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1. Intro to Con & Ad + UK Constitution
Created @October 3, 2022 12:19 PM
Class CON & AD
Type Lecture
Module structure
Examines and analyses UK public law
Distinguished from private law
Elliot and Thomas (p3):
“about governing”
“concerned with how a state is constituted and functions”
“regulates the relationship between the individual and the state”
Comprises constitutional law and administrative law
Different from most other law modules
Structure
Term 1: Constitutional law
Foundational matters
Theoretical principles (e.g. separation of powers)
Fundamental topics
Reform (e.g. Bill of Rights?)
Term 2: Administrative law
Approach: contextual and comparative
1. Intro to Con & Ad + UK Constitution 1
, Administrative matters
Main text: Mark Elliott and Robert Thomas, Public Law (4th ed, Oxford University Press,
2020) available online here.
Public law
how a state is constituted & functions
principles & rules to regulate the system of government
the public institutions that together govern a country, their powers, and the relationships
between them
regulates the relationship between the individual & the state
provides the means by which:
government is controlled & held to account
individuals can secure protection of legal & human rights against government
2 main parts:
Constitutional law - overall constitutional structure of government
Administrative law - the law and legal principles that check and control governmental
action
3 things that make public law:
Institutions
Constitutional principles
Constitutional practices - how those institutions & principles work in practice
Basic structure of the states (3
branches/institutions)
Legislature (Parliament) - political
Elected by the people, holds the government to account
Makes laws - called legislation, statutes, or Acts of Parliament
Bicameral, but comprises 3 parts:
House of Commons (primary chamber)
650 members (MPs) - popularly elected
House of Lords
1. Intro to Con & Ad + UK Constitution 2
, 800 members (MPs) - appointed, with some hereditary peers
Monarch (King)
Executive (the “Government”) - political
Typically the most powerful institution (Elliot and Thomas)
Comprises Prime Minister and ministers
By constitutional convention, all ministers (including PM) are members of either the House of
Commons or House of Lords
PM - normally the leader of the party that wins the most seats in the House of Commons
Judiciary - legal
Determine legal disputes or cases between litigants
Interpret legislation as enacted by the legislature, develop and apply principles of common
law
Independent, not populated by politicians
Not elected, appointed through an independent & non-political process
“We live in a representative democracy. The House of Commons exists
because the people have elected its members. The Government is not
directly elected by the people (unlike the position in some other
democracies). The Government exists because it has the confidence of the
House of Commons. It has no democratic legitimacy other than that. This
means that it is accountable to the House of Commons – and indeed to the
House of Lords – for its actions, remembering always that the actual task
of governing is for the executive and not for Parliament or the courts.”
UK Supreme Court, Miller/Cherry (2019), para 55
Parliamentary vs. Presidential
Presidential
President is directly elected by the electorate
Their power is balanced by a legislature (e.g. Congress) that is also popularly elected
1. Intro to Con & Ad + UK Constitution 3
, President alone has general responsibility for public affairs, but can appoint ministers/cabinet
to assist
Ministers are accountable to the President, not the legislature
Neither President nor ministers can be members of the legislature
Clear separation of powers
E.g. US, Latin American countries
Marked by 4 main features:
Head of state and government - Presidents perform ceremonial duties as head of state
and are in charge of the executive branch
Execution of policy - Presidents appoint cabinets to advise them and run the main state
bureaucracies
Dependence on the legislative branch - Presidents initiate legislation but depend on the
legislature to pass it into law
Fixed tenure - most are restricted to 1-2 terms of office
Parliamentary
Executive is not directly elected, but usually emerges or is drawn from the elected legislature
(e.g. Parliament or an assembly)
Executive usually consists of a prime minister (aka chancellor/premier) and a cabinet/council
of ministers
Executive has collective responsibility among its members for government affairs, so cabinet
(including PM) is jointly responsible for actions of government
Executive is dependent on and accountable to the legislature
Less clear separation of powers - especially where
the leader of the party with most support in Parliament becomes the PM
PM forms a cabinet usually chosen from MPs, and the cabinet then forms the core of
government
the government is dependent upon the support of Parliament, which may remove the
executive from power with a vote of no confidence
Not limited terms of office
E.g. UK, Commonwealth, older democracies of western Europe
Links
1. Intro to Con & Ad + UK Constitution 4
, Presidentialisation - while presidential and parliamentary systems theoretically operate in
different ways, in practice they tend to converge. Both depend on a close working
relationship between executive and legislature. Although a president’s power is formally
greater than a PM’s, modern PMs seem to be accumulating power so that they become
increasingly ‘presidential’, e.g. British PMs and German chancellors.
Advantage of parliamentary over presidential - strong and stable government by fusing
executive & legislature? e.g. Australia, Britain, Canada, Denmark, Japan, etc.
