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Introduction to Public Law 1 What is public law? There is two aspects of public law, including the interaction within the state and how we as indiviuduals / companies interact with the state.1 Public law or private law? Private law is between individuals E some aspects of family law, contract law a...

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1.

Introduction to Public Law

1.1 What is public law? There is two aspects of public law, including the interaction within the state and how we as indiviuduals / companies interact with the state. Activity 1 Watch the short video clip about what elements make up the state. Monarchy (HM the Queen), Police, Parliament, Bank of England, Local council/authority (Education/social care etc…) Central government, prison service, Judiciary Think of at least one occasion when you or a friend or member of your family came into contact with part of the state.

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Public law or private law? 

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Private law is between individuals E.G some aspects of family law, contract law and company law. Key areas of public law:

Constitutional Law - Three constitutional principles are:  the separation of powers,  the rule of law,  parliamentary supremacy. Administrative Law - Take it to court – judicial review Rights and freedoms - Based on European convention on Human Rights 2. -

What is a Constitution? A constitution is a set of rules about how a particular organisation should be run

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Features of the UK Constitution Unwritten Flexible in the way it can change the constitution in contrast to the US as there aren’t special procedures in order to amend this. Monarchical Parliamentary – head of Government sits within the law making body. Unitary

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Activity 2 Consider the following questions: a) Do all states have a written constitution? No but most states do, the UK constitution is unwritten. The UK has an uncodified constitution.

4. S Le In brought into UK law by the Human Rights Act 1998.

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4.1 Statutes Some acts have constitutional importance.

Magna Carta 1215

Bill of Rights 1689

Act of Settlement 1701

Acts of Union 17067

Parliament Acts 1911 and 1949

European Communities Act 1972

The end of the monarch's absolute power. For the first time, the monarch's powers were formally limited and rights granted to some - but not all - individuals. These included the right to protection against unlawful imprisonment and the right to trial by jury. More adjustment of the power balance between King and Parliament. Monarch no longer able to suspend Acts of Parliament or impose taxation without Parliament’s consent. Parliament should meet on a regular basis, elections to Parliament should be free from interference by the monarch, and Parliament should have 'freedom of speech and debates’. Succession to the throne altered: Catholics prohibited, male heirs given precedence. Independence of the judiciary secured: Judges cannot be arbitrarily removed. England and Scotland united under a single Parliament of Great Britain (the Parliament at Westminster). Also, provisions to preserve the separate Scottish church and legal system. Power balance between elected House of Commons and unelected House of Lords altered. Now legislation could be enacted without the consent of the House of Lords.

After the Government signed the European Economic Community (EEC) Treaty (now the Treaty on the Functioning of the European Union (TFEU)), Parliament passed this statute to bring EEC law (now EU law) into our legal system.

Gave the police extensive statutory powers of arrest, search

Police and Criminal Evidence Act 1984

Public Order Act 1986

Human Rights Act 1998

Acts of Devolution (e.g. Scotland Act 1998)

Constitutional Reform Act 2005

and detention, but also contained important safeguards to prevent abuse of these powers. Provided a statutory basis for placing limitations on the rights of citizens to hold marches and meetings in public places.

Brought the European Convention on Human Rights into our legal system. For the first time, citizens could raise alleged breaches of human rights before domestic courts.

Created a devolved system of government in various parts of the UK. Acts establishing a Scottish Parliament and assemblies in Wales and Northern Ireland decentralised the process of government and gave greater autonomy to these parts of the UK. Reformed the office of Lord Chancellor. Lord Chancellor's powers as head of the judiciary given to another senior judge, the Lord Chief Justice. New Supreme Court replaced the Appellate Committee of the House of Lords. New body (Judicial Appointments Commission) to appoint judges.

