LAW TRIPOS PART IA LAW TRIPOS PART IB EXAMINATION IN LAW FOR EUROPEAN STUDENTS ______________________________________________________________________________ Monday 26 May 2008

9 to 12 ______________________________________________________________________________

Paper 2 CONSTITUTIONAL LAW Answer four questions. Answer all parts of a divided question unless directed otherwise. You may use your own copy of Blackstones Statutes on Public Law and Human Rights (any edition).

STATIONERY REQUIREMENTS 20 Page Answer Book x 1 Rough Work Book x 1 Tags

You may not start to read the questions printed on the subsequent pages of this question paper until instructed that you may do so by the Invigilator

2 1 Explain the concept of the rule of law. Is it a sufficiently determinate concept to provide useful guidance to courts? 2 Either (a) How far does the modern law regarding the royal prerogative, including its susceptibility to judicial review, reflect the courts understanding of present-day realities concerning the nature and functions of the Crown? To the extent that recognising such realities involves taking account of constitutional conventions, does it involve giving legal force to those conventions? Or (b) Is judicial review of executive action an affront to, or an essential means of enforcing, the separation of powers? To what extent is the compatibility of judicial review with the separation of powers compromised by the courts growing willingness to examine the substance of government decisions, not just the process by which they are made? 3 Either (a) If the sovereign Parliament can redefine itself downwards, to remove or modify a requirement for the consent of the Upper House, it may very well be that it can also redefine itself upwards, to require a particular parliamentary majority or a popular referendum for particular types of measure. In each case, the courts would be respecting the will of the sovereign Parliament as constituted when that will had been expressed. [R. (Jackson) v. Attorney General (2005) per Baroness Hale of Richmond] How far, if at all, do you agree with this suggestion? Or (b) Recent constitutional developments, such as the entry into force of the Human Rights Act 1998 and the introduction of devolution, are formally consistent with the doctrine of parliamentary sovereignty. However, they throw into sharp relief its deficiencies as a means of understanding the nature and source of law-making power in a modern liberal democracy. How far, if at all, do you agree with this statement? 4 Either (a) The Human Rights Act 1998 mainly gives explicit parliamentary sanction to independent developments in common-law adjudication, and its repeal would make little practical difference to the quality of justice available in English courts. How far, if at all, do you agree with this statement? Or (b) What features of the British constitution inhibit effective parliamentary oversight of the executive branch? Is the delegation by Parliament of law-making powers to the executive acceptable in constitutional terms, and are there adequate safeguards against the abuse of such delegated legislative powers?

3 5 The (imaginary) Planning Act 2008 provides that, whereas planning applications are usually to be determined by local authorities, the Secretary of State may call in any application concerning a major infrastructure project, removing it from consideration by the relevant local authority and deciding upon it himself or herself. (i) The Secretary of State calls in and approves an application to build a large outof-town shopping centre in an economically under-performing part of the country close to several marginal constituencies currently held by Government MPs. Keep England Green, an environmental pressure group, is outraged by this decision, not least because the Secretary of State published a policy document in 2006 stating that in light of the environmental impact, permission will not in future be given for any out-of-town retail development. (ii) An application, made by Brookfield plc, to build a small animal research laboratory is called in and rejected by the Secretary of State. She states that her decision is based on a report (only a summary of which has been shown to Brookfield plc) which claims that the construction of the laboratory would threaten a nearby natural habitat that is home to an endangered species of newts. In 2007, the Secretary of State made a speech denouncing animal experimentation as a barbaric practice which can never be justified. Advise Keep England Green and Brookfield plc. 6 Assume that a Directive known as the Noise Pollution Directive is adopted by the European Union. The Directive provides (inter alia) that Member States must, by 31 March 2008, ensure that no commercial, industrial or other undertaking is permitted to cause noise, between 2100 hours and 0600 hours, which is audible within a residential dwelling at a level in excess of 40 decibels. On the assumptions that the United Kingdom government has done nothing in response to the Directive and that domestic law makes no provision regarding noise pollution, advise each of the following: (i) Alice, who lives next to a Ministry of Defence firing range where night-time exercises frequently cause noise in excess of 40 decibels; (ii) Bert, who owns a long-established country house hotelat which business has recently declined sharplywhich occupies premises near Jazzers, a new nightclub that causes noise pollution of up to 60 decibels on several nights each week; (iii) Clarrie, who runs a residential clinic treating people with sleep disorders, situated close to a waste incinerator owned by Aldridge Recycling Ltd. The incinerator, which produces electricity that is sold to the national grid, causes night-time noise in excess of 40 decibels from time to time. What difference, if any, would it make to your answer if UK law made identical provision to that of the Directive, save that it provided that night-time noise in excess of 40 decibels would not be unlawful if it could be reasonably justified?

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4 7 The BBC broadcast film of a man and a woman leaving a building. They looked distressed. It was just possible to make out the words on a sign above the door of the building: KwiknEazy Abortion Clinic. The presenter of the programme explained (in a voice-over) that the people in the film were the celebrity TV crocodile-tamer Goofus McGonagle with his wife and former Miss World, Cassandra. After the film, the presenter stated that the relationship between Mr and Mrs McGonagle had been under strain, that each of them was known to be seeing other people, and that Cassandra had sought a termination of her pregnancy in order to avoid bringing another child into an unstable family environment. All the details in the film and story are correct. The next day the BBC published on its internet website photographs of Mr and Mrs McGonagle having a picnic with their three-year-old daughter in Hyde Park, with a short article stating that the McGonagles were making a brave attempt to keep up appearances in public. Mr and Mrs McGonagles solicitor has written to the BBC claiming that the BBC is a public authority and so owes a duty to respect her clients privacy, and threatening legal action. Advise the publishers. Would your advice be different if the pictures and stories had been published not by the BBC but by the Daily News, a privately owned newspaper, and you were advising the Daily News? 8 To what extent (if at all) has the Human Rights Act 1998 affected the law relating to public protest? 9 How successfully does the law governing the offence of contempt of court balance the right to a fair and public hearing with the right to freedom of expression?

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