Constitutional and administrative law

Extraits

[...] However, discretionary authority in most spheres of Government is inevitable. Dicey' s analysis is no longer justified about discretionary power, because after the Second World War, the state became more intrusive and individuals had new complaints: Welfare State[7] needed new powers for his new duties. Furthermore, the creation of Judicial Review in 1977(rules of Supreme Court order 1953) by rules applying to the courts, is an important mechanism for ensuring that power is not abused amounting to the practical application of the rule of law. [...]

[...] Since the creation of the Constitutional Council in 1958, France can be fully described as an ‘Etat de droit[2]'. In the UK, the term ‘rule of law' is especially important given that there is no codified Constitution against which the conduct of Government can be judged. This principle has been found by Dicey[3], at the end of 19th century, who regarded the rule of law as one of the “twin pillars of the Constitution”, the other one being parliamentary sovereignty. [...]

[...] Bibliography: Théorie Pure du Droit(1934) Introduced in France by R. Carré de Malberg(1861-1935), positivist jurist. Bibliography : Contribution a la théorie Générale de l'Etat 1920- 1922 Dicey(1835-1922),famous British jurist and constitutional theorist, graduate of Balliol College, Oxford, leading constitutional scholar of his day. Bibliography: An Introduction to the Study of the Law of the Constitution(1885) Central case in English Constitutional law. Officials subject to the laws of the land. Freedom to the authority) Upper administrative jurisdiction created in 1799 in France, councillor of the Government. [...]

[...] Globally, today, the British Constitution remains essentially Diceyan. Britain never accepted the French administrative law with a State Council protecting the Government like in France. Dicey was absolutely right regarding the supremacy of the law. However, his view seems to be utopian owing to the fact that governors and governed are not always equal before the law and creation of public law courts counters first views of Dicey. He always rejected the need of a written Constitution, or, nowadays, Devolution issues have a considerable impact on the writing of a Constitution which would establish clear guarantees for all citizens suffering from any abuse of the Government actions. [...]

[...] Thoburn v Sunderland City Council illustrated the conflict between principles of the primacy of EU law and of parliament supremacy[21]. Since 1998, some judges have to deal with Acts of Parliament that are compatible with the European Convention or not and then, only make a declaration of incompatibility. The Human Rights Act has had an impact upon the Government's counter-terrorism legislation. In A and Others v Secretary, the House of Lords decided that the detention without trial of foreign nationals under the Anti-terrorism, Crime and Security Act 2001 was incompatible with Article 14 of the European Convention because it discriminated on the grounds of nationality or immigration status. [...]