PUBLIC LAW
� Constitutions overview
� Separation of powers
� U.K constitution in focus
� Conventions
� Key events affecting the U.K constitution
- Electoral system
- House of Lords
Written Unwritten What do they do?
Supreme law Ordinary law State is soverign
(higher law) and conventions
Unconstitutional Unconstitutional Acts are of the crown
acts are illegal acts are wrong
Legitimises power Regulates state power
Separation of powers/institutional relationships
v Executive: Implements policy according to the law
v Legislature: Makes law
v Judiciary: Jurisdiction of law
A written constitution such as that of the United States would have a complete separation of powers.
Separating the powers would prevent abuse of power according to John Locke. In the U.K the Lord Chancellor (currently Lord Lairg) is part of all three and the 26 Law Lords in the House of Lords are part of the legislature and judiciary (though effectively have little control over legislating.
� Parliament lies at the centre
� Parliament is sovereign
� Legal Sovereignty is the LEGISLATIVE SUPREMACY OF PARLIAMENT
� Legal Sovereignty is the LEGISLATIVE SUPREMACY OF PARLIAMENT
Coventions are rules which are not laws but are generally adhered to for the successful running of an unwritten constitution that is not to be acted in contrary to. Key theorist is A.V Dicey
Electoral system
� 1832 AND 1867: Reform acts-Reformed the electoral system. Prior to 1832 only men with property could vote. In 1867 this was extended to all men.
� 1918: Women over 30 allowed to vote.
� 1928: Representation of peoples act-Men and women over 21yrs of age allowed to vote.
1911: Parliament act: Salsbury doctrine established after Lloyd George threatened to flood Lords with govt. appointees after Lords refused to pass much legislation.
1949: Parliament act: Reduced power of delay to 13 months.
1958: Life Peerage act: Established life peers. Appointed by the P.M and allowed into Commons without election by permission from P.M. Thatcher notably did this with Lord Young who she created a life peerage for and took him to Commons as DTI secretary straight away. There are approximately 300 life peers in the Lords at the moment.
1963: Peerage act: Allowed women to sit in the House of Lords for the first time.
PUBLIC LAW 2
Constitutional Law consists of
� Constitutional conventions
� DEVOLUTION
� Scottish Devolution
� Welsh Devolution
� CONSTITUTIONAL ARRANGEMNENTS
� Bill of Rights (1689)
� Case of Proclamations (1611)
� Parliamentary Supremacy
� Propositions of Parliamentary Supremacy
� TESTING TRADITIONAL THEORY
� PARLIAMENT IS OMNICOMPETENT
� Case of Burmah Oil Vs Lord Advocate (1965)
� War Damages Act (1965)
� War Crimes Act (1991)
� European Convention of Human Rights
� Dominions (Case of Canada)
� Manuel Vs Attorney General (1982)
Constitutional Law consists of-:
� Common Law
� European Community Law
� U.K Legislation
a) Statute Law
b) Statutory Instruments
c) Delegated Legislation
d) Royal Prerogative (which acts of Parliament are antecedent to)
It should be noted that legislation which relates directly to the constitution is nearly always only Statute Law and European Community Law.
Also in PUBLIC LAW 1 (briefly)
These are rules of the constitution which are not entrenched in legal form but are to be adhered to for the benefit of upholding the values which the constitution represents.
Examples include-:
v Constitutional Monarchy: Though the Monarch has the authority and power to refuse any of Parliaments business and create it�s own laws independent of Parliament; it is a convention that it does not. The Monarch officially appoints a Prime Minister but allows the party to elect him or her by convention. The Monarch also has the power to decide general election dates which by convention is left to the Prime Minister.
v Collective Responsibility/ministerial responsibility: The principal is that a party sticks together and supports the party stance (when in government). If a member of the party disputes party agenda or votes against party policy, they are supposed to resign in the public interest. If a minister fails in his job, the whole cabinet should resign (theory, not practise). This convention was abandoned temporarily in 1979 when the two main parties were both split on whether the U.K should remain in the EEC before a referendum on whether we should leave it.
