english public law

• Constitution


  Series of documents which set out fundamental laws
• Uncodified constitution


  • Easier to amend
• Constitution


  • Describes system of territorial government (regions)
  • Sets out charter of fundamental rights
  • Doctrine of constitution coincides with historical moment
• US constitution: created after war of independence
• South African constitution: created after end of apartheid
• UK constitution is not one single document, comprised of various sources as it was not created in one specific place in time
• US and French constitutions were made after specific events (civil war, revolutions) but UK was not, no specific point in time
• Magna Carta 1215


  • Limitation of royal power
  • Became constitutional document as showed fundamental rights
  • Powers that the king had became limited - forced to agree to terms of Magna Carta
  • Reliance of Magna Carta to show that some aspects of constitution are fundamental (right to justice, just trial, liberties)
• Civil War


  1. King lost to parliament

  2. King increasingly worried of parliament authority

  3. King thought he had divine right→ right to arrest MP's

  4. Parliament resisted his authority

  5. King executed for this 1649
• English Bill of Rights 1689


  • James II opposed will of parliament → fled
  • William III offered throne- new king from Holland → became British king
  • Later enacted as Parliament Recognition Act 1689
  • Reduced power of any future king + recognised Parliament power
  • Power vested in king in parliament, not king alone
  • Taxation requires parliamentary approval
  • Protestant monarchy guaranteed
• Sources of UK constitution


  • Statute law
  • Common law
  • European Union law
  • European Convention on Human Rights
  • Legal treatises
  • Law and custom of parliament
  • Royal prerogative
  • Constitutional conventions
• UK constitution becomes increasingly parliamentary in 19th century, becomes more democratic
• Constitutional statutes


  Laws not created by king but through parliamentary process (have to go through Westminster parliament: house of commons and house of lords and royal assent)
• Bill of Rights 1689


  • Limited powers of monarchy- affirmation of parliament
  • Secures protestant succession of monarchy
• Act of Settlement 1701


  • Followed Bill of Rights
  • How royal succession should take place to exclude Roman Catholics
  • Protestant succession
• Act of Union with Scotland 1707


  • Combined Scotland and England
  • Scotland agreed to give up its parliament- if Scottish members partook in English parliament
• Reform Acts of 1832/1918


  • Right to vote extended
  • Movements, struggles = succession of acts
• Parliament Acts 1911-1949


  • Restricted powers of House of Lords
  • Aristocracy growing problem
  • House of Lords not same now as was in 19th century- changed again
• Statute of Westminster 1931


  • Could no longer legislate for dominions without consent (Canada, Australia)
  • Came from Balfour Declaration 1926
  • Slowly withdrew from colonies- gave up jurisdiction
• European Communities Act 1972


  • Able to join EU because parliament made statute
  • Incorporated aspects of Treaty of Rome for it to be valid
• Human Rights Act 1998


  • Incorporated ECHR
  • Recognition of certain citizen rights
• Constitutional Reform Act 2005


  • Change courts- Supreme Court created outside parliament
  • Recognised separation of powers
• EU (Withdrawal Agreement) Act 2020


  • UK still remains subject to some EU laws
  • Kept ECHR aspects
• Thoburn v Sunderland


  Piece of legislation which determines legal relationship between citizen and state qualifies as a statute
• Entick v Carrington 1765


  • Common law: Judicial decisions are binding
  • Halifax acted for government authorised a search of Entick home using general warrant
  • Entick successfully sued government for trespassing
  • Search was abuse of power- no lawful authority
  • Judgement is affirmation of rule of law + sets limits on capacity of crown
• Common law cases provide authority for constitutional principles such as the rule of law
• Large part of law in UK created by judges- referred to as common law
• Constitutional conventions


  • Customary rules which determine how discretionary powers are exercised
  • Not same as laws- cannot be enforced in court
  • Determine conduct of political actors: MP's, ministers, crown, judges
• Jennings' 3 tests for recognising valid convention

  1. Is there precedent? (How often and how consistently has practice been observed?)

  2. Do those operating constitution accept conventions as binding? feel under obligation to act?

  3. Is there good political reason for convention?
• Most constitutional conventions created after 1689: reflect passage of power from absolute monarch to elected parliament from which government is formed (Bill of Rights 1689)
• Emergence of cabinet/PM was an unofficial development
• Last time PM came from House of Lords in 1902- after right to vote extended, democratic legitimacy crucial
• Failure to follow conventions


  • Will lead to legal difficulties (Dicey)
  • Will lead to political difficulties (Jennings)
• Characteristics of UK constitution


  • Reliance on constitutional conventions
  • Constitutional monarchy
  • Common law as constitutional source
• Characteristics of the contemporary UK constitution


  • Human Rights Act 1998 incorporates ECHR into domestic law
  • Devolution of power to Wales, Scotland, Northern Ireland
  • Introduction of Supreme Court
  • EU law remains significant but diminishing source of UK law, despite Brexit
• Constitutional origins of sovereignty


  • Reflected qualifications of absolute power of monarch
  • As king became less prominent- power of parliament increased
• Magna Carta 1215


  Limits by barons but revived numerous times
• English Bill of Rights 1689


  • Effect is to severely limit power of king (can no longer do what he wishes to do, e.g: impose taxes, change state religion without approval)
  • Power under constitution has shifted from monarchy (powers of prerogative) to parliament exercising those powers
• Dicey and legal sovereignty


  • Parliament is supreme law-making authority
  • 1) Parliament has capacity to make and unmake laws without qualification
  • 2) No parliament can bind successors (most recent law will trump older one)
  • 3) No other bodies can challenge validity of primary legislation
• Courts called upon to interpret legislation BUT do not have power to challenge/invalidate primary legislation