Party systems may be more important than constitutional arrangements in determining the
stability of parliamentary systems
Strong, stable, disciplined party majority = executive can usually depend on majority
support in the legislature = stability
Fragmented, volatile parties & small, uncertain majorities = instability
Where party discipline in Parliament is strong, PMs can also be strong and dominate their
parties & Parliament, thereby reducing the effectives of checks & balances built into
parliamentary systems
Semi-presidential
Created by the French Fifth Republic in 1958
Hybrid/mixed/dual-executive system
Combines a directly elected president who shares power with a PM
The president has powers to:
appoint PMs from the elected assembly and dismiss them
dissolve Parliament and call a referendum
declare a state of emergency and is given substantial powers to deal with it
The PM appoints a cabinet from the assembly, which is then accountable to the assembly
Therefore has both a strong president (of presidential systems) and the fused executive &
legislature (of parliamentary systems)
Found in few democracies, e.g. Finland, France, Portugal, central Europe
There are indications of a tendency to move away from this system
Comparisons between all 3 systems
Features:
1. Intro to Con & Ad + UK Constitution 5
, Controversy:
1. Intro to Con & Ad + UK Constitution 6
, Constitutional principles
Parliamentary sovereignty
UK Parliament can make and unmake any law
No form of law higher than an Act of Parliament
The courts cannot strike down legislation enacted by Parliament as unconstitutional, they can
only interpret and apply such legislation
Parliament cannot bind its successors
1. Intro to Con & Ad + UK Constitution 7
, Constitutional practices (in reality):
enacted laws depend on matters such as the relative balance of power between
Parliament and the government
Parliament’s ability to hold the government accountable depends on matters such as
having the necessary information, time, and expertise to scrutinise the government
The rule of law
The government and all other public bodies are bound by the law
The courts review government decisions to ensure that they are in accordance with the law
The law includes:
Legislation as enacted by Parliament
Common law principles developed by the courts through case law & precedent
Constitutional practices (in reality):
what the law requires in the circumstances of a particular case is often disputed and
uncertain, hence long cases of litigation
Separation of powers
State powers are allocated to three institutions
Purpose is to:
avoid the overconcentration of power
ensure checks and balances in the constitution
UK
Unique structure
Made up of 4 countries with 3 separate legal systems:
England and Wales
Scotland
Northern Ireland
Only the UK Supreme Court has jurisdiction over the whole of the UK
Unusually high degree of institutional and constitutional continuity:
unlike other countries, no fundamental constitutional moment (e.g. revolution, war,
change of regime)
constitution has grown, developed, evolved over time
1. Intro to Con & Ad + UK Constitution 8
, flexible and unwritten constitution
History:
English civil war in 17th C - turbulent period for constitutional changes
end of WW2 in 1945 to 1980s - relative constitutional stability
1990s to present day - considerable constitutional change and upheaval prompted
by:
1. the need to update & modernise the UK’s governing arrangements - e.g. the
Labour government introduced HRA 1998
2. disagreement & dissatisfaction concerning the UK’s governing arrangements -
growing sense that government has become too powerful and Parliament cannot
properly hold it to account, this dissatisfaction is reflected in Brexit
Political parties & their policies
Centre-right - Conservative Party
developing a strong capitalist economy through increased competition
relatively low taxation and public spending
reduced state intervention
empowering people to solve their own problems
Centre-left- Labour Party
promoting social justice and equality
increasing taxes to pay for better public services
greater state intervention
strengthening workers’ rights
Liberal democracy
The UK is a liberal democracy - a system of constitutional government based on an elected &
limited government and the rule of law, essential components are:
representative democracy
free and fair elections
separation of powers into different branches of the state
the rule of law
equal protection of human rights, civil liberties, and political freedoms for everyone
Constitutional principles
1. Intro to Con & Ad + UK Constitution 9
, No written/codified constitution - scattered amongst pieces of legislation, court
decisions, constitutional conventions, codes of conduct, and practices
The common law - developed by the courts through case law and judicial precedents
in light of Parliamentary sovereignty, Parliament can amend the common law, but this
does not happen often
Constitutional conventions
heavily relied on in UK constitution
non-legal principles & norms of political and constitutional conduct
e.g. the government is accountable to Parliament for its policies, decisions, actions -
not in statute but reflected in ‘The Ministerial Code’
e.g. Ministers must also be members of either the House of Commons or the House
of Lords - to ensure that a Minister is available in Parliament to answer questions put
to the government about its policies/actions
Constitutional monarchy - much political power is formally exercised in the name of the
Crown
but the monarch must remain neutral and not become involved in politics
in practice, they follow the advice of their Ministers (constitutional convention)
Democracy - the government and the House of Commons are elected by the people
through a general election
the people are not directly involved in every decision, but hands the power to the
government, who is subject to scrutiny by Parliament, the electorate, and the media
Elections - the principal elections in the UK are called general elections, in which the
people vote directly on membership of the House of Commons and also indirectly on
which political party should form the government
Referendum - where people vote directly for/against a specific policy proposal
Parliament and government
A bicameral Parliament - two chambers:
House of Commons (the elected chamber)
House of Lords (the second or unelected chamber) - fewer powers
Parliamentary government - the UK government can only govern and survive in office if
it has the confidence of a majority of MPs in the House of Commons (fundamentally
important constitutional convention)
Prime ministerial government - the PM leads the government of the day, is not
personally elected by the people but is rather the leader of the political party that has a
1. Intro to Con & Ad + UK Constitution 10
