School of Law and Policing

Graduate Diploma in Law (GDL)

&
Degree Apprenticeship

LA3093 Public Law

LW1039 Public Law Essentials

2023-24

Module Handbook and Workshop Questions

“We the People of the United S tates, in Order to form a

more perfect Union, establish Justice, insure domestic
Tranquility, provide for the common defence, promote the
general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this
Constitution for the United S tates of America.”

1
Preamble to the Constitution of the USA, 1787

1. Using this handbook

Welcome to Public Law. This is a module taught in the 2nd semester

culminating in an examination in May. The module is taught by staff located in
the Lancashire Law School and Mauritius.

This module handbook is intended to provide an introduction to the course, its

scope and content, teaching and assessment strategies. The handbook
provides you with information about the module, important dates, reading and
our expectations of you as a student on this module. It is also intended to
introduce you to the members of staff who will teach you over the coming
year.

The module team hope that you enjoy Constitutional Law. Their contact
details are listed below.

2. Constitutional Law: the course team & contact details

Dr Allwell Uwazuruike (Preston Campus)

Harris 257
Tel: 01772 895672
[email protected]

Nazneen Asmal (Preston Campus)

[email protected]

Ankur Bhowon (Mauritius)

[email protected]

Staff Availability

Each module tutor will put their availability times on their office door. If the
matter is not urgent then students should go to see tutors during the times
indicated. It may be a good idea to give notice that you would like to see the
member of staff and the nature of the enquiry. This can be done via e-mail or
by leaving a note with the Harris Hub.

3. Public Law: the course

2
Public Law is concerned with a wide range of issues, but some of its key
themes are:

How is the power of the State organised? This involves looking at, for
example, who has the power to make law, or who has the power to adjudicate
on disputes, and how law and other rules distribute this power.

Can the power of the State be limited by law? This involves looking at both
theoretical approaches, for example the ‘rule of law’ and the ‘separation of
powers’, and very concrete practical issues, such as can an individual,
through the courts, stop a local council from turning a much-loved local beauty
spot into a car park?

What is the relationship between the individual and the State? This involves
looking at the ability of individuals to legally challenge the actions of public
authorities and also at the notion of ‘rights’; that the State should not have the
capacity to interfere in certain activities of citizens, such as their ‘right’ to say
whatever they want.

You may feel that this is a bit abstract, not grounded in the real world that you
inhabit, or not really ‘law’ but rather some kind of argument about politics. This
is far from the truth. Open any broadsheet newspaper on any day of the week
and you will find something of constitutional importance and find that the law
plays a central part in the issue. Something you must do is get into the habit
of reading a good newspaper in order to keep abreast of topical developments
of a constitutional nature.

4. Overall aims and objectives

The aim of the module is to provide an understanding of the relationship

between law, government and power. It is, further, interested in the
relationship between the citizen, the state and the law.

Under broad headings of the constitution, administration and civil liberties the
module will provide introductory insight, knowledge and understanding of the
laws, conventions and theories that underpin the UK’s constitutional system of
government.

Constitutional

The initial aim is to enable the student to produce a valid and reasoned
argument as to whether or not the UK has a constitution and to understand
the role of the law and the courts in this context. The module aims to reach
this objective through the critical use of a variety of sources including
legislation, case law and conventions.

Administrative

3
In the context of administrative law the aim is to develop knowledge and
understanding of how and when the courts will intervene to control the use
and abuse of power by the executive and other public bodies.

Human rights

The aim is to enable the student to understand the relationship between the
citizen, the government and the courts in maintaining and protecting human
rights in the United Kingdom.

5. Teaching methods

The teaching of Constitutional Law is through lectures, which will be two hours
each week, supplemented by a two-hour workshop every two weeks.

