Public Law Public Law: This is the law which regulates the relationships of individuals (incl. organisations) and the state. (INDIVIDUAL v STATE) – A ‘vertical effect’ e. Criminal law and Human Rights. Private Law: regulates the relationships between individuals themselves. (INDIVIDUAL v INDIVIDUAL) – A ‘horizontal effect’ e. Contract and Tort. ‘Public Law’ broken down: It’s a shortcut used for the longer expression of ‘constitutional and administrative law’   Constitutional Law: The law that relates to the structure or framework of the state, and the political and judicial institutions of the state. (Think: ‘constitutes’) Administrative Law: The body of law that deals with the workings of the state, along with the statutory and common law duties of public bodies. (Think: ‘administers’) So overall, constitutional law is the law that establishes the state and its institutions, administrative law is the law that these institutions use to run the country. The Key Principles of Public Law: o Constitutional ConventionsNon-legal rules which are consequently not enforceable but o o o o o are instead persuasive e. ECHR, Royal Prerogative, common law precedent, European treaties, Prime Minister choice etc. The Rule of Law meaning the state can’t exercise its power in an arbitrary fashion. No single person or organisation is beyond the reach of the law. The Separation of Powers to ensure that a form of dictatorship doesn’t arise while exercising public power, independence of the judiciary is important in ensuring this. The democratically elected and supreme Parliament entrenched Bill of Rights Limited and responsible government  limits the state’s opportunities to abuse its power. As an executive, Parliament can call their conduct into question. Similarly, they are restrained by certain constitutional conventions. ‘Judicial Review’ensures the executive’s conduct is within Parliamentary statute, royal prerogative and/or ‘natural justice’ (rules against bias and right to a fair hearing). The main constitutional bodies of the UK Consists of the legislative, executive and judicial bodies which, together, comprises the ‘State’    Legislative: Parliament as the supreme law-making body of the UK. Executive: Embodied by the government and civil service which implement the law and has dayto-day control of the state and its relations with other countries. Judicial: May be called upon to review executive’s actions, omissions and decisions to ensure that the law is respected at all levels of the state – The Rule of Law in action. What is the ‘Crown’ and is this the same as the Queen? Even the Oxford English Dictionary (OED) defines this ambiguously to cover three different meanings: The Crown The State The Monarch The Actual Crown The Queen’s Role in the UK: The Queen’s Role is as head of state (in turn, she heads the three branches of state – legislative, executive and judicial), though she does not actively participate in day-to-day political decisionmaking in government as a president often would. Other roles include: 1. The legislative function of Royal Assent. 2. Her executive role by offering advice to the Prime Minister at their weekly meetings. 3. Honours are granted through the exercise of her Royal Prerogative. However, the (FACE VALUE v. ACTUAL PRACTISE) of these functions are lessened by the operation of Constitutional Conventions e. advice given to her by the Prime Minister. These are limited in Practise – but NOT LEGALLY e. she can appoint her own prime minister, but the convention is that she appoints the leader of the dominant party. The Nature of Constitutions:  What? – A Framework for defining the structure of the State Way of explaining who in the State has special power and how that power is to be exercised (A method for delineating rights and responsibilities)  How? – A written constitutional document e. USA and Canada- where the courts have the power to strike down ‘unconstitutional’ law. This leads to constitutional supremacy. Amendments to it require a specially prescribed and time-consuming procedure. An unwritten/uncodified constitution: a collection of laws and principles that make up the constitutional framework e. UK. Here, it is sourced from primary legislation, constitutional conventions, non-legal sources (authoritative opinions) and EU/International law. The flexibility of this must assured by the institutions of the State. Ours is a parliamentary executive constitution (rather than presidential). It is a unitary constitution (rather than federal – where there are separations of power within the state e. USA and UAE) – ours is made in Westminster and enforced in UK. It’s is a flexible constitution (rather than rigid) – tends to be very up to date but consequently doesn’t protect our rights. Underpinned by common law, some principles of the Rule of Law (RoL) Rule of Law This is a political principle which has many different definitions. There must be a law in place which can be referred to. It’s a theory or doctrine that describes the extent to which certain features within a country, or legal system. Even in Constitutional Reform Act (2005), it’s not expressly defined. It’s a political principle – oversees the operation of government, it’s subject to change (making it hard to define) and it forms the basis of the UK constitution. There are two requirements of government:  ‘Government by law’ – law not made arbitrarily.  ‘Government under law’ – they must also adhere. Historical evolution of Rule of Law in the UK: o o o o Magna Carta 1215 – enshrined principle that even the Monarch is not above the law. “To none will we sell, to none deny or delay, right or justice”. Petition of Right 1628 – demanded the Monarch adheres to Magna Carta and uphold its overall promises including: no punishment without breach of law, the right to know the charge against you and the right to a fair trial to determine guilt (innocent until proven guilty) – unlike Guantanamo. Habeas Corpus Act 1679 – breach of law must result in punishment. Bill of Rights 1689 – Procedure for law-making. Defined the limits of royal power, fair trial before the courts free of government interference/intervention. Crown not immune from actions by citizens. The Two Main Schools of Thought for the Rule of Law: This is referring to two sets of ideas of the rule of law’s scope, how it should be approached and interpreted plus its impact on societal values – The Procedural and Substantive Rules of Law. Procedural/’Thin’ Rule of Law: This is the most basic understanding of the rule of law (its supremacy)    Law should not be made arbitrarily (or left to sole discretion) All are equal before the law and nobody is above it (even State institutions) No-one should be punished by the State without breach of law (A. Dicey) - “man may with us be punished for a breach of the law, but he can be punished for nothing else”. Theorists like Dicey, Jennings and Raz are profound believers in the procedural aspect of the Rule of Law – each building upon the others’ theories. Jennings agrees with Dicey (though believes that discretion can be useful for ‘social justice’ as opposed to simply adhering to procedure). Raz believed that the law should be prospective, clear, follow prescribed procedures and that the powers of judicial review helps to keep these ideas in balance. Substantive/’Thick’ Rule of Law: Whilst proper procedure is an essential component, the content of the law must reflect certain ‘aspirational’ principles in order for Rule of Law to operate. In addition to the ‘thin’ theorists, the commentators here focus on the substance of the law rather than on the principles alone. T.R. Allan adds substantive features to Dicey’s formal conception, namely that the law should promote the common good via principles of procedural fairness, equality and proportionality. Lord Bingham argued that Dicey “gave no such substantive content to his rule of law concept” and, in his view, “the law must afford adequate protection of fundamental human rights”. Separation of Powers: Directly linked with the coursework and links with Rule of Law and The British Constitution. It’s a theory – explaining how power is to be distributed between the main institutions of State – legislative (the power to enact governmental policy into statute and repeal existing ones), executive (the power to govern by creating policy) and judiciary (the power to apply and enforce statute). The Powers at the disposal of the branches of State:    Legislative: Encompasses the power to consider new propositions of law (sometimes made by the executive), to amend, repeal and enact legislation. Confers power onto the executive and can (some would say ‘should’) scrutinise their actions. Executive: Having a day-to-day control of the country in accordance with the law that Parliament has enacted (incl. Royal Prerogative). They can bring forward propositions of law based on current events, their function also includes the formulation of policy to ensure consistent decision-making and the exercise of discretion, but their policy must respect the ideas of natural justice. Ours extends further than the domestic sphere as our government represents us in international affairs – the Queen as the head of state but usually the Prime Minister in practice. Judiciary: The administration of justice and application of the law. They also ensure that the Rule of Law is being respected by powers of judicial review – simultaneously spotting any infringement of powers. Additionally, they have the power to consider the constitutional standing of legislation. The general confusion around the separation of powers is derived from not only its definitional challenges (what is actually ‘separate’? – Role? Personnel? And sometimes between the ‘thin’/’thick’ schools of thought) but also the frequent overlaps between the supposedly ‘separate’ branches of the State. Personnel of the executive are members of Parliament, Acts of Parliament can begin in the executive sector and the dissolve of the Monarch’s ability to exercise her own power – which is now shifted to the Prime Minister more. Theorists tend to disagree as to what constitutes the idea of the separation of powers i. what is actually separated and how these supposedly ‘separate’ bodies coalesce.  