Public Law

Chapter 4 Constitutions: Example Assessment

In ‘Why Britain Needs a Written Constitution’ (Charter 88, 1992), Lord Scarman wrote that ‘a government above the law is a menace to be defeated’.

Can it be argued that the UK has any sort of constitution and, if so, how does it restrain governments?

Please see the general assessment advice in Chapter 1. This also explains how to address these sorts of questions by identifying the key phrases and building a structure around them. This process is illustrated here.

Introduction – this should be brief but show the reader that you understand the assessment task. Often the best way of doing this is by trying to answer the question in the introduction itself, e.g. ‘This essay requires an assessment of whether the UK has any sort of constitution and an evaluation of its ability to restrain governments. It will argue that whilst the UK does have a reasonably effective constitutional system, it would limit government better if it was in the form of a formal codified constitution.’

Any sort of constitution? – This invites brief discussion of the different types of constitution, codified and uncodified. You could explain that the UK does not have a codified (or written) constitution, but that some writers (e.g. Wheare) argue that the form of a constitution is not crucial and that as long as there are rules establishing and regulating state institutions then there is a constitution. You could give examples of these sorts of rules, e.g. the Parliament Acts 1911 and 1949, the Scotland Act 1998. You could contrast this with the views of writers such as Paine and Ridley, who argue that a constitution has certain essential criteria that are absent in the UK. These include a higher legal status and some form of entrenchment. You can reach an interim conclusion, e.g. the UK has a functioning constitution albeit in an uncodified form or, alternatively, that whilst the UK has a system of government it does not have a constitution.

Does it restrain? Is government above the law? – Notice that you are referring back to the terms of the question throughout this structure. You can give examples of the many rules and principles that do restrain government: statutes (the Scotland Act 1998, the Human Rights Act 1998), common law (M v Home Office, showing that ministers can be guilty of contempt of court), legal processes (judicial review) and constitutional principles (the separation of powers). You could point out that many important institutions and relationships are not governed by laws, e.g. the Prime Minister and the Cabinet, but by more flexible constitutional conventions.

Written constitution? – Note that the title of Scarman’s article invites some brief discussion of the need for a written (i.e. codified) constitution. You can use this section to undertake some evaluation of the evidence. You may have argued that the UK has an uncodified constitution, but how effective is this in restraining governments? You will have identified a range of provisions within the UK system that limit government, but would these be more effective if they were in a formal codified constitution?

Conclusion – this should be brief and, importantly, refer back to the terms of the question.

Look at the ‘Taking It Further’ section of Chapter 4 for the types of sources that can really enhance your answer. Ideas from the Bogdanor and (especially) the Barber articles could add some critical depth to your work.

Chapter 5 Constitutional Conventions: Example Assessment

‘The convention of Individual Ministerial Responsibility indicates quite clearly that constitutional conventions do act to limit state power within the UK’s unwritten constitution’.

Discuss.

Please see the general assessment advice in Chapter 1. This also explains how to address these sorts of questions by identifying the key phrases and building a structure around them.

Introduction – this should be brief but show the reader that you understand the assessment task. Often the best way of doing this is by trying to answer the question in the introduction itself, e.g. ‘This essay requires an assessment of whether constitutional conventions, looking particularly at the example of Individual Ministerial Responsibility (IMR), restrain power within the UK constitution. It will argue that conventions vary so widely in their nature and effect that a single answer is impossible, but that on the whole conventional are capable of this restraining effect.’

Constitutional conventions – you will need to define and explain the key concepts raised in the question. Do this reasonably briefly. The essay does not require you to say all that can be said about conventions, so give an accurate and concise summary of the key features and then address the particular concerns raised in the question. This could include a definition (see the ones given by Marshall and by Wheare in Chapter 5) and explanation of how conventions are different from laws and habits, and how they obtain their normative (or binding) force. Better answers will not leave the analysis and evaluation for a later separate section, but will integrate critical commentary throughout. In this case, you could highlight that the absence of court enforcement undermines the ability of conventions to limit state power, but on the other hand conventions can be seen as genuine rules (as opposed to mere habits) that are capable of requiring certain conduct and therefore of limiting power.

Individual Ministerial Responsibility – again you need to briefly explain the concept and then engage with the terms of the question. This is a challenge for IMR, but the central idea – that Ministers are responsible to Parliament for the actions of themselves and their department – is easy to convey. There is a good amount of complexity and uncertainty around this central idea, but you can use that to address the question:

On the one hand, the very basis of IMR is to limit state power by imposing duties of responsibility, accountability and transparency on the executive. The convention has become more focussed in recent decades (being less concerned with sexual misconduct or with necessarily seeking resignations). It had been reinforced by the Ministerial Code and the obligation to tell the truth to Parliament is accepted by all.

On the other hand, the scope of IMR is uncertain, in particular as to the dividing line between personal and professional conduct and as to a Minister’s responsibility for operational matters (the policy/operations distinction). In most cases, there is no clear penalty for a Minister who makes mistakes or fails to take appropriate responsibility for them.

Do conventions limit State power? Whilst some critical commentary should be integrated through the answer, you can usefully draw the threads together and more clearly state where you stand on the overall question in a separate section. You could assess to what extent IMR stands as a useful example for the general operation of conventions, or indeed whether it ‘quite clearly’ indicates anything? You should address whether, on the whole, conventions have this power-limiting effect or whether they are too vague, too lacking in sanctions and too much in the hands of those supposedly regulated by them to have a strong limiting effect.

Conclusion – this should be very brief and refer back to the terms of the question.

Look at the ‘Taking It Further’ section of Chapter 5 for the types of sources that can really enhance your answer; the papers by Jaconelli, Barber and Woodhouse would be particularly useful.

