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GCE MARKING SCHEME

LAW
AS/Advanced

JANUARY 2011

INTRODUCTION

The marking schemes which follow were those used by WJEC for the January 2011
examination in GCE LAW. They were finalised after detailed discussion at examiners'
conferences by all the examiners involved in the assessment. The conferences were held
shortly after the papers were taken so that reference could be made to the full range of
candidates' responses, with photocopied scripts forming the basis of discussion. The aim of
the conferences was to ensure that the marking schemes were interpreted and applied in the
same way by all examiners.

It is hoped that this information will be of assistance to centres but it is recognised at the
same time that, without the benefit of participation in the examiners' conferences, teachers
may have different views on certain matters of detail or interpretation.

WJEC regrets that it cannot enter into any discussion or correspondence about these
marking schemes.

Page

LA1 (AS) 1
LA2 (AS) 13
LA3 (A2) - Option 1 24

LAW - LA 1
UNDERSTANDING LEGAL VALUES, STRUCTURES & PROCESSES

Q.1 (a) Explain the importance of the rule of law in England and Wales [14]
Credit reference to:
• The approach of Dicey. He held that there were three elements that
created the rule of law namely an absence of arbitrary power on the part
of the State; equality before the law; supremacy of ordinary law.
• Note the view of Hayek and also those of Raz.
• The Constitutional Reform Act 2005 recognised the rule of law and the
importance of the independence of the judiciary.
• The principles of natural justice should be observed such as requiring an
open and fair hearing with all parties being given the opportunity to put
their case.
• Rule of law within a wider context with overseas examples.

Marks AO3
Presents effective communication using appropriate legal
terminology. Nonetheless, there may be several errors in
1
grammar, punctuation and spelling, although not enough to
detract from communication of meaning.
Fails to communicate and present logical argument, including
inadequate use of legal terminology. There are significant
0
errors of grammar, punctuation and spelling which detract from
communication of meaning.

AO1
Marks
Knowledge and Understanding
Candidates display a sound knowledge and understanding of
the subject content relevant to the question and a good
perception of the concepts and principles underlying that subject
11-13
content. They display a sound understanding of the practical
application of the law and are aware of current debate and
criticism including the major proposals for reform.
Candidates display an adequate knowledge and understanding
of the subject content relevant to the question and have a
perception of some of the concepts and principles underlying
7-10
that subject content. They display a general understanding of
the practical application of the law and are aware of aspects of
current debate and criticism.
Candidates display a limited knowledge and understanding of
the subject content relevant to the question with limited insight
into some of the concepts and principles underlying that subject
3-6
content. They display a limited understanding the practical
application of the law and are aware in general terms of some of
the current criticisms.
Candidates display a basic knowledge and understanding of the
subject content relevant to the question and/or identify some of
the relevant principles. They demonstrate occasional basic
0-2
insights into some of the concepts and principles underlying the
subject content. They display a basic understanding of the
practical application of the law.

1

(b) Discuss the impact of the Human Rights Act 1998 on the legal system of
England and Wales. [11]

• The Human Rights Act 1998 and the European Convention on Human
Rights.
• The role of human rights and precedent and also statutory interpretation
and also trials.
• The impact of the role of human rights within a modern legal system.
• Human rights affecting the principles of sentencing.
• Judicial appointment and the need to ensure that at least the length of
appointments provides a guarantee of independence of the judiciary from
the Government.
• The relationship between the rule of law, human rights and morality as
pervasive concepts in the development of a modern legal system.

Marks AO3
Presents a wholly logical and coherent argument and provides
clear application using appropriate legal terminology. This
2
does not mean that there are no errors in grammar,
punctuation and spelling but these will only be occasional.
Presents a mostly logical and coherent argument and provides
a reasonably adequate application using appropriate legal
1 terminology. Whilst there may be errors in grammar,
punctuation and spelling, these are not enough to detract from
a most effective communication of meaning.

AO2
Marks
Skills
Candidates demonstrate a sound evaluation of how the law
operates, or an accurate and well-substantiated application of
the law to a given fact situation. This is achieved through their
8-9
selection of legal authorities, by appropriate methodologies and
by their ability to apply the law to a given question. They
support their conclusions by citation, analysis and analogy.
Candidates demonstrate an adequate evaluation of how the
law operates, or a generally accurate and substantiated
application of the law to a given fact situation. This is achieved
6-7
through their selection of legal authorities, by appropriate
methodologies and by their ability to apply the law to a given
question and support their conclusions by citation.
Candidates demonstrate a limited evaluation of some of the
points of how the law operates, or apply the law to a given fact
situation in a partly accurate and occasionally unsubstantiated
4-5
way. This is achieved through a limited selection of legal
authorities and limited ability to apply the law to a given
question.
Candidates demonstrate a basic evaluation of one of the
simpler points of how the law operates or apply the law to a
given factual situation in a generally inaccurate and
0-3
unsubstantiated way. There will be little or no reference to
legal authorities and points will not be developed. There will be
very limited evidence of structure in the candidate’s response.

