Public Law 2008 Zone A Answer

Examination papers and Examiner’s reports 2008

Examiner’s report 2008 265 0020 Public law Zone A General remarks As in previous years, the results ranged from first-class to poor failures. In general the standard of written English has improved, although in too many instances legibility was a problem. Candidates are encouraged to practise their written English throughout the year and should note (as is stated on the front of the examination paper) that accuracy, clarity and legibility are important. Having 15 minutes reading time this year should have made the task of selecting questions and planning answers much easier. Candidates who used this time effectively were able to devote the maximum time to presenting their answers. There remain a number of common problems. First, too many candidates simply did not have sufficient knowledge to pass. It is rarely possible to do justice to a question in less than two sides of A4 paper and many of the best candidates offered double this amount. Second, there remain problems with time management, with some candidates failing because they had only offered two or three answers. It is essential that equal time be given to each question and that four complete answers be given. Third, while the best candidates made effective use of statutory sources and case law, too many weak candidates did not. In Public law there are (in comparison with some other subjects) relatively few major cases. Candidates must, however, be able to discuss them. Although it is not necessary to provide the full citation, the correct name of the case and its date should be provided. Finally, there remains the problem of candidates offering a pre-learned answer, with or without minor adjustments to attempt to make the answer ‘fit’ the question. This can never produce more than a bare pass, if that. Rote-learned answers give no indication of a candidate’s knowledge or understanding. Too often Examiners find that a tutor has given candidates incorrect information or that the information has been incorrectly interpreted and that, relying on this information rather than the subject guide and textbook, candidates all repeat the same error in the examination. Tutors and candidates must understand that rote-learning is not academically acceptable and that it lets candidates down in examinations.

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265 0020 Public law Zone A

Specific comments on questions Question 1 ‘The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.’ (Lord Hope of Craighead in Jackson v Attorney General (2006)) Discuss. This question was popular with candidates and produced many interesting and good answers. The best answers started with an introduction explaining briefly that there are several different philosophical interpretations of the rule of law and then focusing on A.V. Dicey’s three-part analysis. At this point it would have been useful to explain the uncodified nature of the United Kingdom’s constitution before moving on to analyse the quotation given. Having offered a brief introduction, there were then many different ways of approaching this broad question. There were some very good answers which concentrated on the judges’ role in interpreting statutes and developing the common law. Many candidates discussed cases, such as Entick v Carrington (1765), in support of the judges’ concern to protect individual rights against the power of the state. The Human Rights Act 1998, and the manner in which the judges have used it to further the protection of rights, was also relevant. However, as the best answers revealed, there are limitations on what judges can achieve. Relevant here was a discussion of parliamentary supremacy and the duty of the judges to interpret Parliament’s will: where Parliament grants broad powers to the authorities there is little judges can do. Further, under common law, as the much-cited case Malone v Metropolitan Police Commissioner revealed, where there is no domestic law protecting ‘rights’ the courts will refuse to provide that protection (resulting, in Malone’s case, in an application to the Court of Human Rights which led to a change in the law). It was important also to recognise the limitations of the Human Rights Act 1998. As the best candidates pointed out, although there is much that judges can do, the Act has been carefully drafted to ensure that statutes are protected from invalidation by the judiciary, leaving it to Parliament to correct any law which is incompatible with ECHR rights. A brief conclusion was needed. A balanced conclusion explained that, while the rule of law was an important concept under the British constitution, it was an exaggeration to say that it was the ‘controlling factor’.

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Examination papers and Examiner’s reports 2008

Question 2 In what respects, if any, has A.V. Dicey’s exposition of parliamentary sovereignty become an anachronism? This popular question was generally well answered. A brief introduction explaining the constitutional need for an ultimate source of authority within a state was required. This then led to a brief explanation of the evolution of the United Kingdom’s constitution and the establishment of parliamentary supremacy in the seventeenth century. The distinction between political and legal sovereignty could also be discussed at this stage. As the question is focused on Dicey’s analysis it was necessary to set out his three main points and then to analyse each, making reference to illustrative statutory sources and case law. The majority of candidates had little difficulty in explaining Parliament’s power to pass legislation on any subject matter whatsoever. The third aspect of Dicey’s analysis – that the validity of Acts of Parliament cannot be called into question in a court of law – was also handled well. The second aspect, however, did cause a number of problems. The best candidates were able to point out that the inability of Parliament to bind its successors, or be bound by its predecessors, was reflected in the judges’ use of the doctrine of implied repeal. However, there are a number of challenges which have been made to this principle and these also required discussion. Among the relevant issues which could and should have been discussed were: •

the Acts of Union with Scotland and Ireland

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manner and form and redefinition theories

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membership of the European Union

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devolution to Northern Ireland, Scotland and Wales

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the Human Rights Act 1998.

