Last weeks of the module: the separation of powers in the UK and in France

During the last weeks of the module, my work with deal with issues about the separation of powers, which is a very important concept in constitutional law. The separation of powers may be found in all democracies in the world, although in different types and manners. Moreover, the separation of powers is seen as vital, essential in order to protect the rule of law, concept we have described and scrutinized in the last few weeks. Why do academics and observers say that ? Because the separation of powers ideally leads to an independent judiciary, it permits, as Bradley and Ewing point out in their book, to insure that the government is acting according to law, according to the norms.

In order to write this part of my research, I will use some different sources: Bradley and Ewing’s textbook Constitutional and Administrative Law, Turpin and Tomkins’ textbook British Government and the Constitution, the 1765 case Entick v Carrington, Lord Hailsham’s Richard Dimbledy Lecture (1976), as well as Dr Cyril Brami lectures of French constitutional law.

In the UK, on the one hand the government seems able to control Parliament, but on the other hand, we can see the development of the independence of the judiciary, seen as a safeguard against the abuse of power. The British constitution does not enjoy a pure or a strict separation of powers. There is in the UK a partial separation of powers, with a balance of powers between Parliament and the government. The separation of powers is therefore an question / matter of degree. The House of Commons is able to withdraw its confidence in the government, and the Prime Minister can ask the Queen to dissolve Parliament. In practice, the government predominates over Parliament. There are of course counter-arguments, but we will not focus on them (backbenchers, withdrawal of Parliament’s confidence …) Indeed, the Monarch has to appoint the leader of the majority in the House of Commons as Prime minister, ministers are members of Parliament by convention, and both houses of Parliament have a minister as leader. These characteristics led Walter Bagehot to highlight the ‘nearly complete fusion’ between the executive and the legislature. The Prime Ministers have the support of the majority in the Commons, and government Whips try to ensure discipline in the ranks of that majority. Therefore we can deduce the government’s domination over Parliament, and that the government is able to see its bills voted and to conduct its policy within Parliament. A feature of the British constitution today is the predominance of the Prime minister in the institutions, an important concentration of power in his hands, which has been described by Lord Hailsham in 1976 as « an elective dictatorship ». Indeed the Prime minister is the leader of the majority party in the Commons, he or she dominates the Cabinet and has powers the other ministers do not have, he or she selects the ministers, controls the allocation of tasks of government and has the power to set the order of business.
On the other hand, some features of a strict separation of powers can be found in the British constitution. We must have a look at the role played by the judiciary, which remains independent from the executive and the legislature, and may act to protect the principle of separation of powers itself. In the Fire Brigades Union case 1995, the House of Lords sought to protect the competence of Parliament: Parliament has the mission to make the law and the government only has to implement it. In that case, the Secretary of State refused to implement an Act that needed to be implemented, which would have amounted to a repeal of this act, which would have never been applied in practice. In addition to that, the Courts have the role to prevent a possible abuse of power by the executive, including decision which could be unlawful or arbitrary. This seeks to protect individual freedoms and fundamental rights. In order to do this, it is necessary that the executive does not have the power to decide disputes or to condemn a person, particularly with regard to the European Convention of Human Rights. It has been demonstrated in the decision of the European Court of Human Rights in the V and T v United Kindgom case, where the Strasbourg Court held that the fact that the Home Secretary has the power to set the period of detention was in breach of Article 6 (1), which provides the right to a fair trial before ‘an independent and impartial tribunal established by law’. This decision could have been set up to encourage the British government to amend the criminal procedure, establishing a strict delimitation of powers: the executive authorities ought not interfere in the administration of justice. As we have seen, the judiciary is independent from the Government. Since 2009 and the application of the Constitutional Reform Act 2005, the judiciary is also independent from Parliament. This act provided the UK with a Supreme Court which was no longer the House of Lords. The House of Lords still has legislative powers, but now the new Supreme Court is only composed with professional judges.