6. Lecture syllabus and content

Week Lecture Workshop

Beginning
22ndJanuary Introduction, Definitions of a n/a
2024 Constitution
22nd January Purpose of a Constitution; n/a
2024 Royal Prerogatives
(Note: same as
week above)
29th January Conventions 1: Constitutions
2024
5th February The Supremacy of
2024 Parliament I
12th February Reading Week Reading Week
2024
(No classes)
19th February The Supremacy of 2: Conventions
2024 Parliament II
26th February The Separation of Powers
2024
4th March 2024 The Rule of Law 3: Supremacy of
Parliament
11th March 2024 Judicial Review: Procedural
Hurdles and Grounds I
18th March Judicial Review: Grounds II 4: The Rule of
2024 Law/Separation of
Powers
25th March The Human Rights Act 1998
2024
1st & 8th April Easter Break Easter Break
2024

4
 15th April The European Convention 5: Judicial Review
2024 on Human Rights & Public
Order Law

22nd April Revision and Exam Briefing

2024
29th April 6: ECHR &The
2024 Human Rights Act
1998

7. Recommended book purchases

Most law texts covering the topics in the syllabus should suffice (in
particular, texts on “Constitutional and Administrative Law”). Please
ensure that you read a recent edition (e.g., from 2021) due to recent
landmark decisions and changes in the UK (e.g., prorogation & EU
membership). Below are some recommendations, most of which are
available at the UCLan library.

i) Neil Parpworth, Constitutional and Administrative Law (12th edition,

2022) Available at UCLAN library, 342 PAR

ii) Roger Masterman & Collin Murray, Constitutional and

Administrative Law (3rd edition, 2022)

iii) John Alder and Keith Syrett, Constitutional and Administrative Law,
12th edition (12th edition, 2021) Available at UCLan library, 1st floor,
(342 ALD)

iv) Hilaire Barnett, Constitutional and Administrative Law (14th edition,

2021) Available at UCLan Library, 1st floor, 342 BAR

v) Lisa Webley, Complete Public Law: text, cases, and materials (5th
edition, 2021) Available at UCLan Library, 1st floor, 342 WEB

8. Assessment

Public law is assessed by:

Coursework: 50%
Examination: 50%

5
 Workshop One: Introduction to the UK Constitution

General reading

Please read relevant chapter of your textbook and materials available on

Blackboard.

Q1. What are the main approaches to defining a constitution?

Q2. What is meant by the phrases ‘entrenchment’ and ‘higher legal status’?
Do you agree with them?

Google: District of Columbia v. Heller, 554 U.S. 570 (2008). What were
the facts of the case? Do you agree with the decision? How are the
facts related to the issues of ‘entrenchment’ and ‘higher legal status’, if
at all?

Constitutionally, what is the process of amending eg Amendment II of

the US Constitution? Do you agree with this? Give reasons for your
answer.

Some people argue that ‘entrenchment’ and ‘higher legal status’

increase the ‘politicisation’ of the judiciary. What do you think this
means? Do you agree with it? Give reasons for your answer.

Q3. The constitution of South Africa provides that there will be freedom of
speech and expression (Chapter 2)

What would happen if …

The South African Parliament passed a law that made it a criminal

offence to publish criticism of the President?

What would happen if the equivalent law was introduced in the UK

(e.g., criminalising criticism of the Prime Minister or the Queen)?

Q4. The constitution of Germany, the Basic Law, provides that ‘The dignity
of man is inviolable’ (Article 1).

What would happen if the German Parliament introduced a law stating

that anyone who had been unemployed for more than 12 months had
to surrender their identity papers to the police, were required to live in
dormitories and to work on public project without pay?

6
 What would happen if the equivalent law was introduced in the UK?

Q5. Explain Paine and Ridley’s objections to the view that an ‘unwritten
constitution’ actually is a type of constitution.

Q6. Are there any advantages in looking at the purpose of a constitution

rather than its form or essence? Do you agree with Jefferson on what
the purpose of a constitution is? Give reasons for your answer.

Q7. In the Green Paper Governance of Britain (July 2007) the then Labour
government mooted the idea of a written constitution for the UK. Do
you think this country would benefit from having one? Give reasons for
your answer.

Q8. The people of Great Sahara have recently won independence and
want to draft a constitution. Advise them on the content of a
constitution. Which important provisions would you include?

