Organisation of state/SOP - Consolidation MCQs Flashcards
Which one of the following statements best describes the constitutional structure of the United Kingdom?
In spite of a number of constitutional reforms carried out since 1998, the structure of the UK has essentially remained the same since the Irish Free State left the UK in the early 1920s.
Since 1998 the process of devolution has been a developing one with significant practical effects on government and the division of responsibilities between the constituent countries of the UK, albeit one which has not changed the ultimate centralised sovereignty of Westminster.
The UK’s structure has changed from being highly centralised in the second half of the twentieth century to a form of federation of four constituent parts, albeit with a varying degree of autonomy between them, following reforms in the last quarter century.
The UK’s structure has changed from being highly centralised in the second half of the twentieth century to a form of federation of four constituent parts following reforms in the last quarter century.
The constitutional reforms introduced in the years after 1998 have clearly created new forms and levels of representation in Edinburgh, Cardiff and Belfast but there have been few concrete practical effects of the reforms.
Since 1998 the process of devolution has been a developing one with significant practical effects on government and the division of responsibilities between the constituent countries of the UK, albeit one which has not changed the ultimate centralised sovereignty of Westminster.
Which one of the following statements best describes the effect of the Constitutional Reform Act 2005 (‘CRA’) on the UK’s separation of powers?
The CRA clearly did not introduce the idea of an independent judiciary to the UK but it arguably enhanced the status of the higher judiciary as well as introducing a series of reforms that ironed out some of the more confusing functional overlaps in the UK’s traditional separation of powers model.
Although the CRA did a great deal to bolster the sense of independence and the prestige of the UK judiciary it had little or no effect on the other two bodies of state.
The CRA introduced a significant provision in that it provided for judicial security of tenure, providing members of the judiciary with crucial protection from politically motivated dismissal by the executive.
The changes brought about by the CRA were purely symbolic and were of little practical consequence.
There was effectively no separation of powers to speak of within the UK constitution before the CRA created a set of more precise mechanisms for dividing power up between the three bodies of state and for recognising the independence of the judiciary.
The CRA clearly did not introduce the idea of an independent judiciary to the UK but it arguably enhanced the status of the higher judiciary as well as introducing a series of reforms that ironed out some of the more confusing functional overlaps in the UK’s traditional separation of powers model.
The principle of separation of powers is motivated by the need to limit and control the power of the different bodies of state. Which one of the following statements best describes the means by which the UK’s executive branch can be controlled by the judiciary?
The UK’s executive is potentially very powerful, but the judiciary is able to exercise a degree of control and oversight through the process of judicial review, which has expanded notably in the last 40 years or so. Significantly, this also permits the courts to invalidate secondary legislation, created by the executive, if this is deemed outside or ‘ultra vires’ the powers given by Parliament.
The UK’s central executive is ultimately uncontrollable by the judiciary, as, in contrast to most democratic countries, the UK Supreme Court does not have the power to enforce compliance with a codified constitution.
A government enjoying a workable majority in the Commons may face judicial obstruction to some of its policies, even if it has a political free hand. Ultimately, however, the UK judiciary is not able to check the actions of the executive, as long as it is acting within the powers given to it by Parliament, because the courts are not able to quash any form of legislation.
Given the expansion in the remit of judicial review in the last 40 years or so, the UK’s higher judiciary is able to effectively check the executive in all respects, providing a crucially important barrier against the occasionally over-mighty reach of government.
The separation of powers in the UK constitution ensures that there is a significant degree of separation between the legislature and the executive, as this is crucial in achieving the protection of liberty as described by Montesquieu.
The UK’s executive is potentially very powerful, but the judiciary is able to exercise a degree of control and oversight through the process of judicial review, which has expanded notably in the last 40 years or so. Significantly, this also permits the courts to invalidate secondary legislation, created by the executive, if this is deemed outside or ‘ultra vires’ the powers given by Parliament.
The court is presented with a public law dispute which involves consideration of a particular social issue on which Parliament has not yet enacted any legislation. The only threads of legal authority that can be traced come from 19th century cases, at a time when social attitudes were far more ‘traditional’.
When adjudicating on the issue, which of the following represents the most likely approach that the court will take and the most accurate explanation for doing so?
The court will simply apply the most recent case precedent from the 19th century case as this is the only authority it possesses.
The court is entitled to develop common law principles and will attempt to do so by seeking to take into account contemporary social attitudes as long as there is a reasonable degree of consensus over these.
The court has the right to develop the common law in any way it chooses but, because the matter is one that relates to social policy, will automatically find in favour of the ‘government’ side in the dispute.
