The answers to the exam practice questions provided in G152 are given below, in the order they appear in the text. An example of a high-level answer is given for each exam practice question.
Chapter 1: Doctrine of Precedent
- a) Source A at line 1 refers to stare decisis. Describe the concept of stare decisis using the Sources and other cases to illustrate your answer. [15 marks]
- a) As stated in the source, Stare decisis means stand by what has been decided. It is the basis of the practice of precedent where courts follow their own previous decisions and those of higher courts. It is based on the idea of ensuring that the law is consistent, fair and certain.
The system relies on a hierarchy of courts where higher courts bind lower courts. In the English legal system the highest court is the UK Supreme Court (except for EU matters which come under the Court of Justice of the EU). The UK Supreme Court binds the Court of Appeal, the High Court and all the inferior courts.
In order to be able to follow previous decisions, some record must be kept. This is where the Law Reports prove vital. They are a record of the judgments made in all the important cases. The Incorporated Council for Law Reporting was set up in 1865 and is the preferred source of such reports.Each judgment will have two important parts to it. The ratio decidendi is the actual legal principle that comes from the case. Everything else (facts, reasoning and other judicial speculation) is known as the obiter dicta There are three kinds of precedent. Firstly there is a binding precedent which is a precedent which must be followed because it comes from a higher court or is an earlier decision of the same court. The ratio decidendi of a case is the binding part. An example of a well-known binding precedent is that a manufacturer owes a duty of care to the end consumer – this comes from the famous case of Donoghue v Stevenson. Secondly, where a court has to make a fresh precedent because there is no binding authority, this is known as an original precedent. A well-known example of an original precedent is Re: S (adult – refusal of medical treatment) where the judge had to decide the case with no English authority to bind him. Lastly, there is a persuasive precedent which is where a court can choose to follow a decision but does not have to A judge has a number of techniques that can be used to deal with precedents. Following is where a judge is bound and must apply the legal principle of the earlier case to the present case. However, there are three ways a judge can avoid following. Firstly, a judge in an appropriate superior court can reverse the decision of a lower court in a case which has been appealed (Sweet v Parsley). Secondly, a judge in a court with suitable powers can overrule a decision made in an earlier court in a different case (R v Shivpuri). Lastly, if a judge can find a difference in the material facts of the present case and the earlier case, then they may ‘distinguish’ the latter case and are then free to make a fresh decision (R v Brown distinguished in R v Wilson) There is some flexibility in the system of precedent as the UK Supreme Court and the Court of Appeal have limited powers to overrule their own previous decisions in certain circumstances
Comment: This would be a top level answer. It covers the breadth of the question, includes a link to the source material and refers to a number of relevant cases. Please also note that a diagram of the court hierarchy would be credited dependent on descriptive detail.
- c) (ii) Discuss the advantages and disadvantages of the doctrine of precedent. [15 marks]
- c) (ii) The main reason given in support of precedent is that it produces certainty and consistency in the law. Like cases are treated alike and this means that lawyers can advise clients in a confident manner so that such individuals can then plan their affairs safe in the knowledge of the likely outcome.
Comment: This is a mid-ranging answer which just misses level four due to the lack of a well-developed point. Please see the book for guidance on how to write well developed points. In the example above level four could have been accessed by, for example, using a case such as R v R (rape within marriage) to illustrate paragraph two or some indication of what the constitutional doctrines in paragraph four mean and how they would be offended.
- c) With reference to Sources A and B (these can be accessed at the URL on page 76):
(i) Describe the powers of the Court of Appeal within the doctrine of precedent using cases to illustrate your answer. [15 marks]
(ii) Discuss whether or not the powers of the Court of Appeal within the doctrine of precedent should be extended. [15 marks]
- c) (i) The Court of Appeal has the power to bind all the courts below it and is generally bound by its own previous decisions. The Court of Appeal has the power, like any other court, to distinguish where this is possible based on the facts (Balfour and Merritt).
