Public Law Week 2 Presentation PDF

PUBLIC LAW Week 2 M Allen and B Thompson, Cases and Materials on Constitutional and Administrative Law (9th ed Oxford University Press, Oxford 2008). Lecturer: Ghada ihsan First semester, 2023-2024  Chapter one Sources of Public Law The Legislative Sovereign...

PUBLIC LAW Week 2 M Allen and B Thompson, Cases and Materials on Constitutional and Administrative Law (9th ed Oxford University Press, Oxford 2008). Lecturer: Ghada ihsan First semester, 2023-2024  Chapter one Sources of Public Law The Legislative Sovereignty of The Sources of Public Law: Constitution. Legislation Statutory Law,(laws made by parliament). Common law (laws made by judges) Complex relationship between these sources  Sources of Public Law In the UK legal system, the sources of Public Law are diverse, reflecting both domestic and international influences. Public law governs the relationship between individuals and the state and includes constitutional law, administrative law, and criminal law. The main sources of public law in the UK are: 1. The Constitution The UK has an unwritten constitution, meaning it is not codified in a single document. The constitution is derived from several sources, including: Constitutional conventions: Unwritten rules that guide how political institutions operate. Royal prerogatives: Historical powers held by the monarch, which are now mostly exercised by government ministers. Key statutes: Laws like the Magna Carta (1215), the Bill of Rights (1689), and the  Constitutionalism – define & limit powers of government. Some essential constitutional principles are not expressly stated in the Constitution. - E.g. Separation of powers, rule of law. These principles were inherited from the United States & United Kingdom systems. 2. Legislation (Statutory Law) Acts of Parliament: These are the primary laws passed by the UK Parliament. They are the most authoritative source of law, covering both constitutional and administrative matters. Delegated Legislation: Sometimes Parliament delegates law-making powers to other bodies, such as government ministers. This type of legislation includes Statutory Instruments and is used to address specific issues within the broader framework of primary legislation. 3. Common Law (Judge-Made Law) Public law in the UK is significantly shaped by judicial decisions. Courts interpret statutes, clarify legal principles, and develop legal doctrines, such as judicial review, which allows courts to assess the legality of governmental decisions and actions. 4. European Union (EU) Law While the UK formally left the EU in 2020 (Brexit), some elements of EU law continue to apply in domestic law under the European Union (Withdrawal) Act 2018. Pre-Brexit EU law remains part of UK law as "retained EU law" until it is repealed or modified. 5. European Convention on Human Rights (ECHR) The Human Rights Act 1998 incorporates the ECHR into UK law, allowing courts to enforce ECHR rights domestically. This is a significant source of public law in matters related to civil liberties and human rights. 6. International Law: The UK is bound by treaties and conventions it has signed, though international law only has domestic effect when implemented through an Act of Parliament. Examples include the United Nations treaties and customary international law principles that influence public law. These sources work together to shape the UK's public law framework, defining the limits of government power and protecting individual rights. The three main branches of government: Parliament – legislative power. Courts – judicial power. Executive – executive power. Separation of powers:  Parliament makes the laws  Executive carries out the laws  Courts interpret the law The three main branches of government in the UK, which are: 1.The Executive: 1.Headed by the Prime Minister and the Cabinet, the executive branch is responsible for implementing and enforcing laws. It includes the government ministers and departments responsible for public administration and policy. 2.The Legislature: 1.This is the UK Parliament, consisting of two houses: the House of Commons and the House of Lords. Its primary function is to pass legislation, scrutinize the executive, and represent the electorate. 3.The Judiciary: 1.The judiciary comprises the courts, with the Supreme Court being the highest in the UK. It interprets and applies the law, ensuring that legislation and executive The UK parliament: The UK Parliament is the supreme legislative body in the United Kingdom, responsible for making and passing laws, scrutinizing the government, and representing the people. The Uk parliament is comprised of two chambers, the house of commons (the elected chamber), and the House of lords (the unelected chamber). The house of lord has fewer powers than the House of commons, but still performs an important role in, for instance , revising legislation. The Scottish parliament, the welsh assembly, and the Northern Irish Assembly are unicameral legislature, they each have only one (elected) chamber. House of Commons: The House of Commons is the lower house of Parliament, but it holds the most power in terms of law-making. Members of Parliament (MPs) are elected by the public in general elections, typically held every five years. The party with the majority of MPs usually forms the government, with its leader becoming the Prime Minister. The