LEVEL 6 - UNIT 12 – PUBLIC LAW SUGGESTED ANSWERS - JUNE 2016

Note to Candidates and Tutors:

The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the June 2016 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers.

Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination.

SECTION A

Question 1(a)

Meaning of parliamentary sovereignty

The traditional definition of parliamentary sovereignty is that of AV Dicey:

(i) that Parliament can make or unmake any law whatever; (ii) that no other person or body (including the courts) is able to question the validity of an Act of Parliament.

The modern concept of Parliamentary sovereignty can be traced back to the 17th century struggle between the Crown and Parliament for supremacy, culminating in the Bill of Rights 1689. The principle was subsequently accepted by the courts.

The so-called ‘enrolled Act rule’ illustrates the courts’ reluctance to scrutinise primary legislation. In Edinburgh & Dalkeith Railway v Wauchope (1842) the claimant attempted to challenge the validity of an Act, arguing that proper procedures had not been followed; the House of Lords rejected this argument. As Pickin v BRB (1974) shows, the courts cannot ensure that proper parliamentary procedures have actually been observed; all they can do is to check that the Act has been certified by the Clerk of the Parliaments as having been properly passed.

There are many illustrations that support Dicey’s view of Parliament’s unlimited legislative competence. For example, statute may amend the constitution (e.g. Bill of Rights 1689, European Communities Act 1972, Human Rights Act 1998 (‘HRA’) to list just a few constitutionally significant statutes); statute has priority

Page 1 of 17 over international law (Mortensen v Peters (1906)) and may have retrospective effect (Burmah Oil Co v Lord Advocate (1965)).

Conversely, although Parliament remains sovereign, the one thing that it cannot do is to achieve supremacy over subsequent Parliaments; i.e. it cannot bind its successors. A later Parliament may expressly repeal any Act passed by a previous Parliament. Moreover, the courts have adopted the doctrine of implied repeal; where two statutes are inconsistent, the later statute will impliedly repeal the earlier statute insofar as there is inconsistency (Ellen Street Estates v Minister of Health (1934)).

However, in Thoburn v Sunderland City Council (2002) Laws LJ obiter qualified the traditional doctrine by distinguishing between ‘ordinary’ and ‘constitutional’ statutes, such as the European Communities Act 1972, the HRA and the Scotland Act 1998. A constitutional statute is one that governs the legal relationship between citizen and state in some general, overarching manner, or changes the scope of fundamental constitutional rights. In Laws LJ’s view constitutional statutes cannot be impliedly repealed.

Recently, Lord Hope, in the Supreme Court case of H v Lord Advocate (2012), offered support for Thoburn by stating obiter that the Scotland Act could not be impliedly repealed due to its ‘fundamental constitutional nature’. Furthermore, in R (HS2 Action Alliance Ltd) v Secretary of State for Transport (2014), the Supreme Court suggested obiter that there were certain fundamental constitutional principles, whether contained in statute or common law, that Parliament did not intend to override when enacting the European Communities Act 1972. It appears, therefore, that implied repeal may not necessarily apply where there is a conflict between two constitutional statutes.

1(b)

Impact of the HRA

Parliamentary sovereignty is, however, no longer considered to be unqualified, and is subject to certain limitations arising, for example, from the HRA.

The European Convention on Human Rights is an international treaty which guarantees rights such as the right to life, the prohibition of torture, the right to a fair trial, the right to respect for private and family life, freedom of religion, expression and assembly. The HRA incorporates key Convention rights into domestic law. However, the incorporation has been described as ‘soft’ as Parliament was keen to preserve parliamentary sovereignty.

Section 3 obliges the courts to interpret primary and secondary legislation in a way which gives effect to Convention rights, ‘so far as it is possible to do so’. Thus, in Ghaidan v Godin-Mendoza (2004) the House of Lords interpreted a provision in the Rent Act 1977 that protected the original tenant’s surviving spouse as including the tenant’s surviving same-sex partner. Conversely, in Bellinger v Bellinger (2003) the House of Lords held that it could not interpret the words ‘male’ and ‘female’ in the Matrimonial Causes Act 1973 to include post-operative transsexual people as that would have crossed the boundary from interpreting to legislating, which was Parliament’s role; instead the House made a declaration of incompatibility (below). These cases illustrate that, while the courts use s.3 flexibly, they nonetheless respect parliamentary sovereignty.

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If the High Court or above is unable to interpret a statute compatibly with Convention rights, s.4 empowers it to declare the statute to be incompatible with the Convention (a ‘declaration of incompatibility’). Crucially, however, parliamentary sovereignty is maintained as this does not invalidate the legislation: the offending statute remains in force and any declaration of incompatibility does not bind the parties to the action (s.4(6)).

Where a declaration of incompatibility has been made, the government may amend the legislation by using the ‘fast-track’ procedure created by s.10 enabling a Minister to amend the incompatible legislation by making a ‘remedial order’ where there are ‘compelling reasons’ to do so. Alternatively, the government may submit a Bill to Parliament. There is usually political pressure on the government to amend the offending legislation. Accordingly, after Bellinger the law was changed. However, the HRA does not oblige the government to change the law, and if it does not the offending statute will remain in force.