2

Q.2 (a) Explain the sources of funding available to access justice in England and
Wales. [14]

• Community Legal Service.
• Criminal Defence Service and Public Defender Service.
• The various advice schemes.
• Alternative methods of funding.
• Conditional fee arrangements.
• The role of the Legal Services Commission.

Marks AO3
1
inadequate use of legal terminology. There are significant errors
0
of grammar, punctuation and spelling which detract from

AO1
Marks
Candidates display a sound knowledge and understanding of the
subject content relevant to the question and a good perception of
the concepts and principles underlying that subject content. They
11-13
display a sound understanding of the practical application of the
law and are aware of current debate and criticism including the
major proposals for reform.
Candidates display an adequate knowledge and understanding of
the subject content relevant to the question and have a perception
of some of the concepts and principles underlying that subject
7-10
content. They display a general understanding of the practical
application of the law and are aware of aspects of current debate
and criticism.
Candidates display a limited knowledge and understanding of the
subject content relevant to the question with limited insight into
some of the concepts and principles underlying that subject
3-6
0-2

3

(b) Discuss the extent to which there are unmet legal needs in England and
Wales. [11]

• The problems of advice deserts was considered by the Constitutional
Affairs Select Committee in 2004. There is plenty of evidence of the
dilemma of rurality and indeed this is one of the major issues being
addressed in the allocation of legal aid.
• The establishment of Community Legal Service which seeks to develop a
joined up approach to legal services.
• The significance of the third sector.
• The bringing together of consortia under one bidding process and the
importance of efficiency.

Marks AO3
clear application using appropriate legal terminology. This does
2
not mean that there are no errors in grammar, punctuation and
spelling but these will only be occasional.
Presents a mostly logical and coherent argument and provides a
reasonably adequate application using appropriate legal
1 terminology. Whilst there may be errors in grammar, punctuation
and spelling, these are not enough to detract from a most
effective communication of meaning.

AO2
Marks
Skills
8-9
by their ability to apply the law to a given question. They support
their conclusions by citation, analysis and analogy.
Candidates demonstrate an adequate evaluation of how the law
operates, or a generally accurate and substantiated application
of the law to a given fact situation. This is achieved through their
6-7
by their ability to apply the law to a given question and support
their conclusions by citation.
4-5 situation in a partly accurate and occasionally unsubstantiated
authorities and limited ability to apply the law to a given question.
Candidates demonstrate a basic evaluation of one of the simpler
points of how the law operates or apply the law to a given factual
situation in a generally inaccurate and unsubstantiated way.
0-3
There will be little or no reference to legal authorities and points
will not be developed. There will be very limited evidence of
structure in the candidate’s response.

4

Q.3 (a) Explain the role of the institutions of the European Union. [14]
• The emphasis is on presenting cases “on paper”. Lawyers are required to
present their arguments in a written form and there is far less reliance on
oral presentation of a case.
• The difficulty of operating a European court where there is a wide range of
languages involved though French is the traditional language of the court.
• The use of the Advocate General. The independent lawyer is not used in
English law. However in the European Court of Justice the Advocate
General will present his findings on the law after the parties have made
their submissions.
• The deliberations of the judges are secret and where necessary the
decision will be made by a majority vote. However when the judgement is
delivered again in written form it is signed by all the judges who formed
part of the panel so that it is not known if any judges disagreed with the
majority. This contrasts strongly with the English system.
• The European Court of Justice is not bound by its own previous decisions.
• The court has wide rights to study extrinsic material when deciding the
meaning of provisions and may study preparatory documents.

Marks AO3
1
0

AO1
Marks
11-13
7-10
and criticism.
3-6
0-2

5

(b) Evaluate the role of the European Court of Justice in the development of
European law. [11]

• Structure, member ship and powers of the Parliament Commission
Council
• The court sits in Luxembourg and has 27 judges one from each member
state
• The function of the ECJ as set out in Article 19 of TEU.
• The court sits in Luxembourg and has 27 judges one from each member
state. The court is assisted by 9 advocates general.
• The court’s task is to ensure that the law is applied uniformly in all
member states. For an early example of whether a member state has
failed to fulfil its obligations in respect of the United Kingdom see, for
example, Re Tachographs (1979).
• Preliminary rulings and Article 234 (TFEU).
• Discretionary referrals, for example, Bulmer v Bollinger (1974).

