UCL FACULTY OF LAWS
PUBLIC LAW REVISION NOTES TAYLOR HIGGINS
Public Law Revision Notes
Topics
Introduction to UK Public
Law..............................................................................1
Parliament...........................................................................................
............ 6 Parliamentary
Sovereignty.................................................................................. 12
Central
Government.................. .....................................................................
.. 19 Separation of Powers and Delegated
Legislation.....................................................27 Miller and the Con-
stitution.................................................................................. 38 De-
volution................................................................................................
....... 45 Rule of
Law.....................................................................................................
56 EU Law and Parliamentary
Sovereignty................................................................. 62 Brexit and
the Constitution...................................................................................
69 Judicial
Review................................................................................................
..... 72 Human Rights
Act .............................................................................................99
Rise of the Common Law
Constitution...................................................................105 Past
Exam
Papers............................................................................................10
8
Introduction to UK Public Law
,1. Terminology
Constitutional law: a body of legal and political rules which concern
the government of a country (wide sense)
Constitution: a document or set of documents intentionally drafted
to form the fundamental law of a country (narrow sense)
Common constitutionsßàBritish constitution:
- Written, codified ßà uncodified, partly written, partly based
on custom
- Constituent assembly, post-revolutionary document ßà in-
cremental growth,
customary arrangements
- Higher law ßà ordinary law (but see constitutional statutes)
- Entrenched ßà amended by ordinary statute
- Quite judicialised constitutional law ßà strong role for con-
vention and politics
Constitutional law in the UK:
- Primary sources: Common law; Acts of Parliament (constitu-
tional statutes);
European Union law; jurisprudence of the ECHR; law and cus-
tom of Parliament
- These legal rules play an important role in the process of
government
- Vitally important parts of the process of government in the
UK are regulated by
,binding political rules and practices (constitutional conven-
tions)
- There is an identifiable distinction between binding constitu-
tional conventions and
non-binding ‘practices’; some writers suggest that they can be
recognised and stated with precision by applying the appropri-
ate test (Jennings’s test as indicator of strength of precedent,
extent of actors feeling bound by it and quality of reason for it)
- The courts have no jurisdiction to grant a remedy where the
sole basis of the claim is that a constitutional convention has
been breached; the only way a constitutional convention can
become law is by statute
Administrative law: the law relating to the control of govern-
mental power with the primary purpose of keeping the powers
of government within their legal bounds with the objective of
protecting the citizen against their abuse
Incorporated international law: EU law, ECHR, United Nations
Act 1946
Constitutional conventions: customary practices of the UK
Government, Parliament or Monarch that are considered oblig-
atory in the moral/ conventional sense, though not directly
legally enforceable in a court of law (political conventions:
Royal Assent; collective cabinet responsibility; judges avoiding
biased/ political extra-judicial activities)
Statutory interpretation: process by which courts interpret and
apply legislation (literal rule, golden rule, mischief rule, purpo-
sive approach)
*R (Evans) v Attorney General (SC, 2015)
§ Mr Evans, journalist, sought disclosure under Freedom of In-
formation Act
2000 and Environmental Information Regulations of correspon-
dence sent by Prince Charles to government departments;
these refused disclosure and
, Taylor Higgins
1
Information Commissioner upheld decision; Upper Tribunal entitled
Evans to disclosure of ‘advocacy correspondence’ (public interest
as to transparency) but still withheld disclosure of communication
regarding personal matters; Attorney General then used statutory
veto (disclosure sought would undermine the Prince’s dignity by in-
vading his privacy); Mr Evans applied for judicial review, Adminis-
trative Court held use of executive power lawful; Evans appealed to
Court of Appeal on basis of order’s unreasonable ground and in-
compatibility of duty of disclosure of environmental information; ap-
peal was approved; Attorney general appealed to Supreme Court
§ Appeal of Attorney General dismissed; certificate in this case un-
justified and unlawful as to Mr Evan’s right to access information
(freedom of press); Supreme Court allowed application for judicial
review and quashed certificate in its entirety; whether a decision is
reasonable will depend on context and circumstances in which it
was made; s 53(2) was incompatible with article 6(2) and (3) of rele-
vant EU Directive, in so far as information which was subject of a
decision notice was environmental information (regarding non- envi-
ronmental information, Attorney General also had not explicitly ad-
dressed the question of how the competing public interests should
be weighed)
Elliott, ‘A tangled constitutional web: The black-spider memos and
the British constitution’s relational architecture’ - each fundamental
principle is invested with a finite degree of elasticity; capacity of rule
of law and separation of powers to qualify courts’ commitment to
enforcement of legislation being itself qualified by the longstop pos-
sibility of Parliament’s standing upon its sovereign right to have the
last (or at least a further) word; untidiness of constitutional order im-
plied by this analysis may be inherently unappealing; but such un-
tidiness is inevitable in a system in which rule of law, separation of
powers and sovereignty of Parliament each rightly assert their fun-
damentality, but in which (for the time being, at least) ultimate prior-
ity is conceded to the latter
PUBLIC LAW REVISION NOTES TAYLOR HIGGINS
Public Law Revision Notes
Topics
Introduction to UK Public
Law..............................................................................1
Parliament...........................................................................................
