PUBLIC LAW
Prepared by Reno Nga & EC Teh
© Student Counsel (Version 2020)
Subscribe to our Facebook page – Student Counsel
, TOPICAL NOTES
1. Sources of Constitution
2. Parliamentary Supremacy
3. Rule of Law
4. Separation of Powers
5. European Sources
6. Conventions
7. Royal Prerogative
8. Judicial Review
PAST YEAR QUESTIONS & ANSWERS
9. Past Year Questions Analysis
10. Unwritten Constitution
11. Conventions
12. Rule of Law
13. Separation of Powers
14. Parliamentary Sovereignty & European Union Law
15. Royal Prerogative
16. Human Rights Act 1998
17. Judicial Review
, © prepared by Reno Nga Sources of Constitution
Acts of Parliament Common Law European Sources Non-Legal Sources
In the absence of written constitution, the It is well-known that there is an absence of a There are 2 principal forms of European law which There are many important constitutional matters
ultimate law-making power lies with Parliament written codified constitution in the United are sources of constitution, ie (1) European in the UK for which no law exists. In such
(the House of Commons & House of Lords) and the Kingdom which legally restrains the actions of the Convention on Human Rights, and (2) European instances, it is necessary to resort to non-legal
Crown. government and controls the exercise of public Union law. constitutional sources, also known as
This concept is known as “Parliamentary power. It is important to understand that these are Constitutional Conventions.
Sovereignty” or “Parliamentary Supremacy”. As such, the Rule of Law and the Separation of separate and distinct forms of law with differing What?
In A.V. Dicey’s view, parliamentary sovereignty Powers have a particularly important role to play origins and aims and having separate institutions o A.V Dicey described it as “…understandings,
entails 3 principal aspects, namely:- within the UK’s unwritten constitution. and personnel. habits or practices which, though they may
o Parliament can legislate on any subject- They allocate and restrain power so as to ensure European Convention on Human Rights (ECHR):- regulate the…conduct of several members of
matter: that the constitutional system remains o Origins: the sovereign power…are not in reality laws at
legislate retrospectively (eg, War Damages accountable and limited. Drafted by the Council of Europe after the all since they are enforced by the court.”
Act 1961) Although the court has no power to question the World War II. o In other words, conventions are sets of non-
recognise international law (eg, European validity of an Act of Parliament, however the court o Aims: legal rules which regulate the conduct of all
Communities Act 1972) has the duty to uphold the Rule of Law and To provide European-wide protection of actors on the constitutional stage, ie the
leave the European Union (European Separation of Powers. citizens’ civil and political rights against Crown, Parliament, the executive and the
Union Referendum Act 2015 and What is “Rule of Law”? encroachment by state authorities. judiciary.
European Union (Notification of A.V Dicey in his book The Law of the Constitution o Recognition: o Conventions are not enforceable in the courts
Withdrawal) Act 2017) (1885) has given the following three implications Convention rights are not enforceable in UK and there are no judicial remedies or penalties
o No Parliament can be bound by its of the doctrine of rule of law: until the Human Rights Act 1998 came into if conventions are violated.
predecessor nor bind its successor: o No man is punished except for a breach of force. o To breach a Constitutional Convention is to act
Parliament can’t bind future Parliaments, law; o Institutions & Personnel: unconstitutionally but not unlawfully.
so a future Parliament could always o Equality before the law; and Council of Europe Why?
change an Act of Parliament. o The rights of the individual as defined and European Court of Human Rights (ECtHR) o People might abide by rules based on their
Parliament could repeal or amend any Act enforced by courts of law. European Union (EU):- own sense of morality, or because the
totally or partially. **We will discuss further in the Chapter of “Rule o Origins: majority of people respect a certain system of
where there are 2 inconsistent Acts of of Law”. Like the ECHR, the original European rules.
Parliament, under the doctrine of implied What is “Separation of Powers”? Communities (now the EU) were products of o Government of the day tends to abide to
repeal, the later Act is deemed to have Bradley and Ewing noted that the doctrine may World War II. conventions because a breach of Convention
impliedly repealed the earlier Act, to the mean at least 3 different things: o Aims: would often lead to public criticism and would
extent that the two Acts are compatible o Same persons should not form part of more To impose supra-national controls over the consequently result in a loss of respect or
(Ellen Street Estates Ltd v Minister of than one of the three organs of government; raw materials of war and to provide for a popular support.
Health (1934)). o One organ of government should not control common market for the free movement of How?
however, a constitutional statute (eg, or interfere with the work of another; and goods, service, capital and workers. Conventions are established through precedent,
European Communities Act 1972) could o One organ of government should not exercise o Recognition: so there must be a record of conventions being
not be impliedly repealed (Thoburn v the functions of another. EU law enters into UK domestic law under the followed for a period.