7
 Workshop Two: Conventions

General reading

Please read relevant chapter of your textbook and materials available on

Blackboard.

Q1 Identify conventions from your reading. How did Dicey define them?
How did Marshall and Moodie?

Q2 How may conventions arise? How are they different from habits?

Q3 What are the similarities and differences between conventional rules

and legal rules? Can the breach of a convention be termed
unconstitutional although it is not illegal? Can a convention crystallise
into law? Give reasons for your answer.

Q4 Following your reading above, access the Ministerial Code, either here
https://assets.publishing.service.gov.uk/government/uploads/system/up
loads/attachment_data/file/1126632/Ministerial_Code.pdf or on
Blackboard. In particular review pages 5-7.

Discuss, as a group, the operation of Collective Cabinet Responsibility

(CCR). What are the benefits and disadvantages of this rule?

Q4 Does the Jonathan Cape case show that the courts can enforce
conventions? What were the arguments of the parties? What principles
did the court apply in deciding whether to allow disclosure?

Q5 Explain the nature of individual ministerial responsibility/ accountability.

Does it provide a tool for limiting the power of the State? If not, how
could it be reformed?

Q6 Again, access the Ministerial Code, either here

https://assets.publishing.service.gov.uk/government/uploads/system/up
loads/attachment_data/file/1126632/Ministerial_Code.pdf or on
Blackboard. In particular review pages 11-12.

What does your reading say about individual ministerial responsibility

(IMR)? Read this short newspaper article and apply what you know
about IMR to the Windrush story

https://www.theguardian.com/uk-news/2018/apr/17/home-office-destroy
ed-windrush-landing-cards-says-ex-staffer

Q7 Jenny Jenkins was appointed as Home Secretary in April 2019. In the

two years before her appointment there were 100 escapes from prison
per year. In May 2019 she released a policy document stating that
‘Prisons should be secure establishments. The reduction of prison
escapes is a priority policy for this Government’.

8
In October 2020 a report reveals that there were 200 prison escapes
between May 2019 and May 2020. The report concludes that the
escapes were due to a range of causes, including staff mistakes in not
locking doors properly, shortcomings in training provided by the Prison
Service, staff shortages and the awarding of a contract to transport
prisoners to a private security company.

The Director of the Prison Service issues a statement blaming

reductions in the Prison Service budget over the last year and saying
that Ms Jenkins was warned of the effects of the cuts in November
2019.

Is there a constitutional convention requiring Ms Jenkins to resign? If

she does not have to resign what do the constitutional rules require of
her?

You must make reference to the views of Woodhouse (see Blackboard)

in your answer.

9
 Workshop Three: Parliamentary Supremacy

General reading

Please read relevant chapter of your textbook and materials available on

Blackboard.

Q1 What is the traditional legal view of Parliamentary supremacy?

Q2 Read the extracts from British Railways Board v Pickin [1974] AC 765
on Blackboard. Identify three key points about the case that you would
use to explain it and its significance.

Q3 How does/did EU law affect Parliamentary supremacy? What

happened in the case of Factortame (No2)? Did the House of Lords in
Factortame (No2) give up the supremacy of the Westminster
Parliament in favour of the supremacy of EU law? Give reasons for
your answer

Q4 In what circumstances do you think that the UK Parliament would/could

repeal ‘constitutional statutes’ such as the Human Rights Act 1998 and
the Scotland Act 1998?

The European Communities Act 1972 has also been described as a

‘constitutional statute’. How does the recent litigation in the case of
Miller v. Secretary of State for Exiting the European Union affect
Parliamentary supremacy and the repeal of the European Communities
Act 1972 i.e. the UK’s withdrawal from the EU, if at all?

Q5 Supremacy of Parliament constantly made front page news in recent

years. At some point, there was wide agreement that the UK was in the
midst of a constitutional crisis necessitating a better understanding of
public law. Do a general search for information on:

● What is prorogation?
● What is a prerogative power?
● The outcome of Miller v. The Prime Minister [2019] UKSC (the
‘Cherry/Miller 2’ case).

