LEVEL 6 - UNIT 12 – PUBLIC LAW
SUGGESTED ANSWERS – JANUARY 2016
Note to Candidates and Tutors:
The purpose of the suggested answers is to provide students and tutors with
guidance as to the key points students should have included in their answers to
the January 2016 examinations. The suggested answers set out a response that
a good (merit/distinction) candidate would have provided. The suggested
answers do not for all questions set out all the points which students may have
included in their responses to the questions. Students will have received credit,
where applicable, for other points not addressed by the suggested answers.
Students and tutors should review the suggested answers in conjunction with the
question papers and the Chief Examiners’ reports which provide feedback on
student performance in the examination.
SECTION A
Question 1
(a)
Separation of powers
The doctrine in its modern form is ascribed to the French philosopher,
Montesquieu, who wrote his seminal work on the subject, L'esprit des Lois, in
1748. The doctrine identifies three branches of government – legislative,
executive and judicial.



The legislative branch, which makes the law. This usually includes an elected
legislature;
The executive, which implements and enforces the law. This includes central
and local government, police, armed forces, etc.;
The judiciary, which resolves disputes about the law. There is usually an
independent court system
The doctrine states these three branches of state should be kept separate to
avoid abuse of power by any of them. Montesquieu in particular observed that
there could be no liberty without a separation of powers; it provides a bulwark
against tyranny. There should accordingly be a system of ‘checks and balances’
to prevent any branch from becoming too powerful.
(b)
Separation in the UK
The traditional argument is that there is some separation of powers in the UK, but,
in contrast to the USA where there is strict separation, it remains largely informal
due to the ‘unwritten’ or uncodified nature of the UK constitution. To assess the
validity of Lord Judge’s statement, it is necessary to examine the relationship
between each of the branches in turn.
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(i)
Executive and legislature
Section 2 of the House of Commons Disqualification Act 1975 limits the number
of government ministers in the Commons. Thus there is some separation
between Parliament (the legislature) and the executive, as no more than 95
ministers can sit in the Commons. However, those ministers must vote with the
government if they hope to keep their posts.
There are several ways in which Parliament can hold the government to account.
For example, it can pass a vote of no confidence in the government which will
precipitate a general election unless an alternative government is formed (Fixedterm Parliaments Act 2011). Select committees, Parliamentary debates, Prime
Minister’s question time and the convention of ministerial responsibility also help
Parliament to provide a check on the government.
Conversely, there are many examples of overlap between the executive and
legislature. Government ministers are either MPs or members of the House of
Lords, and so powers of law-making and policy formation/implementation are
largely in the same hands since the executive (i.e. a government with a
majority) dominates the legislature. This is arguably a serious breach of the
doctrine.
The executive additionally has significant law-making power of its own: ministers
can make delegated legislation where statute grants them the requisite powers
(including ‘Henry VIII’ powers which enable them even to amend some primary
legislation).
This state of affairs has been described by commentators such as the late Lord
Hailsham as an ‘elective dictatorship’; once a government has been elected, it
can effectively do what it wants until the next general election.
(ii)
Executive and judiciary
Until fairly recently the separation between the executive and judiciary was
largely informal, but the Constitutional Reform Act 2005 (CRA) has strengthened
the separation between them. For example it established the Judicial
Appointments Commission which reduced the role of the Prime Minister and Lord
Chancellor in judicial appointments. Ministers are precluded from attempting to
influence judicial decisions through special access to judges and the Lord
Chancellor has an express statutory duty to safeguard judicial independence.
Even before the CRA there were rules and conventions designed to guarantee
judicial independence:

Judges enjoy security of tenure and cannot be dismissed by executive decree.
Thus Senior and Supreme Court judges hold office ‘during good behaviour’
and may only be dismissed following a vote of both Houses of Parliament
(s.11 Senior Courts Act 1981, s.33 CRA).

By convention, ministers - members of the executive - do not criticise judges
although the extent to which the executive still adheres to this is debatable;
ministers have sometimes criticised judicial decisions, particularly concerning
human rights.

The judiciary exercises a check on the executive through judicial review of
executive actions.
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Nevertheless, there are some areas where separation may be blurred. In
particular there is a risk of the appearance of a politicised judiciary due to the
Human Rights Act 1998, as illustrated by A v Home Secretary (2005)
(‘Belmarsh’), where the House of Lords made a declaration of incompatibility
concerning anti-terrorism legislation.
Some government ministers have quasi-judicial duties which are difficult to
reconcile with their party political roles. However, following the ECtHR decision in
Stafford v UK (2002) the Home Secretary lost the power to set the tariff of
prisoners subject to life sentences.
(ii)
Judiciary and Legislature
There is also considerable judicial separation from the legislature. Judges cannot
be MPs (s.1 House of Commons Disqualification Act 1975). Also the CRA 2005,
through establishing the Supreme Court, removed the UK’s highest court from
the House of Lords. Consequently, the anomaly of the Law Lords being members
of the legislature was ended.
The UK judiciary (unlike the US judiciary) cannot declare statutes
unconstitutional. Instead, the UK judiciary may only make a declaration of
incompatibility under the Human Rights Act and this does not invalidate the
offending statute. However, Lord Steyn’s obiter comments in Jackson (2005)
suggest that judges might strike down legislation that undermines constitutional
fundamentals such as judicial review.
