PUBLIC Flashcards
Which one of the following suggested definitions best describes the concept of equity as it is used in the English legal system?
An application of the principles of fairness, designed to replace the common law.
A body of rules and principles designed to remedy the rigidity of the common law.
A body of rules and principles which began in the Court of Chancery.
An area of law which provides discretionary remedies.
A body of rules which began in the 15th century.
A body of rules and principles designed to remedy the rigidity of the common law.
Correct. This is effectively the original purpose and function of this branch of law. The other answers do not describe the essence or purpose of the law on equity as effectively.
Which one of the following hypothetical situations best illustrates a judge distinguishing a precedent?
A High Court judge finds that a precedent set by the Court of Appeal in an old case does not apply to the current case under consideration.
In a case currently being heard in the Supreme Court the justices have found on closer analysis that a precedent established several years ago in the Court of Appeal was based on an incomplete understanding of the material facts in that case. They therefore decide not to apply that precedent in the current case.
In a current High Court case, the judge finds that the material facts, though similar in nature to that of an old Court of Appeal case which established a precedent on a particular point of law, are sufficiently different to justify not being bound by that precedent.
In a case currently being heard in the Supreme Court the justices consider that a precedent established by their predecessors over half a century ago in the old House of Lords should be revised, because it is no longer appropriate in today’s changed social and moral environment.
In a case currently being heard in the Supreme Court the justices consider that an old precedent established by the Court of Appeal was wrongly decided, and so do not apply it to the case under consideration.
In a current High Court case, the judge finds that the material facts, though similar in nature to that of an old Court of Appeal case which established a precedent on a particular point of law, are sufficiently different to justify not being bound by that precedent.
Correct. Note that the judge is the person responsible for assessing the extent and scope of the old precedent, as it should currently apply. This is very much a matter of judicial skill and the ability to vary the level of abstraction gives the judge a degree of freedom to depart from an old precedent if s/he considers it appropriate. The other answers do not show a correct or as clear an understanding of the relevant terminology used in the analysis of case law as this one does.
After a serious road traffic accident, the driver of the car who caused the accident faces a number of legal problems. Unfortunately, his careless driving has brought about the death of a young child and the parents wish to claim bereavement damages as well as to see the driver prosecuted.
Which of the following statements best describes the key features of the legal processes that are likely to be embarked upon?
The driver of the car will be prosecuted for the relevant offence by the Crown Prosecution Service and, if found, beyond reasonable doubt to be guilty, he will be sentenced by the court and be ordered to pay bereavement damages to the parents.
The driver of the car will be prosecuted for the relevant offence by the Crown Prosecution Service but, if he pleads guilty at an early stage in proceedings, he will have the benefit of being sentenced in a Crown Court in front of a jury. He will also face a civil law claim in relation to his negligence and, if found on the balance of probabilities to be responsible, he will liable in damages.
The driver of the car will be prosecuted for the relevant offence by the police and, if the parents so choose, they can call for him to be tried in the Crown Court in front of a jury. The driver will also face a civil law claim in relation to his negligence and, if found on the balance of probabilities, to be responsible, he will liable in damages.
The driver of the car will be prosecuted for the relevant offence by the Crown Prosecution Service and, if found beyond reasonable doubt to be guilty, he will be sentenced by the court. He will also face a civil law claim in relation to his negligence and, if found on the balance of probabilities to be responsible, he will be liable in damages.
The driver of the car will be sued in the civil courts by the parents and, if found guilty, on the balance of probabilities, he will be liable to them for bereavement damages. He will also be prosecuted for the relevant offence by the police and, if found guilty beyond reasonable doubt, will be sentenced by the court.
Correct. Note the differing standards of proof in criminal and civil law and the other terminology associated with both. The other answers do not adequately describe the civil and criminal law processes and consistently refer to the correct terminology associated with both.
(week 1, find out why option 2 is wrong, jury?)
A corporate client of a large law firm alleges that negligence by the firm, when advising on a high value and complex case, has caused it to lose more than £500,000. It wishes to sue its solicitors, therefore, to recover this loss.
Which of the following courts and judges is the client company most likely to encounter in its proposed litigation, assuming that there is one appeal after the first instance trial?
It is likely that the case will start in the Queen’s Bench Division of the High Court. Any procedural hearings will be heard by a Master and then the first instance trial will be heard by a High Court judge, with any appeal going to the Civil Division of the Court of Appeal.
It is likely that the case will start in the High Court in the Queen’s Bench Division. Any procedural hearings will be heard by a Circuit Judge and then the first instance trial will be heard by a High Court judge, with any appeal going to the Civil Division of the Court of Appeal.
It is likely that the initial procedural hearings will be heard in the County Court by a district judge who will then send the case up to the High Court for the trial. Any subsequent appeal will then be heard in Civil Division of the Court of Appeal.
It is likely that the case will start in the County Court, where any initial procedural hearings will be heard by a District Judge. The first instance trial will be heard by a Circuit Judge, with any appeal going to the High Court.
It is likely that the case will start in the Commercial Court section of the High Court. Any procedural hearings will be heard by a Master and then the first instance trial will be heard by a High Court judge, with any appeal going to the Civil Division of the Court of Appeal.
It is likely that the case will start in the Queen’s Bench Division of the High Court. Any procedural hearings will be heard by a Master and then the first instance trial will be heard by a High Court judge, with any appeal going to the Civil Division of the Court of Appeal.
Correct. It is most probable that the claimants will seek to issue proceedings in the High Court, given the potential value of the claim. The other answers do not accurately or as effectively describe the likely route of the litigation.
(week 1, find out wrong options)
Which one of the following hypothetical situations best describes the most appropriate use of the leapfrog process?
A very complex clinical negligence case has been heard by the High Court, in which the medical evidence has been strenuously contested. The defendant health authority, which lost the case, and which faces liability for more than £5 million in damages, wishes to dispute the medical evidence. As it is highly likely that the matter will be appealed again by whichever side loses the appeal, the health authority applies for the case to be heard again in the Supreme Court.
A very complex clinical negligence case has been heard by the High Court. The defendant health authority, which lost the case, and which faces liability for more than £5 million in damages, wishes to dispute the legal basis on which the judgment was reached, as this involved a novel point of law and potentially has implications for numerous other health authorities. The health authority therefore applies for permission to appeal directly to the Supreme Court.
A legally complex environmental nuisance case has recently been decided in the County Court in favour of the claimants. As the case has implications for a significant number of other industrial companies, the defendant company has applied to appeal directly to the Supreme Court because its directors consider that it engages a matter of significant public interest.
After a controversial prosecution of a well-known businessman for fraud, he is sentenced to imprisonment for 10 years by the Crown Court. He wishes to appeal against his conviction and, because it is very likely that this matter will be contested as far as possible, permission is given for the appeal to bypass the Court of Appeal and to be heard by the Supreme Court.
A professional footballer has been convicted in the Magistrates’ Court for drink-driving. He wishes to appeal on a technical legal matter relating to the interpretation of the relevant statute governing the offence. As he is very well-known and therefore the conviction is a very serious matter in relation to his career, he has applied for his case to bypass the High Court and be heard in the Court of Appeal.
A very complex clinical negligence case has been heard by the High Court. The defendant health authority, which lost the case, and which faces liability for more than £5 million in damages, wishes to dispute the legal basis on which the judgment was reached, as this involved a novel point of law and potentially has implications for numerous other health authorities. The health authority therefore applies for permission to appeal directly to the Supreme Court.
Correct. This is the correct leapfrog process, as it bypasses the Court of Appeal. It also involves an issue of law that is a matter of public importance. The other answers do not correctly or adequately describe the process.
Which one of the following statements best describes the linguistic presumption that should be used in the context to aid the process of statutory interpretation?
In order to assist in the interpretation of a (fictitious) statute, the judge applies the ‘noscitur a sociis’ rule when construing the phrase: ‘clubs, associations and other organisations’.
In order to assist in the interpretation of a (fictitious) statute, the judge applies the presumption ‘expressio unius est exclusio alterius’ when interpreting the phrase: ‘construction of domestic houses, apartments, flats and other such dwellings’.
In order to assist in a purposive interpretation of a (fictitious) statute, the judge applies the presumption ‘expressio unius est exclusio alterius’ when interpreting the phrase: ‘the imposition of the tax on income, share dividends and bond yields.’
In order to assist in a literal interpretation of a (fictitious) statute, the judge applies the presumption ‘expressio unius est exclusio alterius’ when interpreting the statutory phrase: ‘the imposition of the tax on income, share dividends and bond yields.’
In order to assist in the purposive interpretation of a (fictitious) statute, the judge applies the presumption ‘ejusdem generis’ by considering not just the provision in question but other neighbouring provisions in the statute.
week 2
In order to assist in a purposive interpretation of a (fictitious) statute, the judge applies the presumption ‘expressio unius est exclusio alterius’ when interpreting the phrase: ‘the imposition of the tax on income, share dividends and bond yields.’
This is not entirely correct as the reference to this assisting with a purposive approach is not correct. Linguistic presumptions are associated with a literal approach as they aid the proper construction of the precise meaning of individual terms. Revisit your materials on statutory interpretation and your understanding of the various linguistic presumptions that are made by the courts to aid this process.
Which one of the following statements best describes the purposive approach to statutory interpretation?
