OTHM Level 5 extended diploma in law Unit Public Law Assignment Answer

OTHM Level 5 Extended Diploma in Law

Unit Public Law Aim

The aim of this unit is to educate learners about the nature and the purpose of constitutions, both written and unwritten. Separation of powers will be a theme of the unit, considering the relationship between the legislative, executive and judicial arms of the state. A discussion of the monarchy will also be included. Learners will be made aware of the powers of parliament, the checks and balances of power through an impartial and non-political judiciary and its judicial review.

Special Note:

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LO1. Understand the nature of constitutions and the separation of powers.

AC 1.1 Describe the nature and purpose of written and unwritten constitutions.

Answer:

A constitution is a body of fundamental rules, principles and laws which define the way in which a country is being run. It establishes the authority and functions of government bodies, governs the relationship between the government and the people, and outlines how political power can be exercised. A constitution provides the basic structure of a country's laws and institutions.

Nature of Written Constitutions

Written constitution is a single document with the fundamental rules in the constitution of a state. The United States and India are examples of nations that have constitution that outlines the roles of government, citizen rights, and how to change provisions of the constitution. Because written constitutions are clear and accessible, citizens and public officials can clearly understand which rules of the constitution apply to the State. They also contribute to the reduction of government power by setting limits on the areas of state authority and responsibility.

Nature of Unwritten Constitutions

Unwritten or uncodified constitution does not exist in one document. However, it comes from several sources, such as statute, the common law, constitutional practice and decisions and writings by others. The constitution in the United Kingdom is not codified. The key constitutional sources are the Magna Carta 1215, the Bill of Rights 1689, the Human Rights Act 1998 and judicial rulings which have helped to shape the development of constitutional values over time.

Purpose of written and Unwritten constitutions.

Both, written and unwritten constitution serve as a means of creating a system of government, distributing power between institutions, and safeguarding individual rights and political stability. They also hold the government bodies accountable, and make sure that government functions within the law. Written constitution gives more certainty, legal clarity but unwritten gives flexibility and changing constitution according to political and social development is easier.

AC 1.2 Analyse various types of constitution and constitutional conventions.

Answer:

Compare Codified and Uncodified Constitutions.

There are several ways of dividing the constitutions; one is that between codified and uncodified constitutions. A written constitution provides that constitutions are established in a single written document. Examples are the constitutions of the United States and France. These constitutions clearly define governmental powers and citizens' rights and constitutional processes. The primary benefit of these is there legal security, but can be quite hard to change if things change in society and politics.

Uncodified constitutions, like the constitution of the United Kingdom, evolve and are based on a number of sources. They are flexible enough to enable constitutional reforms to be made more readily by legislation and political practice. But the lack of one constitution could lead to confusion about constitutional values and the breadth of constitutional safeguards.

Constitutions can be either rigid or flexible.

One other distinction is made between rigid and flexible constitutions. An amendment process is required to alter the rigid constitution, and usually involves supermajorities or referendums. For instance, the Congress and the states must approve any changes to the Constitution of the United States.
A constitution, on the other hand, that is flexible can be changed by simple laws. The constitution is flexible because the rules of the constitution can be changed by Parliament in ordinary Acts of Parliament. This flexibility helps the constitution to evolve more easily in response to changing political and social circumstances.

Constitutional Conventions

Constitutional conventions refer to rules that influence the behaviour of political institutions and actors, but which are not legally binding. They are not legally binding but are followed in general because they contribute to democratic government and constitutional stability.

Examples of constitutional conventions include:

• Members of Parliament pass Bills which are then granted Royal Assent by the Monarch.
• The Prime Minister as the head of the majority government in the House of Commons.
• Collective Ministerial Responsibility which calls on the ministers to support the decisions of the government publicly.
• Ministerial responsibility: Ministers to be responsible for what they do in their departments.

Importance of Constitutional Conventions

Constitutional conventions are important within the UK constitution because they help to fill the gaps where there are no legal rules. They help ensure the smooth operation of government, promote accountability and maintain democratic principles. Constitutional conventions would be hard to function without as many parts of the constitutional system of the UK.

AC 1.3 Explain the separation of powers.

Answer:

The separation of powers is a principle of Constitutions that allocates governmental powers to various institutions to avoid the accumulation of power in one. Montesquieu created the doctrine that says liberty is best safeguarded when the legislative, executive and judicial powers are separated into different institutions.
Legislative Branch: Laws are created by the legislative branch. This function is carried out in the United Kingdom by Parliament composed of the House of Commons, the House of Lords and the Monarch. Parliament considers and discusses Bills, reviews the government's policies and makes laws to control society.

