If you are studying Public Law (or Constitutional Law) this year, you will know that it is a fast-moving field. And if you are currently revising for an exam in this area, you will no doubt want to put yourself in a position to show that you appreciate the dynamism of the subject. Kept within reasonable limits, this is a good idea—not only because demonstrating knowledge and understanding of cutting-edge developments may be impressive in itself, but because engaging with such matters may help to deepen your appreciation of more enduring aspects of the discipline.
At the same time, however, it is necessary to keep these matters in perspective. The recent development which transforms the subject area, turning it on its head, is a rarity; it is important, therefore, not to become fixated with the latest case, judicial lecture or official report. For the most part, the real value of such things lies in the light they cast—and the ways in which they might consolidate or deepen your understanding of—key principles, institutions and concepts.
Subject to that caveat (and one other), this post highlights some key developments this year in Public Law and attempts to place them in context by demonstrating the ways in which they form parts of broader debates and narratives. The other caveat is that what follows makes no claim to comprehensiveness: rather, it reflects developments that have caught my attention this year and have therefore been the subject of posts on this blog, and which, I think, help to illuminate or place in context fundamental matters that are typically studied by Public Law students.
As the next general election approaches, the future of the Human Rights Act 1998—and even the UK’s involvement in the European Convention on Human Rights—is increasingly in the spotlight. Although it is well over a year since the report of the Commission on a Bill of Rights was published, debate about the HRA and the ECHR has not abated (not least because the Commission’s report was so inconclusive, thanks in no small part to the fact that the Commission was paralysed by disagreement).
It is no surprise, therefore, that Senior Conservatives—in particular, Chris Grayling, the Lord Chancellor and Justice Secretary, and Theresa May, the Home Secretary—were falling over themselves at the party’s conference in September 2013 to criticise the HRA and the ECHR, with Grayling promising to scrap the former and hinting at the possibility of withdrawal from the latter.
However, political and media debate in this area is often ill-informed; if change really is to be contemplated, then it is necessary to think about what that might look like and what the options might be. I explored the different paths that might be taken by a future government seeking to enact reform in this area in a post published last autumn, arguing that four scenarios were worth considering, reflecting two key variables—namely, whether the HRA is replaced with further domestic legislation, and whether the UK remains a member of the ECHR.
One of the main reasons why debate in this area tends to be unsatisfactory is the tendency to run together three interrelated but distinct issues. In a post published in December, I showed that an informed and intelligent debate must distinguish between three different dimensions of the relationship between UK law and the ECHR, concerning the domestic law position, the international law position, and the wider political issues.
For further background on past, present and future of human rights law in the UK, see my post on Law, Rights and Constitutional Politics, and the book chapter (available online) to which that post refers.
The common law and human rights
When the future of human rights protection is debated, a crucial factor that is often overlooked is the role of the common law and the extent to which the domestic constitution—although “unwritten”—embodies fundamental values and rights. Over the course of the last year, the UK Supreme Court has delivered three highly significant judgments that speak to this issue. One of those cases is dealt with below, in the section on EU law and the UK constitution, but the other two can be mentioned here.
In Osborn v Parole Board  UKSC 61, the Supreme Court was asked to decide whether three prisoners had been unlawfully treated by the Parole Board when decisions to keep them in or recall them to prison were taken without according them oral hearings. Lord Reed, giving the sole judgment, said that the appellant prisoners’ advocates had erred by basing their submissions primarily upon Article 5(4) ECHR whilst largely neglecting domestic administrative law. The focus, he said, should have been upon the latter—and the rights that are recognized at common law. This was so because the HRA “does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate”. As I argued in my post on Osborn, Lord Reed’s analysis suggests that repeal of the HRA—and even withdrawal from the ECHR—may be less effective than proponents of such reforms anticipate. This follows because the common law—including rights derived from the ECHR but absorbed into the common law—would remain even in the event of HRA repeal/ECHR withdrawal.
