English Legal System SBAQ's

Question 1

In the case of Corkery v. Carpenter [1951] 1 KB 102 the court held that under s.12 of the Licensing Act 1872, a person found drunk in charge of a ‘carriage’ on the highway may be arrested without a warrant.

In that case the court took the view that the word ‘carriage’ could include a bicycle for the purpose of construing the Act.

What mischief or mischiefs do you think the Act intended to remedy?

A. The theft of wheeled vehicles
B. Injury of pedestrians from drunken road users
C. Injury of pedestrians
D. The preservation of public order

Answer 1

The correct answers are B and D

The Act was aimed at drunken persons in charge of some form of transportation and the exact nature of that transportation was interpreted widely. The mischief the statute intended to remedy was injury to the public from drunken drivers and the preservation of public order.

Question 2

Select from the list below the best definitions for Intrinsic and Extrinsic Aid.

A. Intrinsic Aid is the use of the statute itself, for instance by use of noscitur a sociis

B. Intrinsic Aid is the use of the Interpretation Sections within the statute

C. Extrinsic Aid is the use of the Interpretation Acts

D. Extrinsic Aid is the use of material from outside the statute

Answer 2

The correct answers are A and D

Intrinsic Aids are any part of the statute itself which assists interpretation of a section of it. The statute must be read as a whole and the words read in context (note the overlap with rules of language).

Extrinsic Aids are aids to interpretation which lie outside the statute itself, for instances the Interpretation Acts but also dictionaries, other statutes, Hansard and so on

Question 3

Let us assume for the purposes of the next three questions, that the legislation banning smoking has been extended so that it is an offence for a man to smoke a cigarette in any public place.

Mandy is arrested whilst smoking a cigarette in the street.

Which of all the ‘rules’ and aids listed are likely to be the most helpful in each case?

A. Another statute
B. The purposive approach
C. The mischief rule
D. The long title of the Act
E. Noscitur a sociis
F. The golden rule
G. The presumption against binding the Crown
H. The Interpretation Acts

Answer 3

The correct answer is H

Well done. Section 6 of the Interpretation Act 1978 (an extrinsic aid) states that the masculine includes the feminine and vice versa, therefore Mandy would be guilty.

Question 4

The recent legislation banning smoking has been extended so that it is an offence for a man to smoke a cigarette in any public place.

Finally, Andrew is found smoking in his university halls of residence - is this a public place?

Which of all the ‘rules’ and aids listed are likely to be the most helpful in each case?

A. Another statute
B. The purposive approach
C. The mischief rule
D. The long title of the Act
E. Noscitur a sociis
F. The golden rule
G. The presumption against binding the Crown
H. The Interpretation Acts

Answer 4

The correct answers are A, B and C

We may be able to find another statute in which ‘public place’ is defined, another extrinsic aid (in fact, there is such a definition in s. 16 of the Public Order Act 1986), but we would also have to look at the mischief rule again to determine whether there is any similarity of purpose between the two statutes in order to decide whether it should be interpreted in the same way.

Question 5

Which of the following Courts’ decisions are binding on the High Court?

A. Court of Appeal (Civil Division)
B. High Court (Divisional Court)
C. Supreme Court
D. County Court

Answer 5

The correct answers are A, B and C

Although the High Court is not normally bound by itself, it does bind itself in its capacity as an appeals court. The County Court binds neither itself nor any other courts.

Question 6

Locate the case of Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd. [1953] 1 QB 401. Read the facts in the first 2 paragraphs and then the judgment of Birkett LJ.

In a future case, which one or more of the following facts do you think WOULD distinguish the later case?

A. The basket was made of wicker and not wire.
B. The shop was not self-service.
C. The goods were not medicines but wine.
D. The cashier was not a registered pharmacist.

Answer 6

The correct answer is B

(Arguably) the material facts are that this was a self service shop and this led to the reasoning that it would be absurd to say the sale was effected when the goods were picked up from the shelf; therefore, the sale was effected under the supervision of the pharmacist when the items were purchased at the till. The nature of the receptacle, the type of goods, and the profession of the cashier, are not material facts. The nature of the transaction (i.e. self service) is.

Question 6

Carruthers is claiming £13,000 in compensation under the Act. In which court would he normally make his claim?

A. Magistrates’ court

B. County Court

C. High Court QBD

D. High Court Chancery Division

Answer 6

the correct answer is B. Claims below £100,000 (or £50,000 in relation to personal injury) are dealt with by the County Court.

Question 7

If Gregson Docks Ltd was to appeal from the High Court, which court would (on similar facts) always bind the next court? (Ignore ‘leapfrog’ appeals.)

A. Supreme Court.

B. Privy Council.

C. ECHR.

D. Court of Appeal.

Answer 7

The correct answer is A, the Supreme Court.

