• Constitutional and Administrative Law
Lecture one
▪ Brief introduction to public law
▪ Basic structure of the UK and its governmental institutions
▪ Parliamentary versus presidential systems
▪ Public Law - To be distinguished from private law
▪ How the state is constituted and its functions
▪ Provides the principles and rules that regulate the system of government.
▪ Concerns the public institutions that govern a country, the powers these have and the
relationships between them.
▪ Regulates the relationship between the individual and the state. It provides the means by
which the government is controlled and held to account.
▪ Public Law also provides the means by which people can secure the protection of their legal
and human rights against the government,
▪ Elliott and Thomas (p 3):
▪ “It is about governing”
▪ It “is concerned with how a state is constituted and functions”
▪ It “regulates the relationship between the individual and the state”
▪ Comprises constitutional law and administrative law
▪ At a basic level, Public Law is made up of 3 things:
▪ Institutions, constitutional principles, and constitutional practices, that is, how those
institutions and principles work in practice.
Institutions
▪ Basic structure of the UK
▪ Unitary state
▪ But three legal systems exist:
1. England and Wales
2. Scotland
, 3. Northern Ireland
▪ When Parliament legislates, it may do so for all the UK, for GB or separately for one or more
of the countries in the UK. These legislatures exercise executive powers. Courts exercise
judicial power.
▪ Basic structure of government
▪ 3 branches of government:
▪ Legislature (Parliament) – elected by people, the people’s views – hold government
account and makes laws.
▪ Executive (the ‘Government’) – most powerful
▪ Judiciary – the courts determine legal disputes or cases between litigants. Develop
and apply principles of common law – judge made law. Non political body – judges
are appointed not elected, apply law in independent way.
▪ We will discuss the separation between the branches later
▪ The UK is a Parliamentary democracy
▪ Parliamentary vs presidential
▪ Presidential
▪ President is directly elected
▪ His or her power is balanced by a legislature (eg Congress) that is also popularly
elected
▪ President has general responsibility for public affairs; but he or she may appoint
ministers
▪ Ministers are accountable to the President, not the legislature
▪ Egs, US, countries in Latin America
▪ Basic structure of government
▪ Legislature/Parliament
▪ Bicameral, but comprises two chambers:
▪ 1. House of Commons (primary chamber)
▪ 650 members (MPs) – popularly elected
▪ 2. House of Lords
▪ ~ 747 members – appointed, with some hereditary peers
Monarch (Queen)- power diverted from monarch to government
▪ Basic structure of government
, ▪ Executive/Government
▪ Comprises Prime Minister and Ministers
▪ By constitutional convention, all ministers (including PM) are members of either the
Commons or the Lords
▪ PM = normally the leader of the party that wins the most seats
Constitution
What is a constitution?
▪ Narrow meaning:
▪ a document that has a special legal status
▪ Sets out the framework and principal functions of the organs of government
▪ Declares the principles or rules by which those organs must operate
Often a high-ranking court which applies and interprets the text of the constitution in disputed cases
(eg SCOTUS or German CC)
▪ Wider meaning:
▪ = ‘the set of laws, rules and practices that create the basic institutions of the state, and its
component and related parts, and stipulate the powers of those institutions and the
relationship between the different institutions and between those institutions and the
individual’ (House of Lords Committee on the Constitution, 2001)
▪ In this sense, the UK does have a constitution, the UK constitution is unwritten.
▪ Consists of Acts of Parliament, judicial decisions, political practice and the procedures
established by various organs of government for carrying out their own tasks – these govern
the roles and powers of the executive, the legislature, and the judiciary – and relationship
between these bodies.
▪ But not one single document (ie uncodified); and not entrenched – so, not legal per se
▪ Legal constitutionalism has little historical basis in the UK
▪ But calls for a codified constitution in the UK
What does a constitution do?
▪ Outlines the institutions of state power – what they are, powers, how they work and interact
▪ Establish supreme rules - for using and regulating power – limits power of the government –
set rules in which the state should be governed.
▪ Regulates the relationship between the citizen and state – ensures people control the reigns
– makes sure democratic aspirations of the people become and remain a reality, harnesses
the power of the state – social change – write a new constitution – Norway 1814 – 1996 –
south Africa
▪ Often governs elections, participation
▪ May specify different regions and levels of government or communities
, Addresses relations with international organisations?
