Examiners’ report 2010

Examiners’ report 2010

265 0020 Public law – Zone A

Introduction
As in previous years, the quality of papers ranged from First Class to
poor Fails. In this report the Examiners will discuss what constitutes a
‘good’ answer and what does not.

General remarks
Irrespective of the actual questions on the examination paper, there are
a number of common problems which detract from the quality of the
answers given. The first relates to understanding and correctly
interpreting the question. Although a number of the same topics will
appear on the paper each year, candidates must appreciate that this
does not mean that there is a standard answer which will be adequate
for the particular question. It is extremely important that you take care
in interpreting what the actual question is asking, and adapt your
knowledge of the topic accordingly. The Examiners can spot a ‘rote-
learned’ pre-prepared answer and it is rarely adequate for more than a
bare pass, if that.
A related issue concerns relevance. One of the main purposes of the 15-
minute reading time is to enable candidates to read and reflect on
what the questions require, and a correct interpretation is crucial for
success. Too often Examiners find that candidates offer a reasonable or
good answer on a topic which is not on the examination paper, and
such answers cannot achieve a pass mark. This emphasizes the
importance of taking care in reading the paper.
Another general difficulty lies in the length of answers given. While
there can be no fixed required length of answer – some very good
answers can be very succinct – a few paragraphs on less than two sides
of paper is generally not enough to give an adequate analysis and
discussion of the particular topic.

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Specific comments on questions

Question 1
‘Government under the law and the protection of rights and freedom are
twin pillars of the rule of law. Without the separation of powers neither of
these principles would be realised.’
Discuss in relation to the constitution of the United Kingdom.
This question calls for a discussion of two main aspects of the rule of
law and the importance of the separation of powers in relation to their
achievement. Accordingly, candidates must demonstrate a clear grasp
of both the rule of law and the separation of powers, and the
relationship between them. (See Chapters 4 and 5 of the subject
guide).
One good starting point for discussion would be the ‘unwritten’ or
‘uncodified’ nature of the United Kingdom constitution. The question
has identified the two principal aspects of the rule of law. Candidates
can therefore move directly to offering an interpretation and
illustration of the separation of powers. In a broad question such as
this it is not possible to give an extensive definition of the principal
institutions (legislature, executive and judiciary) and the relationship
between them: this must be done briefly so as to allow adequate time
for discussion.
A very good answer would include discussion of the importance of the
independence of the judiciary, which facilitates its ability to ensure
‘government under law’ by way of judicial review (see Chapter 18 of
the subject guide). The limitations of judicial review could also be
mentioned here – namely the prerequisites for review and the concepts
of justiciability and nonjusticiability. Candidates should offer
illustrative case law in support of their analysis. The role of Parliament
in controlling the executive should also be briefly discussed here.
In relation to the protection of rights and freedoms, candidates should
discuss (briefly) the concept of parliamentary sovereignty and the
subordinate position of judges which may limit their ability to protect
rights. The Human Rights Act 1998 and its role in advancing the
protection of rights should be discussed. A careful selection of case law
here will also strengthen the analysis.

Question 2
‘Current reforms will place the prerogative powers of regulation of the civil
service and the ratification of treaties on a statutory basis. Such a limited
reform leaves the exercise of too many other prerogative powers in the
hands of the executive.’
Discuss.
Candidates should first offer a brief definition, or definitions
(Blackstone, Dicey), of the royal prerogative, together with illustrations
to demonstrate the breadth of powers which fall under the prerogative.
In this question, it is important to explain that the prerogative is a non-
statutory, residual power exercised by the executive in the name of the

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Crown, and that many of these powers relate to matters of high policy.
(See Chapter 6 of the subject guide).
Attention can now be turned to placing the regulation of the civil
service and ratification of treaties under statute. Some candidates knew
that this had been achieved under the Constitutional Reform and
Governance Act 2010, but candidates who did not know this were not
penalized as the Bill received the Royal Assent in April 2010 which was
beyond the cut-off date for new material.
As the question indicates, however, what is most important here are
those powers which have not been placed under statute. This raises
the question of judicial or political control over its exercise (on this see
CR Munro, Crown and Prerogative, reading 8 in the study pack,
particularly pages 121–141).
In terms of judicial control, candidates should explain that the high
policy and political nature of many prerogatives has the consequence
that the judges will decline to rule on the legality of their exercise,
utilizing the concept of nonjusticiability. Case law should be offered to
illustrate this point.
In terms of political control of the prerogative, a brief discussion of
parliamentary procedures (Question Time, Select Committees) should
be offered. The convention that ministers will decline to answer
questions on the exercise of many of the most sensitive prerogative
powers should also be noted.
A conclusion should then be offered as to whether or not the limited
reform is adequate.

