, the incorporation of the European Convention on Human Rights into British law and the registration of political parties 83

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would have been impossible under the laborious systems required to amend the written constitutions of many other countries. The risk, however, is that a Government with a secure majority in the House of Commons, even if based on the votes of a minority of the electorate, could in principle bring about controversial and ill-considered changes to  the  constitution without the need to secure consensus support for them. It could force them through the second chamber by use of Parliament Act procedures if necessary. Similar concerns could arise in respect of legislation that might represent a breach of human or civil rights. As Professor Sir William Wade succinctly put it, ‘One safeguard conspicuous by its absence from the constitution is the entrenchment of fundamental rights’. The open nature of the unwritten constitution relies on those in positions of authority operating within a web of understandings and conventions as to what is and is not permissible. As Gladstone wrote over a century ago, the British constitution ‘presumes, more boldly than any other, the good faith of those who work it’. Given those circumstances, one of the  most important functions of the reformed second chamber should be to act as a ‘constitutional long-stop’, ensuring that changes are not made to the constitution without full and open debate and an awareness of the consequences. This is one of the classic functions of a second chamber and one the House of Lords has on occasion played in the past.

TEXT 7 THE RULE OF LAW The concepts of the rule of law and the separation of powers are associated with the liberal notion of ‘constitutionalism’. Hunt describes the notion of constitutionalism thus: 84

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‘In any democratic system there are certain transcendental values that which enjoy a ‘constitutional’ status, in the sense that they embody fundamental ideas or aspirations which democracy itself presupposes and which therefore cut across the political programmes of particular governments ... the bare minimum that is required of a commitment to constitutionalism is a rejection of the instrumentalist conception of law which sees it as a mere tool to be used by governments in order to achieve their political goals’. Fuller identifies features necessarily associated with the idea of law such as openness, clarity and coherence that give a moral quality to a state. The rule of law is therefore a set of moral and political values. They support democracy but are not necessarily connected with democracy, being important whatever the complexion of the government. The ideas of the rule of law and the separation of powers are deeply embedded in European political culture. Aristotle (384–322 BC) pronounced that it is better for the law to rule than for any of the citizens to rule. The rule of law was described by the thirteenth century jurist Bracton in terms that ‘the King should be under no man but under God and the Law because the Law makes him King’, and has been said to comprise ‘the government of laws and not of men’. Art. 16 of the Declaration of the Rights of Man (1789) states that ‘a society where rights are not secured or the separation of powers established has no constitution’. In X Ltd v Morgan Grampian Publishers Ltd [1990], Lord Bridge said ‘the maintenance of the rule of law is in every way as important in a free society as the democratic franchise’. The mythology of the rule of law is basic to English political culture. It goes back to the Anglo-Saxon notion of a compact between the  ruler and the  ruled under which obedience to the king was conditional upon the king respecting the law. Magna Carta (1215) although no longer in force symbolises this, notably in the principle of due process in independent courts and, in the subject’s right to refuse financial support 85

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to a king who violates the law. The ideals of Magna Carta have been widely exported. In particular they form a strong element of the US constitution from whence they permeate back into UK law. The eighteenth-century constitution was dominated by the mythology of the rule of law and the separation of powers. The theory of the  ‘balanced’ or ‘harmonious’ constitution divided power between the  three elements of monarchy, aristocracy (House of Lords) and democracy (to a limited extent, the House of Commons). The constitution was regarded as a delicately balanced machine held in place by the rule of law; as George III (1738–1820) put it, ‘the most beautiful balance ever framed’. For example, the monarch could make law only with the consent of both Houses but could appoint and dismiss the government and dissolve Parliament. The Crown however needed parliamentary support since financial power depended on the Commons. The rule of law also protected individual rights imagined as being grounded in ancient common law tradition. Unlike the case in France, there was no doctrine that State necessity could override the ordinary law. LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. a) Form nouns from the following verbs: to describe, to require, to reject, to achieve, to identify, to  clarify, to pronounce, to declare, to state, to maintain, to obey, to refuse, to violate, to export, to regard, to appoint, to imagine b) Which of them are used in the text? Use the rest in your own sentences to explain the importance of the rule of law. TASK II. Discuss the  views expressed in the  text using the following verbs, suggest some other to  1.  Hunt describes… . 86

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2.  Fuller identifies… . 3.  Aristotle pronounced… . 4. Bracton … . 5.  Lord Bridge said… . 6.  As George III put it… . TASK III. a) Compare the following definitions of the rule of law: A)  BLACK’S LAW DICTIONARY: A legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. Called a ‘rule’, because in doubtful or unforeseen cases it is a guide or norm for their decision. The rule of law, sometimes called ‘the supremacy of law’, provides that decisions should be made by the application of known principles or laws without the  intervention of discretion in their application. B)  JOWELL ‘THE RULE OF LAW TODAY’: First, it is a principle of institutional morality. As such it guides all forms of law-making and law-enforcement. In particular, it suggests that legal certainty and procedural protections are fundamental requirements of good governance. These requirements are not unqualified. But they are qualified only by the fact that they may be overridden in the interest of other administrative virtues (such as responsive decisionmaking). Secondly, the  rule of law requires the  provision of a system for identifying rights and liabilities and for redressing grievances, and thus helps to dissuade people from resorting to self-help.

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C) The rule of law is developed from the writings of the nineteenth-century writer Dicey. According to Dicey, the rule of law had three elements. Had three elements. First, that there should be no sanction without breach, meaning that nobody should be punished by the state unless they had broken a law. Secondly, that one law should govern everyone, including both ordinary citizens and state officials. Thirdly, that the rights of the individual were not secured by a written constitution, but by the decisions of judges in ordinary law. b) Do they emphasise the same elements? TASK IV. Use the verbs in brackets in their PRESENT, PAST PARTICIPLE or GERUND forms: The rule of law is both a political and moral idea, since it affects the way the law is (develop) and (apply). It concerns ideas of regularity, access to the courts, fair procedure and (honour) expectations. For example, a governmental practice of constantly (change) the law could be (analyse) in ‘rule of law’ terms as (induce) instability. Governmental decisions, and decisions made by courts, are subject the so-(call) ‘principles of natural justice’. There are elementary principles of fair procedure (involve) a right to fair hearing before an unbiased tribunal. The courts have also (develop) various presumptions which they use when (interpret) statutes. For  example, powers which attempt to  prevent government decisions from (be challenge) in the courts are (construe) strictly with a view to (uphold) the principle of equality before the law although in the last resort the courts will give way to a clear expression of government policy (contain) in a statute. TASK V. a) Explain the connection between such concepts as the rule of law and disobedience to the law. b)  Read the text and say whether you and the author think alike. 88

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The rule of law also means that a person has a moral duty to obey even a bad law and that legal rights cannot be overridden even for the public good. In X Ltd. v. Morgan-Grampian Ltd, Lord Bridge said that ‘to contend that the individual litigant ... has a right of ‘conscientious objection’ which entitles him to set himself above the law is a doctrine which directly undermines the rule of law and is wholly unacceptable in a democratic society’. The Hobbesian view that any government is better than chaos supports this, since we cannot pick and choose which laws we should obey without destroying the very idea of law. On the other hand it could be argued that a liberal concept of law should have room for the notion that a strongly held individual moral belief is a defence at least in cases where evil intention is a requirement of guilt. Indeed it could be argued that law which is so evil as to violate the basic values of the community is not a law at all, being contrary to the rule of law in its strong sense. This argument raises philosophical issues that were used by UK judges against Hitler Nazi Laws in the  Nuremburg War Crimes Tribunal which followed the Second World War. The Nuremburg trials were based upon the assumption that some of the laws of Nazi Germany were not valid laws as they were repugnant to the basic standards of morality accepted by all civilised nations. On a more everyday level conscientious objection might influence a jury to acquit someone who breaks a law for a good reason. A jury can acquit an accused without giving reasons and cannot be punished for its verdict. TASK VI. Use negative prefixes to  form the  words with the opposite meanings: moral, legal, accepted, directly, to value, to use, valid, democratic, personal. TASK VII. Make up pairs with the opposite meanings for the following words and expressions: 89

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Rights and … Public or … Followed or … Chaos or … Contrary to or… Crime and …

Better or … Guilt or … To acquit or … Wholly or … War and … To break a law or to …

TASK VIII. a) Read the text. b) Comment on, agree or disagree with major arguments expressed. c) Find examples to  illustrate some of the  arguments and statements. d) Does the rule of law have the same meanings in your legal system? Meanings of the Rule of Law The rule of law is an ambiguous term that can mean different things in different contexts. In one context the term means rule according to law. No individual can be ordered by the government to pay civil damages or suffer criminal punishment except in strict accordance with well-established and clearly defined laws and procedures. In a second context the term means rule under law. No branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law. In a third context the term means rule according to a higher law. No written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice that transcend human legal systems. Rule According to Law The rule of law requires the government to exercise its power in accordance with well-established and clearly written rules, 90

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regulations, and legal principles. A distinction is sometimes drawn between power, will, and force, on the one hand, and law, on the other. When a government official acts pursuant to an express provision of a written law, he acts within the rule of law. But when a government official acts without the imprimatur of any law, he or she does so by the sheer force of personal will and power. Under the rule of law, no person may be prosecuted for an act that is not punishable by law. When the government seeks to punish someone for an offense that was not deemed criminal at the time it was committed, the rule of law is violated because the government exceeds its legal authority to punish. The rule of law requires that government impose liability only insofar as the law will allow. Government exceeds its authority when a person is held to answer for an act that was legally permissible at the outset but was retroactively made illegal. This principle is reflected by the prohibition against ex post facto laws in the U.S. Constitution. For similar reasons, the  rule of law is abridged when the  government attempts to  punish someone for violating a vague or poorly worded law. Ill-defined laws confer too much discretion upon government officials who are charged with the responsibility of prosecuting individuals for criminal wrongdoing. The more prosecutorial decisions are based on the personal discretion of a government official, the less they are based on law. Well-established and clearly defined laws allow individuals, businesses, and other entities to  govern their behavior accordingly. Before the government may impose civil or criminal liability, a law must be written with sufficient precision and clarity that a person of ordinary intelligence will know that certain conduct is forbidden. When a court is asked to shut down a paint factory that is emitting pollutants at an illegal rate, for example, the rule of law requires the government to demonstrate that 91

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the factory owner failed to operate the business in accordance with publicly known environmental standards. Rule under Law The rule of law also requires the government to exercise its authority under the law. This requirement is sometimes explained with the phrase ‘no one is above the law.’ During the seventeenth century, however, the English monarch was vested with absolute sovereignty, including the prerogative to disregard laws passed by the House of Commons and ignore rulings made by the House of Lords. In the eighteenth century, absolute sovereignty was transferred from the British monarchy to Parliament, an event that was not lost on the colonists who precipitated the American Revolution and created the U.S. Constitution. Under the Constitution, no single branch of government in the United States is given unlimited power. The authority granted to one branch of government is limited by the authority granted to the coordinate branches and by the Bill of Rights, federal statutory provisions, and historical practice. The power of any single branch of government is similarly restrained at the state level. Members of judiciary face a slightly different problem when it comes to the rule of law. Each day judges are asked to interpret and apply legal principles that defy clear exposition. Terms like ‘due process’, ‘reasonable care’, and ‘undue influence’ are not self-defining. Nor do judges always agree about how these terms should be defined, interpreted, or applied. When judges issue controversial decisions, they are often accused of deciding cases in accordance with their own personal beliefs, be they political, religious, or philosophical, rather than in accordance with the law. Scholars have spent centuries examining this issue. Some believe that because the law is written in such indefinite and ambiguous terms, all judicial decisions will inevitably reflect 92

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the personal predilections of the presiding judge. Other scholars assert that most laws can be interpreted in a neutral, objective, and apolitical fashion even though all judges may not agree on the appropriate interpretation. In either case the rule of law is better served when judges keep an open mind to alternative readings of constitutional, statutory, and common-law principles. Otherwise, courts run the risk of prejudging certain cases in light of their own personal philosophy. Rule According to Higher Law A conundrum is presented when the government acts in strict accordance with well-established and clearly defined legal rules and still produces a result that many observers consider unfair or unjust. Before the Civil War, for example, African Americans were systematically deprived of their freedom by carefully written codes that prescribed the rules and regulations between master and slave. Even though these slave codes were often detailed, unambiguous, and made known to the public, government enforcement of them produced negative results. Do  such repugnant laws comport with the  rule of law? The answer to this question depends on when and where it is asked. In some countries the political leaders assert that the rule of law has no substantive content. These leaders argue that a government may deprive its citizens of fundamental liberties so long as it does so pursuant to a duly enacted law. At the Nuremberg Trials, some of the political, military, and industrial leaders of Nazi Germany unsuccessfully advanced this argument as a defense to Allied charges that they had committed abominable crimes against European Jews and other minorities during World War II. In other countries the political leaders assert that all written laws must conform with universal principles of morality, fairness, and justice. These leaders argue that as a necessary corollary 93

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to the axiom that ‘no one is above the law’, the rule of law requires that the government treat all persons equally under the law. Yet the right to equal treatment is eviscerated when the government categorically denies a minimal level of respect, dignity, and autonomy to a single class of individuals. These unwritten principles of equality, autonomy, dignity, and respect are said to transcend ordinary written laws that are enacted by government. Sometimes known as Natural law or higher law theory, such unwritten and universal principles were invoked by the Allied powers during the Nuremberg trials to overcome the defense asserted by the Nazi leaders. The rule of law is a concept explained in classical time. In Greece Aristotel wrote that ‘law should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign in only those matters which law is unable, owing to the difficulty of framing general rules for all contingencies’. In ancient Rome the Corpus Juris Civilis established a complex body of procedural and substantive rules, reflecting a strong commitment to the belief that law, not the arbitrary will of an emperor, is the appropriate vehicle for dispute resolution. In 1215 Magna Charta reined in the corrupt and whimsical rule of King John by declaring that government should not proceed except in accordance with the law of the land. During the thirteenth century, Thomas Aquinas argued that the rule of law represents the natural order of God as ascertained through divine inspiration and human reason. In the seventeenth century, the English jurist Sir Edward Coke asserted that the ‘king ought to be under no man, but under God and the law’. With regard to  the  legislative power in England, Coke said that ‘when an act of Parliament is against common right and reason, or repugnant, or impossible to  be performed, the Common law will control it, and adjudge such act to be void.’ In the United States, Alexander Hamilton applied the rule 94

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of law to the judiciary when he argued in The Federalist, no. 78, that judges ‘have neither Force nor Will, but merely judgment.’ Despite its ancient history, the rule of law was not celebrated in all quarters. The nineteenth- century English philosopher Jeremy Bentham described the rule of law as ‘nonsense on stilts’. The twentieth century saw its share of political leaders who oppressed persons or groups without warning or reason, governing as if no such thing as the rule of law existed. For many people around the world, the rule of law is essential to freedom.

TEXT 8 FEDERAL AND UNITARY CONSTITUTIONS In a federal state such as the USA, the constitution divides power between a central federal government and separate state units in such a way that each is independent within its own sphere and neither can override the other. Federalism is therefore a way of giving effect to communitarian values by allowing diverse units to retain their distinctive identity while at the same time providing for unity where there is a common interest. Federalism also serves to reduce the risk of tyranny. A unitary state such as the UK has an overriding supreme lawmaker which can devolve power to subordinate units but is free to take the power back and to interfere with the smaller units. Federalism is practicable where the component units have sufficient in common economically and culturally, for example a shared history or language to enable them to co-operate, while at the same time each unit is sufficiently distinctive to constitute a community in its own right. Thus a delicate balance must be struck. The United States and Australia are relatively successful federations whereas Canada, with its split between English-speaking 95

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and French-speaking regions, is less stable. Yugoslavia, with its many ethnic tensions, has been unsuccessful. It cannot be seriously suggested that federalism is the best way of achieving efficient government but efficiency cannot be the overriding purpose of a liberal society. Federalism is a mechanism for giving political rights to a wider range of group interests than is possible in a unitary system and therefore a means of resolving conflicting loyalties. The relationship between a federal government and the state governments within it, is not, in law, one of superior and inferior, but of partnership. Each has its own sphere of activity and its own constitution and courts and it may be unlawful for one to trespass upon the other. There is a single federal citizenship and free movement within the federation. The central government typically represents the country on the international level and exercises defined functions – typically, defence and foreign affairs, currency, postal services and important commercial activities – while leaving the residual power with the states. Some versions allocate particular matters to the states leaving the federal level as the residuary power. Where responsibilities overlap, doctrines such as ‘pre-emption’ or the supremacy clause of the United States Constitution provide resolving mechanisms usually policed by the courts. Representatives of the states may sit in the federal legislature. In the USA the states are equally represented in the Senate, the upper House of the legislature, so as not to disadvantage the smaller states. The lower House is elected in proportion to the population of the states. In the European Union the more powerful states have greater voting power in relation to certain issues. As with any constitution, the actual disposition of power reality depends on political and economic as well as legal factors. Thus the real balance between centre and state may not be apparent from reading the constitution. As with many political ideas, it is probably best to regard terms such as ‘federal’ or ‘unitary’ not as precise definitions, 96

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but as convenient points upon a political spectrum ranging from loose associations of countries for particular purposes to simple one – government states. On this spectrum the UK Constitution is close to the latter extreme and is therefore called a ‘unitary’ constitution. The whole country is subject to the overriding power of the  central government and to  parliamentary supremacy. Within the UK certain powers have very recently and in varying degrees been devolved to elected assemblies in Scotland and Wales but without in any way limiting the powers of Parliament. Northern Ireland has enjoyed devolved powers in the past and legislation is in force to enable it to do so again. There are also local authorities within the UK based upon cities, counties and units within the county. Although elected and having certain tax-raising power, local authorities obtain their powers exclusively from statute, are closely regulated by central government and depend upon the central government for most of their funding. Dicey strongly opposed federalism in the United Kingdom. This was influenced by his belief in a single centre of power. He thought that ‘federal government means weak government’ although he qualified this by recognising that federalism might make it possible to unite communities that otherwise could not be united at all. He also thought that federalism tends to conservatism, creates divided loyalties and that it elevates legalism to a primary value, making the courts the pivot on which the  constitution turns and perhaps threatening their independence. During the late nineteenth century there were some advocates of federal UK as a way of avoiding home rule for Ireland and also proposals for a federation of the UK and some of its overseas territories. However, on the whole, federalism has not been a serious element of UK politics. The Kilbrandon Report (1973) argued against a federal constitution for the UK on the following grounds. Firstly the units are widely different in economic terms, 97

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with England being the dominant member. Any federation is therefore likely to be unbalanced. Secondly a federal regime would be contrary to the British constitutional traditions in that it would elevate the courts over political machinery. Thirdly the UK was thought to require central and flexible economic management since its resources are unevenly distributed geographically. Fourthly, apart from Northern Ireland, regional issues were not high on the agenda of the main parties, which suggested that there was little public desire for federalism. NOTES TO THE TEXT: The Kilbrandon Report is a remarkable document. It was remarkable in its time and it still reads as a clear, fresh and enlightened document more than fifty years later. In May 1961, John Maclay, then Secretary of State for Scotland and later Lord Muirshiel, appointed a committee ‘to consider the  provisions of the  law of Scotland relating to  the treatment of juvenile delinquents and juveniles in need of care or protection or beyond parental control’. It was chaired by a distinguished lawyer and judge, James Shaw, Lord Kilbrandon. It contained in its membership two sheriffs, a professor of law, a solicitor, a headmaster, a chief constable, justices of the peace and a child psychiatrist.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Study the meanings of government and determine in which ones it is used in the text and in the word combinations below: • The government is but an agency of the state, distinguished as it must be in accurate thought from its scheme and the machinery of government. •  The system of poliсy in a state; that form of fundamental rules and principles by which a nation or state is governed, or by which individual members of a body politic are to regulate their social actions. •  The sovereign or supreme power in a state or nation; •  The machinery by which the sovereign power in a state expresses its will and exercises its functions. 98

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•  The framework of political institutions, departments and offices, by means of which the executive, judicial, legislative and administrative business of the state is carried on. •  The whole class or body of officeholders or functionaries considered in the aggregate, upon whom devolves the executive, judicial, legislative, and administrative business of the state. •  The regulation, restraint, supervision, or control which is exercised upon the individual members of an organized jural society by those invested with authority. •  The act of exercising supreme political power or control. Black’s Law Dictionary forms of government, local government, system of government, republican government, federal government, the  sitting government, the government of the day TASK II. a) Find the  following adjectives in the  text: smaller, inferior, lower, the latter. b) Add nouns to  them; provide the  words with the  opposite meanings; make up sentences with them to compare the UK and US constitutions. TASK III. a) Add (a) federal and/or) b) unitary to  the following nouns as they appear in the text: 1) system; 2) state; 3) regime; 4) government; 5) constitution; 6) legislature; 7) UK; 8)citizenship; 9) level. b) Use federal or unitary in the following sentences, translate the sentences: 1.  Freedom of choice also means the parents’ opportunity to select a school for their child in a …, integrated school system that is devoid of de jure segregation. 99

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2.  … tax is a tax of income earned locally by a business that transacts business through an affiliated company outside the state or the country. 3.  … business is a business that has subsidiaries in other states or countries and that calculates its state income tax by determining what portion of a subsidiary’s income is attributable to activities within the state, and paying taxes on that percentage. 4. The tax, it was found, did not impair … uniformity nor prevent the … Government from speaking with one voice in international trade. 5. The Supremacy Clause of the Constitution provides: if a state measure conflicts with a … requirement, the state provision must give way. The basic question involved in these cases, however, is never one of interpretation of the … Constitution but inevitably one of comparing two statutes’. 6.  Until roughly the New Deal, the Supreme Court applied a doctrine of ‘dual federalism’, under which the … Government and the States were separate sovereigns, each preeminent in its own fields but lacking authority in the other’s. 7.  ‘The relative importance to the State of its own law is not material when there is a conflict with a valid … law, for the Framers of our Constitution provided that the … law must prevail’. 8. In the  … court system there were … courts having jurisdiction in both law and equity, but distinct law and equity procedures, including the use or nonuse of the jury. 9.  Crampton v. Ohio raised the question whether due process was violated when both the issue of guilt or innocence and the issue of whether to impose the death penalty were determined in a … proceeding. 10.  School boards then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a … system in which racial discrimination would be eliminated root and branch’. 100

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11. Because each system was a dual one in 1954, it was subject to an ‘affirmative duty to take whatever steps might be necessary to convert to a … system in which racial discrimination would be eliminated root and branch’. 12.  A state … -tax scheme that used a worldwide-combined reporting formula was upheld as applied to  the  taxing of the income of a domestic-based corporate group with extensive foreign operations. 13. Iowa imposed an income tax on a … business operating throughout the United States and in several foreign countries. It included in the  tax base of corporations the  dividends the companies received from subsidiaries operating in foreign countries, but it allowed exclusions from the base of dividends received from domestic subsidiaries. TASK IV. Find in the text and translate the sentences with the following word combinations: to divide power between, to  devolve power to, to  take the  power back, to  leave the  residual power with, to  leave the federal level as the residuary power, to have greater voting power, the actual disposition of power, to limit the powers of Parliament, the overriding power of the central government, to enjoy devolved powers, tax-raising power, to obtain power TASK V. a) Study the meaning of residual/residuary power ( residuary is unnecessary variant here). The powers not delegated to the United States by the Constitution, nor prohibited by it to  the  States, are reserved th to the States respectively, or to the people. (10 Amend., US Const.) b) Translate the following sentences: 1. There will be virtually no centripetal forces vis-à- vis Northern Ireland to  pull it in a centralising direction. 101

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A unionist stance on the region, which did have a significant residual presence in the  Conservative party in the  not too distant past, in figures like Airey Neave and Ian Gow, has not had a purchase at Westminster for many years – as evidenced by the sea of empty green benches in the Commons during Northern Ireland debates. 2. The Bosnia-Hercegovina constitution, contained in a Dayton annex, divided the  country into two entities, the Federation of Bosnia and Hercegovina populated mainly by Muslims and Croats – in which power was further devolved into ten cantons – and Republika Srpska. It named ‘Bosniacs’ (implicitly Muslims), Croats and Serbs as ‘constituent peoples’, along with – though clearly residually – ‘others’ and ‘citizens of Bosnia and Herzegovina’. 3.  House of Lords reform will focus attention on any statutory appointments body, as even a fully elected House would likely involve some residual appointment aspects. 4.  ‘Were it once established that the powers of war and treaty are in their nature executive; that so far as they are not by strict construction transferred to the legislature, they actually belong to the executive; that of course all powers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a residuary right in the executive; or ... perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative’. 5. The Court relied on the  ‘structural Constitution’ to demonstrate that the Constitution of 1787 had not taken from the States ‘a residuary and inviolable sovereignty’, that it had, in fact and theory, retained a system of ‘dual sovereignty’ reflected in many things but most notably in the constitutional conferral ‘upon Congress of not all governmental powers, 102

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but only discrete, enumerated ones’, which was expressed in the Tenth Amendment. 6.  Justice Scalia suggested that there should be a ‘sliding scale’ taking into account the definition of obscenity: ‘[t]he more narrow the understanding of what is ‘obscene’, and hence the more pornographic what is embraced within the residual category of ‘indecency’, the more reasonable it becomes to insist upon greater assurance of insulation from minors’. 7.  Upon her death, dispute arose as to whether the property passed pursuant to the terms of the power of appointment or in accordance with the residuary clause of the will. TASK VI. a) Add nouns to the following adjectives from the text, translate them: communitarian, powerful, delicate, diverse, efficient, distinctive, overriding, common, ethnic, supreme, precise, dominant, flexible, subordinate, particular, regional b) What other nouns can be used with them? Give your examples. TASK VII. Translate the following sentences, paying special attention to the adjectives used: 1. Thus, a delicate balance must be struck. 2. It cannot be seriously suggested that federalism is the best way of achieving efficient government but efficiency cannot be the overriding purpose of a liberal society. 3. In the European Union the more powerful states have greater voting power in relation to certain issues. 4. Thus the real balance between centre and state may not be apparent from reading the constitution. 5.  Within the UK certain powers have very recently and in varying degrees been devolved to  elected assemblies in Scotland and Wales but without in any way limiting the powers of Parliament. 103

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6.  He also thought that federalism tends to conservatism, creates divided loyalties and that it elevates legalism to a primary value, making the courts the pivot on which the constitution turns and perhaps threatening their independence. 7.  Apart from Northern Ireland, regional issues were not high on the agenda of the main parties, which suggested that there was little public desire for federalism. 8. Drawing primarily upon the  insights of Aristotle and Hegel, some political philosophers disputed John Rawls’ assumption that the principal task of government is to secure and distribute fairly the liberties and economic resources individuals need to lead freely chosen lives; the critics of liberal theory never did identify themselves with the communitarian movement (the communitarian label was pinned on them by others, usually critics),  much less offer a grand communitarian theory as a systematic alternative to liberalism. 9.  Although spread very unevenly, the  ethnic minority population constitutes 8 per cent of the  total and is itself composed of very different elements. 10.  As McEwen points out, the welfare state was a common British enterprise that helped cement loyalty to the Union at a popular level. 11. The social class and ethnic composition of the United Kingdom is vastly different from 1952 when Elizabeth II succeeded. 12.  Asians have ‘little doubt that a society with communitarian values where the interests of society take precedence over that of the individual suits them better than the individualism of America’. 13. The growing power of the judiciary is a result of the HRA and the  new Supreme Court, and the  continuing effects of the EU. 14.  As the  example of Quebec illustrates, the  issues of symbolic politics and recognition as a distinctive nationality 104

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have long been at the fore of Canadian constitutional politics, the more so if other issues move off the agenda. 15.  Ethnic and religious tensions are threatening to eat into the fragile political consensus that underpinned the UK’s policy of multiculturalism for much of the late 1990s and early 2000s. 16.  Gordon Brown qualified national distinctiveness by a vision of Britishness as ‘a community of citizens with common needs, mutual interests, shared objectives, related goals and most of all linked destinies’. 17. The new Supreme Court carries on much as the  old Appellate Committee of the House of Lords. 18.  As Thorne explains, statutory provisions were ‘merely suggestions of policy to be treated with an easy unconcern as to their precise content’; judges freely extended and restricted statutes as a routine part of their duty to administer justice between litigants. 19.  Parliamentary sovereignty is the dominant principle. 20.  Parliament under a coalition government could be as subordinate as under single-party majority government, or even more so if the government includes the Liberal Democrats, and neuters their opposition in the Lords. 21.  A London super-regional growth strategy will continue to be driven by very significant, discretionary public investments in infrastructure, megaprojects (principally the Olympic Games) and new house-building, in particular. 22.  According to royalist theorists, The King’s authority was admittedly subordinate to divine law, but no human agency was authorized to enforce that law against him. 23. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution’. 105

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24. The Liberal Democrats have introduced stricter prescreening of members to try and ensure reliable attendance and voting – as a result of the delicately balanced arithmetic in the Lords, and the newly enhanced opportunities there for changing policy. 25. In fact, London is the most abnormal – hugely wealthier, more educated, more employed in the private sector, but also more ethnically diverse and more unemployed. 26. The term media oversimplifies a very diverse, and highly competitive, group of newspapers and broadcasters. TASK VIII. Analyse Dicey’s views on federalism. Agree or disagree with them. TASK IX.

Comment on the following QUOTATIONS:

Power tends to corrupt and absolute power corrupts absolutely. Lord Acton (1834–1902) 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 THE 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.

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

TEXT 1 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. 107

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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 (1826–1877). 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. 108

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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. 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/ 109

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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. 110

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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 … ascribed to  the  legal and political decision-making processes within the constitution. 111

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8. The Police and Criminal Evidence Act 1984 closely regulates police  … of detention and detained persons’ rights. 9.  Usually, general management … are vested in the directors acting collectively, although they may delegate some or all of these … to the managing director. 10.  Attorney is a person who is appointed by another and has … to act on behalf of another. 11. The existence of such a state is declared by royal proclamation under the Emergency … Acts 1920 and 1964. 12.  What distinguishes ethnically divided from ‘normal’ societies is the absence of impartial public … . 13.  Certain reserved … , specified by the Companies Act, can only be exercised by a general meeting. 14. 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. 15. The anticipated elections to new local … would not now go ahead in 2009. 16.  … 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. 17.  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. 18. 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 … . 19.  Legislature is the body having primary … to make written law. 20.  Managing director is a director to whom management … have been delegated, either absolutely or subject to supervision, 112

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by the  other directors of the  company under the  terms of the articles of association. 21.  Managing directors are agents of the company and have wide … to act on its behalf. 22. 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. 23.  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 2. obscure 3. ceremonial and symbolic 4. political 5. official 6. executive 7. corporation 8. legal

a. concept b. capacity c. view d. significance e. powers f. function g. power h. sole

TASK IV. a) Use the  following expressions to  describe 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 113

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TASK V. Join these sentences using the words in brackets and making any necessary changes. Then check against the text. 1. 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). 2. 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). 3. 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 60–70 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 114

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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  corporationsole 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. 115

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2. (criminal contempt) Conduct that obstructs or tends to obstruct the proper administration of justice.

Task VII. forms:

Use the verbs from the box below in proper tense-

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 116

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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 117

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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 Functions of 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 118

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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. 119

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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)).

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. How have the functions of the monarch changed since 1688? Use the following expressions in your answer: to leave smb. in charge of smth., to run the executive, to be dependent upon Parliament for smth., to retain substantial 120

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personal influence, to appoint ministers, to influence elections in the  local constituencies, to  intervene with policy issues, abdication of, to spell the end of, a strong element of superstition, access to all government documents, to accept the advice of ministers TASK II. Read the text and discuss the changing functions of the Monarch: Crown-in-Parliament The ‘Crown-in-Parliament’ – that is Parliament and the Crown together – is sovereign in the British constitution. Laws passed by Parliament and signed by the Monarch cannot, at least in theory, be overturned by any other body. The Crown is a term which is used interchangeably to refer to the state, the Monarch herself, or the government. The State refers to the set of institutions which govern Britain; the offices of the state are occupied by the government. Until the political upheavals of the 17th century, sovereignty vested exclusively in the Monarch who was chosen by God. The restoration of the monarchy in 1660 represented a compromise in which power was shared between Parliament and the Monarch and his advisors. Political elites retained the fiction that it was the Monarch who was the source of all state power; but in practice it was those elites who exercised state power, not the Monarch. This was, however, a gradual process: even in the 19th century, some Monarchs considered themselves at least coordinate in authority to Parliament. Over time, and particularly with the expansion of the right to vote, the Monarch’s role in British politics became limited to a few ‘reserve’ powers, with ministers themselves exercising the most important royal prerogatives. However, in constitutional theory, government ministers in the present 121

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day continue to exercise authority in their capacity as advisors to the Monarch. The monarchy retains a prominent position in British public life, despite its essentially marginal constitutional role. While it is generally understood that the Monarch is no longer sovereign, there is still a social consensus that the Queen plays an important, if rather nebulous, role in the workings of the state. This consensus is not of course unanimous, and depends in part on the personal popularity of the incumbent, but it unlikely that the institution of monarchy could survive without it. Queen Elizabeth II’s longevity (she has reigned since 1953) has encouraged the perception – arguably a misleading perception – that Britain’s constitutional order is essentially stable, in spite of vast social, economic and political changes. In her time, the United Kingdom has shrunk from empire to nation-state; gone from standing outside Europe to  being a member of the EU; from a unified multinational state to a state of devolved nations; from Churchill to Cameron. By the rules of succession the Monarch’s eldest son will take the office of head of state on the death of the Monarch. If there is no son, the office passes to the eldest daughter. The Commonwealth is understood to have been involved in ongoing discussion regarding the law favouring male offspring, which has also been challenged in the Commons in 2011 by Keith Vaz. As things stand, the Monarch must also be a Protestant, a member of the Church of England, and cannot be a Roman Catholic or married to a Roman Catholic. TASK III. a) Read the texts about the modern functions of the Monarch: The Monarch of Britain has a number of functions. Of these, the functions of Head of State, Constitutional Monarch and supreme governor of the Church of England are most important. 122

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Constitutional Monarch A constitutional Monarch is one who acts according to constitutional principle. In Britain, this means the Monarch obeys the democratically-elected government of the day, following the government’s advice and remaining entirely neutral. Head of State and National Symbol The Monarch is the head of state for the United Kingdom. She may represent the UK in state events both in the UK and outside it. She is also a symbol which stands for the United Kingdom: an easily identifiable, non-political figure whom Britons can point to as a symbol of national unity. As head of state, the Monarch is, in theory, ‘above’ politics: thus many national institutions such as the  judiciary and the army swear an oath of allegiance to the Monarch. Their loyalty is said to be to the United Kingdom and the head of state rather than to Parliament, or the government of the day. Although a great deal of power has been devolved to Scotland, Wales, and Northern Ireland, the Queen remains their head of state. Royal assent is still required for legislation of the Parliament and Assemblies, and in fact it may be as a result of devolution that the Queen is expected to appear more often in the 4 nations, as she is now the key symbol holding the UK together. Defender of the Faith The British Monarch is the head of the Church of England and a member of the Church of Scotland, both of which are by law the  official churches of the  two respective nations. Archbishops and bishops of both churches are appointed by the Monarch (although in practice by the Prime Minister, and then on advice of the Ecclesiastical Appointments Commission) Perhaps the  most important aspect of this role is that descendants of the Monarch who are Catholic or are married 123

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to Catholics cannot succeed to the throne; and the Monarch is required to be a member of the Church of England. b) Describe the  modern functions of the  monarchy using the following starting phrases: 1. The most important modern functions of the Monarch are … . 2. The term ‘constitutional Monarch’ implies that … . 3.  As head of state the Monarch… . 4.  Although a great deal of power has been devolved … . 5. Defender of the Faith means that … .

TEXT 3 Personal powers of the monarch In a few special cases it is believed that the monarch can and indeed must exercise personal power. This is a matter of convention, and is highly controversial with little precedent, thus creating an opportunity for unelected persons to influence opinion. There are internal Cabinet Office guidance documents on the matter but the fact that such unpublished sources have any weight at all is a sad reflection on the culture of those who exercise power. The governing principle seems to be that the head of state is the ultimate guardian of the constitution and must intervene where the normal machinery of government has broken down. The occasions on which the power of the monarchy might be exercised are as follows: 1 The appointment of a prime minister. The Queen must appoint the person who can form a government with the support of the House of Commons. This usually means the leader of the majority party as determined by a general election. Nowadays 124

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each party elects its leader. In the unlikely event of the electoral process not producing a clear winner the Queen might have to exercise a personal choice. For example, if a general election fails to produce an overall majority the existing prime minister must probably be permitted to attempt to form a government. Failing that, the Queen should summon the leader of the next largest party. If that fails there is disagreement as to what should happen, and in particular as to whether the monarch has any personal discretion. On one view the Queen should attempt to find someone else capable of commanding a majority, but it is not clear whom, if anyone, she should consult for advice. For example, should she consult the outgoing prime minister? If this fails should she dissolve Parliament causing another election? According to another view the Queen should automatically dissolve Parliament. The guiding principle seems to be that she must try to determine the electorate’s preference. 2 The dismissal of a 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 to advise a dissolution the Queen could probably dismiss the government. This has not happened in Britain since 1783, but happened in Australia in 1975. In such a case the Opposition, if it could form a majority, could be placed in office or the Queen could dissolve Parliament, thus putting the case to the people through an election. It has been suggested that the Queen could dismiss a government that violates a basic constitutional principle, for example by proposing legislation to  abolish elections. In order to dissolve Parliament the Queen would require a meeting of the Privy Council. It would therefore be convenient as a temporary measure for her to  appoint the  Leader of the Opposition as prime minister who would then formally advise her in favour of a dissolution. 3  Refusing a dissolution. This possibility arises because of the convention that the prime minister may advise the monarch 125

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to  dissolve Parliament. This is one of the  main sources of the  power of the  prime minister and means that general elections can be timed for reasons of party advantage. The Queen might refuse a dissolution if the prime minister is acting clearly unconstitutionally, for example if a prime minister whose party lost a general election immediately requested a second dissolution or where a prime minister falls personally foul of his party. Unfortunately there are no clear-cut precedents. It is likely that the Queen could refuse a dissolution only where there is a viable alternative government and a general election would be harmful to the national interest, although it seems difficult for anyone, let alone the Queen, to make such a judgement. A dissolution was not refused in Britain in the last century but one was refused by the Governor-General in Canada in 1926. The Governor-General’s decision was later rejected by the electorate. 4 The Queen might refuse a prime ministerial request to appoint peers to the House of Lords where the reason for the request is to flood the Lords with government supporters. The precedents (1832 and 1910–1911) suggest that the monarch would have to agree to such a request but only after a general election. This matter is therefore closely connected with the power to dissolve Parliament. 5 The Royal Assent. The monarch has not refused royal assent to  legislation since 1709. It appears to  be a strong convention that royal assent must always be given. However the Queen might refuse royal assent where the refusal is on the advice of the prime minister, for example in the unlikely event of a private member’s bill being approved by Parliament against the wishes of the government. Here two conventions clash. It is submitted that the better view is that she must still give assent because the will of Parliament has a higher constitutional status than that of the executive. 126

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NOTES TO THE TEXT: Privy Council – a body, headed by the Lord President of the Council. Its functions are mainly formal. There are about 350 Privy Counsellors, who include members of the royal family, all Cabinet ministers, the Speaker and other holders of high non-political office, and persons honoured for public services. Prerogative – the special power, pre-eminence or privilege which the Queen has, over and above other persons, in right of her Crown and independently of statute and the Courts.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Use the text to finish the following starting phrases: 1. It is believed that … . 2. The governing principle seems to be that … . 3. This usually means … . 4. In the unlikely event of the electoral process … . 5. If a general election fails to produce an overall majority … . 6. If that fails … . 7.  According to another view … . 8. The guiding principle seems to be that … . 9. If a government is defeated on a vote of confidence … . 10. In order to dissolve Parliament … . 11. This possibility arises… 12. The Queen might refuse a prime ministerial request … . 13. It is submitted that … . TASK II. Consult the text to use proper modal verbs, explain their usage: 1. In a few special cases it is believed that the monarch … and indeed … exercise personal power. 2. In the unlikely event of the electoral process not producing a clear winner the Queen might … exercise a personal choice. 3.  Failing that, the Queen … summon the leader of the next largest party.

