Lecture notes
Public Law 1
- Module
- Public Law
- Institution
- The University Of Kent (UKC)
Lecture notes of 166 pages for the course Public Law at UKC (Public Law 1)
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Public Law Week 2 Lecture 1 Notes LW588Key Themes –
- Considers Areas of law -
- Considers areas of politics
- Examines political theory
- Considers Legal process
- Examines the rights people do and don’t have
- Vindication of rights or the non-vindication of rights (How people’s rights are established and
secured or how there may be gaps and how they are no protected)
Defining law – Law is a body of rules that have a special status within society and within a
political system and society. The distinctive quality of the binding nature of law that makes it
different. This is made by a specific apparatus of the state (e.g. parliament through acts of
parliament and the courts through case law and precedent) and is applied by specify institutions
such as the courts.
There are different types of law these are most commonly acts of parliament and common law
or the judge made law, however there is also the Royal prerogative, international law and human
rights law. Human rights law may be domestic, international e.g. European human rights law.
There is also the law of the devolved assemblies i.e. Scottish parliament the welsh assembly and
the northern Irish assembly.
There are 2 divisions of public law these are -
Constitutional law – Is the law relating to the organisation of the government, the proper
structure of the government and defining the limits of the government. Also concerns the status
of individuals in relation to the state.
Administrative Law - The functions of the government and the role it plays in its citizens and
state have enormously increased during the past few centuries. For instance, government offices
engage in the arrangement of a retirement or pension schemes, revenue sustenance and child
benefits. An extensive number of conflicts emerge from the administration of these systems. The
administrative law has been created to manage the conflicts of people against the decisions of
such administering authorities.
Participatory Democracy – There is more to democracy than voting in an election every 5 years,
there is more to democracy than just the right to vote in an election. It means that people should
have the right and ability to participate within a government. If a democracy is to flourish such as
a population who have access to information and education.
, Public Law Week 2 Lecture 2 Part 1 Notes LW588
Features of the UK Constitution
Most foreign constitutions have a written form, the constitution of the United Kingdom Is not in a
written form. This has many implications, the first is that there is no higher order law enforced by a
constitutional court namely the constitutional law.
In most countries the constitutional court if there was a dispute or that the document of the written
constitution is complied with. The written constitution is usually regarded as the supreme law, all
acts of parliament or congress would need to comply with it. The constitution would have to
determine all the limitations of the government, this would be the highest law in the country.
Because of this in the UK constitution acts of parliament are the highest form of law, these are
however subject to interpretation and the judges can apply constitutional principles to an act,
however they cannot strike down an act for being inconsistent with the constitution or for being
unconstitutional.
One of the ways which the Uk constitution is described is as a parliamentary democracy called the
Westminster model. This means that the government of the day sits within the legislature (i.e. the
conservative government). Another feature is that the Prime minister is not directly elected.
This has advantages and disadvantages some disadvantages are that there is a overlap between the
government of the day (the executive) and the legislature as the government of the day is the
majority party this will give them a strong influence over the law that is made. There is also
advantages like the intense scrutiny that the government will be subjected to.
The House of Lords is a further important aspect of the UK constitution, the UK is a bicameral system
meaning that there are 2 chambers the other being the House of Commons. The House of Commons
is elected whereas the House of Lords is not. To assess the UK as a democracy one of the features we
might want to analyse is the extent to which it is a democracy in its institutional structures of
parliament.
In the house of commons there are 650 MP’S that are elected on a first past the post system. The
electoral system has a huge impact on the government or parliament that is elected. This system is
arguably fairer as you allocate seats to proportional votes. However, this can sometimes result in a
coalition government as it makes it harder to form a single government. This means they can pursue
their agenda in a more sustained way than if they had to compromise with another party.
In the House of Lords until 1999 the largest proportion of peers or members of the house of lords
where hereditary peers meaning that they inherited their seats from their families. There are 92
members of hereditary peers who are entitled to vote can take party wipes or sit as independent
MP’S or Non-Aligned members of parliament. It is considered odd in a modern democracy to have
hereditary element in the legislature.
