Public (SQE) Flashcards
Which one of the following statements is incorrect?
The judiciary is responsible for the adjudication of legal disputes and the enforcement of the law.
The executive is responsible for the running of government and the creation and implementation of policy.
The legislature is the supreme law-making body in the UK.
The judiciary is responsible for how statute is interpreted.
The executive is responsible for proposing and approving all legislation.
The executive is responsible for proposing and approving all legislation.
Correct
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 a product of the common law.
The UK’s constitution is seen to be ‘flexible’ as it is overwhelmingly governed by conventions.
The UK’s constitutional rules very largely derive from custom and practice.
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 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
Correct.
Which one of the following five statements is false?
The UK constitution is significantly reliant on conventions.
The UK constitution has been designed specifically to comply with the principle of separation of powers.
The UK constitution is generally seen to be a ‘flexible’ one.
The UK constitution is unentrenched.
A notable proportion of the rules in the UK constitution are ‘unwritten’.
The UK constitution has been designed specifically 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 impose rigorous standards of behaviour in public life that must 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 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 must 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 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 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 Chancellor of the Exchequer carries a ‘Budget Box’ (a leather dispatch box) to each Budget speech.
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.
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?
The judiciary should not be politically active.
Government ministers should not criticise judgments made by the courts.
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.
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.
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 is not a key function of the UK Parliament?
Scrutinise public expenditure and taxation.
Determine sentences in relation to the most serious criminal offences.
Propose amendments to legislation.
Extract information from the executive and hold it to account on its policies and actions.
Debate and scrutinise proposed legislation.
Determine sentences in relation to the most serious criminal offences.
Correct. This is not a function of Parliament: all criminal sentencing is done by the judiciary.
Which one of the following statements is correct?
The powers of government departments exclusively originate from the Royal Prerogative.
Secretaries of State are senior government ministers who have the right to sit in Cabinet and who head their respective departments of state.
The exercise of prerogative powers must be personally approved by the monarch before the executive can make use of them.
When considering the role and actions of the executive, this refers to central government only, in the form of departments run by Secretaries of State.
If the government acts in excess of its powers, the mechanism for challenging government action is by joint action by the House of Commons and the House of Lords.
Secretaries of State are senior government ministers who have the right to sit in Cabinet and who head their respective departments of state.
Correct.
Whichone of the following statements is incorrect?
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 CRA transferred judicial functions from the Lord Chancellor to the Lord Chief Justice.
The judiciary had been an independent force in the constitution long before the reforms introduced by the CRA 2005.
The CRA brought about the creation of the UK Supreme Court.
The CRA introduced a new method of judicial appointment based on an independent Appointments Commission.
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.
incorrect
The judiciary had been an independent force in the constitution long before the reforms introduced by the CRA 2005.
Incorrect. This is an accurate description. The CRA had the effect of formally separating the highest court in the land from the legislature (i.e. the House of Lords as the second chamber of Parliament), but it is wrong to draw from this that the UK judiciary was not independent until that time. It was effectively independent from the rest of the state as long ago as 1701 when the Act of Settlement confirmed security of tenure for all judges, meaning that they could not be dismissed by the government.
Which one of the following statements is false?
The United Kingdom’s constitution is most accurately described as uncodified.
A constitution is designed primarily to legitimise the actions and power of the Executive.
The separation of powers is an important principle that informs the relationship and balance of power between the bodies of state.
Constitutions are designed to regulate the functions and powers of the key bodies of state.
Constitutions define and regulate the relationships between the state and its citizens.
A constitution is designed primarily to legitimise the actions and power of the Executive.
Correct. The statement is false. A constitution should have a wider function than this, including to determine the limits on executive power and to lay out the rights and responsibilities of citizens.
Which one of the following legal documents or developments has not played a significant role over the span of UK history in placing limits on monarchical power?
The Case of Proclamations (1610)
The Act of Settlement (1700)
The Bill of Rights (1689)
The Domesday Book (1086)
The Magna Carta (1215)
The Domesday Book (1086)
Correct. This was a detailed survey of England and some parts of Wales, the purpose of which was to see how much money could be raised in taxes.
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 judiciary in the UK has two main constitutional functions, namely the interpretation of statute and the development of the common law.
The modern judiciary in the UK invariably applies an activist approach to its adjudicative role.
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.
Which one of the following statements is incorrect?
The balance between the three bodies of state in the UK is an informal one, largely the product of constitutional development and political initiatives over a long historic period.
There is a sufficient separation of powers balance in the UK to maintain its status as a constitutional state.
The legislative role of the executive in the UK is purely to suggest and propose new legislation; it has no law-making powers of its own.
Separation of powers is not an absolute concept – there are notably different forms or degrees of attachment to the theory in different democratic and constitutional states.
A well-ordered and balanced state is generally viewed as one in which there are three bodies of state with their own distinct functions and different sets of personnel.
The legislative role of the executive in the UK is purely to suggest and propose new legislation; it has no law-making powers of its own.
Correct. 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.
Which one of the following statements is correct?
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 case of Evans, the Supreme Court established that the Attorney General was not entitled to impose the certificate, vetoing the disclosure of Prince Charles’ letters, because his position as the government’s chief legal advisor meant that this offended the principle of separation of powers.
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 Bland case the law lords effectively transferred the responsibility for making a decision on the family’s application to Parliament.
In the case of Evans, the Supreme Court found against the Attorney General on the basis that he had not proved his case for non-disclosure of Prince Charles’ letters to a sufficient degree before the Upper Tribunal.
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 incorrect?
As it is Parliament which is responsible for primary legislation, this means that the executive does not have any direct law-making function - Parliament holds sole control over this element of our constitution.
It has been argued by commentators that governments with sizeable Commons majorities can be seen as a weaker element in the UK’s constitutional framework.
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 usually are.
There is a significant amount of overlap between the executive and Parliament, especially in terms of their membership.
As it is Parliament which is responsible for primary legislation, this means that the executive does not have any direct law-making function - Parliament holds sole control over this element of our constitution.
Correct. This statement is incorrect: the executive carries out legislative functions (albeit under the authority of primary legislation which is passed by Acts of Parliament) by the creation of secondary legislation in the form of rules, orders and regulations, which largely take the form of statutory instruments.
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 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.
The Attorney General’s role remains a controversial one in relation to the principle of separation of powers.
Correct
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 incorrect?
Secondary legislation often takes the form of statutory instruments.
The affirmative resolution procedure represents the weakest form of scrutiny of secondary legislation available in Parliament.
Secondary legislation can also be referred to as delegated or subordinate legislation.
Several thousand statutory instruments are made by the government each year.
If the government does not have the power from a primary Act of Parliament to make secondary legislation, it can be said to have acted ultra vires and therefore unlawfully.
The affirmative resolution procedure represents the weakest form of scrutiny of secondary legislation available in Parliament.
Correct. This gives a misleading picture – this procedure does not offer particularly high levels of scrutiny, but it does involve the active scrutiny by MPs and Lords of such legislation, in contrast to the looser negative procedure.
Which one of the following statements is incorrect?
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.
The proceedings of Parliament cannot form the basis of a case in the independent courts.
The judiciary are protected from being sued in the civil courts even if they have failed to show a complete knowledge of the law.
Security of tenure for judges was not formally established in the UK until the Supreme Court Act of 1981 provided for this in terms.
The changes in the appointment system for judges has arguably enhanced the accessibility of the profession and the independence of the judiciary from any form of political influence.
Security of tenure for judges was not formally established in the UK until the Supreme Court Act of 1981 provided for this in terms.
Correct. This is not accurate, as this vital safeguard for judicial independence was enacted shortly after the Glorious Revolution through the Act of Settlement of 1701.
Which one of the following statements is correct?
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.
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.
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 (‘ECHR’).
The Administrative Court and the higher appeal courts are able to quash secondary legislation if it does not have the necessary legal authority.
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 Administrative Court and the higher appeal courts are able to quash secondary legislation if it does not have the necessary 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?
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.
All three of the devolved ‘nations’ within the UK have their own legislative bodies and executive bodies.
‘Reserved matters’ are those which remain within the legislative competence of the UK Parliament.
The programme of devolution introduced since 1998 means that the UK can no longer be classified as a unitary state.
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.
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.
Whichone of the following statements is incorrect?
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.
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 must firstly obtain the prior approval of the relevant legislature.
The Sewel Convention not only applies to the relationship between Westminster and Edinburgh but also to the relationship between Westminster and the other devolved legislatures of the United Kingdom.
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.