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4. If a general election fails to produce an overall majority the existing prime minister … probably be permitted to attempt to form a government. 5. The occasions on which the power of the monarchy … be exercised are as follows. 6.  On one view the Queen … attempt to find someone else capable of commanding a majority, but it is not clear whom, if anyone, she … consult for advice. 7. The guiding principle seems to  be that she … try to determine the electorate’s preference. 8. In such a case the Opposition, if it … form a majority, … be placed in office or the Queen … dissolve Parliament, thus putting the case to the people through an election. 9. This is one of the main sources of the power of the prime minister and means that general elections … be timed for reasons of party advantage. 10. The precedents suggest that the monarch would … agree to such a request but only after a general election. 11. It appears to be a strong convention that royal assent … always be given. TASK III. Match the verbs with the nouns, use the word combinations to describe the Monarch’s powers: 1.  to abolish a.  a prime minister 2.  to propose   b.  an overall majority 3.  to exercise c.  legislation 4.  to appoint   d.  a dissolution 5.  to influence   e.  the leader 6.  to form   f.  elections 7.  to produce   g.  power/a personal choice 8.  to dissolve   h.  assent 9.  to summon   i.  opinion 10.  to advise   j.  a government 128

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11.  to determine   12.  to give   13.  to command 14.  to dismiss

Add negative prefixes where possible:

TASK IV. Elected agreement Regular Formal Legal Likely Power Mature published

k.  the electorate’s preference l.  a majority m.  Parliament n.  a government

dis-

ununelected

ir-

-less

im-

in-

il-

TASK V. a) Insert the missing prepositions: by, from, up, on, by, to, on, about and translate the texts paying special attention to the meanings of the words power/powers. The Sources of Crown Power Powers exercised … the Crown derive from three sources: statute, private law and the royal prerogative. Powers exercisable by other government bodies derive only … statute, except in the case of the police who have common law powers. Statutory powers make … the  bulk of Crown powers and are usually conferred directly … individual ministers. The Crown also has inherent prerogative powers which are peculiar … itself. In practice these are also exercised by ministers. In addition the Crown is recognised as a person … the common law and so has the same capacity to make contracts, own property, etc. as a private individual. This has been described as the ‘third 129

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source’ of powers exercised by the Crown (see Harris, 1992). By contrast, public bodies such as local authorities that are creatures of statute can only do what statute authorises and cannot rely … the ordinary law. b) Supply the correct derivatives of the words in the right column. There is a … controversy about which powers are linger antique pro­perly regarded as prerogative powers. Despite the  … of prerogative powers, many questions resolve (neg.)  about them are … . Does the prerogative comprise final a single over-arching power to act for the public permit  good of which particular powers are but facets, or is strict uneasy there a finite number of prerogatives the existence and scope of which are not … settled? This is a profound question because a general power is inevitably more … than a group of more … defined powers. That such questions are possible in the late twentieth century shows how such ill-defined powers, many of which are medieval in origin, exist … alongside the more modern constitutional fundamental of the rule of law. TASK VI. Arrange the paragraphs of the following text in some logical order: Private Law Powers 1. In this connection Daintith has distinguished between imperium powers and dominum powers. Imperium powers are usually backed by force, for example police powers of arrest. Dominum powers exist by virtue of property and wealth and usually depend upon rewards and incentives. 2. For example, to all intents and purposes a government contract has the force of law to a body such as a road-building 130

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firm or a defence contractor whose livelihood depends upon pleasing the government. Through contracts and the dispersal of money the government can impose its will, for example about wage levels or ‘privatisation’, without the need to obtain powers from statute. 3. Before looking at the Royal Prerogatives which are peculiar to the Crown we should discuss the Crown’s ‘private law’ powers. Because the  Crown is a very wealthy person and a prolific consumer of labour and materials, its private law powers are an important aspect of its political power. 4. Parliament can in principle supervise Crown contracts. However, some matters, notably defence contracts, are by convention excluded from Parliamentary questions. Receipts from Crown enterprises are treated as monies provided by Parliament and payments made by the Crown must be authorised in the Annual Appropriation Act, though this is usually in general terms not related to specific contracts. It is sometimes said that a Crown contract cannot be enforced at all unless the money is authorised by Parliament. This does not affect legal liability as such. It means that money due cannot lawfully be paid out. 5. It could be argued that the distinction between dominium and imperium power is artificial since the  wealth on which the dominium powers depend ultimately comes from forcible confiscation of property through taxation. On the other hand, in terms of the law itself the distinction is very important because it affects the scope of parliamentary accountability and judicial review. NOTES TO THE TEXT: Imperium – the right to command, which includes the right to employ the force of the state to enforce laws. This is one of the principal attributes of the power of the executive. Dominium – in the  civil and old English law, ownership; property in the largest sense, including both the right of property and the right of possession or use. The right which a lord had in the fee of his tenant. Appropriations act  – an act that authorizes governmental expenditures. 131

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TASK VII. Complete the  following sentences using each adverb once only: usually, lawfully, ultimately, notably, directly, properly, finaly. 1. Imperium powers are … backed by force. 2.  Statutory powers make up the bulk of Crown powers and are usually conferred … on individual ministers. 3. It means that money due cannot … be paid out. 4. There is a lingering controversy about which powers are … regarded as prerogative powers. 5. It could be argued that the distinction between dominium and imperium power is artificial since the wealth on which the dominium powers depend … comes from forcible confiscation of property through taxation. 6. Is there a finite number of prerogatives the existence and scope of which are not … settled? 7.  However, some matters, … defence contracts, are by convention excluded from Parliamentary questions. TASK VIII. a) Use the  following verbs in the  text about the Monarch’s personal powers: advise, appoint, refuse, prorogue, dismiss, warn, encourage, dissolve. There are a small number of powers which are ‘personal’ to the Monarch: these are powers which, because of their nature or because of circumstances, cannot be exercised by anyone other than the Monarch alone. However, most scholars argue that even though these powers are personal to the Monarch, she has very little room for discretion, and these ‘personal’ powers are exercised at the request and in accordance with the wishes of the incumbent Prime Minister. These ‘reserve powers’, or ‘personal prerogatives’, are: • The right to …, … and … • The power to … and … the Prime Minister • The power to … and … Parliament (in certain circumstances) • The power to … assent to legislation 132

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The Right to … , … and … There is a weekly meeting between Monarch and Prime Minister, in which the Prime Minister will discuss his or her plans. The Monarch in turn has the right to ‘… , … and …’. The extent of the Monarch’s influence over Prime Ministers is unknown, but a number of former Prime Ministers have pointed to the present Queen’s influence, as she has been Monarch for over 60 years, and can draw on a deep well of political experience. The Power to … and … the Prime Minister By convention, the Monarch is expected to … the leader of the party which gains a majority of the seats in the House of Commons: this leader will become ‘the Queen’s chief adviser’ – the Prime Minister. This is considered a personal prerogative because there is no advisor to advise the Queen, but there is no real ‘choice’ here: the Queen simply … the leader of the successful political party. This has been emphasised by the Cabinet Office in the ‘Cabinet Manual’, (Chapter 6 on ‘Elections and Government Formation’) which makes it clear that the monarch no longer has discretion over who is to be … as Prime Minister, but merely validates the decision already made by the political parties. The first-past-the-post electoral system usually produces clear winners in a general election, so that the Monarch’s decision is entirely uncontroversial. However, it is possible that no party will gain an overall majority in the Commons: this is known as a ‘hung parliament’. In this situation, the role of the Monarch may become more important. Generally speaking, it is up to the political parties themselves to work out a solution, but if the parties cannot decide between themselves, there may be pressure for the Monarch to act to resolve the situation. The key point is that such a situation throws the Monarchy into the public spotlight: any decision the Monarch makes will be seen as political. 133

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One example of this was the 1974 election, which produced the following results: •  Labour: 301 seats •  Conservatives: 296 seats •  Liberals: 14 seats •  United Ulster Unionists: 11 seats This was made more complicated by the fact that the Conservatives won more votes, but Labour more seats. The incumbent Prime Minister, the Tory Party leader Edward Heath, was unable to form a coalition government, and so resigned. Harold Wilson’s Labour Party then became a minority government, ultimately calling another election at the end of the same year. At all times the Queen was kept informed, but remained silent. It is worth noting that there have been only 4 hung parliaments in the last hundred years: in 1923, 1927, 1974 and 2010. The Power to … or to … Parliament The power to … Parliament is said to be the key power of the Prime Minister: this gives the Prime Minister and the ruling political party an advantage over the other parties, who must make do with the date the Prime Minister sets. However, this assumes that the Prime Minister has the ‘confidence of the House’. A dilemma may arise for the Monarch where the Prime Minister has publicly lost the confidence of the House – in such a case, the prerogative is ‘personal’ to the Monarch: it is no longer clear that the Monarch ought to listen or follow such a Prime Minister’s advice. In the  2007 Governance of Britain Green Paper, it was suggested that a Prime Minister seeking a dissolution ought to seek the approval of the House of Commons first, but nothing yet has happened to take this further. The power to  … Parliament is likely to  be altered by the Fixed-Term Parliaments Bill, should it pass into law. In this 134

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case all general elections will be subject to fixed dates, whilst the dissolution of Parliament before then would only occur when there was a vote of no confidence or a vote for immediate 2 dissolution by /3 of MPs. The Power to … Assent to Legislation Statutory law in Britain can only be made by the ‘Crown-inParliament’, meaning the House of Commons, the House of Lords and the Monarch must all assent to a proposed bill before it can become law. By convention, the Monarch always assents to all bills passed by the Houses of Parliament. But commentators wonder: if the  Monarch were to  be given legislation which violated some fundamental tenet of the British constitution could she … assent? This has never been tested. In the crisis over the Home Rule bill in 1912–1914, King George V did threaten to use his veto to encourage a settlement, but this is now almost a century-old precedent. The last recorded example of a Monarch refusing assent was in 1707. In the 20th century Monarchs very rarely had to make a public exercise of their personal ‘reserve’ powers. The most obvious recent example of this was in 1957 and again in 1963, when Queen Elizabeth II was required to exercise her royal prerogative and choose a leader for the Conservative party at the time. This was because the Conservatives had no formal means of electing a new party leader. But the effect was that Queen Elizabeth was in fact choosing a Prime Minister for Britain. b) Answer the following questions: 1.  Which personal powers are exercised more/less often? 2.  Are all personal powers likely to  survive the  current constitutional reforms? 3.  Which personal powers are going to be abolished first? 135

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TEXT 4 The Royal Prerogative The Royal Prerogative is a collection of special powers, rights and immunities vested in the Crown which are not conferred by Parliament. The constitutional problem is therefore lack of democratic control over officials claiming to act under the prerogative. The royal prerogative originated in the special rights and powers available to the monarch under the common law. Medieval legal theory did not regard the Crown as the source of law or as above the law, but did confer special rights on the monarch. Some of these were based upon the position of the monarch as chief landowner within the feudal system. Others derived from the responsibility of the monarch to keep the peace and defend the realm. This may have corresponded to the distinction drawn in seventeenth-century cases between the ‘ordinary’ and the ‘absolute’ prerogatives, the latter being discretionary powers vested in the king and arguably beyond the reach of the courts. Influenced by Locke’s True End of Civil Government (1764 edition) and Blackstone’s Commentaries, Lord Denning in Laker Airways Ltd v. Department of Trade (1977) considered that the Crown had a general discretionary power to act for the public good in certain spheres of governmental activity for which the law had otherwise made no provision. This suggests that the state may benefit from a single, overarching power to interfere in private rights where it perceives an important public benefit may result, especially in times of emergency. This interpretation is, however inconsistent with Entick v. Carrington (1765) where the  court emphatically rejected the  claim of ‘executive necessity’ that officers of the state had a general power to enter and search private property in the absence of express statutory or common law powers, Lord Denning’s views were not supported by the other members of the Court of Appeal. 136

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They are also fundamentally inconsistent with ideas of limited government. The better view is that although the Crown has certain discretionary powers in relation to emergencies, such as the requisitioning of ships, the prerogative comprises a finite number of powers rather than one general power to act for the public good. Many prerogative powers are of central importance in the British modern constitution. Certain inherent powers are essential to any government. These include the making of treaties, the  waging of war, and indeed most matters concerned with foreign affairs, defence, national security and public order. Control over the civil service and armed forces are also based on prerogative powers, although, particularly in respect of the  army, intermingled with statute. Some matters, for example emergency powers and immigration control, were once prerogative but are now governed mainly by statute. The security services also operate within a broad statutory framework. There is an uncertain and potentially threatening area of prerogative power concerned with ‘keeping the peace’ and defending the realm. It has been used to justify arming the police and may justify entry by the security services to private property. The ancient writ of ne exeat regno prevents persons from leaving the  country. Although ne exeat regno is sometimes regarded as obsolete there is no doctrine of obsolescence in English law. The administration of justice is part of the  prerogative although it was established by 1607 that the monarch can act only through professional judges (Prohibitions Del Roy (1607)). The prerogative power to pardon offenders resides with the Home Secretary, and the Attorney General has a prerogative power to institute legal proceedings in the public interest. There is also a prerogative power to stop criminal proceedings by issuing a nolle prosequi. 137

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Other important prerogatives include: • the monarch’s powers in relation to the appointment of ministers and the summoning and dissolving of Parliament; as we have seen, the circumstances in which these powers are exercisable are not clear. They are essentially a longstep to preserve democracy; the various Crown immunities which we have already discussed; powers relating to the Church of England; the care of children; the administration of trusts; the award of peerages and other titles, medals, etc., the Crown being the ‘fount of honour’; • t he  granting of Royal Charters to  bodies such as universities, learned societies, charities or professional associations which gives the body the status of a legal person and signifies state approval of its activities; • the conduct of foreign affairs, the appointing and receiving of ambassadors, the issue of passports, etc. The exercise of prerogative powers can be subject to parliamentary scrutiny. However, in practice, this is limited. This is partly because prerogative powers such as deploying the armed forces do not need formal parliamentary approval so that opportunity for debate is limited. Some prerogative powers, for example dissolving Parliament and granting honours and titles, fall into categories that have traditionally been exempt from parliamentary scrutiny on the ground that they involve the personal discretion of the monarch, even though the monarch must usually act on the advice of the prime minister. Other prerogative powers relate to foreign relationships, national security matters and the prerogative of mercy on which ministers sometimes refuse to be questioned but which Parliament, if it wished, could insist on investigating. NOTES TO THE TEXT: Royal prerogative the special rights, powers and immunities to which the Crown alone is entitled under the common law. Most prerogative acts are 138

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now performed by the government on behalf of the Crown. Some, however, are performed by the sovereign in person on the advice of the government or as required by constitutional convention. A few prerogative acts are performed in accordance with the sovereign’s personal wishes. nolle prosequi (lat.) – ‘not wish to prosecute’; the legal notice that a lawsuit has been abandoned.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Define the following notions and say who exercises these powers and when: General power, discretionary powers, inherent powers, prerogative powers, emergency powers TASK II. Combine the following sentences, use the words: for example, on the  ground that, even though and make any necessary changes. Then check against the text. 1. Some prerogative powers fall into categories that have traditionally been exempt from parliamentary scrutiny. 2. Dissolving Parliament and granting honours and titles are examples of such powers. These powers involve personal discretion of the monarch. 3. The monarch must usually act on the advice of the prime minister. TASK III. Insert the  missing prepositions. Then check against the text. 1. The Royal Prerogative is a collection of special powers, rights and immunities vested … the  Crown which are not conferred … Parliament. 2.  Medieval legal theory did not regard the  Crown as the source of law or as above the law, but did confer special rights … the monarch. 3.  Some of these were based … the position of the monarch as chief landowner within the feudal system. 4. They are also fundamentally inconsistent … ideas of limited government. 139

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5.  Control … the civil service and armed forces are also based … prerogative powers, although, particularly … respect of the army, intermingled with statute. TASK IV. potential obsolete particular exercise offend collect

Add suffixes where possible: -able -ence -er -ly – – – potentially

-tion –

TASK V. Read the  text and work out the  definition of ‘prerogative powers’: Prerogative Powers Originally the  prerogative would have been exercised by the reigning Monarch. However, over time a distinction was drawn between the Monarch acting in his or her individual capacity and the powers possessed by the Monarch as an embodiment of the State. As the governance of the realm became more complex, power was devolved from the Monarch and exercised by his or her advisers. In modern times Government Ministers exercise the bulk of the prerogative powers, either in their own right or through the advice they provide to the Queen which she is constitutionally bound to follow. A V Dicey defines the Royal prerogative as ‘The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’. William Blackstone however describes the prerogative more tightly, as those powers that ‘the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects’. Blackstone’s notion of the prerogative being those powers of 140

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an exclusive nature was favoured by Lord Parmoor in the De Keyser’s Royal Hotel case of 1920, but Lord Reid in the Burmah Oil case of 1965 expressed some difficulty with this idea. Case law exists to support both views, and a clear distinction has not been necessary in any relevant cases. The question may never need to be settled by the courts as there are few cases that deal directly with the prerogative itself. The scope of the Royal prerogative power is notoriously difficult to determine. It is clear that the existence and extent of the power is a matter of common law, making the courts the final arbiter of whether or not a particular type of prerogative power exists. The difficulty is that there are many prerogative powers for which there is no recent judicial authority and sometimes no judicial authority at all. In such circumstances, the Government, Parliament and the wider public are left relying on statements of previous Government practice and legal textbooks, the most comprehensive of which is now nearly 200 years old. This uncertainty has been criticised. Professor Rodney Brazier has written, ‘… the demand for a statement of what may be done by virtue of the Royal prerogative is of practical importance. Yet it has been said judicially that such a statement cannot be arrived at, because only through a process of piecemeal judicial decisions over the centuries have particular powers been seen to exist, or not to exist, as the case may be’.

TEXT 5 DWINDLING POWER OF THE CROWN Monarchs have been at the  heart of Britain’s system of government for over 1,000 years but their power has been eroded. The monarchy is the oldest British institution of government, going back more than 1,000 years. Queen Elizabeth II is a 141

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descendant of King Egbert, who ruled England in the 9-th century. She came to the throne on February 6 1952, after the death of her father, King George VI. The concept of monarchy is ancient, originally implying that one person had been given supreme authority over everyone else by a god. For centuries there was no separation between the power of the monarch and the power of the state. These ‘absolute’ monarchs used their powers to  levy taxes, raise armies and declare wars without consultation. Over time these unrestricted powers of absolute monarchs were removed. They have mostly been replaced by ‘constitutional’ monarchies – those authorized or limited by a political constitution – in which power has been transferred to politicians. In the English Civil War of 1642–1649 a growing merchant class joined forces with a section of the aristocracy to limit the powers of Charles I, particularly in the area of taxation. Charles repeatedly dissolved Parliament to prevent criticism of his actions and for 11 years ruled the  country without a Parliament. The struggle culminated in civil war, the king’s execution and the establishment of a republic. In the republic, which lasted for 11 years under Oliver Cromwell, sovereign power was vested in Parliament. But the propertied classes eventually restored the monarchy. However, the executed king’s son, Charles II (who reigned from 1660–1685), and his successor, James II (who reigned from 1685–1688), proved unwilling to give up what they claimed was their right to absolute power. So William of Orange, who was married to James’s daughter Mary and was a Protestant, was invited over from Holland and offered the throne in 1689. a Declaration of Rights at the same time, gave Parliament greater powers including the right to approve taxation. This completed ‘Glorious Revolution’. Although the  monarchy had survived, its role had been severely restricted. Parliament wrested more financial 142

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and political control away from the  Crown. By the  end of the  19- th  century, with the  establishment of modern party politics, the monarch’s role had become largely symbolic. Today’s monarchy seems far removed from that of much earlier times. If anything, the British royal family likes to emphasise its ordinariness. For years, Prince Philip let it be known that he did the football pools. Prince Charles frequently says that he sympathises with the problems of the unemployed and homeless. This is not to say that the powers traditionally exercised by the  Crown  – the  ‘Royal Prerogative’  – are merely an irrelevant leftover from a bygone age. The Queen still opens and dissolves Parliament and in theory appoints prime ministers and peers, heads the Church of England, the armed forces and the judiciary. In practice, the Queen exercises these powers in name only. But at times of political or economic crisis, for example, during the debates over Irish Home Rule in 1913–1914, and over the  formation of a National Government in 1931  – the monarch’s remaining constitutional powers can and have come into play. Critics argue that such rare examples highlight the danger of allowing a non-elected, hereditary institution to retain even token political power. At a more basic level, successive opinion polls have shown a certain amount of resentment at the extent of royal wealth and privilege in what the  Prime Minister and others argue is a ‘classless society’. So why has the  monarchy survived? Social historians have claimed that when Queen Victoria came to the throne in 1837 she faced widespread public criticism. Revolutions and social upheavals in Europe and the rise in Britain of a radical Chartist movement that campaigned for democratic reforms added to the Queen’s difficulties. There were seven attempts to kill Queen Victoria between 1841 and 1882. By 1864 she had become such a recluse 143

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that posters began to  appear outside Buckingham Palace announcing that it was to be sold or let ‘in consequence of the late occupant’s declining business’. Yet by the time of her funeral in 1901 the streets of London were thronged with affectionate crowds. The growth of the British Empire and an upsurge of nationalism in the late 19-th century change the monarchy’s public standing. In 1877, the Prime minister, Benjamin Disraeli, made the queen Empress of India. Her golden and diamond jubilee (in 1887 and 1897) were turned into fervent patriotic displays. Walter Bagehot the famous political commentator, remarked at the time that the monarchy was ‘the most national thing in the nation ... the standard to which the eye; of the people perpetually turn to keep then all together.’ A century later, Britain’s role in world affairs is much diminished. But the monarch remains head of the Commonwealth as well as of Britain. Windsor Wealth Estimates of the Queen’s wealth range from under £50m to over £7bn, depending on which way her income and assets are calculated. The Queen’s personal possessions include her racing stables, her Balmoral and Sandringham homes and her investments. Windsor Castle, Buckingham Palace and the Crown jewels are ‘inalienable’ property, that is, they can not be sold but must be passed on to her successor. The Economist reckons that the extent of the Queen’s wealth has been exaggerated, because a lot of her money is ploughed back into helping other members of the royal family. But Phillip Hall, who has written a study of royal fortunes which calls for the Queen to be taxed, estimates that the Queen’s investments are worth at least £341m, and that she is ‘without doubt the wealthiest person in Britain’. 144

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LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Explain the  meaning of the  verb to  raise in the following word combinations: To raise armies, to raise money/funds, to raise a question/ an issue, to raise a chair, to raise one’s hat, to raise prices/taxes, to raise a monument, to raise one’s voice, to raise children, to raise a siege/blockade, to raise an embargo, to raise awareness/ fears. TASK II. Match the verbs with the nouns: a.  to levy 1. Parliament b.  to declare 2. prime ministers c.  to dissolve 3. the monarchy d.  to prevent 4. the right e.  to restore 5. the powers f.  to give up 6. taxes g.  to exercise 7. wars h.  to appoint 8. criticism TASK III. Use the following expressions to describe changes in Britain’s system of government: •  The power has been eroded •  Separation between the  power of the  monarch and the power of the state • To use one’s power • The unrestricted powers •  Power is transferred • To limit the powers •  Sovereign power is vested in • The right to absolute power • To give greater powers •  The powers traditionally exercised by the Crown • The monarch’s remaining constitutional powers 145

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• Token political power • Dwindling power TASK IV. Find the following expressions in the text and use them to begin your own sentences: 1. Britain’s system of government... 2. The oldest British institution of government... 3.  King Egbert... 4.  King George VI... 5.  ‘Constitutional’ monarchies... 6. The English Civil War... 7.  Oliver Cromwell... 8. The ‘Glorious Revolution’... 9. The football pools... 10. The problems of the unemployed and homeless... 11.  Prime ministers and peers... 12. The extent of the royal wealth and privilege... TASK V. Use the text to add events to the following dates: •  1952 •  1642–1649 •  1660–1685 •  1685–1688 •  1689 •  1913–1914 •  1931 •  1837 •  1877 •  1001

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TEXT 6 A RIGHT ROYAL ARGUMENT Both monarchists and republicans have strong arguments to back up their case for tradition or change in Britain. ALTHOUGH other countries in Europe  – Denmark, Holland and Spain, for example – have monarchies, the lifestyle of continental kings and queens has less pomp and ceremony than their British counter­parts. The Swedish royal family, for example, sends its children to state schools. However, most of the world’s nations exist without a monarchy at all – the majority are republics. These are states in which there is no monarch and the role of a national figurehead is filled by an elected or nominated representative. In the Republic of Ireland, the president is elected by the people for a period of seven years. In Italy, the president is elected by an electoral college made up of two houses of parliament and dele­gates from the different regions. Some supporters of this form of government, known as ‘republicans’, argue that, apart from being more democratic, it is also cheaper to run. One writer on the finances of British royalty, Phillip Hall, has estimated that the cost to the public of running the  royal family is more than five times that of the  German presidency. Modern republicanism dates back to the American (1775– 1783) and French (1789) revolutions. The idea is strongly associated with the democratic ideals of Thomas Paine (1737– 1809), author of The Rights of Man. Although there has been a long republican tradition in this country, it had largely died out by the end of the last century. Critics of the monarchy say it is out of keeping with modern democratic principles. But in general, the institu­tion of the royal family is accepted in Britain today with only limited criti­cism and has rarely faced serious challenges. 147

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Supporters of the  monarchy, known as ‘monarchists’, argue that it has been an important source of stabil­ity and political continuity in Britain. They say that the pageantry associated with the royal family brightens people’s lives and – at worst  – causes no harm. Its defenders also emphasise that the royal family indirectly gener­ate tourism and trade, so giving the nation ‘value for money’.The main objection made by repub­licans to the monarchy is not so much financial as political. According to Tony Benn. the Labour MP and former cabinet minister, the monarchy ‘is actually an elaborate cover for a struc­ture of unaccountable executive power which is absolutely contrary to  all the  principles of democracy.’ The Royal Prerogative, he argues, enables prime ministers to go to war, make treaties, appoint peers, bishops and judges ‘without even pretending to consult Parliament’. In 1991, Mr Benn present­ed a Bill to Parliament that advocated the abolition of the monarchy, the first such attempt in Parliament since Cromwell’s time. Supporters of the monarchy argue that a ceremonial head of state is preferable to an elected, and potential­ly dictatorial, politician. However, republicans argue that the hereditary system (by which the monarchy passes down through the royal family) does not guarantee individual merit. Alternatives to  the  monarchy include different forms of elected presi­dency. Proposals have also been put forward in Britain (by the Labour party, for example), for an elected sec­ ond chamber to replace the House of Lords. Yet few politicians voice anti-monarchist views today, and the main parties broadly support the institution.Given the strength of royal tradi­tion in Britain it is unlikely that such ideas will be included in any party manifesto in the immediate future.

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LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Give arguments for and against monarchy, use the following phrases: 1.  Some supporters of this form of government, known as ‘republicans’, argue that … . 2.  One writer on the finances of British royalty has estimated that … . 3.  Critics of the monarchy say … . 4.  Supporters of the monarchy, known as ‘monarchists’, argue that ... . 5. Its defenders also emphasise that … . 6. The main objection made by repub­licans to the monarchy is … . 7.  According to Tony Benn … . 8.  Supporters of the monarchy argue that … . 9.  Alternatives to the monarchy include … . TASK II. a) Match the verbs with their definitions, then paraphrase the  sentences: make up to support something or someoneput forward to give or leave to people who are younger or come laterback up  to form (something) as a whole die out  to have existed sincedate back to/from to cease to exist, disappear pass down  to offer, suggest (something as an idea) for consideration. b) Use the above verbs in the following sentences: 1. We need further facts ... our statement. 2. A suitable answer has already been ... by the chairman. 3. This style of music … ten years ago. 4. The custom has been … since the 18th century. 5. The custom … the time when men wore swords. 6. Different qualities … a person’s character 7. Contained in 12 books, the Code is one of four works that … what is now called the Corpus Juris Civilis. 149

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8. If you are moved to anger by insults, you spread them abroad; if despised, they … . 9. Although the most Significant environmental crime statutes were passed in the 1970–1975, they … the late 19th century. 10. It is the Constitution’s ‘rootage in popular will’ and the doctrine of judicial review to … this will that preserved the status of the Constitution as higher law. 11. A national government is keen to … responsibilities during hard times and Government passes powers and responsibilities to  the  sub-national level on the  belated assumption that devolution means giving power, as well as responsibility, away. 12. Michael Detmold has … further arguments to show that judges necessarily have authority to invalidate statutes. TASK III. Express the same in other words: 1. Given the strength of royal tradition in Britain it is unlikely that such ideas will be included in any party manifesto in the immediate future. 2. Some supporters of this form of government, known as ‘republicans’, argue that, apart from being more democratic, it is also cheaper to run. 3. Critics of the monarchy say it is out of keeping with modern democratic principles.

TEXT 7 Referendum set to back the Queen of Australia Final poll suggests 47% will vote to retain the Queen as head of state, with 41% supporting the proposed republic and 12% still undecided. Christopher Zinn and Duncan Campbell in Sydney 150

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There was almost the taste of victory in the sausage, bacon and eggs served up for the Australian supporters of a constitutional monarchy at the exclusive American Club in Sydney yesterday morning. In their final gathering before their compatriots file to the polling booths today, they clearly believed that they will not wake up tomorrow morning to a new republic. The bright young hope of the monarchists, Julian Lesser, 23, told the breakfast that the republicans had only succeeded in dividing Australians: ‘It’s time we told them we have one of the best constitutions in the world. It’s time we told them you can buy the media, you can buy the celebrities, you can buy the politicians but you can’t buy the Australian people.’ This is the moment that Australian republicans had hoped would finally signal the Last Night of the Poms, the farewell of the ‘cultural cringe’. A few weeks ago it seemed that they had pulled it off and there was already speculation as to who might become the first president of Australia. Now the dream seems to have slipped through their fingers like the sand on Bondi beach. The final opinion polls indicate that the Yes vote for a re­public is trailing with 41% for and 47% against, with 12% undecided. It is these floaters amongst the 12.3m electorate on whom both sides are concentrating their final firepower. The republicans’ latest weapon is the US president, Bill Clinton. Footage of him toasting ‘the Queen of Australia’ at a banquet in Canberra is being used in the Yes campaign’s final television advert. The republicans hope that this will reinforce their argument that there is international confusion about who is really their head of state. Tony Blair and Robin Cook have been quoted by Australia’s former UN ambassador Richard Woolcott as saying that they think it ‘strange’ that Australia is not a republic. The Guardian poll indicating that Britons now feel Australia should be a republic has also been much reported. 151

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In final exhortations in the press, which is solidly in favour of a Yes vote, voters are being urged to take what is presented as possibly the last chance for a generation to bring in a republic. ‘Let us be forthright and confident in our choice’, yesterday’s Sydney Daily Telegraph said. The Australian, which like the Telegraph is owned by Rupert Murdoch, said: ‘To join the international legion of proudly independent states, let us vote Yes’. It went on: ‘The key issue should be whether we want to express our independence by letting slip the final symbol of our historical development and appointing our own head of state, not one appointed... by bloodline’. Senior politicians have also weighed in with final rallying cries. The prime minister, John Howard, a supporter of the No campaign, said: ‘To suggest that we have got to vote Yes to be Australian is absurd’. One of his ministers, Tony Abbott, spoke of ‘the Crown which was with us at Gallipoli, the Crown which was with us at Kokoda [where Australian troops fought the Japanese in New Guinea in the second world war], the Crown which is with our soldiers in East Timor. Voting Yes means ripping the royal out of the Royal Australian Regiment, which is currently in East Timor’. For the Yes campaign, the leader of the opposition Labour party, Kirn Beazley, said: ‘The one consequence of a No vote on Saturday is that for the foreseeable future, and we mean by that a substantial period of time, [the Queen] will continue as our head of state.’ The federal treasurer, Peter Costello, the leading republican in the conservative coalition government, said: ‘My main fear is if on Saturday Australia votes No, the country which is overwhelmingly republican in settlement will be constitutionally a monarchy’. He said he believed that Australians feel republican in their hearts and heads’. The secondary vote on a new preamble to the Constitution has all but been forgotten in the argument over the republic. The 152

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preamble which was partly composed by the only Aboriginal parliamentarian the Democrat senator Aden Ridgeway, recognises for the first time the role of Aborigines in the country. A poll yesterday showed that 40 per cent of the electorate has not read it and it is likely it could fail to pass out of confusion, although most voters, when told what it means, back it. It is this confusion, coupled with a lack of apparent excitement about the issues, that has caused the republicans’ problems. A visitor from outer space would barely be able to tell that a historic landmark in a country’s future was on the eve of being decided. Yesterday on Elizabeth Street in central Sydney, the only sign of the referendum was a bearded man carrying a placard that read ‘God vote No’ to the general indifference of passers-by. More than 200 years ago a ballad, about the convicts being transported from Britain to Botany Bay, cheerily recorded that ‘They go to an island to take special charge/ Much warmer than Britain and 10 times as large’. The temperature and the acreage remain the same. What strikes many as remarkable is that so many years later a British Queen is still, if only in name, in charge. The Republic at a glance What are Australians Voting for? Whether to establish the Commonwealth of Australia as a republic headed by a president. How would a president be chosen? Any Australian citizen would be eligible, except members of parliament or political parties. The prime minister would select a candidate, who would have to be endorsed by the opposition leader and two thirds of parliament. Who supports a republic? The opposition Labour party’s hierarchy and some ministers from the  governing liberals; many artists and intellectuals; 153

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the media and Rupert Murdoch; the urban middle class; men; the middle-aged; new Asian and European migrants. Who backs the monarchy? The prime minister and most of his ministers; people aged 18–24; over-60s; women; the bush; blue collar Labour voters; British-born migrants; the Australian army in East Timor. NOTES TO THE TEXT: Pom (austr. slang) – about the British, esp recent immigrants.

TASK I. a) Put the verbs in brackets in the proper tenseand voice forms, explain your choice in each case: 1. The bright young hope of the monarchists, Julian Lesser, 23, (to tell) … the breakfast that the republicans (to succeed) … only… In dividing Australians. 2. It’s time we (to tell) … them we have one of the  best constitutions in the world. 3.  Footage of him toasting ‘the Queen of Australia’ at a banquet in Canberra (to use) … in the Yes campaign’s final television advert. 4. Tony Blair and Robin Cook (to quote) … by Australia’s former UN ambassador Richard Woolcott as saying that they think it ‘strange’ that Australia is not a republic. 5. The Guardian poll indicating that Britons now feel Australia should be a republic (to report)… Also … much …. 6. In final exhortations in the press, which is solidly in favour of a Yes vote, voters (to urge)… . To take what (to present) … as possibly the last chance for a generation to bring in a republic. 7. The Telegraph (to own) … By Rupert Murdoch. b) Explain the difference between the two sentences: 1. Now the  dream has slipped through their fingers like the sand on Bondi beach. 154

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2. Now the dream seems to have slipped through their fingers like the sand on Bondi beach. TASK II. Rewrite the  sentences, use seem with proper infinitive forms: 1. The republicans’ latest weapon was the US president, Bill Clinton. 2. The press is solidly in favour of a Yes vote. 3. The secondary vote on a new preamble to the Constitution has been forgotten in the argument over the republic. 4.  A few weeks ago they were speculating as to who might become the first president of Australia. TASK III. Rewrite the  sentences making any necessary changes, then check against the text. 1. It is absurd to suggest that we have got to vote Yes to be Australian. To suggest that… 2. Both sides are concentrating their final fire-power on these floaters amongst the 12.3m electorate. It is these floaters… 3. The republicans’ problems have been caused by this confusion, coupled with a lack of apparent excitement about the issues. It is this confusion… 4. The fact that so many years later a British Queen is still, if only in name, in charge strikes many as remarkable What strikes many as remarkable… TASK IV. Combine the sentences, use the suggestions in brackets, make any necessary changes. Then check against the text. A poll yesterday showed that 40 per cent of the electorate has not read it. It is likely it could fail to pass out of confusion. 155

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Most voters back it. They are told what it means. (and, although, when) The following issues will help you to answer the exam question BRITISH MONARCHY and to write your essay: 1. The Queen reigns but does not rule. 2.  Arguments for and against monarchy (a. in Britain; b. in your country). 3. The functions and powers of the British Monarch today.

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TEXT 1 RISE OF ENGLISH PARLIAMENT The medieval kings were expected to meet all royal expenses private and public out of their own revenue. If extra resources were needed for some emergency, such as an expensive war, the Sovereign would seek to persuade his barons, in the Great Council, to grant an aid. During the thirteenth century several kings found that their private revenues and baronial aids were insufficient to meet the expenses of government. They therefore summoned to their Great Council not only their own tenantsin-chief but also representatives of counties, cities and towns, primarily in order to get their assent to extraordinary taxation. In this way the Great Council came to include those who were summoned by name (the tenants-in-chief) and those who were representatives of communities (the commons). The two parts, together with the Sovereign, eventually became known as ‘Parliament’ (the first official use of this term, which originally meant a meeting for parley or discussion, being in 1236). The first reign during which the King is known to have summoned knights of the counties to a council was that of Richard 1 (1189–1199). In 1254 the knights were again summoned and the sheriffs were instructed that the knights were to be elected by the counties and were to represent them in the discussion of 157

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what aid should be given to the King ‘in his great emergency’. The knights were summoned again in 1261 but by this time civil war had broken out. The leader of the victorious baronial faction, Simon de Montfort, summoned a parliament in 1264, and to another in 1265 summoned not only ‘two discreet knights’ but also two citizens to be elected by each city and borough. The 1265 Parliament, although it was summoned primarily to provide partisan support for Simon de Montfort, was the first to include representatives of the towns summoned for a general political purpose. Various other parliaments were held in the next 30 years, usually with no commons in attendance. But a meeting convoked by Edward I in 1295 to deal with a critical national emergency brought together all elements considered capable of giving help, and proved so similar to the broadly national gatherings of later centuries that it has been called the ‘Model Parliament’. There were summoned the lords lay and spiritual, two knights from each county, two citizens from each city and borough, and (for the first time) lesser clergy – making some 400 in all. ‘What touches all’, the writ of summons said, ‘should be approved by all’. NOTES TO THE TEXT: Revenue – money that the government receives from tax. Richard I, the Lion Heart, or Coer de Lion – King of England (1189–1199) Spent a lot of time fighting in the Crusades. Borough – originally it was a fortified town; later, a town entitled to send a representative to Parliament. An area of local government abolished as such (except in Greater London) by the Local Government Act 1972. Lay – not clerical; not trained in a particular subject (Gr. laos = the people)

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Match the verbs from the right and the nouns from the left to get the phrases used in the text, use them in your own sentences. 1. to grant/ to give 158

a. one’s assent

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2. to meet 3. to persuade 4. to get 5. to summon 6. to hold 7. to deal with

b. barons c. expenses d. emergency e. Parliament f. aid g. barons/knight

TASK II. Provide events for the following years: 1189–1199 – 1236 – 1254 – 1261 – 1264 – 1265 – 1295 – TASK III. Make up sentences which would start with the following: 1.  Great Council… 2.  Richard I… 3.  Simon de Montfort… 4.  Edward I… 5.  Model Parliament… TASK IV. Compare the old and the modern meanings of the word Parliament. 1.  – A solemn conference of all the estates of the kingdom, summoned together by the authority of the Crown, to consider the affairs of the realm. The constituent parts of the Parliament are the  Sovereign and the  three estates of the  realm, i e, the Lords Spiritual and Lords Temporal, who sit together with the Sovereign, in one House, and the Commons, who sit by themselves, in another. Mozley & Whiteley’s Law Dictionary 159

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2. The main law-making body of the UK – a combination of the sovereign, the House of Commons and the House of Lords. Martin Cutts, Making Sense of English in the Law 3.  Elected group of representatives who form the legislative body which votes the laws of a country (in the UK formed of the House of Commons and House of Lords) P.H. Collin, Dictionary of Law TASK V. a) Match the derivatives to revoke, to invoke, to evoke, to convoke, to provoke and their meanings: 1.  to be the sudden cause of (a usu. unpleasant feeling or action); 2.  to call together for a meeting; 3.  to call or bring into use or operation: (to …voke the authority of the court; to …voke the Fifth Amendment); 4.  to annul by taking back: (to …voke an offer); 5.  to produce or to call up (a memory or feeling). b) Use the above verbs in the following sentences: 1. Indeed, a refusal by Australian courts to subscribe to that general change in allegiance would … political conflict between them and the other branches of government. 2.  Were statutes made by the King alone, with the assent of his subjects, or by the King, Lords, and Commons exercising a shared legislative power? This issue … continuing debate, which contributed to civil war in the 1640s, and was not finally resolved until 1689. 3.  ‘The multitude constituted from the King, nobles, and wise men of the kingdom rules as much or more than the King alone, and on this account the King … Parliament for conducting difficult affairs’. 4. The King could confidently assume that if he complied with the common law his actions would be reasonable, except 160

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in very unusual circumstances when his absolute prerogatives might need to be … . 5. The due process clause has been successfully … to defeat retroactive invasion or destruction of property rights in a few cases. 6. The people entrusted their power to their representatives in the House of Commons, but the trust would be … , and the power revert to the people, if it were grossly abused. 7.  Given the Supreme Court’s importance to the U.S. system of government, it was perhaps inevitable that the Court would … great controversy. 8.  Unlike the dissent to United States participation in World War I, which  … several prosecutions, the dissent to United States action in Vietnam was subjected to little legal attack. 9. The king could bestow privileges on the people he favored and, being the king, he could … those privileges at any time. 10.  No one who is wise gives punishment so that past deeds may be … , but so that future deeds may be prevented. 11.  Congress must abide by its delegation of authority until that delegation is legislatively altered or … . TASK VI. Find the  passages in the  text which express the following: 1. In the middle ages the monarchs had to pay for everything out of their own pocket. 2. The Sovereign sought landlords’ consent to collect more money from his people. 3. The consent of town leaders and burgesses was necessary to raise taxes. 4. The kings were not able to  cover all governmental expenditures from their own income and landlords’ supplies. TASK VII. Comment on the last sentence of the text, agree or disagree with it: ‘What touches all should be approved by all’. 161

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TEXT 2 FORMATION OF TWO HOUSES OF PARLIAMENT The meetings of the early parliaments usually took place wherever was convenient to the ruling monarch. When the meeting was in London it was generally opened in the ‘Painted Chamber’ of the King’s palace adjoining the West Minster (that is to say Westminster Abbey, the rebuilding of which had been begun by Edward the Confessor before the Norman Conquest). The monarch sat on the throne at one end, surrounded by the great officers of state and with his tenants-in-chief ranged according to rank on benches at right angles to the throne. The representatives of the commons stood or knelt at the far end. After they had heard the King’s requests, the lords and commons withdrew to separate sittings to deliberate upon them; they then reassembled in one body to report their decisions through designated spokesmen (the first reference to a Speaker in the Rolls of Parliament is in 1377). At the end of the thirteenth century Parliament consisted of the King, bishops, abbots, temporal peers (earls and barons), representatives of the lower clergy, knights of the counties, citizens and burgesses, but, by the middle of the fourteenth century, a significant change in its composition had occurred. The greater barons, bishops and abbots had been drawn by community of interests into a single body. The knights regularly deliberated with citizens and burgesses. The minor clergy, finding their more appropriate place in the convocations (ecclesiastical assemblages) of Canterbury and York, from about 1330 dropped out altogether. The eventual result was two houses – one, the House of Lords, consisting of persons who attended in response to individual summonses, and the other, the House of Commons bringing together all members who, elected in counties, cities and boroughs, attended in a representative capacity. 162

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NOTES TO THE TEXT: The Painted Chamber – a hall in Westminster with battle-pieces on the walls. The Rolls of Parliament – the Archives of Parliament. Burgesses – representatives from boroughs. Convocation – an organization of church officials.

