Lecture notes, lectures 1-10 PDF

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Public Law Lecture Notes

Main elements of the course: • Three main principles: Parliamentary sovereignty (and the extent to which this does, and should apply and operate); separation of powers; rule of law (government should be limited by law) • The institutional framework of the constitution - Parliament, central executive and judiciary • Devolution and the rise of devolved institutions in Scotland, Northern Ireland and Wales • The relationship between the UK and the EU • The judiciary and the Human Rights Act 1998 *Keep track of develops in the news and politics Exam: 4 questions over 3 hours (past exam papers in library)

Lecture 1: Introduction to Public Law and the British constitution Definitions and instances of constitutions • Public Law = constitutional + administrative + human rights law (because in the absence of a codified constitution, public law includes these additional wings and convention and practice) • Constitutional law: • ‘The basic ground rules determining the powers of government and the fundamental rights of individuals’ • There is a dividing line between normal law and fundamental constitutional rights - but where? • ‘The body of rules, conventions and practices which describe, regulate or qualify the organisation, powers and operation of government and the relations between persons and public authorities’ • ‘The set of the most important rules and common understandings in any given country that regulate the relations among that country’s governing institutions and also the relations between that country’s governing institutions and the people...’ • Alternatively, constitutional law is the legal and conventional rules of a political order that • Identify the holder of sovereign law-making authority (i.e. who has the power to create binding law, in this case, Parliament) • Provide the criteria for establishing the validity of any legal rules and lawfulness of executive acts • E.g. the ability of the executive to create statutory instruments and regulations - but are those rules properly authorised by Parliament? • Determining the binding relations between organs of the state • Confer basic civil rights (or sometimes impose duties) on citizens against the state or (rarely) other citizens • A system pertaining to the relationship between different organs of the state, and state bodies and citizens (i.e. both horizontal and vertical applicability) • Some famous written constitutions: • USA (1789): First modern, republican democratic written constitution; reflects the philosophy expounded in the Federalist Papers (1787-88) • In a way, a novel experiment in statecraft, where the ‘Founding Fathers’ had to invent a new form of government Suspicion of monarchical power made it difficult to convince the separate colonies to work as a federal country • • The First Ten Amendments - including the right to freedom of speech - were insisted upon by the state government because of their suspicion of federal government • Very difficult to amend • Canada (1867; 1982): Includes federal division of powers and Canadian Charter of Rights and Freedoms • A constitution created after decolonialisation (as a former dominion of Britain) • The federal constitution is one where the central government has limited jurisdiction; state government has greater jurisdiction in their own state • Germany (1949): Post-war, federal, enshrining basic rights and eternity clauses • Written by German jurists and statespeople, the first article was the right to human dignity, an article which cannot be amended (stated in an eternity clause) • India (1950): Post-colonial, extensive constitution, frequently amended

