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Public Law Exam/Revision Notes (University of Law)
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Full exam/revision notes for the GDL Public Law Module at ULaw
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THE UK CONSTITUTION Neha Vohra - 2022Constitution definition: fundamental rules and principles which establish and Case law
regulate the Government
Actions of the state must
The UK Constitution have legal authority if they
• Unwritten constitution = no single authoritative constitutional document in which are lawful (Entick v
the rules which establish and regulate the government are set out – more flexible Carrington)
than written constitution
• Constitutional ‘jigsaw’ of various sources: statute, case law/common law, Royal Legal disputes should be
prerogative, constitutional conventions resolved by the Judiciary
→ Must all fit together to gain a clear picture of how constitution operates (Prohibitions del Roy)
3 Key Constitutional Principles:
An individual who has been
• The rule of law
detained by the state has
• The separation of powers
the right to have the
• The supremacy of Parliament
legality of that detention
tested before the court
Statute examples: Bill of Rights 1689, Parliament Acts 1911 and 1949, European
(‘Belmarsh case’)
Communities Act 1972, Human Rights Act 1998.
The Royal Prerogative Controlling the Royal
Prerogative:
o ‘…the residue of discretionary or arbitrary authority, which at any given time is
legally left in the hands of the Crown’ (Dicey) 1. Traditionally, the
o Powers once exercised by the monarch which are now ‘legally’ left in the hands of
the Crown. scope of RP was
o Extent of the prerogative may be limited by statute (e.g. Crown Proceedings Act reviewed but its
1947, Fixed-term Parliaments Act 2011) exercise was not
o An Act of Parliament is sufficient to abolish a prerogative power
(e.g. BBC v Johns)
Modern Royal Prerogative: 2. CCSU case (1984):
Foreign affairs: declarations of war and deployment of armed forces, making treaties, showed that certain
recognition of foreign states RP powers could be
Domestic affairs: summoning of Parliament, Appointment and dismissal of Prime Minister, reviewed, e.g.
Defence of the realm,
Dicey’s definition Royal Assent to
of Parliamentary bills, granting public honours, exercise of the
supremacy: issuing of passports
prerogatives of pardon and mercy
1. Parliament can pass whatever legislation it likes; thus, it can introduce or
repeal any law as it sees fit
Constitutional Conventions: non-legal sources of the constitution which fill the gaps left by the legal rules – not
2. No other person
enforced but considered or body Flexible.
to be binding. can change or repeal legislation enacted by
parliament
Courts will3.notCourts
directlycannot
enforce (Madzimbamuto)
declare – reaffirmed in Miller case because conventions operated in the political
legislation unconstitutional
sphere alone. It is not legal rule and statute can always override it.
Constitutional Description
Convention
Collective o Ministers bound by actions of gov- once a position is adopted, they must support it
Cabinet o If they do not support a decision, they must resign
Responsibility o E.g Robin Cook over Iraq war, Baroness Warsi over policy in relation to Gaza
o Ensures Government speaks with one voice, no minister can be absolved of responsibility
o This convention has arguably been weakened more recently, particularly in context of Brexit
Individual 1. Mechanism to hold ministers to account for their work and that of their departments
Ministerial 2. Parliament has the ability to scrutinise the executive (links to separation of powers)
Responsibility
Relating to the 1. E.g. giving royal assent to a bill → legally the monarch is entitled to refuse Royal Assent but as a
Crown matter of convention, the monarch will always give Royal Assent if a bill has passed through