Chapter 6 Royal Prerogative: Example Assessment

‘The prerogative is the least powerful source of constitutional law, overridden by statute and closely controlled by the courts’.

Discuss.

Please see the general assessment advice in Chapter 1. This also explains how to address these sorts of questions by identifying the key phrases and building a structure around them.

Introduction – this should be brief but show the reader that you understand the assessment task. Often the best way of doing this is by trying to answer the question in the introduction itself, e.g. ‘This essay will assess the limitations on the operation of prerogative powers. It will argue that whilst the extent of prerogative power can be curtailed by statute and cannot be extended, it remains a powerful tool in the hands of the executive.’

Definition – you will need to explain what prerogative powers are: the residue of legal powers held by the Crown, which do not derive from statute, which are now exercised by the executive. Give some examples of such powers: international relations, declarations of war, mercy for convicted persons, the award of honours.

Relationship with statute – outline the notion that statute ‘abridges’ prerogative powers (De Keyser’s Royal Hotel [1920]), and that prerogative powers cannot be used to frustrate the purposes of a statutory scheme (Laker Airways [1977]; ex parte Fire Brigades Union [1995]). Apply these to the terms of the question – the cases show that prerogative power can always be replaced by Acts of Parliament and is lower in the hierarchy of legal sources than statute; it is therefore ‘less powerful’.

Courts – outline the case law authority on the ability of the courts to determine the existence and scope of prerogative powers (e.g. Burmah Oil [1965]). In constitutional terms this does not place the courts on a higher plane than the prerogative. It is simply an expression of the basic principle that it is the role of the courts to determine the existence and scope of legal powers.

Explain that the courts do have some power to review the way in which a government minister exercises a prerogative power, but that this power cannot apply to certain wide-ranging ‘excluded categories’ of decision (GCHQ case [1985]). Even though there has been some development of this test to look more at the subject matter of the decision and its impact on individual rights (ex parte Everett [1989]; ex parte Bentley [1993]), the courts will still not examine questions of ‘high politics’. The courts, therefore have only very limited power to judicially review the way in which prerogative powers are actually exercised.

Evaluation and conclusion – you will have been analysing the law and applying your knowledge to the terms of the question as you proceed through your answer, but it is worthwhile drawing the threads together and providing an overall evaluation. You can acknowledge that formally the prerogative occupies a lower place in the hierarchy of legal norms than statute, and that the courts have the clear authority to determine the scope of prerogative powers. In practice, the courts have limited ability to review how prerogative powers are actually exercised by ministers. Prerogative provides a legal basis, independent of Parliament, for some very significant executive decisions, e.g. on diplomacy and international treaty-making, and on war and military deployments.

Taking It Further – the most common advice in these example assessments is to engage with academic debates on the subject – and that advice holds for this topic (see e.g. the references to Blackburn and Brazier in Chapter 6). It is often a useful complement to this to weave in contemporary events, and the Chagos Islands litigation referred to in section 6.4.4 would provide an excellent illustration of some the points in this answer.

Chapters 7 and 8 Supremacy of Parliament, and Supremacy and European Law: Example Assessment

Discuss the extent to which the traditional view of Parliamentary supremacy has been undermined by the UK’s membership of the European Union and by other challenges. Is it still correct to describe Parliament as ‘legally supreme’?

Please note that this question covers the material for Chapters 7 and 8. Most assessment questions in this area will ask you to explain the traditional view of supremacy of Parliament before going on to evaluate the impact of the various challenges to that traditional view, including those flowing from membership of the European Union.

Introduction – this should be brief but show that you understand the assessment task. You can do this by trying to answer the question at the outset, e.g. ‘This essay will outline both the traditional view of Parliamentary supremacy and the key challenges to that view. It will argue that that whilst some challenges have altered the day-to-day operation of supremacy (EU law) or suggest limitations in some extreme hypothetical situations (rule of law challenges) the basic premise of supremacy, that the courts will apply Acts of Parliament, holds true.’

Traditional view of supremacy – you will need to summarise the traditional view accurately and reasonably concisely. This will include outlining Dicey’s position that Parliament can make or unmake any law and that there is no higher authority in the legal system. You should also include some of the features of the traditional view, such as the enrolled bill rule, and do not forget to include primary authorities such as Edinburgh and Dalkeith Railway Co v Wauchope [1842] and Ellen Street Estates v Minister for Health [1934].

Membership of the European Union – again you will need to outline the legal position accurately and concisely. This will include the position of the Court of Justice that EU law had primacy over all national law (using authorities such as Simmenthal Spa [1979]), the provisions of the European Communities Act 1972, and the key UK cases including Macarthys v Smith [1979] and Factortame (No 2) [1991]. Good answers will include an in-depth discussion of Factortame including a) that the Act was disapplied rather declared invalid or void, b) that this effectively changes the operation of implied repeal where EU law is involved and c) that the courts continue to indicate that they would obey an unambiguous express repeal of an EU law obligation in a UK Act of Parliament. These points ensure that you are addressing the terms of the question and demonstrating analysis and evaluation.

Other challenges – the extent to which you can explore the other challenges will depend on your word limit for a coursework or time available in an exam. You could briefly outline the arguments from the Acts of Union and the manner and form theory. You should try to explain the ideas outlined in R (Jackson) v Attorney General [2005] of potential rule of law or democratic restraints on Parliament and the idea of constitutional statutes proposed in Thoburn [2002] and resurrected in HS2 [2014].

Conclusion – bring your arguments together and present a brief and reasoned answer to the whole question.

