All Public Law Notes
What exactly is public law?
Public law affects several parts of our day to day lives; this includes, for
example, immigration, health, the environment and education. In its most
basic terms, the role of public law is to regulate the relationship between
the state and individuals. In addition, public law refers to the state’s
special powers to run the country; meaning its power to enforce, apply,
implement, make, repeal and amend the law. This area of law is also often
referred to as constitutional (the law which founds the state's key
institutions and provides its framework) and administrative (the law which
provides individual public authorities and bodies with their legal duties
and power) law.
Why is public law important in today's society?
As there exists an unequal relationship of power between the state and
individuals, public law is especially important because it provides checks
and balances. This means that this area of law ensures that the
government does not abuse its power over individuals and that they use
their power in a fair and proper manner.
The Separation of Powers
Public law regulates the relationship between the state and its organs,
and private citizens. Public law is a shorter way of describing
constitutional and administrative law. Constitutional law is the law that
provides a state framework and establishes its principle institutions and
the interrelationships between these institutions. Administrative law
confers the legal powers and legal duties of public bodies and authorities.
The separation of powers serves an essential democratic function, since it
enables the three main powers of the state to act as a check on the
absolute exercise of power. These powers are divided between three
principle branches of government. Firstly, the legislative branch has
powers to create legislation and to represent the views of the people.
Second, the judicial branch is the systems of courts and tribunals who
have powers to interpret legislation passed by the legislature and to
adjudicate on legal disputes. Thirdly, the executive branch has the
responsibility of making and implementing public policy.
Throughout history, many constitutional writers have regarded the
separation of powers principle as representing the ideal structure of
government. Charles Louis de Secondat, otherwise known as Baron de
Montesquieu wrote about his observations whilst travelling around Europe
between 1728 and 1731. He is one of the writers who is most closely
associated with this doctrine. In The Spirit of Laws, Montesquieu warned
,against the use of power in a 'tyrannical manner' if it was not divided
between the three branches of government. Much of his observations
were carried out within the court of George II in England, moving in
political circles and formulating much of his work based on the English
government of the time.
Modern democracies tend to now exist as a partial, or 'checks and
balances', conception of the separation of powers, which includes the
ability of one branch to involve itself in issues that are primarily the
concern of another branch. Constructive breaches of the strict separation
of powers doctrine can contribute to the overall goal of preventing
tyranny; whereas destructive breaches pose a threat to that goal. Many
states with constitutions based upon the tripartite system have
experienced the development of many administrative organs that carry
out many of the daily tasks of government. These agencies do not fit
easily into any of the three branches.
The UK possesses governmental bodies, some of which are headed by
government Ministers, which do not fit exclusively into either the
executive, judiciary or legislature. Although very few countries adhere
rigidly to the separation of powers doctrine, most constitutional systems
do attempt some form of demarcation between the legislature, executive
and judicial organs of government to avoid abuse of power by any one of
the three branches.
Separation of Powers and the Constitution
The exact position of the doctrine of the separation of powers within the
UK constitution is unclear. There are various different views as to whether
the doctrine is part of the UK constitution. In Hinds v The Queen [1977] AC
195, Lord Diplock stated that he was certain that
'the basic concept of the separation of legislative, executive and judicial
power...had been developed in the unwritten constitution of the United
Kingdom'(at 212).
In The English Constitution (London, 1867) Bagehot argues that the
'efficient secret of the English Constitution may be described by the close
union, the nearly complete fusion, of the executive and legislative
powers".
There is a significant overlap in the work of the executive and the
legislative branches, with the executive exerting a substantial influence
over the work of Parliament. This creates a threat to the ability of the
separation of powers doctrine to effectively prevent the abuse of power in
the UK. At the same time, there are examples where separation of powers
is strictly adhered to, such as in relation to the independence of the
judiciary. Opinions vary on how best to achieve the balance between the
,separation of government institutions and the need for those institutions
to work together and cooperate. There is no single answer to achieving
the right balance.
