Public Law Zone B 2022 (Oct)

Question 3

Discuss the powers exercised by a British Prime Minister, and the political and legal
limitations upon their use.
Sample Structure:
I. Introduction A. Definition of the role of the British Prime Minister B. Overview of
powers and responsibilities C. Explanation of the flexible and evolving nature of the
role
II. Powers of the British Prime Minister A. Appointment and dismissal of ministers 1.
Power of patronage and ministerial appointments 2. Creation, merger, or renaming of
government departments 3. Case example: Department for International
Development and Foreign Office merger
III. Political Limitations on Prime Ministerial Powers A. Convention and agreement 1.
Appointment of ministers by the Prime Minister 2. Suspension of confidentiality
convention in special cases a. Agreement to differ on issues like referendums 3.
Free votes on matters of conscience (Consider the topic of conventions)
IV. Legal Limitations on Prime Ministerial Powers A. Individual ministerial
responsibility 1. Personal and official conduct of ministers 2. Responsibility to
Parliament and potential consequences 3. Distinction between operational and policy
matters. (Consider the topic of individual and collective responsibility).
V. Conclusion A. Recap of powers exercised by the British Prime Minister B.
Overview of political and legal limitations C. Emphasis on the flexible and evolving
nature of the role.
Cases to consider:
Attorney General v Jonathan Cape Ltd [1976] 1 QB 752 (case reference)
 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (case reference)
 The Carltona doctrine holds that the acts of government departmental
officials are synonymous with the actions of the minister in charge of
that department.
 The doctrine was established in the case of Carltona Ltd v
Commissioners of Works [1943] 2 All ER 560.
 The doctrine has been applied in a wide range of cases since it was
first established.
 The doctrine has been criticized by some commentators, but it remains
an important part of English administrative law.
  Le Sueur, A., Sunkin, M., & Murkens, J. (reference for the Carltona principle)
Question 4
Critically assess the law-making functions and processes of the House of Commons.
Answer Structure:
I. Introduction A. Briefly introduce the House of Commons and its significance in the
legislative process. B. Provide an overview of the law-making functions and
processes to be discussed.
II. Law-Making Functions of the House of Commons
A. Legislative Initiation
1. Explain how bills can originate in the House of Commons.
2. Discuss the role of individual Members of Parliament (MPs) in proposing
legislation.
3. Explore the influence of government priorities in shaping the legislative
agenda.
 Party Manifesto and Policy Agenda:
o Governments typically enter office with a manifesto that outlines
their policy priorities and agenda.
o The government's legislative agenda reflects its commitment to
implementing the policies and fulfilling the promises made in the
manifesto.
o The manifesto provides a blueprint for the government's
legislative priorities and serves as a guiding document for the
initiation of bills.
o The National Minimum Wage Act 1998, which introduced a
national minimum wage for all workers in the UK. This is aligned
to the Labour Party manifesto that they believe that the
economy should work for everyone, not just the rich and
powerful. We will raise taxes on the wealthy, and invest in public
services and infrastructure.
 Queen's Speech:
o The Queen's Speech, delivered at the State Opening of
Parliament, outlines the government's legislative agenda for the
upcoming parliamentary session.
o It presents the key bills and policies the government intends to
introduce and implement.
o The Queen's Speech is a manifestation of the government's
priorities and sets the tone for legislative action in the House of
Commons.
o Example:- The Health and Social Care Bill 2021-22, which will
reform the NHS and social care system in England proposed by
Conservative Government.
 Government Control and Whipping System:
 o The governing party holds a significant advantage in shaping the
legislative agenda due to its majority in the House of Commons.
o Through the party's whipping system, which ensures party
discipline and enforces voting loyalty, the government can exert
influence on MPs to support its agenda.
o The Chief Whip and party leadership coordinate efforts to
secure support for government bills and policies, aligning MPs'
voting behavior with the government's priorities.
o Example is Investigatory Powers Act 2016 proposed by the
Conservative government.