Finally, s.19 obliges ministers introducing a Bill into Parliament to make a statement that the Bill is compatible with Convention rights or that, despite being unable to make such a statement, the government nevertheless wishes to proceed with the Bill. Accordingly, s.19 enables Parliament to enact legislation that violates Convention rights. So the HRA does aim to preserve parliamentary sovereignty.

Although the HRA is a constitutional statute, it can be expressly repealed. Until recently, many commentators thought that political constraints meant that this was unlikely, as the HRA protects fundamental rights. However, it is now Conservative Party policy to repeal it and replace it with a British Bill of Rights, and following the May 2015 election the government is consulting on this possibility.

Question 2(a)

Meaning of royal prerogative

Constitutionally, the royal prerogative encompasses special powers, rights and immunities peculiar to the Crown, deriving historically from the common law and not therefore conferred by Parliament. Dicey identified the royal prerogative as ‘the residue of arbitrary authority which at any given time is legally left in the hands of the Crown’, thereby describing their residual nature and the courts’ role in determining whether a prerogative power claimed actually exists.

Examples of prerogative powers include treaty-making, declarations of war and deployment of the armed forces, the granting of royal assent, the prerogative of mercy and the issuing of passports. While prerogative powers are vested in the Monarch, in practice they are either exercised by the Monarch on the advice of the government or by the government in the Monarch’s name.

2(b)

Relationship between the prerogative and statute

As prerogative powers are effectively exercised by the executive, a key issue is the extent to which they are subject to legal control. Owing to the constitutional doctrine of parliamentary sovereignty, prerogative powers may be modified by statute. Aspects of the prerogative have therefore been expressly abolished by Page 3 of 17 statute. Examples include the Crown Proceedings Act 1947 which altered the immunities of the Crown in relation to civil proceedings (e.g. the Crown’s tortious liability) and the Fixed-term Parliaments Act 2011 which removed the Monarch’s power to dissolve Parliament. Similarly the War Damage Act 1965 altered aspects of the prerogative by removing the government’s obligation to pay compensation where British forces had damaged or destroyed British-owned property in wartime. This Act in effect reversed Burmah Oil v Lord Advocate (1965) where the House of Lords had held that at common law the government was required to pay compensation in those circumstances.

The courts have also upheld the ability of statutes impliedly to curtail aspects of the prerogative. In A-G v De Keyser’s Royal Hotel (1920) the House of Lords held that, where statute gave rights of compensation following requisition of property for government purposes, the use of prerogative powers to requisition without paying compensation was curtailed. This case did not involve an ‘abuse’ of prerogative powers as such, but does show statutory restriction of the use of such powers.

Laker Airways v Department of Trade (1977) confirmed the superiority of statutory powers. The government tried to revoke Laker Airways’ licence to fly to the USA, ignoring statutory procedures and relying instead on the prerogative powers. The court, however, insisted that the government should follow statutory procedures. Moreover, R v Home Secretary, ex p. Fire Brigades Union (1995) shows that prerogative powers could even be curtailed where the relevant statutory provisions (as to criminal injuries compensation) had not yet been brought into force.

However, where no inherent conflict arises between statutory and prerogative powers which cover the same area, the two may co-exist (R v SoS for the Home Dept ex p. Northumbria Police Authority (1988)). The Police Act 1964 gave police authorities the power to issue equipment to police forces. The Home Secretary, however, issued equipment to the police, relying on prerogative powers. The court held that the Police Act did not displace the prerogative power of maintaining the Queen’s peace which authorised the Home Secretary’s actions.

In conclusion, it is clear that Parliament has the ability to control the exercise of the prerogative in any way it wishes and could in theory abolish all prerogative powers, replacing them with statutory ones.

2(c)

Judicial review of the prerogative

Judicial control of prerogative powers has its origins in the Case of Proclamations (1611) in which Lord Coke held that the King had no prerogative power to change the common law or statute, nor to create any new offences. He also held that the King only had those prerogative powers that the law allowed him. The courts have also held that no new prerogative powers can be created, nor can the scope of existing ones be extended (BBC v Johns (1964)). However, the nature of judicial control has developed significantly in the last 30 years. Some of the cases cited in the foregoing section illustrate the role of the courts in identifying the existence and scope of prerogative powers and clarifying their relationship with statutory powers.

However, since the decision of the House of Lords in CCSU v Minister for the Civil Service (1984), the courts have gone further, and are now prepared to review Page 4 of 17 the exercise of prerogative powers. Their Lordships decided that prerogative powers are in principle as amenable to judicial review as statutory powers, although they did state that reviewability would depend on the subject matter or ‘justiciability’ of the powers. Certain areas involving matters of high policy (e.g. foreign policy, control of the armed forces, treaty-making and political prerogatives such as the appointment and dismissal of ministers) would not be appropriate areas for the court to adjudicate upon.