Now, what about the French constitutional system ?
Before we start, we must remember the context of the creation of the Fifth Republic. It has been created when France was in war with Algeria – one of its former colonies -, and when the executive had difficulties to impose his views on the army. Moreover, the Third and the Fourth Republic are characterised by the lack of stability: 22 governments in 12 years during the Fourth Republic.
The President was seen as the main figure of the regime. He is elected every 5 years, using the universal suffrage system since 1962. He or she has very important powers, described by the Constitution: he is the warrantor of the national security, the national independence and protection of the territory, and he or she is the guardian of the Constitution (has to make it respected – article 5). The President has the right to dissolve the Assemblée nationale (tantamount to the House of Commons in the UK) according to article 12. According to article 8, he or she choses the Prime Minister, which is different from the UK where the Prime Minister is the leader of the majority in the Commons. The Prime Minister can be everyone, although he is very often chosen in the ranks of Parliament.
The Prime Minister, and his or her ministers, in practice have to from the same majority than in the Assemblée nationale. Why ? Because, as a counterweight, the Assemblée nationale is also able to reverse the Government led by the Prime minister by a vote (article 49).
Most often, the situation in France is the following: the President is the leader of a big party, he choses his Prime Minister from the same party, and the party wins the elections organised 2 months after the presidential elections. Therefore the same political ‘color’ leads the institutions.
In 1986, 1993 and 1997, an unexpected fact happened: the party of the President was beaten at the elections. Therefore the Prime Minister, at the head of the majority in the Assemblée nationale, was not from the same party than the President, the latter having seen his party defeated in the general elections. It is called cohabitation.
To my mind, what is most interesting today is the role of « Conseil constitutionnel », which is a Court that controls the law produced by Parliament. In the UK, it is seen as unbelievable, according to the principle of Parliamentary sovereignty. That Court, which is very powerful and can be seised by every citizen during a trial when this citizen is sure that a constitutional rule has not been respected by the law (art. 61), is composed by 9 chosen judges today. 3 judges are elected every 3 years: 1 by the President, 1 by the Assemblée nationale President and 1 by the Senat President (the other chamber of Parliament). They are not judges when they are chosen, they are often politicians, senior officials … There are also life-members, who are the former Presidents.
Why is that Conseil Constitutionnel so powerful ? Because the ordinary legislative procedure is the following: the Government prepares/lays out a Bill, this Bill is after voted by the its majority within Parliament, and after a claim may be brought before the Conseil constitutionnel. If that Conseil holds that this law does not respect the constitutional rules and principles, therefore this law cannot be applied in the future.
This challenges the civil law tradition, where judges only have to apply the law and interpret it when needed. In that civil law tradition, the rules and principles are abstract, and are written; they are then applied to cases. Those people, who are not trained as judges but are only chosen, or are former Presidents, are clearly able to decide on what the law should be, or what the law should not be. They decide what is the meaning of the constitutional rules, and how those rules should be applied in a particular case, on a case-by-case basis.

 

Weeks 4, 5 & 6: The rule of Law in the UK & l’ « État de Droit » in France

The main aim of this module is to fulfill the objectives I have chosen at the beginning of the semester. I have mentioned those goals during the first week, but I have met some methodological problems, especially how to select only relevant informations and to structure my arguments in order for my presentation to be clear as well as interesting ! The three last weeks have been used to select a specific issue and to work on.
My project is more difference orientated, but we will sometimes use a functionalist approach, based on the ‘presumption of similarity’ as we have seen during the last lecture. Today, we are focusing on that point: how is the government in both France and England controlled by the constitutional system ? We will therefore understand that the idea is the same (to control the government – similarity) with a pretty similar solution (the rule of law / l’État de Droit).
My sources for that topic are some textbooks: « Constitutional and Administrative Law’ (AW Bradley & K D Ewing), « English Legal System » (C Elliott & F Quinn), « British Government and the Constitution » (C Turpin & A Tomkins), and the lectures I attended in France during my first year as well as my second year.

