Public Law Directions (3rd edn) PDF

1. Introducing constitutions and public law Public Law Directions (3rd edn) Anne Dennett p. 3 2 1. Introducing constitutions and public law Anne Dennett, Senior Lecturer, University of Lincoln https://doi.org/10.1093/he/9780198903...

1. Introducing constitutions and public law Public Law Directions (3rd edn) Anne Dennett p. 3 2 1. Introducing constitutions and public law Anne Dennett, Senior Lecturer, University of Lincoln https://doi.org/10.1093/he/9780198903420.003.0001 Published in print: 13 May 2024 Published online: August 2024 Abstract This introductory chapter provides an overview of the idea and importance of constitutions. A constitution is essentially a rulebook for how a state is run, and its function is to impose order and stability; to allocate power, rights, and responsibility; and control the power of the state. Indeed, a state’s constitution sets out the structure and powers of government and the relationship between individuals and the state, and a balanced constitution ensures a balance of power between the institutions of government. New constitutions can arise either through a process of evolution or as an act of deliberate creation. The chapter then considers the UK constitution. Public law is a fundamentally important part of the UK’s national law and is the law about government and public administration. It places limitations on the power of the state through objective, independent controls. It is also known as ‘constitutional and administrative law’. Keywords: constitutions, state, powers of government, UK constitution, public law, public administration, constitutional law, administrative law Learning Objectives By the end of this chapter, you should be able to: Identify and use key terminology Evaluate the purpose and characteristics of constitutions and the circumstances in which a constitution is created Appreciate that there is more than one way to define a constitution Discuss whether the UK has a constitution Page 1 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law Explain the role and purpose of public law Introduction Consider this: the people of a country unexpectedly vote to leave an international organisation that has inextricably linked their laws, trade, and movement of people for more than 40 years; the Prime Minister resigns; the new Prime Minister cannot get Parliament’s approval for the withdrawal deal; the third Prime Minister finally secures the UK’s exit three and a half years after the vote. Do these events sound familiar? Brexit will resonate in the UK for many years, and it has highlighted important legal and political questions about the rules that govern how the UK is run—in other words, its constitution. This chapter introduces you to the idea and importance of constitutions, and in particular to the UK constitution. It is tempting to think of a constitution as something that is abstract, mechanical, and dry, perhaps a dusty volume on a shelf, but it should be remembered that constitutions are living, breathing constructs which are created and operated by human beings. There are both internal and external pressures and drivers for change in all constitutions, and, as we shall see with the UK, they are capable of producing moments of high drama and, occasionally, seismic events. p. 4 1.1 Overview of this book You will no doubt begin reading this book with a number of questions in your mind. What is a constitution? Does the UK have a constitution? If so, what does it look like and where do I find it? How does it affect me? What exactly is public law? These are questions that this book will address by introducing you to, and analysing, the operation of the UK constitution and the application of public law. A constitution is a framework of rules regulating the exercise of power in a particular body or entity. A club or society will have its own constitution and this applies, on a much larger scale of course, to a state whose constitution will normally be in a written document setting out the essential ‘rules of operation’ for that country; those rules consist of laws, practices, and principles. The key to understanding the purpose of constitutions is to remember that the elemental force within any state is the power of those who rule the people, whether that ruler is a monarch, a president, or a prime minister. Left unchecked, there is a risk that the power of the ruling body can be misused and can result in autocracy (where a ruler or government has absolute power) or at worst, tyranny. This is why a constitution is needed: to control the power of those who govern. A state’s constitution is concerned with how that state is run and organised, and how governmental power is controlled; a constitution allocates and regulates power within the state, identifying the holders of state power, how it is divided between them, the limits on their powers, their relationships with each other, and, importantly, their relationships with the citizens of that state. Thus the key elements of a constitution are: 1. the allocation of power; Page 2 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law 2. the control of power; 3. the relationship between governmental institutions, and between individuals and governmental institutions. The control of power, accountability, and protecting the individual against the state are central themes throughout this book. Part 1 explores where the UK constitution comes from; we look at its historical development and the milestone events in its journey to the twenty-first century. We then analyse the specific characteristics of the UK constitution and, importantly, the sources containing the central rules. We discuss how easily the constitution can change and whether it should be codified. Next, we examine how the UK is structured in terms of the allocation of institutional power, the important topic of devolution, and how regional and local government are organised. We also assess the impact of Brexit. By the end of Part 1, you will have covered and understood essential features of the UK constitution. In Part 2, we examine the important constitutional principles and values which underpin the constitution: Parliamentary sovereignty, the separation of powers, the rule of law (and the emerging ‘common law constitution’). Parliamentary sovereignty: the principle that Parliament is the supreme law-making body in the UK, with the power to make or unmake any law (Act of Parliament). Separation of powers: the concept that the different functions of government should be exercised by separate bodies (the legislature, executive, and judiciary) to prevent a concentration of power in any one body. The rule of law: the idea that the law is supreme and no government or ruler is above the law, thus placing legal restraints on government, which can only exercise its power in accordance with the law. p. 5 ↵ In Part 3, we discuss the three main power-holders in the UK: Parliament (the legislature), the government (the executive), and the judiciary. This section also develops the key theme of how central government power is controlled and the importance of democratic accountability, which refers to the UK’s operation of representative and responsible government—a system of democratically elected representatives and a government that is accountable to the people’s elected representatives. In Part 4, on the topic of administrative law, we examine the relationship between the citizen and the state and explore how citizens can obtain redress against the state via the courts, tribunals, Ombudsmen, and other procedures. We focus particularly on judicial review, where the courts review the lawfulness of decision-making and actions by public bodies; this is an important process in legal control over government power. We continue the theme of the relationship between the citizen and the state by examining the Human Rights Act 1998 and its impact—here again, the courts review the actions of public authorities to ensure that they are consistent with the rights of individuals—and finally, we analyse Police powers. Page 3 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law Getting started 1.2 What is a constitution? 