Writing a public law essay…
The UK Constitution
This is the time of year when students are sitting down to write essays on Public Law. Universites love asking vague questions about the UK Constitutional. What is the most important principle? The most important concept is arguably the rule of law.
Here's a breakdown of why the rule of law is so vital, along with other key aspects of constitutional and administrative law:
The Rule of Law as a Foundation:
The rule of law is a fundamental principle that dictates that everyone, including the government and its officials, is subject to and accountable under the law. It ensures that no one is above the law.
The rule of law prevents arbitrary use of power by the state, and provides a framework for an orderly and just society.
It requires that laws should be clear, accessible, predictable, and applied equally to all.
According to Lord Bingham, the law must give adequate protection to human rights.
The courts are an essential mechanism for enforcing the rule of law and it is considered the ultimate controlling factor in the UK constitution.
Separation of Powers
The separation of powers is another vital principle that divides governmental authority among the legislative, executive, and judicial branches. This division prevents any one branch from becoming too powerful.
Each branch has its own specific functions: the legislature makes laws, the executive applies and administers laws, and the judiciary interprets and resolves disputes about the law.
A system of checks and balances is essential so each branch can control the potential abuse of power by another branch. An independent judiciary is crucial to secure the rule of law by preventing arbitrary or oppressive government. The judiciary ensures that other branches adhere to the rule of law.
Parliamentary Sovereignty
Parliamentary sovereignty is a key principle in the UK constitution, stating that Parliament is the supreme law-making body. It can make or unmake any law.
No court can question the validity of Acts of Parliament.
However, the judiciary can declare a statute incompatible with the Human Rights Act 1998 and may strike down legislation that infringes the rule of law.
Judicial Review
Judicial review is a process that allows the courts to review the lawfulness of decisions and actions taken by public bodies. It is a vital check on the executive branch.
It ensures public bodies are accountable and act within their legal powers.
Judicial review does not concern the merit of a decision, but the manner in which a decision was made.
Accountability
A core focus of administrative law is to ensure that those who exercise public power are accountable. Public authorities are required to explain and justify their actions.
Ministerial accountability is a constitutional convention where ministers are held accountable to Parliament for government actions.
Human Rights
The protection of human rights is a crucial aspect of both constitutional and administrative law which is enshrined in the Human Rights Act 1998.
The HRA requires public authorities to act in a way that is compatible with Convention rights.
Other Considerations
Legitimate Expectation: Public bodies should keep promises and adhere to long-standing practices.
Equality: All people should be equally protected by the law.
Fairness: The decision-making process of public bodies must be approached with fairness.
Natural Justice: The rules of natural justice, such as the right to a fair hearing and the rule against bias, must be followed.
Proportionality: When limiting a fundamental right, the action must be proportionate.
In summary, while principles like the separation of powers and parliamentary sovereignty are important, the rule of law stands out as the most vital concept in constitutional and administrative law. It provides the overarching framework for ensuring that power is exercised fairly, transparently, and in accordance with established legal principles, thus safeguarding individual liberties and maintaining a just society.
