Routledge

Sample Question and Answer Plan

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1) Let's look at a past paper question. Please have 'AS Law' (Chapter 1) available to you as you consider the question. Before consulting the suggested areas of response, please ask yourself: how would I have tackled this question?

Sample Question

a) Describe the process of 'statute creation' in Parliament. (10)
b) Identify and evaluate three influences on parliamentary law-making. (20)

Notice that part a) is worth only 10 marks, whereas part b) is worth 20 marks. This unequal split should be reflected in how much you write on each part.

a) The first point to note about part a) is that the question merely asks you to describe the process of statute creation in Parliament. You do not need to discuss influences on Parliament, but merely the process that takes place within it.

A good starting point would be to state that a statute begins its life as a Bill and that the process it follows depends on whether the Bill is a Public Bill or a Private Bill. You should state that your answer will concentrate on describing the process for Public Bills, as they are the more important type.

From this introduction you can then go on to describe the passage of a Public Bill through each of the Houses of Parliament: the Commons and the Lords. Reference to the First Reading, Second Reading, Committee Stage, Report Stage and Third Reading is expected, together with a reference to the fact that the process will be repeated in the other House. The role of the House of Lords as a check on the Commons, with reference made to the Parliament Acts, should also be included. An apt conclusion would indicate the role of the Crown, acting as the 'Queen in Parliament', in giving 'Royal Assent' to the Bill and therefore signifying the formal creation of an Act of Parliament.

For further details, see the section in Chapter 1 of 'AS Law' entitled 'The Parliamentary Law-Making Process: How a Public Bill Becomes an Act'.

b) The first point to note is that you are asked to write about any three of the influences on Parliament. So you do not need to write about any more than three. However, by asking you to 'evaluate' your chosen influences, the question is requiring you to give examples of specific pieces of legislation that they have influenced Parliament to pass. The key to success with this question is in selecting three influences that will allow you to explain, evaluate and illustrate this topic in some depth. It is suggested that the three most appropriate influences would be:

1) The Law Commission
2) Royal Commissions/Ad Hoc Committees
3) MPs/Private Members' Bills

Drawing on the material contained in the section of Chapter 1 entitled 'Law reform and the influences upon parliamentary law-making', write down a brief description of each of these influences; list their strengths and weaknesses; and provide at least one example of how this form of influence has led to legislation being passed by Parliament.

2) Let's look at a past paper question. Please have 'AS Law' (Chapter 2) available to you as you consider the question. Before consulting the suggested areas of response, please ask yourself: how would I have tackled this question? The responses given below should enable you to understand the practical uses of the 'Revision guide to delegated legislation', featured as Table 2.5 on page 51 of 'AS Law'.

Sample Questions

a) Explain the meaning of delegated legislation and provide examples of this form of law. (15)
b) To what extent is it true to say that delegated is an essential source of law in the English legal system. (15)

There is a clear division achieved here between the demonstration of knowledge and understanding by recall, explanation and selection of examples (part a); and an analysis of the topic, resulting in an evaluation prompted by the specific question asked (part b). How would you tackle this question? The following areas of response are suggested:

a) In explaining what is meant by delegated legislation, the process by which law-making power is delegated by an Enabling Act (primary legislation) to a person or body other than Parliament has to be outlined.

The main types of delegated legislation should be identified, together with the person or body designated to make them: for example, Orders in Council (made via the Privy Council); Regulations and Orders (made by Government Ministers); Byelaws (made by Local Authorities). Whilst inclusion of the other types of delegated legislation & such as measures, professional rules, etc & shows a breadth of understanding, candidates should weigh up whether they have the time to develop these points too.

