GLASGOW CALEDONIAN UNIVERSITY

Department of Economics and Law

School for Business and Society
MODULE HANDBOOK

PUBLIC
LAW

M1M225692-23-A
Trimester 1
Session 2023-24

Dr. Nick McKerrell

LLB / LLB Hons (Level 1)

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1.0 AIMS OF THE MODULE

The aim of this class is to make you aware of the role of law in relation to the
governance of the United Kingdom with particular reference to the ideas
underpinning the UK Constitution and the practicalities of the Scottish
Devolution settlement.

Many issues in the last decade are relevant to this course. There have been so
many it could be said that it has been one of the most significant times for Public
Law in recent memory

 The death of Britain’s longest serving monarch after 70 years in office

and here replacement with her son. What differences (if any) will we
see?

 The ousting of ex Prime Minister Boris Johnson in the summer of 2022,

his replacement by Liz Truss and then Rishi Sunak 44 days later –
without a general election. How can this happen and what is its
significance?

 The resignation of Nicola Sturgeon as First Minister this year and the
subsequent election of Humza Yousaf in March 2023 – without a general
election. How can this happen and what is its significance?!

 The agreement of the SNP with the Green Party to ensure a majority in
the Scottish Parliament. How does this form of governance compare with
the only majority Government we had in Scotland from 2011-16?

 The legal challenge of the Scottish Government against the UK

Government’s use of a s.35 order regarding the Gender Recognition
Reform Bill. The case was heard in the week before you are beginning
your studies.

 The referendum on Scottish independence took place 9 years ago: its

legality, history and aftermath. 1 year ago there was a significant legal
case that made an important ruling on any future referendum being held
in Scotland.

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  The tensions of a Conservative Government without any majority in
Parliament from 2017-19 and its ability to govern and pass laws. Then
the December election of 2019 that returned the biggest majority for 32
years

 The vote for Brexit in June 2016, the subsequent Miller case and the
legal implications for the future of the UK following the exit from the EU in
2020

 The prorogation of Parliament (2019) activated by Boris Johnson, its

legality and constitutional importance. The Supreme Court case for a
time has made public law issues common conversations for people to be
having.

These contemporary subjects will underpin the teaching of the fundamental

aspects of the British Constitution.

The class will be taught by Nick McKerrell. I am happy to see you out-with class
hours on matters relating to the course or, indeed, any other law related matter
(academic or practical).

Teaching

Lectures weekly: Mondays 12 noon, Tuesdays 5pm and Thursdays 11am

Seminars: We have now returned to face to face seminars. Each week

we will look at a different issue – the problems are in this module
handbook.

I hope that you enjoy the class and find it both relevant and engaging.

Contact Number: -

Dr Nick McKerrell: 0141 331 8596

N.McKerrell@gcu.ac.uk

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2.0 TEACHING AND LEARNING STRATEGIES

The module will be delivered via a combination of lectures, seminars and

directed learning. Students will attend 3 lectures and 1 seminar weekly over
trimester A

LECTURES

This year our lectures have returned to the traditional setting of the lecture
theatre and large group teaching . These will broadly follow the curriculum and
you will be able to use them to help you with the seminars, workbook and
ultimately the final exam which will take the form of an online assessment.

SEMINARS

Also the seminars will all be face to face this trimester. These will deal with
specific problems which are contained in this module handbook. The general
idea in the seminar hour is that the students will take the lead on the issues and
discuss them with the lecturer. So preparation before your seminar will be key
to helping you understand the subject. The seminar leaders will also help with
this. We will use the time to allow you to raise any problems or difficulties you
are having with the module as well.

DIRECTED LEARNING

Directed Learning is the learning which students carry out when and where it is
directed by staff. This includes work done in preparation for seminars and
directed reading undertaken for assignments. A lot of emphasis is placed on
this at Uni as there will only be select times when you can directly interface with
the staff.

Independent Learning is the learning which students carry out on their own
behalf. This includes activities such as revision for exams and assignments,
and exploratory note-taking and reading which goes beyond the directed
reading. There are materials linked to on the Resources List on the GCU Learn

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 site.

One example of directed learning is the objectives that are set in respect of each
week's work and at the end of each week students should review the material
covered in order to ensure that they have achieved the objectives. Students
should also ensure that they have prepared the questions set for the seminar.

Also at points in the scheme of work there are case reports identified, which
students should read and analyse in their own time.

3.0 PERSONAL TRANSFERABLE SKILLS

Personal Transferable Skills are skills which students acquire which are
independent of the technical content of their degree or diploma programme.
These are skills which can be applied by individuals across different contexts -
academic, professional and social. They are "transferable" in the sense that
they provide skills which are valued by employers irrespective of the type of job
being done, and they are also important to achieving success in one's academic
career. Like all skills they can be improved with practice, reflection and advice
which is why they are included at various points in this module.

The Division of Law has identified key skills in five areas and within the module
in Foundation Law; these Personal Transferable Skills are acquired as follows:

1. Self Management

This refers to students' ability to manager their own learning

development. It can be further defined as the ability to:-

(i) Set personal objectives

(ii) Manage time and tasks
(iii) Evaluate one's own performance

These skills are acquired through the range of directed learning activity in
the module - particularly through the reading of law reports etc.

2. Learning Skills

These refer to students' ability to learn effectively and be aware of their

own learning strategies. They include the ability to:-

(i) Learn both independently and co-operatively

(ii) Use library skills to find and organise information
(iii) Use information technology

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3. Communication

This refers to students' ability to express concepts and opinions with

clarity and confidence to a variety of audiences and for a number of
different purposes. It includes the ability to:-

(i) Use appropriate language and form when writing and speaking
(ii) Present concepts to different audiences

These skills are acquired through the preparation of material for seminars
and the requirement to make verbal presentations at seminars; written
communication skills are enhanced through the essays written by
students.

4. Groupwork

This refers to the ability to work productivity in different kinds of groups -

formal, informal, project-based, committee-based etc. It includes the
ability to:-

(i) Take responsibility and carry out agreed tasks

(ii) Take initiative and lead others
(iii) Operate in a range of supportive roles within groups
(iv) Negotiate, asserting your own values and respective others
(v) Evaluate group performance

These skills are acquired through group-based tasks within the seminars.

