PUBLIC LAW 1

2017-2018

LW 588

AUTUMN TERM SEMINAR GUIDE

Welcome!

Welcome to the study of Public Law 1. We hope you find it an enjoyable and
rewarding course. There is a great deal of useful information in the Module Guide to
the course. You were given a hard copy of this during Welcome Week and there is a
virtual copy on Moodle. Please read it if anything is not clear speak to your seminar
leader.

Seminars take place weekly with the first seminar taking place in week 2. There is
little preparation for this introductory seminar but please do read the seminar details
listed below at Seminar 1. Future seminars will require extensive preparation and you
will need to plan your study time carefully. You should start preparing for seminar 2
as soon as possible as it requires sustained reading.

Seminars

You are provided with an instruction sheet for each seminar. These sheets will
set out the objectives of the seminar
indicate the preparation required before the seminar all readings listed
there are essential
set out questions which you must answer in writing prior to the seminar,
and which will be discussed during the seminar
o NB: Seminar leaders will check preparation for seminars has been
completed by each student
where appropriate, suggest further reading so that you can extend your
knowledge and understanding.

After the seminar

After each seminar you should make additions to your notes, re-reading the
readings/cases if necessary. Any of the additional readings that you did not get to
read before the seminar you should look at now. Check that you understand the
terms we have highlighted in the questions or that have arisen in lectures or
seminars. The more useful the notes you make at this stage, the more useful they will
be for the future. Dont forget, everything you learn will be assessed at some stage
of the course.
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 Getting the most out of seminars
Seminars are key to success in this module. To ensure that you get the most out of them:-

Prepare fully, taking notes and ensuring that if you have found any material
difficult, you are ready to ask questions about it.

Arrive promptly. Check that you know where you are going before the first
seminar!

Bring your materials and paper and pen to take notes.

Participate in the seminar. You only learn by taking risks. We are not looking for
the right answers necessarily what we want is an intelligent engagement with
the subject matter. Ask questions, particularly about any difficulties you have
encountered.

Use the seminars to help you voice your thoughts. Finding your voice is a crucial
dimension of Higher Education - and one which ensures your work is original.

Listen to the views of others. You might not agree with them, but all contributions
are useful in developing our understanding of materials. Respond courteously, but
make your point of view clear.

After the seminar, think again about the questions and the discussion and amend
your notes appropriately. Your seminar notes are a very valuable resource for your
written work and your exams.

Attendance

You must make every effort to attend the seminar for which you are timetabled.

Seminar attendance is taken very seriously by the Law School and non-attendance
will be noted. More importantly the assessment of Public Law 1 is based upon the
knowledge and skills which are developed within the seminars. Success depends
upon participation in seminars.

If you are unable to attend a particular seminar for a good reason please tell your
seminar leader and arrange to attend another seminar in that cycle. If the alternative
seminar is led by a different seminar leader then ask them if it is all right to attend
some seminars are very full, so it may not always be convenient.

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The Law School Student Guide includes the following paragraph in connection with
Law School seminars.

Seminars are a crucial element of our learning and teaching strategy and are
designed to ensure that all students who come prepared benefit from attendance.
Seminar attendance is compulsory, is monitored and performance in seminars is used
by staff in preparing references. Students are expected to prepare fully for seminars
and to contribute to discussions. As a last resort, seminar leaders have the discretion
to ask a student to leave a seminar if, in their view, the student's presence is
impeding the learning experience of other students in the seminar. In some
circumstances this may include students who fail to meet the requirement to
prepare.

What is on Moodle?