In the United-Kingdom, the Rule of Law is a concept first expressed by Dicey in 1885. According to him, the rule of law has three meanings. Firstly, it must fight against arbitrariness by promoting the ‘absolute supremacy or predominance of regular law’. Secondly, he described this concept as encompassing equality before the law, therefore everyone should be subjected to the same rules before the same courts. Thirdly, he thought that the common law system was a more suitable system to protect individual liberties, rather than a civil law system based on written rules.
I do not agree with that third point about the protection of citizens, because some rights may also be protected by written rules in a Constitution, and then applied to particular cases, like in civil law countries.
Over time, the meaning of the rule of law has of course changed. As Bradley and Ewing point out in their book, now it is seen as a fundamental principle of constitutional law promoting ‘law and order better than anarchy’, ‘government according to law’ and as a ‘broad doctrine affecting the making of new law.’ Consequently, this means that officials have to respect conventions, rules coming from tradition and practice, and statutory norms when acting.

In France, we usually talk about l’État de Droit. What does it mean ? Basically, everyone has to respect legal rules, as well officials as individuals. Representatives are elected according to legal rules, implemented before the elections, and the executive is limited by the rules edicted by the State itself, which reminds us the notion of ‘government according to law’ of the rule of law. All of this comes from Hans Kelsen’s work about norms hierarchy and ‘Rechtstaat’ in the 20th century. According to that theory, every norm is legal/lawful if it complies with a legal rule that is superior in that hierarchy. We can see the civil law system: the rules have to be written, and the Constitution is at the top of that hierarchy. Every rule must respect that Constitution. Therefore the officials have to respect those rules when acting, and are accountable for their decisions, democratically during the elections or judicially before the ordinary courts (which joins Dicey’s view about equality before the law !). In France, the Constitution is the most powerful source of law. International treaties ratified by the State (art. 55 Constitution), ordinary law and the administrative decisions have to respect the Constitution, and may be subjected by a control by the Conseil Constitutionnel (art. 61 & 61-1 Constitution).
Therefore, I have discovered that it is the same idea (protect individual rights and freedoms – functionalist approach), but that the civil law and common law systems in France and England use a different concept which leads to a protection of the citizens and a control of the State’s action.

 

Week 3: Focus on the common law and civil law divide

Hello,

This week my work will be focused on the differences between the common law and civil law traditions. My sources are the lectures dispensed by Dr Chloe Wallace, the textbook « Constitutional and Administrative Law » written by Bradley and Ewing, the texbook « English Legal System » written by C. Elliot & F. Quinn but also some lectures dispensed in France in constitutional law.

The common law is deeply rooted in the decisions taken by the King’s judiciary, namely the rules come from particular cases, with an inductive reasoning. Those particular facts and cases are judged, give rise to a solution given by one or several judges: from those judgments emerge rules and principles, which can be found in the ratio decidendi given by the judges. The ratio decidendi has been described by Sir Rupert Cross as ‘any rule of law expressly or impliedly treated by a judge as a necessary step in reaching his conclusion »: it is the most important part of the decision, opposed to the obiter dicta. An important figure, maybe the most important figure in the common law tradition is that of the judge, because of the significance and of the role of his or her decisions, but also because they were long ago on the behalf of the King to create the laws before the Act of Settlement 1700 which granted Parliament more independence (Elliot & Quinn). Therefore it appears that the common law traditions is characterised by a top-down system, with the rules constructed by the courts.

