PUBLIC LAW

TEN GOLDEN RULES FOR STUDYING PUBLIC LAW

1. Learn each as you study it and frequeently revise.
2. Read each chapter at least twice
3. Read as many of the important cases as you can
4. Read as much as the recommended further readin as you can
5. Take full notes of what is said in lectures and tutorials
6. Read with a book of statutes at hand for reference
7. Condence your own full notes into a skeleton set of notes
8. Practice answering examination questions
9. Keep up to date
10. See the law in action


CHARACTERISTICS OF THE UK CONSTITUTION

INTRODUCTION

A constitution is a set of rules, generally written, which identify and regulate the major institutions the major instiutions of state and govern the relationship between the state and the individual citizen. It could either be written or unwritten, rigid or flexible, republican or monarchical, unitary or federal and supreme (i.e. not subject to any external superior force) or subordinate (former British colonies). Constitution will identify the principal institutions of the state, executive, legislative and judiciary. It will specify their functions and power. In addition it will identify the rights and freedoms of citizens

THE UNWRITTEN NATURE OF THE BRITISH CONSTIUTION

Britain, Israel and New Zealand are the only countries in world today that have constitutions which are not entirely written. Britain's largely unwritten constitution is historical. It is a result of gradual evolution rather than any conscious system to design a complete system of constitution and government. Though not totally written, it identifies rules and procedures relating to principal institution of the satate. There are numerous rules which we can identify as consitutional, while some areas may be uncertain. The principle of the constitution is that parliament is supreme in its law making power and there can be no limit as to the matters on which parliament can legislate. We are also clear about the Acts of Parliament which:

a) define membership of parliament e.g. House of Commons (Disqualification
Act) 1975

b) provide for national representative assemblies (see the Northern Ireland
Act 1998, Scotland Act 1998, Government of Wales Act 1998)

c) enable the reception of European Community Law into domestice law
(European Community Act 1972)

d) protect civil and political rights (e.g) Human Rights Act Act 1998)


are constitutional statutes. In theory however, none of these has a formal constitutional statuts. They can be amended by parliament at parliament's will without special procedure.

EVOLUTION OF THE BRITISH CONSTITUTION


The Tudor and Stuart periods are important in the constitutionary history of the British constitution. In the reign of Henry VIII (1509-1547), the King broke the allegiance to Roman Catholicism and established the Church of England, under his authority. This led to conflict between the crown and the House of Common and ultimately resulted in civil war breaking out in 1642. The conflict ended with the execution of King Charles in 1649 and the abolition of the Monarch, the House of Lords and Church of England. There was a period or republican rule headed by Oliver Cromwell and maintained by military rule which ended in 1659 with the death of Cromwell. In 1660 the Monarch, House of Lords and Church of England were restored under Charles II.


When James II, who was a catholic ascended the throne the fear that he might renew the allegiance to Rome led the Parliamentarians to invite William and Mary of Orange to overthrow James II. James II fled and during the reign of William and Mary of Orange, the power of the Monarch was curtailed. The following bills laws were made:


a) Bill of Rights Settlement of 1689 which finally established the supremacy of the parliament over the crown.


b) The Act of Settlement 1700 clarified the supremacy of the Church of England and prohibited any future monarch from being an ardent of Catholism. The Act also guaranteed the independence of the Judiciary by providing that only an address to the Crown by both Houses could remove a senior judge from office.


In 1706 centuries of conflict between England and Scotland ended with the Acts of Union 1706 and 1707 which united both countries other a single parliament of Great Britain. Union with Ireland took place under Act of Union 1800 to be ended finally in 1921 with the independence of Republic of Ireland and the partition of Ireland with the six northern counties remaining united with Britain as the province of Northern Ireland. From the reign of Elizabeth 1568 to19th century, the British Monarch was the Head of State in countries spanning the globe. American colonies were lost at the end of 18th century. Two world wars between 1914-1919 and 1939-1945 forever ended British supremacy on the international arena. Many of this countries remains in the commonwealth


The 20th also sow the emergence of cooperation between continental Europe originating with Council of Europe in 1949, thereafter Europen Union and European communities (European Coal and Steel Community in 1951; European Atomic Energy Community 1957 and European Economic Community in 1957). Britain stood aside and join the European Community from January 1, 1973. 1992 saw the Birth of the expanded European Union with the original objective of expanding the communities into such areas as common currency, common policies on defence and security and co-operation in police and judicial matters.


