WHAT IS PUBLIC LAW ( PART 1 )

1. Introduction to Public Law

This module guide will explore the principles and theories of public law. It is also beneficial to have an understanding of the different political theories which underpin the different models of public law.

It is imperative that each section in this guide is learned, as many of the principles operate concurrently or interlink, and are better understood with knowledge of each section. Here is a breakdown of the main sections:

• Constitutional Fundamentals – This module will touch upon constitutional institutions, their roles and conventions before exploring what a constitution is and providing a comprehensive comparison between a written and an unwritten constitution. There will also be an examination of the sources of the constitution.

• The Rule of Law – This module will consider the history of the conception of the rule and its main aspects.

• Parliamentary Sovereignty – This module will delve into the history of Parliamentary sovereignty before investigating its sources and theories.
• The Royal Prerogative – This module will inspect the relationship between the monarch and Parliament.
• Government & Accountability – This module will study the executive and public law powers, mechanisms for executive accountability and Parliamentary scrutiny of government.
• Legislative Functions – This module will aim to clarify legislative functions, the different types of legislation and the role of the legislature.
• The European Union – This module will explain the history of the European Union, European Union institutions and European Union law.
• The Human Rights Act – This module will address what human rights are and how the Human Rights Act 1998 and the European Convention on Human Rights intertwine.
• The Judiciary – This module will look at the structure of the judicial system and the role of the judiciary, as well as the separation of powers doctrine.
• Judicial Review – This module will deal with the grounds for judicial review, the history of judicial review and the its effectiveness.
• Administrative Justice – This module will analyse the system of tribunals and the role of ombudsmen.

What exactly is public law?

Public law affects several parts of our day to day lives; this includes, for example, immigration, health, the environment and education. In its most basic terms, the role of public law is to regulate the relationship between the state and individuals. In addition, public law refers to the state’s special powers to run the country; meaning its power to enforce, apply, implement, make, repeal and amend the law. This area of law is also often referred to as constitutional (the law which founds the state’s key institutions and provides its framework) and administrative (the law which provides individual public authorities and bodies with their legal duties and power) law.

Why is public law important in today’s society?

As there exists an unequal relationship of power between the state and individuals, public law is especially important because it provides checks and balances. This means that this area of law ensures that the government does not abuse its power over individuals and that they use their power in a fair and proper manner.

2.1.1 Constitutional Institutions – Introduction

Welcome to the first lesson of the second topic in this module guide – Constitutional Institutions, Their Roles and Conventions! An important aspect of a constitutional system is how power is assigned to different institutions. A governmental system usually consists of three branches: the executive; the legislature; and the judiciary. The relationship between these branches normally involves a separation of powers to some extent. This may help to ensure that liberty is maintained by preventing the abuse of power by one of the branches, but there is academic contention over the exact separation of powers in the UK.

At the end of this section, you should be comfortable with the concept of the doctrine of the separation of powers, and how this relates to the unwritten constitution of the United Kingdom. You should be able to refer to the various institutions of the three branches of government, and have a basic understanding of their powers and relationships to one another. You should also understand more about these respective functions of the European Union.

This section begins by discussing the doctrine of the separation of powers. It then evaluates the commitment to this doctrine by the UK government. It goes on to look at the various institutions of the executive, including their relative powers, and the concept of devolution and local government. There is then a discussion of the institutions relating to the Legislature, those within Parliament. After, the Judiciary is considered, with specific reference to Judicial Review and to the impact of the Human Rights Act 1998. Finally the section discusses the various institutions of the European Union, and how these impact upon the United Kingdom and the separation of powers doctrine.

Goals for this section:

• To understand the separation of powers doctrine.
• To appreciate how this applies to the UK Government.

Objectives for this section:

• To be able to define the separation of powers and the justifications for the doctrine.
• To understand the limitations of the strict separation of power.
• To be able to evaluate the UK commitment to the separation of powers.
• To understand how this doctrine relates to the various institutions of the UK government.
• To understand how this doctrine relates to the various institutions of the EU government.