TASK I. Complete the  following statements according to the text: 1. It was the Monarch who decided… 2.  Lords and Commons met separately to debate… 3. Their elected spokesmen announced… 4. The membership of Parliament had drastically changed by… 5. It is in 1377… 6. In the late thirteenth century Parliament included… 7.  Finally the two Houses and the King constituted … TASK II. Work in pairs. Put 5 questions to each paragraph. Ask them your partner. Answer your partner’s 5 questions. TASK III.

a) Use the verbs in brackets in their proper forms.

b) Translate the text: Increasing Parliamentary Influence The commons (summon) to Parliament in the first place because the ruling monarch needed financial aid and support, and, as time (go on), began to realise the strength of their position. By the middle of the fourteenth century the formula (appear) which in substance was the same as that used at the present day in voting supplies to the Crown – namely, ‘by the Commons with the advice of the Lords Spiritual and Temporal’; and in 1407 Henry IV definitely pledged that thenceforth all money grants should (consider) and (approve) by the Commons before (consider) by the House of Lords. 163

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A similar advance (make) in the legislative field. Originally legislation (emanate) from the  King with the  assent of his councilors only. But, (start) with the  right of individual commoners to  present petitions, the  Commons as a body gained, first the right to submit collective petitions, and later, during the fifteenth century, the right to participate in (give) their requests – their ‘Bills’ – the form of law. The costs of government and war compelled the King to turn with (increase) frequency to Parliament for supplies. Before supplies (grant) he was often called upon, through petitions, for a redress of (stipulate) grievances; as this usually resulted in some kind of legislation, the law-making power, as well as the taxing power, gradually passed, into parliamentary hands. Even the powerful Tudor monarchs made full use of Parliament in (secure) assent for their wide-ranging domestic and foreign policies.

TEXT 3 LEGAL HISTORY OF PARLIAMENT The history of the House of Lords can be roughly divided into four periods corresponding to the main periods of the British constitutional history. We should remember though that historical generalisations simplify reality. 1. The pre-Tudor formative period, which saw the Lords evolve from part of the royal court to a separate body, later coupled with the Commons. 2.  From the mid-fifteenth century until 1688, which saw the advance of the Commons and which planted the seeds of parliamentary supremacy. 3. The seventeenth to early nineteenth century, during which the Lords still had considerable power and influence, playing a 164

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key role in the classical theory of mixed government, a role that has echoes today. 4. The mid-nineteenth century to the present day, which saw the rise of democratic ideas and made the House of Lords less important. Indeed its whole existence has become questionable. Some regard the House of Lords as at best a useless anachronism, at worst a bastion of undeserved privilege and a reactionary political force. Others regard the Lords as capable of providing a useful if limited political function. As with other central institutions of the British constitution, the  House of Lords originated as part of the  apparatus of monarchy. The Lords were originally the great landowners of the realm ‘tenants-in-chief’, created as such by the monarch and transmitting to their descendants their property and the titles and power that went with it. Inheritance was originally based upon the feudal system under which every landowner owed allegiance to a superior landlord, with the monarch at the apex of the pyramid. The House of Lords was the King’s Great Council of advisers, summoned and dismissed by the King. There was also an ‘inner’ council of close advisers which developed into the Privy Council. The ‘pure’ feudal system did not survive the  thirteenth century. Land became freely disposable and wealth, and therefore power, could be amassed through commerce and professional skills. This made it possible for people other than the hereditary landowners to aspire to political power, and led to the rise of the House of Commons. It is worthwhile noting that as a result of the reforms in land law that were made in the nineteenth century succession to peerages became governed by different rules from succession to the land itself. So even if we believe that property-holding is a legitimate reason for conferring political power (and many argue that this remains a key assumption of the constitution although not to be found in any legal rule), the modern House of Lords is difficult to explain 165

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on this basis. Nevertheless the history of the House of Lords reminds us that the development of the constitution is tied up with the development of the land law. During the medieval period, law-making power lay mainly with the judges who in theory were supposed to declare the general and local customs of the realm (the common law). From the time of Magna Carta (1215) it was established that the royal power was limited by the rights of the tenants-in-chief, supposedly derived from custom. Laws were then, as now, enacted formally by the monarch but from the thirteenth century it was believed that laws made on the advice of Parliament could authoritatively declare the common law. ‘The word ‘Parliament’ which in origin meant merely a parley or conference entered into official language about the middle of the thirteenth century. It described formal conferences between the King and his officials and a number of the tenants-in-chief summoned for that purpose’. At that time the House of Commons, representing lesser groups of property-owners, was relatively insignificant but by the  sixteenth century the  royal practice of relying upon the Lords alone was rejected by the Lords themselves in favour of including the Commons. This spelt the beginning of a new role for the House of Lords and also the end of the medieval monarchy. During the  reformation period the  two Houses worked harmoniously together and had a close relationship with the common law courts, an important pointer to the future. Their practice of deciding by majority vote made them an efficient decision-making body. NOTES TO THE TEXT: House of Tudor ruled England from 1485 to 1603. The dynasty began when Henry (later Henry VII) overthrew Richard III in 1485. It ended with the death of Elizabeth I in 1603. Tenant-in-chief – in feudal and old English law one who held or possessed lands immediately under the king, in right of his crown and dignity. 166

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LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Make up adjectives from the following nouns and group them according to the suffixes used: power, influence, theory, use, force, function, monarchy, system, wealth, commerce, skill, law, custom, origin, office, purpose, favour, practice, history, period, body, parliament, pyramid, reason, basis, judge, right, king, decision TASK II. a) Match the  words on the  right with their synonyms on the left: summon grant originate as develop dismiss gather evolve transfer enact dissolve transmit adopt confer appear as aspire aim at b) Use the verbs conferred, enacted, dismissed, evolved, aspires, granted, enact, conferred, transfer, enacted, developed, enacted, granted, to dismiss, adopted, summoned, originated, develop, dismiss, gathered in the following sentences. c) Translate the sentences: 1.  With the consent of his subjects in Parliament, the King exercised an absolute power to make law, … by and subject only to God. 2. The King in Parliament represented the Church as well as the temporal realm: ‘the parliament ... together represents the estate of all the people within this realm, that is to say of the whole catholic church thereof.’ 3.  Medieval jurists and political writers … the theory that sovereignty is the supreme authority in the state. 167

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4.  Privy Council held that, when the Imperial Parliament … power to colonial legislatures to make laws for ‘the peace, welfare and good government’ of their colonies, it … them power of the same nature, as plenary and absolute, as its own power. 5.  Give to the Judges a power of annulling Parliament’s acts; and you … a portion of the supreme power from an assembly which the people have had some share, at least, in choosing, to a set of men in the choice of whom they have had not the least imaginable share: to a set of men appointed solely by the Crown. 6.  Some law-makers, such as municipal councils, which make by-laws, exercise an authority … on them by a higher law, made by a superior law-maker. 7.  John Toland insisted that the legislature in any age had as much right to make new laws as any previous one, and that ‘to … a law for posterity, is no more, than recommending a thing to their choice; since if they think there’s a reason for it, they can no more be divested of the power to repeal any law … by their ancestors, than we are of repealing such laws as have been … by ours’. 8.  Parliament might have to demand that the judges be … , and replaced with more compliant ones willing to overrule their predecessors’ decision. 9. Democracy … to … important civic virtues: to reduce feelings of powerlessness, enhance self-confidence and selfrespect, and promote education, a broadening of horizons, and an appreciation of other points of view. 10. The sovereignty of Parliament … from that of the medieval English King. 11. It was often argued that if legislators violated a constitution … by the people, the only lawful remedies were for the people … them at the next election. 12.  A government and Parliament are more likely to use their powers to appoint, … , and threaten judges, in order to reduce them to submission. 168

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13. The notion that the magnates were the King’s partners or companions in government … in the  traditional feudal relationship between lord and vassal. 14.  After Richard III was defeated and killed at Bosworth, Henry VII quickly … a Parliament which … yet another Act of Succession (1485) to resolve ‘all ambiguities and questions’. TASK III. a) Match the  words on the  right with their antonyms on the left: insignificant unimportant efficient subordinate questionable informal superior important separate useless official unfriendly considerable undisputable harmonious inferior b) Use the adjectives useless, superior, separate, considerable, superior, harmonious, inferior, superior, harmonious, questionable, superior, insignificant, efficient, superior, official, inferior in the following sentences. c) Translate the sentences: 1.  Juror’s impartiality became … during trial. 2. The orthodox view is that a judgment lays down a rule or principle that is binding on … courts in all cases of the same kind. 3. The King was restrained not ‘by the … and compulsive part of the laws, but by the exemplary only’. 4.  Federal law preempts more exacting state standards, even though both could be complied with and state standards were … with purposes of federal law. 5.  Should the legislators ‘think fit positively to enact a law, there is no power which can control them. If a Court may take 169

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it upon them to dispense with, and act in direct violation of a plain and known law of the State, all other Courts either … or … may do the like; and the Legislatures become … ’. 6.  Parliament was not an institution … from the King; it was convened by the King to advise and assist him in transacting the affairs of the realm, and its statutes were acts of the King and community jointly. 7.  As an employer, government is interested in attaining and maintaining full production from its employees in a … environment. 8. In common law cases judges in … courts have … authority to change the law according to their moral convictions. 9.  Of course, a change in a fundamental legal rule has to start somewhere: someone has to initiate the requisite change in the … consensus that constitutes it. 10. It seems that, although no person was equal or … to the King, the combined authority of the King and earls was … to the authority of the King alone. 11. The immediate trigger of civil war in 1642 was a dispute between the two Houses of Parliament and the King concerning their respective constitutional authority. Neither the  King nor the two Houses would have accepted that the judges had authority to resolve their dispute, since both claimed to possess an authority … to the judges’. 12.  ‘Nothing can be more scornful and …, than the worthless group  of people, when they are instigated against a king, who is supported by the two branches of the legislature’. TASK IV. Translate the  following sentences and define the meanings of the derivatives confer, conference: 1. So even if we believe that property-holding is a legitimate reason for conferring political power (and many argue that this remains a key assumption of the constitution although not to be 170

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found in any legal rule), the modern House of Lords is difficult to explain on this basis. 2. ‘The word ‘Parliament’ which in origin meant merely a parley or conference entered into official language about the  middle of the  thirteenth century. It described formal conferences between the King and his officials and a number of the tenants-in-chief summoned for that purpose’. In Latin confer meant ‘to compare’, whence the  present meaning of the abbreviated form of compare, namely cf. The unabbreviated form confer no longer has this meaning; today it means 1) (intransitively) ‘to come together to take counsel and exchange views’ – to confer with or 2) (transitively) ‘to bestow, usually from a position of authority) – to confer … on. TASK V. Use who, which, that in the following: 1. The great landowners transmitted to their descendants their property and the titles and power … went with it. 2. Inheritance was originally based upon the feudal system under … every landowner owed allegiance to a superior landlord. 3. There was also an ‘inner’ council of close advisers … developed into the Privy Council. 4. During the medieval period, law-making power lay mainly with the judges … in theory were supposed to declare the general and local customs of the realm (the common law). 5. The word ‘Parliament’ … in origin meant merely a parley or conference entered into official language about the middle of the thirteenth century. 6. The period from the  seventeenth to  early nineteenth century, during … the Lords still had considerable power and influence, playing a key role in the classical theory of mixed government, a role … has echoes today. 7. It is worthwhile noting that as a result of the reforms in land law … were made in the nineteenth century succession 171

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to peerages became governed by different rules from succession to the land itself. TASK VI. Explain the following QUOTATION: Parliament itself would not exist in its present form had people not defied the law. Arthur Scargill, in Select Committee on Employment,  2 April 1980

TEXT 4 BRITISH PARLIAMENT TODAY The system of parliamentary government in the United Kingdom is not based on a written constitution, but is the result of a gradual evolution going back several centuries. The essence of the system today, as it has been for more than two centuries, is that the political leaders of the executive are members of the legislature and are responsible to an elected assembly. The Government’s tenure of office depends on the support of a majority in the elected House of Commons, where it has to meet informed and public criticism by an Opposition capable of succeeding it as a government should the electorate so decide. Modified to suit varying local environments, British parliamentary practice has exercised a profound influence on the development of parliamentary institutions overseas, both in the other countries of the Commonwealth and in developing foreign countries. The supreme legislative authority in the United Kingdom is the Queen in Parliament, that is to say, the Queen and the two Houses of Parliament – the House of Lords and the elected House of Commons. The three elements of Parliament are outwardly separate; they are constituted on different principles; they do different work in 172

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different places; and they meet together only on occasions of symbolic significance such as the coronation, or the State opening of Parliament when the Commons are summoned by the Queen to the House of Lords. As a law-making organ of State, however, Parliament is a corporate body and with certain exceptions cannot legislate without the concurrence of all its parts. By the  passing of the  Parliament Act 1911 the  life of a Parliament was fixed at five years (although it may be dissolved and a general election held before the expiry of the legal term). Because it is not subject to the type of legal restraints imposed on the  legislatures of countries which have formal written constitutions, Parliament, during this period, is virtually free to legislate as it pleases: generally to make and unmake any law; to legalise past illegalities and make void and punishable what was lawful when done, and thus reverse the decisions of the ordinary law courts; and to destroy firmly established conventions or turn a convention into binding law. If both Houses agreed, it could even prolong its own life beyond the normal period of five years without consulting the electorate. In other words, Parliament is sovereign. The two-chamber system is an integral part of British parliamentary government. The House of Lords and the House of Commons sit separately and are constituted on entirely different principles, but the process of legislation is the duty of both Houses. Since the beginning of Parliament, the balance of power between the two Houses has undergone a complete change. The process of development and adaptation, which has been going on by fits and starts for several centuries, has been greatly accelerated during the past 80 years or so. In modern practice the centre of parliamentary power is in the popularly elected House of Commons, but until the twentieth century the Lords’ power of veto over measures proposed by the Commons was, theoretically, unlimited. The Parliament Act 1911 curtailed the veto of the Lords 173

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to a period of two years for Bills passed by the Commons in three successive sessions (whether of the same Parliament or not), and abolished the veto altogether in connection with Bills dealing exclusively with expenditure or taxation. These limitations to  the  powers of the  House of Lords (further strengthened by the Parliament Act 1949, which reduced the delaying powers of the Lords from two years to one for Bills passed by the Commons in two successive sessions) are based on the belief that in respect of legislation the principal function of the modern House of Lords is revision and that its object is to complement the House of Commons and not to rival it. NOTES TO THE TEXT: The Commonwealth – a voluntary organization of autonomous states which had been imperial possessions of Britain. Its head is the reigning British monarch. It was formally established by the  Statute of Westminster (1931) and meets frequently to discuss matters of mutual interest and concern. While most states, on independence, chose to become members of the Commonwealth, three have left (Irish Republic, 1949; Pakistan, 1972; Fiji, 1987). By fits and starts – repeatedly starting and stopping.

LANGUAGE PRACTICE AND COMPREHENSION CHECK ACTIVE VOCABULARY

executive, authority, subject, summon, summons, legislature, legislation, legislative, legislate, void, convention, legalise, binding, succeed, body, successive, veto, succession, principal, principle, election TASK I. a) Use GLOSSARY or a law dictionary to define the words from ACTIVE VOCABULARY. b) Use the words legislation, subjects, executive, void, subjects, succession, legislator, legislation, binding, veto, election, void, legislation, principal, summoned, legislatures, legislate, principles, subject, legislative, subjects, elections, to legislate, executive in the following sentences. 174

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c) Translate the sentences: 1. The … branch of government is responsible for effecting and enforcing laws. 2.  Legally, therefore, the House of Commons could concur with the king and the peers in defeating the … ends for which it is elected and appointed. 3. The predominant view was that abuses of power should be cured by fresh …: they ‘believed in the supremacy of Parliament, provided it was truly representative and properly elected’. 4. Tudor Parliaments also dealt with other matters of fundamental constitutional importance, including the  … to the throne. 5. The clergy agreed that all future ecclesiastical … would be subject to royal … , and that all existing canons would be reviewed, and … to repeal, by royal authority. 6. The judges of the realm by the fundamental law of England have power to determine which Acts of Parliament are … and which are … . 7.  Previously, parliamentary and popular sovereignty had rarely been considered rivals, because of the ancient fictions that Parliament represented all … , and was incapable of acting against their interests. 8.  Common lawyers sometimes spoke of statutes contrary to natural law being ‘…’. 9.  Parliament enacted … appropriating the  lands of the monasteries. The Statute of Uses (1536) and the Statute of Wills (1540), ‘transferring to the King the lands of the lesser monasteries brought about a fundamental change to the law of real property. 10.  At a meeting of leading clergy and lawyers in October 1530, a majority advised Henry VIII that Parliament could not authorize the Archbishop of Canterbury to grant Henry’s divorce in the face of papal opposition. Later, doubts were raised in Parliament itself as to its competence … with respect to spiritual matters. 175

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11.  Although Montague depicts the statute as a piece of conveyancing, rather than as genuine … , on another occasion, he clearly thought of Parliament as a … with respect to rights in land. 12. But decisions about the common good are just what modern … are supposed to make; they, too, are expected to be governed by fundamental, abstract … of political morality that are not judicially enforceable. 13.  Were statutes made by the King alone, with the assent of his … , or by the King, Lords, and Commons exercising a shared … power? 14. The Church possessed a divinely ordained power to … in ecclesiastical matters. 15.  Parliament derived its authority from the community as a whole, as well as from the King who … it. 16.  An Australian judge said in 1862 that the United Kingdom Parliament had ‘unlimited’ and ‘despotic’ powers over its … . 17. Dicey argued that in extraordinary situations of internal disorder or war, legal rights must sometimes be violated to protect the public interest from irreparable harm. The … might have to break the law ‘for the sake of legality itself’ and then seek an Act of Indemnity from Parliament. 18. The electors delegated their share of the sovereign power, other than their power of …, to their representatives ‘absolutely and unconditionally’. TASK II. a) Find the verbs in passive forms in the text and translate the sentences. b) Put the verbs in brackets in passive forms and translate the sentences: 1. The doctrine of parliamentary sovereignty … long (regard) as the most fundamental element of the British Constitution. 176

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2. This doctrine … now (criticise) on historical and philosophical grounds and critics claim that it is a relatively recent invention of academic lawyers that superseded an earlier tradition in which Parliament’s authority … (limit) to common law. 3. It … sometimes (argue) that even if the doctrine … well (establish), it remains subject to judicial law-making, precisely because it is a common law rule, established by judicial decisions. 4. But recently the doctrine … (challenge), by judges and academic lawyers in the United Kingdom, New Zealand, and Australia. 5. But no attempt … (make) to defend the doctrine against the proposal that it should … (overturn) by the formal adoption of a judicially enforceable Bill of Rights. 6. It … (say) that Parliament is able to enact or repeal any law whatsoever, and that the courts have no authority to judge statutes invalid for violating either moral or legal principles of any kind. 7.  When Parliament’s authority … (describe) as ‘absolute’, it … (treat) as a supreme court from which there was no appeal, rather than as a sovereign legislature in anything like the modern sense of the term. 8.  Sir Stephen Sedley has suggested that the  doctrine of parliamentary sovereignty … (replace) by ‘a new and still emerging constitutional paradigm’, consisting of ‘a bi-polar sovereignty of the  Crown in Parliament and the  Crown in the courts’. 9.  Judges can change the common law, but because it is subordinate to  statute law, their decisions are always liable (overturn) by Parliament. 10.  Parliament … (entitle) to override much of the common law, but not its most fundamental principles, because they are the ultimate source of its own authority. 11. The argument that the  doctrine of parliamentary sovereignty is a matter of common law, dependent on judicial 177

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recognition and is … (find) in judicial decisions … frequently (affirm) by judges since 1871, but it … rarely (mention) in judgments before then. 12. Two mistakes … sometimes (make) when parliamentary sovereignty  … (think) to rest on judicial acceptance alone, rather than a consensus among senior legal officials in general. 13. It … sometimes (argue) that Parliament’s legal authority to alter a truly fundamental constitutional principle, or to enact a very unjust law, … not yet … directly (test) in the courts. 14. The Human Rights Act 1998 … (criticize) for providing a weak protection of human rights. 15. Dicey defines ‘law’ as ‘any rule which … (enforce) by the courts’. 16. The principle then of Parliamentary sovereignty may, looked at from its positive side, … thus (describe): Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies an existing law, … (obey) by the courts. 17.  A legislature is sovereign provided that its law-making authority … (not limit) in any substantive respect, even if it … (bind) to exercise its authority according to requirements of a purely procedural or formal kind. TASK III. Explain or translate the following phrases: 1. British parliamentary practice; 2. To meet informed and public criticism by an Opposition; 3. The State opening of Parliament; 4. Before the expiry of the legal term; 5. To legalise past illegalities; 6. In two/three successive sessions; 7. The delaying powers of the Lords. TASK IV. Use the words from Active Vocabulary to complete the following sentences: 1. There are plans to … against computer-related crimes, 178

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2. Two … sessions of Parliament adopted new laws on terrorism. 3. The … is an institution that has power to make or change laws. 4. The Prince of Wales is to … the Sovereign when he or she dies. 5. The part of the government responsible for making sure that new laws are done is called the … . 6. The knights were first … by King Richard I. 7. They all were served … . 8.  When a contract has no legal effect it is called null and … . 9. The decisions of the House of Lords are … on lower courts. 10. The president … a new tax increase on gasoline. TASK V. Translate the following sentences paying attention to the meanings of the word ‘authority/authorities’: 1.  Jurisdiction has been defined as the authority of the court to hear and determine cases. 2.  Certain legal writers hold that there is no world authority with power to enforce the rules of laws, and that, as public international law is incompatible with national sovereignty, the  essential characteristics of law are absent. 3.  Administrative law determines the  legal rights of a private citizen whose house a local authority intends to acquire compulsorily. 4. There are over 300.000 reported decisions which lawyers have to study in order to ascertain what the law is, and to unearth and cite some of them as what is called ‘authority’ in the cases they have to conduct. 5.  Police officers are not allowed, in the absence of written authority, to search a person before arrest. 6.  Education for those in custody in England and Wales is provided by local education authorities. 7. The validity of an Act of Parliament that has been duly passed legally promulgated and published by the proper authority cannot be disputed in the law courts. 179

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8. The House of Lords also exercises judicial authority over claims of peerage. 9. Members are usually appointed by the minister concerned with the subject, but other authorities (for instance, the Crown and the Lord Chancellor) have the power of appointment. 10. The police were acting on the  authority of the  City Council. TASK VI. Give English equivalents of the word ‘body’ in the following sentences: 1. The Council is a governing body of the town. 2.  Government is a public body. 3. There is now a substantial body of opinion that opposes this law. 4. The House of Commons is a legislative body. 5. The murderer buried the dead body in the garden. 6. The main body of the  document must be studied thoroughly. 7.  A corporate body has legal personality. TASK VII. a) Read the text and discuss advantages and disadvantages of secondary legislation. b) What body scrutinises secondary legislation in your country? Advantages of Secondary Legislation It is important to  remember the  advantages which Government, Parliament and society derive from the existence of delegated powers. Ministers and other statutory authorities are able to legislate on detailed points within the limits of the original delegated power. In consequence: • Bills can be restricted to their essentials. There is a saving in Parliamentary time, Parliament can concentrate on 180

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the key principles underlying legislation, and Acts can be better understood by those who may be affected; • there is no need to  wait until the  fine detail of every practical implication of a policy has been worked out before legislating. Such details can be filled in later; • there is less need for corrective amendments to primary legislation. Secondary legislation can be amended or replaced much more easily than primary legislation; • it allows for flexibility to adapt to changing circumstances over time, without the delay which would result from having to wait for a suitable Bill; and • it is easier to tailor the legislative requirements in the parent Act to the different circumstances which may apply in particular cases. In addition, the operation of the Human Rights Act may well reveal that much potential incompatibility between the European Convention on Human Rights (ECHR) and United Kingdom law arises from secondary legislation. The Delegated Powers and Deregulation Committee Memorandum drew attention to this point. It argued that scrutiny of draft secondary legislation on ‘compatibility’ grounds would be highly desirable and ‘could be a very considerable task’. Obstacles to Effective Scrutiny Parliament does have opportunities to consider the merits of those Statutory Instruments which are subject to affirmative or negative resolution procedure, but there remain a number of obstacles to effective scrutiny. Statutory Instruments cannot be amended. Affirmative resolution instruments can only be approved or rejected. As they rarely raise major issues of principle, there is a natural reluctance to go to the length of rejecting the whole Instrument when most of it gives rise to no cause for concern. 181

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There is no realistic prospect of a Statutory Instrument being defeated in the House of Commons. Although in 1994 the House of Lords (on a motion from Lord Simon of Glaisdale) asserted its ‘unfettered freedom to vote on any subordinate legislation’, in practice there has (so far) been no serious challenge since 1968 to the convention that the House of Lords does not reject Statutory Instruments. Nevertheless, members of the House of Lords have found various ways in which to indicate their concern about particular Statutory Instruments. These have occasionally resulted in Ministers adjusting their proposals. Very little time is made available for debates on Statutory Instruments in the House of Commons. Affirmative resolution instruments are routinely referred to  Standing Committees, rather than debated on the floor of the House. The Committees cannot consider amendments or debate substantive motions: They are required to report that they have ‘considered’ the Statutory Instrument, which is then moved formally in the House. Negative resolution instruments may be ‘prayed against’ within 40 sitting days but only a minority of those ‘prayed against’ are referred (by agreement between the Party Whips) to a Standing Committee, where in any case the same conditions apply. The pressure of time is less acute in the House of Lords. Affirmative reso­lution instruments and all ‘prayers’ against negative resolution instruments are debated, and all are taken on the floor of the House; but they have accounted for only about 5 per cent of the time of the House in recent years. Negative resolution instruments usually come into effect about 40 days after being made and laid before Parliament. Members may therefore feel that there is little point in seeking to negate something which has already come into effect, especially given all the attendant practical and legal difficulties. The sheer volume of Statutory Instruments and their level of detail. This makes it difficult for any individual MP or member of the second chamber to get to grips with the substantive issues. 182

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TASK VIII. a) Read the text, determine the key message in each paragraph. b) Summarise the text in 150–200 words. A. The doctrine of parliamentary sovereignty has long been regarded as the most fundamental element of the British Constitution. In his classic exposition of the  doctrine, A.V. Dicey described it as ‘the dominant characteristic of our political institutions’, ‘the very keystone of the law of the constitution’. It is said that Parliament is able to enact or repeal any law whatsoever, and that the courts have no authority to judge statutes invalid for violating either moral or legal principles of any kind. Consequently, there are no fundamental constitutional laws that Parliament cannot change, other than the doctrine of parliamentary sovereignty itself. As a political scientist has put it, ‘there is a sense in which the British Constitution can be summed up in eight words: What the Queen in Parliament enacts is law’. B. Until recently, there has been little doubt about the core of the doctrine, that the courts have no legal authority to invalidate statutes on the ground that they are contrary to fundamental moral or legal principles. As a leading critic of the doctrine concedes, among English lawyers ‘it is hard to question Dicey’s doctrine without appearing to lose touch with practical reality. Until very recently, it was almost unthinkable that the courts would ever refuse to apply an Act of Parliament’. C. But recently the doctrine has been challenged, by judges and academic lawyers in the United Kingdom, New Zealand, and Australia. Sir Robin Cooke, the President of the New Zealand Court of Appeal, was the first eminent judge to do so publicly. After initially expressing ‘reservations’ about the  sovereignty of the  New Zealand Parliament, he came to the view that ‘some common law rights presumably lie so 183

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deep that even Parliament could not override them’. Since then, some other judges in New Zealand, Australia, and Britain have either endorsed that view, or agreed that it is arguable. D. Recently, the High Court of Australia expressly deferred judgment on the  issue: whether the  exercise of legislative power by a State Parliament ‘is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law is another question which we need not explore’. In Britain, several senior judges have explored the question, in extra-judicial speeches. The Master of the Rolls, Lord Woolf of Barnes, has asserted that there are ‘limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold’. Sir John Laws has argued that true sovereignty belongs not to Parliament, but to the ‘unwritten constitution’, which includes fundamental principles, such as democracy and freedom of expression, that the judiciary can enforce, if necessary, by invalidating statutes. Without going that far, Sir Stephen Sedley has suggested that the doctrine of parliamentary sovereignty has been replaced by ‘a new and still emerging constitutional paradigm’, consisting of ‘a bi-polar sovereignty of the  Crown in Parliament and the Crown in the courts’. E. Growing doubt about parliamentary sovereignty among New Zealand, Australian, and British judges has coincided with increasing judicial activism in all three countries. In public law, this has mostly involved the invalidation of actions of the executive government, but also, in Australia, the purported discovery of ‘implied rights’ in the written Constitution. F. For causes that are obscure, an increase in both the ability and willingness of judges to  control the  other organs of government appears to be a worldwide phenomenon. Despite occasional complaints, parliaments and executives in Britain, Australia, and New Zealand have generally acquiesced in, or even tacitly approved of, the expansion of judicial review of 184

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executive actions, which does not fundamentally threaten their powers as long as the parliaments retain their capacity to control or even reverse it. But that depends on continued acceptance of the doctrine of parliamentary sovereignty. When judges question the doctrine, the potential threat posed by judicial activism to the powers of the legislature and executive is much more serious. G. What is at stake is the  location of ultimate decisionmaking authority the right to the ‘final word’ in a legal system. If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to  allow Parliament to  infringe unwritten rights, they would be claiming that ultimate authority for themselves. In settling disagreements about what fundamental rights people have, and whether particular legislation is consistent with them, the judges’ word rather than Parliament’s would be final. Since virtually all significant moral and political controversies in contemporary Western societies involve disagreements about rights, this would amount to  a massive transfer of political power from parliaments to judges. Moreover, it would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum. It is no wonder that the elected branches of government regard that prospect with apprehension. H. This apprehension has been voiced in the  United Kingdom Parliament. In 1996, Lord Irvine of Lairg, at that time the Shadow Lord Chancellor, initiated a debate in the House of Lords concerning the  relationship between the  three branches of government. In the presence of Lord Woolf and Lord Cooke of Thorndon (formerly Sir Robin Cooke of New Zealand), he criticized statements by senior judges challenging the  doctrine of parliamentary sovereignty as ‘unwise’, and disparaged the alternative they advocated as ‘obsolete’. The Lord Chancellor, Lord Mackay, and Lord Wilberforce also 185

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strongly affirmed Parliament’s sovereignty. When the Human Rights Bill was introduced into the House of Lords in 1997, the accompanying White Paper stated that a power to invalidate Acts of Parliament is something ‘which under our present constitutional arrangements they [the judges] do not possess, and would be likely on occasions to draw the judiciary into serious conflict with Parliament. There is no evidence to suggest that they desire this power, nor that the public wish them to have it’. I. The doubts expressed by judges such as Lord Woolf and Sir Robin Cooke are strongly supported and, no doubt, partly inspired by the work of some academic lawyers who have criticized the doctrine of parliamentary sovereignty on both historical and philosophical grounds. ‘Modern assertions of unlimited sovereignty’, says one leading critic, ‘rest on a misunderstanding of constitutional history’. The main historical criticism is that the doctrine is a relatively recent invention of academic lawyers, particularly Sir William Blackstone, John Austin, and Dicey, influenced by the tradition of legal positivism founded by Thomas Hobbes, who erroneously argued that there is necessarily a sovereign law-maker at the foundation of every legal system. The doctrine was successfully foisted upon a gullible legal profession, which abandoned the traditional common law understanding that law-making was subject to fundamental legal principles. Or so it is alleged, by critics who disparage the doctrine as an authoritarian, legal positivist ‘dogma’ that misconceives the real foundations of the British constitution. J. The critics attempt to clarify those real foundations through philosophical as well as historical analysis. The doctrine of parliamentary sovereignty maintains that Parliament has ultimate authority to determine what the law shall be. It is the responsibility of judges to declare what the law is, but in doing so, they are bound to accept every Act of Parliament as valid law. They can change the common law, but because it is subordinate to statute law, their decisions are always liable to be 186

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overturned by Parliament. The critics reject this doctrine as a misunderstanding of the relationship that must logically hold between statutory and common law. They argue that since it is the responsibility of judges to declare what the law is, the extent of Parliament’s lawful authority to legislate is necessarily a matter for the judges to determine. In other words, it is necessarily a matter of common law, which is a body of judicial decisions based on fundamental principles such as justice and the rule of law. It follows that Parliament is entitled to override much of the common law, but not its most fundamental principles, because they are the ultimate source of its own authority.

TEXT 5 COMPOSITION OF PARLIAMENT Parliament under Reform Reform of the House of Lords is an issue which has been on the political agenda for many years. Since 1997 the United Kingdom government has been engaged in reforming the House of Lords. The history of reform before 1997 includes amongst others the Parliament Act 1911, the Parliament Act 1949, the Life Peerages Act 1958 and the Peerage Act 1963. The Labour Government of 1997 was committed to extensive reform of the  Lords and in 1999 introduced the  House of Lords Bill, which proposed excluding all hereditary Peers from the House as the ‘first stage’ of plans to alter the composition and powers of the Lords. This was debated in the Commons and passed by a majority of 340 to 132 in March 1999, but experienced stronger opposition in the Lords. Eventually, a compromise was reached  – known as the ‘Weatherill amendment’ after the former Commons Speaker, 187

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Lord Weatherill, who proposed it – whereby 92 hereditary Peers were allowed to remain in the Lords on a temporary basis until ‘second stage’ proposals were agreed. The House of Lords Act thus reduced membership of the Lords from 1,330 to 669 Members, the majority of whom were life Peers. In January 2000 Lord Wakeham’s Royal Commission on the Reform of the House of Lords recommended a partiallyelected House. The Government responded with a White Paper containing various proposals involving an elected element, but both Houses of Parliament failed to agree on a way forward when these were debated in February 2003. Following the publication of another White Paper in February 2007, both Chambers again debated a similar series of motions in March 2007. This time, the Commons backed an all-elected Upper House, while the  Lords voted for an all-appointed Chamber. In July 2008, the White Paper ‘An Elected Second Chamber: Further reform of the House of Lords’ was published. The Government believes that there are certain principles that should underpin a reformed House of Lords, whatever its composition: •  Primacy of the House of Commons •  Complementarity of the House of Lords •  A More Legitimate House of Lords •  No Overall Majority for Any Party •  A Non Party-Political Element •  A More Representative House of Lords •  Continuity of Membership •  Separate from Peerage Membership The question of how individuals obtain a seat in the House of Lords is the most hotly debated point in all discussions on Lords reform. Detailed proposals for Lords reform were published on 17 May 2011. These include a 300-member hybrid house, of which 80% are elected. A further 20% would be appointed, and reserve space would be included for some Church of England 188

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bishops. Under the proposals, members would also serve single non-renewable terms of 15 years. Former MPs would be allowed to  stand for election to  the  Upper House, but members of the Upper House would not be immediately allowed to become MPs. Nevertheless the overwhelming majority of peers believe it would be unconstitutional for the government to create an elected chamber in the face of their objections. 80% of those entitled to sit in the Lords oppose a wholly or mainly elected upper chamber; 74% believe that it would be unconstitutional to use the Parliament Act; and 81% believe the Lords works well as it is. The Parliament Act is used infrequently to permit the Commons to enact measures without the consent of the upper house. Party leaders in both chambers selected 26 peers and MPs to sit on a committee to draw up a final proposal. The government intends to have a bill ready for the Queen’s Speech in the nearest future. NOTES TO THE TEXT: White Paper – an official report from the British government, explaining their ideas and plans concerning a particular subject before a new law is introduced. Lord Weatherill amendment – this is an amendment to the House of Lords Bill 1988–1989 moved by the late Lord Weatherill. This Bill sought to abolish the  right of hereditary peers to  sit and vote in the  House of Lords. Lord Weatherill’s amendment allowed for 92 hereditary peers to remain in the Lords. It was passed and became section 2 of the House of Lords Act 1999.

