Lecture notes
ecture notes Constitutional and Administrative Law (LW1120)
- Institution
- University Of Leicester (LE)
lecture notes on sources, separation of powers, prerogative and the executive
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Constitutional & Administrative Law: (sources, separation of powers, prerogative and theexecutive)
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Entrenched-protected from being repealed; difficult to amend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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