5. Problem-Solving

This refers to the ability to identify the main features of a given problem
and generate strategies for its resolution. It includes the ability to:-

(i) Define the boundaries of the problem

(ii) Analyse the components of the problem
(iii) Identify strategic options
(iv) Evaluate the success of different strategies

Within the limited context of legal problem-solving the student will acquire
through practice in seminars the ability to analyse a given set of facts so
as to identify the relevant legal issues arising therefrom, explain the
relevant law and apply it so as to weigh up the relevant options and to
give accurate legal advice.

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4.0 ASSESSMENT

Assessment is through a combination of coursework and examination.

Submission Form of assessment Duration Weighting

Date
Friday 24th Workbook 1500 words 40%
November,
1pm
Exam diet Online Exam 2.5 hours 60%
January 8th
-19th (date
allocated)

Coursework: (Weighting 40%)

A Workbook on a number of topics covered weekly in seminars. The workbook

questions are identified in the module handbook. The workbook in total has a
limit of 1500 words (excluding footnotes and bibliography – referencing will be
discussed in your ILSS class).

This will be due at the end of Week 9 – Friday 24th November at 1pm This is
submitted electronically via turnitn on GCU Learn.

Note: Should you fail the coursework, you will not be allowed to rework it and
submit it before the examination period. Thus any failed coursework will count
towards your final assessment mark, and if this is combined with failure of the
module as a whole the Examination Board may ask you to resubmit another set
piece of coursework, although the final decision on this will rest with the Board
itself.

Final Examination: (Weighting 60%)

There will be an exam consisting of 8 questions. Students are required to

answer three questions. The exam will take the form of an online assessment in

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 the period of 8th – 19th January 2024

The Final Examination

In terms of examinations, preparation is extremely important. On no account

should you pick up a pile of books the night before the exam, and attempt to
skim through them in the desperate hope that something will `stick' in your mind.
You should organise your time in order to allow `drafts' to be prepared. You
may want to prepare draft answers, or you may feel happier preparing drafts
which cover entire subject areas. Whatever you do, you should prepare it in a
way which is easy to memorise, and easy to tailor to the specific question. You
should also ensure that you have prepared additional material, in case your
desired questions do not come up at all, or do not come up in a way that you
would be happy to answer. the crucial thing is to understand the material.

Prior preparation by looking at old exam papers is a useful way of allowing you
to think about the sort of questions which may come up. The examiner will
frequently not know what he will ask until a few weeks before the exam!

Further advice on exam technique and study skills can be provided by the
Learning Development Centre of the Glasgow School for Business and Society.
They will also provide a class during ILSS lectures

https://www.gcu.ac.uk/aboutgcu/academicschools/gsbs/study/ldc

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Fit to Sit
GCU operates a Fit to Sit approach to student assessment. The default
assumption is: when you undertake an assessment, you are declaring that you
are fit to do so. This means that any mark and/or attempt at assessment will
stand, unless you have indicated that you were not ‘Fit to Sit/Submit’. If you
declare yourself unfit after you have already submitted or sat, your work will not
be marked. You will receive no feedback, and a non-submission (NS) will be
recorded.

You can declare yourself unfit 5 days before the date of assessment. The latest
you can declare yourself unfit is 2 days after you sat or submitted.

Please note that some modules have an Approved Exception to the 2-day post
sit/submit period. Tutors will notify you of such exceptions before the start of
assessment(s). If you wish to declare yourself not fit to sit/attempt for these
exceptional modules, DO NOT attempt the assessment. Instead, ensure that
you submit a declaration before the end of the date of assessment. Any student
who attempts the assessment will be deemed to be fit to sit, and will receive a
mark and feedback. You must provide information when declaring yourself unfit
to sit or submit. If you fail to enter the required details in your declaration, your
declaration may not be processed.

IMPORTANT – Information that must be provided when any declaration of being

unfit to sit/submit is made. Please note that a failure to enter these details
accurately in your declaration may lead to your declaration not being processed.
Module Code: M1M225692-23-A
Module Title: Public Law
Module Leader: Dr Nick McKerrell
Module Leader Email: N.McKerrell@gcu.ac.uk

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5.0 EXPLANATION OF ASSESSMENT CATEGORIES

All assessments are marked out of 100%, and the broad categories of marks
used are as follows:-

Below 30% (Fail) Works in this category will normally be very weak, and fall far
short of degree/diploma standard. They will tend to exhibit several of the
following characteristics - failure to address properly the question set, failure to
identify accurately the relevant area of law, failure to distinguish between
important and unimportant factual information in a case study, failure to identify
the evidential value of certain facts, failure to consider the rights and obligations
of all parties in a case study, failure to state accurately and to apply the relevant
law, failure to quote authority in the form of case law and/or statute to reinforce
legal points, failure to reach a reasoned conclusion, badly structured, and a poor
standard of sentence construction, grammar and spelling.

30-39% (Fail) Works in this category will normally display some potential to be
of degree/diploma standard, but they will fall down in at least one of the
categories indicated above, to the extent that the work as a whole falls below
degree/diploma standard.

40-49% (Pass) Works in this category will be of a passable standard, but will
nevertheless exhibit a number of characteristics which - although not detracting
from the passable nature of the work - indicate that there is substantial room for
improvement. Thus, assessments in this category will have addressed the
question set, identified accurately the relevant area of law, distinguished
between important and unimportant factual information, stated accurately and
applied the relevant law and reached a reasoned conclusion with supporting
authority. They will however also exhibit substantial room for improvement in
terms of e.g. standard of written English, sharpness of focus on the question set,
sharpness of analysis and use of relevant authority.

50-59% (Pass) Works in this category will generally be of a good standard.

They will tend to be solid pieces of work, which answer the question, show
evidence of wide reading, provide a fairly solid discussion of issues and
arguments and reach an accurate conclusion in a generally focused, structured
and well-written manner, whilst making good use of relevant authority. Despite
such positive attributes however there will be room for improvement -
particularly in terms of breadth of authority cited, depth of analysis and the ability
to synthesise case law and statutes to reinforce legal points and to synthesise
different points of law when attempting to reach a reasoned conclusion.