Have a look at this short article from Prof. Mark Elliott

https://publiclawforeveryone.com/2019/09/25/1000-words-the-supreme
-courts-judgment-in-cherry-miller-no-2/

Q6 Identify other legal, political, and moral constraints upon the supremacy
of Parliament.

Q7 The (fictitious) Human Rights Act 2018 provides for the introduction of
the European Convention on Human Rights (ECHR) into UK law (s.1).
The ECHR guarantees, for example, the right to life. The statute also

10
says that no part of the legislation can be repealed without a 2/3
majority in the House of Commons (s.2).

In 2019 the House of Commons passes the Emergency Measures Act

(EMA) which provides for execution without trial for taking photographs
in public. It is passed with a bare majority and in clear contravention of
the right to life.

Whilst on a skiing holiday in Austria, Phil takes a number of

photographs of his family and friends enjoying themselves with his
mobile phone. The pictures are shared widely on social media in the
UK. Upon his return to Manchester airport, Phil is arrested for
contravening the EMA. Phil is now about to be executed and seeks to
show that the EMA has no legal effect.

Advise Phil.

11
Workshop Four: The Separation of Powers and the Rule of Law

General reading

Please read relevant chapter of your textbook and materials available on

Blackboard.

Q1 What are the three types of powers within a constitution? Why should
they be exercised by separate organisations? Give reasons for your
answer.

Q2 Which best describes the separation of powers in the UK: the strict
theory or the partial separation theory? Give reasons for your answer.

Q3 Is there an adequate separation of powers in the UK? Does the

Constitutional Reform Act 2005 go far enough in protecting the
separation principle? Do you think the UK could experience a
government shutdown like the US in 2013 and 2019?

See R Benwell & O Gay, The Separation of Powers: Commons Library

Standard Note, (2011, House of Commons Library Briefing Papers) -
https://commonslibrary.parliament.uk/research-briefings/sn06053/

Q4 How is the independence of the judiciary ensured in the UK?

Q5 Discuss Dicey’s formulation of the rule of law. How applicable or

appropriate is it to the UK’s constitutional arrangements in the 21st
century? Does Dicey ever come to terms with the tension between the
rule of law and Parliamentary sovereignty?

Q6 After the decision in Burmah Oil v. Lord Advocate (1965) what did the
government do in the War Damages Act? Why is this of constitutional
significance? How does this sit with the concept of the rule of law?

Q7 How have other commentators described the rule of law? Which if any
would best describe the position of the rule of the law in the UK?

Q8 Andrew receives a letter written in Arabic. He has no knowledge of the

language and so cannot understand the letter. Unable to afford a
translator he throws it away.

A couple of weeks later he is arrested by the police for clearing snow

from his garden path six months ago on the evidence of a neighbour
who remembers him doing it.

When Andrew appears in court he is found guilty. The Minister for

Justice has informed the judge (without telling Andrew or his legal
representatives) that a secret law was passed that morning by the

12
President. The law cannot be shown to the court but the Minister tells
the judge that it covers Andrew’s past behaviour.

Andrew’s appeal against his conviction is rejected as the Minister

simply instructs the appeal court to refuse him access and pays the
judges a bonus when they act on his orders.

Clearing snow from a garden path without authorisation is an offence

contrary to the (fictitious) Snow Clearance Act 2018 which became law
by the Presidential decree. The law was explained to Andrew in the
letter.

Advise Andrew in relation to the separation of powers and different

definitions of the rule of law.

13
 Workshop Five: Judicial Review

General reading

Please read relevant chapter of your textbook and materials available on

Blackboard.

Q1. What is judicial review? How does the principle relate to previous
Public Law topics we have studied such as Parliamentary supremacy?
Separation of Powers? The Rule of Law?

Q2. What is standing? What was the decision of the Court in R v Somerset
County Council, Ex parte Dixon [1997] JPL 1030?

Q3. In the workshop, you will be placed into two groups: A & B. Both
teams will undertake both tasks and review/criticise each other’s
answers.

Part i –You are asked by the Minister for Work and Pensions to draft a
clause in a new Bill that would exclude judicial review of decisions of
the (fictitious) Pension Claims Commission. (10 minutes team
discussion)

Write up the clause on the white board.

