PUBLIC Flashcards by Abc D

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.

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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.

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.

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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?)

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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.

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)

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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.

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.

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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

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.

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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

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.

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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.

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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.

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.

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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

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.

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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.

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

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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.

Correct, this is the best description.

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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.

Correct, this is the best description.

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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.

Correct, this best describes the constitutional position.

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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.

Correct. Misleading or lying to Parliament is generally considered to be the most flagrant form of breach of the convention on individual ministerial responsibility.

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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.

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.

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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.

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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.

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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.

Correct
This is the best description of the position.

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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.

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.

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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.

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.

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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.

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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.

Correct. This is the best description.

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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.

Correct. This is the best description.

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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.

week 6 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.

week 7 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. week 7 incorrect 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.

week 8 incorrect 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.

weel 8 incorrect 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.

week 8 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.

week 9 incorrect 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.

week 9 incorrect 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.

week 10 incorrect 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.

week 10 incorrect 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.

week 10 incorrect 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.

week 10 incorrect 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.

Which one of the following statements is false? Conventions operate to create standards of accountability within government. Conventions regulate the relationship between different bodies of state and those within the different parts of Parliament. Conventions impose rigorous standards of behaviour in public life that have to be followed. Conventions modify the effect of some strict legal constitutional rules. Conventions fill in the gaps of the UK’s sparse legal constitutional framework.

Conventions impose rigorous standards of behaviour in public life that have to be followed. Correct. The statement is false. They are intended to create standards by which those in public life ought to conduct themselves. They should impose a feeling of obligation but, very significantly, they are not legally enforceable.

Which one of the following cannot be regarded as a constitutional convention? The House of Lords should respect manifesto commitments made by the governing party in power in the Commons and so not reject any legislation enforcing these. The monarch will not exercise her strict legal right to refuse to sign a bill of Parliament that has passed both Commons and Lords. The Chancellor of the Exchequer carries a ‘Budget Box’ (a leather dispatch box) to each Budget speech. The Westminster Parliament will not normally legislate on matters affecting areas of power which have been devolved to the Scottish Parliament without prior consent from Edinburgh. The Prime Minister and Chancellor of the Exchequer should sit in the House of Commons.

The Chancellor of the Exchequer carries a ‘Budget Box’ (a leather dispatch box) to each Budget speech. Correct. This is more of a tradition or piece of ceremonial than a convention. It has no real constitutional significance and therefore cannot be seen to have a purpose or rationale behind it, even if all Chancellors follow this practice.

Which one of the following statements is incorrect? In R (Miller) v Secretary of State for Exiting the EU (2017) the Supreme Court recognised section 28(8) of the Scotland Act as an acknowledgment of the Sewel Convention only. Law prevails over conventions. In R (Miller) v Secretary of State for Exiting the EU (2017) the Supreme Court upheld the Scottish Government’s challenge to the legality of triggering Article 50 (and therefore the process or leaving) on the basis that the Sewel Convention was enforceable. The judiciary should not be politically active.

In R (Miller) v Secretary of State for Exiting the EU (2017) the Supreme Court upheld the Scottish Government’s challenge to the legality of triggering Article 50 (and therefore the process or leaving) on the basis that the Sewel Convention was enforceable. Correct. This is not an accurate summary of this point – the Supreme Court was not prepared to depart from the well-established position that conventions are unenforceable, even if they are acknowledged in legislation.

Which one of the following statements represents the formal title of the UK Parliament? The Houses of Commons and Lords. The Lords of Appeal in Ordinary. The Queen in Parliament. Her Majesty’s House of Lords. Her Majesty’s House of Commons.

The Queen in Parliament. Correct. This represents the symbolic importance of the monarch as one of the three elements within Parliament.

Which one of the following statements is not correct in relation to the office of Prime Minister (P.M.)? The PM is selected as the person who can command a majority of MPs within the House of Commons. The PM has to be selected on the basis that he or she has won a General Election. The office of PM has been recognised since the early 18th century. The modern PM is accountable to the House of Commons through a weekly Questions session. The PM has overall strategic responsibility for the organisation and policy direction of the Government.

The PM has to be selected on the basis that he or she has won a General Election. Correct. This is not true – it is possible for a PM to assume office without first having won an election – e.g. James Callaghan, Gordon Brown, Theresa May and Boris Johnson in modern times.

Which one of the following statements best describes the role of the Lords? The description of the House of Lords as the Upper House reflects its status within Parliament. The House of Lords is entitled to block any legislation it chooses. The House of Lords remains the preserve of the senior aristocracy. The House of Lords retains a significant role in the implementation of law. The House of Lords is primarily responsible for scrutiny and revision of legislation.

The House of Lords is primarily responsible for scrutiny and revision of legislation.

Which one of the following statements is correct? The Home Office is the department responsible for the prison system. The Cabinet consists of the Prime Minister and the three most important Secretaries of State: the Chancellor of the Exchequer, the Home Secretary, and the Foreign Secretary. Junior ministers are selected by their respective Secretary of State. Secretaries of State are senior government ministers who have the right to sit in Cabinet and who head their respective departments of state. The Cabinet Office is a department solely responsible for constitutional affairs and for organisation of Cabinet meetings.

Secretaries of State are senior government ministers who have the right to sit in Cabinet and who head their respective departments of state.

Which one of the following statements is incorrect? The Treasury is responsible for economic and fiscal policy, including the assessment and collection of taxation. The allocation of funds from general taxation to the various departments requires the prior approval of Parliament. Prerogative powers held by government departments are exercised in the name of the monarch but are carried out in practice by ministers. The Foreign Office is responsible for the UK’s relationships with other states including formal diplomatic relations. The powers of government departments exclusively originate from the Royal Prerogative.

The powers of government departments exclusively originate from the Royal Prerogative. Correct. This statement is not fully accurate, as these powers derive from a mixture of prerogative and statutory sources.

Which one of the following statements is incorrect? Ministers are able in most circumstances to delegate the exercise of their powers to civil servants working in their department of state. Ministers are able to carry out any action unless this has been specifically forbidden by statute. Government ministers are limited in what they can do by certain key constitutional principles that have long been recognised in the common law or through constitutional statutes. The courts have recognised for many years that the minister named in most statutes, as the person with responsibility for exercising a particular power, will in many cases not be able to do so in practical reality. If a government department exceeds the powers it has been given, it will be open to a challenge in the courts through the process known as judicial review.

Ministers are able to carry out any action unless this has been specifically forbidden by statute. Correct. This is the opposite of the accepted position. In other words, the government can only act if it is expressly authorised to do so. This authority will derive either from statute or through an accepted common law prerogative power.

Which one of the following statements is incorrect? The judiciary is the body responsible for resolving legal disputes between individuals and/or other legal entities and for providing an appropriate remedy. The judiciary decides on the culpability of Defendants in criminal law and determines an appropriate sentence if the Defendant is found guilty. Judicial review applications are issued in the Administrative Court. The judiciary staff both the traditional court system and the tribunal system that has jurisdiction to determine a number of administrative cases. The judiciary is responsible for the investigation and prosecution of crime.

The judiciary is responsible for the investigation and prosecution of crime. Correct. This statement is not accurate. In England and Wales these roles are fulfilled initially by the police and, with regard to the prosecution of criminal offences, the independent Crown Prosecution Service. In some other jurisdictions, for instance France, the role of the judiciary is more inquisitorial.

Which one of the following statements is incorrect? The Lord Chancellor now has a duty to uphold judicial independence. The CRA introduced a new method of judicial appointment based on an independent Appointments Commission. The CRA brought about the creation of the UK Supreme Court. Prior to the CRA the Lord Chancellor had a dual role, as the effective ‘Speaker’ of the House of Lords and as a sitting judge and head of the judiciary. The judiciary had been an independent force in the constitution long before the reforms introduced by the CRA 2005.