On Moodle you will find:

your seminar instructions
copies of essential readings that are not contained within your set text
some cases (but not all we want to know that you can locate cases for
yourselves)
suggestions for additional reading, but not the text (you will have to go to
the library and copy what you need)
sound recordings of lectures
power point slides where provided by the lecturer
useful links, for instance to helpful radio programmes or to websites
assessment instructions
updates on the course

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Seminar 1 Introducing Public Law

Week 2

Objectives

This seminar will:

Introduce you to your seminar leader and the other students in your seminar
group
Explain how seminars operate and how you can get the most out of them
Discuss the reading materials you will be using during the year
Consider study expectations and the need for independent research
particularly in relation to your assessments
Provide an opportunity to discuss a topic relevant to Public Law
Ensure that you know what to do in order to be prepared for your next
seminar

Preparation
Think about what the term public (in public law) means to you and why it
might be important for you as both a citizen and a law student
Bring in some visual images that might represent a citizen or the state
Read a broadsheet newspaper like the Guardian, Independent or the Times
(they are available online as well) and see if you can identify any news stories
and cases that relate to public law
Familiarise yourself with these two online public law resources/blogs:
o http://ukconstitutionallaw.org/blog/ (This is the blog of the UK
Constitutional Law Association and it contains short authoritative
pieces by leading constitutional lawyers in the UK and internationally)
o http://ukhumanrightsblog.com (It includes case lists, news update,
articles, history by human rights articles and by topic)

In the seminar:

You will be asked about any news items and images you have found and how
they are relevant to public law.

You will be given a news item relevant to public law and will be asked to read
it in the seminar. The seminar leader will then facilitate a discussion on the
topic and invite comments from students.

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Seminar 2 Democracy

Week 3

Objectives

This seminar will:

Help develop the skill of close textual reading
Enable you to analyse the purpose of some of the variants of modern
government, particularly liberal legal institutions
Introduce you to some of the key thinkers who have been influential in the
theories of the state and the role of government
Encourage you to identify key ideas in political philosophy that enabled limits
on government power and critically analyse and discuss them

Preparation

Read the following extracts from David Helds book Models of Democracy 3rd edn
(2006 Cambridge: Polity):
pages 1-8 (from the Introduction) and
Chapter 3, (pages 56-70) The Development of Liberal Democracy: For and
Against the State
These extracts can be found in the Public Law 1 materials pack.
Rule of law
Questions

Students should prepare ALL these questions when doing the reading. The seminar
leader may parcel out specific questions for individuals to present.

1a. Is democracy simply about voting or should it involve more than that? Consider
the nature of what one is voting for:
political parties in a general election
a head of state or particular policies
a new constitution or
separation - independence for a region and so on.

1b. Who determines the nature of the subject matter that voters get to vote on?

2. To what extent if any, do you think conditions should be placed on individuals

participating in a democracy? For example, should any of the following requirements
be imposed:
- the ability to read and write
- financial solvency
- a university degree

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- not be a prisoner or someone who has been convicted of a crime?

3. What is the difference between direct (participatory) democracy and liberal

(representative) democracy?

4. Explain the core idea of liberalism as David Held characterises it. What dilemmas
does this theory face?

Hobbes & Locke- pages 60-70

5. What was the central problem that Thomas Hobbes was addressing? Identify the
liberal and illiberal elements and consequences of his thinking.

6. What are the starting assumptions in John Lockes political thinking and how are
his ideas different to those of Hobbes?

Further Reading

Adam Tomkins, Our Republican Constitution, 67-87

David Held, Models of Democracy, Chapters 2 and 4.

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Seminar 3 The limits of Democracy Brexit and Parliamentary Sovereignty

Week 4

Objectives

This seminar will:

Introduce you to the political context and (legal) arguments relating to the EU
referendum that took place on 23rd June 2016
Enable you to identify and reflect upon the arguments for and against Brexit
that relate to the idea of democracy and its potential limits
Introduce the idea of parliamentary sovereignty and its role in a liberal
democratic state

Preparation

To answer the questions below find information from:

o Websites on Vote Leave and the Remain campaigns in the EU
referendum
o online broadsheet newspaper articles (e.g. from The Guardian,
Independent, Times etc.)
o public law resources/blogs:
http://ukhumanrightsblog.com
http://ukconstitutionallaw.org/blog/
Re-visit pages 60-70 from David Helds book Models of Democracy 3rd edn
(2006 Cambridge: Polity) which you read for last weeks seminar.