You are required to consider which is the next court before answering this question. Here, it is the Court of Appeal. It usually binds itself, but not always (as per Young v BA).

Question 8

R v Scamp [2006] 2 QB 36. What can we tell from the information given?

A. The case was heard in 2006.

B. The case was heard in the QBD.

C. The case was reported in 2006.

D. The case was civil.

Answer 8

The correct answer is C.

A is incorrect as reporting is often years after the case was heard.

B is incorrect. Although the case must have been through the QBD, the report could be from the Court of Appeal or Supreme Court.

D is incorrect as the reference to “R v “ shows that this was a criminal case.

Question 9

R v Scamp: If the case was also reported in the All England Law Reports, which ONE of the following best represents the citation that the case would be given?

A. (2006) 2 All ER 216

B. [2006] 2 All ER 216

C. [2006] EWCA Crim 216

D. [2006] 216 All ER 2

Answer 9

The correct answer is B

The citation is year, then volume number, then law report, then the page number.

C and D do not correspond with that format. B is correct as the year is essential for locating the case and is therefore in square brackets.

If the year was not essential to locating the case it would be in round brackets, i.e. if the law reports were organised other than year by year, for example, by volume number.

Question 10

In which court would the criminal prosecution have been commenced?

A. Crown Court.

B. The County Court.

C. A magistrates’ court.

D. High Court QBD.

Answer 10

The correct answer is C.

All criminal prosecutions commence in the magistrates’ court, even if they are immediately transferred to the Crown Court as would occur for indictable only offences.

Question 11

If Scamp’s appeal in the Court of Appeal is refused, how would Scamp appeal?

A. On a point of fact as of right to the Supreme Court.

B. On a point of law as of right to the Supreme Court.

C. On a point of law to the Supreme Court with leave.

D. On a point of fact to the Supreme Court with leave

Answer 11

That’s correct. Appeal courts are at least notionally courts of law, not fact. Supreme Court appeals always require leave and this is usually granted by the Supreme Court itself.

Question 12

Which one of the following is correct?

If the Court of Appeal had quashed the conviction, it would have:

Overruled the magistrates’ court.

Overruled the judge in the Crown Court.

Reversed the decision of the Crown Court.

Distinguished the ruling of the Crown Court.

Answer 12

The correct answer is C.

Overruling is where the court overturns a decision in a different case of a court of lower, or sometimes equal, status.

Reversing is where a higher court on appeal overturns the decision of a lower court in the same case, and this applies here.

Distinguishing is relevant to the doctrine of precedent.

Question 13

Which of the following terms can be used to describe the UK constitution?

A. Written

B. Unwritten

C. Federal

D. Unitary

E. Republican

F. Monarchical

G. Presidential Executive

H. Parliamentary Executive

Answer 13

The Correct answers are: B, D, F, H

Question 14

Which of the following terms can be used to describe the US constitution?

A. Written

B. Unwritten

C. Federal

D. Unitary

E. Republican

F. Monarchical

G. Presidential Executive

H. Parliamentary Executive

Answer 14

The correct answers are; A, C, E, G

Question 15

Assume that both Houses of Parliament pass a Bill which reduces the income of the Royal Family. The Prime Minister and Cabinet advise the Queen to assent to the Bill. Indicate whether the following statement is true or false:

Legally the Queen can refuse Royal Assent, so that the Bill does not become law.

Is this statement True or False?

Answer 15

The statement is True.

Although the Queen ought, by convention, to grant Royal Assent, this is a non-legal rule. Without Royal Assent, a bill cannot become law.

Question 16

Which one of the following statements is correct?

A. No new constitutional conventions may be created.

B. The idea of the Rule of Law is a constitutional convention.

C. The principle of ‘residual freedom’ is a constitutional convention.

D. Constitutional conventions are not legally enforceable.

Answer 16

constitutional conventions are not legally enforceable. Remember that conventions are non-legal rules of the constitution and so are not enforced by the courts.

Constitutional conventions are flexible and ‘come and go’ as necessary, so there is nothing to prevent new conventions being created. ‘Residual freedom’ is a principle that has developed through case law rather than convention. The Rule of Law is a doctrine or principle which underpins the UK constitution as opposed to being a convention.

Question 17

The Parliament Acts of 1911 and 1949 altered the relationship between the House of Commons and the monarch.

Is this statement true or false?

Answer 17

This statement is False- The Parliament Acts altered the relationship between the House of Commons and the House of Lords, by making it possible, in certain circumstances, for legislation to be enacted without the approval of the House of Lords.

Question 18

The Prime Minister convened a meeting of the Cabinet in order to discuss confidential plans for the closure of 50 local hospitals as a means of cutting costs. During the discussions, one of the ministers present at the meeting objected strongly to the proposals. Despite the minister’s objections, the Cabinet agreed the closures, but decided to keep the decision confidential while detailed plans were prepared. Following the meeting, the minister threatened to denounce the closures in the press. The Prime Minister wishes to apply to the court to stop the minister from doing so.

