Monday, 22 May 2017

How to answer a JR exam Question

Faced with a problem question in a law exam about whether Judicial Review can be used? This flowchart suggests a logical approach to structuring your answer.

(click on the image for a full sized version)

Don't forget that as well as problem questions on Judicial Review - which are all about specific decisions, the issue of Judicial Review is relevant to the Constitutional issues of Separation of Powers and Parliamentary supremacy. So do reflect on those issues.

Friday, 19 May 2017

Freedom of Expression

Traditional 'freedom of expression' in England rested upon the principle that anyone is free to do what they want, unless the behaviour is specifically banned. Liberty is one sense, but a fragile one. The problem is that one person's use of the freedom may interfere with someone else's rights.

So throughout English history freedom of expression has been limited. The criminal law has been used to prevent obscenity; revelation of state secrets; sedition; inciting troops to mutiny; and in everyday life threatening, insulting or abusive words and behaviour are banned. Incitement to racial and religious hatred will bring criminal sanctions. There is criminal liability for contempt of court.

If someone's rights have been interfered with, there are remedies available in the civil courts - through actions for the torts of defamation and breach of confidence.

The European Convention on Human Rights, Article 10 states:-

  1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
This is not an absolute right - Section 2 makes that clear - but the right is also balanced against the rights of others set out elsewhere in the ECHR. Article 8 sets out the right to privacy - "Everyone has the right to respect for his private and family life, his home and his correspondence."

There is some useful caselaw on balancing these rights, including -

Thompson and Venables v News Group Newspapers
Campbell v Mirror Group Newspapers
Murray (by his Litigation Friends) v Express Newspapers plc

There's an excellent resource here on current privacy law.

Wednesday, 17 May 2017

ECHR - Key Rights & Restrictions

What are the key rights in the European Convention on Human Rights? - and when can these be restricted? The answers can be found in the Convention itself

But it can be easy to lose sight of the key points - so I have prepared a hand-out for my Open University W201 students, which reformats the text to highlight what the rights cover - and when States can interfere with them. This is a revision document - so if it is of help to you - or you have friends studying Constitutional; or  Administrative Law (UK) or Human Rights Law - please feel free to use it, or share this post (Facebook; Twitter; Email - or whatever)

Article 8 – Right to respect for private and family life 

1.    Everyone has the right to respect for his private and family life, his home and his correspondence.

2.    There shall be no interference by a public authority with the exercise of this right except 

    1. such as is in accordance with the law and 
    2. is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 9 – Freedom of thought, conscience and religion 

1.    Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.    Freedom to manifest one's religion or beliefs shall be subject only 

    1. to such limitations as are prescribed by law and 
    2. are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 – Freedom of expression 

1.    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.    The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to 

    1. such formalities, conditions, restrictions or penalties as are prescribed by law and 
    2. are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11 – Freedom of assembly and association 

1.    Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.    No restrictions shall be placed on the exercise of these rights other than 

    1. such as are prescribed by law and 
    2. are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

·        Do not forget the principle of proportionality – R (on the application of Daly) v Home Secretary [2001] 2 AC 532

o   Is the legislative objective sufficiently important to justify limiting a fundamental right?

o   Are the measures taken rationally connected to this objective?

o   Are the measures taken no more than is necessary to accomplish this objective?

Monday, 15 May 2017

Human Rights

Back in the early 1980s I was a law student in Sheffield. One of my "legal heroes" then was a solicitor for the National Council for Civil Liberties, who had won an important case - Harman v United Kingdom. She went on to become a key player in the Labour Party - and was its acting Leader in 2015.

I appreciate that we are in the middle of a General Election - and you might not like her politics - but if you are preparing for an exam on Human Rights (such as the W201 Open University course), it's worth reading a speech she made back in June 2015 - during the 800th anniversary of Magna Carta. I should also note that she is a QC.

Yesterday we celebrated the anniversary of Magna Carta which laid the foundations for our democracy, human rights and the rule of law in this country and throughout the world. Today we are determined to defend our Human Rights Act.

Labour values are about social and economic rights. And they are also about the civil and political rights embodied in the Human Rights Act. British values – evolved over centuries.
But these are not just Labour values – they are British values and universal human values.
The horrors of the Second World War inevitably made people think afresh about the rights to which every human person is entitled by virtue of their humanity - and how those rights could be protected.

An international endeavour - including Britons - set out a Charter which aimed at nothing less than establishing the norms of international decency, which would apply everywhere and protect everyone.

The Universal Declaration of Human Rights – adopted in 1948 – and the European Convention on Human Rights agreed in 1950, and which we ratified in 1951, embodies those efforts.
Simple but powerful, enshrining:
• The right to life, liberty and security
• The right to a fair trial
• Protection from torture
• Freedom of thought, conscience, religion, speech and assembly
• The right to free elections
• The right not to be discriminated against

The Human Rights Act inherits and embodies those universal values, and people around the world are still fighting for the rights it contains and we enjoy today. It has done an immeasurable amount to raise standards across European countries who suffered so much in WW2 which was its aim. 

