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Lecture notes Public Law (LAW4001) (Full)
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Full set of notes on UK public law, taken in 2022/2023. Includes case law, statutes and debates.
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SEMESTER ONE:WEEK ONE: INTRODUCING THE CONSTITUTION
- Constitution sets out principles for the governing institutions of the state, defines such
institutions and defines relationship between them, places limitations on exercise of
power by said institutions, and defines relationships between individuals and the
institutions
- Great Britain = England, Scotland, Wales
- The UK = England, Scotland, Wales and Northern Ireland
- Acts of Union 1707 (Scotland) -> Free trade still valid today
- UK has 14 de jure colonies-> some of which have their own legislatures, executives and
judiciaries, however UK can legislate for these territories, in short, the UK constitution
includes the governance of these territories
- Codified: all laid out in a single document -> easier to see rights, but isn’t exhaustive so
therefore doesn’t give the full picture
- Uncodified: no legally binding document -> this means that the constitutional rules are
found in various places as opposed to a single document
- UK constitution consists of: Acts of parliament (aka statutes), Case Law, International
Law, Conventions
- Acts of Parliament/ Constitutional Statutes, e.g. bill of rights 1689, human rights act
1998, constitutional reform act 2005
- Case (Common) Law: Entick v. Carrington (1765), government must act according to
law, shows state powers are limited to law, can help interpret constitutional statutes,
prerogative powers (courts role to establish whether they exist -> common law powers)
- International Law: e.g. ECHR, HRA 1998 renders ECHR law enforceable in UK courts
- Conventions: practices or habits that are seen as politically binding -> e.g. royal assent,
however these are not legally binding
- Core principles of the uk constitution: parliamentary supremacy, rule of law (everyone,
including the state is bound by the law), separation of powers (institutions should only do
what they’re allocated to do), accountability
- Core institutions of the uk Constitution: legislature, executive, judiciary
- Legislature: Bicameral legislature (HoC, HoL), HoC -> helps hold the government to
account, votes on laws, approves govt spending etc. HoL -> unelected!! (essentially, PM
can appoint lawmakers), but the HoL can function as checks/ balances
- Executive: responsible for day to day running of the country, central govt. (drawn from
parliament), PM, secretaries of state (PM, Chancellor, Foreign Sec, Home sec), key role
is to formulate policy, govt. also executes the law
- Judiciary: interprets and applies the law, and holds the executive to account -> court
reviews legality and procedural propriety of parliamentary actions
,WEEK TWO: PARLIAMENTARY SOVEREIGNTY
PARLIAMENTARY SOVEREIGNTY:
- Sovereignty and supremacy are used interchangeably
- Constitutional principle of parliamentary sovereignty = central to the ruling that
prorogation of parliament was unlawful
- R (on the application of Miller) v. The Prime Minister; Cherry and others v. Advocate
General for Scotland (2019)
- A V Dicey: Parliamentary Sovereignty -> Parliament has the right to make/ unmake any
law whatever and no person or body is recognised by law of England as having a right to
override or set aside legislation of parliament
- Orthodox view:
-> unlimited power to legislate on any area of law
-> absence of any distinction between constitutional and ordinary laws (aka all laws
same - none are superior to eachother) (no statutes can be struck down, nothing is
superior and the constitution is in no way superior)
-> no judicial or other authority can question the validity of an Act of Parliament (no court
can question the validity of any act of parliament)
- A sitting parliament cannot bind a future parliament -> this would undermine the
sovereignty of the future parliament
- Enrolled bill rule: British Railways Board v. Pickin (1974) -> Lords refused to get involved
even though law was wrong
- Cheney v. Conn (1968) -> Broke Geneva convention, but courts did not get involved due
to the act of parliament (aka parliament can override international law)
- “Parliamentary sovereignty means that parliament can, if it chooses, legislate contrary to
fundamental principles of human rights” - Lord Hoffman, R v. Sec of State for Home Dept
(2002)
- Limits to Orthodoxy:
-> Internal Limits: MPs, Lords, Committees, Public (general elections etc.),
Campaign/Lobbying groups
-> New Labour’s plans for 42 days detention for suspected terrorists was struck down by
HOL so it didn’t end up going through
-> External Limits: civil disobedience, e.g. poll tax riots (poll tax= everyone pays same
amount of tax regardless of their income)
- THESE LIMITS ARE ONLY POLITICAL LIMITS, THERE ARE NO ACTUAL LEGAL
LIMITS TO DICEY’S ORTHODOXY -> but we should not underestimate them as a way
to override parliament
- Origins of Parliamentary Sovereignty: Acts of Parliament solely recognise PS as
opposed to entrenching or establishing it, cannot be Common Law, as then courts could
change sovereignty (which they can’t), also cannot be convention as it’s political
, - H W R Wade argues that Parliamentary Sovereignty is the “Ultimate Political Fact”
CHALLENGES TO ORTHODOXY:
- Entrenchment: Diceyan view is that entrenchment is impossible as a future parliament
cannot be bound by a current one
- Entrenchment is making alteration process way more difficult so laws cannot be
repealed and amended as easily
- Dicey & Wade on entrenchment: Future parliament could repeal the acts of parliament
which seek to entrench it, Wade also says these special safeguards would be legally
futile
- Jennings on entrenchment: To not pass laws which help with entrenchment, would be
disregarding sovereignty, the entrenched laws are still the will of parliament -> this
means that by allowing it to pass the will of that parliament is true to sovereignty
- What if parliament legislates to limit its sovereignty? A paradox to Diceyan orthodoxy
- Methods of Entrenchment in the UK:
-> Substantive Limitation: Union with Scotland Act 1706 - “For all time”, Government of
Wales Act 2006 -> permanent legislature, could this be taken away?
