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Lecture notes of 25 pages for the course Public Law at ULaw (public law notes)
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Public LawPublic Law: This is the law which regulates the relationships of individuals (incl. organisations) and
the state. (INDIVIDUAL v STATE) – A ‘vertical effect’ e.g. Criminal law and Human Rights.
Private Law: regulates the relationships between individuals themselves. (INDIVIDUAL v
INDIVIDUAL) – A ‘horizontal effect’ e.g. Contract and Tort.
‘Public Law’ broken down:
It’s a shortcut used for the longer expression of ‘constitutional and administrative law’
Constitutional Law: The law that relates to the structure or framework of the state, and the
political and judicial institutions of the state. (Think: ‘constitutes’)
Administrative Law: The body of law that deals with the workings of the state, along with
the statutory and common law duties of public bodies. (Think: ‘administers’)
So overall, constitutional law is the law that establishes the state and its institutions,
administrative law is the law that these institutions use to run the country.
The Key Principles of Public Law:
o Constitutional ConventionsNon-legal rules which are consequently not enforceable but
are instead persuasive e.g. ECHR, Royal Prerogative, common law precedent, European
treaties, Prime Minister choice etc.
o The Rule of Law meaning the state can’t exercise its power in an arbitrary fashion. No
single person or organisation is beyond the reach of the law.
o The Separation of Powers to ensure that a form of dictatorship doesn’t arise while
exercising public power, independence of the judiciary is important in ensuring this.
o The democratically elected and supreme Parliament entrenched Bill of Rights
o Limited and responsible government limits the state’s opportunities to abuse its power.
As an executive, Parliament can call their conduct into question. Similarly, they are
restrained by certain constitutional conventions.
o ‘Judicial Review’ensures the executive’s conduct is within Parliamentary statute, royal
prerogative and/or ‘natural justice’ (rules against bias and right to a fair hearing).
The main constitutional bodies of the UK
Consists of the legislative, executive and judicial bodies which, together, comprises the ‘State’
Legislative: Parliament as the supreme law-making body of the UK.
Executive: Embodied by the government and civil service which implement the law and has day-
to-day control of the state and its relations with other countries.
Judicial: May be called upon to review executive’s actions, omissions and decisions to ensure
that the law is respected at all levels of the state – The Rule of Law in action.
,What is the ‘Crown’ and is this the same as the Queen?
Even the Oxford English Dictionary (OED) defines this ambiguously to cover three different
meanings:
The Crown
The State The Monarch The Actual
Crown
The Queen’s Role in the UK:
The Queen’s Role is as head of state (in turn, she heads the three branches of state – legislative,
executive and judicial), though she does not actively participate in day-to-day political decision-
making in government as a president often would.
Other roles include:
1. The legislative function of Royal Assent.
2. Her executive role by offering advice to the Prime Minister at their weekly meetings.
3. Honours are granted through the exercise of her Royal Prerogative.
However, the (FACE VALUE v. ACTUAL PRACTISE) of these functions are lessened by the operation of
Constitutional Conventions e.g. advice given to her by the Prime Minister.
These are limited in Practise – but NOT LEGALLY e.g. she can appoint her own prime minister, but
the convention is that she appoints the leader of the dominant party.
The Nature of Constitutions:
What? –
A Framework for defining the structure of the State
Way of explaining who in the State has special power and how that power is to be exercised
(A method for delineating rights and responsibilities)
How? –
A written constitutional document e.g. USA and Canada- where the courts have the power to
strike down ‘unconstitutional’ law. This leads to constitutional supremacy. Amendments to it
require a specially prescribed and time-consuming procedure.
An unwritten/uncodified constitution: a collection of laws and principles that make up the
constitutional framework e.g. UK. Here, it is sourced from primary legislation, constitutional
conventions, non-legal sources (authoritative opinions) and EU/International law. The
flexibility of this must assured by the institutions of the State.
Ours is a parliamentary executive constitution (rather than presidential).
It is a unitary constitution (rather than federal – where there are separations of power within the
state e.g. USA and UAE) – ours is made in Westminster and enforced in UK.
It’s is a flexible constitution (rather than rigid) – tends to be very up to date but consequently
doesn’t protect our rights. Underpinned by common law, some principles of the Rule of Law (RoL)
, and Separation of Powers (and since 1688) Parliamentary Supremacy. (These are both individual
and competing ideas – they work together but sometimes clash with one another at the same time)
The setup of the British Constitution:
There is a hierarchical structure to the UK constitution which is uncodified and unwritten, the
powers highest up have greater significance than those lower than them. The impact of the EU is
determined by whether or not there is an Act in place which explicitly makes reference to European
legislation e.g. The HRA incorporating the ECHR and the European Communities Act (1972). We are
in a ‘duellist’ state in that we can, in some circumstances, breach this international ‘shield’.
THE INTERNATIONAL SPHERE – includes the incorporation of EU law
The highest and (ALL LEVELS MUST
most authoritative COMPLY WITH THE ONE
law for the UK ABOVE) The hierarchy
Act can strike down motions
set by the sections lower
‘Delegated’ to than them. Precedent
other authorities singles out the main
Secondary
under instruction legal reason anywhere in
Legislation
of a ‘Parent Act’ the hierarchy.
The Biggest
Bulk of the
English Legal
Common Law and Royal
System
Prerogative
Can be
refer to
The opinions of Authoritative Academics
The Royal Prerogative:
This is a special branch of common law, still exists but has gradually been delegated out by the
monarch (due to constitutional conventions, most of this lies with the PM). As a result, the queen is
largely restricted in what she can practically do (refer to ‘The Queen’s Role in the UK’ above). As a
result, in many instances, the power of the royal prerogative is exercised by the Prime Minister and
other ministers on her behalf.
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