Cameron Miranda
Constitutional and administrative law can be challenging to understand, especially for those new to the field. Constitutional law focuses on the core institutions of the state and their interrelation, covering areas like legitimacy, the rule of law, and the separation of powers. Administrative law, on the other hand, deals with the legal framework for public administration, encompassing the organisation, powers, and functions of public authorities. While there is no universally accepted definition of administrative law, it is of constitutional, political, and juridical importance. To effectively revise for this subject, it is essential to have a clear understanding of these fundamental concepts and their real-world applications, such as public order, human rights, and the evolving status of EU law in the UK post-Brexit.
| Characteristics | Values |
|---|---|
| Constitutional theories and their workings in the UK | Legitimacy |
| Rule of law | |
| Separation of powers | |
| Interrelation of core institutions of the state | |
| Their respective roles in the constitution | |
| Key areas | Public order |
| Human rights | |
| Status of EU law in the UK constitution following Brexit | |
| Parliamentary sovereignty and parliamentary privilege | |
| Central government and devolved institutions | |
| The Crown and the Royal Prerogative | |
| Legislation, primary and secondary | |
| Judicial review |
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What You'll Learn
Constitutional theories and their workings in the UK
The UK's constitution is spread across various sources, including specific Acts of Parliament, constitutional conventions, and judicial decisions. This dispersal can make it challenging to identify and comprehend. Here are some key constitutional theories and their workings in the UK:
- Parliamentary Sovereignty: This theory suggests that Parliament has supreme law-making authority and can pass, amend, or repeal any legislation without legal constraints. While the concept has evolved, the House of Lords upheld the Parliament Act 1949 and the Hunting Act 2004 as valid, demonstrating the continued relevance of parliamentary sovereignty.
- Rule of Law: Widely regarded as a fundamental principle, the rule of law asserts that laws should be clear, predictable, equally applied, enforced through fair procedures, protective of human rights, and consistent with international law. Lord Reed emphasised the "constitutional right of access to courts" as inherent in the rule of law, ensuring laws are upheld and democracy preserved.
- Separation of Powers: Baron de Montesquieu originally advocated for a strict separation of the executive, legislature, and judiciary to maintain the rule of law. In the UK, this separation is reflected in the distinct roles of the government, Parliament, and the courts, respectively.
- Constitutional Monarchy: Shaped by the ideas of political journalist Walter Bagehot, the UK's constitutional monarchy balances the powers of the monarch and the elected government. While the monarch has formal authority, the government exercises effective power, with ministers accountable to Parliament and ultimately the electorate.
- Uncodified Constitution: The UK's constitution is uncodified, meaning it lacks a single, written constitutional document. Critics argue that this makes the political system vulnerable to abuse, with limited checks on a powerful government's ability to alter rules or rush through changes. Supporters view the uncodified constitution as pragmatic, allowing for gradual evolution.
- European Union Law and International Treaties: The UK's relationship with the EU and international law has been a significant aspect of its constitutional landscape. The Supreme Court's ruling in R (Miller) v Secretary of State for Exiting the European Union highlighted the interplay between domestic and EU law. Additionally, the UK's interpretation of international treaties, such as the Palermo Protocols, and its position as a supporter of organisations formed under international law, further shape its constitutional approach.
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The core institutions of the state and their interrelation
Constitutional and administrative law can be challenging to understand, but a good textbook can make it much easier. When revising this topic, it is important to focus on the core institutions of the state and their interrelation. This includes understanding the constitutional theories and their workings in the UK, such as legitimacy, the rule of law, and the separation of powers.
The UK constitution is based on parliamentary sovereignty and parliamentary privilege. It includes central government and devolved institutions, the Crown and the Royal Prerogative, primary and secondary legislation, public order law, judicial review, human rights, and the status of EU law post-Brexit. These institutions and concepts are interconnected and play a crucial role in the functioning of the state.
The administrative state is a modern instantiation of the central principles of constitutional order. It includes the institutions of administrative agencies and administrative law, which secure foundational values such as individual liberty and effective government. The administrative state is not about "big government" but about efficient and capable governance through the separation of powers and checks and balances.
Institutional loyalty is an important aspect of constitutional law. It can be observed among officials in all three branches and has played a meaningful role in constitutional law disputes. In the US context, the unbundling of executive power into mandate-specific offices, each elected separately, amplifies institutional loyalty by allowing officials to align with singular goals.
Checks and balances are crucial to the administrative state, ensuring that regulatory authority is legitimate, appropriately structured, and constrained. They help to preserve democracy and enable the realisation of substantive democratic values of equality and inclusion.
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Public order, human rights, and the status of EU law in the UK
Constitutional law can be a challenging topic to grasp, but a good revision guide can make the process much easier. When revising for public order, human rights, and the status of EU law in the UK, it is important to cover the key areas outlined below.
Public Order Law
Public order law deals with the maintenance of peace and order in society. It includes laws related to assemblies, protests, and other forms of collective action. For example, the Public Order Act 1986 in the UK prohibits riotous assemblies and imposes restrictions on public processions and assemblies. Understanding the scope and limitations of public order laws is essential, as they can significantly impact citizens' rights to freedom of assembly and expression.
Human Rights Law
Human rights law in the UK is shaped by both international and regional treaties. As a member of the United Nations (UN) and the Council of Europe (COE), the UK has ratified several important human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), and the European Social Charter. These treaties outline fundamental rights and freedoms that the UK has agreed to uphold, such as the right to life, freedom from torture, freedom of expression, and respect for private and family life.
