PUBLIC LAW
NOTES
Public law- set of rules established by the gov / state which governs the relationships between
individuals / entities and the state eg the UK constitution
Legislative- law making
DICEYAN ORTHODOXY
Albert Venn Dicey was a barrister and professor of law at uni of oxford- dicey analysed the uk
constitution through 2 principals
- Parlimentary sovereignty- dominante principle- legislative supremacy of the crown in
parliment- crown aka the king and his ministers- parliament meaning the house of lords
(higher) and house of commons (lower)- meaning crown in power in parliament can do
anything
- Rule of law- universal principle- No punishment without legal basis- equality before
the law- individual rights are enforced by common law
^ both are equally important however it depends on a states political and legal culture to
determine which is more valued
Stated athe importance of ultimate political realities- political facts including politically (but not
legally) binding conventions- challenged Alecander Tocqueville scepticim towards the creation
of the UK constitutions- because it is unwritten and uncoded- most recent edition of dicey’s
analysis is the 10th edition uploaded in 1985
DISCUSSION POINTS
- Prime ministers v presidents- uk prime minister is not directly elected as most presidents
are- they are crown appointees
- Unwritten constitutions of the world- israel new zealand saudi arabia UK- advantage is
the ability for constitutions to adapt and change to societal needs
- Evolutionary v revolutionary constitutions- UK constitutions has adapted and evolved
since 1066- is this beneficial or not
- Legal versus political interpretations of the UK constitution- what are the goods and bads
of judge made law can a constitution be purely political
Beyond legal principles lie Conventions, which reflect
prevailing political morality
Dicey wrote the ‘conventions of understandings, habits or practices which can regulate the
conduct of many members of sovereign powers- are not really laws since theyr are not enforced
by courts- the king will not refuse assent to a bill- eg king can choose as prime minister the
individual most able to command support of parliament but can legally appoint anyone he
wants- but the king cannot grant royal assent to a bil of uk parliament which is not consented by
the scottish parliament or welsh assembly- eg the removal of the eu
,PARLIAMENTARY SOVEREIGTY
Sovereignty- source of law making- the right for a state to govern itself
- CROWN IN PARLIAMENT- house of commons, house of lords, monarch- acts of
parliament- primary source of legislation in the UK
- MILLER & CHERRY- laws enacted by the crown in parliament are the supreme form of
law in our legal system which everyone including gov must comply under
Legal sovereignty- parliament - no legal limitations
Political sovereignty- with electorate- political limitations
ORIGINS OF PARLIAMENTARY SOVEREIGTY
Tension and battle for supremacy between monarch and parliament
- Glorious revolution
- Bill of rights 1688-89- not source of parliamentary sovereignty but key for the
development of parliaments authority
Powers of the monarchy formally reduced by parliament- the monarch cannot set aside
acts of parliaments or interfere with the process of electing members of parliament
MODERN CROWN IN PARLIMENT
UK parliament is
- House of commons- elected by public
- House of lords- appointed
- King / queen- heredity
The crown has in common law these crucial functions
- Opens and closes (prorogues / dissolves) Parliament
- Appoints the membership of the upper chamber of Parliament (the House of Lords)
- Grants royal assent to Bills passed by Parliament (creates primary legislation)
Officials of the system recognise parliamentary sovereignty but do not believe it is determined
by one institution
Parliamentary sovereignty as a rule of common law
- Acceptance by judges that Parliament has ultimate and unlimited authority [see Lord
Hope in Jackson [para.126]]
- Miller/Cherry [2019]: Parliamentary Sovereignty a ‘constitutional principle developed by
the common law’
England is described as the mother of parliaments- john bright (1811-1889)
^ this is the social and political doundation of diceys conception- Parliament was from its outset
progressive institution as an institution that held the monarch to account at the initiative of the
gentry and aristocracy
Parliament is legally unlimited- nothing is engraved in the uk constitution-
- it can legislate unconscionably
- Can amend its own term and existence- septennial act 1776, fixed term parliament act
2011, union with scotland act 1806 etc
- Can amend its powers over dominions and colonies eg nigeria independence act
1960 and statue of westminster 1931
, - Retrospective Effect- the War Damages Act 1965: Burmah Oil Company v Lord
Advocate [1965] AC 75
- Can assert facts (even if different to the evidence at hand)- Safety of Rwanda
(Asylum and Immigration) Act 2024, Declares Rwanda as a ‘safe country’ even though
courts have declared that it is not
- Disapply effect of international law within the UK, Safety of Rwanda (Asylum and
Immigration) Act 2024, sections 2-3, Disapplies Human Rights Act 1998 and
international treaties to any decision on whether Rwanda is a safe country to deport
asylum seekers
- Extra-territorial Effect:Jurisdiction outside the UK, Terrorist Asset-Freezing Act 2010
MODEL I- ENTRENCHMENT OF LEGISLATION NOT POSSIBLE
(WADE)
^ legally unlimited so can amend of unmake any past legislation
Entrenchment of legislation is not possible- continuing parliamentary sovereignty
EXPRESS REPEAL
- Any Act of Parliament can be amended or repealed with a simple majority
- No special status for legislation of constitutional importance e.g. Human Rights Act 1998
IMPLIED REPEAL
- The courts upholding parliamentary sovereignty by applying most recent Act of
Parliament
- Not binding current parliament to previous Acts of Parliament if conflict in
provisions
- Vauxhall Estates Ltd v Liverpool Corporation (1932)
- Ellen Street Estates v Minister of Health (1934)
But extent of Implied Repeal may be limited:
- ‘Constitutional Statutes’ (Thoburn v Sunderland CC)
- Form of entrenchment for some statutes where only express repeal possible?
