Choose four of the following questions
Theoretical Perspectives: Natural Law and Legal Positivism
Choose ONE of the following questions
Although Russia decriminalised homosexuality decades ago, animosity against same-sex relationships remains high. In 2012, the Moscow city government ordered that gay pride parades be banned for the next 100 years. The following year, the parliament unanimously passed a law forbidding “propaganda of nontraditional sexual relationships” among minors. In July 2020 the Russian Constitution was amended when voters approved a package of constitutional amendments, one of them stipulating that marriage is only between a man and a woman.
Applying Natural Law and Legal Positivist perspectives provide an analysis of the Russian Constitution.
OR
Does one have a moral obligation to always obey the law? Conversely, should one obey an unjust law?WHEN is it justified, then, for the citizen to act as his own legislator, and to decide that he will or will not obey a given law?
Address these questions through a case study of your choice.
OR
“Human rights are not a privilege conferred by government. They are every human being’s entitlement by virtue of his humanity. The right to life does not depend, and must not be declared to be contingent, on the pleasure of anyone else, not even a parent or a sovereign.”
Consider the competing arguments around this issue by applying Natural Law and Legal Positivist views.
Rule of Law
In her first speech as leader to the Conservative Party Conference, Margaret Thatcher, stated
“I come last to what many would put first. The Rule of Law.The first people to uphold the law should be governments. ….
The first duty of Government is to uphold the law. If it tries to bob and weave and duck around that duty when its inconvenient, if government does that, then so will the governed, and then nothing is safe—not home, not liberty, not life itself.”
M.Thatcher, Speech to Conservative Party Conference, Friday, 10th October 1975
Provide an analysis of this statement with reference to a case study of your choice.
OR
In his explanation of the rule of law, Bingham proposes eight essential sub-principles, each of which he illustrates with examples.
Choose one of Bingham’s principles and with reference to your own examples assess whether the English Legal System can be said to conform to the rule of law.
OR
The Council of Europe, the body with responsibility for human rights, warned that measures to tackle the Covid-19 crisis ‘must be done in a manner that respects the fundamental values of the organisation: democracy, rule of law and human rights.’The Council of Europe states that even in an emergency, the rule of law must prevail.
Consider any of the recent legislative measures enacted in response to the Covid-19 pandemic and assess whether it can be said that they have shown respect for the rule of law.
Case Study: The Chilcot Report
It is a fundamental principle of international law that states are prohibited from using force except in self-defence or unless its use is formally authorised by Security Council under Chapter VII of the UN Charter.
Discuss in the context of the decision by Tony Blair and G.W Bush to go to invade Iraq in March 2003.
OR
The power to commit troops in armed conflict is one of the remaining Royal Prerogatives – that is powers that are derived from the Crown rather than conferred on them by Parliament. There is no codified parliamentary procedure that formally requires the Government to seek approval before taking military action. The Prime Minister and Cabinet retain the constitutional right to decide when and where to authorise action. In practice, governments in modern times have usually ensured parliamentary debate. In 2006, Tony Blair, following his own vote over Iraq in March 2003, acknowledged that he could not “conceive of a situation in which a Government… is going to go to war – except in circumstances where militarily for the security of the country it needs to act immediately – without a full parliamentary debate”.
But having a debate, its timing and any subsequent vote are not constitutionally binding on the government’s domestic powers to act. The Iraq war vote of 10 years ago was a significant precedent that Parliament should also give its approval. Subsequent doubts about whether the right choice was made on the right evidence have reinforced views of Parliament as a check on government action.
Evaluate the use of the Royal Prerogative power to commit troops in conflict in light of the decision by Tony Blair in 2003.
Terrorism, Human Rights and the Rule of Law
Gerry Adams has won his appeal to have two convictions for attempting to escape from prison in the 1970s overturned. The Supreme Court said the former Sinn Féin president’s convictions were quashed because Mr Adams’ detention was unlawful. He attempted to escape from the Maze Prison, also known as Long Kesh internment camp, in 1973 and 1974. Lord Kerr explained that Mr Adams, a former West Belfast MP, had been detained under an ICO made under the Detention of Terrorists (Northern Ireland) Order 1972 and that “such an order could be made where the secretary of state considered that an individual was involved in terrorism”.
In the court’s written judgment, Lord Kerr said the power to make such an order was “a momentous one”, describing it as “a power to detain without trial and potentially for a limitless period”.
Gerry Adams. former Sinn Féin leader welcomed the Supreme Court’s decision, saying internment without trial “set aside the normal principles of law and was based on a blunt and brutal piece of coercive legislation”.