• India is highly diverse with multiple races, religions and the caste system, which had to be dealt with • South Africa (1996): transformative, modern constitution to create a very far-reaching set of rights (incl. rights to education and healthcare) to aid the post-apartheid country • Basic distinctions between constitutions: • Written/codified vs. unwritten/uncodified constitutions • Previously the prevailing rule was that whatever the sovereign says, goes • Unwritten constitutions tend to be customary, based on traditional practices (but the UK’s is also considered highly egalitarian) • Rigid and flexible constitutions • Constitutional amending formulas can range from very difficult (e.g. two-thirds of Congress and 75% of states in the US; two-thirds of each house in Germany) to fairly easy (by ordinary statute in the UK, and traditionally in cases when statutes conflict, the later one prevails) • In the US and Germany the difficulty is to prevent arbitrary exercise of power to amend the constitution, give stability, certainty and sanctity as fundamental law • Federal and unitary constitutions • Minimal and maximal constitutions • Or the extent to which constitutions seek to regulate (some will go so far into regulating every facet of life, e.g. economic power) - see the Venezuelan constitution The classic pro-liberty constitution tends to be shorter and focussed on upholding civil liberties • The British State • The UK is a constitutional monarchy, where power was stripped from the monarch over years but the monarch’s position and presence remains The growth of the constitution was slow and incremental, without a singular ‘ground zero’ moment • • The constitution is flexible, and per the doctrine of Parliamentary legislative supremacy, the highest law is what the Queen enacts in Parliament as law • The United Kingdom is a unitary, and not federal state, but it devolves legislative power to various national assemblies, and comprises much local government (local authorities), and thus is a multinational state • Since 1998 Scotland, Ireland and Wales have had their own assemblies and are separate nations with their own histories, ethnic identities and claims for home rule • Law and conventions of the constitution: • According to A.V. Dicey, the constitution included the law of the constitution and the conventions of the constitution (Introduction to the Study of the Law of the Constitution) • Law of the constitution consists in various statues of constitutional importance and primarily common law principles • Conventions of the constitution were ‘constitutional morality’ • Dicey also upheld Parliamentary sovereignty and the rule of law Sources of Constitution • Constitutional laws: • Statutes: • Magna Carta 1215 - the first time sovereign power had been limited • Habeas Corpus Act 1679 - no executive authority can detain or imprison someone without judicial validation • Bill of Rights 1689 • Act of Union 1707 • Parliament Acts 1911 and 1949 • European Communities Act 1972 • Scotland Act 1998 • What makes a statue a constitutional statute? One thing is that a statute cannot be impliedly repealed Common law judicial decisions: • • Dr. Bentley’s Case (1723): natural justice and the right to a hearing; the state cannot deny anyone the right to being heard • Pyx Granite (1960): principle of doubtful penalisation - subjecting someone to a criminal charge or taxing them is not permitted unless it is made clear • Wise v Borneman (1971): duty of fair-play

• Jonathan Cape (1976): constitutional convention influences common law • Parliamentary privilege: • Parliament is immune from other organs of the state; no one can be questioned for what they say in Parliament • Prerogative powers: • Discretionary power legally still held by the Crown, but exercised with the advice and consent of the government • A residue of royal power, and not statutory • Important powers: • Giving assent to legislation (which the Queen always does) • Management of the civil service (previously) • Signing treaties (though ratification, by contrast, occurs through Parliament) • War and defence (though an army cannot be kept in peacetime without Parliamentary assent) • Foreign affairs • Prerogative legislation for foreign colonies/overseas territories • Prerogative powers - should they be put on statutory footing and limited? Or the power of advice and consent? The only things limiting the monarch would be political reasons and conventions (in that power should be vested in the Cabinet and not the monarch) • Treaties having direct effect (e.g. EU law treaties, the ECHR - which led to the creation of the HRA 1998) • Constitutional conventions: • Dicey’s definition: • ‘[The conventions of the constitution are] maxims or practices which, though they regulate the ordinary conduct of the Crown, of Ministers, and of other persons under the constitution, are not in strictness laws at all’ • Examples of conventions: • Royal assent given to bills duly passed by both Houses of Parliament • Salisbury-Addison Convention: • Lords will not obstruct a bill containing a manifesto pledge of the government (because a manifesto pledge would be considered the will of the people) • Ponsonby rule: • Treaties must be laid before Parliament for 21 days before taking effect • Codified in the Constitutional Reform and Governance Act 2010 Collective Ministerial Responsibility (in Cabinet) • • ‘All government ministers are bound by the collective decision of Cabinet, save where it is explicitly set aside, and carry joint responsibility for all the government’s policies and decisions’ Cabinet Manual [4.2] • Means that while views can be expressed in private, cabinet decisions must be supported publicly, and privacy of opinions in ministerial committees should be maintained • To create a sense of consistency and certainty, preserve accountability and prevent the Opposition from taking advantage • But if the public needs to identify which ministers are responsible for which decisions, then undesirables could be weeded out • Conventions are recognised when a member of the House expresses an opinion that such has become a convention, or that over time a practice, when used with sufficient frequency and consistency, has become a convention • There is a binding obligation tied to a convention, where the obligation cannot simply be discarded; convention functions as customary law • Further definition: • Ivor Jennings: 1) What precedents? 2) Did the political actors believe they were rule-bound? 3) Is there a good reason for the rule? ‘A single precedent with a good reason may be enough to establish a rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded themselves as bound by it’ In other words, convention is created by usage and a belief in being bound by the rule • • Constitutional principles: • Unlike laws, which are automatically binding, and conventions, which are usually binding, principles are more of a non-binding philosophy or spirit; principles have weight, but no binary quality, and exist to condition how people think about law • Democratic responsibility: • The most important political decisions are taken within the legislative assembly, and specifically in the House of Commons, which is elected regularly with a free and universal franchises