 Parliamentary Timetable and Allocation of Time:
o The government has control over the parliamentary timetable,
determining when bills are introduced, debated, and voted upon.
o The government sets the pace and allocates time for the
consideration of bills, prioritizing those aligned with its agenda.
o This control over the timetable allows the government to
expedite the passage of bills it deems crucial and delay or limit
the consideration of bills that may conflict with its priorities.
 One of the main criticisms of PETAT is that it gives the
government too much power to decide which bills are
debated and when. The government can choose to
allocate more time to bills that it supports, and it can also
choose to limit the amount of time that is available for
debate on bills that it opposes. This can give the
government an unfair advantage in the legislative
process, and it can make it difficult for MPs to scrutinise
government legislation - House of Commons Public
Administration and Constitutional Affairs Committee 2016
Report.
 Influence of Cabinet and Ministers:
o Cabinet ministers play a crucial role in shaping the legislative
agenda.
o Ministers responsible for specific policy areas, known as
departmental ministers, propose and champion bills related to
their portfolios.
o They collaborate with civil servants to develop policy proposals
and draft legislation, aligning them with the government's overall
priorities.
o Example, Cabinet and Ministers were influential in the creation
of the Investigatory Powers Act 2016. This Act gave the
government sweeping powers to collect and store data on
people's communications. The Act was controversial, and there
were concerns that it would be used to spy on people's private
lives. However, the government was able to get the Act passed
by using the Cabinet and Ministers to pressure its own MPs to
vote in favor of it.
  External Factors and Public Pressure:
o Public opinion and external events can also influence the
government's legislative agenda.
o Significant events, crises, or public pressure on certain issues
can prompt the government to prioritize specific legislation.
o Public protests, lobbying efforts, or media attention can draw
attention to particular policy areas, compelling the government
to address them legislatively.
o The Equal Pay Act 1970, which was passed due to pressure
from the women's rights movement.
o The Human Rights Act 1998, which was passed in response to
the European Convention on Human Rights.
o The Equality Act 2010, which was passed to protect people from
discrimination on the grounds of age, disability, gender
reassignment, marriage and civil partnership, pregnancy and
maternity, race, religion or belief, sex, and sexual orientation.
B. Scrutiny and Debate
1. Describe the stages of legislative scrutiny, such as the first reading, second
reading, committee stage, report stage, and third reading.
a. First Reading – Nature of scrutiny – voting on the Bill
b. Second Reading – Debates
c. Committee Stages – Amendments and recommendations.
d. Report Stage – Debates and Voting on the amendments and
recommendations.
e. Third Reading – Voting on whether to approve the Bill.
2. Highlight the importance of debates and discussions during these stages.
3. Discuss the role of select committees in examining bills and gathering
evidence.
a. They are able to examine the bill in detail and make recommendations
for amendments. This helps to ensure that the bill is carefully
considered and that it reflects the views of Parliament. Select
Committees reports are published and are available to the public. This
means that the public can see how Parliament is scrutinising legislation
and can make their own views known.
b. In 2019, the Public Administration and Constitutional Affairs Committee
published a report on the government's proposed changes to the law
on freedom of information. The committee found that the changes
would make it more difficult for people to access information from
public bodies. The committee made a number of recommendations for
changes to the bill, but the government rejected these
recommendations. As a result of the committee's report, the
government decided to withdraw the bill. This shows that select
committee recommendations can be an effective way to hold the
government to account and to influence the legislative process.
III. Processes and Considerations A. Party Influence and Whipping System 1.
Examine the role of political parties in the legislative process. 2. Discuss the party
whipping system and its impact on voting patterns. 3. Analyze the tension between
party discipline and individual MP autonomy.
 One recent example is the case of Owen Paterson, a Conservative MP who
was found to have broken lobbying rules. Paterson was initially suspended
from the Conservative Party, but he was later reinstated after a vote by
Conservative MPs. This decision was controversial, with some people arguing
that it showed that the party was putting party loyalty ahead of individual MPs'
integrity.
 Another example is the case of Chris Huhne, a Liberal Democrat MP who was
found to have lied about speeding points. Huhne was initially suspended from
the Liberal Democrats, but he was later allowed to remain in the party after he
resigned as an MP. This decision was also controversial, with some people
arguing that it showed that the party was putting party unity ahead of
individual MPs' honesty.
