Public Report 2022 A

Examiners’ reports 2022
LA1020 Public law – Zone A
Introduction
As in previous years, the exam answers ranged from the truly outstanding to the
rather less impressive responses to the questions set. Some candidates took the
approach of reiterating what was in the module guide or textbook, or merely giving a
descriptive account of a particular area of public law. In the worst cases, plagiarism
software detected that the originality of students’ work had been severely
compromised. These approaches result in lower or much lower marks, given that
the objective of the exam is to discuss the respective questions critically and to
draw on a wide range of (sometimes conflicting) primary and secondary legal
materials. By contrast, the best scripts were able to show a clear and succinct grasp
of the key issues and were well read in terms of the further reading recommended
in the module guide and available in the VLE.
Please note that spelling errors and other linguistic problems have been left as they
were on the examination scripts.
Comments on specific questions

Question 1
Discuss the role that constitutional conventions play in the functioning of the
modern UK constitution.
General remarks
The question requires the student to think about sources of the UK constitution that
fall into two categories: legal rules (primary and secondary legislation, case law)
and non-legal rules (e.g. conventions and prerogative powers). This needs to be
done in conceptual terms (by distinguishing sources of the constitution) and in
empirical terms (by illustrating constitutional practice and cases). In that context,
conventions need to be distinguished from mere practices, traditions, and custom.
Law cases, reports and other references the examiners would expect you to use
Dicey, Jennings.
AG v Jonathan Cape Ltd; Madzimbamuto v Lardner-Burke.
Common errors
Weak answers did not explain the nature of conventions; did not evidence good
understanding by discussing examples of areas regulated by convention (e.g.
ministerial accountability); did not explain how a convention comes into existence,
how it is enforced and how it can change; did not examine the case for codification
of conventions. The discussion of reform should include an assessment of the
constitutional implications, especially in relation to the courts in enforcement. Does
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the UK constitution encourage decision-making that is ‘rational’ and a framework for
government that is ‘logical’ and hierarchical (e.g. the distinction between
constitutional and ordinary laws)? Or does it fail to do so because, for example, it
developed pragmatically, flexibly and peacefully (but without design) in response to
short-term political factors?
A good answer to this question would…
demonstrate an understanding of conventions in theoretical terms (by distinguishing
sources of the constitution) and in empirical terms (by illustrating constitutional
practice and cases). In that context, conventions need to be distinguished from
mere practices, traditions, and legal principles. As always, a good answer will not
be only descriptive but also critical (by analysing the purposes of conventions, why
they are obeyed, whether they should be codified). The discussion should focus on
collective responsibility (the need to present the appearance of strong government;
the rules relating to confidentiality; the binding nature of Cabinet decisions on all
Ministers) and individual responsibility (the twin rules of responsibility for personal
conduct and responsibility/accountability for government departments). A very good
answer would discuss the legal effect of codifying conventions (such as the Sewel
Convention).
Poor answers to this question…
gave long lists of examples, often dating back decades and without historical
context, of ministerial resignations.
Student extract
Furthermore, the answer to the question of why conventions is not a
straightforward one as there are different legal theories and opinions
regarding the definition and characteristics of conventions. N.W. Barbar is of
the opinion that conventions and law should not be viewed separately and
instead be viewed as a spectrum. Hart, on the other hand, asserts that
conventions cannot be treated like laws since they do not have clearly
defined origins and widely accepted interpretations. Conventions and laws
are both based on usage and precedent however, laws undoubtedly offer
more certainty than conventions.
Dicey suggests that breach of conventions would culminate in the breach of
law. For instance, if the Parliament is not summoned and consequently,
finance bills are not passed, there would an absence of a legal mechanism to
fund the government and run the country. In the Attorney General v Jonathan
Cape court case, the courts accepted the existence of conventions but
demonstrated an unwillingness to apply them, recognizing them as not
enforceable through courts of law. However, in Carletona v Commissioner,
the court highlighted conventions regarding duties and announced a verdict
on the breach of doctrine of ultra vires. Here, the court was thought to be
acting beyond its legal power, by resorting to non-legal conventions to reach
a decision.
Comments on extract
What the candidate attempts to do is discuss different viewpoints on conventions
(Barber, Hart, Dicey). They back the conceptual discussion up with reference to two
cases. There are some issues around the depth and quality of the analysis but the
overall approach is worthwhile and earned them a low 2:1.
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Question 2
Consider the claim that the doctrine of parliamentary sovereignty is no longer