A similar approach was evident in the Supreme Court’s decision in Kennedy v The Charity Commission  UKSC 20. As in Osborn, the Court—in spite of the claimant’s reliance upon the right to freedom of expression under Article 10 ECHR—chose to decide the case by reference to common law rights and values. I suggested in my post on Kennedy that it can be understood as part of a new stream of constitutional jurisprudence emerging from the Supreme Court, and evidences a renaissance in this area, as common-law constitutionalism emerges from the shadow of the Human Rights Act.
Reading cases like Osborn and Kennedy, it is hard to resist concluding that senior judges are laying the ground for possible HRA repeal and ECHR withdrawal, and that, in doing so, they are ensuring that the underlying common law landscape that would be laid bare in such circumstances would turn out to embody a set of human rights protections comparable to those that obtain today.
EU law and the UK constitution
The third in the trilogy of Supreme Court cases referred to above is R (HS2 Action Alliance Ltd) v Secretary of State for Transport  UKSC 3. The facts are set out in more detail in my post on the case, but the essential question was whether the procedure by which decisions concerning the construction of the proposed “HS2” high-speed rail network were to be made could be challenged on the ground that it breached requirements laid down in an EU Directive. The primacy of EU law would normally supply a ready answer to that question, but the difficulty in this case was that the procedure being followed involved the decision being made by Parliament. Even Acts of Parliament, of course, are not immune to challenge on EU law grounds, as the Factortame case illustrates. However, a further difficulty in this case was that a challenge to the procedure adopted by Parliament might have required the court to assess the adequacy of that procedure by reference to Directive’s requirements. And this, as Lord Reed observerd, might have impinged “upon long-established constitutional principles governing the relationship between Parliament and the courts, as reflected for example in article 9 of the Bill of Rights 1689”. In the end, the Court concluded that no such constitutionally-problematic scrutiny of parliamentary procedure was necessary.
But what if it had been? Could EU law override a fundamental constitutional principle such as the one reflected in article 9 of the Bill of Rights? The Supreme Court doubted this, on the ground that Parliament, when it gave force to EU law by virtue of section 2 of the European Communities Act 1972, should not be taken to have intended to give EU such a degree of force as to permit it to ride roughshod over fundamental constitutional principles or legislation. As I explained in my post on the case, this suggests that EU law has been accorded only a qualified primacy which enables it to prevail over most domestic law, but not over fundamental constitutional law. It also suggests that the binary distinction between constitutional and regular statutes identified in Thoburn v Sunderland City Council  EWHC 195 (Admin) needs to be rethought—some constitutional statutes (such as the Bill of Rights) arguably being more fundamental than others (such as the ECA 1972).
The constitution, the role of the judiciary and parliamentary sovereignty
Taken in combination, Osborn, Kennedy and HS2 paint a fascinating picture of the common law constitution. It remains (as always) a work in progress, but the direction of travel seems clear, as senior judges exhibit an increasing willingness to expose and rely upon the structure and norms of that constitution, sometimes in preference to its more explicit statutory aspects. Against that background, a lecture given by Lord Neuberger earlier this year on “The British and Europe” contained some particularly puzzling statements about the constitution. In fact, Lord Neuberger went as far as to suggest that the UK “has no constitution as such at all”. He said that in the course of trying to explain what he characterized as exceptionalist British attitudes towards the EU and the ECHR, arguing that the existence of parliamentary sovereignty and (as he sees it) the absence of a constitution means that European laws are able to exert a more profound and obvious influence in the UK than in countries that have written constitutions which may operate to limit the domestic impact of European laws.