Since CCSU, the courts have been prepared to review the question of renewal of a passport (R v Foreign Secretary, ex p. Everett (1989)) and some aspects of the prerogative of mercy (R v Home Secretary, ex p. Bentley (1994)). Laker Airways (above) also provides a clear example of the unlawful use of prerogative powers. However, in R (CND) v Prime Minister (2002) the CND asked the court to declare that Prime Minister would be acting contrary to international law if he ordered troops to Iraq without a UN Security Council resolution. The court refused to make such a declaration as the international law issue was not justiciable. The courts are reluctant to review decisions of high policy in the areas of peace and war and foreign relations; these are matters of political judgment for which ministers are answerable to Parliament.

The courts will uphold the will of Parliament where a statute conflicts with a prerogative power and will now review the exercise of the prerogative, but not it seems in those areas of high policy that they consider still fall solely within the remit of the executive branch of the state.

Question 3

In a federal state such as the USA, the constitution allocates powers between the federal government (the government of the country as a whole) and the governments of the individual states. Each level of government is protected from intervention by the other. So in the USA there are political powers reserved to state governments, e.g. local planning matters, and the federal government cannot legislate in those areas. In the USA there is considerable case law, however, concerning the demarcation between state and federal powers.

In a unitary state, the national legislature can legislate for any part of the country, on any subject. There may be subordinate units, e.g. provincial governments, but ultimate power is held by the centre, which can override the subordinate units. The United Kingdom has traditionally been regarded as a unitary state, even though it comprises four countries, because the Westminster Parliament has been the sovereign legislature for all four countries.

The United Kingdom consists of four countries, England, Wales, Scotland and Northern Ireland. Wales has been subject to English law since 1284 and was united with England in 1536. Scotland was a separate country until 1707, although since 1603 it had shared the same monarch as England and Wales. The Acts of Union, passed by the English and Scottish Parliaments in 1707, led to the creation of the United Kingdom of Great Britain and a single Parliament in Westminster. Although the Crown claimed authority over Ireland since 1541, it was not until the Acts of Union 1800 that Great Britain and Ireland were united. The Irish Parliament was abolished with the Westminster Parliament assuming authority over all four countries. In 1922 the southern counties of Ireland broke away and subsequently became the Republic of Ireland.

The Scotland Act 1998 created a Scottish Parliament and gave it the power to legislate on a wide range of issues (‘devolved matters’). The Scotland Act 2012 Page 5 of 17 extended these powers. Devolved matters are all issues other than those specifically reserved to the UK Parliament (‘reserved matters’). Devolved matters include responsibility for health, education, civil and criminal law, and local government. Reserved matters include responsibility for the constitution, foreign policy and defence; generally reserved matters are those which have a UK-wide or international impact. This approach resembles how a federal constitution allocates functions between the federal legislature and state legislatures. However, there is a crucial distinction as the UK Parliament legally retains the power to legislate on devolved matters even if opposed by the Scottish Parliament (s.28(7) Scotland Act 1998). Nonetheless, under the Sewel Convention the Westminster Parliament will not normally legislate on devolved matters without the Scottish Parliament’s consent. In reality it is highly improbable that the UK Parliament would defy the Sewel Convention and legislate for Scotland without Scottish consent.

The Scotland Act 2012 gives the Scottish Parliament the power to set a Scottish rate of income tax and to levy certain other taxes. Moreover, following the independence referendum the Scottish Parliament is to receive further tax- raising and other powers, as envisaged by the Scotland Bill 2015-16. The Bill also declares that a Scottish Parliament and Government are considered permanent parts of the UK’s constitutional arrangements and enshrines the Sewel Convention.

The Government of Wales Acts 1998 and 2006 introduced a ministerial system similar to the Scottish model by establishing a Welsh Government accountable to the National Assembly of Wales which now has full power to legislate within the fields devolved to it. The Welsh Assembly’s areas of competence, although wide- ranging, are not as extensive as the Scottish Parliament’s. Unlike the Scottish Parliament which may legislate on any matter except for reserved matters, the Welsh Assembly’s powers are limited to those expressly conferred on it.

Following the peace agreement in Northern Ireland, the Northern Ireland Act 1998 devolved legislative powers to a new Northern Ireland Assembly and created a ‘power-sharing executive’. Difficulties with the peace process have caused the suspension of the Assembly on some occasions, during which its powers reverted to the Northern Ireland Office. However, following negotiations between the main political parties, the power-sharing executive was restored in 2007 although it is currently under threat. The Assembly may legislate on all matters (‘transferred matters’) save for ‘excepted matters’ (equivalent to Scottish reserved matters) and ‘reserved matters’ (where legislative authority rests with Westminster, but the Assembly can legislate with the Secretary of State’s consent). Overall, its powers are less extensive than the Scottish Parliament’s.

The political strength of devolution means that arguably on a political level there may be a tendency towards federalism. However, there are some factors which suggest the UK is not a genuine federal state. In particular the UK Parliament remains sovereign and can legislate even on devolved matters for Scotland, Wales and Northern Ireland. By contrast, a federal legislature would not have the constitutional power to legislate in the fields allocated to the states. However, by codifying the Sewel Convention, the UK Parliament is indicating that it is very unlikely to use its sovereignty to override the Scottish Parliament.

