Examiners’ report 2013

Examiners’ report 2013

LA1020 Public law – Zone B

Introduction
As in previous years, answers ranged from outstanding to poor responses to the
questions set. Some candidates took the approach of reiterating what was in the
subject guide or textbook, or merely giving a descriptive account of a particular area
of public law. This is insufficient, given that the objective is to discuss the questions
critically and to draw on a wide range of (sometimes conflicting) primary and
secondary legal materials. By contrast, the best candidates showed a clear and
succinct grasp of the key issues and had made use of the further reading
recommended in the subject guide and available on the VLE.
Please note that spelling errors and other linguistic problems have been left as they
were on the examination scripts.

Specific comments on questions

Question 1
To what extent does the UK system of government reflect the doctrine of the
separation of powers?
General remarks
The most popular question by far, the difficulty of separation of powers is frequently
underrated or not appreciated by candidates. An alien doctrine, it is a problematic
lens through which to analyse, explain, or understand the UK organs of government
that has traditionally been based on the mixed/balanced constitution which joins
monarchic, aristocratic, and democratic elements, but controls them through checks
and balances.
Common errors
Candidates typically introduce the three major institutions of state and discuss their
role, functions and personnel systematically. So, the (relatively uncontroversial)
Parliament/executive relationship is given as much time as the (more controversial)
judiciary/executive relationship. The role of the Lord Chancellor needs to be
downplayed, and the role of the judiciary in relation to law making and judicial
review highlighted. The respective relationships need to be discussed critically, and
not just described. Is separation of powers (after the Constitutional Reform Act
2005, UK Supreme Court, etc.) still as irrelevant to understanding the UK
constitution as it historically was?
A good answer to this question would…
Discuss the emergence of the doctrine of separation of powers in historical terms,
but stress that Montesquieu’s conception is based on an idealised English

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constitution. At the very least, the historic incongruity of the doctrine in the UK
constitution needs to be brought out. A very good answer would show that
separation of powers is enjoying a renaissance in the UK and point to recent
constitutional developments (Constitutional Reform Act 2005; reformed Lord
Chancellor; UK Supreme Court) to underscore the point. Although clearly of
historical and theoretical interest, there are cases that need to be discussed if only
as illustrations (Anderson; Matthews; Duport Steels; Fire Brigades Union) as well as
contemporary literature to be considered.

Poor answers to this question…

treat the separation of powers as a template to analyse the UK constitution; discuss
the relationships systematically when the reality is much more complicated; focus
on historical and comparative elements (USA; France) rather than the
contemporary legal and political realities in the UK.
Question 2
Does the Human Rights Act 1998 illustrate that it is possible to achieve
effective protection of human rights without excessively empowering judges?
General remarks
This question is not about the nature of human rights, or their historical recognition
by the common law, or the substantive rights protected by the European
Convention on Human Rights. It is about the internal logic of the Human Rights Act
(s.3) and its relationship with other organs of government (s.4). Final thoughts could
address reform of the Human Rights Act.
Law cases, reports and other references the Examiners would expect you to
use
R v A; Ghaidan v Mendoza; Anderson; Bellinger v Bellinger.
Common errors
To write about rights in the European Convention on Human Rights context; to
discuss mainly or only rights cases before the Human Rights Act; not to analyse the
impact of the Human Rights Act on the constitution and the institutional balance
between the courts and Parliament/government.
A good answer to this question would…
Set out the position before the Human Rights Act was enacted; set out and illustrate
(using case law) the interpretative obligation in s.3: what are the limits to statutory
interpretation? Section 4 also needs to be discussed: does the power to make a
declaration of incompatibility change the constitutional role of the courts? A very
good answer would also consider the impact of the Human Rights Act on
institutional balance. Is Parliament still sovereign? Has the relationship between
Parliament, government and courts been reordered? Is the gap between legal
theory and political reality getting wider and harder to justify? Would a British bill of
rights remedy the perceived ‘defects’ of the Human Rights Act?
Poor answers to this question…
An all too common approach is for poorer answers to list the main provisions (ss.2,
3, 4, 6, 8, and 19) in the Human Rights Act without any discussion. Some better
attempts lost points because they did not discuss cases sufficiently, or because
they only focused on human rights protection without considering judicial
empowerment. Finally, some answers erroneously discussed counter-terrorism
(which was the focus in last year’s examination).