Prior to the CRA the Lord Chancellor had a dual role, as the effective ‘Speaker’ of the House of Lords and as a sitting judge and head of the judiciary. Correct. This statement is not fully accurate, as the old Lord Chancellors also had a very significant role as a government minister in relation to the administration of justice.

Which one of the following statements is correct? The judicial oath reflects the attachment of the judiciary to the importance of court precedents. If a matter before the court has any political relevance or content, the courts will refuse to hear the matter, deeming it ‘non-justiciable’. Lady Hale’s view on the constitutional role of the Supreme Court is predominantly conditioned by the importance the court has in determining matters regarding the devolution arrangements with Scotland, Wales and N. Ireland. The UK Supreme Court (“UKSC”) is not technically a constitutional court.

The UK Supreme Court (“UKSC”) is not technically a constitutional court. Correct. It is arguable – as evidenced by the views of Lady Hale – that the UKSC is developing more of a role in protecting constitutional values. However, it does not merely hear ‘constitutional’ cases; it also hears other matters such as ordinary civil and criminal appeals. And, very significantly too, it does not have “strike down” powers over primary legislation passed by Parliament, so it cannot directly judge the constitutionality of UK statutes.

Which one of the following statements is incorrect? The devolution model in the UK has given the three Parliaments/Assemblies power to pass their own statutes but has not prevented the Westminster Parliament from legislating for all parts of the UK on any matter, including those involving devolved powers. All three of the devolved ‘nations’ within the UK have their own legislative bodies and executive bodies. The programme of devolution introduced since 1998 means that the UK can no longer be classified as a unitary state. ‘Reserved matters’ are those which remain within the legislative competence of the UK Parliament. Devolution as a policy was designed to reflect the desire of people in the constituent parts of the United Kingdom to be governed by regional/national organisations, and to promote efficiency in government by decentralising it so that it is closer and more responsive to regional needs.

The programme of devolution introduced since 1998 means that the UK can no longer be classified as a unitary state. Correct. This is inaccurate, as it is over-stating the position. Devolution has undoubtedly led to greater decentralisation of power away from Westminster, but the UK remains a unitary state as ultimate sovereignty remains at the centre in Westminster. incorrect All three of the devolved ‘nations’ within the UK have their own legislative bodies and executive bodies. Incorrect. This is accurate. The names may differ - for instance, Scotland has its own Parliament rather than Assembly - but the model is essentially the same. Each ‘country’ has its own legislature and executive administration, shadowing the structure applying in sovereign states.

Whichone of the following statements is incorrect? Section 28(7) of the Scotland Act 1998 is the key provision, preserving the power of the UK Parliament to legislate on any matter affecting Scotland. If the Westminster Parliament wishes to legislate on a matter which touches on areas within the legislative competence of a devolved Parliament or Assembly, it should firstly obtain the prior approval of the relevant legislature. Under the Welsh devolution model the Assembly has competence over all matters not reserved to the UK as outlined in Schedule 7A of the amended Government of Wales Act (GOWA) 2006. The Sewel Convention not only applies to the relationship between Westminster and Edinburgh. If the Westminster Parliament wishes to legislate on a matter which touches on areas within the legislative competence of a devolved Parliament or Assembly, it firstly requires the prior approval of the relevant legislature.

If the Westminster Parliament wishes to legislate on a matter which touches on areas within the legislative competence of a devolved Parliament or Assembly, it firstly requires the prior approval of the relevant legislature. Correct. This is not accurate in relation to the word “requires”. This is because this ‘rule’ is only a conventional one and therefore not legally binding.

Which one of the following statements is correct? In the case of R (Miller) v SoS for Exiting the EU (2017) the Supreme Court accepted the argument of the Scottish devolved administration that its consent was necessary before the UK triggered the Article 50 mechanism leading to an exit from the EU. If a devolved legislature passes a statute, which is later deemed to fall within the relevant list of ‘reserved powers’, the court will determine that this statute does not have legal effect. Jurisdiction over any disputes relating to the extent of devolved powers rests with the Privy Council in London. The position of Scotland in the UK is unique, as it is the only constituent part with a different legal system and jurisdiction. Any decisions relating to the extent and scope of devolved powers are determined in the highest appeal court in the relative part of the UK.

If a devolved legislature passes a statute, which is later deemed to fall within the relevant list of ‘reserved powers’, the court will determine that this statute does not have legal effect. Correct. This comes within the jurisdiction the UK Supreme Court has to determine such disputes over the extent of devolved powers.

Which one of the following is not a prerogative power? Negotiation of treaties. The Royal Assent. Issuing of passports. Mobilisation of the armed forces. The setting of sentences in criminal law.

The setting of sentences in criminal law. Correct. These are determined by guidelines laid down in a series of statutes and statutory instruments.

Which one of the following statements does not apply? The Miller case concerned the legality of the advice given by the Prime Minister to the Queen to prorogue Parliament for five weeks. In the Miller case the Supreme Court found that the advice given by the Prime Minister was unlawful because the prorogation period proposed would have unreasonably prevented Parliament from carrying out its essential constitutional role of holding the Executive to account. The UK Supreme Court in the Miller case concluded that the Prime Minister’s advice to the Queen was unlawful as Parliament was the body responsible for giving such advice. Prorogation of Parliament refers to the practice of ending of one session of Parliament before a state opening of Parliament takes place to begin the next session. The UK Supreme Court in the Miller case concluded that the judiciary was constitutionally entitled to assess the lawfulness of the Prime Minister’s advice to the Queen in relation to prorogation.

The UK Supreme Court in the Miller case concluded that the Prime Minister’s advice to the Queen was unlawful as Parliament was the body responsible for giving such advice. Correct. This statement is incorrect as the Queen has the legal power to prorogue on the advice of the Prime Minister according to convention. It was the nature and consequences of his advice that were deemed unlawful and not the fact that he gave it.

Which one of the following statements is false? In legal theory as opposed to political reality the Queen retains the same absolute power as her namesake, Elizabeth I. The monarch retains the legal power to appoint the Prime Minister of the UK. The monarch has the legal power to approve or assent to a Bill of Parliament. The monarch is symbolically though not practically at the head of the judicial system

In legal theory as opposed to political reality the Queen retains the same absolute power as her namesake, Elizabeth I. Correct. The statement is false. The Bill of Rights as well as other constitutional statutes passed since 1688 mean that Parliament is legally the supreme body of state.

Which one of the following statements is true? The Queen has final say over who is appointed Prime Minister. The Queen appoints the Prime Minister according to convention but does not have any influence over who is appointed. The Queen can prorogue Parliament of her own accord. The Prime Minister can prorogue Parliament without the Queen's consent. The Prime Minister is appointed by the Cabinet.

The Queen appoints the Prime Minister according to convention but does not have any influence over who is appointed. Correct. The convention is that the head of the political party commanding the confidence of the House of Commons will be appointed Prime Minister.

Which of the following is the ultimate decision-making body within the executive? COBR Cabinet Parliament The Privy Council The Civil Service

Cabinet Correct. Cabinet, with the Prime Minister at its head, is the ultimate decision-making body in the executive.

Which of the following accurately describes the convention of collective ministerial responsibility (‘CMR’)? CMR has three component parts: secrecy; unanimity; and allegiance to the Prime Minister as the government’s figurehead. CMR has three component parts: confidentiality; unanimity; and confidence. It is ultimately necessary for Parliament to have continued confidence in the government. CMR is the convention which best reflects the separation of powers between different bodies of state. CMR has three component parts: confidentiality; unanimity; and confidence. It is ultimately necessary for the government to have continued confidence in Parliament. CMR is the convention which requires a minister to resign if he has acted inappropriately.

CMR has three component parts: confidentiality; unanimity; and confidence. It is ultimately necessary for Parliament to have continued confidence in the government.

