LL106 Public Law Past Exam Questions

(Answer 4 out of 9 questions)

Year The Conceptual Central Parliament Courts and the Civil Liberties and Fragmentation of
Framework of Government and Constitution (JR) Human Rights Government
Public Law the Executive
2017 ‘It is meaningless to ‘Over time, Discuss the extent to ‘In moving away ‘Judgments in ‘Miller v Secretary of
ask whether the UK alternative which Parliament can from a model of human rights law State for Exiting the
adheres to legal or mechanisms have be described as an judicial review that are inherently European Union
political been introduced to overworked legislation focused largely on political. Nowhere [2017] UKSC 5 is the
constitutionalism. bolster the factory. powers and process is this more evident constitutional case of
The constitution of traditional function towards one than in the the century’.
any advanced of ministerial dominated by more decisions of the Discuss.
democracy includes responsibility to nebulous notions of courts on ss.3 and ‘The position of EU
both legal and Parliament in its rights and 4 of Human Rights law within the UK
political forces and task of securing the proportionality, Act 1998.’ system falls to be
constraints. The accountability of English courts have determined not only
better question is executive power in made a very grave by reference to the
whether the UK the complex, misstep.’ bald terms of the
strikes the modern state. The Discuss. European
appropriate balance overall system Communities Act
between political remains imperfect, Critically analyse 1972, but also by
and legal forces and however, and there the decision of the reference to other
constraints in any is significant scope Supreme Court in features of the
particular context.’ for ministers to Kennedy v Charity domestic
Discuss. frustrate attempts Commission [2014] constitutional
to understand the UKSC 20. landscape with which
‘The adoption of a failures of those EU law might conflict,
written constitution who develop policy and which might
would necessarily and those who therefore constrain
involve the implement the domestic
reimagining of the it.’ Discuss. applicability of
constitutional constitutionally
status of what we suspect EU norms.’
 now call devolved Discuss.
government and its
relationship with ‘The adoption of a
the centre.’ Discuss. written constitution
would necessarily
involve the
reimagining of the
constitutional status
of what we now call
devolved government
and its relationship
with the
centre.’ Discuss.
2016 Section 1 of the ‘Every act which Give an account of the Explain the ‘The common law ‘The EU presents
Constitutional the executive law-making process in significance on the protects civil itself as a coherent
Reform Act 2005 government can the UK Parliament, subsequent liberties and (more and unitary polity
states that the Act lawfully do without distinguishing between development of recently) human founded on the rule
‘does not adversely the authority of the the passage of primary judicial review of rights in a way that of law, democracy
affect the existing Act of Parliament is and secondary ONE of the makes it and human rights. But
constitutional done in virtue of legislation and following cases: unnecessary to that self-image is
principle of the rule the prerogative.’ between the relative a. Associated persevere with the undermined once the
of law’. Explain the (Dicey) Discuss. functions and powers Provincial Human Rights Act institutional
constitutional of the two Houses. Picture Houses v or any replacement structures of the EU
principle of the rule Explain the Wednesbury that might come are examined.’
of law. Why does constitutional Corporation along were the Act Discuss.
the Act contain that convention of (1948) to be repealed.’
statement? collective b. Ridge v Baldwin Discuss. ‘It is now clear that
ministerial (1964) the UK courts will
Consider the responsibility. Can c. Anisminic v enforce statutes that
proposition that, as collective Foreign are incompatible with
a consequence of responsibility be Compensation EU law, provided only
the reforms regarded as a Commission that primary
instituted since convention if (1968) legislation clearly
1997, the UK has governments are d. Council of Civil instructs them to do
now acquired a able to choose to Service Unions v so, regardless of any
 federal suspend its Minister for the incompatibility.’
constitution. operation? Civil Service Discuss.
(1984)
2015 Comment on Lord Is Cabinet ‘The powers and ‘The common law Explain the A newly-elected MP
Steyn’s observation government, as procedures relating to no longer insists on advantages and seeks your advice on
in Jackson v described by the adoption and the uniform disadvantages of the meaning of
Attorney-General Bagehot, still the approval of delegated application of the repealing the section 18 of the
[2005] UKHL that ‘efficient secret’ of legislation are a rigid test of Human Rights Act European Union Act
‘the classic account the British constitutional outrage. irrationality once 1998 and replacing 2011, which reads:
of the doctrine of constitution? If it is Fundamental reform to thought applicable it with a UK Bill of ‘Directly applicable or
parliamentary not, what has taken ensure effective under the so-called Rights. directly effective EU
sovereignty given its place? parliamentary and Wednesbury law (that is, the
by Dicey, pure and judicial oversight of principle. The rights, powers,
absolute as it was, Have the changes delegated legislation is nature of judicial liabilities, obligations,
can now be seen to in the organisation urgently required.’ review in every case restrictions, remedies
be out of place in of government, Discuss. depends upon the and procedures
the modern UK’. advances in context.’ (Lord referred to in section
technology, and Mance in Kennedy v 2(1) of the European
‘The nature of the reforms to the law The Charity Communities ACT
relationship now combined to Commission [2014] 1972) fails to be
between the render the UKSC 20). Discuss. recognised and
executive and convention of available in law in the
judiciary has individual UK only by virtue of
changed ministerial that Act or where it is
substantially since responsibility to required to be
the Constitutional Parliament recognised and
Reform Act (CRA) anachronistic? available in law by
and the Human virtue of any other
Rights Act (HRA). Act.’ Advise the MP.
