There is rarely a single right answer to Public Law essay or problem questions. The Answer Plans that follow identify the relevant material, key authorities and offer a suggested structure for tackling the given Question set.
Problem questions require application of law to the given facts. Essay questions, an objective, discursive analysis of all sides of the given issue with discursive critique, evaluation, advocacy of reform as required.
Common to all Answers is the importance of your effective use of and verification by primary source authorities and other referenced sources.
Whilst this sample is arranged by topic and chapter, you should always be mindful of topic overlap and use a ‘joined up’ approach accordingly. To illustrate, an essay question on prerogative powers may well also embrace topic areas including Conventions; Government; Responsible Government; Judicial Review and constitutional reform.
Part 1 - General Introduction
Chapter 1 – Introduction: The Scope of Constitutional Law
Q. Evaluate the Advantages and Disadvantages of “Written” and of “Unwritten” Constitutions
Although a topic usually covered very early in study, a classic example of a Question embracing several related topics as part of its heart is how a constitution operates as a whole
Question ostensibly concerns form, but it is the consequential differences in operation that have significance.
Define briefly meaning and purpose of a constitution
Constitutions of different countries have many common elements, most obviously the institutions of State and their similar roles
- Liberal democracies share common values including liberty and democracy, and broadly similar checks upon abuse of power
- Separation of Powers, Rule of Law
Nearly all countries have a ‘written’ constitution. UK constitution is ‘unwritten’
- Explain that the terms are really misnomers
- In practical terms, most of the UK constitution is now written down and not all of the US constitution is written down
- Meaning of terms
- ‘Written constitution’ – codified in a limited number of documents
- ‘Unwritten constitution’ - not codified, many sources
Whether ‘written’ or ‘unwritten’, no two constitutions are the same
- For example, a written constitution may be long and detailed or short and vague, ordinary law or entrenched
- Here, the very different constitutions of the United States and the United Kingdom will be examined, the US constitution being a ‘model’ written constitution
UK constitution has evolved over a very long period of time
- ‘Thousand year’ history
- arguably continuously, barring ‘brief interruption’ of Cromwell’s Instrument of Government 1653
- In stark contrast, most countries ‘start again’ with a written constitution because of some major upheaval breaking its continuity of development
- For example, independence in the United States, revolution in France and World War II defeat and devastation for Germany
- These countries have purposefully created a new, formal, written constitution to provide new, different terms of governance
Compare and contrast (‘comparative analysis’) UK and US constitutions Advantages of US ‘classic’ written model
- Codified in a few, ‘hallowed’ documents such as The Constitution 1787, Bill of Rights 1791
- Citizens regard the constitution, ‘own’ it, aware of it
- Unifying, symbol
- Accessible and transparent
- Relatively detailed, lending to certainty and clarity
- Whereas UK constitution a patchwork quilt of myriad sources
- Strong separation of powers declared
- Legally enforceable by the individual against the State, for example the President
- Supreme Court may declare laws unconstitutional, Marbury v Madison (1803)
- Rigid, entrenched, protecting human rights from easy erosion
- Whereas UK flexible constitution has no special legal status, everything susceptible to easy change by Government and Parliament
- In significant part, including important matters, comprised of non-legal conventions
Advantages of UK unwritten constitution
- Constitutional matters are down to Parliament, the main player being House of Commons and in turn the (sackable) Government, hence there is democratic legitimacy, mandate and accountability
- Whereas US model puts this power in non-elected Judges
- The very flexibility of the UK constitution means that easy evolution and adaptation, with shifting values and as problems arise
- Contrast the rigid US model which makes adaptation very difficult, for example the repeated attempts to modify the ‘gun laws’ by altering the ‘right to bear arms’ (1791, Second Amendment to the Constitution)
- The argument for the US model is that it keeps the constitution beyond reach of the politicians
- many aspects of each system have both advantage and disadvantage
- Who is ‘more free’, UK or US citizens?
- No system is perfect; whom do you trust, the judges or the politicians?
- Inevitable compromises inherent in democratic governance
- Ultimately no system, a special document or otherwise, guarantees anything
- Influence of the will of the electorate
- Comes down to responsible behaviour of the key constitutional players
- Illustrate, for example General Musharraf’s abuse of the Pakistan constitution, 2007
Chapter 2 – Sources of the Constitution
Q. Explain the Sources of the United Kingdom constitution
Some include as sources theoretical embodiments such as Separation of Powers and the Rule of Law: This Answer does not.
A straight-forward Question, the Answer needs to be comprehensive, with explanation, sufficient detail and appropriate illustration.
- A constitution is a set of rules providing for the governance of a given nation state
- Whereas nearly all countries have a ‘written’ constitution, codified very largely in one or a few key documents, the UK has an ‘unwritten’ constitution’, made up from many different sources, a result of its long continuous evolutionary development
A source of the UK constitution is identified by whether or not it provides somehow concerning the UK constitution. If it is about the constitution, then it is a part of it
- It does not have to be of legal status, nor even written down
- Its subject matter is the key
- It may for example be about the organs of the State or the relationship between citizen and State
Specific illustrations, for example
- public spending on the upkeep of the Royal palaces
- powers of the judges
- devolution of powers to Wales
- Parliamentary procedure
Various categories (types) of source have been established over time
- Main source in volume
- Magna Carta 1215 (classed as a statute), jury trial
- The Act of Settlement 1700, judicial independence
- The Constitutional Reform Act 2005, strengthening the Separation of Powers
The common law
‘constitutional in their own right’, for example
- Entick v Carrington (1765), government according to law
interpreting legislation concerning the constitution, for example
- R (Countryside Alliance and Others) v Attorney-General and Others , concerning Parliament Acts 1911-49
Crown prerogatives, such as
- declaring war and peace
- non-legal rules of constitutional behaviour, politically binding
- stand out as the sole unwritten source
- For instance, technically the Queen may refuse Assent to a Bill but convention dictates that Assent must be given without challenge or delay
The Ministerial Code, the Civil Service Code
- Similarly non-legal, politically enforceable rules of acceptable conduct
The custom and practice of Parliament, for example
Parliamentary privilege, for example
- freedom from arrest
European Union law concerning constitutional matters, for example,
- The various treaties and their domestic ratification
The European Convention on Human Rights and Fundamental Freedoms 1950 and its case law and principles of jurisprudence
Legal writings, for example
Royal Commissions, Law Commissions and other official reports into constitutional matters, such as
- The Nolan Committee on Standards in Public Life 1995
- Eminent writings upon the constitution (often considered in cases concerning the constitution), the likes of Bagehot, Dicey, Wade, Jennings
- Is a conclusion necessary? Perhaps brief closing comparative reference to the contrast between written and unwritten models again (not repeating the introduction).
Part 2 - Fundamental Constitutional Concepts
Chapter 3 – The Rule of Law
Q. Does Dicey’s account of the Rule of Law bear comparison with contemporary constitutional practice in the United Kingdom?
- A mark of a civilised State is that its rulers and ruled accept the rule of law
- Anything may be lawful; much of what Hitler did was lawful
- In a liberal democracy such as UK, laws must accord with the fundamental values of that State, such as liberty and democracy
- There are many different theories of the rule of law
Dicey’s three principles
First, punishment may be imposed only for breach of law
- There must be no secret, arbitrary or retrospective laws, for example
- Arbitrary rule by a Monarch
- If one does something lawful one day but the next day the law is changed, with retrospective effect, so as to make such an act unlawful, then that is manifestly unfair as one is now caught by the new law
- No wide discretionary powers
- There must be sufficient clarity, certainty and stability in the law, so
- Laws must be sufficiently well drafted and be published so that one may know where one stands (ignorance no defence)
Secondly, that everyone is equal before the law
- Subject to the same laws before the same courts whatever one’s rank or status
- There can be no special laws or tribunals for certain categories of person
- Dicey championing the ‘English’ system over the French Droit Administratif system of separate courts for State officials
- ‘Everyone’ includes those who govern
- Governance must be according to law, Entick v Carrington (1765)
Third, individual; freedoms are best protected by regular, ordinary law administered through the ordinary courts of the land
- Better than special documents ‘guaranteeing’ freedoms in the nature of a ‘Bill of Rights’
- A source as opposed to an artificial construct
- Again, Dicey is championing the ‘English way’ over constitutions of the likes of France or the United States.