Section 28(7) of the Scotland Act 1998 is the key provision of that Act, 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 must firstly obtain the prior approval of the relevant legislature.
Correct. This is not entirely accurate, based on the word “must”. This is because this ‘rule’ is only a conventional one and therefore not legally binding.
Which one of the following statements is correct?
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.
Any decisions relating to the extent and scope of devolved powers are determined in the highest appeal court in the relevant part of the UK.
The position of Scotland in the UK is unique, as it is the only constituent part with a different legal system and jurisdiction.
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 legally 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.
Correct. This comes within the jurisdiction that the UK Supreme Court has to determine such disputes over the extent of devolved powers.
Which one of the following statements is incorrect?
Direct reference to the rule of law as a constitutional principle in the first section of the Constitutional Reform Act 2005 does not mean that this creates a statutory standard or defined requirement that the UK state has to live up to.
It is necessary according to all conceptions of what a ‘rule of law’ state should be for that society to be governed by liberal, democratic principles with a strong degree of protection for human rights.
It is desirable in rule of law theory for legislation to be framed as clearly and as narrowly as possible, but the realities of modern public administration have meant that an increasing amount of legislation has been produced which gives significant discretionary powers to government.
Equality before the law is a vital feature of the principle of the rule of law although it is subject in reality and practice to some marginal, though still noteworthy exceptions.
The War Damage Act 1965 was an entirely valid piece of legislation. However, it was a notable example of government and Parliament overriding a significant feature of the principle of the rule of law, as it had retrospective application.
It is necessary according to all conceptions of what a ‘rule of law’ state should be for that society to be governed by liberal, democratic principles with a strong degree of protection for human rights.
Correct
Correct. This is not a fully accurate statement, as there are some formalist (or procedural) conceptions of the rule of law that do not prescribe any particular substantive features or qualities for the law, merely that there is a functioning and independent legal system administering law that is clear and certain.
Which one of the following statements is correct?
Equality before the law is only a minor and very modern feature of the rule of law.
Equality before the law is a characteristic only of the so-called “substantive” school of thought on the rule of law.
The principle of parliamentary privilege is not completely consistent with the ideal and practice of equality before the law.
The UK can describe itself as a “rule of law” state because the law is equally applicable to all citizens in the state.
The rule of law is undermined because judges of all ranks are immune from prosecution and civil liability.
The principle of parliamentary privilege is not completely consistent with the ideal and practice of equality before the law.
Correct
Correct. This statement is accurate, as the inability to sue MPs for defamation for things they say in Parliament, for instance, means that the general law does not apply entirely equally to all citizens. (Note that there may be very good reasons for why parliamentary privilege is valuable for other reasons.)
Whichone of the following statements is incorrect?
The legality principle acts as a statutory presumption that seeks to safeguard fundamental constitutional rights and freedoms.
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 directly bestowed them.
The ‘legality principle’ means that courts are bound to uphold fundamental rights in all conceivable situations, as the judiciary perceive this to be their central constitutional role.
In its purest form the rule of law dictates that governmental bodies must act within the limits of the powers that they have been given.
The legality of governmental actions is challengeable through the courts using the process of judicial review.
The ‘legality principle’ means that courts are bound to uphold fundamental rights in all conceivable situations, as the 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 correct?
The courts are completely powerless in protecting the rule of law when they are obliged to interpret statute which appears to undermine fundamental rights.
There is a potential for friction to occur between the principles of parliamentary sovereignty and the rule of law, notably the more modern, substantive variety.
All forms of law in the UK have equal status and authority in creating rules by which citizens live.
When we refer to the rule of law, we are merely referring to the status and quality of statutory law.
The principles of parliamentary sovereignty and the rule of law sit harmoniously as the two key guiding principles of the UK constitution.
There is a potential for friction to occur between the principles of parliamentary sovereignty and the rule of law, notably the more modern, substantive variety.
Correct. This can occur when Parliament passes a statute which may undercut some of the features of the rule of law – for instance a discriminatory piece of legislation or one that restricts rights and freedoms.
Which one of the following statements is correct?
The heightened scrutiny given by judges when interpreting discretionary powers is a reflection of their view that the greater the discretion given to governmental bodies, the higher the potential for misuse of such powers.
In the Rossminster case the appeal courts were united in the view that the steps taken by the Inland Revenue against the company’s officers were unlawful because the discretionary powers given to the Revenue were not sufficiently clear and particularised.
The principle of the rule of law requires that discretionary powers are seen as inherently illegitimate by the courts.
The majority decision in the case of Liversidge v Anderson reflects current broadly held judicial views in relation to the level of judicial deference that it is appropriate to show to the government.
As long as governmental bodies act within the parameters of the powers given to them by Parliament, courts cannot scrutinise whether they have used the powers for the specific policy objective that Parliament sought to promote.
Which one of the following statements is incorrect?
The devolved parliaments and assemblies of the UK can be described as subordinate legislatures.
The devolution legislation is legally irreversible.
The Sewel Convention exercises a significant political influence on the operation of devolution but is not legally enforceable.
The devolution legislation is legally reversible, but it seems politically highly unlikely that the Scotland Act will be repealed.
The original devolution relating to Scotland, Wales and Northern Ireland was passed by Parliament in 1998-99 in the early years of the Blair government.
The devolution legislation is legally irreversible.
Correct
Correct. This is not an accurate picture as key provisions in all the devolution legislation – such as s. 28(7) of the Scotland Act – specifically allow Westminster to be able to legislate for the relevant devolved country.
Which one of the following statements is incorrect?
The Human Rights Act 1998 is no more securely in place than any other piece of legislation on the statute books.
Even though a stronger system of rights protection has been established in the UK over the last two decades, the values and mechanisms of the HRA have not been entrenched in the constitutional system.
The Human Rights Act 1998 represents a lesser threat to parliamentary sovereignty than that which was posed by the ECA 1972.
If the violation of a human right has occurred as a result of, or has been enabled by, an existing piece of domestic legislation, the courts effectively have a choice of two avenues to take.
A declaration of incompatibility is a significant power that has been given by Parliament to the judiciary but one which ultimately has more of a political effect than a legal one.
The Human Rights Act 1998 is no more securely in place than any other piece of legislation on the statute books.
Correct. This statement is not entirely accurate. The Act is far from being entrenched, as it is clearly subject to possible express repeal. However, it is arguably a little more securely in place than the majority of other pieces of legislation, as it is seen now as a “constitutional statute” and cannot therefore be impliedly repealed by inconsistent new legislation.
Whichone of the following statements is correct?
In the case of R v A (Complainant’s Sexual History, the court did not consider that the provision in the Youth Justice and Criminal Evidence Act 1999 was incompatible with the European Convention.
In the case of R v A (Complainant’s Sexual History) Lord Steyn interpreted the relevant provision in such a way as to make it compatible with article 6 of the European Convention.
In the case of A & Others the law lords did not feel that it was appropriate to make a declaration of incompatibility.
In the case of R v A (Complainant’s Sexual History), Lord Steyn made a declaration of incompatibility in relation to the provision in question in the Youth Justice and Criminal Evidence Act 1999.
The section 2 HRA requirement to take the ECHR jurisprudence into account means that the UK Supreme Court is obliged to accept all cases decided in the European Court of Human Rights (“ECtHR”).
In the case of R v A (Complainant’s Sexual History) Lord Steyn interpreted the relevant provision in such a way as to make it compatible with article 6 of the European Convention.
Correct. Lord Steyn used the new s. 3 powers under the HRA in exactly this way.
Which one of the following statements is incorrect?
Prerogative power is described as residual in nature, simply because those areas of state power that used to be governed by the prerogative have fallen into disuse as they are historically no longer relevant.
It has been the courts’ role for several hundred years to determine under common law whether the government of the day possesses a particular prerogative power or not.
The most influential definition of the nature and scope of prerogative power was provided in the late 19th century by Professor A. V. Dicey.
Prerogative powers pertain to the Crown but are nowadays mostly exercised by high-ranking members of the Executive.
Prerogative power can be distinguished from statutory power on the basis of where it originated from.
Prerogative power is described as residual in nature, simply because those areas of state power that used to be governed by the prerogative have fallen into disuse as they are historically no longer relevant.
Correct. This is not accurate as a general statement though it may be around the margins. Those areas of power that are no longer part of the prerogative have instead mostly come to be regulated by newer statutory powers.
Whichone of the following statements is incorrect?
The power of the government to negotiate treaties is not the only aspect of the broad foreign policy or foreign affairs prerogative.
