Mock Exam Answers

MOCK EXAM - ANSWERS

Question 1

‘Under the United Kingdom’s constitution, constitutional conventions play a key

role in maintaining flexibility. Their lack of clear definition and uncertain

application, however, make reform essential.’

Discuss. What, if anything, is your preferred option for reform?

This question on the role of constitutional conventions under the United

Kingdom’s unwritten constitution generated some very good and some

very bad answers. The strongest candidates were able to explain the

uncodified constitution and its gradual evolution. They then defined

constitutional conventions, with examples, with a view to illustrating the

manner in which conventions provide for constitutional flexibility. Some of

the best answers analysed the working of collective and individual

ministerial responsibility as examples of conventions lacking ‘clear

definition’ and ‘uncertain application’, and explaining how they change

over time.

As to reform, few candidates took the view that they should be placed

under a statutory code, mainly on the grounds that this would introduce

rigidity. The strongest candidates also explained how this development

would potentially alter the balance between the executive, parliament and

judiciary.

The most common error was a failure to read the question with care. This

led a number of candidates to ignore conventions and to focus on the

constitution as a whole.

See the subject guide, 3.41–3.4.3., pp.36–37. See also R. Brazier ‘How near

is a written constitution?’ (study pack p.13) and G. Marshall ‘The theory of

convention since Dicey’ (study pack, p.79).

Question 2

Assess the adequacy of procedures available to backbench Members of the

House of Commons to scrutinise the actions of government.

This question on procedures for scrutinising the actions of government was

not statistically popular, but was generally well done. A useful starting

point was an explanation of the presence of prime minister, cabinet and

other ministers in (principally) the House of Commons. This then led on to

a discussion of the importance of parliamentary scrutiny in underpinning

the conventions of collective and individual responsibility.

The majority of candidates were able to discuss, questions time, debates,

the role of public bill committees and select committees. What was

required for good marks was a critical discussion of these procedures,

rather than a mere description. Many candidates achieved this, but a

significant proportion went no further than description.

See the subject guide, Chapter 9

See also the response to this question: NB this question was not in the mock exam!!!!!!

Critically assess the role of the House of Commons in the law-making

process and the scrutiny of government administration.

This straightforward question gave rise to a few very good answers but also a high

number of poor answers.

On the legislative process, candidates should have explained that there are

different types of Bills, the principal type being the Public Bill. The different stages –

First Reading, Second Reading, Committee, Report and Third Reading – should

have been explained. The „critical assessment‟ required should have included a

discussion on the problems entailed in adequate scrutiny: time constraints,

government majorities.

On the scrutiny of administration, candidates should have discussed and critically

assessed scrutiny afforded by such means as Question Time, debates, and most

importantly Select Committee enquiries. Many of the best candidates were able to

discuss the concept and importance of the convention of ministerial responsibility

and the manner in which the various procedures underpinned the convention. A few

also discussed the importance of the government retaining the confidence of the

House of Commons and the role of Votes of Confidence.

A common problem was that many candidates answered only half of the question,

for whatever reason confining their answers either to the law-making process or to

the scrutiny of administration. Answering half a question cannot result in a pass

mark. Another common problem was that many candidates turned this question into

one on ministerial responsibility and wrote „all they knew‟ about both collective and

individual responsibility. While relevant, a detailed discussion of that concept, at the

expense of parliamentary procedures was not what this question required and such

answers failed.

„The House of Commons the elected House in the United Kingdom has two

major roles: law making and scrutiny of government administration. In its

lawmaking role the House of Commons is somewhat limited given the fact

that this process is controlled by the executive. However in the scrutiny of

government administration the Commons is more effective since members

have more opportunity to contribute to this process through questions,

motions and select committees….

Select Committees offer more opportunities for Members to scrutinize the

executive effectively. While the Whip (government and opposition) selects

members for such committees, members can develop expertise and

contribute more in this process. Select Committee have some resources

although by no means adequate to carry out their functions such as experts,

researchers etc….

While not totally effective some scrutiny of the executive and the law making

process offer Members of the House of Commons opportunities to contribute

to the parliamentary process, hold the executive accountable and contribute

to the development of legislation. The scrutiny role is critical under the

separation of powers and members have an opportunity to represent their

community and their interests in the law making process hence contributing

to constitutionalism.‟

Comment

The candidate presents a confident, succinct introduction and then offers a critical

explanation of the law-making process. In relation to scrutiny of administration, the

discussion is thorough. The conclusion, above, is well balanced and mature.

Interpretation of the question: excellent

Relevance of the answer to the question: excellent

Substantive knowledge: excellent

Use of authorities: sound

Articulation of argument: excellent

Accuracy of information: excellent

Clarity of expression: excellent

Legibility: excellent

Question 3

How does United Kingdom law achieve a ‘level playing field’ between rival

candidates and political parties with respect to parliamentary election

campaigns?