Contemporary relevance; critique of inconsistencies and distortions
- Not everyone is subject to the same laws or courts, such as
- Crown immunity
- Non-justiciable prerogative powers
- Police powers over ordinary citizens
- Particular laws apply to Landlord: tenant matters
- Designated Tribunals hear employment, immigration and asylum cases
- Specific, Administrative law actions against the State, for example Ministers
- There are retrospective laws, for instance the War Damages Act 1965
- There are wide discretionary laws and powers, for instance
- Delegated powers vested in a single Minister
- The same laws and courts are not open to all
- Those without the means (breaching right to ‘fair trial’, Convention Right 6)
- Does Dicey’s own theory of Parliamentary Sovereignty breach ‘government according to law’?
- The Queen in Parliament may pass an unconscionable Act, contrary to the values pursuant to which the Rule of Law operates, without challenge
- Partial shift to positivist rights protection in HRA, albeit not a Bill of Rights model
- Wider definition of individual freedoms than Dicey’s, embracing social and economic rights such as free health-care and education
- Arguably fundamentals still apply but much inaccuracy, some even when he wrote.
Chapter 4 – The Separation of Powers
Q. Explain the theory & purpose of the Separation of Powers and assess the extent to which it operates in the workings of the UK constitution.
A conventional, straight-forward discursive essay question
Describe, corroborate, analyse, evaluate.
Seems two aspects of roughly equal marks weighting
What is ‘S.o.P’
- Explain theory and give broad overview of common practice (in liberal democracies)
Specifics of the degree of Separation in U.K
- Practical insight with specifics explaining what is separated and what is not in the U.K constitutional ‘mechanics’, taking the organs in pairs
- Perhaps set the scene with a stance such as ‘constitutional governance of a democratic country & the danger of dictatorship’ and a précis of what the organs of state are and what each does
- Theory – Aristotle / Locke / Montesquieu
Purpose - limit on state power
- Trying to avoid or guard against concentration / excess / abuse of power by one organ having too much or being able to exercise the powers of another organ or by domination of the other organs
- Develop themes by contrast, most obviously the U.S with specifics of rigid separation in its written constitution; separate buildings, membership, functions and realm of each organ of state
- Influence of historical development especially shift from all-powerful monarch to parliamentary sovereignty
- Big picture, weak SoP, unwritten constitution, dominance of Parliament often in turn dominated by Government, flowing from fusion of Legislature and Executive
- Greatest separation, independent judiciary
- Constitutional Reform Act 2005 enhances judicial independence, at least in physical, visible terms, but it is not a radical bolstering or shift??
- Topical political happenings and issues, from ‘B.A.E’ to al Megrahi
Fusion of Government and Parliament can = Executive dominance
Leading on to other checks and balances, in the stead of weak SoP, e.g.
- Ministerial responsibility
- Vote of no confidence
- Internal, e.g.
- Leading on to other checks and balances, in the stead of weak SoP, e.g.
- External, e.g.
- Overview assessment, which will not be the same as that of someone else
[Don’t confuse different levels of governance, as in federal structures, this is not SoP]
[Don’t mistake bicameral Parliament as an example of SoP]
Chapter 5 – The Royal Prerogative
Q. What is the Royal Prerogative? Which are the principal Crown prerogative powers exercised by Ministers and why are there increasing calls for reform concerning these powers?
Let us hijack this question to concentrate upon method.
Be clear about what the Question does not cover, and resist straying onto this territory, namely those powers which still lie with the Sovereign personally and the associated criticism and arguments for reform.
Worded like this, the Question is a ‘gift’. Even though Crown prerogative is an odd thing, explaining it is not difficult. You then have to do little more than ‘list’ the chief powers, giving just enough flesh on the bones for each, explaining terms and illustrating exercise of each with actual examples.
You are then left with the interesting bit, close discursive exposition, analysis and evaluation of each point for and against reform. Your analytical skills are tested in the structure of your answer, not just the content of what you say. It is not simply a case of saying ‘they should be reformed because’ or ‘should not be reformed because’ or both. You must be comprehensive and thorough: yes, assess the case for reform of all or none, but also consider each specific prerogative power in turn. Whilst some points of principle or practicality may apply ‘across the board’, others powers may stand to be reformed, or not, on their particular merit or the particular circumstances of their exercise. It is also not a bald question of status quo or abolition; you should also tackle modification and adaptation and plant your feet firmly on the ground with enough specifics of what is to replace what is to go, and how the new scheme will work and be effective.
Obviously, you should be objective, following through on all issues with equal vigour and cogent, corroborated argument. Whilst your view or proposals may be elicited by a given question, it will never be appropriate for you to skew your answer according to your opinions, political or otherwise. A truly open-minded, forensic academic analysis will have you shed any pre-conceptions, start with a blank canvas, not know what your conclusion/s is going to be and then to reach ‘it’ by the power of your research, consideration and argument.
Brief content guide:-
Note the comment, in the final paragraph of remarks introducing the entire sample, concerning topic over-lap, using Crown Prerogative to illustrate.
Definition and explanation
Principal prerogative powers exercised by Ministers – there is a clear, comprehensive list in Chapter 5.
Specific powers likely to feature prominently in your detailed consideration
- War, involvement of Parliament, the 2003 Iraq war, the Butler Report, etc
- Civil Service and putting it on a statutory footing
- Treaty signing and Parliament’s involvement
Themes, Issues, for instance
- Democratic accountability via Parliamentary scrutiny
- Quality of decision-making by involving many and by adhering to rigorous process involving consultation, expertise, thorough debate and challenge
- Practicality, e.g. need for quick, decisive, secret, surprise action in war
Scrutiny to be before, during or after the material decision and consequent action?
- What is desirable, sensible, practicable
Reforms made and proposed
- Change Attorney-General role as Lord Chancellor?
- Coalition Government proposals
Chapter 6 – Parliamentary Sovereignty
Q. Is Parliamentary Sovereignty the ‘jewel in the crown’ of the United Kingdom constitution?
(There is pertinent overlap in the sample Question for Chapter 8, the relationship between EU law and national law)
If you find sovereignty (or any other Public Law concept) difficult to explain, try using illustrations.
The essence is critical analysis and evaluation of the pros and cons of sovereignty, with some comparative analysis of how another countries’ constitutions work. The U.S model is again a useful (contrasting) comparator.
This Question illustrates a common feature of Public Law assessment questions, overlap between topics, here including
- Types of constitution (written and unwritten; unitary)
- separation of powers
- All countries are sovereign States
- Each has sovereign law-making powers
- Many countries have a written constitution that limits the power of Legislature
UK Westminster Parliament has no such limit
The (Dicean) theory
Legal sovereignty lies with Parliament, political sovereignty lies with the people ‘Queen in Parliament’ (‘Parliament’) may make or unmake any law, that is
Pass an Act making whatever provision it wishes upon any subject matter
- All law is ordinary law, no entrenchment
Parliament is the sole source of sovereign national law
Made by the single prescribed method
A Bill becoming an Act by being approved by the House of Commons and House of Lords and then receiving Royal Assent
Illustrate this power, for example
- Parliament may pass an Act imposing, for good reason or none, draconian limits upon individual human rights as it thinks fit, for example
- At the height of the Northern Ireland ‘troubles’ in the 1970s, Parliament introduced internment (of suspected IRA terrorists) without trial
- The War Damages Act 1965 had retrospective effect and effectively undid the decision in Burmah Oil Co Ltd v Lord Advocate (1965)
- Not technically contrary to the Rule of Law but against the spirit of governance according to law?