Questions

1. What were some of the key reasons given by each side for voting leave or
remain?
2. Outline the arguments given by the vote leave campaign that relate to the
sovereignty of the UK parliament. How do they think Brexit will be an
improvement from the current situation?
3. The Government wanted to trigger Article 50 using an executive power (the
royal prerogative) but the Supreme Court said in the Miller case [2017] that
an Act of Parliament was required to authorise triggering Article 50. Do you
think it should have been left to the government or was it right that
Parliament needed to authorise it by an Act of Parliament? Explain your
reasoning.
4. To what extent was the referendum a good thing for democracy? Answer this
in light of the ideas of Hobbes and Locke discussed in the previous seminar.

Week 5: Reading Week

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Objective: To prepare for Assessment 1 by using the time in reading week to
undertake the significant amount of reading and preparation for seminars 4 and 5.

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Seminar 4 Parliamentary Sovereignty

Week 6

Objectives

This seminar will:

Promote your understanding of parliamentary sovereignty as a key

constitutional principle in the UK
Begin exploring the relationship including any tensions between
parliamentary sovereignty and the rule of law

Preparation

Read the relevant chapters from the following textbooks:

Chapter 2, Loveland, Constitutional Law A Critical Introduction, 7th edition

(2015, Oxford: OUP)
Or
Chapter 2, Le Sueur, Sunkin and Murkens, Public Law Text, Cases and
Materials, 3rd edition (2016, Oxford: OUP)
And
Read the Brexit case: R (Miller) v Secretary of State for Exiting the EU [2016]
EWHC 2768, in particular:
the 2 page summary of the judgment,
paragraphs 18-31 (on sovereignty of Parliament) AND
paragraphs 85-88 (on prerogative powers).

The judgment is on Moodle and can also be found here with the 2 page
summary: https://www.judiciary.gov.uk/judgments/r-miller-v-secretary-of-
state-for-exiting-the-european-union/

Watch:

Short clip on the Miller case:

http://rightsinfo.org/article-50-brexit-judgment-plain-english/

Questions

1. In brief explain what sovereignty is and parliamentary sovereignty in

particular.

2. What were the historical tensions from which sovereignty emerged? Who or
what is the source of sovereignty: judges, the people, parliament itself?

3. Explain the following terms, citing relevant case law:

a. The enrolled bill rule
b. The doctrine of implied repeal
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 c. Constitutional statutes

4. What are the key facts, legal issues and ratio in the Miller judgment in the
High Court?
5. What are the key features of Parliamentary Sovereignty outlined in the
judgment paragraphs 18-31?
6. What role does the royal prerogative play in this judgment? Explain both
the government position on the prerogative and the argument of the other
side.
7. What is the constitutional significance of this case?

Additional Question

8. Should the doctrine of parliamentary sovereignty be replaced by a supreme

constitution to which Parliament, the government, and other public bodies
would be subject, as exists in most other countries? Explain why or why not.

Further Reading

Mark Elliott, The Principle of Parliamentary Sovereignty in Legal,

Constitutional and Political Perspective, in Jeffery Jowell, Dawn Oliver and
Colm OCinneide The Changing Constitution (8th edition). (OUP, 2015).

Lord Bingham, The Rule of Law and the Sovereignty of Parliament, Lecture
given at Kings College, London, 31st October. (In the materials pack).

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Seminar 5 Rule of Law

Week 7

Objectives

To understand the nature and content of the rule of law

To understand the link between the rule of law and its moral content
To explore how liberal values, and alternatives to these, underpin a legal
system and the rule of law

Preparation

Read:

Joseph Raz, The Rule of Law and its Virtue (1977) 93 Law Quarterly Review
195-202.

Lord Bingham, The Rule of Law (2007) 66 (1) The Cambridge Law Journal 67-
85 (especially pages 69-82)

Both these texts are in the materials pack.