In R v Secretary of State for the Home Department, ex p Fire Brigades
Union [1995] 2 AC 513 the Home Secretary was unwilling to invoke
powers under s 171(1) Criminal Justice Act 1988 which introduceda
new scheme to offer compensation to victims of criminal offences. Since
the Home Secretary was refusing to put into effect powers vested in him
by the legislature, the case raised the question as to whether such a
refusal was in accordance with the doctrine of the separation of powers.
The Home Secretary was in effect repealing an Act of Parliament, which
was not within his power to do so.
A three-fifths majority of the House of Lords held that the Home Secretary
had exceeded his powers. The majority found that he had acted unlawfully
by ruling out the possibility of the implementation of the statutory
compensation scheme. The minority judgment held that since the
legislation was not yet in full force, it was inappropriate for the court to
intervene, making the issue a political one. Judicial intervention in their
view would involve a breach by the judiciary of the separation of powers
doctrine. The case illustrates how a different emphasis on one particular
aspect of the separation of powers can lead to a different conclusion. The
majority emphasised the importance of the executive not overreaching its
powers, whereas the minority considered the non-interference of the
judiciary in areas beyond its concern as the overriding factor.
The important aspect regarding the separation of powers doctrine, thus, is
less in its specific formulation, but in its ability to prevent the abuse of
power of any one of the three branches of government. Although
appearing simplistic, complexity is introduced when various parts of the
doctrine are interpreted as taking precedence over others and the need to
balance the doctrines checks on abuse of powers with the need for
branches to co-exist in relationship with one another. The three branches
of government will now be examined in further detail.
The Institutions - the Executive
The executive branch of the UK government is comprised of the Head of
State, or monarch, the Prime Minister, the Cabinet, Secretaries of State,
ministers of the Crown, departments of state, other public bodies,
devolved administrative bodies, local authorities, the police and the
military.
The Prime Minister is appointed by the Head of State; if appointed after a
General Election, this takes place soon after the outcome is announced.
The formal process involves the outgoing Prime Minister tendering his or
her resignation to the monarch, and then his or her successor is requested
by the Head of State to form a new government.
, Figure 1: The UK Executive
Error! Filename not specified.
The powers of the executive
Primarily the executive has a vast array of statutory powers afforded to it
by Parliament. Since Parliament is unable to legislate for every
eventuality, the Inquires Act 2005 makes provision for inquiries into
matters of public concern, so that every time something of public concern
occurs, Ministers have the power to set up an inquiry within specific
parameters, instead of Parliament having to legislate each time to deal
with the specific incident.
The Prime Minister's powers come from the Royal Prerogative and statute.
He or she has a role to advice the monarch on:
the exercise of all powers of entitlement which concern the
government;
the appointment of all members of the judiciary, heads of the
security services and senior officers in the Church of England.
The Prime Minister also appoints senior officers in the armed forces, and
recommends honours or life peerages. The Prime Minister also makes
decisions regarding the Cabinet, such as determining its size, controlling
its agenda and creating and disbanding Cabinet Committees.
The Cabinet is chosen by the Prime Minister and appointed by the
monarch. It is made up of around 20 members, but this number varies.
The Cabinet functions to consider questions which concern the collective
responsibility of government and are of critical importance to the public.
The Cabinet determines the contents of the Queen's speech, the
legislative timetable and the broad economic policy, which establishes the
basis of the Chancellor of the Exchequers budget.
Standing and ad hoc Cabinet Committees are empowered by the Cabinet
to deal with matters of current importance. The Cabinet have a
relationship with the monarch, who is represented by the Prime Minister in
Cabinet meetings and is entitled to be informed before being required to
grant approval for documents sent by the Prime Minister.
In AG v Jonathan Cape [1976] QB 752, [1976] 3 All E R 484 Lord Widgery
CJ described 'collective cabinet responsibility' as meaning that any policy
decision reached by the Cabinet had to be supported by all members of
the Cabinet, unless they were willing to resign.
The Civil Service is required to act in a way that is independent of any
political party; the employees will work for whichever political party is in
government at the given time. The advantage of a politically neutral civil
What exactly is public law?
