Public Law

A Straightforward Guide

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• Publisher: Straightforward Publishing Digital
• Year: 2014
• eBook ISBN: 9781847164704

This latest publication in the Straightforward Guides Series - A Guide to Public Law - is a comprehensive introduction to Public Law and all that it entails, as well as constitutional law and the rule of law covering the workings of government, Parliament, constitutional monarchy, the legislative process, Tribunals, European Law, administrative law and the powers of police.

Ch.1

Public law-The History of the British Constitution

The below represents, not a complete history of The British Constitution, but an overview of key events in history which serve to give a background to the development, meaning and existence of the Constitution and the role it plays in current political life.

To gain an understanding of the development of the British constitution it is necessary to go back more than a thousand years.

Before the Norman conquest of England, what is now recognised as England came about in 927 AD when the last of the Heptarch kingdoms fell under the rule of the English King. Until 1066, and the Battle of Hastings, England was ruled by monarchs who were elected by the witan (wise).

Following the Battle of Hastings in 1066, and the Norman invasion, Henry 1^st of England came to the throne (1068) When he ascended to the throne he granted the Charter of Liberties. Although this document was not a bill of rights as such it did grant a series of decrees and assurances. The charter, at the outset, states ‘that by the mercy of god and the common counsel of the barons of the whole kingdom of England I have been crowned king of the whole kingdom’

This statement, and its intent, represents a move away from absolute monarchy and a step towards constitutionalism. Essentially, within this statement the king had recognised that the right to rule came not only from god but also from the common counsel of the barons.

The importance of this charter, and this particular point in time, is that the power structure in England evolved from an essentially absolutist model to a constitutional model.

The Plantagenets

The ascension of King John (1167-1216) was another very important milestone in constitutional history. The period of his rule was marked by conflict resulting in the signing of the Magna Carta (Great Charter), which was issued in 1215.

The Magna Carta is of massive importance in that it influenced the development of common law and many other constitutional documents, such as the American Bill of Rights. It was originally written because of disagreements between Pope Innocent 111, King John and the English barons about the rights of the King. Magna Carta required the King to renounce certain specific rights, respect certain legal procedures and accept that his will could be bound by law. It protected certain rights of the King’s subjects, most notably the writ of Habeas Corpus, which allowed appeal against unlawful imprisonment. By the late 19^th century most of the original clauses had been repealed from English law.

The Magna Carta was the first document forced on an English King, limiting his powers by law. By the time of the Civil war it had become an important symbol for those who wished to show that the King was bound by the law. The actual Magna Carta which remains on the statute books of England and Wales is an amended 1297 version.

Henry the Third succeeded his father and was forced to accept the existence of the first English Parliament.

The Tudors

The first Act of Supremacy (1534) made King Henry V111 the ‘supreme head’ of the Church of England. The second Act of Supremacy (1559) restored these powers to Elizabeth the 1^st, reversing Catholic legislation passed during the reign of Mary, who had sought to overturn it.

The monarchy had to get the consent of Parliament in all issues. In turn, Parliament showed loyalty to the monarch which, however, decreased when the Spanish Armada was defeated (1588) and Parliament felt safe once more. The House of Commons had grown sharply, doubling in size, mainly due to the prosperity of the middle-class during that time.

James V1

When Queen Elizabeth 1^st died in 1603 she was succeeded by her cousin James V1 of Scotland, the son of Mary, Queen of Scots, and he became James 1^st of England This was a major step in the creation of a United Kingdom. James V1 faced a fractious religious England containing Anglicans, Puritans, Separatists (who wanted to break from the Anglican Church) and Catholics. James V1 was a believer in the Divine Right of Kings Theory which stated that Kings were chosen by God. Though he was a Presbyterian he was against the Presbyterian idea of allowing the congregation (people) to elect their Presbyters (church officials) since it undermined his absolutism.

The Civil War

James was succeeded by his son who became Charles 1^st in 1625. He also believed in Divine Right Theory and continued to fight with Parliament. The Parliaments main power at this time was its control of taxes. Traditionally, Parliament had voted at the start of a Kings reign on the amount allowed for the King’s Tonnage and Poundage, the customs duties (tax on imported goods) that made up a large portion of the King’s annual income. Parliament now opted to re-evaluate these amounts annually, giving them more control over the King. James the 1^st had resisted this and dealt with the problem by dissolving Parliament. Charles 1^st did the same at first and later just ignored the annual re-evaluations.

However, Charles 1^st was at war with France and Spain and this drained away a lot of money from him and he was forced to call upon Parliament (1629) to make new taxes for him. Parliament would not do this until he had signed the Petition of Rights that established conditions in which Charles had to submit to the will of Parliament. The conditions were as follows:

•   The King could not establish martial law in England during times of peace;

•   The King could not levy taxes without the consent of Parliament;

•   The King could not arbitrarily imprison people;

•   The King could not quarter soldiers in private homes.