Justification, the democratic legitimacy from the elected status of the main legislative House, the Commons
Significance of this power to legislate ‘unhindered’ is accentuated by it effectively being captured by a Government with an overall Commons majority
Constitutional role and duty of the courts
- To interpret and apply laws as made by Parliament
- Sovereignty is a common law rule which the judiciary obeys
- If a case involves a challenge to the validity of an Act of Parliament, the courts cannot question its validity, let alone judicially review it and declare it void for illegality
- They may not normally even investigate its procedural regularity beyond confirming that it has been passed according to proper Parliamentary procedure
- ‘enrolled Act’ rule, Edinburgh and Dalkeith (1842); Pickin (1974])
- Exceptionally, in R (Countryside Alliance and Others v Attorney General and Others  the courts considered the validity of particular Acts before them, the Hunting Act 2004 and the Parliament Act 1949 but could not have judicially reviewed either even if a problem had been found, which it was not
- Stark contrast with for example the United States’ constitutional position, entrenchment and judicial reviewed for unconstitutionality (Marbury v Madison (1803))
- The enhanced reach of judicial interpretation flowing from the section 3 Human Rights Act 1998 (HRA) does not affect, and
- Although senior courts may make a section 4 Declaration of Incompatibility, HRA does not challenge Parliament’s sovereignty
Apparently unbridled power
Accentuated by what Lord Hailsham termed ‘elective dictatorship’
- A Government with a working Commons’ majority controls Parliament
- Thus Government effectively controls Parliament
- Compounded by the weak separation of powers, for example
- Most significantly, there is considerable overlap between the Legislative and Executive as by convention Ministers sit in one or other House
- Ministers may make secondary laws, sometimes upon very important matters and with scant Parliamentary scrutiny
There are Checks and Balances operating to constrain this power, such as
- The primacy of European Union sovereign law, Costa (1964), Factortame No. 2 (1991)
- Political limits such as
- Legislating for Scotland, Act of Union 1707, Scotland Act 1998
- The rare occurrence of a rebellion from the Government back-benches or a vote of ‘no confidence’
- Day-to-day checks such as Ministerial Responsibility and Opposition scrutiny
Such checks may be relatively ineffective through combination of
- an unwritten constitution
- a unitary State with highly centralised power
- a limited (legislative) House of Lords, and
- a weak separation of powers (above)
- Judicial impotence (above)
- A danger of excess or irresponsibility filling vacuum left?
- Perhaps the only real ‘guarantor’ of the proper workings of the UK constitution is electoral self-correction i.e. being voted out for having acted unconscionably or otherwise going too far.
Part 3 - The European Community and Union
Chapter 7 – Structures and Institutions
A Question on this area is likely to concentrate upon the history of development of what is now the EU, the various institutions, their functions and powers, how they work with each other and with member states, as well as issues such as transparency, accountability and the vexed issue of whether the EU is, is becoming or will become akin to or an actual state in itself rather than a supra-national entity
Chapter 8 - European Union Law and National Law
Q. A (fictitious) European Union Water Pollution Directive took effect on 4th January 2011. It provides ‘Sewage must be chemically treated before being discharged into rivers’. The United Kingdom Parliament passes the (fictitious) Sewage Act 2011 (in force 27th June 2011) which provides that “Raw sewage must not be discharged into rivers unless there is no reasonable alternative”.
On 28th Junes 2011 Wessex Waste and Sewage plc (‘WWS’) won the contract to dispose of all sewage in the county of Wessex (‘Wessex’). It immediately began discharging raw sewage into the River Steam. Pursaunt to the contract, Wessex plc receives some central Government funding. The contract allows WWS to charge Wessex although the price for the job is strictly controlled by the regulator.
WWS says that discharge into the river is the only practicable manner of disposal and that the price regulation means that it cannot afford to treat the sewage before disposing of it.
Maxwell is in business selling oysters to restaurants. His licence to harvest oysters is limited to a stretch of the River Steam where WWS discharges sewage. None of Maxwell’s customers will buy his oysters, fearing contamination, and his business is facing financial ruin.
Advise Maxwell whether
- He can enforce the Directive in a UK court, and
- WWS’s claim that an Act of Parliament applies rather than the EU law and accordingly it is acting lawfully in discharging raw sewage into the river.
a) Apply law to facts
Is the Directive effective in UK law?
Article 249, a Directive is binding as to the result to be achieved, method of implementation down to Member State to decide how to implement.
Here, by enactment of the 2011 Act but does the Act constitute failed (improper) implementation of the Directive, given the discrepancy in provisions between the two?
Arguably, the wording of the statute including the caveat “unless there is no reasonable alternative” places a duty different in substance from that required by the wording of the Directive
Article 10, Member States must take action to ensure compliance and must not take action which might impede the application or effectiveness of it.
Arguably the 2011 Act impedes?
Does the Directive give enforceable rights to Maxwell as against emanations of the UK State?
A Directive imposes obligations upon individuals only once its provisions have been made into domestic law of the Member State.
But even without this the national court must interpret national law so far as possible in light of the wording and purpose of the Directive, Centrosteel Srl v Adipol GmbH (2001).
So would the court remove words from the Sewage Act 2011?
Van Duyn v Home office (1975), Vertical Direct Effect, conferring enforceable individual rights, provided:
Time for its implementation has passed
Wording clear and precise in imposing an obligation and thus an individual right
Requiring no further EU or Member State action (other than implementation).
Or else Indirect Effect, Von Colson (1984) (explain):
Is Wessex plc an ‘emanation of the State’?
Apply Foster (1991)
Private body but mix of public and private functions and funding
Remedy, damages, Francovitch, given Maxwell has clearly suffered loss.
b) Key issue is which of the conflicting laws takes precedence, the EU Directive or the Westminster Act.
It appears from the facts that the 2011 Act is meant to implement the Directive into UK law.
The Act does not express an intention to vary the Directive but this is what the difference in wording and the caveat (‘unless there is no reasonable alternative’) amounts to.
Apply the key provisions of European Communities Act 1972 (ECA) .
EU law applicable in UK, ECA section 2(1).
EU takes precedence over conflicting domestic UK law, ECA Section 2(4).
ECJ devices including Articles 249 and 10, above.
Summarise attitude of UK courts faced with conflicting laws from the two sovereign law-making bodies.
Brief reference to Macarthy (1979) and to Garland (1983) (Maxwell does not seek an academic discourse, rather specific advice on his legal position).
Domestic courts accept primacy of EU law, Factortame (1991).
So an argument by Wessex plc that it had no reasonable alternative, forced by economic necessity, will have no merit.
The 2011 Act does not attempt express amendment or repeal of ECA (Thoburn (2002)).
- None needed. Don’t refer to new Government planned legislation concerning
sovereignty as this Question requires problem-solving by application of law to
facts, not an essay debating future possibilities.
