The Uk Constitution Essay Prompts

Chapter 2

  1. What is the purpose of a constitution?

    At State level, a constitution is the body of rules which:
    1. establishes the key institutions of Legislature, Executive and Judiciary,
    2. prescribes the mechanism for choosing the members of those institutions; and
    3. sets out the extent of their powers.

Constitutions usually also assert the key rights of the State's citizens, and the extent to which the State can interfere with them.

  1. What is the difference between a codified constitution and an uncodified constitution?

A codified constitution is one in which all the key rules of the constitution have been organised into a single document - as in the USA. Typically, a codified constitution is a form of "higher law" to which all other laws are subject - so, in the USA, if an ordinary law conflicts with the constitution, then the Supreme Court of the USA is required by the constitution to strike it down.

The UK, on the other hand, has an uncodified constitution. This means that, while the UK does have rules about e.g. who can vote in Parliamentary elections, how Government Ministers are chosen, and key citizens' rights (e.g. the Human Rights Act 1998), these rules are found in a variety of sources, and have no special legal status. Some of the rules (e.g. conventions as to how Government Ministers are appointed) are not even laws at all - just expectations about how the Queen and other key players in the Constitution will exercise their legal powers.

  1. Why doesn't the UK have a codified constitution?

Most countries adopt a codified constitution at a key changing point in their history - e.g. following:

  • a declaration of independence from a former colonial power (USA)
  • a violent revolution (France)
  • defeat in war (Germany)
  • a breakdown in the previous political system (Russia)

The UK has not experienced any of these events in almost 1,000 years. Instead, the UK's uncodified constitution has evolved gradually, through a series of individual laws and changes, rather than in a single "big bang".

  1. What is entrenchment?

Since a codified constitution is a deliberate attempt to articulate the defining political, social and legal values of the society which adopts it, it usually contains mechanisms designed to "entrench" those values, and protect them against change. These mechanisms typically require any law amending the constitution to be passed by a special majority in the legislature, and/or to be approved by a referendum. This makes it more difficult to change the constitution than it would be to change other, ordinary laws.

For example, while there have been 27 Amendments to the USA's constitution since it was adopted in 1787 (so it's not impossible to change it!), the constitution itself requires any Amendment to be approved by a two-thirds majority in each chamber of the legislature, the President, and three-quarters of the 50 States. In reality, this is extremely difficult to achieve - the most recent Amendment took 203 years to be passed!

By contrast, in the UK, even "constitutional statutes" such as the Human Rights Act 1998, are not subject to any special law-making procedures, and can be changed or repealed just as easily as any other Act of Parliament.

  1. What is the theory of the separation of powers?

This is a political idea, set out in Baron de Montesquieu's De L'Esprit de Lois, which requires the 3 key institutions of State, i.e.:

  • the legislature (the law-making body - in the UK, Parliament);
  • the executive (the body that runs the country - in the UK, Government); and
  • the judiciary (the body which decides legal disputes - in the UK, the Courts)

to be separate both in function and personnel. This means that none of the 3 institutions should perform or interfere with the functions of another, and that no one should work in more than one of the institutions.

The USA's codified constitution is firmly based on the separation of powers. The UK's uncodified constitution, on the other hand, contains significant overlaps of both function and personnel between Parliament and the Government.

Chapter 3

  1. List the sources in which the rules of the UK constitution are found
  • Primary legislation (Acts of Parliament, e.g. the Human Rights Act 1998)
  • Secondary legislation (e.g. an Order made by the Secretary of State for Wales under section 4 of the Government of Wales Act 2006, changing the date of a general election to the National Assembly for Wales)
  • Case law (e.g. M v Home Office, which establishes the key constitutional principle that a Government Minister can be in contempt of court)
  • EU law (which takes direct effect in the UK, by virtue of section 2 of the European Communities Act 1972, and contains significant rights in relation to free movement and employment)
  • European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998, which makes decisions of the European Court of Human Rights highly persuasive in UK courts)
  • Conventions (non-legal rules about how the key players in the constitution are supposed to behave)
  1. What is the difference between a legal rule and a non-legal rule?

Legal rules are laws. Laws are enforceable, i.e. the courts will hear complaints and provide remedies they are broken.

Non-legal rules are known as "conventions". They operate by the common consent of those to whom they apply, and are observed only for so long as they are perceived to be pragmatic. For example, there used to be a convention that Government Ministers would take responsibility for errors in their departments, and would resign in the case of a serious error - even if they were not personally at fault. As the size of Government departments has grown, this convention has changed so that while Ministers are expected to tell Parliament about mistakes in their department, they are no longer necessarily expected to resign for them.

If a convention is breached, then there is no basis for a complaint to a court, nor can the courts provide a remedy - see Attorney General v Jonathan Cape (Chapter 7).

  1. Give an example of a convention.

Royal Assent - while, legally, the Queen has the power to decide whether or not she signs an Act of Parliament into law, in practice Royal Assent has not been refused since 1707.

Appointment of Ministers - the Queen appoints as Prime Minister the party political leader who commands the support of a majority of the members of the House of Commons, and appoints other Ministers on the PM’s advice.

Both these conventions persist, because the Queen (who is unelected) recognises the democratic legitimacy of elected Members of Parliament to enact laws, and to choose the leader of the country.

  1. Primary and Secondary legislation - what's the difference?

Primary legislation is an Act of Parliament - made by the legislature, i.e. House of Commons, House of Lords and the Queen acting together (see Chapter 5 for details).