Jennings’ checks and balances system: which is better used to achieve governmental ‘selfcontrol’ – when power overlaps (creating a supervisory role), it’s much easier to check on each other; being concerned with HOW they are doing their jobs; not WHAT they’re doing. Judicial Independence Usually made to respect Parliament’s decisions, but nowadays, they can enforce decisions based on the Human Rights Act. Ultimately, they do their prescribed job – applying legislation, but if there is a ‘declaration of incompatibility’, the government does introduce an amendment which Parliament Here, Jennings has limited the wording of ‘sovereignty’ to suggest only the relationship of Parliament and judges; not referring to their power as a whole. Additionally, he believed that the courts will only acknowledge this power where Parliament enacts law under the appropriate procedure  links with Rule of Law Procedural School. Two Main Views on Parliamentary Sovereignty: There is no written constitution which provides a basis for Parliament’s power so this leads to alternative views on what sovereignty means for us.  Legal and Procedural  Political and Substantive Legal and Procedural: where it is to be found in law – there is a legal imposition upon the judiciary to effectively enact parliamentary rule; regardless of personal views. If the law has been made under the appropriate procedure, the courts must respect and enact it. Political and Substantive: where it has a political basis – based upon an agreement between judges and Parliament. This links back to the earlier majoritarian idea – as it strives to protect minorities; political agendas being prioritised in some circumstances. This emphasises the idea that it may be difficult to make fundamental constitutional changes without clear electoral support. This is usually discussed and written outside of the legal system by higher court judges. Some say judges must apply the law and that’s it, whereas some would say they ought to use their constitutional right to dis-apply socially iniquitous law. Case Authority in favour of the Political/Substantive argument: This finding by Lord Hope is founded upon H.W. Wade’s ‘The basis of legal sovereignty’ 1955 R. (on the application of Jackson and others) v. Attorney General [2005] per Lord Hope of Craighead: “Professor William Wade, too, observed that sovereignty is a political fact for which no purely legal authority can be constituted ... The open texture of the foundations of our legal system which Professor HLA Hart discussed... defies precise analysis in strictly legal terms. Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so unacceptable that the populace at large refuses to recognise it as law”. Case Authority in favour of the Legal/Procedural argument: AXA General Insurance Ltd and others v Lord Advocate and others [2011] per Lord Hope (this time calling on others’ findings): Lord Bingham, “writing extra judicially, the principle is fundamental and in his opinion, as the judges did not by themselves establish the principle, it was not open to them to change it”: The Rule of Law. Lord Neuberger of Abbotsbury, “in his Lord Alexander of Weedon lecture, ‘Who are the Masters Now?’ (2011), said “although the judges had a vital role to play in protecting individuals against the abuses and excess of an increasingly powerful executive, the judges could not go against the will of Parliament as expressed through a statute” Parliamentary Supremacy in the UK: Parliament’s supremacy is derived from common law; not the Bill of Rights as some suggest (because they couldn’t release something which self-allowed them overall supremacy). This doctrine underlies a political ideology about the nature of our state. Judges used to declare cases as being “against God’s will/law” until 1689, after this, some argue judges have stepped away and are now under obligation to apply Parliament’s law. Additionally, as we are under an uncodified constitution; nothing can lead to a “declaration of incompatibility”. Parliament is legislatively supreme because the courts recognise it as such; some argue that this is out “Rule of Recognition”, our State’s defining rule. Are there any restrictions on the power of Parliament?: Though, following Dicey’s principles, Parliament has the power to enact any law they wish, practically, the political pressures of passing legislation would ultimately make their decision for them e. deciding to revoke female rights to vote; feasible but impractical. Theorists like Dicey and Wade believe in the ‘omnipotence’ of Parliament, whereas Jennings, Marshall and Heuston explore the more substantive aspects of law which circumvent parliamentary power; especially in common law – known as The Entrenchment Theory. Take into account: The British Empire Parliament could choose to pass law that operates in a different country, such as France, Canada and Zimbabwe but it would be of little use should those countries not recognise the UK Parliament’s supremacy in relation to their own. Lord Sankey in British Coal Corporation v R (1935) explored how the legislative independence of a country like Canada (derived from the Colonial Laws Validity Act [1865]) meant that the countries themselves had to consent to any of UK Parliament’s assertions.  “Parliament could, as a matter of abstract law, repeal or disregard section 4 of the Statute. But that is theory and has no relation to realities”. Lord Reid in Madzimbamuto v Lardner-Burke (1969) shows how Parliament may be able to enact law, but that is not the same as being able to enforce against people who are not willing to bow to its supremacy.  He accepts that “it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons for doing them are so strong that most people would regard it as highly improper” but he concedes “that does not mean that it is beyond the power of Parliament to do such things”. This seems to be the more substantive rule of law in action. Some of the political pressures for the independence of a country have resulted in the Westminster Parliament enacting legislation and effectively restricting its own future legislative competence as regards those countries. It’s arguable that they can always choose to repeal this legislation and Australia Act (1986); in Section1: regain their supremacy the future but “Can anyone image that Parliament could or would reverse No Act of the Parliament of the United Kingdom passed after commencement this Act these laws and take away their independence? Most clearly not Freedom once givenofcannot be shall extend, or be deemed to extend, to the Commonwealth (of Australia), to a State or to taken away” – Lord Denning in Blackburn v Attorney-General (1971) – making an important a Territory as part of the law of the Commonwealth, of the State or of the Territory. There are three legal jurisdictions: England and Wales, Scotland and Northern Ireland. The process of establishing such regionally or nationally devolved bodies began with the holding of successful referenda in Scotland, Wales, and Northern Ireland. This resulted in the Devolution Acts where the Westminster Parliament lent powers to these bodies; each with varying degrees of power to formulate and execute policy for the nation in question. Northern Ireland Act (1998) NI Assembly has primary law-making powers in most domestic matters [‘Acts of the Northern Ireland Assembly’] Government of Wales Act (1998), (2006) Welsh Assembly has primary law-making powers in areas of competence which are limited [‘Assembly Acts’]. The Westminster Parliament is the Parliament that has legal competence to legislate in respect of all four countries, it’s the only sovereign Parliament in the UK and doubles as the Parliament for England ‘Devolution’ vs. ‘Delegation’ Consequently, England has a sovereign Parliament which contains representative from England, Scotland, Wales and Northern Ireland. Each of the other countries have their own devolved Parliament/Assemblies containing their own representatives but they aren’t sovereign; they are still subject to Westminster Parliament’s authority should they choose to legislate to those nations. There are differences between having ‘devolved’ and ‘delegated’ powers. In general terms, institutions exercising powers that have been ‘devolved’ to them have more power to create and execute their own distinct policies, and to do so in their own names (under their own authority); bodies who have powers ‘delegated’ to them can’t because they’re under the instruction of an Act of Parliament – ‘The Parent Act’.1 In Parliament’s case, when powers are devolved, it is done so without relinquishing their overall legislative supremacy over the recipient regions. Therefore, it’s legally feasible for Westminster to revoke the powers they initially devolved. (Consider political ramifications) Parliamentary Supremacy and The European Union: The European Union (EU) is a body set up through international law (treaties and/or conventions). They are like international contracts where the parties are counties (sovereign states). The Structure of the EU: The European Union is comprised of a number of Principal Institutions: o o European Council: Members are our political heads of state; prime ministers or presidents of each of the EU member states. This is where the higher level decisions are made. Each member will have to agree to a treaty change; like a contract (consensus ad idem). The Council of the EU (Ministers): Similar to a cabinet as they meet from time to time to deal with specific issues. It contains ministers from each member state. It has both legislative and executive functions depending on the issue; each country would send a specific person to deal with it e. if there was a finance issue, we would send the Chancellor of the Exchequer. So far, these institutions involve each country sending an elected person as a representative (protecting their own interests). The following organisations are centred upon settling EU issues. o o o o The European Commission: A form of government responsible for protecting the interests of the European Union. They come up with legal and treaty-based suggestions on how to make the European Union work better. But it is co-decisional with the former and latter to make legislation. The European Parliament: Consists of elected MEPs who make law with the Council. The