Foundations of Public Law Intro Week 3
Le Sueur, Sunkin & Murkens, Public Law: Text, Cases, and Materials (5th
edition, 2023)
We can say Public Law is about:
- The individual and the state
- Institutions
- Public Power
- Judicial review of administrative Action …etc
‘Public law is concerned with how a state is constituted and functions.
Public law provides the principles and rules that regulate the system of government in a
particular country.
It concerns the public institutions that together govern a country, the powers of those
institutions, and the relationships between them.
Public law also 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 individuals can secure the protection of their
legal and human rights against the government.’
Elliott and Thomas, CH 1, p.3 (emphasis added)
Constitutional Principles:
- Parliamentary Sovereignty (in UK)
- Rule of Law
- Separation of Powers
Elliott and Thomas, Ch 1, p.4-5
Constitutional and Administrative Law
Constitutional Law - overall constitutional structure by which a country is governed
‘is concerned with overall constitutional structure by which a country is governed’ (elliott and
thomas ch1 p.3
Administrative Law - ‘the law relating to the control of governmental power … The
Governmental power in question is not that of Parliament … The primary purpose of
Administrative LAw, therefore, is to keep the powers of government within their legal bounds,
so as to protect citizen against their abuse
Wade and Forsyth, Administrative Law 11th ed (OUP 2014) p.4
,6 Key Points about UK Public Law
1. Uncodified Constitution
The uk constitution is a constitution which is not contained within a single written document
(titled as the constitution).
2. Parliamentary Sovereignty
There are no limits whatsoever (absolute and unlimited power) as to what parliament can do
or legislate in the uk
3. Parliamentary System
4. UK Supreme Court is not a ‘Constitutional Court’
It doesn't have the power to review the constitutionality of the Acts of Parliament.
5. Devolution
Transfer of power from Westminster to Scotland, Wales and Northern Ireland
6. The UK has left the EU, but not the Council of Europe/ECHR
Week 4 Lecture 2 - notion of a constitution and the uncodified UK
constitution
Part 1: The notion of a constitution and the codified UK constitution
Significance
- Status as the highest form of law in the country
- The Legislature (parliament) ‘does not have unlimited power but may legislate only
within a framework established by the constitution’
- ‘A court, either court or a specialist constitutional court, is given the task of
adjudicating whether the constitution has been breached. If legislation is contrary to
the constitution the court rules against it (the legislation is invalid)
- NONE of this applies to the UK
,The constitution as a system
- Beyond codified documents
‘‘A constitution is the set of important rules that regulate the relations among the
different parts of the government of a given country and also the relations between
the different parts of the government and the people of the country’
A. King, Does the United Kingdom Still Have a Constitution? (2001, London: Sweet
& Maxwell), p. 3, cited in Le Sueur et al, p. 8
The constitution will most probably also contain general rules
- Particular technical matters will not usually be addressed in a constitution
- But rather be left to legislature and administration to specify
In a constitution we can expect to find:
- Rules about institutions
- Fundamental Human Rights
- Provisions about the amendment of the constitution
Institutions include:
The constitution of the UK
- The UK does not have a codified Constitution (often classified as ‘unwritten’)
- The UK does have a constitutional system, Constitutional rules still exist.
Why has the UK avoided Codification?
- Political stability
- No revolution; ‘Democracy came to Britain by evolution rather than revolution’
- No support from major political parties
, Consequences from lack of codification
- No higher source than Acts of Parliament, Parliamentary Sovereignty
- No formal process of amendment. Extreme flexibility
- Wide range of reforms over the last decades in particular
Should the UK constitution be codified?
Arguments Against:
- An Act of parliament can change the constitution (flexibility)
- There is no rigorous, lengthy process of amendment
- Prevents constitutional deadlock and enables quick adaptation
- When major interventions were needed, these were introduced by an Act of
Parliament. E.g, Labour reform
- Devolution
- Politics would also be constrained
- Shift of power from parliament to the courts (judges)
Arguments For:
- It is undesirable for parliament to hold legally unlimited power (parliamentary
Sovereignty)
- Executive granted too much power as executive generally dominates parliament
- Citizens do not have long term certainty over their rights and responsibilities.
Accessibility and legal certainty
- Civil servants and parliamentarians would be able to perform duties with greater
clarity
- HR are not sufficiently protected
- A fair and inclusive process of drafting the constitution would foster identity and
increase public confidence in branches of government
- Overall less uncertainty especially on developments such as brexit.