LANGUAGE PRACTICE AND COMPREHENSION CHECK ACTIVE VOCABULARY

an overwhelming majority, alter, appoint, back (v), composition of the House, continuity of membership, introduce the bill, obtain a seat, pass the bill, reach a compromise, reduce membership, reserve (adj.), serve non-renewable terms, stand for election, the most hotly debated point, underpin 189

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TASK I. Use the words from ACTIVE VOCABULARY to describe the legislative process in your country. TASK II. a) Consult a law dictionary or GLOSSARY if necessary to define the following concepts: political agenda, life Peers, non-renewable term, proposal, motion, primacy of the  House of Commons, legitimate, an elected chamber, be entitled to sit in the House, without the consent of the upper house b) Comment on the principles that should underpin a reformed House of Lords. TASK III. Use STAND and its derivatives long standing, understandable, stands, feudal understanding, to stand, notwithstanding, to stand as, standing, understand, standing, standards, understanding, stands down, withstand, stand, misunderstanding in the following sentences: 1.  … an MP a person must be aged 18 or over, a citizen of the UK, Commonwealth or the Republic of Ireland, and not disqualified. 2.  Some theorists drew upon civilian, canonist, and other writings to explain English law and government, combining the European idea that political authority was derived from the community with the feudal … of counsel and consent that had long prevailed in English practice. 3. In 1334, Chief Justice Herle explained that although the judges could not change a rule of … , the party if he wished could ‘sue in parliament to make a new law’. 4.  We can never … the institutions of mediaeval England if we consider Parliament as a ‘court of justice’ which in addition exercised other distinct powers, or as a legislature with an addendum of other duties. It is the fusion of indefinite powers which is the most fundamental fact. If Parliament exercised a 190

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fusion of judicial and legislative powers, and was supreme with respect to both, then it possessed a fusion of what we now regard as two kinds of supremacy. 5.  Many theorists deny this partly because they deny that the existence of law-making, in the modern sense, was recognized in the Middle Ages, … the ‘fusion’ of powers exercised by medieval Parliaments. 6.  Justice is every person to  do his office that he is put in according to his estate and degree, and as for this land it is understood that it … by three estates and above that one principal: that is to wit Lords Spiritual, Lords Temporal and Commons, and over that Estate Royal above, as our sovereign Lord the King. 7.  Hart has shown that legislative sovereignty can be regarded as a power constituted by rules of recognition, and therefore by fundamental laws, rather than as a power … completely outside and above the law. 8. Dicey’s … of parliamentary sovereignty, clarified so as to accommodate this distinction between legal and moral duty, was by no means novel. 9.  ‘Modern assertions of unlimited sovereignty’, says one leading critic, ‘rest on a … of constitutional history’. 10.  Each decision may extend the judges’ authority only slightly, but the eventual cumulative effect is a massive expansion far beyond what was originally intended. For entirely … reasons, the temptation to stretch their authority to remedy what they perceive to be injustice can be ‘more than judicial flesh and blood’ can … . 11.  A government and Parliament prepared to flout minimum … of justice or democracy are unlikely to have sufficient respect for the rule of law to meekly submit to judicial correction. 12.  Former MPs would be allowed ... for election to the Upper House, but members of the Upper House would not be immediately allowed to become MPs. 191

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13. In a general election, all constituencies become vacant and a Member of Parliament is elected for each from a list of candidates … for election. 14. If a person … as an MP a by-election is held in that constituency alone to find a new MP for that area. 15.  Speakers still … in general elections. b) Translate the sentences. TASK IV. Fill in the blanks with prepositions if necessary. Check against the text: To be … the political agenda, to be engaged … reforming the  House of Lords, to  be committed … extensive reform, to exclude peers ... the House, … a temporary basis, to vote … the bill, … these proposals, single terms ... 15 years, to sit … a committee. TASK V. 2–3 sentences:

Read the text and summarise each paragraph in The Constitutional Context

1. Two central features of the present constitutional settlement in the United Kingdom are simple, at least in theory, and wellknown. One is the  sovereignty of Parliament. The other is the absence of a written constitution. 2.  Legislation in the United Kingdom can be passed only with the authority of the Crown in Parliament. Moreover, although elements of the constitution have been progressively set out in legislation, there remains no formal constitutional check on Parliament’s sovereign authority. The Human Rights Act 1998, for example, is carefully drafted to preserve Parliamentary sovereignty: judicial declarations of incompatibility do not strike down primary legislation and the fast-track procedure for 192

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passing remedial orders requires the authority of Parliament. There is therefore no judicial remedy against Parliament’s clearly expressed will. It follows that the will of Parliament must be the product of careful consideration and debate. Procedures need to be in place to ensure that when Parliament acts with a will it does not act wilfully. 3.  Several other features of the present constitutional settlement are also relevant. The House of Commons, because it is directly elected by the whole people, is the ultimate repository of democratic authority in the United Kingdom. It alone can make and unmake Governments and call the Prime Minister and the Government fully to account. It authorises taxation and supply and can, if it wishes, achieve its legislative objectives in the face of opposition from the House of Lords. In other words, whatever the theory, Parliamentary sovereignty in the United Kingdom ultimately resides, in practice, in the House of Commons. As things stand, the House of Commons could, if it insisted and subject to a delay of only about 13 months, achieve almost any result it desired, including the further amendment of the Parliament Acts. Here, we believe, is another reason for the existence of a second chamber sufficiently confident and authoritative to require the House of Commons, at the very least, to think again. 4.  Moreover, within the House of Commons, the Government of the day is normally in a dominant position. It must of course retain the support of its Parliamentary followers and therefore has every incentive to be alert to their opinions. In practice, Governments are also constrained by the media, public opinion and the fear of defeat at the next general election. Nevertheless, Governments in the United Kingdom can usually get their way. Their Budgets are implemented. So is the great bulk of their legislative programme. In addition, the Government of the day exercises extensive executive powers by right of the Royal Prerogative, including the power to make appointments and 193

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enter into treaties. Given the Government’s enormous power in our system, it seems to us important to have a second chamber able and willing to complement the House of Commons in its essential work of scrutinising the  executive and holding the Government to account. 5. This need is reinforced by the fact that Governments in the United Kingdom are normally one-party Governments, backed by absolute majorities in the  House of Commons. There is no need for Governments in the United Kingdom, as there is for governments in many other countries, to negotiate with coalition partners over their Budgets and legislative programmes. Moreover, although Governments in this country must be alert to the views of their backbench supporters, the fact remains that, thanks to the high level of party discipline that obtains, the Government’s will usually prevails. It was all these considerations that led Lord Hailsham of Saint Marylebone a generation ago to describe the United Kingdom’s system of government as amounting to an ‘elective dictatorship’. 6. The further point is sometimes made that there is something inherently unsatisfactory about the fact that strong Governments in the  United Kingdom, usually with secure Parliamentary majorities, are in fact typically elected on the basis of only a minority of the popular vote. Not since 1935 has any single party in the United Kingdom won more than 50 per cent of the vote. Our own concern, however, is somewhat different. Our concern is with creating a second chamber sufficiently robust to act, alongside the House of Commons, as a check on the Government of the day, whatever its basis of electoral support. If Governments were typically elected on the basis of majority support, the need for such a constitutional check might well be greater, not less. 7.  While we recognise the numerous informal constraints which restrict any Government’s freedom of action (and which can frequently make life difficult for a Government), we are also concerned that the number of formal constraints on Governments 194

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is so limited under our constitution. In particular, we are concerned that the House of Commons often finds it difficult to balance its twin responsibilities of sustaining a Government in office and at the same time holding it effectively to account. Backbenchers on the Government side frequently speak out, and there are occasional Parliamentary revolts, some of them significant. But our view is that the country’s new constitutional arrangements should provide for a second chamber which does not pose a threat to the House of Commons’ pre-eminence but which is nevertheless able to augment and complement the Commons’ work. It should enhance the ability of Parliament as a whole to scrutinise the executive and act as a check upon it. (‘A House for the Future’ Royal Commission on the Reform of the House of Lords Chairman: The Rt Hon Lord Wakeham DL) TASK VI.

a) Read the text, make up the heading for it.

b) Determine and discuss the key message of each paragraph. c) Make up the  list of legal documents which reflect the Government’s reform proposals. d) Explain the reasons for reforming the Lords. e) Describe the major changes introduced into 1) the membership and 2) the powers of the Lords. The Labour Party’s manifesto for the 1997 general election stated: 1.  The House of Lords must be reformed. As an initial, selfcontained reform, not dependent on further reform in the future, the right of hereditary peers to sit and vote in the House of Lords will be ended by statute. This will be the first stage in a process of reform to make the House of Lords more democratic and representative. The legislative powers of the House of Lords will remain unaltered. 195

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2.  The white paper was published in January 1999 (Modernising Parliament: Reforming the House of Lords), and confirmed the Government’s intention to legislate to remove the hereditary peers from the House of Lords (and, consequently, to enable them to stand and vote in elections to the House of Commons). The white paper also confirmed that this legislation represented the first stage of Lords reform, and that the Royal Commission would consider longer-term reform. 3.  The Bill passed to the House of Lords on 17th March 1999 and received its second reading over 29th and 30th March 1999. Opening the debate on 30th March, the Lord Chancellor, Lord Irvine of Lairg, turned to what would become known as the Weatherill amendment, but was not yet tabled: ‘The noble Lord’s amendment would provide for the interim retention of one in 10 of the hereditary Peers, 75 out of the  existing 750, plus 15 hereditary officeholders, until the second stage of House of Lords reform has taken place. The amendment reflects a compromise negotiated between Privy Councillors on Privy Council terms and binding in honour on all those who have come to give it their assent. Like all compromises it does not give complete satisfaction to anyone. That is the nature of compromise’. 4.  From the  government point of view, the  purpose of the Weatherill amendment was to ensure the easy passage of the bill and avoid obstruction to other parts of its legislative programme. It was a tactic, and ministers sought to justify it on the grounds that the arrangement would only affect the interim House, which would have a short life. But for Labour it was a very significant compromise. In a formal sense, it certainly was a breach of its manifesto which had clearly stated that hereditary peers would be removed. It was a decision thrust upon the party and one the implications of which were never properly debated, certainly not by MPs… 196

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5.  Were these peers being retained as working peers, members of the existing House whose continued contribution would be desirable in the interim House because of their experience? In so far as Labour ministers developed a rationale, it was along these lines. But if this was the objective, the government could have ensured some continuity among working peers by granting life peerages to some of the existing hereditary peers, including frontbenchers, deputy speakers and committee chairmen. Indeed, among those who had discussed Labour’s strategy for the two-stage reform, this had always been assumed. Instead, Labour chose to ensure continuity by allowing within its own legislation for the continued inclusion of hereditary peers. Conservatives, for their part, increasingly referred to these as representative peers, not working peers, chosen by their hereditary colleagues to ensure the continuation of an independent element in the interim House. 6.  Since the 1999 Act, various proposals for the next stage of reform of the House have been put forward, and have generated considerable debate. During this period, some have argued that the ‘transitional’ or part-reformed House should be subject to more limited reform, in the absence of consensus over any final settlement. Specifically, there have been calls for the ‘anomaly’ of the remaining hereditary peers to be addressed. In an article in Parliamentary Affairs in 2004, Donald Shell wrote: ‘From the government point of view, by 2004 the House of Lords represented a blatant piece of unfinished constitutional business. The claim that removing the great majority of the hereditary peers under the 1999 House of Lords Act had made the House ‘more democratic and representative’ (as proposed in the 1997 manifesto) looked unconvincing. The government believed it had made 21considerable efforts to be accommodating. The agreement embodied in the 1999 Act to keep 92 hereditary peers, and to allow this group to replenish itself indefinitely through by-elections when vacancies occurred, was a significant compromise’. 197

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7.  On several occasions the Government have reiterated their intention (including commitments in the 2001 and 2005 manifestos) to  remove the  hereditary Members remaining by virtue of the Weatherill amendment, either as part of a wider package of reforms to the membership of the House, or as a stand-alone measure awaiting agreement over further reform, stating that the retention of the 92 was never intended to be anything other than a temporary arrangement. Equally, opposition peers have pressed the Government to honour what they consider a binding agreement that the 92 would remain until the second stage of reform had been agreed. 8.  The Government’s most recent proposals for reform of the House of Lords were set out in a wide-ranging green paper on constitutional reform, The Governance of Britain (July 2007). This committed the Government to enacting the will of the House of Commons, which in March 2007 had voted in favour of a fully or substantially (80%) elected House of Lords. As the green paper noted, both the Conservatives and Liberal Democrats had called for a substantially-elected House in their 2005 manifestos: The Government’s first attempt at stage two reform, the White Paper published in June 2001 in response to the report of the Royal Commission on House of Lords Reform, proposed a 20 per cent elected house with the remainder being appointees (20 per cent independent and 60 per cent party appointees). This ran into strong Labour backbench opposition, with a number of calls for a larger elected element, and was dropped in May 2002. 9.  The February 2002 proposals of the Public Administration Select Committee more closely represented MPs’ views; it juggled the Royal Commission’s proportions so that there would be 60 per cent elected and 20 per cent party political appointees with the remaining 20 per cent being independent appointees. 10.  The July 2008 White Paper thus only considered the options of an 80 per cent and a wholly elected House – 198

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and does not decide on either but instead leaves it open for further consultation. This is just one of a number of points that the White Paper left open and that is one of the reasons it was not well received, coming in for criticism in both Houses (HL Deb 2008; HC Deb 2008), by the media and from a former speaker of the House of Commons. 11.  Although it is a government White Paper it is again the  product of cross-party discussions and there are areas where there has been no agreement (e.g. whether to use firstpast-the-post or another electoral system and, if an 80 per cent elected house is chosen, the presence of Bishops and the status of the  appointments commission). However, it is clear that the powers of the House of Lords should not be reduced (White Paper 2008, chapter 5) despite there earlier having been proposals to limit scrutiny of bills to just 60 days and, as with the 1968 White Paper, cut the power to delay to 6 months. 12.  Among the more concrete reforms is the proposal that elected members of the reformed House should serve 12–15 year terms and not be available for re-election (an idea designed to enhance independence which has been a feature of many other reform proposals). The government also proposes that members should be salaried and, while leaving the fine detail open, proposes on principle that members‟ salary should be less than that of MPs but more than that of members of devolved legislatures (which would mean at today’s prices that a member elected for 12 years would receive some £600,000). The method of election, the transitional arrangements (with three possibilities considered with final end dates ranging from 2020 to 2040) and, less intractably, the presence of both Bishops and retired Justices of the Supreme Court all remain open. Although the White Paper does not decide on whether the reformed House should be wholly or 80 per cent elected, it does note the difficulty of including an independent element within a wholly elected chamber. 199

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13.  A ‘Weatherill 2’ system – extending the principle of the Weatherill hereditaries to Life Peers (but with the numbers of party peers changing according to, for example, either general or local election results) – could provide a combination of the benefits of election and appointment while mitigating some of the problems with both. f) Agree or disagree with the following statements: The current reform: •  will change the balance of powers in the UK; •  will make the executive more/less powerful; •  will undermine the independence of judiciary; •  will further restrict the powers of the Monarch; •  will promote democracy; •  will serve the interests of the British people; •  will serve the interests of the wealthiest class; •  will bring the monarchy to an end; •  will require the adoption of the written constitution; •  will be in line with the separation of powers doctrine; •  will call for other constitutional changes. TASK VII. Learn more about the UK legislation: •  Why are new laws needed? One of Parliament’s main roles is debating and passing statute law (legislation). The Government introduces most plans for new laws, with many included in the Queen’s Speech at the opening of each session of Parliament, and changes to existing laws. However, new laws can originate from an MP or a Lord. Emergency issues such as the threat of terrorism, pressure on the Government to update old laws and case law in the courts, interpreting, clarifying and re-applying established principles of statute law, all contribute to the need for new laws. •  Who is consulted about changes to the law? Before draft laws, known as Bills, are introduced into Parliament, there is often consultation or discussion with 200

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interested parties such as professional bodies, voluntary organisations and pressure groups. •  White and Green Papers Proposals for legislative changes may be contained in government White Papers. These may be preceded by consultation papers, sometimes called Green Papers, which set out government proposals that are still taking shape and seek comments from the public. There is no requirement for White or Green Papers to be introduced before a Bill is introduced into Parliament. Green Papers Green Papers are consultation documents produced by the Government. Often when a government department is considering introducing a new law, it will put together a discussion document called a Green Paper. The aim of this document is to allow people both inside and outside Parliament to debate the subject and give the department feedback on its suggestions. Copies of consultation documents such as Green Papers and White Papers which are produced by the Government are available on the related departmental websites. White Papers Documents produced by the Government setting out details of future policy on a particular subject. A White Paper will often be the basis for a Bill to be put before Parliament. The White Paper allows the Government an opportunity to gather feedback before it formally presents the policies as a Bill. •  Draft Bills and pre-legislative scrutiny A Draft Bill is a Bill that is published to enable consultation and pre-legislative scrutiny before a Bill is formally introduced into either the House of Commons or House of Lords. A Draft Bill is considered, often by a departmental select committee in the Commons or by a joint committee of Lords and Members of the Commons. This allows MPs and Members 201

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of the Lords to have early influence on the Bill. This process is known as pre-legislative scrutiny.

TEXT 6 COMPOSITION OF THE MODERN HOUSE OF LORDS The House of Lords has existed as a separate Chamber of Parliament since the 14-th century, and is part of the oldest parliamentary democracy in the  world. It is also one of the  busiest, second only to  the  House of Commons in the number of days and hours it sits. A major task of the House of Lords is to examine and pass legislation. The House plays a key role in revising legislation sent from the Commons and thus complements the work of the elected House of Commons. It also initiates legislation, and so shares the burden of the legislative load. Another important function is to act as a check on government by scrutinising its activities. The House of Lords does this by asking questions, debating policy and, through its select committees, taking evidence from ministers and others. Questions are directed at the Government as a whole, not at specific government departments on set days (as in the Commons). They enable Members to check on government activities, raise issues of concern about government policy and seek information. Members of the House of Lords are organised on a party basis in much the same way as the House of Commons, but with important differences: Members of the Lords do not represent constituencies and many do not support one of the  three main parties  – these independent Members are known as ‘Crossbenchers’. There is no upper limit on the total number of Members. The House of Lords members are currently subdivided into Lords 202

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Temporal and Lords Spiritual. Unlike MPs, the public do not elect the Lords. The majority are appointed by the Queen on the recommendation of the Prime Minister or of the House of Lords Appointments Commission. Before the present House of Lords reform Lords Temporal were classified into hereditary Peers, life Peers and Lords of Appeal in Ordinary. Nowadays the core membership of House of Lords is made up of Life Peers who are appointed for their lifetime only, these Lords’ titles are not passed on to their children. They are created under the Life Peerages Act 1958. The Queen formally appoints life Peers on the advice and recommendation of the Prime Minister. Today there are 92 hereditary Peers in the House of Lords. Previously this group included all hereditary peers and peeresses of England, Scotland, Great Britain and the United Kingdom who have not disclaimed their peerage under the Peerage Act 1963. However, the right of hereditary Peers to sit and vote in the House of Lords was ended in 1999 by the House of Lords Act but 92 Members were elected internally to remain until the next stage of the Lords reform process. Disclaiming a peerage is now an anachronism. Under the Constitutional Reform Act 2005, the existing Lords of Appeal in Ordinary became in 2009 judges of the new Supreme Court of the United Kingdom and are barred from sitting or voting in the House of Lords until they retire as judges. Members of the House of Lords who sit by virtue of their ecclesiastical offices are known as Lords Spiritual. The Lords Spiritual include the  Archbishops of Canterbury and York, the Bishops of London, Durham and Winchester, and the 21 next most senior diocesan bishops of the Church of England. A limited number of 26 Church of England archbishops and bishops pass their membership on to the next most senior bishop when they retire. The Archbishops of Canterbury and York traditionally get life peerages on retirement. 203

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The Lord Speaker presides over business in the Chamber. Unlike the  Commons’ Speaker, she or he does not call on Members to speak and has no powers to call the House to order because the House of Lords is self-regulating. The Lord Speaker is elected by the House and is politically impartial. NOTES TO THE TEXT: Peer – 1. A person who is of equal status, rank, or character with another. 2. A member of the British nobility (such as a duchess, marquis, earl, viscount, or baroness). Peeress – 1. A female peer. 2. The wife of a peer. Peerage – 1. All the British peers considered as a group. 2. [countable] The rank of a British peer.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Use the  following expressions to  describe the membership and functions of the House of Lords: complement the work of the other House raise issues enable retire as judges examine the total number TASK II. Look up the following concepts in GLOSSARY or law dictionaries and say who may carry out those actions: examine and pass legislation, revise legislation, initiate legislation, scrutinise legislation, disclaim the peerage TASK III. a) Use H OLD and its derivatives holder, upholding, holder, withhold, holder, withhold, holder, holding, holder, withhold, holders, to hold, holding, holder, hold, holder, holdings, holder, hold, holders, held, holder in the  following sentences. b) Translate the sentences: 1. Deliberative-process privilege is a privilege permitting the government to … documents relating to policy formulation 204

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to encourage open and independent discussion among those who develop government policy. 2.  Picketing is the demonstration by one or more persons outside a business or organization to protest the entity’s activities or policies and to pressure the entity to meet the protesters’ demands, especially an employees’ demonstration aimed at publicizing a labor dispute and influencing the public to … business from the employer. 3.  Officer of the court is a person who is charged with … the law and administering the judicial system. Typically, officer of the court refers to a judge, clerk, bailiff, sheriff, or the like, but the term also applies to a lawyer, who is obliged to obey court rules and who owes a duty of candor to the court. 4.  Nondisclosure agreement is a contract or contractual provision containing a person’s promise not to disclose any information shared by or discovered from a trade-secret … , including all information about trade secrets, procedures, or other internal or proprietary matters. 5.  Mortgagee is one to  whom property is mortgaged  – the mortgage creditor, or lender, also termed mortgage-… . 6.  Lien-… is a person having or owning a lien presumption of validity. In patent law there is a doctrine that the … of a patent is entitled to a statutory presumption that the patent is valid and that the burden is on a challenger to prove invalidity. 7.  Although it might seem helpful to distinguish a patentee as a person to whom a patent is issued and a patent-… as the owner of a patent, including the original grantee’s assigns, the Patent Act explicitly includes all title-… under the term ‘patentee’. 8.  Policy … is one who owns an insurance policy, regardless of whether that person is the insured party. 9.  Premises liability is a landowner’s or land…’s tort liability for conditions or activities on the premises. 10.  Liquidation preference is a preferred share…’s right, once the corporation is liquidated, to receive a specified distribution before common share… receive anything. 205

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11.  Possession is the fact of having or … property in one’s power, in other words, the exercise of dominion over property. 12.  A copyright …’s exclusive right to recite, play, act, show, or otherwise render the protected work publicly, whether directly or by technological means (as by broadcasting the work on television). 13.  Courts sometimes apply common law principles to ‘pierce the corporate veil’ and … shareholders personally liable for corporate debts or obligations. 14.  Superprecedent is a precedent that defines the law and its requirements so effectively that it prevents divergent … in later legal decisions on similar facts or induces disputants to settle their claims without litigation. 15.  Members of the  House of Commons … their seats until Parliament is dissolved (a maximum of five years after the preceding election). 16.  An MP who wishes to resign has to go through the process of applying for a paid office of the Crown, which automatically disqualifies the MP from … a seat in the House of Commons. 17. If a person stands down as an MP a by-election is … in that constituency alone to find a new MP for that area. 18. The Committee may … its approval to  a particular nomination on the grounds of propriety, but in practice only about 1 per cent of nominations are challenged (although the very existence of the Committee does presumably serve to inhibit potential abuse). 19.  One of Parliament’s prime functions is … the Government to account. TASK IV. Fill in the  blanks with prepositions where necessary: It is second ... the House of Commons in the number of days, a check … government, directed … the government, … set days, organised … on a party basis, no limit … the total 206

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number, subdivided … different groups, … the recommendation, to appoint … the lifetime, to pass the title … … the children, … the advice, barred … sitting in the House, get life peerage … retirement, to preside … business, to call … members to speak, to call … order. TASK V.

Read and discuss the article:

The Government’s Reform of the Lords Heralds the End of Constitutionally-enshrined Aristocratic Government in Britain

What is the House of Lords? The House of Lords is one part of the ancient triumvirate in the British constitution, which also includes the monarchy and the Commons. Representing the interests of the aristocracy, the  lords historically combined with the  ‘commoners’ to challenge and check the power of kings. These days, the  Lords is the  second legislative chamber in parliament, responsible for amending and scrutinising the activities of the government-dominated Commons. Other democratic countries have a similar institution, often known as an upper chamber or senate. Why Did the Labour Party Reform the Lords? The House of Lords is widely condemned as undemocratic: ‘one of the most curious of the curious anomalies in British public life, defying all logic of democratic and secular politics’, in the words of political scientist John Kingdom. The presence of an unelected upper chamber mocks the principle of a representative democracy, in which all people are equally entitled to participate in politics. The law lords could both make and judge the law: this runs counter to the democratic 207

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ideal of a ‘separation of powers’, which holds that the judiciary (courts), legislature (parliament) and executive (government) should remain independent of each other, checking and balancing each other’s power. Self-interest also plays a part in Labour’s decision to reform the  Lords. Dismantling the  chamber enhances Labour’s reformist credentials. More importantly, abolishing the hereditary peers removes a key source of Conservative opposition to the government. Predominantly Tory, the hereditary peers have fuelled a number of revolts against Labour’s legislation, including major opposition to Labour’s welfare plans last autumn. What Can Be Done with the Lords? There are two main options. The first is to create an upper chamber which is subservient to the government, sustaining the British tradition of a dominant executive. A House of Lords wholly nominated by the prime minister would be the most extreme example of this. Opponents argue that this would perpetuate the undemocratic imbalance of power in British politics, which makes government an ‘elective dictatorship’. The second option is to create a second chamber similar to  those in other western democracies: a directly elected, independent body, designed to check and scrutinise the power of the government, with no overlapping of judicial or legislative functions. Tony Blair is among those who believe this would undermine the Commons and introduce gridlock into politics, threatening the speed and efficiency with which the government can act. What is the Royal Commission? The government has said reform will not stop here. But it has not decided what further changes to make to the Lords, which, by other countries’ standards, is still absurdly undemocratic. 208

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A royal commission, chaired by Conservative peer Lord Wakeham, was established in 1999 to  consider and make recommendations on the role and functions of a second chamber. It was supposed to report by the end of 1999, but disagreements among the academics and politicians who make up the body delayed its publication. Cynics observe that royal commissions are often used as tools of procrastination by governments wanting to be seen to be making reformist noises but unwilling to take legislative action. The highly respected Jenkins commission on electoral reform reported in November 1998, but the government has subsequently placed electoral reform at the bottom of its priorities. It is highly unlikely that Jenkins’ recommendations will ever be adopted. TASK VI.

a) Read the text:

The Roles of the Second Chamber

As well as considering the roles which a new second chamber should play, we need to  consider the  roles which it might play. Four separate strands of thinking have long dominated discussions about the  possible roles of second chambers. We consider each in turn. Counsel from a Range of Sources The view of the classical world, as expressed by Aristotle and reflected in the constitution of republican Rome, was that good governance required those in power to take ‘counsel from a range of sources’. One potentially important role for a reformed second chamber might therefore be to provide a means whereby a range of different experiences and points of view – different, not least, from those of the House of Commons – could be brought to bear on proposed legislation and on public affairs more generally. The old House of Lords clearly played such a 209

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role, often successfully. We believe that the new second chamber should continue to play such a role. Its demonstrated ability to do so, and to do so effectively, would clearly add considerably to its overall authority. Estates of the Realm The medieval view, not just in this country but throughout most of Europe, was that the principal ‘estates of the realm’ needed to be represented separately in any national assembly. Power in the state effectively resided in the estates; the structure of the national assemblies was organised to reflect that. The institution of Parliament in England and Wales and later in the  whole United Kingdom originally embodied such a conception. The commoners were represented in the House of Commons; the lords, both temporal and spiritual, in the House of Lords. No commoner could sit in the House of Lords; no lord (except the bearer of a courtesy title) could sit in the House of Commons. The notion of strictly defined estates of the realm makes no sense in the context of today’s far more heterogeneous, far more fluid society. Nevertheless, we believe that the new second chamber does have a role to play in being broadly representative of United Kingdom society as it is now – ideally, considerably more representative than are the members of the present House of Commons – and in reflecting the diverse experiences and traditions of that society. Checks and Balances A third strand of historical thinking about second chambers has been concerned with what the authors of the United States Constitution, the Founding Fathers, thought of as ‘checks and balances’. The Founding Fathers’ view, as expressed in The Federalist Papers, was that a second chamber was desirable in 210

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a legislative assembly to ‘double the security of the people by requiring the concurrence of two distinct bodies’. As the House of Representatives in the United States was to be popularly elected, a powerful Senate, chosen on a different basis, was essential to act as a brake on the tendency of popular assemblies, ‘stimulated by some irregular passion.., or misled by the artful representations of interested men, to call for measures which they themselves will afterwards be most ready to lament and condemn’ (The Federalist. Paper 62. Alexander Hamilton and James Madison). We would not want to go that far but, as we have already indicated, we believe there is a role for the reformed second chamber to play as a check on the Government, with its majority in the House of Commons (the ‘popular assembly’). The American notion of checks and balances, carried over into the United Kingdom system of government, could express itself in three areas: scrutinising the actions of the executive and holding it to account; participating in the legislative process; and playing a role in connection with proposed constitutional change. The new second chamber should play an active role, complementary to that of the House of Commons, in scrutinising the executive and holding it to account. The House of Commons often finds it difficult both to sustain in power the Government of the day and to act as an effective check upon it. A revitalised second chamber could enhance the ability of Parliament as a whole to provide an effective check on the executive. This conclusion is reinforced by the findings of a study of unicameral (single chamber) parliaments around the world, commissioned by the  Scottish Office in preparation for the establishment of the Scottish Parliament. The study found that the  few successful unicameral parliaments that exist in the world, far from being dominated by an untrammelled executive, incorporate alternative checking and balancing devices. These include proportional representation, usually leading to minority or coalition governments; significant rights 211

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for minority parties; powerful backbench and other external scrutiny arrangements; and constitutional and/or judicial controls on the power of the executive. Given the present nature of the constitutional settlement in the United Kingdom and in the absence of the kinds of constraints to be found in countries with unicameral systems, it falls to the second chamber in this country to assist Parliament as a whole to play its checking and balancing role. The House of Lords already plays an active part in the legislative process in the United Kingdom, and many second chambers overseas are referred to  as being, like the  House of Lords, ‘revising’ chambers. Having two legislative chambers facilitates the scrutiny of legislation and improves the quality of legislative drafting. It allows greater flexibility in the legislative timetable, more opportunity for interested parties to press for improvements to draft legislation and more time for second thoughts to develop and be reflected in the final form of legislation. The existence of a second chamber also facilitates the taking of ‘counsel from a range of sources’ in connection with legislation. It is not enough, however, for the second chamber merely to add its own voice to the other voices raised in legislative debates. It must, in addition, have the formal power to require those who initiate legislation to  justify their proposals to the public and to both Houses of Parliament – if need be for a second time. Using this power, the  second chamber can raise issues which the House of Commons has neglected and can bring considerable political pressure to bear on both the House of Commons and the Government. But we take the general view that even limited powers to refer issues back for consideration or to impose a delay could, if exercised with restraint and only when occasion clearly demanded it, have a substantial political impact. If a reformed second chamber were to express concern about a particular Government proposal and exercise whatever powers of delay or referral were available, that 212

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would lead to (renewed) public and media interest in the issue, with opportunities for the causes of concern to be set out. It would force the Government to reconsider the issues in the light of that interest, and it would give members of the House of Commons an opportunity to revisit the issues and make the final determination in the light of all the relevant information. The Government of the day would have to take such powers and their consequences into account in drafting its legislation in the first place as well as in seeking to put it on the statute book. As regards proposed constitutional changes, the Commission merely notes at this stage that many second chambers overseas have an explicit role to  play in safeguarding their country’s constitution. Many are accorded enhanced powers in connection with constitutional issues. However, because of the absence of a written constitution, the position in the United Kingdom is more complicated. On the one hand, a case can be made out that the new second chamber in this country should play a more clearly defined role with regard to constitutional matters and issues relating to human rights. On the other, there are a number of substantial difficulties in the idea of assigning the second chamber a significant formal role as ‘guardian of the constitution’. The new second chamber should have the ability effectively to scrutinise the actions of the executive, including its legislative proposals; that it should have sufficient authority to ensure that it will be listened to when it draws attention to issues of concern; and that it should have sufficient power to require the Government of the day to consider its legitimate concerns. It should, in short, have the power to make the Government of the day think again, even against its will. The Representation of Regions The fourth strand in most thinking about the role of second chambers is the representation of regions, provinces, states and 213

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other territorial units. The United States Constitution, to take the obvious case, requires the United States Senate to provide equality of representation for each state, whatever its size. Not only in countries with federal systems but also in some countries with unitary systems, the second chamber is seen as a suitable vehicle for representing regions and other territorial units as distinct from simply representing population. We do not under present circumstances believe that the representation of the nations and regions should constitute one of the primary roles of the  new second chamber in this country. In other words, we do not see the new second chamber playing the role of the United States Senate, the Australian Senate or the German Bundesrat. However, the reformed second chamber could have an important role in giving this country’s nations and regions a direct voice at Westminster which they currently lack. (‘A House for the Future’ Royal Commission on the  Reform of the House of Lords Chairman: The Rt Hon Lord Wakeham DL) b) Answer the following questions: 1. Is the national legislature in your country unicameral or bicameral? 2.  What type of legislature is more preferable for your country and why? 3.  Why is the counsel from a wide range of sources important for law making? Is this principle followed in your national legislature? 4.  Why should the legislature be ‘broadly representative’? Is it the case in your country? 5.  Why are the chambers in bicameral legislature elected on different bases? Is it true for your country? 6. Do the chambers usually exercise control over each other or over the other two branches of government? 7.  How does the system of checks and balances apply to your system of government? 214

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8. Is the upper house in your national legislature a ‘revising chamber’? 9.  How is the problem of the executive domination solved in the countries with unicameral legislatures? 10. In what way is the quality of legislation secured by the two chambers? 11.  What powers is the second chamber going to exercise? What powers are exercised by the upper house in your country? 12.  Can one of the  chambers be ‘the guardian of the constitution’? What person or body is the term referred to in your country? 13.  Which chamber is more powerful in the British Parliament, in American Congress, in your national legislature? 14.  Why should regions and constituent units be represented in the  second chamber? Should their representatives be appointed or elected? TASK VII. a)Read the text from ‘A House for the Future’ by Royal Commission on the  Reform of the House of Lords Chairman: The Rt Hon Lord Wakeham DL: Characteristics of the Reformed Second Chamber

The reformed second chamber should be: •  authoritative; •  confident; and •  broadly representative. It should incorporate: •  breadth of expertise and a broad range of experience; • particular knowledge and skills relevant to constitutional matters and human rights; • an ability to  bring philosophical, moral or spiritual perspectives to bear; 215

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•  personal distinction; •  freedom from party domination; •  a non-polemical style; and •  the ability to take a long-term view. Authoritative The reformed second chamber should be authoritative. It can and should play a vital role in scrutinising the executive, holding the Government to account and shaping legislation. It  should therefore have the  authority to  ensure that its views and concerns are taken seriously. The Commission has proposed that it should retain the  power to  hold up the enactment of primary legislation and have power to delay the implementation of secondary legislation. It should have the authority to wield those powers. It is essential that the second chamber’s authority should not be such as to challenge the ultimate authority of the House of Commons which derives directly from the electorate, through popular elections. It does not follow that there can be no role for the electorate in choosing members of the second chamber. But the greater the ‘democratic legitimacy’ of the second chamber, the greater the risk of damaging constitutional conflicts arising between the two Houses of Parliament. It is, however, an error to suppose that the second chamber’s authority can only stem from democratic election. Other potential sources of authority include: • the extent to which the second chamber’s members are broadly representative of the changing society which it seeks to serve; •  the breadth of experience and range of expertise which they possess; •  their individual personal distinction; •  the quality of the arguments they can bring to bear; 216

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• their ability to exercise an unfettered judgement, relatively free from partisan political control. The members of the reformed second chamber, both collectively and individually, should possess all these characteristics in any case. But their presence will, in addition, contribute substantially to its overall authority and to its ability to make itself heard. A second chamber drawing on such a wide range of sources of authority would be well placed to carry out effectively the roles and functions we have recommended. Confident The reformed second chamber should also be sufficiently confident to use its powers in what it judges to be the most effective and appropriate manner. Throughout the 20th century the House of Lords was inhibited both by its lack of authority and its lack of confidence. The reformed second chamber must be free of such debilitating inhibitions. The second chamber should be cohesive. In determining how it should be composed and in considering its working practices, it will be important to ensure that members should be able to work well together, without being troubled by any sense or suggestion that some have a higher authority than others. Without such cohesion it would be difficult to generate the necessary confidence on the part of the second chamber as a whole. Broadly Representative The reformed second chamber should be broadly representative of British society as a whole. The House of Commons is obviously representative in that MPs represent their individual geographic constituencies and reflect the electorate’s basic political choices. Nevertheless, there is a gap to be filled. It is not possible for voters to reflect all aspects of their personality and experience through 217

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a single vote in a general election. The second chamber could gain significant strength and authority from being seen to be representative of British society in all its dimensions. However, it cannot and should not be a mere statistical microcosm of British society. The long-term aim should be for all sectors of society to feel they have a voice in the second chamber, expressed by a person or persons with whom they can identify. This might be achieved through a combination of: •  regional representation; •  gender balance; •  representation for ethnic and other minorities; •  vocational representation; and • appropriate representation for voluntary, cultural, sporting and other organisations. The key point is that a more broadly representative membership could provide a vigorous alternative source of authority for the  second chamber without threatening the democratic authority of the House of Commons. It could also play an important role in reconnecting ordinary people with the political process. The reformed second chamber should provide a voice for the nations and regions of the United Kingdom. The people of all parts of the United Kingdom should know that their interests are being spoken for in the second chamber by people with whom they can identify. The level of direct regional representation should be sufficient to enable the second chamber to contribute effectively to the discussion of devolution and regional matters. It might well be raised if developments in the process of devolution or decentralisation make that appropriate. The House of Lords has for far too long contained an excessive proportion of white males. Even the  present life peerage, although it includes a higher proportion of women and members of minority ethnic groups than the former House of Lords, is far from being representative of British society in 218

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either respect. The reformed second chamber should be different. There should be steady progress towards gender balance and a more substantial representation of minority ethnic groups. Breadth of Experience and Range of Expertise One of the characteristics of the present House of Lords is that it contains a substantial proportion of people who are not professional politicians, who have experience in a number of different walks of life and who can bring a considerable range of expertise to bear on issues of public concern. The support for this was reflected in the substantial number of proposals the Commission received that members of the reformed second chamber should be drawn in some way from professional bodies, vocational groups and other organizations representative of specific sectors of society. It seems desirable that the reformed second chamber should continue to have members with a wide variety of experience in different walks of life. This would contribute to the goal of extending the range of perspectives from which issues are viewed by Parliament. It would reinforce the authority of the second chamber. Above all, the ability to call on at least some people with practical experience or relevant expertise in particular areas would reinforce the scrutinising role of the second chamber by helping it to assess the workability of proposals. Having members with a range of relevant experience in the  second chamber should not be seen as a substitute for consulting interested parties or taking evidence from relevant experts. Nevertheless, we see advantage in having people present in the second chamber who are familiar with the broad issues in a given area, who know what questions to ask and how to interpret the answers. People who have acquired relevant experience and expertise outside Parliament should be in a position to contribute actively to debates. Expert advisers, brought in from outside, however persuasive, could not have the same impact. 219

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The present House of Lords has benefited from many of its members continuing their careers outside Parliament or maintaining contact with their former professions or occupations. Arrangements for constituting the reformed second chamber should allow this tradition to be maintained, so that at least some members can spend a proportion of their time actively engaged in work outside Parliament. Part-time membership of the second chamber should continue to be facilitated and even encouraged. There should be no minimum attendance requirement. The range of expertise expected of members of the second chamber need not be prescribed in detail or remain constant over time. It should cover a broad spread of fields. Some particular types of expertise, likely to  be of continuing relevance to the work of the second chamber, should always be represented in sufficient strength. The second chamber should contain people with a good grasp of the political and constitutional context within which the chamber will operate. It should contain people with an expert understanding of legal concepts and terminology and with practical experience of making and operating the law or developing public policies in a range of areas. There should be people with broad experience in public affairs and good analytical, influencing and debating skills. It should also contain people with broad experience of international, including European, affairs. Particular Knowledge and Skills Relevant to Constitutional Matters and Human Rights The second chamber’s membership obviously needs to include people with knowledge and expertise in constitutional matters and human rights. In other countries, the consideration of constitutional matters and human rights issues is carried out by people of acknowledged independence with extensive legal and judicial experience. In 220

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this country, a strong contingent of experienced lawyers should be present in the reformed second chamber to help with this work. As currently, serving Law Lords would need to avoid committing themselves on particular issues which they might subsequently have to rule on. But retired Lords of Appeal in Ordinary or former holders of high judicial office would be free to contribute more fully. However, the consideration of constitutional and human rights matters is not a task which need, or should, be left exclusively to people with judicial experience or to lawyers. People with experience or expert knowledge of human rights issues and international human rights instruments would be required. The reformed second chamber should include members with the knowledge and skills necessary to enable it to discharge effectively its roles in relation to constitutional matters and human rights issues. b) Use the following characteristics to describe the chambers – their powers, membership and proceedings – in your national legislature: •  authoritative; •  confident; •  broadly representative; •  breadth of expertise and a broad range of experience; • particular knowledge and skills relevant to constitutional matters and human rights; • an ability to  bring philosophical, moral or spiritual perspectives to bear; •  personal distinction; •  freedom from party domination; •  a non-polemical style; •  the ability to take a long-term view; • the extent to which the second chamber’s members are broadly representative of the changing society which it seeks to serve; 221

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• the breadth of experience and range of expertise which they possess; •  their individual personal distinction; •  the quality of the arguments they can bring to bear; • their ability to exercise an unfettered judgement, relatively free from partisan political control; •  regional representation; •  gender balance; •  representation for ethnic and other minorities; •  vocational representation; • appropriate representation for voluntary, cultural, sporting and other organizations. TASK VIII. a) Read the following texts and say whether titles and names are important. b) Comment on the names of the legislature and its houses in your country. Titles of Members The decision to sever the automatic link between the peerage and membership of the chamber means that a new title for members will be required. This is not a central issue, but the title adopted will symbolise the nature and style of the new institution and its members. New members of the reformed second chamber will enter through appointment by the  independent Appointments Commission, whether by virtue of selection as a regional member or by the  Appointments Commission itself, or by virtue of appointment as a Lord of Appeal in Ordinary or as a representative of the Church of England. Possession of a peerage should no longer be a necessary qualification for membership of the second chamber, and new members should not be offered a peerage in that connection. 222

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The future of the peerage itself is not a matter on which we need express a view. However, we would expect that it would remain open to the Prime Minister to recommend award of a peerage in recognition of a person’s merit and achievements. Possession of a peerage should not be a bar to membership of the reformed second chamber and members of the chamber should not be precluded from accepting peerages; but the two should be completely distinct. Some have suggested that members of the reformed second chamber should adopt the suffix LP (Lord/Lady of Parliament) and the courtesy title ‘Lord/Lady’. This option would signal and symbolise the elements of continuity from the present House of Lords, which we believe should be sustained. It would also reflect the fact that for at least the first few years of its existence, until new members came to  outnumber the  remaining life peers, the reformed second chamber would continue to have a majority of Lords (and Ladies) among its members. There would be no need to change the name of the chamber and many of the formal usages could be left unaltered. While there might be a risk of confusion with the title ‘Lord of Parliament’ held by Church of England bishops and some members of the Scottish peerage, the numbers involved are sufficiently small as to suggest this would be a minor issue. Thus, possession of a peerage is no longer a necessary qualification for membership of the second chamber, and new members should not be offered a peerage in that connection. Others have proposed that a fresh chamber needs a fresh start. A  change of title could clarify the  changed nature of entry to the reformed second chamber and its separation from the peerage. They suggest that there would be a considerable risk of confusion between the Lords/Ladies of Parliament who were members of the second chamber but not peers, the Lords/ Ladies who were peers but not members of the second chamber and, potentially, the Lords/Ladies who were peers and might be 223

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elected to the House of Commons. Alternative titles would be ‘State Counsellor’ and ‘Senator’/‘Senator of Parliament’. The former has little to commend it and could easily be confused with local government ‘councillor’. By contrast, ‘Senator’ has the great advantage of being generally understood as referring to a member of a country’s second chamber. Name of the Chamber Should members of the second chamber be known as Lords/ Ladies of Parliament, this would allow many of the traditions and usages of the current House of Lords to continue and would not require any change in the name of the chamber. A change would be required, however, if members of the reformed second chamber were to receive the title Senator/Senator of Parliament. In this country, we are accustomed to  our two national legislative chambers being ‘Houses’ of Parliament. This would imply that the reformed second chamber should be known as the House of Senators. These issues are not central to  the  successful reform of the second chamber and there are arguments in favour of each of the options canvassed above. We consider that the situation should be left to evolve. Parliament should determine whether, in time, the reformed second chamber should be called something other than the House of Lords and its members given a new title.