Court of First Instance: The EU lower court. The European Court of Justice: The final court as regards EU law matters. Does not rule on British law (as we have our own courts) but rules solely on EU law itself; prioritising the overriding European law in this area e. human rights issues. More on the European Court of Justice: The European Court of Justice (ECJ) is comprised of 25 judges whom are representative of nearly all the countries within Europe. These judges are not a special group of EU judges but are nominated individually by their own countries. Some cases work their way through the domestic court hierarchy and if a party believes there’s been a contradiction with EU law, having received a preliminary 1 It’s noteworthy to distinguish devolution from federalism, which would divide, not devolve, supreme power between Westminster and various regional or provincial parliaments European Union Competences: The EU only has legislative power in areas actually set out in the country (it acts as a contract where both the EU and domestic representatives must converge), if an area is not covered by the contract, then the Union have no competence there. Even if it is included in the treaty, it may just mean that they have oversight in the area. They could have any of the three possible competences as set out in the TFEU and Lisbon Treaty. 1. Exclusive Competences (Article 3): The EU alone is able to legislate and any decisions must be wholly accepted and adopted by the country. 2. Shared Competences (Article 4): The EU and Member States are authorised to adopt binding acts in these fields but only to the extent that the EU has not legislated. So, overall, The EU and Member states work together. 3. Exclusive Competences (Article 6): The EU can only intervene to support, co-ordinate or complement the action of Member States because they have no legislative power and their interference is purely persuasive. Domestic Law vs. International Law: Dicey’s founding theory on the supremacy of Parliament implies that EU law can’t effectively be applied in Britain due to its ‘overriding’ feature. However, with the more hierarchically superior source of EU law, it progressively disproves Dicey’s principles. Though we are bound by EU law in international legal terms (and could be subject to sanction via the ECJ), it would not apply in the domestic sphere without our own parliamentary intervention. European Communities Act 1972: This instructs judges and the wider community on how to apply EU law. Any law made previously must be construed to fit the Act and any made afterwards must comply with the regulations set. Therefore, it has both retrospective and prospective elements. Section 2(1): EU law is directly effective in Britain. Section 2(4): EU law overrides any law passed domestically which is contradictory. Section 3(1): If there is a difference of opinion on what a piece of EU law means, reference ought to be made to the ECJ for clarification Despite this, EU law never becomes the first point of reference unless it’s the only one. If both the EU and UK law comply, the judges only need to use the UK’s law and there’s no need for reference. If the UK are somewhat unsure and the words of Parliament don’t literally coincide, the judges use the rules of statutory interpretation to re-interpret it in order to make them fit (overall, they’re still using UK law). The only problem occurs where there is a direct contradiction; the ECA now means that, in these circumstances, we must apply EU law (especially in areas with high levels of EU competence like immigration and employment). The reason why the UK don’t impliedly repeal a piece of EU legislation is because they may not be on the same topic. European Court of Justice Case Law: The precedent for EU law comes from ECJ rulings; not from individual countries. The United Kingdom did not join the European Union until 1973, but Algemene v Nerderlanse (1963) states that EU law is retrospectively overriding in member states if the issues relate to individual freedom (an example of human rights). Costa v ENEL states that when you join the EU, you limit your own sovereign powers in accepting that EU law is overriding in contradictory circumstances. Also, EU law may top a member state’s court hierarchy – Simmenthal Case. Lecture 5: Parliamentary Supremacy and the European Union EU law wasn’t even on the legal curriculum until the 90s. In Britain, there wasn’t that much of an issue to apply this, we re-worked SI rules to help to incorporate EU law but the Factortame cases showed how UK courts may be required to dis-apply a UK Act of Parliament. Usually, SI would be fine but here, the courts were stuck because it went against parliamentary supremacy in the UK. But in this case, the ECJ said that no matter what, EU law must prevail over domestic law and the courts must enforce this. This now questions whether or not parliamentary supremacy actually exist; some (like Lord Bridge) say yes because, regardless of the limitations set out by the ECA are evident, our involvement is entirely voluntary and we can repeal that legislation to undo its effects; The Voluntary