1.2.1 Definitions A constitution is essentially a rulebook for how a state is run, and its function is to impose order and stability; to allocate power, rights, and responsibility, and control the power of the state. However, we need to look more deeply at the nature of a constitution. A state’s constitution sets out the structure and powers of government and the relationship between individuals and the state, and a balanced constitution ensures a balance of power between the institutions of government. The House of Lords Select Committee on the Constitution has described a constitution as: the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual. (House of Lords Select Committee on the Constitution, Reviewing the Constitution, First Report, Session 2001–2, HL 11 ) This definition raises some important points. First, a constitution consists not only of laws but also of non-legal rules and political practices (particularly constitutional conventions: see Chapter 3), so a constitution has both a legal and political function. Second, a constitution not only governs the institutions of government, but actually creates those institutions. A constitution is thus a vital foundation or bedrock within a state and possesses a fundamental and overarching nature. It is a constant, stable presence. Moreover, by stipulating the powers of government institutions, and how far those powers extend, a constitution allows us to ascertain when a state institution has exceeded its power. Clearly delineated limits on power are therefore intended to prevent the exercise of arbitrary power by state institutions. This is at the heart of an idea known as constitutionalism, which centres on the concept that there should be legal limits on the power of government, and those limits will be contained within a state’s constitution. p. 6 ↵ In the seventeenth century, John Locke espoused the idea of limited government (Second Treatise of Government, 1690), arguing that human beings are free and equal, with natural rights, and that legitimate government only exists with their consent in order to provide stability; the government’s power, Locke stated, is limited to preserving the public good, and ultimately, a government which exceeds those limits can be replaced by the people. This conveys the idea that there is a higher power than government—the Page 4 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024 1. Introducing constitutions and public law people, according to Locke’s treatise—and governmental power is not unlimited. It is essential, therefore, that a constitution sets out rules and principles which govern those who govern the people. Not everyone agrees: Thomas Hobbes argued that human beings would naturally descend to conflict left to their own devices, so a sovereign power such as a monarch with unrestricted authority was needed, and the idea that conflict is at the heart of modern society is echoed by J.A.G. Griffith (see his ‘The Political Constitution’ in ‘Further reading’). Cross reference See section 1.5 1.2.2 ‘Constitution’ has more than one meaning It is helpful to distinguish between Constitution with a capital ‘C’ and constitution with a lower case ‘c’, a distinction made by Anthony King in The British Constitution (p 5; in ‘Further reading’). A capital ‘C’ Constitution refers to a codified constitution where a state’s most important constitutional rules have been gathered together in a written document which has passed through a formal process of adoption (unlike the UK’s constitution). King makes the point that a codified constitution will never contain all of a state’s constitutional rules, so additional or less important peripheral rules will exist alongside the codified version, and subsequent rules might develop and supplement it. The classic example of the creation of a post-Constitution rule is the US Supreme Court’s decision in Marbury v Madison 5 US 137 (1803) that it had the power to strike down unconstitutional legislation, even though this was not expressly written into the US Constitution. A small-‘c’ constitution, on the other hand, is the entire set of laws, rules, and practices regulating a state’s governing institutions. This can refer to an uncodified constitution like the UK’s or to the surrounding rules which are not included in a codified constitution. It is therefore clear that the term ‘constitution’ can have a narrower meaning in the sense of a codified document (King’s capital-‘C’ Constitution), and a wider meaning in the sense of a broader range of laws and rules. It was this broader view of a constitution to which Sir Kenneth Wheare was referring in Modern Constitutions (Oxford: Oxford University Press 1951, p 1) when he defined a constitution as ‘the whole system of government of a country, the collection of rules which establish and regulate or govern the government’. The distinction between the narrower and wider meaning of ‘constitution’ is helpfully summarised by Vernon Bogdanor in this way: [There are] … two different meanings of the term ‘constitution’. The first refers to a written instrument containing the basic and most important rules of government. The second refers to the rules, whether or not written down, which regulate government—and in this sense every society, by definition, has a constitution. (Vernon Bogdanor, The New British Constitution, p 10; in ‘Further reading’). Page 5 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law 1.2.3 Constitutions create the system of government in a country Constitutions create the institutions of government in a country; they establish the order by which a state will be run, sometimes in very spare statements of principle with little extraneous detail and sometimes at p. 7 length, as in the 444 Articles of the Indian Constitution. ↵ The first step is to create the constitution. Thomas Paine, in his work The Rights of Man (1791), wrote: A Constitution is a thing antecedent to Government, and a Government is only the creature of a Constitution. The Constitution of a Country is not the act of its Government, but of the People constituting a Government. It is the Body of Elements to which you can refer and quote article by article; and which contains the principles upon which the Government shall be established, the manner in which it shall be organized, the powers it shall have, the Mode of Elections, the Duration of Parliaments, or by what other name such Bodies may be called; the powers which the executive part of the Government shall have; and … every thing that relates to the compleat organization of a civil government, and the principles upon which it shall act, and by which it shall be bound. Here, Thomas Paine clearly had in mind a written document, one that could be referred to and quoted from and which expressly set out the organisation of government, but the key point is Paine’s emphasis that a constitution will precede and create the system of government in a state, and this means that government derives its authority from the constitution. Paine’s ideas were influential on the drafters of the US Constitution of 1788 which creates, and makes a clear division of power between, the legislative branch (Article I), the presidency (executive branch) (Article II), and the judiciary (Article III). This is a model which has been used subsequently by many other states; see, for example, the Australian Constitution, which sets out the composition and powers of its federal parliament (in chapter 1), the powers of the executive government (chapter 2), and the role of the federal courts (chapter 3). A constitution will create a system of government specific to that particular state, whether it be the ‘indivisible, secular, democratic and social Republic’ of the French Constitution, or the parliamentary monarchy of Spain, or China’s ‘socialist state under the people’s democratic dictatorship’. 