Marks AO3
2
Presents a mostly logical and coherent argument and provides
a reasonably adequate application using appropriate legal
1 terminology. Whilst there may be errors in grammar,
punctuation and spelling, these are not enough to detract from a
most effective communication of meaning.

AO2
Marks
Skills
8-9
by their ability to apply the law to a given question. They
support their conclusions by citation, analysis and analogy.
operates, or a generally accurate and substantiated application
of the law to a given fact situation. This is achieved through
6-7
their selection of legal authorities, by appropriate methodologies
and by their ability to apply the law to a given question and
support their conclusions by citation.
situation in a partly accurate and occasionally unsubstantiated
4-5
authorities and limited ability to apply the law to a given
question.
Candidates demonstrate a basic evaluation of one of the
simpler points of how the law operates or apply the law to a
given factual situation in a generally inaccurate and
0-3
unsubstantiated way. There will be little or no reference to legal
authorities and points will not be developed. There will be very
limited evidence of structure in the candidate’s response.

6

Q.4 (a) Explain the powers available to grant bail. [14]
• Police powers to grant bail – Section 38 of PACE as amended by the
Criminal Justice and Public Order Act 1994.
• Conditional bail – the types of conditions include asking the suspect to
surrender his passport, report at regular intervals to the police station or get
another person to stand surety for him.
• Where the police do not grant bail they must bring the defendant in front of
the Magistrates Court at the first possible opportunity. Bail can be granted
by the Magistrates Court and also by the Crown Court.
• The Bail Act 1976 whether it is a presumption in favour of bail so long as
there is no significant risk of further offending or where there are
exceptional circumstances taking into account the nature of the offence
such as murder or manslaughter or rape.
• In all cases bail can be refused if there are reasonable grounds for
believing that the defendant would fail to surrender or would commit further
offences or would interfere with witnesses.
• Some of those in prison are awaiting trial and could have been given bail
and there is a problem of balancing this against the need to protect the
public.

Marks AO3
terminology. Nonetheless, there may be several errors in grammar,
1
punctuation and spelling, although not enough to detract from
inadequate use of legal terminology. There are significant errors of
0
grammar, punctuation and spelling which detract from

AO1
Marks
11-13
display a sound understanding of the practical application of the law
and are aware of current debate and criticism including the major
proposals for reform.
the subject content relevant to the question and have a perception of
7-10 some of the concepts and principles underlying that subject content.
They display a general understanding of the practical application of
the law and are aware of aspects of current debate and criticism.
They display a limited understanding the practical application of the
law and are aware in general terms of some of the current criticisms.
subject content relevant to the question and/or identify some of the
relevant principles. They demonstrate occasional basic insights into
0-2
some of the concepts and principles underlying the subject content.
They display a basic understanding of the practical application of the
law.

7

(b) Discuss the role of the Crown Prosecution Service within the English and
Welsh legal system. [11]

• Deciding on what offences should be charged.
• Reviewing all cases passed to them by the police.
• Being responsible for the case as it has been passed to them by the
police.
• Conducting the prosecution of cases in the Magistrates Court.
• Conducting cases in the Crown Court – this can be done either by
instructing an independent lawyer to act as Prosecuting Council of the
Court or a Crown Prosecutor with the appropriate advocacy qualification.
• Discontinuation of cases by reference to the evidential test and the public
interest test.

Marks AO3
2

AO2
Marks
Skills
operates, or an accurate and well-substantiated application of the
law to a given fact situation. This is achieved through their
8-9
operates, or a generally accurate and substantiated application of
6-7
0-3

8

Q.5 (a) Explain the civil appeal process [14]
• The main Appellate Courts are the Divisional Courts, the Court of Appeal and
the House of Lords.
• The Divisional Courts, the QBD which has two main functions to hear appeals
by way of case stated from the criminal cases; it also has supervisory prowess
over inferior courts and tribunals and also over the actions and decisions of
public bodies and Government Ministers through judicial review; the Chancery
Division Court; the Family Division Court.
• The Court of Appeal Civil Division was set up by the Judicature Act 1873 and
was initially intended to be the final Court of Appeal. However the position of
the House of Lords and the final Appellate Court was reinstated by the
Appellate Jurisdiction Act 1876. Today the Court of Appeal has two Divisions,
Civil and Criminal. The Civil Division is the main Appellate Court for civil
cases and is headed by the Master of the Rolls. The Court of Appeal mainly
hears appeals from the following courts – all three Divisions of the High Court;
the County Court for multi-track cases; the upper tier tribunal.
• The Supreme Court is the final Court of Appeal in England and Wales. Prior
to 2009 the final Court of Appeal was the House of Lords.
• The mechanisms available in terms of permission to appeal and the appeal
routes in civil cases.

