Chapter 2

1. What is the purpose of a constitution?
   
   At State level, a constitution is the body of rules which:
   1. establishes the key institutions of Legislature, Executive and Judiciary,
   2. prescribes the mechanism for choosing the members of those institutions; and
   3. sets out the extent of their powers.

Constitutions usually also assert the key rights of the State's citizens, and the extent to which the State can interfere with them.

2. What is the difference between a codified constitution and an uncodified constitution?

A codified constitution is one in which all the key rules of the constitution have been organised into a single document - as in the USA. Typically, a codified constitution is a form of "higher law" to which all other laws are subject - so, in the USA, if an ordinary law conflicts with the constitution, then the Supreme Court of the USA is required by the constitution to strike it down.

The UK, on the other hand, has an uncodified constitution. This means that, while the UK does have rules about e.g. who can vote in Parliamentary elections, how Government Ministers are chosen, and key citizens' rights (e.g. the Human Rights Act 1998), these rules are found in a variety of sources, and have no special legal status. Some of the rules (e.g. conventions as to how Government Ministers are appointed) are not even laws at all - just expectations about how the Queen and other key players in the Constitution will exercise their legal powers.

3. Why doesn't the UK have a codified constitution?

Most countries adopt a codified constitution at a key changing point in their history - e.g. following:

• a declaration of independence from a former colonial power (USA)
• a violent revolution (France)
• defeat in war (Germany)
• a breakdown in the previous political system (Russia)

The UK has not experienced any of these events in almost 1,000 years. Instead, the UK's uncodified constitution has evolved gradually, through a series of individual laws and changes, rather than in a single "big bang".

4. What is entrenchment?

Since a codified constitution is a deliberate attempt to articulate the defining political, social and legal values of the society which adopts it, it usually contains mechanisms designed to "entrench" those values, and protect them against change. These mechanisms typically require any law amending the constitution to be passed by a special majority in the legislature, and/or to be approved by a referendum. This makes it more difficult to change the constitution than it would be to change other, ordinary laws.

For example, while there have been 27 Amendments to the USA's constitution since it was adopted in 1787 (so it's not impossible to change it!), the constitution itself requires any Amendment to be approved by a two-thirds majority in each chamber of the legislature, the President, and three-quarters of the 50 States. In reality, this is extremely difficult to achieve - the most recent Amendment took 203 years to be passed!

By contrast, in the UK, even "constitutional statutes" such as the Human Rights Act 1998, are not subject to any special law-making procedures, and can be changed or repealed just as easily as any other Act of Parliament.

5. What is the theory of the separation of powers?

This is a political idea, set out in Baron de Montesquieu's De L'Esprit de Lois, which requires the 3 key institutions of State, i.e.:

• the legislature (the law-making body - in the UK, Parliament);
• the executive (the body that runs the country - in the UK, Government); and
• the judiciary (the body which decides legal disputes - in the UK, the Courts)

to be separate both in function and personnel. This means that none of the 3 institutions should perform or interfere with the functions of another, and that no one should work in more than one of the institutions.

The USA's codified constitution is firmly based on the separation of powers. The UK's uncodified constitution, on the other hand, contains significant overlaps of both function and personnel between Parliament and the Government.

Chapter 3

1. List the sources in which the rules of the UK constitution are found

• Primary legislation (Acts of Parliament, e.g. the Human Rights Act 1998)
• Secondary legislation (e.g. an Order made by the Secretary of State for Wales under section 4 of the Government of Wales Act 2006, changing the date of a general election to the National Assembly for Wales)
• Case law (e.g. M v Home Office, which establishes the key constitutional principle that a Government Minister can be in contempt of court)
• EU law (which takes direct effect in the UK, by virtue of section 2 of the European Communities Act 1972, and contains significant rights in relation to free movement and employment)
• European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998, which makes decisions of the European Court of Human Rights highly persuasive in UK courts)
• Conventions (non-legal rules about how the key players in the constitution are supposed to behave)

2. What is the difference between a legal rule and a non-legal rule?

Legal rules are laws. Laws are enforceable, i.e. the courts will hear complaints and provide remedies they are broken.

Non-legal rules are known as "conventions". They operate by the common consent of those to whom they apply, and are observed only for so long as they are perceived to be pragmatic. For example, there used to be a convention that Government Ministers would take responsibility for errors in their departments, and would resign in the case of a serious error - even if they were not personally at fault. As the size of Government departments has grown, this convention has changed so that while Ministers are expected to tell Parliament about mistakes in their department, they are no longer necessarily expected to resign for them.

