INTERNATIONAL PROGRAMMES (UNIVERSITY OF LONDON) PUBLIC LAW STUDY GUIDE.

INTERNATIONAL PROGRAMMES (UNIVERSITY OF LONDON) PUBLIC LAW STUDY GUIDE by HilaireBarnett,Marinos Diamantides. Public law 1 Introduction page 3 1.1 Studying Public law 1.1.1 A broad and integrated subject Public law is challenging: it requires knowledge of the entire system of government. For those of you with an academic background which includes history, government and/or politics, some of the terrain will be familiar – although now it will require a particular perspective: that of the constitutional lawyer. For those without any relevant academic background, it would be helpful to read an introductory text on government in the United Kingdom. Many of the individual topics for study are not clear-cut and are subject to debate. It is important that you adopt a critical and reflective approach to the subject, studying the rules and authorities with care but then attempting to form your own view. This must be developed with care: it is very easy to react instinctively – either positively or negatively – to a particular matter or approach. That, however, is not enough. You must always strive to develop logical and reasoned arguments in order to justify conclusions that you reach. Public law requires the same disciplined approach and logical analysis as any other legal subject, and as usual you also need to develop the skill of thinking and arguing conceptually. The study of the constitution does not lend itself to academic compartmentalisation. Whereas it may be possible – although not desirable – to approach some subjects by treating each topic as a distinctive isolated part of the whole, this is not true of constitutional and administrative law. It is, of course, necessary to work through the syllabus in an organised and logical manner. However, it is of the utmost importance that you become aware of the integrated nature of most of the syllabus. To give just two examples (many more could be given):  Parliamentary sovereignty is of necessity studied as a discrete topic: nevertheless many – if not most – other topics in public law have a bearing on sovereignty and you cannot fully comprehend sovereignty until you have covered the full syllabus.  The same is true of the non-legal sources of the constitution – constitutional conventions – which permeate the entire constitutional structure; the ability to see the constitution ‘in the round’ and as a whole is essential to successful study. The study of the constitution of the UK requires an appreciation of a variety of conceptual, historical, legal and political factors. † The UK appears to be almost unique in not having a constitution which is conveniently set out in a single written document. However, not too much should be made of the ‘unwritten’ nature of the constitution. In all constitutions some of the rules will not be written, and still less will they be collected within a single document. Irrespective of the labels attached to constitutions, a true understanding of constitutional law can only be grasped by appreciating the historical and socio-political framework within which the rules are set. However, while historical origins set the scene for the study of the contemporary constitution, it must be remembered that the principal emphasis of the syllabus is on the constitution of the UK today and not on the many centuries of development that underlie it. With that point in mind, when we evaluate the many constitutional issues that present themselves today we must necessarily draw on historical sources and events to understand the contribution they have made to creating today’s constitution. It is particularly true of the UK’s constitution that it is difficult to see clearly the demarcation lines between constitutional law and political science. For example, the study of the constitutional relationship between the government and the legislature today encompasses a knowledge of the political background, the rules of parliamentary practice and the non-legal or conventional rules that apply in a given situation. Furthermore, in studying the legislative supremacy of Parliament, it is of fundamental importance to grasp that, in terms of constitutional legal theory, the power of Parliament is omnipotent or sovereign. That legal fact however must be seen in light of the political and, possibly, economic constraints on the exercise of that seemingly unlimited power, but without allowing these ‘extra-legal’ factors to obscure † This understanding of diverse sets of information and factors is a key element in your development of graduate skills. page 4 University of London International Programmes the constitutional position. It is the constitutional rules that are of prime importance: the political and other factors that have an impact on the working of those rules, while of great significance, are ancillary. 