Executive Branch: Executive branch: 

Carries out the law and conducts day-to-day business of the country. It comprises of the Prime Minister, Cabinet ministers and government departments. The executive formulates policies, recommends legislation and helps to ensure that Parliament-adopted laws are implemented.
Judicial Branch: Judiciary's task is to interpret and apply the law. Judges help to settle disputes, uphold just rule of law, and ensure fair and independent administration of justice for people. The judiciary also has the power to check the activities of public bodies and make sure they are within the law.

UK: Separation of powers

There is no hard and fast division between the powers in the United Kingdom. Lack of separation between the two arms of government is also a characteristic that is shared, since government ministers are usually members of Parliament. This implies that those who make laws have their own role to play in their implementation as well.

The judiciary, however, are largely independent from Parliament and the government. Judicial independence was enhanced by the Constitutional Reform Act 2005 which established the UK Supreme Court and detached it from the House of Lords. This reform eliminated the conflict between the powers of the judiciary and the legislature and strengthened the rule of impartiality and non-partisanship among judges.

The separation of powers is crucial to a democracy.

Separation of powers is significant because it does not allow abuse of power, fosters accountability and ensures individual rights. The doctrine establishes the separation of powers between the branches of government, which helps prevent the consolidation of power in any one branch. There is no complete separation within the UK constitution but the principle is integral to the UK's constitutional structure.

LO 2. Understand Parliamentary Powers.

AC 2.1. Analyse the relationship between the two houses of UK Parliament.

Answer:

The United Kingdom Parliament is made up of two houses: the House of Commons and the House of Lords. They work together to do the work of the Legislature, to review and oversee Government activity, and to help shape public policy. Both Houses are involved in the legislative process, but they have differing roles, powers and levels of authority.

Role of House of Commons

The House of Commons is the elected house of Parliament which is considered the main body of Parliament. MPs are elected by the public to represent a constituency across the UK. The basic functions of the Commons are to debate legislation, approve taxation and hold the Government to account.

The House of Commons has more political legitimacy than the House of Lords since it is directly elected. Most government ministers are members of the Commons, so that he has a strong influence within the constitutional system.

Role of House Lords

The House of Lords is the second house of Parliament that is not elected. It is comprised of life peers, hereditary peers and bishops. It provides a scrutiny and review of bills that are introduced in the House of Commons, and can amend the bills.

The Lords may be specialists within fields like law, business, education and public administration. This know-how enables them to scrutinise legislation and make amendments to proposed laws which can enhance the quality of the legislation.

Relationship Between the Two Houses

Cooperation and scrutiny between the Commons and the Lords is an integral part of their relationship. The passing of bills in the two Houses is normally required to be passed in both Houses before receiving Royal Assent. The House of Lords has limited powers and can debate and propose amendments to legislation and delay Bills.

The Parliament Acts 1911 and 1949 greatly diminished the power of the Lords to stop bills. These acts were passed to make the House of Commons supreme, by enabling some Bills to come in to law without the consent of the House of Lords.

Analysis of the Relationship.

The link between the two Houses represents a balance between popular authority and parliamentary knowledge. The Commons are meant to reflect the will of the people, and the Lords are meant to be a place for detail scrutiny and revision. While there may be disagreements, the elected House, as determined by the constitution, will prevail at the end of the day. This is to encourage accountability and ensure effective legislative monitoring.

AC 2.2 Describe the relationship between parliament and government.

Answer:

The United Kingdom differs from a system with a “pure” separation of powers, in that the executive and legislative powers are tightly linked. This is sometimes referred to as a merger of powers.

Formation of Government

Parliament is the source of the Government. The Prime Minister is the leader of the political party that has a majority in the House of Commons. In addition most Cabinet ministers are also other government ministers in the House of Commons or the House of Lords.

This close link leads to the fact that legislators are often the ones executing the legislation.

Parliament's role in challenging the Government.

The Government is elected by Parliament, but Parliament has an important scrutiny role. MPs and members of the House of Lords have the right to question Ministers, to debate, to investigate committees and to scrutinise Government policies.
The accountability of ministers to Parliament is sustained by other mechanisms, such as PMQ and the Select Committees.

Parliament is under the government.

In practice the Government has a considerable influence over Parliament. Ministers have a high control over the legislative agenda and party discipline makes MPs keen to back government ideas.

Governments with a strong parliamentary majority can pass legislation with minimal opposition. Some have been inclined to believe that the executive is able to dominate Parliament because of this.

The relationship is of constitutional importance.

Although there are concerns about executive dominance, the relationship between Parliament and Government is still of key importance to the constitutional structure of the UK. Parliament is democratic and accountable, and the Government is the leader and also implements policies. They work together and serve the effective operation of representative democracy.

AC 2.3 Evaluate the Concept of Parliamentary Sovereignty.