The ability of the Home Secretary to give pardons to those convicted of crime is a product of the prerogative and not of statutory power.
The most significant of the prerogative powers still ‘owned’ by the Executive is that of “defence of the realm”.
The granting and revocation of passports was formerly a prerogative power but is now governed by statute.
The government and administration of the few remaining British Overseas Territories scattered around the world are still regulated by prerogative power.
The granting and revocation of passports was formerly a prerogative power but is now governed by statute.
Correct. The granting and revocation of passports continues to be a Ministerial prerogative power.
Which one of the following statements is correct?
The Crown is not bound by the terms of legislation unless the statutory provision in question expressly states that it should be, or it is deemed to be by “necessary implication”.
There are essentially two types of prerogative power – those that have been expressly approved by Parliament and those that have not.
In the modern age, in accordance with the principle of the rule of law, the Monarch no longer has any personal legal immunity.
The only way in which use of the prerogative can be controlled is through challenges in the courts.
Those few prerogative powers that are still technically exercised by the Monarch today – such as giving the royal assent to legislation – require her to exercise her own discretion free from any influence by government politicians.
The Crown is not bound by the terms of legislation unless the statutory provision in question expressly states that it should be, or it is deemed to be by “necessary implication”.
Correct. This remains the case – the matter is dealt with by the courts by applying a statutory presumption against the Crown being bound.
Which one of the following statements is incorrect?
The courts have historically been very careful in controlling the boundaries of prerogative power.
Tension between the Crown / Executive and both Parliament and the courts over the use of prerogative powers has been a feature of the British constitution for centuries.
It is important in the modern age for the use of prerogative power to be controlled because these powers have not been shaped or legitimated by Parliament.
The only effective means of controlling prerogative power is through general acceptance of a firm constitutional convention determining how the power in question should be used.
Constitutional conventions can have some influence over how prerogative powers are used as they generally tend to have the effect of modifying how the strict legal power is actually used.
The only effective means of controlling prerogative power is through general acceptance of a firm constitutional convention determining how the power in question should be used.
Correct
Correct. This statement does not reflect the relative importance of the courts in subjecting the government’s use of prerogative power to scrutiny through the judicial review process. Arguably, the political control mechanisms through constitutional conventions are more intangible and less clearly defined, as well as not being directly enforceable.
Which one of the following statements is correct?
In the case of Attorney General v De Keyser’s Hotel, the court upheld the right of the military authorities to stick to the terms of the historic power of defence of the realm.
The courts regard prerogative power and statutory power as equally enforceable sources of law, unless they both operate at the same time in relation to the same subject matter.
In the case of Attorney General v De Keyser’s Hotel, the military authorities were given free rein by the court to apply either prerogative or statutory power.
The court’s only consideration in the Attorney General v De Keyser’s Hotel case was what was in the national interest during a time of war.
The so-called De Keyser principle was very significant in its day, but it has subsequently been superseded by more modern legal developments.
The courts regard prerogative power and statutory power as equally enforceable sources of law, unless they both operate at the same time in relation to the same subject matter.
Correct. This is the consequence of the De Keyser principle that determines that, in this situation where a new statutory power has adopted the same ground as a historic prerogative power, the statutory power should prevail.
Which one of the following statements is correct?
Following the government’s defeat in the Miller v S o S for Exiting the EU case, it was obliged to have a vote in the Commons to obtain formal approval for its intended course of action in triggering Article 50.
In Miller v S o S for Exiting the EU, the challengers argued that the ‘Brexit’ process was unlawful, given the failure of the Prime Minister to apply the correct Article 50 process.
The case of Miller v S o S for Exiting the EU can be seen to fit broadly in a line from De Keyser through to Fire Brigades Union, as it confirmed that significant changes to statutory rights and, on a higher plane, to the UK’s constitutional arrangements could not be brought about solely by use of prerogative power.
In Miller v S o S for Exiting the EU, the challengers argued that the government no longer had the prerogative power to negotiate treaties involving the European Union.
In the Fire Brigades Union case, the Home Secretary’s use of prerogative power to introduce a new tariff-based compensation scheme directly overrode the existing operational scheme legislated for earlier by Parliament.
The case of Miller v S o S for Exiting the EU can be seen to fit broadly in a line from De Keyser through to Fire Brigades Union, as it confirmed that significant changes to statutory rights and, on a higher plane, to the UK’s constitutional arrangements could not be brought about solely by use of prerogative power.
Correct. This represents the general consensus of the majority of the Supreme Court justices.
Which one of the following statements is incorrect?
In GCHQ the court effectively said that, in relation to the reviewability of how prerogative powers were used, the ultimate issue was the nature of the power concerned and not its source.
Until the GCHQ judgment it had not been categorically confirmed that the courts could review the manner in which the executive used its prerogative powers.
The law lords decided in GCHQ that there was no reason in principle why the courts should not be able to judicially review how the executive used its prerogative powers.
The issue at hand in the GCHQ case was whether the Minister for the Civil Service had the powers she claimed to be able to regulate the working conditions of the civil servants.
Underlying the law lords’ view in GCHQ that prerogative powers should be reviewable in principle was the fact that statutory powers had been reviewable for many years.
The issue at hand in the GCHQ case was whether the Minister for the Civil Service had the powers she claimed to be able to regulate the working conditions of the civil servants.
Correct. This is not an accurate picture of the case. There was no doubt that the Minister (also the Prime Minister) had the necessary powers – the key point of contention was how she had used them.
Which one of the following statements is incorrect?
The basis of the challenge made by the civil service trade union in the GCHQ case was that the Prime Minister had banned their union membership.
The way in which the Prime Minister had banned trade union membership was seen to have been unfair.
The basis of the challenge made by the civil service trade union in the GCHQ case was that the Prime Minister had imposed a ban on their trade union membership without any prior consultation.
The prerogative power on which the PM was relying in GCHQ was that relating to the regulation of the terms and conditions of civil service ‘employment’.
The ban on trade union membership was imposed on civil servants specifically working in sensitive intelligence work at the government listening centre in Cheltenham.
Control of the prerogative — GCHQ
Which one of the following statements is correct?
Following the main ratio in GCHQ, the law lords confirmed the new orthodoxy that all forms of prerogative power were now justiciable in the courts.
The ratio of GCHQ meant that the Prime Minister lost the case overall.
Even though the court found against the Prime Minister on the main issue of principle in the case, she was nevertheless still able to defend the claim successfully.
In the obiter comments following the main ratio in GCHQ Lord Roskill gave the view that the courts should remain wary about reviewing use of prerogative powers if these were the monarch’s personal powers rather than executive prerogative powers.
In their obiter comments following the main ratio in GCHQ the law lords gave their view that the courts should no longer determine justiciability based on the nature of the power in question but on its source.
Even though the court found against the Prime Minister on the main issue of principle in the case, she was nevertheless still able to defend the claim successfully.
Correct. This is an accurate summary of the “result” of the case. this was because the law lords accepted the PM’s argument that there had been a justifiable public interest factor in not consulting the unions before the ban was imposed.
Which one of the following statements is incorrect?
The challenger in R v SoS for Foreign Affairs ex p Everett lost his case because the court respected the authority of Lord Roskill’s finding in GCHQ that matters relating to foreign affairs and diplomacy were non-justiciable.
In the case of R v Home Secretary ex p Bentley, Derek Bentley’s family was attempting to challenge the Home Secretary’s decision not to grant Derek Bentley a posthumous pardon.
In R v SoS for Foreign Affairs ex p Everett the court looked to the nature of the power that the Foreign Office had used when refusing the challenger’s passport rather than its origin or source.
In R v Home Secretary ex p Bentley the court differentiated between the granting of full pardons and consideration of other questions falling within the overall prerogative power of mercy, such as the availability of alternative though less substantial remedies such as conditional pardons.
The approach taken by the courts in both the Everett and Bentley cases illustrated a significant progression in judicial policy since the discussion of the justiciability of certain prerogative powers by Lord Roskill in the GCHQ case.
The challenger in R v SoS for Foreign Affairs ex p Everett lost his case because the court respected the authority of Lord Roskill’s finding in GCHQ that matters relating to foreign affairs and diplomacy were non-justiciable.
Correct. This statement is inaccurate in two respects. Firstly, it has now been widely accepted that Lord Roskill’s list was part of an obiter discussion and so does not represent an authority that has to be followed. More directly, however, the court in Everett did not conclude that the issue – relating to the refusal to renew his passport – was non-justiciable.
Whichone of the following statements is incorrect?