B. Public Input and Consultation 1. Explore mechanisms for public input, such as
public consultations and committee hearings. 2. Discuss the effectiveness and
limitations of public engagement in the law-making process. 3. Consider the role of
interest groups and lobbying in influencing legislation.
 In 2017, the government consulted on changes to the law on abortion. The
consultation received over 100,000 responses, and the government's
subsequent changes to the law reflected the views of many of those who
responded.
 In 2018, the government consulted on changes to the law on assisted dying.
The consultation received over 200,000 responses, and the government's
subsequent changes to the law reflected the views of many of those who
responded.
C. Relationship with the House of Lords 1. Explain the process of legislative scrutiny
and amendment by the House of Lords. 2. Discuss the dynamics of the House of
Commons' response to amendments from the House of Lords. 3. Evaluate the
impact of the House of Lords on the law-making process.
IV. Evaluation and Critique A. Effectiveness and Efficiency 1. Assess the efficiency of
the House of Commons in passing legislation. 2. Analyze the potential challenges
and bottlenecks in the law-making process. 3. Consider the impact of procedural
rules and time constraints on legislation.
 Use Journal view to expand.
B. Representativeness and Democratic Accountability 1. Evaluate the extent to
which the House of Commons represents diverse interests. 2. Discuss the
accountability of MPs to their constituents in the law-making process. 3. Consider the
influence of party discipline on democratic representation.
  According to the House of Commons Library, there are 66 minority ethnic
Members of Parliament (MPs) in the UK House of Commons as of September
2022. This represents 10% of the total number of MPs 1. Of these 66 MPs, 41
are from the Labour party and 23 are from the Conservative party. There are
two Liberal Democrat MPs from a minority ethnic background 1. More than half
(37) of the 66 minority ethnic MPs are women 1.
V. Conclusion A. Summarize the key findings and arguments presented in the
assessment. B. Offer a balanced evaluation of the law-making functions and
processes of the House of Commons.
Question 6
‘The principles of fairness are not to be applied by rote identically in every situation.
What fairness demands is dependent on the context of the decision, and this is to be
taken into account in all its aspects.’
Discuss in the context of administrative law with reference to case law.
Sample Structure
Introduction:
 Introduce the concept of fairness in administrative law
 Mention the statement, "'The principles of fairness are not to be applied by
rote identically in every situation. What fairness demands is dependent on the
context of the decision, and this is to be taken into account in all its aspects.'"
 Provide an overview of the cases and issues to be discussed
I. Contextual Application of Fairness Principles
 Discuss the classification of grounds for judicial review according to Lord
Diplock in the GCHQ case (Council of Civil Service Unions v Minister for the
Civil Service [1985] AC 374)
 Those who believe that the ban was fair argue that GCHQ is a sensitive
organization that deals with national security, and that allowing civil servants
to form a union could pose a security risk. They argue that unions could be
used to disrupt operations or to leak sensitive information. They also argue
that civil servants at GCHQ already have a number of other protections, such
as the right to strike, and that they do not need the additional protection of a
union.
 Explain the significance of considering the context of the decision when
applying fairness principles
II. Illegality: Acting Ultra Vires
 Present the case of Attorney-General v Fulham Corporation [1921] 1 Ch 440
 Describe how exceeding statutory powers can be a violation of fairness
  Discuss the importance of correctly understanding and applying the law in
administrative decisions
III. Exercise of Discretion: Unlawful Exercise and Limitations
 Discuss the case of R v Richmond upon Thames Council, ex p McCarthy and
Stone Ltd [1992] 2 AC 48
 Highlight the issue of unlawfully exercising discretion by a local council
 Explain the relevance of fair and reasonable exercise of discretion in
administrative decision-making
IV. Procedural Impropriety: Rules of Natural Justice
 Introduce the concept of procedural impropriety
 Discuss the importance of procedural requirements, including the rules of
natural justice
 Provide examples of cases where fair procedures and consultation were
necessary (e.g., Agricultural Training Board v Aylesbury Mushrooms [1972] 1
All ER 280)
V. Irrationality or Wednesbury Unreasonableness
 Present the case of Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1947] 2 All ER 680
 Explain the concept of irrationality as a ground for judicial review
 Discuss the high threshold for intervention and the need for decisions to be
free from outrageous defiance of logic or accepted moral standards
 Be clear that courts will not declare an act by a public authority as irrational
unless the high threshold is met.