By convention, MPs do not criticise judges and judges avoid party politics. Also
the sub-judice rule provides that Parliament should not discuss cases currently
before the courts.
Conversely the judiciary arguably plays a quasi-legislative role in interpreting
statute and developing the common law (the legislative theory). However,
Parliament may always pass further legislation overruling developments in case
law which it dislikes (Burmah Oil v Lord Advocate (1965)). Also, the judiciary
exercises restraint in its law-making role.
Conclusion
While there is very limited separation between the legislature and executive, the
extensive overlap between the two suggests that Lord Judge’s views about the
lack of separation between them reflect reality. Nonetheless, particularly after
the changes introduced by the CRA 2005, statute and conventions ensure there
is a considerable degree of separation between the judiciary and the other
branches.
Question 2
The aim of the Human Rights Act 1998 (‘HRA’) was to incorporate the majority of
the rights and freedoms enshrined in the European Convention on Human Rights
(‘ECHR’) into UK law. Before the HRA came into force, individuals in the UK could
only complain of unlawful infringement of their rights under the ECHR by taking
their case to the European Court of Human Rights (‘ECtHR’) in Strasbourg after
exhausting all domestic remedies. Essentially, the HRA allows individuals in the
UK to rely on most of the rights contained in the ECHR (‘Convention rights’)
before domestic courts.
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Section 1 and Schedule 1 of the HRA define the Convention rights that are to be
enforceable in the UK. These include rights such as the right to life (Article 2)
and freedom of expression (Article 10). A notable exception is Article 13, the
right to an effective remedy, as the Government argued that the HRA itself
provides an effective remedy.
Section 2 provides that courts must ‘take into account’ decisions of the ECtHR.
Decisions of the ECtHR are not binding on UK courts and so are of persuasive
authority. However, the House of Lords stated that UK courts should, in the
absence of special circumstances, follow any clear and constant jurisprudence of
the ECtHR (R v Special Adjudicator (Respondent) ex p. Ullah (2004)). However,
the UK courts do not slavishly follow ECtHR case law, as Al-Khawaja and Tahery
v UK (2011) shows. The ECtHR had held in its chamber judgment that a
conviction based on hearsay evidence breached Article 6 ECHR, the right to a fair
trial. However, in R v Horncastle (2009) the Supreme Court held that the
chamber ruling did not sufficiently appreciate the UK trial process and so did not
follow it. The Grand Chamber subsequently reversed the chamber ruling, thereby
avoiding a potential clash with the UK.
Section 3 provides that courts must interpret primary and secondary legislation
in a way which gives effect to Convention rights, ‘so far as it is possible to do so’.
The courts have adopted a very flexible approach when interpreting legislation
under s.3. For example, in Ghaidan v Godin-Mendoza (2004) the Rent Act 1977
provided that the surviving spouse of the tenant was eligible to succeed to the
tenancy. The House of Lords interpreted this to include the tenant’s surviving
same-sex partner.
Section 4 provides that if it is not possible to interpret UK legislation compatibly
with Convention rights, the higher courts have the power to declare a statute to
be incompatible with the Convention (a ‘declaration of incompatibility’) as in
Bellinger v Bellinger (2003) and A v Home Secretary (2005). In Bellinger a
woman who had undergone gender reassignment challenged a decision that she
was not validly married to her husband, as at law she remained a man. The
House of Lords declared that the relevant legislation, which at that time provided
that a marriage was void unless between a ‘male’ and ‘female’, was incompatible
with the woman’s Convention rights. In A the House of Lords declared legislation
permitting the indefinite detention of foreign suspected terrorists without trial to
be incompatible with Article 5 (the right to liberty). However, such declarations
do not invalidate the legislation which remains in force.
Section 6 provides that it is unlawful for public authorities to act incompatibly
with Convention rights. If they do so, victims of their unlawful conduct may
challenge the action in the courts (e.g. through judicial review) (s.7) and claim
damages if necessary to afford them just satisfaction (s.8).
Section 10 provides that where a declaration of incompatibility has been made,
the government may amend the incompatible legislation by using a ‘fast-track’
procedure, rather than primary legislation, by making a ‘remedial order’ where
there are ‘compelling reasons’ to do so. However, the HRA does not oblige the
government to do so.
Section 19 requires ministers introducing a Bill into Parliament to make a
statement that the Bill is compatible with Convention rights or that, despite not
being able to make such a statement, the government nevertheless wishes to
proceed with the Bill.
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The HRA largely preserves the supremacy (or sovereignty) of Parliament. UK
courts have no power under domestic law to declare an Act of Parliament invalid
even if it infringes Convention rights such as the right to a fair trial.
Parliamentary supremacy provides that the courts would enforce any law, no
matter how unfair or unjust, although in R (Jackson) v Attorney-General (2005)
Lord Steyn suggested obiter the courts might strike down legislation that
breached fundamental rights. However, s.19 forces the government to address
the issue and if it wants to pass legislation that infringes Convention rights, it
may do so but must confront what it is doing.
Conversely, although the HRA does not prohibit Parliament from enacting
legislation which breaches the rule of law, there is strong political pressure to
respond to a declaration of incompatibility, and following Bellinger and A the
government amended the incompatible legislation. This provides grounds for
arguing that the HRA is effective in safeguarding the human rights, although the
incompatible legislation is not always amended.