2.1.2 Constitutional Institutions Lecture

The Separation of Powers

Public law regulates the relationship between the state and its organs, and private citizens. Public law is a shorter way of describing constitutional and administrative law. Constitutional law is the law that provides a state framework and establishes its principle institutions and the interrelationships between these institutions. Administrative law confers the legal powers and legal duties of public bodies and authorities.

The separation of powers serves an essential democratic function, since it enables the three main powers of the state to act as a check on the absolute exercise of power. These powers are divided between three principle branches of government. Firstly, the legislative branch has powers to create legislation and to represent the views of the people. Second, the judicial branch is the systems of courts and tribunals who have powers to interpret legislation passed by the legislature and to adjudicate on legal disputes. Thirdly, the executive branch has the responsibility of making and implementing public policy.

In The Spirit of Laws, Montesquieu warned against the use of power in a ‘tyrannical manner’ if it was not divided between the three branches of government. Much of his observations were carried out within the court of George II in England, moving in political circles and formulating much of his work based on the English government of the time.

Modern democracies tend now to exist as a partial, or ‘checks and balances’, conception of the separation of powers, which includes the ability of one branch to involve itself in issues that are primarily the concern of another branch.

Although very few countries adhere rigidly to the separation of powers doctrine, most constitutional systems do attempt some form of demarcation between the legislature, executive and judicial organs of government to avoid abuse of power by any one of the three branches.

Separation of Powers and the Constitution

There are various different views as to whether the doctrine is part of the UK constitution. In Hinds v The Queen [1977] AC 195, Lord Diplock stated that he was certain that

‘the basic concept of the separation of legislative, executive and judicial power…had been developed in the unwritten constitution of the United Kingdom'(at 212).

In The English Constitution (London, 1867) Bagehot argues that the

‘efficient secret of the English Constitution may be described by the close union, the nearly complete fusion, of the executive and legislative powers”.

There is a significant overlap in the work of the executive and the legislative branches, with the executive exerting a substantial influence over the work of Parliament. At the same time, there are examples where separation of powers is strictly adhered to, such as in relation to the independence of the judiciary.

In R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513 a majority held that the Home Secretary had exceeded his powers in refusing to implement a statutory compensation scheme. The minority judgment held that since the legislation was not yet in full force, it was inappropriate for the court to intervene, making judicial intervention a breach by the judiciary of the separation of powers doctrine. The case illustrates how a different emphasis on one particular aspect of the separation of powers can lead to a different conclusion.

The Institutions – the Executive

The executive branch of the UK government is comprised of the Head of State, or monarch, the Prime Minister, the Cabinet, Secretaries of State, ministers of the Crown, departments of state, other public bodies, devolved administrative bodies, local authorities, the police and the military.

The Prime Minister is appointed by the Head of State; if appointed after a General Election, this takes place soon after the outcome is announced.

 

Primarily the executive has a vast array of statutory powers afforded to it by Parliament. Since Parliament is unable to legislate for every eventuality, the Inquires Act 2005 makes provision for inquiries into matters of public concern.

The Prime Minister’s powers come from the Royal Prerogative and statute. He or she has a role to advice the monarch on:

• the exercise of all powers of entitlement which concern the government;
• the appointment of all members of the judiciary, heads of the security services and senior officers in the Church of England.

The Prime Minister also appoints senior officers in the armed forces, and recommends honours or life peerages. The Prime Minister also makes decisions regarding the Cabinet, such as determining its size, controlling its agenda and creating and disbanding Cabinet Committees.

The Cabinet is chosen by the Prime Minister and appointed by the monarch. It functions to consider questions which concern the collective responsibility of government and are of critical importance to the public. The Cabinet determines the contents of the Queen’s speech, the legislative timetable and the broad economic policy, which establishes the basis of the Chancellor of the Exchequers budget.