Secondary (or "delegated") legislation, on the other hand, is made by the executive - i.e. by Government Ministers, using powers granted to them in Acts of Parliament.

The distinction is important because while the courts traditionally have no power to question or strike down Acts of Parliament (see Chapter 6), they can strike down secondary legislation on the grounds that it exceeds the powers given to Ministers in the enabling Act of Parliament.

  1. Define a "constitutional statute"

"An Act of Parliament which:

(a) conditions the legal relationship between citizen and State in some general, overarching manner, or

(b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights."

Lord Justice Laws, Thoburn v Sunderland City Council [2002] EWHC 195

Examples given by LJ Laws include the Human Rights Act 1998, the European Communities Act 1972, the Police and Criminal Evidence Act 1984, the Scotland Act 1998 and the Government of Wales Act 2006 - all covered in detail later on in this book.

Note that this definition, and indeed the whole concept of a "constitutional statute"  in the UK, is entirely a common law construct, made up by the judges - Parliament itself does not recognise hierarchies of its own Acts, nor is there any special procedure for making, changing or repealing a "constitutional statute"

Chapter 4

  1. How does the UK's constitution fail to conform to a model separation of powers?

While there is now proper independence of the judiciary from the legislature and executive, there remains a significant overlap between Parliament and Government, in both:

  • function - most legislation made in the UK is secondary legislation, made not by Parliament but by Government Ministers, and subject to limited (and, arguably, ineffective) Parliamentary scrutiny (see Chapter 5)
  • personnel - Government Ministers are almost all Members of Parliament, who are therefore members of both the executive and the legislature
  1. How did the Human Rights Act 1998 impact upon the separation of powers in the UK?

Incorporation into UK law of Article 6 of the European Convention on Human Rights required defendants in both civil and criminal cases to be tried by an "independent, impartial tribunal".

This meant that the House of Lords could no longer perform both legislative and judicial functions, and led to the creation of a Supreme Court, independent of the legislature, by the Constitutional Reform Act 2005. That Act also significantly reformed the role of the Lord Chancellor, who was previously Head of the Judiciary, a member of the Government and a member of the legislature - see Chapter 8 for further details.

Sections 3 and 4 of the Human Rights Act have had a more subtle impact on the separation of powers - see Question 5, below, and Chapters 6 and 8 for further details.

  1. What does "elective dictatorship" mean?

This term was coined by Lord Hailsham, Lord Chancellor during the 1970's and 1980's.

It means that if a single political party wins a majority of the seats in the House of Commons in a general election, the UK's uncodified constitution affords that party, in effect, absolute power until the next election. So long as the party members remain loyal to their leader, that party will be able to enact whatever laws it wishes, without fear of challenge in the courts (see Chapter 6) and will form the Government responsible for implementing those laws.

  1. What is "the rule of law"?

A difficult concept to pin down!

At its simplest, it means that Government must act within the legal limits set by Parliament, and that the courts will enforce those limits - so that if the Government goes beyond them, citizens can go to court for a remedy. The flip side of this is that, so long, as Government does act within those limits, its actions are legitimate.

A more complex definition of the rule of law encompasses the notion that, in order to be truly legitimate, laws must be just and fair, as in order to be effective they must command the respect of, and be obeyed by the people to whom they apply. So laws which are cruel, discriminatory and unfair - as in Nazi Germany, where laws authorising the arbitrary murder of ethnic minorities were passed, implemented and upheld by  State institutions controlled  by the Nazi Party - arguably do not conform to the rule of law in its wider sense, even though they were validly enacted.

  1. How might the rule of law conflict with the separation of powers?

An example is provided by R v A [2001] 3 All ER 1. In this case, the House of Lords (then, the most senior court in the UK, prior to transfer of its judicial function to the Supreme Court) had to decide how to interpret section 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999, which limited the circumstances in which a defendant accused of rape could cross-examine the alleged victim. The court had to decide how far they could stretch the wording of that section to accommodate the defendant's right to a fair trial, under Article 6 of the European Convention on Human Rights.

2 of the 5 judges felt that to authorise cross-examination of alleged rape victims would contradict the intention of Parliament, and therefore violate the separation of powers, on the basis that it is not for unelected judges to reverse the meaning of a statute enacted by the democratically elected legislature.

The majority, however, felt able to "read into" the section, the words "subject to the defendant's right to a fair trial" because section 3 of the Human Rights Act 1998 directed them to do so. To that extent, they were conforming to the rule of law - both in the narrow sense of obeying Parliament's direction, and, in the broader sense, by upholding the fundamental right of the accused to a fair trial.

Chapter 5

  1. To what extent is the UK's Parliament democratically elected?

Parliament comprises 3 elements - the House of Commons, the House of Lords and the Queen.

Of these 3 elements, only one - the House of Commons - is democratically elected, consisting of 650 MPs, elected using the first past the post system, which has itself been criticised (see below).

The House of Lords (whose members are appointed) and the Queen (who inherits her title by birth) are both unelected.

  1. How does the first past the post voting system work?

Each person who is eligible and registered to vote gets to cast one vote to choose a single candidate to represent the area in which they live (their constituency) in the House of Commons.

The candidate who polls the highest number of votes in each constituency is elected as the Member of Parliament to represent the people of that constituency, and takes up a seat in the House of Commons.