In contrast, the HRA and the ECHR have been criticised for giving too much
power to the ECtHR over human rights in the UK, in particular over prisoners’
voting rights and the deportation of terrorists. The Conservative Party has
therefore proposed replacing the HRA with a British Bill of Rights and
Responsibilities, and UK courts would no longer need to take into account
decisions of the ECtHR. This could eventually culminate in the UK’s withdrawal
from the Convention.
The incorporation of the ECHR into UK law via the HRA has done much to enhance
the protection of human rights in the UK. Whilst parliamentary supremacy means
that the government of the day may be able to persuade Parliament to enact
legislation infringing Convention rights, the HRA does act as an important check on
the government’s ability to do so. There is the danger, though, that courts may
become involved in areas best left to democratically elected politicians.
Question 3
(a)
Contractual liability
Until 1947 the Crown could not be sued in contract. It was possible to bypass
this Crown immunity and take proceedings against government departments, but
the procedures were cumbersome. This was an unsatisfactory state of affairs for
businesses dealing with government departments, so the Crown Proceedings Act
1947 put government departments on the same footing as other undertakings,
and since 1947 government contracts have been justiciable. A government
department which enters into a contract is therefore in the same position as any
other body which does so. Accordingly, a government department cannot simply
cancel a contract with impunity; it needs legally valid reasons. The principle of
executive necessity and the judgment in Churchward v R (1865) provide possible
justifications.
The case of Amphitrite v R (1921) suggests that executive necessity can provide
a justification for behaviour which would otherwise be a breach of contract. The
owners of a Swedish ship relied on a government undertaking that their ship
would not be detained under wartime regulations if it sailed to a British port;
however, the government subsequently detained the ship. It was held that the
Crown cannot be prevented by an existing contract from exercising its statutory
or common law powers. However, that case concerned the detention of a ship
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under wartime regulations and is distinguishable from cases involving standard
commercial contracts.
Churchward v R suggests that the appropriation of the requisite funds by
Parliament is a condition precedent to the validity of Crown contracts.
Churchward had entered into a contract with the Admiralty to operate a mail
service for 11 years for an annual payment out of moneys provided by
Parliament. The Admiralty terminated the contract early, and Parliament voted in
the Appropriation Act 1865 not to make the payments covering the remainder of
the contract. The court held the Admiralty was not bound by the contract as
Parliament had not made the funds available.
Churchward v R is, however, not regarded as reliable authority and may best be
explained by the unusual facts of the case, as Parliament had in the relevant
legislation expressly decided not to appropriate the requisite funds. The
government frequently makes contracts without Parliament specifically
authorising the funds, and to require specific Parliamentary appropriation of the
funds as a condition precedent for the enforcement of Crown contracts would put
businesses contracting with the government in a very insecure position.
The judgment in Bardolph v NSW (1934) is now regarded as the better authority.
The usual position is that a contract is enforceable against the Crown if it was
entered into as part of the ordinary or necessary functions of government, it was
authorised by the responsible ministers and the payments the contractor is
seeking to recover relate to a class of service that falls within the scope of a
parliamentary grant.
Bardolph v NSW is clearly preferable to Churchward v R. Government
departments should not be above the law, and businesses dealing with the
government need to know that the government cannot arbitrarily renege on
commercial transactions. Amphitrite v R should be confined to emergency
situations such as war to ensure that the government does not use executive
necessity to renege on inconvenient contracts.
(b)
Withholding evidence
The government may ask the courts to suppress evidence on the basis of ‘public
interest immunity’ (‘PII’), previously known as ‘Crown privilege’.
Initially the courts showed the Government considerable deference. In Duncan v
Cammell Laird & Co Ltd (1942) the relatives of sailors who had drowned in a
submarine wanted to inspect the submarine’s blueprints. The government
successfully invoked Crown privilege, the House of Lords holding that the
government’s opinion of what was in the public interest was conclusive.
Documents could be withheld either because their contents had to be kept secret
or because they belonged to a class of documents which had to remain
confidential.
However, the judiciary has become less deferential and in 1968 the House of
Lords permitted the production of certain police reports despite the Home
Secretary’s PII claim (Conway v Rimmer (1968)). The courts had jurisdiction to
order disclosure if the public interest in the administration of justice outweighed
the public interest in confidentiality.
Lord Reid divided PII claims into two classes:
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

Class claims where disclosure would normally not be ordered because of the
category to which the document belonged
Contents claims where disclosure should not be ordered because the contents
of the document should remain confidential.
The courts were less likely to order disclosure for class claims than for contents
claims. For example, in Balfour v Foreign Office (1994) the court refused to
inspect security and intelligence documents where the minister’s PII certificate
claimed national security would be endangered if the documents were disclosed.
Following the Scott Report, which had been critical of the government’s use of
PII certificates, the Lord Chancellor reviewed their use and stated that the
government would no longer apply the division into class and contents claims
and would only claim PII where disclosure would cause real harm to the public
interest.
