CILEx L6 EU and Public Law 2 — Questions and Answers
Question 1: What is the effect of the Parliament Acts 1911 and 1949 on the legislative process?
- They allow the House of Lords to veto any Bill indefinitely
- They permit the House of Commons to present a Bill for Royal Assent without the consent of the House of Lords, subject to specified conditions including a delay of at least one session (Correct answer)
- They abolish the power of the House of Lords entirely
- They allow the Prime Minister to bypass both Houses of Parliament
Correct answer: They permit the House of Commons to present a Bill for Royal Assent without the consent of the House of Lords, subject to specified conditions including a delay of at least one session
The Parliament Acts 1911 and 1949 curtailed the Lords' power to block legislation. Under the Acts, a public Bill (other than a Money Bill or a Bill to extend the life of Parliament) that has been passed by the Commons in two successive sessions, with at least one year between second reading in the first session and third reading in the second, may be presented for Royal Assent without Lords' consent.
Question 2: In the law of legitimate expectation, what is the difference between a substantive legitimate expectation and a procedural legitimate expectation?
- There is no difference; both entitle the claimant to the same remedy
- A procedural legitimate expectation entitles the claimant to be consulted or given a hearing before a decision is changed; a substantive legitimate expectation may entitle the claimant to a particular outcome or benefit (Correct answer)
- A substantive expectation arises only from statute; a procedural expectation arises from common law
- A procedural expectation applies only in criminal cases; a substantive expectation applies in civil cases
Correct answer: A procedural legitimate expectation entitles the claimant to be consulted or given a hearing before a decision is changed; a substantive legitimate expectation may entitle the claimant to a particular outcome or benefit
A procedural legitimate expectation (Attorney General of Hong Kong v Ng Yuen Shiu) entitles a person to be heard or consulted before a public body departs from a previous practice or promise. A substantive legitimate expectation (R v North and East Devon Health Authority, ex p Coughlan [2001]) may entitle a person to the promised benefit itself, unless the public body can show an overriding public interest in departing from it.
Question 3: Under Article 5 of the European Convention on Human Rights, which of the following does NOT constitute a lawful ground for deprivation of liberty?
- Detention following conviction by a competent court
- Detention of a person of unsound mind
- Detention for the purpose of punishing a person for expressing political opinions (Correct answer)
- Detention to prevent the spread of infectious diseases
Correct answer: Detention for the purpose of punishing a person for expressing political opinions
Article 5 ECHR provides an exhaustive list of grounds for lawful deprivation of liberty, including detention after conviction (Art 5(1)(a)), detention of persons of unsound mind (Art 5(1)(e)), and detention to prevent spreading of infectious diseases (Art 5(1)(e)). Detention for expressing political opinions is not among the permitted grounds and would violate both Article 5 and Article 10 (freedom of expression).
Question 4: What is the significance of the Wednesbury test and how has the standard of review evolved in English administrative law?
- Wednesbury unreasonableness remains the only standard of review in all judicial review cases
- Wednesbury established a threshold of irrationality ('so unreasonable that no reasonable authority could have reached it'), but courts now apply proportionality in human rights and EU-derived cases, representing a more intensive standard of review (Correct answer)
- Wednesbury has been entirely replaced by proportionality in all areas of public law
- Wednesbury applies only to procedural matters, not substantive decisions
Correct answer: Wednesbury established a threshold of irrationality ('so unreasonable that no reasonable authority could have reached it'), but courts now apply proportionality in human rights and EU-derived cases, representing a more intensive standard of review
Associated Provincial Picture Houses v Wednesbury Corporation [1948] established the irrationality threshold. While Wednesbury remains applicable in non-human rights judicial review, courts apply the more structured and intensive proportionality test in cases involving Convention rights (under the HRA 1998) and formerly in EU law cases. The relationship between the two standards has been debated, with some judges suggesting convergence.
Question 5: Which constitutional convention governs the relationship between government ministers and Parliament regarding accountability for departmental actions?
- The convention of collective cabinet responsibility only
- The convention of individual ministerial responsibility, under which ministers are accountable to Parliament for the actions of their departments and are expected to correct errors and provide accurate information (Correct answer)
- The convention that ministers are only accountable for their personal conduct
- The Sewel convention
Correct answer: The convention of individual ministerial responsibility, under which ministers are accountable to Parliament for the actions of their departments and are expected to correct errors and provide accurate information
Individual ministerial responsibility (IMR) requires ministers to account to Parliament for the actions and policies of their departments. Under the Ministerial Code, ministers are expected to give accurate and truthful information, correct errors promptly, and be as open as possible. Historically this included resignation for departmental failures, though modern practice has evolved. The Sewel convention, by contrast, relates to devolution.
Question 6: In R (on the application of UNISON) v Lord Chancellor [2017], on what basis did the Supreme Court find that employment tribunal fees were unlawful?
- The fees were set at a level that was disproportionate to the costs of administering the tribunals
- The fees effectively prevented access to justice by pricing many claimants out of bringing legitimate claims, infringing the constitutional right of access to courts and were not justified by the Lord Chancellor (Correct answer)
- The fees discriminated against claimants on grounds of race
- The fees were imposed without proper parliamentary approval
Correct answer: The fees effectively prevented access to justice by pricing many claimants out of bringing legitimate claims, infringing the constitutional right of access to courts and were not justified by the Lord Chancellor
In UNISON [2017], the Supreme Court unanimously held that employment tribunal fees of up to £1,200 were unlawful because they effectively denied access to justice. The fees were not reasonably necessary to achieve legitimate objectives and were set at levels that many workers could not afford, creating a real and practical barrier to the constitutional right of access to courts, recognised since Magna Carta.