60-69% (Pass) Works in this category will generally be of a very good standard.
In the main they will be confidently written and will display (at both analytical and
factual levels) a clear and consistent focus on the question in hand. In addition,
they will normally display evidence of very wide reading, through integrating this
into the text, in the form of relevant quotes from texts, statute and judgements.
There will be room for improvement however. This may occur for a number of

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reasons, but in particular there may be room for a slightly sharper analysis.

70% and above (Pass) Works in this category will be of an excellent standard.
Very few students will obtain marks in this range, although it is by no means
impossible. Works in this category will provide an exceptionally clear, structured
and consistent focus on the question; the standard of English will be excellent;
there will be an excellent use of available texts (often going beyond the
prescribed reading list), there will be consistent and appropriate use of relevant
quotes from texts, statute and judgements; and in particular the student will
display exceptionally acute powers of analysis and interpretation.

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6.0 LECTURE OUTLINE – Public Law

Topic One: The Nature of Public Law and Constitutions

What is Public Law?

 Comparison with other types of Law

 Definitions: Private Law, Criminal Law, Civil Law

What’s it for?

Can we do without it?

Reading

Webley and Samuels Chapter 1

A Constitution?

 What is in it?

 Alness Golf Club compared to Iceland.

 When are they created?

 Wars - the central and most reason?

 National Struggle

 Revolutions

 Collapse

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Types of Constitution

 Democracy

 Representative

 Direct

 Federal

 Presidential

 Able to Change?

A New Scotland?

 What would be in our Constitution? 2014 Debate and beyond

 Humza Yousaf 2023 paper :
https://www.gov.scot/publications/building-new-scotland-
creating-modern-constitution-independent-scotland/

Reading

Webley and Samuels pp53-59

I will prepare a couple of videos looking at specific examples of

Constitutions.

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14
 Topic Two: The UK Constituition

Does it exist?

 Written?
 Unwritten?
 “Scattered”?
 Falling Apart – The Prorogation Case Study….

Nick chatting about it on the 9!

History

 Development of UK
 Monarchy
 Parliament

Scotland
 A different situation?
 Act of Union 1707
 Scotland Act 1998

Defining Characteristics

 Democratic?

 Monarchy?

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  Unitary?

 Political or Legal?

 Miller Case and Cherry Case – 4 years on what was their

significance?

What should be in it?

How would this compare with Scotland?

In class we will look at suggested plans for written UK Constitutions.

Reading

Webley and Samuels pp71-79

Constitution UK: London School of Economics
https://ukconstitutionallaw.org/2013/09/28/news-crowd-sourcing-the-uk-
constitution/

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Topic Three: Sources of the Constitution

Acts of Parliament

Examples
 Human Rights Act 1998
 Scotland Act 1998
 Government of Wales Act 2006
 European Communities Act 1972
 Constitutional Reform Act 2005
 Scottish Independence Referendum Act 2013
 European Union (Withdrawal) Act 2018
 European Union (Withdrawal) No.2 Act 2019
 United Kingdom Internal Market Bill 2020

Royal Power

o Prerogative
o Prime Minister Selection
 How can we have had 3 PMs since 2019 with
no general election?
o Prorogation

o Will there be a difference under King Charles III?

o Bill of Rights 1689

Common Law

Writers?

Constitutional Conventions

 What are they?

 Unique?

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  Examples

 Can they be codified?

In class we will use examples like the British General Elections of

2010, 2015 and 2017, the Syrian War vote and the selection of Liz
Truss and Rishi Sunak as Prime Ministers in 2019 to explore the
concept of Constitutional Conventions.

Reading

Webley and Samuels pp63-71

Material nearer the time!!

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Topic Four: The Sovereignty of Acts of the Crown-in-Parliament –
Taking Back Control???

In the case Jackson v Attorney General (citation below), Lord Bingham

described the sovereignty of the Crown-in-Parliament as being “the
bedrock of the constitution.” In these lectures, we will ask:

(a)What is meant by the sovereignty of the Crown-in-Parliament?

(b)Why (historically and theoretically) has it been considered the
“bedrock of the constitution”?
(c) What challenges might there be, in theory and in practice, to that
orthodox view?
The Miller case brought in 2016/17 challenging the Brexit process also
put a discussion of Sovereignty of Parliament centre stage. Moreover
the Supreme Court’s ruling on prorogation in 2019 was founded on the
concept of Parliament’s central role in the constitution.

Reading
Webley & Samuels, Chapter 7
Turpin & Tomkins, pp 40-74

Lecture guide
Jackson v Attorney General [2005] UKHL 56, esp opinion of Lord
Bingham
Cherry and ors v Advocate General of UK Government [2019] CSIH 49

The principle of Parliamentary sovereignty means

neither more nor less than this, namely that
Parliament...has, under the English constitution, the
right to make or unmake any law whatever; and,
further, that no person or body is recognised by the
law of England as having a right to override or set
aside the legislation of Parliament.
AV Dicey The Law of the Constitution (1885) pp

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Historical foundations: 17th Century - Crown vs. Parliament; prerogative
vs. legislation?
- Bate’s Case (1606) 2 St Tr 371
- Dr Bonham’s Case (1610) Co Rep 107a
- Five Knights’ Case (1627) 3 St Tr 1
- Rex v Hampden (1637) 3 St Tr 825
- Henry Parker The Case of Shipmony Briefly Discoursed (1640);
and Observations upon some of his Majesties late Answers and
Expresses (1642)
- Civil War and the Glorious Revolution
- The Treaty of Union 1707 – An English or British doctrine?

The meaning, influence and implications of Dicey’s reading

- What is an Act of the Crown-in-Parliament? Why is it so revered?
- Why did Dicey’s views achieve such prominence? What other
(contradictory) views were there?
- What are the constitutional implications of this?

