Saturday, 29 December 2012

Answering a Public Law Question: Parliamentary Sovereignty

Let's consider answering specific questions. Today I will do Public Law and focus on a Sovereignty question in Public law.  This question is from the UOL LLB past exams, question 3 of 2011:

With reference to statute and case law, discuss the extent to which the United Kingdom is ‘sovereign’ in relation to the European Union. 

In any question on sovereignty, you must know what are the contemporary issues which affect it.  You must know what PS is, and you must know that the two biggest impacts on PS are HRA and EU membership.  So if this is a topic that interests you then you need to know the two areas of HRA and EU law as well.
In answering an essay question, you must look at what the examiner asks…so words and phrases here which are important include: "With reference to statute and case law"…"discuss" - - "extent", "sovereign"…and the most important of all - - IN RELATION TO THE EUROPEAN UNION.  So it is not just a question in relation to Parliamentary Sovereignty - - it has a specific focus -- it asks you to contextualize Parliamentary Sovereignty vis-a-vis the European Union.

You may want to start with definitions or paths.  A good starting point is to explain the concept of 'sovereignty', briefly discussing the difference between legal and political sovereignty before proceeding to focus on legal sovereignty. On legal sovereignty, given you are under exam conditions, the best course would likely be to adopt AV Dicey‟s three-part explanation.

You would then need to focus on, and turn your attention to, the European Union, (which is the crux of the question) and give a brief explanation of its origins and evolution. Because The question called for ‘reference to statute and case law’ this would require you to explain the major cases decided by the Court of Justice of the EU, on the issue of sovereignty, as well as the major cases on the subject by the domestic courts. In relation to the European case law, you would need to include the seminal cases of Costa v ENEL, Van Gend en Loos, Internationale Handelsgesellschaft and Simmenthal. In giving a well rounded answer, it would raise your marks to show you understand the workings of the EU, and therefore you would want to briefly discuss the concepts of direct and indirect effect and state liability, again making good use of case law. From the domestic standpoint, the European Communities Act 1972 would need to be discussed, and you would then need to explain how s.2 of the Act operates as the conduit through which EU law enters and becomes effective in domestic law.

So in writing, a good start may seek to ensure the statement (and the words) in the question are taken account of.  So I would suggest a start like this:

In determining the extent to which the UK is sovereign, when considered in the context of the European Union, it appears clear from the case law that some degree of sovereignty has been abrogated.  The relevant statute appears to suggest that primacy has been given to EU law and this will also be examined in respect of the statement.

In the next paragraph, then a definition of Sovereignty would be needed and possibly the first indication of the EU’s impact by virtue of the ECA 1972.

In the following paragraphs, an exploration of the caselaw, in a logical fashion, infused with the examples of your knowledge of the EU framework, would show that you have a goodg grasp of the topic and  make your essay a strong one.

In the conclusion, you would then draw on the main thread(s) of your argument and show how you have answered the question.

The danger for this type of question, is discussing parliamentary sovereignty while ignoring the impact of the European Union. This would definitely show a failure to read and interpret the question with sufficient care.  Again, it is an essay question, it is short, and I would remind you that you should read it THREE times to get the full flavour.

Tomorrow.........we consider a question from CLRI/ELS



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