MODEL II- MANNER AND FORM THEORY (NEW VIEW)
Can set procedural obligations on a future parliament
^ parliament can lay conditions on how and what forn of legislation is placed eg the referendum
on scottish and welsh parliaments- scotland act 2016
Parliament can redefine its own procedures
^ parliament acts 1911 & 1949- removed requirement of the house of lords approval under
certain conditions
^ does not effect the unlimited scope of legal sovereignty just the process of passing an act-
parliament regulates itself
- Enrolled Bill Rule: Edinburgh & Dalkeith Railway Co v Wauchope (1842)- ‘All that a court
of justice can look to is the parliamentary roll’
Procedure cannot be challenged
- Pickin: ‘The court has no concern with the manner in which parliament or its officers
carry out its standing orders.’
- Manner and Form – Parliament to regulate this itself - not an issue for the courts- R
(Jackson) v Attorney General (2005): Parliament Acts 1911 and 1949
, COMMON LAW- PRINCIPLE OF LEGALITY
- Parliament must be clear in its words and intentions if it wishes to legislate
contrary to common law rights (Lord Hoffmann in Simms [2000] 2 AC 115, 131)
- Presumption that Parliament would not intend to legislate to exclude the courts
from reviewing government action (ouster clauses):
- Anisminic (1969): Act notes that decisions ‘shall not be called in question
in any court of law’
- Privacy International (2019)
- Ousting the jurisdiction of the court could only be done by clear and
explicit words
STATUTES- INTERPRETATION CLAUSES
- Section 3 Human Rights Act 1998 allows courts to interpret laws consistently with the
ECHR
- But is ‘interpretation’ subverting or upholding the intention of Parliament?
- Ghaidan v Godin-Mendoza
- Declaration of Incompatibility
- section 4 Human Rights Act 1998 limits the extent of interpretation
- Courts cannot set aside Acts even if contrary to the ECHR – flags the issue for
Parliament and Government to amend if they wish
RULE OF LAW
Parliamentary sovereignty not an unchangeable political fact but a legal principle that can be
reinterpreted (Elliott & Thomas)
- R (Jackson) v Attorney General (2005) Lord Steyn, [102]:
- “The classic account given by Dicey of the doctrine of the supremacy of Parliament,
pure and absolute as it was, can now be seen to be out of place in the modern United
Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our
constitution. It is a construct of the common law. The judges created this principle.
If that is so, it is not unthinkable that circumstances could arise where the courts
may have to qualify a principle established on a different hypothesis of
constitutionalism.”
