Public Law Dissertation Topic Examples

Public law, which is similar to constitutional law, essentially ensures that the relationship between the public and the state is regulated so that the government is not abusing its powers and exploiting individuals. This area of law covers the fundamentals of the UK constitution, Parliamentary Sovereignty, accountability and judicial review.

1. Journalists and the media seem to believe that their free speech should be given special protection because whatever they publish is in the public interest. Nothing could be further from the truth. Discuss.

This study will critically examine the heated debate and controversial aspects surrounding the principle of the freedom of speech and the general notion that the press should be granted the freedom of expression as a result of the public interest argument. The courts have indeed frequently upheld the public interest argument, though they have also restricted the ambit of the public interest. The study will demonstrate that allowing the freedom of speech to prevail as a result of the public interest argument is not in every case a sound conclusion. Rather, an important distinction should be made between the private lives of individuals and the public interest. Ultimately, no general approach has emerged; the courts instead have adopted a case by case approach to the issue. The courts have simply attempted to balance in each case the importance of the freedom of expression and the right to privacy.

Suggested Reading

• Deacon, R, Lipton, N, & Pinker, R 2011. Privacy and Personality Rights: Commercial Exploitation and Protection, London: Jordan Publishing.
• Klug, F & Starmer, K 2005. ‘Standing back from the Human Rights Act 1998; How Effective is it Five Years On?’, Public Law, vol. 5, no. 12.
• Warren, SD & Brandeis, LD 1890. ‘The Right to Privacy’, Harvard Law Review, vol. 4, no. 193.

2. Judicial Review as a Process: An Argument for Weak Judicial Review.

Judicial review is, quite simply, a powerful mechanism for monitoring the actions of the legislature and the executive; its role within the UK governmental system is huge. While the judicial review process often varies between states, the United Kingdom’s procedure places upon the courts the duty to supervise the exercise of public power upon an individual’s application. Despite, or perhaps because, of its importance, judicial review has been under close scrutiny since its birth. Some argue that the UK process is in need of reform, particularly due to the tension it arouses between the courts and the legislature. This study will compare the two main models of judicial review; weak and strong judicial review, in order to compose an argument in favour of the former. A variety of reasons will be proposed to promote weak judicial review, particularly the need to protect and promote Parliamentary sovereignty. Although it is necessary for the judiciary to exercise some degree of control over the legislature, to place too great a power in the judiciary is equally undesirable.

Suggested Reading

• Waldron, J 2006. ‘The Core of the Case against Judicial Review’, Yale Law Journal, vol. 115, no. 6, pp. 1346-1361.
• Tribe, LH 1988. ‘Judicial Interpretation of Statutes: Three Axioms’, Harvard Journal of Law and Public Policy, vol. 11, no. 51.
• Mcleod, I 2003. Legal Theory, 2nd edn, Hampshire: Palgrave Macmillan.
• Clyde, RHL & Edwards, D 1999. Judicial Review, London: W. Green.

3. With particular reference to the opinions of Lords Bingham, Hope, Steyn and Baroness Hale, discuss the significance of R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 for the position of Parliamentary supremacy (or sovereignty) in the modern British constitution.

Perhaps the most widely known definition of Parliamentary supremacy is that coined by Dicey, which presents the extent of the powers of Parliament. Yet the concept of Parliamentary supremacy in practice as opposed to theory has raised many important issues. Perhaps the most important of those issues was raised in the case of R (Jackson) v Attorney General in which the validity of the Parliament Act 1949 was questioned. Although the judges decided that the Act was valid, the differing views offered by the judges suggest that the courts are yet to completely rule out the rigid theory of Dicey in favour of the non-orthodox approach. This study will examine the concept of Parliamentary supremacy in light of recent advancements which seek to reduce the extent to which it can be deemed supreme. Should the rigid approach be maintained or is it now necessary to adopt a more flexible and modernised approach to parliamentary supremacy?

Suggested Reading

• Bradley, AW & Ewing KD 2011. Constitutional & Administrative Law, 15th edn, Essex: Pearson Education.
• Carroll, A 2009. Constitutional and Administrative Law, 5th edn, Essex: Pearson Longman.
• Hilaire, B 2011. Constitutional & Administrative Law, 8th edn, London: Routledge.
• Forsyth, C 2011. ‘The Definition of Parliament after Jackson: Can the Life of Parliament be Extended under the Parliament Acts 1911 and 1949?’, International Journal of Constitutional Law, vol. 9, no. 1.

4. It has been recognised for centuries that hard cases make bad law. At the same time it was recognised that good law could throw up hard cases, because the law deals with the generality of cases. If an attempt is made to deal separately with every hard case that it throws up, there would be no rule of law at all. There would be palm-tree justice and a lurching from one case to another, so that the citizen would not know under what law he stood” (House of Lords Debates, 28 September 2000, column 987). Discuss.

