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.

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!)

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)

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.

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 - which can be accessed here.

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 & 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?

 

Revising for Law Exams?

 

Washminster is written by an Associate Lecturer on the Open University's W200 and W201 Law courses. These cover what more traditional universities may describe as

• English Legal System
• EU Law
• Constitutional & Administrative Law
• Criminal Law

As a result there are a number of posts designed to assist with exam revision in these subjects (and revision techniques generally). Most of these were published in the August/September of each year (immediately preceding the OU exams).

If you are facing exams (Law Degree; Law A-Levels), do feel free either to use the search engine to the right of this post - or browse through the posts in date order (year & month).

Is "good government" possible?

Ronald Reagan once stated (actually I think he kept on saying it!) that "government is not the solution to our problem; government is the problem." It's a view that many people hold today. I have to say right from the start - it is not a view I share.

Yet we hear so much about cost overruns; corruption; blunders; if not sheer incompetence. It's not limited to a particular government; or even system of government - I subscribe to The Guardian (UK); Le Monde (France); New York Times (UK); and "European Voice" (EU). Very different systems are reported upon - but the stories are so familiar.

Is it a question of complexity? Our modern world is so complicated - that it may be impossible for any institutions to attempt to keep everything working at the same time. Some people argue that only unrestricted market forces can bring about the optimum results. Frankly, that seems to me to be complete rubbish. History is full of examples of the follies and disasters brought about by unregulated markets. If you want scandals, swindles; abuse of power - read any economic history. I remember reading Professor Galbraith's argument that modern economic history demonstrates a recurring cycle - scandal & crashes (from the South Sea Bubble to...applying his thesis - the Banking crisis of recent years), followed by government intervention to save the system and regulations to stop the same thing happening again - followed inevitably by demands for the relaxing of regulations - leading to new scandals and crashes. Public officials are (rightly) held to much higher ethical standards than business requires.

Certainly complexity is one of a (series) of problems - but can it explain the role of abuse of power and scandal?

I think that we have to accept the first part of Lord Acton's dictum that "POWER TENDS TO CORRUPT, absolute power corrupts absolutely." There are various ways that systems can seek to temper the downside of Human Nature.

Constitutional Law has its role to play. A constitution can set limits on power, and rules which invalidate actions which breach the Constitution. Most states have a single document which sets out the main rules. However that single document is not the complete statement of constitutional law. The US Constitution has been interpreted and applied by the Courts, particularly the US Supreme Court. Constitutional conventions can exist. Until Franklin Roosevelt ran for a third term it was a convention that Presidents served no more than two terms. He broke it, and a constitutional amendment was subsequently passed. Legal remedies may work (but may not be safe in the hands of clever lawyers), but sometimes other pressures encourage compliance. "Conventions" in the UK play this role - they are not legally enforceable, but constitutional actors regard themselves bound by the convention. They are effective when they mean that the cost of breaking the convention outweighs any short term advantage. The Queen could refuse to give the Royal Assent to a bill passed by Parliament (was she tempted when the Hunting Bill was passed?) - but the cost would be the loss of the unchallenged role that the Crown plays.

Ethics rules can play a role. While we might complain about our current politicians being a bunch of rogues - they are actually 'cleaner' than most generations in history. Many scandals of the last 40 years involve behaviour that, thanks to ethics rules, are forbidden - previously these practices were regarded as normal political behaviour.

"Accountability" is a requirement that can reduce scandal and show up incompetence. There is an important role for investigative committees - in Congress committees play an important role in questioning decisions; and requiring officials and others to justify their actions. Within constraints the Departmental Select Committees in the House of Commons can do the same. They are aided by professional support bodies - the GAO (Government Accountability Office) in the USA and the NAO (National Audit Office) in the UK.

In England MPs and Councillors can ask questions of officials carrying out policies; and the decision makers who have adopted policies - and demand answers. Sometimes the press can play a role in uncovering sharp practices and incompetence. There are also various organisations seeking to hold decision makers to account - such as the USA's Common Cause.

We don't live in a perfect world - and Human Nature can be deeply flawed - but in democracies - where power belongs to its citizens - we each have a responsibility (to ourselves and to others) to see that power is accountable to us.

A Bill of Rights for Britain

For as long as I can remember exams for both UK Constitutional Law & British Politics have often included questions inviting the student to discuss the merits and disadvantages of establishing a Bill of Rights specifically for the UK system. It's a super exam question - because it enables the student to demonstrate their understanding of "rights"; to discuss how far a piece of paper can actually protect them; the relationships between elected legislatures and governments and the Judiciary; and the problems caused for such a Bill due to the doctrine of Parliamentary Sovereignty.

The Political & Constitutional Reform Committee - one of the House of Common's Select Committee has been looking at the issue - and a debate has been held in Westminster Hall. It's worth having a look at the debate - It can be accessed directly here or the PDF of Hansard can be downloaded - You'll find the debate about a third of the way through, starting at Column 216 WH. That can be downloaded from here.

How well do you know your "Human Rights"?

The European Convention on Human Rights has played an important part in the development of the law in England. While that is obviously true since the passing of the Human Rights Act 1998 (full text available here), it had an important influence since it first came into effect. An article on UK Law online - written in 1997 - states:

"The European Convention on Human Rights and Fundamental Freedoms is a treaty signed in 1950 by the then members of the Council of Europe. In this way, it predates the European Communities and Union and arises from a quite different organisation. The two are linked, however, in that adherence to the Convention is now effectively a condition of membership of the EU. Additionally, the European Court of Justice refers to the Convention which influences its decisions, even though the EU is not a member of the Convention. Note that the European Court of Human Rights (described below) is not the same as the European Court of Justice. The judges are different and one sits in Strasbourg, the other on Luxembourg.

 

The UK was a founding member of the Convention and was very influential in its design. It was amongst the first states to ratify the treaty. It has allowed individuals to make complaints to the European Commission on Human Rights since 1966. The influence of the Convention has been growing in the UK in the past decade or so. (1980s-1990s) This is partly because the European Court of Human Rights has become a more energetic body...."

It is worth looking at the ECHR and identifying the specific rights arising from each article. The Key Section is 'Section 1 - Rights and Freedoms' which includes Articles 2-18. If you are revising for an exam in Constitutional & Administrative Law; Human Rights Law, or the Open University's W201 "The Individual and the State" - it might be worth drawing up a table (Spreadsheets like Excel are so useful for this purpose) setting out for each Article - the rights (brief phrase - then description); any limitations; key cases (distinguish those from the European Court of Human Rights; and cases decided in the English courts). Textbooks or course manuals are a great help here - they highlight the key points.

Could you give a brief talk on the subject matter of each right? (You might be able to persuade a fellow student; or a partner or even your cat - to listen to it. Failing that rehearse the 'talk' as you go for a walk - exercise AIDS revision).

It's also important to do a similar table and talk for key provisions of the Human Rights Act 1998.

Finally, be prepared to discuss the value (or otherwise) of the Human Rights Act & the ECHR. Prepare a briefing paper for yourself.

You might find the following briefing papers from the House of Commons Library useful
Report of the Commission on a Bill of Rights
UK Cases at the European Court of Human Rights since 1975
EU membership and ECHR
Deportation of individuals who may face a risk of torture