A second crucial difference between the UK and federal states is that England, by far the largest country in the Union, is outside the devolution arrangements. Scotland, Wales and Northern Ireland each have two governments and Page 6 of 17 legislatures, the UK’s and their own, but England has only one – the UK Parliament and UK Government. Even if the government’s plans for some form of English votes for English laws proceed, this will remain the case.

A third crucial difference is that the nature of devolved powers varies between the different countries. Both Scotland and Northern Ireland may legislate on any matter save those expressly excepted or reserved to Westminster. Conversely Wales has legislative powers only in those areas where powers have been expressly conferred on its Assembly. The Scottish Parliament has certain tax- raising powers, but the Welsh and Northern Ireland Assemblies do not.

In the USA, there is a generally uniform pattern in the constitutional arrangements between the states and the federal government. In contrast, devolution in the UK is asymmetric and so lacks the coherence needed for a truly ‘federal state’.

Question 4

Freedom of information involves the ability of citizens to obtain state information even from a reluctant source. The aim of the Freedom of Information Act 2000 (‘the FOIA’) is to provide a general right of public access to information held by public bodies. The key principle underlying the FOIA is that the public has a right to know what public bodies are doing, unless there are good reasons for them not to. The Information Commissioner is responsible for enforcing the FOIA. The FOIA came into force in 2005. Notwithstanding the FOIA’s aims, there have been criticisms that the large number of exclusions that it contains limits its efficacy.

The FOIA applies only to ‘public authorities’ and not to private bodies. Section 3 defines public authorities widely, and they include government departments, local authorities and other public bodies such as Transport for London, National Park authorities, maintained schools and most universities. Under s.5, the Secretary of State may designate private organisations as public authorities if they exercise public functions (e.g. privatised utilities) or are providing a public service that has been contracted out by a public body. Certain bodies are only covered for some of the information they hold; e.g. GPs and dentists need only provide information about their NHS work and the public service broadcasters (BBC, Channel 4 and the Welsh channel S4C) do not need to provide information about journalistic, literary or artistic activities. In BBC v Silver (2012) the Supreme Court interpreted the journalistic exemption widely as applying to material that was to any significant degree held for the purposes of journalism, even if it also was held for other purposes.

Section 1(1) provides that any person making a request in writing to a public authority for information must, first, be informed whether the authority holds that information and secondly, be given that information unless it is falls within one of a number of exemptions. Public authorities are not obliged to disclose exempt information. The FOIA not only gives individuals access to information relating to them personally, such as tax and medical records, but also grants them the right to obtain information on other, general matters from public authorities.

At first sight, the FOIA grants the public wide-ranging rights of access to information. However, these rights may not be as extensive as they seem as the FOIA sets out 23 exemptions where the right is excluded or qualified. These exemptions fall into two categories – ‘absolute’ or ‘class ‘ exemptions where all information of a particular type is granted absolute protection from disclosure, Page 7 of 17 and ‘qualified’ exemptions where the information is protected if the public authority concerned, having applied a ‘public interest’ test, concludes that disclosure would not be in the public interest.

Class exemptions include information supplied by, or relating to, bodies dealing with security matters, court records, information whose disclosure would infringe parliamentary privilege and information whose disclosure would constitute a breach of confidence. If material falls within a class exemption, then the public authority is not obliged to disclose it, even if its disclosure would be in the public interest. The existence of class exemptions has therefore been criticised on the basis that it denies the public access to information whose disclosure would not harm the public interest, or might indeed benefit it.

Where qualified exemptions are concerned, a two-stage analysis is required. The first stage is to determine whether the information falls into one of the relevant categories. These include information concerning national security, defence, international relations, relations between the Westminster and devolved governments, the economy and the formulation of government policy. The second stage is to assess whether the public interest in maintaining the exemption outweighs the public interest in disclosing it.

Where an individual makes an FOI request, then the public authority must confirm or deny within 20 days whether it holds the information. If it does it should disclose the information unless it considers it exempt. If the authority persists in its refusal, then the individual can apply to the Information Commissioner for a decision whether a request for information made by them to a public authority has been dealt with in accordance with the FOIA’s requirements. The Commissioner may serve upon a reluctant authority an enforcement notice requiring it to disclose the information. Either party may appeal against the Commissioner’s decision to the First-tier Tribunal (Information Services) and ultimately to the Supreme Court.

Where the Commissioner orders disclosure of material on public interest grounds, controversially a Cabinet minister may override the Commissioner by issuing a certificate that the public authority does not have to disclose the material if he has ‘reasonable grounds’ for considering that non-disclosure would not be unlawful. The ministerial veto does appear to undermine the effectiveness of the FOIA by giving the government the final say concerning the release of information. However, the ministerial veto is subject to judicial review. In Evans v Attorney General (2015) the Supreme Court quashed the Attorney-General’s certificate overriding a decision of the Upper Tribunal which had ordered the disclosure of correspondence between Prince Charles and government departments. The government cannot override FOI decisions made by the courts simply because it believes they are wrong; it must have very strong reasons. (In response to the litigation, the FOIA has been amended to make communications with the heir to the throne absolutely immune.)

