Public law essay questions
At the same time, however, it is necessary to keep these matters in perspective. The recent development which transforms the subject area, turning it on its head, is a rarity; it is important, therefore, not to become fixated with the latest case, judicial lecture or official report. For the most part, the real value of such things lies in the light they cast—and the ways in which they might consolidate or deepen your understanding of—key principles, institutions and concepts. Subject to that caveat and one other , this post highlights some key developments this year in Public Law and attempts to place them in context by demonstrating the ways in which they form parts of broader debates and narratives.
The other caveat is that what follows makes no claim to comprehensiveness: rather, it reflects developments that have caught my attention this year and have therefore been the subject of posts on this blog, and which, I think, help to illuminate or place in context fundamental matters that are typically studied by Public Law students. However, political and media debate in this area is often ill-informed; if change really is to be contemplated, then it is necessary to think about what that might look like and what the options might be.
I explored the different paths that might be taken by a future government seeking to enact reform in this area in a post published last autumn , arguing that four scenarios were worth considering, reflecting two key variables—namely, whether the HRA is replaced with further domestic legislation, and whether the UK remains a member of the ECHR.
One of the main reasons why debate in this area tends to be unsatisfactory is the tendency to run together three interrelated but distinct issues. In a post published in December , I showed that an informed and intelligent debate must distinguish between three different dimensions of the relationship between UK law and the ECHR, concerning the domestic law position, the international law position, and the wider political issues.
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For further background on past, present and future of human rights law in the UK, see my post on Law, Rights and Constitutional Politics , and the book chapter available online to which that post refers. Over the course of the last year, the UK Supreme Court has delivered three highly significant judgments that speak to this issue. One of those cases is dealt with below, in the section on EU law and the UK constitution, but the other two can be mentioned here.
The focus, he said, should have been upon the latter—and the rights that are recognized at common law. Reading cases like Osborn and Kennedy , it is hard to resist concluding that senior judges are laying the ground for possible HRA repeal and ECHR withdrawal, and that, in doing so, they are ensuring that the underlying common law landscape that would be laid bare in such circumstances would turn out to embody a set of human rights protections comparable to those that obtain today.
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The primacy of EU law would normally supply a ready answer to that question, but the difficulty in this case was that the procedure being followed involved the decision being made by Parliament. Even Acts of Parliament, of course, are not immune to challenge on EU law grounds, as the Factortame case illustrates. In the end, the Court concluded that no such constitutionally-problematic scrutiny of parliamentary procedure was necessary.
But what if it had been? Could EU law override a fundamental constitutional principle such as the one reflected in article 9 of the Bill of Rights?
The Supreme Court doubted this, on the ground that Parliament, when it gave force to EU law by virtue of section 2 of the European Communities Act , should not be taken to have intended to give EU such a degree of force as to permit it to ride roughshod over fundamental constitutional principles or legislation. As I explained in my post on the case , this suggests that EU law has been accorded only a qualified primacy which enables it to prevail over most domestic law, but not over fundamental constitutional law. It also suggests that the binary distinction between constitutional and regular statutes identified in Thoburn v Sunderland City Council  EWHC Admin needs to be rethought—some constitutional statutes such as the Bill of Rights arguably being more fundamental than others such as the ECA Taken in combination, Osborn , Kennedy and HS2 paint a fascinating picture of the common law constitution.
It remains as always a work in progress, but the direction of travel seems clear, as senior judges exhibit an increasing willingness to expose and rely upon the structure and norms of that constitution, sometimes in preference to its more explicit statutory aspects. He said that in the course of trying to explain what he characterized as exceptionalist British attitudes towards the EU and the ECHR, arguing that the existence of parliamentary sovereignty and as he sees it the absence of a constitution means that European laws are able to exert a more profound and obvious influence in the UK than in countries that have written constitutions which may operate to limit the domestic impact of European laws.
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Lord Neuberger certainly has a valid point. However, as I said in my commentary on his lecture , he arguably fails to give due credit to the subtleties of the modern British constitution highlighted by cases like Osborn , Kennedy and HS2. None of those cases is inconsistent with parliamentary sovereignty, and none suggests that the UK has a constitution although unwritten that is hierarchically superior in a way that absolutely limits the authority of Parliament or the impact of European laws whose effect in the UK is licensed by Act of Parliament.
However, as noted above, those cases do suggest that, parliamentary sovereignty notwithstanding, there exists a hierarchy of norms within the constitution that may inform our understanding of the effect of among other things European laws. Each chapter includes typical questions; diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, key debates on each topic and suggestions on further reading. The first chapter offers an introduction to the subject, with particular emphasis on exams.
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The second chapter contains advice on coursework. This is followed by an examination of constitutions in terms of the nature and sources of the UK constitution, the rule of law, and the separation of powers. The text moves on to look at the royal prerogative, Parliament, and parliamentary sovereignty.
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Next the book considers the Human Rights Act , followed by chapters looking at freedom to protest, police powers, and freedom of expression. Finally, the book considers administrative law and judicial review. Keywords: administrative law , freedom of expression , Human Rights Act , judicial review , public law , Parliament , royal prerogative , sovereignty.
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