� 1979 Devolution bill failed due to benchmark of 40% of electorate to vote yes. However over 50% of voters voted yes
� 1997 September 11th 74% voted in favour of devolution and 60-65% voted in favour of tax varying powers. There was no proviso of a benchmark to be passed.
� Scottish Parliament is a Lab-Lib coalition (legitimacy question over influence of the Lib Dems).
� West Lothian question
� Very powerful Parliament. Powers of some primary legislation and much secondary legislation.
� Already had it�s own legal system
� Democratic deficit addressed
� Donald Dewar (Lab), Alex Salmond (SNP) and Jim Wallace (Lib Dem).
Wales
� 1979 Devolution bill failed due to majority of the voters voting against it and the benchmark failing.
� 1997 September 18th 51% turnout and 50.3% Yes vote. No benchmark needed. Termed �Yr ie Bychan�(the little yes). Only one quarter of electorate voted yes so legitimacy is questioned. Was it constitutional to take a step towards breaking up the union upon the vote of only one quarter of the electorate. Psephologists claim the �bandwagon� affect also played a role only seven days after the Scottish resounding �yes� vote.
� The democratic deficit has been addressed.
� Lib-Lab coalition (question of legitimacy of Lib Dems influence)
� Very weak Welsh Sennett with no primary legislative powers. Some secondary powers, though less than Scotland. Working upon a grant from Westminster.
CONSTITUTIONAL ARRANGEMENT
Bill of Rights (1689)
Still represents the constitutional settlement between the powers of the crown and those of Westminster.
Taxation: - The Bill of rights reserved exclusively power to raise taxes for parliament under section 4 of the bill.
Crown�s powers: - The Bill of rights also abolished the crowns powers of suspending laws and statutes under sections 1 and 2.
Case of Proclamations (1611)
The King has no prerogative other than that which Parliament and the courts allow him.
Parliamentary Supremacy
This is the Legal doctrine, the LEGAL SUPREMACY OF PARLIAMENT. Parliament is able to make or unmake any law.
Propositions of Parliamentary Supremacy
1) Parliament is Omnicompetent: It has the power to do as it pleases.
2) Parliament is the supreme law maker: It�s laws are antecedent to the Monarchs, common law, international law and delegated legislation.
3) Courts unable to question Parliaments legislative supremacy: The Courts have to enforce Parliaments wishes.
4) Each Parliament is �born free�: No Parliament can bind the hands of a future Parliament.
Testing traditional theory
Parliament is Omnicompetent
CASE OF BURMAH OIL Vs LORD ADVOCATE (1965)
Burmah Oil won compensation for the destruction of an installation by the crown in WW2 which was only destroyed to halt the oncoming Japanese. The destruction was at the time legal but compensation was claimed.
War Damages Act (1965)
As a reaction to the Burmah Oil Co Vs Lord Advocate case, this legislation was passed. It refused compensation for damages for acts of the crown present, future and past.
War Crimes Act (1991)
Persons can be prosecuted and convicted in the U.K for crimes committed in other countries if they are or were at the time of the crime a U.K citizen.
European Convention of Human Rights
Article 7 prohibits retrospective criminal legislation. That means that persons cannot be prosecuted for past events. This directly contravenes the 1991 war crimes act and therefore undermines Parliaments legislative supremacy and omnicompentency.
DOMINIONS (CASE OF CANADA)
v Canada as a dominion is an independent state which is a member of the British commonwealth.
v Britain created it�s constitution and only the U.K parliament can amend to it. The 1867 British North America Acts gave Canada a constitution (written) but refused the Canadian government ability to change it.
v The �Statute of Westminster 1931� allowed Canada to legislate contrarily to Westminster.
v As a dominion it is not subordinate to Westminster but it does have allegiance to the British crown.
Manuel Vs Attorney General (1982)
Canada wanted to have power to amend it�s own constitution. They won the right to in court. The CANADA ACT was then passed to allow Canada the power to amend it�s constitution. Parliament did not have to pass the act despite the courts ruling which served only as a suggestion due to Parliament being the supreme law maker.