1.2.4 Codified constitutions have special legal status In states with a codified constitution, there is no higher law than the constitution. It is the benchmark by which all other laws of that state are measured and if those laws infringe provisions of the written constitution they may be declared unconstitutional, usually by a Supreme Court or constitutional court. This cannot happen in the UK because of the absence of a codified constitution and the existence of parliamentary sovereignty, which means that the UK Parliament holds supreme law-making authority. There is no fundamental difference between the laws that form part of the UK’s constitutional rules and the UK’s ordinary laws. Written constitutions, on the other hand, often expressly stipulate that they are the state’s supreme law, and the US Constitution contains a supremacy clause (Article VI Paragraph 2) providing that the Constitution and federal laws made pursuant to it are the supreme law of the land. Page 6 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law Cross reference See Chapters 3 and 6 for more detail Many written constitutions also set out the rules for how they are to be altered in the future; this can include requiring a supermajority in the legislature (see, for example, Article V of the US Constitution) or by referendum (see chapter 8 of the Australian Constitution). Protecting a written constitution from the same procedure used for changing ordinary law entrenches it, which means that it is solidly established and in a position of strength, but equally it is more difficult to adapt to changing circumstances. 1.2.5 Each constitution is ‘personal’ to a state Constitutions normally reflect a country’s political and national values; for example, the constitution of a p. 8 liberal democracy enshrines and protects human rights and the rule of law, and ↵ embodies democratic principles, although some constitutions may profess such principles but fail to follow them in reality (sometimes called a ‘façade constitution’). A state’s constitution reflects a country’s culture and may even set out some of its history. It will record whether it is a monarchy or a republic and will reflect recent transitions, such as changing from an absolute monarchy to a democratic constitutional monarchy, as in the Bhutan Constitution 2008. It may specify the state’s national flag, its official language(s), and the prevailing religion and often refers to key values such as the state’s sovereignty, independence, and territorial integrity. It may set out the duties of citizens (‘Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens’ (Irish Constitution 1937 as amended in 2013, Article 9(3)), and the Constitution of Bhutan contains provisions concerning the environment and enshrines that state’s unique principle of ‘gross national happiness’. However, a codified constitution will usually be entrenched, and by definition more difficult to change, so it is more likely to be a snapshot of the time when it was drafted. It may therefore not be swift to reflect social changes—such as the progress towards civil partnerships and same sex marriages—which are much easier to capture with an uncodified constitution like that of the UK. 1.3 When is a constitution created? Calvert has stated: ‘A constitution may simply develop, or be imposed or adopted. It may regulate state activity in a variety of ways. It always stands to be overthrown; how likely this is depends on how precariously it is in place’ (An Introduction to British Constitutional Law, Oxford: Blackstone Press 1985, p 15). This suggests that new constitutions can arise either through a process of evolution or as an act of deliberate creation (and they can be replaced). Constitutions are usually adopted as a result of what has been termed ‘a constitutional moment’; in other words, there is either a shock event or a sudden break and the need for a fresh start, or a sense that ‘the time is right’ for a new constitution, with public appetite and the political will for change. Page 7 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law 1.3.1 ‘A constitutional moment’ In one sense, a constitutional moment can involve constitutional turmoil or upheaval. This includes events which have broken the link with a state’s continuity and necessitated a fresh start, such as a revolution, a former colony gaining independence, or an armed conflict. Part and parcel of that fresh start will be a reorganisation of the state and state power in the form of a new constitution. Jon Elster has listed the situations that lead to making a constitution: 1. Social and economic crisis 2. Revolution 3. Regime collapse 4. Fear of regime collapse 5. Defeat in war 6. Reconstruction after war 7. The creation of a new state 8. Liberation from colonial rule p. 9 ↵ (Jon Elster, ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 Duke Law Journal 364) There is in each instance ‘a political jolt’. Violent events which overturn the old order, such as the American War of Independence of 1775–1783 and the French Revolution in the late eighteenth century, require a new political order. In the aftermath of the English Civil War of the 1640s, the country was briefly governed under a written constitution; after the beheading of the king, Charles I, it was necessary to establish a legal basis for the new regime and therefore the Instrument of Government was drafted in 1653, giving executive power to the new Lord Protector of the Commonwealth (Oliver Cromwell). However, the Instrument was replaced in 1657 by a very short-lived document called the Humble Petition and Advice, and England soon reverted to an unwritten constitution. Close-up Focus: Post-Conflict Constitutions A new constitution is a crucial step in the process of rebuilding a state after war or invasion. However, post-war constitutions can carry the risk of failure because the victors may seek to impose a constitution reflecting their own political values on vanquished states. After the Second World War, the United States was instrumental in changing the systems of government in both Germany and Japan into democracies. The United States, as occupying power, chiefly drafted the new Japanese Constitution (having rejected a version drafted by Japanese officials) but although the end result in 1947 was a pacifist Constitution renouncing Japan’s sovereign right to war (Article 9), the drafters had taken note of Japan’s constitutional identity. With the 1949 West German Page 8 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law Constitution (the Grundgesetz), care was taken to include German politicians in the drafting process to ensure that its constitutional identity was reflected, while the 1949 East German (GDR) Constitution maintained a degree of continuity with the previous 1919 Weimar Constitution. However, in Iraq after the 2003 conflict, a transitional constitution known as the Transitional Administrative Law was drafted in 2004 by a body appointed by the United States, setting up an interim government and a framework of milestone dates for the creation of a permanent constitution. The permanent constitution was hurriedly drafted by Iraq’s transitional National Assembly in 2005 to meet the tight deadline; the Constitutional Outreach Unit only had eight weeks in which to consult the public, the Constitution Drafting Committee had only one month to work before it was dissolved, and there was increasing US presence in an attempt to speed up the process. Although the permanent constitution was approved by the people in a referendum and adopted in 2006, it was opposed by a number of groups within Iraq, including women’s groups and Sunni Arabs, and has been criticised for not allowing sufficient time for the negotiation of the Iraqi federal model and for failing to build alliances and forge an identity in a multi-ethnic, multi- sectarian country. Nevertheless, the creation of a new constitution for a post-conflict state is a central plank of modern post-conflict reconstruction and nation-building. In peace talks on the Syrian conflict, one of the essential components of the steps towards political transition has been the drafting of a constitution, and a constitutional committee met for the first time in October 2019 to discuss a new constitution for Syria. For an interesting critique of the creation of the Iraq Constitution, see http://eprints.lse.ac.uk/ 54927/. p. 10 ↵ The creation of a new state is a ‘constitutional moment’. The break-up of Soviet Russia and the former Yugoslavia into smaller states in the 1990s required those new states to adopt constitutions as a process of establishing their identity and independence. Colonies did the same on becoming