  1. List some pros and cons of the first past the post voting system.

Pros

Cons

Easy for voters to use and understand

Parties' share of seats in the House of Commons is disproportionate to their share of the votes cast

Easy to administer and count

Excludes parties with a relatively small share of the vote from the legislature

Clear link between MP's and their constituencies

Votes cast for candidates other than the winning candidate are arguably "wasted"

Historically, has usually produced a decisive result with one party winning a clear majority of seats in the House of Commons - but didn't in 2010, when no single party won a majority of seats and a coalition Government was formed

Encourages tactical voting (so voters don't vote for their first choice party, in an attempt to keep a party they really dislike out of power)

  1. Imagine that a Government whose party has a clear majority of seats in the House of Commons wishes to pass a Bill abolishing the right to a jury trial. Could the House of Lords prevent the Bill from being enacted?

No.

So long as the members of the governing party remain loyal to the Government, the Bill will be passed by the House of Commons.

The House of Lords could vote against the Bill, forcing the Commons to reconsider. If the Commons pass the Bill for a second time, then even if the Lords reject it again, the House of Commons can send the Bill to the Queen for Royal Assent under the provisions of the Parliament Acts 1911 and 1949.
The Parliament Acts were examined in Jackson and found to be valid.

So the House of Lords can delay the passage of the Bill, but cannot prevent it.

  1. Could the Queen stop the Bill becoming law?

Yes - in theory. But in reality, it is very unlikely that she would do so.

The Queen has a legal power to decide whether or not she gives Royal Assent to a Bill which has been either been passed by both Houses of Parliament, or has been passed by the House of Commons and sent to her under the Parliament Acts 1911 and 1949.

By convention, however, the Queen does not refuse Royal Assent. The last occasion on which a monarch refused Royal Assent to a Bill was in 1707 when Queen Anne refused to assent to the Scottish Militia Bill. The convention recognises the democratic legitimacy of the House of Commons, i.e. the will of the people's elected representatives should be respected in enacting legislation.

Chapter 6

  1. Imagine that Parliament enacts the Dog Licensing Act 2014. Section 1 of that Act requires all dog owners to obtain a licence for their dog at a cost of £50 per dog. Jenny, a dog owner who considers the new licence fee to be excessive, has found an unrepealed provision in the Dog Licensing Act 1987 which sets the licence fee at £5 per dog. Jenny argues that she does not have to pay any more than this. Is Jenny correct?

No – Jenny will have to pay the new licence fee of £50 per dog.

Ordinarily, you would expect the 2014 Act to contain an express repeal of the provision setting the old licence fee in the 1987 Act. Here, Parliament seems to have omitted to do that. So the courts will apply the common law doctrine of implied repeal (see Ellen Street Estates), upholding the most recent of two conflicting statutory provisions.

Although the doctrine of implied repeal does not apply to constitutional statutes (see Thoburn), it is very unlikely that the courts would consider the Dog Licensing Act 2014 to fall within the definition of a “constitutional statute”.

  1. What if section 2 of the Dog Licensing Act 2014 required dog owners to pay the licence fee of £50 per dog for each year that they had owned a dog since 2010? Would the Supreme Court uphold that provision, in the event of a challenge?

The courts probably would uphold section 2, even though it is a retroactive provision - this means that it changes the law from a date prior to that on which the provision itself comes into force.

Retroactivity contravenes the rule of law, which requires the law to be clear and accessible to citizens. If the legislature is able to change the law retroactively, this makes it impossible for people to comply.

Nevertheless, the UK Parliament has enacted retroactive statutes before. The War Damage Act 1965 retroactively changed the rules relating to compensation for property destroyed by the Government in the Second World War. In Burmah Oil v Lord Advocate the courts upheld the validity of the Act.

The answer is “probably” because Parliamentary sovereignty is a common law doctrine – it was developed by the courts, and can therefore be changed by the courts. In the absence of a codified constitution, however, the traditional relationship between the UK’s courts and its Parliament is that the courts unquestioningly accept Acts of Parliament. Were the courts to depart from this rule, it would be seen as a “constitutional revolution”.

  1. Would it make any difference if section 3 of the Dog Licensing Act 2014 created a criminal offence of failure to comply with the requirement to pay the £50 per dog licence fee for 2010 onwards? Wouldn’t this breach Article 7 of Schedule 1 to the Human Rights Act 1998?

This question is designed to test your understanding of the impact of the Human Rights Act 1998 on Parliamentary supremacy.

Section 3 would breach the requirement in Article 7 to Schedule 1 of the Human Rights Act 1998 that “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed”.

However, the only remedy which the courts can award in the event of an Act of Parliament contravening a provision of Schedule 1 to the Human Rights Act is a declaration of incompatibility (under Section 4, Human Rights Act). Such a declaration does not change the law – the offending statutory provision continues in force unless and until Parliament amends or repeals it.
Politically, it may be that the award of a declaration of incompatibility would persuade Parliament to amend the retroactive provision, and remove criminal liability for past non-compliance. Legally, however, they are under no obligation to do so.

  1. To what extent does the decision in Factortame Ltd v Secretary of State (No 2) contradict the doctrine of Parliamentary supremacy?

It depends on your point of view!

At first glance, this decision (in which the House of Lords, then the highest court in the land, granted an injunction suspending the operation of the Merchant Shipping Act 1988) contradicts Dicey’s formulation of the doctrine of Parliamentary sovereignty which states that “no person or body can override or set aside the legislation of Parliament”.