Comment: A high level four answer with confident knowledge, a link to the source materials and lots of relevant cases.
(ii) The main argument in favour of extending the powers of the Court of Appeal is the fact that so few cases actually get appealed beyond the Court of Appeal to the UKSC. This means that errors in the law may go uncorrected for years before a suitable case reaches the UKSC. For example, it is widely thought that the law on objective recklessness in criminal damage would have been corrected much earlier had a suitable case been appealed before R v G and another.The key argument against such a move is that it would undermine certainty and consistency. There would be a potential risk that lower courts could be confronted with two conflicting decisions to choose between. Such a situation would cause confusion and limit the ability of lawyers to give accurate legal advice to clients There is a compelling case to serve justice more quickly by giving the Court of Appeal more power. This argument is already recognised in the growing range of situations where the court is able to do so in cases involving crime (R v Gould) and human rights (Mendoza v Ghaidan). However, taken to its ultimate conclusion, this could cause the system of precedent to break down Some would argue that the range of knowledge and experience of different areas of law held by 37 Appeal Court Justices is more wide-ranging than that of eleven Justices of the Supreme Court. However, others would argue that their appointment at the very highest level qualifies them to take what can be very difficult decisions which have political, constitutional and social consequences Because the Court of Appeal is already bound by the UKSC, it makes it pointless appealing to the court in the first place in some cases. This must limit the number of appeals it hears. Therefore, it would improve the flexibility and justice of the system of precedent if the Court of Appeal had more power
Comment: This is a very good answer but the candidate has forgotten to link to the source materials which can be a reason for not getting full marks in an otherwise excellent response.
Chapter 2: Legislation
Question 1 practice
- b) Identify and explain the most suitable type of delegated legislation to implement law in the following situations:
- To implement a European Union Directive quickly when Parliament is not sitting. [5 marks]
- To allow a government department to issue regulations on education. [5 marks]
(iii) For a train company (a public corporation) to implement a ban on the use of mobile phones by passengers. [5 marks]
- b) (i) The most suitable type of delegated legislation to implement a European Union Directive quickly when Parliament is not sitting would be an Order in Council. This is because the other method of implementation is to use a statutory instrument (or primary legislation) and this is not possible as Parliament is not sitting and, even if it were, it is not as quick as an Order in Council which may be passed in a matter of hours in an emergency. An Order in Council would be passed by the Queen and Privy Council
Comment: Note the way these answers follow the pattern explained in the book. Each answer has (i) an outcome, (ii) a reason why, and (iii) some additional piece of relevant information.
- b) Explain in the following situations if there would be a successful judicial review.
- A government minister wishes to repeal an old law. He has not consulted relevant bodies, which are affected by the proposals, before introducing new regulations. [5 marks]
- A government minister is given power to make regulations concerning legal funding. He has now introduced a regulation on immigration. [5 marks]
- A government minister has made regulations which are argued to be unreasonable. [5 marks]
- b) (i) Judicial review would be successful here for procedural ultra vires. This is because the government minister has failed to follow a ‘procedure’ that was required of him – namely, to consult relevant bodies. This scenario is similar to the case Agricultural Training Board v Aylesbury Mushrooms
Comment: Straightforward questions which follow the same ‘formula’ as above.
- c) With reference to Source B and your knowledge of delegated legislation:
- Describe both the parliamentary and court controls over delegated legislation. [15 marks]
- Discuss the effectiveness of both the parliamentary and court controls over delegated legislation. [15 marks]
- c) (i) Delegated legislation allows bodies other than Parliament to make law. Some of these bodies are unelected and so delegated legislation must be controlled to guard against any abuse of power. Control is exercised by both Parliament and the courts
Comment: This is not uncommon at all – a one-sided response which has fantastic detail on judicial control with cases to illustrate, but which breezes through parliamentary controls with very little detail or explanation. Such a script would be considered too unbalanced for level four despite the quality of the court controls.