4.2 Case Law Decisions of the courts – judges may lay down important constitutional principles Judges constantly interpret acts of parliament. Constitutional principles: (a)

Legal disputes must be resolved by the courts Case of Prohibitions (1607) 12 Co Rep 63

(b)

Involved a land dispute and the king tried to resolve this by making a ruling and the courts decided that the king could not make this ruling Actions of the state must have legal authority Entick v Carrington (1765) 19 St Tr 1030

(c)

There must be a legal basis if the state exercises power over us as individuals Entick wrote some articles criticising the Government. Government minister issued a warrant for arrest of Entick and a search of his house. The courts could not find any legal authority and so the Government minister acted unlawfully. Evidence obtained by torture is inadmissable

A v Secretary of State for the Home Department (No. 2) [2005] UKHL 71 -

A had been suspected as terrorists and certified for this. This decision was based on evidence that was obtained during torture and so should not be used. House of Lords agreed and said that evidence obtained by torture cannot be used in court.

Interpretation R v Secretary of State for Transport ex parte Factortame (No. 2) [1991] AC 603 - Involved the court interpreting the European Communities Act 1972. - If there is a conflict between EU law and UK law, some EU law will take priority. 4.3 The Royal Prerogative Definition: ‘…the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’ Dicey ‘An Introduction to the Study of the Law of the Constitution’ (1885) -

Although they are technically still the monarchs powers, they are now used by her on the advice of the Government or they use the powers on the Queens behalf.

Legal Power

Prer Prerogativ ogative Power ogativ eP ower √

Royal Assent to Bills Appointment of QCs

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Appointment of Prime Minister

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Appointment of Government Ministers

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Declaration of War

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Deployment of the Armed Forces

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Entering Treaties

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Mercy and Pardon

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Fixed-Term Parliaments Act 2011 - Used to be a prerogative power - No new powers can be created – residual - Prerogative powers can be changed or abolished by Government. 4.4

Constitutional Conventions

Definition: ‘Rules of constitutional behaviour which are considered to be binding upon those who operate the constitution but which are not enforced by the law courts’ Marshall and Moodie, ‘Some Problems of the Constitution’ -

There will be a legal rule that a convention has an impact on what happens in reality. By convention, the prime minister will advise The Queen to give assent. Ministers must have ministerial responsibility to Parliament for what they do. There is individual responsibility (personal conduct) and collective responsibility (Government as a whole is responsible to parliament and ministers must support policies by parliament).

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The Rule of Law

‘[T]he ultimate controlling factor on which our constitution is based.’ R (on the application of Jackson) v Attorney-General [2005], Lord Hope

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Formal meaning

‘[T]he law should conform to standards designed to enable it effectively to guide action.’ Professor Raz, ‘The Authority of Law’ (Oxford 1979) - Rule of Law only about form and procedure not content.  Law must be publicly stated, clear and not changed too often  Wanted independent judges that resolve disputes and have citizen’s access to courts 

Government according to law – public must be governed by some type of proper legal system

1.2 Substantive meaning Goes further than the formal meeting Lord Bingham’s definition 3.3

‘All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered by the courts.’

1. Law must be clear, accessible and predictable. 2. Legal issues generally to be decided on basis of law not discretion.

3. Law should apply equally to all. 4. Human rights must be protected by law. 5. Individuals must be able access means to resolve disputes. 6. Ministers and public officials are to perform their tasks reasonably; in good faith; to achieve the proper purpose and without going beyond their powers. 7. Fair court system. 8. States must comply with international law.

Activity 1 Do the following conflict with Lord Bingham’s definition of the rule of law?  The Licensing of Dog Walkers Act 2020 (fictitious) creates the Dog Walkers’ Licensing Authority (DWLA) and gives the DWLA power to grant licences ‘on such terms as it thinks fit’. – wide discretion sub rule 2  The Employment Tribunal Fees Order 2013 states that anyone starting a claim in the Employment Tribunal for unfair dismissal or discrimination must pay a fee of £1000. – restricts access to justice sub rule 5  In the light of the 9/11 attacks Parliament passed the Antiterrorism, Crime and Security Act 2001, which permitted detention without trial of foreign terrorist suspects.- not equal to all sub rule 3 and restriction of freedom of movement sub rule 4

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Meaning of the Separation of Powers The Legislature – actually making the law The Executive – the body that puts the law into effect The Judiciary – the body that resolves disputes regarding the law. Each branch of the state should perform its separate function and that there should be different people in each branch.