Marks AO3
Presents effective communication using appropriate legal terminology.
Nonetheless, there may be several errors in grammar, punctuation
1
and spelling, although not enough to detract from communication of
meaning.
0
grammar, punctuation and spelling which detract from communication
of meaning.

AO1
Marks
subject content relevant to the question and a good perception of the
concepts and principles underlying that subject content. They display
11-13
a sound understanding of the practical application of the law and are
aware of current debate and criticism including the major proposals
for reform.
Candidates display an adequate knowledge and understanding of the
subject content relevant to the question and have a perception of
They display a general understanding of the practical application of
the law and are aware of aspects of current debate and criticism.
subject content relevant to the question with limited insight into some
3-6 of the concepts and principles underlying that subject content. They
display a limited understanding the practical application of the law
and are aware in general terms of some of the current criticisms.
relevant principles. They demonstrate occasional basic insights into
0-2
some of the concepts and principles underlying the subject content.
They display a basic understanding of the practical application of the
law.

9

(b) Discuss the nature of Equitable Remedies available to the courts in England
and Wales. [11]

• These are remedies which have been developed by equity and the key
fact of such remedies is that they are not given automatically. The court
has discretion in deciding whether or not an Equitable remedy should be
granted.
• Injunctions including interlocutory injunctions.
• Specific performance.
• Rescission.
• Rectification.
• Credit shall be given for appropriate citation.

Marks AO3
2

AO2
Marks
Skills
8-9
6-7
0-3

10

Q.6 (a) Explain the different types of jury trial available in England and Wales. [14]

• Criminal and civil juries including coroner’s courts.
• Candidates will be rewarded for relevant citation.

Marks AO3
1
grammar, punctuation and spelling, although not enough to detract
from communication of meaning.
0

AO1
Marks
11-13
7-10
and criticism.
3-6
0-2

11

(b) To what extent is trial by jury reliable? [11]

• The role of juries particularly in complex matters, for example, involving fraud.
• The selection and composition of the jury. Occasional evidence emerges
which supports the contention that verdicts are reached on inappropriate
criteria.
• Candidates will be rewarded for citation of appropriate legal research.
• Candidates will be rewarded for discussion on measures proposed to limit
jury trial, for example, the Roscoe Committee on Fraud Trails; the Diplock
Courts and Northern Ireland.

Marks AO3
2

AO2
Marks
Skills
8-9
6-7
0-3

12

LAW - LA2

UNDERSTANDING LEGAL REASONING, PERSONNEL AND METHODS

Q.1 Study the text below and answer the questions based on it

Appointments to the High Court

00351: High Court 2008
Stage of Gender % Ethnic Background % Disabled Professional Background %
Exercise %
Men 79 BME * 5 Disabled Solicitor
Eligible 40
Pool Women 21 Not Disabled Barrister
/Incomplete 60
Men 39 87 White 45 100 Disabled 1 2
Women 6 13 BME * 0 0 Not Disabled 44 98 Solicitor 1 2
/Incomplete
Incomplete 0 0 Any Other 0 0 Barrister 39 87
Incomplete 0 0 Salaried Judicial Post 2 4
Holder – former
Shortlisting Barrister
Salaried Judicial Post 2 4
Holder – former Solicitor
Holder – no single legal
background
Other/Unknown 0 0
Men 17 77 White 22 100 Disabled 1 5 Solicitor 0 0
Women 5 23 BME* 0 0 Not Disabled 21 95 Barrister 20 91
/Incomplete
Incomplete 0 0 Any Other 0 0 Salaried Judicial Post 1 5
Holder – former
Selections Barrister
made Incomplete 0 0 Salaried Judicial Post 1 5
Holder – former Solicitor
Holder – no single legal
background
Other/Unknown 0 0

* = BME – Black, Minority , Ethnic
Source: Judicial Statistics (2009) Extract

13

(a) Explain the appointment of High Court Judges. [14]

• CRA 2005
• Judicial Appointment Commission
• Jurisdiction

Marks AO3
1
0

AO1
Marks
11-13
7-10
and criticism.
3-6
relevant principles. They demonstrate occasional basic insights
0-2
into some of the concepts and principles underlying the subject
content. They display a basic understanding of the practical
application of the law.

14

(b) To what extent are High Court Judges representative of society? [11]

• High Court judges are by legislation restricted to Solicitors and Barristers.
• Unrepresentative of sectors of society notably women and racial minorities.
• The role of judges in interpreting the law and the impact of
representativeness of society as being part of the legitimacy of the legal
system.
• The impact of failure to ensure that judges are not a statistical cross
section of society – the nature of the restrictions placed upon the
appointment process in terms of the essential competencies for High
Court judicial appointments.