▪ Grants power, but often also limits it
▪ Fundamental rights as a constraint?
▪ May have enforcement for such constraints
▪ Symbolic function?
Three most important constitutional principles:
Parliamentary Sovereignty – “Parliament can make and unmake any law”. "no person or body is
recognised by the law of England as having a right to override or set aside the legislation of
Parliament" – Dicey
Courts cannot strike down legislation enacted by parliament as unconstitutional; can only interpret
and apply such legislation. Parliament cannot bind its successors. No entrenched legislation.
Parliament has supreme legal authority.
▪ Rule of Law – Government and public bodies are bound by the law. The courts review
government decisions to ensure they are in accordance with the law. Including legislation,
enacted by parliament. Law includes common law principles. Governs parliament
sovereignty – constraint on governmental power, see if government is exceeding power.
▪ Separation of Powers – Power is divided between Parliament, Government and Courts to
avoid overconcentration of power and ensure checks and balances in constitution – prevent
any individual institution – executive becoming too powerful.
Constitutional Practices -
▪ Principle of parliamentary sovereignty tells us parliament can enact whatever law it wants –
however the pricnople does nt determine which law will in practice be enacted at any time.
Depends on practical matter, such as relative balance of power between government and
parliament. If government has large majority in parliament, more likely to get its way.
▪ Government must be held to account for the exercise of its powers 0 in reality, ability of
parliament to scrutinise government is a practical matter – depending on parliament having
necessary information, time, and expertise.
▪ Rule of Law – What law actually requires in these circumstances is often disrupted and
uncertain – why cases are litigated beforte the courts – often at expense and time to those
involved. Need to study court judgments that explain practical application of legal principles
to determine the dispute between litigants and show what the law means in practice. We
also need to be aware of the practises of public law aswell as institutions and principles of
public law.
Constitutionalism
▪ Broader concept
▪ how we think of the conferral of and limitations on state power; how constitutional limits
are enforced
▪ In simplest terms, the idea that government does and/or should operate according to a set
of rules in a constitution
Lecture one
▪ Brief introduction to public law
▪ Basic structure of the UK and its governmental institutions
▪ Parliamentary versus presidential systems
▪ Public Law - To be distinguished from private law
▪ How the state is constituted and its functions
▪ Provides the principles and rules that regulate the system of government.
▪ Concerns the public institutions that govern a country, the powers these have and the
relationships between them.
▪ Regulates the relationship between the individual and the state. It provides the means by
which the government is controlled and held to account.
▪ Public Law also provides the means by which people can secure the protection of their legal
and human rights against the government,
▪ Elliott and Thomas (p 3):
▪ “It is about governing”
▪ It “is concerned with how a state is constituted and functions”
▪ It “regulates the relationship between the individual and the state”
▪ Comprises constitutional law and administrative law
▪ At a basic level, Public Law is made up of 3 things:
▪ Institutions, constitutional principles, and constitutional practices, that is, how those
institutions and principles work in practice.
Institutions
▪ Basic structure of the UK
▪ Unitary state
▪ But three legal systems exist:
1. England and Wales
2. Scotland
, 3. Northern Ireland
▪ When Parliament legislates, it may do so for all the UK, for GB or separately for one or more
of the countries in the UK. These legislatures exercise executive powers. Courts exercise
judicial power.
▪ Basic structure of government
▪ 3 branches of government:
▪ Legislature (Parliament) – elected by people, the people’s views – hold government
account and makes laws.
▪ Executive (the ‘Government’) – most powerful
▪ Judiciary – the courts determine legal disputes or cases between litigants. Develop
and apply principles of common law – judge made law. Non political body – judges
are appointed not elected, apply law in independent way.