In R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth
Affairs (2010) the Court of Appeal rejected a PII claim by the government that
sections of the Divisional Court’s judgment in the case should be redacted and
not made public. The government argued that publication of these paragraphs
would reveal embarrassing information about its involvement in the detention
and torture by the US government of an ex-Guantanamo Bay detainee. It would
also harm national security as the US government would be less likely to share
security information in the future. The court rejected these arguments,
particularly as the information was already in the public domain.
In Duncan v Cammell Laird & Co Ltd the rule operated harshly in the Crown’s
favour as claimants were unable to pursue potentially valid claims. The
restriction of PII certificates to cases where real harm to the public interest
occurs ensures that the government is not above the law and prevents injustice.
Question 4
The aim of the tort of defamation is to protect a person’s reputation. It is,
however, an area of controversy. Protecting one person’s reputation through a
successful defamation claim restricts another person’s freedom of expression, a
right contained in Article 10 of the European Convention on Human Rights. The
courts must therefore attempt to balance reputation on the one hand with
freedom of expression on the other.
There are two forms of defamation. Libel is defamation in a permanent form,
whereas slander is defamation in a temporary form. For the press, libel is the
most important form of defamation.
To establish defamation the claimant must prove that:




the defendant’s words are defamatory;
the words refer to the claimant;
the words have been published; and
their publication has caused or is likely to cause serious harm to the
claimant’s reputation (introduced by s.1 Defamation Act 2013).
Words are defamatory if they lower the claimant in the eyes of right-thinking
members of society generally and/or they expose the claimant to hatred,
contempt or ridicule.
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The availability of defamation claims favours the protection of reputation.
However, case law and statute help to redress the position somewhat in favour
of freedom of expression. Local authorities and political parties cannot sue for
defamation, as it is in the public interest that they should be exposed to public
criticism (Derbyshire County Council v Times Newspapers Ltd (1993); Goldsmith
v Bhoyrul (1997)). The Defamation Act 1996 set up procedures allowing
defendants to make amends for defamatory statements and enabling defamation
disputes to be resolved at an early stage.
At common law there were several defences the press could rely on. However,
the Defamation Act 2013 significantly reformed the law in this area and replaced
many of the common law defences with statutory ones. The defences which are
particularly important in safeguarding freedom of speech and expression are
truth, honest opinion and publication on a matter of public interest. Thus, the
defence of truth, which replaced the common law defence of justification, is set
out in s.2 of the 2013 Act; it is a complete defence if the statement complained
of is substantially true.
The defence of honest opinion, which replaced the common law defence of fair
comment, is set out in s.3 of the 2013 Act. It is a defence if the defendant shows
that the statement in question is an expression of a genuinely held opinion and
one that could be honestly held on a factual basis. Thus, where the defendant
makes it clear that they are expressing an opinion rather than stating a fact, and
indicates the factual basis for that opinion, readers are free to decide whether
they agree with the opinion on the basis of those facts. The defence is defeated if
the claimant shows that the defendant did not hold the opinion. This defence, by
allowing free discussion, plays an important role in protecting the freedom of the
press. The requirement of serious harm introduced by s.1 of the 2013 Act has
also bolstered the press’s protection.
However, where the press reports a matter of fact rather than opinion, they
cannot rely on this defence. Either they must prove that the facts reported are
true, or they will need to rely on the defence of publication on a matter of public
interest (below).
Under s.4 of the 2013 Act it is a defence if the defendant shows that the
statement was on a matter of public interest and the defendant reasonably
believed that publishing the statement is in the public interest. Section 4 also
provides that the court must have regard to all the circumstances of the case
when determining these points. Further, in determining whether the defendant’s
belief was reasonable, the court must make appropriate allowance for editorial
judgment. This defence applies to both statements of fact and statements of
opinion.
Section 4 abolished the common law Reynolds defence, because the statutory
defence was intended to codify the common law defence. However, the
explanatory notes accompanying the Act state that the case law on the Reynolds
defence constitute a helpful (albeit not binding) guide to interpreting the new
statutory defence. It is therefore worth analysing the case law on the Reynolds
defence to analyse the extent to which it protects the press’s freedom of
expression.
In Reynolds v Times Newspapers Ltd (1999), the House of Lords emphasised the
importance of freedom of expression and recognised that newspapers should be
protected by privilege providing they satisfied a test of public right to know and
responsible journalism. The aim of the defence was to protect serious
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investigative journalism. Even where allegations were false and hugely damaging
to the claimant, the press were able to rely on this defence. Whether such
publication would be privileged depended on the ‘duty-interest’ test; i.e. whether
there was a legal, moral or social duty on the part of the publisher to inform
those to whom the material was published (which could include the general
public) and a legitimate interest on the part of the recipients to receive that
information. Lord Nicholls identified ten factors (non-exhaustive) to which the
court should have regard when applying the duty-interest test, including:







The seriousness of the allegation
The source of the information
Steps taken to verify the information
The urgency of the matter
Whether comment was sought from the claimant
Whether the article contained the gist of the claimant’s side of the story
The circumstances of publication, including the timing.
Reynolds was followed in Loutchansky v Times Newspapers (2002) where the
Court of Appeal, in applying the duty-interest test, stated the interest was that of
the public in a modern democracy in free expression and a free and vigorous
press, while the corresponding duty on the journalist was to discharge that
function by behaving as a responsible journalist.
