Constitutional and Administrative Law Richard O’Neill University of Hertfordshire

Public and private law Public law Private law includes criminal, constitutional and administrative law concerned with interaction between individual and the State Private law includes tort and contract law concerned with interaction between individuals

Constitutional and administrative law What is a constitution? different types of constitutions Flexible/Inflexible Federal/Unitary Presidential/Parliamentary Why does the UK not have a written constitution? Sources of the constitution statutory law common law custom conventions

The constitution Characteristics of UK constitution unwritten separation of powers Parliamentary (legislative) sovereignty rule of law the Royal Prerogative independence of the judiciary Judicial review

Doctrine of Separation of Powers Primary functions of the State Legislature - Parliament law-making Executive - the government and its servants – army, police, etc. law enforcing Judiciary – the Judges apply law and resolve disputes Montesquieu’s theory (18th Century) these three types of ‘power’ should not be concentrated in one person or group Relationships and safeguards executive/legislature/judiciary checks and balances

Separation of Powers

Separation of Powers

Rule of law Developed from writings by Dicey (19th Century) ‘no sanction without breach’ nobody punished unless they have broken a law State should use its power according to agreed rules and not arbitrarily law should govern all no-one above the law public authorities subject to same law as ordinary citizens protection of rights rights not secured by a written constitution but by decisions of judges in ordinary law legal process accessibility procedural fairness checks on abuse of powers – judicial review

Royal prerogative constitutional monarchy role of the monarch and ‘the Crown’ prerogative foreign affairs domestic affairs

Parliament and the Executive Role of Parliament legitimisation of executive scrutiny and influence formation of government The Crown and the Privy Council Royal prerogative constitutional monarchy role of the monarch and ‘the Crown’ prerogative foreign affairs domestic affairs Prime Minster and Cabinet Civil Service Local Government

Supremacy of Parliament Parliament highest source of law no limit on law making by Parliament able to legislate on any subject matter and cannot be bound by predecessors courts obliged to apply the law cannot pass judgement on validity of legislation contrast with countries having a written constitution or Bill of Rights impact of European Union

European Union History and development of European Union United Kingdom Expansion The Institutions European Commission Council of Ministers Court of Justice European Parliament European Community Law

European Community Law Relationship between EC Law and the Constitution of the UK basic principles sources of EC law primary sources Treaties – fundamental; apply automatically secondary sources Regulations – general application Directives – binding; require implementation decisions – binding on those to whom they are addressed recommendations and opinions- not binding, only to be considered

Civil Liberties and Human Rights forms of civil liberties remedies for infringement of civil liberties Human Rights European Convention on Human Rights background status in UK Law human rights and Parliamentary supremacy Human Rights Act 1998 European Commission on Human Rights European Court of Human Rights relationship with EC law

Constitutional and Administrative Law Constitutional law controls the method of government, Parliament, etc Administrative law branch of constitutional law developed from development of the Administrative State general principles which govern the exercise of powers and duties by public bodies such as local councils, Government departments, or Ministers

Judicial review Designed to keep those persons and bodies with delegated powers within the scope of the power High Court (QBD) Administrative Court; judge with expertise in Public Law Distinction between appeal and judicial review Bodies and decisions subject to judicial review public body exercising public law functions Procedural ultra vires procedural impropriety failure to follow statutory procedure not observed rules of natural justice duty to give a fair hearing; duty not to be affected by bias; doctrine of legitimate expectation

Judicial review Substantive ultra vires Illegality Acting ultra vires – beyond powers Irrelevant considerations Improper purpose Fettered discretion Delegation of discretion ‘Error on the face of the record’ Irrationality Wednesbury unreasonable Associated Provincial Picture Houses v Wednesbury Corporation [1947] 2 All ER 680 CA

Judicial review Procedure Remedies – all discretionary Time limit Leave Locus standi and sufficient interest Remedies – all discretionary certiorari – quashing order mandamus – mandatory order prohibition – prohibiting order injunction declaration Damages Public Interest Immunity and Ouster clauses