Public Law Flashcards
What is Public Law?
Public law is the legal relationships between persons and public authorities. Persons can be individuals or a legal person (e.g. a corporate body). Modules covering this include EU law and criminal law.
What is Private Law?
Private law is the legal relationships between persons. Modules covering this include tort or contract law.
What is Constitutional Law?
Constitutional Law is the legal framework which dictates the way in which power is divided between the three branches of the state (executive, legislature and judiciary) and the relationship between the state and the individual.
What is a constitution? and where is it described?
A constitution is a set of rules which define a state’s fundamental political principles, established the framework of the government of the state and guarantees rights and freedoms to citizens.
Thomas Paine in The Rights of Man (1791) describes a constitution as an antecedent act of the people which created the government, defines it powers, and grants it the right to exercise them.
What are the sources of the UK Constitution?
- Acts of Parliament;
- Case law;
- International Law;
- The Royal Prerogative; and
- Constitutional Conventions.
What are the legal sources of the UK constitution?
Acts of parliament, case law, international law and royal prerogative
What are the non-legal sources of the UK Constitution?
constitutional conventions
What are Acts of Parliament also known as?
Primary legislation
What is a draft piece of legislation known as?
a Bill
What are the two types of Bill? What is the difference?
Public and Private: public acts apply to the whole of the UK, and private acts which apply to local issues, giving powers to local authorities.
What are examples of Acts of Parliament in the UK Constitution?
- Magna Carta 1215
- The Bill of Rights 1689
- The Act of Settlement 1701
- The Acts of Union 1706-1707
- Parliament Acts 1911 and 1949
- European Communities Act 1972
- Human Rights Act 1998
- Constitutional Reform 2005
What is the courts contribution to our constitution via case law:
- Residual Freedom
- Legal authority
- Fair hearings
- Parliamentary Supremacy
- Interpretation of Statute
- Judicial Review
What are examples of international law that makes up our constitution?
- European Convention on Human Rights and Fundamental Freedoms
- HRA 1998
- European Communities Act 1972
What are royal prerogative powers defined as, by AV Dicey?
“residue of the discretionary or arbitrary authority, legally left in the hands of the crown, the remaining portion of the crowns original authority”.
What are constitutional conventions defined as, by AV Dicey?
‘understandings, habits, or practices’ that ‘regulate the conduct of several members of the sovereign power, of the Ministry, or of other officials’.
TO determine whether an idea is a convention or not, what is the test?
To determine whether an idea is a convention or not, we must apply the Jennings test:
• What precedent, if any, is there for the practice?
• Do those adhering to the precedent believe that they are bound to do so, as if by a rule?
• Is there a reason for the rule?
If all three conditions are satisfied, it is a convention.
What are examples of conventions?
- Salisbury Convention
- Collective Ministerial Responsibility
- Seeking approval from Parliament for proposed military actions
What is the ratio for Madzimbamuto v Lardner-Burke [1969]
In Zimbabwe (a former UK colony) which had its own Legislative Assembly, which could pass its own laws but subordinate to the UK parliament. The convention was that the UK parliament would not make laws unless it gained the consent of the national government. The UK parliament, in response to legislation passed by the national government, passed an act without consulting the national government.
What is the ratio for AG v Jonathan Cape Ltd [1976]
The government’s chief legal officer, the AG, tried to prevent publication by Cape of Richard Crossman’s diaries which included details of Cabinet discussions. Crossman was a former Cabinet Minister, and the AG argued that the convention of collective Cabinet responsibility should be enforced. That convention, he argued, should prevent the book being published. The High Court agreed with the AG however, collective ministerial responsibility only lasts for a reasonable amount of time, therefore the publication should be allowed to go ahead.
What are the principles of the constitution?
- Rule of law
- Separation of Powers
- Supremacy of Parliament
What are the 8 sub rules of rule of law?
Lord Bingham reformulated this definition into 8 sub-rules:
- The law must be clear, accessible, and practical.
- Legal issues generally to be decided on the basis of law not discretion.
- The law should apply equally to all.
- Human rights must be protected by law.
- Provision of funding for legal action where necessary.
- Ministers and other public officials to act reasonably, in good faith without going beyond their powers.
- Fair court system
- States must comply with international law.
What are the 3 branches of government?
- The legislature – the body that makes the law;
- The executive – the body that implements the law; and
- The judiciary – the body that resolves disputes about the law.
How did Charles de Montesqieu define separation of powers?
- The same persons should not form part of more than one of the organs of government
- One organ of government should not exercise the functions of another; and
- Each organ of government should act as a check against the others and should be able to do this independently without any undue threat of preventative control or interference.
Which two branches of government have the most overlap of personell?
The executive and the legislature
What is elective dictatorship?
Elective Dictatorship is a state in which Parliament is dominated by the Government.
This is due to the Salisbury Convention & Henry VIII Powers.
Against: Constitutional Reform Act 2005
What are Henry VIII powers?
They enable the amendment or repeal of legislation by the government without the need to go back to parliament.
Where did the name ‘Henry VIII’ powers come from
1539 Statute of Proclamations
Which statutes enforce separation of power between the legislature and the executive?
o S1 House of Commons Disqualification Act 1975 – prevents certain members of the executive (e.g. civil service, police) from holding Parliamentary Office.
o S2 House of Commons Disqualification Act 1975 – limits the number of government ministers who may sit in the HoC to 95
What checks and balances are there between the legislature and the executive?
o Vote of No Confidence: The HoC can vote against the PM.
o PMQs: Parliament scrutinises the government. Currently held as a single session every Wednesday, during which the Prime Minister spends around 30 minutes answering questions from MPs.
Which statutes enforce separation of power between the executive and judiciary?
o Constitutional Reform Act 2005: Lord Chancellor used to be head of all 3 branches of government but the act has removed him from the judicial process.