independent from colonial rule. Before 1901, Australia consisted of six British colonies with a limited level of self- government whose laws were made by the British Parliament. In order to create a new Australian federal state, a series of constitutional conventions (or conferences) took place, attended by delegates from each colony, producing a draft constitution which was then passed by each of the colonies’ parliaments, approved by the people in a referendum, and finally agreed by the British Parliament. However, constitutions can develop peacefully and calmly, not because of any dramatic event but simply because it is the right time to adopt a written constitution or a new system of government, or to update an existing constitution. Even states with a rigid constitution, such as the United States, can develop new constitutional principles without the constitution being amended. In his theory of constitutional moments, Bruce Ackerman identifies different cycles in the development of constitutional change in America: first, there is ‘normal politics’, where the people are fairly disengaged from political debate; then there is a signal for ‘transformative appeal’, where a branch of government, for example the President, Page 9 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law makes a proposal for constitutional change which is resisted by another branch of government, for example the courts, producing a set of opposing arguments for the people to make a choice on in a ‘critical election’; and finally, the people’s choice in that election may show popular support for change (Bruce Ackerman, ‘The Storrs Lectures: Discovering the Constitution’ (1984) 93 Yale LJ 1013). Cross reference See the Icelandic experiment in section 1.5.2 1.4 Characteristics of constitutions Constitutions vary from state to state. They often share the same core elements, and can contain aspirational aims, but their characteristics can differ. Constitutions can be: Codified or uncodified Flexible or rigid and they may create a system of government which is: Federal or unitary Republican or monarchical Parliamentary or presidential 1.4.1 Written and unwritten constitutions As we established in section 1.2.2, a written constitution refers to a formal document specifically codifying the rules for governance of that state. It has special status, almost reverential in some states; there will often be a constitutional court to adjudicate whether an ordinary law is unconstitutional; and it will include rules for the future amendment of the constitution. Where a constitution is unwritten, there is no specific codified document setting out the provisions of the constitution but there is a series of uncodified laws, political practices, and rules found in different sources (some of which may be in written form) which p. 11 together form a system of ↵ governance for a state. Britain, New Zealand, and Israel are the only three democracies in the world with an uncodified constitution, although Israel, created as a new state in 1948, has a series of written Basic Laws which have constitutional status, and are designed to form a future constitution. Page 10 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024 1. Introducing constitutions and public law 1.4.2 Flexible or rigid If a constitution is flexible, it is adaptable and can be easily changed without the need to follow a special procedure protecting provisions in the constitution. The unwritten constitutions of the UK, New Zealand, and Israel, for example, can simply be changed by their respective parliaments, although Singapore has a flexible written constitution. However, a rigid and entrenched constitution is more difficult to change; it may contain an ‘eternity clause’ prohibiting any amendment of particular constitutional principles (see the German Basic Law Article 79), or special procedures for amendment such as a specified majority within the legislature or a referendum. The US Constitution (Article V) requires an amendment to be proposed by a two-thirds supermajority vote of both Houses of Congress, and the amendment must then be ratified by three-quarters of the state legislatures. The US Constitution has only been amended 27 times in more than 200 years (and the first ten of those amendments, known as the Bill of Rights, were adopted at the same time in 1791). Close-up Focus: Gun Laws A classic example of a constitutional provision which is difficult to change is the Second Amendment to the US Constitution, which gives the right to bear arms: ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’ This was passed by Congress in 1789 and ratified in 1791, at a time when an armed civilian militia was seen as an important bulwark against an over-powerful federal government with its own standing army. The militias are now long gone but the Second Amendment is regarded as embodying the right of individual citizens to keep guns for their own defence (District of Columbia v Heller (2008) 478 F. 3d 370). In the light of mass shootings in America over the years (notably at Columbine High School in Colorado in 1999, Sandy Hook Elementary School in Newtown, Connecticut in 2012, and the Pulse nightclub in Orlando, Florida in 2016), the gun control debate rages on in America, with the powerful gun lobby protective of its constitutional right. State and federal laws on gun safety, even the significant legislation passed in 2022, must operate without violating the protected right to bear arms; this much was made clear by the US Supreme Court in New York State Rifle & Pistol Association, Inc v Bruen 142 S Ct 2111 (2022), holding unconstitutional a state law preventing individuals from carrying concealed handguns in public unless they demonstrated a special need for self-defence. By contrast, following the Port Arthur shooting in Tasmania in 1996, where 35 people were killed, Australia swiftly introduced legislation successfully reforming gun control. The difference was that there is no right to bear arms enshrined in the Australian constitution. Six weeks earlier, the Dunblane shooting had taken place in Scotland, with 16 children killed. Following the Cullen Inquiry, the UK Parliament passed strict gun control legislation: the Firearms (Amendment) Act 1997 banned higher calibre handguns and the Firearms (Amendment) (No 2) Act 1997 banned 0.22 calibre single-shot weapons. Page 11 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law p. 12 ↵ The Russian constitution was successfully amended on 4 July 2020 following approval by the Russian Parliament and voters in a referendum (one amendment gave President Putin the right to run for two further terms in office), but a lack of popular support—and the impact of coronavirus—disrupted the momentum for constitutional reform in Japan. The former Japanese Prime Minister, Shinzo Abe, was unable to fulfil his aim of amending Article 9 of Japan’s Constitution by 2020 to allow its armed forces to assist allies under attack as it needed the approval of a two-thirds majority in both houses of its legislature and a majority of the people in a referendum (Lunn and Mills, ‘Japan: Abe’s constitutional and security agenda ’, House of Commons Library, 2 Mar 2015). Repealing or amending a constitutional provision is only one way of producing change; another is for a state’s judiciary to interpret the provision in a different way, though this can be controversial. The scope for varied interpretations can be seen by comparing the majority and minority dissenting judgments in District of Columbia v Heller; the majority interpreted the US Second Amendment as protecting the individual’s right to own a gun for lawful purposes irrespective of whether they were in a militia, but Justice Stevens, one of the dissenting judges, said that the right applied only to militia service and the Supreme Court was announcing a new constitutional right. Similarly, when the US Supreme Court ruled in Obergefell v Hodges 576 US (2015) that same sex marriage was a legal right in all states of the US because of the constitutional right to equal protection of the law in the Fourteenth Amendment, Justice Scalia, in a scathing dissenting judgment, called the majority (5–4) decision a threat to democracy and ‘a naked judicial claim to legislative—indeed, super-legislative—power’ because the Supreme Court had overridden states’ freedom to impose their own laws (by 2015, it was legal in 36 states and banned in 14). 