............ 6 Parliamentary
Sovereignty.................................................................................. 12
Central
Government.................. .....................................................................
.. 19 Separation of Powers and Delegated
Legislation.....................................................27 Miller and the Con-
stitution.................................................................................. 38 De-
volution................................................................................................
....... 45 Rule of
Law.....................................................................................................
56 EU Law and Parliamentary
Sovereignty................................................................. 62 Brexit and
the Constitution...................................................................................
69 Judicial
Review................................................................................................
..... 72 Human Rights
Act .............................................................................................99
Rise of the Common Law
Constitution...................................................................105 Past
Exam
Papers............................................................................................10
8
Introduction to UK Public Law
,1. Terminology
Constitutional law: a body of legal and political rules which concern
the government of a country (wide sense)
Constitution: a document or set of documents intentionally drafted
to form the fundamental law of a country (narrow sense)
Common constitutionsßàBritish constitution:
- Written, codified ßà uncodified, partly written, partly based
on custom
- Constituent assembly, post-revolutionary document ßà in-
cremental growth,
customary arrangements
- Higher law ßà ordinary law (but see constitutional statutes)
- Entrenched ßà amended by ordinary statute
- Quite judicialised constitutional law ßà strong role for con-
vention and politics
Constitutional law in the UK:
- Primary sources: Common law; Acts of Parliament (constitu-
tional statutes);
European Union law; jurisprudence of the ECHR; law and cus-
tom of Parliament
- These legal rules play an important role in the process of
government
- Vitally important parts of the process of government in the
UK are regulated by
,binding political rules and practices (constitutional conven-
tions)
- There is an identifiable distinction between binding constitu-
tional conventions and
non-binding ‘practices’; some writers suggest that they can be
recognised and stated with precision by applying the appropri-
ate test (Jennings’s test as indicator of strength of precedent,
extent of actors feeling bound by it and quality of reason for it)
- The courts have no jurisdiction to grant a remedy where the
sole basis of the claim is that a constitutional convention has
been breached; the only way a constitutional convention can
become law is by statute
Administrative law: the law relating to the control of govern-
mental power with the primary purpose of keeping the powers
of government within their legal bounds with the objective of
protecting the citizen against their abuse
Incorporated international law: EU law, ECHR, United Nations
Act 1946
Constitutional conventions: customary practices of the UK
Government, Parliament or Monarch that are considered oblig-
atory in the moral/ conventional sense, though not directly
legally enforceable in a court of law (political conventions:
Royal Assent; collective cabinet responsibility; judges avoiding
biased/ political extra-judicial activities)
Statutory interpretation: process by which courts interpret and
apply legislation (literal rule, golden rule, mischief rule, purpo-
sive approach)
*R (Evans) v Attorney General (SC, 2015)
§ Mr Evans, journalist, sought disclosure under Freedom of In-
formation Act
2000 and Environmental Information Regulations of correspon-
dence sent by Prince Charles to government departments;
these refused disclosure and
, Taylor Higgins
1
Information Commissioner upheld decision; Upper Tribunal entitled
Evans to disclosure of ‘advocacy correspondence’ (public interest
as to transparency) but still withheld disclosure of communication
regarding personal matters; Attorney General then used statutory
veto (disclosure sought would undermine the Prince’s dignity by in-
vading his privacy); Mr Evans applied for judicial review, Adminis-
trative Court held use of executive power lawful; Evans appealed to
Court of Appeal on basis of order’s unreasonable ground and in-
compatibility of duty of disclosure of environmental information; ap-
peal was approved; Attorney general appealed to Supreme Court
§ Appeal of Attorney General dismissed; certificate in this case un-
justified and unlawful as to Mr Evan’s right to access information
(freedom of press); Supreme Court allowed application for judicial
review and quashed certificate in its entirety; whether a decision is
reasonable will depend on context and circumstances in which it
was made; s 53(2) was incompatible with article 6(2) and (3) of rele-
vant EU Directive, in so far as information which was subject of a
decision notice was environmental information (regarding non- envi-
ronmental information, Attorney General also had not explicitly ad-
dressed the question of how the competing public interests should
be weighed)
Elliott, ‘A tangled constitutional web: The black-spider memos and
the British constitution’s relational architecture’ - each fundamental
principle is invested with a finite degree of elasticity; capacity of rule
of law and separation of powers to qualify courts’ commitment to
enforcement of legislation being itself qualified by the longstop pos-
sibility of Parliament’s standing upon its sovereign right to have the
last (or at least a further) word; untidiness of constitutional order im-
plied by this analysis may be inherently unappealing; but such un-
tidiness is inevitable in a system in which rule of law, separation of
powers and sovereignty of Parliament each rightly assert their fun-
damentality, but in which (for the time being, at least) ultimate prior-
ity is conceded to the latter
