The Changing Constitution最新文献

13. Information: Public Access, Protecting Privacy and Surveillance 13. 信息:公众访问，保护隐私和监视

The Changing Constitution Pub Date : 2019-07-24 DOI: 10.1093/HE/9780198806363.003.0013

P. Birkinshaw

{"title":"13. Information: Public Access, Protecting Privacy and Surveillance","authors":"P. Birkinshaw","doi":"10.1093/HE/9780198806363.003.0013","DOIUrl":"https://doi.org/10.1093/HE/9780198806363.003.0013","url":null,"abstract":"The Freedom of Information Act is a statute of great constitutional significance. The Act heralded a right to publicly held information which government had attempted to keep private. FOIA laws have their origins in the pre-digital age and any discussion of information rights must take on board the contemporary reality of the global digitization of communications via social media networks and the enhanced capabilities of state intelligence agencies to conduct surveillance over electronic communications. The General Data Protection Regulation seeks to give greater security to personal data. However, private information is harvested by private tech companies which they have obtained often ‘voluntarily’ and used by intermediaries to influence public events, public power and elections—as illustrated by recent scandals involving the practice of ‘data farming’ by social media networks and the sale of personal data to political campaign consultants seeking to pinpoint electors and thereby affect the outcomes of national elections and referenda. Government surveillance is age-old, but the emergence of digital power has enabled public authority to invade our private lives far more intrusively and effectively. The most recent example is the Investigatory Powers Act 2016. All this poses substantial challenges for the public regulation of information access in a growing confusion of public and private in the constitution. Courts, meanwhile, have to balance demands for privacy protection, open justice and secrecy.","PeriodicalId":173423,"journal":{"name":"The Changing Constitution","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115744742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

15. The Democratic Case for a Written Constitution 15. 书面宪法的民主案例

The Changing Constitution Pub Date : 2019-07-24 DOI: 10.1093/he/9780198806363.003.0015

Jeff A. King

{"title":"15. The Democratic Case for a Written Constitution","authors":"Jeff A. King","doi":"10.1093/he/9780198806363.003.0015","DOIUrl":"https://doi.org/10.1093/he/9780198806363.003.0015","url":null,"abstract":"Written constitutions have often been viewed as the bridle for unchecked political majoritarianism, as a restraint on government, and hence as a limiting device rather than a form of democratic political expression. Breaking with that tradition, this article sets out a democratic case for a written constitution and contrasts it with the rights-based and clarity-based cases. It then proceeds to show why the case against written constitutions—which are broadly located in a conservative critique, an anti-rationalist critique and an anti-judicialization critique—are misguided. Nevertheless, a democratic case for a written constitution necessarily raises challenging questions about how the constitution will be enacted, and how rigidly entrenched it should be. Answers to these questions are presented in Parts III and IV of the article. In the former, it is argued for a constituent assembly consisting of party and direct citizen representation. In the latter, defence of a model of entrenchment is discussed that permits amendment through a simple majoritarian parliamentary procedure in conjunction with a referendum, and, most controversially, a provision requiring a new constitutional convention about once in a generation. This is the type of democratic constitution, in the author’s view, that accommodates the need for a liberal egalitarian constitutional order that takes both rights and democracy seriously.","PeriodicalId":173423,"journal":{"name":"The Changing Constitution","volume":"311 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131611944","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

6. Parliament: The Best of Times, the Worst of Times? 6. 议会:最好的时代，最坏的时代?

The Changing Constitution Pub Date : 2019-07-24 DOI: 10.1093/HE/9780198806363.003.0006

P. Norton

引用次数: 0

12. The Relationship between Parliament, the Executive and the Judiciary 12. 议会、行政机关和司法机关之间的关系

The Changing Constitution Pub Date : 2019-07-24 DOI: 10.1093/HE/9780198806363.003.0012

