Lecture notes
Lecture notes Year 1 Public Law (Lecture and PBL Notes)
- Module
- Year 1 Public Law
- Institution
- The University Of York (UOY)
Complete set of Year 1 Lecture and PBL notes
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Public LawPublic law: subject structure
Public law encompasses:
o Administrative law
o Constitutional law
o Human Rights Law
Public law: the vertical relationship
The state (make decisions due to statutory rights)
Citizens
Public Law: Institutions of State:
Government – political decisions. Politically aligned
Parliament – broad mixture of party in Common and House of Lords
Devolved governments
Local authorities – make local decisions
The police
National Health Service
Public Law: Citizens and Society
The men/women on the street – normal people with their own opinions
The voter – government wants to appeal to the voter
The tax-payer – how will the government spend your money? Want to appeal to the
taxpayer
Children and vulnerable people – government not always interested in them
o The struggle to bring legal challenges. There are some specialists who represent
their needs eg campaigners
Campaigners and protest groups – eg campaigns against law which allows fracking
o They act on behalf of the citizen
You
Public Law: Separation of powers (from lecture)
Reliant on theories because there is no written constitution in the UK. Different to America
for example
Separation of powers is based on the idea that for good governance, different roles should
be split up to not allow any one group/person to have too much power
The state
Executive Legislature Judiciary
Decide on policy Entity which makes law. Interpret the law, but don’t
direction Guided by the executive really get involved in policy
In reality the boundaries are sometimes less clear. For example, prerogative powers can
challenge the separation of powers because they can be often be used to bypass the
executive
,Further research on separation of powers
Lord Diplock: ‘the basic concept of separation of legislative, executive and judicial power …
had been developed in the unwritten constitution of the United Kingdom’1
There are two main views on separation of powers: (from 2)
o Pure version – Separation of powers is an issue of absolutes. The divide between
executive, legislative and judicial must be clear, and not interfered with under any
circumstances3
o Partial Version – Some breaches of the pure version can be acceptable and
unproblematic, as long as they are done to advance towards the ultimate aim of the
separation of powers; to prevent abuse and tyranny. 4 The acceptability of these
breaches can be considered by evaluating whether it is a constructive or a
destructive breach:
Constructive – They contribute to stopping tyranny. For example, giving the
judiciary the power to strike down unconstitutional legislation by
supermajority gives them some legislative power, but in doing this it stops
the legislature being too dominant and unable to be challenged.
Destructive - they make preventing tyranny less likely. For example,
executive powers to dismiss judges or to pass legislation without the
legislature, would greatly increase the power and dominance of the
executive.
Public Law: Responsibility
Another concept. State has so much power; they need to have accountability and
responsibility. Failed states exhibit lack of responsibility eg abuse of power/corruption eg
Democratic Republic of Congo
Citizens should be able to use law to challenge the state, to hold them to account
As citizens, we also have to be responsible. Eg the architects of human rights also discussed
human responsibilities. This seems to have fallen away
For functioning society we cannot pursue our own interests to the detriment of society
Balance competing interests:
o Eg right to freedom of expression conflicts with right to privacy
Important cases
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (House of
Lords) (also known as GCHQ Case)
o In 1970s and 80s there was conflict between unions and the state
o In 1983, Thatcher was PM and minister for civil service. She disliked unions striking.
Decided people in GCHQ would not be allowed to join unions. There would be no
strikes so no disruption to security of the country. No consultation of change. Only
found out when it was announced in Commons. Went into effect immediately.
Unions were not happy.
o Winter of discontent – period in 1970s of huge amount of industrial action. Labour
government unable to control power of the unions. Thatcher’s decision sat in this
context
1
Hinds v The Queen [1977] AC 195, 212
2
Mark Elliott and Robert Thomas, Public Law (3 rd edn, Oxford University Press 2017) chapter 3
3
Vile, Constitutionalism and the Separation of Powers (Oxford 1967), ch 1.
4
Barendt, ‘Separation of Powers and Constitutional Government’ [1995] PL 599.
, o Judiciary unwilling to deal with them
o The government won because of the national security argument. Didn’t want unions
to disrupt listening stations etc. Also didn’t want to disclose what the listening
stations were doing
o The judiciary entered into new territory – willing to review the source of this
executive power. Review ‘the royal prerogative’
Picken v British Railways Board [1974] AC 765
o Testing theory
o ‘the courts in this country have no power to declare enacted law to be invalid’ – Lord
Simon
o Courts can’t look behind the law and say the process of enacting it was invalid
R (on the application of Jackson) v AG [2005] UKHL 56
o On the Hunting Act. Jackson didn’t like hunting act and tried to question whether
the Hunting Act was valid in the way it became law (because the House of Lords
rejected it, but after a time became law anyway.)
o Parliament Act 1911 said if a bill is rejected on 3 successive sessions (over 2 years) it
can become law
o This was changed to 2 cycles (over 1 year) in the Parliament Act 1949
o Parliament Act 1911 was used to amend its own provision. Court had to decide
whether this was allowed. Court decided it was, so the Hunting Act was valid
, The UK Constitution (independent research)5
What is a constitution?
a constitution is the highest source of power within a system of government. It is a collection
of rules that identify, regulate, and govern the manner in which the institutions of a state
operate and relate to one another. It draws the parameters within which a relationship
between the state and individuals can be fostered
The UK has an uncodified constitution (one of only 3 countries in the world: United Kingdom, New
Zealand, Israel)
codified constitution - is written down in one place, created as such at a given point in time,
and possibly with amendments added in later years
uncodified constitution - is neither created at a given point nor contained within one single
document. It is, in the case of the UK, set out across a range of sources, both legal and non-
legal, written and unwritten, and introduced at various points across our history.
A legal and political constitution:
The UK constitution contains elements of both a legal and political constitution
Legal constitution - legal principles, statutory provisions, and common law rules provide the
substance of the constitution, enforced and implemented through the operation of the
various institutions of the state—Parliament, executive, and the courts
Political constitution – however, because the constitution is not codified, the legal
framework is less clear, therefore there is more flexibility. The political machinery that takes
place within the institutions ultimately seeks to influence and legitimise the exercise of
power is also a defining factor in considering the nature of the UK Constitution
The sources of the elements of the UK constitution fall under 3 categories:
1. Acts of Parliament
Eg Police and Criminal Evidence Act 1984 governs the powers of the police
2. Case law
Eg the Diplock grounds for judicial review
3. Constitutional conventions
These are non-legal (and therefore cannot be challenged in court), but which have
developed for so long and are principles which have been engrained so much within
the structure of the country that they are deemed essential elements of the
constitution. For example there is no legislation setting out the job of ‘Prime
Minister’, it is merely a convention which has been adopted
Structure/principles of the UK constitution
Separation of powers – there are 3 constitutional functions in the UK:
1. Legislative – for making laws
2. Executive – for executing policy and making decisions
The executive is bureaucratic in structure with officers of the executive
branch appointed for their skills in administration or their expertise in a
particular subject regulated by their department. Within the boundaries set
by the Legislature and the Courts, the Executive formulates rules governing
the application of the law
3. Judicial – for resolving and adjudicating disputes
Issues:
5
John Stanton, Craig Prescott, and David Mead, Public Law (Oxford University Press 2018) chapter 1
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