If a convention is breached, then there is no basis for a complaint to a court, nor can the courts provide a remedy - see Attorney General v Jonathan Cape (Chapter 7).

3. Give an example of a convention.

Royal Assent - while, legally, the Queen has the power to decide whether or not she signs an Act of Parliament into law, in practice Royal Assent has not been refused since 1707.

Appointment of Ministers - the Queen appoints as Prime Minister the party political leader who commands the support of a majority of the members of the House of Commons, and appoints other Ministers on the PM’s advice.

Both these conventions persist, because the Queen (who is unelected) recognises the democratic legitimacy of elected Members of Parliament to enact laws, and to choose the leader of the country.

4. Primary and Secondary legislation - what's the difference?

Primary legislation is an Act of Parliament - made by the legislature, i.e. House of Commons, House of Lords and the Queen acting together (see Chapter 5 for details).

Secondary (or "delegated") legislation, on the other hand, is made by the executive - i.e. by Government Ministers, using powers granted to them in Acts of Parliament.

The distinction is important because while the courts traditionally have no power to question or strike down Acts of Parliament (see Chapter 6), they can strike down secondary legislation on the grounds that it exceeds the powers given to Ministers in the enabling Act of Parliament.

5. Define a "constitutional statute"

"An Act of Parliament which:

(a) conditions the legal relationship between citizen and State in some general, overarching manner, or

(b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights."

Lord Justice Laws, Thoburn v Sunderland City Council [2002] EWHC 195

Examples given by LJ Laws include the Human Rights Act 1998, the European Communities Act 1972, the Police and Criminal Evidence Act 1984, the Scotland Act 1998 and the Government of Wales Act 2006 - all covered in detail later on in this book.

Note that this definition, and indeed the whole concept of a "constitutional statute"  in the UK, is entirely a common law construct, made up by the judges - Parliament itself does not recognise hierarchies of its own Acts, nor is there any special procedure for making, changing or repealing a "constitutional statute"

Chapter 4

1. How does the UK's constitution fail to conform to a model separation of powers?

While there is now proper independence of the judiciary from the legislature and executive, there remains a significant overlap between Parliament and Government, in both:

• function - most legislation made in the UK is secondary legislation, made not by Parliament but by Government Ministers, and subject to limited (and, arguably, ineffective) Parliamentary scrutiny (see Chapter 5)

• personnel - Government Ministers are almost all Members of Parliament, who are therefore members of both the executive and the legislature

2. How did the Human Rights Act 1998 impact upon the separation of powers in the UK?

Incorporation into UK law of Article 6 of the European Convention on Human Rights required defendants in both civil and criminal cases to be tried by an "independent, impartial tribunal".

This meant that the House of Lords could no longer perform both legislative and judicial functions, and led to the creation of a Supreme Court, independent of the legislature, by the Constitutional Reform Act 2005. That Act also significantly reformed the role of the Lord Chancellor, who was previously Head of the Judiciary, a member of the Government and a member of the legislature - see Chapter 8 for further details.

Sections 3 and 4 of the Human Rights Act have had a more subtle impact on the separation of powers - see Question 5, below, and Chapters 6 and 8 for further details.

3. What does "elective dictatorship" mean?

This term was coined by Lord Hailsham, Lord Chancellor during the 1970's and 1980's.

It means that if a single political party wins a majority of the seats in the House of Commons in a general election, the UK's uncodified constitution affords that party, in effect, absolute power until the next election. So long as the party members remain loyal to their leader, that party will be able to enact whatever laws it wishes, without fear of challenge in the courts (see Chapter 6) and will form the Government responsible for implementing those laws.

4. What is "the rule of law"?

A difficult concept to pin down!

At its simplest, it means that Government must act within the legal limits set by Parliament, and that the courts will enforce those limits - so that if the Government goes beyond them, citizens can go to court for a remedy. The flip side of this is that, so long, as Government does act within those limits, its actions are legitimate.

A more complex definition of the rule of law encompasses the notion that, in order to be truly legitimate, laws must be just and fair, as in order to be effective they must command the respect of, and be obeyed by the people to whom they apply. So laws which are cruel, discriminatory and unfair - as in Nazi Germany, where laws authorising the arbitrary murder of ethnic minorities were passed, implemented and upheld by  State institutions controlled  by the Nazi Party - arguably do not conform to the rule of law in its wider sense, even though they were validly enacted.