It is possible to see the origins of the purposive approach in the older ‘mischief rule’.
Judges will look at the purpose of the Act in question when construing the statute.
Judges will look at the strict meaning of the words contained in a statute, as well as the purpose or objective of the Act in question. If there is a conflict between the two, the judges will interpret the words in the context of and in accordance with the wider purpose of the Act.
Judges will consider the overall design and configuration of the Act in question. However, if they consider that this creates a situation where a literal interpretation of the legislation is incoherent or absurd, they will be entitled to apply a different interpretation to the words so that implementation of the Act becomes more workable and effective.
Judges will examine the social and economic context of the Act in question as a starting point in interpreting legislation.
week 2
Judges will consider the overall design and configuration of the Act in question. However, if they consider that this creates a situation where a literal interpretation of the legislation is incoherent or absurd, they will be entitled to apply a different interpretation to the words so that implementation of the Act becomes more workable and effective.
Incorrect. This approach is closer to the old ‘golden rule’. Revisit your materials on statutory interpretation and your understanding of the different ‘rules’ on or approaches to interpretation that can be taken by the courts. Revisit your materials on statutory interpretation and your understanding of the different ‘rules’ on or approaches to interpretation that can be taken by the courts.
Which one of the following statements best describes the relevant stage of the legislative process?
The report stage of the bill involves a specially selected legislative committee making final amendments to the bill.
The third reading of the bill allows MPs a final chance to amend a bill and to negotiate over its final shape and content.
The committee stage of the bill gives MPs from the relevant select committee the chance to scrutinise the detail of the bill and to propose necessary amendments.
The committee stage of a bill gives MPs appointed to the relevant legislative committee the chance to scrutinise the detail of the bill and to propose necessary amendments.
The second reading of a bill gives MPs the greatest chance to scrutinise it in detail
The committee stage of a bill gives MPs appointed to the relevant legislative committee the chance to scrutinise the detail of the bill and to propose necessary amendments.
Correct. Note that MPs are selected on the basis of party strength in the Commons to scrutinise an individual bill. Also note that this type of committee used to be called a ‘standing’ committee and is sometimes still referred to as such. The other answers do not correctly describe in all respects the legislative process operating within Parliament.
Which one of the following statements best describes the key characteristics of secondary legislation?
Secondary legislation can be referred to as delegated or subordinate legislation.
Secondary legislation is not made by Parliament itself but usually by government departments under powers given to it by Parliament in primary legislation. It is subject to varying degrees of initial political scrutiny but can be judicially reviewed by the courts to ensure that it has been created within the powers originally approved by Parliament.
Secondary legislation is not made by Parliament itself but usually by government departments under powers given to them by Parliament in primary legislation. It is subject to detailed initial political scrutiny by MPs after it has been created to ensure that it has been created within the powers originally approved by Parliament.
Secondary legislation is necessary in the modern world in order to ensure that different branches of national and local government have the detailed powers necessary to administer the state. The delegation of the ability to create these detailed powers is heavily controlled, however, by Parliament through tight scrutiny procedures.
The most common form of delegated authority given to the government in an Act of Parliament relates to the commencement date for applying the Act, either as a whole or in different stages.
Secondary legislation is not made by Parliament itself but usually by government departments under powers given to it by Parliament in primary legislation. It is subject to varying degrees of initial political scrutiny but can be judicially reviewed by the courts to ensure that it has been created within the powers originally approved by Parliament.
Correct. Note that the original powers are given by Parliament in a so-called Parent Act. The other answers do not correctly or adequately describe key features of secondary legislation including the degree to which it is scrutinised before implementation.
An incident recently occurred in which a young man was shot dead by the police as they feared he was brandishing a dangerous weapon in a shopping mall and behaving in an alarming way. It transpired that he had a serious mental health condition and that he was waving a long plastic knife and not a real one. The man has left a widow and a young child who do not have any income, as he was the only one in employment. The Department for Work and Pensions (‘DWP’) has refused anything other than the most basic form of benefit assistance, because it claims that the man’s actions effectively brought about his own death.
Which one of the following statements best describes the judicial bodies that his widow is likely to encounter in investigating and challenging what has happened?
As the man has been killed, and so his right to life has been engaged, there will be an automatic referral of this matter to a judicial review in the Administrative Court. His widow may also need to challenge the DWP’s decision to deny her benefit assistance through the Magistrates Court.
There will be a Coroner’s Court inquest, as the death occurred in public and was not due to natural causes, and the police officer who shot the man will subsequently be prosecuted in the Crown Court. The widow may also need to challenge the DWP’s decision to deny her benefit assistance through the Magistrates Court.
There will be a Coroner’s Court inquest, as the death occurred in public and was not due to natural causes, and in addition there will be a statutory inquiry because of the seriousness of the matter. The man’s widow may also need to challenge the DWP’s decision to deny her benefit assistance through the Social Entitlement Chamber of the First Tier Tribunal.
There will be a Coroner’s Court inquest, as the death occurred in public and was not due to natural causes, and there is also a possibility of a statutory inquiry taking place. His widow may also need to issue proceedings in the County Court against the DWP for its decision to deny her benefit assistance.
There will be a Coroner’s Court inquest, as the death occurred in public and was not due to natural causes, and there is also a possibility of a statutory inquiry taking place. The man’s widow may also need to challenge the DWP’s decision to deny her benefit assistance through the Social Entitlement Chamber of the First Tier Tribunal.
week 2
There will be a Coroner’s Court inquest, as the death occurred in public and was not due to natural causes, and in addition there will be a statutory inquiry because of the seriousness of the matter. The man’s widow may also need to challenge the DWP’s decision to deny her benefit assistance through the Social Entitlement Chamber of the First Tier Tribunal.
Incorrect
This is not the best answer, though events could conceivably transpire in this way. The less likely element is the statutory inquiry – this will probably only be ordered, if there are exceptional features to this incident or there has been a spate of such incidents, suggesting systemic problems with police policy and tactics. Revisit your materials on statutory judicial bodies and tribunals and your understanding of how such bodies operate.
Which one of the following statements describes the best course of action open to the Home Secretary?
The Home Secretary should impress on the House of Lords that it has a constitutional obligation under the Salisbury convention to respect the mandate of the Commons, meaning that it should consent to the Bill when it is presented before it on the next occasion.
The Home Secretary should impress on the House of Lords that it is a constitutional requirement under the Salisbury convention to respect the mandate of the Commons, meaning that it must consent to the Bill when it is presented before it on the next occasion.
The Home Secretary should impress on the House of Lords that it has a constitutional obligation under the Sewel convention to respect the mandate of the Commons, meaning that it should consent to the Bill when it is presented before it on the next occasion.
The Home Secretary should impress on the House of Lords that it has an obligation to consent to the Bill when it presented before it on the next occasion, as the matter relates to national security which is a matter on which the Lords should defer to the electoral mandate of the Commons.
The Home Secretary should impress on the House of Lords that the ‘Parliament Act’ procedure can immediately be used to accelerate the passing of the Bill and so it should accept the inevitable and consent to the Bill when it is presented before it on the next occasion.
The Home Secretary should impress on the House of Lords that it has a constitutional obligation under the Salisbury convention to respect the mandate of the Commons, meaning that it should consent to the Bill when it is presented before it on the next occasion.
Correct
This is correct. It is the Salisbury convention, not the Sewel convention.
Conventions do not impose a legal obligation on the Lords but rather a moral one which the Lords ought to follow rather than being compelled to. The Parliament Act procedure, though dealing with potential disputes between Commons and Lords over the passage of legislation, can only be implemented after what is effectively a year’s delay by the Lords. The national security point may be argued by the government in the Commons, but it is rather intangible and not a recognised convention as such
Which one of the following statements best describes the essential character of the UK’s constitution?
The UK effectively has no constitution at all, given the absence of any codified and entrenched set of constitutional rules and protections.
Even though the UK has no codified constitution, it can still be seen as a constitutional state. The preservation of this state of affairs depends entirely, however, on continued political consensus.
The UK’s constitution is famously a highly flexible one with effectively no controls over how the political leaders of the day wish to exercise their power other than purely conventional ones.
The UK’s constitution is dominated by relics of its historical past in the form of a monarch as head of government, a hereditary House of Lords as a significant part of Parliament, and the continued survival of royal prerogative powers.
The UK is a constitutional state with no formal constitution. Its lack of entrenched constitutional rules in a founding document is significant but this does not mean to say that there are no legal or conventional protections preserving constitutional values and standards.
The UK is a constitutional state with no formal constitution. Its lack of entrenched constitutional rules in a founding document is significant but this does not mean to say that there are no legal or conventional protections preserving constitutional values and standards.
Correct, this is the best description.
Which one of the following statements best describes the constitutional structure of the United Kingdom?
Since 1997 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 constitutional reforms introduced in the years after 1997 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.
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.
In spite of a number of constitutional reforms carried out since 1997, the structure of the UK has essentially remained the same since the Irish Free State left the UK in the early 1920s.
Since 1997 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.
Correct, this is the best description.
The Chancellor of the Exchequer has been given powers by Parliament under the (fictitious) Emergency Revenue Regulations (“the Regs”) to impose a windfall tax on internet search companies which “the Chancellor deems to have paid a disproportionately low amount of corporation tax in the preceding financial year.” This year the Chancellor is very busy preparing the Budget and has delegated responsibility for the Regs to a senior Treasury civil servant.