1.1.2 A constitution under reform The election of a Labour government in 1997 – after 18 years of Conservative Party rule – led to major constitutional reform. The incoming government’s agenda included devolution to Northern Ireland, devolution to Scotland and Wales, reform of the House of Lords, reform of the electoral system and the introduction of a Freedom of Information Act. Of the greatest significance was the intention to incorporate into domestic law – under the Human Rights Act 1998 – most of the rights and freedoms protected under the European Convention on Human Rights. By 2002 much of the reform agenda had been accomplished: devolution to the nations had taken place, a Freedom of Information Act had been introduced, the Human Rights Act 1998 was fully in force and a partial (but not yet complete) reform of the House of Lords achieved. Reforms have been made to the electoral system, including a register of political parties and statutory regulation of donations to political parties. The Constitutional Reform Act 2005 reformed the office of Lord Chancellor and established a Supreme Court to replace the formerly highest court in the United Kingdom, the House of Lords. An inconclusive general election result in 2010 led to the formation of a Coalition Government made up of the Conservative Party and Liberal-Democrat Party. This has led to further constitutional reform. The Fixed-term Parliaments Act 2011 and the Parliamentary Voting System and Constituencies Act 2011 introduce, for the first time, a fixed date for general elections † , thereby removing the discretion of the Prime Minister to fix the date of the election. The Parliamentary Voting System and Constituencies Act provided for a referendum to be held on the voting system for general elections and for a reduction in the number of parliamentary seats in the House of Commons. The European Union Act 2011 requires that any further transfer of powers from the United Kingdom to the European Union will require the authority of the people voting in a referendum. Reform of the House of Lords remains on the reform agenda. The Scottish government is intending to hold a referendum in 2014 on independence for Scotland. The UK government is opposed to independence, but willing to negotiate further devolution to Scotland. Given that some reforms are on-going it is particularly important at this time to keep abreast of current affairs. 1.1.3 Outline structure of this subject guide This subject guide has been structured to enable you to proceed from the basic foundations through to a detailed understanding of the different topics that rest on these foundations. The guide falls into five principal parts: Part 1 Constitutional fundamentals (Chapters 1–7) The structure of the constitution and its basic principles. Part 2 The government and Parliament (Chapters 8–12) The Crown, Prime Minister and Cabinet, the structure of central government and the workings of Parliament. Also in this part is an introduction to regional and local government, both of which have powers devolved upon them by the UK Parliament. Part 3 The European Union (EU) (Chapters 13–14) As a member state of the European Union (EU), the United Kingdom has committed itself to a form of supra-national governance with its own legal and institutional framework. EU law has, since 1973 when Britain first joined, become an increasingly important part of domestic law. British judges are required to apply EU law as interpreted by the Court of Justice of the European Union, and Parliament is under an obligation to pass laws which are consistent with the overriding European law. † A referendum was held in May 2011, at which the electorate rejected proposals for change. Public law 1 Introduction page 5 Part 4 The individual and the state (Chapters 15–17) This part is a study of individual freedoms and rights as protected by statute and common law. Of seminal importance here is the European Convention on Human Rights and its jurisprudence (case law) and the case law under the Human Rights Act 1998 which now makes it possible to enforce Convention rights against the state within the domestic legal system. Also included in this part is the difficult issue of state – or national – security and the law that regulates the security agencies as well as the law on official secrets and terrorism. Part 5 An introduction to administrative law (Chapters 18–19) In many degree courses in the UK, administrative law is a full one-year or half-year subject. Within the LLB for external students, the syllabus includes the study of judicial review of administrative action (the process through which government powers are controlled by the courts), and study of the Commissioners for Administration (‘Ombudsmen’), the machinery by which citizens’ complaints against central and local government and bodies such as the National Health Service are investigated. 