absolute and uncontrolled.
General remarks
The doctrine of parliamentary sovereignty, as extolled by Dicey in absolute and
supreme terms, has been the subject of uncritical acceptance and vigorous critique.
The question refers to dicta by Lord Hope in AG v Jackson, which suggests
possible limitations on the doctrine that the students are invited to explore.
Pickin v British Railways Board; Madzimbamuto v Lardner-Burke; Vauxhall Estates;
Ellen St Estates; Burmah Oil; Jackson; Axa.
Common errors
The answer is limited to a discussion about Dicey’s understanding or to a non-
contemporary understanding of sovereignty. Poor answers fail to connect the
question to the Jackson case, a discussion of which requires an in-depth
understanding of the rule of law and how that doctrine operates in conjunction with
parliamentary sovereignty.
discuss the main facets of parliamentary sovereignty (e.g. by Dicey and Wade), a
very good answer would include objections to that interpretation (Jennings,
Heuston, Craig, Allan). Students tend to refer to examples of potential limitations,
e.g. devolution and HRA/ECHR but this needs to be done with caution. First, to
avoid repetition in answers to other questions on devolution and the HRA/ECHR.
Second, because the tension between parliamentary sovereignty and the rule of
law, which underlies the decision in Jackson, should be appreciated and discussed
on its own terms.
limited the discussion to Dicey’s two limbs of sovereignty and overstated the
limitations posed by devolution and HRA/ECHR.
Question 3
Examine the extent to which the separation of powers is a central feature of
the modern UK constitution.
General remarks
Although this was a very popular question, the difficulty of separation of powers was
usually underrated or not fully appreciated by students. An alien doctrine, it is a
problematic lens through which to analyse, explain, or understand the UK organs of
government that has traditionally been based on the mixed/balanced constitution
that joins monarchic, aristocratic and democratic elements but controls them
through checks and balances.
House of Commons (Disqualification) Act 1975, Constitutional Reform Act 2005,
Duport Steels Ltd v Sirs, Anderson, Fire Brigades Union, R v Chaytor, Treasury v
Ahmed, R (Evans) v AG.
Common errors
Students typically introduce the three major institutions of state and discuss their
role, functions, and personnel systematically. So, the (relatively uncontroversial)
Parliament/executive relationship is given as much time as the (more controversial)
judiciary/executive relationship. The role of the Lord Chancellor needs to be
downplayed and the role of the judiciary in relation to law-making and judicial review
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highlighted. The respective relationships need to be discussed critically and not just
described. Is separation of powers (after CRA, UKSC, etc.) still as irrelevant to
understanding the UK constitution as it historically was?
discuss the emergence of the doctrine of separation of powers in historical terms,
but stress that Montesquieu’s conception is based on an idealised English
constitution. At the very least, the historic incongruity of the doctrine in the UK
constitution needs to be brought out. A very good answer would show that SOP is
enjoying a renaissance in the UK and point to recent constitutional developments
(CRA 2005; reformed Lord Chancellor; UKSC) to underscore the point. Although
clearly of historical and theoretical interest, there are cases that need to be
discussed if only as illustrations (Anderson; Matthews; Duport Steels; Fire Brigades
Union) as well as contemporary literature to be considered.
treated the SOP as a template to analyse the UK constitution; discussed the
relationships systematically when the reality is much less clean cut; focused on
historical and comparative elements (USA; France) rather than the contemporary
legal and political realities in the UK.
Question 4
Consider the role and powers of the monarch in the law and working of the
UK constitution.
General remarks
The question addresses the evolution of the constitution from a position where the
monarch personally headed the government to one where the monarch exercises
power only through others.
Case of Proclamations; De Keyser's Royal Hotel; BBC v Johns; Laker Airways;
GCHQ; Fire Brigades Union; Northumbria Police Authority; Bancoult.
Common errors
To focus mainly or only on the personal powers of the monarch and/or Crown
immunities; to discuss prerogative powers mainly from a historical perspective and
discuss the contemporary controversies in insufficient terms.
discuss the sources of the Crown's executive power; explain the role and
justification of the royal prerogative; discuss the scope of prerogative powers (in
relation to domestic and foreign affairs); examine the political and legal controls
over the prerogative (are they subject to Parliamentary scrutiny; can they be
reviewed by the courts?); set out its relationship with statute (De Keyser's;
Northumbria Police Authority) as well as with human rights (Bancoult). What
attempts have been made to reform the royal prerogative (e.g. CRGA 2010)?
focused mainly on the appointment of a Prime Minister, the dissolution of
Parliament and the appointment of peers; did not use cases to illustrate the
argument.
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Question 5
Critically assess the role of Parliament in the law-making process.
General remarks
Parliament (i.e. the elected House of Commons, the appointed House of Lords and
the Monarch) is the supreme law-maker. Since i) Parliament has (in theory)
unlimited law-making power and ii) the executive and the legislature are not