However, the House of Lords, in granting the injunction, said (per Lord Bridge) that they were following the statutory rule of construction in s.2(4) of the European Communities Act 1972 which provides that any past or future UK legislation must “be construed and have effect” subject to EU law. The court said that as long as s.2(4) of that Act remains in force, they will continue to set aside Acts of Parliament which contradict EU law – because that is what Parliament has told them to do.

The courts have made it clear that if Parliament expressly repealed s.2(4) of the European Communities Act, that rule would no longer apply – so Parliament could leave the European Union, and the courts would no longer apply EU law. That position has now been re-emphasised by s.18 of the European Union Act 2011, which states that EU law applies in the UK only by virtue of s.2 of the 1972 Act.

Some commentators (such as Professor Wade) consider the decision in Factortame to be a “constitutional revolution”, in which the unelected courts set aside legislation enacting the will of the democratically elected Parliament. Others consider that the decision actually strengthens the doctrine of Parliamentary supremacy, by recognising that Parliament itself can change the rules by which the validity of its own Acts are measured.

At the very least, the decision modifies the doctrine of Parliamentary sovereignty to the extent that s.2(4) of the European Communities Act cannot be impliedly repealed. This modification of the implied repeal rule has subsequently been extended in Thoburn to all “constitutional statutes”, i.e. Acts of Parliament which fundamentally alter the relationship between the citizen and the state.

  1. Section 2 of the European Union Act 2011 requires a Treaty amending the Treaty on European Union to be approved by both (a) Act of Parliament and (b) a prior referendum. Could a future Parliament pass an Act incorporating a change to the Treaty without holding the referendum first?

Under Dicey’s doctrine of Parliamentary sovereignty, Parliament can make any law whatever, without restriction. In particular, Dicey considered that one Parliament could not bind future Parliaments by any procedural restrictions (“entrenchment”), as each Parliament, having been democratically elected, should be free to legislate as it  wishes.

However, recent developments suggest that the courts would be likely to uphold procedural restrictions such as prior referendum requirements. Evidence for this includes:

  • The decision in Factortame (see above), in which the courts held that the 1988 Parliament was subject to the statutory rule of construction in s.2(4) of the European Communities Act 1972
  • Dicta from Baroness Hale and Lord Steyn in Jackson, suggesting that they would follow Commonwealth decisions such as in Trethowan, and require the UK Parliament to observe any self-imposed procedural requirements, such as an obligation to obtain approval in a referendum prior to amending or repealing certain statutes.

Chapter 7

  1. List examples of prerogative powers.
  • Power to declare war
  • Power to make treaties
  • Power to issue passports
  • Power to grant mercy to convicted criminals
  • Power to create and abolish government departments
  • Power to keep the peace within the UK
  1. Give 3 reasons why prerogative powers arguably contravene the rule of law.
  • Their scope is unclear, because they only exist to the extent recognised by the courts, they are retrospectively defined. This contravenes the notion that the law should be clear and accessible to ordinary citizens.
  • Prerogative powers are residual executive powers, i.e. they are what is left of the divine right of the monarchy. They have not been conferred on the executive by the legislature, and so they lack the democratic legitimacy of laws which have been made by the people's elected representatives.
  • The courts have limited control over prerogative powers. While the courts said in CCSU that they are, in principle, prepared to review the exercise of prerogative powers, they also said that certain areas of "high policy" (e.g. national security; foreign policy) are non-justiciable (i.e. outside the scope of judicial review).
  1. What is the Cabinet?

The group of senior Government Ministers, headed by the Prime Minister, which run the UK by o formulating Government policy, instructing civil servants to draft Bills to before Parliament, and deciding how to use the Government's existing powers.

  1. Explain the difference between individual and collective ministerial responsibility.

Individual ministerial responsibility is a convention by which Ministers are accountable to Parliament for the acts and omissions of the Government Department under their control. The expectation that Ministers would resign in the case of serious mistakes in their Department (as in the Crichel Down affair) has transformed into an expectation that Ministers must tell Parliament about such mistakes, but are not necessarily expected to resign because of them.

Collective ministerial responsibility is a convention by which Cabinet Ministers present a united front in public. Even though Ministers are free to (and often do) disagree during private Cabinet discussions, they are expected to keep the details of such meetings confidential and to support a decision made by the Cabinet in public, even if they personally disagree with it.

  1. What sanctions are there for a Minister who breaches the convention of collective responsibility?

There are no legal sanctions. Conventions, while their existence is recognised by the courts, are not legally enforceable so there is no legal remedy if they are breached (Attorney General v Jonathan Cape).

A Minister who no longer supports the Cabinet, however, is expected to resign. Should they refuse to do so, they are likely to face political sanctions. Although the Queen appoints and dismisses Ministers, she does so on the advice of the Prime Minister. So a Minister who loses the confidence of the Prime Minister is likely to be sacked.

Chapter 8

  1. Which bodies are subject to judicial review?

Public bodies - defined in Datafin as people (e.g. Government Ministers) or organisations (e.g. local authorities) who either:

  • get their powers from legislation;
  • are exercising prerogative powers; or
  • are performing a public function (see s.6 Human Rights Act 1998 and Chapter 9)
  1. On what grounds can a public body be judicially reviewed?

Any one or more of the following grounds, as set out by the court in CCSU:

  • Illegality (acting beyond their powers)
  • Irrationality (acting unreasonably)
  • Proportionality (see below)
  • Procedural impropriety (acting unfairly)
  1. Explain the difference between narrow and wide ultra vires.

