Public law: Text, cases, and materials

Citation

Le Sueur, A. P., Sunkin, M., & Murkens, J. E. K. (2016). Public law: Text, cases, and materials (3rd ed.). Oxford University Press.

Chapter Summary

Part I: Constitutional Fundamentals

Introduction to Constitutional Fundamentals

This section sets the stage by exploring the concept of constitutions as texts and systems of governance. It questions why the UK lacks a single, codified constitutional document and the implications of this.

Chapter 1: The Constitutional Rulebook

This chapter focuses on the sources of constitutional law and practice in the UK, examining both legal and non-legal rules, and introduces the debate between political and legal constitutionalism.

Chapter 2: The Legislative Supremacy of the UK Parliament

Discusses the principles and rules underlying parliamentary supremacy, its sources, and the concept of entrenchment. It also examines the impact of European law on parliamentary supremacy.

Chapter 3: The Rule of Law

Explores the ideal of constitutionalism through the rule of law, defining its principles and discussing how it is practically protected.

Chapter 4: Separating and Balancing Powers

Analyzes the separation of powers among the legislative, executive, and judicial branches, discussing both theoretical and practical aspects within the UK context.

Chapter 5: Multilevel Governing

Covers governance at national, regional (devolution), and local levels, including the ‘English Question’ and recent developments in devolution.

Chapter 6: Protecting Rights

Focuses on constitutional rights, the Human Rights Act 1998, and the ongoing debate about replacing it with a British Bill of Rights. It includes case studies on prisoner voting and anti-terrorism legislation.

Part II: Executive Functions

Introduction to Executive Functions

An overview of the executive branch’s role and powers in the UK constitutional framework.

Chapter 7: Government and Accountability

Examines the roles of the Monarch, ministers, the civil service, and arm’s length bodies, along with mechanisms for government accountability.

Chapter 8: Exercise and Control of Executive Power in the European Union

Discusses the structure of executive power within the EU and how it interacts with national governments, particularly focusing on the treaty-making process.

Chapter 9: Prerogative Powers and Case Study on the Deployment of Armed Forces Abroad

Explores the sources and scope of prerogative powers, with a specific case study on the legal issues surrounding the deployment of British armed forces abroad.

Part III: Legislative Functions

Introduction to Legislative Functions

Provides a framework for understanding legislative processes in the UK.

Chapter 10: Primary Legislation

Discusses the process of creating primary legislation, from policy-making to drafting, scrutiny, and enactment, with a focus on bills of constitutional importance.

Chapter 11: Delegated Legislation

Explores the nature, purposes, and control mechanisms of delegated legislation, including a case study on the Public Bodies Act 2011.

Chapter 12: European Union Treaties and Legislative Processes

Analyzes the processes of EU treaty-making and legislation, and the normative issues of legitimacy, transparency, and accountability involved.

Chapter 13: Case Study: What Happens When the Commons and Lords Disagree

Investigates the procedures and conventions regulating relations between the House of Commons and the House of Lords, including the Parliament Acts and specific case studies like the Hunting Act 2004.

Part IV: Judicial and Dispute Resolution Functions

Introduction to Judicial and Dispute Resolution Functions

An introduction to the judiciary’s role and the dispute resolution mechanisms in the UK.

Chapter 14: The Judiciary

Examines judicial independence, accountability, the UK Supreme Court, and the appointment process for judges.

Chapter 15: Administrative Justice: Tribunals and Ombudsmen

Discusses the system of administrative justice, focusing on tribunals and ombudsmen as mechanisms for resolving disputes between citizens and the state.

Chapter 16: Judicial Review

Explores the constitutional justifications, practice, and grounds for judicial review, along with mechanisms to prevent it.

Chapter 17: Using Human Rights in the United Kingdom Courts

Analyzes the Human Rights Act 1998, its application in courts, and specific case studies on the right to manifest religion and anti-terrorism measures.