How have the courts traditionally understood the sovereignty of

Parliament?
- British Railways Board v Pickin [1974] AC 765
- Cheney v Conn (Inspector of Taxes) [1968] 1 WLR 242
- R v SoS for the Home Department, ex parte Simms and O’Brien
[1999] UKHL 33
- Entrenchment: * HWR Wade Constitutional Fundamentals
(London, Stevens, 1980) pp 24-5
* Sir I Jennings The Law and the Constitution 5th ed
(London, University of London Press, 1959) pp 152-4

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 - Implied repeal: Thoburn v Sunderland City Council [2002] EWHC
195
-The Scottish dimension?: MacCormick v Lord Advocate 1953 SC
396 and the Treaty of Union

Challenges to the Diceyan orthodoxy

Jackson v Attorney General (above), opinions of Lord Steyn, Lord Hope,
Baroness Hale

Devolution/Independence Referendum
We will consider this in more detail in topics 8 and 9, and so will pause
only briefly here.

Human/Common Law Rights

- R v SoS for the Home Department, ex parte Simms [2000] 2 AC
115
- Human Rights Act 1998, especially sections 3 and 4
- R v DPP, ex parte Kebilene [2002] AC 326
- Ghaidan v Mendoza [2004] 3 WLR 113

EU Law and Brexit….

What happens now?

- European Communities Act 1972
- Factortame litigation [1989] 2 CMLR 353 in the Court of Appeal,
and [1990] 2 AC 85 in the House of Lords
- European Union Act 2011, esp s.18
- Benkarbouche v Embassy of the Republic of Sudan [2015] 3
W.L.R 301
- European Referendum 2016 and aftermath
- Miller v Secretary of State for Exiting the E.U [2017] 2
W.L.R. 583

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 - Legal Continuity (Scotland) Bill – Advocate General
and Attorney General’s referral [2018] UKSC 64
-

Class discussion: how relevant is Parliamentary sovereignty to the

UK constitution in 2023?

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Topic Five: The rule of law

The core of the existing principle is, I suggest, that

all persons and authorities within the state, whether
public or private, should be bound by and entitled to
the benefit of laws publicly made, taking effect
(generally) in the future, and publicly administered by
the courts.
Tom Bingham The Rule of Law (Penguin, 2011) p 8

In these lectures, we will attempt to unpack the meaning and

implications of a phrase so often used and yet so often without
understanding or definition: the rule of law.

Reading
Webley & Samuels, Chapter 4
Turpin & Tomkins, pp 76-102

Lecture guide
The rule of law: formal or substantive?
- Entick v Carrington (1765) 19 St Tr 1029
- Malone v Metropolitan Police Commissioner [1979] 2 All ER 620
- Joseph Raz v Ronald Dworkin
- Dicey’s conception of the rule of law
- Lord Bingham’s principle and ‘sub-rules’
- The killing of British ISIS members in Syria/Iraq in 2015
- The case of Shamima Begum

The rule of law in context

- European Convention on Human Rights, preamble
- Treaty of the European Union, preamble and Article 2
- Pierson v SoS for the Home Department [1998] AC 539

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 - R v North and East Devon Health Authority, ex parte Coughlin
[2001] QB 213

Scotland:
- Scotland Act 1998, s57
- Cadder (Peter) v HMA [2010] UKSC 43

The rule of law subverted?

- R v SoS for the Home Department, ex parte Hosenball [1977] 1
WLR 766
- R (on the application of Corner House Research) v Director of the
Serious Fraud Office [2008] UKHL 60
- R (on the application of Bancoult) v SoS for Foreign and
Commonwealth Affairs [2008] UKHL 61
- R (on the application of Al Sadoon) v SoS for Defence [2009]
EWCA Civ 7
- Al Sadoon v United Kingdom (2010) 51 EHRR 9
- Killings in Syria?
- Shamima Begum – A UK Citizen?

Class discussion: is there a tension between the rule of law and

parliamentary sovereignty?

Case study: Terrorism and the Rule of Law

Av SoS for the Home Department [2004] UKHL 56

At your face to face seminar in Week 7 you will be asked to discuss a

problem question on ‘terrorism and the rule of law’.

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Topic Six: Separation of Powers

In this topic we will be exploring the vital constitutional concept of

separation of powers. A concept more theoretical than actual in the UK
but one which has been central to drafting of hundreds of states’
constitutions

Elements of State Power

 Legislative

 Executive

 Judiciary

Purpose

But because the Laws, that are at once,

and in a short time made, have a
constant and lasting force, and need
a perpetual Execution, or an attendance
thereunto: Therefore 'tis necessary
there should be a Power always in
being, which should see to
the Execution of the Laws that are made,
and remain in force. And thus
the Legislative and Executive Power come
often to be separated. John Locke

Eh? What does that mean?

Montesquieu

Definition of the 3 branches in UK

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Exceptions to the rule

Case Studies

Creation of the Supreme Court

Release of Megrahi

Sentencing Policy/ Role of “Victims” in Criminal Cases

In class to illustrate this concept we will discuss UK example – the

creation of the Supreme Court and a Scottish one – the release of the
convicted Lockerbie bomber. Further we will look at an example that
covers both jurisdictions – the re-emergence of the concept of Separation
of Powers with Brexit.

Government in Contempt of Parliament …..the story of 2016-2019???

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Does the removal of Boris Johnson as Prime Minister in the summer of
2022 strengthen or weaken the case around separation of powers within
the British Constitution?

Reading

Webley and Samuels Chapter 5

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Topic seven: The road to devolution: using the 1999 model.

Reading
Webley & Samuels, pp306-332
Turpin & Tomkins, pp 195-202

Lecture guide
In 1998, the New Labour government fulfilled its election pledge to
devolve (some) legislative power to Scotland. In these lectures we will
look at the constitutional background to this story.

