Planning and writing the answer

Planning the answer

Planning your answer helps you create the direction and structure of your essay. Your efforts at this stage should focus on using the research materials to build a logical, coherent, well-structured essay.

The form of your plan might be graphical, or it might simply use headings and subheadings. In practice it is helpful to use a piece of paper large enough to contain your complete plan so that you can both see the overall picture and ensure the component parts fit together. Here is part of a plan we will use at the writing stage. It includes the points we will discuss when creating a main body paragraph.

A. HRA 1998

1. ‘Convention rights’

(a) From European Convention of Human Rights (ECHR)

(i) Not all ECHR rights – arts 1 and 13 are excluded.

(ii) Less far-reaching and more qualified than other bills of rights – e.g., German basic law – art 3 EHCR only absolute right.

(b) ECHR not incorporated into English law but ‘Convention rights’ given special status by HRA 1998:

(i) Courts cannot quash primary legislation – statutes declared incompatible with ECHR by courts still remain law – scheme retains legislative supremacy of Parliament. But

(ii) Courts required – where possible – to interpret legislation (post and pre HRA 1998) compatibly with ECHR.

(c) Not entrenched/protected in same way as constitutional documents:

(i) Bill of Rights in United States Constitution – Congress and 75% of states must agree to amendments.

(ii) German Basic Law – cannot be changed.

(d) Does not bind Legislature

Other constitutional documents bind legislature executive and judiciary.

The level of detail you need in your plan will vary.

Writing the answer

Writing the answer is the place where many students start when tackling an essay question, and this is probably the most common reason for under-performance (and even failure) in assessment. Writing your essay will not always be easy, but it will be a great deal easier to write if you have properly interpreted and researched the question, and equally carefully planned your answer.

The introduction should be short and simple. It needs to tell the readers what the essay is about and prepare them for the journey through your essay. What you are doing here is interpreting the question for your readers, and providing markers (or signposts) to give them an idea of the ground you are going to cover. This will enable them to build their own mental map of the territory they will be covering before they start on the journey itself. Here is an example of how the essay question we have considered throughout this chapter might be introduced:

The United Kingdom was, when it ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), one of the first member states of the Council of Europe to do so. Those rights guaranteed in the ECHR which are now protected in English law by the Human Rights Act 1998 (HRA 1998) have been labelled by that Act as ‘Convention rights’. This essay will discuss whether the HRA’s approach to Convention rights can properly be described as giving those rights the status of ‘higher law’; and whether, to all intents and purposes, this provides the citizens of England and Wales with a constitutional document comparable to a bill of rights.

A consideration of the scheme of the HRA 1998 will show that the legislative supremacy of Parliament is left intact. An examination of the Bill of Rights in the Constitution of the United States of America and the fundamental law of Germany will reveal that the Act lacks the conventional protection of legal entrenchment usually seen in bills of rights. On the face of it, this would suggest that the HRA 1998 does not have the ‘enormous significance’ the statement claims but an analysis of the impact and effect that the Act has had on English law reveals a new culture of human rights among citizens, an increased willingness on the part of the judiciary to protect human rights¹ and a sensitivity to human rights on the part of the government.²

Having set the scene for the readers, you then need to write the main body of the essay, taking up each of your themes in linked paragraphs or sections. Treat each paragraph as a separate unit of thought or mini-essay, while ensuring that it is clearly related to the themes of your essay. Follow the order of your plan to move smoothly from one point to the next.

A tried and tested method for creating an effective paragraph is to begin with a topic sentence, followed by supporting sentences and then a concluding sentence. However, all good writing contains varying structures, so you should not treat this model as one to be followed on all occasions, although it will serve to sharpen your perception of what needs to be achieved in a paragraph. The topic sentence introduces the key idea you will discuss in the paragraph and helps connect the paragraph to the overall plan. Sometimes it may be preceded by a transitional clause or sentence, but the topic sentence should always appear early on in the paragraph. If you look back to the first sentence of this paragraph, you will see that we use a few transitional words (linking this paragraph to the preceding one), followed by a topic sentence which tells you that in this paragraph we are going to discuss writing the main body paragraphs of an essay.