A. L. Young

{"title":"12. The Relationship between Parliament, the Executive and the Judiciary","authors":"A. L. Young","doi":"10.1093/HE/9780198806363.003.0012","DOIUrl":"https://doi.org/10.1093/HE/9780198806363.003.0012","url":null,"abstract":"When examining the recent evolution of the Constitution, it is argued that the UK has become more ‘legal’ as opposed to ‘political’. The last twenty years has seen a growth in legislation and case law, particularly that of the Supreme Court, regulating aspects of the UK constitution. This chapter investigates this claim. It argues that, whilst we can point to a growth in both legislation and case law, when we look at the case law more closely we can see that the courts balance an array of factors when determining how far to control executive actions. These factors include an analysis of the relative institutional features and constitutional role of the legislature, the executive and the courts. This evidence, in turn, questions the traditional understanding of the separation of powers as a hidden component of the UK constitution. It is not the case that courts merely balance the rule of law and parliamentary sovereignty in order to determine how far to control executive actions. Rather, the courts determine how to make this balance through the lens of the separation of powers, evaluating institutional and constitutional features. In doing so, they are upholding necessary checks and balances in the UK constitution.","PeriodicalId":173423,"journal":{"name":"The Changing Constitution","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115784809","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

8. The Foundations of Justice 8. 正义的基础

The Changing Constitution Pub Date : 2019-07-24 DOI: 10.1093/he/9780198806363.003.0008

Andrew Le Sueur

{"title":"8. The Foundations of Justice","authors":"Andrew Le Sueur","doi":"10.1093/he/9780198806363.003.0008","DOIUrl":"https://doi.org/10.1093/he/9780198806363.003.0008","url":null,"abstract":"Everybody agrees there is broad consensus that the constitutional principle of judicial independence is important. In relation to the core judicial functions of hearing cases and writing judgments, the central meaning and application of the principle is fairly straightforward: people holding public office (politicians, parliamentarians, and officials) must refrain from interfering with judicial decision-making in individual cases; and judges should be protected from illegitimate pressure from the news media and other organizations. But hearings and judgments do not ‘just happen’; they have to be facilitated by a wide array of institutions and processes (the justice infrastructure), covering matters as diverse as court buildings, litigation procedures, judicial careers, and legal aid. In the absence of a codified constitution, in the United Kingdom the justice infrastructure is set out in Acts of Parliament, delegated legislation and ‘soft law’ (including the 2003 ‘Concordat’). The day-to-day running of the justice infrastructure can be understood in terms of who carries out functions related to the administration of justice—the judges, government (in particular, the Lord Chancellor), functions shared between judges and government, and functions given to arm’s length bodies. Periodically, the justice infrastructure is reshaped. This is a constitutionally significant activity that may take place in different settings—the political environment, expert environments, and blended environments. The day-to-day running of this infrastructure, along with its periodic reshaping, presents numerous and complex challenges for a legal system intent on respecting judicial independence and facilitating access to justice.","PeriodicalId":173423,"journal":{"name":"The Changing Constitution","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121586635","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

7. The Executive in Public Law 7. 公法中的执行者

The Changing Constitution Pub Date : 2019-07-24 DOI: 10.1093/HE/9780198806363.003.0007

T. Poole

引用次数: 0

3. Human Rights and the UK Constitution 3.人权与英国宪法

The Changing Constitution Pub Date : 2019-07-24 DOI: 10.1093/he/9780198806363.003.0003

C. O’cinneide

引用次数: 0

5. The Internationalization of Public Law and its Impact on the UK 5. 公法国际化及其对英国的影响

The Changing Constitution Pub Date : 2019-07-24 DOI: 10.1093/HE/9780198709824.003.0006

D. Feldman

{"title":"5. The Internationalization of Public Law and its Impact on the UK","authors":"D. Feldman","doi":"10.1093/HE/9780198709824.003.0006","DOIUrl":"https://doi.org/10.1093/HE/9780198709824.003.0006","url":null,"abstract":"Municipal public law (by which is meant the public law of national or sub-national polities, including but not limited to local government) is always influenced by events taking place elsewhere in the world and the activities and norms of other polities. For example, the existence of a state depends at least partly on its recognition by other states, and political theories and legal ideas have always flowed across and between regions of the world even if they provoked opposition rather than adoption or adaptation. Yet despite, or perhaps because of, this, any state has good reasons for controlling the introduction of foreign legal and constitutional norms to its own legal order. It is important to check that the norms are compatible with one’s own national values and interests before allowing them to operate within one’s own system. A state which values a commitment to the rule of law, human rights, or democratic accountability is entitled to place national controls over potentially disruptive foreign influences. This chapter considers the nature and legitimacy of those national controls, particularly as they apply in the UK, in the light of general public law standards, bearing in mind that influences operate in both directions, not only between states but also between municipal legal standards and public international law.","PeriodicalId":173423,"journal":{"name":"The Changing Constitution","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115382746","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