Public law affects several parts of our day to day lives; this includes, for
example, immigration, health, the environment and education. In its most
basic terms, the role of public law is to regulate the relationship between
the state and individuals. In addition, public law refers to the state’s
special powers to run the country; meaning its power to enforce, apply,
implement, make, repeal and amend the law. This area of law is also often
referred to as constitutional (the law which founds the state's key
institutions and provides its framework) and administrative (the law which
provides individual public authorities and bodies with their legal duties
and power) law.
Why is public law important in today's society?
As there exists an unequal relationship of power between the state and
individuals, public law is especially important because it provides checks
and balances. This means that this area of law ensures that the
government does not abuse its power over individuals and that they use
their power in a fair and proper manner.
The Separation of Powers
Public law regulates the relationship between the state and its organs,
and private citizens. Public law is a shorter way of describing
constitutional and administrative law. Constitutional law is the law that
provides a state framework and establishes its principle institutions and
the interrelationships between these institutions. Administrative law
confers the legal powers and legal duties of public bodies and authorities.
The separation of powers serves an essential democratic function, since it
enables the three main powers of the state to act as a check on the
absolute exercise of power. These powers are divided between three
principle branches of government. Firstly, the legislative branch has
powers to create legislation and to represent the views of the people.
Second, the judicial branch is the systems of courts and tribunals who
have powers to interpret legislation passed by the legislature and to
adjudicate on legal disputes. Thirdly, the executive branch has the
responsibility of making and implementing public policy.
Throughout history, many constitutional writers have regarded the
separation of powers principle as representing the ideal structure of
government. Charles Louis de Secondat, otherwise known as Baron de
Montesquieu wrote about his observations whilst travelling around Europe
between 1728 and 1731. He is one of the writers who is most closely
associated with this doctrine. In The Spirit of Laws, Montesquieu warned
,against the use of power in a 'tyrannical manner' if it was not divided
between the three branches of government. Much of his observations
were carried out within the court of George II in England, moving in
political circles and formulating much of his work based on the English
government of the time.
Modern democracies tend to now exist as a partial, or 'checks and
balances', conception of the separation of powers, which includes the
ability of one branch to involve itself in issues that are primarily the
concern of another branch. Constructive breaches of the strict separation
of powers doctrine can contribute to the overall goal of preventing
tyranny; whereas destructive breaches pose a threat to that goal. Many
states with constitutions based upon the tripartite system have
experienced the development of many administrative organs that carry
out many of the daily tasks of government. These agencies do not fit
easily into any of the three branches.
The UK possesses governmental bodies, some of which are headed by
government Ministers, which do not fit exclusively into either the
executive, judiciary or legislature. Although very few countries adhere
rigidly to the separation of powers doctrine, most constitutional systems
do attempt some form of demarcation between the legislature, executive
and judicial organs of government to avoid abuse of power by any one of
the three branches.
Separation of Powers and the Constitution
The exact position of the doctrine of the separation of powers within the
UK constitution is unclear. There are various different views as to whether
the doctrine is part of the UK constitution. In Hinds v The Queen [1977] AC
195, Lord Diplock stated that he was certain that
'the basic concept of the separation of legislative, executive and judicial
power...had been developed in the unwritten constitution of the United
Kingdom'(at 212).
In The English Constitution (London, 1867) Bagehot argues that the
'efficient secret of the English Constitution may be described by the close
union, the nearly complete fusion, of the executive and legislative
powers".
There is a significant overlap in the work of the executive and the
legislative branches, with the executive exerting a substantial influence
over the work of Parliament. This creates a threat to the ability of the
separation of powers doctrine to effectively prevent the abuse of power in
the UK. At the same time, there are examples where separation of powers
is strictly adhered to, such as in relation to the independence of the
judiciary. Opinions vary on how best to achieve the balance between the
,separation of government institutions and the need for those institutions
to work together and cooperate. There is no single answer to achieving
the right balance.