In seeking to explain the main types of delegated legislation, examples should be given to show how delegated legislation is used. For example, Regulations of a detailed and technical nature are used to supplement the broad aims and principles in primary legislation relating to fast-changing areas, such as consumer protection, environmental protection and health and safety. These examples ensure that your answer not only explains but also illustrates how delegated legislation works. An answer would also benefit from some practical examples of pieces of delegated legislation, such as the Hedgerows Regulations, made under the Environment Act 1995. For further details, see the sections of Chapter 2 entitled 'What is delegated legislation?' and ;What are the main types of delegated legislation?'

b) If you glance back over Chapter 2, you will see that four areas can be used to address this question:

  • why is there a need for delegated legislation? (to supplement broad primary legislation with detailed rules; to bring EC laws into effect; to make 'fast-track amendments' to primary legislation; plus the main advantages - saving Parliamentary time, useful for emergencies, etc).
  • the advantages of delegated legislation (points include: made by specialists; creation of detailed/technical rules; saves Parliamentary time; consultation; flexible and can adapt to changing circumstances; quick and easy to change, etc);
  • why do we need controls over delegated legislation? and the disadvantages of delegated legislation (points include: contradicts constitutional theory; less democratic form of law; little publicity given to delegated legislation; too much law being made by the Executive, etc)

The main tips for this question are entirely practical:
First, make sure you answer the question. Whilst the advantages suggest reasons why delegated legislation might be useful, you must be explicit in showing how the advantages confirm that delegated legislation is at times essential. For example, the positive factor that such legislation is quick and easy to make should be reinforced by the fact that this sort of legislation may be essential in times of emergency.
Secondly, since there is so much you could include in this question, bear in mind the need for good time management.

3) Let's look at a past paper question. Please have 'AS Law' (Chapter 2) available to you as you consider the question. Before consulting the suggested areas of response, please ask yourself: how would I have tackled this question? The responses given below should enable you to understand the practical uses of the 'Revision guide to delegated legislation', featured as Table 2.5 on page 51 of 'AS Law'.

Sample Questions

a) What is delegated legislation? Explain the controls exercised over this source of law? (20)
b) Outline the advantages and disadvantages associated with delegated legislation. (10)

As you will appreciate, this is similar in two respects to the earlier question: it asks, once again, for an explanation of delegated legislation; and it asks, once again, about the advantages and disadvantages of delegated legislation. Clearly, my earlier comments apply in relation to these areas. However, this question introduces the controls over delegated legislation and requires candidates to explain these, though in revising the area you should take account of the potential for examiners to ask you to "evaluate" the controls.

Notice also that part a) is worth 20 marks, whereas part b) is worth only 10 marks. This unequal split should be reflected in how much you write on each part.

If you follow through Chapter 2 of 'AS Law' you will find that describing the controls is very much a matter of recall and the required content of an answer can be summarised as follows:

  • Parliamentary controls: control through the Enabling Act; Statutory Instruments Act 1946; laying the legislation before Parliament (affirmative resolution; negative resolution); Joint Committee on Statutory Instruments.
  • Judicial controls: judicial review & procedural ultra vires ground: Aylesbury Mushroom case (1972); substantive ultra vires ground: Attorney-General v Fulham Corporation (1921); substantive grounds as a defence to criminal charges for breach of delegated legislation (a matter raised, for example, in Boddington v British Transport Police (1998)).

If you are asked to evaluate the controls, you might find it logical to consider some of the disadvantages of delegated legislation (and particularly its constitutional implications) to provide a context for your answer. The need for control becomes clear when it is considered that a huge mass of law is being created, often without much publicity, by an executive that is, inevitably, politically motivated. The situation raises problems in respect of parliamentary sovereignty and the separation of powers and gives rise to the potential for abuses of power.

In assessing whether the controls are sufficient to address such concerns, it is clear that some are far stronger than others. For example, the level of control provided by the affirmative resolution procedure is much greater than that provided by negative resolution. The significance of Parliament's role in creating the Enabling Act in the first place and its ability to qualify the delegated power, and subsequently repeal or vary it, should certainly be considered. The judicial controls are fine, in theory, though whether they are sufficiently accessible for potential litigants is also worth taking into account.

4) Let's look at a past paper question. Please have 'AS Law' (Chapter 3) available to you as you consider the question. Before consulting the suggested areas of response, please ask yourself: how would I have tackled this question?