In the author’s experience the difference between a decent and a very good answer in this area lies in the handling of the Factortame case – make sure you go beyond the bare facts and outcome of the case and explore the implications of the case for both implied and express repeal. The difference between a very good and an excellent answer often lies in the use of further reading.

Look at the resources in the ‘Taking It Further’ sections of Chapters 7 and 8, and, in particular, the contrasting views of Wade and Laws.

Chapter 9 Separation of Powers: Example Assessment

‘Following the Constitutional Reform Act 2005, the separation of powers lies right at the heart of the UK constitutional system.’

Discuss.

Please see the general assessment advice in Chapter 1. This also explains how to address these sorts of questions by identifying the key phrases and building a structure around them.

Introduction – demonstrate, in a concise way, that you are going to address this specific question. Whilst it is quite wide-ranging it is not ‘tell me all you know about the separation of powers’. Make sure to apply any guidance from your tutor. Your introduction could be along the lines of, ‘This question requires an outline of the separation of powers doctrine and an assessment of it centrality to the UK constitutional system. This essay will argue that whilst the Constitutional Reform Act 2005 has more clearly delineated the three branches of the state, much of this effect is symbolic and does not address the key substantive shortcoming: the executive dominance of Parliament.’

Separation of powers – you need to define and outline, with authority, the key concepts raised in the question, so your answer would cover:

	a straightforward definition and outline of the three-fold division of the state (legislative, executive, judicial), including some discussion of its origins (e.g. Montesquieu) and purpose (e.g. to reduce the risk of abuse of power);
	a discussion of the ‘fusion’ between Parliament and Government found in the overlap of personnel and the way in which party discipline helps the Government to control the legislative functions of Parliament;
	the independence of the judiciary, including the importance of this element of separation and how it has been traditionally secured (e.g. security of tenure, immunity from suit, etc).

As with all your essays you should not artificially separate explanation from evaluation, so as you go through each section you should be making reasoned judgements on how central the concept is to the UK constitution.

Constitutional Reform Act 2005 reforms – there are three main reforms to outline and assess:

	the Lord Chancellor, including the reduction of their role (they were taken out of the judicial branch and their role in the legislative branch was amended) and formalisation of their duty to uphold the separation of powers;
	the Supreme Court, including the formal separation of membership of the Court from the House of Lords and the clearer physical separation;
	the Judicial Appointments Commission, including taking much of the appointments selection process out of the hands of the executive.

Again include evaluation along with your explanations. These were important and substantive changes, but often they formalised positions that had already been established in practice (e.g. the Lord Chancellor no longer sitting as a judge, the highest court being independent of Parliament). In some senses these were easy gains, and the harder questions of executive dominance of Parliament were largely avoided in the Constitutional Reform Act 2005.

Overall assessment and conclusion – use this section to draw together your evaluative position and provide an overall answer to the question. As with most law essays this will not be a simple yes/no (‘the concept does not lie at the heart of the UK system’), but rather a more nuanced position, such as the one outlined in the introduction above. The key thing is that your conclusion should a) flow from, and be consistent with, the evaluation you have undertaken in the body of the essay and b) be reasoned, i.e. not simply asserted, but accompanied with an explanation of why you have taken your position.

Look at the ‘Taking It Further’ section of Chapter 9 for the types of sources that can really enhance your answer. The Woodhouse article on the Constitutional Reform Act 2005 reforms would obviously be particularly useful.

Chapter 10 The Rule of Law: Example Assessment

‘The rule of law has a particularly important role to play within the UK’s unwritten constitution. It restrains power to ensure that the constitutional system remains accountable and limited’.

Discuss.

Please see the general assessment advice in Chapter 1. This also explains how to address these sorts of questions by identifying the key phrases and building a structure around them.

Introduction – the advice in these example assessments is to keep the introduction brief and to engage with the question, e.g. ‘This question requires an assessment of the rule of law within the UK, with a particular focus on its ability to restrain power. The essay will argue that the rule of law can play a role in limiting power and promoting accountability but is undermined by Parliamentary supremacy and executive dominance.’

The rule of law – you will need to provide a clear and reasonably concise definition of the key concepts, in this case, of the rule of law. You should include the main aims of the principle (to subject the state to law and ensure that it operates through the law), explain the legality principle and illustrate this with authority, e.g. Entick v Carrington [1765]. Point out the main shortcomings of the legality principle – that it contains no substantive restrictions and that if the state has legal authority for its actions then it does not breach the legality principle. Make it clear that you are engaging with the question by referring to the facts that, under the UK constitution, Parliament can make any law whatsoever, and that, as the Government dominates Parliament, it can normally create whatever legal authority it needs for its actions.

Dicey – explain the three elements of Dicey’s view (equality before the law, no punishment without a distinct breach of the law, rights founded in the common law rather than a written constitution or Bill of Rights). Relate this to the question – does it limit power? Does it make the state accountable and limited? Your answer may be ‘to some extent’. Following Dicey’s concept would certainly reduce the scope for arbitrary action by state officials. It would base state action on open rules rather than whim, but again even this extended notion of the rule of law imposes few substantive restrictions on state action.

Raz – explain Raz’s conception of the rule of law: the overall aim of the law is to guide human behaviour; there is a consequent need for clear, open and prospective legal rules; the further need for e.g. access to justice and impartial judges. Relate this to the terms of the question as you did for Dicey’s concept – does it limit power and provide accountability?

Substantive rule of law – you could mention those versions of the rule of law (e.g. Bingham) that insist on some substantive minimum content, e.g. in relation to human rights.

Conclusion – draw your arguments together and reach a reasoned position.