1.4.3 Federal or unitary A constitution will stipulate whether a state is federal or unitary. A federal state has a form of government in which power is non-centralised and is dispersed or divided between a central authority and regional centres of power (eg states or provinces). Power in a federal state is shared and co-ordinated so that each region has power to manage its internal affairs (‘the combination of shared rule and self-rule’: Ronald L. Watts, ‘Federalism, Federal Political Systems, and Federations’ (1998) 1 Annual Review of Political Science 117, 120). It is essential, therefore, in a federal state to enshrine these arrangements in a written constitution. On the other hand, in a unitary state, governing power is centralised and held by a central authority, as has traditionally been the case with the UK (see Chapters 3 and 4). Page 12 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law 1.4.4 Monarchical or republican A state’s constitution will also reflect the fact that it is a monarchy or a republic (for example, ‘Italy is a democratic Republic founded on labour’ (Constitution of Italy 1947, Article 1); ‘The principle of government is a hereditary and constitutional monarchy’ (Constitution of Monaco 1962, Article 2)). Similarly, a constitution will reflect whether that state has a parliamentary or a presidential system of government. In a parliamentary system, the head of government is normally a member of the legislature and the executive is dependent on the legislature so there is no strict separation of powers. In a presidential system of government, the president is directly elected, separate from the legislature, and not usually accountable to it. p. 13 The variation in the characteristics of constitutions can be seen in Table 1.1. ↵ Page 13 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024 1. Introducing constitutions and public law Table 1.1 Examples of variations between constitutional characteristics Australia Brazil Costa Rica Japan Nepal South Africa Federal √ √ √ Unitary √ √ √ Parliamentary √ √ √ √ Presidential √ √ Monarchy √ √ ◊ Republic √* √ √ √ * Despite a 1993 referendum on whether to have a monarchy or remain as a republic ◊ Nepal was a monarchy until 2007 Page 14 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024 1. Introducing constitutions and public law 1.5 People power 1.5.1 The constituent power Constitutions need a recognised legal basis to give them their authority and legitimacy, and the fundamental source of authority for a constitution, known as the constituent power, is the people. The US Constitution famously begins: We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. This has been emulated by numerous constitutions; for example, the 2011 Constitution of South Sudan (Article 3(1)) ‘derives its authority from the will of the people and shall be the supreme law of the land’. Moreover, where a constitution can only be amended by referendum, its provisions are fixed until the people approve a change (see, eg, the Tunisian Constitution 2014 Article 3: ‘The people are sovereign and the source of authority, which is exercised through the peoples’ representatives and by referendum’). Thomas Paine expressed the need for the authority of the people in this way: If we trace government to its origin, we discover that governments must have arisen either out of the people or over the people. In those which have arisen out of the people, the individuals themselves, each in his own personal and sovereign right, have entered into a compact with each other to produce a government; and this is the only mode in which governments have a right to arise. The sequence advocated by Paine is set out in Figure 1.1. Figure 1.1 Thomas Paine’s flow of authority Thus a constitution can be described as ‘primarily a social compact, a political declaration that supersedes ordinary legislation by virtue of the fact that the people are superior to Parliament’ (Thorvaldur Gylfason, www.democraticaudit.com/?p=8840 , 28 October 2014). On Page 15 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law this view, the people are seen as the higher law-making authority and their authority is higher than that of p. 14 a legislature. It is for this reason that any ordinary laws passed by the legislature which ↵ conflict with a constitution can be overturned because a constitution expresses the higher will of the people. 1.5.2 The constitution-making process The discussion, negotiation, and drafting of a new constitution is carried out by a body known as a constituent assembly. It may be in the form of a constitutional convention, a body elected only for the purpose of drafting the constitution, or it may be a body with existing legislative powers; for example, South Africa’s 1996 Constitution was drafted by both Houses of Parliament sitting as a constitutional assembly whereas the Philadelphia Convention responsible for drafting the US Constitution consisted of appointed delegates from 12 American states. Much of the deliberative process of drafting a constitution has historically been carried out in secret (this was true for the drafting of the US Constitution) so in recent years there has been increasing emphasis on involving the people of a state not only in approving a draft constitution in a referendum, but also in participating in its formation to provide transparency and a sense of ownership. In preparation for the 1996 South African constitution, the constitutional assembly carried out a wide public participation exercise with a successful outreach programme to gather a broad spectrum of public views. Nevertheless, Jon Elster is sceptical about the extent to which such public consultation shapes the final constitution and argues that the most effective constitution process is one where: the closed assembly may be supplemented by upstream and downstream public consultations, generating an overall ‘hourglass-shaped’ procedure’ with the narrow middle of the hourglass as the drafting of the constitution in private session, while the ‘downstream process of ratification by the citizens, following a national debate, is more important’ than preliminary public consultations. (Jon Elster, ‘The Optimal Design of a Constituent Assembly’, in Hélène Landemore and Jon Elster (eds), Collective Wisdom: Principles and Mechanisms (Cambridge University Press 2012, p 169) The process of ratification, or formal approval of a draft constitution, by the legislative body or by referendum or both, will complete the constitution process. Close-up Focus: Iceland’s Crowdsourced Constitution Between 2009 and 2013, Iceland carried out an interesting experiment in redrafting its constitution. After the financial crisis of 2008–2009, public protests (known as the ‘pots and pans revolution’) and the resignation of the government resulted in the desire for a new constitution. Iceland decided to produce what has been called a ‘crowdsourced constitution’. First a p. 15 Constitutional Committee of experts was set up; they organised a ↵ National Forum, a Page 16 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024 1. Introducing constitutions and public law gathering of 950 individuals selected at random, who listed what they wanted to see in a new constitution at a meeting which was streamed online. Their ideas were formulated into legal terms by a committee, then a Constitutional Council of 25 citizens drawn from a wide variety of backgrounds and professions (but not including politicians) drafted the Constitution, working in closed sessions but using social media to obtain feedback on their drafts from the population. Feedback included a ‘Facebook proposal to entrench a constitutional right to the Internet’, which was included in the final draft. The draft was approved by 67 per cent of voters in a non-binding referendum in October 2012 but the Icelandic Parliament (the Althingi) failed to progress it further. However, a civic engagement process took place in 2019, including a deliberative poll of citizens in which they discussed constitutional amendments, and the Icelandic Parliament aims to produce a number of constitutional reform bills by 2025. See Hélène Landemore, ‘Inclusive Constitution-Making: The Icelandic Experiment’ (2015) 23(2) Journal of Political Philosophy 166. Thinking Point If you were tasked to help draft a constitution, what essential rights, values, and principles would you include? For example, would you include the right to internet access, or the right to paternity leave, or the protection of the environment? Would you use social media and live streaming for more inclusive public participation in drafting your constitution? 