The court has the right to develop the common law in any way it chooses but, because the matter is one that relates to social policy, will automatically find in favour of the individual against the ‘government’ side in the dispute.
The court will look to see if there is any legislation on a comparable area and seek to apply that by analogy to the case before it.
The court is entitled to develop common law principles and will attempt to do so by seeking to take into account contemporary social attitudes as long as there is a reasonable degree of consensus over these.
This is the best answer as it shows that, in the absence of clear (or any) statutory guidance, the courts can develop legal principles through the common law. However, when doing so, the courts are mindful of the need to represent contemporary social attitudes and values. See, for example, the case of R v R.
The court has just made an order putting a temporary stop on the deportation of an asylum seeker who has been given permission to appeal against his imminent planned removal from the country. Enquiries in the Home Office reveal that the individual is in a holding cell at Gatwick Airport and the flight is due to leave. The matter is referred to the personal office of a Minister of State in the Home Office which directs that the deportation should go ahead as it is too late to delay the process.
After the asylum seeker’s lawyers issue an application to court to review these actions, which one of the following steps is the court most likely to take?
The court is likely to find that the office of the Minister in the Home Office had been in contempt of court.
The court would only make any order if it was satisfied that the Minister was personally involved in the making of the decision as it would be inappropriate to hold the Minister responsible for a power which had been exercised by another government official.
The court is likely to express concern about the way the Home Office Minister behaved but this would only have political consequences, namely considerable criticism in the House of Commons and in select committees, rather than legal ones.
The court is likely to decline to make any formal order but is likely to declare that Parliament ought to amend the law so that the Home Office could not behave in this way in the future.
The court is likely to show judicial deference, and decline to make any order, as the Home Office Minister and staff in his office would be seen as best placed to make decisions in relation to deportation.
The court is likely to find that the office of the Minister in the Home Office had been in contempt of court.
Correct. This is similar to what happened in the leading case of M v Home Office. It represents a clear example of the separation of powers in operation: an independent judiciary performing its primary function of impartially applying the law, in this case against a high office of state.
Question 1
The minister in charge of a bill being presented to the Scottish Parliament has asked
for advice on whether they can make a statement that the bill is within the Parliament’s legislative competence. The minister’s main concern is that the bill amends an Act of the UK Parliament.
Can the minister make a statement that the bill is within the Parliament’s legislative competence?
A No, because the bill amends an Act of the UK Parliament, which is a reserved matter.
B No, because amending Acts of the UK Parliament is explicitly excluded from the Scottish Parliament’s legislative competence.
C No, because secondary legislation cannot be used to amend primary legislation.
D Yes, because the Scottish Parliament has full power to amend Acts of the UK Parliament as Acts of the Scottish Parliament are primary legislation.
E Yes, because the Scottish Parliament has power to amend Acts of the UK Parliament unless the subject matter of the bill is outside its legislative competence.
Answer
Option E is correct. The Scottish Parliament has power to amend Acts of the UK Parliament unless the subject-matter of the bill is outside the legislative competence of the Scottish Parliament.
Option A is wrong as Acts of the UK Parliament are not in themselves reserved matters. The subject matter of some Acts are reserved matters, but the Acts concerned must be specifically listed in the devolution legislation. Option B is wrong. Although there are some protected statutes such as the Human Rights Act 1998, which the Scottish Parliament cannot amend, Acts of the UK Parliament are not in general protected.
Option C is wrong as Acts of the Scottish Parliament are primary legislation. Although the Scottish Parliament is not sovereign in the way that the UK Parliament is, its Acts are still primary legislation. In any event, it is possible for secondary legislation to amend primary legislation. See for example Henry VIII powers discussed in Chapter 2.
Option D is wrong as, unlike the UK Parliament, there are limits on the Scottish Parliament’s legislative competence.
Question 2
The Senedd Cymru, or Welsh Parliament, has passed an Act of the Senedd promoting tourism. The Government of Wales Act 2006 (as amended) does not list tourism as a devolved matter. A business affected by the Act has challenged it by way of judicial review on the grounds that it is outside the Senedd’s legislative competence and irrational.
Which of the following best describes the approach the courts are likely to take to the challenge?
A The courts will reject the challenge on the basis of the ‘Enrolled Act’ rule. UK courts will not allow challenges to primary legislation.
B The courts will reject the challenge unless tourism is listed in the 2006 Act as a reserved matter.
C The courts will uphold the challenge as the 2006 Act has not expressly devolved tourism to the Senedd.