Le Sueur, Sunkin & Murkens, Public Law: Text, Cases, and Materials (5th
edition, 2023)
We can say Public Law is about:
- The individual and the state
- Institutions
- Public Power
- Judicial review of administrative Action …etc
‘Public law is concerned with how a state is constituted and functions.
Public law provides the principles and rules that regulate the system of government in a
particular country.
It concerns the public institutions that together govern a country, the powers of those
institutions, and the relationships between them.
Public law also 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 individuals can secure the protection of their
legal and human rights against the government.’
Elliott and Thomas, CH 1, p.3 (emphasis added)
Constitutional Principles:
- Parliamentary Sovereignty (in UK)
- Rule of Law
- Separation of Powers
Elliott and Thomas, Ch 1, p.4-5
Constitutional and Administrative Law
Constitutional Law - overall constitutional structure by which a country is governed
‘is concerned with overall constitutional structure by which a country is governed’ (elliott and
thomas ch1 p.3
Administrative Law - ‘the law relating to the control of governmental power … The
Governmental power in question is not that of Parliament … The primary purpose of
Administrative LAw, therefore, is to keep the powers of government within their legal bounds,
so as to protect citizen against their abuse
Wade and Forsyth, Administrative Law 11th ed (OUP 2014) p.4
,6 Key Points about UK Public Law
1. Uncodified Constitution
The uk constitution is a constitution which is not contained within a single written document
(titled as the constitution).
2. Parliamentary Sovereignty
There are no limits whatsoever (absolute and unlimited power) as to what parliament can do
or legislate in the uk
3. Parliamentary System
4. UK Supreme Court is not a ‘Constitutional Court’
It doesn't have the power to review the constitutionality of the Acts of Parliament.
5. Devolution
Transfer of power from Westminster to Scotland, Wales and Northern Ireland
6. The UK has left the EU, but not the Council of Europe/ECHR
Week 4 Lecture 2 - notion of a constitution and the uncodified UK
constitution
Part 1: The notion of a constitution and the codified UK constitution
Significance
- Status as the highest form of law in the country
- The Legislature (parliament) ‘does not have unlimited power but may legislate only
within a framework established by the constitution’
- ‘A court, either court or a specialist constitutional court, is given the task of
adjudicating whether the constitution has been breached. If legislation is contrary to
the constitution the court rules against it (the legislation is invalid)
- NONE of this applies to the UK
,The constitution as a system
- Beyond codified documents
‘‘A constitution is the set of important rules that regulate the relations among the
different parts of the government of a given country and also the relations between
the different parts of the government and the people of the country’
A. King, Does the United Kingdom Still Have a Constitution? (2001, London: Sweet
& Maxwell), p. 3, cited in Le Sueur et al, p. 8
The constitution will most probably also contain general rules
- Particular technical matters will not usually be addressed in a constitution
- But rather be left to legislature and administration to specify
In a constitution we can expect to find:
- Rules about institutions
- Fundamental Human Rights
- Provisions about the amendment of the constitution
Institutions include:
The constitution of the UK
- The UK does not have a codified Constitution (often classified as ‘unwritten’)
- The UK does have a constitutional system, Constitutional rules still exist.
Why has the UK avoided Codification?
- Political stability
- No revolution; ‘Democracy came to Britain by evolution rather than revolution’
- No support from major political parties
, Consequences from lack of codification
- No higher source than Acts of Parliament, Parliamentary Sovereignty
- No formal process of amendment. Extreme flexibility
- Wide range of reforms over the last decades in particular
Should the UK constitution be codified?
Arguments Against:
- An Act of parliament can change the constitution (flexibility)
- There is no rigorous, lengthy process of amendment
- Prevents constitutional deadlock and enables quick adaptation
- When major interventions were needed, these were introduced by an Act of
Parliament. E.g, Labour reform
- Devolution
- Politics would also be constrained
- Shift of power from parliament to the courts (judges)
Arguments For:
- It is undesirable for parliament to hold legally unlimited power (parliamentary
Sovereignty)
- Executive granted too much power as executive generally dominates parliament
- Citizens do not have long term certainty over their rights and responsibilities.
Accessibility and legal certainty
- Civil servants and parliamentarians would be able to perform duties with greater
clarity
- HR are not sufficiently protected
- A fair and inclusive process of drafting the constitution would foster identity and
increase public confidence in branches of government
- Overall less uncertainty especially on developments such as brexit.
