Public Law – Notes
Unit 1 – The UK Constitution
Constitutional Fundamentals
Constitution: Deals with the entire organisation of a state and how its legal order is
established. Also gives effect to the values which society regards as important.
Administrative Law: Body of law that governs the activities of administrative agencies of
government.
Classifying a Constitution:
Written: Constitution set out in single document, containing fundamental laws and defining
powers of the state. May contain a Bill of Rights.
Unwritten: Constitution made up of a number of different sources.
Republican: Usually have a democratically elected President as its head of state.
Monarchical: Unelected monarch as head of state.
Federal: Division of power between central and regional government.
Unitary: A single sovereign legislative body, power concentrated at centre.
Rigid: ‘Entrenched’. Constitution may be changed only following a special procedure.
Flexible: Constitution easy to change – no special procedures needed.
Formal Separation of Powers: Clear separation both of functions and personnel between
the executive (i.e. government), the legislative (i.e. parliament), and the judicial (i.e. courts)
Informal Separation of Powers: Significant degree of overlap in term of functions and
personnel.
Core Constitutional Principles:
The Rule of Law: All actions of the state must be permitted by the law, the law should be
clear and certain, made properly and follow principles of equality, with the judiciary being
independent and impartial. Dicey
The Separation of Powers: No one branch of the state may exert an excessive amount of
power or influence on the other.
The Supremacy of Parliament: Parliament has, under the English constitution, the right to
make or unmake law whatever; and, further, that no person or body is recognised by the
law… as having a right to override or set aside the legislation of Parliament.
,Sources of UK Constitution:
4 Principle Sources:
- Acts of Parliament
- Case Law
- Royal Prerogative
- Constitutional Conventions
ACTS OF PARLIAMENT:
- Magna Carta (1215): Government must be conducted according to law.
- Bill of Rights (1689): Imposed limitations upon Crown and its relationship with
Parliament.
- Act of Settlement (1701): Altered rules of succession, and established constitutional
independence of the judiciary.
- Acts of Union (1706-07): United England and Scotland.
- Parliament Acts (1911 & 1949): House of Commons would prevail over House of
Lords.
- European Communities Act (1972): EU law and legal systems incorporated.
- Police and Criminal Evidence Act (1984): Provides police with powers
- Public Order Act (1986): Limitations to hold marches/meetings in public
- Human Rights Act (1998): Protection of human rights.
- Acts of Devolutions: Devolved system of government.
- Constitutional Reform Act (2005): Creation of Supreme Court.
These acts not ‘entrenched’ and can be repealed by another act of Parliament. Vast majority
can be repealed, however some can’t e.g. Scotland Act 2016. No higher form of law
(Parliament have freedom to make more changes). Takes a long time to change – Lots of
debate in Commons and Lords. Actions of a state must have legal authority (Entwick).
CASE LAW:
- The Common Law: Comprises the rules and principles that have been declared to be
law by the courts. E.g. Principle of residual freedom, actions of the state must have
legal authority, legal disputes should be resolved by judiciary, Habeas Corpus and
individual liberty, right to a fair hearing, parliamentary supremacy.
- Judicial Review of Executive Decisions: Ensure the government and other public
bodies exercise their powers in the proper way.
- The Interpretation of Statute
Protect the rights of the individual against state interference.
Limited by the doctrine of the legislative supremacy of Parliament.
Constantly updated – reflecting the public opinion. No lengthy democratic process. Separate
from government – unbiased public opinion. The fact that precedent is binding shows a
form of inflexibility.
, THE ROYAL PREROGATIVE:
Royal prerogative covers:
- Foreign Affairs e.g. declaration of war
- Domestic Affairs e.g. appointment and dismissal of Prime Minister, appointment of
ministers
Every act which the government can do without an act of Parliament is due to the Royal
Prerogative. Derived from common law and exercised by monarch. Although the monarch is
legally responsible for the exercise of prerogative powers, most by convention are exercised
by the Prime Minister and other Government ministers.
No formal procedure (no acts of Parliament), is non-legal and parliament can curtail royal
prerogative e.g. Fixed-Term Parliaments Act 2011(flexible). Existence of this archaic concept
is in itself a sign of inflexibility. Government may have to act quickly under Royal Prerogative
to get something done.
In the event of conflict between the prerogative and a statutory power, it is the latter which
prevails, in order to maintain the legislative supremacy of Parliament. R (Miller and
Another) v Secretary of State for Exiting the European Union and Others (2017), held that
Government could not use prerogative to trigger article 50 due to the effect it would have
on the rights of UK citizens. Decided that a statutory authority was required to trigger the
article.
GCHQ Case, The exercise of prerogative power may be subject to review by the courts, like
statutory executive powers.
Shields (2008), Secretary of State for Justice can grant a prison pardon where justice had not
been achieved in the court process. Prerogative of mercy.
Royal Prerogative Reform: Could put all prerogative powers on a statutory footing (would
remove uncertainty).
CONSTITUTIONAL CONVENTIONS:
Non-legal source of the convention. Can be broken down into three parts:
- ‘rules of constitutional behaviour’
- ‘considered to be binding’
- ‘not enforced’ – no legal basis, therefore flexible.
Example is the monarch assenting to a Bill (Royal Assent) on the advice of the Prime
Minister.
Jennings: ‘the flesh that clothes the dry bones of the law.’
In the absence of a written constitution, conventions allow the day-to-day running of
government. They enhance the separation of powers and supplement the legal rules of the
State.