The role of the
• There are around 115 High Court judges sitting in the three divisions of the
High Court. Many try cases in London but in addition at each major court
centre throughout the country there will be two or three High Court judges
trying criminal, civil and family law cases in that area.
• The role of the circuit system and the hierarchy of judges particularly when
High Court judges visit the regions.
• The implications of the circuit system and the fact that judges very often stay
in lodgings.
• The role of the High Court in the system of precedent.

Marks AO3
Presents a wholly logical and coherent argument and provides clear
application using appropriate legal terminology. This does not mean
2
that there are no errors in grammar, punctuation and spelling but
these will only be occasional.
and spelling, these are not enough to detract from a most effective

AO2
Marks
Skills
law to a given fact situation. This is achieved through their selection
8-9
of legal authorities, by appropriate methodologies and by their ability
to apply the law to a given question. They support their conclusions
by citation, analysis and analogy.
6-7
selection of legal authorities, by appropriate methodologies and by
their ability to apply the law to a given question and support their
conclusions by citation.
Candidates demonstrate a limited evaluation of some of the points
of how the law operates, or apply the law to a given fact situation in
4-5 a partly accurate and occasionally unsubstantiated way. This is
achieved through a limited selection of legal authorities and limited
ability to apply the law to a given question.
situation in a generally inaccurate and unsubstantiated way. There
0-3
will be little or no reference to legal authorities and points will not be
developed. There will be very limited evidence of structure in the
candidate’s response.
15

Q.2 Study the text and answer the questions based on it.
“Pressure groups are an important element in promoting the reform of English and
Welsh law. They are organisations of people who all believe in the same cause.
Whether it is a sectional group, campaigning for personal gain, or a cause group,
working towards a specific cause, they all possess strongly held views and wish to
influence some aspect of society. They use many methods to influence including the
use of traditional media such as newspapers but more commonly nowadays through
the use of electronic media such as the internet. Other than these, the most common
methods they tend to use involve carrying out petitions, distributing leaflets whilst
some pressure groups employ professional lobbyists to speak to MPs on the group’s
behalf.”
Source – unattributed

(a) Explain with examples the role of pressure groups in promoting law reform.
[14]
• Distinguishing between groups campaigning for personal gain and groups
working towards a specific cause. Examples could include the Firearms
(Amendment) Act of 1997 which arose out of the Dunblane gun massacre
in March 1996.
• The Anti-Terrorism, Crime and Security Act 2001 arose out of the terrorist
attack on the Twin Towers in New York in September 2001. One of the
provisions of this Act was to allow the detention without charge of non UK
citizens where the Home Secretary believes that the person’s presence in
the UK is a risk to National Security. This provision was held to be a
breach of Human Rights in 2005.
• Pressure groups may also cause the Government to reconsider the law
on certain areas, for example, the Disability Discrimination Act; the Civil
Partnership Act 2004 which gave the right to same sex couples to register
their partnership and have a civil ceremony. This was the result of
changing attitudes to same sex partnerships.

Marks AO3
1
0

16

AO1
Marks
11-13
7-10
and criticism.
3-6
0-2

17

(b) Evaluate the role of the Law Commission in the law reform process in
England and Wales. [11]
• The mission of the Law Commission is to make the law simpler, fairer,
cheaper to use. This is anticipated in the legislation establishing the Law
Commission in 1966.
• The appropriateness of the Law Commission in the context of the devolved
settlement – there are separate Law Commissions for Scotland, Northern
Ireland but there is a combined Law Commission for England and Wales.
• Reform projects are included in the Programme of Works submitted to
Parliament – identification of the examples of the work of the Law
Commission.
• Identification of the process involved in the Law Commission cycle, for
example, the publication of a Consultation Paper following research and
analysis of case law, legislation and academic and profession opinion.
• Credit should be given to references from the data available on the
effectiveness of the Law Commission as a reforming mechanism in English
law.

Marks AO3
application using appropriate legal terminology. This does not
2
mean that there are no errors in grammar, punctuation and spelling
but these will only be occasional.

AO2
Marks
Skills
law to a given fact situation. This is achieved through their selection
8-9
of legal authorities, by appropriate methodologies and by their ability
to apply the law to a given question. They support their conclusions
by citation, analysis and analogy.
6-7
selection of legal authorities, by appropriate methodologies and by
their ability to apply the law to a given question and support their
conclusions by citation.
Candidates demonstrate a limited evaluation of some of the points of
how the law operates, or apply the law to a given fact situation in a
4-5 partly accurate and occasionally unsubstantiated way. This is
situation in a generally inaccurate and unsubstantiated way. There
0-3
will be little or no reference to legal authorities and points will not be
developed. There will be very limited evidence of structure in the
candidate’s response.