Pickin was a railway enthusiast. He owned the adjoining piece of land to a disused railway line. He claimed that as the owner of the adjoining land that he had a legal right to own the land and the interests in it. This belief was from the private act of Parliament in 1836 section 259 which set up the individual railway line. Section 259 provided that if the line should be abandoned , the lands acquired for the track should vest for the time being of the adjoining lands. However the railway board refuted the claim and pointed to the British Railway Act s18 (private provision) stating to the contrary. Pickin claimed that s18 of the 1968 act was illegal as it had not been passed through Parliament correctly as the affected landowners such as himself had not been given notice of the standing order.
Lord Reid said �the
idea that a court is entitled to disregard a provision in an Act of Parliament
on any ground must seem strange and startling to anyone with any knowledge of
the history and law of our constitution� He continued to pass judgement and
refute Pickin�s claim that the provision was invalid. He did however agree to
uphold Pickin�s claim under the 1836 act. Lord Reid did say that �the function of this court is to construe
and apply the enactments of Parliament. The court has no concern with the
manner in which Parliament or its officers carrying out it�s standing orders
perform these functions.�
PUBLIC LAW 5
� EACH PARLIAMENT IS BORN FREE IN QUESTION
� Act of Union 1800 (with Ireland)
� Case (MANNER AND FORM THESIS)
� Attorney General for New South Wales V Trethowan and Others
� Harris V Minister of the Interior
� EUROPEAN UNION AND COMMUNITY
� Structure of the European Union
� Enlargement of the European Union
� European Commission (GENERAL)
� Coreper
EACH PARLAIMENT IS BORN FREE IN QUESTION
Act of Union 1800 (With Ireland)
The act stipulated that �Ireland shall forever remain part of the United Kingdom�. The question is whether this is binding on all Parliaments present and future. The answer is yes. This is because when the act was passed Parliament was different in that it did not include representation for Ireland. The act of Union came before the parliament in its present constitutional state and therefore it must be antecedent to Parliament. In effect the act of Union is a form of constitutional law which is a supreme form of law.
Attorney General for New South Wales V Trethowan and Others
Concerned two acts of Parliament.
1865 Colonial Laws Validity Act (passed by UK Parl.) s. 5: The legislature of New South Wales had full power to legislate for it�s own constitution, powers and procedure, provided that these laws were passed in the �manner and form� required by the law at the time whether it be imperial or colonial
The Constitution amendment Act 1929 (passed by N.S. Wales) s. 7A: Amended the 1902 constitution act to include the proviso that no bill for abolishing the Legislative Council should be presented to the governor for his majesties assent until it had been approved my a majority of electors voting in a referendum, and further, that any bill to repeal this referendum requirement must also be approved by a referendum.
In 1930 after a change in government both houses of legislature passed two bills. One was to repeal s. 7A of the 1929 act and the other to abolish the Legislative Council. Neither act was passed first by referendum as required under s 7A of the 1929 act. The plaintiffs were members of the Legislative council who claimed the bills were ultra vires.
Lord Sankey LC held that the 1865 act was a higher form of Law than the 1930 bills would have been so it must be followed. He held that under s. 5 of the 1865 act section 7A of the 1929 act was valid and should have been followed. Therefore the two bills were ultra vires. Parliaments hands were binded.
Concerned two measures of Parliament.
1909 South Africa Act (passed by UK Parl.) s. 152: Established the right for all black South Africans to vote in elections. It also made law that the right could only be abolished by a special majority of the South African legislature.
1951 Bill (South African Parliament): Passed a bill to remove the right to vote for Black South Africans. The special majority law needed under s. 152 was not followed or met.
The case involved the plaintiff claiming that the 1951 bill was Ultra Vires. The claim was successful because the 1909 act was the supreme form of law and therefore binding on the South African Parliament. The manner and form thesis of the of s. 152 of the 1909 act was followed using Attorney General of New South Wales V Trethowan and Others as the ratio decidendi.
� When looking at �Europe�, the only Treaty of interest is the EEC Treaty, not the EC Treaty.
� The three treatties are usually referred to in the singular as Europe.
� The Merger Treaty, 1965 merged the institutions but NOT the treatties.