Which one of the following statements best describes the convention of individual ministerial responsibility? The convention requires that all ministers have to present a united front in government. The convention of IMR has been part of the system of UK government for so long that it has now developed the status of a founding constitutional principle. The convention lays out precise standards which ministers must comply with in their public duties or face dismissal. This convention has now been completely superseded by the creation of a Ministerial Code that seeks to achieve the same objectives. It presents a broadly accepted set of informal and unwritten standards for how ministers should behave and conduct their duties in an appropriate and constitutional manner.

It presents a broadly accepted set of informal and unwritten standards for how ministers should behave and conduct their duties in an appropriate and constitutional manner.

Which one of the following incident or series of events led to a redefinition of the convention on individual ministerial responsibility in relation to the relationship between ministers and their civil servants? The Profumo affair. The Westland affair. The Maze Prison breakout. The Crichel Down affair. The Arms to Iraq affair.

The Crichel Down affair. Correct. This scandal led to the Maxwell Fyfe guidelines following an inquiry.

Which of the following cannot be seen as one of the features of the modern form of individual ministerial responsibility? Ministers continue to have be very careful that they are not seen to be misleading Parliament when they are accounting to it. The convention on IMR has developed to the point where ministers accept that they have to resign if there has been a serious operational failing in their department. The modern emphasis has moved to an extent from responsibility being taken for breaches of the convention, in the sense of resignation, towards accountability towards Parliament. The convention on IMR has developed into a direction where a distinction is generally made between matters of policy and operational issues. Political resignations in the modern day largely involve matters in which a minister can be seen to have personal involvement in or knowledge of an error or problem in their department.

The convention on IMR has developed to the point where ministers accept that they have to resign if there has been a serious operational failing in their department. Correct. This statement is not accurate as the modern take on IMR tends to exclude operational failings as matters falling within the relevant minister’s responsibility.

Which one of the following best describes the Ministerial Code? Secondary legislation governing the terms of employment of government Ministers. A set of enforceable rules and principles of professional conduct applicable to Ministers. A set of non-enforceable rules and principles of personal and professional conduct applicable to Ministers. A set of rules and principles telling Ministers the circumstances in which they must resign. A set of rules and principles that the Prime Minister must apply when a Minister is suspected of personal or professional misconduct.

A set of non-enforceable rules and principles of personal and professional conduct applicable to Ministers. Correct. The 'rules' in the Ministerial Code do not have the status of law and are not enforceable.

Which of the following best describes the relationship between Ministers and Parliament? Ministers only have a duty to account to Parliamentary committees. Parliament can replace a Minister if they are found to have deliberately mislead Parliament. Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies. Parliament can secure the resignation of a Minister. Ministers are only accountable to Parliament for their own actions.

Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies. Correct. Ministers are individually responsible for the actions of their departments.

Which one of the following cannot happen after a Minister is alleged to have breached the Code? A police investigation, if the allegation relates to criminal conduct. Nothing. Reappointment as a Cabinet Minister following a period of resignation. The Minister is removed from office by Parliament. Resignation.

The Minister is removed from office by Parliament. Correct. Parliament has no power to remove Ministers.

Which one of the following statements is false? Anonymity is essential to the maintenance of a politically neutral civil service. Civil servants can be directly accountable to Parliament for how policy is implemented. Ministers are personally accountable for the actions of their departments. One of the constitutional principles of the civil service is permanence. Civil servants can be directly accountable to Parliament for Ministerial policy decisions.

Civil servants can be directly accountable to Parliament for Ministerial policy decisions. Correct. The statement is false. Civil servants are accountable forimplementation of policy, not formulation of policy overall (which is a political matter for which ministers are responsible).

Which one of the following is a political appointment within a government department? Accounting Officer Permanent Secretary Senior Responsible Owner Special adviser

Special adviser

Which one of the following is responsible for explaining to Parliament (principally via the Public Accounts Committee), how their department has spent public funds? Junior civil servant Special Adviser Accounting Officer / permanent secretary Secretary of State

Accounting Officer / permanent secretary Correct. The Accounting Officer is responsible for explaining spending decisions to Parliament.

During a particularly rowdy debate, an MP crosses the floor and punches another MP in the face. Which one of the following could the Speaker not do in response? Suspend the MP who threw the punch. Suspend the sitting of the House until order is restored. Expel the MP from their political party. Ask security staff to call the police to arrest the MP who threw the punch. "Name" the MP who threw the punch.

Expel the MP from their political party. Correct. The Speaker has no personal power to expel an MP, either from the House or from their political party.

Which of the following factors should the Speaker not consider when deciding whether to allow a debate on a proposed amendment to legislation? Choose one. The time it will take to debate the amendment. The importance of allowing parliamentary minority parties to be heard. The subject matter and importance of the proposed amendment. Whether the amendment would undermine the interests of the political party of which they were previously a member. The substance of the proposed amendment (i.e. whether it is clear and relates properly to the primary legislation).

Whether the amendment would undermine the interests of the political party of which they were previously a member. Correct. The Speaker should maintain political neutrality.

An important debate on a controversial piece of legislation is coming up in parliament. It is the subject of a three-line whip. The Opposition is strongly opposed to the legislation, which would create a blanket ban on protest marches in the London Borough of Westminster. Some ruling party MPs are also against the ban. Which one of the following statements is true? The ruling party whips are responsible for making sure that MPs for the ruling party vote in favour of the government. If ruling party MPs vote against the government, the whip may be 'withdrawn', meaning that they are expelled from the party. The Opposition whips are responsible for making sure that MPs for the Opposition vote in favour of the government. If Opposition party MPs vote against the government, the whip may be withdrawn - meaning that they are expelled from their party. The ruling party whips are responsible for making sure that MPs for the Opposition vote in favour of the government. If Opposition party MPs vote against the government, the whip may be withdrawn - meaning that they are expelled from their party. The ruling party whips are responsible for making sure that MPs for the Opposition vote in favour of the government. If Opposition party MPs vote against the government, the whip may be withdrawn - meaning that they are not allowed to sit in the House of Commons.

The ruling party whips are responsible for making sure that MPs for the ruling party vote in favour of the government. If ruling party MPs vote against the government, the whip may be 'withdrawn', meaning that they are expelled from the party.

Which one of the following statements is false? The Leader of the House of Commons is the ultimate authority on parliamentary procedure. Standing Orders are procedural rules written by the Leader of the House. There is an accepted presumption against government business in parliament. Erskine May contains enforceable rules about parliamentary procedure. Parliamentary conventions and customs must be written down.

Erskine May contains enforceable rules about parliamentary procedure. Correct. The statement is false. Erskine May is a guide to parliamentary convention and procedure. It is generally followed, but not enforceable.

Agreement cannot be reached via the usual channels as to how the following week's business in the House of Commons should be organised. Which one of the following correctly describes what should happen next? An emergency debate should be tabled. The Leader of the House should request an Urgent Question to be put. A division should be called. The minister concerned should attend parliament to explain why agreement cannot be reached. The Speaker should intervene and their decision should be accepted as final.

The Speaker should intervene and their decision should be accepted as final. Correct. If opposing whips cannot agree, part of the Speaker's role is to mediate if possible and (as the highest authority in the Commons) impose a decision if not.

You are involved as a pupil barrister in case that turns on the interpretation of an Act of Parliament. Your supervisor wants to use Hansard to assist in that interpretation. Can she? Choose one correct answer. Yes, as long as the test in Pepper v Hart is met. It will not be met unless the legislation is very clearly drafted. Yes, as long as the test in Pepper v Hart is met. It will not be met unless the House of Commons was full when the debate was conducted. Yes, as long as the test in Pepper v Hart is met. It will not be met unless the statement recorded in Hansard is vague. Yes, as long as the test in Pepper v Hart is met. It will not be met if the statement recorded in Hansard was not made by a minister or other relevant promoter of the Bill. No. Hansard cannot be used to interpret legislation.