Part 4 - Central, Regional and Local Government
Chapter 9 - Central Government
A Question here is likely to focus upon the nature, functions and powers of the U.K. Government as well as relationships such as between Prime Minister and Cabinet, Ministers and Civil Servants, often over-lapped with Responsible Government, as illustrated in the following Question
Chapter 10 – Responsible Government
(Responsible Government also arises in the Sample Question straddling chapters 13, 14 and 15, Part V, Parliament, below)
Q. Why is Central Government generally so strong?
- The national UK Government comprises
- Cabinet, that is the Prime Minister and other senior Ministers
- Junior Ministers
- Supported by Civil Servants
- Power is centralised rather than diffused across national and regional tiers
- Ministers must be a member of one or other House
- Government is formed by the political Party with the most seats in the House of Commons (HC) after a General election
- Usually, ‘First Past the Post’ delivers one Party with an overall majority of seats
- Central Government is a part of the national Legislature
- Contrary to Separation of Powers, but
- Serving Responsible government, for example via
- Cabinet Collective Responsibility
- Individual Ministerial Responsibility, but
- Political sanction ultimately in the hands of the Prime Minister
This means that the governing Party
- Dominates Parliament, its business and votes
- ‘Inherits’ Parliament’s sovereignty, the power to make or unmake any law on any subject matter without judicial challenge to Acts, Pickin (1974)
- Giving so called ‘Elective Dictatorship’
- Vast majority of Bills are Government Bills, derived from
- Policy commitments
- Party discipline and whipping to win votes
- Even if amended, virtually all Government Bills are approved by each House
- Impotence of the Monarch
- By convention, Assent follows as a matter of course so Bills become Acts of Parliament, law
- Procedural devices such as Programme Orders
- Impotence of House of Lords
- Possible use of Parliament Acts 1911-49
Another significant limb of the power of national Government is Departmental Delegated Legislation
- Huge growth in use of secondary legislation
- Sometimes concerning very important matters
- Often very little Parliamentary scrutiny
- But subject to Judicial Review
Although beyond Question ambit, point out that there may consequentially be a particular concentration of power in the hands of the Prime Minister
Cover constraining influences in context of how effective they are
- Scrutiny but not control
- Control after the decision or action
- Legal and political checks and balances, for example
- Rule of Law, Government under the law, Entick v Carrington (1765)
- Relatively strong Separation of Powers between the judiciary and the other two organs, Act of Settlement 1700, but
- Weakened by the inability of the judiciary to review primary legislation
- Judicial Review of Ministerial action (above), for example in M v Home Office (1993)
- Primacy of EU law over national law, Costa (1964), Factortame (1991)
- HRA action against Government Departments as section 6 Public Authorities
- Accountability to Parliament, such as
- Responsible Government (above)
- Departmental and Prime Ministerial Questions
- The legislative process, including committee work and debate in the Chamber
- Exceptionally, a ‘no confidence’ vote
- The corrective influence of the electorate
- Media scrutiny and exposure
- A Government’s
- Control of Parliament and
- Extensive power
arguably gives cause for concern, but
- The dominance of the Commons over the Lords lends democratic legitimacy
- Whatever the constitutional system, for instance UK checks and balances or US model
- Written constitution, strong separation of powers, entrenched laws, judicial review for unconstitutionality
- Nothing can actually ensure against abuse of power
- Comes down to the constitutional players behaving responsibly, ultimately enforced by the electorate.
Chapter 11 – Devolution and Local Government
Q. What measures of devolution have been taken in the United Kingdom and what impact have they had?
Assessment Questions solely on Devolution are not common, more likely being one on recent and future reform, such as the final Question in this sample.
Suggested broad approach and content might include
- Brief history including reasons for growing demand and for reluctance of UK Parliament and Government until 1998
- Focus very much upon 1998 measures
- Take ‘the piece’ and then each of Northern Ireland, Scotland and Wales in turn, including summary historical perspective
- Greater London Mayor
- Why not England, including
- Abortive plans for English regional Assemblies
- West Lothian Question?
Themes and issues to pick up wherever along the way according to your structure
- Developing Conventions e.g Sewell
- Genie out of bottle
- Political reality over legal technicality of Westminster being able to reverse or stem the tide
- Has it bought off disgruntlement or fuelled hunger for more?
- Independence for Scotland? Calman Reports, Scotland Bill, planned Scottish referendum on independence
- Government of Wales Act 2006, enhanced power (to make primary legislation) now in place
- EU dimension, eg
- Viability of independent Scotland ‘within Europe’, impact of 2007+ ‘credit crunch’?
- ‘Federal Regions’
- Coalition policies for localism, devolution to communities e.g ‘Free Schools’
Part 5 - Parliament
Chapter 12 – The Electoral System
Again, an Assessment Question on this topic alone is uncommon, many institutions not devoting much time to it in course study. The ‘stock value’ of the pros and cons of First-Past-the-Post (‘FPTP’) and alternative voting systems may have dropped following rejection by referendum of the Coalition’s proposal to change from FPTP to the Alternative Vote system, this – and the mechanics of the various proportional and other systems used in other UK elections - is about all that may be asked so once asked, and the same territory cannot be examined over and over. There may be renewed debate with the government recommendation of a wholly or 80% elected Second Chamber to replace/reform the appointed House of Lords
Key issues to be explained, illustrated and evaluated might would include
- Efficiency, effectiveness, simplicity of each system
- ‘Safe seats’, minority parties and ‘Independents’
- Constituency link
- Proportionality in local and national representation
- Strong, stable government
- Engagement of the electorate
- Coalition, including specific reference to current UK experience
Chapter 13 – Introduction to the House of Commons )
Chapter 14 – The Legislative Process )
Chapter 15 – Scrutiny of the Executive )
Just as with a question requiring a narrative exposition of the institutions of the EU, a question asking you to trawl through the procedure by which a Bill or Statutory Instrument is passed is not going to be common. The answer may be looked up easily enough anyhow, meeting the well-established test of ‘knowing where to find the answer’.
Instead, the illustrative Question here focuses upon chapters 13 and 15.
Q. What are the Functions of the House of Commons? How effective is it in the discharge of these Functions?
Potentially huge scope, ‘everything’ cannot be covered. For example, in this Answer consideration of Committees is confined to arguably the most significant, the Select Committees. Concerning structure, it is suggested that you examine the effectiveness of each function when raised rather than trawling functions first and then returning to each to consider effectiveness. Main focus of this suggested Answer is upon check upon Government. Clearly, an overview of strengths and weaknesses of the Commons should be given.
- House of Commons (HC) is lower House of UK bicameral Parliament, in turn a part of its national Legislature, ‘the Queen in Parliament’
- It is the elected House, Members of Parliament (MPs) taking their seat if they win the given constituency in a General election
- Because of its democratic legitimacy it is dominant over the unelected House of Lords (HL)
Role in law-making
- MPs may initiate Bills but vast majority are Government Bills, most starting in HC
- Too much to go into detail of Bill procedure; some aspects raised below
- Perhaps limited reference to recent reform of ‘archaic’ procedures (such as hours of sitting) and to other possible changes
HC provides the Government
- By convention, Ministers must be members of HC or HL
- By convention, whichever political Party wins the most seats at a General Election is entitled to form a government
- Usually First Past The Post delivers an overall majority to a single Party
- Giving stable, strong government
The ‘fusion’ of Executive and Legislature enables Parliament to hold Government to account for its policy decisions, actions and legislation
Detail, illustrate and evaluate mechanisms
Convention of Individual Ministerial Responsibility
- Arguably militated by united front derived from Convention of Cabinet Collective Responsibility
Scrutiny in the legislative process
- Procedural stages of a Bill including
- Detailed scrutiny in Committee, clause-by-clause
Work of Select Committees, examining for instance
- Departmental policy initiatives, errors and problems
- Other matters of public interest or concern
- Generally perceived to have had growing impact
- Strengths and weaknesses – go into fair detail; selective illustration follows Strengths
- Rigorous scrutiny in the eye of the media
- Questioning of Ministers, Civil Servants and others providing public services
- Chairing is generally spread across the Parties
- Power to see documents
- Civil Servants may be questioned and usually attend, despite separation of powers (Parliamentary work, in Parliament)
- Ministers may be questioned and usually attend
- Convention now established that Prime Minister attends (Liaison Committee)
- Not meant to divide along Party lines in investigation and recommendations
- Membership may have a Government majority (but see above)
- Reporting may split Committee into Party Camps
- There may be a majority Report and a minority Report
- No power to Summons upon someone refusing to attend
- Some see their work as counter to the operation of Ministerial Responsibility to Parliament (Questions and debate in the Chamber)
- Whether a strength or flaw, effectiveness of an individual Committee may depend upon its Chairing; 2010 reform, Chairs now elected so perhaps less Government ‘stooges’?