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Student extract
Considering the concept of parliamentary sovereignty, the HRA has no higher
status than any other statute. It can be amended or repealed anytime but the
moral and political constraints would make this difficult. S.2 of HRA requires
all domestic courts to ‘take into account’ ay judgements, decisions or
opinions of the ECHR. In R v Horncastle; R v Marquis (2009) the Supreme
Court made a statement to follow the case law of the ECtHR. However, Lord
Phillips stated that on rare occasions the domestic courts may decline to
follow the case law of the ECtHR, provided the ECtHR had not
accommodated a particular aspect of the domestic process.
[The answer then discusses ss.3; 4; 6 of the Human Righs Act]
Initially, it was thought that HRA would only act vertically against government
bodies. However, by including courts and tribunals within the definition of
public bodies, the HRA seems to allow for horizontal effect which extends the
scopt of the Act to include non-state bodies. An example of this can be seen
in Douglas v Hello (2001), where the Court of Appeal found that the
individuals had a right of personal privacy, which was grounded on the
equitable doctrine of breach of confidence. Sedley LJ state that the law
recognises and will appropriately protect a right of personal privacy. […]
To conclude, the genuine effect of HRA is to strengthen the protection of
individual rights and freedoms. The HRA clearly illustrates that it is possible
to achieve protection of human rights without excessively empowering
judges.
Comment on extract
Good use of cases throughout; well written and nicely balanced answer. But the
candidate does not discuss the role of the judges in the case law and adds the bit
about ‘empowering judges’ in the conclusion as an afterthought. It needed to be
integrated in the answer from the start. Mid 2.1.
Interpretation of the question: good
Relevance of the answer to the question: good
Substantive knowledge: good
Use of authorities: very good
Articulation of argument: satisfactory
Accuracy of information: very good
Clarity of expression: very good
Legibility: good
Question 3
Consider whether proportionality is superseding irrationality as a ground of
judicial review.
General remarks
The question focuses on grounds of review that are less directly linked to the notion
of ultra vires and which, therefore, raise issues regarding the proper limits of the
courts' role.
Law cases, reports and other references the Examiners would expect you to
use
Wednesbury, ex p Smith, GCHQ; ex p Fire Brigades Union; ex p Daly.

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Common errors
A large number of candidates limited their response to Wednesbury and ultra vires
and failed to discuss the evolution of that ground of review (which now tailors the
level of interference to the subject matter) or the emergence of additional grounds
(e.g. proportionality).
A good answer to this question would…
Use Wednesbury and GCHQ as the starting point of the ultra vires doctrine and
illustrate why the decision is 'unfortunately retrogressive'. In order to get a
competent mark, candidates need to demonstrate the judicial flexibility in this area.
The courts' approach changes depending on whether individual rights are at stake
(anxious scrutiny) to whether the case raises broad socio-economic or political
factors that are removed from ordinary judicial competence. In order to get a good
mark, candidates need to be able to conceptualise 'proportionality'. Does it overlap
with unreasonableness? What are its requirements? A very good answer would
discuss the criticism that proportionality allows judges to interfere with decisions by
the executive by imposing their own opinion on the merits in place of that of the
decision maker.
Poor answers to this question…
Give a summary of the cases without connecting them to the issue that what is
unreasonable must always be decided in the context of the particular statutory
power, and without awareness that the grounds of review operate as an external
judicial control on the operation of a statute.
Student extract
[After a discussion of Wednesbury, GCHQ, and proportionality in the ECtHR
context, the candidate continues:]
Does this mean that proportionality is separate from irrationality? Given the
fluidity of the concepts of judicial review it might be wrong to suggest that at
the end there is a hard and fast difference between proportionality and
unreasonableness. One can easily argue that an administrative decision can
be reviewed because it placed unreasonable restriction on a human right or it
placed restriction that is out of proportion to the end it intended to achieve.
Thus a distinction can be made between the two grounds of judicial review if
a human right was not at state, but it does mean that these two grounds are
conceptually so distinct as to be open to contrast.
[The candidate discusses Alconbury and Daly]
So, even though the doctrine of proportionality and irrationality have different
origins there is insufficient conceptual difference between them. However,
Richard Gordon QC in his article ‘Two Dogmas of Proportionality’ stated
proportionality like Wednesbury is not a monolithic legal doctrine, it is not a
new dish rather merely a bit of extra icing on the intensity of the review cake.
Comment on extract
The candidate writes with great confidence throughout and displays exemplary
knowledge of the case law. The answer is broad in scope, with a lot of relevant
background information, but good on the detail as well. A first class mark.
Interpretation of the question: excellent
Relevance of the answer to the question: excellent
Substantive knowledge: excellent
Use of authorities: very good
Articulation of argument: excellent

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Accuracy of information: very good