In the Abbasi case the detainee’s family did have a legal interest, in addition to their obvious personal concern, in the form of a legitimate expectation of diplomatic assistance.
The difference in the courts’ approach to the Everett andAbbasi cases relates to the different sources of power that the government was using in each.
In general terms the case of Abbasi illustrates how the modern courts will seek to enable challengers to contest important government decisions through the JR mechanism but that they will vary the intensity of review according to the nature of the issue before them.
The challengers won the case of R v SoS for Foreign Affairs ex p Abbasi, because they were able to show that the UK Foreign Office had conducted its negotiations with the United States in an unlawful and negligent way.
In the Abbasi case, the UK government was challenged for allowing the suspect to be tried under international law following his transfer to US custody.
The challengers won the case of R v SoS for Foreign Affairs ex p Abbasi, because they were able to show that the UK Foreign Office had conducted its negotiations with the United States in an unlawful and negligent way.
Correct. This is not an accurate summary of the nature or result of the case.
Which one of the following statements is correct?
In the case of Smith, Allbutt and Ellis v Ministry of Defence, the Supreme Court struck out the challengers’ cases, as it considered it vital to avoid judicialising warfare and undermining the principle of combat immunity.
In the case of R (Campaign for Nuclear Disarmament) v Prime Minister of the UK, the court found that a challenge to the lawfulness of the decision to take military action in Iraq in 2003 was a non-justiciable matter.
The House of Lords found against the challengers in R v Ministry of Defence ex p Smith and Others because the judges considered that the appropriate intensity of review to be applied in the context of the case was a very low one.
Any case involving consideration of military policy or operation will still be seen to be non-justiciable, even in the modern courts.
The case of R v Ministry of Defence ex p Smith involved a challenge to the policy of banning homosexuals from service in the armed forces based on a purported legitimate expectation that all serving personnel had a right to remain members of the armed services in the absence of any disciplinary findings made against them.
Control of the prerogative — post GCHQ
Your client wants to challenge a decision of the (fictitious) English Croquet Council (the “Council”) to ban him from playing croquet for six months due to unacceptable behaviour. The Council was set up by a group of local croquet clubs around fifty years ago in order to regulate croquet. It governs the rules of the game; the codes of conduct under which your client received a sanction; and the relationships between local clubs and itself. All Council members, including your client, agree to be subject to its rules. It is the sole regulator of croquet in the UK.
Which of the following summarises the most accurate advice to your client on whether the Council’s decision is amenable to judicial review?
Select one alternative:
The Council’s decision is not amenable to judicial review because the Council is a private body.
The Council’s decision is amenable to judicial review because its functions and powers are public in nature and, if it did not exist, the government would need to step in to regulate croquet.
The Council’s decision is not amenable to judicial review because the Council’s functions have not been contracted to it by a public body.
It is likely that the Council’s decision will be amenable to judicial review because its powers associated with the regulation of a sporting activity are governmental in nature.
It is unlikely that the Council’s decision is amenable to judicial review. On the facts, the rules affecting the client come from an agreement between clubs, their members and the Council, giving rise to private rights and remedies.
It is unlikely that the Council’s decision is amenable to judicial review. On the facts, the rules affecting the client come from an agreement between clubs, their members and the Council, giving rise to private rights and remedies.
This question requires knowledge about the type of decisions that can be challenged in judicial review, known as their amenability to judicial review. These are not simply decisions taken by public bodies. They can also include decisions taken by ostensibly private organisations if the decision involves matters that are of a sufficiently public nature. However, in this situation, involving a sporting association, it is unlikely that the decision taken will be seen to involve a public function. Also, it is clear that the clubs and members have agreed to abide by the organisation’s own rules. It is therefore unlikely that this matter will be challengeable in public law through JR.
Your client wants to challenge a decision of the local District Council to refuse his application for a music venue licence for his café on the High Street. The scheme, allowing local authorities to issue licences, is governed by a provision in an Act, which states:
“In deciding whether to issue a music licence, local authorities must take into account the interests and opinions of residents and businesses who are situated close to the venue.”
The client had submitted several letters of support with his application from local businesses, residents living in and around the town centre, and musical performers. These letters were not mentioned by the District Council in its refusal letter.
On the basis of the information you have, which one of the following summarises the most accurate advice to your client on whether and how he can challenge the decision on the judicial review ground of illegality?
Select one alternative:
It is likely that the District Council acted unlawfully in the sense that its decision was ultra vires its powers.
The District Council’s decision suggests that it failed to take into account a mandatory consideration when assessing your client’s application and so acted unlawfully.
The District Council is not likely to have acted unlawfully in this situation as the Administrative Court does not have the right to scrutinise how it conducted the application process.
It is likely that the District Council has fettered its discretion because it failed to take into account the letters of support submitted by your client, and so acted unlawfully.
Your client will have strong grounds to argue that the District Council made an error of law in relation to a misunderstanding of the wording in the relevant provision.
The District Council’s decision suggests that it failed to take into account a mandatory consideration when assessing your client’s application and so acted unlawfully.
This question requires knowledge of the different types of challenge that can be made under the judicial review ground of illegality. One of the key sub-categories involves the duty on bodies making public law decisions to take into account relevant considerations, and conversely to ignore irrelevant ones. This local authority does not appear to have followed a duty in the statute, which is phrased in mandatory terms, and so has acted unlawfully.
Your client is the managing director (“MD”) of a construction company which submitted an unsuccessful bid to build a new library for a local authority. The MD is very disappointed because his company had far greater experience of these kinds of projects than the only other competitor company. He has also discovered that his costing was lower than the competitor’s.
A few weeks after the decision was made, the MD was surprised to hear that the chair of the competitor company was a long-standing friend of one of the three members of the local authority committee which made the decision.
On the basis of the information you have, which of the following statements summarises the most accurate advice on your client’s prospects of challenging the local authority’s decision on the ground of procedural impropriety?
Select one alternative:
Your client has a potentially strong claim based upon direct bias.
Your client has a potential indirect bias claim, but it will not succeed because there is no evidence that the friend on the decision-making committee said or did anything that proved they were actually biased.
Your client has a potentially strong claim based upon indirect bias.
Your client has a potential indirect bias claim, but it will not succeed because only one member of the decision-making committee could have been biased.
It is unlikely that your client would succeed in a claim because it is not apparent that the member of the decision-making committee had a financial interest in the competitor company.
Your client has a potentially strong claim based upon indirect bias.
This question requires knowledge of how public law decisions can be challenged on the ground of bias and of the two different forms of bias. There is a clear connection here between the two individuals involved. The decision-maker does not have a direct, financial interest in the matter (or rather there is no evidence of that which has been disclosed) so this cannot be a matter of direct bias. However, the closeness of their connection gives rise, on an objective basis, of there being a real possibility of bias which is the test for indirect bias. It does not matter that the individual was one of a three-person panel – that is enough to give rise to this ‘real possibility’.
A production company has been refused a classification certificate for a film because the national licensing authority considered the film to be blasphemous and to contain obscene material contravening various statutory provisions.
The company seeks advice in relation to a possible action under article 10 of the European Convention on Human Rights (‘ECHR’).
Which of the following statements represents the best advice to the company, relating to its freedom of expression and whether it can be interfered with in this way?
Select one alternative:
Freedom of expression can be interfered with by the licensing authority but only if the restriction on it is a proportionate one.
Freedom of expression is an absolute right and so the licensing authority’s actions represent a clear breach of article 10.
Freedom of expression only protects political and journalistic free speech and so there would be no protection under article 10 in relation to the banning of the film.
Freedom of expression can be interfered with by the licensing authority but only if the interference is designed to protect national security or to prevent violence towards others.
Freedom of expression can be interfered with by the licensing authority but only if the restriction on it is prescribed by law and fulfils a legitimate aim in a proportionate way.
Freedom of expression can be interfered with by the licensing authority but only if the restriction on it is prescribed by law and fulfils a legitimate aim in a proportionate way.
This question requires knowledge of the nature of article 10 ECHR and the circumstances is which it can be justifiable for the state or a public authority to interfere with it. It is important firstly to appreciate that article 10 is a qualified right and not an absolute one. And also that expression covers a very wide range of expression, not just political. It is not possible on the facts to determine if there has been a definitive breach of article 10 so the question anticipates knowledge of the three hurdles which it is necessary for the state to overcome to justify the restriction, in this case the refusal of the certificate. These are that the restriction must be ‘prescribed by law’ and applied in a proportionate way in pursuit of a legitimate aim. The list of relevant legitimate aims is contained in article 10(2) and are not confined to national security or safety.