� Maastricht: 3 communities subsumed within broader structure of the European Union. Process consolidated by Amsterdam Treaty 1997.
Common Foreign and European Co-operation on
Security Policy Community Justice an Home Affairs
(2nd Pillar) (1st Pillar)
(3rd Pillar)
Y 1st Pillar: Although the European Community, as set up by the EC Treaty is part of the European Union, it continues to have it�s on Treaty-it continues to have it�s own law.
Y 2nd Pillar: Measures past under this pillar must have consent of each member state. Each one holds a veto.
Y 3rd Pillar: Measures past under this pillar must have consent of each member state. Each one holds a veto.
v The EC Treaty is concerned purely with provisions concerning the free market.
v The European Court of justice has no competence regarding the 2nd an 3rd Pillars (only the 1st-European Community).
� Currently 15 members. Some former Eastern Bloc countries have applied to join (repercussions on reform of the Common Agricultural Project likely). They will probably be admitted in 2003.
European Commission (GENERAL)
q 20 members from member state governments (each with one or two). Renewable periods of 5 years.
q Former Presidents include Roy Jenkins, Leon Britton, Chris Patten and Neil Kinnock.
q Kinnock and Patten the current UK reps..
q UK reps chosen by the PM. It is a tradition that he or she allows the opposition to choose one. Patten wasn�t the Conservatives choice. Blair chose both without consulting the Conservative Party.
q Current President if former Italian PM, Prodi. He has referred to the commission as �the government� and called for it to have it�s own army. President is on a renewable 2 year term. President�s are not representatives of their country. They are independent.
q Mass resignation of Commission in June 1999 due to corruption. Remember Edith Cresson.
q Task of the Commission is to ensure the Treaty of Rome 1957 which set up the EEC.
q States failing to comply with the commission can be compelled to by the ECJ.
q Separate councils for separate policy areas. Each one cannot act without proposals from the commission. Once legislation has been initiated the council can then act as it sees fit and consider.
� Often argued that this is where power really lies.
� Makes arrangements for all meetings etc.
� Consists of one member from each state. Normally a high ranking civil servant-Mandarin.
� Legislation can be passed.
� Unanimity sometimes needed (i.e. on tax matters). Each member state has a veto.
� Qualified Majority Voting is sometimes used. Each member state has a weighted vote. Larger economic states such as the UK have a large weighting.
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� Institutions of the EU
� Council of Ministers
� European Parliament
� European Commission
� Court of Justice
� Preliminary ruling procedure
� Article 234
� Relationship between the ECJ and UK courts
� Case (WHEN TO CALL ON THE ECJ)
� Bulmer V Bollinger
� Cilfit s & Ministro della Sanita (the Cilfit case)
� When shouldn�t the ECJ be referred to?
� Sources of EC Law (and each ones effect)
� Direct effect
� Case (DIRECT EFFECT OF DIRECTIVES)
� Van Duyn V Home Office
� Case (PRINCIPLE OF SUPREMACY)
� Van Gend en Loos V Netherlands Admistratie de Belastingen
� Costa V ENEL
� International Handelsgellschaft
� Incorporation of EC Law into Domestic Law
� Monism
� Dualism
� Case (SUPREMACY OF EC LAW)
� Macarthays Ltd V Smith
� R V Secretary of State for Transport ex parte Factortame Lt
INSTUTUTIONS OF THE EU
v Council of Ministers
v European Parliament
v European Commission
v Court of Justice
Each member state is represented by their head of government or someone on their behalf. The council presidency runs on a six month rota. Each member state holds presidency for six months. This does mean little however as there are conventions that states do not abuse their presidency for personal gain or interests.
Summit meetings take place from time to time when heads of government meet to discuss broad policy areas. This is when treatties are formed such as Maastricht and Amsterdam.
� Directly elected by each member state.
� Based in Strasbourg
� 13 annual meetings, each one lasts for about five days
� Was purely a consultative body � more power since Maastricht.
� Parliament can refuse financial or non-financial bills.
� Can veto legislation on many key issues such as health and education.
