Public Law

A constitution is a set of the most important rules that regulate the relations among the different parts of the government of a given country and also relations between different parts of government and the people of the country.

Small c: may cover matters not included in the written constitution and vise versa.

1) disputes between organs of the state in national or provincial sphere concerning the constitutional status, powers or functions of any of these organs of the state.

2) constitutionality of any parliamentary or provincial Bill

3) claim that Parliament or president has failed to fulfill an obligation.

Written/ Unwritten

Flexible/ Inflexible

Monarchical/ Republican

Parliamentary/ Presidential

Federal/ Unitary

it establishes or constitutes the system of government and is thus not part of it

it involves an authority outside and above the order it establishes

it is a form of law superior to all other laws

it is entrenched

Acts of Parliament

Common law

Constitutional Conventions

EU law

Custom

Prerogative powers

Accessible to ordinary people

even for parliamentarians and experts some constitutional laws remain uncertain

Governing parties can change the laws to benefit themselves

Wouldn't hurt the history; would just codify it

Would improve out of date laws

beneficial for educating scholars

Impossible to codify the constitution without changing it

Uk can adopt to changes easily

Would be able to easily react to citizens' needs

May cause separation of powers

Could cause controversy

Would require a lot of time and effort

Deliberative

Officials

Judiciary

Legislative

Executive

Federative

He was a French nobleman and a parliamentary magistrate. The book was an electronic book with a chapter called ' on a constitution of England'. Here Montesquieu described why the legislative, executive and judiciary powers must be separated.

in The English Constitution (1867):

'close union and an almost complete fusion of legislative and executive power'.

1)Members of the government are members of the Houses of Parliament.

2)Monarch is in all 3 branches.

3)Before CRA 2005 Lord Chancellor was part of all the 3 branches.

4)Although JAC has been introduced, final say still lies with the Lord Chancellor and the Monarch.

Power to make deligated legislation is given to a government department frequently.

Common law has been called 'judicial legislation'

Magistrates or district judges still perform administrative duties, such as some aspect of licensing.

1)The Lord Chancellor has ceased to be head of the judiciary ( Lord Chief Justice took over).

2)Lord Speaker replaced Lord Chancellor in the speakership of the HL.

3)Lord Chancellor does not sit as a judge in a Supreme Court.

4) JAC has to recommend judges <- Lord Chancellor has to appoint from that list.

5)Lord Chancellor is required to:

*have regard to public interest and administration that involves the judiciary.

*defend the independence of judiciary.

*ensure provision of resources is enough to support the courts.

to the agreement between the then Lord Chancellor, Lord Falconer, the Lord Chief Justice and Lord Woolf on 26th January 2004, at a time when it was the Government's intention to abolish the office of Lord Chancellor.

s3(1)

The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.

Lord Chancellor has criticized in a written statement to HL Committee on the Constitutional Reform Bill (April 2004) that:

' there can be no doubt hat our record of selecting judges is no longer acceptable. The selection process should not be entirely in the hands of a single Government Minister.

Responsible for selecting candidates to recommend to the Lord Chancellor for senior level judicial appointment.

This also preserves the Constitutional convention that The Queen acts solely on the advice of her Ministers.

British Constitution is firmly based on the separation of powers. Parliament makes the laws, the judiciary interpret them.

The separation between the exercise of judicial powers on the one hand and legislative and executive powers on the other is total or effectively so. Such separation, based on the rule of law, was recently described as 'a characteristic feature of democracies'.

Lord Mustill:

Parliament has a legally unchallenged right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed.

the separation as between the judicial and the other powers will continue to be preserved even if the legislative and executive branches of government become even more entwined.

= There is a partial separation of powers in the United Kingdom.

The law lords used to sit in the HL legislative chamber as cross-benchers and therefore were exercising judiciary powers as well.

HRA stresses that judges must be independent and free of any bias.

The court of final appeal no longer hears cases in one of Parliaments committee rooms.

Members of SC can no longer sit&vote in HL.

1) Constitution has evolved, rather than been created at one moment.

2) Conventions have been developed without regard to separation of powers.

3) Different meanings have been given to ' legislative, executive, judiciary' and they vary depending on circumstances.

Means of controlling the abuse of power.

the manner in which the law was promulgated(was it by a properly authorized person, in a properly authorized manner)

accept the formal attribute but are also concerned with whether the content of the law is 'good' or 'bad'

4) Independence of the judiciary is guaranteed

5) Principles of natural justice must be observed

6) Courts should have review powers

7) Courts should be easily accessible

8) Agencies should not be allowed to pervert the law

Laws can not be stated after the event has occurred.

Common law is retrospective.

Donaldson MR:

People should understand that it is in their interests, as well as in that of community as a whole, that they should live their lives in accordance to the rules and all the rules. Second, they must know what those rules are.

Parliament must be presumed not to legislate contrary to the rule of law.

Laws J: access to courts is a constitutional right.

Access to justice may be denied ways, such as where a prisoner who was contemplating bringing various civil actions was denied access to his solicitor by a prison governor. -> R v Secretary of state for the home department.

5) Means should be provided for resolving without excessive costs and delay.

6) Ministers and public officers must exercise powers reasonably.

7) The adjudicative procedure must be fair.

8) State must comply with international law.

1) No man is punishable unless for the breach of law.

2) No man is above the law.

3) General principles of the constitution are the result of judicial decisions in cases which have arisen before the parties.

1) The need for discretionary powers.

2) Many statues allow police offers to detain people only to reasonable suspicion.

3) Members of police may be able to exercise more lawful power than average citizen.

4) It would be unjust if the law did not account for social difference.

5) Dicey is not concerned with content of law.

It established the principle that prerogative powers of the monarch and government are subordinate to the law of the land. It guarantees that government officials acting in an executive capacity “cannot exercise public power unless such exercise of it is authorised by some specific rule of law”.

The House of Lords held that although the Crown’s immunity from injunctions had been preserved (Crown Proceedings Act 1947), the Courts have jurisdiction to grant mandatory injunctions in judicial review against officers of the Crown. While the Crown cannot be held in contempt of court, a minister exercising his power on behalf of the Crown can be.

In case of statutory powers, the courts may be unable to impede or restrict the working of legislation.

The courts may take the view that if the police abused their power to such an extent, that they should be prevented from bringing a prosecution.

Especially important in the UK since the constitution is not codified.

Lord Woolf: an act of Parliament that violated the rule of law can be disobeyed by the courts.

The question was whether the Home Sec. could use the prerogative rather than the statute. The Court of Appeal and the House of Lords ruled that where a statute was enforceable the Secretary could not avoid provisions and act under the prerogative.