Yes, as long as the test in Pepper v Hart is met. It will not be met if the statement recorded in Hansard was not made by a minister or other relevant promoter of the Bill.

Patricia is an MP for the Conservative Party. She holds strong views on environmental issues and has recently started attending climate change protests which have caused serious disruption to public transport. She is also in some financial difficulty, having had to pay off her teenage son's debts (her son is addicted to online gambling). Which one of the following would result in Patricia being disqualified from sitting in the House of Commons? Patricia attends a climate change protest and refuses to leave the area when asked to by a police officer. She is arrested and spends the night in a police cell. In the morning, she is interviewed and released on bail. She is able to attend a parliamentary debate scheduled for that afternoon. Patricia's son's addiction is leaked to the press by one of his friends from college. Patricia makes a complaint to the newspaper running the story. Patricia's son's addiction is leaked to the press by one of his friends from college. Patricia makes a complaint to the newspaper running the story. Her son is teased about it by a next door neighbour. Patricia loses her temper and slaps the neighbour in the face. The assault is filmed by a bystander and put up on Facebook. Patricia makes a fraudulent application for housing benefit, in order to get some help with her mortgage payments. She is prosecuted, convicted, and sentenced to 14 months' imprisonment. Patricia attends a climate change protest and refuses to leave the area when asked to by a police officer. She is arrested and spends the night in a police cell. In the morning, she is interviewed and released without charge. She is able to attend a parliamentary debate scheduled for that afternoon.

Patricia makes a fraudulent application for housing benefit, in order to get some help with her mortgage payments. She is prosecuted, convicted, and sentenced to 14 months' imprisonment. Correct. This would result in Patricia being disqualified from sitting in the House, as it is fraudulent behaviour (as well as being a criminal offence resulting in over one year's imprisonment).

Which one of the following is not a purpose of the House of Commons Code of Conduct? To ensure public confidence in the standards expected of all Members, and in the commitment of the House to upholding these rules. To emphasise that MPs should always endeavour to act in the public interests. To ensure that MPs understand the circumstances in which disciplinary action may be taken. To ensure party political balance in the House. To ensure MPs understand what is expected of them in all aspects of their public lives.

To ensure party political balance in the House. Correct. Party political balance is not a conduct matter.

Nathan is a Labour Party MP. He holds shares in transport company which is lobbying the government to build a motorway extension in his constituency. Many of Nathan's constituents oppose the development, as does Nathan in principle (he has made statements in the House to that effect). Which one of the following statements accurately describes Nathan's position? Nathan should declare his ownership of the shares in the Register of Member's Financial Interests because his constituents and others might reasonably consider this interest to influence his conduct as an MP. If he does not do so and a complaint is made against Nathan, the Parliamentary Commissioner for Standards will investigate. If they find that Nathan has breached the Code of Conduct, Parliamentary Committee on Standards will further investigate and if they agree with the Commissioner, may order Nathan's suspension from the House. Nathan should declare his ownership of the shares in the Register of Member's Financial Interests because his constituents and others might reasonably consider this interest to influence his conduct as an MP. If he does not do so and a complaint is made against Nathan, the Parliamentary Commissioner for Standards will investigate. If they find that Nathan has breached the Code of Conduct, the Parliamentary Committee on Standards will further investigate and if they agree with the Commissioner, may order Nathan's explusion from the Labour Party. Nathan need not declare his ownership of the shares in the Register of Member's Financial Interests because, given his statement in the House, it could not reasonably be considered that his conduct as an MP would be influenced. Nathan must not declare his ownership of the shares in the Register of Member's Financial Interests because it could prejudice his constituent's view of him. If he opposes the development in public then his private conduct is irrelevant. Nathan should declare his ownership of the shares in the Register of Member's Financial Interests because his constituents and others might reasonably consider this interest to influence his conduct as an MP. If he does not do so and a complaint is made against Nathan, the Parliamentary Committee for Standards will investigate. If they find that Nathan has breached the Code of Conduct, the Parliamentary Commissioner on Standards will further investigate and if they agree with the Committee, may order Nathan's suspension from the House.

Nathan should declare his ownership of the shares in the Register of Member's Financial Interests because his constituents and others might reasonably consider this interest to influence his conduct as an MP. If he does not do so and a complaint is made against Nathan, the Parliamentary Commissioner for Standards will investigate. If they find that Nathan has breached the Code of Conduct, Parliamentary Committee on Standards will further investigate and if they agree with the Commissioner, may order Nathan's suspension from the House. Correct. Nathan should declare his shares for the reason stated. The investigation procedure and possible penalty is accurately described.

Which one of the following statements is incorrect? Select committee reports, drawn up after investigations into a particular issue have concluded, are published for the attention of the House. Select committees can only take witness evidence from government ministers or senior civil servants. Select committees have the power to call for “persons, papers and records”. If a witness called to attend a select committee refuses to do so, a summons requiring their attendance can be issued and ultimately, if they still do not attend, a resolution can be passed in the House that the person has been in “contempt of Parliament”. Select committee hearings and reports have assumed an increasingly important part in the coverage of Parliament by the media and therefore arguably promote greater attention to specific political issues or campaigns for reform.

Select committees can only take witness evidence from government ministers or senior civil servants. Correct. This is not accurate, as committees can also call individuals from outside government to provide evidence, if they play an important role in the sector for which the committee has responsibility. For instance, people such as Rupert Murdoch, Mark Zuckerberg and Aaron Banks have appeared before select committees.

Which one of the following statements is correct? The Chair of each Commons select committee is taken by an MP from the largest party in the House. Membership of Commons select committees is confined to backbench MPs. Select Committees in the Commons are all departmentally-based whereas all the Lords committees are thematic and their responsibilities are cross-department. Each Commons select committee has an equivalent shadow committee in the Lords. A strict separation is maintained between the parallel select committee system in each House of Parliament.

Membership of Commons select committees is confined to backbench MPs. Correct. By convention Ministers and Opposition frontbenchers are not selected.

Which one of the following statements is incorrect? Select committees are chosen on an ad hoc basis to consider the detail of proposed legislation before they report back to the Commons prior to the third reading of a bill. Select committees oversee the work of individual government departments on a less partisan and more dispassionate basis than the scrutiny carried out through parliamentary questions on the floor of the House. In addition to the departmental select committees there are also a number of committees which cross over departmental boundaries and are more thematic in approach. Membership of a select committee provides a significant way in which backbench MPs from all sides of the House can contribute to the democratic process of government oversight. Select committees have been part of Parliament for a long time but the current departmentally-based system has only been in existence since 1979.

Select committees are chosen on an ad hoc basis to consider the detail of proposed legislation before they report back to the Commons prior to the third reading of a bill. Correct. This is inaccurate – the statement reflects the work of a legislative committee, which usually takes the form of a Public Bill Committee, and not a select committee.

Which one of the following statements is incorrect? Bills can be introduced initially into either the House of Commons or Lords. Private Members’ Bills provide a possible opportunity, though one that’s very difficult to achieve, for backbenchers to change the law. Bills proposed by the Government are notified to Parliament by being announced in the Queen’s Speech at the beginning of each session. The first reading of a bill gives the Opposition the first occasion to argue against Government policy. Individual government departments do not have an automatic right to introduce proposed legislation.

The first reading of a bill gives the Opposition the first occasion to argue against Government policy. Correct. This is inaccurate – the first reading is essentially a formality; there is no debate at this initial stage.

Which one of the following statements is incorrect? Secondary legislation can be quashed in the courts on judicial review principles. Statutory instruments are the most common form of secondary legislation. Negative resolution refers to a situation in which the Commons votes down a proposal for secondary legislation. Statutory instruments are made by government departments based on the authority given to a minister by a “parent” Act of Parliament. The affirmative resolution procedure provides a higher level of scrutiny over the powers of the Executive.