• Ensures the primacy of the House of Commons and importance of elections • Many rules protect the freedom of press and expression, and freedom of speech within Parliament, so that people can decide who to elect and what laws to enact • Although in practice there always must be some restrictions on the freedom of expression and press • Respect for the rule of law: • That any decision by a public authority is made under a law that is clear, open, stable and prospective, and its legality may be tested by independent courts whose proceedings are open and whose decisions are published • Should this include respect for human rights? • Separation of powers: • Power is divided between bodies that are functionally well-suited for exercising, but power is generally distributed so that it is not concentrated unduly in any one institution • These two features of the separation of powers are in tension with one another - there is the need to balance efficiency and accountability Institutions of the Constitution • Parliament: • Origins: • Norman Conquest (1066): dissatisfaction with royal misrule led to the establishment of a ‘Great Council’, an early forerunner of Parliament; it became a forum of complaint and consultation • Magna Carta 1215: • ‘To obtain the general consent of the realm for the assessment of an ‘aid’ • ‘To those who hold lands directly of us we will cause a general summons to be issued, through sheriffs and other officials, to come together on a fixed day (of which at last forty days notice shall be given) and at a fixed place’ • The Parliament was created to give a sense of stability in society, and gather public opinion Present day: • • House of Commons: • Passes bills, which become statues, or Acts of Parliament • Representation of the people: MPs, usually belonging to the main parties • It allows public interest to be discussed and debate • Hold the government to account through select committees that regularly review executive decisions and administration, Prime Minister’s question time The loyal opposition - it shows what’s at stake in Parliament • • Power of the purse: decides the budget House of Lords: • • Legislative process is roughly the same as that of the HoC • Composition: originally of hereditary peers based on nobility, and ecclesiastical peers; then parties and cross-bench peers were added, with life peers and law lords • The party whips still can require party peers to vote the way the party wishes • Revising chamber: frequent amendments to legislation • The HoL, in some ways, allows for changes and improvements to be introduced where there was not enough time in the HoC • The HoL can look at the legislation in detail, and greatly advance the quality of an act • Monarch: • Summoning Parliament • Gives assent to bills • Can dissolve Parliament • Legislative process: • Bill starts in HoC and undergoes three readings, and moves onto the HoL • The first reading is when the bill is announced • The second reading is when the bill is debated • Amendments are introduced in the committee stage (by public bill committees, who can scrutinise the legislation line by line) • The ideas are taken aboard with the report stage