The Human Rights Act 1998 (HRA) is a crucial piece of legislation that incorporates ECHR rights into UK law. It enables individuals to enforce their rights in domestic courts without having to go through the costly process of taking their case to the European Court of Human Rights in Strasbourg. The HRA also imposes a legal obligation on public bodies, including the police, hospitals, and local councils, to protect and respect human rights.
It is worth noting that the UK's compliance with human rights obligations has been scrutinised. For example, in 2024, there was one judgment finding the UK in violation of the ECHR regarding the right to freedom of expression. Additionally, the potential repeal of the HRA and the UK's exit from the EU have raised concerns about a potential human rights legal deficit, which may be addressed through a British Bill of Rights.
The Status of EU Law in the UK
The UK's relationship with EU law has evolved significantly, especially following Brexit. Before Brexit, EU law played a significant role in the UK's legal system. The European Union (Withdrawal) Act 2018 retained EU law in UK law, converting it into UK law after Brexit. However, the status of EU law in the UK is now subject to interpretation and potential amendment by UK courts and legislatures. The UK is no longer bound by new EU laws or the jurisdiction of the Court of Justice of the European Union.
In conclusion, when revising for constitutional and administrative law, it is important to understand the interplay between public order, human rights, and the evolving status of EU law in the UK. By grasping these key concepts and their practical implications, you will be well-prepared to tackle exam questions and deepen your understanding of this dynamic area of law.
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Parliamentary sovereignty and parliamentary privilege
Parliamentary sovereignty, also referred to as legislative supremacy, is a concept in constitutional law that asserts the legislative body's absolute authority over all other government institutions, including executive or judicial bodies. It implies that Parliament is legally entitled to pass, amend, or repeal any law without being bound by written law or precedent. This concept is particularly relevant in the UK, where the absence of a written constitution gives Parliament broad legislative power.
The UK Parliament's legislative supremacy means that no other body, including the courts, can override Acts of Parliament or invalidate laws once they have received royal assent. This principle, recognised by the monarch and the courts, was established in a series of 17th-century cases. However, it is important to note that while Parliament can acknowledge its law-making power, it cannot confer sovereignty upon itself through statute alone.
In contrast, the concept of parliamentary sovereignty in other countries, such as Australia and New Zealand, is constrained by their federal constitutions and state constitutions. For example, in Australia, the Commonwealth Parliament's law-making power is limited to specific subjects outlined in the constitution, and any alterations to the constitution follow a prescribed mode, further restricting the parliament's power.
Parliamentary privilege refers to the rights and immunities enjoyed by individual members of parliament, enabling them to perform their functions without interference. These privileges include freedom of speech, freedom from arrest in civil cases, and exemption from jury service. They are designed to protect the effective functioning of parliament and its members, ensuring they can carry out their duties and express their opinions without fear of legal repercussions.
In conclusion, parliamentary sovereignty and privilege are fundamental aspects of constitutional law, shaping the relationship between the legislative, executive, and judicial branches of government. While parliamentary sovereignty establishes the legislative body's supremacy, parliamentary privilege safeguards the rights and immunities of individual members of parliament, ensuring their ability to fulfil their roles effectively.
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Central government and devolved institutions
Constitutional and administrative law can be challenging to grasp, but a good understanding of central government and devolved institutions is essential. Here is a detailed and focused guide to help you revise this topic effectively.
Central Government
The central government is the controlling power over a unitary state. It is distinct from a federal government, which has distinct powers at various levels, authorised by a federation and agreed upon by federated states. The central government has the power to make laws for the entire country and maintain national security and international diplomacy, including signing treaties. The structure of central governments varies, but they often consist of multiple levels with overlapping or shared powers as outlined in the constitution or other laws.
Devolved Institutions
Devolution is the statutory delegation of powers from the central government to a subnational level, such as regional or local governments. This grants these territories a higher level of autonomy, allowing them to make relevant legislation. Devolved powers differ from federalism in that they are temporary and reversible, ultimately residing with the central government. The UK provides an example of devolved government, with Northern Ireland, Wales, Scotland, and London having devolved governments. The extent of devolution varies, with Wales initially having the most limited form, lacking the power to pass legislation independently.
Examples of Devolved Institutions
- District of Columbia in the United States, which has its own elected government, laws, court system, and public services.
- Mexico City, where citizens demanded and eventually gained the right to elect their head of government and set up a Legislative Assembly.
- Spain, where the 1978 Constitution granted autonomy to nationalities and regions, resulting in a highly decentralised country with regional governments accounting for a significant portion of public spending.
Key Considerations
When revising this topic, consider the following:
- The unique features of devolution in the UK, such as the asymmetry of its design, the retention of legal sovereignty by Westminster, and the marginalisation of courts in resolving disputes between central and devolved governments.
- The implications of devolution on policy divergence, particularly in areas like social policy and welfare, where centralised decision-making was previously the norm.
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Frequently asked questions
Constitutional law covers the organization of a national legislature, the structure of the courts, the characteristics of a cabinet, and the role of the head of state. Administrative law covers substantive and procedural provisions relating to central and local governments and judicial review of administration.
Constitutional law revision guides cover constitutional theories and their workings in the UK, including legitimacy, the rule of law, and the separation of powers. They also explain how the core institutions of the state interrelate and their respective roles in the constitution.
Administrative law revision guides may cover the organization, powers, duties, and functions of public authorities engaged in administration, their relations with citizens and nongovernmental bodies, legal methods of controlling public administration, and the rights and liabilities of officials.
"Revise SQE Constitutional and Administrative Law" by Richard Clements is recommended by students for its clear structure and logical flow. Another textbook to consider is "Questions and Answers on Constitutional and Administrative Law", also by Richard Clements, which is likely to contain practice questions similar to those on the exam.
Multiple-choice questions are a common method of assessment for constitutional and administrative law exams.
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