Which of the following statements best describes the approach the court is likely to take?

A. The court will enforce the constitutional convention of Collective Ministerial responsibility.

B. The court will recognise the constitutional convention of Collective Ministerial responsibility but will not enforce the convention directly.

C. The court will enforce the constitutional convention of Individual Ministerial responsibility.

D. The court will recognise the constitutional convention of Individual Ministerial responsibility but will not enforce the convention directly.

E. The court will require evidence that the minister intended to break convention before being prepared to provide a remedy

Answer 18

Answer B is correct.

This scenario deals with constitutional convention governing Cabinet discussions, Collective Ministerial responsibility. One of the aspects of this convention is that the Cabinet must be united in public in support of Government policy. A minister wishing to speak out publicly against Cabinet policy must resign. This is sometimes confused with Individual Ministerial responsibility which is the convention that Government Ministers are responsible to Parliament for the proper administration of their department and for their own personal conduct. Constitutional conventions are non-legal rules. While the courts recognise the existence of constitutional conventions, they are not prepared to enforce them directly, as demonstrated in the case of Jonathan Cape [1976] QB 752 and confirmed in the recent case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. Constitutional conventions are considered binding upon those who operate the constitution which would include Government ministers. Evidence of knowledge and intent would be irrelevant.

A is wrong as constitutional conventions are not legally dinging and therefore not enforceable by courts.

C is wrong, as it mentions Individual as opposed to Collective Ministerial Responsibility.

D is wrong, as conventions are not legally enforceable and do not entail a legal remedy.

Question 19

The government has lost an important case in the Supreme Court which affects its ability to carry out a manifesto commitment.

Which of the following statements describes the most realistic option which the government now has?

A. The government can ignore the judgment because court decisions are only advisory for ministers of the Crown.

B. The government can appeal to the Judicial Committee of the House of Lords.

C. The government has the power to remove those Supreme Court justices who participated in this decision.

D. The government could introduce legislation into Parliament to retrospectively change the law and effectively override the judgment.

E. By convention a government which is defeated in the Supreme Court must resign and call a general election.

Answer 19

Option D is CORRECT – primary legislation can alter any legal rule or judgment, even retrospectively, as in Burmah Oil Co v Lord Advocate [1965] AC 75.

Option A is wrong – the government is subject to the law and is bound by court judgments. This is the basis for judicial review.

Option B is wrong – the Judicial Committee of the House of Lords no longer exists. The Constitutional Reform Act 2005 abolished it and replaced it with the Supreme Court.

Option C is wrong – judges in the senior courts can only be removed by Parliament under the powers dating from the Act of Settlement 1701 and now in the Constitutional Reform Act 2005.

Option E is wrong – there is no such convention. Conventions grow up by practice. In fact there are many examples of governments losing cases in the Supreme Court and elsewhere and staying in office, for example R(Miller) v The Prime Minister, Cherry v Advocate General for Scotland [2019] UKSC 41.

Question 20

Which ONE of the following propositions is NOT an example of the separation of powers between Parliament and the judiciary?

A. The sub-judice rule

B. The convention that MPs will not criticise an individual judge

C. The provisions of section 1 of the House of Commons (Disqualification) Act 1975

D. The creation of the Judicial Appointments Commission

Answer 20

D is the correct answer.

The creation of the Judicial Appointments Commission is an example of the separation of powers between the judiciary and the executive. The Judicial Appointments Commission is an independent body with a significant role in the appointment of new members of the judiciary.

Question 21

Which ONE of the following propositions is NOT part of Lord Bingham’s eight sub-rules of the rule of law?

A. The law must be accessible, intelligible, clear and predictable

B. The law must afford adequate protection of human rights

C. The law requires that the judiciary is wholly independent of the executive and legislative branches of state

D. Ministers and public officers must exercise the powers conferred on them reasonably, in good faith, for the purpose for which powers were conferred and without exceeding the limits of such powers

Answer 21

C is the correct answer

Lord Bingham did not comment specifically on judicial independence from the executive and legislative branches of state, although he did make it clear that questions of legal rights and liabilities should be decided by the courts.

Question 22

In the USA, the Senate is responsible for the nomination of judges to sit in the Supreme Court. The President will then accept or reject this nomination.

Is this statement true or false?

Answer 22

This statement if FALSE.

The President nominates judges to sit in the Supreme Court, and it is the Senate which then either accepts or rejects this nomination.

Question 23

Indicate whether the following statement is true or false.

It is a breach of the doctrine of the separation of powers if the government uses its control of the House of Commons to prevent debate of an important public issue.

Answer 23

This statement is True!

The doctrine of the Separation of Powers requires that the Executive should not be able to interfere with the function of the Legislature. Debate is an important function of Parliament, so any interference with this by the Executive would be a breach of the doctrine.