Chapter 18: European Union Law in the United Kingdom Courts

Covers the reception and application of EU law by UK courts, discussing the concept of parliamentary sovereignty in the context of EU membership and significant case law developments.

Key Concepts

Constitutional Fundamentals

Constitutional Rulebook

• Sources of Constitutional Law: Includes Acts of Parliament, common law, constitutional conventions, and international law.
• Political vs. Legal Constitutionalism: Debate on whether the UK constitution is primarily a political or legal construct.

Legislative Supremacy of Parliament

• Parliamentary Sovereignty: Parliament has the supreme legal authority in the UK, capable of creating or ending any law.
• Entrenchment: The concept that Parliament cannot bind future Parliaments, leading to debates about implied repeal and the impact of EU law.

Rule of Law

• Definition and Principles: The idea that all individuals and institutions are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated.
• Protection Mechanisms: How the rule of law is upheld in practice, including judicial review and checks and balances within the government.

Separation of Powers

• Division of State Functions: Legislative, executive, and judicial functions should be distinct and balanced to prevent abuse of power.
• Westminster Model: The UK’s adaptation of the separation of powers, often blending the functions more than other systems.

Multilevel Governance

• Devolution: Transfer of powers from the central government to regional governments in Scotland, Wales, and Northern Ireland.
• English Question: The issue of how England fits into the devolution settlement and the implications for governance.

Protection of Rights

• Human Rights Act 1998: Incorporates the European Convention on Human Rights into UK law.
• British Bill of Rights Debate: Ongoing discussions about whether to replace the Human Rights Act with a British Bill of Rights.

Executive Functions

Government and Accountability

• Role of the Monarch: Largely ceremonial, with real power exercised by ministers and the civil service.
• Ministerial Accountability: Ministers are accountable to Parliament and, through it, to the public.

Executive Power in the EU

• Dual Executive: The EU’s executive functions are shared between the European Commission and the European Council.
• National Scrutiny: How member states, including the UK, oversee and influence EU decision-making processes.

Prerogative Powers

• Definition and Scope: Historical powers held by the Monarch that are now exercised by ministers, such as treaty-making and deploying armed forces.
• Legal Reforms and Case Studies: Examination of how these powers are controlled and reformed, including case studies like military deployment.

Legislative Functions

Primary Legislation

• Legislative Process: The stages a bill goes through in Parliament, from drafting to royal assent.
• Constitutional Legislation: Special considerations for bills that have significant constitutional implications.

Delegated Legislation

• Nature and Purpose: Laws made by an individual or body under powers given to them by an Act of Parliament.
• Control Mechanisms: Parliamentary scrutiny and judicial review of delegated legislation.

EU Legislative Processes

• Treaty Making: How the EU treaties are negotiated and ratified.
• Legitimacy and Accountability: Normative issues surrounding the transparency and democratic legitimacy of EU legislative processes.

Judicial and Dispute Resolution Functions

Judiciary

• Judicial Independence: The principle that judges should not be influenced by other branches of government.
• Judicial Accountability and Appointments: How judges are held accountable and the process of their appointment.

Administrative Justice

• Tribunals and Ombudsmen: Mechanisms for resolving disputes between individuals and the state outside of traditional courts.
• Access to Justice: Ensuring individuals can effectively challenge administrative decisions.

Judicial Review

• Grounds and Practice: The basis on which judicial review is conducted and how it operates in practice.
• Prevention Mechanisms: Legal and political strategies to limit or prevent judicial review.

Human Rights in Courts

• Application of the Human Rights Act: How UK courts interpret and apply the Human Rights Act in various cases.
• Key Case Studies: Specific examples, such as school uniforms and anti-terrorism measures, illustrating the application of human rights law.

EU Law in UK Courts

• Constitutionalization of EU Law: The impact of EU law on UK legal principles, particularly parliamentary sovereignty.
• Significant Cases: Landmark cases that highlight the interaction between UK law and EU law.