Answer:

The principle of Parliamentary sovereignty is the one most considered as the most important principle of the UK constitution. Constitutional expert A. V. Dicey said that Parliament can make or break any law and no man or body can overrule or cancel an Act of Parliament.

The UK has traditionally had a concept of Parliament as the heart of the UK constitution.

Traditional View of Sovereignty

The conventional doctrine gives Parliament unlimited powers to make laws. Acts of Parliament must be obeyed, whether or not their provisions are specific, and no future Parliament can enact acts binding on a past Parliament.

The principle guarantees that in the state the power of law-making goes back to the elected representatives.

Factors Limiting Parliamentary Sovereignty

European Union Membership

The European Union was a huge presence prior to Brexit, influencing the effective functioning of parliamentary sovereignty. The European Communities Act 1972 integrated EU law into the UK law and could therefore override competing UK legislation.

In the case of Factortame Ltd v Secretary of State for Transport [1990] it was established that UK courts can set aside national law if it was inconsistent with European law.

Human Rights Act 1998

The Human Rights Act 1998 added further restrictions to the constitution. Courts have the power to issue a declaration of incompatibility in cases where there is a conflict between rights guaranteed by the European Convention on Human Rights and legislation.

This places pressure on Parliament to change laws which violate fundamental rights.

Devolution

In addition devolved governments in Scotland Wales and Northern Ireland have had an impact on parliamentary sovereignty. Although Parliament is constitutionally sovereign, there are constitutional conventions, such as the Sewel Convention, which restrain Westminster from acting on devolved matters without the consent of the devolved legislatures.

The Rule of Law

Increasingly, the rule of law has become recognized as a basic constitutional principle. It is a principle that calls for all public authorities to act within the laws and that governmental power is used justly and legally.

The rule of law is a significant constraint on the command of parliamentarians, according to many constitutional experts.

The Jackson v Attorney General Decision and its Impact.

In the case of R (Jackson) v Attorney General [2005] UKHL 56, it was the validity of a piece of legislation passed under the Parliament Acts procedure that was in question. The House of Lords approved, but a number of Judges had important remarks to make on Parliamentary Sovereignty.

Parliamentary sovereignty is no longer absolute and there may be a rule of law that is the final deciding factor in the constitution, Lord Hope said. Lord Steyn also raised doubts on the use of parliamentary sovereignty as the prevailing principle in all circumstances.

These comments mark an emerging awareness that the UK constitution is not only subject to the rule of parliament, but also other constitutional principles.
The effect of Brexit on Parliamentary sovereignty

Justifying restoration of sovereignty.

The European Communities Act 1972 was repealed following Brexit in the European Union (Withdrawal) Act 2018. Consequently, EU law now does not have supremacy in the UK legal system.

This, supporters say, brought back the supremacy of Parliament as it regained the complete power of making domestic laws with no influence from European institutions.

Arguments That Sovereignty Is Not Absolute

Although Brexit will have come and gone, a few constitutional safeguards have survived. The rule of law, judicial review, human rights protections and devolution arrangements and constitutional conventions remain part of the influence on the exercise of parliamentary authority.

These factors are not legally overhanging Parliament, but they are practical and constitutional restraints.

Evaluation of Parliamentary Sovereignty following Brexit.

Brexit definitely reinforced parliamentary sovereignty by taking away the supremacy of EU law. Parliament has now more legislative autonomy than it had when it was part of the EU.

LO 3 Understand the role of Judicial Review.

AC 3.1 Explain the role of the Judiciary.

Answer:

Judiciary's function is to interpret or apply the law without the interference of Parliament or Government. Courts settle disputes, clarify the laws and make sure that justice is fairly given. Judges are expected to be impartial and decisions are expected to be made in strict accordance with legal principles, and not on political grounds.

Ensuring Rights and the Rule of Law

One of the functions of the judiciary is to uphold individual rights and the rule of law. The courts provide that the law applies to everyone, including to the government. Through the Human Rights Act 1998, judges also play an important role in safeguarding fundamental rights and freedoms.

AC 3.2 Analyse how the judiciary upholds the separation of powers.

Answer:

1. Judicial Independence: Separation of Powers means that Judiciary must be independent of both Legislature and Executive. Judicial independence means that judges decide without political influence and in a fair and public way, which fosters the credibility and trust of the judicial system.
   
   
2. Constitutional Reform Act 2005: The Constitutional Reform Act 2005 has enhanced judicial independence: the Lord Chancellor has been reformed and the UK Supreme Court has been introduced in 2009. Prior to these reforms, senior judges were appointed to the House of Lords, which resulted in a conflict of functions between the House of Lords and the court.
   
