public class

8/19/2019 Public Class

1/16

Principles of Public Law

Week 2A:

Dr Melissa Crouch

Law Faculty, UNSW

[email protected]

1


2/16

Course outline

• Introduction and constitutionalism (1A and B)

• Australia as a constitutional hybrid (2A and B)

• The Constitution and Indigenous people (3A and B)

• Federation and Popular Sovereignty (4A)

• Statutory Interpretation (5A and 5B)

• The Legislature (6A and 6B)

• State Constitutions (8B)

• Federalism (9A)

• The Executive (9B and 10A, B)

• The Judiciary (11A, 11B)

• Rights Protection (12A and B)

• Constitutional Change (13A)

2


3/16

Overview

• Review last class: Rule of law, separation of powers, constitutionalism

A Constitutional Hybrid 1

• The origins of British constitutionalism

• Bill of Rights of 1689

• Act of Settlement of 1701

• 1832 Reform Act

• The British inheritance

• Responsible government

• Parliamentary sovereignty – Dicey

• Start with a timeline…

3


4/16

Review class 1B

• What is a constitution? How does it differ from law?

• Written v unwritten

• Flexible v rigid

• how would you characterise the Australian Constitution?

• political and legal constitutionalism

• Separation of powers

4


5/16

Review class 1B

Rule of law –

• 3 features as defined by Dicey

• Jennings – critical of Dicey

• Julius Stone

• International Commission of Jurists

• Lord Bingham

• Sir Ninian Stephen

5


6/16

History of British constitutionalism

• Prior to 12th C, long power struggle with the

Crown under the feudal system

• Barons disagreed with the tax they had to pay to

the King in return for the use of land

•

Key Reform of the 13th

C: The Magna Carta 1215was an agreement between the King and barons

to establish formal limits on the exercise of royal

power

• See casebook - p 42-44

• But see handout

6

http://en.wikipedia.org/wiki/File:Magna_Carta.jpg


7/16

Developments in the 16th and 17th C

• How did the idea of a parliament develop in the 16th and 17th C?

Bill of Rights 1689

• In 1689, An Act Declaring the Rights and Liberties of the Subject and

Settling the Succession of the Crown was passed, known as the ‘Bill of

Rights 1689’ • It clarified the position of Parliament and limited the prerogatives of

the Crown

• It held that sovereign power rested in the King in Parliament, not in

the King alone

• This also led to a range of changes, including:

•To royal succession

• introduced right to free speech in parliament

• It required parliament to sit at least once a year

7

http://en.wikipedia.org/wiki/File:English_Bill_of_Rights_of_1689.jpg


8/16

18th and 19th century

• What were the major issues in the 18th and 19th C?

• Why was the Act of Settlement important? [see Loughlin p 61-2)

• Act of Settlement 1701, see here

• What developments took place in the 18th C in terms of the franchise?

• What conclusions can we come to about the development of constitutionalism from

the 13th C to 19th C?

• Return to timeline…

8

http://australianpolitics.com/democracy-and-politics/act-of-settlement-1701http://australianpolitics.com/democracy-and-politics/act-of-settlement-1701


9/16

Group exercise

• You will be divided in groups and asked to address the statement:

• ‘Parliamentary sovereignty is the most appropriate and defining feature of British

constitutionalism and remains of central importance today’.

Present your argument to the group as if you were:

•Group 1 – Dicey

• Group 2 – Geoffrey de Walker

• Group 3 - Jeffrey Goldsworthy

• Group 4 - Ivor Jennings

• Group 5 – Trevor Allen

• Make sure you choose someone from your group to present your argument, and to

respond

• Note: we will occasionally do other group activities, so if you present this time, you do

not have to present next time9


10/16

Group exercise

• Introduce yourselves

• Appoint someone in your group to facilitate discussion

• Start by identifying the key arguments of the person whose ideas you have to

represent

• Then discuss how this relates to the statement

•Then consider what rebuttals you may need to make in response to the arguments ofothers

• Choose 2 people from your group (one to present arguments, one to respond)

• Format: Each group will have the chance to speak once to introduce their main

argument. Then each group will have the chance to respond to the arguments raised

by others

10


11/16

Parliamentary sovereignty

• Dicey was an advocate for the concept of parliamentary sovereignty. What did he

mean by this?

• What is the distinction between legal and political sovereignty?

• What does he say are the limits to parliamentary sovereignty?

•What criticisms does Walker make of parliamentary sovereignty?

• More on this, and representative and responsible government in class 2B

• Contrast view of Sir Ivor Jennings

11


12/16

In defence of Dicey…

Jeffrey Goldsworthy – The Sovereignty of Parliament: History and Philosophy (1999), CB65

1. as a matter of logical or practical necessity, there had to be a single, ultimate and unlimited law-making power in the kingdom

2. with the consent of his subjects in parliament, the king exercised an absolute power to make the law,conferred by and subject only to God

3. parliament was the highest court in the land, the authority of last resort from which no appeal waspossible, which could make new laws as well as interpret and apply old ones

4. if its authority were limited, parliament might be unable to take extraordinary measures needed toprotect the community in emergencies

5. every generation must be equally free to make and change its law, as contemporary circumstancesmight require

6. all subjects were represented in parliament, and were therefore deemed to consent to its acts and tobe estopped from disputing them

7. parliament’s decisions reflected the collective wisdom of the entire community, which, if not infalliblewas far superior to that of any other agency in the state

8. the ability of the King, Lords and commons to check and balance one another was the best possible

safeguard against tyranny9. judges could not be trusted with authority to nullify parliament’s judgements

10. to limit parliaments powers to prevent it from abusing them would be to adopt a cure much moredangerous that the highly improbable disease of parliamentary tyranny

• Which of these points do you fine the most convincing defence of Dicey’s concept ofparliamentary sovereignty? 12


13/16

Criticisms of Dicey /parliamentary sovereignty

• Jennings, The Law and the Constitution (p66)

• Ivor Jennings was a robust critic of Dicey.

• What were his criticisms?

• Why does he argue that parliament does not have supreme power in the sense

Dicey describes?

• Allan, Law Liberty and Justice: The Legal Foundations of British

Constitutionalism. OUP 1993

• What is Allen’s criticism? Why does he say positivism is not sufficient? What else is

needed in his opinion?

13


14/16

British constitutionalism today

• Why is Parliament supreme in the British constitutional system

today?

• What do we know from the readings about constitutionalism in the

UK today?

• What are the sources of the British constitution?

• How would you describe the power of parliament today?

• What are the contemporary challenges to parliamentary

sovereignty (note how these do not affect Australia)?

• Can we reconcile the principle of parliamentary sovereignty with

the rule of law?

• How does Dicey do this? Do you find this convincing?

14


15/16

Constitutional conventions

• See readings from class 1B also

• What are constitutional conventions?

• What different understandings of constitutional conventions are offered in

your readings?

• Can you give examples

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16/16

To sum up

• You should be able to:

• Explain the development of constitutional law in England

• Outline the importance of particular acts that were passed that increased the

power of the parliament, reduced the power of the king and regulated the power

of judges

•

Identify how the British experience of constitutionalism relates to the Australiancontext

• Explain the debate over the tension between parliamentary sovereignty and the

rule of law, particularly in relation to Dicey’s views

• Know what a constitutional convention is and give examples

• Next class: A Constitutional Hybrid 2B

16

public class

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