ELS PAPER 3

Question 1

Rule of law

Answer 1

• laws must be formally created and made public
• individuls can only be punished for breaches of the law
• all are equal and no one is above the law
  a person has a fair right to a trial
• there must be due process of criminal actionsi.e the law will always be applied

Question 2

doctrine of implied repeal

Answer 2

old acts contradicts a more recent one
the current parliament is sovereign

Question 3

politcical sovereign

Answer 3

parliament can pass any law it wants, is not bound by any past acts of parliament and cant bind future parliaments

Question 4

legally sovereign

Answer 4

Parliament answers to no one. It enactments overrule and carry greater authority than the decisions of any other institution or court. what supreme court rules today, parliament could immediately reverse tomorrow
r(miller) v sec state for exiting the eu
this concerned the right of the PM to start the EU exit process under article 50 of the treaty on the EU
Scotland Act 1998- to stay in tyhe UK- consequences

Question 5

green paper

Answer 5

• proposed by minister
• asks for opinions of interested groups or parties on a change in the law e.g pressure groups, professional bodies
• former PM tony Blair- every child matters following the killing the of the 8 year old

Question 6

white paper

Answer 6

• proposed by a minister following information gathered from green paper
• summary of proposed changes to the law goes in to a future bill
• E.g. Minister for Children, Young People & Families issued Every Child Matters: The Next Steps. This eventually led to the passing of the Children Act 2004

Question 7

law commission

Answer 7

• chaired by a superior judge who leads a team of 4. each of those four can be either a barrister, solicitor or legal academic
• public body created by law commission act 1965 tp review all areas of law and investigate problem issues
• they provide reports such as partial defences to murder 2004 suggesting reforms and repeal where necessary abolishing the defence of provocation
• aims to codify the law and convert law into statute ie theft act 1968

Question 7

law commicion pro cons

Answer 7

pro
 Commissioners have considerable legal expertise and are supported by expert staff, e.g. Professor Ormerod
 Independent & non-political
 Draft legislation presented to Parliament, e.g. Fraud Act 2006
cons
Only a small percentage of reports are acted on, e.g. their work on non-fatal offences against the person has been widely praised but ignored
x No obligation to consult them on new laws
x Investigations can take years
x Breadth of review may lead to lack of depth

Question 8

pressure groups pros

Answer 8

Snowdrop Campaign led to the Firearms (Amendment) Act 1997 banning handguns
Gurkha Justice Campaign – Home Office Immigration Rules for Gurkhas 2009

Can raise public awareness of issue and keep Parliament/MPs in touch with issues of public concern 	 	many are non-political but can influence all political parties 		they will have expertise on their issue 		for some groups, e.g. National Trust or TUC, the size of their membership means they can be representative of the general public and be more influential as they will have large budgets and be able to afford media campaigns 		some groups can provide international experience and contacts 		insider groups have the ear of decision makers and can be consulted on proposed changes 		Likely to be successful if they have media support

Question 9

pressure group cons

Answer 9

Undemocratic as leaders unlikely to be elected by membership
x they are not likely to be objective and are likely to provide only one side of an argument
x outsider groups can use undesirable/illegal tactics to get publicity and to promote their view
x can represent small number of members and have limited funds available to advertise/influence
x outsider groups unlikely to be consulted or influence decision makers
x unlikely to be successful if no media support for their issue

Question 10

media

Answer 10

• Dangerous Dogs Act 1991 – following attacks on children by fighting breeds of dogs such as Pit Bull Terriers, intense coverage in the newspapers led to the banning of certain breeds and restriction on others
• Sarah’s Law – 8-year-old was murdered by a paedophile known to the authorities but not the public in the area. The Child Sex Offender Disclosure Scheme allows parents to ask the police if a person who interacts with their child is on the Sex Offender’s Register.
• Offensive Weapons Bill 2018 – a recent example restricting the purchase of corrosive materials following media coverage of “acid attacks”.

Question 11

media cons pros

Answer 11

pros
 Can raise issues of public concern with decision makers in government and Parliament
 Can support pressure group campaigns, e.g. Snowdrop
 Can raise and support public awareness of an issue
 Can generate public support

cons
x May represent only a small percentage of the population
x May not be able to effectively influence government or Parliament
x Ownership of the media source may have possible bias, e.g. most newspaper associate themselves with the views of a particular political party
x Social media may be inappropriately reactive to an event. What might be trending now may not be good for the country next year.

