Constitutional law: practice questions with explanations

1What constitutional law is

Constitutional law sets up the state. It says who makes the laws, who governs, who judges, and what limits protect the individual against all three.

Most of the rules are in a constitution. A codified constitution collects the main rules in one written document, as in the Netherlands, Germany and the United States.

The United Kingdom has a largely uncodified constitution. Its rules are spread over Acts of Parliament, court judgments, the royal prerogative and non-legal conventions.

A rigid constitution can be amended only by a special procedure. The Dutch Constitution, for example, needs a proposal, new elections and then a two-thirds majority in both chambers (Article 137).

State power is divided between three branches. This is the separation of powers:

• The legislature (parliament) makes laws.
• The executive (government, ministers, public bodies) carries them out.
• The judiciary (the courts) decides disputes and applies the law, independently of the other two.

In a parliamentary system such as the UK or the Netherlands, the government depends on the confidence of parliament. In a presidential system such as the US, the head of the executive is elected separately.

2The core principles

The rule of law. Everyone, including the government, is subject to the law. A public authority needs a legal basis for what it does, especially when it interferes with rights.

The classic case is Entick v Carrington: officers searched a writer's house under a warrant that no law allowed a minister to issue. The search was unlawful.

Parliamentary sovereignty (UK). As Dicey described it, Parliament can make or unmake any law, and no body can override an Act of Parliament.

• Parliament cannot bind its successors: a later Act impliedly repeals an inconsistent earlier one (Ellen Street Estates).
• “Constitutional statutes” such as the Human Rights Act can be repealed only expressly, not impliedly (Thoburn).
• Courts will not examine whether Parliament followed its own procedures (Pickin v British Railways Board).
• While the UK was in the EU, courts disapplied an Act that conflicted with EU law (Factortame).

Constitutional conventions are non-legal rules of political practice that are regarded as binding. Examples are ministerial responsibility and the Sewel convention on devolved matters. Courts recognise conventions but do not enforce them (Miller, 2017).

The royal prerogative is a set of powers of the Crown recognised by the common law, not created by statute. Its use can be judicially reviewed (GCHQ), and it cannot be used to change the law or frustrate Parliament (Miller, 2017 and 2019).

3Rights and judicial review

Judicial review lets courts check whether public bodies act lawfully. It looks at how a decision was made, not whether it was the best one. In the GCHQ case Lord Diplock named three grounds:

• Illegality: the body misunderstood or exceeded its powers, used them for an improper purpose, or ignored a relevant consideration.
• Irrationality: Wednesbury unreasonableness, a decision so unreasonable that no reasonable authority could have made it.
• Procedural impropriety: unfair procedure, for example no chance to respond (Ridge v Baldwin) or apparent bias (Porter v Magill).

The claimant needs a sufficient interest and must act promptly, and in any event within three months.

The European Convention on Human Rights (ECHR) was made within the Council of Europe and is enforced by the European Court of Human Rights in Strasbourg. It has two kinds of rights:

• Absolute rights allow no interference and no derogation, for example the prohibition of torture and inhuman or degrading treatment (Article 3).
• Qualified rights (Articles 8 to 11: private life, religion, expression, assembly) can be restricted if the restriction is prescribed by law, has a legitimate aim and is necessary in a democratic society.

“Necessary” is tested by proportionality: the measure pursues a legitimate aim, is suitable, goes no further than necessary, and strikes a fair balance. States have some discretion, the margin of appreciation.

The UK Human Rights Act 1998 brings the Convention into UK law:

• Section 3: courts read legislation compatibly with Convention rights, so far as possible (Ghaidan v Godin-Mendoza).
• Section 4: if that is impossible, a higher court can make a declaration of incompatibility. The Act stays in force; Parliament or a minister decides whether to change it.
• Section 6: it is unlawful for a public authority to act incompatibly with Convention rights.

4The method for a problem question

Most problem questions ask whether a public body acted lawfully or whether a right was breached. Use this order:

1. Identify the decision-maker and the source of its power: an Act, delegated legislation or the prerogative.
2. Check the basics: is it a public body (or a body with public functions), does the claimant have sufficient interest, and was the claim brought in time?
3. Judicial review grounds: illegality, irrationality, procedural impropriety. Add legitimate expectation if a clear promise was broken.
4. Human rights: which article is engaged? If it is absolute, any interference is a breach. If it is qualified, test prescribed by law, legitimate aim and proportionality.
5. Remedy: quashing the decision, a declaration, or under the HRA a section 3 reading or a section 4 declaration if an Act is the problem.
6. Conclude in one sentence and name the leading case for each step you relied on.

5A worked example

Read the facts, then open the steps one at a time. Try to reach each conclusion yourself first.

6Common mistakes

• Thinking a UK declaration of incompatibility strikes down an Act. It does not; the Act stays in force.
• Treating every right as qualified. Article 3 is absolute: no public interest can justify torture or inhuman treatment.
• Saying courts enforce conventions. They recognise them, but conventions are political, not legal, rules.
• Using judicial review to ask whether a decision was wise. It asks whether it was lawful, rational and fair.
• Mixing up the two Dutch articles. Article 120 forbids courts to review Acts against the Constitution; Article 94 lets them set aside statutes that conflict with treaty provisions binding on everyone.
• Forgetting that the ECHR belongs to the Council of Europe, not to the European Union.

7How exam questions look

• Easy: key terms and facts. For example: the three branches, what the rule of law means, which ECHR article protects which right.
• Medium: applying the concepts. A scenario about a ground of judicial review, a qualified right, parliamentary sovereignty or the Human Rights Act, where you choose the correct result.
• Hard: cases and analysis. The facts of a leading case (Entick v Carrington, Miller, Anisminic, Urgenda, Soering…) and you choose what the court held and why.

Before reading the options, decide which principle the question tests: sovereignty, the rule of law, a ground of review or a Convention right. Wrong options often borrow a true rule from another system, such as a UK remedy offered for a Dutch question.