1.6 Political and legal constitutions Constitutions can be ‘political’ or ‘legal’, although in practice, many will be a blend of both. The debate here focuses on the critical question: how is government held to account—by the law or by political rules? A legal constitution is typically characterised by a formal, written Constitution with the status of higher law, containing a strong, forceful set of rules which must be followed in the governance of that state; its rules are said to be normative, that is, they are binding and generally observed. The constitution’s provisions are entrenched, fixed, and unchangeable until a deliberate act of amendment takes place, and a constitutional or Supreme Court will act as the guardian of the constitution and its provisions. A political constitution, by contrast, is one where government power is restricted mainly by political processes, which does not contain rules with such strength as a legal constitution, and is therefore more changeable. Gee and Webber describe a political constitution in this way: Page 17 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law By design, a political constitution leaves it to political actors, operating through the ordinary political process, to prescribe the nature and content of the constitution … A political constitution does not prescribe in any great detail because one of its basic features is its constant liability to the possibility of change effected through the ordinary political process. (Graham Gee and Grégoire C.N. Webber, ‘What Is a Political Constitution?’ (2010) 30(2) Oxford Journal of Legal Studies 273, 287) p. 16 ↵ In his seminal article on political constitutions, J.A.G. Griffith argues that political, rather than legal, control of governments is needed and that control of government by laws is ‘an unattainable ideal’ (‘The Political Constitution’, p 16). In reality, he argues, a written constitution is a misguided way of trying to resolve conflicts about rights which are a natural part of the activity known as politics. As Britain does not have a written constitution containing superior constitutional laws, it has traditionally had a more political nature, with organically developed checks and balances constraining government power and, at its heart, the sovereignty of the British Parliament. However, it is also true that Britain’s constitution is evolving towards a more rule-based legal constitution with the strengthening of judicial review and the protection of human rights. Tom Hickman asserts that the UK constitution is founded on law that is enforceable in the courts and the legal or political constitution debate should be left behind: The salient question today is how to marry a legal constitution, founded upon the protection of human rights, with the operation of ordinary politics and political mechanisms of accountability. (Tom R. Hickman, ‘In Defence of the Legal Constitution’ (2005) 55 UTLJ 981, 1022; see also 986– 987) Adam Tomkins acknowledges that Britain now has a constitution comprising legal and political elements but argues that much remains of its political constitution: if a matter is thought inappropriate for Parliament to determine, the alternative is to ask the electorate through a referendum, not the Supreme Court (A. Tomkins, ‘What’s Left of the Political Constitution?’ (2013) 14(12) German Law Journal 2275, 2289). Thinking Point What is the difference between a legal and a political constitution? Summary A constitution is a set of rules for how a state is run Constitutions exist to impose order and stability; to allocate power, rights, and responsibility and control the power of those who govern Page 18 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law A constitution consists not only of laws but also of non-legal rules and political practices, and has both a legal and political function A constitution not only governs but creates the institutions of government In states with a codified constitution, there is no higher law than the constitution New constitutions can arise through a process of evolution or as an act of deliberate creation Constitutions can be codified or uncodified, flexible or rigid All constitutions are subject to debate about their interpretation in courts, legislatures, and the public arena Constitutions need a recognised legal basis to give them authority and legitimacy Constitutions can be described as ‘political’ or ‘legal’, although in practice many are a blend of both p. 17 Introducing the UK constitution 1.7 Does Britain have a constitution? You may be surprised to learn that there are differing views on this fundamental question, and the answer depends on where you start from. One starting point for the debate is the existence—or lack—of a written constitution. Thomas Paine was very clear on whether England (now Britain) had a constitution: Wherever it cannot be produced in a visible form, there is none … Can, then, Mr. Burke [an English MP] produce the English constitution? If he cannot, we may fairly conclude that no such thing … exists, or ever did exist … The English government is one of those which arose out of a conquest, and not out of society, and consequently it arose over the people; and though it has been much modified since the time of William the Conqueror, the country has never yet regenerated itself, and is therefore without a constitution. (Rights of Man, p 28) In the 1830s, Alexis de Tocqueville, a French political theorist, also took the view that Britain did not have a constitution because of its unwritten, evolutionary, flexible nature, and because of parliamentary sovereignty: ‘In England, the Parliament has an acknowledged right to modify the constitution; as, therefore, the constitution may undergo perpetual changes, it does not in reality exist’ (Alexis de Tocqueville, Democracy in America, 1835). That view is supported by F.F. Ridley, who argues that there are four characteristics of a constitution and Britain has none of them: 1. A constitution establishes the system of government and is prior to the system of government. Page 19 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law 2. A constitution ‘involves an authority outside and above the order it establishes’ (the constituent power). 3. It is a form of superior law originating from a higher authority than the legislature. 4. It is entrenched and can only be changed by special procedures. ‘The term British constitution’, says Ridley, ‘is near meaningless’, and as there is a blurred distinction between constitutional law and ordinary law in Britain, there is nothing to tell us whether something is unconstitutional (‘There Is No British Constitution’, 342–343, 359; in ‘Further reading’). Moreover, Lord Neuberger, former President of the Supreme Court, has said: The UK famously has no constitution. Some legal experts argue that it has constitutional documents—including Magna Carta, and certain statutes, the Bill of Rights, the Act of Settlement, and the Act of Union. However … [they] scarcely represent even an attempt at any sort of constitutional set of rules. Furthermore, so long as the UK enjoys parliamentary supremacy, any provision in any of these instruments can be overturned by a simple majority of one in the House of Commons. It may be said with real force that that is scarcely the hallmark of a constitutional provision. (‘The Role of Judges in Human Rights Jurisprudence: A Comparison of the Australian and UK Experience’, Speech at the Supreme Court of Victoria, Melbourne, 8 August 2014 ) p. 18 ↵ Bogdanor expands on the role of parliamentary sovereignty in Britain: ‘The British Constitution could thus be summed up in just eight words: “What the Queen in Parliament enacts is law”’ (The New British Constitution, p 13). In other words, Parliament can change any part of the UK constitution in the same way that it changes ordinary law, simply by passing an Act of Parliament. You may now be wondering what you are about to embark on studying. It is true that if a ‘constitution’ is defined in the sense of a written formal document, Britain has no constitution. But if we use Kenneth Wheare’s wider definition of a constitution (see section 1.2.2), Britain does have a collection of rules which regulate and govern the institutions of government, and this is the basis on which Barendt argues that the UK has a constitution (Eric Barendt, ‘Is There a United Kingdom Constitution?’; in ‘Further reading’). First, we have a constitution in the sense of a power map with constitutional rules describing the lines of power and the relations between government institutions, and between government institutions and the people (rather like an organogram); Barendt calls this a constitution ‘in the descriptive sense’ (see also Anthony King, The Hamlyn Lectures: Does the United Kingdom Still Have a Constitution? (London: Sweet & Maxwell 2001, p 101)). But Barendt also points out that there is more to a constitution than a codified text and that Britain has more than a descriptive constitution because it has laws ‘of a constitutional character’ which would be included in a codified constitution if there was one. In this sense, the constitution is a unique product of history and political and legal development (we find out in Chapter 2 how the UK constitution evolved). The Supreme Court endorses this view: Page 20 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law [a]lthough the United Kingdom does not have a single document entitled ‘The Constitution’, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development … it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. (R (Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland UKSC 41 ) Thinking Points Do you think Britain has a constitution? Which set of arguments above do you find more convincing? 1.8 Understanding the UK constitution The UK constitution is a survivor, chiefly because of its flexible nature. While its most fundamental principles have remained stable for many years, the UK constitution is nevertheless adaptable and can be easily changed. It has modernised rapidly in the past 25 years and it can justifiably be seen as organic and dynamic, with a forward-looking energy. However, it breaks the mould of the normal constitutional development that we saw earlier in the chapter. The UK constitution has evolved over centuries rather than being consciously created by and for the people. It has developed a wide range of constitutional rules which p. 19 can be found in various ↵ forms such as certain Acts of Parliament (statutes), specific case law developed by the courts, and unwritten rules of political practice (known as constitutional conventions). It is uncodified, which means that while many of the UK’s constitutional rules are in written form, they have not been collated in a single document; as a result, there is no neatly packaged constitution that you can buy in a bookshop or access online. Even if you are not yet familiar with the UK constitution, you might already have identified a key issue emerging from the fact that it is not consolidated in a single document: where do we find the rules? That is the key question that this book explores. Cross reference For more on this, see Chapters 2 and 3 1.8.1 The key players and essential terminology It is essential at this stage to be able to define and understand the terminology to which we will be referring and it is also important to distinguish clearly between the UK’s three arms of state and their different functions. In any state, there will be law-makers, law-enforcers, policy-makers, and arbiters of disputes, and thus a functional state needs the following: officials to make its laws (the legislative Page 21 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law function); officials to carry out the day-to-day running of the state and implementing policy and law (the executive function); and officials to decide legal disputes (the judicial function). In the UK, there are three institutions (known as arms or branches of state) between whom power is divided: Parliament (the legislature); the government (the executive); the judiciary (the judicial body). A basic but very important point is to avoid confusing ‘Parliament’ and ‘the government’. It should also be remembered that there is not always a distinct division in power between institutions in the UK; for example, Parliament has the supreme law-making function but government ministers can be given law- making powers by Parliament, and judges create common law. The monarch: is also referred to as ‘the sovereign’ and is the head of state; the King is a constitutional monarch whose powers are defined by the constitution The Crown: refers to the monarch, or in its more technical sense the functions of government and state administration; the legislative, executive, and judicial functions in the UK are carried out in the name of the Crown The legislature: the law-making body in a state Parliament: the UK’s supreme law-making body, divided into two chambers (the House of Commons and the House of Lords). In the United Kingdom, legislation is made by the King in Parliament, consisting of the House of Commons, the House of Lords, and the monarch. ‘Parliament’ derives from the French parler, meaning ‘to talk’; hence Parliament is the central debating forum where new laws are discussed and created The executive: the bodies concerned with creating and implementing policy and implementing law; in many cases these are government departments headed by ministers, who form the Cabinet Government: the word ‘government’ derives from gubernare, the Latin word for steering a ship or regulating. The political party that wins a general election becomes the new government, whose role is to carry out the day-to-day administration of the state—that is, an executive function The judiciary: the judges, whose function is to apply and interpret the law and decide legal disputes in court p. 20 1.8.2 The UK constitution in action As one of the first steps to understanding the UK constitution, it helps to develop a sense of how it operates, and to recognise that you will have seen, or been involved in, events that show the constitution in action. It affects us more than you might think. Take, for example, the 2016 Brexit referendum which Page 22 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024 1. Introducing constitutions and public law began a dramatic reshaping of the UK constitution and raised some novel constitutional questions. What were the rules for leaving the EU? Who triggered the leaving mechanism under Article 50 of the Treaty of the European Union: the government or Parliament? (See Chapter 5.) And the coronavirus outbreak in 2020 required the government to introduce unprecedented peacetime restrictions of public freedom in order to control the spread of the virus. How can the limits of those powers be tested? Public law, to which we now turn, provides the answers to these questions. 