The judgment in Reynolds did much to strike a just balance between the rights of
individuals to protect their reputation and freedom of expression. The reforms in
the Defamation Act 2013 are intended to further that aim. Time will tell whether
they will succeed.
SECTION B
Question 1
Abigail, as a disenfranchised 17-year old, would need to argue that the EFA 2013
remains a valid Act. She has two main arguments:
(i)
(ii)
The contradictory provisions in the MEA 2015 did not impliedly repeal the
voting provisions in the EFA 2013; and
The Parliament Acts 1911 and 1949 procedure could not be used to enact
legislation that affected a fundamental right such as the right to vote.
Both arguments strike at the root of parliamentary sovereignty. The cornerstone
of the UK constitution is that Parliament is legislatively supreme. Accordingly, as
per AV Dicey’s classic definition:
(a) Parliament can pass any legislation it chooses; and
(b) no other body (i.e. the courts) is competent to declare legislation passed by
Parliament invalid.
It is said, following on from (a) above, that ‘Parliament cannot bind its
successors’.
The doctrine of parliamentary sovereignty distinguishes the UK constitution from
those in countries where a written constitution puts limits on the legislature and
empowers the courts to declare legislation ‘unconstitutional’. Lord Steyn did
suggest obiter in R (Jackson) v Attorney General (2005) that in exceptional
circumstances involving an attempt to abolish judicial review or the ordinary role
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of the courts, the Supreme Court might have to consider whether this was a
constitutional fundamental which even a sovereign Parliament could not abolish.
However, the MEA 2015 does not go this far.
The doctrine of implied repeal is an example of how parliamentary supremacy
operates; i.e. a later statute the content of which is inconsistent with an earlier
statute will impliedly repeal the earlier statute to the extent they are inconsistent
(Ellen Street Estates v Minister of Health (1934)). The Ellen Street case has
some similarity to the facts of this question, as a 1919 Act relating to the
payment of compensation for the acquisition of land contained provisions which
seemingly attempted to render any future legislation regarding compensation
ineffective. The Court of Appeal held that it was impossible for Parliament to
enact that a subsequent statute dealing with the same subject-matter could not
impliedly repeal the earlier statute. Accordingly the provision in the EFA 2013
declaring it to be a permanent feature of the UK constitution is likely to be
ineffective.
The judiciary has qualified the doctrine of implied repeal. Laws LJ, in Thoburn v
Sunderland City Council (2002), drew a distinction between ‘ordinary’ statutes,
which may be impliedly repealed, and ‘constitutional’ statutes, which cannot.
Constitutional statutes can only be repealed by clear unambiguous words on the
face of the later statute.
He defined a constitutional statute as one that governed the legal relationship
between citizen and state in some general, overarching manner, or changed the
scope of fundamental constitutional rights. Examples included the European
Communities Act 1972 (‘the ECA’), the Human Rights Act 1998 and the Scotland
Act 1998. According to Laws LJ’s definition, the EFA 2013, governing the right to
vote, is a constitutional statute. Subsequently, the Supreme Court in H v Lord
Advocate (2012) offered some support for Thoburn with Lord Hope obiter stating
that the Scotland Act could not be impliedly repealed because of its ‘fundamental
constitutional nature’.
This question, however, involves two constitutional statutes, as the MEA 2015
also falls within Laws LJ’s definition. In R (HS2 Action Alliance Ltd) v Secretary of
State for Transport (2014) the Supreme Court considered obiter the possibility of
a conflict between two constitutional statutes, the Bill of Rights 1689 and the
ECA. While on the facts there was no conflict, the Supreme Court suggested that
there are some fundamental constitutional principles which will not be overridden
even by subsequent constitutional statutes unless there is unequivocal evidence
of parliamentary intention to amend or repeal them.
Unfortunately for Abigail, while the MEA 2015 does not expressly repeal the EFA
2013, its provisions relating to voting ages are clear and do evince unequivocal
parliamentary intention to repeal the extension of the vote to 16- and 17-year
olds. Abigail’s first argument will therefore fail.
The Parliament Act 1911 removed from the House of Lords the power to veto
Public Bills, except one to extend the lifetime of a Parliament. Instead, the Lords
could delay a Public Bill by up to two years. The Parliament Act 1949 further
reduced the Lords' delaying powers to one year.
A major problem for Abigail in challenging the MEA 2015 is the so-called ‘enrolled
Act rule’ (Edinburgh & Dalkeith Railway v Wauchope (1842)), namely that the
courts will not challenge the validity of legislation which appears on the statute
book as validly enacted. As a general rule the courts will not review primary
legislation. However, in R (Jackson) v Attorney General (2005) the House of
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Lords heard a challenge to the Hunting Act 2004 on the basis that it had been
passed without the consent of the House of Lords under the Parliament Act 1911,
as amended by the 1949 Act.
It was argued that the 1949 Act was an invalid Act as it had been passed under
the 1911 Act bypassing the Lords and it had not been Parliament’s intention to
permit the 1911 Act to be used in this way; i.e. to further reduce the delaying
power of the Lords. Therefore, as the Hunting Act was passed under the 1949
Act, it also was not a valid Act. The House of Lords rejected this argument, as
the 1911 Act clearly states that measures passed under its procedures are ‘Acts’,
and so there were no grounds for arguing that measures passed under that
procedure were merely delegated legislation. Nonetheless, the majority of the
Lords accepted the Parliament Act procedure could not be used to pass a Bill
extending the life of a Parliament beyond five years. Such Bills are expressly
excluded from the Parliament Acts procedure.