It has been disclosed in the press that the Secretary of State for Health (the SoS) has been involved in heated arguments with the Chancellor of the Exchequer because substantial cuts in the NHS budget are being threatened, and several thousand nursing staff may have to be made redundant. This matter is about to come to a head at the next Cabinet meeting when the final decision has to be made.
Which of the following statements best reflects how the SoS is able to act under the relevant convention and, if a final decision is made to make the cuts, what his realistic options would be?
Select one alternative:
Under the convention of collective ministerial responsibility, the SoS is able to argue as strongly as he wishes against the cuts, as long as he does not later disclose the arguments in Cabinet externally. However, if he loses the debate in the Cabinet meeting, there will have to be a vote of no confidence in the government because of the extent of the disunity in Cabinet.
Under the convention of individual ministerial responsibility, the SoS has to argue against the cuts because they would undermine the effectiveness of the department for which he is responsible, if implemented. However, if he loses the debate, he will be obliged either to accept the cuts and support them as a member of the government or to resign his ministerial role.
The principle of collective ministerial responsibility does not apply in this situation because it is already public knowledge that there is disagreement in Cabinet and so the SoS can disclose details of the Cabinet discussions after the meeting.
Under the convention of collective ministerial responsibility, the Prime Minister is already under an obligation to sack the SoS, as the news that there is disagreement in Cabinet has leaked out.
Under the convention of collective ministerial responsibility, the SoS is able to argue as strongly as he wishes against the cuts, as long as he does not later disclose the arguments in Cabinet externally. However, if he loses the debate, he will be obliged either to accept the cuts and support them as a member of the government or to resign his ministerial role.
Under the convention of collective ministerial responsibility, the SoS is able to argue as strongly as he wishes against the cuts, as long as he does not later disclose the arguments in Cabinet externally. However, if he loses the debate, he will be obliged either to accept the cuts and support them as a member of the government or to resign his ministerial role.
This question requires an understanding of the nature and extent of the convention on collective (as opposed to individual) ministerial responsibility. The key to it is to appreciate, firstly, that Cabinet discussions on the issue are intended to allow ministers to exchange their views and opinions openly but, equally, to maintain confidentiality of the matters discussed. Secondly, once a communal decision has been made, it is very important – in order to achieve confidence in government – for the ministers to maintain a united front, failing which there is a moral obligation on any openly dissenting minister to resign.
A celebrity author of a self-help relationship book, entitled ‘How to Make Your Marriage Succeed’, has been photographed by a tabloid newspaper on a public street, kissing and holding hands with a man who is not her husband. The tabloid’s subsequent enquiries have revealed that they are having an extra-marital affair.
The author would like to issue proceedings against the tabloid newspaper for an infringement of her privacy contrary to article 8 of the European Convention on Human Rights (‘ECHR’).
Which of the following statements represents the best advice to your client and the reason why?
Select one alternative:
She would not be able to make a claim, because freedom of expression will always take precedence over the right to a private life and so the newspaper’s article 10 rights would automatically supersede hers.
It would be possible for her to make a claim but only if she had a pre-existing contractual or other relationship with the newspaper and could show that it had breached her confidence.
She would not be able to make a claim, because the Human Rights Act 1998 only provides protection for individuals against public authorities that interfere with their Convention rights and the newspaper is clearly not such an authority.
It is unlikely that she will succeed in her claim as a court will probably not consider her to have a reasonable expectation of privacy, as she had acted openly in this way in a public place. Even if it were found that she did have such an expectation, it is likely that the court would find that there was a public interest factor in the story that the newspaper could point to, in order to justify publication.
It is very likely that the court would accept that she had a reasonable expectation of privacy in this situation. However, it is also likely that the court would find that there was a public interest factor in the story that the newspaper could point to in order to justify publication, so it is unlikely she would succeed.
It is unlikely that she will succeed in her claim as a court will probably not consider her to have a reasonable expectation of privacy, as she had acted openly in this way in a public place. Even if it were found that she did have such an expectation, it is likely that the court would find that there was a public interest factor in the story that the newspaper could point to, in order to justify publication.
This question relates to the ‘indirect horizontal effect’ that has been brought about the Human Rights Act, notably the status of the courts as public authorities. In principle a claim would be possible in this scenario, but it is unlikely to succeed for two reasons. Firstly, an individual will only have article 8 privacy rights engaged, if they are seen to have a ‘reasonable expectation of privacy’ and that is unlikely in this public situation. Secondly, even if a court deemed there was a reasonable expectation of privacy, it is likely to apply the balance between the individual’s privacy rights and the tabloid’s article 10 rights in favour of the latter, as there appears to have been a public interest in the story.
A man has been charged with a serious criminal offence and is awaiting trial at the Crown Court. He is anxious about his prosecution and would like advice about the process.
Which of the following statements best describes the burden and standard of proof applicable at his trial?
Select one alternative:
It is for the defendant to show that he is not guilty. If the jury is satisfied that sufficient doubt has been cast on the prosecution’s case, it has a duty to acquit the defendant.
It is for the prosecution to prove that the defendant is guilty. If the jury is satisfied on balance that the defendant committed the offence, they should return a guilty verdict.
It is for the prosecution to prove that the defendant is guilty. If the jury is satisfied beyond reasonable doubt that the defendant committed the offence, it should return a guilty verdict.
It is for the defendant to prove that he is not guilty. If the jury is satisfied beyond reasonable doubt that the defendant has been able to do this, it can acquit him.
It is for the prosecution to prove that the defendant is guilty. If the jury considers that there is even the slightest possibility that the defendant did not commit the offence, they should acquit him.
It is for the prosecution to prove that the defendant is guilty. If the jury is satisfied beyond reasonable doubt that the defendant committed the offence, it should return a guilty verdict.
This question requires a knowledge of both the burden of proof operating in the criminal law and the degree of proof required. It is vital to appreciate that the burden is on the prosecution and the defendant does not have disprove his alleged guilt. The standard of proof required is beyond reasonable doubt and not ‘on balance’ or there being ‘even the slightest possibility”.
A civil case has reached the Court of Appeal and it has become apparent that there is a lack of clarity over relevant precedent established by an earlier Court of Appeal judgment.
In which of the following circumstances will the current Court of Appeal be able to depart from a previous Court of Appeal judgment on the same area of law?
Select one alternative:
Where the earlier Court of Appeal decision had led to significant commercial or economic inconvenience.
Where the earlier Court of Appeal decision had been made by a panel of judges without expertise on the subject area.
Where it is aware of significant critical academic reaction to the earlier Court of Appeal decision.
Where it considers that societal values have changed in the interim period and it would be justifiable to develop the law in a different direction.
Where it considers that the earlier Court of Appeal decision had been made per incuriam by failing to pay due regard to a relevant statutory or common law authority.
Where it considers that the earlier Court of Appeal decision had been made per incuriam by failing to pay due regard to a relevant statutory or common law authority.
This question requires knowledge of the system of precedent and, more specifically, of the flexibility that has been brought in to allow some departure from historic precedents. In relation to the Court of Appeal the current court is able in defined circumstances to depart from a decision made by an earlier incarnation of the court. This is not allowed where the modern court feels that the law should be modernised in a general sense but instead for more technical reasons. Here, an acceptable reason for doing so would be if the earlier Court of Appeal had acted per incuriam by not paying due regard to a statutory or case law authority that was relevant at the time.
A company director wishes to challenge the lawfulness of a statutory instrument which imposes onerous conditions on part of the company’s business, affecting its profitability.
Which of the following statements best describes whether and how the lawfulness of the statutory instrument can be challenged?
Select one alternative:
It is not possible to challenge the lawfulness of the statutory instrument, as this is a form of legislation passed by Parliament, but the Administrative Court may read in words to the provision in order to render it lawful.
A statutory instrument is a form of secondary legislation and it is possible to challenge its lawfulness in the Administrative Court. If the challenge is successful, the remedy is a declaration that the statutory instrument is incompatible with the parent Act under which it was made.
A statutory instrument is a form of secondary legislation and it is possible to challenge its lawfulness in the Administrative Court. If the challenge is successful, the Administrative Court can quash the provision in the Act under which the statutory instrument was made.
It is not possible to challenge the lawfulness of the statutory instrument as this is a form of legislation passed by Parliament and such an outcome would undermine the basic principle of parliamentary sovereignty.
A statutory instrument is a form of secondary legislation and it is possible to challenge its lawfulness in the Administrative Court. If the challenge is successful, the Administrative Court is able to quash the statutory instrument.
