Summary
Summary Public Law
- Module
- Public Law
- Institution
- University Of Law (London)
Summary of 61 pages for the course Public Law at University of Law (London)
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UNIT 1.1: CONSTITUTIONAL FUNDAMENTALS AND SOURCES OF THE CONSTITUTION1. WHAT IS A CONSTITUTION?
Usually defines a state’s fundamental political principles, establishes the framework of the
government of the state, and guarantees certain rights and freedoms of the citizens.
2. CLASSIFYING CONSTITUTIONS
- Written v Unwritten
- Republican v monarchical
- Federal v unitary
- Rigid v flexible
- Formal separation of powers v informal separation of powers
3. CORE CONSTITUTIONAL PRINCIPLES
A) The rule of law
B) The separation of powers
C) The supremacy of Parliament
4. SOURCES OF THE UK CONSTITUTION
a) Acts of Parliament
b) Case law
c) The Royal prerogative
d) Constitutional conventions
4.1 Acts of Parliament
Examples of constitutional acts of Parliament:
● Magna Carta 1215
● Bill of Rights 1689
● Act of Settlement 1701
● Acts of Union 1706-7
● Parliament Acts 1911 and 1946
● European Communities Act 1972
● Police and Criminal Evidence Act 1986
● HRA 1998
No special procedure or majority was required to enact these constitutional reforms. In turn, no
Parliament can bind its successors, so no special means is needed to repeal them. Factors
1
, which limit Parliament’s power in this sense tend to be more conventional, economic, political or
social as opposed to strictly legal.
4.2 Case Law
4.2.1 The common law
Residual freedom
The principle of residual freedom (upon which civil liberties are based) developed through
common law. It means that an individual is free to do or say whatever he wishes unless it is
expressly prohibited by the law.
Actions of the state must have legal authority
Actions taken by officials (eg. police officers) must have a legal basis if they are to be lawful.
This links with the principle of the rule of law.
Legal disputes should be resolved by the judiciary
One of the earliest examples setting out constitutionally important principles is the Case of
Prohibitions (Prohibitions del Roy) [1607]. The court held that the monarch had no power to
decide legal matters by way of arbitrary rulings, and that legal disputes should properly be
resolved by the courts.
Habeas corpus and individual liberty
Although it has now been strengthened by statute, the remedy of habeas corpus, whereby an
individual who has been detained by the state has the right to have the legality of that detention
tested before a court, developed through common law, eg. A and others v Secretary of State for
the Home Department [2005] (the ‘Belmarsh’ case). The case involved a challenge to the
provisions of the Anti-Terrorism, Crime and Security Act 2001, which permitted foreign nationals
suspected of being involved in terrorist activities (but against whom there was insufficient
evidence to bring criminal proceedings) to be detained indefinitely without trial. The Lords held
that such detention was unlawful and was a breach of the ECHR. The right to liberty is
contained in Article 5 ECHR, incorporated into the HRA 1998.
Right to a fair hearing
Developed through the common law, enacted in Article 6 ECHR.
Parliamentary supremacy
2
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