The CRA was
intended to
represent a move
away from the
traditional “fusion”
model of the British
 constitution and ‘De Jure, the UK is a
towards a more unitary state but, de
explicit separation facto, it is evidently a
of powers model… federal state.’
and the HRA takes Discuss.
the courts into the
examination of
questions that,
apart from the HRA,
would have been
regarded as political
questions.’ (House
of Lords
Constitution
Committee, 2007).
Discuss.
2014 ‘The question Consider the Using illustrations, ‘The more we move Critically examine ‘The European
whether the question that the consider whether the to a scenario in the way in which Communities Act
principle of the Cabinet Manual, law of parliamentary which the court, decisions of the 1972 was a
sovereignty of the the Ministerial privilege is in need of thinking in rights- European Court of masterpiece of
UK Parliament is Code, the Fixed- reform. oriented terms and Human Rights are concise legislative
absolute or may be term Parliaments applying the treated by UK drafting, whose
subject to limitation Act 2011, together principle of courts. radical implications
in exceptional with a series of proportionality, few managed to
circumstances is other enactments focuses on Critically examine grasp.’ Discuss.
still under and official questions of the relationship
discussion. For Lord publications, have substance or merit, between section 3 ‘The institutional
Bingham, writing resulted in the the less relevant and section 4 of architecture of the
extra-judicially, the codification of other areas of the Human Rights European Union
principle is Britain’s customary judicial review, such Act 1998. reflects the inherent
fundamental and in constitution. as legality and tension between
his opinion, as the procedural fairness, supranationalism and
judges did not by will become.’ intergovernmentalism
themselves Discuss. which lies at the heart
establish the of the EU.’ Discuss.
principle, it was not ‘The English Question
open to them to serves as a reminder
change it… Lord that the UK
Steyn on the other Parliament’s activities
hand recalled at the and procedures will
outset of his speech necessarily change as
in Jackson, the a consequence of the
warning that Lord evolving scheme of
Hailsham of St devolution, and that
Marylebone gave in some of the
The Dilemmas of consequences for
Democracy (1978), Parliament and for
about the the constitution have
dominance of a not been adequately
government elected addressed.’ Discuss.
with a large
majority over
Parliament. This
process, he said,
had continued and
strengthened
inexorably since
Lord Hailsham
warned of its
dangers. This was
the context in
which he said that
the Supreme Court
might have to
consider whether
judicial review or
the ordinary court
of the roles was a
constitutional
fundamental which
 even a sovereign
Parliament acting at
the behest of a
complaisant House
of Commons could
not abolish.’ Lord
Hope in AXA v Lord
Advocate [2011]
UKSC. Discuss.
2013 ‘In England, the ‘The controversy ‘The authority of the ‘It was often said ‘Some say the ‘In order to satisfy the
constitution may over the UK House of Commons that judicial review Human Rights Act demands of the EU
change continually, government’s derives from election, of administrative gives too much Treaties, the UK
or rather it does not decision to the authority of the action concerns power to judges; courts have reached a
in reality exist.’ intervene in Iraq in House of Lords -and itself with how a some say it gives position which
(Alexis de 2003 illustrates especially its decision was taken too little. This damages neither the
Tocqueville) that cabinet committees- from its rather than with the probably means supremacy of EU law
Discuss. confidentiality is an expertise.’ Discuss. merits of the that the Act has the nor the sovereignty of
outdated concept. decision itself. This balance exactly Parliament.’ Discuss.
Assess the The principles of Critically assess the role can no longer be right.’ Discuss.
significance for democratic of Parliament in the said.’ Discuss. ‘Devolution has
public law of the accountability and law-making process. transformed the UK
decision in the case respect for the rule from a unitary state
of Jackson v of law require to a quasi-federal
Attorney General openness and one.’ Discuss.
[2005] UKHL 56. freedom of
information.’
Discuss.