Sunderland City Council (2002)). **We will discuss further in the Chapter of European Communities Act 1972. Examples of Conventions:-
o Nobody can challenge the validity of an Act of “Separation of Powers”. o Institutions & Personnel: o The Queen will appoint the leader of the
Parliament: How to uphold the Rule of Law and Separation of European Council political party as Prime Minister;
the courts can’t question the validity of an Powers? European Commission o If an individual minister loses the confidence
Act of Parliament (Pickin v British Railways o Declarations of incompatibility (see s.4 of European Parliament vote, he/she must resign;
Board (1974)). Human Rights Act 1998); and European Court of Justice o Ministers of the Crown are individually and
c/f Lord Woolf argued that “if Parliament o Judicial Review. collectively responsible to Parliament (or
did the unthinkable… ultimately there are **We will discuss further in the Chapter of known as Ministerial Responsibility); and
even limits on the supremacy of “Human Rights Act” and “Judicial Review”. o The Queen should act on the advice of the
Parliament, which it is the courts' Prime Minister, eg prorogation of Parliament.
inalienable responsibility to identify and
uphold…”
Although the British constitution is usually characterised as “unwritten” there are in fact numerous written sources which can clearly be identified as constitutional.
As such, Magna Carta 1215; the Bill of Rights 1689; the Act of Union 1706 and 1707; the Parliament Acts 1911 and 1949; the European Communities Act 1972; and the Human Rights Act 1998.
Accordingly, it is strictly speaking more accurate to describe the constitution as not codified.
By this is meant that not all the rules, written or unwritten, have ever been consolidated into a single document which we can refer to as “the constitution”.
, © prepared by Reno Nga Sources of Constitution
Acts of Parliament Constitutional Conventions
Parliamentary Supremacy Party with the majority forms a
can legislate on any subject-matter; government
not bound by its predecessor; and Vote of No Confidence
unchallengeable. Ministerial Responsibility
Regulate & Abide
Sources
Recognise & Repeal of Unenforceable
Constitution
European Law Common Law
Rule of Law;
European Convention on Human
Separation of Powers;
Rights; and
Declarations of Incompatibility; and
European Union Law.
Judicial Review.
Implement & Interpret
Prepared by Reno Nga & EC Teh
© Student Counsel (Version 2020)
Subscribe to our Facebook page – Student Counsel
, TOPICAL NOTES
1. Sources of Constitution
2. Parliamentary Supremacy
3. Rule of Law
4. Separation of Powers
5. European Sources
6. Conventions
7. Royal Prerogative
8. Judicial Review
PAST YEAR QUESTIONS & ANSWERS
9. Past Year Questions Analysis
10. Unwritten Constitution
11. Conventions
12. Rule of Law
13. Separation of Powers
14. Parliamentary Sovereignty & European Union Law
15. Royal Prerogative
16. Human Rights Act 1998
17. Judicial Review
, © prepared by Reno Nga Sources of Constitution
Acts of Parliament Common Law European Sources Non-Legal Sources
In the absence of written constitution, the It is well-known that there is an absence of a There are 2 principal forms of European law which There are many important constitutional matters
ultimate law-making power lies with Parliament written codified constitution in the United are sources of constitution, ie (1) European in the UK for which no law exists. In such
(the House of Commons & House of Lords) and the Kingdom which legally restrains the actions of the Convention on Human Rights, and (2) European instances, it is necessary to resort to non-legal
Crown. government and controls the exercise of public Union law. constitutional sources, also known as
This concept is known as “Parliamentary power. It is important to understand that these are Constitutional Conventions.
Sovereignty” or “Parliamentary Supremacy”. As such, the Rule of Law and the Separation of separate and distinct forms of law with differing What?
In A.V. Dicey’s view, parliamentary sovereignty Powers have a particularly important role to play origins and aims and having separate institutions o A.V Dicey described it as “…understandings,
entails 3 principal aspects, namely:- within the UK’s unwritten constitution. and personnel. habits or practices which, though they may
o Parliament can legislate on any subject- They allocate and restrain power so as to ensure European Convention on Human Rights (ECHR):- regulate the…conduct of several members of
matter: that the constitutional system remains o Origins: the sovereign power…are not in reality laws at
legislate retrospectively (eg, War Damages accountable and limited. Drafted by the Council of Europe after the all since they are enforced by the court.”