Question 12

act of parliament

Answer 12

1. How the process starts
   Mentioning Green and White Papers at this point is a waste of time. Stronger answers start by describing how the process is initiated. To do this, very briefly specify the types of Bill and who introduces them:
2. The primary function of each House and the Monarch
   • The Commons consists of MPs elected by the public. It is the most democratic House and the driver of the process as a result.
   • The Lords is made up of elected hereditary peers, appointed life-peers and Church of English bishops. Its function is to use its wisdom and experience to scrutinise and revise law.
   • The role of the Monarch is little more than ceremonial and a formality. AN Act has not been refused consent since 1707.
3. First Reading
   Second Reading
   Committee Stage
   Report Stage
   Third Reading
   in the house of commons and house of lords then royal assent
4. ping ping - sent from one to another

Question 13

types of bills

Answer 13

Government Bill- Public Bill backed by the government-MP in Commons or Peer in the Lords who is also a Minister

Private Members Bill-Public Bill often on a single topic - A backbench MP from any political party

Private Bill- Affects a single part of the UK or single organisation- A Parliamentary Agent law firm on behalf of Private Organisation

There are also Hybrid Bills which are like Private Bills but backed by the government, e.g. to set up something like the Channel Tunnel or Crossrail but there is no need to mention these for this specific type of question.

Question 14

readings

Answer 14

First Reading The short title is literally read out and is followed by an order for the Bill to be printed.

Second Reading The main debate is followed a vote requiring a majority to continue

Committee Stage COMMONS: 16-50 cross party MPs (but in the same ratios as in the House overall) with specialist knowledge examine the Bill and propose amendments.
LORDS: The whole House is engaged in this process

Report Stage Any amendments above are debated with a vote to accept or reject them

Third Reading This is the last chance to debate the Bill in its revised form. A majority vote is needed to send the Bill to the next House

Question 15

parliamentary law making cons and pros

Answer 15

pros
It is democratic
 There is thorough discussion/scrutiny of proposals
 Law can be made after detailed inquiry or Law Commission report
 Law can give effect to election manifesto commitments
 It is an open process
 There is the possibility of amendment(s) being made to original proposal or draft
 There is supremacy of Parliamentary law over other forms of law-making.

cons
The law may be affected by political influences rather than genuine debate
x There may be non-democratic issues affecting the proposals, particularly the involvement of the House of Lords and/or the Crown
x Legislative matters – laws are written in complex language rarely understood by the man in the street, there is often piecemeal development of laws, there is often a need to read more than one document to understand what the law is
x There may have to be a compromise in the process between Commons and Lords to ensure law is passed.

Question 16

statutory instrument

Answer 16

-A government Minister in relation to their area of expertise or power
e.g. Sec. State for the Environment

• Power given by an Enabling Act such as:
  Climate Change Act 2008
  Statutory Instruments Act 1946
• Setting out rules on numbering and publishing

-• To update a law, e.g. driving while using a phone
• Provide specific rules & details e.g. minimum wage changes
• Provide commencement orders

The Single Use Carrier Bags Charges (England) Order 2015

Question 17

byelaw

Answer 17

• public body
  a local council, TFL,NHS,etc
• Power given by an Enabling Act such as:
  Local Government Act 1972
  -giving power to local councils
  Greater London Authority Act 1999
• giving power to the Mayor of London to run TFL

• To allow local laws to be made to tackle local issues, e.g. TFL zones, fares & fines, etc.

-TFL Conditions of Carriage

Question 18

order in council

Answer 18

• the queen and privy council

-Royal Prerogative or an Enabling Act such as:
Civil Contingencies Act 2004
United Nations Act 1946
-giving power to comply with a UN resolution in an emergency

• To cover situations where an SI would be inappropriate, e.g. dissolving Parliament or reorganising government departments
• Emergency situations where Parliament is not in session

-Afghanistan Order 2002

Question 19

controls on delegated legislation

Answer 19

• Affirmative Resolution – About 10% of SIs are subject to this process. Parliament must approve the legislation before it can come into force. This is reserved for important legislation such as the Police & Criminal Evidence Act 1984 (PACE) Codes protecting suspects in custody. A Super Affirmative Resolution requires the Minister in charge of the SI to have regard to representations of the

• Negative Resolution – This is the opposite of the above. The measure becomes law unless Parliament objects or “annuls” the legislation usually within 40 days. There is no scope to amend the legislation.

