1-introduction to public law PDF

Preview

Summary

Introduction to Public Law - Background of the module...

Description

INTRODUCTION TO PUBLIC LAW Stage 1: Introduction In this Tutorial we will explain what’s meant by Public Law and give you an insight into the basics of a fascinating and vital component of all modern democratic states. Public Law is of particular importance to lawyers as it’s the foundation on which our entire legal system is built. Understanding these foundations will make understanding the detail, and seeing how all the individual pieces fit together, much easier.

Our main focus throughout these Tutorials will be Public Law as it relates to the UK. But we will also take a look at some of the key differences between Public Law in the UK and in some other western democracies. Unlike many other areas of law, Public Law is to a great extent a study of practical politics. So we will be taking a look too at the role of Parliament, the role of the resident of Number 10 Downing Street and their support team. We will also have to consider the place of judges who can have a significant impact on the political realities of day-to-day life which is an important point for you to bear in mind throughout these Tutorials. Stage 2: Scenario Activity This scenario activity will give you a chance to reflect on and articulate your own views on some of the issues central to Public Law. This in turn will help you start to understand the importance of public law to everyone. In two similar incidents, a street is disturbed by drunken youths making their rowdy way home late on a Sunday night. Imagine the following scenarios; 1. In the first incident the noise makers are returning from a stag party. A police constable called to the incident tells them she is considering arresting them and charging them with being drunk and disorderly. They explain that they’ve got a wedding to go to the following morning, and they’re very concerned not Introduction to Public Law_transcript ©The University of Law

1

to miss it (especially the groom and best man who are among their number). The constable tells them they’re not getting off scot-free. But, as an alternative to arrest, she makes them take an expensive taxi-ride home. They call the taxi, and the police officer waits until they get into the taxi to make sure they pay the driver in advance. 2. In the second incident, the drunken youths are all football supporters who have been celebrating after a match. The officer arrests them and they’re ultimately charged with being drunk and disorderly. Read through the statements below and select whether you agree or disagree. Stage 3: Government Functions In the scenario activity you have had chance to reflect on and articulate your own views on some of the issues central to public law based on a case of Anti-Social Behaviour. We have seen that there are at least two government functions which are as follows;

1. Firstly there is the executive function of management of day to day government within legal rules. 2. Secondly there is the judicial function of determining disputes over those rules. A criminal trial is such a dispute, because the accused is disputing their alleged breach of one of the legal rules. 3. The third type of government function is the called “legislative” function, which is concerned with the making of the legal rules. Those exercising executive functions have to operate within these rules, and the judiciary have to rule on disputes over them. In the UK, the legislative role is given to Parliament.

There’s no right or wrong view on any of these issues. It’s part of the constitutional arrangements of a democracy that we’re entitled to our own views, and we express them in many ways, be it through the ballot box, political protest or simple debate. What is important at this stage is you appreciate, whether you realised it or not, that you do have views on these issues, which are central to Public Law. As you progress through these Tutorials keep this activity in mind, and reflect on it to see how your views evolve. introduction to public law_transcript_001398 2

©The University of Law

Stage 4: What is Public Law? Public Law is concerned with the interaction between individuals and the state. Let's consider this interaction from a legal perspective in three broad, linked categories below. Constitutional Law Constitutional law is the study of “political” constitutions, what they are and the principles used to write and uphold them. You may have come across non-political constitutions, can you think of any? Well, many organisations have them, from Companies to social clubs. Of course people choose to be members of these sorts of organisation, and are therefore voluntarily subject to their constitutions. It’s different with a nation’s constitution (we’re all subject to it, regardless of agreement). We’ve no choice in the matter. Such constitutions are called “political” constitutions. For this reason, public law is often referred to as Constitutional law. Administrative Law Administrative law is the name given to the legal process governing disputes individuals have over decisions made by those exercising their executive functions. It might involve a dispute over a grant of planning permission or regulation of air traffic. The process of challenging these sorts of decisions is called judicial review. In these Tutorials we will look at the constitutional role of judicial review as well as some of the basic rules that govern it. This will help you understand when and where in daily life judicial review may be an option. Civil Liberties ‘Civil liberties’ is the study of human rights. You’ve probably heard of human rights and have some understanding of what they are from listening to the news. Public law is concerned with your rights and the level of protection you have against their infringement by the state.