Other devices such as
- Opposition days - limited
- Adjournment Debate
- Early Day Motion – limited but can be effective
- Motion of no confidence – ditto, last successful 1978
In one sense, HC is very effective indeed
- Wields considerable power and uses it
However, as a check upon Government arguably HC generally ineffective
- HC usually dominates the weaker HL
- Ineffective bicameral Parliament?
- Impact as and when Lords reformed?
- Impact of (intended) smaller Commons?
- Government usually dominates HC, Executive sovereignty
- However thorough, thoughtful and informed the scrutiny of Government legislation, Government with an overall majority of seats and good Party discipline, as is usual, will win virtually every vote
- MPs invariably vote on Party lines
- Party discipline enforced by the Whips
- Government very largely controls the business of the House
- The legislative programme, content and time-table
- Most business is Government business
- Coalition Government’s commitment to wrest power back from the Executive to backbenchers
- New Backbench Business Committee with say on use of parliamentary time
- Although strictly beyond Q remit, make point that power is often further concentrated in hands of Prime Minister
- Brief reference to
- Prerogative powers
- Cabinet dominance, style
- Arguably limited impact of Prime Ministers Questions
Constituency role of individual MPs includes work in HC
- A diligent MP will work hard in pursuing constituency business in HC
- Sanction of being sacked by his constituents come the next General election if thought to have been ineffective
- Coalition reform proposal to enable constituents to re-call sitting MP to face by-election for ‘serious wrong-doing’
Other functions which might briefly be explained and evaluated
- HC oversees Government ‘tax and spend’
- Raising and spending of public revenue
- Annual budget debate, Finance Bill and Appropriation Act
- Public Accounts Committee
- Delegated Legislation made by Ministers via HC
- Significant issue but is it really about HC?
- Lack of Parliamentary scrutiny
- Sometimes used for very important matters
- Draw together strands without repetition
- Significance of Coalition Government itself; self-restraining? More than usual influence of Government back-benchers as each party in the coalition vies?
- Give view, weighing pros and cons of what HC does and how it operates
- Effectiveness of last line of control, the political sovereignty of the electorate?
Chapter 16 – The House of Lords
Q. How Would You Reform the House of Lords and Why?
[At an appropriate point, make brief reference to removal of judicial element and function in 2010, furthering Separation of Powers, pursuant to Constitutional Reform Act 2005]
Suggested structure (not ‘set in stone’)
- How it is now
- Role and importance of a bicameral Parliament
- Standing and composition of Lords
- Relationship between Lords and Commons
- Functions and powers of Lords
- Relate key historical reforms
- Further reform, in context of Labour’s post-1997 ‘unfinished’ reform and the Coalition Government’s proposal for a wholly or 80% elected (and smaller) Second Chamber (HL/Senate), by Proportional Representation
- Appropriate cross-referencing of related topics throughout, such as
- Conventions (and specifically the ‘Salisbury Convention’)
- Written and unwritten constitutions
- Separation of powers
- Parliamentary sovereignty
- The ‘Queen in Parliament’ is the national UK Legislature
- Parliament dominates, the Monarch having no active role and very little power
- House of Commons (‘HC’) and House of Lords (‘HL’) comprise the bicameral Parliament, in which HC is dominant
Q doesn’t seem to embrace abolition of HL without replacement
- Briefly make point that bicameral Legislature preferable to single chamber
- More careful consideration of proposed legislation
- In UK system, more opportunity to scrutinise Executive
- In this piece, same rationale rules out further reducing HL powers , especially given the pronounced pre-eminence of HC (below); you may disagree
- Also, utilitarian point of spread of work burden, ever-increasing in volume and complexity
Standing, composition, how put there
- Starting point for reform is fundamental weakness of no democratic legitimacy
- Members not elected
- Secondary weaknesses in composition
- Majority hereditary Peers, there by birth not merit, corrected by removal of all bar 92, House of Lords Act 1999
- Ridding also the related in-built Tory majority
- Replaced with a more acceptable Government majority
- Unrepresentative of society
- Mainly older, white, upper-class ‘Oxbridge’ males
- Lessened over time by cross-section of appointed Peers
- Life Peerages Act 1958 (give key specifics)
- But still a flaw
Relationship with HC
- This democratic deficit led to primacy of elected HC
- Constitutional crisis resulting in Parliament Act 1911, extended by Parliament Act 1949 (give summary specifics)
- Explain and illustrate HC dominance
Functions and powers
- Principally a revising chamber with limited delay power (summarise)
- Other functions
- Including brief reference to CRA changes to judicial House now implemented
- Weakness in standing means pre-requisite for any change to functions and powers is change to membership and how put there
- Post-1997 change made, seen as ‘work in progress’
- Beginnings of membership changes (above)
- New, independent Appointments Commission
- Improving integrity, lessening Prime Ministerial patronage
- But nominations and ‘cash for honours’
- Government’s ‘final’, second-stage reform ideas spanned entirely appointed House to an entirely elected one, with various ‘hybrid’ mixes ranging in between
- General view, HC and HL, is HC primacy should remain and HL should not compete or rival
- Vested or self-interest of HC and Government (whichever Party) in keeping HL form weak to avoid potential challenge from a fully elected HL?, serving the interests of
- Self-preservation means HL does not ‘demand’ more?
- Proposal of Coalition Government for wholly or 80% elected House, election by proportional representation, draft Bill published
- Threatens challenge to HC primacy notwithstanding proposal for different electoral basis, process (proportional), terms of tenure and size of House?
There follows a variety of moot points and ideas. Your proposals may differ. The Question does not require – or preclude – original proposals from you, rather your recommendations (how and why HL should be changed) based upon substantiated argument. Rich pickings should be derived from the various primary sources including
- House of Lords Reform Draft Bill 2011
- White Paper (previous government) ‘The Governance of Britain - An Elected Second Chamber: Further Reform of the House of Lords’, Cm. 7438, July 2008
- White Paper, ‘The House of Lords: Reform’, Cm. 7027, February 2007
- Government White Paper, ‘The House of Lords: Completing the Reform’, Cm. 5291, November 2001
- Royal Commission on Reform of the House of Lords, ‘A House for the Future’ Cm. 4534, January 2000
One perspective is that, especially given the ‘fusion’ between Government and Parliament, one House needs to have primacy, and this serves strong government
The problem with a little checked HC is the resulting concentration of power in Government and, often in turn, in the hands of a Prime Minister
- Accentuated by
- Government’s common monopoly of parliamentary supremacy
- Lack of check via
- written constitution
- rigid separation of powers
- judicial review of primary legislation
What to keep, even in a changed HL?
- Qualities peculiar to or more pronounced in HL
- Experience and expertise
- Varied and considerable
- Not ‘career politicians’
- Often former Ministers and other senior figures
- Cross-benchers specifically, but also more generally
- Less Party ruled than in HC
- Not career politicians
- Not dependant upon popularity to keep their jobs, so not so influenced or inhibited in thinking and voting
- An argument for a ‘hybrid House’ rather than wholly elected
Enhanced HL position and powers might weaken Government’s hold but improve its effectiveness in the national interest
Elect cross-benchers? Similar to the very few independent MPs
Change title of House to reflect purpose rather than provenance of privilege?
Don’t mirror HC but make distinct
- Avoid HC rivalry via difference from HC
- As well as a hybrid composition, part elected: part nominated
- Also perhaps different
- (Smaller) membership
- Electoral system for elected element
- Representational basis
- For example ‘regional’, for instance larger regions, conurbations, cities?
- This should be a part of the analysis for each proposed change; here points relate to the more broad perspective
- More effective scrutiny and control of central Government
- Better scrutiny of legislation
- The national interest in more effective governance
- Bolstered confidence through greater legitimacy, respect and purpose
- Enhanced powers
- Purpose in place of weakness
- In most liberal democracies, specific calling for a second chamber, such as
- In a federal state, to represent the states
- In a nation with an entrenched written constitution, to protect that constitution
- Above all about limiting power, excess, abuse
- UK, to do likewise
- By providing a more effective check upon HC and Government?