Important note – there is no objectively right answer to this question. You are not obliged to follow the position sketched out in the introduction above. You may argue that the rule of law is the best ultimate safeguard in our constitution, and refer to the judicial statements in R (Jackson) v Attorney-General [2005] or the pervasive impact of the rule of law on political and social cultures. You could, alternatively, follow some of the sceptics (e.g. Shklar) mentioned in Chapter 10 and argue that the concept of the rule of law is largely meaningless and any apparent power-limiting effects are illusory. One of the pleasures of assessment questions like this is that you are free to work out your own position. What is important is that:

	you base your conclusions on reasons and clearly explain those reasons;
	you support your reasons with authority. These authorities can include case law and statutory examples, the views of judges and academic writers, or examples drawn from ‘real life’ and current affairs;
	you do not sit on the fence. Your conclusion could be that the rule of law is effective, ineffective or somewhere on a continuum between those two positions – but state your conclusion and stand by it. Do not finish your essay with a line such as, ‘In conclusion, there are arguments that the rule of law limits power and arguments that it does not’.

Chapter 11 Devolution: Example Assessment

‘The asymmetrical nature of devolution in the UK is illogical and unsatisfactory. It is likely to lead to demands for more devolution of power within England’.

Discuss.

Please see the general assessment advice in Chapter 1. This also explains how to address these sorts of questions by identifying the key phrases and building a structure around them.

Introduction – the advice in these example assessments is to keep the introduction brief and to engage with the question, e.g. ‘This essay will outline the devolution regimes in Scotland, Wales and Northern Ireland, focussing on whether the differences between them can be regarded as illogical or unsatisfactory. It will go on to identify the position of England within the UK as the most asymmetrical part of the devolution settlement, and argue that the introduction of English votes for English laws will be insufficient to stem demands for further devolution within England.’

The devolution regime – you will need to outline the institutions and legislative/executive positions within Scotland, Wales and Northern Ireland. Perhaps your biggest challenge here is to keep this reasonably concise. Whilst there is a lot to cover, remember that you will never be asked to tell the examiner all that you know about a subject. The focus in this question is on the asymmetrical nature of devolution, i.e. the differences in the governance regime in each nation. You can highlight the differences between Scotland and Wales on the reserved powers and conferred powers models, and on taxation powers. The requirement for power-sharing within the Northern Ireland Executive is probably the most distinct feature of the Northern Ireland regime.

‘Illogical and unsatisfactory’ – you need to engage with this assertion found in the question. You may, for example, strongly disagree with it. You might argue that the approach is consistent with the UK constitution’s tradition of pragmatism and evolution, and that the differences between Wales and Scotland are a sensible reflection of their different histories and the different intensity of the demand for devolution in the two nations. You may decide that the distinctive regime in Northern Ireland is not illogical but, instead, a necessary compromise to meet the very distinctive and pressing demands of bringing peace and stable governance to Northern Ireland.

England – whilst there are many similarities between the regimes in Scotland, Wales and Northern Ireland, England is the most asymmetrical part of the Union. It has no parliament/assembly and no government/executive. You could identify that whilst there are reasons for this major asymmetry (the relatively large population of England, the possible redundancy of Westminster if an English Parliament was established, the failure of previous attempts to introduce regional governance to attract public support), its consequences have been criticised as illogical and unsatisfactory. Your focus here is on the English votes for English laws issue which you should outline, including the 2015 Standing Order changes. You could discuss how the asymmetry between powers in different parts of the UK has contributed to the recent process of regional devolution.

Conclusion – just keep this brief and refer back to the terms of the question.

Taking It Further – whether you adopt the example approach taken here or want to argue a different conclusion, then Walker’s 2014 article will enable you to get good depth and evaluation into your answer.

Chapter 12 Judicial Review – Access to Justice: Example Assessment

‘The response of the judiciary to attempts to oust their jurisdiction in judicial review is like their approach, over the last 30 years, to standing: that judicial review should be available as widely as possible when there is an allegation that a public body has acted unlawfully’.

Discuss with reference to the law on both ouster clauses and standing.

Please see the general assessment advice in Chapter 1. This also explains how to address these sorts of questions by identifying the key phrases and building a structure around them.

Introduction – the advice on essay introductions is pretty standard across these example assessments: keep it brief, address the question and give an indication of what your answer will be. An example could be ‘This question requires an explanation of judicial review (JR) standing and ouster clauses with particular reference to access to the judicial review procedure. This essay will broadly agree with the proposition that access to JR has been liberalised over recent decades, though some difficulties remain.’

Ouster clauses – you will need to concisely define and explain ouster clauses. The question invites you to focus on the response of judiciary, so you will need to discuss the leading case of Anisminic Ltd v Foreign Compensation Commission [1969] and other cases (e.g. Smith v East Elloe District Council [1956]). Engage with the question by asking whether the cases show that JR is ‘available as widely as possible’. The answer is broadly ‘yes’, though some partial or time-limit ouster seem to survive judicial scrutiny.

Standing – you will need to outline and explain the ‘sufficient interest’ test; refer to the Senior Courts Act 1981. Again, focus your discussion on the judicial response to the standing test, particularly in the Fleet Street Casuals case [1982]. Outline the case and explain its significance in changing the focus of the standing test from a) vindicating individual rights to b) the broader public interest in the courts hearing coherent allegations of unlawful conduct. Chart how this shift of focus has played out in subsequent case law (e.g. Rose Theatre [1990], Greenpeace [1994], World Development Movement [1995], Dixon [1997]). Include evaluation alongside your explanations – do these judicial responses show that access to the JR procedure is more widely available than in previous decades? The answer is largely ‘yes’, particularly in relation to public interest type claims.