separated, the resulting ‘elective dictatorship’ questions both the notion that
‘Parliament makes law’ and Parliament’s role regarding the scrutiny of laws.
Common errors
Some students erroneously thought this question was about parliamentary
sovereignty.
focus on legislating and holding the executive to account. The executive dominance
in Parliament may be touched upon, esp. since it controls the timetable for debating
legislation. The adversarial nature of parliamentary procedure (government versus
opposition) and party discipline (whips) may be discussed as well but the focus
should be on legislative procedure (three readings) and executive supervision
(questions, debates; select committees). A very good answer will find time to say
something about delegated legislation, which is subject to a limited degree of
parliamentary scrutiny. The purpose of the HL (which is subordinate to the HC)
should not be forgotten: it is to act as a check on the lower house. The Salisbury
Convention, the composition of the House, and its status (unelected but a useful
counterweight in the mixed constitution) may be discussed.
only discuss the stages of a public bill in Parliament (first reading, second reading,
etc.); failed to discuss the different ways in which Parliament does scrutinise laws
(public bill committees, etc.); focused only on role of HC and not HL.
Question 6
What differences, if any, would a Bill of Rights make to the legal protection of
human rights and civil liberties in the UK?
General remarks
This question is not about the nature of human rights, or their historical recognition
by the common law, or the substantive rights protected by the ECHR. On the one
hand, the student needs to demonstrate an understanding of the internal logic of the
HRA (s.3) and its relationship with other organs of government (s.4). On the other
hand, the student needs to identify and assess to what extent the HRA could be
improved or undermined by a domestic Bill of Rights.
R v A; Ghaidan v Mendoza; Anderson; Bellinger v Bellinger and others.
Common errors
To write about rights in the ECHR context; to discuss mainly or only rights cases
before the HRA; not to analyse the impact of the HRA on the constitution and the
institutional balance between the courts and Parliament/government, to limit the
discussion to ss.3 and 4 and not to include the dimension of reform.
set out the position before the HRA was enacted; set out and illustrate (using case
law) the interpretative obligation in s.3: what are the limits to statutory
interpretation? Section 4 also needs to be discussed: does the power to make a
declaration of incompatibility change the constitutional role of the courts? A very
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good answer would also consider the impact of the HRA on institutional balance. Is
Parliament still sovereign? Has the relationship between Parliament, government,
and courts been reordered? Is the gap between legal theory and political reality
getting wider and harder to justify? How would a British bill of rights remedy the
perceived ‘defects’ of the HRA?
listed the main provisions (ss.2, 3, 4, 6, 8, and 19) in the HRA without any
discussion. Some better attempts lost points because they did not discuss cases
sufficiently, or because they only focused on human rights protection without
considering judicial empowerment. Finally, some answers focused too much on
counter-terrorism.
Question 7
Discuss whether proportionality is superseding irrationality as a ground of
judicial review.
General remarks
The question focuses on grounds of review that are less directly linked to the notion
of ultra vires and which, therefore, raise issues regarding the proper limits of the
courts' role.
Wednesbury, ex p. Smith, GCHQ; ex p. Fire Brigades Union; ex p. Daly; Pham,
Keyu and others.
Common errors
A large number of students limited their response to Wednesbury and ultra vires
and failed to discuss the evolution of that ground of review (which now tailors the
level of interference to the subject matter) or the emergence of additional grounds
(e.g. proportionality).
use Wednesbury and GCHQ as the starting point of the ultra vires doctrine and
illustrate why the decision is 'unfortunately retrogressive'. In order to get a
competent mark, students need to demonstrate the judicial flexibility in this area.
The courts' approach changes depending on whether individual rights are at stake
(anxious scrutiny) to whether the case raises broad socio-economic or political
factors that are removed from ordinary judicial competence. To do well, students
need to be able to conceptualise 'proportionality'. Does it overlap with
unreasonableness? What are its requirements? A very good answer would discuss
the criticism that proportionality allows judges to interfere with decisions by the
executive by imposing their own opinion on the merits in place of that of the
decision maker.
gave a summary of the cases without connecting it to the issue that what is
unreasonable must always be decided in the context of the particular statutory
power and without awareness that the grounds of review operate as an external
judicial control on the operation of a statute.
Student extract
There are two main differences between the Wednesbury test and the
proportionality test. Firstly, there is a deeper intensity of review under
proportionality test. A decision might be disproportionate even if it is
reasonable as the proportionality test provides a tighter control of the
discretion of the decision maker. Secondly, the structure of review under the
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proportionality is clearer than the Wednesbury test. As demonstrated in the