- Contrast with Lord Bingham, The Rule of Law (2011) Chapter 12:
- ‘Parliament has power, subject to limited, self-imposed restraints, to legislate as
it wishes; in which Parliament may therefore legislate in a way which infringes
the rule of law; and in which the judges, consistently with their constitutional duty
to administer justice according to the laws and usages of the realm, cannot fail to
give effect to such legislation if it is clearly and unambiguously expressed.’ (168)
RULE OF LAW
Rule of law- universal principle of the uk constitution in Diceys introduction to the study of the
law of the constitution
3 MEANINGS OF RULE OF LAW
NOTES
Public law- set of rules established by the gov / state which governs the relationships between
individuals / entities and the state eg the UK constitution
Legislative- law making
DICEYAN ORTHODOXY
Albert Venn Dicey was a barrister and professor of law at uni of oxford- dicey analysed the uk
constitution through 2 principals
- Parlimentary sovereignty- dominante principle- legislative supremacy of the crown in
parliment- crown aka the king and his ministers- parliament meaning the house of lords
(higher) and house of commons (lower)- meaning crown in power in parliament can do
anything
- Rule of law- universal principle- No punishment without legal basis- equality before
the law- individual rights are enforced by common law
^ both are equally important however it depends on a states political and legal culture to
determine which is more valued
Stated athe importance of ultimate political realities- political facts including politically (but not
legally) binding conventions- challenged Alecander Tocqueville scepticim towards the creation
of the UK constitutions- because it is unwritten and uncoded- most recent edition of dicey’s
analysis is the 10th edition uploaded in 1985
DISCUSSION POINTS
- Prime ministers v presidents- uk prime minister is not directly elected as most presidents
are- they are crown appointees
- Unwritten constitutions of the world- israel new zealand saudi arabia UK- advantage is
the ability for constitutions to adapt and change to societal needs
- Evolutionary v revolutionary constitutions- UK constitutions has adapted and evolved
since 1066- is this beneficial or not
- Legal versus political interpretations of the UK constitution- what are the goods and bads
of judge made law can a constitution be purely political
Beyond legal principles lie Conventions, which reflect
prevailing political morality
Dicey wrote the ‘conventions of understandings, habits or practices which can regulate the
conduct of many members of sovereign powers- are not really laws since theyr are not enforced
by courts- the king will not refuse assent to a bill- eg king can choose as prime minister the
individual most able to command support of parliament but can legally appoint anyone he
wants- but the king cannot grant royal assent to a bil of uk parliament which is not consented by
the scottish parliament or welsh assembly- eg the removal of the eu
,PARLIAMENTARY SOVEREIGTY
Sovereignty- source of law making- the right for a state to govern itself
- CROWN IN PARLIAMENT- house of commons, house of lords, monarch- acts of
parliament- primary source of legislation in the UK
- MILLER & CHERRY- laws enacted by the crown in parliament are the supreme form of
law in our legal system which everyone including gov must comply under
Legal sovereignty- parliament - no legal limitations
Political sovereignty- with electorate- political limitations
ORIGINS OF PARLIAMENTARY SOVEREIGTY
Tension and battle for supremacy between monarch and parliament
- Glorious revolution
- Bill of rights 1688-89- not source of parliamentary sovereignty but key for the
development of parliaments authority
Powers of the monarchy formally reduced by parliament- the monarch cannot set aside
acts of parliaments or interfere with the process of electing members of parliament
MODERN CROWN IN PARLIMENT
UK parliament is
- House of commons- elected by public
- House of lords- appointed
- King / queen- heredity
The crown has in common law these crucial functions
- Opens and closes (prorogues / dissolves) Parliament
- Appoints the membership of the upper chamber of Parliament (the House of Lords)
- Grants royal assent to Bills passed by Parliament (creates primary legislation)
Officials of the system recognise parliamentary sovereignty but do not believe it is determined
by one institution
Parliamentary sovereignty as a rule of common law
- Acceptance by judges that Parliament has ultimate and unlimited authority [see Lord
Hope in Jackson [para.126]]
- Miller/Cherry [2019]: Parliamentary Sovereignty a ‘constitutional principle developed by
the common law’
England is described as the mother of parliaments- john bright (1811-1889)
^ this is the social and political doundation of diceys conception- Parliament was from its outset
progressive institution as an institution that held the monarch to account at the initiative of the
gentry and aristocracy
Parliament is legally unlimited- nothing is engraved in the uk constitution-
- it can legislate unconscionably
- Can amend its own term and existence- septennial act 1776, fixed term parliament act
2011, union with scotland act 1806 etc
- Can amend its powers over dominions and colonies eg nigeria independence act
1960 and statue of westminster 1931
, - Retrospective Effect- the War Damages Act 1965: Burmah Oil Company v Lord
Advocate [1965] AC 75
- Can assert facts (even if different to the evidence at hand)- Safety of Rwanda
(Asylum and Immigration) Act 2024, Declares Rwanda as a ‘safe country’ even though
courts have declared that it is not
- Disapply effect of international law within the UK, Safety of Rwanda (Asylum and
Immigration) Act 2024, sections 2-3, Disapplies Human Rights Act 1998 and
international treaties to any decision on whether Rwanda is a safe country to deport
asylum seekers
- Extra-territorial Effect:Jurisdiction outside the UK, Terrorist Asset-Freezing Act 2010
MODEL I- ENTRENCHMENT OF LEGISLATION NOT POSSIBLE
(WADE)
^ legally unlimited so can amend of unmake any past legislation
Entrenchment of legislation is not possible- continuing parliamentary sovereignty
EXPRESS REPEAL
- Any Act of Parliament can be amended or repealed with a simple majority
- No special status for legislation of constitutional importance e.g. Human Rights Act 1998
IMPLIED REPEAL
- The courts upholding parliamentary sovereignty by applying most recent Act of
Parliament
- Not binding current parliament to previous Acts of Parliament if conflict in
provisions
- Vauxhall Estates Ltd v Liverpool Corporation (1932)
- Ellen Street Estates v Minister of Health (1934)
But extent of Implied Repeal may be limited:
- ‘Constitutional Statutes’ (Thoburn v Sunderland CC)
- Form of entrenchment for some statutes where only express repeal possible?