both Houses of Parliament
2. Similarly, legally the crown appoints Ministers, however, by convention this is done on the
advice of the Prime Minister
3. Summary: strict legal position is that Monarch exercises powers but reality is Government does
Relating to - conventions maintain separation of powers
separation of - e.g. Members of executive do not criticise judicial decisions
powers - judiciary does not engage in party politics
,Constitutional Definition Comment
Neha Vohra - 2022
principles
Rule of Law Dicey’s definition (1885) Bingham’s definition overlaps with
Dicey’s (e.g. equality before the
1. Absence of arbitrary exercise of power: no punishment law), but it goes a little further (e.g.
without breach of law Human rights and compliance with
2. Equality before the law: everyone is subject to the law international law)
and the courts
3. A judge made constitution The modern state requires public
(judicial enforcement) officials to have more discretionary
powers due to the number of
Contemporary interpretations of the Rule of Law: decisions which need to be made-
however, Dicey would have
Lord Bingham (2006) disagreed with this
- Law must be accessible, intelligible, clear and
predictable Contemporary threats to the rule
- Legal right and liability should be resolved through of law:
application of the law not exercise of discretion • Legal aid cuts
- Adequate protection of human rights • Curbs on judicial review
- Laws of the land should apply equally to all • Snooper’s charter –
- Means provided for resolving, without excessive cost or Investigatory Powers Act
delay, civil disputes which parties cannot resolve • Other examples, e.g.
themselves (Legal Aid) internal market failure,
- Ministers and public officers exercise powers HRA repeal, misuse of
reasonably, in good faith, for the purpose for which public funds
conferred, without exceeding limits
- Adjudicative procedures should be fair
- State must comply with obligations in international law
JUSTICE manifesto (2007)
4. UK should adhere to human rights standard in both
domestic and foreign policy- citizens’ human rights
‘constitutionally protected’
5. Independence of legal profession and the judiciary
6. Due process of law and right to a fair trial
7. Equality before the law and right to a fair trial- no
discrimination
8. Equal right of access to justice- no one deprived due to
financial (or other) disadvantage
9. Parliamentary powers to scrutinise legislation (restrict
Royal prerogative)
10. Greater co-operation between MS, accompanied by
protection of rights for individuals
Lord Hope: “The ultimate controlling factor on which
our constitution is based”
Summary:
o Legal certainty
o Personal liberty
o Due process of law
o Equality before the law
o Courts as protectors of individual liberty
Parliamentary AV Dicey said: Covered in detail below
o Parliament can pass whatever legislation it likes;
Supremacy thus, it can introduce or repeal any law as it sees fit
o No other person or body can change or repeal
legislation enacted by Parliament. Also means that
Parliament cannot be bound by a predecessor or a
successor – particular act cannot be “entrenched”
o Courts cannot declare legislation unconstitutional
and nobody outside Parliament can override its
laws. Parliament has the final say
, Neha Vohra - 2022
Doctrine of Doctrine of separation of powers identifies 3 branches of Government effectively has control
government- legislative, executive and judicial (associated over the legislature as long as it has
separation of with the writings of Montesquieu in L’Esprit des Lois) a majority – known as an ‘elective
powers Monstesquieu argued that three branches of state should
be kept separate
dictatorship’ (Lord Hailsham)
➔ The concept of an
elective dictatorship is
Executive: queen, Prime Minister, Government Ministers, the largest issue facing
civil service, police, armed forces the separation of
Legislature: Queen, House of Lords, House of Commons powers
Judiciary: Queen, all qualified judges, magistrates
History of separation of powers:
o To avoid arbitrary government- Separate before the Constitutional Reform
functions/personnel Acts of 2005 and 2010, there were
o No branch should control or interfere with another many more overlaps between the 3
o Unwritten constitution= no formal separation of powers. These Acts make the
powers but is possible to identify 3 branches separation of powers more formal.
o Montesquieu felt that equality between branches
would ensure an effective system of 'checks and Informal separation of powers can
balances' between the branches to ensure that no be contrasted with position in USA
one branch accumulates excessive power where constitution intentionally
included formal separation of
Still considerable overlap between the executive and powers.
legislative branches of government. However, following the
CRA and creation of the Supreme Court, there is now
significant separation between the judiciary and the other
two branches. Arguably, securing the independence of the
judiciary is one of the most crucial aims of the separation of
powers.
For and against a Bill of Rights
For Against
Would incorporate and build on all of the UK's obligations Can be used to promote other aims- including diminution
under the European Convention on Human Rights of rights available to all people in our community
Usefully define scope of some rights Decoupling of UK from ECHR
Adjust the balance between different rights
Lack of ownership by the public of the existing Human Rights
Act and ECHR
Protection against abuses of power
Seven of the commission's nine members believe that, on balance, there is a strong
argument in favour of a UK Bill of Rights.