• Repeal – Parliament can get rid of the Enabling Act which delegated power. Instead of breaking off a branch, it can cut down the tree.

• Scrutiny Committees – There are committees in both the Commons and Lords as well as a Joint Committee that review all delegated legislation on a technical level and draw Parliament’s attention to it

Question 20

judicial review

Answer 20

Substantial ultra vires
The body did not have the power to make this law
R(Miller) v Sec. State for Exiting the EU (2017)
Only Parliament could trigger Article 50 and not the government

Procedural ultra vires
The body had the power to make the law but did not do so in the correct fashion
Agricultural Training Board v Aylesbury Mushrooms Ltd (1972)
Minister could not set up a training board without consulting the mushroom growers as specified

Unreasonableness
The body had the power to make the law but their decision was irrational and unjust
R(Rogers) v Swindon NHS Primary Care Trust (2006)
Withholding a breast cancer drug from a patient where cost was not a concern was unjust

Breach of human rights The body has acted in a way that is incompatible with the Human Rights Act 1998 Vinter & Ors v UK 2012
Having full life term sentences without any opportunity for review was inhuman & degrading

Question 21

delegated legislation pros cons

Answer 21

 It can save parliamentary time
 Can be made quickly - does not have to go through Parliament and can be used in the case of emergency
 it is often made to cover technical matters; it can be used to fill in the gaps in primary legislation and experts can be consulted for specific detail;
 flexibility – different local laws can be introduced in different areas, as required, to deal with local need
 statutory instruments can complete the detail of framework Act, or deal with regular changes, e.g. annual changes to the minimum wage
 some form of control either by Parliament or the judiciary is possible
 there is some form of democracy, as by-laws are made by local politicians and statutory instruments are made by, or in the name of, elected ministers.

x		May be made by unelected civil servants (acting behind government ministers) or Privy Councillors x		volume – over 3000 statutory instruments are made annually x		lack of publicity – despite the internet, it may be difficult to find a piece of delegated legislation and when it came into force x		need for control – there is the need for more effective parliamentary or judicial control x		many pieces of primary legislation can only work if supported by delegated legislation giving limited chance of debate or scrutiny; this is especially so for items in the ‘red book’ giving effect to many detailed rules in the budget x		length and expense of judicial review – no legal aid is available for this procedure; there is the ‘interest’ test before an action can be launched; government is seeking to reduce availability of this remedy.

Question 22

judges role

Answer 22

1. Judge’s role in ALL cases
   Pre-trial directions: Advising on key issues, witnesses, trial dates, etc.
   Supervise trial: Ensure advocates act & are treated fairly
   Admissibility: Decide if evidence can be lawfully introduced
   Appeal: provide leave to appeal to higher court
2. Judge’s role in a civil case
   Decide law AND fact: Effectively judge & jury but only on “balance of probability”
   Quantum of damages: Looking at facts & precedent, how much is payable?
   Make orders: Damages, injunctions, custody, etc.

Question 23

judiciary selection

Answer 23

First of all, a potential judge has to have a “relevant qualification” as a barrister, solicitor or legal executive. They must also have “gained experience” either as a practising lawyer or in some other capacity, e.g. lecturing, Tribunals, Courts & Enforcement Act 2007.

Appointment is all about the Judicial Appointments Commission (JAC) set up by the Constitutional Reform Act 2005.
They are an independent body made up of judges, lawyers, magistrates & lay people. Like most jobs, the posts are advertised in journals and online, etc. and candidates must fill out a detailed application form. Requirements are strict. For example, an “outstanding candidate” was turned down for having seven points on their driving licence, R (Jones) v JAC. The job should go to the best candidate but there may be a need to short list and test.

Judges are appointed on the recommendation of the JAC. Technically, inferior judges are appointed by the Lord Chancellor. Superior judges are appointed by the Queen. Superior judges will have come from the ranks of the inferior judges. They will have had to apply for this promotion and there would then have been consultation between the JAC and the Lord Chancellor.

Question 24

judiciary training

Answer 24

Since April 2011 the whole process has been overseen by the “Judicial College” who also provide documents such as the Specimen Directions and Equal Treatment Benchbook for on the job guidance.

