public law

who does public law concern

citizen v state

public law definition

the area of law governing the relationships between individuals and the government; it is concerned with public institutions, constitutional principles and constitutional practices and holds the state accountable to people

who does private law concern

citizen v citizen

examples of what private law looks at

• contract

• tort

example of an issues that can cross over public and private law

family law

public law’s big question

what is the appropriate role for law in relation to the state’s governing activities?

two types of public law

• constitutional law

• administrative law

constitutional law definition

concerned with the overall constitutional structure by which a country is governed

why is the UK unusual constitutionally

• the UK does not have a written and codified constitution

• they have constitutional principles

• they have a range of written instruments which might have constitutional status but they won’t have a heading on them saying the document has come to constitutional status

other developed countries among the UK to not have a written constitution

• new zealand

• israel

what kind of government is the UK

a constitutional monarchy

another name for constitutional monarchy

limited monarchy

limited monarchy meaning

the monarch only has authority in accordance with the constitution

absolute monarchy

• opposite of a limited monarchy

• where the monarch personally has authority and personally has absolute power

what kind of democracy is the UK

a liberal democracy

what kind of parliament is the UK

a bicameral parliament (two chambers)

the UK’s ‘pillars of constitution’

• parliamentary sovereignty

• rule of law

• separation of powers

another name for parliamentary sovereignty

legislative supremacy of parliament

parliamentary sovereignty

• Parliament, consisting of the House of Commons, House of Lords, and the Monarch, is the supreme lawmaking body in the UK

• it has the right to make or unmake any law that it wants to, and the courts have to follow that law

separation of powers

the vesting of the legislative (parliament), executive (government), and judiciary (courts, judges, and tribunals) powers of government in separate bodies

why is the separation of powers important

prevents the concentration of power and provides for checks and balances

what the branches of government may now be better thought of as because there are now devolved administrations

a network of different powers

the rule of law

• no punishment without law

• no person above the law

• constitution comes from the ordinary laws of the land

contemporary relevance of the pillars of the constitution

• the supposed reclaiming of sovereignty for parliament and the EU referendum;

• sovereignty of parliament vs rule of law in relation to the rwanda scheme;

• separation of powers - which ‘arm’ of the state could decide if rwanda was safe?

• separation of powers - whether the government alone or only parliament could trigger Art 50 to leave EU;

• Rrule of law re partygate – parties in downing street during lockdown

administrative law definition

refers to the body of law about what powers a public body has, the duties it has to you, what procedures it must apply or will apply, and what happens if it doesn’t apply those

why does administrative law matter

• most of what we need for our daily lives

• vast number of decisions made every day

• sets out powers and duties of public bodies

• aims to prevent arbitrary decision-making

what does administrative fairness require

• a clear law that people can find

• clear eligibility criteria

• an accessible application system

• a system for assistance

• a clear timetable for how quickly a decision can be expected

• a complaint mechanism for if the decision is delayed or otherwise not properly made

• a review system for if the applicant thinks the decision is wrong

administrative decisions must be…

1. lawful/legal (in accordance with the law)

2. reasonable

3. procedurally fair

if human rights are engaged, administrative decisions must also be

proportional

can something be lawful but still amount to maladministration

yes, it will also require redress

redress definition

a means of obtaining a remedy or compensation for a loss or wrong; relief from distress

substantive unfairness definition

a legal concept that refers to whether a decision is reasonable and just

procedural unfairness definition (administrative law)

unfairness regarding institutions’ proceedings and handling of an individual case, not the outcome of the case

windrush scandal

• caribbean immigrants of the windrush generation faced wrongful detention and deportation when arriving in the UK to work

• they arrived as UK citizens and didn’t need any paperwork

• the victims were people who in law had a set of rights but were unable to prove it because of the operation of a different set of laws, combined with the failure of the home secretary to carry out competent recordkeeping

the commonwealth immigrants act 1962 and 1968

were passed explicitly aimed at restricting black and asian commonwealth immigration while preserving the kind of rights of white migrants through ancestry provisions that would enable them to come back in

the immigration act 2014 & 2016 required proof of immigration status to do things such as…