A statutory instrument is a form of secondary legislation and it is possible to challenge its lawfulness in the Administrative Court. If the challenge is successful, the Administrative Court is able to quash the statutory instrument.
This question requires knowledge that primary and secondary legislation have different statutes. A statutory instrument (SI) is a form of secondary or delegated legislation, and it is capable of challenge in court, unlike primary legislation which cannot be directly challenged, given the central importance of parliamentary sovereignty. It is also important to note that, if the Administrative Court does not feel that the SI has been made in accordance with the original ‘parent’ Act, the remedy would be for the court to quash the SI.
A civil case has reached the Court of Appeal and there is a clear conflict of opinion between the parties over applicable precedent on a particular point of law.
One of the parties wishes to rely on an obiter statement made by a Justice of the Supreme Court ten years previously which was part of a speech outlining the law at that stage but was not central to the ratio of that case.
Which of the following statements best describes the status of the Justice’s obiter statement in relation to the current Court of Appeal case?
Select one alternative:
The Justice’s obiter statement will only have some influence in shaping the judgement in the current case if it had been supplemented by a reasonable number of concurring opinions in the meantime.
The Justice’s obiter statement will have a binding effect in relation to the judgement of the current case as it was made by a judge in a superior court.
The Justice’s obiter statement is likely to have significant persuasive effect in relation to the current case, especially if it related to a closely connected legal issue, but it will not be binding.
Answered and correct
The Justice’s obiter statement has no application at all to the current case, as it was not central to the ratio established ten years ago and so has no precedent value.
The Justice’s obiter statement will only have minimal impact on the current case in framing the parameters of the debate between the parties.
The Justice’s obiter statement is likely to have significant persuasive effect in relation to the current case, especially if it related to a closely connected legal issue, but it will not be binding.
This question relates to the significance and status of obiter comments in relation to the development of the common law. It is very important here to appreciate that obiter comments cannot be directly binding on (inferior) courts, adjudicating on the same area. However, they can prove influential in shaping the decisions of future courts, especially if they relate closely to the subject matter at hand, and so they can have a persuasive effect.
A foreign national, who travelled to the UK to seek asylum, has had his claim rejected and arrangements for his removal have been put in place. New evidence has, however, been identified which will support an appeal against the man’s refusal of asylum.
The court has made an order that the man should not be removed from the UK until the court has given further consideration to this new evidence. The Home Office has stated that the Home Secretary is not willing to allow the man to remain in the UK and that the court has no right to prevent his removal.
Which of the following statements best reflects the constitutional legal position in this situation?
Select one alternative:
The executive branch cannot be subject to any form of control by the judiciary and therefore the removal cannot be prevented in these circumstances.
The courts will be prepared to exercise oversight and control over the executive in relation to this matter and may find the Home Secretary’s office to have been in contempt of court if the order is ignored.
The courts will be prepared to exercise oversight and control over the executive in relation to this matter and, if the order is ignored, will immediately confirm the success of the individual’s application for asylum.
The courts will be prepared to scrutinise the action by the Home Secretary but are likely to defer to the Home Secretary’s expertise in relation to cases concerning asylum and so the individual’s prospects of success in resisting removal from the country will be minimal.
The ultimate decision to grant or refuse asylum will be seen by the courts as a political matter and so, if the order is ignored, they will not be prepared to intervene any further.
The courts will be prepared to exercise oversight and control over the executive in relation to this matter and may find the Home Secretary’s office to have been in contempt of court if the order is ignored.
This question relates to the general area of separation of powers in the UK constitution and in particular the relationship between the executive and the judiciary. In order to ensure that the ‘rule of law’ is followed, it is important that the courts scrutinise the actions of the executive to ensure that it is acting in accordance with the law. In some situations, where the government is given discretion to act, the courts will defer to the expertise of the executive. However, that is not the issue here where the court has made a clear order which the Home Office is intent on ignoring. The court cannot override the Home Office’s decision and substitute its finding for the Home Office’s but it can find the Home Office in contempt of court.
You are advising an educational research centre which has applied for a grant from a national funding agency to help it employ a research assistant to analyse data from GCSE and A-level exams. The client’s application has been turned down, as it has been told that it is not a qualifying institution. The client wants to challenge the refusal of its application.
The process is governed by the following provision from [fictitious] regulations: “The agency will distribute grants to institutions undertaking research into programmes leading towards degree, Masters, post-graduate doctorate or other similar educational qualifications.”
Which of the following represents the best advice to your client?
Select one alternative:
It is unlikely that the court will quash the decision reached by the agency based on the linguistic presumption expressio unius est exclusio alterius, as the client is an institution not specifically named or classified in the provision.
It is likely that the court will quash the decision reached by the agency based on the linguistic presumption ejusdem generis, as the client’s application also relates to research into educational qualifications.
It is unlikely that the court will quash the decision reached by the agency, as the linguistic presumption ejusdem generis points towards an interpretation of qualifying institutions as those researching graduate and postgraduate qualifications and not qualifications taken at secondary school level.
The court would apply the literal rule and determine that the client is seeking to research into educational qualifications and so be eligible for a grant.
The court will consider the purpose of the regulations which is to encourage educational research and follow the purposive form of interpretation favoured by all modern courts, thereby quashing the decision of the agency.
It is unlikely that the court will quash the decision reached by the agency, as the linguistic presumption ejusdem generis points towards an interpretation of qualifying institutions as those researching graduate and postgraduate qualifications and not qualifications taken at secondary school level.
This question requires a knowledge of the maxims that apply to statutory presumptions that can be made by the courts when interpreting statutes with particular features. In particular, this provision contains a form of open list of ‘similar’ educational qualifications, and so it is most likely that the maxim “ejusdem generis” will be applied. As the named qualifications in the list all involve tertiary education, it seems unlikely that Parliament would have intended the client’s research – involving secondary education – to be granted funding.
The Secretary of State for Health has therefore announced his intention to introduce a Bill into Parliament transferring responsibility for dealing with serious public health emergencies from the Scottish Government to Westminster, even though this is currently a devolved matter in Scotland.
Which of the following statements best describes the legal consequences of this proposed change?
Select one alternative:
It will be legally possible for the UK government to carry out this change. This is because the Sewel Convention is not enforceable. Therefore, Westminster can legislate in this way even without the political approval of the Scottish Parliament.
It will be legally possible for the Scottish Parliament to resist this change but only if it passes an Act of the Scottish Parliament expressly repealing the legislation proposed in Westminster.
It will not be legally possible for the UK government to carry out this change, as the Sewel Convention is an enforceable legal document with constitutional status equal to that of the European Convention on Human Rights, meaning that the UK Parliament is prevented from legislating on devolved Scottish matters.
It will be legally possible for the UK government to carry out this change, but it will firstly have to persuade the Westminster Parliament to repeal the devolution legislation passed since 1998, thereby reverting to the pre-devolution position.
It will be legally possible for the UK government to carry out this change but only if the Westminster Parliament complies with the Sewel Convention and firstly obtains a legislative consent motion passed by the Scottish Parliament.
It will be legally possible for the UK government to carry out this change. This is because the Sewel Convention is not enforceable. Therefore, Westminster can legislate in this way even without the political approval of the Scottish Parliament.
This question relates to the relationship between the UK Parliament and government in Westminster and the devolved administrations, in this instance, Scotland. It is important to appreciate that the Sewel Convention would apply in this instance as the UK government is seeking to introduce legislation that cuts across a devolved area. It should therefore initially ask the Scottish Parliament to pass a legislative consent motion. However, it is equally important to know that, because this is just a convention and therefore not legally enforceable, Westminster can effectively override this and introduce the Bill in the manner proposed.
Which one of the following suggested definitions best describes the concept of equity as it is used in the English legal system?
A body of rules which began in the 15th century.
An area of law which provides discretionary remedies.
A body of rules and principles which began in the Court of Chancery.
A body of rules and principles designed to remedy the rigidity of the common law.
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.
Correct. This is effectively the original purpose and function of this branch of law. The other answers do not describe the essence or purpose of the law on equity as effectively.
Which one of the following hypothetical situations best illustrates a judge distinguishing a precedent?
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 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 an old precedent established by the Court of Appeal was wrongly decided, and so do not apply it to the case under consideration.
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 current High Court case, the judge finds that the material facts, though similar in nature to that of an old Court of Appeal case which established a precedent on a particular point of law, are sufficiently different to justify not being bound by that precedent.
