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Showing posts with label Constitutional Law. Show all posts
Showing posts with label Constitutional Law. Show all posts

Tuesday, 13 June 2017

House of Commons Library - A Resource for Citizens


The House of Commons Library is not just a collection of books. It provides a first class research service to MPs. MPs can seek answers to specific questions - but they also produce a range of non-partisan research briefings on a multitude of subjects.

These papers - ranging from short 'Standard Notes' to lengthy, in depth research papers, are made available to the public on the Parliamentary website - and you can subscribe to email notifications about new publications.

Yesterday, I received a number of emails from the Library announcing publication of a number of papers - across all policy areas. As a lecturer in Constitutional Law, I have recommended many of their papers which explain the workings of our Constitution and Parliament. As a researcher, House of Commons Library Papers have provided useful background information - and the starting point for further research. As someone with specific policy interests - they are invaluable for keeping myself informed about the issues.



Do visit http://www.parliament.uk/mps-lords-and-offices/offices/commons/commonslibrary/
All their publications are free - and of a very high standard. The page above is easy to use for searching particular issues - and includes a link to sign up for notifications of new (and updated) publications) - https://subscriptions.parliament.uk/accounts/UKPARLIAMENT/subscriber/new?.


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!)

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

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.

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?

Saturday, 21 May 2016

Revision for Constitutional Law - Dicey on Parliamentary Sovereignty

A couple of years ago (doesn't it show!) I recorded three short videos on the subject of Dicey and his explanation of Parliamentary Sovereignty (or 'supremacy').

If you are revising for an exam in which Parliamentary Sovereignty may make an appearance (such as the Open University's W200 or W201 courses - or Constitutional Law at degree level) - these videos may assist your revision.

Please use - or share this post with people who might find it useful. It is also of course relevant to the debate around the EU Referendum.








Wednesday, 11 May 2016

Getting Revision Focused

A starting point in revision is to identify the key topics that need to be covered. 


For W200 Students (or students of English legal System and EU Law)

Below is a MindMap illustrating the key parts of the W200 Understanding Law course. Unit 8, on Scottish Law is not examinable - so I haven't incorporated it.

Once you can visualise the structure of the course - the next task is to draw out the key issues within each major subject. The way that the manuals are structured helps you do that. 

For Example - Units One and Two make up "Introduction to Law
1 Introduction and what is law
2 Terminology and sources of Law

Each unit is subdivided - Unit One -
A General Introduction to the course - no need to revise this
B What is Law?
C The Functions of Law

Note the key themes and further divisions - B1, B2, B3.....
You might want to draw your own MindMap for each Subject and/or Unit.
Briefly summarise the key points as you revise - this involves condensing the information.



(click on the mindmap for the full version)

For W201 Students (or students of UK Constitutional Law; Human Rights & Criminal Law)

Below is a MindMap illustrating the key parts of the W201 The Individual & the State course. 
Once you can visualise the structure of the course - the next task is to draw out the key issues within each major subject. The way that the manuals are structured helps you do that. 

For Example - Units One to Five cover "Constitutional Law"

1 Fundamental Values, constitutions and core constitutional principles
2 The sources of the UK Constitution
3&4 Parliamentary supremacy
5 The institutions of State in the UK

Each unit is subdivided - Unit One -
A Identifying fundamental values
B Constitutions: purpose and classification
C Core constitutional principles (1) Parliamentary supremacy (2) Responsible government
D Core constitutional principles (1) The Rule of Law (2) The Separation of Powers
Note the key themes and further divisions - B1, B2, B3.....




(click on the mindmap for the full version)

Friday, 25 September 2015

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

Tuesday, 1 September 2015

And so back to work....

The summer is over (if you have been in Milton Keynes this last weekend, you'd know how true that is - it has rained, and rained, and rained - and I have been wearing a jumper!). Yesterday was the "Late Summer Bank Holiday", the last Bank Holiday here until Christmas Day.

Next week Parliament returns, and on the following Saturday the result of the Labour Party leadership election will be announced. It's time to put away the summer reading and get back to day to day politics.



Washminster returns - and this is the 2200th post. This blog has been running since March 2007. Do please free to look at some of the previous posts. They can be accessed in date order - or through the search function.

Autumn 2015 looks interesting - in the UK (where the major opposition party chooses a new leader, but faces an uncertain future) - This blog will follow the results - and (as in previous years) report directly from the Labour Party Conference at the end of this month. Parliament will be more closely monitored, as I do further research into the evolution of scrutiny. In the USA the long march to the 2016 elections continues - and who knows what further surprises are in store.


