Public LAW mock exam - essay plan which enabled me to attain a 2.1 PDF

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PUBLIC LAW SEMINAR 19: MOCK ASSESSMENT

To what extent does McLoughlin uphold or undermine the constitutional doctrines of parliamentary sovereignty, the separation of powers and the rule of law?  Please approach this how you wish. You may treat it as a timed exam question (40 minutes) or something more akin to a coursework question. Please approach it in the way you feel would help you most.  Please submit to your seminar leader by e-mail by 5pm on the day you would normally have your Public Law seminar.  Late submissions will not be marked.  In your covering e-mail, please indicate whether you approached it as an exam or coursework.  If you would like to, please indicate, in your covering e-mail: o What you would find it most helpful to receive feedback on o How difficult you found it on a scale of 1-10 (1 being the easiest and 10 being the most difficult) o Reasons for giving the score you have It is debatable as to whether all the doctrines such as separation of powers, rule of law and parliamentary sovereignty have been upheld or undermined through the case of Mclaughlin. However it can be argued all doctrines have been upheld to an extent where Mclaughlin highlights issues regarding parliamentary supremacy and how the law was decided by parliament, the rule of law where proportionality was measured and separation of powers to see how power was divided between the 3 branches of separation of powers.

The constitutional doctrine of Parliamentary sovereignty can be seen to be upheld to an extent within the case of Mcloughlin. This doctrine is defined by legal theorists, prominently Dicey who argues that Parliament is the supreme law maker and attempts to define this

doctrine with 3 principles. Dicey’s first principle confirms that legally the Parliament of the day may pass any law, amend and repeal any law Its choses since it is a supreme law-making body. The third principle highlights that once Parliament has enacted a law it has been brought into force, meaning that no court has the power to challenge the legal validity of an act of parliament since it is the highest form of law in the UK and cannot be overridden by the monarch nor the common law. Although Parliament is seen as more powerful than other bodies the case of Mcloughlin challenges the extent to which Parliament was powerful in this case, whereby Judges have to the UK law in certain types o European law that are considered to be greater in the hierarchy. This means where there is a direct contradiction between UK and EU law the EU law must be applied. In the case of Mclaughlin this is demonstrated in the discussion of their breach of Human rights that ‘discriminates the survivor…contrary to article 14 of the ECHR when read with article 8’. The supreme court held that the rule proves to be incompatible with Human rights law, as a result this ruling would pressure the government to change the rules and choosing to undermine Parliamentary sovereignty. With regards to Dicey’s statement that Parliament is the supreme law-making body, this is certain however where this supremacy is undermines through contradictions with EU law it can be argued that this idea of supremacy is undermined. The rule of law is a doctrine that ensures all people and institutions are subject to and accountable to law that is fairly applied and enforced, the principle of government by law. The rule of law and substantive judgements can be seen to directly have been upheld within the case of Mclaughlin, where the courts were required to review the substance of the executives decision in matters related to human rights. It was clear that the Supreme court oversaw the executive’s decision and even previously to the appeal when Mclaughlin applied for judicial review, such review was restricted to legality, rationality and procedural propriety to ensure the executive’s decision was checked as well as a review of the decision’s content. The claimant complained that the United Kingdom’s social security legislation discriminated against her because she was not a married surviving partner by denying her a right to widow’s benefits available to married women. Yet the ECtHR treated the right to widow’s benefits as a pecuniary right for the purposes of A1P1 and saw no need to determine whether the facts of also fell within the ambit of article 8. With regards to the Shackell v UK case 2000, that was ruled inadmissible on basis of complaint that a denial of widow’s benefits to unmarried surviving partners was discriminatory and that holding marriage conferred a special status that differed from cohabiting. However, it can be argued the case was a ruled out unfairly as this present case of Mclaughlin demonstrates that the relevant fact is not the public commitment but the co-raising of children. WPA’S purpose is to benefit children and makes no difference if the couple were married or not. Under the rule of law case law of R (on the application of Alrawi and others) v Secretary of state for Foreign and Commonwealth Affairs and another (2006) also demonstrates that the Court of Appeal believed that the role of the courts expanded in human rights cases to consider proportionality of the decision as well as strict compliance of the law. It is clear through the Mclaughlin case that although the promotion of marriage and civil partnerships has a legitimate aim and WPA is a small package of social security measures for married couples, it was not proportionate of achieving the legitimate aim to deny Ms Mclaughlin and children the right to a child benefit solely because she was not married. The purpose of WPA is to diminish financial loss caused to families and children by a death of the parent. The rule

of law can eb evidently seen to be upheld within the case of Mclaughlin as judges through judicial review-maintained legality, rationality as well as proportionality.

The separation of powers is a doctrine that is Britain’s concept of of the powers of Parliament, executive and courts are divided, and each show exercise powers accordingly. In turn the government powers should eb exercised by legislative, executive and judicial means. The separation of powers is divided into three organs of states and these organs must communicate with each other to run the country together effectively even if constitution is written still certain requirements must be followed to govern the country smoothly. Although the separation of powers may have visible overlaps there is a system of checks and balances to ensure all roles are allocated effectively, involving each branch having an eye on the others and also required each organ to be protected against interference by others out of perimeters. It can be seem through the Mclaughlin case that the separation of powers was held through the executive, legislative and judicial powers of government all being applied, all having a separate, unique and equal form of power. The executive power can be shown through the CCSU v minister of state for the civil service 1985 GCHQ case where the House of lords ruled the executive can be judicially reviewed even when it comes from royal prerogative. To conclude, it can be seem although parliamentary supremacy enables parliament to be more powerful than most bodies, there are restrictions and limits to its sovereignty in the sense that UK law can be altered b y EU law and therefore demonstrates that Parliament may be subject to altering legislation on behalf of EU law or violations to Human rights.This could be seem in the Mclaughlin case where rights had been violated with regards to the s 39a being seem as incompatible with article 14 of ECHR read with article 8, precluding the entitlement to the WPA. The rule of law can be seen to show that judicial review may also limit parliament power where decisions of public bodies are examined. Lastly the separation of power illustrates a clear and unique conduct of powers through each of the branches that make up parliament....