5. How might the rule of law conflict with the separation of powers?

An example is provided by R v A [2001] 3 All ER 1. In this case, the House of Lords (then, the most senior court in the UK, prior to transfer of its judicial function to the Supreme Court) had to decide how to interpret section 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999, which limited the circumstances in which a defendant accused of rape could cross-examine the alleged victim. The court had to decide how far they could stretch the wording of that section to accommodate the defendant's right to a fair trial, under Article 6 of the European Convention on Human Rights.

2 of the 5 judges felt that to authorise cross-examination of alleged rape victims would contradict the intention of Parliament, and therefore violate the separation of powers, on the basis that it is not for unelected judges to reverse the meaning of a statute enacted by the democratically elected legislature.

The majority, however, felt able to "read into" the section, the words "subject to the defendant's right to a fair trial" because section 3 of the Human Rights Act 1998 directed them to do so. To that extent, they were conforming to the rule of law - both in the narrow sense of obeying Parliament's direction, and, in the broader sense, by upholding the fundamental right of the accused to a fair trial.

Chapter 5

1. To what extent is the UK's Parliament democratically elected?

Parliament comprises 3 elements - the House of Commons, the House of Lords and the Queen.

Of these 3 elements, only one - the House of Commons - is democratically elected, consisting of 650 MPs, elected using the first past the post system, which has itself been criticised (see below).

The House of Lords (whose members are appointed) and the Queen (who inherits her title by birth) are both unelected.

2. How does the first past the post voting system work?

Each person who is eligible and registered to vote gets to cast one vote to choose a single candidate to represent the area in which they live (their constituency) in the House of Commons.

The candidate who polls the highest number of votes in each constituency is elected as the Member of Parliament to represent the people of that constituency, and takes up a seat in the House of Commons.

3. List some pros and cons of the first past the post voting system.

Pros	Cons
Easy for voters to use and understand	Parties' share of seats in the House of Commons is disproportionate to their share of the votes cast
Easy to administer and count	Excludes parties with a relatively small share of the vote from the legislature
Clear link between MP's and their constituencies	Votes cast for candidates other than the winning candidate are arguably "wasted"
Historically, has usually produced a decisive result with one party winning a clear majority of seats in the House of Commons - but didn't in 2010, when no single party won a majority of seats and a coalition Government was formed	Encourages tactical voting (so voters don't vote for their first choice party, in an attempt to keep a party they really dislike out of power)

4. Imagine that a Government whose party has a clear majority of seats in the House of Commons wishes to pass a Bill abolishing the right to a jury trial. Could the House of Lords prevent the Bill from being enacted?

No.

So long as the members of the governing party remain loyal to the Government, the Bill will be passed by the House of Commons.

The House of Lords could vote against the Bill, forcing the Commons to reconsider. If the Commons pass the Bill for a second time, then even if the Lords reject it again, the House of Commons can send the Bill to the Queen for Royal Assent under the provisions of the Parliament Acts 1911 and 1949.
The Parliament Acts were examined in Jackson and found to be valid.

So the House of Lords can delay the passage of the Bill, but cannot prevent it.

5. Could the Queen stop the Bill becoming law?

Yes - in theory. But in reality, it is very unlikely that she would do so.

The Queen has a legal power to decide whether or not she gives Royal Assent to a Bill which has been either been passed by both Houses of Parliament, or has been passed by the House of Commons and sent to her under the Parliament Acts 1911 and 1949.

By convention, however, the Queen does not refuse Royal Assent. The last occasion on which a monarch refused Royal Assent to a Bill was in 1707 when Queen Anne refused to assent to the Scottish Militia Bill. The convention recognises the democratic legitimacy of the House of Commons, i.e. the will of the people's elected representatives should be respected in enacting legislation.

Chapter 6

1. Imagine that Parliament enacts the Dog Licensing Act 2014. Section 1 of that Act requires all dog owners to obtain a licence for their dog at a cost of £50 per dog. Jenny, a dog owner who considers the new licence fee to be excessive, has found an unrepealed provision in the Dog Licensing Act 1987 which sets the licence fee at £5 per dog. Jenny argues that she does not have to pay any more than this. Is Jenny correct?

No – Jenny will have to pay the new licence fee of £50 per dog.

Ordinarily, you would expect the 2014 Act to contain an express repeal of the provision setting the old licence fee in the 1987 Act. Here, Parliament seems to have omitted to do that. So the courts will apply the common law doctrine of implied repeal (see Ellen Street Estates), upholding the most recent of two conflicting statutory provisions.