Theory. Is the position settled? We thought it was, but it’s difficult to settle this under an uncodified constitution. In Thoburn, the ‘metric martyrs’ case. Mr Thorburn had a fruit and veg stall in a market and didn’t want to change to the metric system (which we changed to in the 70s); he wanted to stick to pounds and ounces; not grams and kilograms. EU law says that when you sell goods in an EU member state, you must sell them in metric weights, Thorburn used an old/’imperial’ measured scales, he could leave the original prices there but the law required him to also but on the metric measurements. He argued that EU law was no longer valid in Britain because we passed an Act which contradicted the older EU law so therefore we should overrule it. He tried to suggest that the British Act repealed the EU law and ECA based on the idea of implied repeal. The sovereign decision is that EU law is overriding. Under devolution, Parliament has delegated power away but they can get it back; this differs from the EU’s influence. But Britain is not allowed to hand over any additional/new power to the EU unless we have a referendum and the electorate allow this delegation to occur; EU Act (2011) – this will continue unless we repeal or amend it. Parliament has bound itself to do this. In this most recent treaty negotiation, Article 50 states that any member state can withdraw under its own constitutional requirements where a negotiation will follow thereafter. However, if you leave, you leave; then there is a negotiation to state whether or not you can continue to have ongoing relations. This has never happened before so we don’t know what the political consequences would be. not via any other private law means as it would be “contrary to public policy…to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by ordinary action” – Lord Diplock, O’Reilly v Mackman 1983 (e. areas like social security, health, housing, education, immigration and asylum) The Origins of Judicial Review: Judicial Review is derived from common law and is the inherent power of the High Court to overview the actions and decisions of government bodies. As a procedure, it was introduced in 1978 and has gradually become the norm for pursuing public law matters (since O’Reilly). Its legal basis is found in Part 54 of the Civil Procedure Rules following the recommendations of the Bowman Committee: Civil Procedure Rules 1998: Part 54 2(a) a ‘claim for judicial review’ means a claim to review the lawfulness of (i) an enactment; or (ii) a decision, action or failure to act in relation to the exercise of a public function These decisions to review can be found on illegality, irrationality, procedural impropriety and incompatibility Most judicial review claims are held in the Administrative Court (a division of High Court) and brought by individuals/organisations who have been affected by the exercise of state power. Review can be for an enactment (usually for secondary legislation) but the hierarchical superiority of primary legislation means that the powers of the judiciary are confined to a ‘declaration of incompatibility’ (under section 4). The Potential Exclusion of Judicial Review: It is possible that Parliament can include sections (‘ouster clauses’) in their Acts which appear to expel the jurisdiction of the court. But the courts are responsible for interpreting these Acts which they do in a very limited fashion as they believe that they are the ones who should decide whether or not something is ‘lawful’ and they don’t appreciate statutory provisions. An example of an ouster clause being narrowed by interpretation is in Anisminic. Anisminic v Foreign Compensation Commission [1969] where a claim made to the FCC was reviewed but Anisminic attempted to challenge the decision to use judicial review under the provision in s4(4) Foreign Compensation Act 1950 (“the determination by the commission of any application made to them under this Act shall not be called in question in any court of law”). Here, the word ‘determination’ was highlighted and read narrowly where its ‘legal’ association was disregarded. This decision was followed and applied in: R v SSHD, ex parte Fayed [1997] where the courts thinly read the British Nationality Act’s provision at s; “The decision of the Secretary of State…shall not be subject to appeal…or review in any court of law”. How to bring a Judicial Review forward? 