What is public law?


Public law

Split into constitutional law and administrative law.  Public law is multi layered-

  • international level
  • european level
  • central government
  • devolved government 
  • local government 

What is law in public law? 1) Hard law (statutues) and soft law (not legally binding).

2) ordingary law and higher law (fundamental law eg constitution)- we dont have this in the UK.

What does public mean? citizens, public institutions and public interests

What is a constitution? - Narrow conception- 1 document, special legal status, fundamental legal rules, can strike down legislation the conflicts, and is higher than other law. Often adapted after a revolution

Broad conception- in UK

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Narrow conception of constitution- Only tend to last 19 years without amendment- In America- United States v Stevens 2010

First amendment 'congress shall make no law... abrigding the freedom of speech.'

Crush videos- in 1999 a law restricting videos of animals being killed often in **** was made. Some said it violated free speech. Supreme Court struck it down as violated 1st amendment. 

Wider conception- 'the set of laws, rules and practises that create the basic instiutions of the state and its compenent and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individial' - HoL Select Comittee on the Constitution

Purposes of constitutions- 1) declaration of general principles 2) allocation, limiting and enabling of power 3) protection of individual rights 4) regulating relationships between different levels of government 5) procedure for amending the constitution. 

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purposes of constitution

1) declaration of general principles- 'it is the firm will of the irish nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland in all of the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of the majority of the people, democratically expressed in both jurisdictions in the island.' - Irish Constitution A3. 

'France shall be an indivisible, secular, democratic, and social republic' - A2 French Constitution. 

2) allocating, limiting and enabling- a) legislative power- making laws. b) executive power- government and state admin c) judicial power- interpretting. 

Separation of powers- to limit power so as to prevent tyranny. Allocating power so as to limit it. But it also must enable sufficient power. This is harder to distinguish in non codified constitutions.

3) protection of individual rights- 'the state acknowledges the right to life of the unborn and with due regard to the equal right to life of the mother, guarantees in its laws to respect, so far as practicable, by its laws to defend and vindicate that right.' - A40 (3) (3) Irish Constitution

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purposes of constitution 2

There is often disagreement about which rights a constitution should encompass. Power is limited.

4) Regulating the levels of government- international, european level, central government, devolved government and local government. 

5) amendment procedure- held in A5 US Constitution and A46 Irish Constitution. 

Constitutionalism- more difficult to change the constitution as it is fundamental law. In US 2 part process where needs to be proposed by 2/3rds and ratified by 3/4 of states. These laws are entrenched but case law can modifiy it. We dont have this process in the UK, where all law can be changed by Acts of Parliament. 

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Characteristics of the UK constitution

Characteristics of the UK constitution- 

  • unwritten
  • monarchical- not republican
  • (No strict) separation of powers
  • unitary
  • traditional 
  • evolutionary 
  • policitcal - rather than legal

1) Unwritten- written (codified) v unwritten (uncodified)- Britians is written down but not all in one place.

Sources of the constitution- Legal- statute, common law and prerogatives

Non legal- conventions

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Constitutional conventions

Constitutional conventions- 

  • Rules of behaviour 
  • binding on those to whom they apply
  • not enforceable in court

They are non legal rules. Cant provide for every eventuality when making laws so they use these instead. May have heavier importance than law. 

Examples of constitutional conventions-

  • Royal assent - queens signature since 1708
  • Prime minister- no legal rule, no legal rule that he had to be from parliament
  • Individual ministerial responsibility (accountability to Parliament and the people) 
  • Collective ministerial responsibility
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Identifying consitutional conventions

Ivor Jennings-

1) What are the precedents for the convention? - examples of it

2) Do those concerned with the rule belive that they are bound by it? 

3) Is there a constitutional reason for the rule?

But instantaneously forming conventions? eg Sewell (regulates Scottish devolution)

Can they just arise? yes they can. 

Attorney General v Cape

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Characteristic 2: Monarchical- head of state such as in England

v Republican- democratically elected head of state eg America

Charateristic 3- (No clear) Separation of Powers- 1) legislative 2) executive 3) judicial- there are different powers in different sections

Constitutional Reform Act 2005- Lord Chancellor was in all parts which breached separation of powers principle.

Characteristic 4- Unitary- means there is no heirarchy of law and only have a national government. England may be quasi federal. This is due to the devolution in Scotland, Wales and Northern Ireland. Opposite is federal whcih means there is regional and national government such as America.

Characteristic 5- Traditional Consitutions v Modern Constitutions. 

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Characteristics 6

Characteristic 6- Evolutionary. Rigid constitutions (narrow, entrenched, special procedure to change some law) v Flexible constitutions (not entrenched, changed by Parliament acts.) 

Characteristic 7- Political constitution v legal constitution. Policitical- where those exercising policitical power are held to account primarily through policitical processes eg ministerial responsibility and political institutions eg Parliament. Legal- where those exercising political power are held to account to a substantial and increasing extent via legal processes eg judicial review and in judicial institutions eg the courts.

Key claims of a political constitution- 

1) law is neither separate from nor superior to politics (because both are shaped by and respond to persisting disagreement.)

2) in the face of disagreement, a constitution must expand opportunities for debate and discussion, including about the nature and content of the constitution itself.

3) politics- and a representitive and democratic legislature- provides the most appropriate arena for such debate and discussion

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charateristics again

4) for this reason a constitution must avoi limiting the scope for plitical debate in political institutions, eg it must eschew judicially enforceable limits on the law making powers of the legislature. 

A changing constitution? Is the constitution evolving from a 'political' to a 'legal' constitution? Growth of judicial review, Human Rights Act 1998, Constitutional Reform Act 2005, and qualification and downgrading of Parliamentary sovereignty?

Are we moving to a federal constitution? 

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