Ultra vires is a Latin term, meaning "outside [the body's] powers". The doctrine of ultra vires has been developed as part of the ground of illegality.

Narrow ultra vires covers case where e.g. a public body takes a decision which it has no legal power to make, as in Attorney-General v Fulham Corporation, where the local authority had no power to run a paid laundry service, and was therefore acting illegally.

Wide ultra vires covers cases where the public body does have a legal power to do something, but abuses that power by e.g.:

  • fettering its discretion (or "closing its mind")
  • basing its decision on irrelevant considerations
  • failing to take into account relevant considerations
  • acting for an improper purpose (i.e. one which was not contemplated by Parliament in granting the relevant statutory power to the public body)

This is a more subtle form of illegality, in which the way that the public body uses its power is illegal.

  1. What is the test for irrationality?

The key test is set out in the Wednesbury case. In order to quash a public body's decision on the grounds of irrationality, a court must conclude that the decision is:

"so unreasonable that no reasonable authority could have made it".

NB: it is well worth learning this test, word for word, for your examination!

  1. How does the test for proportionality differ from the test for irrationality?

The test for proportionality (set out in Daly) involves much closer scrutiny of the public body's actions, requiring the authority to justify an infringement of either EU law or the European Convention on Human Rights by demonstrating that:

  • the public body's objective was sufficiently important to justify the infringement;
  • the actions taken by the public body were rationally connected to that objective; and
  • those actions were no more than necessary to achieve that objective.

Note, however, that proportionality is available as a ground of review only in cases involving an alleged breach of EU law or human rights.

Chapter 9

  1. Explain the difference between "absolute" and "qualified" rights (under the European Convention on Human Rights), giving examples of each.

An absolute right is one which the State cannot legally restrict, whatever the circumstances.

Qualified rights can be restricted by the State, provided that the restriction meets the following conditions:

  • it is in accordance with the law (i.e. authorised by clear and accessible domestic legislation);
  • it is pursuing a legitimate public interest policy objective (as recognised in the text of the relevant Article of the European Convention on Human Rights); and
  • it is proportionate to (i.e. is no more restrictive of the right than is necessary to achieve) that policy objective.
Absolute rights

Qualified rights

Article 3 - prohibition of torture

Article 8 - right to privacy

Article 4 - prohibition of slavery

Article 9 - freedom of thought, conscience and religion

Article 7 - no punishment without law

Article 10 - freedom of expression

 

Article 11 - freedom of assembly and association

  1. Are private companies subject to the provisions of the Human Rights Act 1998?

Potentially, yes - in a context where a private company is "performing functions of a public nature", it is caught by the definition  of "public authority" in s.6 Human Rights Act 1998.

See, e.g. R (Beer) v Hampshire Farmers' Market in which a private company formed by the local Council to run markets on Council-owned land was held to be subject to the Human Rights Act as it was performing functions of a public nature.

Each case turns on its own facts. For contrasting decisions, see YL v Birmingham City Council(in which a private company running a care home was held not to be performing a public function) and Wallbank (in which a Parochial Church Council, while a public authority in performing certain of its functions, was not subject to the Human Rights Act when enforcing the rights of a private landowner).

  1. Explain the difference between the tests under s.76 and s.78 PACE.

s.76 PACE requires the court to exclude evidence of a confession which the defence represent is unreliable, or was obtained by oppression, unless the prosecution can prove beyond reasonable doubt that the confession is reliable. For an example of a confession which was unreliable (and obtained by oppression!), see R v Paris, Abdullahi and Miller.

s.78 PACE gives the court a discretion to exclude evidence which it considers would have an adverse effect on the fairness of the trial. This means that even if the evidence has been obtained in breach of PACE, the court can still hear it if it considers that the nature of the breach does not deprive the defendant of a fair trial (see, e.g. Watson v DPP).

  1. Nick, while walking to his local pub, stops in the street to talk to Sofie. Is this a public assembly, within Part 2 of the Public Order Act 1986?

Believe it or not, yes!

s.16 POA 1986 defines a public assembly as an assembly of:

  • 2 or more people
  • in a public place (the definition of which expressly includes a public highway or pavement)
  • wholly or partly open to the air.

So this kind of everyday meeting actually falls within the scope of police powers to control public assemblies. Note, however, that these powers can only be exercises to prevent serious public disorder, serious property damage or serious disruption to the community (s.14 POA).

         Unless Nick and Sofie pose any of these threats (unlikely during a mere conversation, and as Nick is at this stage only on his way to the pub...) then the police have no power to interfere.

  1. On what grounds can the police ban a public meeting?

The police have no power to ban a public meeting, unless it is a trespassory assembly, i.e. it is being held on private land (or land to which the public have a limited right of access) and risks serious disruption to community life and/or significant damage to land, a building, or a monument of cultural, historic or scientific importance.

The police can impose conditions on public assemblies, on the grounds set out in s.14 POA (see above). These can include conditions as to the time and place of the assembly, and the maximum number of people who can attend. Note that the conditions must be proportionate (see Laporte and Austin).

Contrast this with the police power to ban public processions (i.e. moving protests) under s.13 POA, with the support of the relevant local authority and the consent of the Home Secretary. A banning order should only be made where the police reasonably consider that their powers to impose conditions under s.12 POA are inadequate to enable them to maintain public order.