Negative resolution refers to a situation in which the Commons votes down a proposal for secondary legislation. Correct. This is not accurate – the term refers to the process and not the outcome of it. The negative resolution procedure does not automatically require parliamentary approval of secondary legislation. In fact, the reality is that a high percentage of such legislation passes through Parliament with no scrutiny at all as a result of the widespread use of this process.

Which one of the following statements is correct? A vote in favour of a Bill following second reading does not represent final parliamentary approval of the legislation. The Committee stage of each Bill is presided over by the relevant departmental Select Committee with responsibility for the area of concern or business covered by the Bill. The Royal Assent is legally required to complete the passage of a Bill through Parliament and it has been a legal obligation on every monarch to give it freely since the Glorious Revolution of 1688 confirmed the supremacy of Parliament over the Crown. After a Public Bill committee has met and reported back to the Commons at the “report stage”, M.P.s have one more opportunity to propose new amendments to the Bill before the third and final reading. Acts can only come into force in two ways – either they will automatically do so on the day of the Royal Assent or they can be set to start at a fixed date in the future, as long as that date is included in the Act itself.

A vote in favour of a Bill following second reading does not represent final parliamentary approval of the legislation. Correct. Success for the Bill at this stage is clearly important, as it indicates approval of the broad objective and plan for reform, but the Bill in its current form then proceeds to committee stage where it can be amended significantly before any final vote of approval takes place.

The UK’s traditional “first past the post” electoral system is the root cause of the dominance of the executive over the legislature. In the UK’s system of parliamentary government, a ‘hung’ Parliament is not necessarily anathema to effective government but it creates notable political problems and instabilities. The role of the executive is diverse but it is fundamentally responsible for the administration of policy and the exercise of legal powers to achieve this. Government ministers do not have to be Members of Parliament but, by convention, they very often are. It is highly debatable whether or not the general preponderance of governments with sizeable Commons majorities in the period from 1945 to 2010 can be seen as a weaker element in the UK’s constitutional framework.

The UK’s traditional “first past the post” electoral system is the root cause of the dominance of the executive over the legislature. Correct. It is often argued that the electoral system accentuates the executive’s hold over Parliament. However, the root cause of the fusion is a rather more basic structural one, namely that the executive in the UK sits within Parliament, creating a partially overlapping membership.

Which one of the following statements is incorrect? A ‘Henry VIII clause’ is one which potentially gives the executive a greater degree of control over the shaping of legislation than normal because it gives a minister the power to be able to amend or repeal primary legislation through the application of secondary legislation. Many Acts of Parliament not only give powers directly to administrative and executive decision-makers; they also allow ministers at a later date to determine further legal rules and regulations which facilitate administration in the areas covered by the Act in question. For a piece of secondary legislation to be valid, the power it gives to the executive must be fully authorised in the relevant ‘parent Act’. Secondary legislation is seen as an injurious to the principle of the separation of powers as it is a form of law-making that is not subject to any parliamentary scrutiny. Secondary legislation can be ‘quashed’ in the courts.

Secondary legislation is seen as an injurious to the principle of the separation of powers as it is a form of law-making that is not subject to any parliamentary scrutiny. Correct. This is not totally correct as there are different levels of scrutiny applied to different statutory instruments. For a significant number, the level of scrutiny is minimal or non-existent but, for others, an affirmative procedure is required before the legislation can come into force.

Which one of the following statements is correct? The Home Secretary fulfils a quasi-judicial role in being able to set sentences for certain special categories of prisoners. The Attorney General’s role remains a controversial one in relation to the principle of separation of powers. The Lord Chancellor’s office remains the most prestigious one in the House of Lords. The Lord Chancellor, as the government’s chief legal adviser, continues to play an overlapping constitutional role. The tribunal system remains an area in which the constitutionally damaging practice persists of government departments effectively overseeing the legality of some of their own practices.

The Attorney General’s role remains a controversial one in relation to the principle of separation of powers. Correct. This is a commonly held conviction, caused by the AG’s joint role as both the government’s main legal adviser and as a member of the central executive. In the last two decades, the suspicion that Attorney Generals can be pressured politically into supporting a central government line has been directed particularly at Lord Goldsmith (in relation to the legality of the war in Iraq in 2003) and to Geoffrey Cox (in relation to Brexit, in 2019.)

Which one of the following statements is correct? The UK’s attachment to the separation of powers is tenuous because of the judiciary’s lack of formal separation from the other two bodies of state. The UK judiciary is now formally independent, but this situation only came about as recently as 2005 with the passing of the Constitutional Reform Act, when the Supreme Court was set up as an institution outside Parliament. The independence of the judiciary from the two political branches of the state is arguably the most notable manifestation of the separation of powers in the UK constitution. The UK judiciary is now formally independent, but this situation only came about as recently as 2005 with the passing of the Constitutional Reform Act, when s. 3 formally referred to the independence of the judiciary. The independence of the judiciary from the political wings of the constitution is so strong in the UK because of the force of the convention which obliges politicians not to criticise the decisions and actions of the courts.

The independence of the judiciary from the two political branches of the state is arguably the most notable manifestation of the separation of powers in the UK constitution. Correct. The UK judiciary has effectively been independent of the executive since the early 18th century, and this provides an invaluable constitutional safeguard against unchecked executive power.

Whichone of the following statements is correct? Typical examples of cases that should be heard in private are those in which a government minister or any other member of the wider executive is criticised and potentially likely to have their authority undermined. The principle of open justice has been reinforced by the effect of Article 6 of the European Convention on Human Rights. It is a cardinal feature of the separation of powers in the UK that all cases must be heard in public. Judges are immune from any action they carry out or any statement they make publicly that may be tortious if a layperson were to do the same. The principle of judicial immunity was established in the case of McGonnell v UK.

The principle of open justice has been reinforced by the effect of Article 6 of the European Convention on Human Rights. Correct. In order to secure impartial and independent courts and tribunals – in accordance with article 6 – it is important that the legal system is open and accessible as far as possible.

Which one of the following statements is incorrect? The judiciary are protected from political interference by, amongst other factors, the direction in the Constitutional Reform Act 2005 that the Lord Chancellor and other ministers must not seek to influence judicial decisions. The changes in the appointment system for judges have arguably enhanced the accessibility of the profession and the independence of the judiciary from any form of political influence. One of the most important reforms introduced by the Constitutional Reform Act 2005 was the disqualification of any full-time judge from sitting in the House of Commons, a matter previously only governed by convention. Freedom of speech and debate, and ‘proceedings’ in Parliament cannot be ‘impeached’ or questioned in any court. The phrase used in the Act of Settlement, that judges could retain office ‘during good behaviour’, was so important because it removed the threat of direct political interference in the judicial role.

Correct. This is not correct as this rule was codified into statute three decades earlier by the House of Commons Disqualification Act 1975.

Which one of the following statements is correct? The role of the executive in the UK is purely to suggest and propose new legislation; it has no law-making powers of its own. The role of Parliament is primarily to accept, reject or amend legislation drafted and sponsored by the government but individual MPs can also draft and promote their own private members’ bills. The role of the judiciary in the constitution is confined solely to the judges’ expertise in the interpretation of statutes. The principles established in the courts combine together to form the ‘common law’ but the judiciary also creates law in the form of delegated legislation. The role of Parliament in the legislative process is simply to accept, reject or amend legislation drafted and sponsored by the government.

The role of Parliament is primarily to accept, reject or amend legislation drafted and sponsored by the government but individual MPs can also draft and promote their own private members’ bills. correct incorrect The role of the executive in the UK is purely to suggest and propose new legislation; it has no law-making powers of its own. Incorrect. This is not a fully accurate statement, as the executive is able to draft secondary legislation. This means that it does have a form of law-creating authority; one which has become more significant too in recent decades.