Further evaluation – the general guidance on essay writing is not to introduce new material into a conclusion, so if you want to discuss wider ‘access to justice’ issues then you will need a separate section. Whether (and to what extent) you should look at these wider issues depends on some variables, chiefly the word count for a coursework or the available time in an exam. The bulk of your answer should be a) built around the key terms used in the question and b) using the material you covered on your Public Law course as the starting point for your content. It is equally true that there are few answers that are not enhanced by some thoughtful attempt to bring in a slightly different angle and additional research.

Looking at the ‘Taking It Further’ section of Chapter 12, especially the materials from the Public Law Project website and from Bondy and Sunkin’s research, would definitely bring something very positive to the answer.

Conclusion – briefly draw your arguments together and present an overall reasoned conclusion that directly addresses the terms of the question.

Chapter 13 Grounds of Judicial Review: Example Assessment

The hypothetical Public Health Act 2014 gives local authorities the power to regulate certain businesses, including sunbed businesses, within their areas. Authorities can license and impose conditions on sunbed operators ‘as they see fit’. Acorntown District Council sets up a Health Licensing Committee (HLC) to exercise these powers. The HLC publishes a statement that ‘all interested parties’ will be consulted before new policies are adopted.

The HLC publishes a policy statement that no new licenses will be granted for sunbed salons within 500 metres of a school. In formulating this policy, the HLC only consulted with schools and not with any other parties.

Golden Tones Ltd is a small chain of sunbed salons. It wants to open a new sunbed salon at a site 450 metres away from a school. Its application is rejected by the HLC, which only cites one reason, the proximity to the school, for its decision.

Golden Tones has an existing salon in the centre of town. Its license has been renewed by the HLC, but contains a condition that the salon undertake a ‘skin type test’ for all new customers. Golden Tones is surprised at this condition as it had included in its license application a link to a report from a respected international health organisation stating that such tests were based on ‘dubious science’ and had no clear health benefits.

Advise Golden Tones Ltd.

Problem questions are more common in this Public Law topic than in any other. You should look at the extended assessment advice on answering problem questions in Chapter 13. This includes a worked through example of a typical judicial review problem question.

Remember the IRAC approach set out in Chapter 1 to answering problem questions:

	Issue – identify the legal issues.
	Rule – outline the applicable law (and illustrate with authority).
	Application – apply the law to the facts.
	Conclusion – conclude with your advice to your clients.

Introduction – this should be very brief and simply indicate that you recognise that the question asks you to apply the laws on judicial review so as to advise the client.

Standing and process – this is a question on the grounds of JR rather than on the issues of standing and procedure covered in Chapter 12. You should, though, give brief advice to the client on these issues, i.e. that they need to bring the claim promptly and in any event within three months and that they will need to show that they have sufficient interest (which they clearly have).

Illegality

Simple ultra vires – you should follow the guidance as set out in Chapter 13 that if the problem scenario does not raise one of the grounds of JR then you should not include it in your answer. In this case, the legislation empowers the authority to issue licenses with conditions to sunbed businesses and that is what it has done. There is no need, therefore, to discuss simple ultra vires.

‘As they see fit’ – this raises the Padfield principle (Padfield v Minister of Agriculture [1968]). Explain that whilst the statute seems to grant absolute discretion to the local authority, in reality this will not exclude judicial review. A court can still assess whether the powers have been exercised for the right purpose, procedurally fairly, etc.

Delegated power – the basic principle is that public bodies must exercise themselves powers that have been granted to them. Here the local authority has delegated the powers to a committee. Applying the Vine [1957] and Carltona [1943] cases, though, shows us that an ability to delegate within an organisation can be implied by statute, and that section 101 of the Local Government Act 1972 makes it explicit that local authorities can set up internal committees and delegate powers to them. There is no breach of the unlawful delegation ground.

Fettering discretion – this ground of JR states that public bodies granted discretionary powers must exercise those powers and must not replace a discretion (a choice) with a rule. You can point out that even very strict policies will be lawful if there is genuine scope for exceptions (British Oxygen Co [1971]) but that the scenario here is closer to Sagnata Investments [1971] where there was a breach of this ground. The policy as stated by the Committee does not appear to have any exceptions and the decision on the new tanning salon seems to have been made solely on the basis of the policy. We can argue strongly that the decision of the Committee is illegal on this ground.

Relevancy rule – the principle is that public bodies must take into account all relevant considerations and exclude all irrelevant considerations from their decision-making process. In this scenario, the apparent failure to take into account the health report on ‘skin type tests’ may be a breach of this ground. You should nuance this a) the cases (ex parte Times Newspapers Ltd [1986], ex parte Jones [1988]) involved decisions based almost entirely on wholly irrelevant factors and b) the Committee may have considered the report and decided not to give much weight to it or decided that it was outweighed by other factors. In the absence of further information, we should not put too much emphasis on this ground.

Irrationality – you can simply outline the basic test – so outrageous in its defiance of logic that no sensible person could have arrived at the decision – and state that it is an extremely difficult test to satisfy. There is no reasonable prospect of arguing breach of this ground in this scenario.

Procedural impropriety – legitimate expectation – this arises where the public body has led the claimant to understand that certain procedures will be followed. In the scenario you can identify the Committee’s statement on consultation as giving rise to a legitimate expectation, based on a published policy (ex parte Khan [1984]). We would have to show that existing sunbed salon owners were ‘interested parties’, but this should be straightforward.

Conclusion – never forget to include a conclusion when answering a problem question. You can quickly summarise the grounds you have identified and discussed, but should go further than this and provide an assessment of which aspects of the problem give you the strongest grounds to bring a claim. In this scenario, these will be fettering discretion and the breach of legitimate expectation in failing to consult.

