Examination papers and Examiner’s reports 2008

Examiner’s report 2008

265 0020 Public law Zone A

General remarks
As in previous years, the results ranged from first-class to poor failures.
In general the standard of written English has improved, although in
too many instances legibility was a problem. Candidates are
encouraged to practise their written English throughout the year and
should note (as is stated on the front of the examination paper) that
accuracy, clarity and legibility are important.
Having 15 minutes reading time this year should have made the task of
selecting questions and planning answers much easier. Candidates who
used this time effectively were able to devote the maximum time to
presenting their answers.
There remain a number of common problems. First, too many
candidates simply did not have sufficient knowledge to pass. It is rarely
possible to do justice to a question in less than two sides of A4 paper
and many of the best candidates offered double this amount. Second,
there remain problems with time management, with some candidates
failing because they had only offered two or three answers. It is
essential that equal time be given to each question and that four
complete answers be given. Third, while the best candidates made
effective use of statutory sources and case law, too many weak
candidates did not. In Public law there are (in comparison with some
other subjects) relatively few major cases. Candidates must, however,
be able to discuss them. Although it is not necessary to provide the full
citation, the correct name of the case and its date should be provided.
Finally, there remains the problem of candidates offering a pre-learned
answer, with or without minor adjustments to attempt to make the
answer ‘fit’ the question. This can never produce more than a bare
pass, if that. Rote-learned answers give no indication of a candidate’s
knowledge or understanding. Too often Examiners find that a tutor has
given candidates incorrect information or that the information has
been incorrectly interpreted and that, relying on this information
rather than the subject guide and textbook, candidates all repeat the
same error in the examination. Tutors and candidates must understand
that rote-learning is not academically acceptable and that it lets
candidates down in examinations.

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Specific comments on questions

Question 1
‘The rule of law enforced by the courts is the ultimate controlling factor on
which our constitution is based.’ (Lord Hope of Craighead in Jackson v
Attorney General (2006))
Discuss.

This question was popular with candidates and produced many

interesting and good answers.
The best answers started with an introduction explaining briefly that
there are several different philosophical interpretations of the rule of
law and then focusing on A.V. Dicey’s three-part analysis. At this point
it would have been useful to explain the uncodified nature of the
United Kingdom’s constitution before moving on to analyse the
quotation given.
Having offered a brief introduction, there were then many different
ways of approaching this broad question. There were some very good
answers which concentrated on the judges’ role in interpreting statutes
and developing the common law. Many candidates discussed cases,
such as Entick v Carrington (1765), in support of the judges’ concern to
protect individual rights against the power of the state. The Human
Rights Act 1998, and the manner in which the judges have used it to
further the protection of rights, was also relevant.
However, as the best answers revealed, there are limitations on what
judges can achieve. Relevant here was a discussion of parliamentary
supremacy and the duty of the judges to interpret Parliament’s will:
where Parliament grants broad powers to the authorities there is little
judges can do. Further, under common law, as the much-cited case
Malone v Metropolitan Police Commissioner revealed, where there is no
domestic law protecting ‘rights’ the courts will refuse to provide that
protection (resulting, in Malone’s case, in an application to the Court of
Human Rights which led to a change in the law).
It was important also to recognise the limitations of the Human Rights
Act 1998. As the best candidates pointed out, although there is much
that judges can do, the Act has been carefully drafted to ensure that
statutes are protected from invalidation by the judiciary, leaving it to
Parliament to correct any law which is incompatible with ECHR rights.
A brief conclusion was needed. A balanced conclusion explained that,
while the rule of law was an important concept under the British
constitution, it was an exaggeration to say that it was the ‘controlling
factor’.

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Question 2
In what respects, if any, has A.V. Dicey’s exposition of parliamentary
sovereignty become an anachronism?

This popular question was generally well answered. A brief

introduction explaining the constitutional need for an ultimate source
of authority within a state was required. This then led to a brief
explanation of the evolution of the United Kingdom’s constitution and
the establishment of parliamentary supremacy in the seventeenth
century. The distinction between political and legal sovereignty could
also be discussed at this stage.
As the question is focused on Dicey’s analysis it was necessary to set
out his three main points and then to analyse each, making reference
to illustrative statutory sources and case law. The majority of
candidates had little difficulty in explaining Parliament’s power to pass
legislation on any subject matter whatsoever. The third aspect of
Dicey’s analysis – that the validity of Acts of Parliament cannot be
called into question in a court of law – was also handled well.
The second aspect, however, did cause a number of problems. The best
candidates were able to point out that the inability of Parliament to
bind its successors, or be bound by its predecessors, was reflected in
the judges’ use of the doctrine of implied repeal. However, there are a
number of challenges which have been made to this principle and these
also required discussion. Among the relevant issues which could and
should have been discussed were:
• the Acts of Union with Scotland and Ireland
• manner and form and redefinition theories
• membership of the European Union
• devolution to Northern Ireland, Scotland and Wales
• the Human Rights Act 1998.
While the best candidates were able to discuss most of these issues, the
weakest candidates confined their discussion to setting out Dicey’s
main points and then discussing the European Union and the
Factortame case. This was rarely sufficient for a pass.

