Public Law Final Mock Test

- Pramodhya Sooriyabandara

1) The role that constitutional conventions play in the functioning of the modern UK
constitution.

The United Kingdom legal system is quite vast and is made up of multiple sources of law.
It’s governed by the parliamentary sovereignty where the Acts of Parliaments are the
supreme of law of the country. There are ongoing debates if UK maybe considered as a
constitution, this is where we must consider the definition of it. One may consider that a
constitution refers to the physical document itself. There were multiple scholars who
attempted to define it and Thomas Paine was one of them. He defined a constitution as
“a thing antecedent to a government, and a government is only the creature of the
constitution. A constitution is not the act of a government but of the people constituting
a government, and government without a constitution is power without a right”. K. C
Wheare, Ivor Jennings and even the House of Lord select committee were also among
those who attempted to define it. If it meant just the physical document on its own then
the United Kingdom may not be one at all as it has a “dispersed constitutional rule
book”. Therefore instead of a written document, UK has an uncodified constitution. So
why isn’t it unwritten? It’s because there are multiple sources written down in different
down in separate document though they are not included into one specific document
and they classify as legal rule and constitutional conventions. As legal rules are legally
obligatory to be followed, conventions are more of moral obligation. The breach of
conventions may not lead to conviction or liability, but it may create chaos and bring up
criticism against those who refuse to follow them. What exactly is a convention? Ivor
Jennings defined as something that “provides the flesh which clothes the dry bones of
the law; they make the legal constitution work; they keep it in touch with the growth of
ideas”. It was once again one of those terms that multiple scholars attempted to define,
even A. V Dicey. There are multiple debates going on about these conventions too. This
essay will take an in-depth assessment as to the different conventions present under
certain institutions, analysis on if they should be codified, in case they should be
enforced what procedure they must follow, along with the conclusion as to how
constitutional conventions are important for the functioning of the modern UK
constitution.

There are several different examples of conventions focusing around the principle
powers of a constitution, which are the monarchy, executive, legislature and judiciary.
the examples of conventions focused around monarchy is the royal assent where, the
queen have to follow the advice given by the prime mister and also how she or the
present royal assent have to lead the majority party of the house of commons to form a
government. However these are only a few of the many available. Executive are
collectively and individually responsible for the parliament and if they have to resign in
cases where they lose the confidence of the commons. These are conventions that the
executive are morally obligated to follow. On the other hand, legislature or the
parliament have to originate the public expenditure measure and the House of Lords
should also differ to the will of the House of Commons. Finally, the conventions that
must be followed by the judiciary are that they are not supposed to be actively
participating in politics nor are the bicameral chambers of the parliament allowed to
questions the professional conduct of the judges. Participating in politics nor are the
bicameral chambers of the parliament allowed to questions the professional conduct of
the judges.

When it comes to the judiciary, they may recognize conventions and their breaches, but
they do not enforce them. For example, in Attorney General v Jonathan Cape Ltd.
(1976), the court recognized that there was a breach in the convention of ministerial
responsibility and the confidentiality of the cabinet meetings but they didn’t enforce as
they are not legally obligatory. A Canadian Supreme Court case, Re Amendment of the
Constitution of Canada (1982) concerning the consent of the provinces to amend the
constitution of Canada, which was a convention in breach, the court didn’t enforce it.
However courts do emphasize on how certain conventions are even more important to
the United Kingdom than certain legal rules themselves. This signifies its importance.

When one consider whether the codification of conventions there are multiple points to
be considered. When it comes to benefits, the Australian Experiment must be discussed.
In 1983, Australia experimented on codifying 34 conventions. This shows that it is
possible to codify conventions into statutory form. Additionally, the most basic
advantage that is quite notable if how it would increase certainty. When the law is put
into written form, it’s easy to be recognized and understood in comparison to been just
a moral obligation that is not put into statutory form. This would help them to be
enforced in courts, and due to this reason, institutions will be convinced to follow them
thoroughly. There are drawbacks involved as well. There will be a direct influence on the
flexibility of conventions if they are codified for certainty. There would be less space for
growth as they must follow the law to the limited extent that it’s defined to in statutes.
What’s mainly concerning is how it is practically to codify certain conventions as they
are way too vast. For example, ministerial responsibility is a wide area of duties and
responsibilities that cannot be easily put into written form. The second biggest concern
how it may concern the separation of power and the independence of the judiciary as
the codification of the conventions would lead the judiciary to be politicized when they
are being enforced in courts.
 Codification of conventions is a topic that is still under continuous debate. The moral
obligations are what that shows the discipline of the institutions. Specially those
followed by the legislature and the prime minister. It shows the extent to which they
may go to uphold the rights of the common individuals. Therefore it is quite reasonable
to assume that the importance of the conventions to the modern UK is immense.