Scotland in the union state

- Scotland’s governing arrangements pre-devolution:
 Scotland , Westminster and the Acts of Union
 MacCormick v Lord Advocate (again!)
 The Scotland Office and Administrative
Devolution
 Rise of Scottish Nationalism (1967 Hamilton by-
election)
 Kilbrandon Commission
 Scotland Act 1978

Poll Tax resistance

- The Abolition of Domestic Rates etc (Scotland) Act 1987
- Stewart v Henry 1989 SLT (Sh Ct) 34
- Fraser v MacCorquodale 1989 SLT (Sh Ct) 39
- Murray v Rogers 1992 SLT 221
- ‘Stop It’, and the Anti Poll Tax Unions

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Towards devolution
- The Claim of Right for Scotland
- The Scottish Constitutional Convention, and Scotland’s
Parliament: Scotland’s Right
- The 1997 referendum

Class discussion: was Poll Tax resistance a legal or an illegal

movement? Was Poll Tax resistance a constitutional or an
unconstitutional movement? Are the two the same?

There shall be a Scottish

Parliament.
Scotland Act 1998

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Topic Nine : The Scottish Parliament in Practice 1999-2021

This topic will explore how the Scottish Parliament has actually worked
over the last 22 years

Legal Process

How is an Act of the Scottish Parliament made?

 Stages
 Role of Committees
 Examples in last decades

Comparison with Westminster Process

 Stages
 Role of Committees
 Examples in last decades

Private Members’ Bills

 Scottish Example : Transplantation (Authorisation of Removal

of Organs etc.) (Scotland) Bill 2016

 Assisted Suicide Debate

 Westminster Examples

The Scottish Parliament, Limits on its Powers and the courts

- Whaley v Watson 2004 SC 340 (Court of Session)

- Adams v Scottish Ministers 2004 SC 665 (Court of Session)
- Imperial Tobacco Ltd, Petitioners 2013 S.C. (U.K.S.C.) 153
- AXA General Insurance Ltd, Petitioners 2012 S.C. (U.K.S.C.) 122

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- Scottish Whisky Association v Lord Advocate 2013 S.L.T 776

- Christian Institute & Ors v Lord Advocate [2016] UKSC 51 : The

Named Persons’ Experience
- Legal Continuity (Scotland) Bill – Advocate General and Attorney
General’s referral [2018] UKSC 64 BREXIT and Scotland.

- Reference by the Lord Advocate (Independence Referendum)

[2022] UKSC 31

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Topic ten: 18th September 2014 – Has it changed everything or
nothing?

The historical significance of Thursday 18th September 2014 is still being

judged. However we have lived through this point where there was a
55% -45% vote against the proposition of independence. Why did this
happen?

Reading

McFadden & Lazarowicz (2010)

Scotland’s Future: Scottish Government’s White Paper.

https://www.scotreferendum.com/reports/scotlands-future-your-guide-to-
an-independent-scotland/

Lecture guide
Scotland Act, s 57 and Schedule 5

o Reserved Powers

o Calman Commission

o Scotland Act 2012

o Edinburgh Agreement

o Scottish Independence Referendum Act 2013

o IndyrRef1

o Campaign – Yes Scotland v Better Together

o Rebirth of “Devo-Max”?

o Brexit/Indyref2?

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 o Post 2016 developments
o Smith Commission

o Scotland Act 2016

o s.30 order request

o 2017 election

o New Referendum Bill?

o Supreme Court Referral

Lord Advocate’s referral to the Supreme Court

https://www.gov.scot/publications/reference-to-the-supreme-court-
publication-of-the-lord-advocates-written-case/

Advocate General’s case for Supreme Court

https://assets.publishing.service.gov.uk/government/uploads/system/
uploads/attachment_data/file/1097237/UKSC_2022_0098_-
_Reference_by_Lord_Advocate_-
_Written_Case_for_the_Advocate_General_for_Scotland.pdf

- Reference by the Lord Advocate (Independence Referendum)

[2022] UKSC 31

Given the outcome of the 2014 Referendum and the 2022 Supreme
Court judgment what is now the process for organising a second
referendum on the independence of Scotland? Is there one?

33
 SEMINAR SCHEDULE

Seminars will be held weekly. Attendance is compulsory.

Remember that you will not be the only one in the group who is
apprehensive and nervous so don’t be afraid to speak up.

Seminar 1: Week beginning October 2nd

Woman wins £80,000 in damages from man cleared of

raping her in St Andrews
5 October 2018

A woman has won £80,000 in damages from a man who had been
cleared of raping her after a night out in Fife.

The woman, who cannot be named, had sued Stephen Coxen, who is
now 23, from Bury in Greater Manchester.

The second year student said she was raped after a night out in St
Andrews in 2013 by Mr Coxen, who she had met earlier in the evening.

Mr Coxen had denied the charges and in November 2015 a jury found
the case against him not proven.

But now, in a case understood to be the first of its kind in Scotland, a

sheriff in a civil action has ruled Mr Coxen raped the woman, known as
Miss M, and demanded he pay damages.

The civil action was heard at the Personal Injury Court in Edinburgh.

Civil cases require a lower standard of proof than criminal cases, with
judgements made on the balance of probabilities rather than beyond
reasonable doubt.

'Compelling and persuasive'

Sheriff Robert Weir said the evidence from Miss M, who is now 23, had

34
been "cogent, compelling and persuasive".

He said that Mr Coxen took advantage of her when she was incapable of
giving meaningful consent because of the effects of alcohol.

The sheriff said Miss M had been distressed and had resisted but Mr
Coxen had continued to rape her.

He agreed that she should be paid £80,000 in damages.

Miss M told BBC Scotland it was highly unlikely she would see any of the
money as it would be clawed back to pay legal costs.

She said: "The thing that has happened from the civil trial is that people
will see the type of person that Stephen Coxen is."

Miss M said: "After being let down in the criminal process and having
such a difficult fight to take the civil action to court in the first place I think
shock is the word.
It's been a long journey to receive this justice and it is disappointing that
it took a civil hearing
"It's not just me that's been through this journey for the past five years, it
has had an impact on my family and friends."

Long journey
She said did not know whether the sheriff's decision would bring
"closure" but it was some form of justice.

"It's been a long journey to receive this justice and it is disappointing that
it took a civil hearing following a criminal trial but I am obviously very
relieved that now someone has listened and acknowledged that the
actions of Stephen Coxen were wrong and unlawful."

