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.

Cases

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.

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 not. Each of us has our own learning style. For 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?

Judicial Review Flowchart

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)

Welcome to Open University Students

The new academic year is about to begin for the Open University Law courses. I'll be teaching W200 and W201 courses in Birmingham and Reading. If you have just become one of my students - welcome to the Washminster Blog. One of the objectives of this blog is to explain how the subjects in the law courses relate to what happens in the real world. As someone who works in Parliament (and has worked there for a number of years & has other experience of the academic subjects we will be studying), I can apply theory to practice - and that's what this blog seeks to do.

Of course if you are not one of my OU Students - you are welcome too. I do put in a lot of material related to law, but that is far from the exclusive interest of this blog - as a look back over the last eight years of entries shows.

I like to brighten up posts with pictures, and occasional videos. That may not be possible for the next few days - because of limited access to computing facilities - but there should be some posts reflecting matters in the news.

David

Judicial Review Flowdiagram

The above (which if clicked, becomes full sized) is a flow diagram I have shared with many generations of Constitutional & Administrative Law students. It is a logical pattern for dealing with a practical Judicial Review (UK) problem. If you are studying the topic of the British Judicial Review (it is wholly unlike the American action of the same name) - or you know someone who is - please feel free to use or share.

How Law seeks to tackle human nature

Do send me your comments. Does the existing law do enough to tackle the weaknesses of human nature?

Lord Acton's Dictum

"Power tends to corrupt, and absolute power corrupts absolutely."

The examination of Judicial Review

Today I want to discuss the English remedy of "Judicial Review". It is nothing like Judicial Review in the USA. The latter involves the Court deciding to strike down legislation. Of course in the UK we have "parliamentary sovereignty".

At Law Degree level Judicial Review can be looked at from a number of angles. If you are facing an exam question - make sure that you answer the specific question set, not the question you'd have liked to have been asked. [You'd be surprised that there are some people who will try to answer the question they wanted, rather than the one on the paper - some do so deliberately, because they don't know how to answer the question set - sadly the examiner is not likely to take pity on them. Others have "prepped" a particular answer - one of the dangers to watch out for if you are using model answers or previous exam papers to guide you - and when they identify the JR question imagine that the learned answer is appropriate. READ THE QUESTION. That's what you'll be assessed on. The key is to be flexible - have a sound foundation of knowledge - and deploy that knowledge and understanding to answer whatever question you face.]

One type of question invites reflection on the constitutional issues raised by Judicial Review. How does it fit in with Parliamentary Sovereignty? Is challenging a decision made by the Executive strengthening or undermining Parliament? Have Judges given themselves too much power? Does JR give them an opportunity to impose their own values (or views on what is unreasonable/irrational) over those who are ultimately accountable to parliament? Was JR necessary to fill in a gap in ministerial responsibility to Parliament? How have the courts dealt with decisions based on statute or the Royal Prerogative?

[A list of cases to prepare should include AG v DeKeyser's Royal Hotel Ltd; CCSU v Minister for the Civil Service [the GCHQ case]; and Anisminic Ltd v FCC]

A second type of question asks for a problem to be solved. Someone is upset by a decision. Can that decision be challenged by JR? It's worth going through this logical pattern to solve the problem

Is the decision making body susceptible to JR? (Public Body or Public Law?)

-          Public Body?

-          Carrying out public functions? R v City Panel on Takeovers & Mergers ex p Datafin Ltd [1987] QB 815

-          No private law issues? O’Reilly v Mackman [1983] 2 AC 237

                                                                (* The exclusivity rule*)

 

Does the claimant have ‘Standing’

-          Sufficient interest s31(3)  Senior Courts Act 1981

-          Inland Revenue Commissioners v NFSESB [1982] AC 617

-          R v HM Inspector of Pollution, ex parte Greenpeace Ltd (No. 2) [1994] 4 All ER 329

-          R v SoS for Foreign Affairs ex parte World Development Movement Ltd [1995] 1WLR 386

 

Time Limits?

-          Normal– without (1) undue delay and in any event (2) within 3 months – s31(6) Senior Courts Act 1981 & 55.4 Civil Procedure Rules  [UNLESS]

-          Specified in relevant Statute

Ouster Clause?

 

 

-          Total - Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

-          Partial – (time-limit clauses) – R v SoS for the Environment ex parte Ostler [1977] QB 122

 
Grounds of Challenge?