2) Consider the claim that the doctrine of parliamentary sovereignty is no longer

absolute and uncontrolled.

3) Examine the extent to which the separation of powers is a central feature of the
modern UK constitution.

The modern UK constitution is considered to be uncodified as there are sources laid

down in multiple documents and conventions thought they are not set down into one
document. This makes it a ‘dispersed constitutional rulebook’. When it comes to
different entities that have authority, there are multiple institutions in the United
Kingdom and it’s essential for them to function individually and independently to uphold
the separation of powers. In a situation where there is no separation of powers, liberty
of that country will be replaced with despotism as it would give out powers to the
institutions that may go beyond their duties. This is quite concerning when it comes to
upholding the rights of the individuals of the society and the simple definition of
separation of powers is exactly that. There are multiple scholars who attempted to
define the term all the way back from Aristotle himself, but the current popular
definition is that of Charles Montesquieu and it’s where there is no overlap between the
institutions with absolute separation. The issue with this system is how it is entirely
theoretical for a country like UK who was formed with pragmatic and practical
approaches. Therefore the closest thing for this model is that in USA. The following
paragraphs will be based on the functions of the executive, legislature and judiciary of
UK, the role of the Lord Chancellor and how it was affected by the passing of the
Constitutional Reforms Act (CRA) 2005, the reasons as to why Separation of powers is
important, the checks and balances between the institutions and how it aids the
democratic government, the judicial approach to the separation of powers and finally
the conclusion as to why the concept of separation of powers is essential for a
democratic government.

The three institutions of the UK are the legislative, executive and the judiciary. The
legislature (Westminster parliament) makes the law, while the executive (UK
government) manages the state with accordance to the law while the judiciary (network
of courts) interpret the primary legislation which applying it to cases of the people. It is
important for these three institutions to operate separately and one role that
overlapped in multiple institutions is the Lord Chancellor. Before the implementation of
the CRA 2005, he was a senior cabinet minister, the head of judiciary while being a
member of the House of Lords Appellate committee and also the speaker of the House
of Lords (HOL) as well. This concerned the concept of separation of powers and due to
that reason his role as the head of judiciary and the speaker of the HOL was taken away,
leaving him as a senior cabinet minister with the combined role of Secretary of State for
Justice. However, this doesn’t necessarily mean that there should be a perfect,
complete, separation of powers as it is quite impractical and would lead to a situation
that is known as a constitutional deadlock as some sort of interaction between the three
institutions are actually essential. Another trigger for the formation of the Supreme
Court was the Human Rights Act 1988 and how the House of Lords Appellate Committee
was held in the same location as the legislature, which once again raised concerns about
the independence of the judiciary.

Even though one may argue that the separation of powers shouldn’t be a requirement
for the UK system, it must be noted that the main purpose of it is to make sure that
these institutions act as checks and balances upon each other. Separation of powers
also acts a template that would be helpful at the time of designing a new constitution. It
would aid to make sure that liberty is preserved because of the independence in the
decision making done by the institutions. As mentioned by the Professor Eric Barendt in
his book ‘its primary purpose… is the prevention of arbitrary government, or tyranny,
which may arise from the concentration of power. ’ Professor Barber however disagrees
with Barendt’s view prefers to think that the purpose of separation powers is to
increase efficiency within constitution. Simply, if the right institutions are allocated for
the right decision making, then there would be more efficiency as suppose to a different
institution attempting to make that decision. They will be able to directly consult and
negotiate with the pressure groups concerning the issues at hand and settle them.