Assessments in public law tend to include either essay-based questions or problem based questions or a combination of both. Some topics lend themselves more readily to one or other of these types of question, whilst others are equally suited to either. The techniques associated with answering essay or problem-based questions are the same as for any other legal subject.  Listed below are questions relating to each of the chapters together with some suggestions as to the matters that should be discussed. Essay-based questions require much more by way of discussion and should only be attempted if you have read widely around the subject. Problem-based questions are more focussed but require detailed knowledge of the relevant law to be answered effectively. For further examples of questions and how to answer them, see Richard Clements and Philip Jones, Q&A Public Law (OUP).

Chapter 1: The British constitution

A correspondent to the Daily Mail (27 May 2003) wrote: 'The fact is that there is no such thing as constitutional law. Some Britons like to imagine that certain laws are somehow "constitutional" because they lay down the way in which our political system functions. But every one of these laws could be repealed tomorrow in the two houses of Parliament.'

How far do you agree with this statement?

The format of this question is a fairly standard one. There is a quotation followed by a question or instruction. The quotation is helpfully designed to prompt discussion by indicating one or more issues that should be considered.

Matters to be discussed here might include:

  • The nature of constitutions – what is meant by terms such as constitution, constitutional?

  • The nature of constitutional law – is it different from ordinary law? How is it identified?

  • How do these terms apply in the context of the UK?

  • Is the writer's viewpoint justified? Is it totally justified; completely unjustified? Or partially justified? Does the answer depend on the different ways in which the term constitution is used?

Chapter 2: Features of the constitution

To what extent do you consider that the checks and balances in the British constitution provide for a proper separation of powers?

As with the previous question, this invites a response as to whether the statement is or is not supportable, though the word 'proper' suggests that a more definite answer is required – there either is a proper separation of powers or there is not.

Matters to be discussed here might include:

  • What is meant by the idea of the separation of powers? How does the idea of checks and balances fit into it?

  • What checks and balances are there in the British constitution? Who exercises checks and on whom? How effective are they? Have recent changes had any impact on this debate?

  • Is the balance between the various individuals and bodies adequate?

Chapter 3: Parliamentary sovereignty

'Parliamentary sovereignty has gone. It has been replaced by Community sovereignty.' (Lord Denning, The Times, 3 November 1986)

Discuss.

This is a further variation on the theme illustrated by the previous two questions. The word 'discuss' is less focussed or directing than the words used in the previous examples, and simply invites a discussion of the issues raised by the quotation.

Matters to be discussed here might include:

  • What is meant by the term parliamentary sovereignty?

  • What legal impact has membership of the European Community had on the UK? Has anything changed since Lord Denning made this statement?

  • What might lead someone to adopt the viewpoint expressed by Lord Denning? Is his view justified? Is his view accurate or does he overstate or understate the position?

Chapter 4: Parliament

1. 'The first and foremost object of reforming zeal ought in my opinion to be the system of Parliamentary representation or rather misrepresentation.' (HWR Wade, Constitutional Fundamentals)

How far do you agree with this statement?

Matters to be discussed here might include:

  • The nature of the electoral system, which should be subjected to a critical examination.

  • What factors might cause someone to express the view in the quotation?

  • Is the view expressed in the quotation justifiable or does the writer overstate or understate the position?

2. 'It cannot be acceptable for a non-elected, unrepresentative Upper House to frustrate the will of the elected House of Commons.' (Dr John Cunningham MP, HC Deb Vol. 190 col. 315, 1 May 1991)

Consider the functions of the House of Lords in the light of this quotation.

Matters to be discussed here might include:

  • What does the House of Lords do?

  • What is the relationship between the House of Lords and the House of Commons? How is the relationship regulated?

  • Is there anything in the nature of the two Houses and the relationship between them that would justify the assertion quoted? Does the speaker overstate the case by saying that it 'cannot be acceptable' for the House of Lords to frustrate the House of Commons? Are there circumstances when it might be justifiable? Are there examples where this has happened?

Chapter 5: The executive

Every Departmental minister is responsible to Parliament for the policy and administration of his department. This is a fundamental principle in our system of Parliamentary democracy. But it is an equally respectable and necessary principle that ministers as a whole are collectively responsible for government policy as a whole. This means that a Minister's personal responsibility must be exercised in harmony with the views of his ministerial colleagues.'  (Winston Churchill)

Explain and illustrate this statement.

Matters to be discussed here might include:

  • What do the terms collective responsibility and individual responsibility mean in the context of ministers?

  • How do they relate to each other?

  • Whether individual instances of ministerial misconduct support the statement or tend to contradict it.

  • Can any firm conclusions be drawn as to whether what Churchill says is correct as a generalization, or does it all depend on the particular circumstances?

Chapter 6: The judiciary

'Someone must be trusted. Let it be the judges.' (Lord Denning, 1980)

Discuss the constitutional position of the judiciary in the light of this quotation.

Matters to be discussed here might include:

  • Identification of the constitutional role of judges in theory and practice.

  • Why Lord Denning identifies trust as an important basis for constitutional roles.

  • Examples of judicial activity through decided cases.

  • Whether judges have the final word on legal/constitutional issues.

  • Whether Lord Denning is correct to assert that the judges should be trusted as opposed to anyone else such as the government or Parliament.

Chapter 7: The Human Rights Act 1998

With reference to relevant authority, explain how the Human Rights Act 1998 has incorporated the European Convention on Human Rights into English law.

This is a fairly straightforward bookwork question which tests knowledge of the Human Rights Act rather than requiring an evaluation of its effectiveness.
Matters to be discussed here might include:

  • The structure of the Human Rights Act.