See also the relevant chapters from the textbooks:

Chapter 3, Loveland, Constitutional Law A Critical Introduction, 7th edition

(2015, Oxford: OUP)
Or
Chapter 3, Le Sueur, Sunkin and Murkens, Public Law Text, Cases and
Materials, 3rd edition (2016, Oxford: OUP)

Questions

1. A friend or family member asks you to explain the key ideas of the rule of the
law. How would you explain the idea in a way that a non-specialist could
understand?
2. Explain what is meant by the formal conception of the rule of law, what are
the different aspects that Raz and Dicey discuss? Give specific examples.

3. Drawing on Lord Binghams article explain what is meant by the substantive

conception of the rule of law?

4. Do you favour one of the conceptions of the rule of law over the other?
Explain your thinking. Can you have one conception of the rule of the law
without the other or are they interdependent?

5. What role do human rights play in upholding the rule of law? To what extent
does human rights legislation need a special constitutional status?

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Seminar 6 Limits to the Rule of Law

Week 8

Objectives

To understand the nature and content of the rule of law

To understand the link between the rule of law and its moral content
To explore how liberal values, and alternatives to these, underpin a legal
system and the rule of law
To explore the limits of the rule of law

Preparation

Read:

At least Lord Binghams judgment (pages 89-127) in A v Secretary of State for

the Home Department [2005] 2 AC 68 (Belmarsh case)
and
Baroness Hales judgment (pages 170-175) from A v Secretary of State for the
Home Department [2005] 2 AC 68 (Belmarsh Case).

Both judgments are in the materials pack.

Watch the film Stealing a Nation by John Pilger at:

http://johnpilger.com/videos/stealing-a-nation

Questions

1. Outline the key facts, legal issues and ratio in the Belmarsh case. You will
need a detailed knowledge of the case to answer this. Please draw on both
judgments and any others you have read.

2. Consider in what way the tension between parliamentary sovereignty and the
rule of law manifests itself in Lord Binghams decision of A v Secretary of
State for the Home Department (Belmarsh case).

3. How does Baroness Hale view this tension and in particular how does she
envisage the separation of powers and the different roles of the legislature,
executive and judiciary.

4. What are the limits to the rule of law in this and other cases?

5. How would you have decided this case and why?

Further Reading
Jeffrey Jowell, The Rule of Law in Jeffery Jowell, Dawn Oliver and Colm
OCinneide The Changing Constitution (8th edition). (OUP, 2015).

Lord Hoffmans judgment in Bancoult v Foreign Secretary (No 2) (HL) (2009) 1

AC 453 (available in the Materials Pack)

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Seminar 7 The Royal Prerogative & Government Accountability

Week 9

Objectives

Understand a major source of power held by the executive

Enable you to locate its historical nature
Apply your understanding of the power in the context of a decided case
Identify the function of the courts in relation to this power
Encourage you to consider the powers that the Executive needs and the form
they should take

Preparation

Read:
Sebastian Payne, The Royal Prerogative in M.Sunkin and S.Payne (eds) The
Nature of the Crown (1999 Oxford: OUP). This is available on moodle.

R v Secretary of State for the Home Department, ex parte Northumbria Police

Authority [1989] 1 QB 26 (CA)

See also chapters from the textbooks on the Royal Prerogative:

Chapter 9, Le Sueur, Sunkin and Murkens, Public Law Text, Cases and
Materials, 3rd edition (2016, Oxford: OUP)
or
Chapter 4, Loveland, Constitutional Law A Critical Introduction, 7th edition
(2015, Oxford: OUP).

Questions

1. What are prerogative powers? Give some examples.

2. What is the role of the courts with regard to prerogative powers?

3. Are prerogative powers necessary for the Government to function? Explain

your reasoning.

4. Analyse the Northumbria Police Authority case and answer the following
questions:
a. What were the facts of the case?
b. What were the issues in relation to the royal prerogative?
c. What did the judges decide and do you agree with their reasoning?

5. Why do you think prerogative powers might need reforming?

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Week 10: Writing Week - No seminars or lectures.

Assessment due 2pm, Thursday 30th November

Seminar 8 in Week 11 preparation and questions will be available on moodle.

Week 12 Revision Week: drop-in sessions (times and location to be confirmed by

your seminar leader).

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