Public Law Lectures 1-7
Constitutional Law: Role and powers of institutions within the state (executive, legislative, judiciary) and
the relationship between citizens and the state. The structure of the primary organs of Government.
A Constitution sets out framework and principle functions of the organs of Gov within the state and
declares the principle by which these organs must operate. Usually written (UK is uncodified). Collection
of rules which regulate the government.
Codified constitutions aim to highlight a fresh start moving on from a historic event usually, such as a
dictatorship, to represent the fundamental laws of the country. Countries with uncodified constitutions
do not have fundamental law – evolution seems to happen more peacefully.
Entrenchment: Prevents amendments/repeals or makes them difficult
Federal: Division of powers between the central gov + individual states/provinces.
Unitary: Powers vested in central institutions
Characteristics of UK Constitution:
- Partially uncodified
- Flexible
- Unitary
- SOP
- Religious
- Monarchical
In other jurisdictions, clear distinction between constitutional law and regular law. However, in the UK,
legislation dealing w/constitutional matters is still only regular legislation – is not entrenched.
There is no hierarchy of statutes – yet this was challenged in Thoburn V Sunderland City Council:
Suggested that we should recognize a hierarchy of AOP, and that constitutional legislation should not be
subject to ‘implied repeal’ (ORBITER) (Meaning where legislation conflicts, most recent act prioritises)
However, just acknowledges a higher to amend aspect of legislation, but can still be changed w/express
words of repeal (no hierarchy)
Judicial precedent is an important source of PL. Interpret constitutional legislation, make common law
and acknowledge c.law constitutional principles – which influence how courts interpret and apply
existing legal rules. Common law is developed in a way which respects constitutional principles.
Royal Prerogative: Common law. Authorizes gov to act w/o prior parliamentary authorisation. But,
limited by conventions, can be abolished by Parl. (Supremacy)
Also, principle that national law should be interpreted in conformity with treaties to which the UK are
party. Dualist state, international law does not alter laws of the state unless and until it is incorporated
into national law via legislation.
, Legal freedom constrained by political precedent, i.e appointment of PM. Accepted practices which all
parties implicitly agree to abide, traditionally unwritten but some have come to be codified – yet are
binding only in a political sense.
Conventions: The morality of the constitution, ‘regulating conduct’. Binding by and upon those who
operate it. Conventions are:
- Concerned w/constitutional matters
- Supplementary to law
- Binding upon those they are directed upon
- Basis of constitutional morality (give effect to underlying constitutional principles)
Not just descriptive but prescriptive – say how things SHOULD be done. If breached, practical
consequences i.e social repercussions. Not strictly law, but may be taken into account in the application
of the law to the facts.
Parliamentary Supremacy and Entrenchment
Dicey’s Traditional View: Has the right to make and unmake any law. No body or person is recognised as
having the right to override/set aside the legislation. A parliament cannot bind a future parliament.
Courts should not challenge or question AOP’s, or hold any as invalid. Legislative supremacy is not
limited by international law, no territorial restrictions on the competence of Parliament.
Courts cannot question Parliament – yet do interpret statutes – quasi-legislative functions?
Wade’s view is that entrenched legislation in the UK does not exist, and the courts are obliged to give
effect to the most recent expression of Parliamentary intention. All AOP’s legally equal. Continuing
sovereignty – cannot destroy this. Source of Powers comes from the Glorious Revolution 1688, which
produced a ‘rule of recognition’ which established that something will constitute a valid and enforcable
statute if:
- Approved by both houses
- Royal assent
- Consistent with provisions in subsequently enacted Acts
Argues this cannot be changed by Parl, it is not a law, but exists in the political realm
Valid? Too theoretical/historical. Parl does bind itself to a certain degree, eg Parliament Act 1911/1949.
These acts also allow HOC to make law w/o HOL – clear modification of the rule of recognition. Also, Parl
Supremacy challenged by European Communities Act 1972.
New View (Manner and form theory): Parl is/should be capable of setting binding conditions
concerning how/in what form legislation is to be enacted – but should not tie the hands of future
legislators in regards to what they may enact – CONTINGENT ENTRENCHMENT.
This agrees with the rejection of absolute entrenchment, but respects there is a hierarchy of laws.
Another view considers whether Parl is subject to constraints which do not derive from conditions
imposed by Parl itself? Eg- Practical constraints (things they could but wouldn’t do) , legal constraints
(judiciary interprets legislation in line with constitutional values, but does not mean constitution
Constitutional Law: Role and powers of institutions within the state (executive, legislative, judiciary) and
the relationship between citizens and the state. The structure of the primary organs of Government.
