Black Education / Schools : UK Public Law Essay, Pass or Fail?

Orisons

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‘The British constitutional order is based on the fusion of power. In such circumstances, claiming separation of powers is wrong and meaningless.’

Starting with the history of the creation of the constitutional statutes that have been drafted as the means of limiting the extent to which any individual or group within the UK’s ruling elite, can go into autocratic dictator mode with regard to both the creation and implementation of the statutes that govern this country’s population. I will then highlight through specific cases and precedents how this conscious focus on the “separation of powers” between the Executive; used to be the monarch, is currently the Cabinet of the political party with a Parliamentary majority; Parliament, the legislature, and the UK’s Judiciary has in the main either bolstered and enhanced or not the Rule of Law with regard to the UK’s social matrix in the past, right up to today.

Baron de Montesquieu, Charles-Louis de Secondat’s published political theories, ideology projecting and promoting that the ‘separation of powers’ between the monarch, executive’s royal prerogative, the legislature, parliament and the judiciary as the way forward with regard to national administration was viewed as sedition, treason inciting insurrection, why he had to leave France. Montesquieu’s political theories are regarded as a significant ideological driver of the French Revolution, which started 32 years after his death; in 1755; while also being an acknowledged guiding influence in the construction of the USA’s constitution. Jurist, Albert Venn Dicey’s assertion that Parliamentary Conventions are “customary rules which determine how the discretionary powers of the state were exercised:” with regard to relations between the monarch, executive, legislature and judiciary still seem to be an accurate description of the social protocols that are the norm in the UK today.

The UK’s legal system despite not being based on a formally written, codified national Constitution has evolved from the laws, legal procedures that the Normans utilized post 1066 to centrally control and standardize the “Common Law” remedies of the Anglo Saxon Sheriff’s. 1[1] The UK’s constitution was started by the Barons, land owning elite aspiring to restrain King John’s propensity for autocratic dictatorial behaviour based on the “Divine right of Kings” to rule, make statutes as they see fit, by forcing the king to sign the Magna Carta at Runneymede in 1215. Henry II tired of being head of the judiciary, adjudicating time consuming legal disputes among the Barons and the rest of the socio-economic elite, so he delegated that responsibility to the Lord Chancellor [currently Robert Buckland] who used to be the Supreme Judge in the UK up until the Constitutional Reform Act [CRA] 2005 was implemented in 2009, creating the UK’s Supreme Court [used to be the House of Lords]. The CRA was updated by the Crime and Courts Act 2013 so that now the UK’s Supreme Court President Lord Reed is number 2 to the most senior judge who is the Lord Chief Justice of England and Wales, Lord Burnett of Maldon. 2 [2]3[3]

Henry VIII used the Act of Union 1536 to merge 7 Welsh counties with England, creating 26 Parliamentary wards, MPs to represent Wales in Parliament. Parliament’s conflict with Charles I led to the Petition of Right Act 1628 and the Triennial Act 1641 allowing statutes to be made without royal assent, a dispute which eventually led to Charles I disbanding Parliament and ruling by royal decree for 11 years, and the Civil War which the Parliamentarians, led by Oliver Cromwell won. However, due to Charles I’s refusal to become a constitutional monarch, accept Parliament’s supremacy with regard to creating statutes, consistent attempts to undermine parliamentary authority, post a trial by 11 judges for treason he was beheaded on 30th January 1649. Oliver Cromwell’s acceptance of the role of Lord Protector [king in everything but name], head of state in late 1653 ended with his death 1658, however naming his son Richard as his successor seriously disappointed his Parliamentary peers prompting Parliament to restore the Stuarts as constitutional monarchs, by inviting Charles II to become king, head of the Church of England in May 1660; averting Puritan or Roman Catholic domination of the country; with the constitutional Act of Habeas Corpus becoming law in 1679 during his reign. 4[4], 5[5]. Charles II dying legitimately heirless passed the crown to his Roman Catholic brother who was crowned James II, whose consistently difficult relationship with Parliament led to him being ousted as king in 1688/9, replaced by his Protestant daughter Mary and her Dutch husband William of Orange as co-rulers. Mary and William signed, adhered to the English Bill of Rights Act 1689 which ceded supremacy to Parliament, reducing the monarchy to the ceremonial, constitutional role it still has today as opposed to executive power, royal prerogative that had previously been the norm, a fundamental change which may have been influenced by the liberal thinkers of the time like John Locke. 6[6]

The Act of Settlement 1700 was drafted by Parliament to assure that only Protestant as opposed to Catholic relatives of the childless William and Mary could become monarchs, making sure that the country would not be returned to the Roman Catholicism that Henry VIII had so fervently dismissed in creating the Church of England, including a clause preventing the monarch from interfering with, dismissing judges. The Act of Settlement 1700 is what led to Charles II and James II’s first cousin Sophia of Hanover’s son George becoming king, establishing the house of Hanover as the UK’s monarchs from then, until today. 7 [7]