TEXT 7 COMPOSITION OF THE MODERN HOUSE OF COMMONS The House of Commons is a representative assembly elected by universal adult suffrage, and consists of men and women (members of Parliament, ‘MPs’) from all sections of the  community, regardless of income or occupation. 224

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The UK Parliament has MPs from areas across England, Scotland, Wales and Northern Ireland. In addition, there is a Parliament in Scotland, a National Assembly in Wales and a National Assembly in Northern Ireland. The UK has many political parties, the main three being Labour, Conservative and Liberal Democrats. These three work in both the House of Commons and House of Lords. The UK public elects 650 Members of Parliament (MPs) to represent their interests and concerns in the House of Commons. MPs consider and propose new laws, and can scrutinise government policies by asking ministers questions about current issues either in the Commons Chamber or in Committees. As a representative of the ordinary citizen, an MP may challenge the policy put forward by a minister during a debate on a particular bill in the second reading or, as regularly happens, may put forward amendments at committee stage, through the institution of parliamentary questions and answers as well as during adjournment debates or during the debates on ‘Opposition days’. In addition, the expenditure, administration and policy of the principal government departments is closely scrutinized by the select committees of the House of Commons. The House of Commons was originally far less powerful than the House of Lords, but today its legislative powers greatly exceed those of the Lords. Under the Parliament Act 1911, the Lords’ power to reject most legislative bills was reduced to a delaying power. Moreover, the Government is primarily responsible to the House of Commons; the prime minister stays in office only as long as he or she retains its support. Almost all government ministers are drawn from the House of Commons and, with one exception, all prime ministers since 1902. The UK is divided into 650 areas called constituencies. During an election everyone eligible to cast a vote in a constituency (constituents) selects one candidate to be their MP. To stand as an MP a person must be aged 18 or over, a citizen of the UK, Commonwealth or the Republic of Ireland, and not disqualified. 225

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The candidate who gets the most votes becomes the MP for that area until the  next election. In a general election, all constituencies become vacant and a Member of Parliament is elected for each from a list of candidates standing for election. General elections commonly happen every four to five years, after a Parliament has been dissolved and a new one summoned by the Sovereign. If a person stands down as an MP a by-election is held in that constituency alone to find a new MP for that area. A by-election occurs when a seat in the House of Commons becomes vacant during the lifetime of a Parliament (i.e. between general elections), because the sitting MP dies, resigns (by applying for the Chiltern Hundreds), is elevated to the peerage, or becomes ineligible to sit for some other reason. Members of the  House of Commons hold their seats until Parliament is dissolved (a maximum of five years after the preceding election). An MP who wishes to resign has to go through the process of applying for a paid office of the Crown, which automatically disqualifies the MP from holding a seat in the House of Commons. The Speaker is the chief officer and highest authority of the House of Commons. The Speakership under its present title dates back to 1377. But until the seventeenth century, the Speaker was often an agent of the King, although they were often blamed if they delivered news from Parliament that the King did not like. And only in the midnineteenth century it became the norm that the Speaker should remain politically impartial. The Speaker of the House of Commons chairs debates in the Commons chamber. During debates he keeps order and calls MPs to speak. The Speaker also represents the Commons to the monarch, the Lords and other authorities and chairs the House of Commons Commission. The Speaker must be above party politics at all times. 226

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The holder of this office is an MP who has been elected by other Members of Parliament. Under the new system which came into effect in 2007 and was first used in June 2009 candidates must be nominated by at least twelve members, of whom at least three must be of a different party from the candidate. Each member may nominate no more than one candidate. The candidate should then receive more than half the votes by secret ballot in the House. Speakers still stand in general elections. During a general election, Speakers do not campaign on any political issues but simply stand as ‘the Speaker seeking re-election’. The State Opening of Parliament marks the beginning of the parliamentary session. Its main purpose is for the monarch formally to open Parliament and, in the Queen’s Speech, deliver an outline of the Government’s proposed policies, legislation for the coming session and a review of the last session. State Opening is the main ceremonial event of the parliamentary calendar, attracting large crowds, both in person and watching on television and the internet. The Queen’s procession from Buckingham Palace to Westminster is escorted by the Household Cavalry. The Queen’s Speech is delivered by the Queen from the Throne in the House of Lords, in the presence of Members of both Houses. NOTES TO THE TEXT: An adjournment debate – a way in the Commons of having a general debate without requiring the House to vote. There is a half-hour adjournment debate at the end of each day’s sitting. Members apply for an adjournment debate to the Speakers Office. Subject matters of adjournment debates are varied. The MP who tabled the relevant adjournment debate is called to speak and a Minister will reply. The MP has no right of response, but can intervene in the Minister’s speech if he or she is willing to allow it (called ‘giving way’). In Parliamentary law adjourn means ‘to end or postpone the current meeting’. The unqualified motion to adjourn terminates the meeting. A motion is put forward that the House should adjourn (the day’s business is finished), but it’s not actually answered and the adjournment debates are held. At the end of the halfhour debate the motion for the adjournment of the House is put forward again and agreed to - signalling the end of the day’s business. 227

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Apply for the Chiltern Hundreds – a way for an MP to resign. Under a Resolution of the House of 2 March 1624, Members of Parliament cannot directly resign their seat. Therefore a Member wishing to resign has to go through the process of applying for a paid office of the Crown. Stewardship of the Chiltern Hundreds is an appointment that, as a nominal office of profit under the Crown, disqualifies its holder from membership of the House of Commons. th Although the appointment has been a sinecure since the 18 century, it has been retained as a disqualifying office to enable members to give up their seats during the lifetime of a parliament (a member cannot by law resign his seat). After obtaining the stewardship (an application for which is never refused), the member resigns the office so as to make it available for re-use. A second office used for the same purpose is the stewardship of the Manor of Northstead. The law relating to both these offices is now contained in the House of Commons Disqualification Act 1975. Opposition Days – days allocated in the House of Commons in each session for the discussion of subjects chosen by the Opposition. There are 20 days allocated for this purpose per session and the Opposition generally uses them to raise questions of policy and administration.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Use the  following expressions to  describe 1) the elected chamber of the UK Parliament; 2) the elected chamber of the national legislature in your country: exceed the powers universal adult suffrage all sections of the community put forward amendments regardless of income or secret ballot parliamentary session occupation represent their interests and at committee stage a by-election is held concerns consider and propose new become ineligible to sit for some laws reason scrutinise government policies come into effect questions about current issues deliver a speech elevate to the peerage put forward amendments eligible to cast a vote challenge the policy 228

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TASK II. a) Use a law dictionary or GLOSSARY to define the following concepts: suffrage, institution, a delaying power, eligible/ineligible, qualified/disqualified, dissolve, nominate. b) Use nomination, ineligible, delaying power, qualified, nominating, eligible, institution, dissolved, delaying power, disqualified, nominations, ineligible, suffrage, institutions, eligible, nominations, eligible, dissolved, power to  delay, disqualified, nominating in the following sentences, translate the sentences: 1. The decision to  sever the  automatic link between the peerage and membership of the chamber means that a new title for members will be required. This is not a central issue, but the title adopted will symbolise the nature and style of the new … and its members. 2. There is no system of inviting widespread … and assessing candidates through a hierarchy of expert assessment groups as there is for the honours system. 3.  Whether a two-term President could be elected or appointed Vice President depends upon the meaning of the Twelfth Amendment, which provides that ‘no person constitutionally … to the office of President shall be … to that of Vice-President’. 4. Bagehot divided the  … of the British state into two categories: the  ‘dignified parts…, which excite and preserve the reverence of the population’ and the ‘efficient parts… those by which it, in fact, works and rules.’ 5.  Employees who suffer from occupational diseases are … for workers’ compensation. 6. The Prime Minister forwards the  resulting list of … to the Queen. 7.  Federal employees were … from accepting or holding any position in the Government or the District of Columbia if they belonged to an organization that they knew advocated the overthrow of our constitutional form of government. 229

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8.  Under the  current system for appointing life peers to the House of Lords, the parties have been good at … at least some people who are not professional politicians, who are personally distinguished in their own right and who sometimes take a relatively independent line. 9. Immunity from civil liability for a public official who is performing a discretionary function, as long as the conduct does not violate clearly established constitutional or statutory rights is called … immunity. 10. But if the parties were … candidates for election, their criteria would be likely to change. 11.  Since Congress may not supersede the power of a State to determine how a corporation shall be formed, supervised, and …, a corporation, which has been …. by a decree of a state court, may not file a petition for reorganization under the Bankruptcy Act. 12. It would be easy for small groups within particular professions or sectors of society to dominate and control the … process. 13.  A trust to provide for the needs of a disabled person may terminate if the beneficiary becomes … for a government-benefits program such as Medicaid. 14.  Although the Conservative majority in the Lords adopted the  self-denying ordinance of the  ‘Salisbury Convention’ under which they did not reject Bills fulfilling manifesto commitments – the Government decided to reduce the length of the Lords’ … . 15. If an applicant is certified to be … for naturalization, the oath of allegiance may be administered by the Attorney General, a federal district court, or a state court of record. 16.  Parliament Act 1949.This Act reduced the Lords’ … from a minimum of two years to a minimum of one. 17. The Court struck down state statutes which either wholly … resident aliens for welfare assistance or imposed a lengthy durational residency requirement on eligibility. 230

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18. The legislative power, the  Framers both knew and feared, was predominant in a society dependent upon the … of the people, and it was important to have a precaution against the triumph of transient majorities. 19. In addition, the  House of Lords’ … Bills would be reduced to six months and its power to veto secondary legislation abolished. TASK III. Define the meanings of the word authority in the following sentences. Find more examples with it. The Speaker is the  chief officer and highest authority of the House of Commons. The Speaker also represents the Commons to the monarch, the  Lords and other authorities and chairs the  House of Commons Commission. The Speaker must be above party at all times. TASK IV. Fill in the  blanks with prepositions where necessary: to chair … debates, regardless … income, a debate … a particular bill, … the second reading, … committee stage, to stay … office, … some other reason, to disqualify the MP … holding a seat. TASK V. Read the following texts to discuss the differences in law-making process in the House of Commons and in the House of Lords: In the  Commons, the  growth of party feeling and the obstructionist tactics of Irish Nationalist MPs led to the rights of individual MPs being progressively restricted to ensure that the Government’s business was processed. The guillotine, time limits, selection and grouping of amendments, and controls on opportunities for debate were the main tools employed. As a result, the Speaker was granted substantial powers, including responsibility for controlling debate and the conduct of MPs in 231

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the chamber. The only major aspect of the chamber not under the Speaker’s authority is the business of the House, which remains in the hands of the Leader of the House of Commons on behalf of the Government. Similar trends have been observed in lower chambers around the world. One consequence of the variation in procedural styles adopted by the two Houses is that they may reach different decisions on procedural matters with regard to legislation. For example, in the Commons, the decision whether a proposed amendment is relevant or should be called for debate is the Speaker’s alone. In the Lords, the relevance of amendments is decided by the House as a whole, while the member moving an amendment can insist on it being debated and decided separately. As a result, an amendment ruled out of order in the Commons may be debated and passed in the Lords. Similarly, while the rules as to whether a Bill is hybrid are the same in both Houses, the Government can use its majority in the Commons to dispense with the relevant Standing Order, and so treat the Bill as if it were not hybrid. The Government cannot rely on being able to do this in the Lords. Although these features may appear somewhat inconsistent, they are an inevitable consequence of the different approaches to procedure taken by the two Houses. The benefits for the work of the second chamber flowing from open procedures are such that inconsistencies of this sort are a relatively minor price to pay. This approach to procedure provides for a more relaxed pace of business and allows greater time for detailed consideration and reflection than does the more hurried and regulated approach generally adopted by first chambers. It does, however, increase the risk of filibustering. The absence of any mechanism to ensure that Government business is dealt with within a reasonable time frame can result in deadlock, such as is regularly experienced in the United States Congress. In the case of the second chamber, it is necessary that the freedoms associated with open procedures should be tempered with acknowledgement of political reality. 232

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Most legislation is proposed by a Government which has a majority in the House of Commons, the pre-eminent House of Parliament, that is based upon its victory in a general election. As we have noted in earlier chapters, it would not be appropriate in these circumstances for the second chamber to seek to delay Government business purely by procedural means. Therefore, while the  benefits of open procedures are significant, we reaffirm our earlier recommendation that it is essential they be accompanied by a convention that all Government business be considered within a reasonable time. Pressures on Open Procedures in the House of Lords It may happen that the time pressures on the reformed second chamber may in due course reach the point where the current approach of self-regulation, guided by advice from the Leader of the House, will no longer be sufficient to ensure the smooth and fair conduct of business. The growing workload of the  House of Lords has led to progressive restrictions on its members. These have usually been in the form of ‘guidance’ rather than a formal reduction in rights. The number of Questions for Written Answer that a peer can table is now limited to six per day, while the number of Starred (Oral) Questions which each peer is entitled to ask has been reduced from two per day: each peer is now permitted only one on the Order Paper at any one time. A limit of 30 minutes is also observed at Question Time. Numerous other examples exist, covering all aspects of members’ involvement in the business of the House. Even where formal restrictions have not been imposed, the guidance has become firmer in tone and the scope and detail significantly expanded. The Companion to the Standing Orders, for example, has grown from 30 pages in 1955 to 247 pages today, while the Leader of the House has had to intervene more frequently to arbitrate between those competing for the floor. In short, 233

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there appear to be significant pressures on the existing system of conventions and procedures governing members’ behaviour. While recognising these pressures, the value of the current system of open procedures is such that any restrictions which become necessary should be designed to preserve the essential character of what exists at present. The self-regulatory nature of the  House of Lords is a distinctive feature, shared with several other second chambers overseas. It is entirely in keeping with the  maturity which members of a second chamber should be expected to show. It is also consistent with the relative lack of political passion, which we hope the reformed second chamber will display. Accordingly, we would regard it as a retrograde step if any pressures on the second chamber were to lead to a breakdown in its ability to be self-regulating and so require the introduction of a Speaker with powers of order. Indeed, it may be the absence of such a Speaker that encourages the Lords to conduct their business with courtesy. If members could rely on the Speaker to enforce order, they might feel less responsible themselves to behave in an orderly fashion and be more likely to push at the limits of behaviour in order to secure party political advantage. The proceedings of the second chamber would consequently become more like those in the House of Commons, which would be in complete contrast to the nature of the second chamber. TASK VI. Insert prepositions where necessary: 1. The House of Commons consists … all sections … the community. 2. A member … the House of Commons can resign … the indirect method … applying … an office … profit … the Crown. 3. The Speaker’s functions fall … two main categories. 4. He presides … the debates … the House and enforces the observance … all rules … preserving order … its proceedings. 234

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5. The Commons elects its own Speaker to put … the name … a member acceptable … all sections … the House. 6. The Speaker is re-elected … subsequent Parliaments and thus remains … office until he chooses to retire. 7. Legislation is initiated … the introduction … bills … either House. TASK VII. Explain the meaning of the following -ing phrases and translate them: 1.  Bills dealing exclusively with expenditure and taxation; 2.  the delaying powers of the Lords; 3.  This is a measure pending the current review; 4.  an opinion in favour of abolishing the House of Lords; 5.  It will act as a check by suggesting revisions to legislation; 6.  It can work providing a brake on the Commons; 7.  A member can do so by the indirect method of applying for an office; 8.  The usual practice being for the government; 9.  He remains aloof from party issues-standing as ‘the Speaker seeking re-election’. TASK VIII. Write down the missing words in each group: 1. authority 1 2. grown-up 2 3. stand for 3 4. a body that makes law 4 5. begin, introduce 5 6. written request 6 7. an individual 7 8. perform and function 8 9. people in one state 9 10. Lasting for a short time 10 Read the first word down. 235

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TEXT 8 MEETING OF PARLIAMENT Strictly speaking, Parliament is a meeting, summoned under the Royal Prerogative by the monarch, of the two separate Houses, the House of Lords and the House of Commons. The summoning of Parliament was a key issue in the power struggle of the seventeenth century. The Stuart kings sometimes attempted to  rule without Parliament, but were driven to  summon Parliament in order to obtain the legal power to raise taxes. By the sixteenth century it was established that taxation could normally be raised only with the consent of Parliament and, indeed, that changes in the law required Parliament’s consent. The Stuart monarchs attempted to undermine this principle with varying degrees of success, but the foundations of the modern law were established by the 1688 Revolution. The main principles are as follows. They are a mixture of law and convention. 1.  ‘Parliament ought to be held frequently’ (Bill of Rights 1688, Art. 13) and must meet at least once every three years (Meeting of Parliament Act 1694). Parliament meets annually (convention backed by administrative necessity, for example, passing of tax and expenditure laws). 2.  Parliament must automatically end at the expiry of five years from the date of its writ of summons (Septennial Act 1715; Parliament Act 1911). 3.  Parliament may within the  five years be dissolved by the monarch (law) on the advice of the prime minister (convention). This precipitates a general election. A prime minister whose government is defeated on a vote of no confidence in the House of Commons must ask for a dissolution. Apart from that, dissolution is, by convention, a matter for the prime minister. A Parliament will usually last for about four years, dissolution being timed 236

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for the political advantage of the prime minister. This is one of the main sources of prime ministerial power. However, it is possible that in certain extreme cases the monarch can exercise personal choice whether or not to dissolve Parliament. The same proclamation dissolves Parliament and summons a new one. It is sometimes suggested that Parliament should sit for a fixed term, thus removing the prime minister’s power to call an election to suit his own party. This could, however, paralyse a weak government. A ‘Parliament’ must be distinguished from a ‘session’, which is a working period within a Parliament, usually about one year in length (about 170 sitting days). All public bills that are not completed by the end of a session lapse. Sessions are ‘prorogued’ by the monarch under the Royal Prerogative. Each session is opened, usually in November, by the monarch, with an address from the Throne. Within a session each House can be adjourned at any time by resolution of the House. Adjournments cover the long holidays and shorter breaks. There is machinery for recalling each House while it stands prorogued (for example, Meeting of Parliament Act 1870; Emergency Powers Act 1920). An adjourned Parliament can be summoned quickly by the Speaker and the Lord Chancellor (who presides over the House of Lords) at the request of the Prime Minister. NOTES TO THE TEXT: Septennial Act (1716) – Legislation repealing the Triennial Act (1694) which extended the maximum life of parliament from three years to seven. Remaining in force until the Parliament Act (1911) restricted parliaments to five years, it was important in easing the transition to political stability and to Whig supremacy in the early years of the Hanoverian monarchy (George I (1714) – Victoria (1901)).

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Use the following verbs (in active or passive voice) with the word Parliament in your own sentences: to meet, to sit, 237

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to summon, to hold, to dissolve, to adjourn, to prorogue, to end, to convoke, to last, to  recall. TASK II. a) Compare the meanings of the verbs adjourn and prorogue: Adjourn (fr. à jour – ‘to a day’) – means literally ‘to put off to another day’: to stop a meeting for some period. Prorogue – to discontinue the meetings of a legislative assembly (usually Parliament for a definite or indefinite time without dissolving it; to discontinue meeting until the next session. b) Use the above verbs in the sentences below and translate the sentences: 1. The sitting of the House of Commons … and will resume on the following day. 2.  Parliament … for the summer recess. 3.  An … Parliament can be summoned quickly by the Speaker and the Lord Chancellor at the request of the Prime Minister. 4. There are statutory provisions for recalling each House while it stands … . 5.  Powers within the constitutional/personal prerogative category of powers include power to summon, … and dissolve Parliament. 6.  Solicitors in divorce cases must certify whether or not they have discussed the possibility of reconciliation with their clients, and proceedings may be … if the court feels there is a chance of reconciliation. 7.  A deliberative assembly’s meeting begins with a call to order and continues until the assembly … . 8. To … means to  discontinue a session of a legislative assembly, especially the British Parliament without dissolution. 9.  Each House divides a session into sittings, normally of a day’s duration, which end when a motion to … is passed. 238

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10. The motion to recess, which merely suspends the meeting, differs from the motion to … , which ends the meeting. TASK III. Make up sentences using the following phrases: 1. Although; to rule without Parliament; to obtain the legal power to raise taxes. 2. The consent of Parliament; to change any law. 3. Annual meeting of parliament; to exercise governmental powers. 4.  Although; the duration of Parliament; five years. 5.  Dissolution of Parliament; a general election. 6.  A vote of no confidence in the House of Commons… 7.  One of the main sources of prime ministerial power… 8.  Fixed term of Parliament; because. 9.  If a public bill… 10.  It is the monarch; each session of Parliament. TASK IV. Make up the list of all the laws and conventions mentioned in the text. TASK V. Parliament.

Give your reasons for and against a fixed term of

TASK VI. Use the following verbs in their correct tense forms debate, supervise, supply, choose, sustain, veto, criticize, amend, approve, include, increase, govern, exercise, control, develop, check, authorize. The Functions of Parliament In legal theory Parliament is the central institution of the UK constitution. Its functions … over the centuries as it gradually … its power over the Crown. In its combined form of Queen, 239

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Lords, and Commons, Parliament is the supreme lawmaker. Other functions of Parliament … by each House separately and sometimes through joint committees (for example, Joint Committee on Statutory Instruments). The other functions of Parliament … : (i) … and … a government; (ii) … the government with funds and … government spending; (iii) … the  executive through the  doctrine of ministerial responsibility; (iv) the redress of grievances; (v) … matters of public concern. It is important to remember that Parliament does not … but … and … the executive. Even in relation to lawmaking Parliament is a reactive and not an initiating body. It … , … , … , and occasionally … legislation.

TEXT 9 TYPES OF LEGISLATION The five main types of legislation considered by Parliament are: Government Bills; Private Members’ Bills; Private Bills; Hybrid Bills; Statutory Instruments. Government Bills embody Government policy and are introduced by a Minister. These are the most important form of legislation and take up the largest proportion of Parliamentary time. The Government’s Parliamentary majority means that Government Bills, with certain rare exceptions, are eventually passed and become part of the law of the land, though they may be heavily amended in the process. Example: The Ports Bill, which transferred certain ports from the public sector to private-sector ownership. 240

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Private Members’ Bills are introduced not by the Government but by an individual backbench MP or Peer of any political party. Because relatively little Parliamentary time is available for discussing these bills, their chances of being enacted and becoming law are much smaller. Example: The Children and Young Persons (Protection from Tobacco) Bill, which introduced reforms designed to reduce the sale of tobacco products to children. These two types of Bill are also known as Public Bills. They concern matters of general interest, and when passed they apply across the nation. Private Bills are promoted by organizations seeking specific, usually local, powers that do not involve the construction of works such as railways. Example: The Torquay Markets Bill, which allowed the  market building at Torquay, Devon, to  be used for alternative purposes. Hybrid Bills are Public Bills to which elements of Private Bill procedure apply. Example: The Channel Tunnel Bill, which authorized the construction of the Channel Tunnel. Statutory Instruments are detailed rules or regulations made under powers contained in an Act of Parliament. Statutory Instruments are also known as secondary legislation since they flow from primary legislation, i.e. Acts of Parliament. Example: The Draft Motor Vehicles (Wearing of Seat Belts in Rear Seats by Adults) Regulations, which required adults traveling in the rear seats of cars to wear seat belts when these are fitted. Most Public Bills apply to the whole of Great Britain: that is, to England, Scotland and Wales. Because the Scottish legal system differs in some respects from that of England and Wales, some Bills apply to Scotland, or to England and Wales, alone. 241

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LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. 1.  Describe the procedure of passing Government Bills. 2.  Prove that Private Members’ Bills have few chances of becoming law. 3.  Explain the difference between the Private Members’ Bills and the Private Bills. 4.  Give an example of a Hybrid Bill. 5.  Describe Statutory Instruments. TASK II. Translate or explain the  following wordcombinations: statutory instruments; to embody Government policy; an individual backbench MP; chances of being enacted; matters of general interest; rules and regulations; primary legislation; secondary legislation; the laws apply across the nation

TEXT 10 PASSAGE OF A PUBLIC BILL INTRODUCED BY THE GOVERNMENT INTO THE HOUSE OF COMMONS The preparation of legislation is often a lengthy process. The  content and policy of the Bill must be approved by the appropriate Cabinet committee and then by the full Cabinet. Reform may sometimes be preceded by Green or White Papers allowing pre-legislative consultation in Parliament. Consultation will also take place with various interest groups. By the end of this pre-legislative stage the main content of the Bill is effectively settled although further negotiations between the various interested parties continue throughout the passage through Parliament. 242

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Responsibility for drafting the Bill is with the Parliamentary Draftsmen, officially known as Parliamentary Counsel to the Treasury. Their draft is scrutinized by the Legislation Committee of the Cabinet. The Lord Chancellor’s Office and the Law Officers are also likely to examine the Bill to consider such matters as the proper legal wording and the practicalities of implementation. 1. First Reading. A Purely formal stage The title of the Bill is read out, an order is made for the Bill to be published and a date fixed for the second reading. 2. Second Reading The principles of the Bill are discussed on the  floor of the House. The Bill is voted on. 3. Committee Stage A detailed clause by clause analysis of the Bill by a standing committee of between 16-50 M.P.s. Detailed amendments are considered. 4. Report Stage The Bill is reported back to the whole House as amended. Further amendments, usually government sponsored, can be made at this stage. 5. Third Reading Once again the whole House considers the principles behind the legislation. Only verbal amendments can be made and any debate must be supported by at least six members. Once a Bill has passed its Commons’ stage it goes up to the House of Lords where the same process is repeated, except that the Committee stage is taken on the floor of the House. If the Bill is amended in the House of Lords, these amendments must be considered by the Commons. Often these amendments are tabled by the Government and so there is no problem in ensuring that the Commons will approve them. If, however, the amendments are rejected by the Commons, the Lords must decide whether to persist with these. If no agreement is reached 243

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before the end of the Session, the Bill will fail. The government must then decide whether to  reintroduce the  measure in the following session and invoke the provisions of the Parliament Acts 1911–1949. Once the Bill is passed by both Houses it receives the Royal Assent. This is purely formal. Variations on this Procedure 1. Bills may start life in either House. The Government must try to arrange its business to ensure that the Commons does not have all its work at the beginning of the session and the House of Lords has all its work at the end. Generally less controversial Bills, e.g. technical legal Bills are selected to start life in the Lords, high profile political Bills in the Commons. As the House of Commons has sole responsibility for financial matters, it has to carry the burden of the work on financial Bills. 2.  Some Bills have their Second Reading Stage in Committee. This is on the motion of a minister but can be prevented if 20 members object. This procedure was introduced in an attempt to save time on the floor of the House and is used for unopposed and non controversial legislation. If the Second Reading is in Committee, the Report Stage will also be in Committee. 3.  Some Bills have their committee stage on the floor of the House in the Commons. This procedure can be used for: (a)  non-controversial Bills where the committee stage would be purely formal; (b) Bills of major constitutional importance where all members wish to be involved at every stage; (c) Bills passed in an emergency; (d)  major clauses of Finance Bills. In these cases Committee and Report Stages will be combined. 244

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LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Use the text to provide adjectives for the following words and word combinations: process, Cabinet committee, Papers, interest groups, negotiations, Bills, wording, amendments, clauses. TASK II. Complete the following sentences: 1. The content and policy of the Bill … . 2. The main content of the Bill … . 3.  Responsibility for drafting the Bill … . 4. The title of the Bill … . 5. The principles of the Bill … . 6.  A detailed clause by clause analysis of the Bill … . 7.  Less controversial Bills … . 8. Technical legal Bills … . 9.  High profile political Bills … . 10. Bills of major constitutional importance ... . 11.  Major clauses of Finance Bills … . TASK III. Describe the  role of each of the  following participants in the enactment of a public Bill: a.  The appropriate Cabinet committee … . b.  The full Cabinet … . c.  Various interest groups … . d.  The various interested parties … . e.  The Parliamentary Draftsmen … . f.  Legislation Committee of the Cabinet … . g.  The Lord Chancellor’s Office … . h.  A standing committee … . i.  The whole House … . j.  The House of Lords ... . k.  The Government … . l.  Both Houses … . m.  A minister … . 245

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TASK IV. a)Provide nouns for the following verbs to make up sentences; use the verbs in the passive forms: receive, invoke, reach, reintroduce, reject, approve, consider, amend, support, read out, fix, examine, scrutinise, settle. b) Use the following verbs in the sentences below: received, receive, invoked, reach, reach, reintroduced, reject, reject, reject, approved, approved, considered, considered, considered, considered, amend, amended, support, support, read out, fixes, fix, examined, scrutinise, scrutinise, settle, settled. c) Translate the sentences: 1.  Many people argue that electoral reform is unlikely because MPs would … an electoral system which threatens their seats – the view that ‘turkeys do not vote for Christmas’. 2.  A flexible constitution can be … by simple parliamentary majority. 3.  A Sunday Telegraph poll found that 59 per cent of English respondents  … of Scottish independence; that 68 per cent favoured an English Parliament; 4.  Judges have always had power to decide what the common law is, and are now generally believed to be able to change it. They can modify or overrule even well … doctrines of the common law, if they are persuaded that those doctrines either were unjust all along, or have become incompatible with contemporary circumstances or values. 5. The principle of constitutionalism is neither a rule nor a principle of law. It is a political theory as to the type of institutional arrangements that are necessary in order to … the democratic ideal. 6. Departments are badly run, according to many ministers, and unable or unwilling to … longstanding problems. 7.  Parliament reluctantly (and the Government even more reluctantly) agrees to … the Human Rights Act to permit courts 246

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to quash any part of an Act of Parliament that does not meet the Convention right requirements. 8. The common law was … a law of reason, whose most fundamental principle was the welfare of the community. 9.  Ministers also were obliged to accept that cases would still proceed to the European Court of Human Rights in Strasbourg, and acknowledged that the UK still … itself bound by the Court’s rulings, despite grumblings from its own backbenches on this point. 10.  Any reform of watchdog arrangements has to ensure continuing operational effectiveness (including adequate resourcing) without diminishing public confidence in them and in the areas of government which they …. 11. In negotiations, the  Liberal Democrats may thus be prepared to … for Lords reform as a proxy for electoral reform. 12.  Without a functioning appeals system, authorities could refuse to disclose information safe in the knowledge that their case would not be … for a long time. 13. In Europe certain watchdogs are … to be more like judges and courts than officials or quangos. 14.  James Madison observed that ‘the British Constitution … no limit whatever to the discretion of the legislature’. 15. The statement is written down by the magistrates’ clerk, … to  the  witness in the  presence of the  accused, signed by the witness, and certified by the examining magistrate. 16.  Parties use the internet and blogging to try and … voters, especially those under 35 whose turnout at elections is low and who prefer the new to the conventional media. 17.  One interesting feature to watch, as both the judiciary and parliament become more assertive vis-à-vis the executive, is whether they … each other in seeking extension of their powers. 247

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18. The Government promised that properly worded petitions would … a ministerial response. 19.  Laws that have been … may be (no man doubts) again repealed, and to that end also disputed against, by the authors thereof themselves. 20. The judges had no authority to … even a statute whose main object was unreasonable, because ‘that were to  set the judicial power above that of the legislature, which would be subversive of all government’. 21.  Government bypasses the  conventional media to  … customer and client groups, such as pensioners and other benefit recipients. 22.  Political events sparked off by the watchdogs’ investigations may also offer MPs enhanced opportunities to … and influence the  internal workings of Government, including ministers, officials, special advisers and public appointments. 23. The Draft Constitutional Renewal Bill 2008 duly proposes to remove the discretion of the Lord Chancellor to  … or seek a reconsideration of appointments below the High Court (and the Prime Minister’s entirely formal role in the most senior appointments), although it does not take forward the proposals for any parliamentary involvement in the process. 24.  Mr Brown was sympathetic to  the  suggestions that petitions which … a certain level of support should be debated in the Commons. This view had previously been urged by David Cameron, the Leader of the Conservative Opposition. 25. The ‘force and effect’ of the Thirteenth Amendment itself has been … only a few times by the Court to strike down state legislation which it … to have … servitude of persons, and the Court has not used section 1 of the Amendment against private parties. 248

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TEXT 11 PARLIAMENTARY PRIVILEGE The House of Commons enjoys certain limited privileges, as does the House of Lords. When his election is confirmed, the  Speaker lays claim, in the  name of the  Commons of the United Kingdom, to their ‘ancient and undoubted rights and privileges’ which include liberty of speech in all their debates, and access by the House as a whole to the Sovereign. The main object of parliamentary privilege is to  protect the rights of the House and its members inside Parliament to the extent necessary to enable them to do their duty. It forms a special kind of law – its own law, interpreted and administered by itself within the walls of Parliament, but acknowledged and recognised everywhere as part of the law of the land. Freedom of Speech The most important privilege is that of freedom of speech. When a member is speaking to his fellow members, he enjoys a complete right of free speech, subject only to the rules of order administered by the Speaker. A member cannot be prosecuted for sedition, or sued for libel or slander in respect of anything said during proceedings in the House or published on its Order Paper. This means that it is possible to raise in the House questions affecting the  public good which might be difficult to  raise outside owing to a possible threat of the law of defamation. Such privilege is not a personal favour to the individual member, but a necessary protection and a guarantee that he should be able to defend to the full the interests of the electors. Thus theprivilege of members is to be regarded as the privilege of every citizen. 249

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Breach of Privilege Parliament has the right to punish anybody, either inside or outside the House, who is guilty of a breach of privilege – that is, of offending against the rights of the House. If an alleged breach occurs, the matter may be raised in the House by any member; if this is done at the earliest opportunity it may take precedence over all other business. The Speaker is then asked to consider whether the matter raised is serious enough to be given precedence over the planned business. If, after taking 24 hours to consider the precedents, he decides that it is, then no other business can be transacted until the House has either dealt with the alleged breach itself, or referred it to the Committee of Privileges, which investigates the matter and reports to the House after due inquiry both into the facts and into the law of privilege applicable to them. If on being summoned an offender admits the offence, but offers a full apology, the committee not infrequently recommends that it be accepted. The House then considers the committee’s report and decides whether or not the offender should be punished. Punishment for Contempt Parliament claims the right to punish not only breaches of its privileges, but ‘contempt’, which is any offence or libel against its dignity or authority. An offender may be detained within the precincts of the House, though this punishment has not been employed since 1880. Nowadays the House would probably direct offenders to be reprimanded. An offender who is not a member of the House is brought to the Bar by the Serjeant at Arms, and is there reprimanded by the Speaker in the name, and by the authority, of the House. If the offender is a member, he receives the Speaker’s admonition or reprimand standing in his place. An offending member may also be suspended or, in extreme cases, expelled from the House. Offenders, other than members, may be ordered to attend at the Bar of the House; all 250

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may be heard in extenuation of their offences, or in mitigation of their punishment, before the House decides what action to take. Privileges of the House of Lords The privileges of the House of Lords include: freedom of speech in debate; freedom of access to the Sovereign for each peer individually; and the  right to  commit for contempt. These privileges are not formally claimed by the Speaker as in the House of Commons, but are equally recognised in law. NOTES TO THE TEXT: To lay claim – to say that you have a right to own something. Sedition – the  publication of a statement about a person to  lower his reputation. Defamation – an act of writing or printing untrue statements in permanent form (libel); a false spoken statement (slander) . The Bar – a rail near the entrance to each House of Parliament, to which nonmembers may be summoned for reprimand.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Complete the table below; explain the meanings of the words or translate them: Verb Adjective Noun Precede Interpret Acknowledge Prosecute Protect Inquire Offend Mitigate TASK II. a) Insert the missing nouns from the list below into the combinations parliamentary+...: commissioner, privilege, 251

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committee, privilege, control, majority, procedure, business, timetable. b) Translate the sentences: 1. The forms of parliamentary ... include passing laws, scrutinizing government spending, authorising the raising of taxes, and debating government decisions. 2. The Government’s parliamentary ... means that Government Bills are eventually passed and become part of the law of the land. 3.  A parliamentary ... is a special right or immunity available either to the House collectively or to individual members. 4.  Contempt includes, for example, abuses by MPs of parliamentary ... , disruption in the House, improper or dishonest behaviours by MPs, and even harassment of, or allegations against, MP in newspapers. 5.  Parliamentary ... often sit in private. 6. It is probable that speech even within the House which is unrelated to parliamentary ... enjoys no privilege. 7. It is apparently a contempt of Parliament even to begin legal proceedings against an MP in respect of a matter protected by full parliamentary .... 8. The parliamentary ... is determined by the government under standing order 13. 9.  Since 1967 a special official, the  parliamentary ... , popularly known as ‘ombudsman’, has existed to assist members of Parliament investigate complaints against the  central government on behalf of citizens. TASK III. a) Match the following word combinations with their meanings: Act of Parliament, contempt of Parliament, Member of Parliament (MP), Mother of Parliaments, the  European Parliament. 252

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b) Use them in your own sentences: A.  = Person elected to represent a constituency in parliament; B.  = Decision which has been approved by Parliament and so becomes law. C.  = Parliament made up of delegates elected by each member state of the EC. D.  = Conduct which may bring the authority of Parliament into disrepute. E.  = The British Parliament at Westminster. TASK IV. Discuss ‘Parliamentary privilege’ as it is understood in the UK and in your country. TASK V. a) Explain the  importance of the  freedom of speech privilege enjoyed by members of Parliament. b) Discuss breach of privilege and its consequences. c) Compare the privileges of the Lords with those of the Commons. d) Discuss the privileges enjoyed by the members of your national Parliament. TASK VI. a) Choose those events in the history of Parliament that predetermined the current constitutional developments and reforms. b) Explain how the  evolution of the  legislature reflects the history of the nation. 1215: Magna Carta was sealed by King John. This set the  founding principles for parliament and constitution. It defined rights, legal practices and ‘good lordship’ – what subjects could expect from their monarch and superiors. 1295: Model Parliament summoned by Edward I and generally regarded as the first representative assembly. 253

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1341: Commons and Lords separated for the first time. 1407: Commons were given power over taxation. 1414: Full equality of Commons and Lords on legislation. 1512: Lords meet in the Parliament chamber. 1523: First known request by the Speaker for free speech (Speaker Thomas More). 1536: Wales was represented in the House of Commons. 1544: Term ‘House of Lords’ was used. 1605: Gunpowder plot. 1649: House of Lords abolished during Oliver Cromwell’s Commonwealth. 1660: Monarchy restored and House of Lords resumes. 1688–1689: Glorious Revolution and Bill of Rights established the constitutional monarchy and limited the power of the sovereign over Parliament. 1707: Last Royal veto on a Bill. Queen Anne refuses to give Royal Assent to the Scottish Militia Bill. 1707: Union of England and Scotland. Scottish Parliament was abolished; first meeting of Parliament of Great Britain which then became the Parliament of the United Kingdom. 1716: Septennial Act extended the length of Parliaments to seven years. 1800: Act of Union (with Ireland). In 1801, 100 Irish MPs entered the House of Commons and Irish Peers elected representatives from among their number to sit in the Lords. 1803: Newspaper reporters were allocated seats in the public gallery for the first time. 1832: Reform Act increased the electorate by almost 50 per cent and to 57 per cent overall. 1876: Appellate Jurisdiction Act. Lords of Appeal in Ordinary (Law Lords) were created as full-time, professional judges. 1911: Parliament Act removed the House of Lords’ right to refuse a Bill passed in the Commons – except those that proposed to extend the life of Parliament. 254

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1918: Fourth Reform Act and Representation of the People Act gave the vote to men over 21 and women over 30 – increasing the electorate from 8 million to 21 million. 1919: First female MP. Viscountess Nancy Astor is the first woman to take her seat as an MP. 1920: Government of Ireland Act. Southern Irish MPs no longer attended UK Parliament. 1928: Representation of the People (Equal Franchise) Act reduced voting age for women to 21. 1949: Parliament Act reduced the Lords ability to delay a Bill passed in the Commons from two years to one year. 1958: Life Peerages Act permitted creation of peerages for life to persons of either sex, with no limit on numbers. First female life peer – Baroness Wootton of Abinger – is created. 1963: Peerage Act allowed hereditary peerages to be disowned for life, hereditary peeresses to be members of the House of Lords and all Scottish peers to sit. First female hereditary peer: Baroness Strange of Knokin. 1978: Radio broadcasts of proceedings in Parliament began on a permanent basis. 1985: Proceedings in the Lords were televised for first time. 1989: Commons proceedings were televised for first time. 1997: Parliament website was launched. 1999: UK devolution. Devolution of powers to  Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly. 1999: House of Lords Act removed the right of all but 92 hereditary peers to sit in the House of Lords. 2002: Webcasts of Parliament proceedings began. 2005: Constitutional Reform Act separated judiciary from the legislature with the creation of a Supreme Court (from 2009) when the judicial function of the House of Lords ceased. 2006: First Lord Speaker. Baroness Hayman elected as the first Lord Speaker. 255

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UNIT IV

2009: Judicial role of House of Lords ended. The final House of Lords hearings and judgments took place on 30 July 2009. The judicial function was transferred to the Supreme Court of the United Kingdom from 1 October 2009. TASK VII. TEST your knowledge of the  ACTIVE VOCABULARY: executive – the part of a government that is responsible for making sure that new laws are done in the way they have been planned; a person in an executive position legislate – to make law or laws legislation – a law or set of laws; the act of making laws legislature – a body of people who have the power to make and change laws legalise – to make a law that allows people to do something that was not allowed before succeed – to follow in a position, to be the next person to take a position succession – the act of taking over an office or a position successive – coming or following one after the other body – a) a group of people working together, a governing body; b) the central part of some thing, body of information; c) a combination, of people or thing, a corporate body; d) a dead body, a corpse authority  – a) the  ability, power or right to  control and command; b) (oft. pl) a group of people with this power, esp. in public affairs; c) a paper giving this power; d) a judicial decision or other source of law, precedent summon – to officially order someone to come to a meeting, a court of law etc. 256

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summons – a court order to an individual to appear in court at a specified place and time subject – a) someone who was born in a country that has a king or a queen (compare ‘citizen’, ‘national’); b) a branch of knowledge; c) the thing people are talking about or discussing subject – governed by or dependent on subject – to bring under firm control void – having no legal effect, invalid convention – a) a treaty, usually of a multinational nature; b) constitutional c.-practices relating to the exercise of their functions by the  Crown, the  government, Parliament and the judiciary that are not legally enforceable but are followed as if they were; c) US party c. or national c.-meetings of people with a shared purpose binding – having the power to demand obedience to a law or fulfillment of a contract reverse bind – to change something completely, to alter to the opposite veto – a refusal to give permission for something or to allow something to be done veto – to prevent or forbid some action or a law delay – to put off to a later time (a meeting or adoption of a bill) object – a) a thing; b) an aim or a purpose object – to protest to oppose objection – a reason against doing something (to raise/voice an o.) objective – not influenced by personal opinions or feelings objective – an aim, a purpose confer – a) to discuss something, to compare opinions; b) to give a title, honour, etc. surrender – to give up or give in to the power 257

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defer – to delay something until a future time, to postpone deference – behaviour that shows that you respect someone because of his higher position or greater power suffrage – the right to vote in public elections resign – to give up office or a job resignation – official leaving of a job elevate – to raise in rank or status elevation – the act of raising someone’s position impartial – fair, not giving special favour or support to any one side impartiality – the state of being fair, unbiased second – to formally support a suggestion or a plan initiate – to begin or set going; to introduce(a bill) submit – a) to put forward for consideration; b) to be (voluntarily) subjected to a process The following issues will help you to answer the exam questions BRITISH PARLIAMENT: 1) COMPOSITION, POWERS AND REFORM; 2) LAW MAKING PROCEDURE IN PARLIAMENT and to write your essays: 1. British Parliament in historical perspective. 2. Is British Parliament a truly democratic representative body? 3. The relationships between the three elements constituting Parliament. 4. The legislative powers of each House. 5. The changing role of the House of Lords. 6. The future of the British Parliament.