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2.1 Separation of Powers UK - Montesquieu Need a balance of checks and powers but cannot have total separation of powers. The system of branches and checks ensures that no one branch becomes too powerful. This tries to prevent a concentration of power within a state which therefore reduces an abuse of power which essentially protects us as citizens. The unwritten constitution leads to the informal separation of powers.

Legislature: Monarch, Government ministers, PM, MPs Executive: Monarch, PM, Government ministers, Home office officials, State schools, armed office, Police, local councils Judiciary: Monarch, judges, magistrates, immigration 2.2 Separation of Powers US – Hugely influenced Legislature Executive Congress: President House of Representatives Vice President Senate Government Departments Federal Agencies

appeal tribunal by Montesquieu Judiciary Supreme Court Federal Courts

Checks and Balances Can impeach a president which is exercised by congress. The written constitution is where there is a formal separation of powers. 3.

Legislature and Executive

3.1 Personnel Is some separation between personnel within our constitution. E.G the police, the armed forces and civil servants cannot be MPs. However there is a lot of overlaps E.G government ministers especially. 3.2

Functions

‘Elective Dictatorship’ -Lord Hailslam Most of parliaments time is spent looking at the Governments proposals of new laws. Big majorities due to election can largely dictate what parliament does. Executive dominates the legislature. Legislative powers Common for primary legislation to give government ministers power to make secondary legislation. 3.3

Checks and Balances

House of Commons (Disqualification) Act 1975 Puts a numbers limit on the amount of govt ministers in the house of commons. Fixed Term Parliaments Act 2011 Convention of collective ministerial responsibility – the govt is responsible to parliament for what it does. Can be a vote of confidence – That govt is expected by convention to resign -

Debates Questions Parliamentary commitees

1. Judiciary and Executive

Advise Jenny, an opposition MP, as to what arguments she could raise based on the separation of powers to challenge clauses 2 and 7 of the Law Reform (Courts and Judges) Bill 2020. 4.1 Independence – must be independent by ensuring a separation of power Constitutional Reform Act 2005 Improve the separation of powers Head of judiciary was changed Created a new body called the judicial appointments commission. Security of Tenure Job security and can’t be dismissed by an executive Salaries Judges are paid from a special fund of money called a consolidated fund. Sub-judice Aka sub-judice rule – MPs including govt ministers are not supposed to comment on cases heard in court. Conventions Ministers don’t criticise judges decisions Judges don’t get involved in party politics 4.2 Politicisation? Inquiries Judges are often asked to chair these inquiries when not in court but poses a risk of being drawn into political areas 4.3 Checks and Balances Courts over executive – judicial review 5. Judiciary and Legislature House of Commons (Disqualification) Act Judges can’t be MPs Conventions and sub-judice rule Created supreme court and same for members of parliament - Sub-judice Aka sub-judice rule – MPs including govt ministers are not supposed to comment on cases heard in court Making law? Judges will develop the common law Many would argue that judges do make the law3 5.

What is an ‘Act of Parliament’?

Bill – HOC - First reading – Second reading – Committee stage - Report stage – Third reading – HOL – First reading – Second reading – report stage – Committee stage – Third reading – Royal Assent Parliament = House of Commons, House of Lords and the Queen in Parliament Parliament Acts 1911 and 1949 Can bypass the house of lords if an act needs passing towards the royal assent. Very uncommon for this to happen. Can be said to make it easier to pass an act. 2. Parliamentary Supremacy

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HISTORY / ORIGINS

Why was James II on bad terms with his Parliament by the late 1680s?

The Protestants are in the majority now, and they control Parliament. But as you can see, I’m a Catholic .