Does it mean it is unfair ? Does it mean that it leads to arbitrariness from judges ? Arguably, not. Over time, a hierarchy of courts has developed, and, generally, the lower courts are bound by the higher courts; this hierarchy has developed and with it the idea of binding precedent, namely a judge must respect a decision given by a higher court in cases where the facts are the same. It provides certainty and predictability to the law, and also fairness: same cases are treated alike. Moreover, it provides efficiency (the courts will not have to solve again and again the same problem) and it permits to unify the law.
There are also statutes, which are the Acts of Parliament, and are interpreted narrowly. They are useful to modify or clarify the case-law, sometimes to complete it, but are the product of policy, very often from the Government through its majority in the Commons (Bradley & Ewing, Constitutional & Administrative Law).
By contrast, the civil law comes from Rome, and from the rules under the Republic and Empires during the Antiquity. Those rules have been discovered at the end of the 11th century, more precisely in Italy, in Bologne, and have led to important thinking by scholars, which developed and expanded in Universities in the continent, in countries such as France, Germany and Spain.
It is, in theory, completely different from the common law tradition, because here the rules are abstracts, and are written in codes. There are general principles contained in codes, and solutions are given in a case-by-case basis, applying the rules from the codes. It is therefore also a top-down system, because the rules are (ideally) decided by the legislator. Why are the codes so important ? Because, in this tradition, it aims at covering entirely a particular field of the law, for example the criminal law (with the « Code pénal » in France) or the civil law (the « Code civil »), and because there is the objective of accessibility of the law, according to the latine principle « Nemo censetur ignorare legem »: no one must be ignorant of the laws, everyone must know the laws. The decision-making by judges is clearly deductive, logic: there is the law, then there are the facts, and if the facts correspond to the law, therefore the law apply to them. We have seen that during the lecture with the prohibition of the intentional murder.

Philippe

Week 2: background informations about the English and the French constitutional systems

Hello !

This week, my research will focus on background informations about the English and the French constitutional systems: we are talking about the two systems as they are today and their main characteristics. It is a very important step, because my work will focus on the differences of the two systems. And before to assess and analyse the differences, we must have an overview of those constitutional systems, of their constitutional rules.
Nevertheless, I want to precise that the informations I will select will be summarized, because this topic is very broad ! Maybe a thesis should be more appropriated for that exercise, unfortunately it will not be possible to produce during this semester !

I have chosen to select informations in two books this week: ‘Constitutional and Administrative Law’  of Bradley & Ewing, about the English constitutional system, and ‘French legal system’, written by Elliott, Vernon & Jeanpierre (more precisely the chapter 2).

Queen Elizabeth II

Her Majesty the Queen Elizabeth II

As concerns the English constitutional system, the first point we have to make is that the United-Kingdom is a Monarchy, a constitutional Monarchy. We must note that, however, the Queen only possesses limited powers, the Crown prerogatives.

Besides, the English constitution is unwritten. That is to say that there is not a written document like in France (‘la Constitution de la Cinquième République’) or in Germany (the ‘BGB’) which contains the main rules of constitutional law.
The main sources of the Constitution are: the legislation (as a corollary to the principle of parliamentary sovereignty), the case-law (with the doctrine of precedent) but also the constitutional conventions, which are of significant importance, more than in France. As a common-law system, we must note the importance of the case-law. An important part of the rules comes from case-law in the United-Kingdom, from particular situations judged, as we have seen during our lectures. It is therefore a top-down system, like in the common law tradition, with many rules developed by the courts through judgments, and to fill the gap of the case law the statutes produced by Parliament.

Nick Clegg (Lib Dem) and David Cameron (Conservative Party) in 2010, next to the general elections.

Another main feature of the English constitutional system is the party system, which is organised on the two main parties in the United-Kingdom: the Labour and the Conservative Party, as a consequence of the first past to post system. Of course, a scrutiny shows that it is not always true: sometimes, a third party may play a major role. It was for example the situation in 2010 when at the general elections nor the Labour neither the Conservative Party won the majority of the seats in the House of Commons. The two parties needed to form a coalition with the LibDem, led by Nick Clegg, who chose to rally D. Cameron’s party, and to belong to the Government.