However, the Lords were unwilling to accept any other limitations on the use of
the Parliament Acts and the Commons could use them to make major
constitutional changes. Abigail is therefore unlikely to succeed in arguing that the
MEA 2015 is invalid.
Question 2
Amenability/ Eligibility
The UK Woodlands Agency (‘the Agency’) is a public law body as it is exercising
statutory functions under the Protection of Nature Act 2015 Act (‘the Act’) by
awarding research grants to charities researching diseases affecting trees.
Expending public funds in this way is a public rather than private law matter, so
the Agency is amenable to judicial review (O’Reilly v Mackman (1983)).
ForestPlant UK and Ash Life are directly affected by the decision, as their
applications have been rejected. They therefore have ‘sufficient interest’ in the
decisions to bring judicial review claims (s.31(3) SCA 1981).
Does EFI as a pressure group have standing? The factors the courts consider are
outlined in cases; e.g. R v SoS for Foreign Affairs ex p. World Development
Movement Ltd (1995) –



The need to uphold the rule of law
Whether any other body was likely to launch a challenge
The role of the pressure group involved
EFI is a pressure group which campaigns worldwide for the preservation of native
forests. It is likely to have sufficient interest under the WDM criteria. The court
is likely to want to hear its views concerning the possible misuse of public
money.
Timing
Each claimant should apply for permission for judicial review promptly, without
undue delay and in any event within three months of the date of the decision to
adopt the proposals (SCA s.31(6), CPR 54.5). However, this time limit has
already passed for EFI. The court does have a discretion to permit applications
outside the time limit where there are good reasons (R v Stratford-upon-Avon
DC ex p. Jackson (1985)). Although EFI was aware of the decision, it did not
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know why it was made and so would not have known if there were grounds for
judicial review until it received the letter from the Agency. The court is therefore
likely to grant EFI permission.
Grounds?
Lord Diplock identified the traditional grounds of review as illegality, irrationality
and procedural impropriety (CCSU v Minister for the Civil Service (1985)).
(i)
ForestPlant UK
Procedural impropriety
Legitimate expectation
The concept of legitimate expectation is generally regarded as an extension of
natural justice or procedural fairness; if a public body has indicated that it will
act in a particular way, then in principle it should be held to its implied promise.
ForestPlant UK should argue that the Agency should adhere to its guidelines for
making grants.
Lord Woolf explained the concept in R v North and East Devon Health Authority,
ex p. Coughlan (2001). The court may decide:
(1) that the public authority need only bear in mind its previous policy or other
representation and the court’s function is merely to review the rationality of the
decision;
(2) that the promise or practice creates a legitimate expectation of, for example,
being consulted before an adverse decision is taken.
(3) that, as the promise or practice has created
benefit that is substantive, the court will decide
frustrate that expectation. In deciding this,
requirements of fairness against any overriding
change of policy.
a legitimate expectation of a
if it is an abuse of power to
the court will balance the
interest put forward for the
As Laws LJ pointed out R (Niazi) v Secretary of State for the Home Department
(2008), legitimate expectations can either be ‘substantive’ or ‘procedural’. A
substantive legitimate expectation (Lord Woolf’s third category) is only likely to
arise where the public body concerned had made a specific undertaking, directed
at a particular individual or a small group of people, that the relevant policy
would be continued. Here the Agency has issued general guidelines and it is
improbable that its conduct will fall into the third category. However, the court
will scrutinise whether the Agency’s decision is rational.
Irrationality
The Agency’s decision can be challenged if, having regard to relevant
considerations only, it is so unreasonable that no reasonable body could have
reached it (Associated Provincial Picture Houses v Wednesbury Corporation
(1948)). Although the threshold is high, it could arguably be reached, as it is
hard to understand why the application was rejected when ForestPlant UK
fulfilled the criteria contained in the guidelines. The decision might consequently
be considered to be outrageous in its defiance of logic (CCSU).
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Illegality
Ulterior purpose
Public bodies will be acting illegally if they use their powers for an improper or
unauthorised purpose (Congreve v Home Office (1976)). The purpose of the Act
is promoting research into diseases affecting native British trees.
The reason given by the Agency indicates that the decision had the purpose of
combating climate change; this seems irrelevant to the Act’s purpose,
particularly as ForestPlant UK has met the Agency’s guidelines for a grant. The
Agency seems to have had an ulterior motive (Sydney Municipal Council v
Campbell (1925)). Alternatively, the Agency may have taken into account an
irrelevant consideration by considering the impact on climate change (Padfield v
Minister of Agriculture (1968)).
(ii)
Ash Life
Illegality
Fettering of discretion
While the Agency in exercising its discretionary powers may adopt a policy if it is
reasonable, it should be prepared to listen to anyone who has something new to
say (R v Port of London Authority, ex p. Kynoch Ltd (1919)). In this instance in
rejecting Ash Life’s application on grounds it was not supported by the EERC,
Agency has applied policy over-rigidly (British Oxygen v Minister of Technology
(1970)). It should have regard to the support given to the application by an
internationally recognised body.