Why did Parliament want James’ daughter Mary and her husband Protestant royals at last! And best of all, William to take the throne in this is a great opportunity to drag the th place of James II? whole constitution into the 17 century. These are modern times, and we’ve got modern ideas. Why did Parliament impose To regain power in parliament conditions on William and Mary taking the throne – that they must agree to the new Bill of Rights? Bill of Rights, Article 9 ‘[F]reedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament.’ Parliamentary privilege – origin of parliamentary supremacy Dicey’s parliamentary sovereignty – parliament is unfettered and unchallengeable. 2.2 DEFINITION “The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” (A.V. Dicey Introduction to the Study of the Law of the Constitution [Eighth Edition, 1915]) Two limbs: 1. Parliament is free to make any law it wishes. 2. Acts of Parliament cannot be overridden by any person or body (including the courts). – Article 9 of the Bill of rights 3. One parliament cannot bind a later parliament – each parliament is just as supreme as a previous one The Enrolled Bill rule Once a bill has become an act of parliament, the courts cannot question this Pickin v British Railways Board (1974) AC 765 Pickin’s land was affected by a change in the law and was trying to therefore change this. Said that the British Railways Board had mislead parliament. The court dismissed this and said that the courts cannot look at what has occurred during the passing in parliament. EXAMPLES

2.3 Parliament’s unlimited legislative power  Statute may override conventions Madzimbamuto v Lardner-Burke [1969] 1 AC 645 Southern Rhodesia was involved in the UK colony. Their government tried declaring independence and the UK government therefore passed the Southern Rhodesia Act 1965. The act was challenged saying that there was a convention that UK parliament would only make law for colonies if the country agrees. The legal challenge failed – conventions are non-legal rules and if they want to override conventions they can.  Statute may override international law Cheney v Conn [1968] 1 All ER 779 There’s acts of parliaments that say that everyone should pay tax. Cheney refused to pay income tax as she didn’t want to fund for nuclear weapons which contradicts the Geneva convention. Her argument failed as parliament can override international law if they want to.  Statute may override prerogative R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 Government said they can use their prerogative powers during the early stages of Brexit which triggered article 50. Miller said Brexit would effect rights under the European Communities Act 1972 so it needs to be parliament that should trigger this and not the Government. The supreme court agreed with this and therefore the parliament passed an act triggering this act.  Statute may operate retrospectively Burmah Oil v Lord Advocate [1965] AC 75 Oil company had their property destroyed as a result of WW2 and was due millions in compensation. The parliament thought that this would dramatically increase claims and so passed the war damage act 1965 which took away the right to any compensation as a result of war damage which applied to the WW2 damage. If parliament does not like how the court is handling this, the parliament can override this and any case law.  Statute may alter the constitution Such as the Human Rights Act 1998. 2.3 Express and Implied Repeal One parliament cannot bind the later parliament. Express repeal When parliament passes an act, it says underneath in a list of any acts that are amended or repealed as a result. If new act is silent, the doctrine of implied repeal is applied. Implied repeal Ellen Street Estates Ltd. v Minister of Health [1934] KB 590 Ellen Street Estates Ltd was a property company that can best be described as a ‘slum landlord’. The Ministry of Health used statutory powers to forcibly purchase some of the company’s slum properties, as part of its slum clearance programme. The Ministry of Health told the company that it was only entitled to the level of compensation set out in the Housing Acts 1925-30 (which it assessed as ‘nil’) The company argued that it should get the higher level of compensation set out in the earlier Acquisition of Land (Assessment of Compensation) Act 1919. Section 7(1) of the 1919 Act declared that provisions of other Acts had effect subject to the 1919 Act and if they were inconsistent, they ‘shall cease to have or shall not have effect….’ We will assume that anywhere the later Act and the earlier Act conflict with each other, the later Act prevails. Thus we should follow the later Act – no compensation.

Thoburn v Sunderland City Council [2003] QB 151 Wanted to sell the produce in pounds/ounces and was sued by council. European regulations in ECA 1972 s...