A Constitution sets out framework and principle functions of the organs of Gov within the state and
declares the principle by which these organs must operate. Usually written (UK is uncodified). Collection
of rules which regulate the government.
Codified constitutions aim to highlight a fresh start moving on from a historic event usually, such as a
dictatorship, to represent the fundamental laws of the country. Countries with uncodified constitutions
do not have fundamental law – evolution seems to happen more peacefully.
Entrenchment: Prevents amendments/repeals or makes them difficult
Federal: Division of powers between the central gov + individual states/provinces.
Unitary: Powers vested in central institutions
Characteristics of UK Constitution:
- Partially uncodified
- Flexible
- Unitary
- SOP
- Religious
- Monarchical
In other jurisdictions, clear distinction between constitutional law and regular law. However, in the UK,
legislation dealing w/constitutional matters is still only regular legislation – is not entrenched.
There is no hierarchy of statutes – yet this was challenged in Thoburn V Sunderland City Council:
Suggested that we should recognize a hierarchy of AOP, and that constitutional legislation should not be
subject to ‘implied repeal’ (ORBITER) (Meaning where legislation conflicts, most recent act prioritises)
However, just acknowledges a higher to amend aspect of legislation, but can still be changed w/express
words of repeal (no hierarchy)
Judicial precedent is an important source of PL. Interpret constitutional legislation, make common law
and acknowledge c.law constitutional principles – which influence how courts interpret and apply
existing legal rules. Common law is developed in a way which respects constitutional principles.
Royal Prerogative: Common law. Authorizes gov to act w/o prior parliamentary authorisation. But,
limited by conventions, can be abolished by Parl. (Supremacy)
Also, principle that national law should be interpreted in conformity with treaties to which the UK are
party. Dualist state, international law does not alter laws of the state unless and until it is incorporated
into national law via legislation.
, Legal freedom constrained by political precedent, i.e appointment of PM. Accepted practices which all
parties implicitly agree to abide, traditionally unwritten but some have come to be codified – yet are
binding only in a political sense.
Conventions: The morality of the constitution, ‘regulating conduct’. Binding by and upon those who
operate it. Conventions are:
- Concerned w/constitutional matters
- Supplementary to law
- Binding upon those they are directed upon
- Basis of constitutional morality (give effect to underlying constitutional principles)
Not just descriptive but prescriptive – say how things SHOULD be done. If breached, practical
consequences i.e social repercussions. Not strictly law, but may be taken into account in the application
of the law to the facts.
Parliamentary Supremacy and Entrenchment
Dicey’s Traditional View: Has the right to make and unmake any law. No body or person is recognised as
having the right to override/set aside the legislation. A parliament cannot bind a future parliament.
Courts should not challenge or question AOP’s, or hold any as invalid. Legislative supremacy is not
limited by international law, no territorial restrictions on the competence of Parliament.
Courts cannot question Parliament – yet do interpret statutes – quasi-legislative functions?
Wade’s view is that entrenched legislation in the UK does not exist, and the courts are obliged to give
effect to the most recent expression of Parliamentary intention. All AOP’s legally equal. Continuing
sovereignty – cannot destroy this. Source of Powers comes from the Glorious Revolution 1688, which
produced a ‘rule of recognition’ which established that something will constitute a valid and enforcable
statute if:
- Approved by both houses
- Royal assent
- Consistent with provisions in subsequently enacted Acts
Argues this cannot be changed by Parl, it is not a law, but exists in the political realm
Valid? Too theoretical/historical. Parl does bind itself to a certain degree, eg Parliament Act 1911/1949.
These acts also allow HOC to make law w/o HOL – clear modification of the rule of recognition. Also, Parl
Supremacy challenged by European Communities Act 1972.
New View (Manner and form theory): Parl is/should be capable of setting binding conditions
concerning how/in what form legislation is to be enacted – but should not tie the hands of future
legislators in regards to what they may enact – CONTINGENT ENTRENCHMENT.
This agrees with the rejection of absolute entrenchment, but respects there is a hierarchy of laws.
Another view considers whether Parl is subject to constraints which do not derive from conditions
imposed by Parl itself? Eg- Practical constraints (things they could but wouldn’t do) , legal constraints
(judiciary interprets legislation in line with constitutional values, but does not mean constitution