House of Commons debates proposed laws, called bills, and plays a central role in checking the work of the government, often through questioning ministers and forming committees to investigate government actions. House of Lords: The House of Lords is the upper house, and its members are not elected by the public. It consists of life peers, hereditary peers, and bishops of the Church of England. The Lords provide expertise in reviewing and suggesting amendments to bills passed by the House of Commons. However, they cannot ultimately block legislation; they can only delay it. The House of Lords also plays a role in scrutinizing government policies and administration. The Monarch: The Monarch (currently King Charles III) is the ceremonial head of state and a formal part of Parliament. However, their role in the legislative process is mostly symbolic. The Monarch's duties include opening and dissolving Parliament, giving the Royal Assent to bills (which is required for a bill to become law), and meeting with the Prime Minister. Parliament plays a fundamental role in the UK's constitutional monarchy, where political power is vested in the elected representatives of the people, while the monarchy maintains ceremonial functions. Functions of Parliament: Law-Making: Both Houses of Parliament consider and pass laws, but the House of Commons has the final say. Scrutiny of Government: Parliament holds the government to account through debates, questions, and committees. Budget Approval: The government must obtain approval from Parliament to raise taxes and spend money. Representation: MPs represent the interests and Key Features of Parliamentary Government: 1.Fusion of Powers: 2.Unlike in a presidential system (e.g., the United States), where the executive and legislative branches are separate, in a parliamentary government, the executive is drawn from the legislature. The Prime Minister and the Cabinet are typically members of the parliament, usually from the majority party or coalition. 3. Head of State vs. Head of Government: The head of state (in the UK, the Monarch) is usually distinct from the head of government (the Prime Minister). The Prime Minister is the head of government and is 3. Prime Minister: The Prime Minister is the leader of the majority party in the lower house (in the UK, the House of Commons) and is appointed by the head of state. The Prime Minister leads the executive branch, appoints ministers, and is responsible for implementing laws and managing the administration of government policies. 4. Cabinet: The Cabinet consists of senior ministers chosen by the Prime Minister from among the elected members of parliament. The Cabinet is collectively responsible for government decisions and policies. Ministers are accountable to Parliament, meaning they must justify their actions and policies and answer questions from MPs. 5. Accountability to Parliament: The government is accountable to the parliament, particularly the lower house. If the government loses the support of the majority (e.g., in a vote of no confidence), it may have to resign or call a new election. This ensures that the executive remains responsive to the legislative body, which represents the electorate. 6. Collective Responsibility: In a parliamentary government, the executive operates under the principle of collective responsibility, meaning all members of the Cabinet must publicly support government policies and decisions, even if they privately disagree. If a minister cannot support a policy, they are expected to resign. 7. Majority Rule and Coalition Governments: In most parliamentary systems, the party or coalition with the majority of seats in the legislature forms the government. In cases where no single party has a majority, multiple parties may form a coalition government. 8. Bicameral or Unicameral Legislature: Some parliamentary systems, like the UK, have a bicameral legislature (two houses: the House of Commons and the House of Lords), while others may have a unicameral legislature (one house). Parliamentary Government in the UK: In the UK, the system of parliamentary government is characterized by the dominance of the House of Commons, from which the Prime Minister and most members of the Cabinet are drawn. The House of Lords acts as a revising chamber but cannot override the decisions of the House of Commons. The Monarch serves as the ceremonial head of state, while the Prime Minister and the Cabinet handle the day-to-day functions of the executive. Prime ministerial government: The prime minister lead the government of the day. The prime Minister is leader of the political part that has a majority of members of Parliament in house in the House of Common. It is possible for someone to become the prime Minister without personally winning a general election. The prime Minister appoints various secretaries of state and ministers. Each Minister works in a government department and has his or her own areas of irresponsibility (eg transport, environment, digital media, foreign affairs). A parliamentary government is a system of democratic governance in which the executive branch derives its legitimacy and authority from the legislature (parliament) and is accountable to it. The executive is not separate from the legislative branch, but rather is part of it. In a parliamentary system, the government must maintain the confidence of the