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TEXT 1 PARLIAMENTARY GOVERNMENT (A)  An important group of conventions concerns the  relationship between the  executive and Parliament and gives the British constitution its character as a Parliamentary democracy. The Prime Minister is the leader of the majority party in the Commons and appoints other ministers. Senior ministers under the  Chair of the  Prime Minister form the Cabinet which is responsible for overall government policy. According to traditional doctrine the location of power lies in the balance between Prime Minister, Cabinet and Commons. The Crown by convention must usually dissolve Parliament if requested to do so by the Prime Minister and the Prime Minister must request her to dissolve Parliament if defeated on a vote of confidence in the Commons. A government holds office until it loses the support of the Commons. Except where the government is defeated on a vote of confidence the Prime Minister can decide when to dissolve Parliament and so cause a general election. This, along with the Prime Minister’s power to appoint and dismiss ministers is the most important source of prime ministerial power. The Scotland, Wales, and Northern Ireland Chief Ministers do not have such strong powers over their governments. 259

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(B)  All ministers must be members of Parliament and most must be members of the House of Commons. Ministers are collectively responsible for government policy and individually responsible to Parliament for the conduct of themselves and their departments. However in recent years the  ministerial responsibility has been criticised as blurring rather than focusing responsibility. Collective responsibility allows ministers to shelter within the  group and refuse to  divulge information while individual responsibility shields the civil servant who actually took the  decision. On the  one hand, government functions are arguably too large, diverse and dispersed for it to be fair to hold ministers responsible in respect of matters not directly under their control. On the other hand, without the chain of responsibility from officials through ministers to Parliament the democratic system is seriously flawed. (C)  Bagehot claimed that the Cabinet was the essential link in the constitution between Parliament and the executive which gave the system its motive power. It is often argued however that the Cabinet is losing political power because a group of this kind cannot deal with the size and complexity of modern government. According to this view, power is dispersed through a network of departmental officials, ministers and politically influential outsiders from business, the media, and the professions. (D)  It is worth noting that the Cabinet system developed originally as a defence against the  monarchy, to  stop the  eighteenth-century Hanoverian kings from dominating the executive with their own supporters. According to Bagehot, the fact that the leaders of the executive are part of Parliament, and chosen by Parliament, enables the executive to get its way in normal circumstances but also enables Parliament to get rid of a failing government quickly. However, as Bagehot later feared and Dicey realised, the modern practices of strong party discipline and paid professional politicians mean that Parliament is likely to be more subservient to the executive than was the case 260

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during Bagehot’s time. The opposition has a constitutional duty to criticise the government but by definition the opposition is a minority and may be in disarray for several years after an election defeat. (E)  Parliamentary government can be contrasted with the  ‘presidential’ form of constitution such as that of the USA which is based on a strict application of the doctrine of the  separation of powers. In the  USA the  president is directly elected by the  people and the  cabinet cannot be members of the legislature. Moreover the legislature cannot get rid of the  executive except by the  rarely used hybrid judicial and political process of impeachment for ‘high crimes and misdemeanours’. The model of the  USA has not been widely followed and democratic constitutions tend to the parliamentary model. Some constitutions, for example that of France, are hybrids of parliamentary and presidential systems. In France the president is directly elected; members of the executive need not be members of the legislature but the government can be dismissed by the legislature. (F)  Finally the system of parliamentary government depends upon the  existence of a strong, permanent and impartial professional civil service with the functions of advising ministers, carrying out governmental instructions and ensuring continuity and expertise. The civil service has been variously described as the ballast and the collective memory of the constitution, roles which are arguably particularly important in an unwritten constitution. Unlike the  case in the  USA, an incoming government does not bring with it a change in the senior civil service personnel so that the impartiality of the civil service is an essential element of the system. (G)  The convention of ministerial responsibility has traditionally shielded civil servants from personal responsibility for actions carried out on behalf of government and enabled them to  give independent advice to  ministers. However 261

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there has recently been some relaxation of the convention of ministerial responsibility in that civil servants have sometimes been required by ministers to take public responsibility for their actions. Moreover the current practice of structuring the routine activities of government as semi-independent ‘executive agencies’ for which individual civil servants are managerially responsible has weakened the doctrine of ministerial responsibility. (H)  Scotland, Wales and Northern Ireland have their own governmental bodies which carry out functions other than those reserved to the central government. However, Parliament probably has the overriding power to legislate on any matter for any part of the UK. Local Authorities are elected bodies which to a limited extent can raise taxes. However, their powers are controlled by ministers and they have little policy-making freedom. NOTES TO THE TEXT: House of Hanover – a branch of the Guelf Dynasty, more specifically the Brunswick-Lüneburg line which, in 1692, acquired the Electoral dignity for Hanover. Monarchs from the House of Hanover ruled their British and German dominions in personal union until the death of William IV in 1837. Thereupon, the British crown went to Queen Victoria who was, however, disqualified under the Salic Law from the succession in Germany. Impeachment – charge of treason brought against a head of state (in the USA, also a charge of misconduct against any public official). ‘High crimes and misdemeanours’ – serious and minor crimes.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Study the  meanings of ‘government’ and determine in which one it is used in the text and in the exercises below: • The government is but an agency of the state, distinguished as it must be in accurate thought from its scheme and the machinery of government. 262

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• The system of poliсy in a state; that form of fundamental rules and principles by which a nation or state is governed, or by which individual members of a body politic are to regulate their social actions. •  The sovereign or supreme power in a state or nation; •  The machinery by which the sovereign power in a state expresses its will and exercises its functions. • The framework of political institutions, departments and offices, by means of which the executive, judicial, legislative and administrative business of the  state is carried on. • The whole class or body of officeholders or functionaries considered in the  aggregate, upon whom devolves the  executive, judicial, legislative, and administrative business of the state. • The regulation, restraint, supervision, or control which is exercised upon the individual members of an organized jural society by those invested with authority. •  The act of exercising supreme political power or control. Black’s Law Dictionary TASK II. Use the following words to complete the sentences below: Her Majesty’s, democratic, departments, bills, successive, intervention, effective, functions, central, activities, policy, departments, new: 1.  People want ... government. 2. The leader of the Opposition is promising to provide ... government. 3. The ... government has decided to  introduce new immigration laws. 4.  Government ... in the spheres of health, employment, education and social security became far-reaching in the twentieth century and ... Governments assumed additional 263

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responsibilities in relation to economic planning, technological development, transport facilities, fuel and power supplies, housing, agriculture, protection of the  environment and the systematic planning of land use. 5.  Although new departments have been created from time to time to deal with expanding Government ..., the growth of Government ... has tended to lead to an expansion of separate Government ... . 6. The number of staff in Government ... – ‘Civil Servants’ – has grown very considerably. 7.  Outside both the departmental structure and the Civil Service there are activities in which the  ... Government is involved, but in which the actual administration is carried on by local authorities. 8.  ... Government is the  body of ministers charged with the administration of national affairs. 9.  Cabinet is responsible for overall government ... . 10.  Government ..., with certain rare exceptions, are eventually passed and become part of the law of the land, though they may be heavily amended in the process. TASK III. Connect the  following notions to  make up sentences: •  Conventions – the executive and Parliament – Parliamentary democracy. •  Prime Minister – majority party – Commons – other ministers. • The Prime Minister – Senior Ministers – Cabinet. •  Prime Minister – Cabinet – Commons. • The Crown – Parliament – Prime Minister. •  Prime Minister  – the  Crown  – Parliament  – vote of confidence. •  Prime Minister – Parliament – general election. •  Prime Minister’s power – ministers – source of power. 264

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• The Scotland, Wales and Northern Ireland Chief Ministers – their governments. TASK IV. Sum up the idea of each paragraph of the text in one or two sentences. TASK V. Insert the missing Government, Parliament and translate the text: Ministerial responsibility has two broad aspects. Collective responsibility traditionally means that all members of the cabinet and probably other 1) ... ministers must loyally support the policies of the 2) ... even if they, as individuals, had no share in drawing them up. Individual responsibility means that individual ministers must answer to 3) ... for the conduct of 4) ... departments under their formal control. It also means that permanent officials, who in practice make the majority of 5) ... decisions must be absolutely loyal to ministers and are not directly accountable for their actions except within their own departments. This may be one reason for the anonymity and secrecy that surrounds British 6) ... . Ministerial responsibility to  7) ... does not mean that 8) ... controls the day-to-day business of 9) ... or that 10) ... gives orders to the 11) ... The word ‘responsible’ means many things, but in this context- it means ‘accountable’, so that the 12) ... must explain its actions to 13) ... In the last resort 14) ... can dismiss the 15) ... on a vote of no confidence. 16) ... is confrontational in two senses. Firstly, 17) ... as such confronts the executive. Secondly, within 18) ... there is confrontation between 19) ... supporters and the opposition, and to a lesser extent between Lords and Commons. In theory ministerial responsibility is buttressed by the convention that ministers must be members of 20) ... In practice this may have the opposite effect by making it easier for ministers to dominate 21) ... . Many other countries (e.g. the Netherlands) have a 265

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principle of parliamentary accountability coupled with separate memberships of executive and 22) ... . TASK VI. a) Find in the text and compare the usage of the words: (the, a, -) government; (the) executive; (the) Cabinet. Compare the following definitions, choose the most complete one and justify your choice. Cabinet  – those Privy Councillors who, under the  name of cabinet ministers or cabinet council, actually transact the immediate business of the Government, and assemble for that purpose from time to time as the public exigencies require. The Cabinet is a body first established by Charles I. Executive – the branch of government which is entrusted with carrying the  laws into effect. The supreme executive power is vested in the King or Queen for the time being who by convention acts on ministerial advice. Government – this word is most frequently used to denote the principal executive officer or officers of a State or territory. Thus, in England, ‘the government’, generally is understood to mean the Ministers of the Crown for the time being. Mozley & Whiteley’s Law Dictionary Cabinet – committee formed of the most important members of the government, chosen by the Prime Minister or President to be in charge of the main government departments. The Executive – section of a government which puts into effect the laws passed by Parliament. Government – (a) way of ruling or controlling a country; (b) organization which administers a country. P.H. Collin, Dictionary of Law

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Cabinet – a body of ministers consisting mostly of heads of chief government departments but also including some ministers with few or no departmental responsibilities; it is headed by the Prime Minister, in whose gift membership lies. As the principal executive body under the UK constitution, its function is to formulate government policy and to carry it into effect (particularly by the initiation of legislation). The Cabinet has no statutory foundation and exists entirely by convention, although it has been mentioned in statute from time to time, e.g. in the Ministers of the Crown Act 1937. Government department – an organ of central government responsible for a particular sphere of public administration (e.g. Treasury). It is staffed by permanent civil servants and is normally headed by a minister who is politically responsible for its activities and is assisted by one or more junior ministers, usually responsible for particular aspects of departmental policy. Oxford Dictionary of Law b) Use (the, a, -) government; (the) executive; (the) Cabinet in the following sentences: 1. The head of the ... became known as the Prime Minister during the eighteenth century. 2. It is the duty of the Prime Minister to preside over the ... . 3. The prime Minister speaks for the ... in the House of Commons on the most important topics. 4.  Ministers not in the ... are called to attend its meetings when matters affecting their departments are under discussion. 5.  Any decision by a departmental minister binds the ... as a whole. 6. In normal times the ... meets for a few hours once or twice a week during parliamentary sittings, and rather less frequently when Parliament is not sitting. 7. The Prime Minister, the Ministers of State in the ... and their ... departments manned by civil servants are known as the ... . 267

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TEXT 2 CABINET AND PRIME MINISTER All major government decisions are taken by the Cabinet, a committee of senior government ministers. It is for the Cabinet to  determine the  policies, to  be submitted to  Parliament, to determine the content and priorities of legislative proposals, and to ensure that the relevant policies are carried out. By convention all members of the Cabinet are collectively responsible for decisions taken. While the  matter is under discussion ministers can air their views but once the matter is decided all members of the Government, whether within the Cabinet or not, must support it. If they are unable to do this then they should resign as Michael Heseltine did during the Westland affair. The force with which this convention is observed has varied with the political climate. Indeed it was formally suspended during the campaign prior to the referendum on continuing membership of the E.U. There are no rules prescribing the size of the Cabinet. It varied last century from small war time cabinets where the ministers had no departmental responsibilities, to cabinets consisting of more than 20 ministers representing all the main departments of state. Increasingly the Cabinet operates through a network of committees, the result being that ministers may be bound by decisions in which they have had little more than nominal participation. The terms of reference of these committees and their membership were made public for the first time in 1992. As with the Cabinet itself, the office of Prime Minister is one which is barely recognised in law. Last century saw a steady increase in the powers of the Prime Minister who is now in a very strong position. (a) As leader of the party in power, he has been chosen by the electorate, has control over the party machinery and can 268

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normally rely on the strength of party loyalty to maintain his position. His public profile is higher than that of any other minister. (b) As chairman of the  Cabinet, he can to  a large extent determine the nature of discussions within the Cabinet. No votes are customarily taken. Rather, the Prime Minister sums up the sense of the meeting. Matters can be referred to subcommittees and the agenda manipulated to ensure the desired result. (c) As ultimate head of the civil service, the Prime Minister has powers over senior appointments and access to  all information. (d) The Cabinet Office, although technically providing a service for all members of the cabinet, has grown in recent years into the Prime Minister’s special source of assistance and information. This greatly strengthens the Prime Minister’s ability to argue against proposals put forward by departmental ministers who are forced to rely almost entirely on the briefs, prepared for them by their departmental civil servants. This has been supplemented in recent years by a substantial increase in the use of ‘special advisers’. (e) The Prime Minister is the source of much patronage. He appoints and dismisses government ministers and has at his disposal a wide selection of public appointments, honours, etc. It is, however, wrong to  think of the  Prime Minister as having absolute power. However dominant, he must keep the support of his party both inside and outside Parliament. Ultimately his strength will depend on his personality, but as Rodney Brazier points out, when affairs go badly his authority will wane and if luck deserts him he may well be finished. The removal of Prime Minister Thatcher in 1990 following her failure to win conclusively in the first ballot of the leadership election, emphasises the Prime Minister’s ultimate dependence on continued party support. 269

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NOTES TO THE TEXT: Westland – a British company making helicopters which was at the centre of a major public disagreement between senior politicians in the Conservative government led by Margaret Thatcher in 1986. Westland was in serious financial difficulties. Michael Heseltine, the minister of defence, wanted it to be sold to a group of European companies, but Leon Brittan, the secretary of state for trade and industry, and other senior politicians, wanted it to be sold to the US company Sikorski. Michael Heseltine resigned from the Cabinet when he was told that he could not make any public statement on the matter without Mrs Thatcher’s approval. Leon Brittan later resigned when he was forced to admit that he had allowed a secret letter criticizing Michael Heseltine to be made public. Westland was sold to Sikorski. Shadow Cabinet – the group of British MPs from the Opposition (= the main party opposing the government) who would probably form the Cabinet if their party were in power. Each member of the Shadow Cabinet speaks on behalf of his party on matters for which he or she would be responsible.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Complete the sentences, use the verbs in passive forms: 1.  All major government decisions (take) … . 2. The policies to be submitted to Parliament (determine) … . 3. The Cabinet ensures that the relevant policies (carry out) … . 4.  Once the matter (decide) … . 5. The convention (observe) … . 6. The convention (suspend) … . 7. The size of the Cabinet (prescribe) … . 8. The office of Prime Minister (recognize) ... . 9.  Ministers may (bind) … . 10. The Prime Minister (choose) … . 11.  No votes customarily (take) ... . 12.  Matters (refer) to sub-committees ... . TASK II. Find in the text those sentences which express similar ideas: 1. The functions of the Cabinet are: the supreme control of the national executive in accordance with the policy agreed by 270

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parliament; and the continuous coordination and delimitation of the authority of Government departments. 2.  Under the doctrine of collective responsibility the Cabinet is bound to offer unanimous advice to the Sovereign, even when its members do not hold identical views on a given subject. In principle, once the Government’s policy on a particular matter has been decided, each minister is expected to support it, unless he chooses to resign, as he is free to do. 3. In the exceptional circumstances preceding the referendum in June 1975 on British membership of the  European Community, ministers were free to campaign in the country against the Government’s recommendation. 4.  A great deal of the  work of the  Cabinet is carried on through the committee system, which involves the reference of any issue either to a standing Cabinet committee or to an ad hoc committee composed of the ministers primarily concerned. 5. The unique position of authority enjoyed by the Prime Minister derives from his power to submit his own choice of ministers to the Sovereign and to obtain their resignation or dismissal individually. He makes recommendations to the Sovereign for the award of many civil honours and distinctions. TASK III. Insert the proper prepositions into following: 1. The Cabinet is composed ... ministers personally selected ... the Prime Minister and may include the holders of departmental and non-departmental offices. 2. Its origin can be traced back ... the informal conferences that the Sovereign held ... his leading ministers, independently ... the Privy Council, ... the seventeenth century. 3.  After the Sovereign’s withdrawal ... an active role in politics ... the eighteenth century, and the development ... organised political parties the Cabinet assumed its modern form. 4. The functions of the Cabinet are: the final determination ... the policy to be submitted ... Parliament; the supreme control 271

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of the national executive in accordance ... the policy agreed ... Parliament. 5. The exercise of these functions is vitally affected ... the fact that the Cabinet is a group of party representatives, depending ... its existence ... the support of a majority ... the House of Commons.

TEXT 3 GROWTH OF THE EXECUTIVE Impelled by the demands of a larger electorate, the executive branch of government began to increase in size and range of powers and the modern professional civil service came into being. From the  1870s until the  1970s the  constitution was dominated by a communitarian ideology which saw the function of government as not only to  keep order but to  provide for the well-being of its people. The powers of the House of Lords representing the old balanced constitution were diminished and executive discretionary power increased. Governmental functions which had previously been exercised by local bodies were increasingly concentrated in central departments under the control of ministers answerable to Parliament. The eighteenth-century statute book was dominated by laws protecting property policed by the courts. During the nineteenthcentury the wider franchise led to social welfare legislation which required a large and powerful executive. Nineteenth century public health and safety legislation was followed, in the early twentieth century, by substantial housing and urban development legislation. Immediately after the Second World War a wide-ranging welfare system was introduced. This included the Education Act 1944, the National Health Service Act 1946, 272

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the National Insurance Act 1946 and legislation nationalising the Bank of England and the  coal, gas, electricity, public transport, and steel industries. The dominant economic belief was that the economy should be driven by the state. Subordinate legislation and non-statutory rules were made by the executive on a large scale with limited parliamentary scrutiny. Thousands of administrative tribunals staffed by government appointees were created to deal with the disputes generated by this expansion of state activity. The constitution made only marginal responses to these fundamental changes. The traditional ideas of the  rule of law as embodied in the common law and of accountability to  Parliament were not seriously challenged even though the executive seemed to have outgrown both these constraints. The Donoughmore Committee on Ministers’ Powers (1932) and the Franks Committee (1958) recommended marginal reforms which buttressed the powers of the courts and supplemented parliamentary scrutiny of the  executive. These included a parliamentary committee to  scrutinise such subordinate legislation as statute required to  be laid before Parliament (Statutory Instruments Act 1946) and the creation of a Council on Tribunals with powers to approve procedural rules for most administrative tribunals and statutory inquiries (Tribunals and Inquiries Acts 1958, 1971). From the  1960s various ‘Ombudsmen’ were set up to investigate complaints by citizen against government but without enforceable powers. Recognising the inevitability of executive discretion and reluctant to appear to be challenging the majority, the courts began to defer to political decisions, an attitude which was particularly strong after the Second World War compared with the conflicting attitudes expressed before the First World War. In the inter-war period, opposite fears were expressed, some believing that the  executive had taken over, others worried that an individualistically minded judiciary would frustrate 273

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popular programmes. However since the 1960s the courts have strengthened their powers of control over the executive so much that worries have been expressed that they are interfering too much in politics. NOTES TO THE TEXT: Subordinate legislation (delegated legislation) – Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any Act of Parliament. Civil service  – the body of Crown servants that are employed to  put government policies into action and are paid wholly out of money voted annually by Parliament. Civil servants include the administrative and executive staff of central government departments (e.g. the Home Office and Treasury) and the industrial staff of government dockyards and factories. Civil servants may serve in established or unestablished capacities, with effects on pension entitlement, etc. The police (not being Crown servants), the armed forces (not being civil), government ministers, and those (e.g. judges) whose salaries are charged on Consolidated Fund are not civil servants. Ombudsman – Parliamentary Commissioner, an official who investigates complaints by the  public against government departments or other big organizations. The word ombudsman comes from the Scandinavian Ombud, a commissioner. The -man/-men suffix is entirely English. Statute book – the entire body of existing statutes.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Explain the usage of the following passive verbforms; translate the sentences: 1.  From the  1870s until the  1970s the  constitution was dominated by a communitarian ideology. 2. The powers of the  House of Lords representing the old balanced constitution were diminished and executive discretionary power increased. 3.  Governmental functions which had previously been exercised by local bodies were increasingly concentrated in central departments under the control of ministers answerable to Parliament. 274

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4. The eighteenth-century statute book was dominated by laws protecting property policed by the courts. 5.  Nineteenth century public health and safety legislation was followed, in the early twentieth century, by substantial housing and urban development legislation. 6. Immediately after the Second World War a wide-ranging welfare system was introduced. 7. The dominant economic belief was that the economy should be driven by the state. 8.  Subordinate legislation and non-statutory rules were made by the executive on a large scale with limited parliamentary scrutiny. 9. Thousands of administrative tribunals staffed by government appointees were created to deal with the disputes generated by this expansion of state activity. 10. The traditional ideas of the rule of law as embodied in the common law and of accountability to Parliament were not seriously challenged even though the executive seemed to have outgrown both these constraints. 11.  From the  1960s various ‘Ombudsmen’ were set up to investigate complaints by citizen against government but without enforceable powers. 12.  However since the 1960s the courts have strengthened their powers of control over the executive so much that worries have been expressed that they are interfering too much in politics. TASK II. Use the verbs in brackets in the correct form in the following passage about Civil Service: 1) British civil servants are servants of the Crown, which in practice (mean) the government. 2) Responsibility for the Civil Service (divide) between the Cabinet Office and the Treasury. The Prime Minister is Minister for the Civil Service. 3) Some civil servants (work) in government departments. 4) They (expect) to work with a government formed by any 275

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political party and to  remain fair and impartial, whatever their personal opinions. 5) A change of government, or the appointment of a new minister in charge of a department, (not involve) a change of its civil servants. This is very useful to ministers who are new to an area of responsibility and have little time to learn about it. 6) The most senior civil servant in a department (call) the Permanent Secretary. 7) Ministers (not allow) to ask civil servants to do work that (intend) to promote a political party. 8) In the past ministers (rely) almost entirely on the advice of their civil servants when making decisions. 9) The power that senior civil servants had over politicians humorously (show) in the television series ‘Yes, Minister’. 10) More recently, party politics and pressure from Members of Parliament and commercial organizations may (have) greater influence on decision-making. 11) Most civil servants directly (not involve) in government. 12) In 1999 there (be) about 500 000 civil servants, a quarter of whom (employ) in the Ministry of Defence. TASK III. Fill in the following table to describe the main trends in the law-making policy in the 18-th – 20-th centuries. Century

Legislation passed

TASK IV. Paraphrase the following sentences from the text: 1. Impelled by the  demands of a larger electorate, the executive branch of government began to increase in size and range of powers. 2. The constitution made only marginal responses to these fundamental changes. 276

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3. The Franks Committee (1958) recommended marginal reforms which buttressed the  powers of the  courts and supplemented parliamentary scrutiny of the executive. 4.  Recognising the inevitability of executive discretion and reluctant to appear to be challenging the majority, the courts began to defer to political decisions. 5. In the inter-war period, opposite fears were expressed, some believing that the executive had taken over, others worried that an individualistically minded judiciary would frustrate popular programmes. TASK V. Express your opinion about the  following QUOTATION: For forms of government let fools contest; Whate’er is best administer’d is best. Alexander Pope, Essay on Man

TEXT 4 ‘HOLLOWED-OUT GOVERNMENT’ The election of the Conservative government in 1979 led to a return to individualistic ideology perhaps generated by the growing awareness that the welfare state cost more than the UK’s declining economy could support. Most of the nationalised industries and also water supply and sewage services were privatized. The central government increased its powers of control over local authorities to prevent them from retaining the communitarian orthodoxy. The central government attempted to confine itself to the roles of coordinator and regulator by devolving the delivery of services to a range of miscellaneous bodies both public and private and within its own apparatus set up quasi-autonomous agencies. It has been argued that although 277

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central government retains formal control, for example through powers to make appointments, to lay down policy guidelines and to regulate these dispersed bodies, it has neither the resources nor the will to co-ordinate its increasingly dispersed progeny. This is an aspect of a wider development which raises doubts about the role of the state and about representative democracy. The traditional state has been attacked both from without and within. The ‘global economy’ is a fashionable idea. It will be recalled that the origins of the state were military as a method of defending a community against foreign aggression. Until the Second World War the international community was regarded as a Hobbesian state of nature where the rule of law operated within state boundaries, the  state being the  guarantor of welfare, the  stage-manager of the economy and the protagonist in the international arena. However the  Second World War persuaded the  international community to develop common principles regulating the economy and also concerning ‘crimes against humanity’ such as genocide and torture, a process that has steadily developed through a series of treaties some of which, for example the European Convention on Human Rights and the Torture Convention (1984), have been incorporated into UK law. Technology has speeded up communications to such an extent that states have become economically interdependent, allegedly to a greater extent than before, and large international firms are wealthier than many states. Governments have lost levers of power such as control over flows of money and other information. These economic developments are reflected by the growth of international bodies such as the World Trade Organisation and the EU, albeit the latter might be regarded as the last gasp of oldfashioned statism with its claim to a ‘European’ identity. The balance of power that concentrated military efforts on perceived threats from overseas was destroyed in the 1980s by the collapse of the Soviet Union. This released many local pressures within the old state boundaries based on ethnic, religious and racial 278

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conflicts and led to an increased concern for human rights both of individuals and minority groups to which state boundaries are largely irrelevant. These developments do not make the state redundant. Indeed sentiments about globalisation and the obsolescence of the nation state, similar to those expressed today, were prevalent in the nineteenth and early twentieth centuries until the dream was interrupted by the First World War. Territorial units of government may be an essential requirement of the human species. The state remains vital as a guarantor of order, a major contributor to economic well-being and a last resort for the vulnerable. It is unlikely that the more radical predictions that the state’s functions will be entirely superseded by international bodies, local communities and private companies, will be realised in the foreseeable future. LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Compare the following definitions of state and determine in which meaning the word is used in the text: State – a sovereign and independent entity capable of entering into relations with other states and enjoying international legal personality. To qualify as a state, the entity must have: (1) a permanent population; (2) a defined territory over which it exercises authority; (3) an effective government. Oxford Dictionary of Law State – (a) independent country; semi-independent section of a federal country (such as the USA); (b) government of a country. P.H. Collin, Dictionary of Law TASK II. Read the  following and analyse the  given approaches to state: Broadly speaking the state means the supreme government within a community, but the term is also used to describe an 279

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independent country within the international community, the term ‘state’ derives from ‘status’ or ‘estate’ and originally meant rank or position. The modern nation state, based on a concept developed in ancient Rome, emerged throughout Europe in the sixteenth century for military purposes following the collapse of the unifying authority of the Catholic Church. The seventeenth century civil war between the Crown and Parliament arose out of the Stuart kings’ radical claim that the monarch embodied the state. The victory of Parliament in 1688 under the banner of the traditional constitution helps to explain why, during an era of great political change, Britain did nit follow the model of other European countries, most of which were absolute monarchies until the nineteenth century. The state can be regarded as merely a body of people issuing orders, its function being to provide services for the public. What is special about the state is the Hobbesian notion that the state must be accepted by the community as having a monopoly of physical force either directly or indirectly, as when it permits the use of force by others in selfdefence. The terms ‘state’ and ‘nation’ overlap. The state is a legal and political concept. A nation is a cultural, political and historical idea signifying a homogenous geographical community represented possibly but not necessarily by a common language, religious or political tradition. In English law the terms ‘Queen’, ‘Crown’ and ‘State’ are used fairly indiscriminately. For example references are made to secretaries and ministers of state but also to ministers of the Crown. Thus there are state schools, state papers and state secrets on the one hand and National Insurance and the National Health Service on the other. The courts are the Queen’s courts, law are made by the Queen in Parliament but civil servants are servants of the Crown. Central government property is Crown property unless it is owned by an incorporated government department such 280

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as the Ministry of Defence. There are H.M. prisons, H.M. Post Office, H.M.Ships but the Crown Prosecution Service. In ‘statist’ constitutions such as those of France and Germany, the various departments of government, and indeed the law itself, emanate from a single monolithic state created by law and whose powers are defined and limited by the law (rechtstaat). All public officials are servants of the state. In statist theory a constitution arises from the act of a ‘constituent power’ which might for example be a revolution or a referendum of people. The constituent power creates the constitution which in turn creates the state and authorizes the enactment of ordinary laws in a logical self-contained hierarchy. By contrast, English law does not recognize the state as a legal entity in its own right, but regards government as comprising a number of different legal entities, Parliament, the Crown, local authorities, the police etc. each of which is linked to the others by pragmatic rules and practices. The common law is said to derive from community values rather than the will of the state, although today, with the law dominated by the legal profession with its network of links with government, this may be unreal. The term ‘state’ is sometimes used in UK legislation where its meaning depends on the particular context. Sometimes state means the  executive arm of government, sometimes the government as a whole, and sometimes the ‘sovereign power’. Lord Devlin described the  state as ‘the organs of government of a national community’. Lord Reid on the other hand thought that ‘the organised community’ was as close to a definition as one can get. There is a crucial ambiguity here as to whether ‘the interests of the state’ are taken to be the interests of the government as such or include the broader interests of the people, usually expressed by the term ‘public interest’. 281

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TASK III. a) Study the usage of ‘government’ in the following word combinations: Adjectives + government: central, federal, local, national, regional, Labour, Conservative, French Western, etc, left-wing, right-wing, coalition, minority, interim, successive, transitional, democratic, representative, republican, supreme, firm, good, strong, weak. Verb + government: elect, form, install, swear in, head, run, bring down, destabilize, oust overthrow, topple. Government + verb: come to power, take office, fall, resign, announce sth, introduce sth, launch sth. Government + noun: agency, body, department, enterprise, institution, office, service, funds, loan, money, paper, aid, assistance, approval, backing, funding, grant, subsidy, support, contract, credit, expenditure, spending, cuts, intervention, involvement, employee, minister, official, representative, spokesman, sources, crisis, figures, statistics, post, reshuffle, activities, decisions, functions, bills, legislation, measures, plans, policy, programme, proposals, report, propaganda. PHRASES: a branch of government; a change of government; the government of the day; a form of government; system of government; the sitting government; the composition of the government. The usage of ‘state’ in the following word combinations: Adjective + state: independent, nation, sovereign, foreign, democratic, one-party, welfare, socialist, totalitarian, member, powerful, strong, weak, neighbouring etc. State + noun: enterprise, monopoly, control, ownership, property, sector, system education, school, aid, funding, funds, subsidy, support, benefit, pension, intervention, spending, employee, secretary, interests, secret, security, boundaries, debt, planning, succession, visit, etc. PHRASES: affairs/matters of state; head of state, a secretary of state, crimes against the state; etc. 282

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b) Use state or government in the following sentences: 1.  A new labour ... came to power in the UK in 1997. 2. The president dissolved the assembly and swore in an interim ... . 3.  Since then ... intervention in the  spheres of health, employment, education and social security has become farreaching. 4.  Successive ... assumed additional responsibilities in relation to  economic planning, transport facilities, fuel and power supplies, housing, agriculture, protection of the environment, and so on. 5.  Sovereignty is sometimes used to mean the highest legal authority, for example, the head of ... . 6.  Sovereignty also means the  independence of a ... in international law. 7. The doctrine of the separation of power means that ... power should be divided up and each branch of government checked so that no one body can dominate the others. 8. The Torture Convention requires a ... either to prosecute or extradite an alleged offender. 9.  Under the rule of law even the most despotic and selfinterested ... is compelled to behave justly, in the sense that it must make rules and generally keep to them. 10. The basic legal relationship between the  ... and the individual is one of Crown and subject, involving the concept of allegiance. 11.  A passport issued by the Crown in its discretion requests other ...s to admit the holder. 12. The opposition has a constitutional duty criticise the ... but by definition the opposition is a minority and may be in disarray for several years after an election defeat.

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TASK IV.

Name the issues raised in the article. ‘Quangos’

Many of the  day-to-day services to  the  public that used to  be administered by bodies on which representatives of the public served have been hived off to independent agencies on the ground that they would become more efficient when exposed to the disciplines of the market. The managing bodies are staffed by appointees rather than representatives. The term quango (quasi-autonomous non-governmental organization) is conveniently used to describe non-elected public bodies that operate outside the civil service and that are funded by the taxpayer. They include NHS trusts, grant-maintained schools, further education colleges, urban development corporations, training and enterprise councils, and a wide variety of other bodies. Government prefers to  use the  term non-departmental public bodies (NDPBs), which includes only public bodies in the formal sense. It does not cover bodies that in legal terms are private enterprises, even if they are spending public money. Government divides these bodies into executive NDPBs and advisory NDPBs. Another term used by government is ‘appointed Executive bodies’. As a result of this difference in definition, estimates of the number of quangos in existence in the 1990s vary from 2,000 to 5,000 and estimates of the amount of money spent annually also vary widely. When a new labour government came to power in 1997 it committed itself to reducing the number of NDPBs, but as follows from the report of the all-party parliamentary select committee on public administration, there was ‘unprecedented eruption’ of advisory quangos in the first 18 months of the new government when ministers established 295 ‘task forces’ to give policy advice 284

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on a wide range of issues. The committee said it was disappointed at the low priority attached to public access to executive NDPBs, commenting, ‘There are more black holes than examples of open governance’. Before the  rapid increase on quangos in the  1980s and 1990s, it was generally accepted that the  bodies that then had corresponding duties were accountable to the public and should provide information about their activities to the public. Many of them – for example, the old water authorities but not the new water companies – were required to admit the press to  their meetings. They were generally required to  provide documentation. The argument of accountability no longer applies in the same way. Demands for information can be countered by the argument that the  body cannot operate in market conditions when the details of its operations are known to its competitors. Public access to information would therefore work against normal commercial confidentiality. The minister in charge of the  water companies justified the clamp-down on public access by saying these companies were no longer operating like public corporations but more like private bodies under the Companies Act, with executive and business responsibilities. TASK V. If you were a Member of Parliament would you approve or reject each of the following Current reforms, give your reasons: The present government has attempted to find an accommodation between liberal and communitarian ideas in the form of a package of constitutional reforms. They comprise the following: • attempts to disperse democratic mechanisms more widely by creating devolved governments falling short of a federal 285

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system elected partly by proportional representation in Scotland, Wales and Northern Ireland. • attempts to strengthen individual rights by enacting some of the rights contained in the European Convention on Human Rights but not so as to override the traditional doctrine of Parliamentary supremacy (Human Rights Act 1998). • proposals to introduce a Freedom of Information Act which will give the  public a limited right to  see some government documents. • reforms to the House of Lords which will remove the rights of hereditary peers to sit in the Lords, although no decision has yet been made as to what will replace them or what the role of the second chamber will be. • reforms to local government in the form of a smaller and more focused executive responsible to an elected assembly instead of the corporate structure that exists today These reforms are a familiar catalogue of matters that have been on the agenda for many years. They have been criticised as lacking a coherent framework. However they seem to be driven by the aim of providing a range of mechanisms, ‘multi-layered democracy’, that allows different interests and different values to be put into the public arena. TASK VI.

a) Read the text.

b) Express your opinion about the standards discussed. Governmental Standards of Behaviour The informal nature of much of the  UK constitution, notably at the higher levels, makes the arrangements vulnerable to suspicions of corruption and nepotism. A series of scandals during the 1980s and 1990s exposed significant corruption, ambivalence and incompetence within 286

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central and local government and Parliament. These included the ‘cash-for-questions’ affair in 1994 involving several MPs; the ‘arms to Iraq’ affair which involved allegations that ministers had tried to cover up breaches of UN sanctions against Iran and which resulted in the lengthy but inconclusive Scott Report; the prosecution of whistleblowers such as Kathie Massister, Clive Ponting and Peter Wright under the now repealed Official Secrets Act 1911, various incidents including the Westlands affair in 1987 which appeared to involve civil servants disregarding the traditional principle of impartiality and conniving with ministers against each other; cases where MPs and a cabinet minister, Jonathan Ajtken received favours from outside interests. These incidents gave the UK government a reputation what was widely known as ‘sleaze’. In 1986 in its 8th Report, the Public Accounts Committee pointed to a ‘departure from the standards of public conduct which have mainly been established during the past 140 years’. The result was an attempt to lay down standards of behaviour to be expected from persons in public fife. The Committee on Standards in Public Life (The Nolan Committee) was appointed in 1994 as a standing committee with wide terms of reference. These included the UK and European parliaments, central and local government and other publicly funded bodies such as universities and local voluntary bodies. Currently chaired by Lord Neill, the Committee reports into current concerns about standards of conduct of all holders of public office but does not investigate complaints against individuals. A Parliamentary Commissioner for Standards was created in 1996 to deal with questions arising out of MPs’ interests, and various codes of conduct have been produced for ministers and civil servants. The Committee identified what has come to be known as the ‘Seven Principles of Public Life’. These are selflessness, integrity, objectivity, accountability, openness, honesty and leadership. Except in Northern Ireland, these standards have no 287

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legal force and the traditional doctrine that the executive should be regulated by closed internal methods remains dominant. It has however been argued that the formulation of broad principles such as fairness, rationality, proportionality and respect for rights might form the basis of public law reform. Such principles although too vague to be applied as rules might form a common currency to guide the courts and administrative decision-makers. This proposal helps to provide a framework for choosing between liberal and communitarian values, which is arguably the best we can hope for in a democratic constitution. c) Provide definitions for ‘corruption’ and ‘Nepotism’. d) Why is the UK government known as ‘sleaze’? e) Put the following traits selflessness, integrity, objectivity, accountability, openness, honesty and leadership in the order of your personal priorities (from the most important to the least important). TASK VII. Read the text and summarise the reasons for exceptions to collective decision-taking: Formally, the  only major exception to  the  requirement that important policy decisions need collective clearance is by convention tax policy, decisions on which are for the Chancellor, consulting the Prime Minister. Even in the case of tax changes, some consultation with colleagues is normal where the change in question affects their policy interests but this is done bilaterally, not collectively. Sometimes an exception has to be made in cases of urgency or sensitivity. In these cases one would expect the Minister to consult the Prime Minister and the Chairman of the relevant Cabinet Committee – together with the Chancellor if there are cost implications; and if the issue is important to write 288

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to colleagues collectively after the event for information or to validate what has been done. Are Prime Ministers justified in taking important decisions outside Cabinet, deliberately keeping an issue away from their colleagues? Most modern Prime Ministers have done so to some degree and it would be unrealistic to expect that this should never happen because one cannot and should not take the politics out of Government. There may be issues of such sensitivity that the Prime Minister does not wish to risk consideration in Cabinet or Cabinet Committee. If the Government is prone to leaks, as most are from time to time, this may be especially understandable. There may be other difficult issues in respect of which the Prime Minister is clear about the approach needed but on which the Government is divided and the dynamics of discussion in a body as large as the modern Cabinet would make it hard to get the right solution. In either case the Prime Minister might be justified in dealing with the issue outside Cabinet. But even in these cases one would expect him to consult his most senior colleagues; and this approach should be the exception, not the rule. Rather than taking sensitive decisions outside the system, it is, of course, open to a Prime Minister to use the system to drive through controversial proposals. It has been normal for Prime Ministers to chair some of the key Committees of the Cabinet in order to be able to exercise influence or control on issues of the greatest importance to the Government. Some Prime Ministers have used ad hoc Cabinet Committees with a carefully selected membership to tackle specific issues, chairing some of these themselves (Wilson and Thatcher both made extensive use of these). This seems a preferable approach to the more informal arrangements discussed in the previous paragraph, even though it may be used to exclude the majority of the Cabinet from participating in a decision. 289

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The following issues will help you to answer the exam question THE UK GOVERNMENT and to write your essay: 1.The relationships between the legislative and the executive branches of government. 2. The Cabinet is the  central institution of the  UK Constitution. 3. Is government a science, a business or an art?