Smith Case, the proportionality test consists of 4 questions…
The proportionality test demonstrates a clearer comparison between the
decision made as well as the intended objective and the infringing act.
After the enactment of Human Rights Act 1998 and the adoption of the EU
law context in UK courts, there has been an increase in considering and even
adopting the proportionality test in relevant cases. Lord Steyn said in case
Alconbury Developments v Secretary of State (2001) that judges had to
consider the proportionality test also when dealing with cases in domestic
laws, and keeping the twin-track model, i.e. let Wednesbury test and the
proportionality test co-exist, does not seem necessary. This view is supported
by scholars and commentators provided that it is clearer and more structured.
Comments on extract
The candidate does well to set out the two grounds of review and chart the
evolution of proportionality in the context of the HRA and EU law. The candidate
displays good knowledge of the area and is able to describe the law very well. More
depth of analysis would have given the student a higher mark than a high 2:2.
Question 8
Discuss the position of the House of Lords in the UK constitution and explain
the options for reform.
General remarks
The purpose of the HL is to act as a check on the HC, and to provide an opportunity
for second thoughts. But it is an unusual second chamber and some politicians are
calling for it to be reformed.
Parliament Acts 1911 and 1949; House of Lords Act 1999; Wakeham Report 2000;
White Paper on HL Reform 2007; Salisbury-Addison Convention; Jackson v
Attorney General.
Common errors
To memorise the composition and the functions of the HL and to consider that to be
sufficient; to write about the HL only in the law-making process.
Discuss, not only the functions, but also the purpose of a second chamber. What is
its constitutional role? Is a second chamber necessary? If so, should the HL be
reformed to be more representative?
What happens if HC and HL disagree? HL once had the power of veto but now only
a power of delay (Parliament Acts 1911 and 1949). It is a revising rather than rival
chamber. The numerous consultations, government papers and reports can be
discussed. Why is reform of the HL proving so difficult? A very good answer would
discuss HL retention of legal veto over secondary legislation: recent controversy,
leading the Strathclyde Review and proposals for removal of veto.
were limited in a descriptive sense and did not discuss HL reform critically.

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Examiners’ reports 2022

Examiners’ reports 2022

LA1020 Public law – Zone A

Comments on specific questions

proportionality is clearer than the Wednesbury test. As demonstrated in the

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