 In the case of R v Secretary of State for the Home Department, ex
parte Fire Brigades Union (1995), the government introduced a pay
freeze for firefighters. The courts found that the pay freeze was
unreasonable because it was not based on any rational criteria.
 In the case of R (on the application of Unison) v Lord Chancellor
(2017), the government introduced a cap on the number of days that
civil servants could take annual leave. The courts found that the cap
was unreasonable because it interfered with civil servants' right to a
healthy work-life balance.
VI. Proportionality: A Potential Alternative
 Introduce the case of De Freitas v Permanent Secretary of Ministry of
Agriculture, Fisheries, Lands and Housing [1999] AC 69
 Discuss Lord Clyde's three-part test for proportionality in determining fairness
  Highlight the increasing use of proportionality in European Union law and
human rights cases.
 R (Begum) v Denbigh High School Governors (2006): The school had
a policy of requiring all students to wear a school uniform. A student
who was a member of the Ahmadiyya Muslim community challenged
the policy, arguing that it interfered with her right to manifest her
religion. The court found that the policy was a proportionate
interference with the student's right to freedom of religion. The court
found that the school had a legitimate aim in requiring all students to
wear a school uniform, and that the policy was a necessary and
appropriate way of achieving that aim.
 R (on the application of Daly) v Secretary of State for the Home
Department (2001): The government introduced a policy of requiring
prison officers to work in close proximity to prisoners who had tested
positive for HIV. A prison officer challenged the policy, arguing that it
was a disproportionate interference with his right to health and safety.
The court found that the policy was a proportionate interference with
the prison officer's right to health and safety. The court found that the
government had a legitimate aim in preventing the spread of HIV, and
that the policy was a necessary and appropriate way of achieving that
aim.
 R (on the application of Huang) v Secretary of State for the Home
Department (2007): The government introduced a policy of deporting
foreign nationals who had been convicted of a criminal offence, even if
they had been living in the UK for many years and had strong ties to
the community. A foreign national who had been convicted of a minor
criminal offence challenged the policy, arguing that it was a
disproportionate interference with his right to family life. The court
found that the policy was a disproportionate interference with the
foreign national's right to family life. The court found that the
government had a legitimate aim in deporting foreign nationals who
had been convicted of a criminal offence, but that the policy was not a
necessary and appropriate way of achieving that aim.
VII. Application of Fairness in Different Contexts
 Present the case of Bugdaycay v Secretary of State for the Home Department
[1987] AC 514
 Illustrate the lower threshold of unreasonableness required when fundamental
rights are at stake
 Emphasize the importance of heightened fairness considerations in such
cases
Conclusion:
 Summarize the main points discussed in the essay
  Reiterate the significance of considering the context of administrative
decisions when applying fairness principles
 Highlight the role of case law in shaping and interpreting the concept of
fairness in administrative law
Question 7

Critically evaluate the present method of protecting civil liberties and human rights in the
UK, giving reasons as to whether a modern Bill of Rights should now be introduced to
replace the Human Rights Act 1998.

Sample Structure:
I. Introduction
 Provide an overview of the present method of protecting civil liberties and
human rights in the UK. Remember judicial review is also method.
 Introduce the Human Rights Act 1998 and its role in safeguarding rights.
II. Analysis of the present method of protecting civil liberties and human rights A.
Examination of the Human Rights Act 1998 and its provisions - Discuss the key
provisions of the Human Rights Act 1998, such as Sections 2, 3, 4, 6, and 19. -
Reference R (UNISON) v Lord Chancellor [2017] UKSC 51 to highlight the courts'
protection of civil liberties through the common law. Consider other relevant cases
as well. Perhaps another 2 cases. Remember the specific Articles from ECHR
relevant for the cases.
