INTERNATIONAL PROGRAMMES (UNIVERSITY OF LONDON) PUBLIC LAW.
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Public Law (PUBLICLAW)
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Birkbeck, University Of London (BBK)
INTERNATIONAL PROGRAMMES (UNIVERSITY OF LONDON) PUBLIC LAW by HilaireBarnett,Marinos Diamantides. Public law 1 Introduction page 3
1.1 Studying Public law
1.1.1 A broad and integrated subject
Public law is challenging: it requires knowledge of the entire system of government.
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INTERNATIONAL PROGRAMMES
(UNIVERSITY OF LONDON)
PUBLIC LAW
by HilaireBarnett,Marinos Diamantides.
,Public law 1 Introduction page 3
1.1 Studying Public law
1.1.1 A broad and integrated subject
Public law is challenging: it requires knowledge of the entire system of government.
For those of you with an academic background which includes history, government
and/or politics, some of the terrain will be familiar – although now it will require
a particular perspective: that of the constitutional lawyer. For those without any
relevant academic background, it would be helpful to read an introductory text
on government in the United Kingdom. Many of the individual topics for study are
not clear-cut and are subject to debate. It is important that you adopt a critical and
reflective approach to the subject, studying the rules and authorities with care but
then attempting to form your own view. This must be developed with care: it is very
easy to react instinctively – either positively or negatively – to a particular matter or
approach. That, however, is not enough. You must always strive to develop logical and
reasoned arguments in order to justify conclusions that you reach. Public law requires
the same disciplined approach and logical analysis as any other legal subject, and as
usual you also need to develop the skill of thinking and arguing conceptually.
The study of the constitution does not lend itself to academic compartmentalisation.
Whereas it may be possible – although not desirable – to approach some subjects
by treating each topic as a distinctive isolated part of the whole, this is not true of
constitutional and administrative law. It is, of course, necessary to work through the
syllabus in an organised and logical manner. However, it is of the utmost importance
that you become aware of the integrated nature of most of the syllabus. To give just
two examples (many more could be given):
Parliamentary sovereignty is of necessity studied as a discrete topic: nevertheless
many – if not most – other topics in public law have a bearing on sovereignty and
you cannot fully comprehend sovereignty until you have covered the full syllabus.
The same is true of the non-legal sources of the constitution – constitutional
conventions – which permeate the entire constitutional structure; the ability to
see the constitution ‘in the round’ and as a whole is essential to successful study.
The study of the constitution of the UK requires an appreciation of a variety of
† † This understanding of
conceptual, historical, legal and political factors. The UK appears to be almost
unique in not having a constitution which is conveniently set out in a single written diverse sets of information
document. However, not too much should be made of the ‘unwritten’ nature of the and factors is a key element
constitution. In all constitutions some of the rules will not be written, and still less in your development of
graduate skills.
will they be collected within a single document. Irrespective of the labels attached
to constitutions, a true understanding of constitutional law can only be grasped by
appreciating the historical and socio-political framework within which the rules are
set. However, while historical origins set the scene for the study of the contemporary
constitution, it must be remembered that the principal emphasis of the syllabus is
on the constitution of the UK today and not on the many centuries of development
that underlie it. With that point in mind, when we evaluate the many constitutional
issues that present themselves today we must necessarily draw on historical sources
and events to understand the contribution they have made to creating today’s
constitution.
It is particularly true of the UK’s constitution that it is difficult to see clearly the
demarcation lines between constitutional law and political science. For example,
the study of the constitutional relationship between the government and the
legislature today encompasses a knowledge of the political background, the rules of
parliamentary practice and the non-legal or conventional rules that apply in a given
situation. Furthermore, in studying the legislative supremacy of Parliament, it is of
fundamental importance to grasp that, in terms of constitutional legal theory, the
power of Parliament is omnipotent or sovereign. That legal fact however must be seen
in light of the political and, possibly, economic constraints on the exercise of that
seemingly unlimited power, but without allowing these ‘extra-legal’ factors to obscure
,page 4 University of London International Programmes
the constitutional position. It is the constitutional rules that are of prime importance:
the political and other factors that have an impact on the working of those rules, while
of great significance, are ancillary.
1.1.2 A constitution under reform
The election of a Labour government in 1997 – after 18 years of Conservative Party rule
– led to major constitutional reform. The incoming government’s agenda included
devolution to Northern Ireland, devolution to Scotland and Wales, reform of the
House of Lords, reform of the electoral system and the introduction of a Freedom of
Information Act. Of the greatest significance was the intention to incorporate into
domestic law – under the Human Rights Act 1998 – most of the rights and freedoms
protected under the European Convention on Human Rights. By 2002 much of the
reform agenda had been accomplished: devolution to the nations had taken place, a
Freedom of Information Act had been introduced, the Human Rights Act 1998 was fully
in force and a partial (but not yet complete) reform of the House of Lords achieved.