The FOIA does place many restrictions on the basic right of access. Public authorities are able to refuse to disclose certain categories of information even where disclosure would be in the public interest. Conversely, it is no longer up to the government to decide whether to release many categories of information. Where the public interest test applies, an independent body, the Information Commissioner, decides whether a refusal to disclose is justifiable. The courts are also willing to subject the ministerial veto to intense scrutiny. However, the existence of absolute exemptions does limit the FOIA’s effectiveness, and these could be reduced without any obvious harm to the public interest. Page 8 of 17

SECTION B

Question 1

Legality of police action

(i) Stop and Search

PC Sharma may detain Meredith without charge and search her for a prohibited article as she is in a public place (Police and Criminal Evidence Act 1984 (‘PACE’), s.1(2)).

Section 1(7) includes ‘offensive weapons’ in the definition of ‘prohibited article’, while s.1(9) defines ‘offensive weapon’ as any article made or adapted for use for causing injury to persons, or intended by the person having it with him for such use; this will cover the kitchen knife. PC Sharma must have ‘reasonable grounds’ for suspecting that he will find offensive weapons (s.1(3)). He has such grounds, as Andrew has been stabbed in the leg, Meredith matches the assailant’s description and PC Sharma sees her in the nearby park into which the assailant ran. There are also blood stains on her T-shirt. Thus, PC Sharma’s reasonable suspicion is based on an objective assessment of the circumstances (Code A). PC Sharma is empowered to use ‘reasonable force’ if necessary when exercising the powers conferred upon the police under PACE, so he is able to grab hold of Meredith to carry out the search (s.117 PACE).

He may seize any article he finds if he has reasonable grounds for believing it to be prohibited (s.1(6)). Clearly there are reasonable grounds for believing that the blood-stained kitchen knife is a prohibited article.

PC Sharma must also comply with the safeguards contained in s.2 by taking reasonable steps before searching Meredith to inform her of his identity and the reasons for the search. In Osman v DPP (1999) the court applied s.2 strictly, so PC Sharma has breached s.2, as he has made no attempt to comply with the s.2 safeguards.

(ii) Arrest in pub

Section 17(1) PACE gives PC Sharma the power to enter premises to arrest a person for an indictable offence. He therefore has the power to enter the pub to arrest Meredith for assault with intent to cause grievous bodily harm (‘GBH’), as that is an indictable offence. Accordingly, he can ignore the employee.

Additionally, for the arrest to be lawful, PC Sharma must have the power to arrest Meredith, the arrest must be necessary and must be carried out correctly.

Power of arrest: The offence of assault with intent to cause GBH has been committed, and under s.24(3) PC Sharma has the power to arrest anyone whom he has ‘reasonable grounds’ for suspecting to be guilty of it; PC Sharma has reasonable grounds – Meredith matches the assailant’s description and she was found with a blood-stained T-shirt in a nearby park with a blood-stained kitchen knife. (Alternatively PC Sharma could rely on s.24(2), as he has at least reasonable grounds for suspecting that an offence has been committed.)

Necessity: For the arrest to be lawful, at least one of the reasons in s.24(5) must be met. On the facts, the arrest is necessary to allow the prompt and effective

Page 9 of 17 investigation of the offence (s.24(5)(e) and to prevent Meredith from disappearing (24(5)(f)).

Manner of arrest: Section 28 - PC Sharma must tell Meredith that she is under arrest and give the grounds for the arrest, even if obvious (s.28(2) and (4)). The fact of the arrest should be given as soon as practicable after the arrest (s.28(1)) and the grounds should be given at the time of or as soon as practicable after the arrest (s28(3)). In Abbassy v MPC (1990) and Taylor v CC of Thames Valley (2004) the courts held that the police did not have to use precise language to comply with s.28, provided they conveyed the essential information to the arrested person in a simple, non-technical way. However, PC Sharma has not done this. Moreover, there is no reason why PC Sharma could not have given this information immediately; the arrest is therefore unlawful. It only becomes lawful when Sergeant Grey informs Meredith she is under arrest for assault with intent to cause GBH.

(iii) Detention at the police station

PC Sharma complies with s.30 by taking Meredith to the police station as soon as practicable after the arrest. Sergeant Grey belatedly complies with ss.28(2) and (4) by giving the fact of, and the grounds for, the arrest; accordingly the arrest is now lawful. Sergeant Grey must comply with s.37. In order to do so, he must have reasonable grounds for believing that detention without charge is necessary to obtain evidence by questioning (s.37(2)).

(iv) Search of flat

Section 18 contains provisions governing entry and search after a suspect is arrested. It permits entry to premises occupied or controlled by a person under arrest for an indictable offence, provided there are reasonable grounds to suspect that there is evidence in those premises which relates to the offence for which he is arrested or to a connected or similar indictable offence. The search must also be authorised in writing by an inspector or above (s.18(4)).

Meredith has been arrested for an indictable offence, assault with intent to cause GBH. However, the power to search only arises if the police have grounds for reasonable suspicion that there is evidence on the premises relating to the stabbing. Unless they do so, their search of Meredith’s flat is illegal. Also, an inspector has not provided written authorisation.