The impact of the Human Rights Act has been profound.
It gives individuals rights which they can enforce here, in our courts, without having to traipse to Europe and wait years. But its impact has been much more far-reaching than the giving to individuals litigable rights - important though that is. It has precipitated good cultural and organisational change. It has changed the way public authorities reach decisions – both in respect of policies and individuals. It requires them to think not just about their own organisational exigencies but also about the rights of the individuals and communities affected by what they do.

When difficult judgements have to be made The Human Rights Act sets the framework for what has to be taken into account. The competing rights which have to be weighed in the balance. Like balancing the right of an individual to privacy against the right of freedom of the press. 
Or when considering the qualification of those rights. Where there is a right but it is not absolute – such as the right to family life which is protected except where it is necessary in a democratic society in the interests of national security public safety or the economic wellbeing of the country, for the prevention of disorder or crime for the protection of health or morals or for the protection of the rights and freedoms of others.  

Often there is no easy right or wrong decision. But The Human Rights Act makes the thought process right. That thought process is important for the individual but it is also a reassurance for institutions who make desperately difficult decisions because it allows them to demonstrate, that in making a decision, they did give proper weight and consideration to the relevant rights.

Believing in those rights is one thing. But their application is quite another. It’s hard. What those founding signatories knew – and what remains true today – is that defence of those rights has to be uncompromising. Defence of those rights will not always be popular. And sometimes will be deeply unpopular. As US Chief Justice Frankfurter observed as long ago as 1950:
“The safeguards of liberty have frequently been forged in controversies involving not very nice people”

We must defend the rights of every individual - those we don’t agree with or approve of, as well as those we do agree with and approve of. We have to protect the minority from the majority. 
And we have to protect the individual from the state when it gets it wrong. I’ve experienced this myself when I was the individual whose rights were trampled by the state. 

In 1981 when I was legal officer at Liberty, acting for a prisoner in a case against the Home Office, the government prosecuted me for contempt for allowing a Guardian journalist, David Leigh, to come to my office to look at Home Office documents which had previously been secret but been read out in open court as part of our case. Despite the fact that they’d been read out and were therefore in the public domain, the Home Office were so keen to suppress what they showed that they used the power of government to throw everything at me.  I didn’t think I’d done anything wrong as the documents had been read out in court. But at that time Liberty was loathed by the establishment – not least for our strong stand against internment in Northern Ireland.  So my solicitor told me frankly that there was no chance I’d get off. He said, “who do you think the courts will prefer – you or the Home Office?” He was right. The High Court found me guilty of contempt. My appeal to the Court of Appeal was turned down by Lord Denning. And it was only when my case was heard in The European Court of Human Rights seven years later – that I won and was totally vindicated. 

The moral of my case is that if we’d had the Human Rights Act then I don’t think they would even have taken the case against me. And if they had, I’d have won in the British courts because the judges would have had to take my Convention Rights into account. 

But it’s also the case that if we’d not been part of the ECHR – which is what the government now seems to want – I’d never have been able to clear my name in Europe.

I know what it’s like to be an individual at the mercy of an overbearing state as a young lawyer, who’d done nothing wrong but with my whole career and reputation threatened. But I can understand why it’s easy to criticize the Human Rights Act and why people can feel uncomfortable about it. I know what it’s like from the other side too. 

I’ve been a Cabinet Minister and I know that The Human Rights Act is always going to be a nuisance to those in power because you want to get on and do things. 
But it’s right that as a government minister that you should have to look over your shoulder and that your power is constrained by other people’s rights. 

And it is challenging because we believe in the sovereignty of parliament - and human rights law tempers parliamentary thinking. But it should. Its right that the question is always asked - and the answer certified - “this proposal is compliant with our commitments to human rights.”
But remember that unlike other Bills of Rights in other parts of the world, the Human Rights Act does not allow judges to strike down Acts of Parliament. It creates a conversation between the judiciary and legislature, parliamentary sovereignty is preserved.

Sometimes we all know that defending the Human Rights Act can feel challenging because it can involve European judges protecting the rights of an unpopular individual from an elected authority, or protecting the rights of an unpopular minority from a popular majority. 
But it is the right thing to do. As Supreme Court Judge Brenda Hale said: 
“Democracy values everyone equally even if the majority does not”

We have to recognise that there is an inherent susceptibility for those who have power to extend it, to over-reach, and ultimately abuse it. And that is irrespective of how legitimate that power is and how they acquired that power and how strongly they believe they are doing the right thing. 
So we do need to have our executive and our legislature set within a framework of human rights. 
And, individuals do need to be able to court to directly enforce their convention rights.
And we do need to have an international framework for our own judiciary. Our judiciary is independent and uncorrupt. It is admired around the world. But it is not infallible and it does get pressurized by government. 