Which one of the following statements best describes the constitutional position if a company alleges that these powers have been misused?
The general principle is that powers given by Parliament to particular ministers in the Executive should be exercised by that person. However, there is a recognition in both constitutional and legal terms, that delegation is necessary in the interests of governmental efficiency and so it would not be unlawful for delegation in this situation to the civil servant. The Chancellor would, however, remain responsible for these actions in the political arena.
Although there is a degree of conventional pressure on the Chancellor to make the decisions to exercise these powers, in reality there are no legal controls or rights of review over who has actually exercised them.
The general principle is that powers given by Parliament to particular members of the Executive should be exercised by that person. When these are precise powers, outlined in statute, as here, it is necessary, legally and politically, for the Chancellor to have made the relevant decision in respect of the use of the powers.
The general principle is that powers given by Parliament to particular members of the Executive should be exercised by that person. However, there is a recognition in both constitutional and legal terms, that delegation is necessary in the interests of governmental efficiency and so it would not be unlawful for delegation in this situation to the civil servant.
Before deciding to delegate powers under the Regs, the Chancellor was legally obliged to report to Parliament and request the necessary authority to delegate.
The general principle is that powers given by Parliament to particular ministers in the Executive should be exercised by that person. However, there is a recognition in both constitutional and legal terms, that delegation is necessary in the interests of governmental efficiency and so it would not be unlawful for delegation in this situation to the civil servant. The Chancellor would, however, remain responsible for these actions in the political arena.
Correct, this best describes the constitutional position.
Which one of the following situations is most likely to lead in practice to a ministerial resignation?
A number of distinctively colourful phrases quoted on a non-attributable basis in a newspaper suggest that a well-known minister has been briefing the press negatively about an important matter of government policy.
The government’s strict financial policy, generally identified with the Chancellor of the Exchequer, has come under sharp criticism from a number of international financial organisations as well as the Opposition, following a major enforced devaluation of the pound.
One of the Home Office ministers responsible for prison security has been put under pressure following a break-out of 10 high-category inmates from an English prison.
It has been disclosed by a tabloid newspaper that a senior minister has been having an extra-marital affair for the last three years.
It has been shown by clear contradictory factual evidence that a senior government minister’s explanation to Parliament about a significant issue in his or her department was incorrect.
It has been shown by clear contradictory factual evidence that a senior government minister’s explanation to Parliament about a significant issue in his or her department was incorrect.
Correct. Misleading or lying to Parliament is generally considered to be the most flagrant form of breach of the convention on individual ministerial responsibility.
A Cabinet minister is a senior member of government responsible for a particular portfolio of policy areas. He or she is the political head of their department and takes direct political responsibility for its operations. However, ultimate authority rests with the Prime Minister and Cabinet ministers can be ‘hired and fired’ on the PM’s authority alone.
Cabinet ministers are responsible for particular areas of government policy and they run their individual departments, all of which are directly coordinated by the Cabinet Office.
A Cabinet minister takes charge of the direction of policy in a particular area of government. He or she is appointed following an internal election of MPs from his or her political party but is subsequently under the direct leadership of the Prime Minister.
A Cabinet minister has ultimate responsibility for a particular area of government policy and leads Cabinet discussion when matters within his or her portfolio of responsibility is under debate.
A Cabinet minister is a privy councillor and a senior member of the government with a rank and status equal in practice to all of his or her colleagues in Cabinet, with responsibility for policy in a particular area.
A Cabinet minister is a senior member of government responsible for a particular portfolio of policy areas. He or she is the political head of their department and takes direct political responsibility for its operations. However, ultimate authority rests with the Prime Minister and Cabinet ministers can be ‘hired and fired’ on the PM’s authority alone.
Correct. Even though appointments to the Cabinet are legally made by the Queen, by convention it is the Prime Minister alone who appoints and dismisses ministers.
On taking office four years ago the Secretary of State for Education made what she described as a ‘pledge’ that the number of pupils with an A to C grade at ‘A level’ would increase by 20% during the course of the next Parliament.
Which statement best describes the position, when it transpires now that there has only been a minimal increase of 2.5% over this period? The Opposition is calling for her to resign.
This is an issue of individual ministerial responsibility as it relates to performance in ministerial office. As this represents a conventional rather than a legal rule, however, there is no mechanism by which the minister can be obliged to resign. The most likely means of achieving accountability would be political, including the Opposition seeking to pressurise the minister to provide an explanation of the apparent failure in Parliament.
As there was an increase in the number of pupils obtaining this grade, even though much smaller than hoped for, this cannot be seen as an issue of individual ministerial responsibility at all and so there would be no consequences for the minister.
This is an issue of individual ministerial responsibility as it relates to performance in ministerial office. The disparity between the pledge and the actual outcome is very significant and therefore under the convention, the minister is very likely to feel that she has to resign her office.
This is an issue of individual ministerial responsibility as it relates to performance in ministerial office. However, because the pledge related to a relatively specific policy outcome, it is likely that the minister would be able to argue that this was an operational issue only rather than a wider matter of policy and so there should be no moral obligation on her to resign.
As this apparent failure to achieve an increase in numbers represents a set-back in the policy of the government at large, this would be seen as a matter of collective ministerial responsibility, meaning that the Education Secretary would have to resign to protect the reputation of the government.
This is an issue of individual ministerial responsibility as it relates to performance in ministerial office. As this represents a conventional rather than a legal rule, however, there is no mechanism by which the minister can be obliged to resign. The most likely means of achieving accountability would be political, including the Opposition seeking to pressurise the minister to provide an explanation of the apparent failure in Parliament.
This is an issue of individual ministerial responsibility as it relates to performance in ministerial office. As this represents a conventional rather than a legal rule, however, there is no mechanism by which the minister can be obliged to resign. The most likely means of achieving accountability would be political, including the Opposition seeking to pressurise the minister to provide an explanation of the apparent failure in Parliament.
Both issues are governed by the Ministerial Code, as they engage several of the ‘Seven Principles of Public Life’. It is very likely that the Opposition will seek to question the minister vigorously about these allegations in Parliament but, ultimately, there are no direct sanctions for misbehaving ministers other than removal from office by the Prime Minister.
Correct. If the allegations being made can be shown to be factually accurate, more political pressure will fall on the Minister, but the decision to remove him from office or no remains a political matter for the Prime Minister to decide.
A Minister of State in the Department for Environment, Food and Rural Affairs is seeking to influence wider government planning policy, as she is very concerned about the continued development of new housing on flood plains, given her ministerial portfolio. She has given an open briefing to this effect to a leading government-supporting newspaper. The Secretary of State for Housing is furious and speaks to the Prime Minister about this.
Which one of the following statements best describes the position for the Minister of State?
As a member of the government the minister is accountable under the Ministerial Code and therefore, she can be summoned to Parliament to explain her departure from established policy and be removed from office if necessary.
If the Prime Minister decides that it is politically advantageous for the minister to remain in government, he may persuade the Housing Secretary to accept a private apology and request a retraction from the newspaper. This would be entirely appropriate in relation to the convention on collective responsibility and the Ministerial Code.
The Minister of State in the Department for Environment, Food and Rural Affairs is not a member of the Cabinet, but she is a government minister and therefore owes an obligation of collective responsibility to support current government policy. She should therefore either retract her views and apologise or resign from office in order to argue her point of view from the backbenches.
As a member of the Cabinet, the minister owes a duty of collective ministerial responsibility, which requires any disagreements within Cabinet to be kept confidential. She should therefore either retract her views and hope that this is not too late to allow her to remain in government or resign from office in order to argue her point of view from the backbenches.
The Minister of State in the Department for Environment, Food and Rural Affairs owes a legal obligation of collective responsibility to support current government policy. She must therefore either retract her views and apologise to her colleague or resign from office in order to argue her point of view from the backbenches.
The Minister of State in the Department for Environment, Food and Rural Affairs is not a member of the Cabinet, but she is a government minister and therefore owes an obligation of collective responsibility to support current government policy. She should therefore either retract her views and apologise or resign from office in order to argue her point of view from the backbenches.
Correct
This is the best description of the position.
It is reported in the press that an MP (“MP A”), who has an alcohol problem, became involved in a fight late in the evening in a parliamentary bar with a member of House of Commons staff. Two days later during a parliamentary debate about employment conditions and rights, another MP from the opposite party (“MP B”) raised this incident as an example of poor behaviour in the workplace. MP A was outraged and stated on the floor of the House that MP B was “a notorious drunkard herself.” MP B retorted by denying this and claiming that she had evidence MP A had also “assaulted his wife on several occasions”.
What potential liability does MP A have, if any, in criminal or civil law?
MP A would face disciplinary measures in respect of both matters from the internal parliamentary authorities, meaning that the Speaker could expel him permanently from the House.
MP A could face criminal liability in respect of the fight, if he committed an assault and there is a formal complaint, but he will not be liable in respect of any civil claim for slander that MP B might make.
MP A could face criminal liability in respect of the fight, if he committed an assault and a formal complaint is made. He could potentially also be liable in respect of any civil claim for slander that MP B might make.
MP A would not face any liability in respect of either matter because they both happened within the confines of Parliament.