Consider any of the extraordinary legislative responses to the threat of terrorism in EITHER the era of the IRA or post 9-11.
5. Judicial Law Making
Answer ONE of the following questions on the appropriate role for judges in a 21st Century democracy.
In November 2019, the High Court denied a full hearing to Phil Newby, who suffers from motor neurone disease and who was seeking to end his life.
Explaining their decision, judges said: “In the context of repeated and recent parliamentary debate, where there is an absence of significant change in societal attitude expressed through parliament, and where the courts lack legitimacy and expertise on moral – as opposed to legal – questions, in our judgment the courts are not the venue for arguments that have failed to convince parliament.”
Do you agree?
OR
‘Enemies of the People,’ the headline in the Daily Mail in November 2016, referred to the ruling of three High Court judges that government ministers did not have the power to trigger Article 50 thereby giving notice to the EU of the United Kingdom’s intention to leave. The High Court ruled that the power lay with Parliament and not the executive and that an Act of Parliament was needed.
Joshua Rozenberg argues that the criticism greatly affected the confidence of judges in their constitutional role.However, he asks, “but did it change the way judges worked? Was judicial activism in the UK replaced by judicial deference? Or were 11 senior judges emboldened to rule three years later – in the most far reaching decision any of them had taken – that an order made by the Queen on the advice of her prime minister was no more than ‘a blank piece of paper?’”
Joshua Rozenberg, Enemies of the People? How Judges Shape Society
Discuss with reference to decided cases.
The Criminal Justice System: Race
Choose ONE of the following questions;
The police stop of the Labour MP Dawn Butler was rooted in systemic racism that is damaging the legitimacy of policing, the leader of black police officers has said.
Inspector Andrew George, the new interim president of the National Black Police Association, also called for urgent reform of “a biased system that views black people as criminals or drug dealers”.
Consider the use of stop and search powers within English law.
OR
The ideal victim is a person or group who, when they experience crime, ‘most readily are given the complete and legitimate status of being a victim’ (Christie, 1986:18). The police are significant actors within this process of conferring victim status and they are often the first point of contact for the victim following the crime; it is their response to the report of crime which determines whether the complainant becomes a victim or not. The decision to act upon the report of a crime is influenced by the nature of the crime but also influenced by the perceived worth of the victim. Worthiness is assessed in relation to a number of factors such as socio-economic, age, gender and race.
Discuss the impact of race on victim status in the eyes of the police.
The Criminal Justice System: Gender
Choose ONE of the following questions;
Sarah Green, the director of the End Violence Against Women coalition, agued “[w]e need a deep study of courtroom experiences for victims, lawyer conduct in court and how judges preside over and intervene in rape trials before we assign all responsibility and change to the police and CPS.” She said. “The fact that rape myths are deployed in court is what leads to conservative decision-making earlier in the process.”
Evaluate the accuracy of this statement in light of falling prosecution rates for the offence of rape. Do you agree? Where does the blame lie?
OR
A judge who dismissed a woman’s claim she had been raped, as she had done “nothing physically” to stop the alleged perpetrator, is among a number of family court judges to hold “outdated views”, a joint letter says.
In it, over 130 lawyers and women’s rights groups call for Judge Tolson’s continuing cases to be reviewed. And they say family court judges should be trained on the “meaning of consent”. The Judiciary said a commitment to further training had since been made.
https://www.bbc.co.uk/news/uk-51548274
Discuss in light of the problems encountered by the criminal justice system in the prosecution of rape cases.
Case Study: Marxist Approach to Law
Choose ONE of the following questions;
Grenfell Tower residents lived in a death trap built in one of the most deprived areas of the UK, situated within its wealthiest constituency, where the average price of a terrace house is over £4 million.The Conservative-run authority, instead of making Grenfell Tower safer, presided over a cosmetic facelift to make the property less of an eyesore to the borough’s rich residents and to ensure that property values were not negatively impacted.
Discuss.
OR
Office for National Statistics data shows that there is a social gradient in the mortality rates from COVID-19. Figures for England show that the most deprived areas have more than double the age-standardised mortality rate for deaths involving COVID-19 at 55.1 deaths per 100 000 population compared to 25.3 deaths per 100,000 population in the least deprived areas. Figures for Wales are similar, with 44.6 deaths per 100,000 population in the most deprived areas, compared to 23.2 deaths per 100,000 population in the least deprived areas.