Lord Neuberger certainly has a valid point. However, as I said in my commentary on his lecture, he arguably fails to give due credit to the subtleties of the modern British constitution highlighted by cases like Osborn, Kennedy and HS2. None of those cases is inconsistent with parliamentary sovereignty, and none suggests that the UK has a constitution (although unwritten) that is hierarchically superior in a way that absolutely limits the authority of Parliament or the impact of European laws whose effect in the UK is licensed by Act of Parliament. However, as noted above, those cases do suggest that, parliamentary sovereignty notwithstanding, there exists a hierarchy of norms within the constitution that may inform our understanding of the effect of (among other things) European laws. This is not to suggest that there are not important differences between the British constitution and those of other European countries—but the differences may be more subtle than a wholly orthodox account of the UK’s constitution would suggest. These issues are explored in greater depth in my post on parliamentary sovereignty in a multidimensional constitution and in the evidence I submitted to the House of Commons Political and Constitutional Reform Committee on the implications for parliamentary sovereignty and the judicial role of adopting a written constitution.
Judicial review reform
For the last 18 months, there has been considerable debate about judicial review reform, driven by a perception on the part of the government that judicial review can have a negative administrative and economic impact by slowing down decision-making processes and holding up major infrastructure and other projects of economic significance. The most recent set of proposals, published in September, are summarized in this post.
One of the proposals was to limit standing in order to prevent judicial review from being sought by campaign and pressure groups. I argued in this post that such a change would be wholly inappropriate, not least because it fundamentally misunderstands the purpose of judicial review which extends beyond the protection of individual “rights” and encompasses the promotion of good administration, in which everyone—not just victims of particular instances of maladministration—has a shared interest. A similar position was adopted by Baroness Hale in a lecture she gave in November.
The proposal concerning standing was dropped, but many of the others are being taken forward, as I explained a post published in February. More recently, the parliamentary Joint Committee on Human Rights has published its report on The implications for access to justice of the Government’s proposals to reform judicial review (HL 174 HC 868 2013-14). It is highly critical of the Government’s latest proposals. For a summary of the main points made in the report and a commentary on them, see this post published in April 2014.
Judicial review generally (and substantive review in particular)
Finally, there have been some interesting developments in relation to substantive judicial review. These have particularly caught my attention because I am currently co-editing a book on that subject, and have been writing a chapter for the book about how we should think about the relationship between the Wednesbury and proportionality tests and the role of deference; a preliminary version of my argument can be found in a piece I posted in September.
Similar issues were explored by Lord Carnwath in the 2013 annual lecture to the Constitutional and Administrative Law Bar Association. Carnwath was highly critical of much of the current law in this area, but, in doing so, retreated into a highly practical—and arguably unprincipled—approach. In my commentary on Carnwath’s lecture, I argued that the approach he adopted in it risked dismantling the conceptual apparatus of this part of administrative law, and that (legitimate) dissatisfaction with current doctrine should not lead us to abandon attempts to secure doctrinal coherence in this area, but should instead cause us to think harder about what the law is trying to achieve and what doctrinal vehicles are best suited to delivering that.
Finally on this point, three particularly interesting cases have been decided recently. First, in R (Rotherham MBC) v Secretary of State for Business, Innovation & Skills  EWHC 232 (Admin), the Administrative Court applied what is known as the “super-Wednesbury” test (that is, an especially deferential version of the rationality test) and held that the proportionality test was ill-suited to situations in which no “specific legal standard” had been infringed. As I argued in my post on the case, its significance is twofold: it rejects the view, advanced by some commentators and judges, that proportionality should wholly supplant Wednesbury, and affirms that variable-intensity Wednesbury remains part of contemporary administrative law.
Second, in Miranda v Secretary of State for the Home Department  EWHC 255 (Admin), the Divisional Court considered the structure of the proportionality test. It followed the version of the test advanced by Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2)  UKSC 39, including a final “fair balance” stage. As noted in my post, Laws LJ offered some perceptive comments in Miranda on the implications of fair-balance review, observing that the nature of the issues with which the court must engage at that stage are especially sensitive, and raise particular questions about the proper limits of the judicial role. These comments are to be welcomed, not least because they lay the foundation for a more structured approach to proportionality and deference—something for which I have argued elsewhere.
Third, Kennedy v The Charity Commission  UKSC 20 is significant in this context, as well as for the reasons mentioned above. It contains an interesting discussion of the extent to which proportionality should be considered a common-law principle of judicial review. For detailed commentary, see this post.