MP A could be liable in respect of any civil claim for slander that MP B might make but equally he could make a civil claim against her for the same tort.
MP A could face criminal liability in respect of the fight, if he committed an assault and there is a formal complaint, but he will not be liable in respect of any civil claim for slander that MP B might make.
Correct. MP A is immune from civil liability for anything he says on the floor of the House. However, his fight with the member of House of Commons staff did not take place as part of the proceedings of Parliament, even if this happened in the Palace of Westminster buildings, so there would be no criminal immunity. Refer to your materials relating to R v Chaytor.
The Secretary of State for Health (‘SoSH’) wishes to introduce legislation to recognise and regulate the contentious issue of assisted suicide (which is currently unlawful).
Which one of the following approaches would be considered the most appropriate for introducing reform in this area?
As this legislation is likely to be contentious, it is advisable for the SoSH to ask the Prime Minister and Chief Whip to impose a three-line whip in the Commons on all MPs on the government side.
As this legislation is likely to be contentious, it is advisable for the SoSH to plan in advance to use the Parliament Act procedure to bypass the need for House of Lords approval.
As this legislation is likely to be contentious and therefore difficult to pass, it is advisable for the SoSH to ask a reliable individual MP to initiate a Private Member’s Bill on the subject rather than introducing this as a government bill.
As this legislation can be seen as of constitutional importance, because it engages significant rights in the European Convention on Human Rights, the SoSH would be expected to start the legislative process in the Commons but also to give MPs a free vote based on conscience and to involve the Lords as fully as possible.
As this legislation can be seen as constitutional in nature because it engages significant rights in the European Convention, it is advisable for the SoSH to obtain the prior opinion of the Supreme Court (UKSC) on the constitutionality of the measure.
As this legislation can be seen as of constitutional importance, because it engages significant rights in the European Convention on Human Rights, the SoSH would be expected to start the legislative process in the Commons but also to give MPs a free vote based on conscience and to involve the Lords as fully as possible.
Correct. Conventionally, ‘constitutional’ legislation is started in the Commons but it would also be advisable for a free vote to be given on a matter of conscience like this and for the Leader of the House to liaise closely with the Lords to maximise the degree of consensus that can be reached and therefore the prospects of the Bill passing.
Which one of the following statements best describes the effectiveness of the accountability mechanisms available to Parliament in situations where there is an apparent systemic failing in a specific area of policy or administration?
The UK executive can be held to account by Parliament in a number of ways, including scrutiny through parliamentary oral and written questions, the calling of Opposition day debates, and the usual process of legislative scrutiny. However, probably the most effective form of accountability is through the system of legislative committees which oversee the work and performance of individual government departments.
The UK executive can be held to account by Parliament in a number of ways, including scrutiny through parliamentary oral and written questions, the calling of Opposition day debates, and the usual process of legislative scrutiny. However, probably the most direct and effective form of accountability in dealing with specific policy issues is through the system of select committees which oversee the work and performance of individual government departments.
The most effective form of detailed scrutiny undertaken in Parliament comes through discussion and debate at second and third reading of bills, when MPs and Lords can question and challenge specific proposals in legislation.
The UK executive can be held to account through the system of select committees which oversee the work and performance of individual government departments. However, probably the most effective form of accountability is through the practice of asking parliamentary oral and written questions (‘PQs’), as these provide the most immediate form of contact between MPs and ministers, including the Prime Minister.
The legislative branch in the UK is not able to scrutinise or oversee the work and performance of the executive to any notable or effective degree, because of the significant degree of fusion between it and the executive branch, the only exception being during the comparatively rare periods when the UK has a “minority government”.
The UK executive can be held to account by Parliament in a number of ways, including scrutiny through parliamentary oral and written questions, the calling of Opposition day debates, and the usual process of legislative scrutiny. However, probably the most direct and effective form of accountability in dealing with specific policy issues is through the system of select committees which oversee the work and performance of individual government departments.
Correct. Opinions differ to some extent in this area. However, it is generally thought that the select committee structure is the most effective mechanism, given the more focused experience and expertise of its members and the less partisan approach committees take, as well as the more rigorous form of process involved, including questioning of ministers, experts and other witnesses and the publication of a reasoned report at the end.
Which one of the following statements best describes the role of the Speaker of the House of Commons?
The Speaker of the House is responsible in consultation with the Leader of the House in ensuring that proposed legislation is debated and approved as efficiently as possible.
The Speaker of the House of Commons attracts much interest, because of his or her visibility in the media, but the role, which goes back many centuries, is essentially ceremonial nowadays.
The role of the Speaker is one of mediator between the opposing sides in the House, ensuring that the maximum consensus can be achieved between the parties in order to improve the quality of legislation.
The primary role of the Speaker is to act as a champion of the backbench MPs on all sides of the House, representing their interests in the face of inevitable pressure from the government.
The Speaker of the Commons is the presiding officer of the House, responsible for the regulation of debates and other forums such as Question times, and also for ensuring discipline amongst MPs within the Chamber.
The Speaker of the Commons is the presiding officer of the House, responsible for the regulation of debates and other forums such as Question times, and also for ensuring discipline amongst MPs within the Chamber.
Correct. This is the best description.
Which one of the following statements best describes the constitutional status of the various constituent parts of ‘Parliament’?
The House of Lords is a historical relic and purely plays a debating and delaying role in the proceedings of Parliament.
The House of Commons is the only legitimate body within the overall sovereign body of Parliament, as it is the only element that is elected.
In order to pass legislation, the approval of all three constituent parts of the sovereign body is required in the vast majority of situations, though the involvement of the monarch in the process has long been purely ceremonial.
The House of Commons is the most important of the three constituent parts of Parliament and within it those MPs who hold ministerial status have a higher status as legislators than backbenchers.
Parliament as the sovereign body in the UK consists of three elements with equal status, namely the Commons, Lords and monarch, all of whom have to approve the highest form of law in the country, namely statute.
In order to pass legislation, the approval of all three constituent parts of the sovereign body is required in the vast majority of situations, though the involvement of the monarch in the process has long been purely ceremonial.
Correct. This is the best description.
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 was essentially an example of constitutional theatrics, following which a historically muddled separation of powers position in the UK was disguised by some fine words but very little in the way of structural reform.
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 most significant part of the CRA, shown by its statement to this effect in its very first section, was its clear pronouncement of the ‘constitutional principle of the rule of law’.
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 did a great deal to bolster the sense of independence and the prestige of the UK judiciary but had little or no effect on the other two bodies of state.
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The CRA did a great deal to bolster the sense of independence and the prestige of the UK judiciary but had little or no effect on the other two bodies of state.
Incorrect. The CRA did have an impact on important roles within the executive and Parliament, notably in relation to the position of Lord Chancellor. It is arguable too whether the CRA did a “great deal” to promote a sense of judicial independence other than introducing the symbolically important institution of the Supreme Court.
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?
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 bulwark against the occasionally over-mighty reach of government.
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.
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.
The separation of powers balance between courts and executive is very subtle, achieved very largely through a series of conventional understandings.
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 ultra vires the powers given by Parliament.
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 ultra vires the powers given by Parliament.
This is correct, it is the best description.
A group of parents, whose children have severe learning difficulties, is seeking to legally challenge a decision taken by their local authority to close the special school they attend in their borough. They have been told that this is for financial reasons. The local authority has a statutory duty to look after such children but discretion on how to go about this. It has decided to cater for them by sending some of the children to a school in a neighbouring borough and arranging for home education for the others.
Which one of the following statements describes the most likely approach of the court?
In this situation the modern judiciary is like to be sympathetic to the issue and it will accept jurisdiction for such a case. However, the court will have to take into account the context of this case, in which it will accept the greater competence of the executive. This means that the extent of its actions will be restricted to making a declaration that the law should be changed in future by Parliament.
In this situation, the modern judiciary is likely to be sympathetic to the issue but will not be able to accept jurisdiction for a case such as this, because the courts are not able to question the decision-making of the executive, if it is based on financial considerations.
The court is likely to interpret the statutory powers carefully and ensure that the local authority has used its discretion lawfully, taking into account factors that the court deems relevant. However, it will not be able to quash the local authority’s decision if its discretion has been applied correctly, as it will be obliged to respect Parliament’s decision to allow discretion in the first place. The court will also be conscious that this is an area involving budgetary considerations in which it does not have as much institutional competence as the executive.
The court is likely to carefully consider both the policy factors affecting the local authority and the impact of the proposed changes on the children and their families. It will therefore seek to find a remedy that balances the two sides’ interests as fairly as possible, effectively seeking a compromise position.
As education is an issue of fundamental individual rights, recognised in the common law, the court will take a strongly activist role in this case and is likely to order the local authority to keep the children’s current school open unless it can show a very good reason for closing it.
The court is likely to interpret the statutory powers carefully and ensure that the local authority has used its discretion lawfully, taking into account factors that the court deems relevant. However, it will not be able to quash the local authority’s decision if its discretion has been applied correctly, as it will be obliged to respect Parliament’s decision to allow discretion in the first place. The court will also be conscious that this is an area involving budgetary considerations in which it does not have as much institutional competence as the executive.
Correct. Refer back to some of the key cases studied in this topic to show the extent of the court’s powers and also the importance of context in determining whether the court is likely to be more or less interventionist in its approach.