B. Assessment of the strengths and weaknesses of the Human Rights Act 1998
1. Positive aspects of the Human Rights Act 1998 –
 Analyze cases like R (Hallam) v Secretary of State for Justice [2019] UKSC 2,
demonstrating the courts' effective role in protecting human rights through the
HRA 1998.
2. Criticisms and challenges of the Human Rights Act 1998
 Explore cases like Thoburn v Sunderland City Council [2002] EWHC 195,
discussing the limitations on the courts' power to invalidate primary legislation.
 Reference R (Nicklinson) v Ministry of Justice [2014] UKSC 38 to highlight the
judiciary's role in addressing controversial rights issues.
3. Evaluation of the overall effectiveness of the Human Rights Act 1998
 Discuss cases like R (on the application of Chester) v Secretary of State for
Justice; McGeoch v Lord President of the Council and Another [2013] UKSC
63 to illustrate the courts' discretion in issuing declarations of incompatibility.
III. Examination of the need for a modern Bill of Rights
A. Concept of a modern Bill of Rights and its benefits
- Discuss the proposal of a British Bill of Rights and Duties in the Governance of
Britain Green Paper.
Some of the key points in the Green Paper include:
 The need to shift power from the executive to Parliament and the public.
 The need to make the executive more accountable.
 The need to reinvigorate democracy.
 The need to involve the public in constitutional change.
 The Green Paper also sets out a number of options for giving legal effect to a
new Bill of Rights and Duties, including a declaratory statement, a statement
of principles informing legislation and guiding the courts, and full legal
justiciability.
 The Green Paper was met with a mixed response from the public and from
constitutional experts. Some people welcomed the proposals for constitutional
reform, while others argued that they would weaken the UK's human rights
protections.
B. Arguments for introducing a modern Bill of Rights
1. Concerns and criticisms of the current method of protection – Short summary will
do. Max 1 para.
- Analyze the Terrorism Act 2000, highlighting concerns over potential infringements
on civil liberties in counter-terrorism legislation.
 The Terrorism Act 2000 has been criticized by some for infringing on civil
liberties. Some of the concerns that have been raised include:
 The Act's definition of terrorism is broad and could be interpreted to include a
wide range of activities, including peaceful protest.
 The Act allows the police to stop and search people without reasonable
suspicion, and to detain people for up to 48 hours without charge.
 The Act allows the police to seize property without a warrant, and to place
restrictions on travel.
 The Act allows the government to proscribe organizations that it believes are
involved in terrorism, and to prevent people from associating with these
organizations.
 The concerns over the Terrorism Act 2000 have been raised by a number of
organizations, including the Human Rights Watch, the Liberty, and the
National Council for Civil Liberties. These organizations argue that the Act
gives the government too much power to restrict people's rights and
freedoms, and that it could be used to target peaceful groups and individuals.
 The government has defended the Terrorism Act 2000, arguing that it is
necessary to protect the public from terrorism. The government has also said
that the Act is subject to a number of safeguards, including judicial oversight,
and that it is not intended to be used to restrict people's rights and freedoms.
2. Potential improvements with a modern Bill of Rights
 - Reference Ghaidan v Godin-Mendoza [2004] UKHL 30 to demonstrate judicial
creativity in interpreting legislation to align with Convention rights.
C. Counterarguments against introducing a modern Bill of Rights
- Reference Fenwick, H. ‘The Conservative stance in the 2015 election on the UK’s
relationship with the Strasbourg Court and its jurisprudence – bluff, exit strategy or
compromise on both sides? (Part I)’ to provide insights into the arguments against
incorporating the ECHR into domestic law.

IV. Conclusion
Summarize the analysis of the present method of protecting civil liberties and human
rights in the UK.
Provide a balanced evaluation of whether a modern Bill of Rights should be
introduced to replace the Human Rights Act 1998, based on the strengths,
weaknesses, and potential improvements identified.