-> Procedural Limitation: Northern Ireland Act 1998 -> requires referendum to change
-> Special Parliamentary Procedure: supermajority -> doesn't exist yet
- Doctrine of Implied Repeal: Lex posteriori non derogat legi priori
- Conflicts between Constitutional Statutes and Ordinary Statutes: Thoburn v Sunderland
City Council (2002) -> constitutional statutes cannot be impliedly repealed -> MUST BE
DIRECT, as opposed to ordinary ones, which can be repealed in an implied manner, by a
new law
- Conflicts between 2 constitutional statutes: R (HS2 Action Alliance Ltd) v Secretary of
State for Transport (2014) -> (ADD TO LATER)
- Hoffman states that parliament can legislate contrary to fundamental rights
- Can parliament legislate to get rid of the rule of law? Lord Bridge says yes
- What happens when there is a conflict between EU law and UK law?
- Does Brexit re-assert Diceyan Orthodoxy?
THE EU AND PARLIAMENTARY SOVEREIGNTY:
DIRECT EFFECT AND SUPREMACY OF EU LAW:
- EU Law creates rights that must be enforced in national courts and not only EU courts
(Direct Effect)
- If there is a clash between EU Law and National Law, EU Law takes precedence over
national law (even constitutional) (supremacy)
- There is a direct tension with EU Law Supremacy
- ECA (European Communities Act) 1972 -> domestic legal basis to two EU treaties ->
gives provisions for direct effect and supremacy
, -> EU Law is a source of domestic legal rights, and have legal effect in the United
Kingdom (works with Diceyan orthodoxy)
-> Supremacy: any EU law passed after or prior to this act, shall have effect in the UK,
Macarthys v Smith (1979) -> Equal Pay Act does not cover an issue of successive
employment, but EU Law which does protect successive employment -> EU Law did say
Equal Pay, but it didn’t conflict with the domestic EPA if one were to apply a purposive
response, clear that the purpose of the act was to equalise pay, so there was no conflict
between the legislations
- FACTORTAME: Merchant Shipping Act 1988 -> Had a lot of tension with Article 49 of
Treaty of Functioning of the EU -> Spain said MSA 1988 was breaking EU law
- Disapplied Act of Parliament -> appealed on basis that the high court did not have the
right to grant interim relief (so high court disapplied an act of parliament, but this never
took actual effect because they didn’t have the right to do so)
- FACTORTAME II: any limitation of parliamentary sovereignty through the ECA 1972 was
entirely voluntary, and in fact an exercise of parliamentary sovereignty, the UK knew that
when they joined the EU, EU law would reign supreme
- Sir John Laws (1995) -> New rule of statutory construction -> Seems that parliament has
bound its successors with the ECA 1972 (But… parliament can legislate to repeal (and
they did))
- William Wade -> Factortame II was a ‘constitutional revolution’
- Trevor Allan -> no unallowed change to the constitution
- Factortame II -> when there is a conflict between UK and EU law, EU law prevails
- Thoburn (2002) -> argument is that EU law had been impliedly repealed by a newer UK
law, this argument was rejected though
- ECA 1972 is a constitutional statute, which means that it cannot be impliedly repealed ->
there is now a hierarchy of legislation/ acts of parliament
- EU Act 2011 -> sought to make clear the primacy of EU law and disapplication of UK law
- HS2 (2014) UKSC 3 -> conflict between 2 constitutional statutes: Thoburn made bill of
rights a constitutional statute
- UKSC said parliamentary process complied with EU law
- Could not assume unqualified supremacy of EU law over constitutional statutes, contrary
to Factortame II
- Miller (2017) UKSC 5 -> “Parliamentary sovereignty…is…fundamental to the United
Kingdom’s constitutional arrangements, and EU law can only enjoy a status in domestic
law which that principle allows”
- Sovereignty heavily featured in the Brexit campaign - the idea that both British and
Parliamentary sovereignty would return
- Can courts return back to pre Factortame? Can we stop disapplying acts of parliament
now?
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