English Law/Public Law

Introduction

Public Law (also referred to as Constitutional and Administrative Law) is the law which governs the operation of the state and determines how it functions, who has the authority to make and interpret the law.

The Unwritten Constitution of the United Kingdom

In most states, the use of government power is regulated through a constitution. Questions such as 'Who has the power to make laws?', 'Who has the power to enforce law?', and even 'What types of law are allowed to be passed?' will be answered in a written document or set of documents that defines the role of the state and the boundaries of its powers.

Many constitutions contain a preamble which define its aims, objectives and values. For example, the preamble to the Constitution of India, which was adopted after independence from Britain, states that:

WE, THE PEOPLE OF INDIA having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Preambles like this are useful interpretative aids for judges to base their decisions upon, providing them with a sense of direction and guidance as to the outcomes that their decisions are intended to promote.

The United Kingdom, on the other hand, has no written constitution. It is almost unique in the world (Israel and New Zealand being the other two examples) in that there is no document that defines the government, and even what is and is not a law. The historical reasons for this are long and complex. Many constitutions arise on independence from a colonial power, revolution, after an external or internal conflict or internal political reorganisation. Although these events have taken place throughout the history of the United Kingdom, the institutions of the state were sufficiently entrenched that the production of a constitution was not felt to be necessary or desirable. For example, after the English Civil War of 1642-1651, an Instrument of Government was produced which fulfilled many of the criteria to be a constitution. However, following the restoration of monarchical power in 1660, all documents relating to the constitution were declared void and the pre-Civil War system of government deemed to have continued unbroken.

This institutional stability in the United Kingdom means that the constitution has evolved incrementally, and operated on a series of principles, or conventions, which regulate the behaviour of the various arms of the state. Constitutional conventions are an important feature of English law and serve to give it predictability and flexibility, as they can be discarded as needed.

The Key Principles Underpinning Constitutional Law

Underpinning the operation of English Law are several features, which are usually present in other constitutions, yet operate flexibly to deliver a system of government which by most measures ensures a a significant degree of freedom and liberty for its citizens, although in the modern state there is always tension between the ideal that each represents and its practical application.

Within each page you will find more information about the principle and some of the issues which they present when they are applied by the courts.

The Rule of Law: In the most basic sense, the Rule of Law is the idea that all actions that happen in a society take place within a system of legal authorisation. Society must function according to a system of laws that are stable, predictable and fair. The most extreme alternative proposition is a society where there is no law, all behaviour is unregulated, and anarchy prevails.
The Separation of Powers: The state is divided into three arms (the legislative, executive and judicial functions) which are kept separate in terms of functions and personnel. Dividing the power of the state like this is seen as a way to restrain the tendency of state powers to grow and become all encompassing. It also serves to prevent abuses of power by building restrictions on power into the system.
Parliamentary Sovereignty: The final source of authority in the United Kingdom is parliament. What the concept means is that parliament is sovereign to rule on any topic that it wants, and no other body, such as the judiciary or executive can go against the wishes of parliament. In practice, this concept has been subject to many tests and questions, such as those related to the United Kingdom's membership of the European Union, and the impact of human rights legislation.
The Royal Prerogative: These are the remnants of the absolute authority that was once possessed by the monarch. They are now rarely exercised directly by the monarch, but are usually used on his behalf by members of the executive. The prerogative usually covers issues such as foreign relations, defence, the appointment of ministers, the granting of honours, pardons, and the issuance of passports.

The United Kingdom and the European Union

Although the United Kingdom left the European Union on 31 January 2020, following a referendum result to leave on 23 June 2016, its membership has had a significant impact on both the content and operation of UK law.

Human Rights

The impact of the principles contained in the European Convention on Human Rights (ECHR), although present in the common law for several centuries, has only been incorporated into UK law relatively recently with the introduction of the Human Rights Act 1998. Although the United Kingdom was one of the founding members of the Council of Europe (not to be confused with the European Union), it has still not ratified the ECHR and in the post World War Two period there was scepticism about the need to incorporate the ECHR into UK law.

With the passing of the Human Rights Act (HRA), citizens of the United Kingdom can take advantage of extra protections from the powers of the state granted under the convention. As of 2023, this is still a contentious issue within the politics of the United Kingdom, and the status of the HRA is uncertain, given the progress of the British Bill of Rights legislation through parliament.

Judicial Review

Judicial Review (JR) is the primary tool by which courts exercise oversight of the actions of the executive. Its scope has been developed and restricted in a number of ways through a series of cases. As of 2023, there are proposals to define the operation of judicial review using legislation in parliament, as it currently largely operates under the Common Law, through judicial precedent.

See also: Judicial Review Procedures, Grounds for Judicial Review