CILEx L6 Constitutional & Administrative Law — Questions and Answers
Question 1: What are the three principles of the UK constitution identified by AV Dicey?
- Parliamentary sovereignty, the rule of law, and constitutional conventions (Correct answer)
- Separation of powers, federalism, and judicial review
- The rule of law, human rights, and democracy
- Parliamentary sovereignty, devolution, and judicial independence
Correct answer: Parliamentary sovereignty, the rule of law, and constitutional conventions
Dicey identified three principles of the UK constitution: (1) parliamentary sovereignty (Parliament is supreme and can make or unmake any law), (2) the rule of law (government under law, equality before the law, and rights derived from ordinary law), and (3) constitutional conventions (non-legal rules governing constitutional practice).
Question 2: What is the 'rule of law' and what does it require?
- No one is above the law; all public acts must have legal authority; law must be clear, accessible, and stable; and the courts must be independent (Dicey, and the Constitutional Reform Act 2005) (Correct answer)
- The principle that all laws must be approved by a referendum
- The requirement that all legislation must be reviewed by the courts
- The principle that the most important laws are contained in a written constitution
Correct answer: No one is above the law; all public acts must have legal authority; law must be clear, accessible, and stable; and the courts must be independent (Dicey, and the Constitutional Reform Act 2005)
Dicey's rule of law encompasses: (1) no punishment without breach of law, (2) equality before the law, and (3) rights derived from ordinary law. Modern formulations (Bingham) add: law must be clear and accessible, government must exercise power in good faith, and courts must be independent.
Question 3: What is the significance of Miller (No 1) [2017] UKSC 5 (Brexit case)?
- The government could not trigger Article 50 TEU (beginning the Brexit process) using prerogative powers — primary legislation from Parliament was required (Correct answer)
- The government could use royal prerogative to leave the EU
- Parliament's approval was required only for the final Brexit deal
- The Supreme Court had no jurisdiction to review the exercise of prerogative powers
Correct answer: The government could not trigger Article 50 TEU (beginning the Brexit process) using prerogative powers — primary legislation from Parliament was required
In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court held (8-3) that the government could not exercise prerogative power to trigger Article 50 because doing so would deprive UK citizens of rights conferred by primary legislation (the European Communities Act 1972), requiring statutory authority.
Question 4: What is the 'ultra vires' doctrine in administrative law?
- A public body acts unlawfully where it acts beyond the powers conferred on it by statute or common law — such acts are ultra vires and may be quashed by judicial review (Correct answer)
- Any government action that is politically unpopular
- Any decision that a court disagrees with on its merits
- Government action that is disproportionate to its stated aim
Correct answer: A public body acts unlawfully where it acts beyond the powers conferred on it by statute or common law — such acts are ultra vires and may be quashed by judicial review
Ultra vires means 'beyond the powers'. Public bodies may only act within the legal powers conferred on them by Parliament (or occasionally common law). Actions beyond those powers are void and may be challenged by judicial review.
Question 5: What are the three heads of judicial review identified in Council of Civil Service Unions v Minister for the Civil Service [1985] (GCHQ case)?
- Illegality, irrationality (Wednesbury unreasonableness), and procedural impropriety (Correct answer)
- Error of law, error of fact, and excess of jurisdiction
- Natural justice, legitimate expectation, and human rights
- Procedural unfairness, disproportionality, and jurisdictional error
Correct answer: Illegality, irrationality (Wednesbury unreasonableness), and procedural impropriety
In the GCHQ case [1985] AC 374, Lord Diplock identified three grounds of judicial review: (1) illegality (the decision-maker must understand and apply the law correctly), (2) irrationality (a decision so unreasonable that no reasonable decision-maker could have reached it — Wednesbury), and (3) procedural impropriety (breach of natural justice or procedural requirements).
Question 6: What is the 'principle of proportionality' in judicial review and how does it differ from Wednesbury unreasonableness?
- Proportionality requires that the means adopted to achieve a legitimate aim be no more than necessary — it involves more searching scrutiny than Wednesbury, especially in human rights cases (Correct answer)
- Proportionality is the same test as Wednesbury unreasonableness
- Proportionality applies only to EU law cases
- Proportionality always leads to a different outcome than Wednesbury
Correct answer: Proportionality requires that the means adopted to achieve a legitimate aim be no more than necessary — it involves more searching scrutiny than Wednesbury, especially in human rights cases
Proportionality (applicable in human rights and EU law cases) requires courts to assess whether the public body's action strikes a fair balance between individual rights and the public interest — a more intensive scrutiny than Wednesbury. Domestic courts have debated whether proportionality should replace Wednesbury for all judicial review grounds.
CILEx L6 Constitutional & Administrative Law
What are the three principles of the UK constitution identified by AV Dicey?