Standing and ad hoc Cabinet Committees are empowered by the Cabinet to deal with matters of current importance. Collective cabinet responsibility was endorsed in AG v Jonathan Cape [1976] QB 752, [1976] 3 All E R 484.

The Civil Service is required to act in a way that is independent of any political party. The advantage of this was said to be the element of stability despite political change in Parliament, Northcote-Trevelyan, Report on the Organisation of the Permanent Civil Service (House of Commons, 1854).

Devolution

Devolution in the UK means that executive powers have been conferred upon executive organisations within Scotland, Wales and Northern Ireland.

The Scottish Government was established by part II Scotland Act 1998; it consists of the First Minister, the Scottish Ministers and the Scottish Law Officers. The Government of Wales Act 1998 (sections 52-55) established the Welsh Assembly. The Government of Wales Act 2006 establishes the Welsh Assembly Government, which is separate from the Welsh Assembly. The Northern Ireland Act 2000 suspended the Northern Ireland Assembly, but this was re-established by the Northern Ireland Act 2006, along with a Northern Ireland First Minster and other Ministers.

Local Government

Local Government in England consists of areas of counties, districts, and unitary authorities created by the Local Government Act 1972, as amended in 1985 and 1992. Greater London and the Metropolitan Police District were established by the London Government Act 1963, the Local Government Act 1985, the Police Act 1996, and the Greater London Local Authority Act 1999.

In Wales, the Local Government (Wales) Act 1974 established twenty-two Unitary Authorities in Wales.

Scotland in made up of twenty-nine Unitary Authorities and three Island Authorities, according to the Local Government (Scotland) Act 1974.

Northern Irelandconsists of the parliamentary counties of Antrim, Armagh, Down, Fermanagh, Londonderry and Tyrone and the parliamentary boroughs of Belfast and Londonderry. This is provided for in section 43(2) Northern Ireland Constitution Act 1973.

The Police

The police forces in the UK are part of the executive. The Police Act 1996 and the Police Reform Act 2002 contain provision for the organisation of the police forces and police areas in England and Wales.

The Institutions – Parliament (Legislature)

The UK Parliament is comprised of the House of Commons (or lower house) and the House of Lords (the upper chamber). Local voters in general elections elect members of Parliament within the lower house. Finally, the monarch is formally the head of Parliament, and is required to give royal assent to legislation.

House of Commons

Member of the House of Commons are elected directly by UK citizens.

The House of Commons as the representative assembly has come under criticism for its ability to represent the will of the people in the UK, in that:

1. The current system of elections does not represent all parties equally within Parliament
2. The House of Lords is unelected, however, it plays an important role in the making of the countries laws;
3. There are insufficient women and ethnic minority MPs to represent the electorate.

There is no particular consensus on how MPs should represent their constituents.

House of Lords

The second and upper chamber is the House of Lords, whose members are peers. The vast majority of peers are life peers who are appointed to the chamber and remain members for their lifetime. This is provided for in the Life Peerages Act 1958, which also permitted women to sit in the House of Lords. The House of Lords also retains ninety-two hereditary peers, who have inherited their title. The number of hereditary peers reduced signification due to the passage of the House of Lords Act 1999; the current hereditary peers will remain as members of the Lords for their lifetime. Twenty-six bishops and archbishops (referred to as Lords Spiritual) of the Church of England are also members of the House of Lords until they retire from the roles in the Church.

The democratic legitimacy of the House of Lords has been drawn into question since they are not an elected body through the system of universal suffrage and cannot be removed by the electorate, since their role in the House of Lords is through appointment or inheritance. The House of Lords is going through a long-term period of reform, and a number of proposals have been made to improve its democratic legitimacy.

Functions of Parliament

The House of Commons Select Committee on Procedure (First Report, 1987) concluded that there were four main areas of Parliamentary responsibility. These include enacting legislation, scrutinising the executive, controlling public spending and address the concerns of their constituents. Parliament’s legislative role is the enactment of primary and secondary legislation, which is said to respond to social, economic and political changes in society, which require new laws to be made.