(ii) An ideal ‘model answer’ to this question can be found on page 102 of your book (reproduced here):Parliamentary controls are effective because Parliament retains the greatest control that exists over delegated legislation which is the power to revoke, repeal or amend the Enabling Act. This fits in with the doctrine of Parliamentary Supremacy which states that Parliament is the ultimate law-making body. Parliamentary controls are also effective because Parliament only delegates powers to bodies that are accountable to Parliament and places restrictions on the exercise of delegated powers. Parliamentary controls are ineffective when considering the sheer volume of instruments Parliament is supposed to consider. Furthermore, the resolution procedures (especially the negative procedure) are weak and rarely used. The scrutiny committees lack the power to amend or reject legislation and are only able to report their findings where and when allowed. Court controls are ineffective because judicial review can only happen if someone brings a case. Potential litigants have to establish a sufficient legal interest in the case called locus standii and adhere to strict time limits, both of which can prove difficult. Legal Aid is rare and taking cases to the High Court can prove expensive; it takes determination and financial capacity to pursue a case. Court controls are ineffective because many Enabling Acts grant ministers wide and vaguely detailed powers which are open to wide interpretation. Furthermore, courts can be reluctant to stand up to government due to their belief in the separation of powers. Court controls are effective as the government accepts the court’s findings even when they dislike it. This is due to the adherence to the rule of law. This situation seems to have increased significantly since the enactment of the Human Rights Act which has significantly empowered the courts in this area.
Comment: Notice how the answer deals with all four aspects of the question: parliamentary controls that are effective, parliamentary controls that are ineffective, court controls that are effective and court controls that are ineffective. It does so in a balanced way and has a mixture of both developed and well-developed points.
Chapter 3: European Union Law
- a) Source A at lines 13–15 refers to the Council of Ministers and the Commission. Describe the role and composition of both the Council of Ministers and the Commission using Source A and other examples to illustrate your answer. [15 marks]
- b) Identify and explain the most appropriate source of European Union law in the following situations using Source A:
- The EU wishes to alter the Treaty of Rome. [5 marks]
- The EU wishes to harmonise the law on banking. [5 marks]
(iii) The EU wishes to pass a law on insurance that will be instantly and identically applied in all Member States. [5 marks]
- c) Source A at line 17 refers to the European Court of Justice (ECJ).
(i) Describe the role and composition of the ECJ using Source A and other examples to illustrate your answer. [15 marks]
(ii) Discuss the impact of ECJ decisions on the enforcement of EU legal rights. [15 marks]
- The Commission is the executive arm of the EU. It is composed of 27 Commissioners – one appointed by each member state. A president is selected by the European Council. Each Commissioner is appointed for a five year renewable term and takes charge of a department known as a Directorate General with a particular area of responsibility such as transport, farming or the environment. Commissioners are nominated by their member states and appointed by the Council and the President. Because they are not elected, Commissioners are held to account by the European Parliament. Commissioners are required to put the interests of the EU as a whole first rather than those of their member states.
- (i) The ECJ is one of three courts that compose the Court of Justice of the European Union (CJEU) along with the General Court and the Civil Service Tribunal. According to Article 19(1) TEU their role is to ensure that ‘in the application and interpretation of the Treaties, the law is observed’. The court is made up of 27 judges (one per member state) who are assisted by eight Advocates General whose function is to assist the court by producing reasoned opinions on cases referred to the court.