• rent accommodation

• hold a driving license

• get married

• study past the age of 18

• access health care other than emergency care

• have a bank account

windrush remedy

1. prompt provision of the evidence that they needed to confirm the status they already had or were entitled to

2. apology

3. compensation to restore them to the position they should have been in

in order to be provided compensation for the windrush scandal, you had to prove that…

• you were in the UK before the relevant date

• you had the right to remain in the UK throughout that time

• at specific points, you were not able to prove that

• you suffered a loss or disadvantage

• loss was CAUSED by the lack of proof

process of a compensation scheme

1. apply to the home office

2. tier 1 review

3. tier 2 review (limited powers)

4. ombudsman complaint

applying to the home office (compensation scheme)

they decide if you’re eligible for compensation and how much

tier 1 review (compensation scheme)

the home office decides whether it has correctly decided your case

tier 2 (limited powers) (compensation scheme)

• an independent reviewer, but they have limited powers

• the powers of the review are to make recommendations to remit the case to the Home Office

• they don’t have the power to order the Home Office to increase the amount or to decide the amount themselves

ombudsman complaint (compensation scheme)

• the only route of complaint after the previous steps

• can investigate maladministration

• can then order the home office to pay a higher level of compensation

• have to be referred to the ombudsman by your MP

  • you can’t just do this process by yourself

liberty

anything which is not prohibited by law

are liberties and rights the same

no, rights are more proactively protected in law

human rights

the basic rights and freedoms that belong to every person in the world, from birth until death, just by virtue of the fact of being human

factors of human rights

• they apply regardless of where you’re from, what you believe, or how you choose to live your life

• they can never be taken away, although they can sometimes be restricted

• these basic rights are based on shared values like dignity, fairness, equality, respect and independence

• these values are defined and protected by law

statutory rights

rights that are written down in statute

common law rights

weren’t written in a statute but were in case law because that’s the peculiarity of the common law system

habeas corpus

right to liberty

human rights act 1998

• covers a range of different rights including social, civil, and citizenship rights

• the HRA protects some of them, but not all

HRA section 1

• incorporating the ECHR rights

• convention rights

convention rights

means the rights and fundamental freedoms set out in the ECHR

HRA section 2

interpretation of convention rights

interpretation of convention rights

a court or tribunal determining a question which has arisen in connection with a convention right must take into account any judgment, decision, declaration or advisory opinion of the ECHR

HRA section 3

interpretation of legislation

interpretation of legislation

so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention’s rights

HRA section 4

declaration of incompatibility

declaration of incompatibility

deals with what happens if it’s not compatible, so the judges can make a declaration of incompatibility

HRA section 5

• the government are entitled to notice and are entitled to be joined as a party in any case where the court is considering making a declaration of incompatibility

• the government has the entitlement to come to court and be represented in that discussion

HRA section 6

acts of public authorities

acts of public authorities

it is unlawful for a public authority to act in a way which is incompatible with a convention right

in section 6 of the HRA, ‘public authority’ includes…

• a court or tribunal; and

• any person certain of whose functions are functions of a public nature

• but does not include either house of parliament or a person exercising functions in connection with proceedings in parliament

HRA section 7

who can apply for a remedy

who can apply for a remedy under the HRA

only the direct victim of a violation can make a claim on the basis of a breach of human rights

two key procedural articles in the HRA

• article 1: states must secure these convention rights in their own jurisdictions (fulfilled by the HRA)

• article 13: right to an effective remedy (fulfilled by the right to argue these rights in court)

16 substantive rights

2. right to life

3. freedom from torture and inhuman or degrading treatment

4. freedom from slavery and forced labour

5. right to liberty and security

6. right to fair trial

7. no punishment without law

8. respect for your private and family life, home, and correspondence

9. freedom of thought, belief, and religion

10. freedom of expression

11. freedom of assembly and association

12. right to marry and start a family

14. protection from discrimination in respect to these rights and freedoms

• protocol 1, art 1: right to peaceful enjoyment of your property

• protocol 1, art 2: right to education

• protocol 1, art 3: right to participate in free elections

• protocol 13, art 1: abolition of the death penalty

article 2: right to life

includes the right to an effective investigation where there’s been a death and there’s suspicion that the state is involved in some way

article 3: prohibition of torture

there are NO exceptions to this rule

article 6: right to a fair trial

the right to a fair and public hearing of any matter, determining your guilt in a criminal matter or your civil rights

article 7: no punishment without law

• freedom from being punished except in accordance with the law

• freedom from retrospective punishment

  • you can’t be punished for something that was not a crime at the time when you did it

article 8: right to respect for private and family life

there shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

article 9: freedom of thought, conscience, and religion

1. this includes freedom to change one’s religion or belief and freedom, either alone or in community with others and in public or private, to manifest their religion or belief in worship, teaching, practice, and observance

2. freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others

article 14: discrimination

• NOT a free-standing prohibition on discrimination

• specifically a prohibition of discrimination in relation to access to your substantive rights under the HRA

protocol 1, art 1: right to peaceful enjoyment of your property

• your physical property

• can also mean property in terms of things such as a welfare benefit, an entitlement to a welfare benefit

protected rights definition

refer to certain fundamental rights and freedoms that are legally guaranteed and safeguarded by law, often through statutory law or international human rights agreements. these rights are designed to protect individuals from abuse, discrimination, or unfair treatment by governments, institutions, or other individuals

qualified right definition

a type of legal right that can be restricted or limited under certain circumstances, usually to balance the interests of the individual with the needs of the community or the state. they allow interference or limitations by the state, provided that the limitations are proportionate, necessary, and prescribed by law

absolute right definition

a legal right that cannot be limited, restricted, or interfered with under any circumstances, regardless of the situation or the needs of the state or society

interference with a protected right must be

• in accordance with the law

• intended to achieve a legitimate objective

• necessary in a democratic society (this is where proportionality comes in)

proportionality definition

a legal principle that requires that any action taken, especially by the state, which interferes with individual rights must be appropriate, necessary, and not excessively restrictive relative to the legitimate aim being pursued

another name for proportionality

a legitimate aim

proportionality test

the huang test

the huang test

• does the policy/measure in question pursue a sufficiently important objective?

• is the rule or decision under review rationally connected with that objective?

• are the means adopted no more than necessary to achieve that objective?

• does the measure achieve a fair balance between the rights of the individual(s) affected and the wider community?

negative obligation definition

• refers to a duty placed on the state or an individual to refrain from interfering with certain rights or freedoms

• focus on ensuring that rights are not violated by inaction or unlawful interference

positive obligation definition

• refers to a legal duty imposed on a state to take active steps to protect, promote, or fulfil certain rights

• demand proactive measures to ensure that rights are effectively realized and safeguarded

• will always be resource dependent

which kind of obligation can be absolute

a negative obligation

constitutional effect of the HRA

• all legislation has to be compatible with the HRA;

• all public authorities have a duty to comply with the HRA; and

• the court has to interpret all legislation in a way which is compatible with human rights if possible

the HRA as a constitutional statute

means that it sits above other legislation in the sense that the government has to certify that other legislation is compatible with it unless they’re expressly derogation from a right, and that right is very workable

what if something is NOT compatible with the HRA?

judges need to interpret/read down as compatible where possible

the interpretation point of the HRA

• can mean a fairly stretched reading of the original statute

• a reason for departing from case law that was decided before the HRA came into force

power of the judges when deciding if something is compatible with the HRA

• judges can disapply or quash secondary legislation

• judges cannot disapply primary legislation

• judges may make a declaration of incompatibility

three international human rights courts

• european

• african

• inter-american

african human rights instruments and courts

african charter on human and people’s rights, with the african court on human and people’s rights, established by the african union

inter-american human rights instruments and courts

american convention on human rights, with the inter-american court of human rights

• ratifided by most central and south american states

  • not US or canada

who mainly devoloped the american convention

catholic states

problems of the american convention

it extends the right to life to the unborn child, which conflicts with the legality of abortion in some countries

why did canada not ratify the american convention

canada generally opposes reservation to human rights instruments, they don’t pick and choose

socio-economic rights in south africa

• housing

• health care, food, water, and social security

rights that are not enforceable in the UK

• universal declaration on human rights

• international convention on economic, social and cultural rights

universal declaration on human rights

everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including flood, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control