What is Public Law?
Strictly speaking, Public law is defined as the relationships between the state and the individual. However, it may be easier to think of everything that is not private is be public. Public law is a wide topic ranging from the constitution, to judicial review, to the supremacy of parliament and everything in-between, which I will be discussing in the following posts in a lead up to my examination of Public Law.
What is the State?
It is widely acknowledged that the state comprises of three branches: The Executive, the Legislature and the Judiciary.
The Legislature takes the form of Parliament, which is made up of the House of Commons, The House of Lords and the Monarch. Their job is to create the laws in the form of statutes.
The Executive is the widest of the 3. This is anybody that is state run. This includes the Police, Armed Forces, NHS, State Schools, and mainly the Government, with the Monarch at its head. Their job is to enforce and act on the law.
The Judiciary is the court system, made up of judges which are responsible for interpreting the statutes that Parliament create. They are also responsible for creating Case law, which is backed by a system of Precedent. This fills gaps in the fine detail of the law that parliament could not provide in writing, or where the law is not clear.
A constitution is a list of codified rules which informs the public of their rights and dictates state principles. Normally, in democratic countries, there will be a written constitution such as in the USA. This is perhaps the most famous but is most definitely adopted in the majority of western democratic states.
The UK however is different as it has an unwritten constitution. Some may argue whether there is a constitution at all. However, the UK’s constitution is widely acknowledged be sourced from 5 areas:
- Parliament Legislation
- Case Law
- The Royal Prerogative
- Constitutional Conventions
- International Law.
Not all legislation that Parliament produces is constitutional. Constitutional legislation must affect the way in which the country is run, the set-up of the state, the powers vested in certain bodies, and the relationship between the state and their individuals (as identified in the case of Thoburn). This is debated, and it is not always clear which legislation is constitutional. Examples of Constitutional Legislation are as followed:
- Magna Carta 1215,
- The British Bill of Rights 1689,
- Parliament Acts 1911+1949,
- European Committees Act 1972.
The Judiciary generally follow the presumption that everything is permitted unless stated to be forbidden. Judges interpret the legislation provided and enacted by parliament, as well as filling in the gaps. This gives rise to critical debate, as it may indicate that judges become limited law makers. The judiciary operates with the Rule of Law in mind. This is a principle that will be explored later, however the basis of which comes from fairness and application of the law equally for everyone, including the other branches of state. For example, Entick V Carrington, an old case, dealing with the issue of a warrant by the Monarch.
The Royal Prerogative
These are the powers that are left over from the days where the Monarch had total power. These are very limited but are also very important powers that generally the Executive acquires. These are any issues dealing with National Security, treaties and International Relations, Declarations of War, Pardon’s and Mercy’s and Issuing of passports. They are not legislated on, and therefore remain as prerogative powers. They are just assumed to be exercised by the Government.
These are irregular to any other source as they are not Legally binding and are not defined anywhere. They are expectations/specific ways in which members of state should act or follow a process. Some are more important than others and they go part and parcel with the Royal Prerogative. For example, the Monarch still gives Royal Ascent to and bill that is passed through the House of Commons and the House of Lords (which is a Royal Prerogative Power). However, by way of constitutional convention, the Monarch will have no choice but to give ascent to it. If they refused, they would simply be removed, or their prerogative taken from them as this is non-democratic.
Other conventions are not so important, for example the situation regarding Prime Ministers questions with Tony Blair, former PM. By way of convention, PM’s Questions, held in the HOC, was moved to once a week on a Wednesday. Because of its nature, it was not legally enforceable to change, and due to its seriousness, this change in convention went fairly uncontested, and is less important. Because of this, it would appear that constitutional conventions are flexible and ever-changing depending on whether the convention has any relevance anymore.
Both Prerogative Power and Constitutional Conventions will no longer take their form once they are legislated on. An example of this would be the Fixed Terms Parliament Act limiting the dismissal of Parliament by the Government.
Generally, international law can be said to only be Persuasive. For example, looking at the rules other jurisdictions have adopted and deciding on whether that would work effectively in the UK.
However, due to the inevitability of Globalisation andits effects, some areas of International law are fully binding on the UK and have become part of the Constitution. The two main sources of this are the EU, implemented by the European Communities Act 1972, and the European Convention of Human Rights, implemented into a rights-based system in the UK under the Human Rights Act 1998.
These Global Assemblies are sometimes confused with each other but have very different aims. The European Union was created as a free trade block which has developed into other freedoms between its 28-member states. This will soon become 27 once the UK officially repeals the European Communities Act on the 29th March 2019. The ECHR provides individuals with Fundamental Human Rights and has 48-member states.
Due to the nature of the UK’s constitutional, and its unconventional characteristics, it has sparked debate. One of the main questions that has been raised is whether the UK should adopt a written constitutional? On a less radical change to the UK’s constitution it is questionable as to whether certain sources of the constitution should remain a source? And whether it can be changed without major constitutional upset among its critiques, and more importantly, the citizens of the UK.