• After the third reading the House decides whether the bill should be agreed upon and passed on, or rejected • After amendments are considered, then royal assent is given • The amendment considerations process is a bit of a ping-pong process between the two Houses considering each other’s amendments • Balance of powers? • The preamble of a statute typically goes: ‘be it enacted by the Queen’s most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled’ • Executive/government: • Monarch: • Often the legal bearer of executive power • The Queen has the ongoing right ‘to be consulted, to encourage and to warn’ her ministers via regular audiences with the Prime Minister (the tripartite convention) There is no clear conception of ‘the state’, as is often the case with republics and esp. in the continental Europe • • Government: • The group party in the position to command a majority (or, to ‘have the confidence’) of the House of Commons, leading to the so-called ‘executive dominance’ of Parliament • Prime Minister (whose powers have no statutory footing as such, but whose existence lives in convention) • Cabinet • Departments/ministries: • Treasury • Home Affairs: prisons and immigration • Foreign Affairs • Defense • Justice • Work and pensions • Health • Civil Service • Agencies • Local Government • Some aspects of health, education and environment are handled by local government • And all these bodies can be subject to judicial review, and are required to abide by common law principles • Courts: • Origins: • The common law, or droit commun • ‘The King’s Bench’ or coram rege • Judicial review: • Common law, originating as a guarantor of legality and protector of the King’s and later Parliament’s power • Grew as a writ to challenge the decisions made under the monarch’s rule - thus it is the monarch who seeks to uphold the law against a public body • R (on the application of Bourgass and another) (Appellants) v Secretary of State for Justice (Respondent) [2015] - the monarch, legally speaking, takes the case on behalf of the claimant The judicial review procedure: • • Permission (most applications are rejected, on the grounds that there is little chance of success) • Substantive hearing • Almost no trials, witnesses or cross-examination - the review seeks to evaluate questions of law based on established facts It grew in the twentieth century, and was very weak at the outset, but increased in prominence during and after • the 1960s • Grounds of review: • Illegality (including the violation of European Convention Rights under the HRA 1998) - acting against the statute • E.g. The Evans case - the statute did not give the Attorney General the power to issue an order based on a mere disagreement • Procedural impropriety: someone should be heard and given the chance to make their case

• ‘Substantive review’ irrationality/proportionality - the executive acts in a way that is grossly unreasonable (the ‘Wednesbury’ test), and it is accepted that Parliament did not intend to confer powers to do unreasonable things • A common law principle to assume that ministers are empowered only to act reasonable? • Judicial independence: • The Jeremy Thorpe issue • Judges are often older white males of privileged backgrounds - fairness in judgement and representation? • The Belmarsh case: the courts declared the Anti-Terrorism, Crime and Security Act 2001 incompatible with the ECHR, and the scope of Parliament’s follow-up statue of the Prevention of Terrorism Act 2005 was also restricted by the Supreme Court • The prisoners (non-nationals) could have been detained without being charged, and could ‘leave’ only in the sense of being deported back to their own country (where they would have been tortured) • The Law Lords said that this measure was not ‘strictly required’ to protect the life of the nation, and if it was, then nationals should be locked up as well Via fast-track legislation, ‘control orders’ would be introduced to limit people’s freedom of movement, and • ‘closed material procedures’ would be continued in the PTA, which was seen as violating the right to fair trial • The Supreme Court stated that controllees must be able to see the ‘gist’ of the case against them • Here, dialogue between the Supreme Court and Parliament occurred over the matter of civil liberties History of the Constitution • The Norman Conquest 1066: • Centralisation of power - all land hold ‘of the king’ and are all tenants of the King - ownership was recorded in the Doomsday Book • Eviction of English nobles and division of lands among Norman nobles • Development of a ‘King’s Court’ • Anger at being dispossessed and taxed led to the practice of granting ‘charters’ to ‘recognise’ long-standing rights and liberties of the Barons and others • Magna Carta 1215 - the growth of liberties and rights • Important charter restricting royal excesses, demanded by the Barons and extracted from King John • ‘No freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by the lawful judgement of his peers or by the law of the land’ • Although at the time only a small percentage of the population were freemen (most were villeins or serfs) • Other rights included allowing the widow of a baron to continue to live in the castle after his deaths Henry VIII (1491-1547) • • Epitomised the royal domination of Parliament • Three important developments: • Act of Supremacy (1534) which formally divorced the realm from the Catholic Church, creating a new church that he was the head of, and also let him dissolve monasteries across the countries (to obtain masses of land and wealth) • Acts of Attainder: the guilt or innocence of a person was determined by Parliament (offending the principle of separation of powers) Statute of Proclamations 1539: the King had the power to repeal Parliamentary enactments • • Henry VIII clauses still exist under statute • Growth of judicial independence - the start of se...