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.

1
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’.

2
 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
• manner and form and redefinition theories
• membership of the European Union
• devolution to Northern Ireland, Scotland and Wales
• 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.

3
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
• the dominance of an executive with a strong electoral majority
• the theoretical unlimited legislative powers of Parliament
• the unelected House of Lords
• uncertainties surrounding the scope of the royal prerogative
and its exercise by the executive in the name of the Crown
rather than Parliament
• the importance and uncertainties surrounding many
constitutional conventions (the dissolution of Parliament and
ministerial responsibility being prime examples)
• 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 pre-
prepared 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

4
 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
• the franchise and those disqualified or ineligible to vote and
statutory reforms resulting in a more inclusive electoral register
• the legal rules relating to candidates’ expenditure, criminal
offences and the issue of participation in broadcasts in general
election campaigns
• the registration of political parties and the requirement to
disclose donations under the Political Parties, Elections and
Referendums Act 2000
• the regulation of spending at national level by political parties
(and the question of whether state funding should be provided)
• 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

5
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.

6
 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.