Part ii – you are counsel for a pensioner’s group who want to judicially
review a decision of the Pension Claims Commission. How would you
persuade the court to hear the application despite the existence of the
(other group’s) ouster clause? (10 minutes team discussion, then 15
minutes whole group discussion).

Q4. Here are some short questions to test your understanding of the
grounds of judicial review:

• What is simple ultra vires?

• What is the principle from the Padfield case?
• What does the term ‘fettering discretion’ mean?
• Why should public bodies not delegate discretion?
• Summarise the relevancy rule.
• How can courts decide that a power has been used for an
improper purpose?
• What is irrationality?
• How can a legitimate expectation arise?
• What is the test for bias?

Q5. The (hypothetical) Market Trading Act 2017 allows local councils to
grant and revoke licenses to trade on markets in their area “as they see
fit”. Sleepyton Council has delegated its powers under this Act to its

14
Licensing Committee. The Committee has further delegated powers to
revoke licenses to its Markets Manager.

The Council has adopted an objective that Sleepyton will be “the most
organic town in England” on the basis that “organic farming is the only
ethical way to care for the land”. On the basis of this objective the
Licensing Committee has drafted a policy of refusing all new
applications for licenses to trade in non-organic produce. Elizabeth
Orchard applies for a market trader’s license to sell non-organic fruit
and vegetables. Her application is rejected on the grounds that it is not
consistent with the policy.

George Hogg has operated a butcher’s stall on Sleepyton Market for

20 years. He has never sold organic produce. In response to the
increasing promotion of organic produce he puts up a poster on his
stall saying ‘Non-organic sausages – the original, the cheapest and the
best!’ The Markets Manager orders him to remove the poster as it is
“inconsistent with the ethos and image of Sleepyton Market”. When he
refuses, the Markets Manager revokes his license. Hogg appeals to the
Licensing Committee who grants him a hearing but rejects his appeal.
The hearing is chaired by Councillor Brownbread, who is also the
regional chair of the Organic Soil Campaign.

Advise Orchard and Hogg on the possibility of judicial review

proceedings.

15
 Workshop Six: The ECHR and the Human Rights Act 1998

General reading

Please read relevant chapter of your textbook and materials available on

Blackboard.

Q1. What was the traditional approach to the protection of liberty in English
law? Why was it thought necessary to incorporate the ECHR?

Q2. What is the nature of the duty of interpretation in s.3 of the Human
Rights Act 1998 (HRA) and how does it relate to s.4 of the HRA?

Q3. How are ECHR rights protected by the HRA? What implications does
the HRA have for parliamentary supremacy? Does rights’ protection or
parliamentary supremacy prevail?

Q4. Are the standing rules for judicial review ie ‘sufficient interest’, as per
s.31(3) of the Senior Courts Act 1981, the same as those for breaches
of the ECHR in UK law?

Q.5 Similarly, the maximum time limit for applications for judicial review are
three months. Is this the same for alleged breaches of the ECHR?

Q6. In the Green Paper Governance of Britain (July 2007) the then Labour
government mooted the idea of a British Bill of Rights. Do you agree?
In what way is the ECHR deficient? Give reasons for your answer.

Q7. Jonathan Paxman, a noted TV journalist, uncovers a UK government

conspiracy to assassinate a noted opponent of the government’s
invasion of Iman and plans to broadcast the revelations on his next
current affairs programme. Unbeknown to him his TV producer is a
counter terrorist agent working for MI15, ‘a government agency’, and
has Jonathan abducted so that he cannot publish his claims.

Jonathan is not charged with an offence and is held in custody for a

month without seeing a magistrate. During his custody Jonathan is
deprived of sleep every second night before his questioning. Jonathan
reveals nothing and is eventually released.

Advise Jonathan about bringing a claim for judicial review under the
Human Rights Act 1998. Would it make a difference if the (fictitious)
Abduction and Torture of Journalists Act 2020 allows for the above
actions on the grounds of national security?

16
17