Public Law
Lecture 1
Public Law: ‘concerned with the state-its structures, the actions and
interactions of its institutions and people who operate them, the principles and
mechanisms on which it runs- and its relationship with other entities and
individuals inside and outside the state’
- Relates to the marking, implementing and enforcement of the
law
Administrative Law
Constitutional Law
“The body of law that deals with the
“The law that relates to the structures or
workings of the state, along with the
framework of the state, and the political and
statutory and common law powers and
judicial institutions of the state”
duties of government departments, local
authorities, and public bodies and public
authorities, which assist in the everyday life
of the country.”
Public law is concerned with two basic relationships:
o Horizontal: the relationship between the different institutions of the
State (this includes the executive, the legislature and the judiciary, also
the monarch) – Constitutional Law
o Vertical: the relationship between the institutions of State and the
citizens (like judicial review) -Administrative Law
Judicial review: a citizen takes an issue to the judiciary to review and
comment how the law should or should’ve responded.
Constitution: “the set of laws, rules and practices that create the basic
institutions of the state, and its component and related parts, and stipulate the
powers of those institutions and the relationship between the different
institutions and between those institutions and the individual”
- It is document(s) which sets out individual’s rights.
- Can be legal and non-legal sources (like in UK, and Israel)
- Contain laws and other sources which explain the way in which
state is established, describing the powers to each branch of the
state & also restricting the institution’s powers.
It is a framework that defines the structures of the state and its powers.
,What does a Constitution do?
‘Institutionalization’: creates institutions and allocates power
Accountability: for abuse of power, checking and balancing the power
(judiciary)
Legitimating function: makes respectable the use of power
Flexibility: allowed to evolve to meet changing circumstances without
risk of breaking. Has to be adaptable.
Uncodified Constitution
Better to avoid the written/unwritten distinction
Better to think of it as codified v uncodified
Whilst it is unusual to have an uncodified constitution, it is not unique (Israel
have an uncodified constitution)
o Some sources are written, like the Magna Carta
o Some unwritten e.g. constitutional conventions
[MILLER REFERENCE TO THIS]:
‘Unlike most countries, the United Kingdom does not have a constitution in the
sense of a single coherent code of fundamental law which prevails over all other
sources of law. Our constitutional arrangements have developed over time in a
pragmatic as much as in a principled way, through a combination of statutes,
events, conventions, academic writings and judicial decisions.’ [40]
Professor AV Dicey described the constitution as “the most flexible polity in
existence”
Why don’t we have a codified constitution?
Historic: lack of genuine constitutional moment
- We didn’t have an American ‘Revolution’ where there was a
moment in history where it changed the fundamentals of the
constitution.
Sydney Low (1904): ‘Other constitutions have been built; that of England has
been allowed to grow.’
Conceptual – if Parliament is sovereign then no point in codifying
constitution (as Parliament can do what it likes, when it likes, how it likes
including changing the constitution). One purpose of a constitution is to
constrain the legislature.
Supremacy of Constitutional Law
,US position- Constitutional Supremacy
o If in the US, if the executive wanted a law & parliament passed it.
= judiciary could stop it
UK position- Parliamentary Supremacy
o In the UK, there is Parliamentary Supremacy, so the judiciary cannot
stop the Parliament from making a particular law. There is nothing legally
that can stop the Parliament from creating any law they desire.
- They judiciary would have to implement this law whether they
like it or not
Characteristics of the UK
One state: United Kingdom of Great Britain & Northern Ireland
- 4 ‘countries’ of UK: England, Wales, Scotland & Northern Ireland
One central ‘supreme’ Parliament (Westminster, London)
4 Key Institutions
The Executive: proposed and implements/executes the law (government)
The Legislature: makes the law (Parliament)
The Judiciary: interprets the law/ensures legality (judges and courts)
The Monarch: (The Queen) is also of constitutional significance in UK
3 Fundamental Concepts:
Separation of Powers:
Idea that power should be distributed among state institutions and not
concentrated.
Parliamentary Sovereignty/Supremacy:
The notion that the laws made by Parliament are the highest laws.
Rule of Law:
Contested concept but broadly that society governed by law and all are
subject to that law.
Sources of the Constitution
1. Statues/Acts of Parliament
2. Common law- judge made law
3. Royal Prerogative
4. Constitutional Convention
, Lecture 2
Constitution: the stuff that sets out the relationship
Liberalism
Opposite of absolutism
o Recognise that society is a unit
o Liberalism includes a limited Government
- Restriction on extent of power (the government is only allowed to do
what the law tells them to do)
- Accountability for excess and how much power is exerted
Judiciary Review: electorate is not happy with how the power has been used
by the parliament and judiciary will review it
Social contract theory- Hobbes & Locke
Idea that people exist in a state of nature, and this includes people is being
nasty and brutal. In order to control bad people, a government is put into place
to not only protect us but protect our rights.
- The government is only allowed to stay if they are exercising their
power as the society wants (liberally), otherwise society can get rid
of the government and replace the people of the government with
new people.
Montesquieu: keep creating government and overthrowing them and it
becomes a vicious cycle
- Separation of power: divide the power between legislature,
executive and judiciary in order to make sure that no one has too
much power
- This means that each branch of the government will keep each other
in check and make sure that the branches cannot exploit the power.
- Is it to avoid tyranny or just because the need of government?
Executive Branch
