Law Lecture Notes - 2019 PDF

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Law Lecture Notes - 2019/ 2020 - Undergrad...

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University of Exeter coursework header sheet

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LAW1035 Constitutional and Administrative Law (ES, TRM1+2 2019/0) 1043594

Coursework: Formative Essay Submission Deadline: Thu 31st Oct 2019 14:00 Personal tutor: Miss Mathilde Pavis Marker name: N/A 690000079

Word count: 692

By submitting coursework you declare that you understand and consent to the University policies regarding plagiarism and mitigation (these can be seen online at www.exeter.ac.uk/plagiarism, and www.exeter.ac.uk/mitigation respectively), and that you have read your school's rules for submission of written coursework, for example rules on maximum and minimum number of words. Indicative/first marks are provisional only.

Exceptional (1st) 80-100 K

Knowledge

U

Understanding

A

Analysis

Q

Addresses the question

M

Use of materials

S

Structure of argument

R

Referencing

C

Excellent (1st) 70-79

Good - v.good (2.1) 60-69

Satisfactory (2.2) 50-59

Weak (3rd) 40-49

Poor (Fail) 30-39

V.poor(Fail) 0-29

Communication

- Marks in the table above indicate performance in relation to each assessment criteria to help you to identify the strengths and weaknesses of your work. Your final mark represents your overall achievement in the assessment and is not the result of adding up the numbers in the table. - The codes in the table above may be used on your essay script by the marker to help you to identify areas of your essay that are particularly strong or weak. - Please see the reverse of this sheet for details of each assessment criterion.

General comments:

Suggestions for improvement:

Agreed mark

Marker's initials:

If, after reading the comments and reviewing your essay, you have specific queries or require clarification, please see the marker / module convenor as advised by the Law School Office or the module convenor in relation to this assessment.

K

U

A

Q

M

S

R

C

Assessment Criterion

Summary

Additional guidance

Knowledge

Does the essay demonstrate appropriate knowledge, relevant to the topic and to the question set?

A good/excellent answer will demonstrate (very) detailed and accurate knowledge of most or all of the pertinent areas. A weaker answer will show gaps in knowledge and (significant) inaccuracies.

Understanding

Does the essay demonstrate a clear understanding of the issues raised by the question?

A good/excellent answer will show reasonable or good depth and breadth of understanding of the issues with few or no errors or misunderstandings. A weaker answer may be confused, muddled and contain (significant) errors and misunderstandings.

Analysis

Does the essay appropriately assess and evaluate the material and ideas considered?

A good answer will make reasoned and justified assessments of the value and significance of the material and issues considered. An excellent answer will also show evidence of independent thought. A weaker answer will be primarily descriptive; with little or no assessment of the value/ significance of the matters considered.

Addresses the question

A good/excellent answer will use the material and related discussion to address the Does the use of visual aids or written material question (explicitly) and conclude appropriately. A weaker answer, even if enhance the impact and quality of the considering material relevant to the topic, will presentation? fail to clearly relate the material to the question.

Does the essay use an adequate range and number of different materials (eg cases, statute, books, articles, wider sources) appropriate to the topic; is there engagement with scholarship and research?

A good answer will include an appropriate range of material to support assertions and show an appreciation of different sources of law. An excellent answer will fully engage with the material and may draw from a wider range of sources. A weaker answer may include statements without basing them on relevant material, or will use only one or two different sources (often textbooks/a single article), or will fail to engage with primary and secondary legal (and, if appropriate, nonlegal) sources.

Is the essay structured in a clear way; is argument structured coherently; does structure enhance analysis and development of ideas?

A good/excellent answer will have a (very) clear structure, and the structure will be used to develop the discussion or argument (very) effectively through the essay in order to reach conclusions. A weaker answer will consider issues in an unstructured and/or muddled way; even if relevant points are raised, these are not clearly identified and developed through the essay.

Referencing

Are sources referenced fully; does the essay show use of correct reference technique; is bibliography in appropriate form?

A good/excellent answer will provide references for most/all assertions made; references will be consistent and in accepted legal form; bibliography will be complete. A weaker answer will make points without providing references, or will provide inadequate or incomplete references; bibliography may be set out informally or be absent.

Communication

Does the essay use appropriate legal language; are ideas expressed clearly and fluently and using an appropriate tone for the task; is the essay clearly and effectively presented?

A good/excellent answer will be (consistently) precise and concise, use an appropriate tone, observe writing conventions and be presented clearly. A weaker answer may use informal or overly complex language or lack precision; fluency may be compromised by poor sentence structure or frequent errors of spelling, grammar or punctuation.