   
3. Upholding Constitutional Balance: The judiciary helps to uphold the principle of separation of powers by keeping public powers within the bounds of the law. Courts can review actions of governmental bodies by judicial review and stop any abuses of power. This is a way of ensuring a balance between the powers of the different branches of government, and of ensuring democratic accountability.

AC 3.3 Assess the role of the judiciary as a means of controlling government bodies. 

Answer:

Judicial Review is a form of control.

Judicial review is one of the most significant methods the judiciary has to help govern government bodies. The power of judicial review allows courts to determine if public officials have acted in a lawful, rational and just manner. Safeguards public bodies against undue lack of accountability for decisions.

Important Case Law

In the GCHQ case (Council of Civil Service Unions v Minister for the Civil Service, 1985), it was confirmed that exercises of executive power can be subject to judicial review. This paved the way for the Government to be challenged before the courts.

The other notable case is R (Miller) v Prime Minister (2019) in which the Supreme Court found the prorogation of Parliament to be illegal. The ruling was a sign of the court's willingness to challenge executive decisions and uphold constitutional values.

Restriction of judicial authority.

The judiciary has the authority to review decisions made by the government, but it does not have the authority to make decisions for the government. Courts are interested in the laws of decisions and not their political appeal. This caps the interference of judges on the democratic decision-making process without freeing public bodies from accountability.

AC 3.4 Analyse the nature and purpose of judicial review.

Answer: 

Judicial review is the legal process whereby judicial bodies evaluate the legality of actions of public bodies. It can help individuals and organisations to contest actions that are outside their legal authority or that are not carried out in accordance with appropriate procedures.

Nature of Judicial Review

Judicial review does not challenge the outcome of the decision, but rather the process of making the decision. The court will determine if the authority was empowered to take the action, whether the proper procedures were followed and whether the action or decision was made in compliance with the law.
This is not an appeal, which could be an opportunity to re-evaluate the merits of the decision.

Judicial review is a process that serves this purpose.

Judicial review serves primarily to help to ensure that the rule of law is respected and public bodies operate within the law. It enhances accountability, transparency and fairness in public administration. Judicial review also gives people a way to oppose any action the government does that is illegal, and to try to get a lawyer to help them.

Constitutional Importance

Judicial review is a vital part of the UK constitution as it is a check on arbitrary exercise of power. This means that government powers have been kept within the boundaries of the law, thereby increasing the trust and confidence of the public in the legal system and upholding democracy.

AC 3.5 Explain the grounds for judicial review. 

Answer:

• Illegality: The term "illegality" means unlawful action by a public body that is beyond its power or has misapplied the law. Public bodies have to exercise their powers within the limits of the law and if they don't, decisions made by them can be overturned.
  
  
• Irrationality: When the decision is so unreasonable that it is no reasonable authority would have reached it it is said to be irrational, which is also called Wednesbury unreasonableness. This is a limited ground for courts to exercise their jurisdiction, so as not to unnecessarily interfere with administrative decisions.
  
  
• Procedural Impropriety: Procedural impropriety occurs when there has been a failure by the public authority to observe the proper legal procedures, or a violation of the principles of natural justice. Examples include bias, lack of consultation or failure to provide a fair hearing.
  
  
• Legitimate Expectation: Legitimate expectation can arise when a public authority establishes an expectation that a certain procedure or benefit will be offered. If the authority has acted outside that expectation for an inadequate or insufficient reason, then there may be scope for judicial review.
  
  
• Proportionality: The principle of proportionality looks at if the actions of a public body are suitable and fair in relation to a legitimate aim. It is especially relevant in human rights and fundamental freedoms cases.

Assessment of the effectiveness of judicial review.

Accessibility of Judicial Review

Judicial review is an important protection against illegal government action and is accessible but not everyone is able to use it. Costs, complexity and strict time limits in court can make it challenging for individuals to raise a claim. This, in turn, can cause some individuals to not be able to appeal decisions, even when they have a good basis for doing so.

Remedies and Outcomes

If a judicial review claim is successful, a court can give the following remedies: a quashing order, a mandatory order, a prohibiting order, a declaration and an injunction. These remedies enable courts to remedy improper decisions and ensure public bodies adhere to law.

These remedies make judicial review a more effective tool of accountability.

Future Developments

Judicial review has also been developing in tandem with the development of the constitution. The Judicial Review and Courts Act 2022 made procedural improvements without any changes to the supervisory function of courts. A future reform may seek a compromise between governmental efficiency and demands for accountability and individual rights protection.

Overall Effectiveness

Judicial review is one of the most potent ways of keeping public bodies accountable. It upholds the rule of law, stands for individual rights and against the misuse of public power. However, the role of judicial review remains very important in guaranteeing that public authorities act lawfully, fairly and within their powers, despite issues of cost and access.