Having judicial oversight from a group of judges from outside our country is a check on them but also an important bulwark for our judiciary against the temptation of any government to tamper with them. Each individual jurisdiction benefits from the constant dialogue between the national and the international judiciary.

We here understand that there can never be any complacency - there has to be eternal vigilance in defending these rights. No country should ever feel so confident that it can regard itself to be in a “post-human-rights era.” Compliance with basic norms of human rights is not a state that you reach, and then you don’t need anymore. It requires constant vigilance for the rights of individuals, constant guarding of the rights of minorities, constant restraint on those who have power.

The government can’t “amend” some of the convention rights but still keep our place in the Convention. And leaving the convention would have serious and far reaching consequences.
As I’ve said, I think it’s important - for our own sake - that our human rights framework is set within an international system. But it’s also important for the human rights of those in other countries. 

Our commitment to human rights has to operate here at home. But our commitment is equally to human rights for people in the rest of the world. If we were to walk away from our international human rights treaty obligations, we would deprive ourselves of the ability to press other countries to accept high levels of human rights compliance. And we cannot say to others in Europe - particularly Eastern Europe - that they should stay within a European framework but we have somehow outgrown it, or don’t need it anymore.

One of the most important aspects of the international framework of human rights law is precisely so that governments can’t have their own definition of human rights. In seeking to do this, our government will be giving the green light to countries who abuse human rights to do the same. 
The European Convention on Human Rights is just one of a network of treaties we have entered into enshrining the same rights such as the UN convention against Torture and the UN Convention on the rights of the child. To leave the European Convention raises questions about our willingness to comply with those other commitments on human rights.
But standing up for human rights goes beyond our moral authority abroad. It’s about our character and identity as a country. Do we really want our country to no longer consider it necessary to adhere to and shape common norms of decency and justice abroad. I would say no.

We are here today not only because we care about human rights but because we feel they are under threat. The Government has signaled that they want to fundamentally undermine the Human Rights Act. This is what lies behind the announcement in the Queens Speech that they would be consulting on a “British Bill of Rights”. We think that even the consultation is the start of a slippery slope. 

You can’t be a bit in favour of human rights and a bit against it. You have to be clear and resolute about it.

The Prime Minister has already indicated that their plans will be delayed – so no bill in the Queen’s Speech but a promise of a consultation paper in the Autumn. No doubt this delay is not just because they have a slim majority and know there’s a lot of opposition to their plans. It’s also because their plans are incoherent. As I’ve said, they can’t opt out of some human rights but still be in the European Convention. 

They are also politically and constitutionally destabilising. The complete incorporation of the European Convention is written into the Good Friday Agreement and The Human Rights Act is written into the devolution settlement for Scotland. Amending the Human Rights Act would destabilise those settlements and have serious constitutional consequences undermining the Good Friday Agreement in Northern Ireland and the devolution settlement in Scotland. 

We will protect human rights. We are determined
• that human rights legislation should not be watered down,
• that its limits should not be narrowed,
• there should not be any circumstances where there should be a “opt out” from some of the human rights contained in the European Convention
• and that we should remain within the framework of the European Convention on Human Rights

There is a broad alliance of people and organisations in this country who will defend human rights. We will be part of that but we will work with those of other political parties because support for the Human Rights Act is not just the preserve of the Labour Party. There are those in the Tory party who believe in this just as strongly as we do and articulate it clearly – as did William Hague when he said

“The belief in political and economic freedom, in human rights and in the rule of law, are part of our national DNA.  Where human rights abuses are seen to go unchecked, our security and our prosperity suffer as well. And how we are seen to uphold our own values is a crucial component in our influence in the world.” 

He articulates how human rights are part of, not at variance with, our British values and matter for our place in the world.

There are MPs in all parties who support human rights. There are peers of all parties and who are in no party who will defend the Human Rights Act. 
In my role as interim leader of the Labour Party I give you my assurance that we are going to be clear with the Prime Minister that he must not go ahead with this. I’ve today written to the Prime Minister demanding that he drops these plans and I’d like to invite you to co-sign the letter.

Together we can send a strong signal that he mustn’t publish the consultation paper, he mustn’t publish a draft bill, he mustn’t entertain the idea of leaving the ECHR. 

What an irony that yesterday the Prime Minister was presiding over the celebration of Magna Carta at the same time he’s planning to undermine the Human Rights Act. No wonder that though he mentioned human rights in South Africa – and preyed in aid Nelson Mandela – and mentioned human rights in India – and preyed in aid Ghandi – he could not bring himself to mention Europe and our Convention.

But we believe that, together, we can prevent the government eroding human rights. Their policy is intellectually incoherent and, worse, it’s wrong in principle.

Though Labour is in opposition, not in government, we believe that in this case, on an issue of such profound importance, they can and should be held back.

Friday, 12 May 2017

The Rule of Law

Another key concept in UK Constitutional Law!