(v) Seizure of handbags

Provided that the search is lawful, under s.19 PC Thomas may seize anything which is in the flat if she has reasonable grounds for believing that it has been obtained in consequence of the commission of an offence and that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed. As the search is probably unlawful, the s.19 power does not arise. But even if it did, it is unlikely that PC Thomas had reasonable grounds for belief. Her belief that the handbags are probably stolen is based on a stereotypical image of the type of person that Meredith is and this cannot not form the basis of reasonable belief.

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Question 2(a)

The Capital Punishment (Restoration) Bill 2016

For the Bill to become an Act it will need the approval of the House of Lords and royal assent by the Queen. In legal theory both could block the passage of the Bill.

The Bill will have to go through three readings in the House of Lords, as well as a committee stage and report stage.

If the House of Lords were to reject the Bill and the government used the Parliament Acts 1911 and 1949, the House of Commons could override the House of Lords. All the Lords can do now is to delay a Bill being passed for up to one year.

As regards royal assent, there is a constitutional convention that the Monarch always gives royal assent to any Bill which has been passed by Parliament. The Queen is therefore very unlikely to refuse her assent, as to do so would probably provoke a constitutional crisis.

2(b) Mark’s defamation action

Mark’s proposed defamation action raises issues of parliamentary privilege whereby members of both Houses of Parliament are guaranteed freedom of speech, i.e. the right to speak freely in Parliament without being threatened with legal action, whether civil or criminal. Freedom of speech is guaranteed by Article 9 of the Bill of Rights 1689 which states that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

Freedom of speech is restricted to ‘proceedings in Parliament’. What constitutes a ‘proceeding in Parliament’ is ultimately a matter for the courts and not for Parliament to decide. It clearly includes parliamentary debates, so what Lady Urquhart said in the debate is unquestionably privileged.

In relation to the Committee for Privileges and Conduct, although the precise scope of proceedings in Parliament is uncertain, undoubtedly, in addition to anything said in parliamentary debates, anything said in committees or reports of either House will be protected.

(Until recently s.13 of the Defamation Act 1996 enabled a member to waive privilege for the purpose of any defamation proceedings in which his or her conduct is questioned, but s.13 has now been repealed (Deregulation Act 2015).)

As regards the letter to Lord Graham, in R v Chaytor (2010) the Supreme Court stated that the freedom of speech covered by Article 9 was directed at debates in the Houses of Parliament and in parliamentary committees, as this was where the core or essential business of Parliament occurred. In considering whether actions outside these places fell within parliamentary proceedings because of their connection to them, the nature of that connection had to be considered. Such actions would fall within parliamentary proceedings only where they bore a sufficiently close relationship to them and a lack of privilege was likely to impact adversely on the core or essential business of Parliament. Accordingly, the letter will not be privileged, as it does not relate to core parliamentary business.

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Lady Urquhart is proposing to rely on honest opinion as a defence (s.3 Defamation Act 2013). To succeed, she must show her statement was a statement of opinion, that it indicated, whether in general or specific terms, the basis of the opinion and that an honest person could have held the opinion on the basis of any fact which existed at the time her statement was published. Mark, as claimant, can defeat the defence by showing that Lady Urquhart did not hold the opinion. She might be able to succeed with this defence, as she did indicate the facts on which her opinion was based, namely Mark’s links with extremist groups overseas.

2(c) Mark’s expenses

Mark believes that MPs' expenses are a parliamentary matter and that consequently the courts do not have jurisdiction. As an MP, he does in fact have the right to appeal against IPSA’s refusal to pay him expenses to a first tier tribunal, so Mark could in theory appeal against the decision. On the merits of the case, Mark claimed for expenses that he had not incurred, so an appeal would be futile.

As regards the criminal prosecution, to sustain his view that the House of Commons should deal with the matter, he will have to plead parliamentary privilege or that he was otherwise protected on the grounds that his expenses claim fell within Parliament’s ‘exclusive cognisance’. To succeed in arguing parliamentary privilege, he would have to show that the payment of expenses was necessary for Parliament to perform its core parliamentary business to which Article 9 related.

As held in Chaytor (above), submitting claims for expenses did not form part of the core or essential business of Parliament, namely collective deliberation and decision making. So no privilege arises under the Bill of Rights.

The exclusive cognisance of Parliament relates to the exclusive right of each House to manage its own affairs without interference from the other or from outside. Unlike Article 9 privilege it can be waived or relinquished by Parliament. The House of Commons does not assert an exclusive jurisdiction to deal with criminal conduct, even when it relates to, or interferes with, the proceedings in committee or the House.

In Chaytor the Supreme Court found that Parliament by legislation and administrative changes had largely given up any claim to exclusive cognisance of the administrative business of Parliament. Decisions relating to administrative matters were taken by parliamentary committees and were privileged; their implementation, however, was not so protected. The House exercised disciplinary jurisdiction over such claims but it did not assert exclusive cognisance; it excluded claims under police investigation. Accordingly, neither Article 9 nor the exclusive cognisance of the House bar the jurisdiction of criminal courts to try Mark.