Whichone of the following statements is incorrect? The judiciary will naturally be wary about crossing notional constitutional boundaries if the matter before a court is one affecting a societal issue over which there is not a clear or established consensus. The modern judiciary in the UK invariably applies an activist approach to its adjudicative role. The judiciary in the UK has two main constitutional functions, namely the interpretation of statute and the development of the common law. The judiciary will be far less inclined to develop a common law position if there is an absence of fundamental established principle already in place. The judiciary has significant power to shape the law, but this is subject to an important constitutional safeguard resting in Parliament’s hands.

The modern judiciary in the UK invariably applies an activist approach to its adjudicative role. Correct. Whilst it could well be said that today’s judiciary is generally more activist than its predecessors thirty or more years ago, this is not an accurate generalisation. Courts will largely tailor their approach depending on the nature and subject matter of the issue before them. And it should be borne in mind that “activism” isn’t a measurable or objective constant in any case; it tends to be used as a term of criticism. incorrect The judiciary in the UK has two main constitutional functions, namely the interpretation of statute and the development of the common law. Incorrect. This is an accurate reflection of the main constitutional roles of the courts. The judiciary has significant power to shape the law, but this is subject to an important constitutional safeguard resting in Parliament’s hands. Incorrect. Parliament does indeed have ultimate control over any law that may have been developed by and in the courts, as it can pass legislation having the effect of nullifying common law decisions – the classic case being with the War Damage Act 1965.

Which one of the following statements is correct? In the case of Gillick, the court, though conscious that there was a limited amount of clear precedent to work from, did not feel it could develop the law in this field in a more modern direction given the continued controversial nature of the issue before it. The case of Shaw v DPP has been widely criticised because Mr Shaw was seen to have been misled in advance by incorrect advice about the lawfulness of his plans. In the Malone case the court considered that the law on privacy in the UK at the time was behind the times and would have sought to update it, had Mr Malone had a stronger case on the facts. In the Bland case the law lords effectively transferred the responsibility for making a decision on the family’s application to Parliament. In the Gillick case and that of R v R, the courts clearly showed that they view the common law as a living body of principles, thereby allowing them effectively to modernise the law in responding to new societal standards.

In the Gillick case and that of R v R, the courts clearly showed that they view the common law as a living body of principles, thereby allowing them effectively to modernise the law in responding to new societal standards. Correct. In a number of the speeches in both cases the judges clearly felt that the apparent older common law positions had become deeply anachronistic. Significantly too, the decisions show that the judges considered that they were entitled to remedy these situations.

Which one of the following statements is correct? Even though the UK Supreme Court found against the Prime Minister in this matter, this was a symbolic victory only for the challengers as the court was not able to grant any form of remedy. The Supreme Court’s decision represents a clear overstepping of the constitutional boundaries – in separation of powers terms – by the judiciary. The R (Miller) v Prime Minister involved a challenge to the Prime Minister’s action in triggering Article using prerogative power. The Supreme Court in this case emphasised that the essential functions of Parliament are as a legislative body and as a body charged with the responsibility for holding the executive to account. The UK Supreme Court found that, as the matter involved a highly political subject area, the case was not ‘justiciable’.

The Supreme Court in this case emphasised that the essential functions of Parliament are as a legislative body and as a body charged with the responsibility for holding the executive to account. Correct. The inability of Parliament to carry out these two functions, if the five-week prorogation was allowed to stand, provided the rationale for the court nullifying the prorogation order.

Whichone of the following statements is incorrect? The case of M v Home Office provides a notable example of the courts’ determination to hold offices of state to exacting legal standards. There has been an expansion of the original ‘ultra vires’ principle in judicial review, so that decisions of public bodies can now be challenged on a number of different bases, or “grounds”, including those of unfairness and irrationality. There remain areas of public law today, notably relating to national security, in which the courts will simply refuse to accept any jurisdiction. In the ‘GCHQ’ case, the law lords established that, even though the action taken by the Prime Minister in forbidding trade union membership was ultimately not unlawful, the courts were entitled to scrutinise how she had used her prerogative power in question. In the Fire Brigades Union case the court criticised the Home Secretary’s conduct as it believed that the terms of his newly conceived compensation scheme was unfair to future applicants, including the FBU.

In the Fire Brigades Union case the court criticised the Home Secretary’s conduct as it believed that the terms of his newly conceived compensation scheme was unfair to future applicants, including the FBU. Correct. This is an incorrect review of the case. The broad constitutional reason for the court’s finding, that the Home Secretary’s scheme had been unlawfully introduced, was that it over-rode an existing scheme that had been passed by Parliament, thereby clearly disrespecting and ignoring the will of the sovereign body.

Which one of the following statements is correct? Judicial review is an important process designed to ensure that the decisions of the judiciary are themselves subject to scrutiny in order to ensure the best standards of justice are upheld. The process of judicial review effectively gives an aggrieved party an additional opportunity, as long as certain criteria are fulfilled, of appealing against factual findings by a lower court. Judicial review is a mechanism that has been developed specifically to deal with problems caused by the incompatibility or inconsistency of UK law with both European Union and European Convention on Human Rights standards. All new legislation has to be formally reviewed by senior members of the judiciary under the HRA 1998 to check if it is compatible with the European Convention on Human Rights. The Administrative Court and the higher appeal courts are able to quash secondary legislation if it does not have the requisite legal authority.

The Administrative Court and the higher appeal courts are able to quash secondary legislation if it does not have the requisite legal authority. Correct. This is correct – this is one of the measures that can be taken, where appropriate, by the courts through the judicial review process.

Which one of the following statements is incorrect? The duty on governmental bodies to act legally can also take more sophisticated forms than simply the requirement to act within the boundaries of the powers they have been given. The principle of legality acts as a statutory presumption that seeks to safeguard fundamental constitutional rights. The legality principle means that courts will uphold fundamental rights in all situations, as the higher judiciary perceive this to be their central constitutional role. With the exception of prerogative powers, governmental bodies do not hold powers in their own right; they are able to exercise powers only because Parliament has bestowed them. In its purest form the requirement of legality dictates that governmental bodies must act within the limits of the powers that they have been given.

The legality principle means that courts will uphold fundamental rights in all situations, as the higher judiciary perceive this to be their central constitutional role. Correct. This is not entirely accurate as the courts will not feel able to protect such rights in a situation where Parliament’s express intention has been made crystal clear in legislation. In the Simms case, Lord Hoffmann said that Parliament could legislate contrary to human rights (thereby exercising its sovereignty) but only if it did so using the clearest possible language.

Which one of the following statements is incorrect? The law that applies to England and Wales today is the product of a long period of historical development. It is important that society, or at least a significant majority of the population respects and ‘signs up’ to the law of the day, in order for a legal system to operate effectively. The law and legal sanctions are vital in ensuring civil obedience and discipline in society and therefore in maintaining the power and authority of the government of the day. Law is a system of rules in a state that regulates the actions and behaviour of its citizens and which it may enforce through use of penalties or sanctions. It is important that the law evolves in order to ensure that it remains relevant and practical for members of a society who live in accordance with it.

The law and legal sanctions are vital in ensuring civil obedience and discipline in society and therefore in maintaining the power and authority of the government of the day. Correct Correct. This statement shows an excessive emphasis on law as a means to maintain the powers of the government and not as a means to ensure a cohesive and inclusive society, in which order is maintained through respect for the law.

Whichone of the following statements is incorrect? Historically, the procedural passport for bringing a case in common law was the purchase of a writ from the King’s Chancellor. The common law developed through principles developed locally by individual citizens and so came to be seen as the law of the common man. The phrase ‘common law’ is still often used as a comparator description to distinguish it from other sources of law, such as the law of equity, or other forms, such as legislation. The common law developed in England developed in an evolutionary fashion in the centuries following the Norman Conquest as part of a more centralised system operated through the King’s Courts. ‘Common law’ jurisdictions in the modern world include Scotland; the Republic of Ireland; the USA; Australia; New Zealand; and Canada.