The supporting sentences of a paragraph are where the critical discussion takes place. The topic is analysed and the evidence is critically examined to develop and advance the arguments of your essay. The concluding sentence of a paragraph does not require you to come to a conclusion, but it does require you to evaluate or indicate how the argument has moved on. This will keep your arguments alive and keep readers on track. If readers fail to follow your arguments, you will lose their attention; and in an assessed essay or an examination you will also lose marks. Where a point is developed over a series of paragraphs, the concluding sentence of each one will act as a bridge to the next, until your final paragraph contains a concluding evaluation. Here are two paragraphs based on our essay plan above:

The ‘Convention rights’ identified in the HRA 1998 are contained in Arts 2–12, and 14 ECHR, Arts 1–3 of the First Protocol and Arts 1 and 2 of Protocol 6. The HRA does not add to these Convention rights, which, after 50 years and the increasing remoteness of the specifically post-World War II perspective, might be criticised for having the limited aim of protecting the citizen from state interference. Many constitutional documents, such as the basic law of Germany, are more far reaching. German basic law includes a general right to equality³ and a number of social rights such as the right of mothers to the ‘protection and care of the community’⁴. Convention rights do not embrace social rights such as the right to a free education⁵; or minority rights like the right to be educated in one’s own language⁶; nor does the HRA protect minority cultures⁷. Only one Convention right is absolute, namely Art. 3, the right not to be ‘subjected to torture or to inhuman or degrading treatment or punishment’, whereas a large part of Germany’s basic law is ‘inviolable’⁸. In enacting the HRA 1998, it seems Parliament did not intend to create a bill of rights along the typical lines of a constitutional document like Germany’s basic law or Sweden’s Instrument of Government.

The scheme of the HRA which is often, albeit wrongly, described as ‘incorporating’ the ECHR into English law⁹ preserves the legislative supremacy of Parliament and was designed, in the words of the Lord Chancellor of the day, ‘to give the courts as much space as possible to protect human rights, short of the power to set aside or ignore Acts of Parliament’.¹⁰ Ultimately, like every other statute, the Act could be repealed by the present or any future Parliament. However, unlike any other statute, it places an interpretative obligation upon the courts in relation to their interpretation of all other statutes, by requiring them to read all legislation, whenever passed, in such a way as to be compatible with Convention rights, wherever it is possible to do so. It may be objected that the HRA is not truly unique in this respect, since the Interpretation Act 1978 imposes a whole range of interpretative obligations in respect of all other statutes – except, in each case, ‘where the context otherwise requires’. The answer to this objection is that the Interpretation Act is limited to matters of technical convenience – such as the meaning of ‘day’ and ‘month’ and the presumption that the singular includes the plural and so on – whereas the HRA deals with a matter of constitutional principle. Thus this interpretative obligation, imposed by Parliament on the courts, is what gives the HRA its ‘special status’ in English law.

In each of these paragraphs the topic is identified in the first sentence. Looking at the first paragraph, we see that it deals with Convention rights; the supporting sentences then analyse these rights and criticise them by a comparison to the rights protected in other constitutional documents. The evaluation in the concluding sentence is that Convention rights are not comprehensive and that Parliament did not intend to create a bill of basic rights in the HRA.

By the end of your essay your conclusions should be fairly easy to write. The key thing is that they must fit the preceding discussion. This has two main elements. First, do not introduce new material into the conclusion. Secondly, do not express opinions that are not substantiated by the evidence; and, in particular, do not come to a firm view unless it is very clearly supported by the evidence. Other ways of rounding an essay off include linking the conclusion to the introduction by picking up a phrase, quotation or anecdote again, or using a quotation from a primary source to amplify your point. Above all, remember that a conclusion does not need to tie together every strand of the essay into a neat bow. If the evidence is equivocal, or the arguments finely balanced, then you should present that to the readers and allow them to reach their own conclusions. For example:

The HRA is not so wide ranging in the kind of human rights it protects as many constitutional documents, and the Act lacks the legal entrenchment usually found in such fundamental or basic laws. In a strict legal sense, the HRA is not analogous to a bill of rights and Convention rights have not been given any ‘higher status’ than the provisions of any other Act of Parliament. Nevertheless, the HRA has placed the protection of basic human rights firmly on the public agenda and while Parliament may still ‘as a matter of constitutional legality … be sovereign … as a matter of constitutional practice [the HRA] has transferred significant power to the judiciary’¹¹, a move which Flinders¹² claims ‘represents an unprecedented transfer of political power from the executive and legislature to the judiciary’. The enormity of the significance of the HRA is yet to unfold fully, and it remains to be seen whether it turns out be such a major constitutional change. In the nature of the British constitution, the HRA may evolve as a peculiarly British bill of rights, but only time will show whether the HRA will be listed with the likes of ‘Magna Carta… as a “revolutionary” legal and historical document in the sense that it changed man’s and woman’s thinking [turning] the UK’s political and legal culture upside down [and perhaps] the right way around’¹³.

This conclusion returns to the themes identified in the introduction and, in so far as is possible, it provides an answer to the question set. It also reminds those readers who have to mark your work for assessment purposes that you understand that the question is multi-layered and that the constitutional implications of the HRA are still being worked out. The essay ends with a forward-looking quotation, leaving the reader to continue thinking about the question as the journey ends.