Public Law - Lecture notes - Public PDF

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Sources of the Constitution September-24-13

9:24 AM

1. Acts of Parliament (statutes) a. Source of rules b. Rarely have formal indication that they are constitution c. e.g. Human rights act 2. Judicial decisions (Case law-common law) a. Bunch of leading cases whose decisions have strong influence b. Extent to which judges can exercise constitutional control i. Judges can't say legislation is unconstitutional, because there isn't a constitution ii. They can observe public entities and see if they breach rules (administrative review), so some constitutional control c. Since 1963, it also included the decisions of the European Court of Justice 3. Crown prerogative a. Power of going to war, once delegated to the royals, is now in the hands of the government (Prime Minister) b. Ceremoniously appoints the Prime Minister 4. Constitutional conventions a. Political rules generally considered as binding b. e.g, by convention the Queen does not refuse consent on legislation passed by parliament c. They are there as part of tradition. They can't be changed unless common practice changes. 5. Constitutional Principles (Rule of law, Separation of Powers, sovereighty of Parliament) a. Separation of Powers i. Until recently, we had a Lord Chancellor, who was head of the Judiciary, speaker of the Upper Chamber of the Legislature, and part of the government. This is no longer true. b. Parliament must have full power so that no previous parliament can bind future parliament. This is the theory of least. 6. EC Legislation 7. International Law a. Not directly applicable, unless incorporated into the English system 8. Law and Custom of Parliament a. Parliament makes its little rules, points of order, and not open to judicial review 9. Customary development 10. Constitutional writers a. Dicey, Jennings, Wade

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Constitutional Principles September-26-13

10:07 AM

The rule of law - Distinguish from Rule by law ○ Following the written rules - Brings content into the written rules ○ The rules themselves should be checked against some moral standards - "a rule of law" is just talking about a piece of legislation. Not the same! - Means different things in different contexts - Thick and Thin meaning ○ Thin  Just the rules. Requires everyone to just follow the rules. ○ Thick  When the rule has some sort of content. Assumes that citizens have moral rights against each other and the government  Allows you to sue in court - Definition varies between powers of individuals and public bodies ○ Individuals can do anything not specifically disallowed by legislation ○ Public bodies can't do anything unless it's specifically allowed by legislation - Dicey's definitions of the Rule ○ The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power ○ Equality before the law, equal subjection of all classes to the ordinary law and land administered by the ordinary courts  There should be no other branches of law created ○ There should not be constitutional code and instead courts should rely on ordinary remedies of private law - Joseph Raz ○ Law should be stable, not retrospective, independence of judiciary should be guaranteed, principles of natural justice (no one should be their own judge), open courts, courts should be easily acceptable - Tom Bingham ○ Law should be accessible, intelligible, clear, legible, and predictable - There is no common agreement as to what is rule of law. - International law ○ Universal declaration of human rights, new delhi declaration 1959  Rule of law establishes education, social, and other essentials to humans. - The Rule of Law still focus on judicial control of the executive

1. Separation of powers

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Crown Prerogative October-15-13

9:07 AM

What the crown (queen) can do - Appointment of Prime Minister - Dissolution of Parliament - Dismissal of Ministers - Royal assent - Appointments and honours ○ Judges and ministers appointed Dignified position of the crown - Scope of the perogative can be determined by the court, but the source was historical - In practice many aspects of the power has devolved from the monarch to the ministers No real power. Parliamentary Conventions prevent the queen from acting arbitrarily.

Domestic Matters-in the name of the queen, but not really in her power - Defence of the realm - Keeping the peace - Stop criminal prosecutions - Prerogative of mercy - Reduction of sentences - Pardoning of offenders - The right to royal fish and swans Existence and Extent (of crown prerogative)

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Constitutional Conventions October-08-13