Reforms have been made to the electoral system, including a register of political
parties and statutory regulation of donations to political parties. The Constitutional
Reform Act 2005 reformed the office of Lord Chancellor and established a Supreme
Court to replace the formerly highest court in the United Kingdom, the House of Lords.
An inconclusive general election result in 2010 led to the formation of a Coalition
Government made up of the Conservative Party and Liberal-Democrat Party. This has
led to further constitutional reform. The Fixed-term Parliaments Act 2011 and the
Parliamentary Voting System and Constituencies Act 2011 introduce, for the first time, a
† A referendum was held
fixed date for general elections †, thereby removing the discretion of the Prime Minister
to fix the date of the election. The Parliamentary Voting System and Constituencies Act in May 2011, at which the
provided for a referendum to be held on the voting system for general elections and electorate rejected proposals
for a reduction in the number of parliamentary seats in the House of Commons. The for change.
European Union Act 2011 requires that any further transfer of powers from the United
Kingdom to the European Union will require the authority of the people voting in a
referendum. Reform of the House of Lords remains on the reform agenda.
The Scottish government is intending to hold a referendum in 2014 on independence
for Scotland. The UK government is opposed to independence, but willing to negotiate
further devolution to Scotland.
Given that some reforms are on-going it is particularly important at this time to keep
abreast of current affairs.
1.1.3 Outline structure of this subject guide
This subject guide has been structured to enable you to proceed from the basic
foundations through to a detailed understanding of the different topics that rest on
these foundations. The guide falls into five principal parts:
Part 1 Constitutional fundamentals (Chapters 1–7)
The structure of the constitution and its basic principles.
Part 2 The government and Parliament (Chapters 8–12)
The Crown, Prime Minister and Cabinet, the structure of central government and
the workings of Parliament. Also in this part is an introduction to regional and local
government, both of which have powers devolved upon them by the UK Parliament.
Part 3 The European Union (EU) (Chapters 13–14)
As a member state of the European Union (EU), the United Kingdom has committed
itself to a form of supra-national governance with its own legal and institutional
framework. EU law has, since 1973 when Britain first joined, become an increasingly
important part of domestic law. British judges are required to apply EU law as
interpreted by the Court of Justice of the European Union, and Parliament is under an
obligation to pass laws which are consistent with the overriding European law.
, Public law 1 Introduction page 5
Part 4 The individual and the state (Chapters 15–17)
This part is a study of individual freedoms and rights as protected by statute and
common law. Of seminal importance here is the European Convention on Human
Rights and its jurisprudence (case law) and the case law under the Human Rights
Act 1998 which now makes it possible to enforce Convention rights against the state
within the domestic legal system. Also included in this part is the difficult issue of state
– or national – security and the law that regulates the security agencies as well as the
law on official secrets and terrorism.
Part 5 An introduction to administrative law (Chapters 18–19)
In many degree courses in the UK, administrative law is a full one-year or half-year
subject. Within the LLB for external students, the syllabus includes the study of judicial
review of administrative action (the process through which government powers
are controlled by the courts), and study of the Commissioners for Administration
(‘Ombudsmen’), the machinery by which citizens’ complaints against central and local
government and bodies such as the National Health Service are investigated.
1.2 Learning outcomes for Public law
When you have finished studying this module, you should be able to demonstrate that
you have studied in depth the public law of the United Kingdom, which comprises
constitutional law and administrative law.
a. Introduction
describe the characteristics of the constitution
explain the powers and role of the Crown, including the royal prerogative
summarise the sources of the constitution
explain the sovereignty of Parliament
explain the separation of powers
describe and discuss the rule of law
describe and explain central and local government
explain devolution and the structure of the United Kingdom.
b. Parliament, etc.
describe and discuss electoral law and reform
describe the composition and procedure and functions of Parliament:
legislative
financial
control of the executive
the role of the individual MP
explain and discuss parliamentary privilege.
c. The executive, etc.
explain the powers of the Prime Minister
explain the role of the Cabinet
explain collective and individual ministerial responsibility and control of executive
power.
d. The European Union
Describe the institutions of the European Union:
the Council
the Commission
the Parliament
the Court of Justice
explain the sources of EU law
discuss the relationship between EU law and national law
discuss EU primacy and parliamentary sovereignty.
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