introduction to public law_transcript_001398 3

©The University of Law

Stage 5: What is a Constitution? So you’ve considered what your views are on a number of constitutional issues. Every nation has to strike a balance in relation to these issues. You may or may not agree with where the balance has been struck, but hopefully you can now see that such issues are central to the life of the nation. You’ve probably heard of a constitution in the context of a nation - a political constitution, but may not have really thought about what one actually is. This activity will give you an opportunity to explore your own understanding of the idea of a “constitution” by thinking about issues which lawyers would label “constitutional”. In the following activity, read each question and type your answer before submitting. It’s of course inevitable that the answers we’ve come up with here are pretty simplistic. The questions themselves are so fundamental that they generate continuous debate in academic and political circles. For example, many may argue that the Prime Minister could not take the decision alone to go to war and should consult with Parliament first. The answers to all such questions can be found in the constitution of the nation in question, here the UK. The UK Constitution is not the same as the constitution in most other countries. It’s not written down in a document or collection of documents. Instead our constitution is made up of many different elements taken from many different sources. This makes studying the UK constitution a very different proposition from studying other political constitutions. The answer to the third question may have surprised you if you thought that the Prime Minister could be removed by his own party. You may even recall this happening with Margaret Thatcher, who was removed from office as Prime Minister by the Conservative party. But this occurred under the rules of the conservative party itself, and not the constitution of the state. Such rules are an example of a nonpolitical constitution, as only members of the party concerned are subject to these

introduction to public law_transcript_001398 4

©The University of Law

rules. This is a good example of the need to consider political and practical reality in studying the UK constitution.

Strictly speaking the Queen appoints as Prime Minister the political leader who has the support of the majority of the members of Parliament. This means in practice the political party with the most members of parliament installs its leader as Prime Minister. Hence, removal of the Prime Minister from the position of party leader means they are no longer able, practically speaking, to continue as Prime Minister. So political parties may not have the legal power to remove Prime Ministers, but they do have a political and practical power to do so. Stage 6: What is Administrative Law? As we’ve seen, Administrative law is mostly concerned with judicial review. This is the means of complaint for individuals who believe that government officials (that is, those making decisions that fall within the executive function of government) have made decisions or acted in a way that’s unlawful or in breach of legal rules. Let's look at some examples of when judicial review would be appropriate. Select and flip each of the flashcards to see the examples below. Administrative Law Example If you applied for planning permission to build an extension on your house and the planning officer refused the application due to a personal belief that your proposals would make the house too big for you, and it was selfish to have a big house with so few people in it, you would feel aggrieved. Would the planning officer have acted unlawfully, and would there be a route to redress via Judicial Review? This is a decision made in the planning officer’s official capacity. Most people would, no doubt, feel that it can’t be right for a planning decision to depend on the personal opinions of a public employee.

Criminal Law Example What if the planning officer came to survey your property to help decide if your application should be granted, and pocketed one of your ornaments. This would be theft. It’s a straightforward criminal act by the individual, and has got nothing to do with any public administrative duties. introduction to public law_transcript_001398 5

©The University of Law

In the UK, state officials are subject to the same laws in Tort, Contract and Criminal matters as any private individual. So this would not be a breach of administrative law - it’s not something that could give rise to judicial review proceedings. Contract Law Example In a similar way, if the planning officer commissioned a survey regarding your application, and then refused to pay the surveyor the full fee because they thought the surveyor had not done the survey properly, this would not be a public law issue. It’s a private dispute between the planning officer and the surveyor which would be governed by contract law. Stage 7: Regulations or Directives? This Knowledge Check is designed to help you to recognise when an act could fall within the scope of Judicial Review as a public law issue. We will investigate when Administrative law is and is not relevant, and this will tell us when Judicial Review is available as a means of redress. Let’s imagine the Government is pressured into responding to widespread public fear about the dangers of an Avian Flu pandemic. It passes emergency legislation through parliament making it a criminal offence for anyone to keep wild fowl without a licence from their local authority In which of the following cases is administrative law relevant? Let’s pause-and-review the answers; 1. Scenario 1 describes the commission of a straightforward criminal offence. Nothing has been done which would be considered a breach of administrative law as the wrongdoing is done by a private citizen in their capacity as such. 2. Scenario 2 does reveal a breach of administrative law. The local authority has taken a completely separate issue into account that has no bearing on the application. They have refused the application for a reason which is unlawful. 3. In Scenario 3 there is no public law issue. The legal dispute is a private contractual one between resident and supplier. Stage 8: Civil Liberties Because a constitution governs the relationship between the state and individuals, it can impose restrictions and obligations on individuals, for example criminal law, or introduction to public law_transcript_001398 6

©The University of Law

the requirement to register births. It can also grant civil rights or liberties to individuals.

In many constitutions the granting of civil rights or liberties is central to the constitution. In the UK, however, civil rights and liberties have been granted in a very piecemeal way, the latest very significant addition being the Human Rights Act, which has figured prominently in the news as well as in the courts. Before we go on to consider the Human rights Act and its implications, it’s useful to understand the historic way civil rights and liberties existed in the UK. Prior to the Human Rights Act, the UK’s constitution permitted its citizens to commit any act that had not been made specifically unlawful at the time of commission. This is called residual freedom.