Mr Coxen's lawyer, Mark Thorley, said: "He (Stephen Coxen) is

considering the judgement and will look at his options thereafter."

The personal injury court judgment follows a seven-day hearing in June.

She reported the attack in January 2014.

Mr Coxen denied rape and said they had consensual sex.

35
Simon Di Rollo QC, who represented Miss M during the civil case, said
she was an "extremely courageous woman".

"It is understandable that she found it impossible to come to terms with

the verdict of the jury in the criminal proceedings," he said.

"Although the findings by the sheriff in these civil proceedings are of

assistance, there can be no doubt that her experience of the criminal
justice system was unsatisfactory.

"Unfortunately, that is not as unusual as it should be. I think that

everyone must strive to ensure that, so far as is possible, others in the
future do not feel as let down as she did."

Last year, another woman, Denise Clair, won a civil case against
footballers David Goodwillie and David Robertson.

But the case was different as Ms Clair, who waived her right to
anonymity, brought the civil action after the Crown had decided against
prosecuting the pair in the criminal courts.

The judge in the civil court found the rapes had happened and awarded
Ms Clair £100,000 damages from the men.

Miss M told BBC Scotland she had decided to mount her civil case in
2016, which was supported by the Scottish Legal Aid Board, before Ms
Clair's case became public knowledge.

a) What is the difference between civil and criminal law? How does
this news article help us understand? How does this fit into the
public / private law distinction?

b) In the Scottish Legal System the distinction between civil and

criminal law is reflected in the court structure. Do you know any of
the courts in Scotland by name? Which type of court do you think
they are.

36
READING

Class Lecture materials.

Scottish Courts : https://www.scotcourts.gov.uk/

37
Seminar 2: Week beginning October 9th

a. Building on last week’s discussion let’s look at the courts in

more detail. The court structure in most Western societies is
hierarchical – essentially this means that there is a structured
system of appeal. Using the information from last week in
your groups arrange the courts in a diagram that shows what
structures of appeal exist in the Scottish court system.

b. There are two types of practicing lawyers in Scotland – how do

we classify them? What is the difference between them?
How does this relate to the court structure?

Reading

Scottish Courts

https://www.scotcourts.gov.uk/

38
Faculty of Advocates

http://www.advocates.org.uk

Law Society of Scotland

https://www.lawscot.org.uk/

39
 Seminar 3: Week beginning October 16th
The nature of the British constitution

Before class, as well as looking at your lecture notes you should find
and read the following:

 Webley and Samuels, Chapter 3

 Turpin & Tomkins, pp 3-9

 A short video outlining the nature of Constitutions here:

https://consoc.org.uk/the-constitution-explained/the-uk-constitution/

 “Our democracy is drifting. It’s time to act” Alun Evans and Lord
Hennessy, The Guardian, 18th September 2016.
https://www.theguardian.com/commentisfree/2016/sep/17/eu-
referendum-constitution-brexit-democracy

 “The Radical Constitutional Change Britain needs” Professor Linda

Collley , The New York Times, 12th September 2022.
https://www.nytimes.com/2022/09/12/opinion/the-radical-
constitutional-change-britain-needs.html

 The Scottish Government’s 2023 suggestions for an independent

Scotland’s constitution: https://www.gov.scot/publications/building-
new-scotland-creating-modern-constitution-independent-scotland/

40
At the class, we will discuss what should be contained in a written
constitution. Why do countries have them?

If Scotland became an independent country how do you think it should

be defined? Identify one suggestion of what should be in a Scottish
Constitution from the Scottish Government 2023 paper.

In contrast the Evans/Hennessy article argues there are 10 critical

issues facing the UK Constitution. Name 3 of them?

Will Queen Elizabeth’s death allow us to discuss these issues?

1. WORKBOOK QUESTION
Explain the “prorogation” crisis and the ruling of the Supreme
Court of September 24th 2019. Would a written constitution have
prevented this happening?

Reading Webley and Samuels: pp59-65.

Cherry and Others v Advocate General for Scotland [2019] UKSC 41

41
Seminar 4 Week beginning October 23rd

The sovereignty of the Crown-in-Parliament – Post Brexit

Before the class, as well as revising your lecture notes, read the
following:
 Webley and Samuels pp180-190
 “Vote leave, take control”? Sovereignty and the Brexit debate
Alexander Schafer, Public Law for Everyone, June 2016
https://publiclawforeveryone.com/2016/06/23/vote-leave-take-
control-sovereignty-and-the-brexit-debate/

 Joanna Cherry QC MP v Advocate General [2019]

CSIH 49 (The Scottish case not the final judgment in
the Supreme Court)

 Miller and the Modern British Constitution Professor

Mark Elliot February 2017

https://publiclawforeveryone.com/2017/02/01/miller-
and-the-modern-british-constitution/

 1,000 words / The Supreme Court’s Judgment in

Cherry/Miller (No 2) Mark Elliot
https://publiclawforeveryone.com/2019/09/25/1000-words-
the-supreme-courts-judgment-in-cherry-miller-no-2/

42
  Short video clip from BBC The Nine with Nick:
https://x.com/BBCScotNine/status/
1167534646239932416?s=20

At the class, be prepared to discuss the following:

Dicey - “The principle of Parliamentary sovereignty means neither more
nor less than this...

1. What were two tenets of Parliamentary sovereignty identified by

Dicey?
2. With reference to the case law discussed in the reading, what do
these tenets mean?

3. What is their significance for those engaged in a study of Public

Law in Britain?

4. Looking at the Schafer and Elliot article – what does the Miller and
Cherry Cases tell us about Sovereignty of Parliament?

