Transcript Constitutional Law

Constitutional and
Administrative Law
Richard O’Neill
University of Hertfordshire
Public and private law
• Public law
– includes criminal, constitutional and
administrative law
– concerned with interaction between individual
and the State
• Private law
– includes tort and contract law
– concerned with interaction between
individuals
Constitutional and administrative law
• What is a constitution?
– different types of constitutions
• Flexible/Inflexible
• Federal/Unitary
• Presidential/Parliamentary
• Why does the UK not have a written
constitution?
• Sources of the constitution
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statutory law
common law
custom
conventions
The constitution
• Characteristics of UK
constitution
– unwritten
– separation of powers
– Parliamentary (legislative)
sovereignty
– rule of law
– the Royal Prerogative
– independence of the
judiciary
– Judicial review
Doctrine of Separation of Powers
• Primary functions of the State
– Legislature - Parliament
• law-making
– Executive - the government and its servants – army,
police, etc.
• law enforcing
– Judiciary – the Judges
• apply law and resolve disputes
• Montesquieu’s theory (18th Century)
– these three types of ‘power’ should not be concentrated in one
person or group
• Relationships and safeguards
– executive/legislature/judiciary
– checks and balances
Separation of Powers
Legislature
Executive
Parliament as
law-maker
Government and
civil servants
Judiciary
judges
Separation of Powers
Executive
• Lord Chancellor
• delegated legislation
Legislature
Judiciary
• Law Lords and
Ministers sit in Parliament
• judges make and
interpret law
Rule of law
Developed from writings by Dicey (19th Century)
• ‘no sanction without breach’
– nobody punished unless they have broken a law
– State should use its power according to agreed rules and not
arbitrarily
• law should govern all
– no-one above the law
– public authorities subject to same law as ordinary citizens
• protection of rights
– rights not secured by a written constitution but by decisions of
judges in ordinary law
• legal process
– accessibility
– procedural fairness
• checks on abuse of powers – judicial review
Royal prerogative
• constitutional monarchy
• role of the monarch and ‘the Crown’
• prerogative
– foreign affairs
– domestic affairs
Parliament and the Executive
• Parliament
– Role of Parliament
• legitimisation of executive
• scrutiny and influence
• formation of government
• The Crown and the Privy Council
• Royal prerogative
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constitutional monarchy
role of the monarch and ‘the Crown’
prerogative
foreign affairs
domestic affairs
• Prime Minster and Cabinet
• Civil Service
• Local Government
Supremacy of Parliament
• Parliament highest source of law
• no limit on law making by Parliament
– able to legislate on any subject matter and cannot be
bound by predecessors
• courts obliged to apply the law
– cannot pass judgement on validity of legislation
• contrast with countries having a written
constitution or Bill of Rights
• impact of European Union
European Union
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History and development of European Union
United Kingdom
Expansion
The Institutions
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European Commission
Council of Ministers
Court of Justice
European Parliament
• European Community Law
European Community Law
• Relationship between EC Law and the
Constitution of the UK
– basic principles
– sources of EC law
• primary sources
– Treaties – fundamental; apply automatically
• secondary sources
– Regulations – general application
– Directives – binding; require implementation
• decisions – binding on those to whom they are addressed
• recommendations and opinions- not binding, only to be
considered
Civil Liberties and Human Rights
• Civil liberties
– forms of civil liberties
– remedies for infringement of civil liberties
• Human Rights
– European Convention on Human Rights
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background
status in UK Law
human rights and Parliamentary supremacy
Human Rights Act 1998
European Commission on Human Rights
European Court of Human Rights
relationship with EC law
Constitutional and Administrative Law
• Constitutional law
– controls the method of government, Parliament, etc
• Administrative law
– branch of constitutional law
– developed from development of the Administrative
State
– general principles which govern the exercise of
powers and duties by public bodies such as local
councils, Government departments, or Ministers
Judicial review
• Designed to keep those persons and bodies with delegated powers
within the scope of the power
• High Court (QBD)
– Administrative Court; judge with expertise in Public Law
• Distinction between appeal and judicial review
• Bodies and decisions subject to judicial review
– public body exercising public law functions
• Procedural ultra vires
– procedural impropriety
• failure to follow statutory procedure
• not observed rules of natural justice
– duty to give a fair hearing; duty not to be affected by bias; doctrine of
legitimate expectation
Judicial review
• Substantive ultra vires
– Illegality
• Acting ultra vires – beyond powers
• Irrelevant considerations
• Improper purpose
• Fettered discretion
• Delegation of discretion
• ‘Error on the face of the record’
– Irrationality
• Wednesbury unreasonable
– Associated Provincial Picture Houses v Wednesbury
Corporation [1947] 2 All ER 680 CA
Judicial review
• Procedure
– Time limit
– Leave
– Locus standi and sufficient interest
• Remedies – all discretionary
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certiorari – quashing order
mandamus – mandatory order
prohibition – prohibiting order
injunction
declaration
Damages
• Public Interest Immunity and Ouster clauses