The alternate view held by Professor Adam Tomkins suggests that power must only be
settle between the crown and the parliament while judiciary is just an inclusion of the
crown as the judicial oath signifies the relationship between the judiciary and the crown.
It’s known as the bipolar view and parliamentary supremacy stands at evidence to it.
This is because every legislation that is created by the legislature goes through royal
assent at the last step before getting made into statutory form. More over ministers of
the crown also gives their oath, promising accountability to the parliament and, finally
M v Home Office (1994) showed how the courts find it quite difficult to subject the
crown and the sovereign authority.

There are many scenarios where the judiciary has shown their favorableness towards
the concept of separation of powers. They attempt to highlight their importance
through how their independence aids to as a check and balance to the other
institutions. For example, the CRA 2005 embeds a duty on the government to uphold
the independence of the judiciary without influencing it, and also for the Lord
Chancellor to defend that independence. They don’t possess any special rights and
powers to access the judges or to affect the impartiality of their decision making. This in
turn helps to uphold the rule of law as there is no abuse of power when there is less
dependence between the two institutions. Additionally, judicial review gives them the
right to make sure that these institutions act within their scope of duties through the
convention rights given to them through the Human Rights Act 1998. It allows the
judiciary to review delegated legislation to make sure that they are consistent with the
powers granted to them through the parliament. The CRA 2005 also amended the
process in which judges are selected to make sure that they are independent from the
influence of the executive. This is because people may question as to the impartiality
under such circumstances. Therefore, justices of the UK Supreme Court are appointed
through a selection committee while the new senior judges are appointed by a Judicial
Appointments Commission. When it comes to the dismissal of judges they may not be
dismissed by the executive. It is up to the bi-cameral chambers and the monarch to
dismiss judges according to the relevant statutory law, which is when they are not in
‘good behavior’.

There are also checks and balances within the interactions between the executive and
the legislature. For example the personnel of the government, including the Prime
Minister and the ministers of the Crown is provided by the parliament. More over the
Prime Minister is supposed to be a member of the House of Commons. It due to this
very reason that Lord Douglas reverted to Sir Alec Douglas – Home Leader of the
Conservative Party and subsequently Prime minster, by renouncing his peerage in 1963.
When it comes to His Majesty’s opposition, they are considered as the ‘government in
waiting’. Their function id to question the action of the government by coming up with
alternative solutions for the present issues. Question time, and debate times are also
present to ensure that the government holds accountability for their actions while select
committees are there to scrutinize using their powers to do the same. Moreover, the
House of Lords have the powers to cause the government to remove legislation or to
even modify them. They are also capable of amending and delaying non-money bills for
approximately a year before they can move to royal assent as mentioned in the
Parliaments Act 1911 and 1949. Government also prefers to go along with the
amendments made the HOL rather than to take the risk of delaying the legislation.

Interactions between the parliament and the judiciary is also a good check and balance
that maintains the separation of powers. Like how statutes makes sure that fulltime
judges are not allowed to be MPs or peers or vice versa. The parliamentary privilege,
which is the right given to the parliament to speak freely by the Article 9 of the Bill of
 Rights 1689 makes sure that they speak with no fear and prevents the judiciary from
using statements made in the parliament and reported in the Hansard as evidence in
courts. However, Pepper v Hart (1993) set out the exception to this by letting evidence
to be collected from Hansard where ministers introduce explain the purpose of a bill.
The Sub Judice rule states that the MP’s must not discuss facts or opinions regarding
pending cases within the parliament to make sure that the impartiality of the judges are
not affected. For example, if the parliament discusses their opinion of a pending case
and the judge supports that political party, they might get the feel to follow that
opinion.

The society may have different opinions with regards to the concept of separation of
powers, but it is reasonable to prefer it as it’s beneficial for the democracy of the UK.
Especially how the checks and balances works in a way to make sure that there is no
abuse of power between the institutions, making it more possible to uphold the
democracy of the country.

4) Critically assess the role of parliament in the law- making process.