These key concepts provide a comprehensive understanding of the foundational elements, mechanisms, and contentious issues within UK public law as covered in the textbook.

Critical Analysis

Constitutional Fundamentals

Constitutional Rulebook

• Strengths and Weaknesses of an Unwritten Constitution: The flexibility of the UK’s uncodified constitution allows for adaptability and evolution over time. However, this lack of a single, codified document can lead to uncertainties and inconsistencies in interpretation and application.
• Political vs. Legal Constitutionalism: The ongoing debate highlights the tension between viewing the constitution as primarily a political framework versus a set of enforceable legal rules. Critics of political constitutionalism argue that it can lead to insufficient checks on governmental power, while critics of legal constitutionalism point to potential judicial overreach.

Legislative Supremacy of Parliament

• Parliamentary Sovereignty: While the principle of parliamentary sovereignty is a cornerstone of UK constitutional law, it faces significant challenges from EU membership and devolution. The incorporation of EU law and the legislative powers granted to devolved administrations can be seen as diluting the absolute authority of Parliament.
• Entrenchment and Repeal: The principle that no Parliament can bind its successors raises questions about the stability and continuity of constitutional norms and laws. This issue is particularly relevant in the context of potential future changes to human rights protections and devolution settlements.

Rule of Law

• Theory vs. Practice: While the rule of law is a fundamental principle, its practical application can be uneven. Issues such as access to justice, legal aid cuts, and the use of executive powers (e.g., anti-terrorism measures) can undermine the ideal of equality before the law.
• Judicial Review: Judicial review serves as a crucial mechanism for upholding the rule of law by allowing courts to check the legality of executive actions. However, its scope and limits are often contested, particularly in politically sensitive cases.

Separation of Powers

• Blurring of Boundaries: The UK’s adaptation of the separation of powers, particularly under the Westminster model, often leads to a blending of legislative and executive functions. Critics argue that this can weaken checks and balances, although proponents claim it enhances governmental efficiency.
• Judicial Independence: The judiciary’s role in interpreting and enforcing constitutional principles is vital, but concerns about judicial activism and the balance between judicial independence and accountability persist.

Multilevel Governance

• Devolution and Centralization: Devolution has significantly altered the UK’s constitutional landscape, providing greater regional autonomy. However, the uneven distribution of powers and the unresolved ‘English Question’ continue to generate debate about the optimal balance between central and regional authority.
• Impact of Brexit: The UK’s departure from the EU poses new challenges and opportunities for multilevel governance, with potential implications for the future of devolution and the reassertion of parliamentary sovereignty.

Protection of Rights

• Human Rights Act 1998: The incorporation of the European Convention on Human Rights into UK law has been a significant development, but its future remains uncertain amid calls for a British Bill of Rights. The debate reflects broader tensions between national sovereignty and international human rights obligations.
• Case Studies: High-profile cases, such as those involving prisoner voting rights and anti-terrorism legislation, illustrate the complex interplay between individual rights and public policy considerations.

Executive Functions

Government and Accountability

• Ministerial Responsibility: The principle of ministerial responsibility is a key aspect of governmental accountability, but its effectiveness can be compromised by political considerations and the concentration of executive power.
• Civil Service and Arm’s Length Bodies: The relationship between ministers, civil servants, and arm’s length bodies raises questions about transparency, accountability, and the potential for bureaucratic inefficiency or overreach.

Executive Power in the EU

• Complex Governance Structures: The dual executive nature of the EU, with power shared between the European Commission and the European Council, can complicate national governance and accountability. National parliamentary scrutiny mechanisms play a crucial role but can vary widely in effectiveness.
• Sovereignty and Integration: The tension between national sovereignty and deeper European integration is a persistent theme, particularly in the context of the UK’s complex relationship with the EU and its decision to leave the union.