Question 3
‘The regulation of constituency boundaries, the regulation of election
expenditure, and the voting system at general elections make the
achievement of principle of “one person, one vote, one value” impossible.’
Critically assess this statement.
This question on the electoral system (discussed in Chapter 11 of the
subject guide) produced some very good answers, but too many which
were very poor. In many cases where the answers were poor this was
caused by a candidate’s failure to interpret the question correctly and
address all aspects of it – even though the question set out the three
aspects of the system which should be discussed.
The importance of equality between voters and election candidates in
ensuring democracy is one good starting point for discussion. Attention
could then turn to discussing constituency boundaries, election
expenditure and the voting system used for general elections.
In relation to constituency boundaries, the role of the Boundary
Commission and its regular reviews of constituencies should be
discussed, together with the statutory rules which prevent pure
equality in the number of voters in each constituency -- rules which
result in considerable disparities between constituencies.
In relation to election expenditure, candidates should have discussed
the rules relating to both elections in individual constituencies and to

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political parties as a whole. In relation to the former, the limits on

expenditure, the requirement of an election agent, the prohibition on
treating, etc. and the need for the submission of accounts should all
have been discussed, together with a brief note on the Election Court
and its powers in relation to disputed elections.
In relation to political parties, the Political Parties, Elections and
Referendums Act 2000, as amended by the Political Parties and
Elections Act 2009 (on which see the August 2009 Newsletter)
required discussion. The requirement of registration of political parties,
the legal controls over donations and expenditure should also have
been discussed. On political party funding, see J Robottom, The
Electoral Commission’s Proposals on the Funding of Political Parties,
reading 11 of the study pack.
Finally, the voting system required discussion. The strengths and
weaknesses of the simple majority (‘first past the post’) system should
have been analysed and a brief discussion of alternative systems –
particularly those offering proportionality – should have been
undertaken.

Question 4
‘One of the attributes of parliamentary sovereignty is self-regulation. The
Parliamentary Standards Act 2009 establishing the Independent
Parliamentary Standards Authority and Commissioner represents a significant
departure from this principle and raises questions of constitutional
importance.’
Discuss with reference to the background to the Act and its constitutional
implications.
This question gave rise to the greatest number of poor answers, and it
is important to stress the reasons for this. A careful reading of the
question would have made it plain that the aspect of sovereignty
requiring discussion was self-regulation: the power that Parliament has
to regulate its own composition, procedure and powers, together with
the individual and collective privileges which are exercised by
Parliament (see Chapter 12 of the subject guide and related reading).
However, it appeared to the Examiners that a large number of
candidates saw the words ‘parliamentary sovereignty’ and launched
into a discussion of that concept which had no relevance to the actual
question asked.
Furthermore, the question specifically asked for a discussion of the
Parliamentary Standards Act 2009 and its constitutional significance.
Unfortunately, it was clear to the Examiners that the majority of
candidates had not heard of the Act, but nevertheless proceeded to
attempt an answer. Students are encouraged, and indeed required, to
keep up to date with constitutional developments. The scandal over the
abuse of expenses and allowances and the resulting Parliamentary
Standards Act 2009 was one of the topics covered by the Public Law
Newsletters available on the VLE between June and September 2009
and also discussed in the Recent Developments.
One good starting point would have been to introduce parliamentary
privilege – with particular reference to the collective privilege to

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regulate Parliament’s own composition and procedure. The expenses

and allowances affair could then have been discussed in order to
demonstrate the need for statutory regulation. The 2009 Act, the
Independent Parliamentary Standards Authority (IPSA) and
Commissioner could then have been discussed, together with an
assessment as to whether or not this Act undermines self-regulation as
an aspect of Parliament’s sovereignty.
Many of the best answers pointed out that the Parliamentary Standards
Act is an ‘ordinary’ Act of Parliament and can therefore be amended or
repealed as Parliament wishes.

Question 5
How democratic are the institutions of the European Union?
This question was not particularly popular with candidates. It gave rise
to some very good answers but also some which were very poor. Where
answers were poor, this was generally caused by a failure to interpret
the question correctly and offering an answer which had no relevance
to the question on the paper.
A good starting point would be to explain the origins of the European
Union, with its foundation in the original Treaties of 1951 and 1957.
Having achieved this, the principal institutions could then be
discussed: the European Council, the Council (of Ministers), the
Commission, the European Parliament and the European Court of
Justice. The institutions and the issue of democracy is addressed in
13.4 of the subject guide.
The strongest candidates were able to explain that the European
Council – the highest level of policy making in the Union – was
‘democratic’ in the sense of representing the elected governments of
Member States, but less so in terms of transparency and accountability.
In relation to the Council (of Ministers), the same point can be made
about their having been elected within the Member States. However, in
terms of operation – membership, powers [executive and legislative]
and accountability – the Council is less democratic.
As to the Parliament, its directly-elected composition plus the
considerable extension in its legislative powers over the years should
have been discussed.
In relation to the Court of Justice, the issue of democracy has less
direct relevance, although the best answers pointed out that the Court
has adopted a very dynamic and creative approach to the application
and supremacy of EU law, without any express conferment of power to
do so under the original treaties.