Beware of treating this as a wishy-washy general idea about acceptable legal behaviour. There are some very specific meanings to the phrase.

Dicey proposed three aspects

(1) No person is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land - therefore there should be no 'arbitrary' justice - behaviour should be prohibited in advance - not after the event - people we think might have mischievous intent shouldn't be locked up because they might commit a crime (despite the exasperation of certain Home Secretaries that the Courts are reluctant to deport or intern people who aren't convicted of anything, but are clearly evil.)

(2) No person is above the law - the ordinary law of the land applies to everyone, and as Barnett comments, "there must not only exist a system of courts available locally but the cost of having recourse to the courts must be such that there is real - rather than symbolic - access to the courts. For the law to be attainable, adequate legal advice and assistance must be provided at a cost affordable by all." (Once upon a time....)

(3) the general principles of the constitution are the result of ordinary cases in which rights have been determined. - Dicey meant that in the UK we don't have special courts for Administrative Law, but the ordinary courts applied the same approach whether they were dealing with bureaucrats or ordinary citizens involved in disputes with other citizens. (Perhaps a bit quaint in this era of judicial review and multi-national corporations.)

NOTE - I've tried to be deliberately provocative - how who you respond to such opinions in an exam question?

Reasoned evaluation is the key - and examiners look for it. You can practice by looking at newspaper headlines in the coming week - apply the "Rule of Law" to what the editor or the politician is arguing.

There are some useful cases to reflect upon - Prohibitions del Roy (1607); Entick v Carrington (1765) R v IRC ex parte Rossminster Ltd; R v Horseferry Road Magistrates Court ex parte Bennett; Phillips v Eyre; In re M (1993) - worth making brief casenotes on!

There are also some useful questions to consider as you revise. Do reflect on how the concept of the Rule of Law relates to other constitutional principles. There's an excellent book on the Rule of Law and related subjects by the late Lord Bingham.

Wednesday, 10 May 2017

A little more on Parliamentary Supremacy/Sovereignty

One of the first writers to discuss the concept was Jean Bodin (1529/30 - 1596), who published in 1576 "Les Six Livres de la Republique". Cambridge University Press have taken some of the chapters and published them as "On Sovereignty" which was edited by Julian Franklin.

The context was that the idea of being "English" or "French" was changing from the feudal idea of being the subject of a particular king (as in "I am English because I owe my allegiance to the King of England") to being from a particular geographic area (the modern idea of "I am English because I was born/live permanently in England). Ideas of states based on geography, and have a single source of constitutional power began to develop.

Parliamentary Sovereignty is a concept based on that idea of there being a single source of power. Once the King was sovereign (this is not a pun!) - but after the English Civil War, and certainly after the "Glorious Revolution" in which Parliament 'chased James II out of town' and chose William and Mary to be the new Monarchs - it was recognised that power derives from Parliament. It can make or dissolve any institution (it can create, and subsequently abolish a Scottish Parliament; institutions of local government; Courts...); and define who can become King (Act of Settlement 1701).

Dicey is the most well known academic who sought to describe and define the principle. To slightly paraphrase him - it means

1 Parliament can pass any law it wants (unlike the US Congress which can have its laws struck down by the Supreme Court if in conflict with the Constitution)

2 A Parliament is not bound by its predecessors (so there can be no entrenched legislation which forces a later Parliament to use special procedures to change specific laws - like a 2/3 majority, or a referendum)

3 What Parliament has done cannot be questioned in the Courts (another aspect of the first meaning)

But Parliamentary Sovereignty has been challenged. It sits uneasily with British membership of the European Union. By passing the European Communities Act 1972. Our membership involves agreeing to limit our legislative freedom - and to be subject to decisions of the Court of Justice of the European Union.In the Thoburn case it was recognised that the usual principle of "implied repeal" didn't apply to the European Communities Act. Of course the answer to a claim that Parliamentary Sovereignty is dead - is that Parliament retains the sovereign right to repeal the European Communities Act.

Dicey is not the only view of the doctrine. There is an excellent, thought provoking book by Jeffrey Goldsworthy

Most Constitutional Textbooks rehearse the various arguments. If you are a law student sitting exams shortly - be sure that you are able to define the doctrine and discuss the various arguments about its strength today. Don't forget the importance of critically evaluating the arguments put forward by the various commentators.

Monday, 8 May 2017

R (Miller) v SoS for Exiting the EU

Have you read, in full, the judgment in R (Miller) v SoS for Exiting the EU?

If you are taking an Exam involving Constitutional Law this summer - then I would advise you, as strongly as I am able, to

(1) Download the case - from the link above

(2) Read the case - what are the main arguments discussed? How do the judges deal with each of them?

(3) Evaluate - for yourself - the arguments made, accepted or rejected.