The common law developed through principles developed locally by individual citizens and so came to be seen as the law of the common man. Correct Correct. This is not accurate – the law was seen to be common in the sense that it became more centralised under the authority of the King’s Courts rather than based on local or regional customs and traditions. (The common man and woman had of course very little influence on the shape of the law for many centuries to come.)

Which one of the following statements is incorrect? The basis of the common law was the purchase of specific writs for particular types of legal dispute. In the modern age the phrase ‘common law’ is used to distinguish law developed in the courts from that enacted by Parliament. The emphasis in the early common law courts was on the practical resolution of disputes rather than the building-up of legal principles. Applying for a writ from the early common law courts allowed the individual to argue for resolution of disputes based on new legal principles. Perceived problems with the early common law system helped to encourage an alternative approach developed in the law of equity.

Applying for a writ from the early common law courts allowed the individual to argue for resolution of disputes based on new legal principles. Correct. This statement is not correct as one of the shortcomings of the writ system was that it was based on pre-conceived types of dispute and so tended to inhibit the development of new legal principle. Check your materials on the origins of the common law.

Judges cannot and do not make law; they can only apply and clarify existing set precedents, based on historically established principles, to given situations. The concluding functional role of a judge, having heard a case, is to make an appropriate order, including any applicable remedy. In producing a judgment, it is very important for judges to exercise their judgement. The phrase ‘stare decisis’ describes the system of precedent by which all courts apply the principles previously established by higher courts to a new case with the same set of material facts. In addition to their evaluation of the law and application of it to the facts before them, judges also need to consider which remedy is appropriate in any given situation.

Judges cannot and do not make law; they can only apply and clarify existing set precedents, based on historically established principles, to given situations. Correct. This is not a very accurate reflection of reality, particularly in the modern day. The notion – some might call it the fiction – is that judges ‘discover’ what the law had always been and declare it. However, the reality is that judges have created significant new areas of law, for instance that relating to negligence. (Note, though, that there are certain areas in which judges have to be very cautious about departing from previous precedent.)

Which one of the following statements is correct? If the Court of Appeal today were to depart from a point of principle established by a lower court ten years ago, it would have reversed the earlier case. If the Supreme Court today were to depart from a point of principle set by the Court of Appeal ten years ago, it would have distinguished the earlier case. The art of distinguishing the current case from an earlier one rests on the judge’s ability to differentiate between differing sets of material facts. An obiter dictum relates solely to the situation where one judge in an appeal court dissents from the line taken by his or her fellow judges on the panel. If a court today approves a decision taken by any earlier court, this means that it recognises that the facts of the current case are so similar to those of the earlier case that it will apply the law in the same way this time.

The art of distinguishing the current case from an earlier one rests on the judge’s ability to differentiate between differing sets of material facts.

Which of the following statements best describes the relationship between equity and the common law? Equity and the common law are often complementary but, if there is conflict between the two, equity will prevail. Equity applies instead of the common law if a party to legal proceedings has not acted fairly or honestly. The common law prevails over equity, as it is the original form of law in England. Neither form of law takes precedence so any resolution will be made by the higher appeal courts, ultimately by the Supreme Court. If common law and equity conflict, Parliament will have to decide by passing any necessary legislation.

Correct. Note the Earl of Oxford’s case.

Which one of the following is not an equitable remedy? A declaration. A mandatory injunction. Specific performance. Rescission. Damages for losses caused by negligence.

Damages for losses caused by negligence. Correct. This is a ‘common law’ remedy.

Which one of the following statements is incorrect? Just as the burden of proof in criminal and civil law rests with the party initiating the legal action, so the principle informing the standard of proof is effectively the same for both branches of the law. Although most criminal law actions are initiated in England and Wales by the Crown Prosecution Service, other bodies may also commence criminal proceedings. A (fictitious) case of R v Blenkinsop should not be described vocally as ‘the Crown versus Blenkinsop’ but as ‘the Crown against Blenkinsop’. It is possible in some instances for a defendant who has initially pleaded guilty to reverse that plea by applying to ‘vacate’ it. The criminal law is concerned with the relationship between the individual and the state and is therefore part of the broader field of public law.

Just as the burden of proof in criminal and civil law rests with the party initiating the legal action, so the principle informing the standard of proof is effectively the same for both branches of the law. Correct Correct. This is not an accurate picture of the respective standards of proof which vary notably between criminal and civil law, given the significantly greater sanctions which potentially apply to the former. The standard in criminal law is beyond reasonable doubt.

Which one of the following statements is correct? If a defendant is found guilty in the magistrates’ court, he can appeal and seek a retrial in the Administrative Court. Magistrates’ courts have no involvement at any stage of proceedings relating to murder or manslaughter cases. Offences triable either way can be heard at trial in either the Magistrates or the Crown Court. The prosecuting authorities are able to appeal against any acquittal or sentence of any defendant following a trial in any type of court. The standard of proof for convictions in the Crown Court is more exacting than that in the magistrates’ courts because the potential sanctions are much more onerous.

Offences triable either way can be heard at trial in either the Magistrates or the Crown Court.

Which one of the following statements is incorrect? If passed by Parliament, government bills and private members’ bills ultimately enjoy the same legal status. However, the prospects of the former being enacted are far higher than the latter, as they represent official government policy and (as long as the ruling party has a majority) have the weight of the government party’s voting block behind them. Acts of Parliament are divided up into different ‘parts’, each of which will have a larger number of ‘sections’ and often ‘sub-sections’. The usual way in which legislation comes into operation is through a commencement provision in the relevant Act, giving the relevant Secretary of State the power to name a commencement date by issuing a statutory instrument (‘S.I.’) The front ‘page’ of an Act of Parliament contains both a short and a long (explanatory) title as well as the date of the royal assent. A Private Act of Parliament means that it has been drafted by an individual MP on either side of the House without official government sponsorship.

A Private Act of Parliament means that it has been drafted by an individual MP on either side of the House without official government sponsorship. Correct Correct. This confuses a Private Act with a successful private member’s bill. A Private Act should instead be contrasted with a Public Act, the latter relating to a matter of general public policy and the former to a specific, often local need for statutory approval, such as a large infrastructure project.

Which one of the following statements is incorrect? A bill may only be introduced into the House of Commons. The second reading provides an opportunity for the relevant part of Parliament to discuss the amendments made to the bill by the other chamber. The first reading is a mere formality where the bill's title is announced. The Committee stage of a bill takes place after the second reading. The House of Lords’ powers are ultimately restricted to the review, proposed amendment and delay of legislation; an outright veto is not possible.

A bill may only be introduced into the House of Commons. Correct Correct. A bill can be introduced in either House, though certain parliamentary rules or conventions determine which House in certain situations, for example bills on taxation.

Which one of the following statements is correct? Statutory instruments are free-standing pieces of legislation that Parliament can pass to flesh out the substance of existing legislation. There is a general consensus that the process of scrutiny, largely built around the practice of the affirmative procedure, allows Parliament to exercise an effective method of control over secondary legislation created by government. A by-law is a form of secondary legislation which local authorities and some other associations use to create local rules and regulations, the authority to create which is initially approved by Parliament. Once a form of secondary legislation has received parliamentary approval, it enjoys the same status and sanctity as primary legislation. Parliamentary processes exist to allow MPs to scrutinise and to amend secondary legislation created by government departments.

A by-law is a form of secondary legislation which local authorities and some other associations use to create local rules and regulations, the authority to create which is initially approved by Parliament. correct incorrect There is a general consensus that the process of scrutiny, largely built around the practice of the affirmative procedure, allows Parliament to exercise an effective method of control over secondary legislation created by government. Incorrect. This is a distinct over-statement. Clearly this is ultimately a matter of opinion but the consensus amongst judges and legal academics is very much the opposite, particularly given that the vast majority of SIs and other forms of secondary legislation are only subject to the minimal scrutiny of the negative procedure. Once a form of secondary legislation has received parliamentary approval, it enjoys the same status and sanctity as primary legislation. Incorrect. This is not true, as the courts are able to invalidate or ‘quash’ secondary legislation in contrast to their inability (in the UK) to quash primary legislation.