In my opinion, the UK should adopt a Bill of Rights in the interests of the population. Clearly
people feel that it will play a part in protecting the rights of citizens and providing certainty
regarding those rights.
Should constitutional conventions be codified?
• Some argue that it should be put on a statutory footing- given the same status as law
• It is argued that codifying the constitution would promote certainty and clarity
• However, others argue that this will erode their flexibility
• Also argued that constitutional conventions are too wide to be codified, they cover various different aspects of the UK
constitution/ laws
• Any attempt to codify would require regular amendment as they are not fixed
• They often deal with sensitive political maters where codification may lead to constitutional crisis- e.g., they limit the
role of the unelected monarch
, Neha Vohra - 2022
Parliamentary Supremacy
Evidence supporting parliamentary supremacy Limitations to the Supremacy of Parliament
AV Dicey said: R (on the application of Jackson and others) v HM Attorney-
1. Parliament can pass whatever legislation it likes; General [2005] UKHL 56
thus, it can introduce or repeal any law as it sees → suggests in certain circumstances it is appropriate to
fit consider the validity of an Act of Parliament
2. No other person or body can change or repeal → was considered whether the 1911 Act which led to the
legislation enacted by Parliament. Also means 1949 Act was valid in producing the procedural change (2
that Parliament cannot be bound by a years delay period --> 1 year)
predecessor or a successor – particular act →House of Lords found that the procedural change made by
cannot be “entrenched” 1949 Act was valid
3. Courts cannot declare legislation Important case: shows that House of Lords did
unconstitutional and nobody outside Parliament consider the validity of an Act passed by Parliament
can override its laws. Parliament has the final
say.
The UK has no Bill of Rights that is fundamental in a legal Devolution
sense as Parliament can amend any rights that currently 1997: Labour Government devolved powers to Scotland,
exist as, and when, it wants: e.g. has the power to Wales and Northern Ireland
revoke the Human Rights Act if it so wished. • Scotland Act 1998: established Scottish Parliament
and executive legislative powers in certain areas
Bill of Rights 1689: devolved to Parliament
• Scotland Act 2012: gave additional powers (e.g.
- Significant: Article 9: ‘freedom of speech and taxation)
debates in proceedings in Parliament ought not • Scotland Act 2016: Scottish Parliament and Govt. are
to be impeached or question in any court or permanent unless abolished by referendum, UK
place out of Parliament' Parliament cannot legislate with regard to devolved
- Imposed limitations on the powers of the Crown powers without Scottish consent
and its relationship with Parliament • Government of Wales Act 1998: Welsh Assembly
- Removed monarch’s power to arbitrarily established
suspend acts of Parliament • Wales Act 2017: Changed so Wales follows similar
- Elections from Parliament should be free from structure to Scottish Act 2016
interference by monarch • Norther Ireland Act 1998: devolved powers to NI
assembly and created ‘power sharing executive’. Also
Bill of Rights 1689 altered the balance of power between similar provision to Scottish referendum
Monarch and Parliament in favour of Parliament
Edinburgh & Dalkeith Railway Co v Wauchope: private Acts of Independence
Act passed by Parliament adversely affected Wauchope's - During 20th century, Parliament enacted various acts
rights against a railway company.
• However, it was ruled that no court of justice of Independence to form British Colonies
can question an act of parliament which has
passed both houses and been given Royal
assent.
'Enrolled Act' rule: Acts of Union
1. With Scotland and Ireland (1706-07 & 1801)- argued
Once an Act of Parliament has been entered onto the
Parliamentary roll, the courts will not question the to be a partial written constitution for the UK
validity of legislation which has received Royal Assent 2. Parliament was born ‘unfree’
(as seen in Pickin v British Railways Board) 3. Limited by the terms of these acts and cannot
legislate to override the provisions
Pickin v British Railways Board: Lord Reid confirmed
that the courts had no power to disregard an Act of
Parliament or to investigate proceedings
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