Clarity of expression: very good
Legibility: very good
Question 4
Discuss the different ways it might be possible to reconcile the sovereignty of
Parliamentary with the supremacy of EU law.
General remarks
The question addresses the main legal principles relating to the European Union as
they affect the UK constitution. The internal workings of the EU are irrelevant to this
question.
Law cases, reports and other references the Examiners would expect you to
use
Pickin v British Railways Board; Madzimbamuto v Lardner-Burke; Vauxhall Estates;
Ellen St Estates; Macarthys v Smith; Garland v British Rail; Litster v Forth Dry Dock;
Factortame; Thoburn.
Van Gend En Loos; Coasta v ENEL; Internationale Handelsgesellschaft;
Simmenthal.
European Communities Act 1972; European Union Act 2011.
Common errors
Some candidates wrote mainly about Parliamentary sovereignty or set out (for this
question irrelevant) EU law cases (van Duyn, von Colson, Marshall, Francovich,
etc.) in great detail. Other candidates limited their discussion to Factortame, without
putting the decision in its proper context. Another fairly common error is to write
about the Council of Europe and the European Convention of Human Rights. In the
worst cases, this would have resulted in the candidate failing this question.
A good answer to this question would…
This question can be approached from a number of perspectives: Candidates may
either start by explaining the evolution and the sources of EU law and discuss the
manner in which they take effect within the UK, or they may start by analysing the
UK constitutional premise and then discuss the impact of EU membership. Key to
this question is the 'legal relationship' between the two systems. A good answer
would discuss the main facets of Parliamentary sovereignty (e.g. by Dicey and
Wade), a very good answer would include objections to that interpretation
(Jennings; Heuston, Craig, Allan). These objections are relevant to the question
whether Parliament successfully limited its sovereignty in 1972 in the context of EU
law. What are the arguments that deal with the case of a UK statute that is
inconsistent with EU law? How have UK courts resolved the issue?

Poor answers to this question…

Are usually one-sided and either focus only on Parliamentary sovereignty or discuss
the internal workings of the EU.
Question 5
Critically assess the role of Parliament in the law-making process.
General remarks
Parliament (i.e. the elected House of Commons, the appointed House of Lords, and
the Monarch) is the supreme law maker. Since i) Parliament has (in theory)
unlimited law making power and ii) the executive and the legislature are not

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separated, the resulting ‘elective dictatorship’ questions both the notion that
‘Parliament makes law’ and also Parliament’s role regarding the scrutiny of laws.
Common errors
Some candidates erroneously thought this question was about parliamentary
sovereignty.
A good answer to this question would…
The main focus should be on legislating and holding the executive to account. The
executive dominance in Parliament may be touched upon, especially since it
controls the timetable for debating legislation. The adversarial nature of
parliamentary procedure (government versus opposition) and party discipline
(whips) may be discussed as well, but the focus should be on legislative procedure
(three readings) and executive supervision (questions, debates; select committees).
A very good answer will find time to say something about delegated legislation
which is subject to a limited degree of parliamentary scrutiny. The purpose of the
House of Lords (which is subordinate to the House of Commons) should not be
forgotten: it is to act as a check on the lower house. The Salisbury Convention, the
composition of the House, and its status (unelected but a useful counterweight in
the mixed constitution) may be discussed.
Poor answers to this question…
Only discuss the stages of a public bill in Parliament (first reading, second reading,
etc.); fail to discuss the different ways in which Parliament does scrutinise laws
(public bill committees, etc.); focus only on the role of the House of Commons and
not the House of Lords.
Question 6
Consider whether parliamentary privilege is an essential part of parliamentary
democracy.
General remarks
This question is about the privileges that the two Houses and their members have
to control their own affairs and be protected against interference from outsiders.
Law cases, reports and other references the Examiners would expect you to
use
Stockdale v Hansard; Pepper v Hart; Stourton v Stourton; A v UK; Chaytor.
Bill of Rights 1689; Human Rights Act 1998; Freedom of Information Act 2000;
expenses scandal; Independent Parliamentary Standards Authority (IPSA).
Common errors
To understand this question as being about Parliamentary sovereignty; to illustrate
the answer using privileges that are mainly of historical or symbolic interest.
A good answer to this question would…
Discuss 'contempt of Parliament' with good illustrations, discuss the immunity of
Parliament from interference by the judges (see now the Human Rights Act), but
note that courts determine the limits of that privilege. A good answer will discuss the
meaning of 'exclusive cognisance' as well as freedom of speech under Article 9 of
the Bill of Rights. A very good answer will refer to the Parliamentary Commissioner
for Standards, the IPSA, and briefly discuss standards in the House of Lords.
Poor answers to this question…
Do not set out the need for privileges; do not discuss the relationship between
Parliament and the courts; do not discuss the independent mechanisms to enforce
standards.