The House of Lords and the House of Commons perform distinct functions in relation to the creation of legislation. This is known as a bicameral system with two chambers that perform different functions. The House of Lords acts as a check on the abuse of power by the executive, by blocking legislation that the House of Commons have proposed. The House of Lords may delay legislation; however, under the Parliaments Acts of 1911 and 1949, it cannot be prevented if the House of Commons agree that it should be passed.

The Institutions – The Judiciary

The primary role of the Judiciary is to adjudicate on legal disputes that are brought before courts and tribunals in the UK. The primary sources of law in the UK are legislation or Acts of Parliament and the common law. The judges’ role is in the interpretation of legislation and in the development of the common law. Judicial independence is of primary importance, it has implications for its relationship with the executive and Parliament, and provides public confidence in the judge’s ability to adjudicate on disputes in an impartial manner.

Judicial Review

One of the primary roles of the court systems is in holding the executive to account, by introducing accountability for the performance of public functions. This involves the checking, controlling and regulating of those functions.

The Senior Court Act 1981 and the Civil Procedure Rules are the most important legal instruments governing judicial review. In order to bring a claim for judicial review, claimants must illustrate at least one ground for judicial review is satisfied, or that a public authority has acted in a way that is incompatible with a human right included within the European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR).

In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, three grounds for judicial review were elucidated:

• Illegality
• irrationality
• procedural impropriety

The Human Rights Act

The Human Rights Act 1998 (HRA) gives effect to the ECHR in UK law.

• When interpreting the Convention section 2HRA, a UK court must take into account any judgement, decision or declaration or advisory opinion of the European Court on Human Rights (ECtHR).
• Section 3 HRA provides that courts must give effect to UK legislation in a manner that is compatible with the ECHR.
• If not possible to interpret in accordance with section 3, section 4HRA enables the higher courts to grant a declaration of incompatibility stating that a statutory provision in inconsistent with the ECHR.

R v A (No.2) [2001] UKHL 25; [2002] 1 AC 45 illustrates how legislation introduced to promote complainants in rape cases from coming forward and reporting the crimes committed against them, and hence serving a public function, can still be overruled when the human rights of the accused are prioritised.

The European Union

Although the UK’s membership within the European Union is currently in question, the EU is still of considerable relevance in UK law and governance.

The European Union as exists today was established in 1992 during a meeting of the heads of state or government of the Member States in which the TEU was signed at Maastricht in the Netherlands. The TEU made significant changes to the provisions of the preceding EC Treaty, including strengthening the powers of the European Parliament and establishing the foundations of the economic and monetary union.

The European Council

The European Council has no legislative function, but is to ‘define the general political directions and priorities of the [EU]'(Art 15(1) TEU). It is made up on heads of state or government of Member States, its President, and the President of the Commission.

The Commission

The Commission carries out both executive and legislative functions. It is made up of a Commissioner from each of the Member States, who looks after a particular area of responsibility (e.g. trade and industry, competition).

The Parliament

The European Parliament consists of directly elected citizens of the Member States to exercise powers endowed upon it under the TEU and TFEU. In the UK, elections to the European Parliament are governed by the European Parliamentary Elections Act 2002. The Act provides for a system of proportional representation for election of MEPs. Article 14(2) of the TEU provides that the European Parliaments membership shall not exceed 750, in addition to the President of the Commission.

The Court of Justice of the European Union

The CJEU sits in Luxemburg and its membership consists of one judge per member state (Art 19(2) TEU). The rules of the court allow it to sit as the full court or in chambers of as a Grand Chamber. The primary function of the Court is to ensure that in the interpretation and application of the Treaty, the law is observed.

2.1.3 Constitutional Institutions Lecture – Hands on Examples

The following scenario aims to test your knowledge of the Constitutional Institutions within the UK. The answers can be found at the end of this section. Try to consider the relevant rules and principles, which relate to this scenario and apply them in a methodical manner.