Act 1961) Although the court has no power to question the World War II. o In other words, conventions are sets of non-
recognise international law (eg, European validity of an Act of Parliament, however the court o Aims: legal rules which regulate the conduct of all
Communities Act 1972) has the duty to uphold the Rule of Law and To provide European-wide protection of actors on the constitutional stage, ie the
leave the European Union (European Separation of Powers. citizens’ civil and political rights against Crown, Parliament, the executive and the
Union Referendum Act 2015 and What is “Rule of Law”? encroachment by state authorities. judiciary.
European Union (Notification of A.V Dicey in his book The Law of the Constitution o Recognition: o Conventions are not enforceable in the courts
Withdrawal) Act 2017) (1885) has given the following three implications Convention rights are not enforceable in UK and there are no judicial remedies or penalties
o No Parliament can be bound by its of the doctrine of rule of law: until the Human Rights Act 1998 came into if conventions are violated.
predecessor nor bind its successor: o No man is punished except for a breach of force. o To breach a Constitutional Convention is to act
Parliament can’t bind future Parliaments, law; o Institutions & Personnel: unconstitutionally but not unlawfully.
so a future Parliament could always o Equality before the law; and Council of Europe Why?
change an Act of Parliament. o The rights of the individual as defined and European Court of Human Rights (ECtHR) o People might abide by rules based on their
Parliament could repeal or amend any Act enforced by courts of law. European Union (EU):- own sense of morality, or because the
totally or partially. **We will discuss further in the Chapter of “Rule o Origins: majority of people respect a certain system of
where there are 2 inconsistent Acts of of Law”. Like the ECHR, the original European rules.
Parliament, under the doctrine of implied What is “Separation of Powers”? Communities (now the EU) were products of o Government of the day tends to abide to
repeal, the later Act is deemed to have Bradley and Ewing noted that the doctrine may World War II. conventions because a breach of Convention
impliedly repealed the earlier Act, to the mean at least 3 different things: o Aims: would often lead to public criticism and would
extent that the two Acts are compatible o Same persons should not form part of more To impose supra-national controls over the consequently result in a loss of respect or
(Ellen Street Estates Ltd v Minister of than one of the three organs of government; raw materials of war and to provide for a popular support.
Health (1934)). o One organ of government should not control common market for the free movement of How?
however, a constitutional statute (eg, or interfere with the work of another; and goods, service, capital and workers. Conventions are established through precedent,
European Communities Act 1972) could o One organ of government should not exercise o Recognition: so there must be a record of conventions being
not be impliedly repealed (Thoburn v the functions of another. EU law enters into UK domestic law under the followed for a period.
Sunderland City Council (2002)). **We will discuss further in the Chapter of European Communities Act 1972. Examples of Conventions:-
o Nobody can challenge the validity of an Act of “Separation of Powers”. o Institutions & Personnel: o The Queen will appoint the leader of the
Parliament: How to uphold the Rule of Law and Separation of European Council political party as Prime Minister;
the courts can’t question the validity of an Powers? European Commission o If an individual minister loses the confidence
Act of Parliament (Pickin v British Railways o Declarations of incompatibility (see s.4 of European Parliament vote, he/she must resign;
Board (1974)). Human Rights Act 1998); and European Court of Justice o Ministers of the Crown are individually and
c/f Lord Woolf argued that “if Parliament o Judicial Review. collectively responsible to Parliament (or
did the unthinkable… ultimately there are **We will discuss further in the Chapter of known as Ministerial Responsibility); and
even limits on the supremacy of “Human Rights Act” and “Judicial Review”. o The Queen should act on the advice of the
Parliament, which it is the courts' Prime Minister, eg prorogation of Parliament.
inalienable responsibility to identify and
uphold…”
Although the British constitution is usually characterised as “unwritten” there are in fact numerous written sources which can clearly be identified as constitutional.
As such, Magna Carta 1215; the Bill of Rights 1689; the Act of Union 1706 and 1707; the Parliament Acts 1911 and 1949; the European Communities Act 1972; and the Human Rights Act 1998.
Accordingly, it is strictly speaking more accurate to describe the constitution as not codified.
By this is meant that not all the rules, written or unwritten, have ever been consolidated into a single document which we can refer to as “the constitution”.
, © prepared by Reno Nga Sources of Constitution
Acts of Parliament Constitutional Conventions
Parliamentary Supremacy Party with the majority forms a
can legislate on any subject-matter; government
not bound by its predecessor; and Vote of No Confidence
unchallengeable. Ministerial Responsibility
Regulate & Abide
Sources
Recognise & Repeal of Unenforceable
Constitution
European Law Common Law
Rule of Law;
European Convention on Human
Separation of Powers;
Rights; and
Declarations of Incompatibility; and
European Union Law.
Judicial Review.
Implement & Interpret