Chapter 14 Ombudsmen and Tribunals: Example Assessment

Assess the advantages of the Ombudsman and Tribunal systems, as compared to the courts, in securing administrative justice. Consider how the Parliamentary Ombudsman could be usefully reformed.

Please see the general assessment advice in Chapter 1. This also explains how to address these sorts of questions by identifying the key phrases and building a structure around them.

Introduction – this should be brief but show the reader that you understand the assessment task. Often the best way of doing this is by trying to answer the question in the introduction itself, e.g. ‘This essay will explore the key advantages of ombudsmen and tribunals in delivering administrative justice, largely centred around accessibility, flexibility and cost. It will argue that the Parliamentary Ombudsman scheme could be enhanced by reform to the MP filter and enforcement procedures.’

Ombudsman schemes and tribunals – your focus should be on the Parliamentary Ombudsman and you should very briefly outline the role. Similarly, you should briefly outline the role and structure of tribunals as set out in the Tribunals, Courts and Enforcement Act 2007.

Benefits – a good answer will not simply list the benefits but subject them to critical commentary, including balancing advantages as against disadvantages. Benefits include:

	Cost – there is no fee for accessing an ombudsman or tribunal and adverse costs orders, commonly made in courts, are very rare in tribunals.
	Speed and accessibility – tribunals and ombudsmen are normally quicker than courts in reaching a decision. They have advantages in relation to accessibility in physical and procedural terms.
	Flexibility – the procedures adopted in tribunals and by ombudsmen are designed for lay people.

These benefits are interrelated and underpinned by the lack of involvement of lawyers. This prompts discussion of the downsides of the speed and flexibility – that there can be an ‘inequality of arms’ as between private citizens and public bodies and that legal advice and representation often could help people navigate complex areas of administration and administrative law. You can also point out that the ombudsman system is not primarily about vindicating legal rights but about addressing ‘maladministration’ in public bodies.

Reform – again you should seek to both identify and evaluate the reform proposals:

	MP filter – the inability to complain directly to the Parliamentary Ombudsman is a clear weakness. The arguments in favour of keeping the MP filter have long since run their course and it is time for change.
	Enforcement – the lack of formal enforcement powers is traditionally regarded as an intrinsic part of the flexible non-confrontational approach of the ombudsman. Whilst compliance is generally high, there have been examples of public bodies rejecting ombudsman recommendations. A formal enforcement power is inappropriate, but there ought to be stronger political pressures to ensure compliance.

You can also mention the concerns about the opaqueness of the basic test for ombudsman involvement – ‘maladministration that causes injustice’.

Conclusion – this should be very brief and refer back to the terms of the question.

Look at the ‘Taking It Further’ section of Chapter 14 for the types of sources that can really enhance your answer, and also, particularly, the advice in the ‘Assessment Tips’ section to engage with the official websites of the Parliamentary Ombudsman and HM Courts and Tribunals Service. These will enable you to include real life examples and insights and the latest statistical data in your answer.

Chapter 15 Human Rights: Example Assessment

‘Our aim is a straightforward one. It is to make more directly accessible the rights which the British people already enjoy under the Convention. In other words, to bring those rights home’, ‘Rights Brought Home’ (1997) (Cm 3782).

Is the scheme set up by the Human Rights Act 1998 capable of providing these ‘directly accessible’ rights?

Please see the general assessment advice in Chapter 1. This also explains how to address these sorts of questions by identifying the key phrases and building a structure around them.

Introduction – the advice on essay introductions is pretty standard across these example assessments: keep it brief, address the question and give an indication of what your answer will be. For this question, this could be along the lines of ‘This essay will outline the scheme established by the Human Rights Act 1998 (HRA) to make rights directly effective in the UK and will argue that whilst it had been largely successful in meeting that aim, there are aspects of the scheme that need reform.’

‘more accessible’ – this is not immediately obvious, but the use of the phrase ‘more accessible’ in the quotation makes it appropriate to discuss the pre-HRA approach and to relate it to the question. You could outline that approach, based mainly in the idea of residual liberty, as the counterpoint to the HRA scheme. It is apparent that the HRA does make human rights more accessible and you can refer to how this is achieved in the next section and assess how much more accessible in your evaluation.

Scheme set up by the HRA – you will need to outline the HRA scheme. To avoid making this too pedestrian, you can relate your explanation to whether people can access and vindicate their rights. This will be the largest part of your answer and will involve explaining: the obligations imposed on the courts by the interpretive duty in section 3, and declarations of incompatibility under section 4; the Parliamentary procedure under section 19; the duty on public authorities to use their powers compatibly with Convention rights under section 6; and the scope for a direct claim against a public authority for breach of Convention rights under section 7.

Limitations in the HRA scheme? – Your focus in the previous section was on how the HRA has made rights more accessible but you need to have a balanced view and assess any shortcomings. The overarching limitation lies in the explicit desire of the Government to preserve the supremacy of Parliament, and you will need to trace the impact of this through the HRA scheme – the courts can only interpret legislation ‘as far as possible’ to make it Convention-consistent, whilst declarations of incompatibility have no direct legal effect; section 19 is merely a procedural safeguard and still permits Parliament to pass Acts that breach rights; public bodies are still required to obey statutory duties even if that results in a breach of Convention rights. You can also address other areas of uncertainty, such as the narrow and problematic definition of public authority, and the ambiguities around when a common law horizontal action can be brought.

Conclusion – briefly draw your arguments together and present an overall reasoned conclusion that directly addresses the terms of the question.

Look at the ‘Taking It Further’ section of Chapter 15 for the recommended articles by Nicol, Oliver and Hunt, which could bring some good critical depth to your evaluation on the limitations of the HRA scheme.