Prerogative Powers

• Historical Legacy and Modern Reforms: The continued use of prerogative powers, despite reforms, reflects the enduring influence of historical constitutional principles. However, the balance between executive discretion and parliamentary control remains contentious.
• Case Studies: Specific instances, such as the deployment of armed forces abroad, highlight the practical and legal challenges associated with prerogative powers and the need for clearer legal frameworks and oversight mechanisms.

Legislative Functions

Primary Legislation

• Legislative Process: While the legislative process is thorough, involving multiple stages and scrutiny mechanisms, critics argue that it can be overly complex and slow, potentially hindering timely and effective policy responses.
• Constitutional Legislation: The treatment of bills with significant constitutional implications requires careful consideration to ensure adequate debate and scrutiny, balancing the need for flexibility with the protection of fundamental principles.

Delegated Legislation

• Efficiency vs. Accountability: Delegated legislation allows for efficient law-making but can raise concerns about democratic accountability and the potential for abuse of executive power. Effective parliamentary and judicial oversight is essential to mitigate these risks.
• Case Studies: Examination of specific delegated legislation, such as the Public Bodies Act 2011, provides insights into the practical challenges and implications of this legislative mechanism.

EU Legislative Processes

• Legitimacy and Transparency: The processes of EU treaty-making and legislation are often criticized for their perceived lack of transparency and democratic legitimacy. Enhancing these aspects is crucial for fostering public trust and ensuring accountable governance.
• National Influence: The ability of member states, including the UK, to influence EU legislative processes is a key factor in balancing national interests with broader European objectives.

Judicial and Dispute Resolution Functions

Judiciary

• Independence and Accountability: Maintaining judicial independence is essential for upholding the rule of law, but ensuring judicial accountability remains a complex and contentious issue. The appointment process and mechanisms for addressing judicial misconduct are critical components of this balance.
• Public Confidence: Public perceptions of the judiciary and its decisions play a crucial role in maintaining confidence in the legal system and its ability to deliver justice impartially and effectively.

Administrative Justice

• Tribunals and Ombudsmen: These mechanisms provide essential avenues for resolving disputes between individuals and the state, but their effectiveness can be undermined by issues such as accessibility, resources, and procedural fairness.
• Reforms and Innovations: Ongoing reforms aimed at improving the administrative justice system must address these challenges while preserving the fundamental principles of fairness, accountability, and transparency.

Judicial Review

• Scope and Limits: Judicial review is a vital tool for ensuring the legality of executive actions, but debates about its scope and limits reflect broader tensions between judicial oversight and executive authority.
• Political Sensitivity: High-profile cases, particularly those involving national security or controversial policies, illustrate the challenges of balancing judicial intervention with respect for executive decision-making.

Human Rights in Courts

• Impact of the Human Rights Act: The Act has significantly influenced UK law and judicial practice, but its future is uncertain amid ongoing political debates. The application of human rights principles in courts highlights the complex interplay between national law and international obligations.
• Key Case Studies: Analysis of specific cases, such as those involving school uniforms and anti-terrorism measures, demonstrates the practical implications of human rights law and the challenges of balancing individual rights with public policy objectives.

EU Law in UK Courts

• Constitutionalization of EU Law: The integration of EU law into the UK legal system has profound implications for parliamentary sovereignty and judicial practice. The constitutionalization of EU law challenges traditional notions of legal hierarchy and national autonomy.
• Landmark Cases: Significant cases, such as those involving the Factortame litigation, illustrate the practical and legal complexities of the interaction between UK and EU law, highlighting the ongoing evolution of constitutional principles in this context.

This critical analysis provides a nuanced understanding of the strengths, weaknesses, and contentious issues within UK public law as presented in the textbook. It underscores the dynamic and evolving nature of constitutional principles and their practical implications for governance and justice.

Real-World Applications and Examples

Constitutional Fundamentals

Constitutional Rulebook

• Brexit and Constitutional Law: The UK’s decision to leave the European Union illustrates the constitutional flexibility of the UK’s uncodified system. The process raised questions about parliamentary sovereignty, the role of referenda, and the interaction between domestic and international law.
• Political vs. Legal Constitutionalism: The prorogation crisis of 2019, where the UK Prime Minister attempted to suspend Parliament, highlights the tension between political and legal constitutionalism. The Supreme Court’s decision to deem the prorogation unlawful underscores the judiciary’s role in upholding constitutional principles.