  • Key concepts in the Act including the idea of a public authority and the duty under s.6.

  • The importance of ss.2, 3 and 4 for the activities of the courts.

  • The power in s.10.

  • The duty under s.19.

  • The requirement under s.19

Chapter 8: Individual freedom and police powers

The Greenside district of Midtown has been subject to a number of burglaries recently, with designer clothes and jewellery the main objects that have been stolen. One evening, PC Rook and PC Starling were on foot patrol when they saw two young men, dressed in scruffy clothes with hooded tops, each carrying smart and bulging bags. PC Rook said 'Hey you two! Stop there. We'd like a word with you.' One of the young men ran off and PC Rook set off in pursuit of him. On catching up with him, PC Rook grabbed him by the arm and said 'You're under arrest.' 'What for?' said the man, whose name was Crow. 'You know very well,' replied PC Rook, 'now open the bag and let's see what's inside it.' The man refused whereupon PC Rook took the bag, opened it, and looked inside. The bag contained expensive designer clothes. PC Rook took the man to the police station.

Meanwhile, PC Starling asked the other man, whose name was Finch, to tell her what was in the bag. 'Stuff,' he replied, 'and none of your business. I'm helping my friend to move house.' Not being satisfied with this explanation, PC Starling insisted on opening the bag, which was also full of designer clothes. PC Starling told the man that she was arresting him for theft and took him to the police station.  Officers were sent to Finch's house where they conducted a search for further stolen items. They conducted a thorough search looking in cupboards and drawers, moving furniture and pulling up floorboards. In the course of their search they found stolen designer clothes. They also found several packets of cocaine. They seized all these items and returned to the police station. Whilst waiting for Finch's solicitor to arrive, DS Hawk said to Finch 'Look, we know what you've been up to, so why not make things easy for both of us. You admit the theft and we'll forget about the drugs.' Finch signed a statement admitting theft.

Consider whether the police have acted lawfully in the situations described above.

This is a fairly typical problem-based question. The facts are set in a hypothetical place with imaginary characters to avoid any identification with particular people or places. This makes it easier to focus on the issue without being distracted by extraneous considerations. Using fictitious individuals, organizations, and locations also avoids any possible claims for libel! In such questions, it is assumed that all facts can be proved. All that is required, therefore, is to identify the relevant law and apply it to the facts. Note that the instruction requires consideration of the lawfulness of the police conduct – it does not require an evaluation of effectiveness in policing terms. Close reference to the relevant law will be needed in such questions in order to be able to apply it effectively. Scenarios such as this usually involve activities that are discussed in the cases or raise particular points of interpretation of statutory provisions. Such questions often involve a number of points which will not be capable of being developed as fully as in an essay-based question. Relevance is particularly important in questions such as this.

Matters to be discussed here might include:

  • Whether PCR is able to require someone to stop and if so on what grounds (s.1 Police and Criminal Evidence Act 1984 (PCEA), Code A).

  • Whether PCR has made a lawful arrest (s.24 PCEA).

  • Whether PCR is entitled to open the bag and examine its contents without the consent of the owner (s.32 PCEA).

  • Whether PCR is acting lawfully in taking C to the police station (s.30 PCEA).

  • Whether PCS is entitled to require F to open his bag (s.1 PCEA, Code A).

  • Whether PCS is entitled to open the bag in light of F's response to her question (s.1 PCEA, Code A).

  • Whether PCS has made a lawful arrest and is acting lawfully in taking F to the police station (ss. 24, 30, PCEA).

  • Whether the police are entitled to search F's premises and do so in the manner they have adopted (ss.18, 19, 32 PCEA).

  • Whether they are entitled to seize the items they take away (s.19 PCEA).

  • The effect of DSH's intervention on the admissibility of F's statement (s.76 PCEA).

  • In all of the above, reference to relevant legislation, principally the Police and Criminal Evidence Act 1984 (taking into account considerations under the Human Rights Act 1998 as appropriate), the Codes of Practice made under the 1984 Act and relevant case law will be needed.

Chapter 9: Freedom of expression and assembly and public order

The University of Suburbia Students' Union (USSU) organized a march and rally in Newtown to protest about inadequate funding for higher education. A route etc was agreed for the march in accordance with the Public Order Act 1986 (as amended) and permission obtained from the local authority for a rally at a local park. It was agreed that the USSU march should enter the park via Park Avenue.

When the march reached Park Avenue, however, the police ordered the march to turn off Park Avenue and take another route to the park, as a number of supporters of an organization called Cut Public Spending (CPS), which disapproved strongly of the use of public funds for higher education, had gathered at the Park Avenue entrance to the park. The police feared a clash between members of CPS and the USSU marchers and wanted to keep the two groups apart.  On seeing the USSU marchers, Ranter, the leader of CPS, yelled 'here come the scroungers!' This so incensed some of the USSU marchers that they pushed past the police officers who were barring their way into Park Avenue, and widespread fighting occurred between rival CPS and USSU supporters. Several USSU supporters sat down in Park Avenue and refused to move. Inspector Hardy ordered his officers to prevent anyone from entering Park Avenue until the police had brought the situation under control. The police also confiscated placards carried by CPS supporters bearing the slogan 'Student scum'.

Consider whether any offences have been committed on the above facts and comment also on the legality of the action taken by the police.