 Parliament is bi-cameral in nature

 House of Lords
 House of Commons
 Scope of parliament work
 Then making legislation
 Question and debate time
 Parliament law making process
 Types of various laws they make – bills – start from the manifesto – once they
come into government they make policies and they have to implement these.
 Laws would require by legal draftsmen
 They go through the bi-cameral chambers
 Royal assent
 The first reading – what is it? How it happens and how it’s sent for second
reading
 Second reading - how it happen and how it then goes for the committee stage –
S19 of the HRA that governs it.
 Parliament whip
 After 2000 the requirement – have to go according to the Human Rights Act
1998 that the minister has to justify whether it is within the HRA or if it’s not
they have to mention the reason.
 Committee stage – how the membership is basically chosen
 How they are affected by lack of knowledge
  State the fact that it doesn’t consist of member who have a good knowledge
about the particular area. Possibility of exchanging that knowledge may not be
possible
 There is a lack of time, every bill is allocated a time within which it must be read
 Guillotine motion
 Question arises if proper scrutiny happens
 These entities are still respected as it represents public choice. This will be
resolved to a great extent when the bill reaches HOL.
 If the bill is of constitutional importance it won’t go through committee stage,
but it would be done by the whole parliament as a whole.
 If it’s something like anti-terrorism act then everybody’s opinion can be held, but
this would mean that it would take a lot of time
 Third reading – final reading –there will be no amendments.
 Parliament will adhere to the Salisbury convention
 HOL is a specialist at the matter –
 If the HOL strikes a bill out they can keep the bill back for one year and by pass
the HOL and go for Royal Assent.
 Through primary legislation ministers are granted power through this to make
secondary legislation.
 How parliament has minimal power over delegated legislation – either approve
or reject
 Judiciary on the other hand may use judicial review to make sure that they are
aligned with the parent act.

5) What differences, if any, would a Bill of Rights make to the legal protection of human
rights and civil liberties in the UK?

 England having liberties

 How the courts were granting them – if people refer to the court they’ll be
granted negative rights – that’s the process England had on rights.
 How UK became a signatory to ECtHR

 Tony Blaire brought in the HRA
 What the HRA is about, s2, s3, s4
 Go on to show article, 3, 5, 8 is misused by foreign criminals.
 Trying to manipulate the act which is an European Dimension
 That’s why there’s a call for home grown bill of rights – how we stand with it
 How when it comes to the provision they were almost alike because UK made
most of it
  What’s the position of the judiciary – who’s there to protect the rights of these
people?


7) Discuss the position of the House of Lords in UK constitution and explain the options
for reform.

The United Kingdom legal system always stood out with their work. They bear a proud
history and they try to uphold it as they continue to move along with their normal
procedures. The Westminster parliament is made up of the Monarch, House of Lords
(HOL) and the House of Commons (HOC). This bicameral parliament, which is the HOL
and the HOC acts as a check and balance within the legislature itself to make sure that
none abuse their authority, therefore a decision of one chamber must always be
approved by the other. However, there are also other countries who perform as
individual chambers, like the New Zealand House of Representatives. It is interesting to
note how these chambers doesn’t have equal power. This essay will be focused one
specific chamber – the House of Lords. The following paragraphs will analyse the
composition, functions, past reforms, current structure, criticism and future reforms of
the UK House of Lords.

The house of Lords is considered to be the upper chamber of the bicameral parliament.
Their seat at the parliament is red, most probably showcasing the use of this royal
colour by the monarchy (www.parliament.uk). Member of the House of Lords are
known as peers and it classifies into hereditary peer and life peers. They are appointed
by the queen through the advice of the prime minister while some are also appointed by
the House of Lords Appointment Commission. The limit to the number of members may
vary but you settles between the approximately 800 people. HOL doesn’t have a large of
governing party as they usually are mostly crossbenches who doesn’t support any
political party. This diversity helps to create independence of though along with less
political focus as opposed to the HOC. When it comes to legislation, HOL stands right
before the crown itself. In simpler terms, once legislation is approved by the HOL it goes
straight to royal assent. In any situation if there are amendments required by these
legislations, the HOL may direct the HOC to do so.

Functions of the HOL falls mostly under amending, scrutinizing and approving law
making proposals that are passed by the HOC. When they come across situations that
may induce public interest, they act a forum for debate on those matters. They revise
bills that comes to them from the House of common, while they also initiate public bills
and private member bills. They also consider and check on the delegated legislation
which are delegated by the parliaments to government ministers and their
departments. They also take part in scrutinizing the executive and the private
legislation.