1. The claimant must exhaust all alternative remedies 2. The defendant body must be exercising “public functions” 3. The claimant must have a “sufficient interest” (s(3) Senior Court Act 1981)in the matter (e. Human Rights) to be able to pinpoint a specific action, omission or decision to be subjected to a review and the claim must be brought on one or more of the bases in the Civil Procedure Rules. The claimant must also be able to pinpoint an actionable and desired remedy 4. The application must be made within the 3-month time period 5. The claimant must obtain permission (rules of standing) These procedural requirements are there because cases are being brought against public authorities; who are believed to need special protection as the ramifications of a claim (like stopping their work) may affect many other people who depend on them; also consider the ‘defensive practises’ policy argument which inhibits their natural work. Judicial Review (Continued…): The susceptibility of public authorities to judicial review is due to their characteristics. They differ in character and exposure to review for a number of reasons:     Funding: These authorities are publicly funded through tax so, consider the idea of damages being most effective when you can sue the ones with the ‘deepest pockets’. Powers: They have power which the ordinary individual doesn’t have (e. a prison having the make to detain people). Accountability: They are held accountable to parliament and the law for what they do so actions can be easily pinpointed and the rationale behind them. Impact of Decisions/Actions: They affect a great number of people. The “Public Functions” Requirement: Judicial Review can only be brought against a body who is exercising a public function. A public function has been determined through case law (a list of what they could be). If the legal basis of a function is statutory, then it is likely to be a public function but if it were established by a contract, it’s more likely to be private {neither are absolute}. The courts consider certain things when looking at a function: These factors are not exhaustive:     Source – from Contract? Statute? Royal Prerogative? Nature – What kinds of powers they exercise History – Regarding its stature and membership Any other Governmental Element Public authorities can be judicially reviewed most of the time; the distinction is usually where bodies are set up by a statute to perform public functions. The main case of a judicial review as an exception is R v Panel on Takeovers and Mergers [1987] where the function wasn’t authorised by a contract nor a statute (stock exchange) and yet was held to be a ‘public function’ where the “nature” of the power and its “public law consequences” were enough; per Lord Lloyd. Contractual Relations Test: Where the relationship between the body and individuals or members is set up through contract; usually isn’t subject to review unless in situations where the courts deem that they are exercising enough of a public function for them to be subject to review for the good of the people who may be  A person who claims the misuse of a public authority’s power can only bring it forward provided they are (or would be) a victim of the unlawful act. This is the same test as the one used by the ECtHR under Article 34 {There are strict and broad approaches to standing which can been frequently adopted though the latter is now used a lot more. They relate to the matter of ‘interest’ where the former restricts this to those directly affected and the latter, more fairly, concerns those affected generally} Third-Party Intervenors: For Human Rights, if you have a group bringing forward the action then they need a straw plaintiff who they are backing specifically or alternatively if you’re a group that has standing and expertise, they you may be able to stand as a ‘friend’ of the court – a third party intervener who can aid the court to come to a decision which is centred on the area of which you are an expert in. The “Grounds” for Judicial Review: These are the categories used to concentrate certain types of error. These are all based on judicial precedent (and not statutory grounds), the most significant classification of these is by Lord Diplock in the GCHQ Case [1985]. Illegality Irrationality Proportionality Procedural Impropriety By ‘Illegality’, Diplock meant that the “the decision-maker must correctly understand the law that regulates his decision-making and must give effect to it”. By ‘Irrationality’, he means a decision which is “so outrageous in its defiance of logic or of accepted moral standards” that it wouldn’t have been made by any “sensible person”. By ‘Procedural Impropriety’, he means a “failure…to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred” Proportionality was hinted at my Diplock and may make an appearance in the near future. Illegality An Illegality (ultra vires) can include a variety of things:         Errors of Law (incl. breach of the HRA) – misunderstanding or not knowing the law e. a simple jurisdictional error (that they’re done something wrong) Errors of Precedent Fact (+ Irrational Conclusion) – misinterpreting key fact/ratio which courts are reluctant to find due to floodgates issue. Courts can also review a completely irrational conclusion reached by fact. Using Power for an Improper Purpose Failure to take account all relevant considerations Failure to omit all irrelevant considerations e. R v Venables &amp;amp;amp; Thompson [1998] where a petition was considered when considering the sentences of the two boys responsible for the murder of young Jamie Bulger. Fettering Discretion – Limited choice in given situations where the public authority must exercise their power for a legitimate purpose. (links to above 2) Onerous (unrelated) Condition attached to a decision Improper delegation of power given by Parliament: which must be authorised