In general this question produced some very good answers. To achieve

the highest marks possible it was necessary to cover several aspects of

electoral law. Issues which should have been discussed, together with

the relevant statutory sources and case law, were:

• constituency sizes to ensure approximate equality in the

number of voters and the exceptions to the equality principle

which result in considerable variations in the number of voters

per constituency

• the franchise and those disqualified or ineligible to vote and

statutory reforms resulting in a more inclusive electoral register

• the legal rules relating to candidates’ expenditure, criminal

offences and the issue of participation in broadcasts in general

election campaigns

• the registration of political parties

• the regulation of spending at national level by political parties

(and the question of whether state funding should be provided)

• the voting system, its advantages and disadvantages.

The strongest candidates were able to discuss each of these issues and

to indicate the relevant statutory provisions and case law. When citing

statutory provisions it is unnecessary to copy out sections: this wastes

time and detracts from the quality of the discussion.

Too many candidates unfortunately did not cover all the necessary

areas of this topic. It was not sufficient for a pass simply to focus on

either party political funding or the voting system.

Question 4

‘One of the attributes of parliamentary sovereignty is self-regulation. The

Parliamentary Standards Act 2009 establishing the Independent

Parliamentary Standards Authority and Commissioner represents a significant

departure from this principle and raises questions of constitutional

importance.’

Discuss with reference to the background to the Act and its constitutional

implications.

This question gave rise to the greatest number of poor answers, and it

is important to stress the reasons for this. A careful reading of the

question would have made it plain that the aspect of sovereignty

requiring discussion was self-regulation: the power that Parliament has

to regulate its own composition, procedure and powers, together with

the individual and collective privileges which are exercised by

Parliament (see Chapter 12 of the subject guide and related reading).

However, it appeared to the Examiners that a large number of

candidates saw the words ‘parliamentary sovereignty’ and launched

into a discussion of that concept which had no relevance to the actual

question asked.

Furthermore, the question specifically asked for a discussion of the

Parliamentary Standards Act 2009 and its constitutional significance.

Unfortunately, it was clear to the Examiners that the majority of

candidates had not heard of the Act, but nevertheless proceeded to

attempt an answer. Students are encouraged, and indeed required, to

keep up to date with constitutional developments. The scandal over the

abuse of expenses and allowances and the resulting Parliamentary

Standards Act 2009 was one of the topics covered by the Public Law

Newsletters available on the VLE between June and September 2009

and also discussed in the Recent Developments.

One good starting point would have been to introduce parliamentary

privilege – with particular reference to the collective privilege to

regulate Parliament’s own composition and procedure. The expenses

and allowances affair could then have been discussed in order to

demonstrate the need for statutory regulation. The 2009 Act, the

Independent Parliamentary Standards Authority (IPSA) and

Commissioner could then have been discussed, together with an

assessment as to whether or not this Act undermines self-regulation as

an aspect of Parliament’s sovereignty.

Many of the best answers pointed out that the Parliamentary Standards

Act is an ‘ordinary’ Act of Parliament and can therefore be amended or

repealed as Parliament wishes.

Question 5

With reference to case law, critically assess the view that, since the enactment of

the Human Rights Act 1998, the judiciary has assumed more power than

Parliament intended.

This question on the Human Rights Act was undertaken by a high

proportion of candidates, with varying success. Most candidates correctly

started with a (brief) explanation of the origins of the European

Convention on Human Rights and its status as international law. The

influence of the Convention on domestic law before the Human Rights Act

should have been noted.

Candidates were asked to ‘assess the view that ... the judiciary has assumed

more power than Parliament intended’. In order to do this, it was

necessary to explain the interpretative duty (section 3), declarations of

incompatibility and their legal effect (section 4), the inclusion of the courts

in the definition of public bodies (section 6), remedial orders (section 10)

and the duty imposed on Ministers to declare whether a Bill complies with

Convention requirements (section 19). Examples from case law should

have been offered to show how the Act has been working. Many

candidates were able successfully to illustrate the scope of, and limits to,

the interpretative duty. Many also pointed out that Parliament had given

these powers to the judges and that, accordingly, the judges were doing no

more than Parliament had intended them to do.

However, as the strongest candidates were able to demonstrate, the Act

has been used by the judges in a robust manner. Examples of this include

the development of the law of breach of confidence to protect personal

privacy – a development not intended by Parliament. Another example is

the giving of horizontal effect to Convention rights, through the

interpretation of section 6. Further difficulties have arisen in relation to

national security, with judges ruling that indefinite detention of foreign

terrorist subjects is unlawful, and that control orders may also be unlawful.

