Constitutional and Administrative Law Notes 1
What is Constitutional Law?
Includes laws which regulate structure and functions of principle organs of
government and their relationship to one another and to the citizen.
Constitutionalism is a complex of ideas, attitudes and patterns of
behaviour elaborating the principle that the authority of government
derives from and is limited by a body of fundamental law. Idea that
government can + should be legally limited in its powers.
Devolution is where some powers are given in law to allow for limited
autonomous governing to take place in these countries (England,
Scotland, Wales + Northern Ireland), free from the full central control of
the UK State.
Political constitutionalism: Power and the making of law is and should be
legitimised through P.
Legal Constitutionalism: It is the law and legally enforceable rights that
have primacy as its these that create the conditions under which
government power can be limited.
Paine- Purpose of a constitution is to ensure that government operates by
consent and has moral legitimacy.
What is Administrative Law?
Concerned with the control of executive power e.g. Conduct of police/
NHS. Main concern is to ensure that executive power is exercised lawfully.
Constitutional + Administrative Law:
Together, sometimes referred to as Public Law. Regulates the following
relationships-
* Organ of state Organ of state
* State Citizen
* State Corporate bodies
What is a State?
A nation or territory considered as an organized political community under
one government.
United Kingdom= UK State
A state is a law. What makes it public?
A permanent population;
b. a defined territory;
c. a government; and
d. capacity to enter into relations with the other states.
,(Montevideo Convention on the Rights and Duties of States 1933 Article 1)
In terms of a 'government'- some organised means by which the state is
run. That will involve multiple organs of the state having distinct personnel
+ each having distinct functions.
What is Law?
Austin's view= 'A body of rules fixed and enforced by a sovereign political
authority'.
Hobbes' view= 'the formal glue that holds fundamentally disorganised
societies together'.
Other Dimensions of Law:
Private Law/ Civil law- settling disputes between individuals over 'wrongs'
one person inflicts on another in their private relationships e.g. Contract
law, tort law. Remedies include compensation, restoration.
Criminal Law= deals with offenses (crimes) and individual makes against
the state e.g. Murder, robbery. Sanctions include punishments- fines +
imprisonment.
Public Law= Law governing the conduct of public bodies.
Main issue in Constitutional + Administrative Law:
Max Weber defined the state as a 'human commodity that (successfully)
claims the monopoly of the legitimate use of physical force within a given
territory'.
The word 'legitimate' is of great significance for constitutional law e.g. The
effective limitation of power is the most important problem of social order.
,Constitutional and Administrative Law Notes 2
Separation of Powers:
1. Legislative= Parliament
2. Executive= Government
3. Judicial= Courts
Not a 'law' and therefore has no authority.
Either have separation of powers or you don't. Cant have partial
separation of powers.
The fact that the Executive in majority pretty much controls Parliament
shows that UK has no real separation of powers.
Monarch's involvement in all 3 branches of state in UK means we do not
have separation of powers.
The Rule of Law- Rationale, models and examples (ministerial + police powers +
courts):
Rule of man= dictatorship
Rule of law seeks to remove the arbitrariness and have a clear authority
for the law that overrides what an individual in authority thinks or wants.
Rule of law is thus one of the key constitutional principles applicable to all
modern constitutions. However, its meaning is far from precise + may
mean different things to different people at different times.
As we cannot agree on what the rule of law requires, it is of no use to us.
Judges who do not apply law passed through Parliament would be failing to
respect the constitution.
Judges not following instructions of governments are 'enemies of the
people'.
Rule of law must require adherence to international law obligations
assumed.
Executive discretion is never a good thing.
Broadest sense- can embody substantive features e.g. Justice or human
rights.
Often narrower- simply requires procedural conformity with established
laws.
Early 'rule of law' case: Entick v Carrington (1765)- King entered C's house,
C sued on grounds of trespass. Held practice was unlawful as government
also subject to law.
, Dicey rule of law 3 meanings:
* Absolute supremacy of regular law as opposed to influence of arbitrary power
+ excludes existence of wide discretionary authority.
* Equal subjection of all classes to the ordinary law.
* The constitution is the result of the ordinary law of the land. Rights of
individuals secured by ordinary private law remedies, not by guarantees in a
formal document.
Criticisms of Dicey:
* Modern governments function without wide discretionary powers in certain
areas e.g. social security.
* What if treated differently under the law?- Dicey didn't believe in the
existence of separate administrative courts.
* Common law gives better protection than a written constitution?
Some principles deriving from the rule of law:
1. All laws should be prospective, open and clear.
2. Laws should be relatively stable.
3. The making of particular laws should be guided by open, stable, clear and
general rules.
4. The independence of the judiciary must be guaranteed.
5. Principles of natural justice must be observed e.g. Open and fair hearings,
absence of bias.
Rule of Law + Police Powers:
* Police powers are ways that the law authorises someone to do something
that would otherwise be illegal e.g. Stopping someone and searching them.
These powers assigns and strictly defined through the Police and Criminal
Evidence Act under sections 1-5.
* Redmond-Bate v Director of Public Prosecutions (1999): Christian
Fundamentalists stopping people in the street to preach faith. Policeman feared a
breach of the peace. Arrested for obstructing a policeman in the course of his
duty. Held that the policeman could not compel a citizen a citizen of desist from
lawful conduct and that the ECHR article 10 includes speech that's offensive and
provocative.
Rule of Law + The Courts:
*To uphold and enforce the rule of law (particularly against the executive +
public bodies). Separation of powers important e.g. The need for an independent
+ impartial judiciary.