Correct. Note that the judge is the person responsible for assessing the extent and scope of the old precedent, as it should currently apply. This is very much a matter of judicial skill and the ability to vary the level of abstraction gives the judge a degree of freedom to depart from an old precedent if s/he considers it appropriate. The other answers do not show a correct or as clear an understanding of the relevant terminology used in the analysis of case law as this one does.
After a serious road traffic accident, the driver of the car who caused the accident faces a number of legal problems. Unfortunately, his careless driving has brought about the death of a young child and the parents wish to claim bereavement damages as well as to see the driver prosecuted.
Which of the following statements best describes the key features of the legal processes that are likely to be embarked upon?
The driver of the car will be prosecuted for the relevant offence by the Crown Prosecution Service and, if found, beyond reasonable doubt to be guilty, he will be sentenced by the court and be ordered to pay bereavement damages to the parents.
The driver of the car will be prosecuted for the relevant offence by the Crown Prosecution Service but, if he pleads guilty at an early stage in proceedings, he will have the benefit of being sentenced in a Crown Court in front of a jury. He will also face a civil law claim in relation to his negligence and, if found on the balance of probabilities to be responsible, he will liable in damages.
The driver of the car will be 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.
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 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.
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.
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 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 Commercial Court section of the High Court. Any procedural hearings will be heard by a Master and then the first instance trial will be heard by a High Court judge, with any appeal going to the Civil Division of the Court of Appeal.
It is likely that the case will start in the 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 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 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 Queen’s Bench Division of the High Court. Any procedural hearings will be heard by a Master and then the first instance trial will be heard by a High Court judge, with any appeal going to the Civil Division of the Court of Appeal.
Correct
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.
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. 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.
A professional footballer has been convicted in the Magistrates’ Court for drink-driving. He wishes to appeal on a technical legal matter relating to the interpretation of the relevant statute governing the offence. As he is very well-known and therefore the conviction is a very serious matter in relation to his career, he has applied for his case to bypass the High Court and be heard in the Court of Appeal.
A very complex clinical negligence case has been heard by the High Court, 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.
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 very complex clinical negligence case has been heard by the High Court. The defendant health authority, which lost the case, and which faces liability for more than £5 million in damages, wishes to dispute the legal basis on which the judgment was reached, as this involved a novel point of law and potentially has implications for numerous other health authorities. The health authority therefore applies for permission to appeal directly to the Supreme Court.
Correct. This is the correct leapfrog process, as it bypasses the Court of Appeal. It also involves an issue of law that is a matter of public importance. The other answers do not correctly or adequately describe the process.
Which one of the following statements best describes the linguistic presumption that should be used in the context to aid the process of statutory interpretation?
In order to assist in 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 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 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.
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 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 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.’
Correct. This effectively deals with the situation where there is a ‘closed list’ of descriptive items, as in this statute – the presumption is that the tax applies only to those matters listed. Additionally, this assists a literal approach to interpretation as the court is seeking to achieve a proper construction of the words in the statute. The other answers do not correctly or adequately describe the correct application of the various linguistic presumptions that aid the process of statutory interpretation.
Which one of the following statements best describes the purposive approach to statutory interpretation?
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.
Judges will look at the purpose of the Act in question when construing the statute.
It is possible to see the origins of the purposive approach in the older ‘mischief rule’.
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.
Correct. Judges do not automatically use a purposive approach. However, particularly in the modern day, they naturally tend to assess the overall context within which the Act came about so that, if a literal reading of the words in the statute does not produce a plausible interpretation, they will be informed by this wider context. The other answers did not fully or clearly describe the context in which, and the objective for which, the courts use a purposive approach to statutory interpretation.
incorrect
Judges will consider the overall design and configuration of the Act in question. However, if they consider that this creates a situation where a literal interpretation of the legislation is incoherent or absurd, they will be entitled to apply a different interpretation to the words so that implementation of the Act becomes more workable and effective.
Incorrect. This approach is closer to the old ‘golden rule’. Revisit your materials on statutory interpretation and your understanding of the different ‘rules’ on or approaches to interpretation that can be taken by the courts. Revisit your materials on statutory interpretation and your understanding of the different ‘rules’ on or approaches to interpretation that can be taken by the courts.
Which one of the following statements best describes the relevant stage of the legislative process?
The 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 third reading of the bill allows MPs a final chance to amend a bill and to negotiate over its final shape and content.
The second reading of a bill gives MPs the greatest chance to scrutinise it in detail.
The report stage of the bill involves a specially selected legislative committee making final amendments to the bill.
Which one of the following statements best describes the relevant stage of the legislative process?
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 third reading of the bill allows MPs a final chance to amend a bill and to negotiate over its final shape and content.
The second reading of a bill gives MPs the greatest chance to scrutinise it in detail.
The report stage of the bill involves a specially selected legislative committee making final amendments to the bill.
The committee stage of a bill gives MPs appointed to the relevant legislative committee the chance to scrutinise the detail of the bill and to propose necessary amendments.
Correct. Note that MPs are selected on the basis of party strength in the Commons to scrutinise an individual bill. Also note that this type of committee used to be called a ‘standing’ committee and is sometimes still referred to as such. The other answers do not correctly describe in all respects the legislative process operating within Parliament.
Which one of the following statements best describes the key characteristics of secondary legislation?
Secondary legislation 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.
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 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 can be referred to as delegated or subordinate legislation.
The most common form of delegated authority given to the government in an Act of Parliament relates to the commencement date for applying the Act, either as a whole or in different stages.
Secondary legislation is not made by Parliament itself but usually by government departments under powers given to it by Parliament in primary legislation. It is subject to varying degrees of initial political scrutiny but can be judicially reviewed by the courts to ensure that it has been created within the powers originally approved by Parliament.
Correct. Note that the original powers are given by Parliament in a so-called Parent Act. The other answers do not correctly or adequately describe key features of secondary legislation including the degree to which it is scrutinised before implementation.
An incident recently occurred in which a young man was shot dead by the police as they feared he was brandishing a dangerous weapon in a shopping mall and behaving in an alarming way. It transpired that he had a serious mental health condition and that he was waving a long plastic knife and not a real one. The man has left a widow and a young child who do not have any income, as he was the only one in employment. The Department for Work and Pensions (‘DWP’) has refused anything other than the most basic form of benefit assistance, because it claims that the man’s actions effectively brought about his own death.
Which one of the following statements best describes the judicial bodies that his widow is likely to encounter in investigating and challenging what has happened?
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 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.
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 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.
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.
Correct
Correct. A statutory inquiry could be ordered in this situation but is only likely to happen if there are exceptional features to this incident or there has been a spate of such incidents, suggesting systemic problems in police handling of such matters. The other answers do not demonstrate as clear a picture of the likely involvement of the key statutory judicial bodies and tribunals.
Which one of the following best describes the mix of sources of constitutional rules in the UK?
The UK’s constitutional ‘rules’ comprise a mixture of legal rules, which come from constitutional statutes, EU law and the common law (including the recognition of prerogative powers), as well as non-legal rules, which comprise conventions, the law and customs of Parliament, and academic opinion.
The UK’s constitutional ‘rules’ comprise a mixture of legal rules, including constitutional statutes, EU law and the common law, as well as non-legal rules including conventions, the law and customs of Parliament, and academic opinion.
The UK’s constitutional ‘rules’ comprise a mixture of legal rules, including constitutional statutes, EU law and the common law, as well as non-legal rules including conventions, the law and customs of Parliament, and academic opinion, all of which have equal status.
The UK’s constitutional ‘rules’ comprise a mixture of legal rules, which come from statute, and the common law, as well as non-legal rules, which comprise constitutional conventions, the law and customs of Parliament, and academic opinion.
The UK’s constitutional ‘rules’ primarily derive from non-legal sources, notably constitutional conventions, which are far more prevalent in the UK than in other states, although these rules have been supplemented in recent decades by a number of “constitutional statutes”.
The UK’s constitutional ‘rules’ comprise a mixture of legal rules, which come from constitutional statutes, EU law and the common law (including the recognition of prerogative powers), as well as non-legal rules, which comprise conventions, the law and customs of Parliament, and academic opinion.
Correct.
At the recent (fictitious) general election, the new government party obtained a majority of seats on the basis of a manifesto in which “the need for enhanced security measures” was emphasised strongly. A few months afterwards the new Home Secretary sponsored legislation in relation to anti-terrorism powers. This passed through the House of Commons, but the Bill was met with opposition in the House of Lords which rejected the Bill on its second reading.
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 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 since the House of Lords is an unelected body, it is unconstitutional for it to refuse to consent to the Bill.
