Public Law Presentation PDF

Public Law 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 four Parliament scrutiny of Government The Rule of law Introduction: Par...

Public Law 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 four Parliament scrutiny of Government The Rule of law Introduction: Parliament powers: Should parliament be sovereign ? If it is sovereign what exactly does that mean? And is the constitutional wisdom holding that parliament is sovereign correct? Let assume that a sovereign legislature were to decide that all blue-eyed babies should be murdered, this would clearly be morally and legally unacceptable. The question in this case are: 1.Should such a law be enacted? No. Such a law would violate fundamental human rights, including the right to life and the prohibition of discrimination. These principles are enshrined in international treaties like the Universal Declaration of Human Rights (UDHR), the European Convention on Human Rights (ECHR), and many national constitutions. 2. Should legislators be free to enact such a law if they so wish? No. Legislators must act within the framework of established legal and moral norms. They are bound by international obligations, such as human rights treaties, and domestic legal principles that protect individuals from arbitrary and discriminatory actions by the state. 3. What should stop them from doing that? Several legal and institutional safeguards should prevent legislators from enacting such laws: Constitutional protections: Many legal systems have constitutional safeguards that protect fundamental rights. Laws that violate these rights can be struck down by courts through judicial review. International human rights law: Treaties like the ECHR provide legal mechanisms to challenge laws that infringe on basic human rights. In the UK, the Human Rights Act 1998 incorporates the ECHR into domestic law. 4. Checks and balances: In democratic systems, different branches of government (executive, legislature, judiciary) provide checks on each other's power. If a legislature passes an illegal law, the judiciary can intervene. 5. Public and political opposition: Civil society, media, and political opposition play a critical role in challenging unjust or harmful laws. These mechanisms ensure that even though a legislature has sovereign power, it cannot enact laws that violate basic human rights and ethical standards. In the UK, the principle of parliamentary sovereignty means that Parliament is the supreme legal authority and can create or repeal any law. As such, UK courts do not have the power to declare an Act of Parliament unconstitutional or invalidate it. This distinguishes the UK legal system from those with a written constitution, where courts may have the authority to strike down laws that conflict with constitutional provisions. However, there are mechanisms through which the courts can respond to issues of compatibility with constitutional principles or rights: 1.Declarations of Incompatibility: Under the Human Rights Act 1998, UK courts can issue a declaration of incompatibility if they find that an Act of Parliament is inconsistent with the European Convention on Human Rights (ECHR). While this does not nullify the law, it alerts Parliament to the need for reform. 2.Judicial Review: Courts can review the legality of actions taken by public bodies or decisions made under legislation. If a law is applied in a manner that is unreasonable or exceeds authority, courts may quash decisions based on that law. 3. Conventions and Political Pressure: If a law is deemed unjust or violates human rights, public pressure and political accountability may lead Parliament to amend or repeal it, even if the courts lack the power to do so directly. In summary, while UK courts cannot cancel or invalidate an unconstitutional law, they can influence the legislative process through declarations and judicial reviews, and they can hold public authorities accountable for how they implement laws. https://youtu.be/DGpOGxlU-z8 Legislative Sovereignty of Parliament: Definition: Parliament’s legislative sovereignty means it holds supreme legal authority. It can create or repeal any law, and no other body can overrule its legislation or laws. Historical Development: Emerged from the Glorious Revolution (1688) and the Bill of Rights (1689), affirming Parliament's authority over the monarchy. Key scholar: A.V. Dicey who emphasized the unlimited legislative power of Parliament. A.V. Dicey (Albert Venn Dicey) was an influential British jurist and constitutional theorist, best known for his works on the UK constitution, particularly his theory of Parliamentary Sovereignty and the Rule of Law. Born in 1835 and passing away in 1922, Dicey had a lasting impact on how the British legal system is understood. DICEY3 key principles: 1. Government according to law (there should be legal justification for all state action). 2. Equality before the law (equality means that the law is of general application – the law applies equally to everyone). 3. Constitution arises from the ordinary/common law… emphasis on procedural regularity. (The constitutional principles that work in the UK – there should be certain hallmarks of certain law making behaviour – rules of natural justice: freedom from bias/arbitrariness, non-retrospectivity and the right to be heard before the courts). This states that no one should be a judge in their own case. Everyone also has the right to access both sides of the case. Main Principles: Unlimited Power: Parliament can make or unmake any law. Non-justiciability: Courts cannot question the validity of parliamentary acts. No Parliament can bind its successors: Any law made by Parliament can be repealed by future Parliaments. Key Cases: R (Jackson) v Attorney General UKHL 56: Challenged the legality of the Hunting Act 2004, exploring the limits of Parliamentary sovereignty. Factortame Case (1991): Demonstrated that, under EU membership, UK courts could disapply national legislation conflicting with EU law, which showed limits to Parliament's sovereignty under EU law. https://youtu.be/JMg3SDVZhdE What does the Rule of Law mean? Consider explaining how the Rule of Law ensures that everyone, including lawmakers, government officials, and citizens, is subject to the same laws, and how it provides protections for fundamental rights and justice. 2. The Rule of Law Definition: The Rule of Law is the principle that all individuals and institutions are subject to and accountable under the law. The Rule of Law: Key Aspects: Equality before the law: No one is above the law, including government officials. Fairness and Justice: Laws must be applied consistently and fairly. Legal Certainty: The law must be clear, known, and accessible. Access to Justice: Everyone should have access to legal recourse and independent courts. Key Scholar: A.V. Dicey also outlined the rule of law as a key principle of the UK constitution. Lord Bingham, in The Rule of Law (2010), emphasized that it is not just about formal legal equality but about ensuring fairness and protecting fundamental rights. Key Cases: Entick v Carrington EWHC KB J98: Established the principle that the government cannot exercise power unless it is authorized by law. R (Unison) v Lord Chancellor UKSC 51: Struck down employment tribunal fees on the grounds they restricted access to justice, reinforcing the rule of law. ACCESS TO JUSTICE Dicey’s idea of a fair trial is to follow the rules (nothing really on the idea of habeas corpus). For dicey there is no difference as defendants between a very young person (still an adult) from a poor versus a mature person with lots of money. It is all about the law process applying to them the same (equality). This can be a weakness! This is not the view for those that like the Bingham approach as they like access to justice, not just the ability to go to court. (article 6 ECHR)  Interaction Between Parliamentary Sovereignty and the Rule of Law Tension between Sovereignty and the Rule of Law: Parliamentary supremacy allows Parliament to pass laws that may seem contrary to the principles of the rule of law (e.g., the Public Order Act 1986, which limits free speech in certain contexts). Courts seek to interpret legislation in line with the rule of law principles, but ultimately Parliament’s will prevails. Recent Developments: Brexit and the European Union (Withdrawal) Act 2018: Withdrawing from the EU restored full sovereignty to Parliament, but it raised questions about the courts' role in upholding the rule of law, as seen in the Miller cases. Human Rights Act 1998: Incorporating the European Convention on Human Rights into UK law has allowed courts to challenge Parliamentary legislation that breaches fundamental rights, showing a check on sovereignty. Parliament scrutiny of Government: Government ministers are responsible-collectively and individually-to Parliament. The government derives its authority, democratic legitimacy, and ability to government from parliament by virtue of its majority by scrutinizing the policies, administration and expenditure of government departments. Questions: 1- what is the constitutional relationship between government and parliament? 2- What is the bounder relationship between the parliament and government and the constitutional doctrine of ministerial responsibilities? 3- what is parliamentary scrutiny of government and ministerial responsibility? 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