Which one of the following statements is incorrect? It is fair to say that some of the older terminology, notably the so-called ‘mischief rule’, has effectively become redundant in the modern age, and is only of historic significance. The modern judiciary approaches the task of statutory interpretation with an open mind both to the ordinary meaning of words in legislation and to the wider and more contextual purpose of the Act in question. Constitutional responsibility for interpreting statute rests jointly with Parliament and the judiciary. In addition to so-called ‘rules’ of statutory interpretation, the courts can apply certain ‘linguistic presumptions’ to aid them in the proper construction of legislation. The so-called ‘rules’ of statutory interpretation are essentially matters for academic debate and are not addressed or referred to as such in actual court judgments

Constitutional responsibility for interpreting statute rests jointly with Parliament and the judiciary. Correct. This is not correct – once legislation has been passed by Parliament, it is the constitutional function of the courts to determine its meaning.

Which one of the following statements is incorrect? The modern purposive approach has partially been influenced by the culture of European jurisprudence and its generally teleological approach. The four established rules of statutory interpretation have more or less equal relevance and applicability in modern cases. The purposive approach to statutory interpretation is employed across the board nowadays and is equally applicable to all areas of societal regulation. In the case of Adler v George, it was the absurdity of a literal reading of the legislative provision that engaged the “golden rule” and persuaded the court to imply a more logical and sensible reading of s. 3 of the Official Secrets Act 1920. The old ‘mischief rule’, with its emphasis on the prior problem in the law that the relevant legislation was designed to solve, has to all intents and purposes been subsumed within the modern purposive approach.

The purposive approach to statutory interpretation is employed across the board nowadays and is equally applicable to all areas of societal regulation. Correct. Though it is clear that this contextual approach is far more common in the modern era, the scope of its application will be varied by the courts, depending on the nature of the legal question before it.

Which one of the following statements is correct? The Latin phrase ejusdem generis refers to the situation in which the court will consider words in a particular provision in the context of the Act itself. The Latin phrase expressio unius est exclusio alterius relates to the court considering open lists containing words of a similar kind or nature. Where general words follow specific words, the presumption of ejusdem generis means that the general words are interpreted so as to restrict them to the same kind of matters or objects as the preceding specific words. The use by the courts of linguistic presumptions is very much a feature of cases approached in a purposive way. The case of Inland Revenue Commissioners v Frere the court was able to interpret what other forms of payment were referred to in s. 169 of the relevant Act in relation to the phrase: “interest, annuities and other annual payments”.

Where general words follow specific words, the presumption of ejusdem generis means that the general words are interpreted so as to restrict them to the same kind of matters or objects as the preceding specific words.

Which one of the following statements is correct? The concept of a public authority under the HRA brings within it courts and tribunals as well as Parliament itself, so all these bodies are obliged to act compatibly with ECHR rights. The only form of defendant that a claimant can take action against under the HRA is a central government department or a local authority. If a court considers that a statutory provision is prima facie incompatible with an ECHR right, it must make that provision compatible by reading in the necessary words to achieve this. Whenever a court considers that a provision in domestic legislation is incompatible with an ECHR right, it has a duty to alert the government to this by issuing a formal ‘declaration of incompatibility’. The fact that courts are categorised as public authorities under the HRA has significantly aided the development of privacy law in the UK.

The fact that courts are categorised as public authorities under the HRA has significantly aided the development of privacy law in the UK. Correct. The courts’ interpretation of the HRA has led to the creation of a so-called indirect ‘horizontal effect’ through which the courts can assess disputes over alleged media infringement of individuals’ privacy.

Which one of the following statements is incorrect? Article 8 is often described as the ECHR right with the broadest scope as it provides protection for personal privacy, for a family life, for privacy of the home, as well as for correspondence and other modern forms of communication. While there is no formal pecking order of rights in terms of their respective importance, the ECHR is framed in a way that means that the state can justifiably interfere with different sets of rights to a varying degree. The right to liberty is a key right but one that the state can justify interfering with, as long as it does so in a way that is prescribed by law, is in pursuit of a legitimate aim, and is ‘necessary in a democratic society’. Prior to the passing of the Human Rights Act in 1998, UK citizens did have access to the protection of the ECHR, but they had to petition the European Court of Human Rights specifically to request access. There are only a few ECHR rights, notably Article 3, that can be described as ‘absolute’ in nature.

The right to liberty is a key right but one that the state can justify interfering with, as long as it does so in a way that is prescribed by law, is in pursuit of a legitimate aim, and is ‘necessary in a democratic society’. Correct. This is wrong, as the right to liberty (Art. 5) is a limited right and not a ‘qualified’ one. The conditions for interference in the question relate specifically to qualified rights.

Which one of the following statements is incorrect? The immediate impulses behind the creation of the European Convention on Human Rights (‘ECHR’) were the atrocities of the Second World War period and the United Nations’ ‘Universal Declaration of Human Rights’. As the UK has a ‘dualist’ legal system, it is necessary for any treaty obligations which the UK wishes to be directly enforceable in domestic courts to be ‘incorporated’ firstly, by passing an Act of Parliament to this effect. The European Commission is the body responsible for supervising the work of the European Court of Human Rights as well as the more strategic role of promoting and supporting democratic development in post-communist central and eastern Europe. The modern emphasis on human rights can be traced back to a number of historical inspirations, ranging from the school of natural law and the period of liberal Enlightenment in the 18th century to actual historical movements and events, associated particularly with revolution in the American states and in France. For the majority of European states signing the European Convention (as an international treaty) meant that the rights contained within it had become part of their national law.

The European Commission is the body responsible for supervising the work of the European Court of Human Rights as well as the more strategic role of promoting and supporting democratic development in post-communist central and eastern Europe. Correct. This is not accurate, as the European Commission is one of the core institutions of the European Union (‘EU’). The body responsible for the Convention and the European Court of Human Rights (ECtHR’) etc is the Council of Europe. Note that membership of the Council is considerably larger than that of the EU – it contains states such as Russia, Turkey, Serbia, Norway, Switzerland and the UK.

How does a Regulation differ from a Directive under EU law? Only ONE option is CORRECT. Regulations are binding legislative acts while Directives are purely advisory. Regulations are solely a product of UK law while Directives derive from EU law. Regulations are directly applicable while Directives have to be implemented. Regulations are primary legislation while Directives are secondary legislation. Regulations lay down detailed rules while Directives only lay down objectives.

Regulations are directly applicable while Directives have to be implemented. Correct – Article 288 provides that Regulations are directly applicable. This means that Regulations apply in the Member States without those Member States having to enact their own legal measures to implement or give effect to them. In contrast, Directives always have to be implemented by the Member States. This means that the States have to enact their own legal measures to incorporate or to give effect to them in their national law. This follows from the way that Directives are defined in article 288 TFEU.

Which ONE of the following statements CORRECTLY defines a preliminary ruling? A ruling by a national court on whether leave should be granted to appeal to the Court of Justice. A ruling by a national court on the relevance of EU law to the legal proceedings. A ruling by the Court of Justice commencing infringement proceedings against a Member State. A ruling by the Court of Justice on the admissibility of a legal application made to it. A ruling by the Court of Justice on a question of law referred to it by a national court.

A ruling by the Court of Justice on a question of law referred to it by a national court. Correct – The national court will refer a legal question on EU law to the Court of Justice. The Court of Justice will make a ruling on that question. That is called a preliminary ruling.

The European Union was first established by which ONE of the following? The Treaty of Rome 1957 The Maastricht Treaty 1992 The Single European Act 1986 The European Communities Act 1972 The Lisbon Treaty 2007

The Maastricht Treaty 1992 Correct – This treaty first established the European Union.