When it comes to the reforming of this upper chamber, it’s a common debated topic.
The House of Lords Act 1999 was one of such reforms that brought major changes into
the system under the ‘New Labour’ government of 1997 – 2010. During the course of its
long history, House of Lords have gone through number of various reforms. For
example, the peerage Act 1963 allowed hereditary peers to not claim their for life, or
the more famous reform, is how the HOL Appellate Committee was replaced by the
Supreme Court in 2009, by the Constitutional Reforms Act (CRA) 2005. Those like the
Appellate Jurisdiction Act 1876 allowed the appointment of law lords, known as the
judges of the House of Lords.

The current structure of the House of Lords includes the order of hereditary peers, life
peers, bishops and Arch bishops. The CRA 2005 decided that law lords must be set aside
to uphold separation of powers as the rule of law must be followed to avoid despotism
but also anarchy. As a result, the remaining law lords were place straight into the
Supreme Court. However, non-practicing and retired law lords are allowed to stay in the
House of Lords. Hereditary peers get their unpaid job through the generations. As time
passed by only 300-400 hereditary peers were left as the newer generations were no
longer interested be part of the chamber. They was an attempt by the House of
Commons to remove them from the system, but the issue with that decision was how
the House of Lords must approve legislation and naturally, the HOL didn’t pass the Act in
order to protect their own positions within the system. With time, the hereditary peers
was somehow reduced to 90-93 members and the Tony Blaire increased the number of
life peers instead. As he’s from the labour party, he brought in more members from the
labour party.
There are 4 possible scenarios that may occur before the bill goes for royal assent.
Firstly, if there is no issue with the bill it may go straight to royal assent after the
approval of the House of Lords. Secondly, if there are amendments required, the bill
may go through a ping pong motion, which is back and forth from the HOC to HOL till
the issues are resolved to be sent for royal assent. HOC given priority to the decisions
made by the HOL as they believe that HOL is more qualified. Thirdly, if the HOL entirely
rejects the law because it seems purely absurd, then the HOC may keep the bill in for
considerations. If they still agree that it’s a good idea a year later, they may pass the law
straight to royal assent. Finally, if the bill about to be passed is one concerning the term
of office of a parliament, then it must go through to the HOL instead been kept within
for one year in case it gets rejected. This is because HOL is the most suitable and neutral
body for approving such laws, and it’ll make sure that the HOC doesn’t pass laws
 entirely beneficial for them, adversely affecting the separation of powers and the rule of
law.

There are two criticisms against the House of Lords that’s encouraging future reforms.
Firstly, they are criticized for making the law of the country. This is because they are
unelected representatives of the parliament who doesn’t represent the choice of the
people. The society vote for the parties that they prefer depending on their manifesto.
However, they may not put their manifesto into reality if House of Lords possess the
power to control what law may or may not be passed. Secondly, they are criticized as
they don’t hold accountability for their actions. House of Commons on the other hand
are accountable and it’s done through select committees, question and debate times.
These criticism have raised significant concerns within the community and they are
reforms that are wished for by the society.

There may be evidence that the HOL has misused their powers, especially it was the
reason that they lost the power to keep in rejected laws for a year as per what the HOC
are capable of doing. However, as mentioned, HOL is non-politically focused, neutral
body that is essential within the parliament to make sure that there is no abuse of
power beyond scope of authorities, so that the jurisdiction is not replaced by anarchy.

8) Consider the proposition that, as a consequence of the reform since 1997, the UK has
now acquired a federal constitution

England was one an individual nation who didn’t share any powers. However after
Wales joined them, the situation changed. The Anglo-Scottish union then led to the
formation of The Great Britain and later on the Irish union led to the formation of the
United Kingdom which we have today. The Latin description ‘to roll down’, is the best
way to define as to what happened between these nations. In more simple terms, there
was transfer of powers from the Westminster parliaments to the nation, Scotland,
Wales and Northern Ireland. This process is known as devolution, and it is not
something that can happen overnight. UK, Italy are countries which use this system.
Federalism on the other hand is the where the powers of nation is held by a central
government with constituent states, province and other territorial areas with political
power. United states have a system similar to federalism. One might argue that the
devolving has gone overboard to a point where the states are somewhat similar to one
of a federal country, and this essay will take in depth glace as to what powers to were
devolved to the three nations separately, how it has affected the sovereignty of the
Westminster parliament and if the case is similar to one of devolution or federalism as
questioned above.
There was a clear intention to make UK a federal state during earlier periods of 1970s.
However this was effortlessly rejected by the royal Kilbrandon commission. This was the
only attempt of UK directly intending to go along with a federal system.
There were several attempts made before Tony Blair introduced the new devolution
process in 1998. There were attempts where the legislation was formed before the
referendum and it yet failed. However, all the three nations received their devolved
powers through Tony Blair’s actions. Whether the devolved power was equal maybe the
next question. The three devolved nations were given tailor made power to suit their
capabilities. This is because they were at three separate positions with regards to
growth.