18

“Cases do not necessarily stay as good law for ever. Case law constantly evolves
and cases may be overruled at a later date. In order to determine whether it is
possible for a lawyer to rely on a case as authority the knowledge of the history of the
case will be important. For the purposes of binding precedent a case can have direct
as well as an indirect history. The direct history of a case refers to other court
decisions on the same case. Indirect history of a case refers to how the case has
been affected by other cases.

A number of events may apply to a case in its history, for example, whether the case
is applied; considered; doubted; distinguished; explained; not followed; overruled.
Electronic sources of law such as Westlaw or Lawtel or LexisNexis will provide the
history of a case. The current law case citatory will also provide similar information.”
[Source: The English Legal System, Legal Skills Guide web site (Routledge and Cavendish]

(a) Explain with appropriate examples, how judges avoid awkward precedents.
[14]
• Applied is where a subsequent court has used the same principle with a
new set of facts
• Considered is where the decision in the original case was discussed but
not actually applied, followed or distinguished.
• Doubted is where a subsequent court doubted the decision of the original
case but had no authority to overrule it.
• Distinguished is where a subsequent court chooses not to follow the
original decision by demonstrating that there are significant differences
between the two cases even though the subsequent court is otherwise
bound by the doctrine of binding precedent.
• Explained is where a subsequent court further elaborates on what was
meant in the original decision.
• Not followed is where a decision is not followed by a court of co-ordinate
jurisdiction.
• Overruled is where a superior court subsequently declares that the
decision in the original case is wrong.
• Credit will be given for relevant citation.

Marks AO3
1
inadequate use of legal terminology. There are significant
0
errors of grammar, punctuation and spelling which detract from

19

AO1
Marks
11-13
the subject content relevant to the question and have a
perception of some of the concepts and principles underlying that
7-10
subject content. They display a general understanding of the
practical application of the law and are aware of aspects of
current debate and criticism.
3-6
0-2

20

(b) Evaluate the advantages and disadvantages of the doctrine of precedent in
English and Welsh law. [11]

• The main advantages are certainty, consistency and fairness in the law;
precision; flexibility; time saving.
• The main disadvantages are rigidity; complexity; illogical distinctions;
slowness of growth.
• Credit reference shall be given for relevant citation.

Marks AO3
2

AO2
Marks
Skills
8-9
6-7
0-3

21


House of Commons Written Answer June 2010

Lisa Nandy: To ask the Secretary of State for Business, Innovation and Skills whether he
plans to seek any amendment to the EU Agency Workers Directive. [1659]
Mr Davey: The agency workers directive was proposed by the European Commission in
2002, it was finally adopted by the European Council of Ministers in June 2008 and by the
European Parliament in October 2008.
The final version of the directive was published in December 2008 and has to be
implemented by all member states into national law by December 2011. Therefore we do
not intend to seek any amendment as the directive has already been finalised.
The directive does foresee a review by the European Commission in December 2013 in
consultation with member states and social partners at European level to review the
application of the directive. This may result in proposals for amendments. This is normal
practice for similar directives.
Source: Parliament website (June 14 2010)

(a) Explain the role of European directives in English and Welsh law. [14]

• Not directly applicable (Article 288).
• Have a vertical direct effect if give individual rights and are clear (the Marshall
case).
• No horizontal direct effect (Duke v GEC Reliance).
• Individual can claim against State for loss cause by failure to implement (the
Francovich case).

Marks AO3
1 Nonetheless, there may be several errors in grammar, punctuation and
spelling, although not enough to detract from communication of meaning.
Fails to communicate and present logical argument, including inadequate
0 use of legal terminology. There are significant errors of grammar,
punctuation and spelling which detract from communication of meaning.

AO1
Marks
Candidates display a sound knowledge and understanding of the subject
content relevant to the question and a good perception of the concepts
11-13 and principles underlying that subject content. They display a sound
understanding of the practical application of the law and are aware of
current debate and criticism including the major proposals for reform.
Candidates display an adequate knowledge and understanding of the
subject content relevant to the question and have a perception of some
7-10 of the concepts and principles underlying that subject content. They
display a general understanding of the practical application of the law
and are aware of aspects of current debate and criticism.
Candidates display a limited knowledge and understanding of the subject
content relevant to the question with limited insight into some of the
3-6 concepts and principles underlying that subject content. They display a
limited understanding the practical application of the law and are aware
in general terms of some of the current criticisms.
Candidates display a basic knowledge and understanding of the subject
content relevant to the question and/or identify some of the relevant
0-2 principles. They demonstrate occasional basic insights into some of the
concepts and principles underlying the subject content. They display a
basic understanding of the practical application of the law.