Headed by former Italian Prime Minister, Prodi who has referred to it as the government and has called for it to have it�s own army. Each member state has two representatives (Neil Kinnock and Chris Patten). It decides policy on many areas and passes it to the European Parliament for final ratification. The entire Commission resigned in June 1999 under the principal of collective responsibility after some sleaze such as from Edith Cresson.
Do not confuse this court with the European Court of Human Rights.
� Based in Luxembourg
� No appelant cases
� 16 Judges
� Can fine member states for breaking EU law
� Only give preliminary rulings
The Preliminary ruling procedure
EC, Article 234 (pre Amsterdam Article 177)
The Court of Justice shall have jurisdiction to give preliminary rulings concerning-:
a) The interpretation of the Treaty
b) The validity and interpretation of acts of the institutions of the community and the European Central Bank (ECB)
c) The interpretation of the statutes of bodies established by an act of the council, where those statutes so provide
Where such a question is raised before any court or tribunal of a Member State that court or tribunal may, if it considers that a question is necessary to enable it to give judgement, request the Court of Justice to give it a ruling thereon.
Where any such question is raised before any court or tribunal of a Member State against whose decision there is no judicial remedy under National Law, that court or tribunal shall bring the matter before the Court of Justice.
EU law takes precedence over domestic law. Therefore there must be a uniform interpretation of the law to implement it in a very similar way. The ECJ has cases referred to it when-:
1) member states are unsure over European points of law
2) member states are unsure over the validity of SECONDARY legislation by EU bodies.
The ECJ assesses cases on justice, not common law. There are no binding precedents. Justice is there to be held.
Case (WHEN TO CALL ON THE ECJ)
Lord Denning said the courts must feel unable to judge on a case if they are to send it to the ECJ. The ECJ is nothing more than the court of last resort.
Cilfit s & I Ministro della Sanita (the cilfit case) (1982) ECR 3215 (1983) 1 CMLR 337 (ECJ)
The ECJ was asked to rule on Paragraph 3 of Article 234 (point C in my notes). The court held that there is no duty to refer to the ECJ when the interpretation of EC law is irrelevant-that is the outcome would remain the same regardless of the interpretation of a point of law, the ECJ should not be referred to. The ECJ is again merely the court of last resort.
� The question of interpretation of EC law is irrelevant as it would have NO BEARING ON THE RESULT of the case.
� A previous judgement of the ECJ has covered substantially the same point of law.
� Doctrine of � clair�: that is when the meaning of EC legislation should be obvious to all member states.
Primary Legislation: EC Treaty as amended (by Amsterdam, Maastricht etc.)
Secondary Legislation: Comes In the following-:
� Regulations
� Directives
� Decisions
� Recommendations and Options (non-binding)
EC, Article 249 (formerly 189) defines secondary legislation as follows-
� A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
� A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form or methods.
� A decision shall be binding in it�s entirety upon those whom it is addressed.
� Recommendations and opinions shall have no binding force.
Direct Effect is linked and partly derived from Article 10 (formerly Article 5):
Member states shall take all appropriate measures, whether general or particular, to ensure the fulfilment of the obligations arising out of this Treaty or resulting from action taken by institutions of the community. They shall facilitate the achievements of community tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.
NB: This binds the UK courts because EC Law is part of the domestic law.
Case (DIRECT EFFECT OF DIRECTIVES)
Van Duyn V Home Office
Van Duyn was a Dutch woman who wished to enter the U.K for citizenship. She believed that she was entitled to enter the UK under Article 48 (free movement of peoples within the EC). She wanted to enter the UK to join the Church of Scientology. The Home Office claimed this would be contrary to public policy as it was not a worthwhile advantage to the UK for her taking residency. The Home Office pointed to directive 64/221 Article 3(1) which stated �measures taken on grounds of public policy and public security shall be based exclusively on the personal conduct of the individual concerned� The ECJ saw no reason why Public Policy should be upheld here and held in favour of the plaintiff. The ECJ held that �(it would be) incompatible with the binding effect attributed to a directive by article 189 (now Article 249 which is above) to exclude, in principle, the possibility that the obligation which it impose may be invoked by those concerned.�
Case (EC LAW-PRINCIPLE OF SUPREMACY)
Van Gend en Looss V Hederlandse Administratie der Belastingen
The plaintiff was a firm importing glue from Germany. The import tariff was originally 3% at the time of the treaty but was then raised to 8%. The plaintiff claimed this was ultra vires as contrary to Article 12. Article 12 states Member states shall refrain from introducing between themselves any new customs duties on imports or exports or any charges being equivalent effect, and from increasing those which they already apply in any trade with each other. The ECJ established that the article was directly applicable and therefore gave a preliminary ruling that it was ultra vires. The Commission upheld this ruling. The plaintiffs claim was successful.