While the best candidates were able to discuss most of these issues, the weakest candidates confined their discussion to setting out Dicey’s main points and then discussing the European Union and the Factortame case. This was rarely sufficient for a pass.

Question 3 The Constitutional Renewal Bill 2008 provides, in part, that the powers relating to war, the disposition of the armed forces and the ratification of treaties should be transferred from the royal prerogative to Parliament. Critically assess this proposal with particular reference to the separation of powers. This question produced some exceptionally good answers and a large number of very poor answers. A number of different approaches could have been taken to this question. One good starting point would have been to explain briefly the uncodified nature of the United Kingdom constitution and its sources, legal and non-legal. This would then lead

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265 0020 Public law Zone A

to a discussion of the royal prerogative as one of the common law sources. It should have been explained that these powers are residual and continue to exist because Parliament allows them to. Attention could then be turned to the consequences of transferring the powers from the executive to Parliament. In order to do this as required by the question, a brief introduction to the separation of powers under the UK constitution was needed, focusing particularly on the relationship between the executive and legislature and the constitutional position of the judiciary (independence, Act of Settlement). A brief discussion of parliamentary procedures which facilitate scrutiny of the executive could then be undertaken. As many of the best answers revealed, there are a number of issues which ministers conventionally refuse to answer questions about in Parliament. Furthermore, in relation to scrutiny by the judiciary through judicial review proceedings, it should have been explained that the concept of justiciability, developed and maintained by the judges, is designed to keep judges from ruling on matters best left to the executive. In terms of controlling the exercise of these prerogatives, therefore, the question arises as to whether transferring these powers to Parliament would in fact make any difference. Opinions were very divided as to whether this was a sound proposal. Those who agreed with it did so largely on the basis that in a democracy having such important powers reserved to the executive was wrong. Those against relied largely on the need for there to be some reserve powers left to the executive, especially in relation to war and peace. That conclusion caused many candidates to favour the transfer of treaty-making power to Parliament, but not powers relating to war and the armed forces.

Question 4 How does United Kingdom law achieve a ‘level playing field’ between rival candidates and political parties with respect to parliamentary election campaigns? In general this question produced some very good answers. To achieve the highest marks possible it was necessary to cover several aspects of electoral law. Issues which should have been discussed, together with the relevant statutory sources and case law, were:

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constituency sizes to ensure approximate equality in the number of voters and the exceptions to the equality principle which result in considerable variations in the number of voters per constituency

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the franchise and those disqualified or ineligible to vote and statutory reforms resulting in a more inclusive electoral register

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the legal rules relating to candidates’ expenditure, criminal offences and the issue of participation in broadcasts in general election campaigns

Examination papers and Examiner’s reports 2008

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the registration of political parties

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the regulation of spending at national level by political parties (and the question of whether state funding should be provided)

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the voting system, its advantages and disadvantages.

The strongest candidates were able to discuss each of these issues and to indicate the relevant statutory provisions and case law. When citing statutory provisions it is unnecessary to copy out sections: this wastes time and detracts from the quality of the discussion. Too many candidates unfortunately did not cover all the necessary areas of this topic. It was not sufficient for a pass simply to focus on either party political funding or the voting system.

Question 5 ‘The integration into the laws of each Member State of provisions which derive from the Community and more generally the terms and the spirit of the Treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity.’ (Costa v ENEL (1964) European Court of Justice) Discuss with particular reference to the techniques adopted by the European Court of Justice to ensure the uniform application of Community law over domestic law. This question was not popular but did produce some very good answers. By way of introduction it was helpful to explain the origins of the European Community (now Union) and its objectives. A brief explanation could then be given of the view of the European Court of Justice (ECJ) that Community law is, and must be, supreme over the domestic law of Member States. A good answer would then briefly discuss the primary and secondary sources of Community law – principally Treaty Articles, Regulations and Directives – and explain the difference between the sources. This led to a discussion of direct applicability and direct effect and in turn to indirect effect and state liability. In relation to each of these aspects of the question, it was essential to discuss the case law of the ECJ. Given the wording of the question, candidates were not required to discuss in detail the European Communities Act 1972 or the domestic case law demonstrating how the English courts deal with the issue of supremacy. Where candidates focused on this issue – at the expense of discussing the techniques of the ECJ – they failed. In relation to weaker or poorly-prepared candidates, this question is a good example of how candidates can interpret a question incorrectly to enable them to offer an answer which has been prepared previously, rather than answer the question on the examination paper.