majority of the members of parliament to remain in power. The UK government can only govern and survive in office if it has the support of a majority of members of the parliament in the house of commons , there is strict institutional separation between the government and parliament because the government must have the majority in the house of common to govern. The government does not need to have a majority in the house of lords. The House of lords has limited powers. It can delay but not necessary block legislation. Having government ministers physically present in both Houses of parliament enable them to be held to account. Collective ministerial responsibility: Collective ministerial responsibility means that government ministries can express their view freely in private discussions within government, but must maintain a united front in public once policy decision have been reached. If a Minister no longer feels able to defend publicly government policy, then she or he should resign. Collective ministerial responsibility applies to members of the cabinet, the collective of the most senior government ministers. It also applies to all other ministers who are outside the cabinet. Parliament has establish other mechanism by which people can challenge government. Such as: Tribunals and ombudsmen. This is known as “ administrative Justice”. UK Ombudsmen, who are independent officials appointed to investigate and address complaints by the public against maladministration or injustice caused by government bodies, public services, or specific private sectors. Here's an overview of the main types of ombudsmen in the UK: 1. Parliamentary and Health Service Ombudsman (PHSO): Investigates complaints about UK government departments, other public organizations, and the NHS in England. Deals with cases where individuals believe they have suffered injustice or hardship because of poor service or unfair treatment. 2. Local Government and Social Care Ombudsman (LGSCO): 3.Financial Ombudsman Service (FOS): Handles disputes between consumers and businesses providing financial services, such as banks, insurance companies, and investment firms. Offers a free and impartial service to resolve complaints, often as an alternative to going to court 4. Legal Ombudsman: Deals with complaints about the legal services sector in England and Wales, including solicitors, barristers, and legal firms. Handles issues related to poor service, delays, or overcharging by legal professionals. 5. Housing Ombudsman: Investigates complaints from tenants and leaseholders about housing associations and local authority landlords in England. Role of Ombudsmen: Ombudsmen investigate complaints impartially and recommend remedies or actions where wrongdoing is found. Remedies might include apologies, compensation, or corrective measures. They provide an alternative dispute resolution mechanism, helping citizens resolve issues without the need to resort to court proceedings. Ombudsmen in the UK offer a critical service in holding public bodies and service providers accountable, ensuring fair treatment and protecting individual rights.  Judicial independence Judge must be protected from political interference by the executive and legislature. The government is under a statutory duty to uphold the continued independence of the judiciary. This duty extends to all judicial offi ce holders. Judges are no appointed by government Minsters, but through an independent appointment process. The courts can only decide cases on the basis of the evidence and legal arguments presented by the litigants concerned. Judges swear an oath to decide cases without fear or favour, affection or ill will. Administrative law To ensure that government follows the rule of law in practice, individuals can go to the courts, which will check and control the legality of government decision and policy. This is called judicial review. It is the principal area of activity for the courts in public law. It involves the courts reviewing the lawfulness of government decisions by applying both statutory rules and common law principles. The courts cannot strike down government decisions simply because they disagree with them. But only if those decisions are unlawful. In addition to judicial review. The principles of judicial review: When the government decision, the courts apply the following legal principles: Legality: government must not exceed the limits of its legal powers. Procedural fairness: when making decision, government must adopt fair procedure. Reasonableness: government must not make irrational or perverse decision. Proportionality: restrictions on human rights must not go any further than is strictly necessary. Human Rights: In a liberal democracy, people have fundamental human rights that are legally protected. The UK has two principal human rights documents, The first is international treaties called the European Convention on Human Rights (ECHR). The ECHR sets out various human rights such as: The right to liberty, the right to a fair trail, Freedom of speech, and freedom of assembly. The second document is a UK Act of parliament called the Human Rights Act 1988 (HRA). The HRA gives further effect to the ECHR as part of the UK law.  Group Discussion Discuss and answer the following questions, You need to present your answer afterwards. The estimated time is: 30 min. Materials: The course Book