The UK legal system is a complex conglomeration of statute, precedent, Parliamentary supremacy, judicial review and a distinct relationship between the executive, the legislature and the judiciary. Despite the extensive powers of the legislature and the executive, final decisions provided by the judiciary play an important role in the application of written statute to actual circumstances. The restriction of judicial decisions to precedent acts as a limitation on judicial power and ensures that the common law is consistent and fair. Yet, the task of the judiciary is more complex than simply applying legal statute; it must convert generality into detail, and apply it to the facts of any given case. This study will examine the process adopted by the courts in applying statute and precedent to cases. The concept of the hard case will be focused upon, to determine whether such cases must be dealt with differently. It will ultimately be demonstrated that the need to ascribe to precedent is not always possible as a result of the generality of written law

Suggested Reading

• Alexander, L & Sherwin, E 2007. ‘Judges as Rule Makers’ in Edlin, DE (ed.) Common Law Theory. New York: Cambridge University Press.
• Caenegem, RC van 1986. Judgers, Legislators & professors: Chapters in European Legal History. Cambridge: Cambridge University Press.
• Gearey, A; Morrison, W & Jago, R 2009. The Politics of the Common Law: Perspectives, Rights, Processes, Institutions. Oxon: Routledge-Cavendish.
• Pound, R 1963. The Spirit of the Common Law. Boston: Beacon Press.

5. Consider the proposition that the UK’s constitution is not worth the paper it is not written on.

It is commonly said that the UK’s constitution is unwritten, or that it is simply non-existent. Depending upon the criteria that one choses to apply, the question as to whether the UK constitution exists can be answered in both the positive and the negative. This study will examine the criteria that can be applied for determining whether or not the UK has a constitution. This will include the broad, substance�based approach and will necessitate an examination of whether the UK constitution should be codified in a single document. What are the advantages and disadvantages of a codified constitution? Would the UK benefit from such codification? Such taxing questions will be explored, along with an array of other important issues.

Suggested Reading

• Bradley, AW & Ewing KD 2011. Constitutional & Administrative Law, 15th edn, Essex: Pearson Education.
• Carroll, A 2009. Constitutional and Administrative Law, 5th edn, Essex: Pearson Longman.
• Hilaire, B 2011. Constitutional & Administrative Law, 8th edn, London: Routledge.

6. Why should the dispute resolution function of courts also have the effect of creating binding case law for future litigants and generations? What legitimates the power of judges to make case law?

The decisions of the judiciary are the product of various legislative tools which ultimately combine to form the common law. Perhaps the most important characteristic of the common law system of England and Wales is the separation of the judiciary and the legislature. Yet many find it taxing to reconcile this separation in light of the binding nature of judicial decisions. This study will critically explore the UK’s legal system in a bid to discover which principles serve to legitimise the power of judges to form binding decisions. Is the judiciary ultimately unfettered or do mechanisms exist which limit its power both in practice as well as in theory? The process of applying written statute to real situations will be examined in order to discover the extent of judicial powers when making decisions.

Suggested Reading

• Alexander, L & Sherwin, E 2007. ‘Judges as Rule Makers’ in Edlin, DE (ed.) Common Law Theory, New York: Cambridge University Press.
• Friedmann, W 1959. Law in a Changing Society, London: Stevens & Sons.
• Gearey, A, Morrison, W & Jago, R 2009. The Politics of the Common Law: Perspectives, Rights, Processes, Institutions, Oxon: Routledge-Cavendish.
• Hart, HM; Sacks, AM & Eskridge, WN 1994. The Legal Process: Basic Problems in the Making and Application of Law, New York: Foundation Press.

7. The question whether or not the defence of consent should be extended to sadomasochistic activities can only be decided by consideration of public policy and public interest (Lord Templeman in R v Brown 1993 2 ALL ER 75). Critically evaluate this quote by Lord Templeman taking into account the extent to which one can consent to acts which would otherwise be contrary to the Offences Against the Person Act 1861.

The courts have perpetually struggled to merge the law’s stance on consensual harm with the importance of preserving the public interest and this struggle is highly apparent in case law. Should consensual harm negate a justification of legal sanction? At which point, if any, may the law inform us that consent is not sufficient to negate liability? This is indeed a delicate issue, and begins with the controversial case of R v Brown in which it was held that consent to sadomasochist harm privately caused between adults was not sufficient in the interests of public policy. This study will focus upon the major problems posed by reference to the public interest in relation to consensual harm. The evident difficulties surrounding the laying of boundaries as to when consensual harm should be permitted and when it should not will be critically examined, as well as when the public interest should, if at all, overcome individual autonomy.