(4) Prepare revision cards on the case - and its arguments

(5) Practice explaining the case - and its reasoning - you don't need to torture a spouse or a friend (may be an ex- after you do so) - but go for a walk and work out how you would put it; or put a soft toy in a comfortable seat & explain to them (advantage - no awkward questions!)

Friday, 5 May 2017

Dicey and Parliamentary Supremacy

One of the greatest writers about the British Constitution was Albert Venn Dicey. He lived from February 4, 1835 to April 7, 1922. His first major work, "An Introduction to the Study of the Law of the Constitution" appeared in 1885. He is most famous for his work in describing and defining the doctrines of "Parliamentary Sovereignty" and the "Rule of Law".

The doctrine of parliamentary supremacy was summarised by Dicey in three points:

Parliament can make law concerning anything. - this is in contrast to the position in many countries where the acts of the legislature can be struck down for conflicting with the Constitution (as can happen in the USA after the Supreme Court claimed the power in Marbury v Madison)

No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament) - put another way, no incoming Parliament is bound by previous parliaments. Again this contrasts with other countries where certain rules are 'entrenched' - meaning the rule can either never be repealed (as with the French Constitution Art 89 "The republican form of government shall not be the object of any amendment") or requires special procedures to amend ( such as Art 5 of the US Constitution requiring 2/3rd of all States or 2/3rd of both House of Congress to propose an amendment - and ratification of the amendment by3/4th of all state legislatures)

A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker.
There is a very useful article on recent developments on Wikipedia (NOT A SOURCE I WOULD GENERALLY USE OR TRUST) - but whoever the author was, they have produced a useful resource.

Recent developments

Parliamentary sovereignty prevents judicial review of primary legislation passed by Parliament. However, in the late 20th and early 21st centuries, the notion of parliamentary supremacy was modified under the influence of five principal sources: The devolution of power to regional assemblies in Scotland (Scottish Parliament), Wales (Welsh Assembly) and Northern Ireland (Northern Ireland Assembly). All three assemblies can pass primary legislation within the areas that have been devolved to them. As the system remains devolved and not federal, the powers of these assemblies stems from the UK Parliament and can be suspended.

The UK's membership of the European Economic Community, later the European Union, from 1973. The EU represents, as the European Court of Justice ruled in 1963 in the case Van Gend en Loos, a "new legal order of international law for the benefit of which the [Member] States have limited their sovereign rights, albeit within limited fields". The UK became part of that legal order - though the fact that UK membership of the EU has been brought about through Acts of Parliament - principally the European Communities Act 1972 - raises the possibility that Parliament could, as a matter of UK law, pass further legislation unilaterally withdrawing the UK from the Union, or selectively barring the application of European law within the UK. {As subsequent events have shown!}

Following the case of Thoburn v Sunderland City Council certain statutes are protected as Constitutional Statutes. The case involved amendments to the Weights and Measures Act 1985 by the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 pursuant to Directive 80/181/EEC. This stated that Imperial measurements could be displayed so long as the metric measurements were displayed in larger type beside them. Thoburn was convicted for only using Imperial measurements. In his defence he argued that allowing even limited use of Imperial measurements was in contravention of the relevant directive and therefore in contravention of Section 2(2) of the European Communities Act 1972. This would have invoked the doctrine of implied repeal which is essential to the doctrine of Parliamentary Sovereignty. In his judgment, Lord Justice Laws held that certain statutes of constitutional importance including Magna Carta and the European Communities Act 1972 could not be repealed by implied repeal. As such, this has slightly limited Parliament's sovereignty.

The enactment of the Human Rights Act 1998 which incorporates part of the European Convention on Human Rights into domestic law. The Act gives UK courts the power to issue a declaration of incompatibility where they believe that the terms of an Act of Parliament are in contravention of the rights guaranteed by the Act. The effect of the declaration is not to annul the Act but send a signal to Parliament which may then choose to amend the offending provision. As with the UK's membership of the European Union, the principle of parliamentary supremacy means that Parliament can at any time vote to repeal the Act and indeed the UK's ratification of the Convention itself.

The increasing use of referendums. Although the result of a referendum is in no way binding on Parliament unless it has previously agreed that this will be case, in practice there will be considerable pressure on Parliament from the electorate to take the result into account.

However, Parliament may withdraw from the most of the commitments it has made or repeal any of the constraints it has imposed on its ability to legislate. Thus, Parliament theoretically remains almost entirely sovereign. The qualifier "almost" is provided because in 1921, after a century of dispute, Parliament passed the Church of Scotland Act 1921 which finally agreed that it does not have sovereignty over the Church of Scotland, the established church in Scotland.

There is a concept in political science of 'legal' and 'political' sovereignty. It can be argued that legal sovereignty has not been lost, because Parliament still retains all its theoretical powers. There are no legal limits on Parliament's sovereignty. However, as it is highly unlikely that the UK would repeal the European Communities Act and leave the EU, and it is unlikely the devolved legislature would be abolished, there are significant political limits on the sovereignty of Parliament. Nevertheless, it remains the case that the UK Parliament could do so without seeking the mutual consent of the EU or the devolved legislatures, as it did with the abolition of the Parliament of Northern Ireland in 1972, and that if it did, these repeals would be legally and politically binding.