- Represent a differently configured electorate, perhaps ‘the regions’?
- As part of a more wide-reading ‘package’ of change? such as
- A written constitution
- Judicial review of primary legislation
- Significantly enhanced devolution
Chapter 17 – Parliamentary Privilege
Assessment Questions on this (sole) area are uncommon. You might be posed a discursive essay on the history, point and possible reform of Privilege. Or you might face a problem question perhaps having to advise on scenarios concerning ‘arrest’ or ‘free speech’. Either is likely to borrow from recent events (criminal proceedings, conviction and imprisonment after the 2009 expenses scandal as well as alleged abuse in ‘outing’ beneficiaries of so-called super-injunctions).
Part 6 - The Individual and the State
Chapter 18 – The Protection of Human Rights )
Chapter 19 – Freedom of Expression and Privacy )
Q. Parliament passes the Publications Act 2011 (‘the Act’) making it a ‘public interest duty’ for anyone intending to publish an article or other written communication upon a ‘designated public interest matter’ to submit the proposed publication to the Home Secretary for permission to publish. The Act makes it an offence, punishable with imprisonment and sequestration of assets, to publish without such permission.
Pursuant to this enabling Act, the Home Office makes the Designated Matter (Terrorism and Multi-culturalism) Order 2011 (‘the Order’), making ‘terrorism and multi-culturalism’ a designated public interest matter. Megan is a freelance journalist who has been investigating and reporting upon policing and community relations in her locality after a number of suspected terrorists in the area who had been detained without charge and then, eventually, released. Her series of articles published in the main regional newspaper has enjoyed considerable and growing readership.
Megan is utterly incensed that her articles may now be banned. She wishes to bring court action challenging the Act and the Order, believing that her human rights must have been breached.
a) Which of Megan’s human rights appear to have been breached?
b) How may the Government be able to justify its interference with those rights?
c) What powers will the court have in relation to the Act and the Order?
a) It seems likely that Megan will not be granted permission
Press censorship, prima facie breach of Human Rights Act 1998 (HRA) Convention Right 10(1)
- Free expression
- Imparting ideas and information
b) The Government must show a ground for restriction under Convention Right 10(2)
- On the facts, most obviously
- National security
- Public safety
- Prevention of disorder or crime
- Protection of the rights of others
- Although detail of past and intended publications is not known, probably at least one of these will be provable
- The State must also satisfy the court that such interference is
- Prescribed by law, clearly satisfied on the facts
- Necessary in a democratic society, not difficult for the Home Office to show
- Pursuant to a legitimate aim, most obviously the grounds for restriction (above)
- Proportionate to that aim
- On the facts, proportionality will be the issue
- It is not just a question of how ‘draconian’ the measure is, but what alternative, lesser action could have been taken
- Presumably the Government case would be that once the information is out, the harm (to community relations, perhaps even to public safety) will be done, so the only option is prior restraint
- Judicial Review of the decision is beyond the remit of the Question
- If Megan were to publish without having gained (or perhaps having even sought) permission, she will be liable to prosecution
c) The Act
- HRA does not change Parliamentary sovereignty, it does not give the courts power of judicial review over primary legislation past or present
- The most the court (High Court and above) can do is
- If it cannot find an interpretation of the material provisions of the Act which is compatible with Convention Right 10, then it may make a Declaration of Incompatibility
- Encouraging Parliament (and Government) to reconsider the ‘offending’ legislation with a view to changing it as to the future
- Parliament (and Government) may do as it pleases in response
- The position of the parties and the case outcome is unaffected
- The court may review secondary legislation for incompatibly, unless the (enabling) Act prevents this (section 3(2) (c) HRA)
- None necessary.
Chapter 20 – Freedom of Association and Assembly )
Chapter 21 – The Police and Police Powers )
(Freedom of Expression (Chapter 19) also features here of course)
Q. ‘Peace Thru Dialogue’ (PTD) is holding a 3-hour static open-air meeting, with speeches, today (a Friday) in central Birmingham. Supporters are being transported in from all over the country.
The police are tipped off that 20 to 30 members of an anarchist group,‘Trouble In the Cities’ (TIC) will be mingling with the crowd at the demonstration. TIC has no declared goal but its website ‘blog’ is always entitled ‘Direct, Disruptive Action’ and its activists regularly start fights at public Protests organised by others. The senior officer in charge tells her officers that whilst the record of behaviour of most ‘mainstream’ PTD supporters has generally been very good, she expects trouble.
Acting upon intelligence, the police monitor a bus carrying supporters from Blackpool. They stop it on the M6 near Birmingham. The police do not allow anyone off the bus. They search the bus and find items they consider capable of being used as weapons. The police tell the passengers that they consider a breach of the peace imminent. They make no arrests but instruct the driver to turn around and drive the passengers back to Blackpool immediately, without stops on the way. The police escort the bus back the entire way. The journey back takes 2 hours 20 minutes.
Approximately 4000 PTD supporters attend the demonstration. It passes off without major incident although 22 TIC supporters are arrested for shouting ‘fascist pigs’ at the police and chanting ‘fight, fight, fight, fight’. The last speech over, the assembly ends at 4pm.
The Friday ‘rush hour’ is established and will last until 7pm. There are 5 road exits, one of which could be used to funnel off the crowd without too much disruption to traffic but would entail the protestors passing the Military Arms Procurement headquarters. The police cordon off the area, confining the crowd, and announce to the crowd that no-one within the police cordon will be allowed to leave without police permission. The crowd is held there until 7.15pm.
Explain the legal issues arising.
Note: you may assume that requisite advance notice of the demonstration was given to the police.
- Public Assembly
- Cite material facts and apply material law, section 16 Public Order Act 1986, section 57 Anti-Social Behaviour Act 2003
- Convention Right 11(1) exercise of Freedom of Peaceful Assembly
- Free Expression, Convention Right 10(1)
- From given facts, no apparent problem with what was said, gestured or displayed (placards, flags)
Monitoring the bus
- No apparent breach of law, whether or not covert
- No privacy obstacle
Stopping the bus, preventing the PTD supporters joining the assembly
- Moss v McLauchlan (1985), R (Laporte) v Chief Constable of Gloucestershire Constabulary (2004)
- Reasonable apprehension by the police of an imminent breach of the peace intended by these passengers?
- Was it reasonable to expect disorder once these supporters reached the protest?
- ‘Weapons’ found; capable of causing harm
- PTD goal apparently suggests a peaceful, non-violent approach
- Intelligence on passengers not detailed, but
- The intimation from the facts is that a minority of PTD supporters (generally) are more hard-line than the ‘mainstream’ element; and the record of the peaceable majority is not without blemish
- On the face of it, stopping and turning back just this bus would not address the anticipated TIC-inspired trouble; distinguish Laporte facts where it was anarchists who were stopped and turned around
- Necessary and proportionate given the apprehended breach of the peace?
- A lawful ground for restriction, for example ‘prevention of disorder or crime’, Convention Rights 10(2) and 11(2)
- The indication from Laporte is that if the police had stopped at this, with the simple instruction not to proceed to the assembly, this would likely have been lawful
No stops en route back
- False imprisonment?
- The most significant similarity with Laporte, effective ‘imprisonment’, without refreshment or toilet breaks, for about the same time period
- Held disproportionate, not justified, breaching Convention Right 5
- The facts fall short of constituting inhuman or degrading treatment, Convention Right 3
The arrests at the demonstration
- Justified by imminent breach of the peace?
