2.1.3 Constitutional Institutions Lecture - Hands on Examples
The following scenario aims to test your knowledge of the Constitutional Institutions within the UK. The answers can be found at the end of this section. Try to consider the relevant rules and principles, which relate to this scenario and apply them in a methodical manner.
Do not be put off if it is not immediately apparent, problem questions require you to understand the law as opposed to just learning and memorising it. Refer back to the notes if necessary, this should help you understand how the Government is established and how there are important roles for each of the three branches within the separation of powers to both work with other branches but to provide important safeguards against abuse of power.
Part A: The UK Secretary of State is conferred powers under the Children and Young Peoples Act 2010 (fictitious) to set up funds to offer victims of bullying in schools with financial compensation. The Home Secretary stated that she did not agree with the fund, that it was the bullies' parent's fault and that they should pay any compensation due. She reiterated that she would neither introduce the fund, nor did she intend to do so in the future.
Q1: Has the home secretary exceeded her powers and why?
Part B: Doreen has established a group within her local constituency to protest about the introduction of hydraulic fracturing (fracking) in their local area. She writes to her MP, Maureen and requests that Maureen oppose a bill that is being introduced into the House of Commons for consideration on the widespread use of fracking techniques in England and Wales. None of Maureen's other constituents have registered support for fracking.
Q2: How should Maureen vote when the bill is introduced into the House of Commons?
Part C: The UK government introduces the Public Place Act 2015. Section 5 of the Act provides that "no members of white supremacist groups shall participate in public protests". Bob the White Supremacist has been detained by the police under s.5 of the Act and then charged with offences under the Public Place Act 2015. Bob claims that his rights under Article 11 of the ECHR have been breached.
Q3: How should the court address the conflict between the 2015 Act and Bob's human rights?
Part D: The United Kingdom has carried out a referendum and the majority (69%) of voters have voted to leave the EU in 2011. The Underground Tunnels Directive 2014/47/EC (fictitious) has been passed by the European Commission, which requires that Member States fill in all undergrounds subways and underpasses. The UK implemented the Directive by means of the Subways and Underpasses No More Act 2016 (fictitious). The UK are due to leave the EU on 30 December 2016;
Q4: Will the Undergrounds Tunnels Directive still apply?
1)The legal issue in this scenario is whether or not the home secretary as a member of the executive has the power to overrule a piece of legislation, which has been passed by the legislature. It introduces the doctrine of the separation of powers. R v Secretary of State for the Home Department, ex p Fire Brigades Union  2 AC 513 is a key case, in which the majority of the House of Lords held that the Home Secretary had acted unlawfully in ruling out the possibility of a statutory compensation scheme.
Answer: The home secretary has exceeded her powers in attempting to repeal an act of Parliament, but also note the implications for judges being involved in what might be considered a 'political' matter.
2)There are a number of ways that Maureen could vote, as the ways in which an MP should represent their constituent's wishes are not clearly established. Maureen has the choice to either support what she feels is the majority view of her constituents, which may be in opposing the fracking bill, or she may consider the issue as a whole and try to understand the pros and cons of the new law. She can do this through listening to the House of Commons debates and then making an informed decision about the bill. She would then vote accordingly.
3)The question requires a consideration of section 3 and section 4 of the Human Rights Act 1998. Under section 3 the court is required to interpret the 2015 Act in the light of Convention rights. If the court feels it is unable to 'read in' the right to peaceful assembly under Article 11 of the ECHR. If this is not possible, under section 4 of the Act, the higher court should make a 'declaration of incompatibility' since it finds the 2015 Act to be incompatible with Convention rights. It should also be noted that the court does not create a new law to address this problem, but that the legislature then has the option to repeal or amend the legislation.
4)The legal issue in this example relates to the impact of EU membership on the legal system of the UK. Once the UK has left the EU it is no longer subject to European legislation. The important point in this question is that the UK has implemented the EU Directive by implementing a piece of domestic legislation in the form of the Subways and Underpasses No More Act 2016 that is UK law whether or not the UK is a member of the EU. The choice would then be available to the UK legislature whether or not it wished to repeal the 2016 Act.
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