Public Law 2008 Zone B Answer

Examination papers and Examiner’s reports 2008

Examiner’s report 2008 265 0020 Public law Zone B Introduction 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 B

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 focussed 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 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 of 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 well handled. 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 government’s latest constitutional reform proposals raise the possibility of the adoption of a written constitution. Giving reasons, consider the view that such a development is both essential and inevitable. 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 historical reasons that the United Kingdom’s constitution remains uncodified, together with an explanation of its sources, both legal and non-legal. A brief comparison with a written constitution was offered by many candidates.

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265 0020 Public law Zone B

A discussion of some of the uncertainties which exist under the British constitution – which in turn suggest that a written constitution might be desirable – was necessary. A range of different issues could have been critically discussed at this point. Among these are: •

the ill-defined concept of the separation of powers

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the dominance of an executive with a strong electoral majority

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the theoretical unlimited legislative powers of Parliament

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the unelected House of Lords

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uncertainties surrounding the scope of the royal prerogative and its exercise by the executive in the name of the Crown rather than Parliament

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the importance and uncertainties surrounding many constitutional conventions (the dissolution of Parliament and ministerial responsibility being prime examples)

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the traditional concept of civil liberties as opposed to constitutionally-guaranteed human rights.

A brief discussion of the range of constitutional reforms which have been undertaken since 1997 was needed to show how the government has proceeded in a piecemeal manner to achieve considerable constitutional change, seemingly without considering the impact of the changes on the constitution as a whole. It was also necessary to address whether a written constitution was ‘both essential and inevitable’. Many candidates argued persuasively that the United Kingdom constitution functions adequately and did not require further reform. Others took the view that further reform was necessary, although not by any means inevitable. What was required, irrespective of the conclusion reached, was that the issue be addressed. Too many of the poorer answers simply ignored this aspect of the question.

Question 4 Discuss whether the House of Lords has sufficient powers in law to fulfil its constitutional role as the parliamentary second chamber. This question on the House of Lords was popular but produced a high proportion of very poor answers. The main difficulty identified by the Examiners was that too many candidates had relied on there being a question on the House of Lords which focused on reform of its composition. Not finding the anticipated question, a large number of candidates decided that they would nevertheless offer their preprepared answer on that aspect of the topic rather than attempt to answer the question on the examination paper. Not surprisingly they failed badly. A general introduction could have explained the history of the House of Lords and its links with monarchy and the hereditary principle. The best candidates were able to offer a brief introduction explaining the role and powers of the House of Lords. It should have been pointed out

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Examination papers and Examiner’s reports 2008

that prior to 1911 the powers of the two Houses were legally equal, but regulated by convention. The all-important Parliament Acts 1911 and 1949 could then be discussed. Also relevant was the low usage of the Parliament Acts and the conventions and practices which explain this. The best candidates then turned their attention to the government’s intention to reform the composition of the House of Lords and briefly discussed the House of Lords Act 1999. The issue of composition does of course have a bearing on the appropriate powers the House should have – not least because it would be undemocratic to have an unelected second chamber with powers to defeat the wishes of the democratically-elected House of Commons. What also required discussion was whether an elected or part-elected, part-appointed House of Lords would continue to accept the restrictions of the Parliament Acts. Here the government’s intention to achieve a second chamber which would complement the Commons rather than rival it was relevant. Finally a conclusion was needed. Many candidates pointed out that the current House of Lords, albeit undemocratic, fulfils its function well and that further reform might introduce more problems than it would solve by either producing a rival to the Commons or simply replicating it.

Question 5 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: •

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

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the registration of political parties and the requirement to disclose donations under the Political Parties, Elections and Referendums Act 2000

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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

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265 0020 Public law Zone B

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 6 With reference to statute and case law, consider the extent to which English law achieves an appropriate balance between the freedom to demonstrate and the maintenance of public order. This question was not popular and, although there were some very good answers, there were a high proportion of failures caused by candidates having insufficient knowledge of the law. One good starting point would have been to explain the traditional British approach to civil liberties – namely that conduct is allowed which is not prohibited by law. The constitutional importance of freedom to demonstrate and its related concept of freedom of expression required discussion, as did the potentially competing concept of public order. Having offered a balanced introduction, there should then have been a discussion of the public order Acts, with particular reference to the requirements of notice and the powers of the police to impose conditions and, in the most extreme cases, ban a procession which was likely to lead to civil unrest or violence. The impact of the Human Rights Act 1998 should also have been discussed, Articles 10 and 11 being the relevant ECHR provisions. It should have been noted that both Articles provide for legitimate restrictions on the exercise of the freedom of expression, association and assembly – the requirements of public order being one of them. The strongest and most knowledgeable candidates were able to discuss the case law. In addition to cases decided under provisions of the ECHR, cases involving obstruction of the police, obstruction of the highway and the concept of breach of the peace should have been discussed with a view to assessing ‘the appropriate balance’ between freedom to demonstrate and the maintenance of public order.

Question 7 By reference to recent 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.

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Examination papers and Examiner’s reports 2008

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 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 also able 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. This was 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 and 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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