(iii)
Tropical Trees
Illegality
‘Jurisdictional’ challenge
The Agency has the power to award grants to registered charities carrying out
research relating to native British trees. It does not have the power to award
grants to bodies which are not charities for research into foreign trees. The
Agency appears to be trying to do something outside its powers (ultra vires) (AG v Fulham Corporation (1921)). The Act is binding on the Agency.
Irrationality
Awarding a grant to such a manifestly unsuitable body is likely to reach the
threshold of irrationality (above).
Remedy
The claimants should apply for quashing orders setting aside the decisions.
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Question 3
(a)
The legality of the actions taken by the Chief Constable and Sergeant
Morgan
Under s.12 of the Pubic Order Act 1986 (‘POA’) the chief officer of police may
give directions imposing conditions on a public procession if he reasonably
believes it will result in serious public disorder, serious damage to property,
serious disruption to the life of the community, or that the organisers have a
purpose of intimidation.
The RMLC protestors are planning to march past the offices of the Action Party,
against whose policies they are protesting. Accordingly, the Chief Constable, as
the chief officer of police, may reasonably believe that the purpose of the
organisers is intimidation. If so, his directions as to the route are lawful.
At the end of the march the protestors decide to hold a meeting. The police will
have powers under s.14 if the meeting constitutes a ‘public assembly’ as defined
by s.16. The meeting appears to be a public assembly as it is open to the air and
in a ‘public place’. The protestors are assembled on the Town Square which
meets this definition.
Under s.14, the senior police officer at the time the assembly is taking place may
impose conditions as to the maximum duration of the assembly if he reasonably
believes it may result in serious public disorder, serious damage to property,
serious disruption to the life of the community, or that the organisers have a
purpose of intimidation.
Sergeant Morgan appears to believe that the assembly will result in the Town
Square being blocked and shoppers being disturbed– is this sufficient to
constitute ‘serious’ disruption to the life of the community? The demonstrators
are fairly small in number (150), so this is unlikely. What evidence does
Sergeant Morgan have to suggest that the demonstrators will cause ‘serious’
damage to property or have an intimidatory purpose? Shouting anti-Action Party
slogans is unlikely to satisfy this.
Even were these conditions to be satisfied, Sergeant Morgan is not the most
senior police officer present. Section 14 defines ‘the senior police officer’ as
meaning, in relation to an assembly being held, the most senior in rank of the
police officers present at the scene. Inspector Sharma is senior to Sergeant
Morgan, and the Sergeant did not therefore have the authority to impose
conditions on the assembly.
(b)(i) David
Lawfulness of David’s arrest
For the arrest to be lawful, PC Brodie must have the power to arrest David, the
arrest must be necessary and must be carried out in the correct manner.
Power of arrest? Section 24(2) PACE provides that where a constable has
reasonable grounds for suspecting that an offence has been committed, he may
arrest anyone whom he has ‘reasonable grounds’ for suspecting to be guilty of it.
PC Brodie may have reasonable grounds for suspecting that an offence has been
committed. Jack has reported that David has been shouting abuse that refers to
him by name, and so PC Brodie has at least reasonable grounds for suspecting
that David has committed an offence under s.4 POA.
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Arrest necessary? Are any of the reasons in s.24(5) met? PC Brodie could argue
that the arrest is necessary to allow the prompt and effective investigation of the
offence or the conduct of the person (s.24(5)(e)) as David is being
uncooperative.
Manner of arrest? Section 28 - PC Brodie must tell David that he is under arrest
and give the grounds for the arrest, even if obvious (s.28(2) and (4)). PC Brodie
has communicated to David the fact of arrest as required by s.28(1), but the
grounds should also be given at the time of the arrest or as soon as practicable
afterwards (s.28(3)). In Abbassy v MPC (1990) and Taylor v CC of Thames Valley
(2004) the courts held that the police do not have to use precise language,
provided they communicated the essential information to the arrested person in
simple, non-technical terms. However, PC Brodie has failed even do this. There is
no reason why PC Brodie could not have given the grounds of arrest
straightaway; he has therefore breached s.28 and so the arrest is unlawful.
(b)(ii) David: Section 4 POA
An offence is committed under s.4(1) if a person uses towards another person
threatening, abusive or insulting words with intention to cause that person to
believe immediate unlawful violence would be used against him or to provoke the
use of immediate violence by him. While David may be abusing the Action Party
leadership by name, including Jack, it is unlikely that he had any intent to cause
Jack to believe that unlawful violence would be used against him or to provoke
violence on Jack’s part.
An offence under s.4 may be committed in a public or a private place, except
that no offence is committed where the words are used by a person inside a
dwelling and the other person is also inside that or another dwelling. Assuming
that Jack was in his house at the time, no offence was committed even if David
had the requisite intent.
Adebayo: obstruction
Section 89(2) Police Act 1989 makes it an offence to wilfully obstruct a constable
in the execution of his duty. In Lewis v Cox (1984) persistently opening the rear
door of police van to ask where his arrested friend was being taken amounted to
obstruction. Adebayo has therefore obstructed PC Brodie.
However, a further crucial aspect to the offence is whether the constable was
acting in the execution of his duty and therefore acting lawfully at the time when
the alleged offence occurred. As explained above the arrest was unlawful so PC
Brodie was not acting in the execution of his duty at the time Adebayo
obstructed him. Adebayo has therefore not committed an offence.