As part of my work, I monitor political stories (particularly relating to the work within legislatures - the UK Parliament; US Congress; French Assemblée nationale and the European Parliament) and teach Constitutional Law. Having twice run for the UK Parliament and once for the European Parliament (and participated in numerous elections - from local councils in the UK to three US Presidential elections) - I maintain a keen interest in the 'nuts and bolts' of elections.


So - whether you are studying Constitutional or EU Law or Political Science - or enjoy viewing politics on a comparative basis - or want to pick up anecdotes about history and politics - do become a regular, and welcome visitor to the Washminster Blog.

...and do tell your friends. Posts you like (or which infuriate you - I love a vigorous debate!) can be posted on Twitter and Facebook.

So here goes for a busy few months!!!!

Thursday, 9 July 2015

Fundamental Constitutional Principles Explained

If you are a law student (or about to study Constitutional Law - perhaps the W201 Open University course, which begins in October), or are interested in the workings of the "constitution" in a country which does not have a "Constitution" in the sense of a single written document - then I recommend looking at the session held yesterday by the House of Lords Constitution Committee. It contains two evidence sessions. The first involved Ministers from the Cabinet Office; the second two members of the UK's Supreme Court. It covers a number of key principles - and discusses them. Any student watching this will gain an important advantage when exams come, and it really was a fascinating session. I lost sleep over it!!!

BBC iPlayer: http://bbc.in/1IKOqQM (available in the UK for 28 days)
Parliament Live: http://goo.gl/FdruzX

Witness(es): Rt Hon. Oliver Letwin MP, Chancellor of the Duchy of Lancaster, and John Penrose MP, Minister for Constitutional Reform, Cabinet Office; Lord Neuberger of Abbotsbury, President, and Baroness Hale of Richmond, Deputy President, The Supreme Court.



Saturday, 25 October 2014

Dicey - Hero or Villan?

This morning I'll be discussing the British doctrine of "Parliamentary Sovereignty" with my Open University W201 class in Oxford. It's an interesting doctrine (some writers refer to it as "Parliamentary Supremacy"). We'll be looking at where the idea came from; what it means; and whether it is valid in the 21st Century.

It's impossible to ignore the contribution of A V Dicey. He was a significant writer on the workings of the British Constitution - but first and foremost a teacher. He knew how to impress an idea on his students minds - and keep it there. Any student of constitutional law would spend their limited time wisely if they searched their textbooks for summaries of key UK doctrines - the Rule of Law; Parliamentary Sovereignty - by Dicey. He recognised the value of "three points". I'll talk to my students this morning about his three points on Parliamentary Sovereignty. I won't even have to glance at my notes. They are instantly memorable.

But was Dicey right? Do his three points accurately represent the doctrine? Is it a useful doctrine anyway? Is it in fact a hindrance to the development of modern constitutional law - and at the heart of Britain's problematic relationship with the EU; and various international treaties that we are subject to?

I personally think it is outdated; and the cause of unnecessary problems - BUT Dicey's three points are an excellent way of explaining - and setting out the grounds for debate. His clarity is useful for revision - and a good framework for undertaking critical analysis.

So over the next few posts I'll use the three points to explain the doctrine.

Tuesday, 14 October 2014

Creating a Constitution



To better understand constitutions, it can be useful to look at a real-life creation of a national constitution.

The classic example is the US Constitution - which was discussed at a convention held in 1787. There is an excellent set of resources at http://teachingamericanhistory.org/convention/. Although it was a closed-door convention (because the view was that deliberation would be enhanced if members felt free to express their honest opinions, rather than be looking over their shoulders to avoid criticism) - James Madison made extensive notes - so we can follow what was said and done. The key issues are also discussed in the Federalist Papers. (Very useful for anyone studying Constitutional Law - not as a description of a constitution - but food for thought about what matters need to be addressed. I'm recommending it to my W201 students!)




A recent C-SPAN programme on James Madison and his role in the creation of the US Constitution can be viewed here.

Friday, 3 October 2014

Monday, 3 February 2014

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.

Thursday, 30 January 2014

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.

Thursday, 16 January 2014

The Role of the Judiciary


The Political & Constitutional Reform Committee of the House of Commons is taking evidence about the likely role the judiciary would play if Britain were to have a Written Constitution.

They have now published the evidence received from Professor John Bell; Dr Patrick O'Brien and Professor Dawn Oliver. (Law students may recognise the names from textbooks and journal articles).

The written and oral evidence - and a link to the video of the session can be found here.

The inquiry itself is worth following - whether you are a citizen or a law student doing Constitutional Law - see the committee's page dedicated to this inquiry.