D The courts will uphold the challenge if they consider that the Act of the Senedd is irrational.
E The courts will reject the challenge as only the law officers of the UK Government or devolved governments have the standing to challenge Acts of the devolved legislatures.
Answer
Option B is correct. The reserved powers model applies to the Senedd. This means that the Senedd has the power to pass legislation on all matters which are not explicitly reserved to the Westminster Parliament. (In fact, tourism is not a reserved matter so the Act will be within the Senedd’s legislative competence.)
Option A is wrong because the Enrolled Act rule only applies to Acts of the UK Parliament, which is a sovereign legislature. Option C is wrong, because under the reserved powers model devolved matters are all those matters except for those that are reserved. Originally, the conferred powers model applied in Wales; ie the National Assembly only had powers over the matters expressly devolved to it. However, the reserved powers model now applies to the Senedd.
Option D is wrong as the Supreme Court has stated that Acts of the devolved legislatures cannot be challenged on common law grounds such as irrationality. Option E is wrong as individuals (including businesses) do have the standing to challenge Acts of the devolved legislatures.
Question 3
The UK Parliament has passed an Act (fictitious) creating a new criminal offence in England and Wales. The criminal offence relates to a matter that has not been reserved to the UK Parliament. The Senedd Cymru has not passed a legislative consent motion in relation to the Act as it opposed the legislation. A man has been prosecuted for committing the new criminal offence in Wales. The man claims that he has not committed a criminal offence as the Act creating it is unenforceable in Wales.
Will the courts uphold the man’s claim?
A Yes, because the UK Parliament does not have the competence to legislate on devolved matters.
B Yes, because the Senedd Cymru has not passed a legislative consent motion.
C No, because the UK Parliament has power to pass Acts covering the whole of the UK even if the devolved legislature opposes the legislation.
D No, because the Senedd Cymru lacks competence regarding criminal offences even in relation to devolved matters.
E No, because the Senedd Cymru has not formally vetoed the application of the Act in Wales.
Answer
Option C is correct. The Westminster Parliament remains sovereign notwithstanding devolution. It can therefore can pass Acts for the whole of the UK pertaining to devolved matters even in the face of opposition from the devolved legislatures. Although the Sewel Convention provides that the UK Parliament will not normally legislate on a devolved matter without the devolved legislature’s consent, it has the competence to do so as the Sewel Convention is not legally enforceable. Accordingly, options A and B are both wrong.
Options D and E are wrong as they give incorrect reasons for why the courts will reject the man’s claim. Contrary to what option D states, the Senedd Cymru does have the power to create new offences relating to devolved matters. Option E incorrectly suggests that the Senedd Cymru has a veto over Acts of the UK Parliament; as explained above, the UK Parliament is sovereign.
Question 1
The minister in charge of an emergency bill being presented to the UK Parliament to deal with a major public health emergency is concerned about the approach the courts might take to certain provisions in it, in particular provisions allowing for the indefinite detention without trial of people who disobey provisions prohibiting anyone from being more than five miles from their home. The minister has asked for advice regarding the possible response of the courts should the courts find that the bill (when enacted) violates the rule of law.
Which of the following best describes the possible response of the courts?
A The Supreme Court, adopting the approach outlined by eminent judges in case law, is likely to strike down the legislation.
B Pursuant to the doctrine of parliamentary sovereignty, the courts will nonetheless apply the legislation.
C The High Court or above is likely to issue a declaration of incompatibility pursuant to s 4 Human Rights Act 1998 disapplying the legislation.
D The High Court or above is likely to issue a declaration of incompatibility pursuant to s 4 Human Rights Act 1998 should the legislation violate the ECHR. The legislation will, however, remain in force.
E The Supreme Court is likely to issue a declaration disapplying the legislation as, by virtue of violating the rule of law, the legislation will breach retained EU law.
Answer
Option D is correct. It may be possible for the Government to introduce detention without trial to combat a public health emergency, but indefinite detention is likely to violate Article 5 of the ECHR – the right to liberty and security – as well as being contrary to the rule of law. Declarations of incompatibility do not, however, invalidate the legislation although they put pressure on the Government to amend or repeal the offending provisions. Accordingly, option C is wrong as the courts have no power under the Human Rights Act to disapply legislation.
Option D is a better answer than option A as option A is based on obiter dicta and the Supreme Court has never actually struck down legislation in this way. UK courts have disapplied statutes for infringing EU law during the UK’s membership of the EU, but not for infringing the rule of law. Option D is also a better answer than option B. Whilst the courts are likely to apply the legislation due to parliamentary sovereignty, it is highly probable that they would issue a declaration of incompatibility.