Question 4
(a)
Zoe and freedom of expression
Freedom of expression is the right which Zoe should assert to argue that her
prosecution constitutes an unjustified interference with her rights under the
European Convention on Human Rights. Article 10(1) confers the ‘freedom to
hold opinions and receive and impart information and ideas without interference
by a public authority’. Zoe’s Article 10 rights are clearly engaged as in principle
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she is entitled to put forward her views on the effectiveness of the influenza
vaccine. She is being criminalised for doing so.
Freedom of expression is vital in a democracy. The discussion of ideas and
opinions, including unpopular ones, informs political debate and is essential to
holding public bodies to account. However, Article 10(1) is a qualified right and
Article 10(2) permits restrictions on it. Accordingly, having established that Zoe’s
Article 10 rights are engaged, it is necessary to analyse whether the infringement
of them complies with Article 10(2).
Article 10(2) permits limitations to be imposed on freedom of expression if they
are:



prescribed by law;
justified by reference to a limited number of legitimate aims as outlined in the
Article; and
‘necessary in a democratic society’; there must be a pressing social need and
the interference must be proportionate.
The term ‘prescribed by law’ means that any limitation must have a legal basis
(whether in common law or statute), it must be accessible (in published form)
and sufficiently clear to enable the citizen to regulate his or her conduct (Malone
v UK (1982)). The restriction is accessible and clearly has a legal basis, the
Influenza Prevention Act 2015.
The government would argue that it was necessary for the protection of health,
one of the legitimate aims set out in Article 10(2). However, the restriction must
also be proportionate and the court will apply the proportionality test adopted in
R (Daly) v Home Secretary (2001). This involves going through the three-stage
approach set out in Daly.
The first stage is to ask whether the legislative objective is sufficiently important
to limit a fundamental right. Here it is, as protecting older people from influenza
is a vital public health issue.
The second is to ask whether the measures taken are rationally connected to this
objective. The measures (criminalising public statements that the influenza
vaccine is ineffective) are connected in that, if the arguments in favour of the
vaccine are the only ones heard, then older people are more likely to get
vaccinated. However, it is less clear if they are rationally connected. This is
arguable either way, but perhaps the government should win over older people
by setting out the scientific evidence.
The third stage is to ask whether the measures taken are no more than are
necessary to accomplish the objective. The blanket nature of the ban on
promoting theories that the influenza vaccine is ineffective seems to go too far;
Zoe is giving an academic lecture to medical students who are well able to
evaluate the evidence for themselves.
Additionally, in Huang v Home Secretary (2007), the House of Lords held that, in
considering the proportionality test, the courts need to assess whether the
measures strike a fair balance between the interests of society and those of
individuals. Here the Act does not seem to have struck a fair balance,
criminalising the expression of a considered opinion before a well-informed
audience. The interests of society do not require such harsh sanctions.
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The UK might argue that the Act comes within the ‘margin of appreciation’
granted to States in judging necessity (Handyside v UK (2007)). However, this
principle apples where there is lack of consensus at European level over how
particular issues should be treated; e.g. pornography. There is little scope for its
application to the expression of a considered medical opinion.
Prosecuting Zoe is accordingly a disproportionate interference with her freedom
of expression.
(b)
The Sentinel – contempt of court
Section 1 Contempt of Court Act 1981 creates strict liability for criminal contempt
of court. However, to determine whether ‘the strict liability rule’ arises, it is
necessary to go through elements in s.2(1).
Firstly, the strict liability rule applies only to ‘publications’ (s.2(1)). The editorial
in The Sentinel is clearly a ‘publication’
Secondly, the publication will only trigger the strict liability rule if it falls within
s.2(2); i.e. if it creates a ‘substantial risk’ that the course of justice in the
proceedings will be ‘seriously impeded or prejudiced’. A substantial risk is less
likely to occur where a judge alone is hearing the case, and where an appeal is
being heard the risk is remote (Re Lonrho plc (1989)).
Thirdly, the relevant proceedings (i.e. the prosecution of Zoe) must be active
(s.2(3)). Zoe’s trial has started so clearly they must be active as defined by
s2(4) and Schedule 1.
On the facts, the trial has already started. In addition, the publication is a
national newspaper and Zoe’s trial will be heard by a jury who may be influenced
by newspaper coverage. Accordingly, the editorial may well fall within s.2(2). It
is therefore necessary to consider if The Sentinel has any defence.
Section 3 provides a defence of innocent publication, and would apply if The
Sentinel had no knowledge of or reason to suspect that the proceedings were
active. This seems unlikely. Assuming that the newspaper had taken reasonable
care, it would probably have known that the proceedings were active as Zoe’s
case is likely to have received considerable publicity.
Section 4 provides a defence for contemporaneous reports of legal proceedings,
but plainly the editorial does not fall within its scope.
Additionally, s.5 – discussion of public affairs - provides that a publication which
is made as part of a discussion in good faith of public affairs does not infringe the
strict liability rule if the risk of prejudice is merely incidental to the discussion.
As The Sentinel did not refer to Zoe’s trial and it is debating a topical issue, s.5
may well apply (A-G v English (1983)).
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