Elliott and Thomas ch 1-2 summary PDF

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Elliott and Thomas ch 1-2 summary
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Elliott and Thomas: Chapter 1 - What is public law? o What constitutes “a state” & how the state functions o Public law: 1. Institutions a. the executive (the government), the legislature (the Parliament), the judiciary 2. Constitutional principles a. they govern the roles and powers of the institutions & their interrelationship; embody certain ideas about how a constitution/the state in general operates&how it should operate b. most important constitutional principles in the UK i. parliamentary sovereignty ii. the rule of law iii. the separation of powers 3. Constitutional practices – how 1 and 2 work together in practice a. Constitution = “[a living, practical and dynamic] set of political and legal relationships” (Elliott p.5) UK = liberal democracy = system of constitutional government based on an elected & limited government and the rule of law; essential comps: oRepresentative democracy oFree and fair elections oA separation of powers into different branches of the state oThe rule of law oThe equal protection of human rights, civil liberties, and political freedoms for everyone b. other important constitutional principles in the UK: i. uncodified constitution ii. common law of precedent [parliament can amend the common law if it wishes] iii. constitutional conventions = non-legal principles & norms of political & constitutional conduct  example: govt accountable to parliament for its policies, decisions and actions  Queen follows the advice of her ministers iv. constitutional monarchy – much political power is formally exercised in the name of the Crown [Queen is Head of state] v. democracy – the govt and the parliament draw their legitimacy from the democratically expressed views of the electorate vi. elections vii. referendum – popular endorsement which grants legitimacy viii. bicameral Parliament  House of Commons – elected  House of Lords – unelected, fewer powers

ix. parliamentary government  the government can only govern if it has the confidence/support of a majority of MPs  government must have a majority in the HoC to govern x. prime ministerial government xi. collective ministerial responsibility – ministers must present a united front once policy objectives have been reached (but can express views privately) xii. accountability =  government can only wield extensive power if it is held to account for the exercise of such power xiii. ministerial responsibility & parliamentary scrutiny -- govt and its ministers are subject to parliamentary accountability and scrutiny xiv. parliamentary privilege – absolute freedom of speech within parliament xv. judicial independence  judges must be protected from political interference from the other 2 branches  government has a statutory duty to uphold the independence of judiciary xvi. administrative law  individuals can use courts to ensure govt follows the rule of law – courts check&control the legality of govt policies xvii. judicial review = courts review the lawfulness of government decisions by applying both statutory rules & common law principles  legality – govt must not exceed the limits of its legal powers  procedural fairness – govt must adopt fair procedures in decision-making  reasonableness – govt must not make any irrational/perverse decisions  proportionality – restrictions on human rights must not go any further than strictly necessary xviii. human rights, civil liberties xix. freedom of expression xx. equality xxi. constitutional right of access to justice Devolution -- power is concentrated in the hands of the UK central govt; has progressively been distributed at different levels of the UK constitution – Scottish, Welsh, Northern Irish govts; as well as local authorities. Parliamentary sovereignty - Parliament can make and unmake any law - no form of law higher than an Act of Parliament, only parliament can make [primary] legislation - courts cannot strike an act of parliament as “unconstitutional”, can only interpret and apply - no entrenched legislation – anything can be removed simply by striking an act of parliament - government is also bound by legislation The rule of law = government & other public bodies are bound by the law and legal principles

The separation of powers = powers of the state are allocated to three institutions - the executive: governs the country - the legislature: enacts legislation & holds government to account - the judiciary: decides legal disputes & upholds the rule of law UK – made up of 4 countries:  Great Britain -- England, Wales, Scotland  Northern Ireland British Isles – UK + Republic of Ireland The UK Supreme Court – the only court with jurisdiction over the whole of the UK Bill of Rights (1689) – monarchy restored (1660) after the English civil war, but on the basis that the Crown was subservient to Parliament UK constitution – unwritten, flexible, high degree of continuity (practices from the past are often drawn upon as precedent to determine what the constitution currently is) Human Rights Act 1998

Elliott and Thomas: Chapter 2 General functions of a Constitution: - Allocating state power o Among different institutions (vertical) and tiers (horizontal) of the government o Setting out the limits to government power, balance between o Government power limited by individual freedoms - Accountability - Legitimacy and consensus o Purpose of a constitution: to allocate power in a manner that is regarded as morally acceptable o Legitimacy of laws – those making them have been authorised to do so by the majority of those governed by said laws o Fundamentality - Focus on important matters that there is generally a natural consensus for - Permanency o The ease with which a constitution can/cannot be amended o Too easy- lose their guarantee of what is considered fundamental o BUT the constitution will always be to some extent affected by the views of person writing it; could lead to relying on courts to interpret provisions that are out of date UK Constitution  UK’s constitutional arrangements have no special legal status o lack of permanence o no fundamental constitutional values to act as brakes for the govt  UK lawmakers are legally capable of enacting legislation that conflicts with fundamental principles and rights – but usually choose not to Case studies: 3.1 The Anti-terrorism, Crime and Security Act 2001 o The government (executive) could imprison people who were suspected to be foreign terrorists for an indefinite period of time o Not on the basis of criminal charges proven beyond reasonable doubt o But on the basis of suspicion – reasonable belief (!)

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Detainees could not know the case against them or the evidence that led to their detainment

How and why was the government able to get Parliament to confer these extraordinary powers upon it? o Government’s majority in Parliament o The shock from 9/11 led to very little scrutiny being placed upon the Act, and it passed easily- all politicians wanted to be seen as tough and decisive on this matter o Lack of democratic legitimacy for HoL (due to the unelected status of its members) -> limited power to object o The UK constitution imposes no absolute limits upon the authority of lawmakers o The courts function on a presumption that the lawmakers did not mean to introduce legislation that would offend basic constitutional principles – thus they interpret legislation is such a manner that is consistent with constitutional principles (if that’s possible) Human Rights’ Act 1998 o Authorises courts to decide whether legislation is compatible with some human rights o If not – courts issue a declaration of incompatibility  Issued in case of the 2001 Act o Under the act, it’s possible to suspend certain rights if there was an emergency that justified these means 

The Parliament is not subject to any absolute constitutional limits o By extension, this augments the executive’s power

3.2 Prisons  Key policy goals: o Punishment and rehabilitation of offenders o Protection of the public o Reduction of future reoffending Prison Act 1952 o Administrative legislation – lays down the legal rules as to how a particular part of government is to operate, be organized and fulfil its policy objective o Confer legal powers and obligations on administrative agencies so that they can perform their public functions o The executive actually bears most of the law-making burden – keeps the state functioning through secondary legislation o Transfer of responsibility for the prison system from the Home Office to the Ministry of Justice -- announced to the Parliament through a written statement, no previous discussion o Since the government is very extensive, it must be effectively held to scrutiny and to a set of standards 3.3 Constitutional reform How is constitutional reform undertaken in the UK? o Labour govt 1997-2010 – extensive reforms, including devolution, HRA, switch to SC from HoL, etc. o Relative ease with which these reforms were achieved o The more difficult it is to amend a constitution, the better we will prevent amendments that are poorly thought through, disjointed, etc. o West Lothian question – English votes for English laws o Piecemeal & informal nature of constitutional reform in the UK

Constitutional reform becomes a rolling process, without finality o Reviewed often o High degree of flexibility, allows them to adapt to changing circumstances o Some arrangements should be easily amended (technical), but not all (fundamental principles etc.) o...