This stands in contrast to the Acts of Parliament which have been used to grant independence from the UK to former dominions and colonies in the British Empire. Following the Balfour Declaration, the Statute of Westminster 1931 established a status of legislative equality between the self-governing dominions of the British Empire and the United Kingdom, and provided that Acts passed by the UK Parliament would not apply in the dominions without a dominion's express consent. It is difficult to see how the UK could later resile from that position. By way of further example, the UK Parliament passed the Canada Act 1982 which stated that the UK Parliament would no longer be able to amend the Canadian constitution. If the UK parliament were to repeal or amend the Canada Act 1982, it would be unenforceable as Canada is no longer subject to UK sovereignty.

Of course this year we have had the decision in R (Miller) v Sec of State for Exiting the European Union. A Must Read!!!

Wednesday, 3 May 2017

Separation of Powers

The US Constitution is built upon the foundation of a separation of powers. Montesquieu (pictured above), amongst others, had highlighted the importance of ensuring that the differing functions of legislating (making law); executing the laws (carrying out the laws and providing day to day administration) ; and judging - both interpreting the laws and deciding in invidual cases - should be in the hands of separate groups of individuals. Hence a member of Congress cannot be at the same time a member of the Executive (serving the President) or a member of the judiciary.

On the face of it, Britain seems to show a fusion, rather than a separation of powers. The doctrines of ministerial responsibility are based on the principle that Government Ministers will also be members of either the House of Commons or the House of Lords. The Lord Chancellor was for centuries a member of Parliament (almost invariably in the House of Lords); the presiding officer and major player in the Lords; a member of Cabinet and an active judge.

However - it is useful to remember that Montesquieu actually praised Britain as a shining example of 'separation of powers'. It can be fairly described as a major principle of the British system. True fusion of powers ended with the decline of absolute royal power. 

The House of Commons Library have produced an excellent paper on separation of powers. It is available here. Students of UK Constitutional Law (including Open University W201 course) will find that the process of condensing the information in this paper will assist their revision immensely.

Friday, 28 April 2017

Thoughts about Revision

Back in 2011 I recorded some thoughts about techniques for revision.

Wednesday, 26 April 2017

Revision Cards

Law Students in particular, but many students in general, have a tradition of using "revision cards" to assist in the final stages of revision. Of course they are even more useful the earlier they are prepared.

Case cards are a particularly useful tool for law students. It's useful to have a VERY brief outline of the facts and key legal points established by a particular leading case. (A word of warning - volume  is the enemy of the student who wishes to be effective - don't do too many cases, concentrate on the cases that you are likely to need for the exam - a thousand case cards looks impressive, but may not concentrate the mind! Similarly, don't try and write as much as you possibly can - in the smallest writing. Condensing the information is the key to successful recall)

One of my students introduced me to "Quizlet" an internet based tool for creating cards; revising & testing oneself; and sharing with colleagues. [a 'Spaced Repetition' tool - there's a good article about them, and why they work  at https://www.theguardian.com/education/2016/jan/23/spaced-repetition-a-hack-to-make-your-brain-store-information.]  He, and some other Open University students collaborated in developing some revision cards which they then shared and tested each other on. I strongly commend such activities - it makes learning more fun & discussion can (and does) arise which enhances every participants understanding of the subject matter.

Revision cards are useful not just for learning cases - but definitions, or quotations, for dates & translated words. I've started using them for my own leisure and professional use. Quizlet allows you to make your own cards - and if you choose, to share them with everyone - or with a defined group of colleagues. It also allows you to find existing card sets.

So if you are taking an exam in 2017 - make your resolution to improve your results by using revision cards. The ones you make yourself are the most useful (because you are forced to condense information - a key to successful memory). Using cards made by others can be useful, but less effective (I for example found on Quizlet a set of cards, each of which has the name; state and photograph of a member of the current US Senate - and use it to improve my recall of faces (not my strongest point) and linking Senators to their States.)

If you want to try Quizlet out - go to http://quizlet.com/

Monday, 24 April 2017

The Washminster Blog during April, May & Early June

The pace of posts may drop in the coming few weeks. There's a General Election on in the UK - and that means I have less time to research and post, and to comment on events here in the UK, France, the EU and the USA

 - but do subscribe, or return occasionally - 

I hope to get some posts published in the weeks ahead.

For students facing exams (particularly on the Open University's W201 course - but I also have advice and information that may be useful, for law and political science students, as well as anyone facing exams) - I will be continuing to post on revision topics.

My "Washminster" posts are aimed at anyone interested in the workings of legislatures, politics generally - and have in the past covered specific elections - not to seek to encourage people to vote in a particular way. However my knowledge and experience comes from a rather long time being actively involved in British, European and US politics.

