Lecture notes
LAWS08123 Public Law of UK and Scotland Summarized note
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- LAWS08123
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- The University Of Edinburgh (ED)
LAWS08123 Public Law of UK and Scotland Summarized note
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Public Law of UK and Scotland Lecture NotesWeek 1 Lecture 1
Defining the UK
It’s a constitutional monarchy
It has a number of components: England, Scotland, Wales and Northern Ireland
When in 1603 the crowns of Scotland and England were united the two parliaments remained.
The claim/bill of rights of 1689 tried to establish the foundations of the rights of parliament:
Freedom of speech during a parliamentary debate, freedom of civil arrest, etc.
1707 was the union of the two parliaments. This was especially important for matters of trade.
A common parliament was established, but the church, the legal and educational system
remained separate.
1800 act of union added the Irish to the UK
1922 Ireland became independent.
In 1931 Westminster allowed the old common wealth (Canada, New Zealand and Australia) to
legislate for itself.
1947-1978 Decolonization
1972 European Communities act, the UK joins the European Community.
1998 Scotland Act and the Human Rights Act
Definition of constitution
Dictionary: Concession of the part of the sovereign power, framed in a document. It is
assumed or specifically provided that the constitution is more fundamental than any particular
law
Broad: By Constitution we mean whenever we speak with propriety and exactness that
assemblage of laws in situations and customs derived from certain fixed principles of
reason… that compose the general system according to which the community has agreed to
be governed.
One way is saying that the UK has no constitution or it fits more closely to the second
definition.
Week 1 Lecture 2
Substance of Constitutional Law
Axa General Insurance and others v The Lord Advocate [2011] very important case
There are provisions for institutions of government:
, o The executive
o The legislative
o The judiciary
Constitutional law set of the composition and powers of the institutions of government
And it sets out the powers of the institutions in relation to each other.
The state acts territorially, in supra- or intra-state dimensions
In Scotland, as long as the Scottish Parliament acts within its own competence, ASP is the
highest legal authority.
The objective of a parliamentary democracy is that the law is made by a democratically
elected legislative and that this is the paradigm of political activity.
The court does not want to restrain the legislative, because it is democratically elected.
This has to do with the separation of powers. The court want act because that would mean
that they would have to substitute their views for the judgment for the decision that was taken
democratically. Still public authorities must obey the rule of law.
A good definition of the rule is given by Lord Reid in Axa General Insurance and others v
The Lord Advocate [2011]: “all persons and authorities within the state, whether public or
private, should be bound by and entitled to the benefit of laws publicly made, taking effect
(generally) in the future and publicly administered in the courts”
So we can see that the Scottish Parliament is constrained by fundamental rights and the rule
of law, which includes Human Rights.
Parliamentary sovereignty
The final power remains with the Queen in Parliament, although nowadays this power is
merely symbolic.
The House of Commons must accept a bill, as well as the House of Lords. Then bill must
attain Royal Assent to become an act.
UK Particularities
The UK is neither a unitary state, because of devolution, but it’s also not a federation.
There is a question whether there is higher law or is all law is the same
It is definitely a flexible system.
It bases on Parliamentary sovereignty with little judicial review.
But due to globalization there is a shift from British exceptionalism to orthodox convergence.
According to Dicey: “The constitution is the result of the ordinary law of the land.”
, Ordinary law is based on case and statute law.
In Thoburn v Sunderland constitutional statutes are described as: “a constitutional statute is
one which (a) conditions the legal relationship between citizen and State in some general,
overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as
fundamental constitutional rights”
Sources of Constitution
Acts of Parliament, because it is enacted by the Queen in parliament her sovereignty is
attached to the bill.
Delegated Legislation, enacted by the ministers and others
EU Legislation
Acts of devolved Parliaments.
Bill/Claim of Rights Act 1689
o Guarantees Freedom of Speech
o Free elections
o And that the law can’t be suspended without the consent of Parliament.
The Parliament Act 111 introduced that the House of Commons could pass an act without the
consent of the House of Lords if the bill has been going forth an back for 3 times in 3
consecutive sessions of Parliament. It also reduced the life time of Parliament from max 7 to
max 5 years.
Again see the case of Thoburn v Sunderland
Common Law
In Entick v Carrington it was set out that if it law, it will be found in our books, if it is not to
be found there it is not law.
Cases:
Axa General Insurance and others v The Lord Advocate [2011] : AXA challenged a 2009 ASP.
The case made plural places problems actionable. The act was challenged under article 1 of
the ECHR and also on the grounds that ASP are subject to judicial review.
Thoburn v Sunderland:
Entick v Carrington: The Secretary believed that Entick was plotting against the state and told
Carrington to seize the papers, but there was not legal ground for this action, therefore the
action was illegal.
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