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LW588 AUT/SPR: Public Law 1 (2018/2019) (Lectures (Week 8 (Preparing for…

- - - - Constitutional Principles I: Parliamentary Sovereignty
  - - - Foundation of a legal system
        
        what has been the historical and political contexts that gave rise to that constitution?
      - Accountability
        
        Place limits on governmental power by
        
        allowing scrutiny of governmental decisions
        
        by courts (judicial review) & inquiries etc.
  - - - Constitutional law
        
        acts as a fundamental law vs. ordinary law
        
        the law that establishes governing authority
        
        UK Constitutional Principles
        
        Parliamentary Sovereignty – MPs (elected reps) & H/L
        
        Rule of Law – Everyone is equal under the law (incl. govnt)
        
        Separation of Powers (checks & balances)
        
        executive, legislature & judiciary
  - - - Traditional View of Parl Sov’ty (Dicey)
        
        Parliament may make/unmake any law
        
        No one can question the validity of an Act
        
        Rule of recognition (Enrolled bill rule)
        
        Parliament cannot bind its successors
        
        Express and Implied repeal (Thoburn case – metric martyrs)
      - Limits to Parl Sov’ty?
        
        EU Referendum & the Miller Case
      - What is the rule of law?
        
        ‘Law’ followed in the mediation of the relationship between state and citizen/subject e.g.:
        
        Guaranteeing individual rights and liberties
        
        Government needs legal authorisation for its actions
        
        A breach of the law must be established by courts of law and not by officials
        
        How did it develop?
        
        Courts challenge to monarchical govn’t in 1600s
        
        Triumph of Parliament over divine Right of Monarch:
        
        1688 - Glorious Revolution - William of Orange, invited to England to take the Crown
        
        English Bill of Rights 1689:
        
        set out the terms and conditions for the Monarchs reign – no more divine right of kings
        
        Act of Settlement 1701:
        
        creates independence of judges (sep of powers)
  - - - the Rule of Law – Formalistic View
        
        Dicey: a quality that distinguishes
        
        a democratic constitution from
        a despotic constitution or dictatorship
        
        Equality before the law (including govn’t Ministers)
        
        Protection of rights and freedoms under the common law
        
        No punishment without law
        
        No retrospective laws
        No arbitrary/wide discretionary powers
      - Substantive (Lord Bingham)
        
        Fundamental Human Rights
        International Law
- - - - Questions:
        
        What is a constitution?
        
        What are the basic functions and features of a constitution? Give examples from the Constitutions you have looked at.
        
        Whether democracy is simply about voting? Consider what one is voting for e.g.
        
        political parties in a general election or a head of state, a new constitution or separation - independence for a region and so on
        
        To what extent if any, do you think conditions should be placed on individuals participating in a democracy? For example, should any of the following requirements be imposed: the ability to read and write, financial solvency, a university degree, not be a prisoner or someone who has been convicted of a crime?
  - - - the meaning of democracy
        
        A system of government in which power is vested in the people, who rule either directly or through freely elected representatives.
      - first Modern constitution
      - Questions
        
        What role does a Constitution play in a liberal democracy?
        
        A constitution, and especially constitutionalism, must keep democracy from running amok. It is not the legal act or its text that is decisive, even if it is the fundamental law, but the constitutionalism arising from it — the set of principles, methods, institutions, practices, and norms that functions to limit power.
        
        established the governing authority
        
        A social contract that regulates the people and government
        
        What is the difference in legal and political terms between a codified constitution (a written constitution) and an uncodified (unwritten) constitution? Does it make any practical difference what form a constitution takes?
        
        Codified Constitutions are more difficult to amend their rights. Codified constitution allows for f
        
        Constitutions and constitutional rules can apply above and below the level of a nation state. How do these different levels (sub and supra state) apply in the U.K.?
        