On the domestic front the relationship between two Houses of Parliament were recognised and formalised under Parlimanent Act of 1911 and 1949 which reinforce the supremacy of the House of Commons over House of Lords


CONSTITUTIONAL REFORM


The election of the Labour Government in 1997 ushered in period of unprecedented reform. These include the Northern Ireland Act 1998 which re-established the Northern Ireland Assembly; The Scotland Act 1998 established the Scottish Parliament and the Government of Wales Act 1998 established the Welsh Assembly. The House of Lords Act 1999 removes the right of most hereditary peers to sit and vote and the second stage of the reform is planned. The Human Rights Act 1998 made civil and political rights guaranteed by the European Convention on Human Rights enforceable in domestice courts. In 2003 government announced the abolition of the office of the Lord Chancellor and the the establishment of a new Supreme Court and statutory appointment of commissioners to deal with judicial appointment.



SOURCES OF THE CONSTITUTION

Act of Parliament - An Act of Parliament is the highest form of law within the United Kingdom. Many Acts which have fundamental constitutional importance include


Magna Carta 1215 - Protects citizen against arbitrary powers and guaranteed right to fair trial and trial by jury

The Petition of Rigth 1628 which prohibited raising of tases without Parliament's consent

The Bills of Right 1689 - prohibited crown from raising taxes or executing law without Parliment's consent, raising and keeping army and provided for freedom of speech in Parliament

The Act of Settlement 1700 - limited succession to the throne to Protestants
The Acts of Union of 1706 and 1707 - united England and Scotland under a single parliament

Parlimanent Act of 1911 and 1949 which reinforce the supremacy of the House of Commons over House of Lords

The European Community Act 1972 which provided for the reception and enforcement of Communitu law in the United Kingdom

The Representation of the the People Act 1972, as amended, which regulates election
Local Government Acts which define the functions, scope and powers of local authorities

Northern Ireland Act 1998 which re-established the Northern Ireland Assembly; The Scotland Act 1998 established the Scottish Parliament and the Government of Wales Act 1998 established the Welsh Assembly.

The House of Lords Act 1999 removes the right of most hereditary peers to sit and vote and the second stage of the reform is planned.

The Human Rights Act 1998 made civil and political rights guaranteed by the European Convention on Human Rights enforceable in domestice courts.

British Nationality Act 1981

Immigration and Asylum Acts.


Common Law: The decisions of the courts through the interpretation of status or through development of common law are a source of constitutional law where they affects the power of the state. These include those case which uphold the sovereignity of the parliament; define the scope of royal prerogative; rule on the legality of actions of public bodies through judicial review; define civil liberties and decisions under human rights acts



The Law and Custom of Parliament: This pertains to parliamentary privileges, rights and immunities. If such matter is raised in court, the judge can determine whether the matter is one of parliamentary privilege but will decline juridisction to rule upon the merit of a claim


Royal Prerogative: collection of rights and immunities which belong to the crown. They represent the residue of common law powers enjoyed by the crown before the settlement of 1869. No new prerogative may be created, but a prerogative power may be interpreted to give it contemporary meaning. Prime Minister and other ministers are appointed under prerogative. Parliament is summon and prorogued (suspended) under prerogative. Declaration of wars, peace, control of armed forces in overseas operation and signing of international treaties are under prerogative


European Sources: European Convention of on Human Rights. Human Rights Act 1998. Derogation as in Anti-Terrorism, Crime and Security Act 2001





The Laws of the European Community and Union: Council of Europe in 1949, thereafter Europen Union and European communities (European Coal and Steel Community in 1951; European Atomic Energy Community 1957 and European Economic Community in 1957). Britain stood aside and join the European Community from January 1, 1973. 1992 saw the Birth of the expanded European Union with the original objective of expanding the communities into such areas as common currency, common policies on defence and security and co-operation in police and judicial matters.



NON-LEGAL SOURCES



Constitutional conventions are rules of constitutional behaviour binding upon those who operate the constitution but cannot be enforced by the law courts. To breach a constitutional convention is to act unconstitutionally but not unlawfully since conventions are non-legal. Some are more important than laws. For example:



In law the Crown can appoint whomsoever the monarch wishes as Prime Minister, by convention the crown appoints the leader who wins most seats in a general election as Prime Minister
In law the Crown can dissolve the parliament, by convention the crown dissolve the parliament on the request of the Prime Minister
The rules regulating cabinet collective responsibilities are conventions
The rules regulating ministers and their responsibilities are a matter of convention
In law the crown can refuse to grant royal assent, by convention the royal assent will never be refused when a bill has passed the commons and Lords
It is conventional rule tha the judges must not pay actuve part in party politics
It is a convention that members of the parliament must not criticise the decision of judges
When speaking on behalf of government, the lord chancellor moves away from the speakers woolsack
the Government must resign if it looses the confidence of the House of Commons.