Chapter 16 Police and Security Powers: Example Assessment

Mr Faisal reports to the police that his car has been taken from his front drive. He has seen it being driven around his area by two young men, who he describes as ‘joy-riders’ and it has now been left, with extensive damage, on the street outside his house. Mr Faisal recognises one of the young men, Jason Steele, and gives the police his name and address. He describes the other man as early-20s, white, thin and with blonde dreadlocks.

Detective Sergeant Marshall receives the report. He goes to Jason Steele’s house and arrests him for taking a vehicle without consent and criminal damage. He knows of one of Steele’s friends, Liam Feeney, who fits the description given by Mr Faisal, and separately arrests him, though without stating the alleged offence.

He takes both suspects to the police station, and the custody officer informs them of their rights. After a brief discussion with his superior officer, Detective Sergeant Marshall agrees with the custody officer to release Feeney without charge. Steele requests a lawyer, but Marshall feels that this will delay his interview and reduce the chances of a confession, so he proceeds with the interview. Steele admits to being in the car but says that he did not initially take the car or cause any damage to it.

Whilst he is in custody, Steele has samples of hair, nails and blood taken from him. He does not give his consent for any samples.

Advise whether Detective Sergeant Marshall and the police have followed the correct procedures and what redress Steele and Feeney may have for any breaches.

Assessment of this topic can take the form of either a problem question or an essay type question. See the assessment advice section of Chapter 16, and the fully worked out problem scenario in Chapter 16. You should look at the extended assessment advice on answering problem questions in Chapter 13.

Remember the IRAC approach set out in Chapter 1 to answering problem questions:

	Issue – identify the legal issues.
	Rule – outline the applicable law (and illustrate with authority).
	Application – apply the law to the facts.
	Conclusion – conclude with your advice to your clients.

Introduction – this should be very brief and simply indicate that you recognise that the question asks you to apply the laws on police powers.

Arrest – outline the requirements for a lawful arrest; a power of arrest, reasonable suspicion and procedural rules (sections 24 and 28 of the Police and Criminal Evidence Act 1984 (PACE)). Apply these rules to the arrest of Steele. Detective Sergeant Marshall clearly has reasonable suspicion (based on the identification evidence) and informs Steele that he is under arrest and the reason for arrest. The difficult issue is whether the arrest is necessary under section 24(5) PACE. The case of Hayes [2011] undermines the stringency of this test, but it is still arguable that none of the criteria exists for concluding that arrest was necessary, and that the arrest was unlawful. In relation to Feeney, there seems to a breach of section 28 PACE in that he has not been informed of the reason for the arrest. The arrest will be unlawful until he is informed of the reason. You could question whether there are sufficient objective grounds for reasonable suspicion to arise, but consideration of the case law (e.g. Castorina [1988]) shows that the test is vague and that the courts have been reluctant to intervene.

Both Steele and Feeney could bring a civil claim in tort for wrongful arrest and seek damages. Feeney seems to have a strong claim based on breach of section 28 PACE. Steele’s claim based on failure to satisfy the necessity test is less clear but arguable. They could also bring a complaint to the Independent Police Complaints Commission.

Detention – it seems that Detective Sergeant Marshall has initially followed the correct procedure in taking the suspects to a designated police station where they are informed of their rights.

Outline the right to legal representation (section 58 PACE) and apply it to Steele. Having requested legal representation, he ought not to have been interviewed before consulting in private with a legal adviser. The exceptions to section 58 PACE do not seem to apply, and Steele would be able to bring a civil action. Whilst he has not made a full confession, he has made damaging admissions during the interview. Following Walsh [1988], the courts are likely to regard these admissions as flowing from a serious breach of PACE and its Codes of Practice and exercise their discretion to exclude the evidence under section 78 PACE.

Physical evidence – outline the rules on obtaining physical samples of evidence from arrested suspects. Under section 62 PACE blood samples are intimate samples and can only be obtained with the consent of the suspect. It is possible to hold a refusal to give consent against an accused at a later trial, but it does not seem that this consent has even been sought. There has been a serious breach of section 62 PACE in taking the blood sample from Steele without his consent.

Under section 63 PACE the hair and nail samples are treated as non-intimate and can be taken without consent.

Steele could bring a civil action against the police, but only in relation to the taking of the blood sample without consent.

Conclusion – never forget to include a conclusion when answering a problem question. You should summarise the breaches of procedure that you have identified and the potential consequences of those breaches. You should differentiate between those breaches that seem on the facts to be clearly established (e.g. breach of section 58 PACE on legal representation) and those which are more arguable or speculative (e.g. failure to follow the necessity test in section 24 PACE).

Chapter 17 Freedom of Expression: Example Assessment

‘Laws on freedom of expression try to strike the right balance between freedom and other social interests but have been overtaken by the advent of social media’.

Discuss.

Please see the general assessment advice in Chapter 1. This also explains how to address these sorts of questions by identifying the key phrases and building a structure around them.  This question is very wide-ranging so you will need to be selective as to what you include in your answer.

Introduction – this should be brief but show the reader that you understand the assessment task. Often the best way of doing this is by trying to answer the question in the introduction itself, e.g. ‘This essay requires an assessment of the balance struck between competing social interests in freedom of expression laws. It will argue that social media has had an impact on the appropriateness of this balance but only within limited fields.’

Balance – your starting point should be Article 10 of the European Convention on Human Rights (ECHR), which provides a broad general right to expression and then goes on to permit proportionate limitations of that right on the grounds of specific social interests, including national security, prevention of crime and the protection of the reputation or rights of others. You could illustrate this by reference to e.g. free expression in the reporting of court proceedings which is balanced by laws on contempt of court (Contempt of Court Act 1981) to ‘maintain the authority and impartiality of the judiciary’ (Article 10(2) of the ECHR).