FIND KEY CASES
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 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 imprison or fine the Home Office Minister personally, as he disobeyed a court order
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 find that the office of the Minister in the Home Office had been in contempt of court.
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 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.
A recent Administrative Court order relating to the interpretation of a technical area of social security legislation has meant that the Department for Work and Pensions (‘DWP’) can no longer recoup payments of ‘emergency social loans’ from benefit applicants. The Secretary of State is highly concerned about this, as the court judgment has created a sizeable shortfall in her department’s budget for the current year?
Which one of the following courses of action would she legitimately be able to take?
The Secretary of State could direct her civil servants to ignore the court order, as it only came from Administrative Court (first instance) level and not from an appellate court.
The Secretary of State could attend Parliament and make an urgent business statement, indicating that financial pressures meant that, even though the government respected the court’s judgment and order, it could not comply with it and recoupment of loan payments would continue forthwith.
The Secretary of State would have to order her civil servants to stop trying to recoup payments for now but could, with general government approval, ask Parliament to amend the necessary statutory provisions, enabling the repayment of loans to start again in future.
The Secretary of State could investigate the possibility of using a prerogative power to justify continued recoupment of loan payments in the meantime, while steps are taken to change the statutory law in the medium term.
The Secretary of State could attend Parliament and make an urgent business statement, indicating that financial pressures mean that the government would continue with the recoupment of loan payments immediately but would introduce new legislation, removing the problem, as soon as the parliamentary timetable allowed.
The Secretary of State would have to order her civil servants to stop trying to recoup payments for now but could, with general government approval, ask Parliament to amend the necessary statutory provisions, enabling the repayment of loans to start again in future.
Correct. Even though this type of retrospective legislation is not seen as particularly attractive, constitutionally, it is possible for the Secretary of State to do this. Refer to your materials for some examples of this approach happening in the past.
Two students were having a debate about how the principle of the Rule of Law could be described. Which of the following statements would not be considered as an important aspect of the Rule of Law?
There should be supremacy of regular law over arbitrary power.
There should be equality before the law.
Parliament has the right to make or unmake any law whatsoever.
There should be a “government of laws and not of men”.
There should be no higher law than the rights of individuals as determined through the courts.
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incorrect
There should be a “government of laws and not of men”.
This is a reference to a quote from John Adams, second President of the United States, adapted from older origins, which can be traced back to Aristotle.
Under an Act of Parliament, passed in the 1950s, county councils were given the power to make loans to farmers, approved by the National Farmers’ Union, to help them purchase additional animal feed in times of exceptionally difficult weather conditions. Over the last year farmers in one county in south-west England have encountered a sustained period of flooding. The situation has been so dire that the local county council has gone ahead to give out grants to more than 100 local farmers. This expenditure has been contested, however, by a local Council Taxpayers’ association, which has now taken the county council to court to review its decision.
Which of the following is most likely to be the court’s reaction?
The court will fully review the relevant legislation and will do its utmost to interpret it in such a way as to favour the individual farmers, concluding that the payment of grants was lawful.
The court will find the dispute to be non-justiciable, as it relates solely to a matter of local government finance.
The court will find that the county council has technically acted outside the strict powers given to it by Parliament. However, it will not find its actions unlawful because it will be able to take into account the fact that the Act is many decades old. It is therefore likely to interpret its provisions in the light of more modern economic conditions, in which it is imperative to support the agricultural sector in rural areas.
The court will adopt the so-called ‘legality principle’, associated with the case of Simms, and declare that Parliament, when passing the relevant Act, could not possibly have intended that more favourable financial assistance in the form of grants would be refused in exceptional cases.
The court will fully interpret the relevant legislation, under which the county council was acting, but it appears at face value that it was not given the statutory power to give grants, only to provide loans. It is likely, therefore, that its actions will be declared ultra vires and therefore
The court will fully interpret the relevant legislation, under which the county council was acting, but it appears at face value that it was not given the statutory power to give grants, only to provide loans. It is likely, therefore, that its actions will be declared ultra vires and therefore unlawful.
Correct.
The courts tend to approach the case in a technical and legalistic manner and will be disinclined to depart from the apparent literal meaning and parameters of the statute.
The courts can interpret legislation in the light of changes in society, but this would not mean they would interpret the provisions in the light of more modern economic conditions to support the agricultural sector in rural areas, this would be extending the point too far in this situation.
It is not an appropriate or relevant context for the courts to apply the ‘legality principle’. Even though the judges may be personally sympathetic to the farmers’ difficulties, this is a financial issue as opposed to one of fundamental individual rights or freedoms.
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The court will find that the county council has technically acted outside the strict powers given to it by Parliament. However, it will not find its actions unlawful because it will be able to take into account the fact that the Act is many decades old. It is therefore likely to interpret its provisions in the light of more modern economic conditions, in which it is imperative to support the agricultural sector in rural areas.
Incorrect. The courts can interpret legislation in the light of changes in society, but this is extending the point too far in this situation. This case revolves around the binary issue of whether the county council has a particular power or not and it appears here that there is no power to make grants. Any changes to take into account more modern needs would have to be brought about through new legislation.
In a bid to reduce expenditure the Ministry of Justice (‘MoJ’) has adopted a new policy on costs in the Social Security Tribunal. Under a recently introduced statutory instrument (‘S.I.’) the MoJ has imposed a differential fee structure, meaning that claimants who lose their applications to the Tribunal have to pay a ‘closure fee’ of £100 at the end of the case, though there is discretion for judges to disregard this in ‘exceptional circumstances’. The legality of this measure, which has led so far to a 50% reduction in the number of cases reaching the Tribunal, is now being challenged by a pressure group acting for families with children living in poverty.
Which of these outcomes is the most likely when the case reaches the Administrative Court for judicial review?
The court will examine the relevant S.I. in detail and is likely to put a significant amount of store by the importance of the principle of access to justice. However, it will decline to take any evidence on the overall impact of the fee on numbers of cases, as it will be obliged to look at this issue purely as a matter of principle.
The court is likely to take into account the 50% reduction in cases and find that this demonstrates how the principle of access to justice has been damaged. It will therefore make an order reducing the ‘closure fee’ by 50%.
The court will refuse to intervene in this matter, as it will point to the provision in the S.I. allowing for discretion to disregard the fee, as well as being conscious that it should be deferential in an area involving finance.
The court is likely to put considerable emphasis on the impact caused by the introduction of the closure fee and find that this has severely undermined the important constitutional principle of access to justice. There is a strong possibility that the court will consider the fee to be unlawful, in the sense that Parliament cannot have intended to allow such a change in the parent Act, and therefore quash the S.I.
The court will look at the strict wording of the S.I. and its parent Act and apply this literally so, if it considers that this allows a ‘closure fee’ to be levied, this will be enforced regardless of its effect.
The court is likely to put considerable emphasis on the impact caused by the introduction of the closure fee and find that this has severely undermined the important constitutional principle of access to justice. There is a strong possibility that the court will consider the fee to be unlawful, in the sense that Parliament cannot have intended to allow such a change in the parent Act, and therefore quash the S.I.
Correct. Refer back to your materials and in particular the leading case of Unison.
One of the most acute forms of tension in public law is caused by the widespread presence of extensive discretionary power in the hands of different parts of the executive.
Which of the following statements best summarises the approach of the modern judiciary to this issue?
Discretionary powers will not be enforced by the courts but only if they are deemed to be insufficiently clear and therefore to give rise to the danger of being abused.
In accordance with the highly influential views of the constitutional academic, Professor A.V. Dicey, the courts will be prepared to invalidate powers given to different parts of the executive if they contain broad discretionary powers, as these are seen to be inimical to the rule of law.
The courts have come to accept that discretionary powers are an unavoidable feature of modern government, as Parliament cannot possibly legislate for every given situation and therefore needs to provide the executive with powers that it can decide how to use. Consequently, the courts will allow the executive free rein to use these powers in any manner that it sees fit.
The courts will interpret discretionary statutory powers in a way that upholds key rule of law principles, such as fairness, legality and reasonableness, so that they can ensure some degree of legal control over how such powers are exercised by different parts of government.
The courts will always interpret discretionary statutory powers by applying a test of proportionality so that they can better balance the interests of the state and the individual.
The courts will interpret discretionary statutory powers in a way that upholds key rule of law principles, such as fairness, legality and reasonableness, so that they can ensure some degree of legal control over how such powers are exercised by different parts of government.
This is the best summary of the approach of the modern judiciary to this issue.
In order to safeguard against financial fraud Parliament passed a (fictitious) Act allowing the (fictitious) Data Security Agency (‘DSA’) to ‘search any building in which data is kept or stored electronically which the DSA believes could reveal information relevant to a criminal investigation’. The DSA has recently forcibly entered and searched the premises of a financial services company in the City without notice or search warrant, as its Director believed that the company’s managing director had unjustifiably refused to disclose financial data to the Crown Prosecution Service.
Which of the following best describes the likely approach of the court if the company decides to take up a legal case against the DSA for its actions?
The court is very likely to put most emphasis in its review on the impact of the DSA’s actions, especially of any damage caused to the company premises by its forced entry or to its reputation. It is unlikely to concern itself in detail with the statutory powers, as these will be deemed oppressive and inherently contrary to rule of law values.