The ECJ performs a number of functions but two of its key roles are to hear direct actions and references for preliminary rulings.Direct actions are cases brought against member states for failures to fulfil their obligations under EU law. Such actions might be brought by the Commission as part of their role or by another member state or by an individual. The Re: Tachographs case is an example of a direct action brought against the UK by the Commission. Article 267 authorises the court to give preliminary rulings. These arise where a court in a member state makes a reference to the ECJ in order to clarify a point of EU law. The Article 267 procedure represents a significant proportion of the court’s work. Article 267 provides for two kinds of reference. Firstly, any court or tribunal (in any member state) may, if they choose to, make a reference to the ECJ – this is known as a discretionary reference. An example of a case where a UK court made a discretionary referral is B&Q v Torfaen Borough Council. Secondly, where a case requiring the interpretation of a point of EU law is being heard in a court against whose decision there is no appeal available, then they must refer the case to the ECJ – this is known as a mandatory reference. An example of a case where a UK court had to make a mandatory referral is the Bulmer v Bollinger case. This case also lays out guidelines about when it is appropriate for a court to make a reference and these include the fact that it must be necessary for a conclusive ruling in the case concerned. These references represent a significant part of the ECJ’s workload therefore the acte claire doctrine suggests that where a point of law has already been determined in an earlier case, courts in member states should apply the law without making unnecessary referrals. (ii) The ECJ has been both assertive and creative in its enforcement of EU legal rights which has had the impact of giving primacy to such rights – especially where a conflict with domestic legislation has arisen. Many EU legal rights would not be accessible if it were not for the doctrine of supremacy of EU law. Supremacy of EU law over conflicting domestic law has not always been readily accepted by member states. However, early decisions by the ECJ were quite clear in asserting that member states had effectively pooled or limited their sovereignty in order to achieve the goals of the EU and must, therefore, accept the supremacy of EU law. Cases which illustrate this assertion of supremacy include Van Gend en Loos and Costa v ENEL. The impact of such decisions has been to ensure that EU legal rights take precedence over conflicting domestic law even where the domestic law concerned is constitutional in nature (Internationale Handelsgesellschaft) or where it would require courts of member states to override conflicting domestic legislation in spite of that member state’s usual convention of accepting the supremacy of their own legislature (Factortame).
Preliminary references made under Article 267 have also allowed the ECJ to develop a number of doctrines which, again, ensure the availability and enforcement of EU legal rights:The direct applicability of regulations – the idea that Regulations must be given legal effect without further action by the member state (as set out in Article 288) – has been enforced through ECJ decisions such as Re: Tachograph. The impact of this has been that EU legal rights contained within Regulations cannot be undermined by member states. The direct effect of Treaty Articles and Regulations – the doctrine that rights contained in such provisions can be relied on by individuals before the courts of their member states – has also been upheld by ECJ decisions. The ECJ has been assertive in ensuring such rights are available both vertically (against the state [Van Gend en Loos]) and horizontally (against another individual [Defrenne v SABENA Airlines]). However, where EU legal rights are contained in a Directive which a member state either fails to incorporate or incorporates wrongly, the ECJ has been most creative in ensuring the availability of rights. This has been achieved by the ECJ extending such rights to individuals vertically and by creatively taking a broad view about what constitutes the state or an ‘arm of the state’ (Marshall v SW Hants HA). The impact of this has been to ensure EU legal rights are available to individuals despite the failings (deliberate or otherwise) of their member state. In spite of this, the fact that EU legal rights contained in an unincorporated Directive are available vertically but not horizontally leaves a great deal of injustice for individuals. Judicial creativity by the ECJ has sought to remedy this injustice in a number of ways. Firstly, the court has developed the doctrine of state liability. In the Frankovich case the court ruled that a state may still be liable to compensate an individual in damages where there is no vertical direct effect but the state are at fault. In the Von Colson case the court developed the doctrine of indirect effect where EU legal rights are made available by avoiding the limitations of a lack of vertical direct effect by relying instead on a broader obligation to interpret legislation in a way which gives effect to obligations in EU law. More recently, the court has shown a consistently creative and interventionist approach by developing a form of horizontal direct effect where the EU legal rights involve fundamental human rights recognised in the Charter of Fundamental Rights (Kucukdeveci). The impact of these creative decisions has been to ensure that EU legal rights are made available to individuals in circumstances where domestic legal systems would otherwise fail them. They have also asserted the primacy of EU law and underscored the view that limiting national sovereignty is sometimes a necessary price to pay in order to achieve the agreed goals and objectives of the EU.