Scotland was one of those nations who was in a mature stage. It is due to this reason
that they are the only nation with their own national parliament. They also received
limited tax varying power along with it, back in 2012. However, this maturity wasn’t
enough for them to go forward with the Scotland independence Reform in 2014, as the
cross-part Smith commission voted ‘NO’ with a majority of 55.3%. However by 2016,
they were capable of having income tax formulating powers through the updated Act.
Scotland always had their own decision making strength but they weren’t very capable
due to their limited powers. The Scottish continuity bill stands as a good example for
this statement. When the UK went on for a referendum for the EU withdrawal, only
Scotland and Northern Ireland disagreed to go along with it. The purpose of the Scottish
continuity bill was for them to be bound by the EU law and for them to be part of it,
even if UK withdrew from it. However it was failed attempt as the bill was rejected. It
stands as an important to evidence to prove that the devolved power they own isn’t
enough for them to be considered as federal states.

Wales on the other hand is in more middle level maturity stage with only the welsh
assembly which they received in 1998. It should be noted that it not that Wales didn’t
attempt to go for an independence Reform; their only limitation was the reaction of the
people to the Scottish Reforms Act. Updates like the Wales Act of 2006 proceeded to
give them extra devolved power, and around 2007, they received fiscal powers through
the Silk Commission. They received further devolved power in the 2016 update. They
have the ability to give consent before the Westminster parliament makes law for them.
However this doesn’t necessarily mean that the powers possessed by Wales in enough
for them to be considered as a federal state.

The case for Ireland was rather different. Their war led to the division of Ire and
Northern Ireland and only Northern Ireland is now a devolved nation of UK. The collapse
in their government made them to pass down the power back to the secretary of state
of Northern Ireland till they published the new agreement, where the Northern Ireland
assembly was restored again. The chaotic environment caused by the war made it
difficult for them to handle any heavy responsibilities. All of these troubles made
Northern Ireland to be at more of an infant stage compared to the other two nation.
When Theresa May didn’t possess enough votes to get selected back in 2017, she joined
with Northern Ireland, which gave her just enough to enter. However under one
condition; it was for the Westminster parliament to take responsibility of Northern
Ireland, and Theresa May agreed to it. Northern Ireland was therefore under the
responsibility of England till Boris Johnson returned all powers back to them when he
came into power. It is interesting to note that the legislation was divided to three
components, as to excepted, reserved and transferred, which were powers they would
never have, powers they might eventually get and finally powers they already possess,
accordingly. These given out an idea as to how the states have more of limited devolved
powers than them being federal states.

Even in the situations of Brexit the nations had different views about the withdrawal.
However, as it was previously discussed, it was not a strong argument for them to not
go forward with the decision. However one argument for this statement is where the
three nations had the freedom to make their own decision with regards to Covid – 19
pandemic. This gives out a certain outlook that might support the argument.

As mentioned above, the power possessed by the three nations is limited up to a certain
extent. It is not false to say that the reforms of the Acts since 1997 have provided the
three nations with devolved powers, however these provisions weren’t vast enough for
the nations to be currently considered as federal states. The arguments for the
statement stands to be true, yet the reasonable and logical outlook for this is that the
fact UK has now acquired a federal constitution might not be the case. Whether the
nations would eventually become federal is a topic for a whole other essay. The
scenarios mentioned above stand as justifications to the fact that UK is not federal.
Therefore it is safe to conclude that the process of devolution has also successfully
provided the nations with devolved power without it affecting the sovereignty and
supremacy of the Westminster parliament.