The court would take a literal approach to the legislation and is accordingly likely to find that the DSA has no liability for taking this action.
The court faces a difficult issue here which will involve it in balancing its assessment of the purpose and intent of these powers, given by Parliament, with the impact upon the company of what appear to be quite draconian actions. It is probable that a modern court will put the DSA to proof in relation to the lack of ‘due process’ and detailed accusations against the company, and be prepared, to declare the search unlawful, if insufficient evidence can be supplied that such action was necessary.
The court is likely to find the action taken by the DSA to be lawful, as it falls within its statutory powers, but it is also likely to criticise the broad and imprecise nature of the legislation under which it is acting.
The court is unlikely to accept jurisdiction to hear the challenge to the DSA’s actions, as it will stress that these actions were taken under clear statutory powers and that any rule of law concerns about the nature of these powers have to take second place, constitutionally, to the higher authority of Parliament.
The court faces a difficult issue here which will involve it in balancing its assessment of the purpose and intent of these powers, given by Parliament, with the impact upon the company of what appear to be quite draconian actions. It is probable that a modern court will put the DSA to proof in relation to the lack of ‘due process’ and detailed accusations against the company, and be prepared, to declare the search unlawful, if insufficient evidence can be supplied that such action was necessary.
Correct. This answer reflects how the modern courts will interpret and assess the legislative position in the light of substantive rule of law concerns over how discretionary powers have been exercised, especially in the light of the Human Rights Act. It is possible to see a precursor of this kind of approach in Lord Denning’s judgment in the Court of Appeal in the Rossminster case.
Which one of the following statements best describes the broad historical processes at work in the development of prerogative power in the period since the Glorious Revolution in 1688?
Prerogative power remains the predominant form of governmental power and, though legal controls over it have been enhanced over the last century, it can still be seen as a special form of power resting in the hands of the Prime Minister and Cabinet with only limited legal controls over it.
Prerogative power is not as broad a source of governmental power as it was, given the increase in statutory incursions over the last century in particular. The prerogative remains significant constitutionally, but it cannot be seen as a special form of power anymore, as it is no longer immune from the legal controls exercised over other governmental powers.
Prerogative power is not as broad a source of governmental power as it was, given the increase in statutory incursions over the last century in particular. Its constitutional significance is now purely a matter of historical interest.
Prerogative power remains a very significant form of governmental power. Although it is not seen to have the same degree of status as statutory power, it can only be controlled legally to a certain extent, because of the presumption that the Crown is not bound by statute in the absence of express words to the contrary.
Prerogative power remains a very significant form of governmental power and, although political controls over it have been enhanced over the last century, it can still be seen as a special and unique form of power resting in the hands of the Prime Minister and Cabinet with only limited legal controls over it.
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Prerogative power remains a very significant form of governmental power and, although political controls over it have been enhanced over the last century, it can still be seen as a special and unique form of power resting in the hands of the Prime Minister and Cabinet with only limited legal controls over it.
This is not the best answer as it overstates the proportionate size of the prerogative within the overall range of powers held by government. Importantly it only refers to the increasing political controls over its use; there is no reference to the enhanced legal reviewability of how the government uses these powers. Re-visit your materials on the control of the prerogative.
The Home Secretary recently decided to use the prerogative to apply an intrusive search power for terrorism suspects detained at airports on entry into the UK. This was justified as a measure to maintain national security and was introduced even though a statutory power had been given to the Home Secretary over a year ago to implement a provision allowing similar but less intrusive searches to take place. After the prerogative search power was used for the first time, the affected party challenged the use of this power through judicial review.
Which one of the following statements best describes the likely approach to be taken by the court?
The Court will decide that the prerogative power will prevail through implied repeal.
The Court will decide that the prerogative power has been used lawfully because it represents the will of the Home Secretary as a key member of the elected government.
The Court will decide that statute and prerogative powers can co-exist and can be applied interchangeably on a case by case scenario.
The Court will decide that the statute should prevail over the prerogative power, even if the statutory provision has not yet been put into implementation.
The Court will decide that prerogative power can legitimately be used because the statutory power has not yet been implemented.
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The Court will decide that prerogative power can legitimately be used because the statutory power has not yet been implemented.
This is not correct, because the courts have clearly held that prerogative powers cannot frustrate the will of Parliament, even if a statutory power has not yet been put into implementation – most notably in the case of R v Home Secretary ex p Fire Brigades Union. Re-visit your materials on control of the prerogative – legality.
Which one of the following statements best describes the current position with regard to the reviewability of prerogative powers by the courts?
The courts have in theory accepted applications to review the manner in which the government exercises all of its prerogative powers since the GCHQ case. However, jurisdiction is not accepted in practice if the case falls within the excluded areas which Lord Roskill deemed not amenable to judicial review.
The courts will accept applications to review the existence, scope and manner of exercise of all prerogative powers, as long as the nature of the power in question is administrative rather than political.
The courts will accept applications to review the manner of exercise of all types of prerogative powers. However, they will apply a sliding-scale approach of varying intensity of review dependent upon the subject matter of the case before them.
The courts will accept applications to review the existence and scope of prerogative powers, except in situations where the matter is simply not appropriate for judicial deliberation, such as the appointment of ministers or granting of honours. However, they will apply a sliding-scale approach of varying intensity of review dependent upon the subject matter of the case before them.
The courts will accept applications to review the manner in which the government exercises all of its prerogative powers, except those which are simply not appropriate for judicial deliberation, such as appointing ministers or granting honours or taking military action against an enemy state or organisation. However, if justiciable, the courts will apply a sliding-scale approach of varying intensity of review dependent upon the subject matter of the case before them.
The courts will accept applications to review the manner in which the government exercises all of its prerogative powers, except those which are simply not appropriate for judicial deliberation, such as appointing ministers or granting honours or taking military action against an enemy state or organisation. However, if justiciable, the courts will apply a sliding-scale approach of varying intensity of review dependent upon the subject matter of the case before them.
Correct. This statement captures the current development of this area of judicial review of prerogative power.
A company director, born and brought up in the UK, though now living abroad, has recently fallen foul of strict UK regulations about selling security and riot control equipment to a hostile foreign government. The UK government is seeking to extradite him back to the UK on criminal charges. It has now also rejected his application to renew his UK passport, which he made shortly before the charges were issued.
Which one of the following statements best describes the likely approach that the court will take if the director challenges the UK Foreign Office in court over its refusal to issue a new passport?
The court will not accept jurisdiction for the case because the power to issue passports falls under the broad diplomatic relations and foreign affairs prerogative and this was signposted as a non-justiciable matter by Lord Roskill in the GCHQ case.
The court will not accept jurisdiction for this matter because it involves legal and diplomatic relations with another state, from which the UK is attempting to extradite the director.
The court will accept jurisdiction for the case but, because the power to issue passports falls under the broad foreign affairs prerogative, it will only apply the least intense or lightest touch degree of review.
The court will accept jurisdiction for the case because Lord Roskill specifically stated in the GCHQ case that the issue of passports was a matter that could be seen as administrative in nature and was therefore a justiciable matter.
The court will accept jurisdiction for the case, even though the power to issue passports falls under the broad foreign affairs prerogative, because it is seen as falling at the administrative end of the spectrum and there is therefore no doubt nowadays that is a ‘justiciable’ matter.
The court will accept jurisdiction for the case, even though the power to issue passports falls under the broad foreign affairs prerogative, because it is seen as falling at the administrative end of the spectrum and there is therefore no doubt nowadays that is a ‘justiciable’ matter.
Correct. Note that this was very much the approach taken by the court in the case of R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett.
A British citizen was detained by the security services in an authoritarian country three months ago and has since been held in an unspecified location without any legal process. He has been accused of spying by the government of that country. His family has now issued proceedings in the Administrative Court against the UK Foreign Office for what they regard as its failure to represent his interests in trying to secure his immediate release.
Which one of the following statements best describes the likely approach to be taken by the court?
It would not consider that this was a justiciable matter, given the international relations context of the case.
It would consider the matter justiciable and review the policy and actions of the Foreign Office using a relatively high intensity of review.
It would consider the matter justiciable and review the policy and actions of the Foreign Office using a relatively light intensity of review.
It would only consider the matter justiciable if the claimant family could rebut the initial presumption that this case fell within the “forbidden area” of international relations.
It would consider the matter justiciable and review the policy and actions of the Foreign Office using the universal standard of review.
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It would consider the matter justiciable and review the policy and actions of the Foreign Office using a relatively high intensity of review.
Incorrect
This is not the best answer. It is very likely that the modern courts would accept jurisdiction for such a case, as long as a clear basis for legal challenge could be established. However, given that the subject matter of the dispute relates to diplomatic policy and is therefore more of a political than an administrative issue, the intensity of review would be low rather than high. Re-visit your materials on control of the prerogative post-GCHQ and in particular the case of R v S o S for Foreign and Commonwealth Affairs, ex parte Abbasi.
In order to prepare for future national health emergencies, the Secretary of State for Health and Social Care has sponsored (fictitious) legislation through Parliament, allowing him and his successors in office unimpeded and immediate access to every citizen’s NHS records. This power is contained in section 17 of the (fictitious) new Act. (For information: this legislation is incompatible with Article 8 of the European Convention on Human Rights.)