22

(b) Evaluate the primary and secondary sources of European law. [11]

• The primary sources are mainly the treaties, the most important of which is the
Treaty of Rome.
• The effect of the European Communities Act 1972, Section 2 (1) which states
that treaties are without further enforcement to be given legal effect within the
UK. Relevant cases here could be Van Duyn v Home Office (1974); Macarthys
Limited v Smith (1980).
• The growing influence of European law is shown in that British courts are now
prepared to apply European law directly rather than wait for the European Court
of Justice to make ruling on a point, for example, the Connaughton case (1996).
• Secondary sources of legislation are those passed by the Institutions of the
Union under Article 288. This secondary legislation is of three types:
regulations, directives, and decisions.
• Regulations – the relevant provisions relate to Article 288 (TFEU).
• As with the regulations it is Article 288 (TFEU) that gives the power to the Union
to issue directives. Note difference from the regulations in that Article 288 says
that such directives bind any Member of State to which they are addressed as to
the result to be achieved, while leaving the domestic agencies competence as
to form and to means. Credit reference to appropriate directives such as the
working time directive.
• Decisions, for example, decisions issued under the power of Article 288 by the
European Court of Justice.

Marks AO3
application using appropriate legal terminology. This does not mean that
2
there are no errors in grammar, punctuation and spelling but these will only
be occasional.
reasonably adequate application using appropriate legal terminology.
1
Whilst there may be errors in grammar, punctuation and spelling, these are
not enough to detract from a most effective communication of meaning.

AO2
Marks
Skills
Candidates demonstrate a sound evaluation of how the law operates, or
an accurate and well-substantiated application of the law to a given fact
8-9 situation. This is achieved through their selection of legal authorities, by
appropriate methodologies and by their ability to apply the law to a given
question. They support their conclusions by citation, analysis and analogy.
Candidates demonstrate an adequate evaluation of how the law operates,
or a generally accurate and substantiated application of the law to a given
6-7 fact situation. This is achieved through their selection of legal authorities,
by appropriate methodologies and by their ability to apply the law to a
given question and support their conclusions by citation.
Candidates demonstrate a limited evaluation of some of the points of how
the law operates, or apply the law to a given fact situation in a partly
4-5 accurate and occasionally unsubstantiated way. This is achieved through
a limited selection of legal authorities and limited ability to apply the law to
a given question.
Candidates demonstrate a basic evaluation of one of the simpler points of
how the law operates or apply the law to a given factual situation in a
0-3 generally inaccurate and unsubstantiated way. There will be little or no
reference to legal authorities and points will not be developed. There will
be very limited evidence of structure in the candidate’s response.

23

LAW - LA3

UNDERSTANDING SUBSTANTIVE LAW

OPTION 1 - CONTRACT AND CONSUMER LAW

Answer two questions.


Charlie is a promoter and owns the Wales Exhibition Centre. He also collects coal
sculptures and despite having no formal training considers himself an authority in
respect of such sculptures. Whilst looking around Dave’s “Great Welsh Coal” Art
Gallery he sees a sculpture entitled “Nutty Slack” and thinking it to be a Robert
Bando, a famous sculptor of the school, buys it for £30,000.

Charlie plans to exhibit the sculpture in the Wales Exhibition Centre and receives
£15,000 in advance ticket sales and a separate £45,000 from the Cambrian Museum
which wants to borrow the sculpture for an exhibition. The Wales Exhibition Centre is
destroyed by fire the night before the exhibition begins along with the sculpture.
Additionally, when the sculpture remains were examined by the insurers it was
discovered that the sculpture was made of much lower grade coal, that it had been
mass produced in a souvenir shop in Yorkshire and was worth only £2.50.

Charlie is now being pursued by members of the public for the return of the money
from the advance ticket sales and also by the Cambrian Museum for the £45,000
paid to him.

(a) In the light of reported case law and other sources of law, advise Charlie. [14]

• Frustration.
• Common mistake.
• The nature of frustrating events.
• Impossibility.
• Discussions on the doctrine of frustration including common assumption;
contract becoming more onerous; event provided for; self induced
frustration; supervening event foreseeable.

Marks AO3
1
0

24

AO2
Marks
Skills
11-13
7-10
0-2

25

(b) Explain the importance of legislation and the approach taken by judges in the
interpretation of statutes in the above scenario. [11]
• Section 6 Sale of Goods Act 1979.
• Section 7 Sale of Goods Act 1979.
• The approach of the Sale of Goods Act as codifying precedent and the
application of case law in interpretation.
• Law Reform (Frustrated Contracts) Act 1943.
• Candidates will be rewarded for appropriate citation.