This was a good starting point for granting civil liberties. It does have some problems which you may be able to see. Consider for a moment if you think it would be acceptable for laughing in public to be made unlawful? Clearly this would not be acceptable. Some argue that there should be a legal mechanism to prevent this sort of thing happening. Again it is useful if you reflect for a moment and consider – do you think that we need a legal mechanism to prevent such an absurd law?

Or does the fact that such absurd laws have not been passed persuade you that a legal mechanism to prevent them must not really be needed?

Prior to any such mechanism, we relied in the UK on practical and political realities to prevent absurd legislation. Clearly this works perfectly well to control absurd lawmaking, because no government can hope to remain in power if they propose absurd laws, and they would struggle to get parliament to agree to pass them in the first place. But more difficult questions arise when the infringement of a person’s rights becomes less obviously absurd or unacceptable.

introduction to public law_transcript_001398 7

©The University of Law

And it’s in part to prevent less blatant encroachments of civil liberties that we now have the Human Rights Act protecting our fundamental rights.

Stage 9: Test Your Knowledge In this Knowledge Check, we will examine which human rights you believe are protected and we will see if your understanding accords with the actual position in the UK. Work your way through the rights below and decide if you think they’re protected by the Human Rights Act. Let’s have a look at the present state of play on civil liberties in the UK. You may have thought more rights were protected than is actually the case. This is a common perception fostered by the media, and a source of annoyance to government ministers, who complain that it can distort informed public debate about civil liberties. In general, civil rights or liberties are divided into broad classes. 

There are rights that are social or economic, like the right to work or the right to healthcare.



There are also rights that are political, like the right to stand for election.

Most such rights or liberties are not protected by the Human Rights Act, and not considered fundamental in public law terms. 

Others, like the right to life, the right to personal liberty, the right to speak your mind, and the rights of privacy and freedom to practice your religion, are classed as fundamental personal rights and are protected by the Human Rights Act.



You may have heard talk of the right to bear arms as a fundamental right. This is a certainly a protected right - albeit an increasingly controversial one - in the United States, but not in the UK. On the contrary, it‘s unlawful for people in the UK to walk around carrying arms of any type, without express licence.

We will return to consider the Human Rights Act in greater detail later in the module.

introduction to public law_transcript_001398 8

©The University of Law

Stage 10: Sources of the UK Constitution While the US Constitution is contained in a single document which sets out how the Government is to operate and what the basic rights of the citizen are, the United Kingdom doesn’t have a written constitution at all. Instead, our unwritten constitution is made up of a number of different sources which need to be pieced together to see how things work. It’s helpful to see the constitution of the UK as a jigsaw which can only properly be understood when all the pieces are fitted together.

There are four main general sources of the UK constitution - statute, case law, constitutional conventions and the Royal Prerogative.

Statutes The first source of our constitution is statutes or Acts of Parliament. Although, unlike the USA, we don’t have a single document which operates as our constitution, we do have statutes which are of constitutional importance. For example, the rights under the European Convention on Human Rights were incorporated into the legal system in the UK by the Human Rights Act which was passed by Parliament in 1998. The replacement of the House of Lords by a Supreme Court was part of the Constitutional Reform Act, which was passed in 2005. Case Law Case law, or the common law, is another important source of the constitution, particularly when we are talking about the rights of individual citizens. The principle of residual freedom has developed through the common law. This is the principle that citizens of the United Kingdom are free to say or do anything, unless their intended comment or action has been expressly prohibited by law. Conventions Another important source of the constitution is constitutional conventions. These are political practices that are not laws, but are nevertheless treated as binding by those to whom they apply. An example of a constitutional convention is the giving of Royal Assent to a bill. Once a bill has passed through Parliament, it only becomes an Act of Parliament when the monarch has given Royal Assent to it. Legally, the monarch is introduction to public law_transcript_001398 9

©The University of Law

perfectly entitled to refuse Royal Assent. As a matter of convention, however, the monarch will now always give Royal Assent to a bill that has passed both Houses of Parliament. A further example of a constitutional convention is the doctrine of ministerial responsibility. This convention provides that the Government as a whole is collectively responsible to Parliament for its actions, and that individual Government Ministers are responsible to Parliament both for their personal conduct and for the running of their departments. Also, it is now generally agreed that there is a constitutional convention that the Government must obtain the consent of the House of Commons before deploying the armed forces in military operations overseas. However, the exact scope of this new convention is rather unclear.

Conventions fill the gaps left by the legal rules. In the USA, conventions are generally unnecessary because the written constitution doesn’t leave any gaps. For example, in the USA, there’s no convention that the President will never use his veto to reject legislation which has been passed by Congress. The President can and does use the veto on a regular basis, although Congress may override this if it can achieve a twothirds majority. Royal Prerogative The final major source of our constitution is the Royal Prerogative. The Royal Prerogative is made up of those legal powers, once exercised by the monarch, which are now generally exercised by the monarch on the Government’s advice or by the Government on the monarch’s behalf. Examples of prerogative powers include the power to declare war...