Question 6
‘Freedom of speech and freedom of assembly and association are vitally
important in a democratic state.’
Explain the manner in which the law in the United Kingdom protects these
concepts and imposes restrictions upon them.

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This question required a knowledge of the law relating to freedom of

speech and freedom of assembly and association under English law, as
well as a knowledge of their protection under Articles 10 and 11 of the
European Convention on Human Rights. One starting point would have
been to explain the traditional approach to civil liberties under the
United Kingdom constitution – namely that conduct which is not
prohibited by law is permitted. This leads into a discussion (necessarily
brief) of the restrictions on freedom of expression: the law relating to
defamation, obscenity, incitement, racial/religious hatred, etc. (See
16.1 of the subject guide).
In relation to restrictions on freedom of assembly and association,
candidates should have briefly explained the manner in which Public
Order law seeks to balance the right/freedom to assemble and
associate with the rights of others to a peaceful society (see 16.2 of the
subject guide). The requirements of notice to the police, the power to
attach conditions and directions should have been noted. The relevant
case law should have been discussed to support the analysis.
Articles 10 and 11 of the European Convention and the Human Rights
Act 1998 could then have been introduced, with the major case law of
the Court of Human Rights and the domestic courts being discussed.

Question 7
Discuss the case for replacing the Human Rights Act 1998 with a British Bill
of Rights and Responsibilities.
Candidates should begin by explaining the background to the Human
Rights Act 1998. This could include the perceived weakness in the
domestic protection of rights caused by the traditional approach to
rights and freedoms and the ‘problem’ posed by parliamentary
sovereignty. The disadvantages of having to apply to the Court of
Human Rights Strasbourg under the European Convention on Human
Rights could also be mentioned in the introduction..
A discussion of the Human rights Act could then be undertaken (see
15.3 of the subject guide). In order to evaluate whether a ‘British Bill of
Rights and Responsibilities’ is necessary, the discussion of the Act
should focus on its structure and scope, which preserves the
constitutional balance between Parliament and the courts, ensuring
that Parliament retains its power to amend the law and restricting the
judges to Declarations of Incompatibility. Case law illustrating the
effectiveness of the Act in prompting law reform should have been
offered. (See F Klug and K Starmer, Standing Back from the Human
Rights Act: how effective is it five years on?, reading 17 in the study
pack, and Lord Irvine, Constitutional Reform and a Bill of Rights,
reading 20 in the study pack.)
Attention could then turn to what is meant by, and the constitutional
implications of, a British Bill of Rights and Responsibilities – an idea
recently proposed by both the major political parties. Many candidates
rightly pointed out that a Bill of Rights occupies a central place under
many written constitutions, providing a charter of rights with which no
government can interfere. The essential question which arises – and
required discussion – is whether such a document could be

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accommodated under the United Kingdom constitution, without

transforming it into a written constitution (see R Brazier, How Near is a
Written Constitution? , study pack reading 2), abandoning the
traditional concept of parliamentary sovereignty and creating a
Supreme Court with the power to invalidate incompatible legislation.

Question 8
By reference to case law, discuss the meaning and application of ‘the duty to
act fairly’ in English administrative law.
Candidates should have begun discussion by introducing the role and
function, and constitutional importance, of judicial review of
administrative action. It would then have been useful to explain,
briefly, the major headings of judicial review (per Lord Diplock in
Council for Civil Service Unions v Minister for Civil Service 1985).
The discussion should then turn directly to the concept of ‘fairness’, an
aspect of ‘procedural propriety’ (see 18.3.3 of the subject guide) more
commonly known as Natural Justice.
The main aspects of the traditional concept of Natural Justice should
be discussed – the absence of bias and the right to a fair hearing –
together with representative case law. The right to a fair hearing, in
particular, gives rise to many different requirements, any of which will
apply in any given case depending on the circumstances and the
requirements of fairness overall, as interpreted by the judges. Many
candidates rightly pointed out that Article 6 of the European
Convention on Human Rights, incorporated under the Human Rights
Act 1998, now provides the explicit right to a fair trial, supplementing
the common law requirements.
By way of conclusion, it could be pointed out that the rules of fairness
are not ‘set in stone’ but will be applied as the circumstances of the
particular case requires.