Suggested Reading

• Allen, M 2003. Textbook on Criminal Law, 7th edn., New York: Oxford University Press.
• Devlin, P 1965. The Enforcement of Morals, Oxford: Oxford University Press.
• Fletcher, GP 2000. Rethinking Criminal Law, New York: Oxford University Press.
• Williams, G 1962. ‘Consent and Public Policy’, Criminal Law Review, vol. 1, no. 74.

8. Critically explain, illustrate and discuss how the European Court of Human Rights has approached, defined and limited the concept of torture under Article 3, looking at the relevant case law.

The European Court’s definition and application of torture under Article 3 of the European Convention of Human Rights has attracted considerable criticism since the Article was first initiated. The criticisms are understandably harsh, though many recognise the problem of defining and applying the concept of torture effectively. Article 3 of the ECHR quite simply states that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. It interestingly is not subject to exceptions or restrictions, even in a state of war or public emergency. The absolute nature of the right therefore causes one to conclude that most forms of inhuman and degrading treatment would be caught within the broad ambit of the article. This study will critically evaluate the European Court’s approach to Article 3, as reality suggests that the right is not as absolute as one would assume. This is particularly the case when observing the way in which torture has been defined.

Suggested Reading

• Janis, MW, Kay, RS & Bradley, AW 2008. European Human Rights Law: Text and Materials, 3rd edn, New York: Oxford University Press.
• Mowbray, A 2005. ‘The Creativity of the European Court of Human Rights’, Human Rights Law Review, vol. 5, no. 1, pp. 57-79.
• Ovey, C & White, RC 2006. The European Convention on Human Rights, 4th edn, New York: Oxford University Press.
• Spjut, RJ 1979. ‘Torture Under the European Convention on Human Rights’, American Journal of International Law, vol. 73, no. 2, pp. 267-272.

9. Human Rights and their Recent Demise under Anti-Terrorism Legislation: Justified or Unacceptable? The Conflict between Civil Liberties and Public Safety.

Anti-terrorism legislation is indeed the new trend; it alters with the seasons and depends more or less upon current attitudes towards the apparent threat of terrorism. Consequently, an increasing number of anti-terrorist measures have been given forceful yet sometimes brief entrance into UK law. Not less than 5 new anti-terrorist Acts were introduced between 2000 and 2008, each increasing the number of offences that could be caught in the anti-terrorism net.

This study will examine current anti-terrorism offences and the extent to which they have gradually eroded individual rights in the interests of public safety. Anti-terrorism legislation will be unavoidably criticised, as references to national safety have allowed almost any measures to be justified. It will be ultimately argued that such legislation threatens the very public safety it seeks to protect, and that an increased ascription to individual civil liberties must be pursued.

Suggested Reading

• Amos, M 2006. Human Rights Law, Oxford: Hart Publishing.
• Fenwick, H 2007. Civil Liberties and Human Rights, 4th edn, London: Routledge-Cavendish.
• Fenwick, H & Phillipson, G 2011. Text, Cases and Materials on Public Law and Human Rights, 3rd edn, Oxon: Routledge.
• Stone, S 2010. Textbook on Civil Liberties &Human Rights, 8th edn, New York: Oxford University Press.

10. The law of privacy in the UK must take account of practical as well as moral considerations.

The law of privacy in the UK does not exist as a separate offence from its embodiment in the Human Rights Act 1998. Prior to the Act, privacy was defined by a traditional value-based approach circling the principle of free press, which was considered to protect adequately the rights of individuals. The absence of statute to supplement the law of privacy as embodied in the HRA 1998 is an interesting topic which will be examined in this study. Attention will be drawn to other forms of ‘privacy’ laws such as defamation. The considerable amount of case law formed by the courts on the reach and boundaries of privacy will be addressed in an attempt to define when the privacy of individuals can be infringed and under which circumstances. Can infringements of privacy be linked to moral and/or practical considerations? Can equal importance be attached to both moral and practical issues or do the two conflict to such an extent that one must simply prevail? It will ultimately be demonstrated that the lack of a separate privacy law is problematic and that perhaps the time has come to formulate such a law.

Suggested Reading

• Deacon, R, Lipton, N & Pinker, R 2011. Privacy and Personality Rights: Commercial Exploitation and Protection, London: Jordan Publishing.
• Friedmann, D & Barak-Erez, D 2001. Human Rights in Private Law, Oregon: Hart.
• Warren, SD & Brandeis, LD 1890. ‘The Right to Privacy’, Harvard Law Review, vol. 4, no. 193.