Matters to be discussed here might include:

  • Legality of police requiring march to divert from its route and application of s.12 Public Order Act 1986 (POA) or possible use of powers to prevent breaches of the peace.

  • Whether R commits an offence (ss.4, 4A or 5 POA).

  • Whether USSU people commit offence in pushing past police officers (s.89 Police Act 1996).

  • Whether USSU and CPS people commit an offence by fighting (ss.1,2,3 POA).

  • Whether USSU people commit offence by sitting down in road (s.137 Highways Act 1980).

  • Whether police act lawfully in preventing people from entering Park Avenue (s.14 POA, powers to prevent breach of the peace).

  • Whether placards constitute an offence (s.5 POA).

  • In all of the above, reference to relevant legislation, principally the Public Order Act 1986 (taking into account considerations under the Human Rights Act 1998 as appropriate) and relevant case law will be needed.

Chapter 10: Administrative law: an introduction

How far do the existence of tribunals and the ombudsman expose the limitations of judicial review?

Matters to be discussed here might include:

  • Whether there are any significant limitations on judicial review and if so what they might be.

  • What tribunals do and how this differs from judicial review.

  • What the ombudsman does and how this differs from judicial review.

  • Whether the existence of tribunals and the ombudsman actually indicate that there are limitations on judicial review.

  • Reference to relevant statutes, cases, and secondary literature will be needed to support the argument.

Chapter 11: Judicial review: procedure

Under the imaginary Football Grounds (Relocation) Act 2009, decisions by football clubs to relocate are subject to approval by the local authority. Northtown Council has recently established a panel, comprising local residents and representatives from local businesses, to exercise this function on their behalf.

Northtown United FC currently has a ground in the Westside district of Northtown. It has recently decided to build a new ground 2 miles away from the present ground in the Eastside district of the town. This proposal was very controversial, as it also incorporated a retail outlet and local residents in the new location were apprehensive about the impact the new ground would have on what is, by common consent, a quiet part of the town. Some supporters of Northtown United FC were unhappy about the prospect of the club leaving its present, and, as they see it, traditional location. The panel decided to allow Northtown United to relocate to their preferred site on the basis of their proposals, including the retail outlet. The chairman of the panel also entered into contracts with Northtown United for the employment of consultants to advise on the detailed specification for the ground.

The following wish to bring a claim against the panel with a view to overturning its decision:

  • Alice, a resident in the Eastside district, who is concerned that the relocation will have an adverse impact on her wellbeing.

  • The Keep Northtown Out of Eastside group, a group of football supporters who have come together for the specific purpose of keeping Northtown United's ground in Westside.

  • The Northtown Chamber of Commerce whose members are concerned about the impact the proposed development would have on their businesses if the retail outlet is incorporated into the proposals.

Advise them as to whether they will be able to bring a claim for judicial review against the panel, highlighting any procedural issues that may be disclosed by the above facts.

The use of fictitious legislation is a common device in this area. It enables discussion to focus on the principles rather than being diverted into issues relating to the detail of the operation of specific pieces of legislation. The scope of the discussion can thus be more controlled than if a piece of real legislation was to be used. Further, it means that everyone attempting the question is on an equal footing and does not privilege those who have knowledge of the particular piece of legislation nor does it disadvantage those who lack that specialist knowledge.

Matters to be discussed here might include:

  • Whether the facts disclose a situation that is suitable for judicial review.

  • Whether a claim for judicial review can be brought against the panel or whether it should be brought against Northtown Council.

  • Whether a claim for judicial review can be brought against the panel in respect of the contracts it has entered into.

  • Whether each of the three potential claimants has sufficient interest in order to be able to bring a claim.

  • What other procedural requirements need to be observed (e.g. time limits, seeking permission etc).

  • Reference to relevant  legal rules and cases to support the argument will be needed.

Chapter 12: Judicial review: grounds

The (fictitious) Bingo (Licensing) Act provides that those running bingo clubs must obtain a licence, renewable annually, from the local authority. The Act provides that where a licence is refused, an appeal against that decision may be made to the Bingo (Licensing) Panel. The local authority is also allowed to make an annual charge for a licence to cover its administrative costs. Southshire County Council has recently announced that it intended to raise the annual fee to reflect the profits bingo clubs were making.

Serena, who had been granted a licence on five previous occasions, applied for renewal of her licence.  Southshire County Council refused to grant her a licence on this occasion, despite the fact that there had been no material change in her circumstances. She appealed, and a date was fixed for a hearing before the Bingo (Licensing) Panel.

At the hearing, one member of the panel missed part of the proceedings while he answered a telephone call. At one point, Serena was asked to 'wait outside while we discuss one or two matters with the representative of the licensing authority'. When Serena was called back in she was not told anything about the discussions that had taken place in her absence.

The Panel upheld the refusal to grant a licence to Serena. Serena subsequently discovered that the solicitor chairing the panel belonged to a firm that acted as legal advisers to a rival bingo club.

Advise Serena as to any grounds on which she can challenge the decisions made by Southshire County Council and the Bingo (Licensing) Panel.

Matters to be discussed here might include:

  • Whether the annual licence fee is lawful, bearing in mind the reasons given for the increase.

  • Whether the initial refusal of S's licence raises any legal issues (legitimate expectation, reasons etc).

  • Various aspects of the hearing raise questions as to whether it is fasir: panel member missing part of proceedings, S's exclusion while matters discussed with other side in her absence

  • Chair to panel: possible bias should be considered.

  • All of the above should be discussed with reference to relevant case law.

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