43
 Seminar 5 – Week beginning October 30th
Terrorism and the rule of law

Before the class, as well as revising your lecture notes, read the
following:
 Tom Bingham The Rule of Law (Penguin, 2011), introduction, and
chs 1, 11 and 12
 UK forces kill British Isis fighters in targeted drone strike on Syrian
city The Guardian September 7th 2015
https://www.theguardian.com/uk-news/2015/sep/07/uk-forces-
airstrike-killed-isis-briton-reyaad-khan-syria

 Syria: refugees and counter-terrorism - Prime Minister's

statement 7th September 2015.
https://www.gov.uk/government/speeches/syria-refugees-and-
counter-terrorism-prime-ministers-statement
 Citizenship and statelessness: the case of Shamima Begum.
Catherine Gleave Blog: 16th April 2019.
https://www.lexisnexis.co.uk/blog/future-of-law/citizenship-and-
statelessness-the-case-of-shamima-begum

 Supreme Court: Shamima Begum may be barred from UK

https://ukhumanrightsblog.com/2021/03/01/supreme-court-
shamima-begum-may-be-barred-from-uk/

44
  Final ruling on Begum case: https://www.theguardian.com/uk-
news/2023/feb/22/shamima-begum-case-lawyers-can-appeal-
but-only-on-point-of-law

At the class, be prepared to discuss the following

1. In your view, is the rule of law a formal or a substantive

constitutional principle? What do you think is meant by this?

2. How did David Cameron (then Prime Minister) justify the

killing of UK Citizens who were ISIS members in 2015?

2. WORKBOOK QUESTION

Is the use of lethal force by the British state ever justifiable under
the rule of law? Explain with examples your answer and how it fits
in with your definition of the rule of law.

45
Seminar 6 – Week beginning November 6th

Separation of powers

In the British constitution, there is no such thing as the

absolute separation of legislative, executive, and judicial
powers; in practice it is inevitable that they should overlap...
(Donoughmore Committee (1932))

Before the class, as well as revising your lecture notes,

READING

 Webley and Samuels: Chapter 5

 Brexit, Separation of Powers and the Role of the Supreme

Court, Byron Karemba, LSE Blog
https://blogs.lse.ac.uk/brexit/2018/08/14/brexit-the-
separation-of-powers-and-the-role-of-the-supreme-court/

1. What do you understand is meant by ‘the separation of

powers’?
2. Why is it thought to be important?
3. In what other ways might power be separated, if not by the
branches of the state?

3. WORKBOOK QUESTION
What is meant by the concept of separation of powers? Using
examples from the Theresa May UK Government of 2016-2019
explain if separation of powers became more visible in the UK
because of the Brexit Crisis.

46
Case Study: The Bombing of Syria- Declarations of War

On Thursday 29th August 2013 the British Parliament voted against

participation in military action in Syria. Two days prior to the vote the
Prime Minister David Cameron said in an interview:

Question
So you’re going to ask your MPs and other MPs, on Thursday, to
specifically support military action, are you? And if you lose the vote,
does that mean that’s off the table?
Prime Minister
Well, as I’ve said, no decision has yet been taken. Any decision would
have to be proportionate, would have to be legal, would have to be
about specifically deterring the use of chemical weapons. But I’ve
recalled parliament so this issue can be properly debated, so the
government can listen to views in parliament. And yes, it is my intention
to put forward a motion in parliament so that members of parliament will
be able to vote.
After the vote Cameron said

“It is very clear tonight that the British Parliament does not want to see
British military action. I get that and the Government will act accordingly”

In Constitutional Terms did the Government need to have this vote?

47
4: WORKBOOK QUESTION

What were the implications of the Syrian vote in 2013 for the
constitutional convention of deploying troops and declaring war in
the British Constitution? Did this alter after Theresa May’s actions
in Syria during April 2018?

48
Week Beginning November 13th: Reading
Week

49
 Seminar 7 Week beginning November 20th

Problem Questions are a key method of assessing law. The following

scenario is an example similar to Exam Papers. Using materials we
have explored so far attempt the following problem.

Consider the following (fictional) scenario:

In September 2011, the Con-Dem coalition invoked the Parliament Acts

to pass the Authorisation of Intensive Interrogation (Terrorism) Act, in the
face of strong opposition in the House of Lords. The Act came in two
parts:

S1 No liability shall arise, criminal or civil, where a police officer uses

‘intensive interrogation’ against an individual, where:
(a) a state of emergency has been declared by the relevant
Secretary of State;
(b) the officer has reasonable grounds for suspecting that the
individual is or has been involved in terrorist activity;
(c) the officer has reasonable grounds for believing that
‘intensive interrogation’ methods will yield information
necessary for the protection of the public from an imminent
threat.
S2 ‘Intensive interrogation’ means the use of physical and
psychological pressure against an individual for the purposes of
obtaining intelligence information, and might include:
- hooding;
- waterboarding;
- the use of stress positions;
- sleep deprivation;
- electric shocks
- any other non-fatal measure.
S3 This Act shall be applied in the United Kingdom notwithstanding
obligations arising under the European Convention on Human
Rights, European Law or from international treaty or custom.

50
S4 This Act shall be applied notwithstanding any incompatibility with
domestic law arising from the Human Rights Act 1998 or from the
common law.
S5 The determination of a ‘state of emergency’ by the Secretary of
State is final, and shall not be challenged in a court of law

Does this Act comply with the Rule of Law? If not what
amendments could you make to it to do so?

51
 Seminar 8: Week beginning November 28th
The road to devolution
Before the class, as well as revising your lecture notes, read the
following:
 Bradley /Ewing (14th ed), Chapter 3
 Himsworth & O’Neill, pp 78-88
 The Scottish Parliament, The Path to Devolution:
https://www.parliament.scot/about/history-of-the-scottish-parliament/
the-path-to-devolution

Michael Keating has said that, in the pre-devolution context, legislation

such as the Abolition of Domestic Rates etc (Scotland) Act 1987 “was
seen as an abuse of parliamentary sovereignty and therefore a
violation of the unwritten norms of the constitution.”1

1. In what way(s) could such legislation be seen as an “abuse” of

parliament’s sovereignty, and a “violation” of the constitution’s unwritten
norms? How was Scotland governed before the devolution

1
Michael Keating ‘Managing the Multinational State: Constitutional Settlement in the United
Kingdom’, in
Trevor C. Salmon and Michael Keating (eds.) The Dynamics of Decentralization: Canadian
Federalism and British
Devolution (Montreal, London, Ithaca, McGill University Press, 2001), p.21

52
settlements of the late 1990s?