The initial induction provides detail on how to run a court. There are three committees specialising in civil, criminal and family law that carry out this task. Most new judges should have a wealth of practical courtroom experience to build on this respect. Remember, the Tribunals, Courts & Enforcement Act 2007 says all potential judges have to be barristers, solicitors or legal executives with experience.

The training will also include visits to penal establishments and meetings with the Probation Service to provide new judges with an in depth understanding of the types of sentences and their consequences.

Sitting in conjunction with experienced judges and the availability of a mentor also provides support for new judges.

Question 25

termination

Answer 25

1. Retirement (usually at 70)
2. Resignation (often an “unofficial” way of dismissing a judge)
3. Removal due to infirmity (e.g. in a long term coma)
4. Dismissal (sacked!)

Be careful to answer the question set. If it asks about “dismissal” alone, focus mainly on the fourth point and add a little on the unofficial aspect of the second point. An example of this was the resignation of Justice Jeremiah Harman.

How a judge is dismissed depends on the type of judge that they are. The superior judges consist of High Court judges, Lord Justices and Supreme Court Justices. To remove them from office requires a resolution of the House of Commons, House of Lords and monarch under the Act of Settlement 1701 & Senior Courts Act 1981. Only one superior court judge has ever been removed from office and they didn’t even get a chance to use this procedure because “Jonah Barrington” had fled to France!

The process for inferior court judges, i.e. circuit judges, district judges, etc. is set out in the Constitutional Reform Act 2005. The Judicial Conduct Investigation Office (JCIO) will investigate matters relating to any judge’s behaviour. The Lord Chief Justice can advise and issue “reprimands”. The Lord Chancellor (who is really the Secretary of State for Justice) can suspend.

Question 26

independence

Answer 26

Constitutional Reform Act 2005
Upholds rule of law
Creates separate supreme court
s.3 duty on ministers to respect independence

Autonomy of legal profession
Judges are usually former lawyers who are self-governing, i.e. there’s nothing like Ofsted
Sub judice rule (comment is forbidden on a matter “under judgment”)
Speaker can prevent comment in Parliament
A charge “contempt of court” could even result in imprisonment

Immunity from lawsuit
- Sirros v Moore (1975) – if acting in good faith

security of tenure
Job security since Act of Settlement 1701

Once a judge, always a judge
Convention states =no return to private legal practice if a “salaried” judge

nemo judex en causa sua
re pinochet

Judicial Appointments Commission (JAC
– selection on merit & not appointed by executive

Question 27

importance of independence

Answer 27

fair trials
– meets the requirements in Article 6 of the European Convention on Human Rights
Re Pinochet

public confidence

• nsures rule of law
  – no-one can be above the law, e.g. government., monarch, etc
  R(Miller) v PM

Facilitates judicial review & public inquiries
-– allows actions of government to be legally scrutinised

avoid totalitarianism
– Montesquieu’s theory. No one should have ALL the power
R(Miller) v Sec. State for Exiting EU

Question 28

current selection method pros cons

Answer 28

Advantages
 Based on merit unlike the old system
 Transparent – open public process
 Lay people involvement
 Facilitates separation of powers and limits role of executive in particular
 More diverse intake into the judiciary thanks to rules allowing solicitors and legal executives to apply as well as Outreach Strategy of wider advertising and promotion of vacancies
Disadvantages:
x Sec. of State for Justice, i.e. “Lord Chancellor” still has a large say retaining considerable executive influence.
x If the legal profession still doesn’t represent sexes and ethnicity fairly, the judiciary never can because of the entry requirements Tribunals, Courts & Enforcement Act 2007
x Most applicants will be former trial lawyers but being a good advocate does not guarantee you will be a good judge.
x Invariably, judges will have reached a substantial age by the time they are appointed. Does this point and the one above suggest the need for “career” judges?
x Will top QCs apply? – It could be a 90% pay cut!