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Public Law Notes

Module: Public law (LGDL607)

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University: University of Westminster

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Public Law

Public Law : This is the law which regulates the relationships of individuals (incl. organisations) and

the state. (INDIVIDUAL v STATE) – A ‘vertical effect’ e.g. Criminal law and Human Rights.

Private Law : regulates the relationships between individuals themselves. (INDIVIDUAL v

INDIVIDUAL) – A ‘horizontal effect’ e.g. Contract and Tort.

‘Public Law’ broken down:

It’s a shortcut used for the longer expression of ‘constitutional and administrative law’

Constitutional Law: The law that relates to the structure or framework of the state, and the

political and judicial institutions of the state. (Think: ‘constitutes’)

Administrative Law: The body of law that deals with the workings of the state, along with

the statutory and common law duties of public bodies. (Think: ‘administers’)

So overall, constitutional law is the law that establishes the state and its institutions,

administrative law is the law that these institutions use to run the country.

The Key Principles of Public Law:

oConstitutional Conventions Non-legal rules which are consequently not enforceable but

are instead persuasive e.g. ECHR, Royal Prerogative, common law precedent, European

treaties, Prime Minister choice etc.

oThe Rule of Law  meaning the state can’t exercise its power in an arbitrary fashion. No

single person or organisation is beyond the reach of the law.

oThe Separation of Powers  to ensure that a form of dictatorship doesn’t arise while

exercising public power, independence of the judiciary is important in ensuring this.

oThe democratically elected and supreme Parliament  entrenched Bill of Rights

oLimited and responsible government  limits the state’s opportunities to abuse its power.

As an executive, Parliament can call their conduct into question. Similarly, they are restrained

by certain constitutional conventions.

o‘Judicial Review’ ensures the executive’s conduct is within Parliamentary statute, royal

prerogative and/or ‘natural justice’ (rules against bias and right to a fair hearing).

The main constitutional bodies of the UK

Consists of the legislative, executive and judicial bodies which, together, comprises the ‘State’

Legislative : Parliament as the supreme law-making body of the UK.

Executive : Embodied by the government and civil service which implement the law and has day-

to-day control of the state and its relations with other countries.

Judicial : May be called upon to review executive’s actions, omissions and decisions to ensure

that the law is respected at all levels of the state – The Rule of Law in action.

Public Law Notes

Public law (LGDL607)

University of Westminster

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Public Law Notes

Module: Public law (LGDL607)

University: University of Westminster

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