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G LOSSA RY abdication: An act of renouncing or abandoning privileges or duties, esp. those connected with high office. ACAS: Advisory, Conciliation and Arbitration Service, an organisation set up to act as a mediator in industrial disputes. It mostly deals with large disputes between trade unions and managements, but also has a role to play in individual employer – employee disputes. In addition, every application to an industrial tribunal is first sent to ACAS to see if a negotiated settlement can be achieved. acquittal: The process by which a defendant is discharged in a criminal trial after a ‘not guilty’ verdict. Act of Parliament: A Bill that, having passed through both Houses of Parliament is given the Royal Assent by the Queen and then becomes law. Acts of Parliament make up the statute law. The vast majority are initiated by the government of the day, but some can be launched by backbench Members of Parliament under the Private Members’ Bills procedure. adversarial: The form of proceeding adopted in English law. In both CRIMINAL and CIVIL proceedings, the party bringing the case prosecutor and plaintiff, respectively – have to prove that the allegations they make amount to either a crime or a breach of civil law. The defendant replies with counter-allegations. It is the function of the court to decide between the parties according to the evidence each side brings in support of the case. In criminal cases, the prosecution has to prove its case ‘beyond reasonable doubt’ to the satisfaction of the court. In civil cases, the side wins that presents the more convincing case ‘on the balance of probabilities’. In serious criminal cases, a jury decides whether the case is proved. Only exceptionally is a jury used in civil cases. In some areas of the law, particularly divorce, it is now felt that this system is not the most useful for resolving disputes, and INQUISITORIAL system is preferred. (NOTE: adversary – adj., n) advice: Legal advice is available from a number of sources. More and more people use advice agencies such as Citizens’ Advice Bureaux (CABx) as their first port of call. If they have a serious legal problem, CABx will refer people to a solicitor, or they can approach one directly; further specialist advice can then be sought from Counsel. Legal advice can be obtained under the LEGAL 291

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AID Schemes, by way of the GREEN FORM. Some solicitors charge a flat £5 charge for an hour’s worth of advice, or a free initial interview can be sought from solicitors taking part in a number of specialised LAW SOCIETY schemes, such as the Accident Legal Advice Service (ALAS) for accident victims. advocate: A lawyer who fights-a client’s case in the courts. The majority of advocates are BARRISTERS, but solicitor-advocates have RIGHTS OF AUDIENCE in magistrates’ and county courts and get limited access to the higher courts. In Scotland, lawyers who specialise in advocacy are known simply as ‘advocates’. affidavit: A sworn written statement of fact produced by either defendant or plaintiff in court proceedings. appeal: A mechanism whereby one can question a verdict or sentence passed in a criminal trial or a decision or point of law in a civil trial. In theory, one can continue to appeal to a higher court right up to the HOUSE OF LORDS. In an increasing number of cases, however, leave (permission) of the Court is required before an appeal can be heard. appropriation: (in administrative law) The allocation of a sum of money to a particular purpose aristocracy: 1. A privileged class of persons, esp. the hereditary nobility. 2. A government ruled by a privileged class arbitration: A system of resolving disputes by an arbitrator rather than in a court before a judge. The procedure is much simpler and more informal than at trial and can be less costly: there is less costly: there is less need for lawyers as the arbitrator will take on the role of investigator as well as impartial judge. The arbitrator will impose a decision, unlike in CONCILIATION, where the parties are guided to a compromise by the conciliator. The SMALL CLAIMS procedure in county courts is one form of arbitration that already exists within the court system, and court-annexed arbitration (which is in wide use in the US) is a means by which commercial disputes can be settled at an early stage to avoid full-scale litigation. articled clerks: Trainee solicitors who are articled (i.e. apprenticed) to fully qualified solicitors for two years before, having passed all their exams, having their names admitted to the LAW SOCIETY Rolls. Attorney General: The highest government law officer; normally also an MP, as well as a barrister. The Attorney General usually sits in the Cabinet and answers questions in the House of Commons on the administration of civil justice and legal matters in general. He/she represents the Crown in civil matters and prosecutes very serious criminal cases, often involving 292

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national security. He/she has many other discretionary powers. and is also ex officio leader of the English bar. In Scotland, the corresponding law officer is the Lord Advocate. authority: 1. The right or permission to act legally on another’s behalf; esp., the power of one person to affect another’s legal relations by acts done in accordance with the other’s manifestations of assent; the power delegated by a principal to an agent . 2. Governmental power or jurisdiction . 3. A governmental agency or corporation that administers a public enterprise. 4. A legal writing taken as definitive or decisive; esp., a judicial or administrative decision cited as a precedent . The term includes not only the decisions of tribunals but also statutes, ordinances, and administrative rulings. bail: Release of a person after arrest, normally on the condition that they pay some security or accept certain conditions and return for trial at a later date. An accused person must be granted bail unless there is a good reason not to do so, and it may be refused only on certain specific grounds – for example, if there is a danger that the accused will interfere with witnesses. bailiff: Officers of the county courts who can be sent out to recover debts and seize assets when ordered to do so by the court. Bar: The collective term for BARRISTERS, who are called to the Bar. The barristers’ trade union is the General Council of the Bar, commonly known as the Bar Council, which looks after the interests of the profession. barristers: Lawyers who do advocacy work and advise solicitors as Counsel, and are sometimes seen as the senior part of the legal profession. They are all self-employed and get their work through belonging to a set of CHAMBERS. They can command huge fees and are paid on a case-bycase basis. In theory, a barrister can never turn down a brief, as they are meant to operate by a cab-rank formula, never knowingly refusing a fare. In practice, this often happens as they may have to return a brief at the last moment if the case they are currently working on overruns. Their current Monopoly of RIGHTS OF AUDIENCE in the higher courts is potentially threatened by the Courts and Legal Services Act 1990. They may soon be allowed to enter into binding contracts for their fees – at present, they cannot sue their clients to recover their fees. However, barristers themselves cannot be sued for negligence in performance of their duty as ADVOCATES. Bill of Rights: A declaration of fundamental freedoms, which is codified by law that both citizen and state must adhere to. Most countries have a written 293

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Bill of Rights in their constitutions, the most famous being the American one. Owing to the unwritten CONSTITUTION, England and Wales have no positive mechanism of defending individual rights enshrined by law except by appeal to the European Court of Human Rights in Strasbourg. Binding: adj. 1. (Of an agreement) having legal force . 2. (Of an order) requiring obedience . breach of contract: A failure to comply with the terms of a contract. Certain terms are implied by law – for example, certain consumer rights in contracts for the sale of goods. The party not in breach may sue the party in breach. cab-rank rule: A rule among BARRISTERS that compels them to take any case they are offered as long as it is in their usual sphere of work, they are not otherwise engaged, and a proper fee is offered. It is designed to ensure that anyone, no matter how apparently repulsive, has someone to champion their cause. Barristers who wish to get around the rule declare themselves available only for certain kinds of work, such as administrative law. A similar rule applies among Scottish advocates. Central Criminal Court: Otherwise known, as the Old Bailey, this is the major CROWN COURT in London, where serious murder or fraud cases are held. chambers: The work-place of barristers. There are over 300 chambers in England and Wales, the majority being situated in the four INNS OF COURT in London. Each set of chambers usually specialises in a particular type of law – criminal, commercial or common – and is made up of a ‘head of chambers’, who is usually a QUEEN’S COUNSEL, and a number of junior barristers. Each chamber has a CLERK who organises the work of and sets the fees for the BARRISTERS. Chancery Division: A division of the HIGH COURT, which deals with property disputes, disputes of title or land, trusts, company law, mortgages and wills. It is headed by the LORD CHANCELLOR, but organised by the Vice Chancellor of the Chancery Division. The 14 judges assigned to the Chancery Division sit and hear cases. checks and balances: The theory of governmental power and functions whereby each branch of government has the ability to counter the actions of any other branch, so that no single branch can control the entire government. For example, the executive branch can check the legislature by exercising its veto power, but the legislature can, by a sufficient majority, override any veto. 294

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circuit: The court system has been divided into six administrative areas called circuits: Midland and Oxford, Northern, North Eastern, South Eastern, Wales and Chester, Western. They are each run by a circuit administrator, and have presiding judges from the HIGH COURT in London and circuit leaders (senior barristers) organising the judicial administration. At the more important centres of population, High Court judges try both criminal and civil cases. circuit judge: A judge who sits in the crown and county courts in the six circuits of England and Wales. There are almost 400 circuit judges, most of whom are former barristers although some were once solicitors. They are appointed by the LORD CHANCELLOR and can be dismissed by him. Citizens’ Advice Bureaux (CABx): Advice shops run by the National Association of Citizens’ Advice Bureaux and financed by grants from central and local government. There are over 2000 CABx all over the country, and they are often the first providers of (free) legal ADVICE to members of the public. In fact, they can sometimes offer better advice than solicitors in such specialist areas as employees’ rights. tenants’ rights and consumer issues. Civil justice Review: A report published in June 1988 after three years’ work by a committee of experts into the running of the civil justice system in England and Wales. Many of the  report’s key proposals have been implemented by the Courts and Legal Services Act 1990. Its major findings were that delays and cost were the two most important deterrents to access to civil justice and they recommended a broad range of changes including shifting work down to the COUNTY COURTS, more new judges, extending the  financial limits of the  lower courts and giving judges more powers to manage cases. civil law: That part of the law that deals with legal rights and duties that individuals many enforce-through the legal process for their own benefit. Civil service: The body of Crown servants that are employed to put government policies into action and are paid wholly out of money voted annually by Parliament. Civil servants include the  administrative and executive staff of central government departments (e.g. the Home Office and Treasury) and the industrial staff of government dockyards and factories. Civil servants may serve in established or unestablished capacities, with effects on pension entitlement, etc. The police (not being Crown servants), the armed forces (not being civil), government ministers, and those (e.g. judges) whose salaries are charged on Consolidated Fund are not civil servants. claim form: Previously known as writ or default summons. A document that begins many forms of civil action. 295

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claimant: Previously known as plaintiff. The person who takes action to enforce a claim in the CIVIL court. New civil justice rules in 1999 said the word claimant should be used instead. class action: A way of fighting a group civil action. This is commonly used in the US in legal actions following disasters that involve many people – for example, against drug companies when the number of victims can run into many thousands. At present, class actions are not allowed in England and Wales, although there are signs that the restrictions – particularly from the LEGAL AID administration – may soon be overcome. clerk: Many officials in the legal system have the title of clerk. The most important are the ‘clerks to the justices’ in the MAGISTRATES’ COURTS, who advise the magistrates on law and administer the courts. Other clerks include judges’ clerks, who act as personal assistants, and barristers’ clerks who negotiate with solicitors on behalf of the barrister members of their CHAMBERS. Commercial Court: A separate court inside the QUEEN’S BENCH DIVISION of the HIGH COURT. It mainly serves the domestic and international business communities and has a panel of specialist judges. The main areas it deals with are banking, property and securities disputes. Its working practices have recently been reformed, and it is held up as a model for other courts to follow, although it still suffers from long delays. committal: The act of sending someone to trial by jury after a preliminary hearing in the MAGISTRATES’ COURT. common law: English law as a whole is referred to as a common law system. Unlike Continental systems, it is not based on a set of authoritative texts and codes, but rather has been built up through the years by decisions of judges in actual cases. The law is ‘recoverable’ from the many sets of published law reports. Cases decided in the higher courts carry more weight than those decided in the lower courts and can overrule the decisions of the latter. Commonwealth, the: 1.  An organization of countries that used to be under the political control of the UK. It is also known as the Commonwealth of Nations or the British Commonwealth.1a. [only before noun] belonging to or involving this organization: Commonwealth countries. 2. The Commonwealth or the Commonwealth of Australia AUSTRALIAN Australia or its government Community law: The term used to refer to that autonomous body of law validated by the founding treaties of the European Community (EC). It is concerned with matters that may affect the workings of a common market. For example, goods marketed within the EC must conform to safety standards that 296

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are the same in all member states, and the professional qualifications gained in one member state must be recognised in the others. Community law is binding on all the member states, which must give precedence to it over their own domestic laws, but only in those matters that are the concern of the EC as defined by the Treaty of Rome and subsequent amending treaties. It is the task of the EUROPEAN COURT OF JUSTICE to interpret and uphold this law. Community law, unlike most other aspects of international law, confers rights and obligations on the individuals who are citizens of the member states. community service order: An order made (with increasing frequency) against convicted offenders requiring them to carry out work for the benefit of the community, under strictly controlled and supervised conditions. It is an alternative to other forms of sentence, especially custodial sentences. The order requires the performance of a stated number of hours of work over a specified period. compensation: DAMAGES, that are paid to victims of accidents and LIBEL either by settlement or after a trial. Levels of compensation are usually worked out by a very complicated system, taking into account such things as loss of earnings as well as pain and suffering. The highest level of compensation paid in England and Wales to date is just over £1 million for a victim of medical NEGLIGENCE, but in the US it can run into hundreds of millions of dollars. This difference is due to the fact that, in the US compensation is set by juries, but by judges in England and Wales (except in libel cases). Discussion is taking place now about raising compensation levels, to bring them more into line with those of other countries. Concession: n. 1. A government grant for specific privileges. 2. The voluntary yielding to a demand for the sake of a settlement. 3. A rebate or abatement. 4. Int’llaw. A contract in which a country transfers some rights to a foreign enterprise which then engages in an activity (such as mining) contingent on state approval and subject to the terms of the contract. conciliation: One alternative way of resolving disputes, most often used in DIVORCE proceedings to smooth the legal path of separation. It is a relatively new system in England and Wales, and permits the two parties to resolve their dispute using only one solicitor and a conciliator rather than two solicitors. It is therefore much cheaper and can be a lot less stressful for the parties than a full court case. Disputes over the division of joint assets such as the marital home and, more importantly, disputes over the custody of any children can be more amicably resolved. In conciliation, the parties are guided towards a compromise by the conciliator; whereas in ARBITRATION, the arbitrator imposes a decision. 297

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Consolidated Fund: The central account with the Bank of England maintained by the government for receiving public revenue and meeting public expenditure. Most payments from it are authorized annually by Consolidated Fund Acts, but some (e.g. judicial salaries) are permanent statutory charges on it. constitution: The code by which an individual country is governed. In England and Wales, there is no written constitution; their system of governance has evolved over the centuries. With a constitution, there must also be a constitutional court that resolves disputes over the interpretation of the constitution; the most famous of these is the US Supreme Court. contempt: This may occur in two forms. The first is, interference with actual or anticipated litigation to the extent that justice may be prejudiced. Actual examples include publication of articles designed to  influence the outcome of a court case, and an attempt by a solicitor’s clerk to enliven court proceedings by releasing laughing gas. The second form of contempt is refusal to obey the order of a court. In either case, the person in contempt may be fined or imprisoned. Companies that are in contempt of court risk SEQUESTRATION of their assets. The. first form of contempt sometimes leads to a conflict between the requirements of justice and the right of the media to keep the public informed on matters of public interest. contempt of court: (civil contempt) Disobedience to a court judgment or process, e.g. breach of an injunction or improper use of discovered documents. If the injunction is served on the defendant with a penal notice attached, breach of the injunction can result in the defendant being jailed. contempt of Parliament (or contempt of the House): conduct which may bring the authority of Parliament into disrepute. contingency fee: The system by which lawyers are paid in civil cases in the United States, and which is currently being canvassed as an alternative for England and Wales. In the US, lawyers are paid a percentage of their clients’ winnings; thus, the system is sometimes referred to as ‘no win, no fee’. It has come in for huge criticism: a contingency fee system means that lawyers have a personal stake in litigation, and this can lead to ‘ambulance chasing’, where lawyers seek out lucrative work through the misfortunes of others. A modified version of the contingency fee system may be introduced into English law, to be known as ‘conditional fees’. Ordinary fees would be paid but only on condition that the plaintiff wins. Criminal, family and certain other types of cases would be excluded. The main area in which the scheme would operate would be in PERSONAL INJURY cases. 298

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contract: A legally binding agreement giving rise to enforceable rights and obligations, which, if ignored or not carried out, can lead to an action for BREACH OF CONTRACT. The terms of contracts entered into by individuals as consumers are increasingly regulated by statute. Convention: 1. An agreement or compact, esp. one among nations; a multilateral treaty . 2. A special deliberative assembly elected for the  purpose of framing, revising, or amending a constitution. – Also termed constitutional convention. 3. An assembly or meeting of members belonging to an organization or having a common objective . – Also termed conference. 4. Parliamentary law. A deliberative assembly that consists of delegates elected or appointed from subordinate or constituent organizations within a state or national organization, or elected directly from the organization’s membership or from defined geographic or other constituencies into which the membership is grouped, and that usu. exercises the organization’s highest policymaking authority . Also termed assembly; congress; convocation; delegate assembly; general assembly. 5. Parliamentary law. A session of a convention (sense 4), consisting of a series of consecutive meetings separated by short recesses or adjournments, often during a convention (sense 3) that includes educational and social programs for the benefit of delegates and other members. 6. A generally accepted rule or practice; usage or custom . conveyancing: The legal side of buying and selling property, usually done by solicitors. It involves checking the deeds and titles of land and drawing up contracts. In 1985, the solicitors’ monopoly on conveyancing was broken, and licensed conveyancers were also allowed to do the work. This resulted in a reassessment of solicitors’ working practices, as they had come to rely on conveyancing for most of their income. Under recent legislation, the market for conveyancing services may soon be opened up to banks and building societies, and a conveyancing OMBUDSMAN has already been appointed. coroner: A judicial officer who conducts inquests into deaths where it is reasonable to suspect violence or unnatural causes. Inquests are held in coroners’ courts, usually with a jury. corporation aggregate: e.g. A company registered under the Companies Acts consists of a number of members who fluctuate from time to time. a corporation sole: e.g. the Crown consists of one member only and his or her successors. 299

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costs: Legal expenses payable to lawyers for their services. Following a contested case in court, the losing party has to pay the winner’s costs as well as their own. The amount charged in such cases is controlled by the court through a process known as ‘taxation of costs’. In legally aided cases, a nonlegally aided party will only exceptionally recover costs from a losing legally aided party. counsel: Another name for BARRISTERS. county court: Until recently, county courts were minor civil courts with limited jurisdiction. Under the Courts and Legal Services Act 1990, however, county courts hear all but the most important civil cases (which include those Of JUDICIAL REVIEW). This is brought about by transfer arrangements between the HIGH COURT and the county courts. County courts can now make any order that the High Court can in equivalent cases. There is some doubt about the ability of the county courts to discharge their increased workload, because of a lack of additional funding. court action: Civil case in a law court where a person sues another person. Court of Appeal: The court where APPEALS from the  COUNTY COURT, HIGH COURT and CROWN COURT are heard. It is divided into two divisions: civil and criminal. It is based in the ROYAL COURTS OF JUSTICE. The normal appeal is heard by three judges, usually LORD JUSTICES OF APPEAL. However, many civil appeals are now heard by two judges; there is then a right to a further hearing before three judges, if the two judges disagree. Subject to obtaining leave, there is a further right of appeal to the HOUSE OF LORDS. Court of Session: The supreme civil court in Scotland. It consists of the Outer House, in which important cases are tried for the first time, and the Inner House, which hears appeals from other Scottish courts (including the Outer House). criminal law: That part of the  law that relates to  crimes and their punishment. A crime is a violation of a duty that an individual owes to every other individual in a society, such violation being punishable by the state. cross-examination: The process used to question the other side’s witnesses in court. crown court: A senior court that deals with criminal cases heard by a judge and jury. There are some 90 crown court centres in England and Wales. 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 300

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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. Crown Prosecution Service (CPS): The organisation funded wholly by the state which prosecutes in the criminal courts. It employs both barristers and solicitors and has replaced the police who formerly did most of their own prosecutions. The CPS has come in for a lot of criticism since it was established in 1986, mainly because of under-funding and under-staffing. damages: An award of money by a court to  a successful claimant (plaintiff) in a civil action, typically for a BREACH OF CONTRACT such as NEGLIGENCE. The general rule is that damages are intended to put the plaintiff into the same position (as far as money can do so as if the defendant had not caused the plaintiff any loss. Exceptionally, the court will award additional or exemplary damages as a mark of disapproval of the defendant’s behaviour; this is most common in LIBEL actions. See also COMPENSATION. defendant: Generally someone against whom civil or criminal legal proceedings are brought. See also CLAIMANT. delict: A term used in Scots law, equivalent to the English term TORT: namely, a breach of a duty imposed by law and owed by one person to another. Democracy: government by the  people, either directly or through representatives elected by the people. Director of Public Prosecutions (DPP): A government appointee, usually a barrister or solicitor of at least ten years’ standing, whose office prosecutes in criminal cases for the state. He/she also controls the CROWN PROSECUTION SERVICE who report directly to him/her. With some serious crimes, such as riot, the  prosecution can only go ahead with the consent of the DPP. 301

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disclosure and inspection: previously known as discovery. The process wherby each side in a court action serves a list of relevant documents on the other. The other party then has the right to inspect those documents. discretion: The reasonable exercise of a power or right to act in a n official capacity. district judge: Formerly known as a district registrar, a judicial officer who sits in the COUNTY COURT and hears minor cases, especially under the SMALL CLAIMS jurisdiction. He also deals with preliminary questions in other litigation. Divisions of the High Court: There are three divisions in the HIGH COURT: Chancery, Family and Queen’s Bench Divisions. Judges are assigned to particular divisions, and only hear disputes in the areas that that division covers. See also CHANCERY DIVISION, FAMILY DIVISION, QUEEN’S BENCH DIVISION. divorce: Dissolution of marriage on the  grounds of its irretrievable breakdown. See also CONCILIATION, MATRIMONIAL. Dominium  – In the  civil and old English law, ownership; property in the largest sense, including both the right of property and the right of possession or use. The right which a lord had in the fee of his tenant. duty solicitors: Solicitors who are available on a voluntary, rota basis, and who are paid out of the LEGAL AID fund to provide assistance and cover at MAGISTRATES’ COURTS and in police stations. Election: n. 1. The process of choosing by vote a member of a representative body, such as the House of Commons or a local authority. For the House of Commons, a general election involving all UK constituencies is held when the sovereign dissolves Parliament and summons a new one; a byelection is held if a particular constituency becomes vacant (e.g. on the death of the sitting member) during the life of a Parliament. Local government elections (apart from those to fill casual vacancies) are held at statutory intervals. The conduct of elections is regulated by the Representation of the  People Acts 1983 and 1985. The Representation of the  People Act 2000 made some changes to electoral registration and absent voting and allowed for experiments involving innovative electoral procedures. Other changes make it easier for the disabled to vote and created an offence of supplying false particulars on a nomination form. Voting is secret and normally in person, but any elector can obtain a postal vote without having to specify a reason. The only requirement is that the applicant is included in 302

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the Register of Electors. Applications for a particular election must be received by the Electoral Registration Officer six working days before an election. Different rules apply in Northern Ireland. Any dispute as to the validity of the election of a Member of Parliament or a local government councillor is raised on an election petition, which is decided by an election court consisting of two High Court judges. 2. A doctrine of equity, commonly applied to wills, based on the principle that a person must accept both benefits and burdens under one document. or reject both. It arises when there are two gifts in one document, one of A’s (the creator’s) property to Band one of B’s property to C. B must choose whether to accept the gift of A’s property to him and transfer his own property to C. or to reject both gifts. Eligible: adj. fit and proper to be selected or to receive a benefit; legally qualified for an office, privilege, or status. 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. equity: A body of law that grew up under the control of the royal official known as the  Chancellor (now the  Lord Chancellor). By his position, the Chancellor was able to mitigate the sometimes harsh consequences of applying strict rules of law. Today equity is that part of common law that enables the courts to exercise discretion in granting and withholding remedies where the good faith and conscience of the parties’ behaviour towards one another is a relevant issue – for example, in the granting of an INJUNCTION in a dispute between neighbours over property boundaries. European Convention of Human Rights: This was ratified by the United Kingdom in 1951 and later by the 20 other European member states of the Council of Europe. It has 18 articles laying down fundamental rights for citizens, such as the right to freedom of expression. The majority of signatories have incorporated it-into their domestic law including the United Kingdom. There is a European Court of Human Rights in Strasbourg. which acts as a final court of appeal for all signatories. The UK accepts the compulsory jurisdiction of the Strasbourg Court, provided all domestic judicial remedies have been exhausted. Although the UK government has a record of being found in violation of the Convention more than 20 times, such rulings have usually resulted in a change of UK domestic law. See also BILL OF RIGHTS. 303

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European Court of justice: The court of the European Community, based in Luxembourg. It interprets European COMMUNITY LAW and the Treaty of Europe. It is also a final court of appeal for individuals challenging Community law or their own country’s interpretation of it. It has 13 judges from the member states, and six advocates-general who present cases before the Court. There is also a Court of First Instance attached to the European Court of justice, which deals with, among other things, questions of Community competition policy, following appeals against the decisions of the European Commission on matters such as large-scale mergers between companies. European regulations, directives and decisions. These are the three legal terms for European COMMUNITY LAW that affects member states. A regulation is binding on all countries; a directive affects all states but it is up to individual states to achieve the aim of the directive by whatever means they choose; and a decision affects only the body or country to which it is addressed. See also EUROPEAN COURT OF JUSTICE. evidence: Anything produced, whether physically or verbally, to defend or prosecute a case in court. exception (or exemption) clause: A clause introduced into a CONTRACT by a party who is offering to supply goods and services, which purports to limit or exclude a responsibility that the law would place on that party. Following the belief that people only make agreements they intend to keep, courts used to enforce these clauses literally. However, in recognition of the fact that these terms are actually imposed on a take-it-or-leave-it basis by firms supplying goods and services, today the tendency is to limit or deny altogether the effectiveness of such clauses, especially in consumer contracts. Executive: n. 1. The branch of government responsible for effecting and enforcing laws; the person or persons who constitute this branch. The executive branch is sometimes said to be the residue of all government after subtracting the judicial and legislative branches. Family Division: The division of the HIGH COURT that deals with divorce, contested custody of children, and complicated financial disputes between husbands and wives, and has jurisdiction over wards of court. It has its own president and some 17 judges assigned to it. federal government: 1. A national government that exercises some degree of control over smaller political units that have surrendered some degree of power in exchange for the right to participate in national political matters. – 304

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Also termed (in federal states) central government. 2. The U.S. government. Also termed national government. fine: A monetary penalty imposed on a convicted offender; the most common form of sentence. When current legislation is brought into force, fines will be based on a unit system, which will relate the amount of the fine to an offender’s ability to pay out of his or her disposable income. flexible constitution: A constitution that has few or no special amending procedures. – The British Constitution is an example. Parliament can alter constitutional principles and define new baselines for government action through ordinary legislative processes. The Canadian Constitution also grants its legislature some limited ability to amend the Constitution by legislation. fraud: A false representation by means of a statement or conduct made in order to gain a material advantage. Green Form scheme: The common name for the  Legal Advice and Assistance Scheme for LEGAL AID, by which citizens can get up to two hours’ work done for them by solicitors at no charge. habeas corpus: A WRIT used to compel a person who is detaining another in custody to produce that person in court. See also QUEEN’S BENCH DIVISION. High Court: The High Court Sits in the ROYAL COURTS OF JUSRICE in London and at some 25 other centres around England and Wales and is divided into three divisions: Chancery, Family and Queen’s Bench. See also DIVISIONS OF THE HIGH COURT. Home Office: The government department that runs the  criminal justice system in England and Wales, headed by the Home Secretary. It funds and supervises the MAGISFRATES’ COURTS and the CROWN PROSECUTION SERVICE, as well as the prison system. House of Lords: The second chamber of Parliament, and the highest APPEAL court in the land. There are ten Lords of Appeal in Ordinary, or LAW LORDS, five of whom sit to hear each appeal case. Human Rights Act: legislation, enacted in 1998, that brought the European Convention on Human Rights into domestic law for the whole of the UK on 2 October 2000. In the past the use of the Convention was limited to cases where the law was ambiguous and public authorities had no duty to exercise administrative discretion in a manner that complied with the Convention. 305

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The Act creates a statutory general requirement that all legislation (past or future) be read and given effect in a way that is compatible with the Convention. Section 3 provides that all legislation, primary and secondary, whenever enacted, must be read and given effect in a way that is compatible with Convention rights wherever possible. The Act requires public authorities – including courts – to act compatibly with the Convention unless they are prevented from doing so by statute. This means that the courts have their own primary statutory duty to give effect to the Convention unless a statute positively prevents this. Section 7 gives the *victim of any act of a public authority that is incompatible with the Convention the power to challenge the authority in court using the Convention, to found a cause of action or as a defence. The Act introduces a new ground of illegality into proceedings brought by way of judicial review, namely, a failure to comply with the Convention rights protected by the Act, subject to a ‘statutory obligation’ defence. Secondly, it will create a new cause of action against public bodies that fail to act compatibly with the Convention. Thirdly, Convention rights will be available as a ground of defence or appeal in cases brought by public bodies against private bodies (in both criminal and civil cases). Section 7(5) imposes a limitation period of one year for those bringing proceedings. However, only persons classified as ‘victims’ by the Act are able to enforce the duty to act compatibly with the Convention in proceedings against the authority, and only victims will have standing to bring proceedings by way of judicial review. Most private litigants, at least in private law proceedings, will count as victims. The Convention rights that have been incorporated into the Act are: Articles 2 to 12, 14, 16, 17,18; Articles 1 to 3 of the First Protocol; and Articles 1 and 2 of the Sixth Protocol. The Act requires any court or tribunal determining a question that has arisen in connection with a Convention right to take into account the jurisprudence of the Strasbourg organs (the European Court and Commission of Human Rights and the Committee of Ministers). This jurisprudence must be considered ‘so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen’, whenever the judgment, decision, or opinion to be taken into account was handed down. Section 19 provides that when legislation is introduced into Parliament for a second reading, the introducing minister must make a statement, either (1) to the effect that, in his view, the legislation is compatible with the Convention, or (2) that although the legislation is not compatible with the Convention, the government still wishes to proceed. If it is not possible to read legislation so as to give effect to the Convention, then the Act does not affect the validity, continuing operation, or enforcement of the legislation. 306

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In such circumstances, however, section 4 empowers the high courts to make a declaration of incompatibility. Section 10 and schedule 2 provide a ‘fasttrack’ procedure by which the government can act to amend legislation in order to remove incompatibility with the Convention when a declaration of incompatibility has been made. The Act gives a court a wide power to grant such relief, remedies, or orders as it considers just and appropriate, provided they are within its existing powers. Damages may be awarded in civil proceedings, but only if necessary to afford just satisfaction; in determining whether or not to award damages and the amount to award, the court must take account of the principles applied by the European Court of Human Rights. Sections 12 and 13 provide specific assurances as to the respect that will be afforded to *freedom of expression and *freedom of thought, conscience, and religion: these are ‘comfort clauses’ for sections of the press and certain religious organizations... The Act does not make Convention rights directly enforceable against a private litigant, nor against a quasi-public body with some public functions if it is acting in a private capacity. But in cases against a private litigant, the Act still has an effect on the outcome, because the court will be obliged to interpret legislation in conformity with the Convention wherever possible; must exercise any judicial discretion compatibly with the  Convention; and must ensure that its application of common law or equitable rules is compatible with the Convention. immunity: Freedom or exemption from legal proceedings. Examples include the immunity of the sovereign personally from all legal proceedings. Imperium – The right to command, which includes the right to employ the force of the state to enforce laws. This is one of the principal attributes of the power of the executive. indictment: A written or printed description of the charges laid against an accused person in serious criminal cases. See also OFFENCE. Ineligible: adj. (18c) (Of a person) legally disqualified to serve in office. injunction: A judicial order restraining a person or body from carrying out a specific action, or requiring the carrying out of an action. Inns of Court: The areas in London where BARRISTERS have their CHAMBERS. There are four Inns: Lincoln’s Inn, Gray’s Inn, Inner Temple and Middle Temple. They charge minimum rents and are administered by a senior official known as the Treasurer. They also have an upper tier of senior members called ‘benchers’. 307

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inquisitorial: An alternative trial system, used mainly on the Continent, whereby judges play a more investigational role and manage cases themselves, calling their own witnesses instead of having them presented by defendants’ and plaintiffs’ Counsel. See also ADVERSARIAL. judge: A person appointed in the name of the Crown to hear cases in court and give decisions based on the evidence and arguments presented at the trial. The most senior judges are appointed on the advice of the Prime Minister; the  majority of others are appointed by the  LORD CHANCELLOR. Eligibility for appointment will in future depend upon having had specified RIGHTS OF AUDIENCE. The dominance of barrister appointees is likely to continue for some considerable time. See also CIRCUIT JUDGE, LAW LORD, LORD JUSTICE OF APPEAL. Judgment: n. 1. A decision made by a court in respect of the matter before it. Judgments may be interim (interlocutory), deciding a particular Issue prior to the trial of the case; or final, finally disposing of the case. They may be in personam, imposing a personal liability on a party (e.g. to pay damages); or in rem, determining some issue of right, status, or property binding people generally. 2. The process of reasoning by which the court’s decision was arrived at. In English law it is the normal practice for judgment to be given in open court or, in some appellate tribunals, to be handed down in printed form. If the Judgment contains rulings on important questions of law, it may be reported in the *law reports. judicial review: The procedure whereby administrative decisions are reviewed by the judiciary in the Divisional Court of the QUEEN’S BENCFI DIVISION of the HIGH COURT. They can only look at the legal and procedural side of a decision, not at its merits. It is seen as a growth area in the law. See also PUBLIC INQUIRY. jury: Made up of 12 men and women chosen at random from the electoral register. Juries hear criminal cases in CROWN COURTS and LIBEL cases in the HIGH COURT, and make decisions at CORONERS’ inquests. Their role in criminal and libel cases is to decide guilt or innocence after hearing all the facts and to set levels of damages in libel hearings. justice of the peace: Another term for MAGISTRATE. law centre: Community-based legal offices that offer free advice and representation. There are some 60 law centres in England and Wales, mostly in inner city areas where there is a scarcity of private practitioners; Set up primarily during the 1970s to provide access to the law for people of modest 308

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or no means, they are constantly threatened with closure due to lack of funds. Most of their income comes from central and local government and from LEGAL AID work. Law Commission: A body established in 1965 to make proposals for updating and reforming the law. There is a separate Scottish Law Commission. Many reforms have been based on the work of these two bodies – for example, changes in consumer law. Law Lords: The most senior judges of APPEAL, also known as Lords of Appeal in Ordinary. There are ten Law Lords who sit in the HOUSE OF LORDS in panels of five. Law Society: The organisation that looks after the  interests of the SOLICITORS’ profession. Until 1989, it played a dual role, acting as, the solicitors’ trade union and policing the profession as well as running the administration of LEGAL AID. This latter duty passed on to the LEGAL AID BOARD in April 1989. lawyer: The collective term used to describe either a BARRISTER or a SOLICITOR. lease: A contract under which an owner of property (the landlord or lessor) grants another person (the tenant or lessee) exclusive possession of the property fro an agreed period, usually (but not necessarily) in return for rent and sometimes for a capital sum known as a premium. A lease must be made by a formal document (a deed) which is itself called a lease. The deed that creates the lease sets out the terms, which include the parties, the property, the length of the lease, the rnt, and other obligations (covenants). legal aid: The system by which citizens can pay for legal services funded out of public expenditure. The legal aid budget is run at approximately £500 million per annum, and is divided between civil, criminal and GREEN FORM legal aid. There are different and complicated criteria for qualifying for legal aid, which take income and capital savings into account and there is also the possibility that one may be asked to pay a contribution. The last official figure put the eligibility for legal aid at 70% of the population, although most experts now believe the percentage be much lower. For very serious crimes, where a person’s liberty or reputation is at stake, different criteria – known as the ‘Widgery Criteria’ after a former Lord Chief justice – apply; most applicants would qualify, although they must still pass a means test. Legal aid is not, however, available for certain actions such as libel, for TRIBUNALS or for the SMALL CLAIMS COURT. There are further proposals to require applicants to expend their capital resources before legal aid is granted, thus converting the scheme into a ‘safety net’ scheme. See also LAW SOCIETY. 309

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Legal Aid Board: The body set u’ in 1989 to take over the administration of LEGAL AID from the LAW SOCIETY. It consists of between 11 and 17 members drawn from business and the legal professions. legal aid scheme: A scheme under the  Legal Aid Act 1988whereby the payment of legal costs was made out of public funds for those unable to meet the costs themselves, provided that the person qualified under the financial and merits tests laid down under the scheme. There were separate provisions for civil and criminal cases. Civil legal aid had two components: legal advice and assistance (sometimes known as the green form scheme) and legal aid. Under the former, payment was made to qualified lawyers under the scheme who provided legal advice and help preliminary to litigation. Under legal aid, payment was made for the provision of legal advice and assistance at all stages of litigation, including appeals. In criminal cases, the court determined whether or not legal aid was granted and made a legal aid order if it considered legal aid desirable in the interest of justice. The legal aid scheme was replaced in April 2000 by the *Community Legal Service. Under this new scheme of legal aid and assistance, the green form scheme was replaced by the legal help scheme and legal aid was replaced by full representation; there are, in addition, intermediate levels of service. legal insurance: An alternative way of paying for legal services, which operates very much like health insurance. It is still in its infancy in England and Wales, although in West Germany, over 50% of households have some sort of legal insurance. It is becoming quite common in Britain to find this form of insurance offered as an extra with household and motor insurance policies. Legislation: n. 1. The whole or any part of a country’s written law. In the UK the term is normally confined to Acts of Parliament, but in its broadest sense it also includes law made under powers conferred by Act of Parliament, law made by virtue of the royal prerogative. 2. The process of making written law. Legislation: 1. The process of making or enacting a positive law in written form, according to some type of formal procedure, by a branch of government constituted to perform this process. – Also termed lawmaking; statutemaking. 2. The law so enacted. 3. The whole body of enacted laws. Legislator: n. One who makes laws within a given jurisdiction; a member of a legislative body. Also termed lawmaker. Legislature: The branch of government responsible for making statutory laws. – The federal government and most states have bicameral legislatures, usu. consisting of a house of representatives and a senate. 310

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Legislature: n. The body having primary power to make written law. In the UK it consists of Parliament, i.e. the Crown, the House of Commons, and the House of Lords. liabilities: Debts of a business. liability: Being legally responsible for paying for damage or loss. libel: An untrue statement made about a person, which tends to bring that person into the hatred, ridicule or contempt of ‘right- thinking’ members of society or might make people shun or avoid him/her. To be a libel, the statement must be in written form or broadcast. Everyone who repeats the libel, as well as the original maker of the statement, may be sued. It is a defence to show that the statement was substantially true or was fair comment on a matter of public interest, but such a defence is difficult to establish in court. English libel law is more strict than the law in the US, and some people. believe that it unduly inhibits free comment in the media. Exceptionally for civil cases in England and Wales. libel actions are still tried by a judge sitting with a jury. In certain instances – for example, when libellous things are said in court or in Parliament and then printed or broadcast – no proceedings may be brought at all. Slander is the term used for untrue statements made orally. In both cases, the statement must be published and read (or broadcast and heard) by a third person. limited liability: Principle that by forming a limited liability company, individual members are liable for that company’s debts only to the value of their shares. limited liability company: Company where a member is responsible for repaying the company’s debts only up to the face value of the shares he owns. listing: The system of putting cases down for trial. Cases are either assigned a specific date or are regarded as floaters and can be slotted in whenever a court becomes free. litigation: The process of fighting or defending a legal case. Litigation may only be conducted for reward by solicitors and any others who may gain litigation rights under the Courts and Legal Services Act 1990, – going to law/ bringing of a lawsuit against someone to have a dispute settled. Lobby: vb. (1837) 1. To talk with or curry favor with a legislator, usu. repeatedly or frequently, in an attempt to influence the legislator’s vote . 2. To support or oppose (a measure) by working to  influence a legislator’s vote . 3. To try to influence (a decision-maker) . Lord Advocate: The senior government law officer in Scotland. 311

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Lord Chancellor: The senior figure in the administration of justice. He is unique among public office holders for he has responsibilities that range over all three branches of government: he is at once a member of the executive as a senior Cabinet minister, a member of the legislature as ex officio speaker of the House of Lords, and the head of the judiciary, from time to time exercising judicial functions as a LAW LORD in the House of Lords. His primary task is to ensure the efficient administration of justice. He is responsible for CIVIL LAW reform and for the selection of virtually all JUDGES and judicial officers, MAGISTRATES, QUEEN’S COUNSEL and TRIBUNAL chairpersons, and for the smooth running of the court system and the LEGAL AID system. He has a government department to back him up, and a staff of 10,000 who work either in his department, out on the CIRCUIT or in the ROYAL COURTS OF JUSTICE. See also CHANCERY DIVISION, CIRCUIT JUDGE. Lord Chief justice of England: The senior judge in England who sits in the criminal division Of the COURT OF APPEAL and presides over the QUEEN’S BENCH DIVISION of the High Court. Lord justice of Appeal: One of the 27 judges who sit in the COURT OF APPEAL. Lord of Appeal in Ordinary: See LAW LORD. Luxembourg Court: See EUROPEAN COURT OF JUSTICE. magistrate: Also known as a JUSTICE OF THE PEACE. There are over 29,000 part-time lay magistrates in England and Wales who sit in local MAGISTRATES’ COURTS hearing minor criminal cases. They are appointed by the LORD CHANCELLOR and (in Lancashire and Greater Manchester) the Chancellor of the Duchy of Lancaster, and are chosen from candidates within the local community. Magistrates’ court: The junior court in the criminal justice system. It is also the first point of access for offenders to the court system. It does have some civil jurisdiction, for the most part concerned with MATRIMONIAL and family cases involving applications for maintenance and adoption, as well as cases over licensing the sale of liquor and applications by residents to change street names. Three magistrates usually sit together to decide cases, advised on the law by a CLERK. Majority: 1. The status of one who has attained the age (usu. 18) at which one is entitled to full civic rights and considered legally capable of handling one’s own affairs. 2. A number that is more than half of a total; a group of 312

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more than 50 percent . A majority always refers to more than half of some defined or assumed set. In parliamentary law, that set may be all the members or some subset, such as all members present or all members voting on a particular question. A ‘majority’ without further qualification usu. means a simple majority. Marre Report: The 1988 report into the legal profession, written by committee set up jointly by the LAW SOCIETY and the BAR Council, named after its chairperson, Lady Marre. It recommended, among other things, extending RIGHTS OF AUDIENCE for SOLICITORS to the CROWN COURT and the right for solicitors to be made High Court JUDGES. Master of the  Rolls: The senior civil law judge, who presides over the COURT OF APPEAL, organising its work and allocating judges to cases, and who is in charge of the LAW SOCIETY Rolls. Master of the Supreme Court: A senior judicial officer who hears minor cases and preliminary hearings in the CHANCERY and QUEEN’S BENCH divisions of the HIGH COURT. matrimonial: The term for all law dealing with DIVORCE. medical negligence: A type of case where a breach of legal duty to take reasonable care or exercise reasonable skill in a medical sense has occurred. There have been calls to establish a special NO-FAULT COMPENSATION scheme for medical accidents. Monarchy: A government in which a single person rules, with powers varying from absolute dictatorship to the merely ceremonial. National Legal Service: A concept for the future. The legal equivalent of the National Health Service, including a public, salaried legal profession and a court system wholly funded by the state. The merits and disadvantages of this concept have often been debated in law reform circles. The closest it has come to in England and Wales has been the setting up of the CROWN PROSECUTION SERVICE. See also PUBLIC DEFENDER. negligence: The most common example of TORT in modern times. It consists of negligent behaviour resulting in damage to a person, where the person causing the damage owed a duty of care to the person suffering the damage. Common examples of a ‘duty of care’ are those owed by road users to each other and the duty owed by an employer to an employee. Because of the requirement to prove negligence, in English law COMPENSATION for harm is only available on proof of fault by an identifiable person. 313