Which one of the following statements best describes the advice that should be given to the Secretary of State (“SoS”) by his legal advisers?
Section 17 of the new legislation will be subject to interpretation by any court hearing a dispute relating to the powers sanctioned by it. Under section 3 of the Human Rights Act, the court will firstly consider if it can interpret section 17 in a way that makes it compatible with Article 8. If the court does not consider this is possible, it may make a declaration of incompatibility in relation to section 17. This would compel the SoS to change the law in order to remove the incompatibility with Article 8.
Section 17 of the new legislation will be subject to interpretation by any court hearing a dispute relating to the powers sanctioned by it. Under section 3 of the Human Rights Act the court will firstly consider if it can interpret section 17 in a way that makes it compatible with Article 8. If the court does not consider it is possible to do so, it may make a declaration of incompatibility in relation to section 17. This would need to be responded to by the SoS, but it would not compel the government to seek a change in the law.
The compatibility of section 17 of the new legislation will be keenly scrutinised by the court. As it is incompatible with Article 8, a declaration to that effect will be made by the court. This would need to be responded to by the SoS, but it would not compel the government to seek a change in the law.
Section 17 of the new legislation will be subject to interpretation by any court hearing a dispute relating to the powers sanctioned by it. Under section 3 of the Human Rights Act the court must read in the words it considers necessary to make section 17 compatible with Article 8.
The compatibility of section 17 of the new legislation will be keenly scrutinised by the court. If it is found to be incompatible with Article 8, a declaration to that effect will be made by the court. This would compel the SoS to change the law to remove the incompatibility with Article 8.
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Section 17 of the new legislation will be subject to interpretation by any court hearing a dispute relating to the powers sanctioned by it. Under section 3 of the Human Rights Act, the court will firstly consider if it can interpret section 17 in a way that makes it compatible with Article 8. If the court does not consider this is possible, it may make a declaration of incompatibility in relation to section 17. This would compel the SoS to change the law in order to remove the incompatibility with Article 8.
This is not the best answer as it does not accurately convey the effect of a declaration of incompatibility being made – this does not compel the relevant Minister to change the law, as that would have a more profound impact on parliamentary sovereignty. It does, however, impose a form of conventional pressure on the Minister to consider amendment and in practice this is normally what happens. Please revisit your materials on the impact of the HRA on sovereignty.
After many months of pressure and persuasion in trying to get the House of Lords to approve a contentious new Bill, the Government has decided to use the “Parliament Act procedure”.
Which one of the following statements best describes the operation and nature of this procedure?
If the House of Lords does not pass a Bill of Parliament, after a period of one year following its approval in the Commons, the Bill can be sent to the Queen for Royal Assent, endorsed by a certificate from the Speaker of the House of Commons, without the consent of the House of Lords.
If the House of Lords does not pass a Bill of Parliament after a period of two years following its approval in the Commons, the Bill can be sent to the Queen for Royal Assent, endorsed by a certificate from the Leader of the House of Commons, without the consent of the House of Lords.
If the House of Lords does not pass a Bill of Parliament, other than a “money bill”, after a period of one year following its approval in the Commons, the Bill can be sent to the Queen for Royal Assent, endorsed by a certificate from the Lord Speaker, without the consent of the House of Lords.
If the House of Lords does not pass a Bill of Parliament, other than a “money bill”, after a period of one year following its approval in the Commons, the Bill, endorsed by a certificate from the Speaker of the House of Commons, can be sent to the Queen for Royal Assent without the consent of the House of Lords.
If the House of Lords does not pass a Bill of Parliament, other than a “money bill”, after a period of two years following its approval in the Commons, the Bill can be sent to the Queen for Royal Assent, endorsed by a certificate from the Speaker of the House of Commons, without the consent of the House of Lords.
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If the House of Lords does not pass a Bill of Parliament, after a period of one year following its approval in the Commons, the Bill can be sent to the Queen for Royal Assent, endorsed by a certificate from the Speaker of the House of Commons, without the consent of the House of Lords.
This is not the best answer as it does not make reference to the exclusion from this process of certain special types of bills, notably so-called “money bills”, i.e. those relating to taxation. (These can only be delayed for one month). Revisit your materials in relation to the Jackson case (sovereignty and the common law) and also look back to topic 3 (relating to parliamentary procedure).
Which one of the following statements best describes the significance, in relation to parliamentary sovereignty, of the House of Lords’ ruling in the case of Anisminic?
When interpreting statutes, the courts will seek, within what they consider to be their area of competence, to protect core rule of law values and freedoms. This extends to interpreting a purported total ouster clause, such as the one in issue in the Anisminic case, in a highly restrictive way. This is because the rule of law has now become the dominant constitutional principle in the UK, and it is no longer seen as inappropriate for a provision in an Act of Parliament to be disregarded by the courts.
The House of Lords’ decision in the Anisminic case has only marginal constitutional significance, because it relates to the technical issue of ouster clauses in judicial review. Its broad approach was followed more recently in the Privacy International case, but this case also only has limited application, and neither case tells us much about the tension between the principles of sovereignty and the rule of law.
When interpreting statutes, the courts will seek, within what they consider to be their area of competence, to protect core rule of law values and freedoms. This extends to interpreting a purported total ouster clause, such as the one in issue in the Anisminic case, in a highly restrictive way. This is because the purpose behind such a clause – removing the jurisdiction of the courts to review cases – is seen to represent an affront to just such a fundamental value, namely the right of individuals to challenge the use of executive powers in court.
The law lords’ ruling in Anisminic represents an attempt by the courts to subvert the Diceyan principle of parliamentary sovereignty by undermining the effectiveness of a particular clause in a statute through a highly restrictive form of statutory interpretation.
The logic of the Anisminic case – and the fact that its broad approach has been followed more recently in the Privacy International case – means that any clause in any Act can now be disregarded by the courts, if the court considers it is necessary to protect rights.
When interpreting statutes, the courts will seek, within what they consider to be their area of competence, to protect core rule of law values and freedoms. This extends to interpreting a purported total ouster clause, such as the one in issue in the Anisminic case, in a highly restrictive way. This is because the purpose behind such a clause – removing the jurisdiction of the courts to review cases – is seen to represent an affront to just such a fundamental value, namely the right of individuals to challenge the use of executive powers in court.
Correct. This is the best answer, on an issue which can be controversial in constitutional terms, as it expresses the nature of the decision in Anisminic and the reason why the law lords came to that judgment. It was based on a presumption of statutory interpretation, in accordance with which the law lords reconciled it with the principle of parliamentary sovereignty.
Which one of the following statements best describes the nature and impact of the concept of common law constitutionalism in UK law?
The idea behind common law constitutionalism is that all legal rules established by precedent in the common law have a constitutional status and can, therefore, only be overturned by Parliament if the most precise terms are applied in legislation.
Common law constitutionalism represents nothing more than part of a judicial power-grab, as it purports to give the judiciary the authority to determine which rights exist in the common law, and therefore undermines the ultimate authority of Parliament to determine the rights that citizens should enjoy.
The idea behind common law constitutionalism is that the English common law is the repository of certain rights and freedoms that have been built up and recognised over time and which should be protected as far as possible by the courts. These are seen as running parallel and are supplementary to the rights brought into UK law by the Human Rights Act.
Common law constitutionalism is effectively used as a back-up by judges in situations where they cannot establish that a precise right, contained in the European Convention on Human Rights (“ECHR”), applies to the relevant situation. It therefore represents a more ambiguous and less legitimate source of rights protection than the ECHR.
Common law constitutionalism is directly related to the legality principle, associated with Simms and other cases from the 1990s, as it requires all legislation to be interpreted in a way that accords to common law rights unless the legislation is framed in crystal clear terms as restricting those rights.
The idea behind common law constitutionalism is that the English common law is the repository of certain rights and freedoms that have been built up and recognised over time and which should be protected as far as possible by the courts. These are seen as running parallel and are supplementary to the rights brought into UK law by the Human Rights Act.
Correct. A key feature of contemporary rights protection in the UK is that rights are protected through statute, statutory interpretation and, in relation to common law constitutionalism, the development of the common law. This is able to go some way towards reconciling the protection of rights with the continuing observance of parliamentary sovereignty.’
A (fictitious) Prime Minister (“PM”), who has just entered office, wishes to sponsor legislation to prohibit a future Parliament from bringing back the death penalty for crimes of murder. She will call the legislation the ‘Prevention of Capital Punishment Act’ (the “PCPA”.)
Which one of the following statements represents the best advice that could be given to the PM by her legal advisors?
The doctrine of parliamentary sovereignty means that it is certainly possible for the PM to sponsor the proposed PCPA. The PM should also be reassured that, if a future government wished to reverse the policy, it would find it highly difficult to do so, because the PCPA would be seen as a “constitutional statute”. Therefore, in accordance with the rule in the Thoburn case, a future court would not accept that it could be repealed. Re-visit your materials on parliamentary sovereignty.
The doctrine of parliamentary sovereignty means that it is certainly possible for the PM to sponsor the proposed PCPA and, if this legislation contains terms written clearly and precisely enough, its provisions will endure because it represents an unambiguous expression of parliamentary will.