Social media challenges – the advent of social media has impacted on all forms of expression, but the obvious areas to explore in an essay like this are privacy laws.

Privacy – you could start with the general statements of the need for balance between free expression and protection of confidential or private information (X v Y [1988]), and then move on to an outline of the relatively new tort of misuse of private information (Campbell v MGN [2004]). Your focus should be on a) most cases have been brought against established media outlets rather than social media users or platforms and b) injunctions and super-injunctions are the most common remedy in these cases. Such injunctions are difficult to apply to social media interactions and so private information, even if specifically protected by court order, can in practice be circulated freely.

Depending on your word limit you could also explore the process of subjecting the press to an independent regulator following the egregious practices of some newspapers and the failure of the Press Complaints Commission to control them. There are clearly ‘balance’ arguments to explore, and you can engage with concerns that regulation focussed solely on established media outlets fails to recognise the fact that many people access information and news through social media.

Conclusion – this should be brief and, importantly, refer back to the terms of the question.

Look at any of the books and articles in the ‘Taking It Further’ section of Chapter 17, which will help you add further authority and depth to your answer. This particular question is about a relatively new and fast changing social phenomenon so you would benefit from accessing the latest legal news and research on the topic – see the ‘Research’ section of Chapter 1 on undertaking effective research using the legal databases.

Chapter 18 Freedom of Assembly and Public Protest: Example Assessment

Pro-Life People (PLP) has arranged a protest outside a family planning clinic. It does not seek police permission before holding the protest. The protest involves 15 people who stand outside the clinic holding banners, chanting slogans and try to engage with people who are entering the clinic.

When the police arrive at the protest they ask the organiser, Terence Brooks, to take down certain placards which contain images of aborted foetuses. He refuses. The police inspector also tells Brooks to move the protesters further away from the entrance to the clinic on the basis that they are blocking the pavement. Again, Brooks refuses and is arrested.

One of the protesters, Sheila Atkins, shouts very loudly in the face of a women entering the clinic, ‘If you kill your baby you are going to hell and you will deserve your eternal damnation’. She is warned by a police officer but carries on shouting and is arrested.

At this point a counter-demonstration of women’s groups forms close by. It comprises 50 people and is becoming increasingly hostile to the PLP protest. The police inspector says to the remaining PLP protestors that they need to leave the area with immediate effect.

Advise Brooks and Atkins.

Problem questions are common in this Public Law topic. You should look at the extended assessment advice on answering problem questions in Chapter 13. Chapter 18 also includes a worked through example of a public order problem scenario.

Remember the IRAC approach set out in Chapter 1 to answering problem questions:

	Issue – identify the legal issues.
	Rule – outline the applicable law (and illustrate with authority).
	Application – apply the law to the facts.
	Conclusion – conclude with your advice to your clients.

Introduction – this should be very brief and simply indicate that you recognise that the question asks you to identify and apply the laws on public order to advise the clients.

Assembly – you should identify that the protestors are holding an assembly (as it involves a static gathering of more than two people) rather than a procession and therefore do not need to give notice under section 11 of the Public Order Act 1986 (POA).

Public order offences – you should deal with the potential offences resulting from the placards. Outline the offence in section 5 POA of using threatening or abusive words or behaviour (or an equivalent sign) within hearing or sight of a person likely to be caused harassment, alarm or distress. The key case is DPP v Clarke [1992] where the court found on very similar facts that, whilst the placards may have been likely to cause distress, there was no evidence of an intention to engage in threatening behaviour. On this authority, it seems unlikely that Brooks has committed the section 5 POA 1984 offence.

Turning to Atkins, it is more likely that an offence has been committed. Her words and actions can be categorised as threatening or abusive, and it likely that the woman entering the clinic would be caused harassment, alarm or distress. There is no need for the woman to give evidence, and a police officer can testify as to the likely effect of Atkins’s behaviour. You should also consider the more serious offence under section 4A POA. This requires evidence of an intention to cause harassment/alarm/distress by the use of threatening, abusive or insulting behaviour. It also requires evidence of someone actually being caused such harm. This intention can be inferred from Atkins’s conduct. You should also assess whether the section 5 power of arrest is triggered.

Obstruction of the highway – outline the relevant law, i.e. section 137 of the Highways Act 1980 ‘to wilfully obstruct the free passage of the highway’, which includes the pavement. The trespassory assemblies law does not seem relevant as we are not told of any order under section 70 of the Criminal Justice and Public Order Act 1994. In applying the law to the conduct of the PLP you should note the related case law, which states that the court will look at the overall reasonableness of the behaviour including the length and extent of any obstruction, the effect on other highway users and the purpose of the event (Nagy v Weston [1965], and that protest on matters of public concern is a valid use of the highway (Hirst and Agu [1986]). On the facts as stated, it is arguable that Brooks has not committed the offence.

Breach of the peace – the existence of the counter-demonstration invites discussion of breach of the peace and the hostile audience dilemma. You should outline the powers to direct people to move, etc. that arise when the police apprehend that a breach of the peace is taking place or there is a real and present threat that it is imminent (Howell [1982], Foulkes [1998]). You can refer to the hostile audience dilemma (Beatty v Gillbanks [1882] but should conclude that the weight of modern authority is that the police should not break up a lawful protest because of threats of disorder from some other group (Laporte [2006], Redmond-Bate [2000]). It is strongly arguable that the police erred in trying to use breach of the peace powers to direct the PLP protestors to disperse.

Conclusion – never forget to include a conclusion when answering a problem question. You should summarise the offences that have been committed and what advice you would give to the PLP protestors.