Option E is wrong as retained EU law only has limited supremacy over Acts of Parliament enacted before the end of the transition period. Moreover, there is unlikely to be any retained EU law with which the legislation in this question would conflict.
Question 2
The Government is considering whether to launch air strikes on a suspected terrorist base in an overseas country. It believes the terrorists concerned pose a direct and imminent threat to the UK. The Government has asked the Attorney General for advice as to whether parliamentary approval is required for the air strikes.
Which of the following best describes whether parliamentary approval is required?
A Although it is probable that a convention has recently emerged that the Government should obtain parliamentary approval before taking military action, where an emergency exists the Government need not obtain prior approval.
B The decision whether or not to take military action involves the exercise of a prerogative power and parliamentary approval is unnecessary as the Government is best placed to judge the defence needs of the country.
C Although it is a statutory requirement that the Government should obtain parliamentary approval before taking military action, where an emergency exists the statute dispenses with the need for prior approval.
D It is probable that a convention has recently emerged that the Government should obtain parliamentary approval before taking military action, so the Government must obtain prior approval.
E It is a statutory requirement that the Government should obtain parliamentary approval before taking military action, so the Government must obtain prior approval.
Answer
Option A is correct. The Cabinet Manual states that the Government has acknowledged
that a convention has developed that the House of Commons should have an opportunity
to debate the matter before military action is taken, except where an emergency exists and such action would not be appropriate. Option A is a better answer than option B because the reason parliamentary approval is not needed in the instant case is the existence of an emergency. Option D is wrong because it ignores the possibility of dispensing with the need for parliamentary approval where it would not be appropriate, as in the instant case.
Options C and E are wrong because taking military action is a prerogative power, not a statutory one.
Question 3
The UK and South Africa are proposing to enter a treaty relating to the safeguarding of intellectual property rights and data protection. The UK Government proposes to ratify it using the royal prerogative. Some British businesses, relying on expert economic analysis, believe the treaty will be highly damaging to their interests and will give an unfair advantage to South African businesses. They would therefore like to challenge the treaty in the UK courts.
Can the businesses bring a successful action challenging the treaty?
A Yes, because the courts are willing to rule on the extent of prerogative powers and it is doubtful whether the UK Government can enter into treaties using prerogative powers.
B Yes, because the courts are willing to rule on how the Government exercises its prerogative powers and on the facts the treaty seems unreasonable.
C No, because traditionally UK courts have refused to rule upon the extent of prerogative powers and how they are exercised.
D No, because traditionally UK courts have refused to rule upon how prerogative powers are exercised.
E No, because UK courts regard certain prerogative powers as non-justiciable and so refuse to review how they are exercised.
Answer
Option E is correct. Historically UK courts have been reluctant to review the exercise of prerogative powers, but their approach shifted in the CCSU case and they are now willing to review the exercise of some prerogative powers. Whilst option D reflects the traditional approach of the UK courts, option E is a better answer as the courts no longer follow that approach. However, the courts regard treaty-making as a political issue for the Government to decide upon (Blackburn v Attorney General) and so is not subject to review by the courts. Option B is therefore wrong because the courts will not interfere even if the treaty is unreasonable.
Option C is wrong because the courts have for centuries been willing to rule on the extent of prerogative powers. Option A is wrong as treaty-making is a prerogative power.
Question44
A foreign national, who travelled to the UK to seek asylum, has had his claim rejected and arrangements for his removal have been put in place. New evidence has, however, been identified which will support an appeal against the man’s refusal of asylum.
The court has made an order that the man should not be removed from the UK until the court has given further consideration to this new evidence. The Home Office has stated that the Home Secretary is not willing to allow the man to remain in the UK and that the court has no right to prevent his removal.
Which of the following statements best reflects the constitutional legal position in this situation?
Select one alternative:
The ultimate decision to grant or refuse asylum will be seen by the courts as a political matter and so, if the order is ignored, they will not be prepared to intervene any further.
The courts will be prepared to exercise oversight and control over the executive in relation to this matter and may find the Home Secretary’s office to have been in contempt of court if the order is ignored.
The courts will be prepared to exercise oversight and control over the executive in relation to this matter and, if the order is ignored, will immediately confirm the success of the individual’s application for asylum.
The courts will be prepared to scrutinise the action by the Home Secretary but are likely to defer to the Home Secretary’s expertise in relation to cases concerning asylum and so the individual’s prospects of success in resisting removal from the country will be minimal.