- Section 4 Public Order Act 1986, fear or provocation of violence (give specifics)
- Free speech may cause offence but ‘Fascist pigs’ and the ‘fight’ chant together probably meet the requirements of section 4
- Fear of immediate and unlawful violence, Horseferry Road Metropolitan Stipendiary Magistrates ex parte Siadatan (1990)
Confinement within cordon for 3 hours
- Similar facts to Austin v Commissioner of Police of the Metropolis (2005) save period of confinement, roughly half as long
Note R (McClure & Moos) v Commissioner of Police of the Metropolis Apr 11 EWHC 957 (Admin) High Court decision concerning kettling
- Liberty of the person
- False imprisonment
- Sections 13 and 14 Public Order Act 1986
- Presumably the police believed a breach of the peace was imminent
- Giving police justification of necessity for their actions, as on the
- No unlawful imprisonment
- Apparently of bus, not of passengers
- Lawful on the face of it; 2011 revision of PACE Code B
- Provided Answer comes off the fence so far as possible and appropriate on each point, no overall conclusion required.
Chapter 22 – State Security
Q. Has there been a shift in the balance between the protection of the human rights of the individual on the one hand and safeguarding national security on the other in the United Kingdom since ‘9/11’? Where should the balance be struck?
Focus should be upon the major anti-terrorism measures and their juxtaposition with the key affected rights such as expression and fair trial as played out through case law. Suggested structure; detail the key counter-terrorism provisions with critique and key case analysis pervading rather than following
- Swathe of UK anti-terrorist laws in response to ‘9/11’, some controversial if not draconian
- Coincident with HRA 1998 (HRA) which came into force in 2000
Impact of HRA
- Arguably strengthened protection of individual human rights
- Enhanced interpretive role of the judiciary (specifics, sections 2 and 3)
- Not an entrenched Bill of Rights; no effect upon Parliamentary Sovereignty
HRA cases have been the battle-ground
- Related tension between Government and courts
- Controversy as arguably a test of a civilised nation is how it treats a suspected or accused person (terrorist or not, a national or non-national)
- Innocent until proven guilty, fair trial, Article 6
- Liberty of the person, Article 5
- Free expression, Article 10
- Respect for private and family life, Article 8
- The ‘opposing right’: national security includes not just the security of the nation but the safety of its citizenry, ‘collective security’, translated into each individual’s right to life, Convention Right 2, not to be blown to pieces
Terrorism Act 2000
Section 1 defines terrorism (give specifics including Rehman (2002))
- Broad scope
- Extensive ‘list’
- Includes action or threatened action inside or outside UK
Proscribed organisations ‘concerned in terrorism’
- Extendable list at Schedule 2 Part II
- Power to limit their free association
- Membership of or support for a proscribed organisation
- To solicit
- Give money for terrorist purposes
- Not to inform police as soon as possible of one’s suspicion that someone has committed a terrorist offence
Police powers to
- Stop and search, and/or
Arrest without warrant someone reasonably suspected to be a terrorist
- R (Gillan) (2006)
Anti-Terrorism, Crime and Security Act 2001
Obtain confidential information from public bodies for the purpose of any criminal investigation
- Not limited to national security or to terrorist activity
Prevention of Terrorism Act 2005 (‘PTA’)
Unlimited detention replaced by Control Orders
- Again made by secondary legislation so susceptible to Judicial Review
- Imposed for suspected involvement in ‘terrorism-related activity’
- non-derogating or derogating from Article 5 (give specifics)
Restrictions such as
- Confinement to home or curfew
- Limits upon use of telephone and internet
- Who may visit
Secretary of State for the Home Department v JJ (2007)
- Restrictions taken together breached Convention Right 5
Secretary of State for the Home Department v E (2007)
Convention Right 5 not breached on the facts as
- The terms of the Control Order allowed E to live in his home with his wife and children
- With freedom of movement save during the hours of restriction
- Convention Right 5 not breached on the facts as
- There have been absconsions
- MB (07)
- AF(No. 3), AN, AE (09); AF, AE (10)
- Cart & Ors (10)
- Refer to 2011 replacement by Terrorism Prevention and Investigation Orders (‘T-Pims’)
Terrorism Act 2006
- Further broadening the definition of terrorism by new offences
- Acts preparatory for, promotion or encouragement of, training for or ‘glorification’ of terrorism
- Very controversial extension of detention without charge to up to 28 days
- Admissibility of intercept evidence in some court proceedings
Counter-Terrorism Act 2008
Relaxation of rules on use of intercept evidence
DNA/Finger-printing of those subject to a control order
Extended powers of entry, search and seizure
Power to enter premises to monitor compliance with Control Orders
- Having traversed all sides, give a view which should be consistent with argument made (above), perhaps also referring to
- Home Office: courts clash where courts have asserted jurisdiction, over delegated laws
- Controversy over length of detention without charge
- New Government’s proposal for a ‘British Bill of Rights (and Responsibilities)’; how the Judges’ powers will fare
Part 7 - Introduction to Administrative Law
Chapter 23 – Judicial Review: Introduction, Jurisdiction and Procedure)
Chapter 24 – Grounds for Judicial Review I: the Substantive Grounds for Judicial Review)
Chapter 25 – Grounds for Judicial Review II: Procedural Grounds: Procedural Impropriety )
Q. Meredith District Council has statutory powers relating to the ownership and management of playing fields and recreational open spaces. It recently bought a large field from Gladys Rollafella for use as a playing field. Gladys is passionate about football so when purchasing the land the Council promised her that the proposed new playing field would only be used for football.
The playing field has been in use for 2 months. Gladys is now the manager of one of the football teams that use it for local league matches. Her team is called ‘Cameron’s Cubs’, named after the Prime Minister and leader of the Conservative Party. The Council, which is Labour-controlled, uses its land management powers to ban Cameron’s Cubs from playing on the playing field until it changes its name to ‘Labour’s Lads’. Gladys and the team players do not wish to change the team’s name.
The Council has also decided, following representations from local organisations representing other sports that the playing field is from now on to be used not just for football. It already has firm fixtures for hockey, rugby and cricket.
Advise Gladys upon
- Legal grounds of challenge to what the Council has done; and
- Likely remedy or remedies, should she win.
a) Requiring name change, ban on Cameron’s Cubs playing
- Irrelevant consideration (and possibly use of powers for wrongful purpose)
- Wheeler v Leicester City Council (1985), political policy not lawful basis for the decision (facts similar, give specifics)
- Procedural impropriety
- Breach of natural justice, not being dealt with in a fair manner?
Allowing other sports
- R (Bibi) v Newham LBC (2001) (give specifics)
- Did Meredith Council act in a way that created an expectation in Gladys’ mind?
- R v Secretary of State for Health ex parte US Tobacco International Inc (1992)
Supreme Court Act 1981 section 31
On the facts,
- A Quashing Order of the ban and linked name-change
- If Gladys wins on legitimate expectation, perhaps also a Prohibition Order in respect of the allowance of use for other sports
- Damages, in conjunction with at least one of the other remedies, if Gladys can show loss (as if she had pursued a civil action)
a) What constitutes Bias as a ground for Judicial Review?
b) What are the procedural requirements for someone to be able to bring a court action in Judicial Review?
a) Judicial review is above all about the fairness of a judicial, quasi-judicial or administrative decision or action taken
- Fairness (or ‘justice’, in court proceedings) must be done and be seen to be done
- No-one should be judge in own cause
Ground, Procedural Impropriety
- Breach of natural justice
- Embracing bias
There is overlap with HRA Convention Right 6, Fair Trial
- Fair, impartial, independent, public hearing within a reasonable time
- Note that a) could extend to include a third limb, an account of the elements of fair hearing or, more specifically, legitimate expectation.