Comment: Parts a) and ci) follow the same format. Candidates will need to cover both role (what they do and how they do it) and composition (who are they? how are they appointed? for how long? who assists them?). Role in the legislative process would be important. Using examples would include cases (e.g. Re: Tachographs) and Articles where appropriate (e.g. Articles 267/288).
Part b) for all three the usual formula applies: a) what is the right source? b) why is it the right source? and c) some further detail such as a case, a treaty Article or a link to the source materials
Part cii) this is a wide question where full marks could be gained through either depth or breadth. Candidates could pick one or two key areas like direct effect and supremacy and look at these in detail or take a broader approach covering things like Article 267 referrals, Foster, Frankovich, Von Colson, Kücükdeveci as well. The model answer is comprehensive and serves as an illustration of a range of possible points that could be made. Emphasis on other impacts such as the implications for the doctrine of supremacy and the possible availability of judicial remedies beyond the English legal system would also be creditworthy.
Chapter 4: Law Reform
- a) Source A refers to the Law Commission. Describe the role of the Law Commission. [15 marks
See below as for June 2010 (Question 2).
Comment: Always try to cover the breadth of the question. Do not assume that the role of the Law Commission is restricted to ‘what’ they do. Try and include details of who they are and how they carry out their work. Also, including examples will often be required for access to the highest mark levels.
- c) With reference to Source A and Source B and your knowledge:
- Describe the role of the Law Commission. [15 marks]
- Discuss the problems encountered by the Law Commission in fulfilling its role. [15 marks]
Higher-level answera/c) (i) The Law Commission is the only full-time, permanent law reform body. It was set up in 1965 by the Law Commission Act (as amended by the Law Commission Act 2009). There are five full-time Commissioners including a Chairman who is either a High Court or an Appeal Court judge appointed for up to three years. The other four Commissioners are experienced judges, barristers, solicitors or leading legal academics. They are appointed by the Lord Chancellor and Secretary of State for Justice for up to five years. The Commissioners are supported by a Chief Executive and about 20 members of the Government Legal Service, two Parliamentary Counsel (who draft the Bills), and a number of research assistants. The role of the Law Commission is to systematically keep all English law under review. They receive and consider proposals for law reform from government, the Lord Chancellor and others as well as generating their own proposals. The Commission puts forward proposals for reform in the following categories: Firstly, repeal – this is where the Commission makes recommendations to remove out-of-date statutes. For example, the Statute Law (Repeals) Act 1998 repealed over 150 complete Acts of Parliament, which were considered outdated. Secondly, consolidation – this is where the Commission recommends drawing all the existing legal provisions in an area together in one Act where it is currently found in a number of smaller provisions. An example would be the Family Law Act 1996. Thirdly, codification – this involves bringing together all the law on one topic into one source. For example, the draft Criminal Code 1985 and the full Code 1989 were an attempt to ‘codify’ all criminal law.
The way the Commission operates can be summarised by the following stages:
- Referral: topics may be referred by the Lord Chancellor on behalf of the Government, or it may itself select areas in need of reform
- Research: The Commission then researches the area of law in need of reform and publishes a consultation paper seeking views on possible reform
- Consultation: a consultation paper will then describe the current law, set out the problems and look at the options for reform
- Proposals for reform: these will be presented in a report which will also set out the research that led to the conclusions. There will often be a draft Bill attached to the report.
Comment: a/ci) Once again, there is a lot of potential ground to cover with a question like this and it is best to cover the breadth of the question rather than getting bogged down in detail on one particular aspect. The question really needs to address three key areas which are ‘who are the Law Commission? What do they do? And, how do they do it?’ It would be unlikely that a candidate would achieve level 4 without addressing all three aspects. Please also remember, when the question command states ‘with reference to the source(s)’ it will be unlikely that candidates can access level four without explicit reference to the source.
a/cii) Even though this question seems fairly narrow, it does offer the opportunity to explore the detail of the key criticisms with examples and consequences all representing valuable developmental points.