De Gaulle in 1958 with the Constitution

General de Gaulle in 1958, with his hand on the Constitution

Regarding the French constitutional system, its history is very different from the English
constitutional system. Indeed, its background has been provided by the 1958 Constitution (a written constitution, sometimes called De Gaulle’s constitution because of his influence in its drafting), which establishes the fifth Republic. Why did the General found a new Republic ? It was because France encountered many problems in Algeria, a former colony, and because during the third and also the fourth Republic French governments were very weak, with a powerful Parliament.
We can see the importance of the written document, which reflects the civil law tradition of the French system, with abstract principles which apply to the constitutional actors and are controlled by the ‘Conseil Constitutionnel’, the constitutional court. As we have seen during lecture 2, it has many advantages: it is accessible to the people, and might be complete. As Peter de Cruz writes, the civil law tradition is characterized, inter alia, by a authoritative and comprehensive codification based on general concepts (abstract rules and principles).
One can understand that the most important law is top-down, elaborated by legislators (the constitutional legislator), influenced sometimes by scholars. It reminds us the civil law tradition.
The Constitution is modified by Constitutional laws, which require a specific procedure: the President must ask the reunion of the two Houses of Parliament in a Congress, and obtain a vote from a 3/5 majority. The second option is to use the referendum procedure, which has been used only 9 times since 1958 (because people do not really vote on the text, but rather about what they think of the President who asks the question). There is a role of the constitutional conventions, but less important than in the English constitution. An example of this in the creation of the Prime Minister during the third Republic, firsly named « President du Conseil » (Council President).
The party system is not very important in France, because, although the two major parties

The logo of the new center-right party in France

The logo of the new center-right party in France

dominate the political life and the different elections, it is not always the case. For example former President Valéry Giscard d’Estaing has been elected President in 1974 with his center-right party. And there is often place for a third party, as in 2009 at the european elections with the Green Party (‘Europe Écologie Les Verts) or in 2012 at the presidential election with the National Front (extreme-right, extremist party). The two major parties can also be threatened bu the emergence of an important center-right party called ‘UDI: Union of Democrats and Independents’, led by former Minister Jean-Louis Borloo.

Philippe

PS: More informations … in English … but also in French !
– about the government coalition in the UK: Article BBC 2010
– about the constitutional monarchy in the UK: Website Royal.gov.uk
– about the foundation of the fifth Republic by the General de Gaulle: La Cinquième Constitution
– the creation of the center-right party in France: Article of the website « the political bouillon »

Week 1: My individual learning focus

The Westminster Parliament (UK)

The Westminster Parliament (UK)

The French 'Assemblée nationale', the most important House of Parliament today

The French ‘Assemblée nationale’, the most important House of Parliament today

The first thing we have to do in this module is to define an individual learning focus,
which consists in defining and describing the aims we have chosen to fulfill during the semester. These aims will be progressively fulfilled.

I have began to study law at age 17, and from the beginning I was passionate about constitutional law, namely rules which apply to the State and public authorities. According to my Professor Cyril Brami at the ‘Université du Maine’, constitutional law is the set of legal rules under which the political power is established, exercised and transmitted. Constitutional law regulates the competition to gain power, it then adjusts the exercise of this power by rulers, and finally it frames and limits political power to guarantee a certain number of rights to the people.

Moreover, I founded in 2011 in France an association, called ‘Les Arènes de la République’, with friends, in order to organize and promote debates about political topics, but also to help people at the University to find an accurate cursus and after a job.
On the 8th of april, we will host Mrs Roselyne Bachelot, former Minister of Health, who will direct a conference about the parity in politics. She has worked for a long time about that topic. She is also well-known for his support to the same-sex couples partnership in 1999 (while she was the only one right-wing’s member of Parliament to vote the text !) and gay marriage today in France. A link to the website of this association is : http://www.lesarenesdelarepublique.org/

That is why I have chosen to work on the most important differences between the constitutional systems in France and in the United-Kingdom, and to explain to which extent those differences are due to the civil law and common law divide. Why do I find that topic interesting ? Because it permits to compare rules and institutions, and therefore to improve the national law by inspiring ourselves of other legal systems. It could be a refinement, a sophistication of the national law.

The aims are therefore to :
– in a spirit of discovery, to find the most important differences and the similarities between the two constitutional systems.
to be able to explain such similarities and differences, and also to understand the social, historical and cultural origins of these two constitutional systems 
– to develop a critical thinking about these two systems : not only to describe, but also to criticize or support them.
– to find solutions for the problems that may arise in each constitutional legal system, to improve the domestic rules
– to discover new textbooks, new thinking, new ideas about the two systems by exploring books, journal articles and commentaries
– to learn important elements for my personal culture/knowledge.

Philippe