Although the doctrine of implied repeal does not apply to constitutional statutes (see Thoburn), it is very unlikely that the courts would consider the Dog Licensing Act 2014 to fall within the definition of a “constitutional statute”.

2. What if section 2 of the Dog Licensing Act 2014 required dog owners to pay the licence fee of £50 per dog for each year that they had owned a dog since 2010? Would the Supreme Court uphold that provision, in the event of a challenge?

The courts probably would uphold section 2, even though it is a retroactive provision - this means that it changes the law from a date prior to that on which the provision itself comes into force.

Retroactivity contravenes the rule of law, which requires the law to be clear and accessible to citizens. If the legislature is able to change the law retroactively, this makes it impossible for people to comply.

Nevertheless, the UK Parliament has enacted retroactive statutes before. The War Damage Act 1965 retroactively changed the rules relating to compensation for property destroyed by the Government in the Second World War. In Burmah Oil v Lord Advocate the courts upheld the validity of the Act.

The answer is “probably” because Parliamentary sovereignty is a common law doctrine – it was developed by the courts, and can therefore be changed by the courts. In the absence of a codified constitution, however, the traditional relationship between the UK’s courts and its Parliament is that the courts unquestioningly accept Acts of Parliament. Were the courts to depart from this rule, it would be seen as a “constitutional revolution”.

3. Would it make any difference if section 3 of the Dog Licensing Act 2014 created a criminal offence of failure to comply with the requirement to pay the £50 per dog licence fee for 2010 onwards? Wouldn’t this breach Article 7 of Schedule 1 to the Human Rights Act 1998?

This question is designed to test your understanding of the impact of the Human Rights Act 1998 on Parliamentary supremacy.

Section 3 would breach the requirement in Article 7 to Schedule 1 of the Human Rights Act 1998 that “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed”.

However, the only remedy which the courts can award in the event of an Act of Parliament contravening a provision of Schedule 1 to the Human Rights Act is a declaration of incompatibility (under Section 4, Human Rights Act). Such a declaration does not change the law – the offending statutory provision continues in force unless and until Parliament amends or repeals it.
Politically, it may be that the award of a declaration of incompatibility would persuade Parliament to amend the retroactive provision, and remove criminal liability for past non-compliance. Legally, however, they are under no obligation to do so.

4. To what extent does the decision in Factortame Ltd v Secretary of State (No 2) contradict the doctrine of Parliamentary supremacy?

It depends on your point of view!

At first glance, this decision (in which the House of Lords, then the highest court in the land, granted an injunction suspending the operation of the Merchant Shipping Act 1988) contradicts Dicey’s formulation of the doctrine of Parliamentary sovereignty which states that “no person or body can override or set aside the legislation of Parliament”.

However, the House of Lords, in granting the injunction, said (per Lord Bridge) that they were following the statutory rule of construction in s.2(4) of the European Communities Act 1972 which provides that any past or future UK legislation must “be construed and have effect” subject to EU law. The court said that as long as s.2(4) of that Act remains in force, they will continue to set aside Acts of Parliament which contradict EU law – because that is what Parliament has told them to do.

The courts have made it clear that if Parliament expressly repealed s.2(4) of the European Communities Act, that rule would no longer apply – so Parliament could leave the European Union, and the courts would no longer apply EU law. That position has now been re-emphasised by s.18 of the European Union Act 2011, which states that EU law applies in the UK only by virtue of s.2 of the 1972 Act.

Some commentators (such as Professor Wade) consider the decision in Factortame to be a “constitutional revolution”, in which the unelected courts set aside legislation enacting the will of the democratically elected Parliament. Others consider that the decision actually strengthens the doctrine of Parliamentary supremacy, by recognising that Parliament itself can change the rules by which the validity of its own Acts are measured.

At the very least, the decision modifies the doctrine of Parliamentary sovereignty to the extent that s.2(4) of the European Communities Act cannot be impliedly repealed. This modification of the implied repeal rule has subsequently been extended in Thoburn to all “constitutional statutes”, i.e. Acts of Parliament which fundamentally alter the relationship between the citizen and the state.

5. Section 2 of the European Union Act 2011 requires a Treaty amending the Treaty on European Union to be approved by both (a) Act of Parliament and (b) a prior referendum. Could a future Parliament pass an Act incorporating a change to the Treaty without holding the referendum first?

Under Dicey’s doctrine of Parliamentary sovereignty, Parliament can make any law whatever, without restriction. In particular, Dicey considered that one Parliament could not bind future Parliaments by any procedural restrictions (“entrenchment”), as each Parliament, having been democratically elected, should be free to legislate as it  wishes.