Health experts and politicians have warned for over 170 years that health inequality is killing those in the most deprived parts of society. We now witness the poorest in society disproportionately dying of COVID-19, suggesting that the social murder observed by Engels in 1845 is still going on today. The social gradient in COVID-19 mortality needs to be the wakeup call for governments and health policy makers to ensure such unequal loss of life is not repeated in a future pandemic.
Apply the concept of social murder to COVID-19 pandemic and offer a response to this statement.
Legislative Law Making
Choose ONE of the following case studies and provide an analysis using the three models of legislative lawmaking;
The Coronavirus Act 2020 received Royal Assent on 25 March, having been fast-tracked through parliament in just four sitting days. The Act contains ‘emergency powers’ to enable public bodies to respond to the Covid-19 pandemic.
The Act has three main aims:
to give further powers to the government to slow the spread of the virus
to reduce the resourcing and administrative burden on public bodies
to limit the impact of potential staffing shortages on the delivery of public services.
OR
After decades of campaigning, predominantly by family law practitioners, The Divorce, Dissolution and Separation Bill finally received Royal Assent and became an Act of Parliament on 25 June 2020. In the biggest shake-up of divorce laws for 50 years, the move towards “no fault divorce” is long overdue, and a welcome change which is aimed at reducing the impact that the requirement to apportion blame in divorce petitions can have on couples and their children.
Equality and Discrimination
Answer ONE of the following questions;
In January 2020 an employment tribunal ruled that ethical veganism is a philosophical belief that is protected by law against discrimination. Judge Robin Postle ruled in a short summary judgment that ethical veganism satisfied the tests required for it to be a philosophical belief protected under the Equality Act 2010. For a belief to be protected, it must meet a series of tests including being worthy of respect in a democratic society, not being incompatible with human dignity, and not conflicting with the fundamental rights of others.
Discuss whether the recent extensions to the meaning of Religion or Belief under the Equality Act 2010 can be justified.
OR
It is lawful under s.158 of the Equality Act 2010 for an employer to take action to compensate for disadvantages that it reasonably believes are faced by people who share a particular protected characteristic (ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation). Separate provisions allowing positive action in relation to recruitment and promotion in limited circumstances are contained in s.159 of the Act.
Evaluate the concept of positive action and consider whether it is just discrimination by another name.
Case Study: Hillsborough
In November 2019, the jury in the manslaughter trial of David Duckenfield, returned a no-guilty verdict by a majority of 9-1.
During the trial, Margaret Aspinall, mother of one of the victims, had written in a personal capacity to the trial judge, Sir Peter Openshaw, to say that she was “deeply concerned about what I perceive to be a lack of impartiality in your dealings with the defendant in front of the jury”. Her letter followed Openshaw describing Duckenfield as “poor chap” as he told the jury that the defendant had been ill with a chest infection.
Aspinall said she was worried “in the light of what we consider to have been a one-sided summing up” at the first trial. “I have not fought the justice system in this country for 30 years to see my fight for my son culminate in yet another unbalanced legal process,” she added.
Evaluate the ways in which the legal system has failed to bring justice for the victims of the Hillsborough tragedy.
Case Study: Female Genital Mutilation
“FGM is recognized internationally as a violation of the human rights of girls and women”
(WHO, Fact Sheet – Female Genital Mutilation, 2020
https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation#:~:text=FGM%20is%20recognized%20internationally%20as,of%20the%20rights%20of%20children.
Critically discuss female genital mutilation as a violation of human rights and consider whether the law in England and Wales adopts a human rights approach towards FGM.
13.Civil Justice/Access to Justice
Nicola Mackinstosh, QC, summed up the findings of the Bach Commission in 2017;
“The combination of legal aid cuts, court closures, and unaffordable court fees has resulted in the vast majority of people being unable to access the legal help they need. Justice has therefore been reserved only for the privileged few. This undermines the rule of law and risks the breakdown of society. ..People are left to represent themselves in court or just to give up because they do not have the legal help they need. This … is unacceptable in a civilised society.”
Discuss the importance of access to civil justice.
OR
Inequality of arms (the right to a fair trial) for bereaved families has been raised in a number of reports in particular those where the State has legal representation and bereaved families do not. The House of Commons Justice Select Committee has urged the government to revisit the issue of legal aid at inquests. In a public letter to David Gauke MP, the Committee said it was ‘fundamentally unfair for public bodies to have legal representation at the highest level of expertise whilst bereaved families are unrepresented – especially in relation to deaths in custody’.
Evaluate recent legal developments in respect of this issue.
Learning Outcomes to be assessed (as specified in the validated module descriptor http://icis.glam.ac.uk):