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265 0020 Public law Zone A

Question 6 ‘Provided that there is adequate legal regulation of special powers given to state agencies when the security of the state is under threat from terrorism, the limitation of citizen’s rights and freedoms is justified.’ Discuss with particular reference to statute and case law. This question was not attempted by many candidates, and those who did attempt it did so with very variable results. The strongest candidates were able to explain the relevant agencies – MI5, MI6, GCHQ and the police – and their role. They were also able to explain the former lack of statutory regulation and the development of a statutory framework (Security Services Act 1989, Intelligence Services Act 1994, Regulation of Investigatory Powers Act 2000). In addition it was necessary to discuss the Terrorism Acts and the powers they gave. The ability of the state to derogate from ECHR rights in times of emergency was also relevant. The important case of A v Secretary of State for the Home Department (2004) should have been discussed to illustrate the impact of the Human Rights Act 1998 on the power of the state to restrict the liberty of suspects and to derogate from Convention rights in response to threats of terrorism. This question produced too many answers which were completely irrelevant to the question. This emphasises the point that candidates must use reading time effectively to ensure that they have correctly interpreted the question.

Question 7 By reference to case law, discuss the status and effect of the European Convention on Human Rights in UK domestic law. This was a popular question and produced a high proportion of very good answers. By way of introduction, it could have been explained that the European Convention on Human Rights was drafted under the authority of the Council of Europe (not the European Community or Union). A brief discussion of its main features was helpful – in particular that it covers civil and political (rather than economic and/or social) rights. The British government’s position before 1997 required brief discussion, as did the legal consequences – namely that Convention rights were not enforceable in the domestic courts and that aggrieved individuals had to exhaust all domestic remedies and then pursue an application in Strasbourg. Mention should also have been made of the approach of the courts, illustrated by case law, to the Convention prior to the Human Rights Act 1998. It was important that the structure of the Human Rights Act 1998 be discussed. This did not entail copying out sections from the statute book. What was required was a selective and critical discussion of the relevant sections, in particular ss.2, 3, 4, 6 and 8 in relation to the powers conferred on the judiciary and ss.10 and 19 in relation to the

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Examination papers and Examiner’s reports 2008

executive and Parliament. Such an analysis would have led to the conclusion that the Act carefully preserves parliamentary supremacy by ensuring that the judiciary does not question the validity of Acts of Parliament. The strongest candidates were able also to discuss some of the more important cases which have been decided since the Human Rights Act came into effect, especially those which have led to changes in the law.

Question 8 Within the context of judicial review and with reference to case law, explain the legal definitions of (a) sufficient interest, and (b) public bodies. A popular question which produced a high proportion of very good answers. A good introduction would have explained the role and purpose of judicial review. It would have explained its constitutional importance in ensuring that state agencies keep within the powers granted by statute and comply with the requirements of reasonableness, natural justice, fairness and proportionality. Having set the scene, it was then necessary to focus on the legal definitions of both sufficient interest and public bodies. This was where the difference lay between those achieving high marks and those who failed. The strongest candidates offered a detailed analysis of the case law on sufficient interest, being able to explain the need to limit the ability of individuals or groups to interrupt the administrative process by challenging the use of power. Many rightly discussed the case law relating to individual applicants, representative bodies and pressure groups applying for judicial review in the public interest. Equally, with the definition of public bodies, the best answers explained that, as there is no fixed definition of the term public bodies in relation to judicial review proceedings, it is necessary to analyse the case law to understand its meaning and scope. Candidates who failed generally did so because, rather than answer the question on the examination paper, they chose to write all they knew about judicial review, with sufficient interest and public bodies getting no more than a brief mention. These were clearly answers which had been prepared previously. They did not therefore answer the question and could not pass.

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