Public Law
This module guide will explore the principles and theories of public law. It is also beneficial to
have an understanding of the different political theories which underpin the different models of
public law.
It is imperative that each section in this guide is learned, as many of the principles operate
concurrently or interlink, and are better understood with knowledge of each section. Here is a
breakdown of the main sections:
Constitutional Fundamentals-This module will touch upon constitutional institutions, their roles
and conventions before exploring what a constitution is and providing a comprehensive
comparison between a written and an unwritten constitution. There will also be an examination
of the sources of the constitution.
The Rule of Law -This module will consider the history of the conception of the rule and its
main aspects.
Parliamentary Sovereignty-This module will delve into the history of Parliamentary sovereignty
before investigating its sources and theories.
The Royal Prerogative- This module will inspect the relationship between the monarch and
Parliament.
Government & Accountability- This module will study the executive and public law powers,
mechanisms for executive accountability and Parliamentary scrutiny of government.
Legislative Functions -This module will aim to clarify legislative functions, the different types of
legislation and the role of the legislature.
The European Union- This module will explain the history of the European Union, European
Union institutions and European Union law.
The Human Rights Act-This module will address what human rights are and how the Human
Rights Act 1998 and the European Convention on Human Rights intertwine.
The Judiciary -This module will look at the structure of the judicial system and the role of the
judiciary, as well as the separation of powers doctrine.
Judicial Review - This module will deal with the grounds for judicial review, the history of
judicial review and the its effectiveness.
Administrative Justice- This module will analyse the system of tribunals and the role of
ombudsmen.
,What exactly is public law?
Public law affects several parts of our day to day lives; this includes, for example, immigration,
health, the environment and education. In its most basic terms, the role of public law is to
regulate the relationship between the state and individuals. In addition, public law refers to the
state’s special powers to run the country; meaning its power to enforce, apply, implement,
make, repeal and amend the law. This area of law is also often referred to as constitutional (the
law which founds the state's key institutions and provides its framework) and administrative
(the law which provides individual public authorities and bodies with their legal duties and
power) law.
Why is public law important in today's society?
As there exists an unequal relationship of power between the state and individuals, public law is
especially important because it provides checks and balances. This means that this area of law
ensures that the government does not abuse its power over individuals and that they use their
power in a fair and proper manner.
Constitutional Fundamentals
Constitutional Institutions
The Separation of Powers
Public law regulates the relationship between the state and its organs, and private
citizens. Public law is a shorter way of describing constitutional and administrative law.
Constitutional law is the law that provides a state framework and establishes its principle
institutions and the interrelationships between these institutions. Administrative law confers
the legal powers and legal duties of public bodies and authorities.
The separation of powers serves an essential democratic function, since it enables the three
main powers of the state to act as a check on the absolute exercise of power. These powers are
divided between three principle branches of government. Firstly, the legislative branch has
powers to create legislation and to represent the views of the people. Second, the judicial
branch is the systems of courts and tribunals who have powers to interpret legislation passed by
the legislature and to adjudicate on legal disputes. Thirdly, the executive branch has the
responsibility of making and implementing public policy.
Throughout history, many constitutional writers have regarded the separation of powers
principle as representing the ideal structure of government. Charles Louis de Secondat,
otherwise known as Baron de Montesquieu wrote about his observations whilst travelling
around Europe between 1728 and 1731. He is one of the writers who is most closely associated
with this doctrine. In The Spirit of Laws, Montesquieu warned against the use of power in a
'tyrannical manner' if it was not divided between the three branches of government. Much of
,his observations were carried out within the court of George II in England, moving in political
circles and formulating much of his work based on the English government of the time.
Modern democracies tend to now exist as a partial, or 'checks and balances', conception of the
separation of powers, which includes the ability of one branch to involve itself in issues that are
primarily the concern of another branch. Constructive breaches of the strict separation of
powers doctrine can contribute to the overall goal of preventing tyranny;
whereas destructive breaches pose a threat to that goal. Many states with constitutions based
upon the tripartite system have experienced the development of many administrative organs
that carry out many of the daily tasks of government. These agencies do not fit easily into any of
the three branches.