Question 29

what are the functions of the four main institutions

Answer 29

the institutions of the EU and their functions are set out in what used to be called the Treaty of Rome but has been renamed as the Treaty of the functioning EU

Question 30

Council of the EU

Answer 30

Makes EU law often in conjunction with parliament
- minister from each member state, dependent on issue involved
- states take it in turn each 6 months to be president
- most decisions= double majority rule
-15/27 states (55%)
- representing more than 65% of the EU population

Question 31

COMMISSION

Answer 31

proposes EU law
enforces EU law
- one commissioner per state, nominated by the state but sworn under oath to represent whole EU
- one of the 27 is proposed as president by the council, currently Ursula von der leyen
- EU parliament must approve nominations for the above

Question 32

PARLIAMENT

Answer 32

Makes Eu law in conjunction witch council or consulted where it has no power
- elected by public in member states every 5 years
- number of MEPS dictated by population of the member state
- legislation passed by majority vote

Question 33

Court Of Justice

Answer 33

Interprets EU law Article 19 TEU
- 27 judges- one appointed by each member state for a renewable 6 year term, not to represent the state but bring an understanding of its legal system
- assisted by 11 advocates general who provide initial opinions on cases
- judicial role- ruling on disputes between member states
- supervisory role- article 267 TFEU preliminary rulings

Question 34

Direct applicability

Answer 34

member states do not have to legislate to create enforceable EU legal rights

Question 35

Direct Effect

Answer 35

enforceable legal rights are created that EU citizens can use
horizontally- against fellow citizens
vertically- against a member state of government body

Question 36

treaty articles

Answer 36

These are agreements made between member states. The most important of these is the Treaty on the Functioning of the EU. The individual articles of these treaties may be directly applicable and can have horizontal and vertical direct effect depending on their wording.

Van Gend en Loos 26/62
In this early EU case, a Dutch company complained that its lorries carrying plastic from Germany to Holland were being stopped at the border and ordered to pay a tax.
held:this was contrary to what is now Article 30 TFEU.

Question 37

regulations

Answer 37

These are binding legislative acts and almost the EU equivalent of our domestic Acts of Parliament. For example, the hyperlink above right shows a Regulation setting out the EU rules on importing goods from outside the EU into a member state.

Re Tachographs: Commission v UK 128/78
A Regulation of the EU required lorry drivers to install tachographs in their vehicles to ensure that they had sufficient breaks from driving during their working day. The UK left this to the vehicle owner’s discretion.

Held: Under Article 288 TFEU, Regulations had direct applicability and direct effect. UK lorry drivers had to use the devices.

Question 38

directives

Answer 38

The member states of the EU, very often, have different languages and legal systems. As a consequence, a large proportion of EU law is left for the states to implement themselves using their own legislative processes. The states are set a goal to achieve and a deadline to do so. The EU citizen still ends up having the same rights in each state but through a variety of methods.

In the UK, directives are commonly implemented using a Statutory Instrument (SI). For example, the Consumer Rights Directive 2011/83 was implemented by an SI called the Consumer Contracts Regulations (Information, Cancellation and Additional Charges) Regulations 2013 which increased the scope of s.11 of the Consumer Rights Act 2015 (see p234 Year 2 textbook)
Crucially, member states are given a time limit within which to implement the new law. But what happens if they fail to meet this target?

Question 39

Marshall v Southampton & South West Hampshire AHA (1986)

Answer 39

Marshall v Southampton & South West Hampshire AHA (1986)
The Equal Treatment Directive 76/207 prohibited discrimination on the basis of age with regard to the state pension. However, the UK’s Sex Discrimination Act 1975 specified that men could retire at 65 while women could retire at 60. The policy of the defendant was to enforce this but it was to Miss Marshall’s detriment as she wanted to work as long as her male counterparts and accumulate a larger personal pension.
Held – Directives are not directly applicable but, as the defendant was a manifestation of the state, the directive could be enforced against them, i.e. they had vertical direct effect

Question 40

R (The Mayor and Citizens of Westminster City Council) v The Mayor of London (2002)

Answer 40

In this case, Westminster City Council wanted to challenge the imposition of the Congestion Charge Zone. To do so, they sought to use a directive in a judicial review against the Mayor of London at the time, Ken Livingstone.

Held – Directives do NOT have HORIZONTAL direct effect and could not be relied on by a governmental body against a government body.

Question 41

Frankovich v Italian Republic 6/90

Answer 41

This is a very important EU law case in terms of ensuring uniformity of law across all member states. Directive 80/987 required member states to create an insurance scheme to pay the wages owed to employees of businesses that had become insolvent. Italy neglected to do this. Frankovich worked for a private firm that had gone bust and sought to recover his losses from the state of Italy itself.

Held – Compensation could be obtained from a state for failure to implement a directive where there was a causal link between their failure to do so and the citizen’s financial loss. This is the Frankovich Rule.