10:21 AM

Non legal rules which are regarded as binding but can be suspended, ignored, reformulated in theory. - Soft law - Easiest way to change convention would to be enact legislation ○ Can also change by practice, but it's harder this way - Neither court nor parliament can enforce them but they are followed Convention examples - Queen always assents to legislation provided by HC and HL - PM has to be member of the House of Commons Cabinet Responsibility - Collective responsibility of government-convention of confidentiality ○ AG v Jonathan Cape 1976 - Create feeling of unanimity, they can argue on their own but once a decisino has been made everyone has to agree ○ If they do not agree they would resign - Regulates the conduct of government, between houses and among ministers House of Lord will not vote against legislation enacting party manifesto policy - Party promises during elections Commonwealth-dominions autonomous - Would not pass legislation to overule dominions Devolution - Sewell convention 1998 - Scottish can vote on matters that do not affect scotland, but english cannot do it vice versa Why are they obeyed? - Jenning: breach of them brings in political difficulties - Courts and constitutional conventions ○ AG v Jonathan Cape Ltd ○ Carltona Ltd v Commissioner of Works

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Rule of Law October-09-13

4:25 PM

Bingham - Law must be accessible and intelligble, clear and predictable. ○ If anyone is to be bound by the law he should know what it is ○ ECHR supports this ○ Not just legislator's fault-the judges decisions are many times inconsistent and diverse  Judges need to ensure there is a clear majority ratio  Judges should not exercise excessive innovation and adventurism when interpreting laws  In the criminal field, where a torrent of legislation has been enacted in recent years, judges need to follow the above two principles especially. - Legal right and liability should be resolved by application of the law and not the exercise of discretion ○ Less discretion for judges-this takes away the rule of law  No discretion in facts  Granting civil injunctions are discretionary ○ No real thing as discretion-only judgement based on evidence - Laws of the land should apply equally to all except during objective differences that justify differentiation - Rule of law must conform to human rights - Means must be provided for resolving civil dispute which parties themselves are unable to resolve ○ Legal Aid scheme 1948 has now dissolved. People can't afford lawyers to go to court - Ministers and public officers must act within the limits of their powers for the purpose such powers were bestowed upon them - Judgements should be fair ○ Impartial and independent decisions by the judge ○ Defendant given adequate time to state his case - State must abide by international law - Rule of law must exist as a mutual agreement between the individual and the state ○ Each one of those parties give something freedom to enjoy safety

Lectures Page 5

Acts of Parliament October-17-13

10:11 AM

- Are there different acts of parliament which are constitutional law? Thoburn v Sunderland City Council (2002) - Laws J ○ Constitutional statutes are  Conditions the legal relationship between citizen and state in some general or overarching manner  Enlarges or diminshes the scope of what we would now regard as fundamental constitutional rights - Statues are not explicitely said to be constitutional ○ Magna carta 1297 ○ Bill of Rights 1689 ○ Union with Scotland 1706 etc. Originally it was case law - Now that legislation can always supercede the common law

Lectures Page 6

Institutions of Government October-29-13

9:05 AM

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Legislature October-29-13

9:05 AM

What is it? - Parliament of Westminster and other bodies ○ Executive can also legislate Accountability of Legislature - Judiciary - Executive - The People ○ Representative democracy Accountablity to the People - House of Commons - Elections ○ Old system allowed the Prime Minster to call a general election whenever he wanted  5 year election-any time in between PM can call □ Gordon Brown ○ Fixed Term Parliament Act 2011  Prime Minister cannot call for elections anymore  In a vote of no-confidence parliament can be dissolved by a simple majority □ S.2 of the act gives the parties 14 days to form a new coalition before dissolution of parliament - Voting ○ Representation of the People act 1918  Universal enfranchisement for all men, and some women ○ 1983  All citizens of UK and northern Ireland and certain commonwealth nations can vote ○ Who can't stand for office?  Act of Settlement 1700 s3, Electoral Administration Act 2006 s17-18, House of Commons Disqualifiaction Act 1975 and the RPA 83 s 160 ○ Who can't vote?  RPA 83  Hirst v UK (2006)  Chester and McGeoch (2013) □ It was decided that prisoners still can’t vote - How representative is the Commons? ○ Voting system  First past the post  Representatives supposed to represent their constituency □ Richard Taylor 2001 and 2005 campaigned on the opposition to an act and won election  Constituency model problem □ Party politics: while MPs are supposed to represent the interest of the people, people may vote for the party-not for the MP's policies. □ Voter apathy  People disengage in politics because in majority constituencies the minority party never win votes-and those who want the minority party get disenchanted  65.1% people voted in 2010. very small percentage. ◊ Seats are decided by marginal constituencies (swing states) ◊ Very close constituency races happen because people don't vote