The Act of Union 1707 passed by the English and Scottish Parliament legally merged England and Scotland into becoming the United Kingdom under one monarch on 1st May 1707, whereas previously the Scots had their own monarchs. 8[8] The Act of Union 1801 in effect merged England, Wales, Scotland and Ireland into the United Kingdom of Great Britain and Ireland, after disbanding the Irish Parliament which is still affecting Ireland today, as highlighted by Northern Ireland’s devolved UK Parliament in Belfast and the Irish Republic’s in Dublin, still being under EU jurisdiction. 9[9]

However, the UK’s constitution’s fusing of these written statutes is also supplemented by case law, the royal prerogative and constitutional conventions which can produce anomalies with regard to precedent, the norm being challenged by unusual circumstances as highlighted by Entick v Carrington [1765] where the Secretary of State’s [Lord Halifax] agents were charged and found guilty of trespass despite the fact that their entry into private property was to gather evidence of seditious plans, initiatives against the executive, was still unlawful, illegal, without a high court warrant. 10[10] However this precedent is reversed in Liversidge v Anderson [1942] as an example of the executive’s utility of the royal prerogative with regard to issues of national security especially in wartime. The executive drafted a clause in the Public Order Act 1936 making public marching in political uniforms illegal stopping Sir Oswald Moseley’s British Union of Fascists [BUF] blackshirts from publicly projecting an openly racist agenda, anti Jewish marches including brutal physical assaults on left wing hecklers and Jews; not incurring any serious criticism when Sir Oswald Moseley was interned without trial during WW11 for being a NAZI sympathiser, personal friend of Adolph Hitler and Benito Mussolini; which would have been problematic for Winston Churchill and the rest of the executive had the Fascists won the war. 11[11]

Burma Oil Company v Lord Advocate [1965] AC 75 could be viewed as the judiciary challenging the royal prerogative, the executive with regard to the scorched earth, destruction of Burma Oil’s assets obviously beneficial to an enemy of the state during wartime, being initially upheld by the judiciary, especially the House of Lords’s judgement that Burma Oil Company were entitled to compensation. The executive drafted retroactive legislation, the War Damage Act 1965 abolishing the common law right to compensation for damage incurred in preparing for or during wartime, preventing opening a floodgate of similar claims. 12[12] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 is an executive deployment of the royal prerogative with regard to all of the employees at GCHQ no longer having the option of being members of a trade union as had been the norm previously. The Lords backing the Executive by upholding this decision by Margaret Thatcher’s cabinet seems strange as all employees in sensitive areas with regard to the realm’s defence are automatically bound as a term of their employment by the Official Secrets Acts 1911-1989. Divulging secret information, subversion risks a treason charge that still warrants the death sentence as highlighted by Dr David Kelly’s suspicious demise and Jean Charles de Menezes, Mark Duggan’s and other public executions by the police without any criminal charges, convictions, degrading capital punishment ending in the UK into arid political RHETORIC to some perspectives. 12a [13]

Another example of the royal prerogative being deployed by the executive is R v Secretary of State for Home Department, ex parte Fire Brigades Union, [1995] whereby the executive challenged the legislature, statutory law which impacted on the payment received for injuries received due to criminal actions under the Criminal Justice Act [CJA] 1988, which was backed by the UK’s trade unions, ended up before the House of Lords. However, despite Lord Keith of Kinkel and Lord Mustill allowing the Unions appeal but dismissing the cross appeal, Lord Brown Wilkinson, Lord Lloyd of Berwich and Lord Nicholls of Birkenhead dismissed both; facilitating the Secretary of State dismantling the CJA 1988’s payment structure on the grounds of exorbitant cost of implementation.13[14] The ongoing Supreme Court appeal challenging the executive’s infringement of the human rights of Diago Garcia’s former inhabitants via royal prerogative, national security could be viewed as UK, USA imperialism still being alive and well in the 21st century. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 Chagos Islanders v Attorney General [2003] EWHC 2222 (QB), [2003]. 15[15]

The European Communities Act 1972, is arguably the most serious amendment to the UK’s constitution, which caused consternation within the UK due to the manner in which European Union [EU] law has supremacy when in confrontation with UK parliamentary statute, especially with regard to human rights, hence the Human Rights Act 1998; whereas now as the UK leaves the EU interesting debates are predicted with regard to which EU statutes are going to either be discarded or retained? 16 [16]

Concluding, the ‘fusion’ as opposed to ‘separation of powers’ rationale being viewed as “wrong and meaningless” with regard to the UK’s constitutional order’s equable function, may not be as relevant as the manner in which most of the UK’s political and judicial elite are from the white middle to upper class as opposed to including non-whites and the working class. Despite initiatives like the Court and Legal Services Act 1990’s aim to make the judiciary more inclusive, it could be argued that even the qualifications necessary to take the Chartered Institute of Legal Executives [CILEx] as opposed to solicitor, barrister route into the judiciary can rule out any significant flow of working as opposed to middle and upper class people into the legal professions. 17[17] Additionally, gaining the prominence necessary to become part of the leadership of the UK’s main political parties, that form the executive, appears to be extremely challenging rather than widely accessible, as highlighted recently by the mass and social media vendetta that executed Jeremy Corbyn’s credibility, leadership of the Labour party.

