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DEGREE OF MASTER OF PUBLIC POLICY
Master of Public Policy (Final Examination)
LAW AND PUBLIC POLICY
TRINITY TERM 2018
Friday, 20 April, 2:30 p.m. – 4:30 p.m.
Time allowed: 2 hours
Candidates should answer TWO questions.
Each question is equally weighted.
Do not turn over until told that you may do so.
Answer TWO questions only
1. A number of incidents in the airline industry involving the treatment of passengers have attracted
media attention in State Alpha. The Minister for Justice in State Alpha declares that in light of these
incidents an investigation into the legal regulation of the airline industry is necessary.
The first incident involved Mr X, who had booked a flight for himself and his two children. After
Mr X and his children had boarded the aircraft, the airline realised that the flight was over-booked.
The airline staff sought to remove Mr X and his children from the flight and put them on another
flight the following day. Mr X refused to leave the aircraft and he and his children were ultimately
forcibly removed from the aircraft by airline staff. Mr X was injured as he was dragged from the
aircraft by airline staff. One of the airline staff is filmed kicking Mr X as he is dragged from the
aircraft.
As a result of a media investigation, it was revealed that it is common for airlines in State Alpha to
over-book flights. That is, airlines sell more tickets than there are seats on the flight in the
expectation that not every person who purchases a ticket will turn up to board the flight. However,
on occasions when all passengers turn up, airlines move some passengers on to a later flight,
causing some passengers significant delays. The Minister calls for an investigation into this practice
and into the way Mr X was treated by the airline.
The second incident involved the travel of an unaccompanied minor (Master Y). Master Y, a ten
year old child, was flying by himself from Town A to Town B. Master Y’s parents checked their
child in, at which point the airline staff said they would assist the child to board the aircraft and
ensure he was looked after on the flight. After a delay in the departure of Master Y’s flight, Master
Y was left unattended without food or water for 4 hours. This caused Master Y considerable
distress and Master Y suffered dehydration and required medical treatment at the local hospital.
You work as an advisor to the Minister. Identify for the Minister:
a) the legal issues that could arise from the incidents involving Mr X and Master Y and consider
which branches of the law might be used to hold individuals and the airline to account.
b) the types of laws that could be implemented (if not in place already) to prevent similar events
from happening again in the future. Evaluate these options and provide a recommendation as to
which of these options the Minister should adopt.
2. You are an advisor to the Minister of Justice in State Beta. The Supreme Court of State Beta, the
highest court in the country, has issued a ruling stripping the National Assembly (the legislature) of
its legislative power and transferring those powers to the Supreme Court. The basis for the Court’s
ruling was that the Court believed that three members of the National Assembly had been elected as
a result of electoral fraud. The Court also declared that all laws passed by the National Assembly
since these three individuals were sworn in as members of the National Assembly were invalid.
a) Write a memo for the Minister in which you explain the principle of the separation of powers.
In doing so, consider whether this transfer of legislative power contravenes the principle of the
separation of powers.
b) Would your advice to the Minister change if the Supreme Court were only to exercise this
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power on an interim basis until fresh elections were held? Give reasons for your answer.
3. Is judicial review of executive action the most effective mechanism for holding the executive arm of
government to account? What other mechanisms can be used to hold the executive to account?
4. Builder Ltd, a company incorporated in Kenya, and Construct-It Ltd, a company incorporated in
Canada, entered into a contract jointly with the State of Ruritania for the construction and operation
of an electricity generating plant in Ruritania. As a result of a difficult economic situation, the new
government of Ruritania declared an economic emergency and terminated the contract with the two
companies and took control of the electricity plant. The Ruritanian government also enacted a law
which requires claims for compensation to be brought in a newly created domestic court in Ruritania.
Ruritania and Kenya are parties to the Convention on the Settlement of Investment Disputes between
States and Nationals of Other States (‘ICSID Convention’). Canada is not a party to the ICSID
Convention. Ruritania and Kenya are also parties to a Bilateral Investment Treaty which provides
that:
“Article. 3: No State Party to this treaty may expropriate or nationalize the investment of a
national of another State Party, either directly or indirectly, except in accordance with
international law
Article 4: Each State Party hereby consents to submit any legal dispute concerning an
investment arising between that State Party and a national of the other State Party to the
International Centre for Settlement of Investment Disputes for settlement by arbitration.”
Ruritania, Canada and Kenya have all made declarations under Article 36(2) of the Statute of the
International Court of Justice (ICJ) accepting the jurisdiction of the ICJ. However, Kenya’s
declaration includes a statement that it does not accept the jurisdiction of the ICJ in respect of disputes
arising from measures taken in situations of public emergencies.
You are an official in the Ministry of Foreign Affairs of Kenya and have been approached by Builder
Ltd seeking your assistance with respect to the dispute regarding the termination of the contract by
the state of Ruritania. Advise Builder Ltd as to which courts or tribunals are legally available for the
adjudication of this dispute with Ruritania. You should also advise Builder Ltd as to which of those
courts or tribunals would be the preferred one or ones to use in this circumstance.
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