The UK possesses governmental bodies, some of which are headed by government Ministers,
which do not fit exclusively into either the executive, judiciary or legislature. Although very few
countries adhere rigidly to the separation of powers doctrine, most constitutional systems do
attempt some form of demarcation between the legislature, executive and judicial organs of
government to avoid abuse of power by any one of the three branches.
Separation of Powers and the Constitution
The exact position of the doctrine of the separation of powers within the UK constitution is
unclear. There are various different views as to whether the doctrine is part of the UK
constitution. In Hinds v The Queen [1977] AC 195, Lord Diplock stated that he was certain that
'the basic concept of the separation of legislative, executive and judicial power...had been
developed in the unwritten constitution of the United Kingdom'(at 212).
In The English Constitution (London, 1867) Bagehot argues that the
"efficient secret of the English Constitution may be described by the close union, the nearly
complete fusion, of the executive and legislative powers".
There is a significant overlap in the work of the executive and the legislative branches, with the
executive exerting a substantial influence over the work of Parliament. This creates a threat to
the ability of the separation of powers doctrine to effectively prevent the abuse of power in the
UK. At the same time, there are examples where separation of powers is strictly adhered to,
such as in relation to the independence of the judiciary. Opinions vary on how best to achieve
the balance between the separation of government institutions and the need for those
institutions to work together and cooperate. There is no single answer to achieving the right
balance.
In R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513 the
Home Secretary was unwilling to invoke powers under s 171(1) Criminal Justice Act 1988 which
introduced a new scheme to offer compensation to victims of criminal offences. Since the Home
Secretary was refusing to put into effect powers vested in him by the legislature, the case raised
, the question as to whether such a refusal was in accordance with the doctrine of the separation
of powers. The Home Secretary was in effect repealing an Act of Parliament, which was not
within his power to do so.
A three-fifths majority of the House of Lords held that the Home Secretary had exceeded his
powers. The majority found that he had acted unlawfully by ruling out the possibility of the
implementation of the statutory compensation scheme. The minority judgment held that since
the legislation was not yet in full force, it was inappropriate for the court to intervene, making
the issue a political one. Judicial intervention in their view would involve a breach by the
judiciary of the separation of powers doctrine. The case illustrates how a different emphasis on
one particular aspect of the separation of powers can lead to a different conclusion. The
majority emphasised the importance of the executive not overreaching its powers, whereas the
minority considered the non-interference of the judiciary in areas beyond its concern as the
overriding factor.
The important aspect regarding the separation of powers doctrine, thus, is less in its specific
formulation, but in its ability to prevent the abuse of power of any one of the three branches of
government. Although appearing simplistic, complexity is introduced when various parts of the
doctrine are interpreted as taking precedence over others and the need to balance the
doctrines checks on abuse of powers with the need for branches to co-exist in relationship with
one another. The three branches of government will now be examined in further detail.
Example Exam Question
Assess the importance or otherwise of the doctrine of separation of powers in relation to the
constitution of the United Kingdom
The Institutions - the Executive
The executive branch of the UK government is comprised of the Head of State, or monarch, the
Prime Minister, the Cabinet, Secretaries of State, ministers of the Crown, departments of state,
other public bodies, devolved administrative bodies, local authorities, the police and the
military.
The Prime Minister is appointed by the Head of State; if appointed after a General Election, this
takes place soon after the outcome is announced. The formal process involves the outgoing
Prime Minister tendering his or her resignation to the monarch, and then his or her successor is
requested by the Head of State to form a new government.
The powers of the executive
Primarily the executive has a vast array of statutory powers afforded to it by Parliament. Since
Parliament is unable to legislate for every eventuality, the Inquiries Act 2005 makes provision
for inquiries into matters of public concern, so that every time something of public concern