However, despite the ongoing domination of former barristers as opposed to solicitors and CILEx executives of the legal professionals who become QC’s and judges, filling other leadership roles in the UK; in fact nobody provides any input into the socio-economic status that they are born into, from the nobility to the gutter. The level, quality of formal education available in the UK varies from none at all to Oxbridge. Socio-economic status has a significant impact on any individual’s perspective, rationale and worldview, however making the assumption that purely on this basis they are always going to be profoundly socio-economically biased in favour of their social class as opposed to humanity as a whole might be a plausible, but overly comprehensively negative perspective of the UK’s current power elite’s rationale, spiritual and intellectual development, growth in the 21st century; in that why shouldn’t they want an equable utopia too? That said, the ongoing worldwide nature of 2020s Corona virus Covid 19 PLANDEMIC FIASCO placing humanity under house arrest in the name of “Public Safety” does seem to be highlighting manipulative and malevolent mass Corona virus vaccination; sterilizing, culling initiatives by the overly inbred against humanity’s lower echelons is what their “New World Order’s Economic Feudalism” is really about.
https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd050505/hoop-5.htm Fire Brigade
BIBLIOGRAPHY

Statutes

The Magna Carta 1297

The Act of Union 1536

The Petition of Rights 1628

The Triennial Act 1641

The Act of Habeas Corpus 1679

The Bill of Right 1689

The Act of Settlement 1700

The Act of Union 1707

The Act of Union 1801

The Reform Act 1832-1918

The Parliament Act 1911, 1949

The Criminal Justice Act 1988

The Official Secrets Act 1911-1989

The Statute of Westminster 1931

The Public Order Act 1936

The War Damage 1965

The European Communities Act 1972

The Court and Legal Services Act 1990

The Scotland Act 1998

The Human Rights Act 1998

The Constitutional Reform Act 2005

The Fixed Term Parliament Act 2011

The Crime and Courts Act 2013

The European Union (Withdrawal Agreement] Act 2020

Books
  • Barnett, Hilaire. (2019) Constitutional and Administrative Law Routledge, Taylor & Francis Group 3, Park Square Milton Park, Abingdon, Oxon OX14 4RN
  • Elliott, C. Quinn, F. (2006) English Legal System. Pearson Education Limited. Edinburg Gate, Harlow Essex CM20 2JE.
  • Tombs R (2014) The English and Their History Page Penguin Books Ltd. 80 Strand London WC2R OR1 England.
Websites/webpages
https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd050505/hoop-5.htm Fire Brigade

https://www.gov.uk/government/news/government-announces-end-of-european-communities-act


[1] Tombs R (2014) The English and Their History Page 60 Penguin Books Ltd. 80 Strand London WC2R OR1 England.

[2] A W Bradley, K D Ewing and C J S Knight, Constitutional and Administrative Law page 12 (16th edition, Pearson, 2015)

[3] https://www.supremecourt.uk/about/appointments-of-justices.html

[4] https://www.bl.uk/collection-items/pamphlet-on-the-death-of-oliver-cromwell

[5] https://www.justice.gov.uk/courts/p...art-87-applications-for-writ-of-habeas-corpus

[6] Hilaire Barnett, Constitutional and Administrative Law (13th edn, Routledge, 2019) 33.

[7] https://www.parliament.uk/about/liv...uthority/revolution/overview/actofsettlement/

[8] https://www.parliament.uk/about/liv...iament/legislativescrutiny/act-of-union-1707/

[9] https://www.britannica.com/event/Act-of-Union-United-Kingdom-1801

[10] ) Entick v Carrington [1765] EWHC KB J98
[11] https://www.legislation.gov.uk/ukpga/Edw8and1Geo6/1/6/contents/enacted (Public Order Act 1936)

[12] https://www.legislation.gov.uk/ukpga/1965/18 War Damage Act 1965
[13] https://www.bailii.org/uk/cases/UKHL/1984/9.html
[14] https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd050505/hoop-5.htm Fire Brigade
[15] C:/Users/User/AppData/Local/Temp/uksc-2015-0021-judgment.pdf Diego Garcia

[16] https://www.gov.uk/government/news/government-announces-end-of-european-communities-act
[17] Elliott, C. Quinn, F. (2006) English Legal System. Page 163 Pearson Education Limited. Edinburg Gate, Harlow Essex CM20 2JE

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