1.2 Learning outcomes for Public law When you have finished studying this module, you should be able to demonstrate that you have studied in depth the public law of the United Kingdom, which comprises constitutional law and administrative law. a. Introduction  describe the characteristics of the constitution  explain the powers and role of the Crown, including the royal prerogative  summarise the sources of the constitution  explain the sovereignty of Parliament  explain the separation of powers  describe and discuss the rule of law  describe and explain central and local government  explain devolution and the structure of the United Kingdom. b. Parliament, etc.  describe and discuss electoral law and reform  describe the composition and procedure and functions of Parliament:  legislative  financial  control of the executive  the role of the individual MP  explain and discuss parliamentary privilege. c. The executive, etc.  explain the powers of the Prime Minister  explain the role of the Cabinet  explain collective and individual ministerial responsibility and control of executive power. d. The European Union  Describe the institutions of the European Union:  the Council  the Commission  the Parliament  the Court of Justice  explain the sources of EU law  discuss the relationship between EU law and national law  discuss EU primacy and parliamentary sovereignty. page 6 University of London International Programmes e. The citizen, etc.  summarise the legal protection of civil liberties in the United Kingdom  explain the significance of the European Convention on Human Rights  discuss the Human Rights Act 1998  explain the extent to which the law effects a satisfactory balance between public order and civil liberties  discuss the powers of the police in relation to assemblies and processions  explain the role and powers of the security services, including the interception of communications  explain the law relating to official secrecy  explain the major legal provisions and case law relating to terrorism. f. Administrative law  explain the constitutional role of judicial review  explain the procedural requirements of judicial review  explain and discuss the grounds for judicial review  discuss the remedies available in judicial review  discuss the powers and role of the Parliamentary Commissioner for Administration. 1.3 Acquiring graduate qualities In addition to successfully learning the relevant law, you will need to develop a number of skills and the ability to:  discern themes and patterns in large amounts of disparate information  scan large amounts of written materials to draw out argumentative threads  explain the different sides of a controversial issue  make, apply and criticise precise distinctions  separate rapidly the relevant from the irrelevant  think logically  think critically  research  plan  communicate, argue fluently, concisely and persuasively, both orally and on paper  concentrate, working with speed and stamina  work independently with initiative and self confidence  work co-operatively, to lead and to support with sensitivity. Self-reflective skills are also essential, including the ability to:  learn from experience  gauge how the learning experience is working and to identify weaknesses  use the above skills to evaluate your knowledge  use those skills to analyse and solve problems. As your studies progress, you should be thinking about how you can develop these skills. Public law 1 Introduction page 7 1.4 A suggested approach to study See also the Student handbook and the Learning skills for law guide. You should start your study of Public law with this subject guide. It has been designed to help you succeed in your examinations. † Start at the beginning and work through the guide sequentially, reading the textbook and doing the activities as directed. It may be tempting to start with, say, human rights or state security, but this is not a good idea. The course builds on the basic foundations without which an understanding of particular topics later in the course cannot be gained. 1.4.1 Essential reading Study pack The study pack contains extracts from books, journals, reports and case reports which have been chosen to assist your learning. Read them at points where they are referred to in this guide. Primary textbook†  Barnett, H. Constitutional and administrative law. (Oxford: Routledge, 2011) ninth edition [ISBN 1084]. This book is supported by a companion web site created both to keep C onstitutional and administrativ e law up to date and to provide enhanced resources for students and lecturers. The ‘resources’ section of the web site contains useful advice on answering essay and problem questions:  Important supplementary texts  Munro, C.R. Studies in constitutional law. (London: Butterworths, 1999) [ISBN 1431]. You might also like to obtain:  Thompson, B. and M.J. Allen Cases and materials on constitutional and administrative law. (Oxford: Oxford University Press, 2011) tenth edition [ISBN 9044 (paperback)]. Statute book You should also obtain a statute book. Statute books are updated regularly: make sure you obtain the latest copy. Under the Regulations you are allowed to take one authorised statute book into the examination room. Information about the statute books and other materials that you are permitted to use in the examination is printed in the current Regulations, which you should refer to. Please note that you are allowed to underline or highlight text in these documents – but you are not allowed to write notes etc. on them. The Regulations for the LLB state: Students may only underline and/or highlight passages with a coloured pen in the materials, but all other forms of personal annotation on statutes and other materials permitted to be taken into the examination room are strictly forbidden.