So if you want to see what happens in elections, and can put up with my partisanship - then you are welcome to follow me on:

 FACEBOOK : https://www.facebook.com/jdavidmorgan

TWITTER: https://twitter.com/Jdm_progressive

Unlike the 2001 and 2005 General Elections, or the 2009 European Parliament Elections - and various local government elections - I will not be standing as a candidate myself.

I will however be encouraging all progressives to back pro-EU candidates standing in parliamentary constituencies where they have the best chance of defeating the Conservative hard or passive Brexit supporters (which I think is everyone but Kenneth Clarke).

A guide to voting effectively can be found here - https://www.tactical2017.com - the spreadsheet is based on is available here.


It can be very useful to look at old exam papers (OU Law Students can access these through 'Elite') - but even more useful to take a look at examiners reports. These often highlight common mistakes that have arisen. If you read a few reports you'll see that the same issues frequently turn up.

One comment I'd like to stress appeared one year (though it is a perennial) - "Some students in fact forgot to apply the law to the facts at all, and simply listed cases; although these were usually relevant ... it was very important...to apply the rules and principles as well as setting them out." 

Cases are important - especially in English Law where precedent plays a key role - but there can be a tendency to fixate on memorising case names and facts. I've known students who have sought to memorise over a hundred cases. (to which I say, how many cases can you discuss in a three hour exam in which up to an hour can profitably be spent choosing the best questions to answer; planning the answers; writing them; and reviewing them?)

Use cases to illustrate a point you are making; to support your argument; to demonstrate different approaches to the issue - but never just recite cases and their facts. 

How should you "revise" cases?

The first task is to select the cases that you plan to revise. As you revise each topic, think about which cases are most important. Clues can also be found elsewhere - what has the manual; textbook; tutor stressed most? (My students will be familiar with me banging on about ...)

[W201] Entick v Carrington; Ghaidan v Godin-Mendoza; Campbell v MGN; Carltona v Commissioner of Works; Associated Provincial Picture Houses Ltd v Wednesbury; The GCHQ case (Council of Civil Service Unions v Minister for the Civil Service); Porter v Magill; R v Ghosh; R v R (Marital Rape); R v Cunningham; R v G (Recklessness)...

Prepare brief notes. Students, almost since "time immemorial", have used revision cards to prepare for exams. The value of these cards are that they require you to condense the information. This is a (the?) key process in revision - (there are some professionally written cards on sale - some value, but you lose the process of condensing yourself - similarly, copying out from a text or revision book has the same value-deficit). There is some value in reviewing the finished cards frequently.

Consider the application of cases. Cases should not be used as decoration. They are a vital part of legal argument. Consider where and how you would deploy these cases. This is where using old exam papers can come in useful.

Friday, 21 April 2017

Mind Mapping

I've been a long term 'fan' of mind-mapping. I was first introduced to it as a teenager - and have found it very useful throughout my career, first as a student, then as an academic (and also for dealing with the masses of information I was using as a parliamentary candidate). As with any system - it is good to adapt to your own style and strengths. My problem is that I am useless at drawing (I know there are those who claim that anyone can be taught to draw, but is beyond me - I couldn't draw to save my life!). That has meant that I lost one of the advantages of mind-mapping - which is to use all the senses. My "mind-maps" were closer to "spidergrams" - sometimes I used colour - but essentially I used two dimensional diagrams, without drawings. However it has assisted me in studying; writing essays and preparing presentations and speeches. Most of all - it has helped when I prepared for exams.

Tony Buzan, a key developer and populariser of Mind Maps has gone hi-tech  Now I can do it on screen - I have MindMaps loaded on my home PC and on my iPad.

It may work for you - it may notEach of us has our own learning styleFor me it works - and works VERY well. I'm not good at remembering masses of information (and getting worse as I get older). But organising related information by drawing mind maps is a great help. I also find it an invaluable "thinking device".

Previously, I found them most useful for exam revision - thankfully I'm not facing any exams in the near future - but if you are - or you have a friend who is - then it's worth considering whether Mind Maps can help.

If you want further information - press here. It tells you something about the products available. 

But you can do them with pen (though pencil works best) and paper. The link is that you see the relationships between ideas. You can link key ideas in an argument by linking 'clouds' containing the key ideas together in a chain. You can develop different levels of mind maps - for example

* What is needed for a successful Judicial review claim;
* the elements of a specific offence (Actus Reus, Mens Rea and Defences);
* or the key facts of a particular case.

Why not try to list some topics you could prepare mind maps for?

Wednesday, 19 April 2017

What's the point of revision?

A question I often ask myself! Without it, one is less likely to demonstrate one's knowledge and skills to an examiner. But I want to take the answer to a more practical level.