What is Constitutional Law?
Includes laws which regulate structure and functions of principle organs of
government and their relationship to one another and to the citizen.
Constitutionalism is a complex of ideas, attitudes and patterns of
behaviour elaborating the principle that the authority of government
derives from and is limited by a body of fundamental law. Idea that
government can + should be legally limited in its powers.
Devolution is where some powers are given in law to allow for limited
autonomous governing to take place in these countries (England,
Scotland, Wales + Northern Ireland), free from the full central control of
the UK State.
Political constitutionalism: Power and the making of law is and should be
legitimised through P.
Legal Constitutionalism: It is the law and legally enforceable rights that
have primacy as its these that create the conditions under which
government power can be limited.
Paine- Purpose of a constitution is to ensure that government operates by
consent and has moral legitimacy.
What is Administrative Law?
Concerned with the control of executive power e.g. Conduct of police/
NHS. Main concern is to ensure that executive power is exercised lawfully.
Constitutional + Administrative Law:
Together, sometimes referred to as Public Law. Regulates the following
relationships-
* Organ of state Organ of state
* State Citizen
* State Corporate bodies
What is a State?
A nation or territory considered as an organized political community under
one government.
United Kingdom= UK State
A state is a law. What makes it public?
A permanent population;
b. a defined territory;
c. a government; and
d. capacity to enter into relations with the other states.
,(Montevideo Convention on the Rights and Duties of States 1933 Article 1)
In terms of a 'government'- some organised means by which the state is
run. That will involve multiple organs of the state having distinct personnel
+ each having distinct functions.
What is Law?
Austin's view= 'A body of rules fixed and enforced by a sovereign political
authority'.
Hobbes' view= 'the formal glue that holds fundamentally disorganised
societies together'.
Other Dimensions of Law:
Private Law/ Civil law- settling disputes between individuals over 'wrongs'
one person inflicts on another in their private relationships e.g. Contract
law, tort law. Remedies include compensation, restoration.
Criminal Law= deals with offenses (crimes) and individual makes against
the state e.g. Murder, robbery. Sanctions include punishments- fines +
imprisonment.
Public Law= Law governing the conduct of public bodies.
Main issue in Constitutional + Administrative Law:
Max Weber defined the state as a 'human commodity that (successfully)
claims the monopoly of the legitimate use of physical force within a given
territory'.
The word 'legitimate' is of great significance for constitutional law e.g. The
effective limitation of power is the most important problem of social order.
,Constitutional and Administrative Law Notes 2
Separation of Powers:
1. Legislative= Parliament
2. Executive= Government
3. Judicial= Courts
Not a 'law' and therefore has no authority.
Either have separation of powers or you don't. Cant have partial
separation of powers.
The fact that the Executive in majority pretty much controls Parliament
shows that UK has no real separation of powers.
Monarch's involvement in all 3 branches of state in UK means we do not
have separation of powers.
The Rule of Law- Rationale, models and examples (ministerial + police powers +
courts):
Rule of man= dictatorship
Rule of law seeks to remove the arbitrariness and have a clear authority
for the law that overrides what an individual in authority thinks or wants.
Rule of law is thus one of the key constitutional principles applicable to all
modern constitutions. However, its meaning is far from precise + may
mean different things to different people at different times.
As we cannot agree on what the rule of law requires, it is of no use to us.
Judges who do not apply law passed through Parliament would be failing to
respect the constitution.
Judges not following instructions of governments are 'enemies of the
people'.
Rule of law must require adherence to international law obligations
assumed.
Executive discretion is never a good thing.
Broadest sense- can embody substantive features e.g. Justice or human
rights.
Often narrower- simply requires procedural conformity with established
laws.
Early 'rule of law' case: Entick v Carrington (1765)- King entered C's house,
C sued on grounds of trespass. Held practice was unlawful as government
also subject to law.
, Dicey rule of law 3 meanings:
* Absolute supremacy of regular law as opposed to influence of arbitrary power
+ excludes existence of wide discretionary authority.
* Equal subjection of all classes to the ordinary law.
* The constitution is the result of the ordinary law of the land. Rights of
individuals secured by ordinary private law remedies, not by guarantees in a
formal document.
Criticisms of Dicey:
* Modern governments function without wide discretionary powers in certain
areas e.g. social security.
* What if treated differently under the law?- Dicey didn't believe in the
existence of separate administrative courts.
* Common law gives better protection than a written constitution?
Some principles deriving from the rule of law:
1. All laws should be prospective, open and clear.
2. Laws should be relatively stable.
3. The making of particular laws should be guided by open, stable, clear and
general rules.
4. The independence of the judiciary must be guaranteed.
5. Principles of natural justice must be observed e.g. Open and fair hearings,
absence of bias.
Rule of Law + Police Powers:
* Police powers are ways that the law authorises someone to do something
that would otherwise be illegal e.g. Stopping someone and searching them.
These powers assigns and strictly defined through the Police and Criminal
Evidence Act under sections 1-5.
* Redmond-Bate v Director of Public Prosecutions (1999): Christian
Fundamentalists stopping people in the street to preach faith. Policeman feared a
breach of the peace. Arrested for obstructing a policeman in the course of his
duty. Held that the policeman could not compel a citizen a citizen of desist from
lawful conduct and that the ECHR article 10 includes speech that's offensive and
provocative.
Rule of Law + The Courts:
*To uphold and enforce the rule of law (particularly against the executive +
public bodies). Separation of powers important e.g. The need for an independent
+ impartial judiciary.