Sample Question

a) Describe, with examples, the various methods that judges may employ when interpreting statutes (15)
b) Explain 'intrinsic aids' and 'extrinsic aids', and assess the value of these aids to judges when they are interpreting statutory provisions. (15)

a) The examiners are looking here for:

  • knowledge of the range of rules (statutory, language, common law): see sections of Chapter 3 entitled 'Statutory Rules' and 'Rules of Language';
  • knowledge of the common law approaches (literal, golden, mischief, purposive), with emphasis on the literal and purposive approaches to illustrate the spectrum of the rules: see section entitled 'Common Law Approaches to Interpretation';
  • brief description of cases to illustrate the rules.

The main problem presented by this question is not, if you have revised thoroughly, one of content, but instead one of time management. There is so much to say, but the time allocation, and the marks to be awarded, do not justify any more than clear description of the main common law rules, with each supported by short case examples, and some awareness shown of the other types of rules that the judges might use. Do not seek to evaluate each rule here and keep case summaries to a line or two at most: for example, in illustrating the mischief rule, you might say "this rule was applied in Smith v Hughes when the judges interpreted "a public place or street" to include a balcony window so as to prevent the mischief of the Act, which was to stop prostitutes from harassing men on the street".

b) The examiners are looking here for the following:

  • Identification of the extrinsic and intrinsic aids (see 'AS Law' at pp64-8). By way of reminder, the intrinsic aids include: short title; long title; schedules; and headings, punctuation, etc. The extrinsic aids include: official publications developed during law reform; explanatory notes; parliamentary debates (Hansard); dictionaries; other statutory authority; and international agreements.
  • Discussion of how helpful these aids are to interpreting statutes (summarised in 'AS Law' at Tables 3.6 and 3.7, see pp66-68 above: for example, the intrinsic aid of the 'long title' has been referred to by judges to assist with the mischief/purposive approaches, as in Royal College of Nursing of the UK v Department of Health and Social Security (1981)).
  • Use of the case Pepper v Hart (1993) and reference to relaxation of the exclusionary rule: see pp63-64. Examples of the value of Hansard for resolving longstanding problems of statutory interpretation should also be included (see, for example, Stevenson v Rogers (1999)).

5) Let's look at a past paper question. Please have 'AS Law' (Chapter 4) available to you as you consider the question. Before consulting the suggested areas of response, please ask yourself: how would I have tackled this question?

Sample Question

a) Explain how the doctrine of judicial precedent works in practice, using cases to illustrate. (15)
b) Discuss the advantages and disadvantages of the operation of judicial precedent in the English legal system. (15)

a) For this question you must demonstrate an understanding of the principle of stare decisis and of the courts hierarchy, with the use of case law: see the sections of Chapter 4 entitled 'Introduction to Judicial Precedent' and 'Judicial Precedent and the Courts Hierarchy'. Features required for the operation of precedent must also be included, such as law reporting: see the section entitled 'Introduction to Judicial Precedent'. To obtain the higher marks you should explain the difference between binding and persuasive precedent, using examples: see the section entitled 'Binding and persuasive precedents'. Important examples include the ratio decidendi (legal reasoning for the case), which represents the binding part of a judgment; and the obiter dicta (a statement said in passing whilst making a judgment), which may, in some circumstances, be persuasive.

b) This question requires you to consider both the positive and negative aspects of the precedent system. Drawing on the material in Chapter 4 generally, and in particular the section of entitled 'Evaluating Judicial Precedent', key points will include: the significance of the Practice Statement for the House of Lords; Lord Denning's comments on the system of precedent and the House of Lords' reaction; and the importance of the Young v Bristol Aeroplane Co Ltd (1944) exceptions for the Court of Appeal and the Divisional Courts. Moreover, to answer this effectively you should ask yourself questions such as: should the Court of Appeal have more flexibility given that it hears many more appeals each year than the House of Lords? You should explain the ways in which judges can avoid following precedents (by way of distinguishing, overruling, disapproving, etc) and consider whether the exercise of such methods allows the law to develop in a manner which meets the changing needs of society. It is worth considering the following cases as examples in this essay to illustrate the value of flexibility within the system: R v R (1992); British Railways Board v Herrington (1972); Miliangos v George Frank (Textiles) Ltd (1976); and R v G and R (2003), plus examples of original precedents such as In Re A (2001).