Revision is about 'training for the exam' - being in 'top condition' for the challenge that the exam sets.  It's about having the key facts at one's fingertips. What are the appropriate legal rules to solve the problem? What are the key arguments around central ideas in the law? What are the key cases in a particular area? It is NOT about memorisation for the sake of memorisations - it is about marshalling the resources you will deploy in the exam room.

Answering exam questions is not about dumping a load of facts, cases and slogans on a piece of paper - it's about marshalling them TO ANSWER THE SPECIFIC QUESTION SET.

So you do need to be able to

- use key cases to advance and/or prove the argument you are making
- set out - and EVALUATE - key arguments (for example about the level of 'Separation of Powers in the UK Constitutional System' or 'balancing conflicting rights arising from the European Convention on Human Rights')
- solve key problems (for example, assess whether a certain set of facts could give rise to a successful Judicial review claim, or a prosecution for a particular offence.)

Single facts, or single cases, are not by themselves key to success - it is the relationships between them.

Rigidity is an enemy of success. I've read many an exam answer which is little more than the dumping of all the facts the student can remember about the subject. That is not the way to success. As stated above, success comes from being able to effectively deploy your knowledge and understanding to answering the specific questions set.

Revision is about
- identifying the key facts, arguments, rules and cases
- recognising the links between your areas of knowledge (it's much easier to remember if you linked your knowledge)
- becoming flexible about how you use your knowledge (so you answer the specific question set, not just dump pre-learned material in the answer book).
- becoming fluent in explaining concepts and making arguments.

I'll be exploring some of these ideas in forthcoming posts.

Saturday, 15 April 2017

Exam Revision

Do you (or a friend) have exams coming up? Over the years Washminster has published a number of posts designed for exam preparation - with a particular (but not exclusive) emphasis on Undergraduate Law exams. For my (likely) final group of students on the Open University W201 Law - the Individual and the State course (Constitutional Law; Administrative Law; Human Rights Law; Criminal Law) - I will be re-publishing some of those posts. I will start with general principles and advice for revision - then move on to specific topics covered by the course.

Please do use yourself - (and) / or share this blog with students facing exams. The series starts next Wednesday.

Tuesday, 11 April 2017

Assessing the Achievements of the last Labour Government

It's almost an axiom that the faults of an individual are almost immediately identified, but it takes time to appreciate what they achieved.

The same is true of governments. Thatcher's administrations are more appreciated today than they were in November 1990. Gerald Ford's efforts to help the US recover after "Watergate" are seen more positively than they were at the time. Even LBJ - reviled as he was in the late 1960s and early 1970s - is seen to have accomplished more than Presidents people remembered more fondly.

A new pamphlet has been published - 20 years after Labour won the election in 1997 and entered government for 13 years.

It can be downloaded from here.

Friday, 7 April 2017

Who's Who in the EU?

You can sometimes wonder who is the President of the EU. Is it Donald Tusk (as some of the media seem to think)? Jean-Claude Juncker? Antonio Tajani? or Joseph Muscat?

In fact there is no such official title. All the above though ARE Presidents within the EU institutions.

Donald Tusk is the President of the European Council. He presides over meetings of the European Council, which is made up of the heads of national Executives (so, Theresa May for the UK, Angela Merkel for Germany, the various Prime Ministers, and Presidents where they are the head of the Executive branch (Fran├žois Hollande in France - but it can get complicated when there is 'cohabitation' with a President of the French Republic of one party and the Prime Minister represents the other party)). He will represent the EU abroad, as do the President of the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy. (Federica Mogherini). The President serves for a two and a half term year, which is renewable once. Tusk's first term ends on 31st May this year, but he was re-elected to a second (and final) term last month.

Jean-Claude Juncker is the President of the European Commission. (To complicate matters he was the previous President of the European Council). This is the Executive of the EU. He is is responsible for allocating portfolios to members of the Commission and can reshuffle or dismiss them if needed. They determine the Commission's policy agenda and all the legislative proposals it produces. The President of the Commission serves a five-year term after being nominated by the European Council and formally elected by the European Parliament.

Antonio Tajani is the President of the European Parliament. He has recently succeeded (17th January 2017) Martin Schultz.  His job is to preside over the debates and activities of the European Parliament, and to represent it before both within the EU and internationally. In a sense he is the loose equivalent of the Speaker of the House of Commons. The President of the European Parliament has a renewable term of two and a half years.

Joseph Muscat is the President of the Council of the European Union. This used to be known as  the 'Council of Ministers'. He is from Malta (and is their current Prime Minister) which is responsible for the functioning of the Council of the European Union for the period January to June 2017.  The presidency (held by the country, rather than the individual) changes every six months - but the previous, current and next presidency co-operate closely. They are referred to as the 'trios'.

There are other bodies within the EU system that have Presidents - such as the Court of Justice of the European Union (Koen Lenaerts); the European Court of Auditors (Klaus-Heiner Lehne); the European Central Bank (Mario Draghi) - amongst others.