Question 24

Which ONE of the following statements is CORRECT?

A. Parliament cannot expressly repeal the Human Rights Act 1998.

B. Parliament is unable to repeal the Acts devolving political power to Scotland and Wales.

C. Domestic courts are bound by decisions of the European Court of Human Rights.

D. A Minister who introduces a Government bill into Parliament must, before the second reading of the bill, either make a statement that the provisions in the bill are compatible with Convention rights, or alternatively make a statement that, although he is unable to make a statement of compatibility, the Government nevertheless wishes to proceed with the bill.

Answer 24

Option D is the correct answer. Although a bill does not need to be compatible with Convention rights in order to proceed, s 19 of the Human Rights Act 1998 requires any Minister introducing a bill into Parliament to make a statement as to compatibility.

Option A is false - Parliament may expressly repeal any earlier piece of legislation.

Option B is false for the same reason as A.

Option C is false - such decisions are persuasive, not binding.

Question 25

The provisions of the Parliament Acts of 1911 and 1949 are relied upon by those who support the view that an earlier Parliament may restrict a later Parliament as to the manner and form by which legislation is enacted - their argument is that Parliament chose to make it easier to pass legislation, so could also choose to make it harder to pass legislation should it choose to do so.

Is this true or false?

Answer 25

This statement is True.

The provisions of the Parliament Acts of 1911 and 1949 are relied upon because these Acts ‘streamlined’ the legislative process by making it possible for legislation to be enacted without the approval of the House of Lords. Supporters of ‘manner and form’ argue that, if the legislative process can be made easier, there is no reason why it could not be made harder by an earlier Parliament specifying the manner and form in which an Act must be repealed by a later Parliament.

Question 26

A court which considers that a provision in an Act of Parliament is incompatible with a right contained in the European Convention on Human Rights will make a declaration to this effect pursuant to section 3 of the Human Rights Act 1998.

Is this statement true or false?

Answer 26

This statement is False!

Such a declaration is made under section 4 of the Human Rights Act!

Section 3 provides that, so far as it is possible to do so, a court should read and give effect to legislation in a way which is compatible with Convention rights.

Question 27

The government proposes to codify all conventions and prerogatives by identifying their content and placing them in a bill to be put before Parliament. This reform was promised by the government in its manifesto during the election campaign which brought it to office.

Which of the following statements would be the best advice to the minister in charge of this project?

A. It will not be possible as part of this reform to abolish outdated prerogative powers – that is beyond the power of Parliament.

B. This reform cannot affect the attitude of the courts to conventions.

C. Because this was part of the government’s manifesto at the election the legislation will not require the royal assent.

D. Because of the Salisbury convention, it would be unlawful for the House of Lords to reject the legislation.

E. This reform will help to define the content of conventions with more certainty.

Answer 27

No, option E will actually be the best advice because codification will lend otherwise unwritten conventions more certainty.

Option A is wrong because Parliament can amend prerogatives by statute. The Fixed-Term Parliaments Act 2011 is an example of this.

Option B is wrong because the very purpose of statute is to change the law and courts will recognise this.

Option C is wrong - there is no such principle.

Option D is wrong. It would be a breach of the Salisbury convention for the House of Lords to reject legislation which had been promised in an elected government’s manifesto, but conventions do not have the force of law, so it would not be unlawful.

Question 28

A newspaper editor has asked his staff to provide a glossary of terms used in the UK constitution, including the Salisbury Convention.

Which of the following statements offers the best description of the Salisbury Convention?

A. The Salisbury Convention requires the House of Commons to pass legislation which is part of the manifesto of the largest political party in the Commons.

B. The Salisbury Convention requires the House of Lords to pass all financial bills emanating from the House of Commons.

C. The Salisbury Convention requires Parliament normally to obtain the consent of the devolved countries where legislation impacts on devolved legislation.

D. The Salisbury Convention requires the leader of the largest party in the House of Commons to become Prime Minister.

E. The Salisbury Convention requires the House of Lords should pass a bill which gives effect to a major part of the government’s manifesto.

Answer 28

Yes, option E is the correct answer. The Salisbury Convention requires the House of Lords to allow the government to pass legislation which is based on promises made to the electorate in an election.

Option A is wrong because the government does not need to use a convention such as this in the House of Commons because it should have the majority it needs to pass the legislation it wishes to pass.

Option B is wrong, because the Salisbury Convention refers to any government bill which is part of the manifesto and not just financial bills.

Option C is wrong because although a convention that Parliament should not pass legislation relating to devolved matters without the consent of the devolved legislatures does exist, it is called the Sewel Convention.

Option D is wrong because although there is a convention that says that the leader of the largest party in the House of Commons becomes Prime Minister, it is not called the Salisbury Convention.