The English Constitution and Theory and Practice Diversity

To understand English constitutional law it is necessary to study numerous documents, including constitutional treaties like the Bill of Rights, various statutes and judicial decisions and others. But the whole of the Constitution of Britain will not be found in any of these documents. The English constitution, though partly written, is yet to be regarded as “unwritten” from the standpoint of constitutional lawyers, *as it is not codified as a whole in any particular document or documents. The English Constitution is considered to be flexible because Parliament *can “make or unmake” any law by the same procedure and with the same ease.

The Constitution is not the source of the law, but the law gives birth to the Constitution.

Though the King (Queen) is the nominal Sovereign, any particular Parliament during the period of its existence is legally supreme.

In England *the rights of the subject aremostly deduced from actual decisions in which remedies have been afforded for their invasion. Thus it is sometimes said that under the English Constitution *the remedy precedes the right.

In administering justice the Judges enjoy little arbitrary power. The law, which they administer, is defined by statutes and other documents *having statutory validity and by judicial precedents.

Certain important Conventions control the entire working of the Constitution. These Conventions relate to the duties of the King as a person, the duties of the Ministers of the Crown and so on.

Theory and practice concerning English constitutional law are divergent, as it is seen from the following illustrations:

1. In theory the Sovereign is to be an active party to the making of laws, but in practice he has a shadowy veto.

2. In theory every Lord of Parliament is a Judge of the House of Lords, entitled to take part in appeals from the lower Courts; in practice *he always absents himself unless qualified by statute to sit there as one of the quorum.

3. In theory certain persons (e.g. Lord Mayor) are invested with judicial powers at trials in the Central Criminal Court, but in practice they don't take part in judicial work there.

4. In theory certain public departments are supposed to be controlled by boards consisting of various high officials (e.g. the Board of Trade), but the real head is a single Minister of the Crown (e.g. the President of the Board of Trade).

5. Finally, Legislature and Executive are joined together by a connecting chain — the Cabinet.

*as it is not codified — так как она не кодифицирована

*can «make or unmake» any law — может составить или аннулировать любой закон

*the rights of the subject are deduced from actual decisions — права подданных складываются на основании фактических судебных решений

*the remedy precedes the right — средство судебной защиты предшествует закону

*having statutory validity — имеющие силу закона

*he always absents himself unless qualified by statute to sit there as one of the quorum — он всегда уклоняется, кроме тех случаев, когда закон уполномочивает его заседать для обеспечения кворума

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