▪ We will discuss the separation between the branches later
▪ The UK is a Parliamentary democracy
▪ Parliamentary vs presidential
▪ Presidential
▪ President is directly elected
▪ His or her power is balanced by a legislature (eg Congress) that is also popularly
elected
▪ President has general responsibility for public affairs; but he or she may appoint
ministers
▪ Ministers are accountable to the President, not the legislature
▪ Egs, US, countries in Latin America
▪ Basic structure of government
▪ Legislature/Parliament
▪ Bicameral, but comprises two chambers:
▪ 1. House of Commons (primary chamber)
▪ 650 members (MPs) – popularly elected
▪ 2. House of Lords
▪ ~ 747 members – appointed, with some hereditary peers
Monarch (Queen)- power diverted from monarch to government
▪ Basic structure of government
, ▪ Executive/Government
▪ Comprises Prime Minister and Ministers
▪ By constitutional convention, all ministers (including PM) are members of either the
Commons or the Lords
▪ PM = normally the leader of the party that wins the most seats
Constitution
What is a constitution?
▪ Narrow meaning:
▪ a document that has a special legal status
▪ Sets out the framework and principal functions of the organs of government
▪ Declares the principles or rules by which those organs must operate
Often a high-ranking court which applies and interprets the text of the constitution in disputed cases
(eg SCOTUS or German CC)
▪ Wider meaning:
▪ = ‘the set of laws, rules and practices that create the basic institutions of the state, and its
component and related parts, and stipulate the powers of those institutions and the
relationship between the different institutions and between those institutions and the
individual’ (House of Lords Committee on the Constitution, 2001)
▪ In this sense, the UK does have a constitution, the UK constitution is unwritten.
▪ Consists of Acts of Parliament, judicial decisions, political practice and the procedures
established by various organs of government for carrying out their own tasks – these govern
the roles and powers of the executive, the legislature, and the judiciary – and relationship
between these bodies.
▪ But not one single document (ie uncodified); and not entrenched – so, not legal per se
▪ Legal constitutionalism has little historical basis in the UK
▪ But calls for a codified constitution in the UK
What does a constitution do?
▪ Outlines the institutions of state power – what they are, powers, how they work and interact
▪ Establish supreme rules - for using and regulating power – limits power of the government –
set rules in which the state should be governed.
▪ Regulates the relationship between the citizen and state – ensures people control the reigns
– makes sure democratic aspirations of the people become and remain a reality, harnesses
the power of the state – social change – write a new constitution – Norway 1814 – 1996 –
south Africa
▪ Often governs elections, participation
▪ May specify different regions and levels of government or communities
, Addresses relations with international organisations?
▪ Grants power, but often also limits it
▪ Fundamental rights as a constraint?
▪ May have enforcement for such constraints
▪ Symbolic function?
Three most important constitutional principles:
Parliamentary Sovereignty – “Parliament can make and unmake any law”. "no person or body is
recognised by the law of England as having a right to override or set aside the legislation of
Parliament" – Dicey
Courts cannot strike down legislation enacted by parliament as unconstitutional; can only interpret
and apply such legislation. Parliament cannot bind its successors. No entrenched legislation.
Parliament has supreme legal authority.
▪ Rule of Law – Government and public bodies are bound by the law. The courts review
government decisions to ensure they are in accordance with the law. Including legislation,
enacted by parliament. Law includes common law principles. Governs parliament
sovereignty – constraint on governmental power, see if government is exceeding power.
▪ Separation of Powers – Power is divided between Parliament, Government and Courts to
avoid overconcentration of power and ensure checks and balances in constitution – prevent
any individual institution – executive becoming too powerful.
Constitutional Practices -
▪ Principle of parliamentary sovereignty tells us parliament can enact whatever law it wants –
however the pricnople does nt determine which law will in practice be enacted at any time.
Depends on practical matter, such as relative balance of power between government and
parliament. If government has large majority in parliament, more likely to get its way.
▪ Government must be held to account for the exercise of its powers 0 in reality, ability of
parliament to scrutinise government is a practical matter – depending on parliament having
necessary information, time, and expertise.
▪ Rule of Law – What law actually requires in these circumstances is often disrupted and
uncertain – why cases are litigated beforte the courts – often at expense and time to those
involved. Need to study court judgments that explain practical application of legal principles
to determine the dispute between litigants and show what the law means in practice. We
also need to be aware of the practises of public law aswell as institutions and principles of
public law.
Constitutionalism
▪ Broader concept
▪ how we think of the conferral of and limitations on state power; how constitutional limits
are enforced
▪ In simplest terms, the idea that government does and/or should operate according to a set
of rules in a constitution