The doctrine of parliamentary sovereignty means that it is certainly possible for the PM to sponsor the proposed PCPA. The PM should also be reassured that, if a future government wished to reverse the policy, it would find it impossible to do so, because repealing the PCPA would be deemed incompatible with the European Convention on Human Rights.
It is not possible for Parliament to pass legislation to this effect because it is directly infringing Dicey’s theory on sovereignty, which says that it is impossible for one Parliament to restrict the future freedom of a successor Parliament.
It is certainly possible for Parliament to pass legislation to this effect and the PCPA would remain in operation until such time as a future Parliament wished to reverse the policy. In order to do so, that future Parliament would have to pass new legislation expressly re-introducing the death penalty.
It is certainly possible for Parliament to pass legislation to this effect and the PCPA would remain in operation until such time as a future Parliament wished to reverse the policy. In order to do so, that future Parliament would have to pass new legislation expressly re-introducing the death penalty.
Correct. The PM will be able to get the Act passed, assuming there is a majority for her to do so. However, the doctrine of parliamentary sovereignty means that today’s Parliament cannot bind a future Parliament, so the PCPA and its ban on bringing back capital punishment cannot be permanently entrenched.
You are a trainee with a firm of solicitors. You have been asked to deliver an introductory PowerPoint presentation on European Union law to a delegation of lawyers from the United States. You will need to explain the sources of EU law as part of this presentation.
Which of the following should you refer to as being capable of being legally binding secondary forms of EU legislation in relation to the member states of the European Union? (Choose ONE option only.)
Directives, the Charter of Fundamental Rights, and Regulations.
Decisions, the Charter of Fundamental Rights, and Directives
Judgments of the EU courts, the Charter of Fundamental Rights, and Opinions.
Regulations, judgments of the EU courts, and Opinions.
Regulations, Directives and Decisions.
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Judgments of the EU courts, the Charter of Fundamental Rights, and Opinions.
This is incorrect – The judgments of the EU courts are not legislation, even though they are legally binding. The Charter of Fundamental Rights is a primary source of EU law. This is because article 6(1) TEU provides that the Charter has the same legal status as the treaties, which are primary sources. Finally, article 288 TFEU specifies that Opinions are not binding.
In preparing advice for a client, you have been reading a case in which the court took into account a general principle of EU law. Which ONE of the following provides an accurate definition of the concept of ‘general principles of EU law’?
Legal principles which produce legal effects on persons identified in a generalised and abstract manner.
Legal principles laid down by such acts as declarations, notices, programmes, and resolutions.
All legal principles which are addressed to the Member States in general.
Any legal principles which are expressed in broad or abstract terms.
Overarching legal principles which apply generally across EU law
Overarching legal principles which apply generally across EU law.
This is correct – The concept of ‘general principles of EU law’ refers to a particular category of overarching legal principles which apply generally across EU law. They are used to aid the interpretation of the more specific rules of EU law, to assess the lawfulness of the activities and secondary legislation of the European Union, and to determine the lawfulness of those activities of the Member States which fall within the scope of EU law.
You are advising a client who wishes to bring a legal action in relation to a dispute concerning employment rights. The dispute concerns events that happened two months ago. The subject matter is not covered by the Withdrawal Agreement, but it does raise issues relating to direct EU legislation. In relation to that, you would like to rely upon the following: the judgment in a case decided by the Court of Justice six months ago, a general principle of EU law which was first established by the Court of Justice in the 1970s, and the Charter of Fundamental Rights.
Which, if any, of them will be binding on the High Court of England and Wales? (Choose ONE option only.)
Only the general principle of EU law will be binding.
Only the Charter of Fundamental Rights will be binding.
Both the judgment in the case, and the general principle of EU law will be binding.
Both the judgment in the case, and the Charter of Fundamental Rights will be binding.
Both the general principle of the EU law, and the Charter of Fundamental Rights will be binding.
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Both the judgment in the case, and the Charter of Fundamental Rights will be binding.
This is incorrect – Under s.5(4) of the EUWA 2018, the Charter has not been part of UK law since the end of the transition period on 31 January 2021. It is not binding on the High Court as a result. Neither is the High Court bound by the judgment in the case as this was decided by the Court of Justice after the end of the transition period (s.6(1)(a)). However, it would be bound by the general principle of EU law as that principle had effect in EU law immediately before the end of the transition period (ss.6(3) & 6(7)).
You are advising a client who is a national of an EU member state and, therefore, is a Union citizen under EU law. She has resided in the London since 2011. She has sought your advice about an Act of Parliament which was enacted two months ago. She maintains that the Act of Parliament discriminates against her and other Union citizens in relation to their employment rights. Your research has led you to conclude that this falls within the scope of an EU Regulation which has been preserved by the Withdrawal Agreement. You conclude that a court in England and Wales will be likely to find that the Act is incompatible with that EU Regulation.
If a court in England did find that the Act is incompatible, what would the court be required to do? (Choose ONE option.)
The court would be required to issue a declaration of incompatibility which formally notifies Parliament that the Act of Parliament is incompatible with EU law.
The court would be required to apply the Act of Parliament as the principle of the supremacy of EU law no longer applies in the United Kingdom.
The court would be required to refer the issue to the Supreme Court as only the Supreme Court is able to rule on when an EU Regulation will prevail over the Act of Parliament.
The court would be required to invalidate the Act of Parliament as it is incompatible with the EU Regulation.
The court would be required to disapply the Act of Parliament as it is incompatible with the EU Regulation.
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The court would be required to issue a declaration of incompatibility which formally notifies Parliament that the Act of Parliament is incompatible with EU law.
This is incorrect – Nothing in EU law, the Withdrawal Agreement or the European Union Withdrawal Acts provides for such a remedy in these circumstances.
You have been asked to advise a client who is a UK national and has resided in Manchester for the whole of his life. He has sought advice about an Act of Parliament which was enacted last month. He maintains that the Act of Parliament has undermined his right to privacy in relation to the internet. You are aware that this right was protected by an EU Regulation enacted before the United Kingdom left the European Union. You conclude that a court in England and Wales is likely to find that the Act of Parliament is incompatible with that EU Regulation. However, the EU Regulation has not been preserved by the Withdrawal Agreement.
If a court in England did find that the Act is incompatible with the EU Regulation, what would that court be required to do? (Choose ONE option.)
The court would be required to invalidate the Act of Parliament as it is incompatible with the EU Regulation.
The court would be required to disapply the Act of Parliament as it is incompatible with the EU Regulation.
The court would be required to apply the Act of Parliament as the EU Regulation will have ceased to have effect in the United Kingdom following Brexit.
The court would be required to apply the Act of Parliament as the principle of the supremacy of EU law no longer applies in this context in the UK.
The court would be required to issue a declaration of incompatibility which formally notifies Parliament that the Act of Parliament is incompatible with EU law.
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The court would be required to apply the Act of Parliament as the EU Regulation will have ceased to have effect in the United Kingdom following Brexit.
This is only partially correct – It is incorrect in so far as it states that the EU Regulation ceased to have effect in the United Kingdom following Brexit. The bulk of EU law actually continues to have effect in the United Kingdom as retained EU law under ss.2 to 4 of the EUWA 2018. This includes the EU regulation in this instance will be classified as Direct EU Legislation under s.3 EUWA 2018. However, it is correct in so far as it states that the court would be required to apply the Act of Parliament. In relation to retained EU law, s.5 of the EUWA 2018 specifies that the principle of the supremacy of EU law does not apply to any British law made after the end of the transition period. The Act of Parliament in the question was clearly passed last month and therefore after the end of that period. It can therefore be amended or repealed by any of the methods in s.7 and Sch.8 of the EUWA 2018. This includes by an Act of Parliament.
Which one of the following statements is incorrect?
The legislature is the supreme law-making body in the UK.
The judiciary is responsible for the adjudication of legal disputes and the enforcement of the law.
The executive is responsible for proposing and approving all legislation.
The judiciary is responsible for how statute is interpreted.
The executive is responsible for the running of government and the creation and implementation of policy.
The executive is responsible for proposing and approving all legislation.
Correct. This statement is incorrect. The executive does propose and ‘sponsor’ most legislation but the approval of all primary legislation is a matter for the legislature, i.e. Parliament.
Which one of the following statements best reflects the make-up of the constitutional rules governing the UK?
The UK’s constitutional rules are dispersed but can all be found over the pages of historic and modern statutes.
The UK’s constitution is seen to be ‘flexible’ as it is overwhelmingly governed by conventions.
The UK’s set of governing rules can be found in a variety of legal and non-legal sources, the latter being made up primarily of ‘constitutional conventions’.
The UK’s constitution is a product of the common law.
The UK’s set of governing rules can be found in a variety of legal and non-legal sources, the latter being made up primarily of ‘constitutional conventions’.
Correct
Which one of the following five statements is false?
The UK constitution is unentrenched.
The UK constitution has been designed to comply with the principle of separation of powers.
The UK constitution is significantly reliant on conventions.
The UK constitution is generally seen to be a ‘flexible’ one.
A notable proportion of the rules in the UK constitution are ‘unwritten’.
The UK constitution has been designed to comply with the principle of separation of powers.
Correct. The statement is false. There has been no formal ‘design’ to the UK constitution – it has largely evolved over the period since 1688. Also, the UK does not conform to any strict definition of the separation of powers principle.