There must be no bias and demonstrably no suspicion of even the possibility of bias
- Dimes v Grand Junction Canal Ltd (1852)
- R v Sussex Magistrates ex parte McCarthy (1924)
Bias may be
- Financial, for example Dimes (1852), McCarthy (1924) above (give specifics)
- ‘Other’, affecting or seeming to affect impartiality
- Lack of open mind (objectivity), for example
- R v Bow Street Metropolitan and Stipendiary Magistrates ex parte Pinochet Ugarte (1999) (give specifics)
- Locabail (UK) Ltd v Bayfield Properties Ltd (2000)
Disqualification for bias may be
- Automatic, as in Dimes (1852) where the Judge had a financial interest in the case before him
- Subject to a test based upon all relevant case circumstances
- R v Gough (1993) put it as a real danger of bias, whereas
- Porter v Magill (2002) framed it as if a fair-minded and informed observer would believe that there was a real possibility of bias
- No conclusion required
b) Taking ‘someone’ to refer to an individual (and not to an application by an interest group)
Supreme Court Act 1981 section 31
There is no entitlement to a judicial review
First the applicant must go through an initial hearing for the High Court to decide whether to permit a full hearing of the case
Case merit is not considered, rather the court must be satisfied as to a number of factors
That the application is within time
- Within 3 months of the decision or action the subject of the application
That there appear to be grounds (a prima facie case)
- Sifting out ‘groundless, unmeritorious or tardy harassment’
The court also filters out matters considered non-justiciable
- Such as national security
Does the applicant have locus standi?
- Sufficient interest, R v Inland Revenue Commissioner ex parte National Federation of Self-Employed and Small Businesses (1982)
- The applicant’s standing may again be considered at the full hearing
Was the decision or action, the subject of the application, taken by a public body
- if it is a private body then the court may have to examine the particular body’s functions (give specifics)
- That the decision or action the subject of the application is a matter of public law
- That the application is within time
- Permission may not be granted if an alternative ‘remedy’ lies open, that is another course of legal action with redress.
Chapter 26 – Commissioners for Administration and Tribunals
Not a likely area for Assessment as most courses do not devote appreciable time to coverage of ‘extra-parliamentary’ matters and other relatively marginal topics such as Tribunals and Inquiries.
Q. Assess the impact of the major constitutional changes made since 1997
Significant constitutional reform goes on apace, with no let up suggested from the Coalition government. ‘1997 plus’ remains the appropriate staging point as the last government (1997–2010) enacted major change during its period in office. Its measures started to appear on the statute book in 1998 and similarly 2011 is seeing the first of its policies and proposals coming into being, at least draft form. Clearly, proposals are not laws but reference at least to the main measures should be made to give an up-to-date picture and to show that you have embraced the continuum of change, classically illustrated by the continuing ‘saga’ that is House of Lords reform.
Contemporary constitutional change is very largely by parliamentary enactment. Whilst the principal source for this will be Westminster, you should include legislative change emanating from the devolved institutions and the EU as well as the influence of case-law. Reform is not confined to measures of law: political measures matter too, perhaps at the hand of the Prime Minister or by creation or by convention.
Here is a suggested ‘package’ as this ink dries. By the time you tackle your own answer to such a question, some of it might need to make way for other developments, perhaps in the tension between anti-terrorism provisions and human rights of suspects, a new ‘British Bill of Rights’ or the balance between privacy and free expression in light of present controversy and promised review of ‘super injunctions’.
- 1997 Labour Government manifesto included constitutional reform agenda
- Much of it enacted, of which most at least partially implemented
Mayor for Greater London
- Difficult either to class or assess as major change as it directly concerns only the capital and not the country
- Considerable powers, large budget, very large population
- ‘The City’, key global financial centres but largely unaffected by Mayoral post
- In UK terms, some constitutional significance in strengthened local governance
- far greater potential significance, if other cities opt for elected Mayors too
- None yet
- One other attempt at more autonomous, localised regional governance and devolved powers
- Regional Assembly for North East conurbation, met with crashing electoral defeat when put to the people concerned by referendum, 2004
Devolution of executive power from central Government and of legislative power from the Westminster Parliament
- UK a unitary State
- even with established structures of regional and local governance, legislative and executive power was (still is?) concentrated very largely in London (Westminster and Whitehall)
- Even more stark, dominance of England over Wales, Northern Ireland, Scotland
- Growing skew between south-east England and other population areas (‘north–south divide) since 1980s with London’s exponential growth as a centre of population, international finance and wealth
- Arguably devolution has effected a considerable shift in power from the centre
The Acts of 1998
Devolve significant powers to each constituent part of UK save England
Scotland is given the greatest autonomy including law-making and limited tax-raising (give detail)
Westminster’s sovereignty is not affected
- Powers delegated may be taken back
- Significant political reality is that this is most unlikely ever to happen
- Seems already embedded and likely to grow
- Already progressed in Wales
- After cautious beginnings, provisions in the Wales Act 2006 have been implemented following referendum approval to allow the Welsh Assembly to pass primary legislation
- 2011 Scottish election produced the first SNP majority Government; enhanced powers after the second ‘Calman Report’ (2009), Scotland Bill 2011 presently before the Westminster Parliament
- Scottish Executive plans a referendum of the Scottish people on independence from UK
Reform of the legislative House of Lords - composition
- Cannot yet be classed as a major change, work-in-progress
- First stage reform, House of Lords Act 1999 removed most hereditary Peers (give specifics)
- Second, main stage failed to gain cross-Party consensus under last government
- House of Lords Reform Bill 2011 published (summarise), would have significant impact if passed as proposes change to wholly or 80% elected membership
Reform of the judicial House of Lords may be classed as major
- Enhancement of the Separation of Powers
- Constitutional Reform Act 2005 (CRA) removed ‘Law Lords’, making them the new ‘Supreme Court’ in its own, separate building
- Difficult to assess the new court’s ‘status’/stature yet though there is interesting debate brewing concerning its role as final domestic court in Scottish cases
Changed, reduced role of Lord Chancellor
- CRA has ended
- Judicial roles, head of the Judiciary and senior judge
- Legislative role, President of the Council presiding over Lords’ proceedings
- Leaving only the Executive function as a Cabinet Minister
- Also, legitimacy bolstered as no longer has to be a Peer (present and last incumbent MPs)
Arguably the change with the greatest impact has been the Human Rights Act 1998 (‘HRA’) (in force 2000)
- Incorporating most of the human rights of the European Convention (‘ECHR’)
- Domestic enforcement and remedy
- Changing the nature of protection of individual freedoms
- From residual liberties to positive human rights
- Corresponding duties upon the State
- Demonstrate influence via ensuing case-law? Perhaps
- Doesn’t affect established common law and statutory civil liberties
- Sections 2 and (especially) 3 giving enhanced powers of interpretation to the courts (give specifics, case illustrations)
- Limit of no ‘judicial legislation’
- Section 10 Declaration of Incompatibility (specifics, case illustration)
- Influence upon practice of Public Authorities
- Courts are Public Authorities
- Significant limit, no change or challenge to Parliamentary Sovereignty
- Arguable shift in balance between State interests and individual freedoms
- But heightened friction post ‘9/11’
- New anti-terrorism measures
- Played out in case law and
- Associated tension between Home Office and the courts
- For example, A v Sec St Home Dept (2005), Sec St Home Dept v MH (2006)
Freedom of Information Act 2000 (‘FOIA’) (in force by stages to 2005)
- Culture of secrecy, local and central Government and Civil Service
- Voluntary Code little embraced
- FOIA gives for first time, a legally enforceable right to official information
- To know if information sought exits and, if so
- To have it, upon application and fee
- Limits include
- Information, not documents
- Compounded by knowledge disadvantage of applicant in framing the request
- Extensive exemptions (specifics)
- Growing up-take especially by journalists and interest groups (illustrate)
- Current Information Commissioner taking high-profile stance on issues of access and surveillance (illustrate)
- Has FOIA changed the ‘Whitehall culture’ (yet)?
- Independence to the Bank of England 1997
Conclusion? Probably no time or space for one save the most brief of polishing off, perhaps referring to what may be in the offing or to signs of impact trends in key areas raised above (e.g stature of new Supreme Court, Scottish referendum, political developments in Northern Ireland)?