2012 ‘To claim that the Consider the validity of ‘The proponents of ‘Judicial decisions ‘By empowering the
fundamental the following proportionality are on the Human European Parliament
principle of the (hypothetical) winning the Rights Act 1998 in the EU legislative
British constitution provisions in an Act of argument against have been so far process, successive
is that of Parliament: Wednesbury out of line with European Union
parliamentary (i) This Act shall unreasonableness.’ public opinion Treaty reforms have
sovereignty means apply Discuss. where the security succeeded in
that Parliament notwithstanding of the state is reducing the
cannot be bound by any contrary concerned that it is democracy deficit.’
law. To claim that rule of EU law. inevitable that it Discuss.
the fundamental (ii) There shall be will be replaced by
principle of the enacted a Bill of a Bill of Rights’. ‘The central aim of
British constitution Rights for the Discuss. devolution was to
is that of the “rule UK. No Act avoid the break- up of
of law” means that enacted at any the United Kingdom
Parliament is bound future time by containing the
by law. To claim shall have nationalist forces in
that both are effect, in so far Scotland and Wales
fundamental as it is and, in Northern
principles of the inconsistent Ireland, by providing
British constitution with the Bill of a guaranteed role in
is incoherent.’ Rights, unless it the government for
Discuss. is assented to the minority,
by a majority of nationalist
‘The UK the people community.’ Discuss.
constitution is voting in a
parliamentary, referendum. No
unitary, and heavily Act to repeal
reliant on non-legal the Bill of Rights
mechanisms. The shall have effect
distinction between unless it is
written and assented to by a
unwritten majority of
constitutions is of people in a
some but not referendum.
fundamental
importance. The UK ‘Delegated legislation is
constitution is an another manifestation
untidy mixture of of the unacceptable
different kinds of dominance of
law, practices and Parliament by the
customs and has a executive.’ Discuss.
substantial informal
 element, lending ‘The prerogative power
itself to domination and parliamentary
by personal privilege cannot be
networks.’ Discuss. justified. They are but
the result of historical
accident and should be
comprehensively
reformed by statute.’
Discuss.
2011 ‘Our parliamentary ‘Under the British Answer EITHER a) OR ‘The principles of ‘The UK’s counter- ‘The judicial analysis
democracy is based constitution, b). procedural fairness terrorism efforts in Thoburn for the
on the rule of law. matters of ensure that public have been first time reconciles
One of the twin potentially great a) ‘Parliamentary bodies retain rendered less convincingly the
principles upon importance are eft sovereignty substantial effective because doctrine of
which the rule of to the judgement suggests that flexibility in of the need to stay parliamentary
law depends is the either of political Parliament makes decision-making to within human sovereignty with the
supremacy of leaders or, even to law. In truth, the detriment of rights law.’ Do you supremacy of EU law.’
Parliament in its a diminished Parliament applicants.’ Discuss. agree with this Discuss.
legislative capacity. extent, of the approves the statement? Give
The other principle Crown.’ (Lord government’s ‘The advent of the reasons for your ‘The English Question
is that the courts Bingham, 2007). legislative doctrine of answer. is not an exam
are the final Discuss with programme. We proportionality has question that the
arbiters as to the reference to the should therefore unbalanced English English are required
interpretation and prerogative. speak of judicial review. An to answer: it can
application of the “governmental enterprise once remain unresolved for
law. As both sovereignty”.’ grounded in limited as long as they want.
Parliament and the Discuss. review of powers Ultimately only the
courts derive their OR and procedures and English can decide
authority from the b) ‘Parliament is just which emphasised whether they want to
rule of law so both for show’. Discuss. restraint in the seek an answer to the
are subject to it and application of the English Question.’
cannot act in a court’s supervisory Discuss.
manner which powers has come to
involves its be characterised by
repudiation.’ (Lord brittle assertions of
Woolf, 1995) judicial power in
Explain and discuss. the face of
‘We now have a legitimate
whole system of governmental
political morality, a authority. This new
whole code of approach might
precepts for the reward a handful of
guidance of public successful
men, which will not claimants, but it is
be found in any unlikely to benefit
page of either the the system of
statute or the government as a
common law, but whole.’ Discuss.
which are in
practice held hardly
less sacred than any
principle embodied
in the constitutional
laws. In short, by
the side of our
written Law, there
has grown up an
unwritten or
conventional
Constitution. When
an Englishman
speaks of the
conduct of a public
man being
constitutional or
unconstitutional, he
means something
wholly different
from what he
means by conduct
being legal or
illegal. What is the
nature of the
conventions or
understandings of
the constitution?
What is the force or
(in the language of
jurisprudence) the
“sanction” by which
is enforced
obedience to the
conventions of the
constitution?’ AV
Dicey, The Law of
the Constitution
(1885). Explain this
‘system of political
morality’ and
answer the two
questions Dicey
poses.