Legislative Supremacy of Parliament

• Parliamentary Sovereignty: The legal battles over Brexit, including the Miller cases, showcase parliamentary sovereignty in action. The courts ruled that only Parliament could authorize the triggering of Article 50 and the subsequent Brexit legislation, affirming the need for legislative oversight in major constitutional changes.
• Implied Repeal: The relationship between domestic laws and EU regulations highlighted issues of implied repeal. Brexit necessitated the repeal or amendment of numerous laws that were subordinate to EU law, demonstrating the practical complexities of this legal doctrine.

Rule of Law

• Judicial Review: Cases such as the challenge to the prorogation of Parliament and the judicial review of government decisions during the COVID-19 pandemic illustrate the rule of law in practice. These cases demonstrate how judicial review serves as a check on executive power.
• Access to Justice: Cuts to legal aid and the impact on individuals’ ability to challenge government decisions in court highlight the practical challenges to maintaining the rule of law. Initiatives aimed at improving legal aid access and reforms in administrative justice seek to address these issues.

Separation of Powers

• Executive Overreach: Instances where the executive has attempted to bypass Parliament, such as during the Brexit process, illustrate the importance of maintaining a clear separation of powers. The judiciary’s role in checking executive overreach reinforces the balance among the branches of government.
• Judicial Independence: The appointment and conduct of judges in high-profile cases, such as those involving Brexit and human rights, underscore the importance of judicial independence. Public confidence in the judiciary hinges on perceptions of impartiality and fairness.

Multilevel Governance

• Devolution: The evolution of devolved administrations in Scotland, Wales, and Northern Ireland demonstrates the practical implications of multilevel governance. Issues such as the Scottish independence referendum and the Northern Ireland Protocol highlight the complexities of regional autonomy within the UK.
• English Votes for English Laws (EVEL): The introduction and subsequent modification of EVEL procedures reflect ongoing efforts to address the English Question and ensure fair representation in legislative processes affecting only England.

Protection of Rights

• Human Rights Act 1998: The application of the Human Rights Act in cases involving freedom of expression, privacy, and anti-terrorism measures illustrates its impact on UK law. Debates over its replacement with a British Bill of Rights continue to shape the discourse on human rights protection.
• Case Studies: High-profile cases, such as those involving prisoner voting (Hirst v UK) and school uniform policies (Begum v Denbigh High School), provide concrete examples of how rights are protected and contested in the UK legal system.

Executive Functions

Government and Accountability

• Ministerial Responsibility: The resignation of ministers over scandals or policy failures (e.g., the Windrush scandal) illustrates the principle of ministerial responsibility in practice. Public and parliamentary scrutiny play crucial roles in holding the government accountable.
• Civil Service and Arm’s Length Bodies: Examples such as the handling of public health responses during the COVID-19 pandemic demonstrate the complex interplay between ministers, civil servants, and independent bodies. Issues of transparency and accountability are central to these relationships.

Executive Power in the EU

• Brexit Negotiations: The role of the UK government in negotiating Brexit with the EU highlights the exercise of executive power in an international context. Parliamentary scrutiny of the negotiation process and the resulting agreements underscores the importance of accountability.
• EU Governance Structures: The influence of EU institutions on UK domestic policies, such as environmental regulations and trade laws, before Brexit provides insights into the dual executive nature of the EU and its impact on national governance.

Prerogative Powers

• Deployment of Armed Forces: The use of prerogative powers to deploy British troops abroad, such as in Iraq and Afghanistan, raises significant legal and political questions. Parliamentary debates and inquiries into these decisions highlight the need for clearer oversight and accountability mechanisms.
• Reforms: Legal reforms aimed at limiting prerogative powers, such as the Fixed-term Parliaments Act 2011, demonstrate efforts to modernize and democratize executive authority. The ongoing debate about the use and reform of these powers continues to shape constitutional discussions.