See the subject guide Chapter 15. See also F. Klug and K. Starmer

‘Standing back from the Human Rights Act: how effective is it five years

on?’ (study pack p.209ff). See also the White Paper ‘Rights Brought Home’

(study pack p.223), Irvine, Lord ‘Constitutional reform and a Bill of Rights’

(study pack, p.227ff.) and the extract from A v Secretary of State for the

Home Department and Malone v United Kingdom (study pack, pp.269 and

271ff.).

Question 6

‘The transfer by the States from their domestic legal system to the Community

legal system of the rights and obligations arising under the Treaty carries with it

a permanent limitation of their sovereign rights, against which a subsequent

unilateral act incompatible with the concept of the Community cannot prevail.’

(Costa v ENEL (1964), European Court of Justice)

Discuss, with reference to the case law of the United Kingdom courts.

A quotation from Costa v ENEL with the requirement to discuss it with

reference to the case law of the domestic courts which produced some very

good answers. A good starting point was to discuss the origins of the

Community and Union, with a brief introduction to the major institutions

of the Union. A discussion of the role of the Court of Justice could then

follow, with an explanation of the ECJ’s stand on the necessity for the

supremacy of Community law over the domestic law of the Member States.

The evolution of the ECJ’s approach – direct effect, vertical and horizontal,

indirect effect, state liability – as illustrated by case law was required.

Attention should then have turned to the European Communities Act 1972

and its role in enabling the reception of Community law into domestic law.

There should have been a discussion of several cases, ranging from

Macarthys v Smith (1981) and Garland v British Rail Engineering Ltd

(1983), Duke v GEC Reliance (1988), Litster v Forth Dry Dock Ltd (1990),

Pickstone v Freeman plc (1989), Webb v EMO Cargo (1992) and R v

Secretary of State for Transport ex parte Factortame (1991). The cases of R v

HM Treasury ex parte British Telecommunications plc (1993) and R v

Secretary of State for Employment ex part Equal Opportunities Commission

(1995) were also relevant.

It was not sufficient to limit discussion to the Factortame cases.

See the subject guide, Chapters 13 and 14. See also A. Tomkins ‘The

impact of the European Community’ (study pack p.181ff.) and extracts

from case law (study pack pp.177, 201, 203 and 205).

Question 7

Explain the simple majority system of electing Members of the House of

Commons, giving your views on the relative advantages and disadvantages of

alternative voting systems for elections to a legislature.

This question on the simple majority voting system was generally well

done. The aims of a ‘good’ electoral system – equality in voting power,

legal controls over expenditure etc., and the return of a government with a

sufficient majority to carry out its mandate – were used by many as a

starting point. Attention could then turn to the simple majority system and

the way in which it works. Central to the discussion were the issues

relating to the simplicity of the system, the fact that it returns a Member of

Parliament with strong links to the constituency, contrasted with the

disadvantages of ‘wasted’ votes, the fact that a majority of MPs will be

elected on a minority of the popular vote and the lack of proportionality

between the votes cast and seats won.

Alternative voting systems could then be discussed, with a view to

assessing whether the advantages and disadvantages outweighed those of

the simple majority system. There was no need to discuss the various

alternative systems in detail (nor was there time to do so). The key issue

was proportionality, and the systems under which this could best be

achieved. The constitutional implications of a change in the voting system

for general elections also required discussion, and candidates correctly

discussed the problem of potential governments without a clear majority;

coalition governments or the disproportionate strength of small parties; the

problem of the mandate and whether or not the doctrine of collective

ministerial responsibility could survive a government comprised of

members of different political parties.

See the subject guide Chapter 11.

Question 8

By reference to case law, discuss the meaning and application of ‘the duty to

act fairly’ in English administrative law.

Candidates should have begun discussion by introducing the role and

function, and constitutional importance, of judicial review of

administrative action. It would then have been useful to explain,

briefly, the major headings of judicial review (per Lord Diplock in

Council for Civil Service Unions v Minister for Civil Service 1985).

The discussion should then turn directly to the concept of ‘fairness’, an

aspect of ‘procedural propriety’ (see 18.3.3 of the subject guide) more

commonly known as Natural Justice.

The main aspects of the traditional concept of Natural Justice should

be discussed – the absence of bias and the right to a fair hearing –

together with representative case law. The right to a fair hearing, in

particular, gives rise to many different requirements, any of which will

apply in any given case depending on the circumstances and the

requirements of fairness overall, as interpreted by the judges. Many

candidates rightly pointed out that Article 6 of the European

Convention on Human Rights, incorporated under the Human Rights

Act 1998, now provides the explicit right to a fair trial, supplementing

the common law requirements.

By way of conclusion, it could be pointed out that the rules of fairness

are not ‘set in stone’ but will be applied as the circumstances of the

particular case requires.