Public law lecture notes

Public law

Content Page Number
Introduction to constitutional law 2-3
Sources and Institutions of the UK Constitution 4-7
Separation of powers 8-11
Parliamentary sovereignty 12-16
Human rights 18-23
Structure of the UK government 24-27
Responsible government 28-32
Royal Prerogative 33-38
Police Powers 39-53
Public law and Human Rights 54-55
Public Order Offences 56-58
Rule of law 59
Judicial review 60-61
Irrationality and Human Rights 62-66




1

,Introduction to constitutional law

 Public law is about the state
 Public law is all about power
 It includes constitutional law, administrative law and human rights
 Role of admin law is to correct those with power
 Human Rights introduces a framework of rights, comes from the European Convention of
Human Rights

Constitutional law
 Constitutional law is all the law that relates to the constitution
- It identifies the sources, purposes, uses and restraints on public power
- It is the law behind all the other law
- It legitimatises and authorises the ordinary law of the land giving it validity
- It is concerned with legal form and process rather than content
- Regulation of the relationship between citizen and state
- “Constitutional law is concerned with conflicts between groups struggling for power and
between those in power and individuals’ (Alder, 2017)
- It is a codification of the laws of the land
- Constitutional law regulates the composition and powers of the organs of state
government:
1) Legislature – law making body
2) Executive – The administration (formulates policy) – The Queen, appoints the PM
3) Judiciary – The courts

What does a constitution look like?

 Formal document that outlines key rules
 Normally a written document
 Special legal sanctity
 It is a higher form of law
 A good constitution is simple to identify and access, and easy to understand
 Constitutions can be quite rigid and generally inflexible
 But the UK does not have this

Purposes of a constitution:

 Prevention of Tyranny (cruel and oppressive government)
 Creation of a democratic order
 Organised government




2

,Classification of constitutional
Supreme Subordinate
 Legislative powers unlimited  Legislative powers limited by higher
authority (the constitution) e.g. USA


Rigid Flexible
 Certain aspects unalterable  Laws not entrenched
 Difficult to change  Can respond quickly to change
 Special procedures  No special procedure
 US – 2/3 congress and 3/4 of states to ratify  UK/ Norway/ France
Written Unwritten
 Single legal document  Diverse sources
 Clear statement of basic values  Less certain and clear
 Superior – Enforceable in a supreme  No special status – part of the ordinary law of
court the land
 A higher form of law  UK/ Israel/ New Zealand



Separated powers Fused powers
 Clearly defined allocation of power  Power can be in the hands of one
institution. Totalitraian state (prohibits
opposition parties)

Federal Unitary
 Division of power between central  No separate provincial government
government and individual states (different  UK?
laws at different states)  Power can be devolved e.g. Scottish
 USA/ Canada/ Australia Parliament

Presidential Parliamentary
 Separation of Legislature and Executive  Legislature /Executive functions merged
functions

Monarchical Republican
 Monarch as Head of state  President as head of state
 UK/ Thailand  In some republics the president is the head
of state and the government



Main features of the UK constitution

 Largely unwritten
 Evolutionary (evolved over time)
 Flexible (but with continuity)
 Supreme – Parliamentary sovereignty
 Balance of power?
 Unitary?
 Parliamentary
 Monarch retains a constitutional role

Sources and Institutions of the UK Constitution

3

,  According to BollingBroke (17430:
 “By constitution we mean that assemblage of laws, institutions, and customs derived from
certain fixed principles of reason, that compose the general system, according to which the
community has agreed to be governed’

 Paragraph 39 of the supreme court (Miller case)
- Although the UK does not have a single document entitled “The Constitution” it nevertheless
possesses a constitution, established over the course of our history by common law,
statutes, conventions and practise.

Institutions

 Legislature – The crown, The house of commons, The House of Lords
 Executive - (Queen, who then appoints the PM, who appoints his ministers)
 Judiciary (courts) – E.g. Supreme Court

Assemblage of laws – Magna Carta

 Magna Carta – Means big charter
 King John – worst king in history, had to introduce the magna carter so he didn’t have
absolute power
 Means that those in power are accountable to those not in power

Assemblage of laws – Statutes (Acts of Parliament)

 Bill of Rights 1688/9 –
- Unlawful for the monarch to pass a law without the consent of parliament
- Monarch cannot raise an army without parliaments consent
- Monarch can’t raise taxation without parliaments consent
 Act of Settlement 1700
- Those in line have to be a communicant of the Church of England
- Judge can only be removed by a motion of both houses of parliament (impeachment)
 Act of Union 1706/1707
 Parliament Acts 1911 and 1949
- Establish the authority of the House of Commons over the House of Lords
- House of Lords can be bypassed
 Representation of the People Act 1928
- Extended that woman can vote, not just men




Assemblage of laws – Statutes


4