Sunday, 30 December 2012

Answering a CLRI/ELS Question - Supreme Court

As promised today, let's consider a question from Common Law Reasoning and Institutions (as it is named on the University of London International Programmes Syllabus) or English Legal System as named by some other Universities' syllabus.

This is a question previously posed on the University of London Internationl LLB Programme’s 2010 CLRI (ELS) Examination paper. It reads:

"The role and functions of a court of appeal and a supreme court are different. The United Kingdom has created a Supreme Court in name but not in function; it would be better if no change had been made." Discuss. 

This is a very good question for you to display your research and analysis skills.  The first thing to do in preparing to answer the question, is to not only consider the framework of the UK Court system but also think what 'a' Supreme Court does.  So the basic approach to this question can be broken down into five sub-parts:

  1. What is an appeal Court?
  2. What is a Supreme Court?
  3. What are the functions of the two?
  4. A statement is made – it would have been better if no change had been made - - what do you think (but not using the words ‘I think’ - - but making submissions)
  5. What about the fact the HL sat in the Legislative upper chamber? 


Whilst the first statement appears a truism, taken as a whole the entire statement does not necessarily appear accurate.  Indeed, the role and function of an appeal court is largely to exercise appellate jurisdiction for lower courts.  Conversely, a Supreme Court suggests a more constitutional role, with the ability to scrutinise and, where possible, intervene in unconstitutional matters.  The Supreme Court in the UK has been the result of an evolution in the UK, which has seen a physical change.  However, whether in substance, i.e., whether it has been more than a name change, has to analysed and, further, reviewed as to whether maintaining the status quo would have been better......... [THIS SHOWS THE PATH YOUR ESSAY WILL TAKE]


In 2009, the Supreme Court of England and Wales came into being, moving into new premises in the London Guildhall and discarding its cloak and nomenclature of the House of Lords.  The functions of the HL had been not only to consider appeals, but where difficult areas of law required intervention, this was undoubtedly considered, for example, when one considers a case such as FCC v Anisminic.  The fact though, is that given Parliamentary supremacy, the role of the Supreme Court is arguably of an appellate nature as, unlike in the USA where unconstitutional laws can be struck down, that cannot be the case in the UK.  An appeal court - - (at this point, you would say what it does),  Whereas a Supreme Court - - (at this point, you would say what it does)....[THIS SHOWS DEFINITION, THAT IS,YOU DEFINING CERTAIN KEY MATTERS]

  1. Go on to then discuss the differences
  2. Any cases that show the conflict – e.g., Burmah Oil v Lord Advocate
So in the structure of your answer you should, by say paragraph 3 to 5 (depending on how long or short your paragraphs), have given an indication as to the arguments for, and maybe do a couple of paragraphs on that, and by say paragraph 4-7 (again depending on length of paragraphs), do a couple of paragraphs which show the argument against. 

I am from the school of thought that you SHOULD make submissions in favour of a position, although you will get examiners who will say you don’t have to choose a side, rather, you can simply give the arguments for and against and conclude.  I feel that it makes your discussion ‘cleaner’ if you lean in favour of a position because your discussion then seems like a better analysis leading to a particular conclusion, and it forces you to think about, analyse, and put forward the alternative arguments.  But that is my personal view and you have to see what works for you.

Finally, you would want to then conclude BASED on your discussion.  One of the biggest problem areas I find in law students' writing, is their conclusion.  Never, introduce new points in your conclusion and always try to use the essay statement's words in your conclusion.  So you shouldn't be raising something you have not mentioned at all in the body of your discussion.  The conclusion is to pull your discussion together and if you have put forward a strong argument in favour of the position you have taken (if you have leaned in favour of a particular position) then say that and also briefly remind about the weakness(es) of alternative arguments.  But your conclusion should not be a rewrite or re-hash of what you have just written.  However, the examiner is not stupid (we hope!) and so if you have just 'waffled' in your discussion and given a descriptive account, it is not going to make a good conclusion to then say in your conclusion,....Therefore, the role and functions of a court of appeal and a supreme court are different and the United Kingdom has created a Supreme Court in name but not in function, and it would be better if no change had been made... [THIS WILL NOT 'FOOL' THE EXAMINER IF SUCH A CONCLUSION IS NOT BORNE OUT BY YOUR DISCUSSION IN YOUR ESSAY]

Assuming that you have done your discussion, made valid arguments, and discounted any weaker contrary arguments, your conclusion may look like this:

"It is clear from the overwhelming arguments, that the United Kingdom has appeared to simply have created a Supreme Court in name only but not in function.  The UK Supreme Court appears impotent in striking down actions by the legislature which arguably borders on unconstitutionality such as occurred in Burmah Oil.  Indeed, when one compares its role and function to the Supreme Courts of other jurisdictions, for example, the High Court of Australia, or the Supreme Court in the USA, there is a stark difference in their respective approaches.  Overall, the description in the UK of a 'Supreme Court' has a certain hollow effect, however, its importance and significance cannot be underestimated and it would certainly appear a step too far to suggest that it would have been better not to make a change, not least, its location required, if not demanded, change."

That is today's suggestion.  Tomorrow, we will consider Contract Law.

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