Mark should be advised that his case will be tried by a criminal court. If convicted, he will probably be imprisoned. If he is sentenced to more than one year’s imprisonment, his seat will be vacated.

(For the future note the case of Regina v Lord Hanningford (2016) and the Observations on Behalf of the House of Lords Authorities dated 13 July 2016 submitted by to the Court by Jeremy Johnson QC)

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Question 3(a)

Graeme should be able to raise the right to respect for private and family life under Article 8(1), as Graeme’s fingerprints have been taken. The European Court of Human Rights confirmed in S and Marper v UK (2008) that the taking (and retention) of fingerprints without consent engaged Article 8(1). By analogy, exclusion for refusing to submit to fingerprints being taken would also engage Article 8(1).

Article 8(1) is a ‘qualified’ right and interference can be justified if it is:

 prescribed by law;  justified by reference to a limited number of legitimate aims as outlined in the Article; and  ‘necessary in a democratic society’; there must be a pressing social need and the interference must be proportionate.

The term ‘prescribed by law’ means that any restriction must have a legal basis (whether in common law or statute); it must be accessible (in published form) and sufficiently clear to enable citizens to regulate their conduct (Malone v UK (1982)). The Education (Thefts) Act 2016 satisfies this requirement.

The school would argue that it was necessary for the prevention of crime, which is one of the legitimate aims provided for in Article 8(2). However, the restriction must also be proportionate in accordance with the three-stage proportionality test adopted in R (Daly) v Home Secretary (2001).

The first stage is to assess whether the legislative objective is sufficiently important to limit a fundamental right. Here it is, as preventing thefts in schools is a valid concern.

The second is to assess whether the measures taken are rationally connected to this objective. This does seem to be the case here as the provision of a cashless system would remove the need for pupils to bring money into schools and protect them from thefts, while still providing a catering service.

The third stage is to assess whether the measures taken are no more than are necessary to accomplish the objective. This is where the school would almost certainly fail. Excluding a pupil such as Graeme would not be proportionate given that he could ‘opt out’ and take in a packed lunch. This would mean he would not need any cash, but could still eat. 97% of pupils would agree to their fingerprints being taken for this purpose and so overall thefts would decrease.

Additionally, in Huang v Home Secretary (2007), the House of Lords emphasised that, in considering the proportionality test, it is necessary to balance the interests of society with those of individuals and groups. Here there does not appear to be any countervailing public interest that would outweigh Graeme’s Article 8 rights. States do also have a ‘margin of appreciation’ (a level of discretion) in judging necessity (Handyside v UK (1976)).

The Human Rights Act 1998 (‘HRA’) is the main vehicle that English law provides for enforcing Convention rights. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with Convention rights. Kingswood College, as a state school, is a public authority (R (Beer) v Hampshire Farmers Market Ltd (2004)). Accordingly, it must exercise its powers so as not to infringe anyone’s Convention rights. If it does infringe Convention rights when it Page 13 of 17 could have avoided doing so, it will be acting unlawfully. As a public authority, the review panel must also act compatibly with Convention rights.

Section 7 HRA enables ‘victims’ to rely on Convention rights in any legal proceedings if a public authority has contravened s.6. Graeme is clearly a victim as he has been excluded from school. Accordingly, he can rely on his Convention rights in proceedings before the independent review panel.

Graeme has a strong case for arguing that Kingswood College has breached his Convention rights and so his appeal should be upheld.

(In Abdul Hakim Ali v Head Teacher and Governors of Lord Grey School (2006), the House of Lords held that Article 2 of the first Protocol (right to education) confers no right to go to any particular school. It is infringed only if the claimant is unable to obtain education from the system as a whole. Therefore Graeme’s right to education has not been infringed as he is attending another school.)

3(b) The sit-in

Article 11(1) of the ECHR provides that everyone has the right to peaceful assembly. Like Article 8(1) discussed above, freedom of assembly is a qualified right so is subject to very similar limitations.

One issue to consider is whether the protesters have infringed s.137 Highways Act 1980 (wilful obstruction of the highway) which can be used by the police to disperse peaceful protests. A court hearing a criminal prosecution would have to interpret s.137 as consistent with Article 11 so far as possible (s.3 HRA). Clearly there is an obstruction of the highway, as the protesters are blocking access to the school and causing minor traffic disruption. It is also deliberate. However, the prosecution must also show that the obstruction was without lawful excuse or authority; i.e. that the protestors’ use of the highway was unreasonable (Hirst v Chief Constable of West Yorkshire (1986)). Although protests of this nature are in principle lawful, the protestors are preventing staff and pupils entering the school, so the obstruction is likely to be unreasonable.

Further, the sit-in is an assembly, a gathering of two or more people in the open air (s.16 Public Order Act 1986). Under s.14, the senior police officer at the time the assembly is taking place may impose conditions as to its maximum duration if he reasonably believes it may result in serious public disorder, serious damage to property, serious disruption to the life of the community, or that the organisers have a purpose of intimidation.

These conditions may well be satisfied. There is serious disruption to the school and, by blocking entry to the school, the protesters may have intimidatory purpose. Assuming Sergeant Mullins is the most senior police officer present, the direction to disperse is lawful.