Costa V ENEL
Mr Costa refused to pay an electricity bill on the grounds that the nationalisation of the industry (which was after the treaty) contravened Articles 102,93,53 and 37 of the EEC treaty. The Italian magistrates court asked for a preliminary ruling from the ECJ. The ECJ ruled that subsequent national measures cannot take precedence over EC law and that whilst Arts 53 and 37(2) produced direct effects creating rights for individuals which national courts must protect, this was not so for Arts 102 and 93.
Internationale Handelsgesellschaft
The Plaintiff, a German company, had to obtain a license to export cornflour. EC provisions required a performance deposit, that is if the licensee failed to export the required amount, their deposit would be lost. The plaintiff failed to export the required amount and duly lost their deposit. They claimed that the provision was contrary to the constitution of West Germany. The court felt unable to give a ruling against it�s constitution without the support of the ECJ. The ECJ held that the provisions should be upheld, that EC law was antecedent to West German Constitutional Law. The plaintiffs case failed.
Incorporation of EC Law into Domestic Law
EC Law takes precedence over domestic law. This is shown in s2(4) and s2(1) which should be read as continuous prose one after the other to be fully understood.
s2(4): �any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed as having effect subject to�
s2(1): �all such rights (and remedies) from time to time created or arising by or under the Treatties�
However, incorporation varies from state to state. There are two models. They are Monism and Dualism.
Monism
Present in the France (amongst others). Any EC law is automatically part of Monist state domestic law.
Dualism
Present in the UK. EC law and domestic law are completely separate. The UK has an obligation under the Treaty to pass EC legislation through Parliament. This takes time as procedures have to be met. In the time between EC law being passed in the EC and in the UK, domestic Law is antecedent to EC Law. Once passed into UK law, EC law is antecedent to domestic law.
Case (SUPREMACY OF EC LAW)
Macarthays Ltd Vs Smith
Concerned Barbara Castles Equal Pay Act 1970. The UK act states that equal pay for workers contemporaneously employed regardless of gender if they are doing similar work. The Plaintiff claimed a man who previously held her job was paid more and therefore so should she. She was able to rely on EC law which allowed a previous employee to be an example to go by.
R V Secretary of State for Transport, ex parte Factortame Ltd
Council of Ministers fixed fishing quotas for fishing fleet of each member state of the EC. To enforce the quotas there must be a mechanism in domestic law to decide who is each states fleet. The UK�s 1988 Merchant Shipping Act made Britains fishing vessels register as British. Only British owned vessels could be registered. This included vessels 75% owned by British shareholders or corporate owners who were resident in the UK. When the act was bought into affect there were 95 fishing vessels previously British but held in Spain which could not be registered as British. The owners of the 95 vessels challenged the 1988 act on grounds that it was contrary to provisions of EC law having direct effect.
Court of First Instance: Asked for Preliminary ruling from the ECJ which was very busy. By the time that a ruling could have been given, the vessels would have gone bankrupt. The Plaintiffs applied for interim relief (suspension of the act for two years which would have contradicted Dicey�s proposal that the courts are incompetent to question Parliaments authority). The Courts allowed the Interim Relief.
Court of Appeal: The Secretary of State appealed that the Interim Relief was ultra vires. The Court agreed with the Secretary of State.
House of Lords: The Vessels appeal to grant interim relief was at first turned down. The House of Lords applied for a preliminary ruling from the ECJ. Interim Relief was granted as the ECJ ruled that the House of Lords should rule against the 1998 act. The courts were enabled to question Parliaments authority.