Question 3
The Constitutional Renewal Bill 2008 provides, in part, that the powers
relating to war, the disposition of the armed forces and the ratification of
treaties should be transferred from the royal prerogative to Parliament.
Critically assess this proposal with particular reference to the separation of
powers.

This question produced some exceptionally good answers and a large

number of very poor answers. A number of different approaches could
have been taken to this question. One good starting point would have
been to explain briefly the uncodified nature of the United Kingdom
constitution and its sources, legal and non-legal. This would then lead

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to a discussion of the royal prerogative as one of the common law

sources. It should have been explained that these powers are residual
and continue to exist because Parliament allows them to.
Attention could then be turned to the consequences of transferring the
powers from the executive to Parliament. In order to do this as
required by the question, a brief introduction to the separation of
powers under the UK constitution was needed, focusing particularly on
the relationship between the executive and legislature and the
constitutional position of the judiciary (independence, Act of
Settlement). A brief discussion of parliamentary procedures which
facilitate scrutiny of the executive could then be undertaken.
As many of the best answers revealed, there are a number of issues
which ministers conventionally refuse to answer questions about in
Parliament. Furthermore, in relation to scrutiny by the judiciary
through judicial review proceedings, it should have been explained
that the concept of justiciability, developed and maintained by the
judges, is designed to keep judges from ruling on matters best left to
the executive.
In terms of controlling the exercise of these prerogatives, therefore, the
question arises as to whether transferring these powers to Parliament
would in fact make any difference.
Opinions were very divided as to whether this was a sound proposal.
Those who agreed with it did so largely on the basis that in a
democracy having such important powers reserved to the executive
was wrong. Those against relied largely on the need for there to be
some reserve powers left to the executive, especially in relation to war
and peace. That conclusion caused many candidates to favour the
transfer of treaty-making power to Parliament, but not powers relating
to war and the armed forces.

Question 4
How does United Kingdom law achieve a ‘level playing field’ between rival
candidates and political parties with respect to parliamentary election
campaigns?

In general this question produced some very good answers. To achieve

the highest marks possible it was necessary to cover several aspects of
electoral law. Issues which should have been discussed, together with
the relevant statutory sources and case law, were:
• constituency sizes to ensure approximate equality in the
number of voters and the exceptions to the equality principle
which result in considerable variations in the number of voters
per constituency
• the franchise and those disqualified or ineligible to vote and
statutory reforms resulting in a more inclusive electoral register
• the legal rules relating to candidates’ expenditure, criminal
offences and the issue of participation in broadcasts in general
election campaigns

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• the registration of political parties

• the regulation of spending at national level by political parties
(and the question of whether state funding should be provided)
• the voting system, its advantages and disadvantages.
The strongest candidates were able to discuss each of these issues and
to indicate the relevant statutory provisions and case law. When citing
statutory provisions it is unnecessary to copy out sections: this wastes
time and detracts from the quality of the discussion.
Too many candidates unfortunately did not cover all the necessary
areas of this topic. It was not sufficient for a pass simply to focus on
either party political funding or the voting system.

Question 5
‘The integration into the laws of each Member State of provisions which
derive from the Community and more generally the terms and the spirit of
the Treaty, make it impossible for the states, as a corollary, to accord
precedence to a unilateral and subsequent measure over a legal system
accepted by them on a basis of reciprocity.’ (Costa v ENEL (1964) European
Court of Justice)
Discuss with particular reference to the techniques adopted by the European
Court of Justice to ensure the uniform application of Community law over
domestic law.