The executive branch cannot be subject to any form of control by the judiciary and therefore the removal cannot be prevented in these circumstances.
The courts will be prepared to exercise oversight and control over the executive in relation to this matter and may find the Home Secretary’s office to have been in contempt of court if the order is ignored.
This question relates to the general area of separation of powers in the UK constitution and in particular the relationship between the executive and the judiciary. In order to ensure that the ‘rule of law’ is followed, it is important that the courts scrutinise the actions of the executive to ensure that it is acting in accordance with the law. In some situations, where the government is given discretion to act, the courts will defer to the expertise of the executive. However, that is not the issue here where the court has made a clear order which the Home Office is intent on ignoring. The court cannot override the Home Office’s decision and substitute its finding for the Home Office’s but it can find the Home Office in contempt of court.
You are advising an educational research centre which has applied for a grant from a national funding agency to help it employ a research assistant to analyse data from GCSE and A-level exams. The client’s application has been turned down, as it has been told that it is not a qualifying institution. The client wants to challenge the refusal of its application.
The process is governed by the following provision from [fictitious] regulations: “The agency will distribute grants to institutions undertaking research into programmes leading towards degree, Masters, post-graduate doctorate or other similar educational qualifications.”
Which of the following represents the best advice to your client?
Select one alternative:
The court will consider the purpose of the regulations which is to encourage educational research and follow the purposive form of interpretation favoured by all modern courts, thereby quashing the decision of the agency.
It is unlikely that the court will quash the decision reached by the agency, as the linguistic presumption ejusdem generis points towards an interpretation of qualifying institutions as those researching graduate and postgraduate qualifications and not qualifications taken at secondary school level.
It is unlikely that the court will quash the decision reached by the agency based on the linguistic presumption expressio unius est exclusio alterius, as the client is an institution not specifically named or classified in the provision.
It is likely that the court will quash the decision reached by the agency based on the linguistic presumption ejusdem generis, as the client’s application also relates to research into educational qualifications.
The court would apply the literal rule and determine that the client is seeking to research into educational qualifications and so be eligible for a grant.
It is likely that the court will quash the decision reached by the agency based on the linguistic presumption ejusdem generis, as the client’s application also relates to research into educational qualifications.
This question requires a knowledge of the maxims that apply to statutory presumptions that can be made by the courts when interpreting statutes with particular features. In particular, this provision contains a form of open list of ‘similar’ educational qualifications, and so it is most likely that the maxim “ejusdem generis” will be applied. As the named qualifications in the list all involve tertiary education, it seems unlikely that Parliament would have intended the client’s research – involving secondary education – to be granted funding.
The UK government has issued the following statement: “Public health is of primary importance to this country as a whole and policy should be determined centrally in Westminster”.
The Secretary of State for Health has therefore announced his intention to introduce a Bill into Parliament transferring responsibility for dealing with serious public health emergencies from the Scottish Government to Westminster, even though this is currently a devolved matter in Scotland.
Which of the following statements best describes the legal consequences of this proposed change?
Select one alternative:
It will be legally possible for the Scottish Parliament to resist this change but only if it passes an Act of the Scottish Parliament expressly repealing the legislation proposed in Westminster.
It will be legally possible for the UK government to carry out this change but only if the Westminster Parliament complies with the Sewel Convention and firstly obtains a legislative consent motion passed by the Scottish Parliament.
It will not be legally possible for the UK government to carry out this change, as the Sewel Convention is an enforceable legal document with constitutional status equal to that of the European Convention on Human Rights, meaning that the UK Parliament is prevented from legislating on devolved Scottish matters.
It will be legally possible for the UK government to carry out this change, but it will firstly have to persuade the Westminster Parliament to repeal the devolution legislation passed since 1998, thereby reverting to the pre-devolution position.
It will be legally possible for the UK government to carry out this change. This is because the Sewel Convention is not enforceable. Therefore, Westminster can legislate in this way even without the political approval of the Scottish Parliament.
It will be legally possible for the UK government to carry out this change. This is because the Sewel Convention is not enforceable. Therefore, Westminster can legislate in this way even without the political approval of the Scottish Parliament.
This question relates to the relationship between the UK Parliament and government in Westminster and the devolved administrations, in this instance, Scotland. It is important to appreciate that the Sewel Convention would apply in this instance as the UK government is seeking to introduce legislation that cuts across a devolved area. It should therefore initially ask the Scottish Parliament to pass a legislative consent motion. However, it is equally important to know that, because this is just a convention and therefore not legally enforceable, Westminster can effectively override this and introduce the Bill in the manner proposed.