However, recent developments suggest that the courts would be likely to uphold procedural restrictions such as prior referendum requirements. Evidence for this includes:

• The decision in Factortame (see above), in which the courts held that the 1988 Parliament was subject to the statutory rule of construction in s.2(4) of the European Communities Act 1972
• Dicta from Baroness Hale and Lord Steyn in Jackson, suggesting that they would follow Commonwealth decisions such as in Trethowan, and require the UK Parliament to observe any self-imposed procedural requirements, such as an obligation to obtain approval in a referendum prior to amending or repealing certain statutes.

Chapter 7

1. List examples of prerogative powers.

• Power to declare war
• Power to make treaties
• Power to issue passports
• Power to grant mercy to convicted criminals
• Power to create and abolish government departments
• Power to keep the peace within the UK

2. Give 3 reasons why prerogative powers arguably contravene the rule of law.

• Their scope is unclear, because they only exist to the extent recognised by the courts, they are retrospectively defined. This contravenes the notion that the law should be clear and accessible to ordinary citizens.

• Prerogative powers are residual executive powers, i.e. they are what is left of the divine right of the monarchy. They have not been conferred on the executive by the legislature, and so they lack the democratic legitimacy of laws which have been made by the people's elected representatives.

• The courts have limited control over prerogative powers. While the courts said in CCSU that they are, in principle, prepared to review the exercise of prerogative powers, they also said that certain areas of "high policy" (e.g. national security; foreign policy) are non-justiciable (i.e. outside the scope of judicial review).

3. What is the Cabinet?

The group of senior Government Ministers, headed by the Prime Minister, which run the UK by o formulating Government policy, instructing civil servants to draft Bills to before Parliament, and deciding how to use the Government's existing powers.

4. Explain the difference between individual and collective ministerial responsibility.

Individual ministerial responsibility is a convention by which Ministers are accountable to Parliament for the acts and omissions of the Government Department under their control. The expectation that Ministers would resign in the case of serious mistakes in their Department (as in the Crichel Down affair) has transformed into an expectation that Ministers must tell Parliament about such mistakes, but are not necessarily expected to resign because of them.

Collective ministerial responsibility is a convention by which Cabinet Ministers present a united front in public. Even though Ministers are free to (and often do) disagree during private Cabinet discussions, they are expected to keep the details of such meetings confidential and to support a decision made by the Cabinet in public, even if they personally disagree with it.

5. What sanctions are there for a Minister who breaches the convention of collective responsibility?

There are no legal sanctions. Conventions, while their existence is recognised by the courts, are not legally enforceable so there is no legal remedy if they are breached (Attorney General v Jonathan Cape).

A Minister who no longer supports the Cabinet, however, is expected to resign. Should they refuse to do so, they are likely to face political sanctions. Although the Queen appoints and dismisses Ministers, she does so on the advice of the Prime Minister. So a Minister who loses the confidence of the Prime Minister is likely to be sacked.

Chapter 8

1. Which bodies are subject to judicial review?

Public bodies - defined in Datafin as people (e.g. Government Ministers) or organisations (e.g. local authorities) who either:

• get their powers from legislation;
• are exercising prerogative powers; or
• are performing a public function (see s.6 Human Rights Act 1998 and Chapter 9)

2. On what grounds can a public body be judicially reviewed?

Any one or more of the following grounds, as set out by the court in CCSU:

• Illegality (acting beyond their powers)
• Irrationality (acting unreasonably)
• Proportionality (see below)
• Procedural impropriety (acting unfairly)

3. Explain the difference between narrow and wide ultra vires.

Ultra vires is a Latin term, meaning "outside [the body's] powers". The doctrine of ultra vires has been developed as part of the ground of illegality.

Narrow ultra vires covers case where e.g. a public body takes a decision which it has no legal power to make, as in Attorney-General v Fulham Corporation, where the local authority had no power to run a paid laundry service, and was therefore acting illegally.

Wide ultra vires covers cases where the public body does have a legal power to do something, but abuses that power by e.g.:

• fettering its discretion (or "closing its mind")
• basing its decision on irrelevant considerations
• failing to take into account relevant considerations
• acting for an improper purpose (i.e. one which was not contemplated by Parliament in granting the relevant statutory power to the public body)

This is a more subtle form of illegality, in which the way that the public body uses its power is illegal.