1.9 The role, scope, and importance of public law Public law, which includes constitutional and administrative law, is a fundamentally important part of UK law because it places legal limits on the power of the state, and protects citizens against breaches of those laws by state bodies. Constitutional law is the law about government. It defines and regulates the structure and powers of government, the distribution of power between government institutions, their functions, and the relationship between individuals and the state. We can see the scope of constitutional law in John Laws’ definition of a constitution: What is a constitution? It is that set of legal rules which governs the relationship in a state between the ruler and the ruled. All constitutional questions are about the laws which identify the ruler, define the nature and extent of their power, and set the conditions for its exercise. (John Laws, ‘The Constitution: Morals and Rights’ (1996) (Winter) Public Law 622) These are the essential laws which would be found in a written constitution and, because it relates to the institutions which make, implement, and interpret the UK’s laws, UK constitutional law also underpins the legal system. Administrative law concerns public administration and regulates the power of public bodies, particularly through judicial review, where the courts determine whether a public body has exercised its power beyond its legal limits. Cross reference See Chapters 15–16 for judicial review Thinking Point Summarise your understanding of the purpose of public law. Page 23 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law 1.9.1 Public law and private law Private law regulates the relationships between individuals, companies, or other private entities; for example, disputes concerning contract, tort, divorce, wills, and succession are matters of private law p. 21 (although some areas such as cases involving children can raise both private and ↵ public law issues). Public law, on the other hand, regulates the public face of the state and has a strong impact on citizens’ rights and relationships with public bodies, enabling individuals to challenge in court the actions of government departments and agencies, local councils, the police, the armed forces, health authorities, and other bodies in areas such as immigration and asylum, human rights, prisoners’ rights, planning and housing, schools and universities, state benefits and welfare, and freedom of information. Lawyers practising in the public law arena will act in a broad range of cases where individuals are challenging the actions of the government and other public bodies, from the government’s policy of culling badgers to eradicate TB in cattle (R (Badger Trust) v Secretary of State for the Environment, Food and Rural Affairs EWCA Civ 1405) to the lawfulness of the Prime Minister’s advice to the Queen to prorogue (suspend) Parliament (R (Miller) v The Prime Minister; Cherry v Advocate General for Scotland UKSC 41). 1.9.2 The limits on public law While public law regulates governmental power, there are also limits on what it can control—such as decisions made by the government in certain politically sensitive areas. The courts have acknowledged that they cannot ‘enter the forbidden areas, including decisions affecting foreign policy’ (R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs & Secretary of State for the Home Department EWCA Civ 1598, UKHRR 76 ) and in the case of R (Gentle) v Prime Minister UKHL 20, Lord Bingham referred to ‘the restraint traditionally shown by the courts in ruling on what has been called high policy— peace and war, the making of treaties, the conduct of foreign relations’ (). Similarly, in R (Campaign for Nuclear Disarmament) v Prime Minister EWHC 2777 (Admin), the claimants unsuccessfully asked the court to declare that the UK’s Prime Minister would be in breach of international law if he deployed British armed forces to Iraq without United Nations authorisation, and in his judgment, Simon Brown LJ stated: ‘The court will … decline to embark upon the determination of an issue if to do so would be damaging to the public interest in the field of international relations, national security or defence’ (; see also R (Miller) v Secretary of State for Exiting the European Union UKSC 5 [47, 49, 240] (‘Miller 1’)). Thus, the UK courts acknowledge that there are certain issues on which it would not be appropriate for them to make a decision because of wider political and geopolitical considerations. Cross reference To find out more about the courts’ approach to cases involving high policy, see section 7.4, section 12.3.1.2, and section 16.6.1. Page 24 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law 1.9.3 Studying public law As the final point, if you have studied or are studying contract law or tort, for example, you will be familiar with applying black letter law (ie a clear set of legal principles). With public law, you will notice a difference. While public law does contain many legal rules, it also interweaves them with the specific constitutional principles set out in Part 2 of this book. This is part of the nature of public law. While this is not a book about politics, which concerns the activities of those who exercise government power, public law and politics are intrinsically linked and your study of the subject will be enhanced by an interest in current affairs. It helps your understanding of key principles to see their real life application, and it is good practice to cultivate the habit of reading quality newspapers, either as hard copy or online. A study of the constitution and public law also has historical roots and context, and Chapter 2 of this book provides a survey of the milestone events of which you need to be aware in order to understand and appreciate the subject. p. 22 Questions Self-test questions 1. What is a constitution? What is the purpose of a constitution? 2. Summarise the narrower and wider meanings of ‘constitution’. 3. What is meant by ‘entrenched’? 4. What is ‘a constitutional moment’? 5. What is a ‘constituent power’ and why is it important? 6. What is a ‘constituent assembly’? 7. In the context of the UK constitution, explain what each of the following terms means: (a) the Crown (b) the legislature (c) the executive (d) the judiciary 8. What is the difference between Parliament and the government? Exam question ‘Britain does not have a constitution’. Discuss. Page 25 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024  1. Introducing constitutions and public law Further reading Books Bogdanor, V. The New British Constitution (Oxford and Portland, Oregon: Hart Publishing 2009). For thought-provoking and incisive insights into the workings of the modern constitution King, A. The British Constitution (Oxford: Oxford University Press 2007). An accessible dissection of the early twenty-first-century constitution in Britain Journal articles Barendt, E. ‘Is There a United Kingdom Constitution?’ (1997) 17(1) Oxford Journal of Legal Studies 137. Addresses arguments that there is no UK constitution Eleftheriadis, P. ‘In Defence of Constitutional Law’ (2018) 81(1) MLR 154. This review article explores more sophisticated constitutional theory Elster, J. ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 Duke Law Journal 364. Helps understanding of how constitutions are made p. 23 ↵ Griffith, J.A.G. ‘The Political Constitution’ (1979) 42 MLR 1. A classic, authoritative analysis of the political nature of the UK constitution Matsui, S. ‘Fundamental Human Rights and “Traditional Japanese Values”: Constitutional Amendment and Vision of the Japanese Society’ (2018) 13(1) Asian Journal of Comparative Law 59. A case study of the route towards constitutional change Ridley, F.F. ‘There Is No British Constitution: A Dangerous Case of the Emperor’s Clothes’ (1988) 41(3) Parliamentary Affairs 340. A good counterbalance to Barendt’s views, arguing against the existence of a UK constitution Tomkins, A. ‘In Defence of the Political Constitution’ (2002) 22(1) Oxford Journal of Legal Studies 157. An analysis of the relationship between law and politics within public law and the constitution Other sources The Constitution Unit: www.ucl.ac.uk/constitution-unit/whatis/uk-constitution. Page 26 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024 1. Introducing constitutions and public law Provides a brief summary of what a constitution is, and the website contains many useful links and information across the constitutional spectrum US Constitution: https://constitution.congress.gov/constitution/. Use this link to access the US Constitution and accompanying commentary Online resources www.oup.com/he/dennett3e This chapter is accompanied by a selection of online resources to help you with this topic, including: Multiple-choice questions Answers to the self-test questions Guidance on answering the exam question © Oxford University Press 2024 Related Books View the Essential Cases in public law Related Links Test yourself: Multiple choice questions with instant feedback Find This Title In the OUP print catalogue Page 27 of 27 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Roehampton University; date: 20 October 2024