Public Law is a fascinating and foundational subject for any aspiring lawyer in the UK. For Graduate Diploma in Law (GDL) students, it provides the constitutional and administrative framework upon which all other areas of law operate. This guide delves into the core principles of the UK's unique constitution, including parliamentary sovereignty, the rule of law, and the separation of powers. We will also explore the crucial mechanism of judicial review and the impact of the Human Rights Act 1998, providing a solid foundation for your studies and future career.
💡 Key Takeaway
GDL Public Law is about understanding the relationship between the individual and the state. It governs the exercise of power by public bodies and provides the legal mechanisms to hold them accountable. Mastering these concepts is not just for exams; it is essential for understanding the entire legal system of England and Wales.
Parliamentary Sovereignty: The Cornerstone of the Constitution
The most fundamental principle of the UK constitution is parliamentary sovereignty. In its traditional form, as articulated by A.V. Dicey, it means that Parliament is the supreme law-making body. It can create or repeal any law, and no other body (including the courts) can question the validity of an Act of Parliament. A classic case demonstrating this is Pickin v British Railways Board [1974] AC 765, where the House of Lords refused to investigate the internal proceedings of Parliament.
Modern Challenges to Sovereignty
However, this traditional view has been challenged. The UK's membership of the European Union (prior to Brexit) required EU law to take precedence, as seen in the Factortame litigation. More recently, the power of the executive to prorogue Parliament was limited by the Supreme Court in R (Miller) v The Prime Minister [2019] UKSC 41, showing that even prerogative powers are subject to legal limits. The devolution of power to Scotland, Wales, and Northern Ireland also adds a layer of complexity to the simple Diceyan view.
The Rule of Law: A Contested Concept
The rule of law is another core constitutional principle, ensuring that the state governs according to law and not by arbitrary power. It acts as a check on the executive and legislative branches. The classic exposition comes from Entick v Carrington (1765) 19 St Tr 1030, where it was established that the state must have legal authority for its actions.
Defining the Rule of Law
There are competing definitions of the rule of law. The formalist view, associated with Dicey, focuses on the procedural aspects: no one is punishable except for a breach of law, everyone is equal before the law, and rights are protected by common law. The substantive view, championed by Lord Bingham, argues for a more expansive definition that includes the protection of fundamental human rights.
| Dicey's Formal View | Lord Bingham's Substantive View |
|---|---|
| Focus on legality and formal process. | Includes protection of fundamental rights. |
| Equality before the law. | Law must be accessible, intelligible, clear, and predictable. |
| No arbitrary power. | Ministers must act in good faith and for the purpose conferred. |
The Separation of Powers
The separation of powers doctrine, attributed to Montesquieu, advocates for the division of state power into three distinct branches: the legislature (Parliament), the executive (government), and the judiciary (courts). The idea is to prevent the concentration of power and create a system of checks and balances. In the UK, however, there is a significant overlap, often described as a 'fusion of powers'.
In M v Home Office [1994] 1 AC 377, the House of Lords held that the Home Secretary could be found in contempt of court, a powerful assertion of judicial independence against the executive. Lord Templeman noted, "the executive carries out the laws and the judiciary enforces the laws."
The Constitutional Reform Act 2005 significantly reformed the separation of powers by creating the Supreme Court (separating the highest court from the House of Lords) and reforming the role of the Lord Chancellor to reduce the fusion between the branches.
📝 Exam Tip
In a problem question on public law, always start by identifying the relevant constitutional principles at play. Is it a question of parliamentary sovereignty being challenged? Is an executive action potentially contrary to the rule of law? Use cases like R (Jackson) v Attorney General [2005] UKHL 56 to discuss the limits of Parliament's power.
Judicial Review: Holding the Executive to Account
Judicial review is the legal process by which individuals can challenge the lawfulness of decisions made by public bodies. It is a vital tool for upholding the rule of law. It is not an appeal on the merits of the decision, but a review of the decision-making process.
Grounds for Judicial Review
- Illegality: The decision-maker must understand the law that regulates them and give effect to it. This includes acting for a proper purpose and taking into account relevant considerations. See R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513.
- Irrationality (Wednesbury Unreasonableness): A decision can be quashed if it is "so unreasonable that no reasonable authority could ever have come to it." This is a high threshold, established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
- Procedural Impropriety: This includes the breach of express statutory procedures or the rules of natural justice (the right to a fair hearing and the rule against bias). See Ridge v Baldwin [1964] AC 40.
⚠️ Common Mistake
A common error is to confuse judicial review with an appeal. Remember, judicial review is concerned with the legality of a decision, not its correctness. You cannot challenge a decision simply because you disagree with the outcome. The focus must be on the grounds of illegality, irrationality, or procedural impropriety.
The Human Rights Act 1998 (HRA)
The Human Rights Act 1998 incorporated most of the rights set out in the European Convention on Human Rights (ECHR) into domestic UK law. This was a landmark constitutional change, allowing individuals to enforce their Convention rights in UK courts.
Key Provisions of the HRA 1998
- Section 3: Requires courts to read and give effect to primary and subordinate legislation in a way which is compatible with the Convention rights, so far as it is possible to do so.
- Section 4: If a court cannot interpret legislation to be compatible, it can issue a 'declaration of incompatibility'. This does not invalidate the Act but puts political pressure on Parliament to amend it.
- Section 6: Makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.
A key case on the HRA is A and others v Secretary of State for the Home Department [2004] UKHL 56, where the House of Lords made a declaration of incompatibility regarding the indefinite detention of foreign terror suspects, finding it disproportionate and discriminatory.
FAQs for GDL Public Law
What is the difference between constitutional and administrative law?
Constitutional law deals with the fundamental principles and structure of the state (e.g., parliamentary sovereignty, separation of powers). Administrative law is the branch of public law that deals with the relationship between the state and the individual, focusing on the legality of government action and the mechanism of judicial review.
Is the UK constitution really 'unwritten'?
It's more accurate to say it is 'uncodified'. While there is no single constitutional document, many sources are written, including Acts of Parliament (like Magna Carta 1215, Bill of Rights 1689, HRA 1998), common law (case law), and constitutional conventions.
Can Parliament really pass any law it wants?
In theory, yes. This is the essence of parliamentary sovereignty. However, in practice, this power is constrained by political reality, international law, and the rule of law. The courts have also hinted at the existence of common law constitutional principles that even Parliament might not be able to override, as discussed in R (Jackson) v Attorney General.
What remedies are available in judicial review?
The main remedies (known as 'prerogative orders') are a quashing order (which invalidates the decision), a mandatory order (which compels a public body to act), and a prohibiting order (which prevents a public body from acting). Damages and declarations are also available.