As noted at the beginning of this post, knowing about what is going on in Public Law is important not (only) for its own sake, but because of the light it casts on the fundamentals. In turn, appreciating what those fundamentals are—and how they might be impacted or illuminated by recent developments—requires an understanding not just of the detail of the subject, but of how its different parts relate to one another. Recognizing how the different pieces of the jigsaw fit (or sometimes do not fit) together is key to succeeding in Public Law, a bird’s-eye view of the subject being just as important as a grasp of the detail. If you find yourself struggling in this regard, you might like to look at the first chapter of the new edition of Elliott & Thomas, Public Law (available free of charge here), or at my videos on An Introduction to Public Law by way of the Belmarsh Prison case.
The second edition of Public Law – the textbook that I write with Robert Thomas – has been published by Oxford University Press. Although it is only three years since the first edition was published, much has happened since then. We were putting the finishing touches to the first edition in the immediate aftermath of the 2010 UK general election, whereas we are now well over halfway through the UK’s first period of peacetime coalition government for many decades.
The following post was written by Jack Williams as a letter to his fresher self. Jack studied Law at St Catharine’s College, Cambridge, and is now a barrister at Monckton Chambers.
So, you’ve started your Law course, and you’re already feeling a little snowed under. You’ve never studied Law or anything even like it before and never felt quite this challenged by something. You’re beginning to question whether you’re ‘doing it right’, and want some suggestions about how you might go about your studies to maximise your grades. So, having now completed my Law degree, if I were to write to my fresher lawyer self, this is what I’d say.
First, Jack, there is certainly no golden one answer about how to study Law or go about your studies: everyone learns differently and everyone enjoys different topics. Therefore do what works for you; ask and take everyone’s advice on board – they’re trying to help and there’s no shame in asking – but always remember that you’re the one trying to learn and it’s you who’s going to be taking the exams at the end of the year. Have confidence in yourself.
Second, you’re bound to make mistakes. Jack: you’ve never studied Law before, you’ve never been to University before, and you’re here to learn. You’re not meant to know everything at the age of 19. You learn by doing – take a risk and try it out. The process of finding out how you learn best and the sometimes gruelling effort you have to put in to learn how to learn Law will be incredibly beneficial and personally fulfilling. It will all click into place; it will happen – once you’ve mastered it, everything becomes so much easier and reading the next chapter, article and case becomes quicker and easier. Keep going and believe in yourself. Don’t keep on doing things that obviously aren’t working.
Third, simply cramming and rushing to finish everything for a supervision or a class is rather foolish if that means that you’re skipping material and not really thinking about what you’re reading and contrasting academics’ and judges’ viewpoints with your own. You shouldn’t be treating supervisions or classes as the end goal or a test; instead you should treat supervisions as part of the journey. The end of the journey is your complete understanding (and ultimately the exam). This all means that you should be smart about what you aim to get out of your supervisions or classes – they’re there to help you. This approach will mean managing your time carefully and being methodical about what you cover and when. It is not an excuse for not doing the work. It might, though, mean that you cover some of the work after the supervision itself – check what’s on the handout and what’s going to be focused on. Doing the reading properly once (instead of cramming/rushing for the supervision and having to come back in the holidays to start from scratch when you’ve forgotten most of it) will actually save you time and aid your understanding as you’re working on the topic as a whole at one time. It will enable you to see the topic in the round. To master this approach you should be aiming to really comprehensively study the topic the first time round – this means also working from your lecture notes and reading all the extra material and further reading. This will mean you have to look at the whole reading list at the start and split it into the individual topics; warning – this might mean working from different parts of different books/chapters at one time instead of going through one resource at a time.