The House of Lords is larger than the House of Commons at around 800 members, in addition there
are 26 bishops of the church of England that sit in the house of lords as a reflection of the church of
England’s historical authority. The remaining of the 800 peers are life peers who are nominated by
the government, the government will put forward its own choices and some from the other parties
usually in proportion to the strength of the other parties. The Prime Minister can refuse to stop
people if he wishes to.
,How has the Uk transitioned from the feudal monarchy to the modern parliamentary democracy –
- This is down for a large part to conventions; they are very important to the UK constitution
especially as the Uk constitution is not written. Conventions are legal rules of a constitutional
system which are considered as binding. They are not embodied in acts of parliament, but
they are rules that are influential, regarded as significant, important constitutional rules that
should be followed.
- These conventions are the rules that that transform the legal structure into the practise of a
democracy. E.G.
o That the Monarch acts on advice.
o A second convention is that the. Monarch, the queen appoints the majority leader
to be prime minister.
o Another important convention is that is that the monarch gives royal assent to
legislation if it is passed both houses of parliament.
o Individual ministerial responsibility.
o Another important convention is that if there is a no confidence motion in the
government in the House of Commons and they lose that they are expected to
resign.
Conventions moderate the monarch and they also a shape the style of parliamentary democracy.
They play a crucial role in transforming the legal structure in to something akin to the Westminster
style of democratic government.
Public Law Week 2 Lecture 2 Part 2 Notes LW588
Conclusion
A typical account of the UK constitution is that the UK had a unitary system. It was a unitary state
and the parliament is sovereign and they would add one of the twin pillars along with parliamentary
sovereignty is the idea of the rule of law so that the parliamentary sovereignty and the rule of law
and the UK constitution as a unitary state.
Parliament is regarded as a sovereign parliament it means that the laws of parliament are
fundamentally regarded as the top law and to be treated as such by the courts. Even though
Parliaments acts are regarded as the highest form of law in the UK there are still influences on
parliament.
The UK is not a federal state where powers are devolved equally between the federal central
government and the states but at the same time it is not 100% a unitary state i.e. where the central
government (Westminster) has all the powers.
When the UK joined the EU it modified the role of parliament, this is because we signed up to a new
legal order in which in its areas of activity the EU was supreme and could overrule parliament. The
UK has now left and is in the transition phase.
Another influence was the European convention of human rights enacted as the Human Rights Act
1998, this creates a set of obligations as a result of an international treaty and its application into
domestic law.
, A further influence is the devolution to regional parliaments like the Scottish parliament and the
welsh assembly and the northern Irish assembly. They have taken on some local powers.
It’s a political reality that power has been transferred to different intuitions, which may not 100% fit
with its categorisation as a unitary state.
In Conclusion the UK has a legal structure that looks ancient. Transitions to create parliamentary
democracy and to reflect the rise of elections from the early 19th century and early 19th century in
particular, almost from 1832. Throughout the 19th century, conventions developing as to the primacy
of the elected component of the House of Commons and the transfer of powers from the monarch
to the prime minister based through an electoral element., what we now understand to be a
democracy or bit unfinished business, perhaps if we think that there are changes still can be made.
There are other distinctive features of the United Kingdom Constitution is common law system. The
power of the high court, inherent jurisdiction of the high court, and the creation of the common
rules that have formed through into judicial review as well.
Public Law 1 Week 4 Lecture Notes – Democracy – Part 1
What is PUBLIC LAW -
- Relationship between the State and the Citizen
- Power of the State v Rights of Citizens
- The State: Made up of the Legislature (makes the laws); Executive (which applies the laws) and
Judiciary (which interprets the laws.)
o Separation of Powers and a system of checks and balances (which enable the legislature
to hold the executive accountable) including Judicial Review
- Constitutional Law
o Core law of any country
o Highest law of the land
o And any other laws, customs, beliefs, views and traditions must conform to and comply
with the constitution.
o Grandparent of all laws
o Can be written (codified) but isn’t always like the UK (Uncodified constitution).
o Fundamental/core law within a polity
- Authority to govern; Allocation and Limits of power; Rights of citizens
o Individuals who exercise power on behalf of the state
How do they get their authority to govern.
How is power allocated and what are their limits.
HOW IS SOCIETY ORGANISED AND GOVERNED?
- How society is governed is defined by a set of ideas or beliefs that are dominant at any given
time.
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