6) Let's look at a past paper question. Please have 'AS Law' (Chapter 5) available to you as you consider the question. Before consulting the suggested areas of response, please ask yourself: how would I have tackled this question?

Sample Question

a) Explain and provide examples of the different types of law associated with the European Union. (15)
b) Describe the role of the European Court of Justice and explain its relationship to the UK courts. (15)

a) Good revision of 'AS Law', Chapter 5, especially the sections entitled 'The sources of EC Law', 'Secondary sources of EC Law' and 'Case Law of the ECJ', should enable you to treat this question largely as a matter of identification. It is relatively easy to identify the different types of European Community law associated with the European Union, as the following table illustrates:

Primary Legislation

EC Treaty

Secondary Legislation

Regulations

Directives

Decisions

Case-Law of the ECJ

For example, rulings in Art.234 references

Having identified these different types of law, it is necessary to 'describe' each one with the use of relevant 'examples'. The following table summarizes the sort of content required:


TYPES OF EC LAW

BRIEF DESCRIPTION

ILLUSTRATIVE CASE EXAMPLES

Primary Legislation: The EC Treaty

Provisions of the Treaty are called Articles: they are drafted in a continental style, outlining broad principles. Some Articles require further legislation to confer rights and obligations; if they are clear, precise and unconditional, however, they may have both vertical and horizontal direct effect.

Van Gend en Loos 1963)
Defrenne v Sabena (1975)

Macarthys Ltd v Smith (1980)

 

Secondary Legislation: Regulations

Introduced either by the Commission or the Council of Ministers and containing detailed rules (such as for agricultural policy). These are directly applicable in the Member States, ie, they can be enforced directly as if they were a part of national law. They have vertical and horizontal direct effect.

Re Tachographs (1979)

Secondary Legislation: Directives

These are binding, but their implementation is left to the discretion of the Member State (within a time-limit). Directives contain the necessary detail to supplement the general principles of the Treaty Articles. Directives only give rise to vertical direct effect.

Van Duyn v Home Office (1975)
Consider also the cases that attempt to side-step the 'direct effect only' principle that applies to Directives and which thereby disadvantages those seeking to enforce their rights against private enterprises, such as: Foster v British Gas (1990); Marleasing (1990); and Francovich v Italy(1990).

Secondary Legislation: Decisions

These are made by the European Commission against Member States, corporations and individuals. They are binding on those to whom they are directed and are therefore directly effective.

Grad v Finanzant Traunstein (1970).
Here a European Commission decision to the German Government relating to taxation gave rise to rights that could be exercised by aggrieved citizens in the Member State courts.

Case-Law of the ECJ

Judgments of the ECJ can overrule those of the national courts.

Factortame case (1991), see below

b) This part of the question is focused generally on the European Court of Justice's role as an institution and specifically on the Art 234 reference procedure in which the Member State courts may refer matters concerning European law to the ECJ for a ruling: see the section of Chapter 5 entitled 'Case law of the ECJ'. A useful case example to use here is Marshall v Southampton Health Authority (1986): this raised the issue as to whether the differing state retirement ages for men and women in existence at the time (65 and 60 respectively) in the UK breached European equal treatment legislation. The UK courts therefore referred the matter, under the Art 234 procedure, to the European Court of Justice for a ruling on the relationship between the two legal systems and whether, in particular, the UK law was in breach. The ECJ ruling held that the UK law did breach the European legislation, with the impact that UK law had to be amended (as effected by Parliament in the Sex Discrimination Act 1986).

The following points should also be considered in your response:

  • How the reference procedure operates.
  • The principles of making such a reference & and the extent to which a reference is of assistance to the English courts & as discussed by Lord Denning in Bulmer v Bollinger (1974).
  • Sir Thomas Bingham's support for the reference system in Customs & Excise Commissioners v Samex (1983) and, as Master of the Rolls, in R v International Stock Exchange ex p Else (1993)).
  • Relevant case-law on Art 234 References, including cases of great constitutional significance, such as R v Secretary of State for Transport ex p Factortame (1991), which indicate that ECJ rulings must be give effect by the UK courts.