Unit 1 – The UK Constitution
Constitutional Fundamentals
Constitution: Deals with the entire organisation of a state and how its legal order is
established. Also gives effect to the values which society regards as important.
Administrative Law: Body of law that governs the activities of administrative agencies of
government.
Classifying a Constitution:
Written: Constitution set out in single document, containing fundamental laws and defining
powers of the state. May contain a Bill of Rights.
Unwritten: Constitution made up of a number of different sources.
Republican: Usually have a democratically elected President as its head of state.
Monarchical: Unelected monarch as head of state.
Federal: Division of power between central and regional government.
Unitary: A single sovereign legislative body, power concentrated at centre.
Rigid: ‘Entrenched’. Constitution may be changed only following a special procedure.
Flexible: Constitution easy to change – no special procedures needed.
Formal Separation of Powers: Clear separation both of functions and personnel between
the executive (i.e. government), the legislative (i.e. parliament), and the judicial (i.e. courts)
Informal Separation of Powers: Significant degree of overlap in term of functions and
personnel.
Core Constitutional Principles:
The Rule of Law: All actions of the state must be permitted by the law, the law should be
clear and certain, made properly and follow principles of equality, with the judiciary being
independent and impartial. Dicey
The Separation of Powers: No one branch of the state may exert an excessive amount of
power or influence on the other.
The Supremacy of Parliament: Parliament has, under the English constitution, the right to
make or unmake law whatever; and, further, that no person or body is recognised by the
law… as having a right to override or set aside the legislation of Parliament.
,Sources of UK Constitution:
4 Principle Sources:
- Acts of Parliament
- Case Law
- Royal Prerogative
- Constitutional Conventions
ACTS OF PARLIAMENT:
- Magna Carta (1215): Government must be conducted according to law.
- Bill of Rights (1689): Imposed limitations upon Crown and its relationship with
Parliament.
- Act of Settlement (1701): Altered rules of succession, and established constitutional
independence of the judiciary.
- Acts of Union (1706-07): United England and Scotland.
- Parliament Acts (1911 & 1949): House of Commons would prevail over House of
Lords.
- European Communities Act (1972): EU law and legal systems incorporated.
- Police and Criminal Evidence Act (1984): Provides police with powers
- Public Order Act (1986): Limitations to hold marches/meetings in public
- Human Rights Act (1998): Protection of human rights.
- Acts of Devolutions: Devolved system of government.
- Constitutional Reform Act (2005): Creation of Supreme Court.
These acts not ‘entrenched’ and can be repealed by another act of Parliament. Vast majority
can be repealed, however some can’t e.g. Scotland Act 2016. No higher form of law
(Parliament have freedom to make more changes). Takes a long time to change – Lots of
debate in Commons and Lords. Actions of a state must have legal authority (Entwick).
CASE LAW:
- The Common Law: Comprises the rules and principles that have been declared to be
law by the courts. E.g. Principle of residual freedom, actions of the state must have
legal authority, legal disputes should be resolved by judiciary, Habeas Corpus and
individual liberty, right to a fair hearing, parliamentary supremacy.
- Judicial Review of Executive Decisions: Ensure the government and other public
bodies exercise their powers in the proper way.
- The Interpretation of Statute
Protect the rights of the individual against state interference.
Limited by the doctrine of the legislative supremacy of Parliament.
Constantly updated – reflecting the public opinion. No lengthy democratic process. Separate
from government – unbiased public opinion. The fact that precedent is binding shows a
form of inflexibility.
, THE ROYAL PREROGATIVE:
Royal prerogative covers:
- Foreign Affairs e.g. declaration of war
- Domestic Affairs e.g. appointment and dismissal of Prime Minister, appointment of
ministers
Every act which the government can do without an act of Parliament is due to the Royal
Prerogative. Derived from common law and exercised by monarch. Although the monarch is
legally responsible for the exercise of prerogative powers, most by convention are exercised
by the Prime Minister and other Government ministers.
No formal procedure (no acts of Parliament), is non-legal and parliament can curtail royal
prerogative e.g. Fixed-Term Parliaments Act 2011(flexible). Existence of this archaic concept
is in itself a sign of inflexibility. Government may have to act quickly under Royal Prerogative
to get something done.
In the event of conflict between the prerogative and a statutory power, it is the latter which
prevails, in order to maintain the legislative supremacy of Parliament. R (Miller and
Another) v Secretary of State for Exiting the European Union and Others (2017), held that
Government could not use prerogative to trigger article 50 due to the effect it would have
on the rights of UK citizens. Decided that a statutory authority was required to trigger the
article.
GCHQ Case, The exercise of prerogative power may be subject to review by the courts, like
statutory executive powers.
Shields (2008), Secretary of State for Justice can grant a prison pardon where justice had not
been achieved in the court process. Prerogative of mercy.
Royal Prerogative Reform: Could put all prerogative powers on a statutory footing (would
remove uncertainty).
CONSTITUTIONAL CONVENTIONS:
Non-legal source of the convention. Can be broken down into three parts:
- ‘rules of constitutional behaviour’
- ‘considered to be binding’
- ‘not enforced’ – no legal basis, therefore flexible.
Example is the monarch assenting to a Bill (Royal Assent) on the advice of the Prime
Minister.
Jennings: ‘the flesh that clothes the dry bones of the law.’
In the absence of a written constitution, conventions allow the day-to-day running of
government. They enhance the separation of powers and supplement the legal rules of the
State.