-          Illegality

-          Irrationality

-          Procedural Impropriety

-          Breach of ECHR Right

 

(make sure you use one of the frequently used ‘labels’ – for example: irrelevant considerations; legitimate expectations; rule against bias; unlawful delegation…)

Remedies?

The Rule of 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.

Allen and Thompson deal with the concept in Chapter three of their Cases and Materials on Constitutional and Administrative Law - 10th Edition



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.

Cases

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 ...)

[W200] - Pepper v Hart; The Practice Statement of 1966; Young v Bristol Aeroplane; R v R (Marital Rape); Donoghue v Stevenson; Costa v ENEL; Factortame (Numbers 1, 2, 5); Van Gend; Von Colson; Foster v British Gas; Marleasing; Francovich;  Dassonville; Cassis de Dijon; Keck;  Defrenne v SABENA; Marshall v Southampton & SW Hampshire AHA; United Brands v Commission...

[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.

Does it matter who we vote for?

I care less and less about which members of the political elite hold key offices. Does it really make any difference as to whether its the Old Etonian Boy's Club (Cameron et al)? privately educated MPs [ALL parties - 54% of Conservative MPs attended fee paying schools, compared with 40% of Liberal Democrat MPs, and 15% of Labour MPs.]? or the extremely wealthy (Essential if you want to be a Senator; Congressman and to an increasing extent an MP or Peer)?

[Well yes, if you believe in a representative democracy]

But my point isn't to decry the "pay to play" principle; or to deny that there are vastly different policies being put forward by the different parties - but to consider the implications of an important point made by Lord Acton in 1887.

 "Power tends to corrupt, and absolute power corrupts absolutely."

Sadly, Acton's words are true. There is a tendency for power to corrupt - perhaps not in its grossest form - but subtly, by desensitising people once they achieve power. Recent history is full of examples - the expenses scandal at Westminster is classic. Decent, hard-working, dedicated people ended up making claims which were outrageous - but their time in power had desensitised them. "Group-think" took over. Benefits became entitlements - and the public purse dipped into in a way they'd have condemned before they entered the Westminster village. We've read in the papers over recent months of how people thrust into power - whether they be performers or DJs; or politicians - abused their positions to claim sexual victims. Senator Fulbright spoke of the "arrogance of power" that can be shown by nations - but it can often be shown by individuals.

One of the defining demands of 'Extreme-Conservatives' is for less regulation. Cast off regulation and everyone would be better off. Their little experiment now has its results - the banking crisis; Enron; the horsemeat scandal...

We can't alter human nature - but we can put in safeguards to lessen the change of power corrupting. The Americans when they drew up their Constitution were keen to insert "checks and balances".

Montesquieu proposed 'separation of powers' as one way to lessen the likelihood of tyranny developing. Even medieval Kings required 'weights and measures' laws to stamp on the 'rip-off merchants.

Requiring greater accountability from those who exercise power is the only way to take on our human failings. Judicial Review in the UK has developed to challenge - not the substance of decisions - but the way they've been taken. A decision made by a public official who has a financial interest in the result of that decision, will be declared invalid. Decisions can be challenged and struck down where there is irrationality; or irrelevant considerations have been taken into account.

At Westminster and in Congress - our representatives can investigate and question how decision makers have acted. The National Audit Office [NAO] and the Government Accountability Office [GAO] can undertake professional, in-depth investigations and report their findings to our representatives. In Britain MPs and Peers can ask oral questions during question times - and grill Ministers in committee.

Freedom of Information laws can also shed sunlight upon decisions made - allowing questions to be asked.

It does matter who we vote for - because our representatives can call decision makers to account. The issue for us as voters is whether our Parliament/Parlement/Congress has the powers; tools and commitment to holding decision makers to account.

Revision for Exams?

Do you have exams coming up in the next few weeks? Washminster may have resources to help your revision.

There are posts specifically on revision
Revision video
Mind Maps
Other resources on Washminster
[These were written some time ago - the principles remain the same - but some comments are quaintly 'out of date']

The search engine can also be useful to find material on specific topics. So there's lots on

LAW
English Legal System (courts; legal personnel; statutory interpretation; precedent...)
UK Constitutional Law (separation of powers; rule of law; parliamentary sovereignty...)
EU Law (Institutions)

POLITICS
British Politics
US Politics
European Politics
French Politics

Have a go - the search engine is on the right, below "Share It". Let me know what you find useful - and anything else (within my area of knowledge!!!) that would be of use.

Send your comments to comments@washminster.com