Use of materials

Structure of argument

This information is provided as a brief guide, for more detail on grading criteria please refer to the Law School's Undergraduate Student Handbook

With reference to the Supreme Court decisions in Miller No.1 and Miller No.2/Cherry, critically assess whether the existing judicial safeguards against the abuse of prerogative powers are sufficient Olivia Jones (692 words)

In order to assess whether existing judicial safeguards sufficiently protect the abuse of prerogative powers, it is necessary to establish what is meant by prerogative powers and judicial safeguards. Attempts have been made to define prerogative powers with Supreme Court judges in the R (Miller) 2017 defining prerogative powers as powers that encompass ‘the residue of powers that remain vested in the 1

crown’, exercised by ministers in line with Parliamentary Legislation . However, the Ministry of Justice highlights the difficulty in determining the scope of Royal prerogative power. This difficulty stems from the fact that there are many prerogative 2

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powers for which there has been no judicial authority . Judicial Safeguarding will also be explored in this essay and will examine the extent to which the safeguards are sufficient

It could be argued that R (Miller) v Secretary of State for Exiting the European Union 4

[2017] UKSC 5 is one of the most constitutionally significant cases in a generation. As a result of Supreme Court ruling, the Justices held (by 8-3) that the UK could not

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R (Miller) v Secretary of State for Exiting the European Union para 47 Ministry of Justice, Review of the Executive Royal Prerogative Powers: Final Report, 2009, paras 26 & 27 3 Safeguards are needed to ensure that Judges are free to make their judicial decisions without fear or favour and thus to preserve their independence. 4 file:///Users/olivia/Downloads/SN03861.pdf (argued by Michael Everett in House of Commons Briefing Paper

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trigger Article 50 under the Lisbon Treaty without an Act of Parliament. Triggering Article 50 under this Treaty expresses provision ‘entitling a member state to withdraw 6

from the European Union.’ However, the ruling also stated that the UK government was not compelled to consult the devolved institutions or obtain their approval to withdraw. The questions raised here highlight how there are judicial safeguards in place in order to deal with situations such as the Miller case. This may be said as the judiciary found that this matter was justiciable and could therefore use their powers 7

how they deemed necessary. These principles are embodied in the Case of Proclamations, reinforced by the Bill of Rights 1688. This stated that the ‘pretended power of suspending of laws or the execution of laws by regal authority without parliamentary consent is illegal’

However, judicial safeguards may not be sufficient as other limits to the power of prorogation may indeed prove sufficient; such examples include parliamentary sovereignty

and

democratic accountability. When the government invoked

prorogation and if the power was unchecked then the Executive would have succeeded in proceeding with prorogation. Legal consequences for parliament include a reduced ability to scrutinise and make laws as well as undermining parliamentary sovereignty. Lord Bingham supported the importance of Government conduct being accountable to Parliament as well as judicial safeguards stating that this ‘lies at the heart of Westminster democracy’

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Supremecourt.uk. (2017). https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf [Accessed 30 Oct. 2019]. 6 Supremecourt.uk. (2017). https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf [Accessed 30 Oct. 2019] (para 25) 7 Craig, P. (n.d.). [online] Ora.ox.ac.uk. (Page 5) 8

Supremecourt.uk.  (2019). https://www.supremecourt.uk/cases/docs/uksc-2019-0192-summary.pdf [Accessed 30 Oct. 2019].

On the case of R (on the application of Miller) v Prime Minister; Cherry v Advocate General for Scotland [2019] UKSC 41, two appeals were brought before the Supreme Court. One from the High Court of England and Wales and one from the Inner House of the Court of Session in Scotland. The issue arose, not about the UK leaving the European Union, but whether the advice given by the Prime Minister to Her Majesty about whether Parliament should be prorogued and if this was lawful. If not, then legal consequences should follow. As ruled upon by the Justices, it is evident that the Executive abused their prerogative powers by proroguing parliament 9

without lawful justification therefore rendering the Executive’s decision null and void.

This is because the executive provided ‘no legal justification’ for the prorogation of parliament. The Supreme Court found that this prorogation did have the effect of frustrating or preventing the ability of Parliament to carry out constitutional functions without this justification. As a result, this ruling provides support that judicial safeguards are in place to protect against prerogative power abuse as the judiciary used its safeguards to grant a remedy deeming the prorogation ‘null and of no effect’ and therefore resulting in this prorogation being quashed.

Overall, it is evident that not only are there judicial safeguards in place in terms of dealing with abuse of prerogative powers as shown by the cases of Miller and Cherry but also, they are sufficient in protecting abuse against prerogative powers.

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Supremecourt.uk.  (2019). https://www.supremecourt.uk/cases/docs/uksc-2019-0192-summary.pdf [Accessed 30 Oct. 2019]....