In R v Secretary of State for the Home Department, ex p Fire Brigades
Union [1995] 2 AC 513 the Home Secretary was unwilling to invoke
powers under s 171(1) Criminal Justice Act 1988 which introduceda
new scheme to offer compensation to victims of criminal offences. Since
the Home Secretary was refusing to put into effect powers vested in him
by the legislature, the case raised the question as to whether such a
refusal was in accordance with the doctrine of the separation of powers.
The Home Secretary was in effect repealing an Act of Parliament, which
was not within his power to do so.
A three-fifths majority of the House of Lords held that the Home Secretary
had exceeded his powers. The majority found that he had acted unlawfully
by ruling out the possibility of the implementation of the statutory
compensation scheme. The minority judgment held that since the
legislation was not yet in full force, it was inappropriate for the court to
intervene, making the issue a political one. Judicial intervention in their
view would involve a breach by the judiciary of the separation of powers
doctrine. The case illustrates how a different emphasis on one particular
aspect of the separation of powers can lead to a different conclusion. The
majority emphasised the importance of the executive not overreaching its
powers, whereas the minority considered the non-interference of the
judiciary in areas beyond its concern as the overriding factor.
The important aspect regarding the separation of powers doctrine, thus, is
less in its specific formulation, but in its ability to prevent the abuse of
power of any one of the three branches of government. Although
appearing simplistic, complexity is introduced when various parts of the
doctrine are interpreted as taking precedence over others and the need to
balance the doctrines checks on abuse of powers with the need for
branches to co-exist in relationship with one another. The three branches
of government will now be examined in further detail.
The Institutions - the Executive
The executive branch of the UK government is comprised of the Head of
State, or monarch, the Prime Minister, the Cabinet, Secretaries of State,
ministers of the Crown, departments of state, other public bodies,
devolved administrative bodies, local authorities, the police and the
military.
The Prime Minister is appointed by the Head of State; if appointed after a
General Election, this takes place soon after the outcome is announced.
The formal process involves the outgoing Prime Minister tendering his or
her resignation to the monarch, and then his or her successor is requested
by the Head of State to form a new government.
, Figure 1: The UK Executive
Error! Filename not specified.
The powers of the executive
Primarily the executive has a vast array of statutory powers afforded to it
by Parliament. Since Parliament is unable to legislate for every
eventuality, the Inquires Act 2005 makes provision for inquiries into
matters of public concern, so that every time something of public concern
occurs, Ministers have the power to set up an inquiry within specific
parameters, instead of Parliament having to legislate each time to deal
with the specific incident.
The Prime Minister's powers come from the Royal Prerogative and statute.
He or she has a role to advice the monarch on:
the exercise of all powers of entitlement which concern the
government;
the appointment of all members of the judiciary, heads of the
security services and senior officers in the Church of England.
The Prime Minister also appoints senior officers in the armed forces, and
recommends honours or life peerages. The Prime Minister also makes
decisions regarding the Cabinet, such as determining its size, controlling
its agenda and creating and disbanding Cabinet Committees.
The Cabinet is chosen by the Prime Minister and appointed by the
monarch. It is made up of around 20 members, but this number varies.
The Cabinet functions to consider questions which concern the collective
responsibility of government and are of critical importance to the public.
The Cabinet determines the contents of the Queen's speech, the
legislative timetable and the broad economic policy, which establishes the
basis of the Chancellor of the Exchequers budget.
Standing and ad hoc Cabinet Committees are empowered by the Cabinet
to deal with matters of current importance. The Cabinet have a
relationship with the monarch, who is represented by the Prime Minister in
Cabinet meetings and is entitled to be informed before being required to
grant approval for documents sent by the Prime Minister.
In AG v Jonathan Cape [1976] QB 752, [1976] 3 All E R 484 Lord Widgery
CJ described 'collective cabinet responsibility' as meaning that any policy
decision reached by the Cabinet had to be supported by all members of
the Cabinet, unless they were willing to resign.
The Civil Service is required to act in a way that is independent of any
political party; the employees will work for whichever political party is in
government at the given time. The advantage of a politically neutral civil