Legislative Functions

Primary Legislation

• Complex Legislative Process: The process of passing significant legislation, such as the Brexit Withdrawal Agreement, illustrates the complexities and challenges of the legislative process. The involvement of multiple stages and scrutiny mechanisms ensures thorough examination but can also lead to delays and political maneuvering.
• Constitutional Legislation: Bills with major constitutional implications, such as the Scotland Act 2016 and the European Union (Withdrawal) Act 2018, require careful consideration to balance flexibility with the protection of fundamental principles.

Delegated Legislation

• Efficiency and Control: The extensive use of delegated legislation during the COVID-19 pandemic to implement public health measures demonstrates its efficiency in responding to urgent situations. However, it also raises concerns about the adequacy of parliamentary scrutiny and the potential for executive overreach.
• Case Studies: Examination of specific instances, such as the use of the Public Bodies Act 2011 to reorganize government agencies, provides insights into the practical challenges and implications of delegated legislation.

EU Legislative Processes

• Brexit and EU Law: The process of disentangling UK law from EU law post-Brexit highlights the complexities of EU legislative processes and their impact on national law. The ongoing negotiations and legislative adjustments provide real-world examples of these challenges.
• National Influence: The UK’s influence on EU legislation before Brexit, particularly in areas like environmental standards and financial regulations, illustrates the practical interactions between national and EU legislative processes.

Judicial and Dispute Resolution Functions

Judiciary

• High-Profile Cases: Cases such as the Supreme Court’s ruling on the prorogation of Parliament and challenges to government decisions during the COVID-19 pandemic underscore the judiciary’s role in upholding constitutional principles and ensuring governmental accountability.
• Judicial Appointments: The process and criteria for appointing judges, including considerations of diversity and merit, have practical implications for the judiciary’s composition and public trust.

Administrative Justice

• Tribunals and Ombudsmen: The role of tribunals and ombudsmen in resolving disputes between citizens and the state is illustrated by cases involving social security claims, immigration appeals, and complaints against public bodies. These mechanisms provide accessible and specialized forums for addressing grievances.
• Reforms: Efforts to improve administrative justice, such as the introduction of digital tribunal services and streamlined procedures, aim to enhance efficiency and accessibility while maintaining fairness and transparency.

Judicial Review

• Scope and Impact: The use of judicial review to challenge executive decisions, such as immigration policies and public health measures, demonstrates its importance as a tool for protecting individual rights and ensuring lawful government action.
• Political Sensitivity: High-profile judicial reviews, particularly those involving contentious issues like national security or social policy, highlight the delicate balance between judicial oversight and respect for executive decision-making.

Human Rights in Courts

• Case Studies: Legal battles over issues such as surveillance laws, freedom of expression, and anti-terrorism measures provide concrete examples of how human rights principles are applied and contested in UK courts.
• Impact of the Human Rights Act: The practical implications of the Human Rights Act on UK law are evident in cases where courts have struck down or interpreted legislation to comply with human rights standards. These decisions illustrate the Act’s influence on shaping legal and policy outcomes.

EU Law in UK Courts

• Factortame Case: The Factortame litigation, where the UK courts disapplied domestic legislation conflicting with EU law, exemplifies the constitutionalization of EU law and its impact on parliamentary sovereignty.
• Post-Brexit Adjustments: The ongoing legal and constitutional adjustments following Brexit, including the treatment of retained EU law and the resolution of disputes involving EU-derived rights, highlight the evolving relationship between UK and EU law.

These real-world applications and examples provide a concrete understanding of how the principles and concepts discussed in the textbook manifest in practical governance and legal contexts. They illustrate the dynamic and evolving nature of public law in the UK, emphasizing the importance of constitutional principles in shaping contemporary legal and political developments.