Lectures Page 8

□ Winner-takes-all system is bad!  Results in Tactical Voting □ Voters might ordinarily vote for smaller parties because it's usually a lost vote  Marginalization of small parties ○ Electoral Reform  Referendum in 2011 for reform-First Past the Line system still won  Jenkins Commission (1997) □ Alternative Vote + (80% Constituency MPs/20% from a List system)  Proposals never got government backing  Iraq war happened  May 5th 2011 □ Alternative Vote or FPTP?  FPTP □ Idea of FPTP is much more simple □ Alternative vote relies on first, second, and third votes  Did you really vote for someone of your third choice?  If you vote for two major parties on your first votes it would neutralize your vote. Accountability/representability of Parliament - Expenses scandal - Elitism of HC

Lectures Page 9

House of Lords October-31-13

10:11 AM

Accountable? - Not directly 771 lords temporal and spiritual 660 Life Pears under the life Peerages Act 1958 Political members appointed by a list Retired public officers 181 crossbenchers appointed by an independent appointment commission Lords of Appeal in Ordinary and 27 Lords Spiritual -

Lectures Page 10

Sovereignty of Parliament October-08-13

9:11 AM

Dicey: - No parliament may bind a future Parliament ○ Even if parliament may not bind by substance of legislation, they can bind in the form of forming legislation ○ Exceptions  Statute of Westminster 1931-UK would no longer legislate for dominions  European Communities Act 1972 ss 2 and 3-Accepted EU law as supreme  Scotland Act 1998 s.28- set up Scottish parliament to try and force the Scottish independence party to never have a majority.  Human Rights Act 1998, s.3, s.4-brought the ECHR into domestic law and courts. Does not give courts the right to strike down legislation Parliament can repeal old legislation - Contradicting legislation? ○ New statute that covers the same subject, it should overrule the last statute (Maughan) Act of Parliament - Starts as an enrolled bill rule ○ British Railways Board v Pickin Paliament Act 1911 - House of Lords can only delay: for a money bill, one month, other bills, 3 sessions up to 2 years - Reduce the power of the House of Lords - If the HoL has refused the HC for 3 times, the HC can go straight to the queen Parliament Act 1949 - Other bills delay reduced to 1 year/2 sessions Hunting Act 2005 - Illegal to hunt foxes with dogs - Jackson v AG 2005 - Parliament 1949 said it was passed because the HL were denying it

Factortame - 1980s Cod War - Merchant Shipping act 1988 which repealed the earlier version ○ You have to be a Brit to fish in British ○ Complete breach of the EU legislation - R v Secretary of State for Transport ex parte Factortame ○ Went to the High Court and referred it to the European Court of Justice ○ Meantime HC gave Factortame an injunction to keep fishing ○ HL accepted the injunction, but gave the validity of the injunction to the ECJ ○ ECJ accepted injunction and that the act was in breach of EU legislation - As far as the UK is concerend the sovereightny of parliament still applies ○ As far as EU Law is applied in the Uk is concerend, there is a different rule  Adam Tomkins ○ Domestic law

Lectures Page 11

The Executive November-14-13

10:04 AM

Key Ministries - Prime Minister - Deputy Prime Minister ○ Doesn't formally or legally exist ○ No certain political portfolio ○ Created for political expediency

Deputy Prime Ministers - John Prescott (Tony Blair) ○ There was an agreement that at some point Gordon Brown would become a leader of the Labour Party and Tony Blair would step down ○ John Prescott would cool things down between the two  He appeals to the old labour voters and was there to get more votes ○ Used to be part of the department of Transport - Nick Clegg (David Cameroon) ○ Really is the "Deputy Prime Minister" in that he steps in when David is away 3 Key Ministries Chancellor of the Exchequer The Foreign Secretory The Home Secretary Secretary of State - Junior ministers under section 4.6 of Ministerial code are supposed to receive duties delegated by the secretary Civil Service - 500,000 employees (whitehall) - Budget is 150 billion pounds - Civil servants are supposed to be impartial in serving their representatives ○ S.2 of the code: Integrity, honesty, objectivity, and impartiality - The civil code has now been put on a legislative basis in the Constitutional Reform and Governance Act s 7(4)