2. Parliamentary Sovereignty in a Changing Constitutional Landscape 2. 不断变化的宪法格局中的议会主权

The Changing Constitution Pub Date : 2019-07-24 DOI: 10.1093/HE/9780198806363.003.0002

M. Elliott

{"title":"2. Parliamentary Sovereignty in a Changing Constitutional Landscape","authors":"M. Elliott","doi":"10.1093/HE/9780198806363.003.0002","DOIUrl":"https://doi.org/10.1093/HE/9780198806363.003.0002","url":null,"abstract":"Parliamentary sovereignty is often presented as the central principle of the United Kingdom’s constitution. In this sense, it might be thought to be a constant: a fixed point onto which we can lock, even when the constitution is otherwise in a state of flux. That the constitution presently is—and has for some time been— in a state of flux is hard to dispute. Over the last half-century or so, a number of highly significant developments have occurred, including the UK’s joining— and now leaving—the European Union; the enactment of the Human Rights Act 1998; the devolution of legislative and administrative authority to new institutions in Belfast, Cardiff and Edinburgh; and the increasing prominence accorded by the courts to the common law as a repository of fundamental constitutional rights and values. Each of these developments raises important questions about the doctrine of parliamentary sovereignty. The question might be thought of in terms of the doctrine’s capacity to withstand, or accommodate, developments that may, at least at first glance, appear to be in tension with it. Such an analysis seems to follow naturally if we are wedded to an orthodox, and perhaps simplistic, account of parliamentary sovereignty, according to which the concept is understood in unyielding and absolutist terms: as something that is brittle, and which must either stand or fall in the face of changing circumstances. Viewed from a different angle, however, the developments of recent years and decades might be perceived as an opportunity to think about parliamentary sovereignty in a different, and arguably more useful, way—by considering how the implications of this still-central concept are being shaped by the changing nature of the constitutional landscape within which it sits. That is the task with which this chapter is concerned.","PeriodicalId":173423,"journal":{"name":"The Changing Constitution","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115437676","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

11. The Welsh Way/Y Ffordd Gymreig 11. 威尔士路/福德体育馆

The Changing Constitution Pub Date : 2019-07-24 DOI: 10.1093/HE/9780198806363.003.0011

R. Rawlings

{"title":"11. The Welsh Way/Y Ffordd Gymreig","authors":"R. Rawlings","doi":"10.1093/HE/9780198806363.003.0011","DOIUrl":"https://doi.org/10.1093/HE/9780198806363.003.0011","url":null,"abstract":"Welsh constitutional development in recent times is characterized by a convoluted and ongoing set of legislative transformations and by the emergence of a distinct policy approach not only for the sub-state polity itself but also under the banner of a ‘new Union’ for the United Kingdom as a whole. Examination of the design and dynamics of the Wales Act 2017 serves to illuminate the difficulties and rewards of the territorial constitutional journey, especially in terms of central government conservatism in the face of principled argument and of the scope afforded for home-grown democratic renewal. In terms of the extended Brexit process, where competing conceptions of the UK territorial constitution are brought to the fore, the Welsh Labour Government is seen combatting potentials for centralization under the rubric of a ‘UK internal market’, deal-making in the name of mutual benefit, and championing a new brand of shared governance in the UK. Today, the workings of the justice system in Wales are being examined on their own for the first time in two centuries by an independent commission established by the Welsh Government. With a new stage in the Welsh constitutional journey in prospect, a series of foundational questions is raised. This chapter reviews the key elements of the arrangements made for devolving legislative and executive power to Scotland, Wales, and Northern Ireland, explaining how these arrangements have developed over time and are still doing so. Particular attention is paid to the implications of the result of the independence referendum in Scotland in September 2014, not just for Scotland but also for England. Consideration is given to how mechanisms for making devolution work more effectively might be devised and to what the effects might be on devolution if the UK’s membership of the EU or its commitment to the European Convention on Human Rights are seriously called into question.","PeriodicalId":173423,"journal":{"name":"The Changing Constitution","volume":"153 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125877917","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1