While the police may use reasonable force in dispersing the protest (s.3 Criminal Law Act 1967), punching Jerome in the face seems to be excessive, and so the police have assaulted him unlawfully.

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Question 4

Amenability/ Eligibility

The Seaside Development Commission (‘the Commission’) is a public law body as it is exercising statutory functions under the Coastal Renewal Act 2016 (‘the Act’) to award discretionary grants for regenerating seaside towns. Disbursing public funds in this way is a public rather than private law matter, so the Commission is amenable to judicial review (O’Reilly v Mackman (1983)).

Rogan and Mayer are directly affected by the decision, as their grant applications have been rejected. They therefore have ‘sufficient interest’ in the decisions to bring judicial review claims (s.31(3) SCA 1981). The position of the LTF, as a pressure group, needs further analysis.

The factors the court considers are outlined in cases such as R v Foreign Secretary, ex p. World Development Movement Ltd (1995) -

 The need to uphold the rule of law  Whether any other body was likely to bring a challenge  The role of the pressure group involved.

The LTF, as a nationwide pressure group which campaigns on tax and public spending issues, is not a ‘busy-body’ and the court would be unlikely to reject a valid claim simply on the grounds of standing. Also its claim involves potential bias, an issue that is closely linked to the rule of law.

Ouster clause

The Act contains a potential obstacle to judicial review proceedings for all three claimants, namely an ouster clause excluding the jurisdiction of the courts. However, courts are hostile to such clauses and in Anisminic v FCC (1969) the House of Lords made it clear that complete ouster clauses will not protect ‘nullities’ (decisions that were never valid) and it is the court’s function to decide upon the validity of a decision. The ouster clause will therefore be ineffective.

Timing

All the claims must be brought promptly and in any event within three months (s.31 SCA 1981 and CPR r 54.5).

Grounds

Lord Diplock identified the traditional grounds of review as illegality, irrationality and procedural impropriety (CCSU v Minister for the Civil Service (1985)); these will be applied as relevant:

(i) Rogan

Illegality

‘Jurisdictional’ error of fact/error of law

The Commission has made a mistake concerning the number of people living in Kenton-on-Sea, incorrectly believing as a result that its population is too low to qualify for a grant. This is an error of fact that goes to the heart of its Page 15 of 17 jurisdiction to award grants (R v Home Secretary, ex p. Khawaja (1984)). Accordingly, it is jurisdictional and so is reviewable.

The Commission might have misinterpreted the Act and think that it requires the population to be assessed by reference to the figures in the census. If so, this is likely to be an error of law which is reviewable (Anisminic (above)).

(ii) The LTF

Illegality

‘Jurisdictional’ challenge

If it makes the grant to Fairview, the Commission will be exceeding its powers under the Act and acting without legal authority (A-G v Fulham Corporation (1921)). It only has the power under the Act to give grants for the construction of piers in seaside towns. (If improbably it believed that Alicedale was a seaside town, then it would have made a jurisdictional error of fact (above)).

Procedural impropriety

Rule against bias

A decision can be challenged if the decision-maker is biased. In this case, the Commission’s chief executive is a close friend of one of Fairview’s main shareholders. His interest in the matter probably falls short of a direct interest which would automatically disqualify him, as there is no evidence that the chief executive has a financial stake in Rogan (Dimes v Grand Junction Canal (1852)).

As his interest falls short of a direct interest, the LTF would argue that it was still sufficient to lead a fair-minded and impartial observer to conclude that there was a ‘real possibility’ that the decision-maker had been biased (Porter v Magill (2002)). On the facts, this is likely to be the case in view of the friendship between the two people.

Irrationality

The power to make grants is discretionary but the Commission must act rationally. Having regard to relevant considerations only, its decision may be so unreasonable that no reasonable body could have reached it (Associated Provincial Picture Houses v Wednesbury Corporation (1948)). Although the threshold is high, it could arguably be reached, as making a grant to an inland town cannot conceivably help to revive seaside towns. The decision also seems to be outrageous in its defiance of logic (CCSU).

(iii) Mayer

Illegality

Ulterior purpose

Public bodies will be acting illegally if they use their powers for an improper or unauthorised purpose (Congreve v Home Office (1976)). The purpose of the Act is the regeneration of economically deprived seaside towns.

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The Commission’s reasons indicate that the decision also had the purpose of giving preference to small businesses; this seems irrelevant to the purpose of the Act. Accordingly, it seems the Commission had an ulterior motive (Sydney Municipal Council v Campbell (1925)). Alternatively, the Commission may have taken into account an irrelevant consideration by considering the needs of small businesses (Padfield v Minister of Agriculture (1968)).

Unauthorised delegation

A discretionary power must normally be exercised by the body to which it has been granted, unless it has been authorised to sub-delegate it. Here the Commission has effectively delegated its discretion to the Secretary of State and this is ultra vires as there is no statutory authority allowing the Commission to delegate its power in this way. Additionally, if the person or body to which the discretion has been unlawfully delegated purports to exercise it, its decision will also be ultra vires (Lavender v MHLG (1970)).

Remedy

Each claimant should apply for judicial review and a quashing order.

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