Central government is an evolving structure - Not defined by law - New departments can be easily created and old ones can be shut down easily

Lectures Page 12

Criticism November-14-13

10:24 AM

How representative of the people is the current cabinet? - 33 people there - 9 are aristocrats or have their parents with honours - 22 Oxbridge - 22 from fee paying schools - 5 women who is from an ethnic minority - John major and other critics have debated that the current cabinet is the most selective ever

Accountability - Blurred line between executive and parliament ○ It's not spoken about whether there is a separation of power, but whether there is a system of checks and balances against the executive  Courts can review government action □ A v Secretary of state for the home department (2005) □ R v Secretary of State for the Environment ex p Kirkshall Valley Campaign □ R v Secretary of State for Foreign and Commonwealth Affairs ex p World Development Movement Ltd  Parliament can enact acts - Of ministers? ○ Should there be a PM?  Not directly voted even though it is seen as a "national" voting ○ Ministers should keep details of the meeting confidential ○ Cabinet meetings are private  S 2.4 of the Ministerial Code states ○ AG v Jonathan Cape Cabinet - When a particular leader is a very strong leader and command a majority in the HC ○ The cabinet is supposed to be an internal check and balance, but when the leader is strong the cabinet cannot stand against the PM  PM can become an elected dictatorship ○ Margaret Thatcher  Many times cabinet meetings were more of a dictat from Thatcher ○ Tony Blaire  Tony took initiative to make decisions completely outside the cabinet \  Spin doctors The minister at the head of the department is responsible for whatever that happens in his department - Ministers have to justify decisions and argue, and apologize for decisions, and sometimes resign ○ However, when a minister has acted in his personal life that demonstrates a conflict or interest or is detrimental to his abilities as minister - Power of media is intense - Ministers during John Major's weak ○ Lots of sex scandals/corruption ○ Major ironically had a policy that encouraged family values 1994 The Committee on Standards in Public Life - Response to the scandals during Major's tenure - Produced the Nolan Report in 1997

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- Produced 7 standards of public life ○ Codified conventions on ministerial behaviour ○ Up to 2006 it was up to the prime minister to decide breaches of the code Ministerial responsibility seems to be the sole mechanism of holding civil servants to account - Individual civil servants can be called to committees ○ Snooping scandal - Lack of accountability to parliament

Delegated Power given to Executive - Parliament gives government very wide discretions by statutes ○ Immigration Act 1971 S3(5), Town and Country Planning Act s76A ○ Civil Contingency Act-executive powers during extreme times - House of Commons Select Committee on Procedure 2000 ○ Too much readiness in parliament to give power to executive, too much readiness to receive these powers - Henry VIII powers ○ Executive can amend or repeal parliament's acts  CCA 2004 Statutory Act 1946 - Statutory instruments must be published ○ However, unless delegated powers are explicitly said to be a statutory instrument, it does not need to be published  Subdelegated legislation needs not to be published unless the above is met ○ Blackpool Corporation v Locker 1948  Scott LJ says this lack of publication is bad Are there sufficient checks and balances to hold central government in account?

Lectures Page 14

Judiciary November-26-13

9:46 AM

Role of judges in the UK? - Universal aspects ○ Independent and impartial  Pinochet No. 2 2000 □ Judges need to be not involved in either party of the case □ Pinochet dictator  Judicial review cases allow for other parties of interest to give their evidence □ Original decision was that Pinochet was not immune just because he was a head of state and could be extradited  Lord Hoffman did not say much because was a director of Amnesty International sister company □ Held that Lord Hoffman should be treated as automatically disqualified because of his direct interest in the case  Previous decision was quashed and a new trial was ordered  Locabail (UK) Ltd v Bayfield Properties □ Judges interest in case was far too remote and contingent for the Court of Appeal ○ Decisions should not be publicly criticised ○ Separation of powers ○ Judges must uphold the rule of law  Hold the legislative and the executive accountable  But courts must not overstep their powers ○ Should judges represent the people?

Lectures Page 15

Royal Prerogative November-19-13

9:29 AM

Prerogatives - Those exercised by Monarch ○ Royal Assent-in theory the queen can refuse to give royal assent, but this would have enormous political implications and by convention she must give the assent  Happened in Belgium in 1...