Do not be put off if it is not immediately apparent, problem questions require you to understand the law as opposed to just learning and memorising it. Refer back to the notes if necessary, this should help you understand how the Government is established and how there are important roles for each of the three branches within the separation of powers to both work with other branches but to provide important safeguards against abuse of power.

Scenario

Part A: The UK Secretary of State is conferred powers under the Children and Young Peoples Act 2010 (fictitious) to set up funds to offer victims of bullying in schools with financial compensation. The Home Secretary stated that she did not agree with the fund, that it was the bullies’ parent’s fault and that they should pay any compensation due. She reiterated that she would neither introduce the fund, nor did she intend to do so in the future.

Q1: Has the home secretary exceeded her powers and why?

Part B: Doreen has established a group within her local constituency to protest about the introduction of hydraulic fracturing (fracking) in their local area. She writes to her MP, Maureen and requests that Maureen oppose a bill that is being introduced into the House of Commons for consideration on the widespread use of fracking techniques in England and Wales. None of Maureen’s other constituents have registered support for fracking.

Q2: How should Maureen vote when the bill is introduced into the House of Commons?

Part C: The UK government introduces the Public Place Act 2015. Section 5 of the Act provides that “no members of white supremacist groups shall participate in public protests”. Bob the White Supremacist has been detained by the police under s.5 of the Act and then charged with offences under the Public Place Act 2015. Bob claims that his rights under Article 11 of the ECHR have been breached.

Q3: How should the court address the conflict between the 2015 Act and Bob’s human rights?

Part D: The United Kingdom has carried out a referendum and the majority (69%) of voters have voted to leave the EU in 2011. The Underground Tunnels Directive 2014/47/EC (fictitious) has been passed by the European Commission, which requires that Member States fill in all undergrounds subways and underpasses. The UK implemented the Directive by means of the Subways and Underpasses No More Act 2016 (fictitious). The UK are due to leave the EU on 30 December 2016;

Q4: Will the Undergrounds Tunnels Directive still apply?

Answers

1)The legal issue in this scenario is whether or not the home secretary as a member of the executive has the power to overrule a piece of legislation, which has been passed by the legislature. It introduces the doctrine of the separation of powers. R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513 is a key case, in which the majority of the House of Lords held that the Home Secretary had acted unlawfully in ruling out the possibility of a statutory compensation scheme.

Answer: The home secretary has exceeded her powers in attempting to repeal an act of Parliament, but also note the implications for judges being involved in what might be considered a ‘political’ matter.

2)There are a number of ways that Maureen could vote, as the ways in which an MP should represent their constituent’s wishes are not clearly established. Maureen has the choice to either support what she feels is the majority view of her constituents, which may be in opposing the fracking bill, or she may consider the issue as a whole and try to understand the pros and cons of the new law. She can do this through listening to the House of Commons debates and then making an informed decision about the bill. She would then vote accordingly.

3)The question requires a consideration of section 3 and section 4 of the Human Rights Act 1998. Under section 3 the court is required to interpret the 2015 Act in the light of Convention rights. If the court feels it is unable to ‘read in’ the right to peaceful assembly under Article 11 of the ECHR. If this is not possible, under section 4 of the Act, the higher court should make a ‘declaration of incompatibility’ since it finds the 2015 Act to be incompatible with Convention rights. It should also be noted that the court does not create a new law to address this problem, but that the legislature then has the option to repeal or amend the legislation.

4)The legal issue in this example relates to the impact of EU membership on the legal system of the UK. Once the UK has left the EU it is no longer subject to European legislation. The important point in this question is that the UK has implemented the EU Directive by implementing a piece of domestic legislation in the form of the Subways and Underpasses No More Act 2016 that is UK law whether or not the UK is a member of the EU. The choice would then be available to the UK legislature whether or not it wished to repeal the 2016 Act.