After Charles got the taxes from Parliament in 1629, he then turned round and dissolved Parliament and broke the tenets of the Petition of Rights, since he believed in the Divine Rights of Kings Theory. Following a series of wars, both external and internal, which forced Charles to go once again to Parliament, terms were laid out which he had to agree to which ultimately made him the first constitutional monarch. Most important of these terms was that Charles had to agree to never dissolve a Parliament without the consent of the Parliament.

Following a series of events, Charles 1^st stormed Parliament and then left London and went to Oxford and the English Civil War (1642) had begun. The North and West of England were on Charles 1^st’s side, along with most of the Nobles and country gentry. They were known as the Cavaliers. Charles created an illegal army (since he needed Parliament’s consent).

The South and East of England were on Parliament’s side and were known as the Roundheads, because of their haircuts. Parliament also raised an army. Because they didn’t have the military might that Charles had they enlisted the help of the Scottish. They called their army the New Model Army and made its commander Oliver Cromwell. The New Model Army was composed mostly of Presbyterians. Parliament won the civil war and the Scots were paid off and sent back to Scotland. The Presbyterian Roundheads were not interested in imposing their religion on the country but only in having freedom to practice their religion.

Cromwell proposed that Parliament re-instate the bishops of the Church of England and also Charles 1^st as a constitutional monarch, but allow for the toleration of other religions. The people of England could accept Charles 1^st back as King but not religious tolerance. They also wanted the New Model Army dissolved. The New Model Army refused this order and a further civil war broke out in 1648. On one side were the Scottish (having been enlisted by Charles 1^st) and the Royalists plus the Parliamentary Presbyterians. On the other was the New Model Army and the rest of Parliament.

In the Battle of Preston (1648) Cromwell and his New Model Army defeated Charles 1^st. One of Cromwell’s officers, Colonel Pride, destroyed the Presbyterian majority in Parliament by driving out 143 Presbyterians leaving behind 60. The new parliament constituted the ‘Rump’ Parliament which exercised power. They abolished the monarchy and the House of Lords in Parliament and executed Charles 1^st after a public trial. They also created a republic called the ‘Commonwealth’ which was, in reality, a dictatorship by Cromwell. Cromwell also defeated Charles 2^nd in Scotland who subsequently fled to France. Cromwell then went to Ireland and massacred many Irish Catholics causing an Irish rebellion.

Cromwell died in 1658 and was succeeded by his son Richard, who proved incapable of unifying the diverse religious groups and was overthrown by General George Monk of Scotland. Monk invited the remnants of the Rump Parliament to reconvene.

The Rump Parliament dissolved itself and created a new Parliament. The new Parliament began the restoration of the monarchy by choosing Charles 2^nd as King of England.

Post Civil War

As we have seen, the period from the invasion of the Normans to the end of the Civil war was one of great ferment and huge strides, albeit amidst great bloodshed, were made in developing a constitution which ensured that the powers of monarchy were limited and the powers of the people were expressed through Parliament.

Post Civil war, in 1649, the Diggers, a small people’s political reform movement published The True Levellers Standard Advanced: or, the State of the Community opened and Presented to the Sons of Men. This is another important document in the history of British constitutionalism, though different in one very important sense, in that it came from the people instead of the state. They are sometimes called the ‘True levellers’ to distinguish themselves from a larger political group called the Levellers which supported the Republicans during the Civil War. The ideas of the Diggers can be best understood through such philosophies as anarchism, libertarianism and religious communism.

Expansion of the Electoral Franchise

Between 1832 and 1989, numerous Acts of Parliament increased the number of people allowed to vote. Currently all people over 18 can vote. See the chapter on Electoral law.

The Reforms of New Labour

In Labour’s first term (1997-2001) it introduced a large package of constitutional reforms. The most major were:

•   The creation of a devolved Parliament in Scotland and assemblies in Wales and Northern Ireland, with their own direct elections.

•   The creation of a devolved assembly in London and the associated post of a directly elected Mayor.

•   The beginning of a process of reform of the House of Lords including the removal of all but 92 hereditary peers.

•   The incorporation of the European Convention of Human Rights into UK law by passing the Human Rights Act 1998.

•   The passing of the Freedom of Information Act 2000.

•   The passing of the Political parties, Elections and Referendums Act 2000, creating the Electoral Commission to regulate elections and referendums and, to an extent, party spending.

With (potted) history as a background we can now turn to the nature and characteristics of the British Constitution as it now exists and also the role of political institutions and parties in its development.

Ch.2

The Nature of the Constitution

Whereas most countries have a constitution, a written document, laying down the main rules governing the main structure and functions of government, which regulates the relationship between people and gove...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Table of cases
• Introduction
• Ch.1 Public Law-The History of the British Constitution
• Ch.2 The Nature of the British Constitution
• Ch.3 Sources of Constitutional Law
• Ch.4 The Rule of law
• Ch.5 Administration of Government
• Ch.6 Parliament
• Ch.7 Electoral law
• Ch.8 The European Community-Development and Public Law
• Ch.9 Human Rights in UK law
• Ch.10 Police Organisation
• Ch.11 Public Order
• Ch.12 Judicial Review
• Index