Marks AO3
application using appropriate legal terminology. This does not mean
2
that there are no errors in grammar, punctuation and spelling but
these will only be occasional.
and spelling, these are not enough to detract from a mostly effective

AO1
Marks
the concepts and principles underlying that subject content making
an entirely convincing synoptic connection with elements of
8-9 knowledge gained in understanding legal reasoning and methods
and understanding legal structures and processes. They display a
sound understanding of the practical application of the law and are
for reform.
content making a convincing synoptic connection with elements of
6-7
knowledge gained in understanding legal reasoning and methods
general understanding of the practical application of the law and are
aware of aspects of current debate and criticism.
some of the concepts and principles underlying that subject content
making a limited synoptic connection with elements of knowledge
3-5
gained in understanding legal reasoning and methods and
understanding legal structures and processes. They display a
limited understanding the practical application of the law and are
aware in general terms of some of the current criticisms.
0-2
content making a limited synoptic connection with basic elements of
basic understanding of the practical application of the law.

26

Q.2 Study the text below and answer the questions based on it.
John is the tenant of “The Moon” public house in Tewkville. The terms of the lease
agreement provided that John should pay Philip, the landlord, £2,000 per month for a
period of 8 years from January 1st 2010. Payment was due in advance on the first working
day of each month.
One year after starting the tenancy another pub opened in the locality and John suffered a
slump in business. He informed Philip that he could not pay full rent of £2,000 per month.
It was agreed that the rent be reduced to £1,000 per month “until things improved”. For the
next six months John paid the revised amount of £1,000 on the first day of the month by
bank transfer.
On July 1st 2010 payment was not received by Philip because for technical reasons the
Bank could not transfer the money. In fact the Bank was able to transfer money on July 2nd
2010 and this was credited to Philip’s account on July 3rd 2010. Having not received the
money on July 1st, Philip telephoned John and said that he was now reverting to the
original agreement and that John should also pay him £6,000 being the amount owed to
him.
(a) In the light of reported case law and other sources of law advise John. [14]
• Doctrine of promissory estoppel.
• Estoppel of where this is a shield and not a sword
• Past consideration.
Marks AO3
Nonetheless, there may be several errors in grammar, punctuation and
1
spelling, although not enough to detract from communication of
meaning.
0
grammar, punctuation and spelling which detract from communication of
meaning.
AO2
Marks
Skills
Candidates demonstrate a sound evaluation of how the law operates,
or an accurate and well-substantiated application of the law to a given
fact situation. This is achieved through their selection of legal
11-13
authorities, by appropriate methodologies and by their ability to apply
the law to a given question. They support their conclusions by citation,
analysis and analogy.
operates, or a generally accurate and substantiated application of the
law to a given fact situation. This is achieved through their selection of
7-10
legal authorities, by appropriate methodologies and by their ability to
apply the law to a given question and support their conclusions by
citation.
Candidates demonstrate a limited evaluation of some of the points of
how the law operates, or apply the law to a given fact situation in a
3-6 partly accurate and occasionally unsubstantiated way. This is
Candidates demonstrate a basic evaluation of one of the simpler points
of how the law operates or apply the law to a given factual situation in
a generally inaccurate and unsubstantiated way. There will be little or
0-2
no reference to legal authorities and points will not be developed.
There will be very limited evidence of structure in the candidate’s
response.

27

(b) Explain the significance of doctrine of precedent in the above scenario. [11]

• The Doctrine of promissory estoppel is a creature of precedent.
• Development of the Doctrine of promissory estoppel within the context of
case law should be fully discussed.
• The nature of what is a binding decision and the hierarchy of courts.

Marks AO3
clear application using appropriate legal terminology. This does not
2
mean that there are no errors in grammar, punctuation and spelling
but these will only be occasional.
and spelling, these are not enough to detract from a mostly

AO1
Marks
the concepts and principles underlying that subject content making
an entirely convincing synoptic connection with elements of
8-9 knowledge gained in understanding legal reasoning and methods
sound understanding of the practical application of the law and are
for reform.
content making a convincing synoptic connection with elements of
6-7
general understanding of the practical application of the law and
are aware of aspects of current debate and criticism.
content making a limited synoptic connection with elements of
3-5
limited understanding the practical application of the law and are
aware in general terms of some of the current criticisms.
0-2 content making a limited synoptic connection with basic elements
of knowledge gained in understanding legal reasoning and
methods and understanding legal structures and processes. They
display a basic understanding of the practical application of the
law.

28

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