2. If political institutions failed the Scottish people, what legal challenges

were brought to challenge the legislation? How successful were these
challenges? Why?

3. If political and legal institutions had failed them, how else did the
Scottish people express their opposition to the legislation and, more
broadly, to the ways in which they were governed? In your view, were
these modes of expression (a) legal, and (b) constitutional? Why?

WORKBOOK QUESTION 5

The devolved settlement of the Scotland Act 1998 has been

amended several times in the last 25 years. These amendments
have added powers to the Scottish Parliament. Outline two
additional powers that have been granted to Holyrood in this time?
Why do you think they were chosen to be devolved?

This is the last Workbook question it is likely the lecture materials may
not be available before the Workbook is due in. This means you will
have to do your own research for it.

53
Seminar 9 -Week beginning December 5th

Problem Scenario – Law making in the Scottish Parliament.

Your final exam will have a seen problem question in it. Using your
knowledge of the law making procedures and the Scottish
Parliament attempt the next question.

The Scottish Government want to pass a law through the Parliament

that would allow them to display posters and distribute information in
public buildings on issues of contention across the whole of the United
Kingdom.

This would cover things like immigration, nuclear weapons and welfare
reform. Draft material has been circulated with headlines displayed on
the posters and leaflets of the nature of “Refugees Welcome Here”,
“Nukes, no thanks!” and “Axe the Bedroom Tax”.

The UK Government and several leading Scottish legal practioners

and academics have publicly spoken out against the proposed Bill. A
number of anti-independence campaigners are also opposed to the Bill
and are currently taking legal advice.

The proposal, though, has been accepted by the Presiding Officer and
it is currently going through the Stage 1 process.

There are rumours that Prince Harry will use a visit to Balmoral Castle
next week to make a speech against the proposed Bill.

Using appropriate legal authority answer the following questions.

What legal limitations are there on the Scottish Government
introducing such legislation? What legal procedures are in place to
challenge the law? Can Prince Harry make his speech?

54
Reading

The Supreme Court’s Judgment in the Scottish Continuity Bill Case.

Mark Elliot 14th December 2018

https://publiclawforeveryone.com/2018/12/14/the-supreme-courts-
judgment-in-the-scottish-continuity-bill-case/

Legal Continuity (Scotland) Bill – Advocate General and Attorney

General’s referral [2018] UKSC 64

Cameron and The Queen – Why does it matter what he said?

https://www.bbc.co.uk/news/uk-49770599

55
Seminar 10 -Week beginning December 12th

Following the vote on Thursday 18th September 2014 the Smith

Commission was convened.

1. Do you think the Scotland Act 2016 reflected the demands of

the Smith Commission? Which specific powers were
devolved to the Scottish Parliament under this Act?

In 2022 Nicola Sturgeon (then First Minister) announced she was

going to ask the Lord Advocate to refer a proposed law on an
independence referendum to the Supreme Court.

Reference by the Lord Advocate (Independence Referendum)

[2022] UKSC 31

56
 2. Why has the Lord Advocate referred the Scottish Government
referendum bill to the Supreme Court? What does this case’s
outcome tell us about the process of organising a second
independence referendum? Will there ever be another one?

Reading

Smith Commission Report, 2014.

https://www.smith-commission.scot/

Scotland Act 2016

Scotland and a second independence referendum – what is the legal

position? Dr Nick McKerrell 13th March 2017. The Conversation.

https://theconversation.com/scotland-and-a-second-independence-
referendum-what-is-the-legal-situation-74468

Legal expert warns of barriers to indyref2 without Section 30 The National

24th January 2021

https://www.thenational.scot/news/19034593.legal-expert-warns-barriers-
indyref2-without-section-30/

Nick’s piece in the Conversation on the legal issues around a second

referendum from 2019.

https://theconversation.com/scottish-referendum-the-law-may-not-
be-on-snps-side-but-boris-johnsons-refusal-makes-for-increasingly-
unstable-union-129121

Lord Advocate’s submission to the Supreme Court for October 2022 case.

57
https://www.gov.scot/publications/reference-to-the-supreme-court-
publication-of-the-lord-advocates-written-case/

58
9.0 BIBLIOGRAPHY

One book needs to be bought for Public Law This is

Complete Public Law: Text, Cases and

Materials Lisa Webley and Harriet Samuels
Oxford Uni Press 5th Edition, 2021.
Additionally there are a great number of books that cover the area. This is a
small selection. Things are currently moving very rapidly within our constitution
so it is useful to understand the background.

There are a whole number of general textbooks on Public Law. Since the major
developments of devolution most have some comment on the Scottish
Parliament. However most texts written before 1997 have to be read
carefully. They will provide good historical background but will be limited in
current developments.

 Scotland’s Constitution: Law & Practice Chris Himsworth & Christine

ONeill, Lexis Nexis 2021 4th Edition. This is the best general Scottish
textbook with the most up to date developments.

 Constitutional law in Scotland; by Christina Ashton and Valerie Finch

Edinburgh : W. Green/Sweet & Maxwell, 2000 [Focuses on Scotland but
a little out of date]

 Constitutional and Administrative Law, Barnett (14th Edition), 2021

Cavendish [Covers all UK, some Scottish]

 Constitutional and Administrative Law’ Bradley & Ewing (17th Edition

Longman, 2018.(very good on Scottish aspects) Available as E-book

 Studies in constitutional law; Colin R. Munro (2nd edition) London:

Butterworths, 1999, [Thought provoking analysis]

59
 Scots public law / Mungo Deans Edinburgh : T. & T. Clark, 1995
[From the Scottish Angle]

 Constitutional Law, Administrative Law and Human Rights Ian

Loveland (8th Edition) 2018 Oxford Uni Press Also has online case
book

Specific works can be found on the legislation introducing the Scottish

Parliament. These can be read in conjunction with the Scottish general
textbooks.

The Scottish Parliament: an introduction; Jean McFadden, Mark

Lazarowicz Edinburgh : T. & T. Clark, 2018, 5th edition.

The Scotland Act 1998 ; by C.M.G. Himsworth and C.R. Munro Edinburgh
: W. Green/Sweet & Maxwell, c2000

60