7) Let's look at a past paper question. Please have 'AS Law' (Chapter 6) available to you as you consider the question. Before consulting the suggested areas of response, please ask yourself: how would I have tackled this question?

Sample Question

a) Hemma is to be tried for a very serious criminal offence. Outline the courts and describe the procedures that she may face in the English legal system (including appeals). (15)
b) Outline the process by which a case is dealt with in a county court. (15)

a) The mention of a "very serious criminal offence" tells you that this question is about indictable offences (as distinct from minor offences known as summary offences and intermediate offences referred to as 'triable either way'). Your opening sentence should make this point, and state that indictable offences have to be tried in the Crown Court before a judge and jury.

Identifying the courts should therefore draw on your knowledge of the criminal courts structure and processes:

  • Magistrates' Court (preliminary hearing)
  • Crown Court (first instance trial)
  • Appeals on facts/law against conviction or sentence in the Court of Appeal (Criminal Division)
  • Appeals on legal matters of public importance in the House of Lords.

The question then requires you to summarize the nature of the hearing before each court. For example, consider the following on the Crown Court:

"Having been transferred from the magistrates' court (during the preliminary hearing), the criminal trial process will take place in the Crown Court before a judge and 12-person lay jury. The trial is adversarial in nature, with prosecution counsel charged with proving the defendant's guilt 'beyond all reasonable doubt' and the defence seeking to cast doubts on the prosecution's case in order to give the defendant full protection of both the burden, and standard, of proof. In the trial, the judge takes the role of 'master of law' and the jury takes the role of 'master of facts': it is the latter that comes to a verdict on the defendant's guilt, based on the factual evidence that has been presented; the judge will then sentence the defendant if a conviction is secured by the prosecution…"

A summary of the nature of the hearing at each stage should also enable you to develop your knowledge of the courts and their respective jurisdictions. This is an area worthy of note when planning your revision.

For further details, see the section of Chapter 6 entitled 'Procedures in the criminal courts'.

b) There are a number of elements that can be included in this part of the question and it is sensible to start with an outline of how claims can be initiated by the claimant and the importance of a defence being submitted in response by the defendant for a contested case to proceed. You are encouraged to make reference to the reforms to civil justice in developing your points, both in relation to the new style of procedures (with judges, for example, becoming case managers) and more particularly to the allocation process. The question is sufficiently broad for you to be able to discuss the nature of the cases heard by the county court and to consider the relevant tracks of claim:

  • small claims procedure (explain limit & claims up to £5,000 and £1,000 for personal injury; explain types of claim heard & e.g. minor consumer claims; informality of procedure, lack of legal representation, etc).
  • fast-track procedure (explain limits & claims between £5,000-£15,000, and between £1,000 and £15,000 for personal injury; explain types of claim heard & modest contract and tort claims; more formal procedures, legal representation more common, limits on evidence and time allowed for the hearing, etc).
  • multi-track procedure (explain limits & over £15,000 in the County Court - with an appreciation that cases valued over £50,000 will be heard in the High Court and that transfers to the High Court from the county court may form part of managing a case allocated to the multi-track).

Additional areas to develop include the nature of the civil trial (generally without juries; claimant and defendant in adversarial process though with increasingly interventionist judges; a standard of proof of 'on the balance of probabilities' rather than beyond reasonable doubt); and a distinction between the relative informality of the small claims case heard in District Judges' chambers and the more formal process in the county court for fast-track claims.

For further details, see the section of Chapter 6 entitled 'Civil procedure'.

8) Let's look at a past paper question. Please have 'AS Law' (Chapter 7) available to you as you consider the question. Before consulting the suggested areas of response, please ask yourself: how would I have tackled this question?