This question was not popular but did produce some very good
answers. By way of introduction it was helpful to explain the origins of
the European Community (now Union) and its objectives. A brief
explanation could then be given of the view of the European Court of
Justice (ECJ) that Community law is, and must be, supreme over the
domestic law of Member States.
A good answer would then briefly discuss the primary and secondary
sources of Community law – principally Treaty Articles, Regulations
and Directives – and explain the difference between the sources. This
led to a discussion of direct applicability and direct effect and in turn to
indirect effect and state liability. In relation to each of these aspects of
the question, it was essential to discuss the case law of the ECJ.
Given the wording of the question, candidates were not required to
discuss in detail the European Communities Act 1972 or the domestic
case law demonstrating how the English courts deal with the issue of
supremacy. Where candidates focused on this issue – at the expense of
discussing the techniques of the ECJ – they failed. In relation to weaker
or poorly-prepared candidates, this question is a good example of how
candidates can interpret a question incorrectly to enable them to offer
an answer which has been prepared previously, rather than answer the
question on the examination paper.

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Question 6
‘Provided that there is adequate legal regulation of special powers given to
state agencies when the security of the state is under threat from terrorism,
the limitation of citizen’s rights and freedoms is justified.’
Discuss with particular reference to statute and case law.

This question was not attempted by many candidates, and those who
did attempt it did so with very variable results.
The strongest candidates were able to explain the relevant agencies –
MI5, MI6, GCHQ and the police – and their role. They were also able to
explain the former lack of statutory regulation and the development of
a statutory framework (Security Services Act 1989, Intelligence
Services Act 1994, Regulation of Investigatory Powers Act 2000).
In addition it was necessary to discuss the Terrorism Acts and the
powers they gave. The ability of the state to derogate from ECHR rights
in times of emergency was also relevant. The important case of A v
Secretary of State for the Home Department (2004) should have been
discussed to illustrate the impact of the Human Rights Act 1998 on the
power of the state to restrict the liberty of suspects and to derogate
from Convention rights in response to threats of terrorism.
This question produced too many answers which were completely
irrelevant to the question. This emphasises the point that candidates
must use reading time effectively to ensure that they have correctly
interpreted the question.

Question 7
By reference to case law, discuss the status and effect of the European
Convention on Human Rights in UK domestic law.

This was a popular question and produced a high proportion of very

good answers. By way of introduction, it could have been explained
that the European Convention on Human Rights was drafted under the
authority of the Council of Europe (not the European Community or
Union). A brief discussion of its main features was helpful – in
particular that it covers civil and political (rather than economic
and/or social) rights.
The British government’s position before 1997 required brief
discussion, as did the legal consequences – namely that Convention
rights were not enforceable in the domestic courts and that aggrieved
individuals had to exhaust all domestic remedies and then pursue an
application in Strasbourg. Mention should also have been made of the
approach of the courts, illustrated by case law, to the Convention prior
to the Human Rights Act 1998.
It was important that the structure of the Human Rights Act 1998 be
discussed. This did not entail copying out sections from the statute
book. What was required was a selective and critical discussion of the
relevant sections, in particular ss.2, 3, 4, 6 and 8 in relation to the
powers conferred on the judiciary and ss.10 and 19 in relation to the

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executive and Parliament. Such an analysis would have led to the

conclusion that the Act carefully preserves parliamentary supremacy by
ensuring that the judiciary does not question the validity of Acts of
Parliament.
The strongest candidates were able also to discuss some of the more
important cases which have been decided since the Human Rights Act
came into effect, especially those which have led to changes in the law.

Question 8
Within the context of judicial review and with reference to case law, explain
the legal definitions of (a) sufficient interest, and (b) public bodies.

A popular question which produced a high proportion of very good

answers. A good introduction would have explained the role and
purpose of judicial review. It would have explained its constitutional
importance in ensuring that state agencies keep within the powers
granted by statute and comply with the requirements of
reasonableness, natural justice, fairness and proportionality.
Having set the scene, it was then necessary to focus on the legal
definitions of both sufficient interest and public bodies. This was where
the difference lay between those achieving high marks and those who
failed. The strongest candidates offered a detailed analysis of the case
law on sufficient interest, being able to explain the need to limit the
ability of individuals or groups to interrupt the administrative process
by challenging the use of power. Many rightly discussed the case law
relating to individual applicants, representative bodies and pressure
groups applying for judicial review in the public interest.
Equally, with the definition of public bodies, the best answers
explained that, as there is no fixed definition of the term public bodies
in relation to judicial review proceedings, it is necessary to analyse the
case law to understand its meaning and scope.
Candidates who failed generally did so because, rather than answer the
question on the examination paper, they chose to write all they knew
about judicial review, with sufficient interest and public bodies getting
no more than a brief mention. These were clearly answers which had
been prepared previously. They did not therefore answer the question
and could not pass.