The Home Secretary should impress on the House of Lords that it is a legal obligation 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 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 has a constitutional obligation under the Salisbury convention to respect the mandate of the Commons, meaning that it should consent to the Bill when it is presented before it on the next occasion.
correct
incorrect
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.
This is a point that may be argued by the government in the Commons, but it is rather intangible and not a recognised convention as such.
Which one of the following statements best describes the essential character of the UK’s constitution?
The UK’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 primary source of constitutional law in the UK is case law, although other sources of constitutional law, such as Acts of Parliament and constitutional conventions also play an important role.
The UK is a constitutional state with no formal constitution. Its lack of entrenched constitutional rules in a founding document is significant but this does not mean to say that there are no legal or conventional protections preserving constitutional values and standards.
The UK effectively has no constitution at all, given the absence of any codified and entrenched set of constitutional rules and protections.
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
Which one of the following statements is an accurate description of a key aspect of the constitutional structure of the United Kingdom?
Ministers who intentionally breach the Ministerial Code will be directed by the Speaker of the House to resign.
The powers of the UK Supreme Court are more limited than that of the US Supreme Court, as it is not possible for the UK Supreme Court to invalidate primary legislation.
Certain constitutional conventions, such as the Sewel convention, which regulates aspects of the relationship between England and Scotland, have such significance that the courts will be willing to enforce them in certain circumstances.
The existence of prerogative powers, being powers held in the name of the monarch, and including the power to declare war, means that the political power of the monarch in the UK is significant.
In the UK the Executive is responsible for the enactment of law. The legislature is responsible for scrutinising and (where necessary) amending the law, and the judiciary is responsible for the administration of justice according to the law.
The powers of the UK Supreme Court are more limited than that of the US Supreme Court, as it is not possible for the UK Supreme Court to invalidate primary legislation.
correct
incorrect
Certain constitutional conventions, such as the Sewel convention, which regulates aspects of the relationship between England and Scotland, have such significance that the courts will be willing to enforce them in certain circumstances.
This is incorrect. While certain constitutional conventions may have particular importance in allowing the UK’s constitution to function, constitutional conventions are not legally enforceable. This was confirmed in the case of Miller in which the Supreme Court stressed that conventions such as the Sewel convention are political rather than legal in nature.
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 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.
Before deciding to delegate powers under the Regs, the Chancellor was legally obliged to report to Parliament and request the necessary authority to delegate.
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. 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 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.
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.
Which one of the following statements best describes the constitutional structure of the United Kingdom?
The constitutional reforms introduced in the years after 1998 have clearly created new forms and levels of representation in Edinburgh, Cardiff and Belfast but there have been few concrete practical effects of the reforms.
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.
Since 1998 the process of devolution has been a developing one with significant practical effects on government and the division of responsibilities between the constituent countries of the UK, albeit one which has not changed the ultimate centralised sovereignty of Westminster.
In spite of a number of constitutional reforms carried out since 1998, the structure of the UK has essentially remained the same since the Irish Free State left the UK in the early 1920s.
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.
Since 1998 the process of devolution has been a developing one with significant practical effects on government and the division of responsibilities between the constituent countries of the UK, albeit one which has not changed the ultimate centralised sovereignty of Westminster.
correct
Which one of the following statements best describes the effect of the Constitutional Reform Act 2005 (‘CRA’) on the UK’s separation of powers?
Although the CRA did a great deal to bolster the sense of independence and the prestige of the UK judiciary it had little or no effect on the other two bodies of state.
The CRA introduced a significant provision in that it provided for judicial security of tenure, providing members of the judiciary with crucial protection from politically motivated dismissal by the executive.
The changes brought about by the CRA were purely symbolic and were of little practical consequence.
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.
There was effectively no separation of powers to speak of within the UK constitution before the CRA created a set of more precise mechanisms for dividing power up between the three bodies of state and for recognising the independence of the judiciary.
The CRA clearly did not introduce the idea of an independent judiciary to the UK but it arguably enhanced the status of the higher judiciary as well as introducing a series of reforms that ironed out some of the more confusing functional overlaps in the UK’s traditional separation of powers model.
correct
The court has just made an order putting a temporary stop on the deportation of an asylum seeker who has been given permission to appeal against his imminent planned removal from the country. Enquiries in the Home Office reveal that the individual is in a holding cell at Gatwick Airport and the flight is due to leave. The matter is referred to the personal office of a Minister of State in the Home Office which directs that the deportation should go ahead as it is too late to delay the process.
After the asylum seeker’s lawyers issue an application to court to review these actions, which one of the following steps is the court most likely to take?
The court is likely to find that the office of the Minister in the Home Office had been in contempt of court.
The court is likely to decline to make any formal order but is likely to declare that Parliament ought to amend the law so that the Home Office could not behave in this way in the future.
The court is likely to show judicial deference, and decline to make any order, as the Home Office Minister and staff in his office would be seen as best placed to make decisions in relation to deportation.
The court is likely to 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 would only make any order if it was satisfied that the Minister was personally involved in the making of the decision as it would be inappropriate to hold the Minister responsible for a power which had been exercised by another government official.
The court is likely to 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.
The principle of separation of powers is motivated by the need to limit and control the power of the different bodies of state. Which one of the following statements best describes the means by which the UK’s executive branch can be controlled by the judiciary?
The UK’s 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 in the UK constitution ensures that there is a significant degree of separation between the legislature and the executive, as this is crucial in achieving the protection of liberty as described by Montesquieu.
The UK’s executive is potentially very powerful, but the judiciary is able to exercise a degree of control and oversight through the process of judicial review, which has expanded notably in the last 40 years or so. Significantly, this also permits the courts to invalidate secondary legislation, created by the executive, if this is deemed outside or ‘ultra vires’ the powers given by Parliament.
Given the expansion in the remit of judicial review in the last 40 years or so, the UK’s higher judiciary is able to effectively check the executive in all respects, providing a crucially important barrier against the occasionally over-mighty reach of government.
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 executive is potentially very powerful, but the judiciary is able to exercise a degree of control and oversight through the process of judicial review, which has expanded notably in the last 40 years or so. Significantly, this also permits the courts to invalidate secondary legislation, created by the executive, if this is deemed outside or ‘ultra vires’ the powers given by Parliament.
The court is presented with a public law dispute which involves consideration of a particular social issue on which Parliament has not yet enacted any legislation. The only threads of legal authority that can be traced come from 19th century cases, at a time when social attitudes were far more ‘traditional’.
When adjudicating on the issue, which of the following represents the most likely approach that the court will take and the most accurate explanation for doing so?
The court will look to see if there is any legislation on a comparable area and seek to apply that by analogy to the case before it.
The court is entitled to develop common law principles and will attempt to do so by seeking to take into account contemporary social attitudes as long as there is a reasonable degree of consensus over these.
The court has the right to develop the common law in any way it chooses but, because the matter is one that relates to social policy, will automatically find in favour of the individual against the ‘government’ side in the dispute.
The court has the right to develop the common law in any way it chooses but, because the matter is one that relates to social policy, will automatically find in favour of the ‘government’ side in the dispute.
The court will simply apply the most recent case precedent from the 19th century case as this is the only authority it possesses.
The court is entitled to develop common law principles and will attempt to do so by seeking to take into account contemporary social attitudes as long as there is a reasonable degree of consensus over these.
This is the best answer as it shows that, in the absence of clear (or any) statutory guidance, the courts can develop legal principles through the common law. However, when doing so, the courts are mindful of the need to represent contemporary social attitudes and values. See, for example, the case of R v R.
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?
Government should act within the legal authority given to it.
It is important that citizens should be able to have effective access to the law.
There should be equality before the law.
Parliament has the right to make or unmake any law whatsoever.
It is important that legal processes are fair.
Parliament has the right to make or unmake any law whatsoever.
Correct. This relates to the principle of Parliamentary Sovereignty rather than to that of the Rule of Law, as it is about where law comes from rather than the nature of it.
Under a (fictitious) Act of Parliament passed in the 1950s, county councils were given the power to make loans to farmers 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 non-repayable 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 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 non-repayable grants, would be refused in exceptional cases.
The court will find the dispute to be non-justiciable, as it relates solely to a matter of local government finance.
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.
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 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 actions taken appear to have been beyond the powers given to the council.
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 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 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 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 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 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 executive decision makers.
Which of the following statements best summarises the approach of the modern judiciary to this issue?
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 have become increasingly reluctant in recent decades to intervene in the exercise of statutory discretionary power, in order to respect separation of powers.
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 damaging to the rule of law.
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.
Correct