Fourth, don’t simply highlight your textbooks. A good approach is to type your lecture notes (which saves a lot of time, are easier to read, and are quicker to edit) and you can then add your textbook notes to them. This reduces unnecessary duplication. You should read the textbooks and reading list material alongside your lecture notes as you go (even if lectures aren’t finished) and add textbook notes to lecture notes. You will then have one very comprehensive document which is much better than a variety of different sources and notes with lots of duplication. This will save you time when you come to revise! When it comes to articles (which you absolutely must read – you won’t be able to answer essays otherwise!), you should print these all off (double sided will save paper and money and time printing!). These you should highlight. You should also dot little notes on them. Then leave space in the relevant place in your lecture/textbook document so that when you print them off you can slot the articles into the right places. Highlighting/doodling on articles instead of typing them up like you do the textbooks will save you a lot of time which will enable you to read more. The more articles you read, the quicker it becomes as many have duplications and basic case facts and ideas repeated. Also not typing up articles will mean that you still have the original – you may find you missed out crucial threads of arguments when you come back to revise! Putting a two line summary of the main argument at the top of the printed article will also help.
Fifth, Jack, before you read the cases, make sure that you’ve read the relevant textbook sections and search your reading list and Westlaw for other case commentaries (especially if your reading list didn’t include any short summaries for the cases it specifically asks you to read). This will enable you come at the case with a very clear idea about its topic and content. It might even save you from reading the whole case if the commentaries were very clear and include judges’ names and arguments. In any case, it might make reading the case much easier and you’ll have some academic opinion to think about and point you towards the right places so you know what you should be thinking about or focusing on.
Sixth, as you’re studying you should be looking to assign a case name or statute to every statement of law you note down, and an academic’s name to every opinion or comment on the law (unless it’s your own theory – and no other academic has previously written it down!). Lecturers’ comments are not authorities. When you’re making your notes, if you ensure the case and academics’ names are all down the left-hand side of the page, when you come to revision you’ll be able to cover them up and test yourself. Aim to be making your notes in a nice format which is revision friendly from the start. I also recommend tabbing your statute books throughout the year and colour coding your tabs by topic/area so exam utilisation (if required at all) is more efficient. (Remember, though, to check with your own Law school whether this is allowed: some Law schools only allow “clean” statute books in exams.)
Seventh, I’ve already hinted at this to you, Jack, but you really need to be doing as much of, if not all of, the further reading– at the same time as the other reading preferably. Otherwise make a (clear and easily-findable) list of everything to do in the holidays – make this as you go along, you honestly won’t remember otherwise.
All work and no play …
Eight, continue to go out and enjoy yourself – if you time-manage well enough, you will still have enough time to play a sport, go out a couple of evenings a week and hold a number of extra-curricular positions! In fact, you’ll end up being a lot more time-efficient and stop wasting time/procrastinating as much as you did. You’ll also enjoy and appreciate your studies a lot more – the happier you are, the easier you’ll find it to study. You might, oddly, find out that the more you do, the better your grades become…
Nine, be active with law. The more you engage with it, Jack, the more it’ll make sense. Getting active with law means a number of things: not just sitting and passively reading, but actively thinking about it (i.e. factual situations and what the ‘answer’ in court may be), mooting, going to all the additional evening lectures your university offers, and emailing supervisors and friends.
Ten, continue to work with your friends. Form a study group – share around further reading notes, set each other extra articles not on reading lists and then share the notes around. Meet up before your supervisions or classes 15 minutes before to run over a couple of things. Perhaps even arrange small revision groups together. Definitely have a group mailing list! Remember you’re not in competition with mates. Instead, by sharing notes, sharing thoughts and working together on past exam questions you’ll be able to test your knowledge, get other ideas, get through so much more material than you could have on your own and it will mean you’re much more active with law. It also makes studying a lot more enjoyable and will mean you save a lot of time struggling through alone. Warning though – this is not an excuse for not doing the work yourself (especially the material on your reading lists marked ‘essential’ or ‘basic’): you absolutely must be doing the ‘building block’ work yourself; group study is superb for going beyond your reading lists and for revision of all kinds though!