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Question 7
Consider whether the flexibility of the ‘unwritten’ constitution of the United
Kingdom should be replaced by the openness and certainty of a written
constitution.
General remarks
The question requires the candidate to think about both the nature of a constitution
(written versus unwritten; political versus legal; flexible versus rigid) and its purpose
(from the efficient organisation of the state to the protection of individual rights). The
purpose ranges from the procedural (how to select and deselect rulers; how to hold
government to account) to the substantive (individual rights against the
government). The question is broad in scope (which might explain its popularity),
but also one of the harder ones to answer.
Law cases, reports and other references the Examiners would expect you to
use
The focus should be on the UK’s variety of constitutional sources, including
conventions, prerogative powers, international treaties, etc. which must be
contrasted with the concept of a documentary constitution that stems from the
revolutionary period in 18th/19th century Europe and USA.
Common errors
This was a popular question that probably gives the candidate the most latitude (to
shine as well as to fail). It can be approached historically (by tracing the historic
aspects of the constitution), doctrinally (legal versus non-legal sources), or
theoretically (codified versus uncodified constitution). The question also has a
comparative element which, however, should only be illustrative and not dominant –
some candidates write more about their home state or the USA than about the UK!
The key to this question is, therefore, sound general and specific knowledge of the
UK constitution which is presented clearly, coherently, and critically. The discussion
of legal codification should include an assessment of the constitutional implications,
especially in relation to the courts in enforcement. Does the UK constitution
encourage decision making that is ‘rational’ and a framework for government that is
‘logical’ and hierarchical (e.g. the distinction between constitutional and ordinary
laws)? Or does it fail to do so because, for example, it developed pragmatically,
flexibly, and peacefully (but without design) in response to short-term political
factors?
A good answer to this question would…
Set out the types, concerns, and foundations of a constitution, and assess the
importance of the fact that the UK constitution is 'uncodified'. Are there merits to the
flexibility and opaque constitution over the relative transparency and certainty of a
document? Do written constitutions in other countries include all the rules needed
for governing? A good answer would discuss the advantages (e.g. for the rule of
law) and disadvantages (is there general agreement on what would count as
'constitutional'?) of codification in the UK context. Such an answer should also
discuss the impact on the institutional balance, especially on the courts. A very
good answer would either draw on history (continuity of common law), theory
(Paine, Locke) or a rich knowledge of UK constitutional law to illustrate the more
conceptual answer that this question invites.
Poor answers to this question…
Focus on constitutions in abstracto; write mainly about their home state; display
insufficient historical and legal knowledge about the UK; fail to produce a coherent
argument.

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Question 8
‘The police's power to put restrictions on demonstrations has to be exercised
in a way that pays proper regard to demonstrators' rights to free expression
and free assembly.’
Discuss.
General remarks
Freedom of (political) assembly is of heightened importance as (unlike other civil
liberties) it is open to and free for all. As a result, the police have wide powers to
regulate public meetings and demonstrations.
Law cases, reports and other references the Examiners would expect you to
use
The answer should discuss the advance notice requirement in the Public Order Act
1986 allowing the police to impose conditions upon demonstrations (such as on
their route or numbers), and in exceptional circumstances to prohibit them
altogether on grounds of serious public disorder. It should mention the common law
doctrine of breach of the peace, giving rise to powers of arrest and orders for
dispersal; and should mention the wide number of public order offences especially
those in the Public Order Act 1986 (notably riot, violent disorder, affray, and
threatening, abusive and insulting behaviour), as well as the statutory offence of
obstruction of the highway giving rise to a power of arrest on the part of the police.
Case-law decisions and judicial dicta should be used to illustrate the legal and
human rights issues involved, such as those in Redmond-Bate v DPP (relevant
considerations in exercising a power to order demonstrators to disperse) and DPP v
Jones (obstruction/reasonable user of the highway).
Common errors
Some candidates discussed freedom of assembly in the context of the European
Convention on Human Rights, rather than the domestic UK context.
A good answer to this question would…
display an understanding of the theoretical tension between the individual rights and
freedoms of public protest, freedom of expression, and political dissent on the one
hand, and the collective national interest in maintaining public order and peace, as
well as protecting private persons and property, on the other. A good answer would
explain the constitutional position at common law – that persons are free to do as
they wish within the confines of the law – and then discuss the statutory buttressing
of the rights of public processions and demonstrations under the relevant articles of
the European Convention on Human Rights as incorporated into domestic law by
the Human Rights Act 1998. A sound answer would discuss the role of the police
and range of powers available to them to respond to processions and
demonstrations to maintain public order, and where necessary intervene.