        Supra-laws are embedded in the consitution, and lower laws cannot be made to limit it
        
        sub- law are laws restricted to certain countys
        
        Devolution
        
        Loveland states that his approach to constitutional law is a functionalist view (page 4). Explain what is distinctive about this approach.
        
        Loveland looks under the surface of the constitution and see how people developed it, not what but why
        
        looks at the function of the constitution, rather than it's form
        
        uncodified allows for direct democracy
        
        What contribution did Rousseau and Locke make to constitutional thinking about the purpose of government in a democracy?
        
        Rosseau wanted the individual to be working heavily with the goverment to make laws and other govermental topics
        
        Locke believed in representative deomcracy which is where you elecrt someone to represent you
        
        life,liberty and property
  - - - Questions
        
        What are the key rules that Parliamentary Sovereignty embodies?
        
        (Note: parliamentary Sovereignty is also known as parliamentary Supremacy).
        
        Le Sueur, Sunkin and Murkings - at page 53 - have drafted an imaginary Act of Parliament to indicate the rules of parliamentary sovereignty. What difference does it make that the Sovereignty of Parliament, as a matter of fact, is not an Act of Parliament?
        
        From Picken to the AXA cases, judges have pronounced on and analysed the concept of Parliamentary Sovereignty. Summarise the key points in these judicial pronouncements and explain what kind of (constitutional) status they have.
        
        What do governments say about Parliamentary Sovereignty? Does it matter what they think?
        
        What is the source of parliamentary Sovereignty and does the source determine the authority or weight of the concept?
        
        Is Parliamentary Sovereignty a desirable concept or should it be changed? What form would any change need to take?
      - This seminar will:
        
        Introduce the idea of parliamentary sovereignty as a key constitutional principle and its role in a liberal democratic state
        
        Begin to critically analyse the concept of parliamentary sovereignty as a constitutional principle in a liberal democratic state
  - - - Questions:
        
        What are prerogative powers? Give some examples.
        
        The Public Administration Select Committee identified three categories of prerogative powers in 2004:
        
        The Sovereign’s constitutional prerogatives.
        
        The discretionary powers which remain in the Sovereign. These include:
        
        To appoint the Prime Minister and other Ministers.
        
        Prorogation and summoning of Parliament.
        
        The right to advise, encourage and warn Ministers.
        
        To assent to legislation.
        
        The legal prerogatives of the Crown.
        
        The right to sturgeon, whales, certain swans.
        
        The right to impress men into the Royal Navy.
        
        The legal principle that the Crown can do no wrong, and that the Crown is not bound by statute save where by express words or necessary implication.
        
        Prerogative executive powers
        
        The powers which historically have resided with the Sovereign but which now, by constitutional convention, are exercised by Government Ministers acting in the Sovereign’s name.
        
        They include:
        
        4 more items...
        
        What is the role of the courts with regard to prerogative powers?
        
        Are prerogative powers necessary for the Government to function? Explain your reasoning.
        
        Analyse the Northumbria Police Authority case and answer the following questions:
        
        What were the facts of the case?
        
        Public disturbances some years earlier resulted in the Home Office opting to create a stock of CS gas (commonly known as riot control gas) alongside a store of plastic crowd control batons, for easy access by the authorities in times of need. An internal circular memo stated that the Home Secretary would be authorised to give access to such stores where necessary, which the Northumbria Police Authority contested on the grounds that it amounted to the issuing of ultra vires powers to the Home Secretary, i.e. that they would be empowered to utilise powers beyond that which their position ought entail.
        
        What were the issues in relation to the royal prerogative?
        
        Was the Home Secretary empowered to supply the crowd control equipment in question as part of their greater prerogative of keeping peace within the realm.
        
        What did the judges decide and do you agree with their reasoning?
        
