Structure

Question 1

Flexibility of the Constitution

Answer 1

1. Introduce
2. Outline Arguments FOR the UK Constitution having a high degree of flexibility (consider 4 sources, 1 at a time: statute, case law, conventions, prerogative.
3. Arguments AGAINST the UK constitution having a high degree of flexibility. (Statute repeal is practically difficult, statute enactment is slow, Constitutional Conventions are deep-rooted.
4. Conclude

Question 2

Separation of Powers

Answer 2

1. Introduction
2. The Executive and the Legislature (for then against)
3. The Executive and the Judiciary (for then against)
4. The Judiciary and the Legislature (for then against)
5. Conclude

Question 3

Parliamentary Supremacy

Answer 3

1. Introduction (define, origins, argument)
2. FOR Parliamentary Sovereignty
   - Unlimited Legislative Competence
   - Doctrine of Implied Repeal
   - Proceedings in and Acts of Parliament will not be questioned/set aside/invalidated by any other body.
3. Arguments AGAINST Parliamentary Sovereignty
   - Manner and Form Debates
   - Domestic Limitations
   - European Limitations
4. Conclude

Question 4

Judicial Review Problem Questions - Can the claimant make a claim?

Answer 4

1. State that the claimant may consider making a claim for judicial review and then define judicial review
2. Can the Claimant Make a claim for JR?
   - Does the claimant raise Public Law issues?
   - Is the defendant a Public Body?
   - Does the claimant have Sufficient Interest?
   - Is the Claimant within the Time Limit?
   - Ouster provisions/other statutory right of appeal
   CONCLUDE WHETHER A CLAIM CAN BE MADE

Question 5

Judicial Review Problem Questions - Grounds of challenge

Answer 5

3. Likely Grounds of Challenge ( Illegality, Irrationality, Procedural Impropriety)
   - Illegality (7 heads)
   Acting without legal authority, the rule against delegation, fettering of discretion, errors of law, errors of fact, taking irrelevant factors into consideration, decision based on improper or unauthorised purpose.
   - Irrationality
   Wednesbury principle
   - Procedural Impropriety
   Rule against bias, the right to a fair hearing, procedural ultra vires
4. Breach of convention rights
5. Appropriate Remedy
6. Procedure for JR

Question 6

Judicial Review Essay Question: Constitutionality and Separation of Powers

Answer 6

1. Introduction (define and justify JR)
2. JR and the Sovereignty of Parliament
3. The relationship between JR and the Separation of Powers
4. The relationship between JR and the Rule of Law
5. Judicial Independence from the Executive
6. Conclude depending on issue focus

Question 7

Conflict between different rights and freedoms

Answer 7

1. Introduction
2. Basis of claim and procedure to get it through the door of a court
3. Has their been a breach of confidence?
4. Does this amount to interference with Convention Rights? (Article 8 then 10)
5. How the Courts will Balance Convention Rights
6. Guidelines for balancing Rights
7. Conclude

Question 8

Contempt of Court problem question structure

Answer 8

1. General information on Contempt of Court Act 1981
2. Strict Liability Rule
3. Is it a publication?
4. Are the proceedings active?
5. Does the publication create a ‘substantial risk’ of ‘serious prejudice’?
6. Defences (s.3 and s.4)
7. Does s.5 apply
8. Briefly consider common law contempt

Question 9

Statutes

Answer 9

No Special Majorities
Contrast US
Examples of Statutes that have changed the constitution

Question 10

Case Law

Answer 10

JI DC JR

Judicial Interpretations of Statutes
(Ex p Factortame)

Development of Common Law

• residual freedom
• actions of the state need legal authority (entick v carrington)
• legal disputes to be resolved by the judiciary (Prohibitions Del Roy)
• habeus corpus and individual liberty (Art.5 HRA)
• right to a fair hearing (Art.6 HRA)
• Parliamentary Supremacy (Enrolled Act Rule from Wauchope and Pickin)

Judicial Review

Question 11

Constitutional Conventions

Answer 11

Define (Marshall and Moodie)

AG v Johnathan Cape - give rise to legal obligations

Non-Legal - cannot brings legally enforced, affirmed in R (Miller) that the operate in the political sphere

Examples of conventions (Salisbury, Sewel, Royal Assent, Parliament Meets, Monarch, PM and HoC)

Question 12

Royal Prerogative

Answer 12

Define

Adds flexibility because:
1. Decisions thar affect the constitution can be made easily and flexibly, without needing the formal procedure associated with constitutional amendments.

2. The government may take action under the Royal Prerogative powers without needing to pass a bill of Parliament.

Areas under the RP (foreign and domestic)

Question 13

Against the flexibility of the constitution

Answer 13

Statute Repeal is practically difficult

• Thoburn (constitutional important cannot be impliedly repealed)
• HRA 1998 - taking rights away
• Devolution Acts - practically impossible to repeal

Statute enactment is slow

• Process is lengthy and multiple pressures on Parliament’s time
• examples: HRA 1998 and reform of the HoL

Constitutional Conventions are deep-rooted

• Some appear too profoundly established
• highly unlikely to ever be dispensed with, due to the practical obstacles preventing this (the Queen gives royal assent to all bills passed through Parliament; only acts on ministerial advice; and ministers are individually and collectively responsible to Parliament.)