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ecture notes Constitutional and Administrative Law (LW1120)

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lecture notes on sources, separation of powers, prerogative and the executive

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August 30, 2021
Number of pages
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Written in
2021/2022
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Constitutional & Administrative Law: (sources, separation of powers, prerogative and the
executive)

 Is public law=individual v state relationship
 Concerned with role and powers of institutions within the State and with the relationship
between citizen and State (H Barnett); moral and political values reflected of the people it
governs and socio-political context.
 Bradley and Ewing-const. law reflects value that people attach to orderly human relations; to
individual freedom under the law, and to institutions (parl., politics parties etc.)
 DEFINITION OF CONSTITUTION- ‘document with special legal status which sets out
framework for gov. within a country and declares principles by which the branches of gov
must operate’ (Bradley & Ewing); fundamental laws
 FUNCTION OF CONSTITUTION-ensure country governed in accordance with democratic
principles (Ian Loveland); seeks to eliminate-abuses of power, HR violations (protect
minority), corruption, mis-governance (nepotism); confusion.
 Different forms of constitution-
1) Written/rigid/codified; one single doc
2) Unwritten/flexible/uncodified; not one single doc
 Dicey:
a) Rigid const.- one that can’t be changed in same manner as ordinary laws; difficult to
amend; long procedure
b) Flexible const.-every law can be changed legally in same way; as important as each
other. Easier to change law in comparison to written.
 Features of ‘codified’ const.
 Single doc
 Authority of const. claims to represent people of nation (will of people)
 Supreme (more important)
 Entrenched-protected from being repealed; difficult to amend
 Requires special procedure to amend (often in const. itself)
 Bill of rights
 Roles of key office holders (powers of PM, president, judges)
 Lists powers of state (pass laws/declare war) and duty of citizens (voting/taxes/jury
or military service) two way
 Balance of power within state
 Should contain checks and balances on power
 Key features of US Const.-codified in single doc (1787); remains in force but there are
amendments over several years; federal const. (national gov. and states/provinces have own
powers); opposite of federal is unitary (in Dicey’s time, power was vested in gov. in London);
guidance on how US system of gov. works; system of checks and balances on power and
provides separation of powers (i.e. US President cant serve more than 2 terms); Bill of
Rights; Supreme Law-if a law conflicts with const. it is invalid since const. is above everything
else, it has a special legal sanctity
 SPECIAL PROCDEURE FOR AMENDMENTS; EITHER
 a) congress with 2/3rds majority vote in Senate and House of Rep (so far only this
method has been used in practise)
 b) called for by 2/3rds of state leg.

,  27 amendments I since 1798 where 26 th was in 1971 where voting age reduced from
21 to 18 due to Vietnam War; Marbury v Madison-Supreme Courts held it may
declare act of Congress void if it’s inconsistent with const.
 US Const.:
i. Article 1: vests legislative power in Congress
ii. Article 2: vests executive powers in President
iii. Article 3: info. and powers of judiciary
 HOW US SYSTEM OF GOV. WORKS-
 Legislative (law making); Congress-Senate and House of Representatives
 Executive (carries out laws)- President; Vice; Cabinet
 Judicial (evaluates laws)-Supreme Court
 UK const.-yes there is a constitution; according to Bolingbroke, a constitution is ‘that
assemblage of laws, instit., and customs….that compose the general system, according to
which the community has agreed to be governed.’
 Examples of how UK does have a const./what’s contained in it:
 Method of choosing Sovereign and PM
 Composition, powers and privileges of legislature and relationship between the two
chambers
 Status of Gov. Ministers and position of their civil servants
 Control of armed forces
 Treaty-making powers
 Power to raise and spend public money
 Appointment and tenure of judges
 Liberties of the individual

For Codification of UK Const. Against Codification of UK Const.
 Clarity and certainty  Cost and expense of changing and
would change too much (parl. sov.)
could make better use of money
 Attract reverence and public loyalty  ‘don’t fix what isn’t broke’ FLEXIBILITY
LOST since conventions have allowed it
to evolve.
 Superior to other laws (leader prone to  What rights would it protect? /who
making irrational decisions so citizens would draft it?
protected from this
 Offer guidelines for balancing central  Who would interpret it and do we trust
and local powers (devolution) UK judges?


 Sources of UK Const.: (SPREAD ALL OVER THE PLACE)
1) Legal sources-Leg. (Acts of Parl.) AND Delegated Leg.; Judicial Precedent; EU Law
and ECHR
i. LEGISLATIONS Magna Carta (1215)-Established principle that everyone is
subject to law; even king. Guarantees rights to indiv. to justice and fair trial.
RULE OF LAW-EQUALITY BEFORE THE LAW; trial by jury=heard by equals.
ii. Bill of Rights (1689)-placed limits on powers of monarch; sets out rights of
Parl.
iii. Act of Settlement (1701)-Act of Parl. settle succession to Engl. Crown
excluding Catholics; Successions to Crown Act (2013) removed
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