        At first instance, the Court found for the claimant, with the view being held that prevention and management of threats to the peace did not require such strong Governmental intervention powers. This was overturned on appeal and it was subsequently recognised that Parliament held the prerogative power in determining the nation’s approach to disruption management, which it was entitled to delegate to the Home Secretary. Further, this prerogative should not be viewed as ‘surrendered’ simply because of ‘assent to the modern system of keeping the peace through the agency of independent police forces’ per Purchas LJ.
        
        Do you think prerogative powers need reforming? Give reasons for your answer.
        
        prorogue goverment is when the government takes a break
        
        the queen has this power due to it being a prerogative power.
  - - - Questions:
        
        What are the key facts, legal issues and ratio in the Miller judgment in the Supreme Court?
        
        What are the key features of Parliamentary Sovereignty outlined in the judgment?
        
        What role does the royal prerogative play in this judgment? Explain both the government position on the prerogative and the argument of the other side.
        
        Sebastian Payne in his article is critical of the majority judgment’s characterisation of the constitutional background. Identify the key elements of his criticism of that judgment.
        
        Do you think that the Supreme Court was right to dismiss the devolution issue in this case?
        
        Does the Miller case, in your opinion, reveal any problems with the U.K. constitution?
  - - - A friend or family member asks you to explain the key ideas of the rule of the law. How would you explain the idea in a way that a non-specialist could understand?
      - Explain what is meant by the formal conception of the rule of law, what are the different aspects that Raz and Dicey discuss? Give specific examples.
      - Drawing on Lord Bingham’s article explain what is meant by the substantive conception of the rule of law?
      - Do you favour one of the conceptions of the rule of law over the other? Explain your thinking. Can you have one conception of the rule of the law without the other or are they interdependent?
      - What role do human rights play in upholding the rule of law? To what extent does human rights legislation need a special constitutional status?
- - - - The sovereignty of parliament
        
        Case law:
        
        Relevant literature:
      - The royal prerogative
        
        Case law:
        
        Relevant literature
    - - Miller case:
    - - Codified
      - Uncodified
- - - - Questions:
        
        The difference between the EU and the ECHR
        
        ECHR is part of the council of europe-- 47 states.
        
        EU has 27/8 states
        
        Different Jurisdiction
        
        The UK’s involvement in creating the Convention and the reasons why it was created
        
        1st to ratify, Human Rights charter- Gov can't abuse rights
        
        why it was created- post WW2, protect rule of law, promote liberal democracy
        
        The two ways to bring a case to (petition) the European Court of Human Rights [make sure you cite the relevant Convention Articles]
        
        ART. 33- State against another state
        
        art 34.- individual against the state/ NGO's/ legal persons
        
        The admissibility rules [cite the relevant Convention Articles – these are not in the textbook]
        
        Make a note of the following two concepts: the ‘margin of appreciation’ and the ‘principle of subsidiarity’. We will return to these concepts in subsequent lectures and seminars but an initial understanding at this stage will be helpful for your reading of the case below in Question 2.
        
        margin of appreication
        
        Principle of subsidiarity
        
        Hirst vs UK
        
        Explain the facts of this case.
        
        Hirst v UK 2005 [2] was a case, where a former inmate John Hirst sued the UK stating that by not giving prisoners the right to vote was breaching his human rights, the judgement went up to the ECtHR in Strasburg and they held it was that was in breach of human rights, article 3 of the first protocol which says that everyone has the right to free elections.
        
        What were the main legal issues?
        
        David cameron and the conservative party were against prisoners to have a vote
        
        Why exactly was s.3 incompatible with the ECHR?
        
        What was the UK government’s response to this ruling until 2017? Is the current situation an improvement?
        
        Do you agree with the motion put forward by Jack Straw and David Davies that ‘legislative decisions of this nature should be a matter for democratically elected lawmakers’ (p226 in Le Sueur et al)? Or is it more important to protect unpopular minorities?
- - - - Many public authorities have a discretional power. However they can act ‘illegally’ in several ways; by going beyond what they are empowered to do in the power giving parent act, or by misinterpretting the law and so through an error in law act ultra vires.