4. What is the test for irrationality?

The key test is set out in the Wednesbury case. In order to quash a public body's decision on the grounds of irrationality, a court must conclude that the decision is:

"so unreasonable that no reasonable authority could have made it".

NB: it is well worth learning this test, word for word, for your examination!

5. How does the test for proportionality differ from the test for irrationality?

The test for proportionality (set out in Daly) involves much closer scrutiny of the public body's actions, requiring the authority to justify an infringement of either EU law or the European Convention on Human Rights by demonstrating that:

• the public body's objective was sufficiently important to justify the infringement;

• the actions taken by the public body were rationally connected to that objective; and

• those actions were no more than necessary to achieve that objective.

Note, however, that proportionality is available as a ground of review only in cases involving an alleged breach of EU law or human rights.

Chapter 9

1. Explain the difference between "absolute" and "qualified" rights (under the European Convention on Human Rights), giving examples of each.

An absolute right is one which the State cannot legally restrict, whatever the circumstances.

Qualified rights can be restricted by the State, provided that the restriction meets the following conditions:

• it is in accordance with the law (i.e. authorised by clear and accessible domestic legislation);

• it is pursuing a legitimate public interest policy objective (as recognised in the text of the relevant Article of the European Convention on Human Rights); and

• it is proportionate to (i.e. is no more restrictive of the right than is necessary to achieve) that policy objective.

Absolute rights	Qualified rights
Article 3 - prohibition of torture	Article 8 - right to privacy
Article 4 - prohibition of slavery	Article 9 - freedom of thought, conscience and religion
Article 7 - no punishment without law	Article 10 - freedom of expression
	Article 11 - freedom of assembly and association

2. Are private companies subject to the provisions of the Human Rights Act 1998?

Potentially, yes - in a context where a private company is "performing functions of a public nature", it is caught by the definition  of "public authority" in s.6 Human Rights Act 1998.

See, e.g. R (Beer) v Hampshire Farmers' Market in which a private company formed by the local Council to run markets on Council-owned land was held to be subject to the Human Rights Act as it was performing functions of a public nature.

Each case turns on its own facts. For contrasting decisions, see YL v Birmingham City Council(in which a private company running a care home was held not to be performing a public function) and Wallbank (in which a Parochial Church Council, while a public authority in performing certain of its functions, was not subject to the Human Rights Act when enforcing the rights of a private landowner).

3. Explain the difference between the tests under s.76 and s.78 PACE.

s.76 PACE requires the court to exclude evidence of a confession which the defence represent is unreliable, or was obtained by oppression, unless the prosecution can prove beyond reasonable doubt that the confession is reliable. For an example of a confession which was unreliable (and obtained by oppression!), see R v Paris, Abdullahi and Miller.

s.78 PACE gives the court a discretion to exclude evidence which it considers would have an adverse effect on the fairness of the trial. This means that even if the evidence has been obtained in breach of PACE, the court can still hear it if it considers that the nature of the breach does not deprive the defendant of a fair trial (see, e.g. Watson v DPP).

4. Nick, while walking to his local pub, stops in the street to talk to Sofie. Is this a public assembly, within Part 2 of the Public Order Act 1986?

Believe it or not, yes!

s.16 POA 1986 defines a public assembly as an assembly of:

• 2 or more people
• in a public place (the definition of which expressly includes a public highway or pavement)
• wholly or partly open to the air.

So this kind of everyday meeting actually falls within the scope of police powers to control public assemblies. Note, however, that these powers can only be exercises to prevent serious public disorder, serious property damage or serious disruption to the community (s.14 POA).

         Unless Nick and Sofie pose any of these threats (unlikely during a mere conversation, and as Nick is at this stage only on his way to the pub...) then the police have no power to interfere.

5. On what grounds can the police ban a public meeting?

The police have no power to ban a public meeting, unless it is a trespassory assembly, i.e. it is being held on private land (or land to which the public have a limited right of access) and risks serious disruption to community life and/or significant damage to land, a building, or a monument of cultural, historic or scientific importance.

The police can impose conditions on public assemblies, on the grounds set out in s.14 POA (see above). These can include conditions as to the time and place of the assembly, and the maximum number of people who can attend. Note that the conditions must be proportionate (see Laporte and Austin).

Contrast this with the police power to ban public processions (i.e. moving protests) under s.13 POA, with the support of the relevant local authority and the consent of the Home Secretary. A banning order should only be made where the police reasonably consider that their powers to impose conditions under s.12 POA are inadequate to enable them to maintain public order.