MODEL II- MANNER AND FORM THEORY (NEW VIEW)
Can set procedural obligations on a future parliament
^ parliament can lay conditions on how and what forn of legislation is placed eg the referendum
on scottish and welsh parliaments- scotland act 2016
Parliament can redefine its own procedures
^ parliament acts 1911 & 1949- removed requirement of the house of lords approval under
certain conditions
^ does not effect the unlimited scope of legal sovereignty just the process of passing an act-
parliament regulates itself
- Enrolled Bill Rule: Edinburgh & Dalkeith Railway Co v Wauchope (1842)- ‘All that a court
of justice can look to is the parliamentary roll’
Procedure cannot be challenged
- Pickin: ‘The court has no concern with the manner in which parliament or its officers
carry out its standing orders.’
- Manner and Form – Parliament to regulate this itself - not an issue for the courts- R
(Jackson) v Attorney General (2005): Parliament Acts 1911 and 1949
, COMMON LAW- PRINCIPLE OF LEGALITY
- Parliament must be clear in its words and intentions if it wishes to legislate
contrary to common law rights (Lord Hoffmann in Simms [2000] 2 AC 115, 131)
- Presumption that Parliament would not intend to legislate to exclude the courts
from reviewing government action (ouster clauses):
- Anisminic (1969): Act notes that decisions ‘shall not be called in question
in any court of law’
- Privacy International (2019)
- Ousting the jurisdiction of the court could only be done by clear and
explicit words
STATUTES- INTERPRETATION CLAUSES
- Section 3 Human Rights Act 1998 allows courts to interpret laws consistently with the
ECHR
- But is ‘interpretation’ subverting or upholding the intention of Parliament?
- Ghaidan v Godin-Mendoza
- Declaration of Incompatibility
- section 4 Human Rights Act 1998 limits the extent of interpretation
- Courts cannot set aside Acts even if contrary to the ECHR – flags the issue for
Parliament and Government to amend if they wish
RULE OF LAW
Parliamentary sovereignty not an unchangeable political fact but a legal principle that can be
reinterpreted (Elliott & Thomas)
- R (Jackson) v Attorney General (2005) Lord Steyn, [102]:
- “The classic account given by Dicey of the doctrine of the supremacy of Parliament,
pure and absolute as it was, can now be seen to be out of place in the modern United
Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our
constitution. It is a construct of the common law. The judges created this principle.
If that is so, it is not unthinkable that circumstances could arise where the courts
may have to qualify a principle established on a different hypothesis of
constitutionalism.”
- Contrast with Lord Bingham, The Rule of Law (2011) Chapter 12:
- ‘Parliament has power, subject to limited, self-imposed restraints, to legislate as
it wishes; in which Parliament may therefore legislate in a way which infringes
the rule of law; and in which the judges, consistently with their constitutional duty
to administer justice according to the laws and usages of the realm, cannot fail to
give effect to such legislation if it is clearly and unambiguously expressed.’ (168)
RULE OF LAW
Rule of law- universal principle of the uk constitution in Diceys introduction to the study of the
law of the constitution
3 MEANINGS OF RULE OF LAW