Eleven, it’s a great idea to be thinking about the exam throughout the whole year. At the beginning of the year, print out all of the past exam papers and examiners’ reports. After you read through each handout or reading list, look through all the exam papers and label the questions for that supervision or class. This will enable you to know what to look out for or what sorts of issues to focus on when you do the reading. It’ll also help to give you an idea of what sorts of things to take notes on. If you don’t know how to answer the question by the end of your reading, or don’t know where to look in your notes, then remember to take the exam question along to your supervision or class and ask your tutor about it.
Stay up to date
Twelve, keep up with the legal news. The best way to do this is to read blogs (such as Public Law for Everyone for constitutional law and McBride’s Guides for tort) and to use Twitter to follow legal academics, bloggers, your law faculty, the courts, other law students and barristers. Retweet everything that looks useful and relevant and then go back to read when you have more time.
Thirteen, if you’re finding life tough, speak to people – your tutor, supervisors, Director of Studies, lecturers or even your law society president. Never be afraid to admit you don’t understand something or to ask for help. When it comes to academics, before you email them do make sure you’ve honestly tried hard and looked your legal question up as best you can – they won’t appreciate it otherwise!
Fourteen, in exam term, have a game plan. Aim to read through all the notes at least twice. Then make several essay plans per subject – throughout the year you should have noted key essay topics for each topic as you went through (utilising past papers, your own common sense on what the debateable areas in that topic are, what lectures focused on, what’s new or in the legal news, and what you enjoy/understand the most). Ensure your essay plans have lots of case and academic names; make sure you’ve gone beyond lecture notes by looking at the latest editions of all the law journals. After that, then make condensed hand written notes based on your full notes. Then keep on re-reading everything again and again and again and again…. However, you cannot simply be passive and just read though – after you read each page you need to test yourself in your head: cover up the case or academic names. Then, for ones you keep forgetting or getting wrong maybe make some posters and some flashcards. Also make sure, however rough or illegibly, that you have written each case name and academic name at least once so you know how to spell it and also test yourself that you’ve remembered it.
Fifteen, in your exams:
- Always cite case names; always underline case names.
- Put judges’ names in – even if you simply cite a case name, dicta and then put “(per Williams LJ)” (even as a student you can dream!).
- Always put lots of academics’ names in. Academics’ names plus year of article is even better (i.e. “As Williams (2012) rightly argued…”) or just bracketed after a long sentence (e.g. “The law of equity is really difficult (Williams, 2012)”. Another thing to remember is that if you’re not just putting the academic name after a general sentence concerning a point you’re attributing to them by putting them name in brackets, then you should put words like “rightly”, or “convincingly” or “lucidly” or “correctly”. This will show that you’re engaging with them and not just regurgitating their names and ideas.
- Write what you think will be your best answer first, your second best second, etc.Also don’t be scared about doing any Section B’s first, or any part (c)s before part (b)s etc. Doensure that you label clearly though – the examiner is unlikely to appreciate it if she has to navigate a script with lots of arrows pointing the way between different parts of your answer.
- Make sure that it’s very clear where your answer to one question ends and where your answer to the next question beings.
- Plan. This might only have to be for a minute if you’ve learnt your essay plans well enough and are lucky enough for one vaguely related to come up.(But remember that the examiner will want to read an answer to the question she has asked: don’t just regurgitate a prepared essay unless you’re asked exactly what your essay plan relates to – you are very likely to have to adapt it and think on your feet, but at least you will have got the relevant material and some sort of order in mind.) Write 8 or so bullet points i.e. one for each main point plus an introduction and conclusion.
- Remember that your introduction must be your conclusion; it must answer the entire question in one paragraph and it must contain each main point your essay will make i.e. it is basically your one minute essay plan! If you treat your introduction like an essay plan and a bit like an interview oral question which you have to answer in literally a minute or two in a nutshell you will do well and your essay will flow nicely and have structure.
- Aim for absolute clarity – use pointers like ‘first’, ‘second’ and ‘in conclusion’ to thread your argument together; this will make reading your script easier for the examiner and also demonstrate a logical approach to the question.