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no-fault compensation: A system in which liability would not have to be proved before a claim Of NEGLIGENCE and DAMAGES could be laid. Such a system operates in a number of Scandinavian countries and in New Zealand. It has the benefit of reducing delay in an injured party getting COMPENSATION but has two main disadvantages – that no one is proven to be at fault, and that the level of damages received could be less than what might have been received if a case were pursued after an admittance of liability. nolle prosequi: (Latin to be unwilling to prosecute) A procedure by which an Attorney General may terminate criminal proceedings. obiter dictum [Latin ‘something said in passing’] A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). Often shortened to dictum. offence: All offences are classified in one of three ways, and classification determines the court of trial of an accused person. Summary offences (the least serious) are always tried in the MAGISTRATES’ COURTS. Indictable offences (the most serious, such as murder and treason) are always tried in the CROWN COURT. The third category consists of offences ‘triable either way’. In these, the magistrates’ court decides, according to the gravity of the offence, whether they should be tried summarily or on indictment. Theft is a good example of an offence triable either way; depending on the circumstances, it may be a very serious or a trivial offence. In most cases where the honesty or reputation of the accused is an issue, the accused retains the right to demand trial by jury in the crown court, even though the magistrates may have said that the case was suitable for summary trial. official referees: A group of nominated CIRCUIT JUDGES who may sit as HIGH COURT judges to deal with cases requiring detailed examination of documents and accounts or scientific investigation. Many of the cases involve the construction industry. Subject to the approval of the LORD CHIEF JUSTICE, an official referee may accept appointment in a case as an arbitrator. See ARBITRATION. Old Bailey: See CENTRAL CRIMINAL COURT. Ombudsman: The Parliamentary Commissioner for Administration, known as the  Ombudsman, is a semi-judicial officer who looks into maladministration of national and local government and its agencies. He/she has powers of investigation and his/her recommendations are generally complied with, although there is no legal duty to do so. Access to  the  Ombudsman is usually through elected officials, either MPs or 314

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councillors, although direct access has recently been granted to the local government ombudsman. There are also a number of different ombudsmen covering insurance, banking, the National Health Service, conveyancing and legal services. 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. Parliamentary Commissioner for Administration (Parliamentary Ombudsman): An independent official appointed under the  Parliamentary Commissioner Act 1967 (as amended by the Parliamentary and Health Service Commissioners Act 1987) to investigate complaints by individuals or corporate bodies of injustice arising from maladministration by a government department or by certain nondepartmental public bodies, such as the Arts Council of England and the Housing Corporation. Appointment of the Commissioner is by the Crown on the Prime Minister’s advice. The Commissioner may investigate complaints only if they are submitted to him in writing through a Member of Parliament; investigation is entirely at his discretion. If he upholds a complaint and it is not remedied, he reports this to Parliament. Complaints of maladministration by devolved bodies in Wales and Scotland are investigated by the Welsh Administration Ombudsman and the Scottish Parliamentary Commissioner for Administration, respectively. Patronage: 1. The giving of support, sponsorship, or protection. 2. All the customers of a business; clientele. 3. The power to appoint persons to governmental positions or to confer other political favors. personal injury: A type of case in which injury has been caused to a person through NEGLIGENCE or lack of due care by another. See also COMPENSATION, CONTINGENCY FEE. petition: A written application to the court for a legal remedy, such as damages or injunction. One who puts forward such a petition is a petitioner (divorce petition, bankruptcy petition). plaintiff: Someone who starts an action in a CIVIL Court. See CLAIMANT. Pledge: n. 1. A formal promise or undertaking. 2. The act of providing something as security for a debt or obligation. 3. A bailment or other deposit of personal property to a creditor as security for a debt or obligation. 4. The item of personal property so deposited. 5. The thing so provided. – Formerly also termed safe pledge. 6. A security interest in personal property represented by an indispensable instrument, the interest being created 315

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by a bailment or other deposit of personal property for the purpose of securing the payment of a debt or the performance of some other duty. 7. (hist.) A person who acts as a surety for the prosecution of a lawsuit. In early practice, pledges were listed at the end of the declaration. Over time the listing of pledges became a formality, and fictitious names (such as ‘John Doe’ or ‘Richard Roe’) were allowed. Precedent: n. 1. ‘The making of law by a court in recognizing and applying new rules while administering justice. 2. A decided case that furnishes a basis for determining later cases involving similar facts or issues. Prerogative: The special power, pre-eminence or privilege which the Queen has, over and above other persons, in right of her Crown and independently of statute and the Courts. Principal: n. 1. (in criminal law) The person who actually carries out a crime. (Formerly, the actual perpetrator was known as the principal in the first degree and a person who aided and abetted was called principal in the second degree, but the former is now known as the principal and the latter as the secondary party.) A person can be a principal even if he does not carry out the act himself; for example, if he acts through an innocent agent, such as a child, or if he is legally responsible for the acts of another (e.g. because of *vicarious liability). 2. (in the law of agency) The person on whose behalf an agent acts. 3. (in finance) The sum of money lent or invested, as distinguished from the interest. Principal: n. 1. One who authorizes another to act on his or her behalf as an agent 2. One who commits or participates in a crime. 3. One who has primary responsibility on an obligation, as opposed to a surety or indorser. 4. The corpus of an estate or trust. 5. The amount of a debt, investment, or other fund, not including interest, earnings, or profits. Principle: n. A basic rule, law, or doctrine. prison: The major penal institution for the criminal justice system. Privy Council: A body, headed by the Lord President of the Council. Its functions are mainly formal. There are about 350 Privy Counsellors, who include members of the royal family, all Cabinet ministers, the Speaker and other holders of high non-political office, and persons honoured for public services. probate: The law concerned with wills and estates. Procurator Fiscal: The official in Scotland to whom the police report comes, and who decides whether to bring a prosecution. See CROWN PROSECUTION SERVICE. 316

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product liability: The liability of a manufacturer or distributor of a product for death or injury caused by a defect in that product. For products originating in the European Community, it is no longer necessary to prove that a defect came about as a result of NEGLIGENCE. The manufacturer has a good defence to a claim if it can be shown that there was no way of knowing that a product would be defective. This is known as the ‘state of the art’ defence. prosecution: The process whereby a defendant is accused of a crime in the criminal justice system, act of bringing someone to court to answer a charge. public defender: The office that represents defendants in criminal trials, this representation being paid for out of the public purse. This system is used in the United States and its application has been canvassed here as a counterbalance to the CROWN PROSECUTION SERVICE. See also NATIONAL LEGAL SERVICE. public inquiry: A procedure presided over by an official who may be an inspector (as in planning inquiries) or a legally qualified chairperson. It is used to make recommendations to government ministers in cases where decisions will be potentially controversial or adversely affect the interests of private individuals. The consequent decision and the proceedings of the public inquiry are subject to JUDICIAL REVIEW. Qualified: adj. 1. Possessing the necessary qualifications; capable or competent . 2. Limited; restricted . Queen’s Bench Division: The largest of the three DIVISIONS OF THE HIGH COURT, which has the broadest range of work – from general civil claims for debts and damages to contract disputes. It has specialist courts within it: the COMMERCIAL COURT, which, as its name suggests, deals with commercial matters; the Admiralty Court for shipping disputes; and the Divisional Court for JUDICIAL REVIEWS and APPEALS from MAGISTRATES’ COURTS on points of law, and also where the remedy of HABEAS CORPUS can be sought. It also has the largest number of judges assigned to it (53), including those on the Crown Office List who specialise in judicial reviews. Queen’s Counsel (QC): A senior BARRISTER who has ‘taken silk’ – that is, been selected to be a QC. Each year, barristers of at least 15 years’ standing can apply to the LORD CHANCELLOR; usually only some 50 are selected. As a QC, a barrister can command a higher fee and is more likely to be picked to be a HIGH COURT judge. 317

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ratio decidendi: n. [Latin’the reason for deciding’] 1. The principle or rule of law on which a court’s decision is founded. 2. The rule of law on which a later court thinks that a previous court founded its decision; a general rule without which a case must have been decided otherwise. Recorder: A part-time judicial officer who hears cases in crown and county Courts. There are some 1000 recorders and assistant recorders. Both SOLICITORS and BARRISTERS are eligible for appointment. Redress: n. (14c) 1. Relief; remedy . 2. A means of seeking relief or remedy . registrar: See DISTRICT JUDGE, MASTER OF THE SUPREME COURT remand: The period in custody after being charged with a criminal offence and before being sent for trial. Although there are a number of remand centres in England, there are so many remand prisoners that some must stay in prisons and police cells, a situation that has led some to declare a state of crisis in the remand system. remedy (redress. relief): n. Any of the  methods available at law for the enforcement, protection, or recovery of rights or for obtaining redress for their infringement. A civil remedy may be granted by a court to a party to a civil action. It may include the common law remedy of damages and/or the equitable remedies of quantum meruit, injunction, decree of specific performance. remuneration: The means by which lawyers are paid, particularly from the LEGAL AID fund. Lawyers claim that legal aid remuneration is too low and have even taken the LORD CHANCELLOR to court over its levels. See also COSTS. representation: The process by which individuals are represented in court by lawyers. rider: A statement, opinion, or piece of advice added esp. to an official declaration or judgment. rights of audience: The right of a lawyer to represent clients in court. BARRISTERS used to have sole rights of audience in CROWN COURTS and the higher courts. SOLICITORS are allowed to appear in the COUNTY COURTS and MAGISTRATES’ COURTS and at TRIBUNALS. Recent enabling legislation has created the possibility of solicitors being granted wider rights of audience. The terms on which this will happen are being hammered out in negotiations. The principal objection by barristers is that solicitors should be subjected to the ‘cab-rank rule’, in the same way as barristers. 318

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rigid constitution: A constitution whose terms cannot be altered by ordinary forms of legislation, only by special amending procedures. The U.S. Constitution is an example. It cannot be changed without the consent of three-fourths of the state legislatures or through a constitutional convention. U.S. Const. art. V. Rolls: The list of qualified solicitors, organised by the LAW SOCIETY. See also MASTER OF THE ROLLS. 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 Courts of justice: The major courthouse in England based in the Strand, London. It houses the COURT OF APPEAL and the major High Court in England. With over 60 courtrooms and back-up administrative staff, it is seen as the centre of the English legal system. 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’. sentence: An order of a court imposing a penalty, following the conviction of an accused person. The Sentencing power of MAGISTRATES’ COURTS is generally limited to a FINE of £2000 and /or a term of imprisonment of not more than six months on anyone charged; a term of imprisonment may be suspended for up to two years. There is now a wide variety of sentences available. See also COMMUNITY SERVICE ORDER, PRISON. sequestration: The seizure of a person’s or a company’s assets by the court for preservation pending the outcome of legal proceedings. separation of powers: The division of governmental authority into three branches of government legislative, executive, and judicial – each with specified duties on which neither of the other branches can encroach; a constitutional doctrine of checks and balances designed to protect the people against tyranny. 319

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sheriff: The officer of the HIGH COURT, who implements orders of the court in debt collection and other matters. sheriff court: A Scottish court with both civil and criminal jurisdiction. The judges are the Sheriffs Principal and the Sheriff’s Substitute. slander: See LIBEL. small claims court: Part of the COUNTY COURT where claims under £1000 are heard by a DISTRICT JUDGE. The procedure is informal. Although there is no LEGAL AID for small claims cases, the normal rules about COSTS do not apply. This acts as a disincentive to the use of lawyers for representation. See also ARBITRATION. solicitors: Lawyers who advise and represent clients in all stages of the legal process, but cannot appear in the higher courts as ADVOCATES, and who usually therefore instruct COUNSEL to do so. There are 50,000 practising solicitors in England and Wales, all of whom are members of the LAW SOCIETY. Solicitors usually operate out of medium-sized firms comprising a number of partners, junior solicitors and ARTICLED CLERKS. The largest firm in the country has almost 200 partners and over 800 legally qualified staff. Some solicitors operate as sole practitioners, although they are finding it more difficult in the new climate of competition. See also CONVEYANCING, RIGHTS OF AUDIENCE. Solicitor General: A junior government minister, usually an MP, who is the second law officer of the Crown under the ATTORNEY GENERAL. source of law: something (such as a constitution, treaty, statute, or custom) that provides authority for legislation and for judicial decisions; a point of origin for law or legal analysis. Spec Scheme: A system used in Scotland where lawyers can waive their fees before a case has commenced so that, if the case is lost, clients won’t have to pay. If it is won, the lawyers will be paid by the other side. This scheme is banned in England and Wales, although many believe it has merits in providing more access to justice for those both too poor to pay for legal services and too well off to be eligible for LEGAL AID. See also CONTINGENCY FEE. specialist panels: Panels of lawyers who are experts in certain fields of law. There are already two specialist panels – in child care and mental health law – and, of course, specialist ADVOCATES. There is a possibility that more panels may come into being in the fields of PERSONAL INJURY, MEDICAL NEGLIGENCE and housing, especially for LEGAL AID clients where the state is trying to cut down on waste due to lack of expertise. 320

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Eventually, only lawyers who are members of the relevant panel may be allowed to practise in that field of law. stare decisis: n. [Latin ‘to stand by things decided’] The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation. statute book: The entire body of existing statutes. statute law: See ACT OF PARLIAMENT. stipendiary magistrates: The more than 60 full-time, legally qualified magistrates .who sit on their own in MAGISTRATES’ COURTS, usually in the major cities. Strasbourg Court: See EUROPEAN CONVENTION OF HUMAN RIGHTS. structured settlement: A form of settlement in very large claims for DAMAGES for PERSONAL INJURIES where the  injured party is permanently disabled and usually with a reduced life expectancy. Instead of a lump sum, the claimant is awarded an income for life or for a fixed period, which is to be raised by the defendant purchasing an annuity for the benefit of the claimant. This form of settlement is economic from the defendant’s point of view, and the claimant is compensated in full. This form of settlement has to be approved by the Inland Revenue as well as the court. Subject: n. One who owes allegiance to a sovereign and is governed by that sovereign’s laws. subordinate legislation: Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any ACT OF PARLIAMFNT. Many modern Acts only legislate on a subject in outline, leaving the details to be filled in later by subordinate legislation. Such legislation is subject to special parliamentary scrutiny, and it may also be ruled invalid by a court if the minister exceeds the powers that the Act of Parliament confers on him/her. Several thousand items of subordinate legislation pass through Parliament each year. subpoena: A court order directing a person to attend court to give evidence or to produce documents; used when a person is unwilling to do so voluntarily. Failure to comply with the order is CONTEMPT of court and may lead to imprisonment or another penalty. Succession: n. 1. The act or right of legally or officially taking over a predecessor’s office, rank, or duties. 2. The acquisition of rights or property by inheritance under the laws of descent and distribution; 3. The right by which one group, in replacing another group, acquires all the goods, movables, and 321

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other chattels of a corporation. 4. The continuation of a corporation’s legal status despite changes in ownership or management. Succession: n. 1. The law and procedures under which beneficiaries become entitled to property under a testator’s will or on intestacy. 2. (in international law) The transfer of sovereignty over a territorial entity from one subject of international law (i.e. one state) to another. As a result of succession, an existing state becomes totally extinguished (as when Tanganyika and Zanzibar ceased to exist in 1964 on the formation of Tanzania) or a state transfers part of its territory to another state. Successive: adj. 1. Archaic. (Of an estate) hereditary. 2. (Of persons, things, appointments, etc.) following in order; consecutive. to sue: To bring a civil action in the courts. Suffrage: 1. The right or privilege of casting a vote at a public election. 2. A vote; the act of voting. summary offence: See OFFENCE. Summon: vb. To command (a person) by service of a summons to appear in court. summons: A summons is issued when criminal proceedings are commenced and is sent to the defendant. It states the general nature of the OFFENCE, and the place and time the defendant is to appear. It is also used in civil proceedings to start a county court case. Supreme Court: A collective term for the  COURT OF APPEAL, the HIGH COURT and the CROWN COURT, which together comprise the Supreme Court of England and Wales. surveillance: Keeping watch on a suspect= watching someone carefully to get information about what he is doing. ‘take silk’: See QUEEN’S COUNSEL. to tender (for): 1. To make a formal offer to do something for a particular price. 2. To present for acceptance. 3. To offer in payment. Tenur: n. (l5c) 1. A right, term, or mode of holding lands or tenements in subordination to  a superior. In feudal times, real property was held predominantly as part of a tenure system. 2. A particular feudal mode of holding lands; 3. A status afforded to a teacher or professor as a protection against summary dismissal without sufficient cause. This status has long been considered a cornerstone of academic freedom. 4. More generally, the legal protection of a long-term relationship, such as employment. 322

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tort: A breach of a duty that has been imposed by the law on all persons for the protection of other persons’ lives, persons, reputations and wellbeing. Such breaches of duty give rise to a civil action by the person harmed by the other’s breach of duty. See also DELICT, NEGLIGENCE, TRESPASS. Treasury: The government department that controls public expenditure and sets the level of the budgets for the various departments involved in the administration of justice and the legal system. Treasury Counsel: A group of Counsel appointed by the ATTORNEY GENERAL to prosecute on direction of the DIRECTOR OF PUBLIC PROSECUTIONS in criminal trials in the  CENTRAL CRIMINAL COURT. The Junior Counsel to the Treasury is instructed by the Treasury Solicitor to represent government departments in major civil cases, usually JUDICIAL REVIEWS. 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)). trespass: An unlawful interference with a person or a person’s land or possessions. trial: The process whereby cases are heard and decided by either a judge or a judge and jury. tribunals: Informal courts in the civil legal system. Each has a chairperson who must be a lawyer, as well as lay members who hear cases in a number of specialised areas. Of the more than 50 types of tribunals, the most common are the industrial tribunals and the Social Security appeals tribunals. There are others dealing with immigration, mental health, land and pensions. There is no LEGAL AID for representation at tribunals as they are meant to be informal and simple to use, but increasingly lawyers are needed as the law in such areas becomes more complicated. trust: An obligation accepted by a person, known as a ‘trustee’, to hold and manage property entrusted to him/her by its owner, for the benefit of a third person, known as the ‘beneficiary’. The trust obligation is the prime example of the way in which EQUITY ensures that actual intentions with 323

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respect to the disposition of property are carried out. A trust may arise by agreement between the trustee and the owner of the property or be imposed on the trustee because of the circumstances existing between him/her and the owner of the property. Tyranny: 1. The severe deprivation of a natural right. 2. The accumulation of all powers the legislative, executive, and judicial- in the same hands (whether few or many). Sense 2 expresses the Madisonian view of tyranny, to be found in The Federalist, No. 47. 3. Arbitrary or despotic government; the severe and autocratic exercise of sovereign power, whether vested constitutionally in one ruler or usurped by that ruler by breaking down the division and distribution of governmental powers. unwritten constitution. 1. The customs and values, some of which are expressed in statutes, that provide the organic and fundamental law of a state or country that does not have a Single written document functioning as a constitution. – In British constitutional law, the constitution is a collection of historical documents, statutes, decrees, conventions, traditions, and royal prerogatives. Documents and statutes include Magna Carta (1215), the Bill of Rights (1689), and the European Communities Act (1972). 2. The implied parts of a written constitution, encompassing the rights, freedoms, and processes considered to be essential, but not explicitly defined in the written document.  – Many aspects of an unwritten constitution are based on custom and precedent. The U.S. Constitution does not, for example, give the Supreme Court the power to declare laws unconstitutional but the Court does so without question. Nor does the Constitution expressly guarantee a right of privacy, but the Supreme Court has declared that the right exists and is protected. 3. A nation’s history of government and institutional development. This was the standard definition before the United States produced the first written constitution. It remains current in Great Britain and other nations that have unwritten constitutions. 4. Parliamentary law. A governing document adopted by an organization for its internal governance and its external dealings. The constitution may be an organization’s most authoritative governing document, but if the organization has also received a charter or adopted articles of incorporation or association, then the constitution is subordinate to them. If the organization has also adopted bylaws, then the bylaws are subordinate to (and usu. more easily amended than) the constitution. The constitution and bylaws are sometimes contained in a single document.

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to vest: To confer legal ownership of land on someone; 2) to confer legal rights on someone. Veto: n. 1. (in international law) The power given to any permanent member of the Security Council of the United Nations to refuse to agree to  any nonprocedural proposal (there is no such power in relation to procedural matters) and thereby defeat it. An abstention is not equivalent to a veto. The President of the Security Council has power to determine which questions are nonprocedural. The General Assembly of the UN passed a Uniting for Peace Resolution in 1950, providing for the Assembly to take over some of the functions of the Security Council when the Council’s work has been paralysed by use of the veto. This resolution, however, was only a political gesture and failed to overcome the veto power. 2. (in EU law) a. The power of a member state in the *Council of the European Union to block legislation when a unanimous decision in favour of a measure is required. Although much EU legislation only requires a qualified majority decision of the Council, unanimity votes are required in such areas as taxation, budgets, foreign policy, and the admission of new member states; b. The power of the European Parliament to reject legislation proposed by the Commission by means of the codecision procedure. Void: adj. (14c) 1. Of no legal effect; null. – The distinction between void and voidable is often of great practical importance. Whenever technical accuracy is required, void can be properly applied only to those provisions that are of no effect whatsoever – those that are an absolute nullity. Voidable: adj. (15c) Valid until annulled; esp., (of a contract) capable of being affirmed or rejected at the option of one of the parties. This term describes a valid act that may be voided rather than an invalid act that may be ratified. Weatherill amendment: This is an amendment to the House of Lords Bill 1988–1989 moved by the late Lord Weatherill. This Bill sought to abolish the right of hereditary peers to sit and vote in the House of Lords. Lord Weatherill’s amendment allowed for 92 hereditary peers to  remain in the Lords. It was passed and became section 2 of the House of Lords Act 1999. writ: A document issued by a senior civil court to start a court action. wrong: Act against natural justice/ act which infringes someone else’s right. (wrongdoer, wrongdoing).

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KEYS UNIT I HISTORY AND SOURCES OF ENGLISH LAW Text 1 TASK I 1. apply; 2. justice; 3. judgment; 4. Itinerant justices; 5. precedence; 6. evidence; 7. case; 8. evidence. TASK III to stem from modern prevail vary influence judge contribute treat source gain body of establish

to arise, to come, to derive present predominate change, deviate, differ affect, persuade, motivate justice add, bestow consider, deal with origin acquire, get accumulation, collection, mass create, set up

TASK IV accept gain occasional particular common local obvious(ly)

reject miss frequent; regular general, easy going distinctive, unusual general, national hidden, obscure

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TASK VII 1. different; 2. different, different; 3. various, differently; 4. different; 5. differently; 6.various; 7. various. TASK VIII Unitary, single, separate, association, similar, differences; differences, substantial, ruled, originally.

Text 2 TASK I 1. precedent; 2. Appeal; reversed; 3. lost a case; 4. overruled; 5. judiciary; 6. brought; 7. sacked. TASK III to offer to make a law statement to consider to presuppose to pronounce precise

to come forward, to propose to create, to establish assertion, declaration to contemplate, to judge to presume, to hypothesize to assert, to declare accurate, well-defined, explicit

TASK V 1. cling to; 2. impartiality; 3. take sides; 4. preponderance; 5. to take account of; 6. ensured; 7. look up; 8. spelt out.

Text 3 TASK I 1. jurisdiction; 2. petition; 3. verdict; 4. specific performance; 5. charges; 6. redress; 7. writ; 8. High Court. TASK II equity fair system of laws or system of British law which developed in parallel with the common law to make it fairer writ legal document which begins an action in court litigant person who brings a lawsuit against someone remedy way of repairing harm or damage suffered 327

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damages money claimed by a plaintiff from a defendant as compensation for harm done redress remedy, relief wrong an illegal or immoral act petition written application to a court verdict decision of a jury or magistrate injunction court order compelling someone to stop doing something TASK V 1. dispensed; 2. observed; 3. enforced; 4. granted; 5. refused; 6. emerged; 7. held; 8. administered; 9. decided.

UNIT II Text 1 TASK I 1.  relevant 2.  continuity 3.  asserted 4.  enshrined 5.  expunge 6.  stalemate TASK II a) 1)  compelling, primary, dominant; 2)  crucial decisive, basic, major; 3)  supreme; 4)  set of rules, fundamental principles; 5)  legitimate successor; eligible to succeed; 6)  the rule of the military. TASK IV 1.  constituency 2.  institute 3.  constitute 4.  restitution 5.  substitute

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Text 2 TASK I 1. entitles 2. premise, premise 3. abdicated 4. exact 5. thrashed out 6. franchise 7. Propounding 8. coherent 9. tenure 10. reluctantly, reluctantly

11. pretensions 12. tenure 13. concessions 14. propounded 15. propound 16. tenure 17. franchise 18. propounded 19. reluctant 20. thrashed out

TASK II To break the contract; to abuse power; to propound theory; to design/ work out compromise; to avoid chaos; to restore constitution, monarchy; to reach solution; to dissolve/to summon Parliament; to preserve continuity; to exercise powers; to override legislation, veto; to lay down foundations/ principles; to confer rights; to exact concessions; to fill the vacuum; to crush support, resistance; to ratify acts. TASK III a) 1. legality; 2. legacy; 3. legitimacy; 4. legislation; 5. legislature. b) 1. legacies; 2. legality; 3. legislation; 4. legitimacy; 5. legislatures; 6. legislation; 7. legitimacy; 8. legislation; 9. legacy; 10. legislation; 11.  egality; 12. legislature; 13. legacy; 14. legislatures; 15. legality; 16. legitimacy; 17. legality; 18. legitimacy; 19. legislature; 20. legitimacy; 21. legality.

Text 3 TASK I b) 1. institution, legal aid; 20 conventions; 3. Ombudsman; 4. pledge; 5. institution; 6. institutions; 7. patronage; 8. redress; 9. institution, institution; 10. maladministration. TASK II 1.  was assured; 2. to ensure against; 3. ensured; 4. insure; 5. ensures; 6. assured; 7. ensure. 329

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TASK III 1) a system or body of usages, laws, or regulations; single laws or usages if their operation is of vital importance and vast scope. 2) an organized society, established either by law or the authority of individuals, for promoting any object, public or social. TASK IV Evolutionary – evolution – evolve Comparative – comparison – compare Different – difference – differ/differentiate Constituent – constitution – constitute Notional – notion – notify Descriptive – description – describe Successive – succession – succeed Powerful – power – empower Expendable – expenditure – expend Alterative – alteration – alter Discoverable – discovery – discover Significant – significance – signify Distinctive – distinction – distinguish TASK VI 1) c; 2) b; 3) a; 4) b; 5) c; 6) b; 7) a; 8) a.

Text 4 TASK II To limit/to restrain exercise of power/governmental powers To make/to enforce laws To police rights To set/to place limits To override individual liberties To apply ideas/ prejudices/laws To interpret legislation To settle disputes To obtain protection To remove provisions TASK III 1) c;2) a; 3) b; 4) b; 5) c; 6) c; 7) c; 8) b; 9) b. 330

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Text 5 TASK I Tyranny – tyrannous – tyrannize Power – powerful – empower Function – functional – function Government – governmental – govern Center – central – centralize Separation – separate – separate Difference – different – differ Division – divisional – divide Reflection – reflective – reflect Influence – influential – influence Generalization – general – generalize Risk – risky – risk Weakness – weak – weaken Extent (extension) – extend – extensive Distinction – distinct (distinctive) – distinguish Harmony – harmonious – harmonize Contest – contentious – contend Dominate – dominant – dominate TASK II a) Ancient theory; influential version; classical doctrine; powerful government; different interests, kinds, senses; pragmatic compromise; efficient working; proper sphere (of action); foreign affairs; weak government. b) 1. ancient law and practice; 2. more influential power players; 3. foreign relations; 4. a weak position; 5. two ‘classical’ exponents; 6. a more powerful bargaining position; 7. different attitudes and expectations; 8. a new and pragmatic way; 9. efficient execution; 10. a ‘proper balance’. TASK III a) To combat tyranny; to propose a version; to divide the functions; to veto legislation; to settle disputes; to override veto; to enforce laws; to interpret legislation, the law; to enact laws; to apply the law. b) 1. to settle major questions; 2. could override the common law; 3. a deeply divided society; 4. to interpret and enforce fundamental law; 5. enforced by the Information Commissioner; 6. not also apply to, or within; 7. the devolution enacted; 8. to combat corruption; 9. could veto proposed laws; 10. other reforms proposed. 331

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TASK IV a) Democracy  – the  form of government in which the  sovereign power resides in and exercised by the whole body of free citizens directly or indirectly through a system of representation, as distinguished from a monarchy, aristocracy, or oligarchy. The term meaning literally ‘government by the people’ is often employed loosely, often tendentiously, often vaguely. Originally a Greek term democracy was understood by the Greeks in a very different sense from the current understanding: Greek democracy was a limited institution – limited to clan members, who were citizens, a huge population of slaves and other subordinate classes were disfranchised. Tyranny – arbitrary or despotic government; the severe and autocratic exercise of sovereign power, either vested constitutionally in one ruler, or usurped by him by breaking down the  division and distribution of governmental powers. Convention – 1) a term applied to constitutional rules which are observed although they do not have the force of law. 2) A name given to such meetings of the Houses of Lords and Commons as take place by their own authority, without being summoned by the Sovereign. This can only take place during great national crises. Thus, in 1660, the Convention Parliament met, which restored King Charles the Second; and in 1688, the Lords and Commons met to dispose of the Crown and kingdom in favour of the Prince of Orange. 3) A treaty with a foreign power. Checks and balances – arrangement of governmental powers whereby powers of one governmental branch curb or control those of other branches. b) 1. deliberative democracy; constitutional conventions; 2. greater separation of powers; 3. new checks and balances; 4. few checks and balances; 5. tyranny, tyranny; 6. traditional executive-legislative-judicial ‘separationof-powers’ model; 7. ‘checks and balances’; 8. Constitutional Convention; 9. democracy; 10. tyranny; 11. representative democracy; direct democracy; 12. a constitutional convention; 13. constitutional ‘convention’; 14. separation of powers; 15. separation of powers; 16. faith in democracy; 17. tyranny; 18. constitutional conventions; 19. separation of powers.

Text 6 TASK II 1. b; 2. c; 3. b; 4. b; 5. c; 6. a; 7. b. 332

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TASK III a) 1. others; 2. Each; another; 3. Each; 4. the other; 5. each other; 6. either; 7. each other; 8. another; 9. each, neither, the other.

Text 7 TASK I a) to describe – description; to require – requirement; to reject – rejection; to achieve – achievement; to identify – identification (identity); to clarify – clarification (clarity); to pronounce – pronouncement; to declare  – declaration; to state  – statement; to  maintain  – maintenance; to obey – obedience; to refuse – refusal; to violate – violation; to export – export; to regard – regard; to appoint – appointment; to imagine – imagination. TASK IV developed; applied; honouring; changing; analyzed; inducing; called; involving; developed; interpreting; being challenged; construed; upholding; contained. TASK VI immoral, illegal, unaccepted, indirectly, to devalue, to misuse, invalid, non-democratic, impersonal. TASK VII rights and duties; better or worse; public or private; guilt or innocence; followed or preceded; to acquit or to convict; chaos or order; wholly or partly; war and peace; crime and punishment; to break a law or to obey the law; contrary to or in accordance with.

Text 8 TASK III b)1) federal; 2) Federal; 3) Federal; 4) federal, federal; 5) federal, federal; 6) federal; 7) federal, federal; 8) federal, federal; 9) federal; 10) unitary; 11) unitary; 12) unitary; 13) unitary.

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UNIT III Text 1 TASK II b) 1. exercise power; power; 2. powers conferred; 3. power; power, had delegated; 4. undermine; 5. may assume power; 6. undermine; 7. had conferred powers; 8. may be delegated; 9. assumed authority; 10. undermines; 11. to exercise power without authority; 12. power granted. c) 1. authorities; 2. power, authority; 3. power, authority; 4. authority; 5. authorities; 6. authority; 7. authority; 8. powers; 9. powers, powers; 10.  authority; 11. powers; 12. authority; 13. powers; 14. authority; 15. authorities; 16. powers, powers, powers; 17. authority; 18. power, powers; 19. power; 20. powers; 21. authority; 22. powers; 23. authority. TASK III alternative view; obscure concept; ceremonial and symbolic function; political significance; official capacity; executive power; corporation sole; legal powers. TASK V 1.  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. 2.  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. 3.  However, the crown is an obscure concept, particularly as to whether the Crown and the Queen are the same. TASK VII possesses; is exempt; has entered; are funded; are funded; can be increased.

Text 3 TASK II 1. can, must; 2. have to; 3. should; 4. must; 5. might; 6. should, should; 7. must; 8. could, could, could; 9. can; 10. have to; 11. must. 334

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TASK III to abolish elections; to propose legislation; to exercise power / a personal choice; to appoint a prime minister; to influence opinion; to form a government; to produce an overall majority; to dissolve Parliament; to summon the leader; to advise a dissolution; to determine the electorate’s preference; to give assent; to command a majority; to dismiss a government. TASK V a) Powers exercised by the Crown derive from three sources: statute, private law and the royal prerogative. Powers exercisable by other government bodies derive only from statute, except in the case of the police who have common law powers. Statutory powers make up the bulk of Crown powers and are usually conferred directly on individual ministers. The Crown also has inherent prerogative powers which are peculiar to itself. In practice these are also exercised by ministers. In addition the Crown is recognised as a person by the common law and so has the same capacity to make contracts, own property, etc. as a private individual. This has been described as the ‘third source’ of powers exercised by the Crown (see Harris, 1992). By contrast, public bodies such as local authorities that are creatures of statute can only do what statute authorises and cannot rely on the ordinary law. b) lingering, antiquity, unresolved, finally, permissive, strictly, uneasily. TASK VI 1. Before looking at the Royal Prerogatives… 2. In this connection Daintith has distinguished… 3.  For example, to all intents and purposes… 4. It could be argued that… 5.  Parliament can in principle supervise Crown contracts. TASK VII 1. usually; 2. directly; 3. lawfully; 4. properly; 5. ultimately; 6. finally; 7. notably.

Text 4 TASK II Some prerogative powers, for example dissolving Parliament and granting honours and titles, fall into categories that have traditionally been exempt 335

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from parliamentary scrutiny on the ground that they involve the personal discretion of the monarch, even though the monarch must usually act on the advice of the prime minister. TASK III 1.  in; by 2.  on 3.  upon 4.  with 5.  over; on; in

Text 5 TASK II to levy to declare to dissolve to prevent to restore to give up to exercise to appoint

taxes wars Parliament criticism the monarchy the right the powers prime ministers

Text 6 TASK II make up to form (something) as a whole put forward to offer, suggest (something as an idea) for consideration to back up to support something or someone die out to cease to exist, disappear  date back to/from to have existed since pass down to give or leave to people who are younger or come later

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UNIT IV

PARLIAMENT

Text 1 TASK I  to grant/ to  give Aid; to  meet expenses; to  persuade barons; to  get one’s assent; to summon barons/knights; to hold Parliament; to deal with emergency. TASK V a) 1.  to provoke; 2.  to convoke; 3.  to invoke; 4.  to revoke; 5.  to evoke. b) 1. provoke; 2. provoked; 3. convokes; 4. revoked; 5. invoked; 6. revoked; 7. provoke; 8. provoked; 9. revoke; 10. evoked; 11. revoked.

Text 2 TASK III were summoned; went on, had appeared; be considered; approved; being considered; was made; emanated; starting; giving; increasing; were granted; stipulated; securing.

Text 3 TASK I 1)  powerful, useful, forceful, skillful, lawful, purposeful, rightful 2)  influential, functional, commercial, original, official, pyramidal, judicial 3)  theoretical, monarchical, systematical, practical, historical, periodical 4)  wealthy 5)  customary, parliamentary 6)  favorable, reasonable 7)  bodily, kingly 8)  basic 9)  decisive TASK II b) 1. conferred; 2. gathered; 3. adopted; 4. granted, granted; 5. transfer; 6. conferred; 7. enact, enacted, enacted; 8. dismissed; 9. aspires, develop; 337

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KEYS

10.  originated; 11. evolved, to dismiss; 12. dismiss; 13. developed; 14. summoned, enacted. TASK III a) simplify – complicate; the rise – the fall; descendants – ancestors; superior – inferior; separate – mixed; reject – approve; the beginning – the end; the majority – the minority. b) 1. questionable; 2. inferior; 3. considerable; 4. efficient; 5. superior, inferior, useless; 6. separate; 7. harmonious; 8. superior, official; 9. harmonious; 10. superior, superior; 11. superior; 12. insignificant. TASK V 1. that; 2. which; 3. which; 4. who; 5. which; 6. which; that; 7. that.

Text 4 TASK I b) 1. executive; 2. principal; 3. elections; 4. succession; 5. legislation, veto, subject; 6. binding, void; 7. subjects; 8. void; 9. legislation; 10. to legislate; 11. legislation, legislator; 12. legislatures, principles; 13. subjects, legislative; 14. legislate; 15. summoned; 16. subjects; 17. executive; 18. election. TASK IV 1. legislate; 2. successive; 3. legislature; 4. succeed; 5. executive; 6. summoned; 7. summons; 8. void; 9. binding; 10. legalized. TASK VI 1. authority; 2. organization; 3. a large amount; 4. organ; 5. corpse; 6. the main part; 7. legal body.

Text 5 TASK III a) 1. to stand as; 2. understanding; 3. long standing; 4. understand; 5. notwithstanding; 6. stands; 7. standing; 8. understanding; 9. feudal understanding; 10. understandable, stand; 11. standards; 12. to stand; 13. standing; 14. stands down; 15. withstand.

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UNIT IV

Text 6 TASK III a) 1. withhold; 2. withhold; 3. upholding; 4. holder; 5. holder; 6. holder, holder; 7. holder, holders; 8. holder; 9. holder; 10. holder; 11. holding; 12. holder; 13. hold; 14. holdings; 15. hold; 16. holding; 17. held; 18. withhold; 19. to hold.

Text 7 TASK II b) 1. institution; 2.nominating; 3. ineligible, eligible; 4. institutions, nominations, nominations; 5. eligible; 6. nomination; 7. disqualified; 8. nominating; 9. qualified; 10. eligible; 11. dissolved, dissolved; 12. nomination; 13. ineligible; 14. delaying power; 15. eligible; 16. delaying power; 17. disqualified; 18. suffrage; 19. power to delay. TASK VI 1. of, of; 2. of, by, of, for, for, under; 3. into; 4. over, of, of, for, in; 5. forward, of, to of; 6. by/in, in; 7. by, of, in.

Text 8 TASK II b) 1. adjourned; 2. prorogued; 3. adjourned; 4. prorogued; 5. prorogue; 6. adjourned; 7. adjourned; 8. prorogue; 9. adjourn; 10. adjourn. TASK VI developed; increased; are exercised; include; choosing; sustaining; supplying; authorizing; supervising; debating; govern; checks; controls; approves; amends; criticizes; vetoes.

Text 11 TASK II a) 1. parliamentary procedure; 2. parliamentary control; 3. parliamentary privilege; 4. parliamentary majority; 5. parliamentary committees; 6. parliamentary business; 7. parliamentary privilege; 8. parliamentary timetable; 9. parliamentary commissioner. 339

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KEYS

UNIT V THE EXECUTIVE Text 1 TASK II 1. democratic government; 2. effective government; 3. new government; 4. Government intervention; successive Governments 5. Government functions; Government activities; Government departments; 6. Government departments; 7. central Government; 8. Her Majesty’s Government; 9. government policy; 10. Government bills. TASK V 1) government; 2) government; 3) Parliament; 4) government; 5) government; 6) government; 7) Parliament; 8) Parliament; 9) government; 10) Parliament; 11) government; 12) government; 13) Parliament; 14) Parliament; 15) government;16) Parliament; 17) Parliament; 18) Parliament; 19) government; 20) Parliament; 21) Parliament; 22) Parliament. TASK VI b) 1. the Government; 2. the Cabinet; 3. the Government; 4. the Cabinet; 5. the Government; 6. the Cabinet; 7. Cabinet, government, the executive.

Text 2 TASK III 1.  of; by 2.  to; with; of; during 3.  from; in; of 4.  of; to; with; by 5.  by; for; upon; in

Text 3 TASK II means; is divided; work; are expected; does not involve; is called; are not allowed; is intended; relied; has been shown; have had; are not involved; were; were employed.

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UNIT V

Text 4 TASK III b) 1) government; 2) government; 3) State; 4) Governments; 5) state; 6) state; 7) government; government; 8) state; 9) government; 10) state; 11) states; 12) government.

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REFERENCES 1.  Alder John. Constitutional and Administrative Law. 2009. (Palgrave Macmillan Law Masters) 2. Black's Law Dictionary. 9-th еd. / Bryan A. Garner (еditor in сhief). WEST Thomson Reuters, 2009. 3. Collins Dictionary of British History. HarperCollins Publishers Ltd, 1997. 4. Garner Bryan A. A Dictionary of Modern Legal Usage. Oxford University Press. 2001. 5. Longman Dictionary of English Language and Culture. Longman, 2005. 6. Merriam-Webster’s Dictionary of Law / Еd. by L.P. Wood. USA, 1996. 7. Oxford Dictionary of Law / Еd. by Elizabeth A. Martin. Oxford University Press, 1997. 8. JURIST's Paper Chase 9. New York Law Journal 10. NLJ Legal Times 11. Texas Lawyer Daily News 12. The AmLaw Daily 13. The AmLaw Litigation Daily 14. The National Law Journal 15. http://www.legislation.gov.uk/ 16. http://www.investopedia.com/ 17. http://www.merriam-webster.com/dictionary/ 18. http://www.multitran.ru/ 19. http://dictionary.law.com/ 20. http://legal-dictionary.thefreedictionary.com/ 21. http://dictionary.findlaw.com/ 22. http://definitions.uslegal.com/

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ENGLISH FOR LAW STUDENTS University Course Part I

Художественное оформление: В.В. Самойлова Компьютерная верстка: А.А. Науменко

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