Sample Question

a) Describe the main alternatives to court action for resolving civil disputes. (10)
b) Assess the advantages and disadvantages of these alternatives by comparison to taking a case through the civil courts. (20)

Notice that part a) is worth only 10 marks, whereas part b) is worth 20 marks. This unequal split should be reflected in how much you write on each part.

a) This part of the question allows you to show your knowledge of the main alternatives to the courts: tribunals, arbitration, mediation, conciliation, negotiation and the ombudsman. Key facts on each could include: how these methods seek to resolve disputes, using examples (such as the use of arbitration to resolve commercial disputes) and explaining basic procedures (such as the nature of tribunal-hearings, and mediation and conciliation processes) and bodies involved (such as ACAS and trade associations that offer ADR services). Further suggestions of examples can be found in the Hints and Tips section of 'AS Law', Chapter 7, at p154. There should be some recognition of the differences between these methods.

b) This part of the question asks two things, in effect:

  • what are the advantages and disadvantages of the alternative methods?
  • how do these differ from the courts, and are they more effective?

You are advised to make general points, though drawing on examples from each of the methods. As identified in the 'Hints and Tips' section of 'AS Law', Chapter 7, p154, the ADR and tribunal methods offer general advantages across the areas of comparison (cheaper, quicker, more private, less formal, etc), though examples should be used to show that this is not the only picture that can be drawn of these methods. For example, you can provide critical scrutiny by looking, say, at the relatively modest take-up of mediation (with reference to the research of Genn) and by showing that some tribunals, such as employment tribunals, are no longer differing a great deal from courts in terms of volume of work and increasing legal representation (a point that may seem stronger now that there is a unified Tribunals Service for the larger tribunals). Moreover, it should be recognized that the courts can provide some aspects & such as clearer appeal structures and greater accountability & that some of the alternatives may lack, by comparison. The point that unsuccessful attempts at ADR will ultimately find themselves in the courts is also worth making.

A suggested way of concluding on this question, having weighed up the pros and cons of ADR as against the courts, is to observe the emphasis placed on ADR in the civil justice reforms as a way of improving the system for litigants, and the subsequent approval that has been given to this position by the civil courts themselves (see particularly, for example, the case of Dunnett v Railtrack plc (2002)). However, the court option remains open to parties to a dispute and ADR should not be forced upon them.

9) Let's look at a past paper question. Please have 'AS Law' (Chapter 8) available to you as you consider the question. Before consulting the suggested areas of response, please ask yourself: how would I have tackled this question?

Sample Question

a) Explain how judges are selected, appointed and trained. (15)
b) Assess the significance of judicial independence in the English legal system. (15)

a) The first question, in particular, is a gift if you have revised the topic. Indeed, the major problem will be ensuring that you do not write too much and allow this to have an adverse impact on your time management for part (b). A summary of points for part (a) is provided in 'AS Law', Chapter 8 'Hints and Tips' and Table 8.3, pp.175-176. It is recommended that you use this Table as a revision prompt for each of the three headings ('selection', 'appointment' and 'training'), bearing in mind the context: the 'secret soundings' approach to appointment which was heavily criticised and the new approach heralded by the creation of the Judicial Appointments Commission, implementing the Constitutional Reform Act 2005. Please note, finally, that there is no need to evaluate the three areas identified by the question: the question restricts itself to "Explain…"

b) This question prompts discussion of the role of the judiciary in the British constitution and particularly the relationship of judges to the other constitutional powers, bearing in mind the theory of the 'separation of powers'. The Government's recognition of the constitutional context in the Constitutional Reform Act 2005, which seeks to safeguard judicial independence at s3, should be mentioned as the Act tackled some longstanding constitutional problems (eg, that the Lord Chancellor's roles were undermining the separation of powers principle). It will be necessary to place your discussion in this context of ongoing constitutional reforms, including the creation of a 'supreme court' to replace the Judicial Committee of the House of Lords and the removal of judges from the legislature.

There are a number of areas that could be developed from this opening and a summary of these can be found in 'AS Law', Chapter 8 'Hints and Tips' at p176. Issues such as security of tenure, judicial independence as to law-making (including recognition of how this role has effectively increased following the Human Rights Act 1998) and the judicial check on executive powers in the form of judicial review are clearly very important. Practical matters, such as payment out of the Consolidated Fund and judicial immunity from law-suits, are also good independence indicators.

The importance of judicial independence, and the damage that can be done by conflicts of interest to take just one example, can be explored usefully through the cases of Dimes v Grand Junction Canal (1852) and the Pinochet case (2000).