Public Law 1

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Public Law 1
2013-04-09 12:53:12
Public Law

Public Law 1
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  1. Edinburgh & Dalkeith Railway Co v Wauchope; Pickin v British Railway Board
    Enrolled Act. Once an Act of Parliament has been entered onto the Parliamentary roll, the courts will not question the validity of that Act or hold the Act to be void.
  2. Crown Proceedings Act 1947
    Parliament may curtail Royal Prerogative.

    This removed the immunity the Crown had previously enjoyed in respect of claims in tort and contract.
  3. Fixed-term Parliaments Act 2011
    Parliament may remove Royal Prerogative.

    Removes power Queen formerly exercised under the Royal Prerogative to dissolve Parliament.
  4. Madzimbamuto v Lardner-Burke
    Statute may override constitutional convention.

    'Their Lordships in declaring the law are not concerned with conventions... they are concerned with the legal powers of Parliament.'

    The UK Parliament had passed the Southern Rhodesia Act 1965 which was challenged on the basis that it was an established constitutional convention that the UK Parliament would not legislate for Southern Rhodesia without the consent of the Rhodesian Government.
  5. A-G v Jonathan Cape
    The High Court suggested that they would not enforce the constitutional convention of collective Cabinet responsibility to grant an injunction preventing publishing memoirs.
  6. R (Jackson) v A-G
    Lord Hope: The rule of law enforced by the courts is 'the ultimate controlling factor on which our constitution is based'

    Also considered validity of 1949 Parliament Act. A strict interpretation of the 'Enrolled Act' rule would have precluded the House of Lords from considering the case.

    Manner and form

    Lord Steyn said Parliament could for specific purposes provide for a 2/3 majority in the HofC.

    However, Lord Hope said that it is a 'fundamental aspect of sovereignty that no Parliament can bind its successors.' Therefore it cannot entrench an Act of Parliament. 

    Parliamentary Supremacy

    Lord Steyn said PS was a 'construct of the common law'. Therefore judges could qualify the principle to ensure that Parliament does not pass legislation that contravenes the rule of law.

    Therefore, it may oppose attempts to abolish judicial review, ordinary courts or the Supreme Court.
  7. House of Commons Disqualification Act 1975
    S1- Disqualifies certain members of the executive (civil servants, members of the armed forces, members of the police) from holding Parliamentary office.

    S2- Limits the number of government Ministers who may sit in the HofC to 95.
  8. Constitutional Reform Act 2005
    S3- Govt. under a duty to uphold the independence of the judiciary and individual ministers should not seek to influence particular decisions through any special access to the judiciary.
  9. Contempt of Court Act 1981
    Ensures that there is no outside interference with the administration of justice.
  10. Anderson
    Lordships found that sentencing of offenders was a judicial function, which should not be carried out by a member of the executive who was neither independent nor impartial and who might be swayed by political considerations.

    s4 HRA 1998

    Where courts are unable to interpret legislation in line with HRA under s3, they can make a declaration of incompatibility under s4.

    It was held that imposition of a sentence should be determined by an independent and impartial tribunal. It was a breach of Article 6 ECHR for a member of the executive (the Home Secretary) to do this under the Crime (Sentences) Act 1997.

    It was not possible to interpret this power in such a way as to make the Act compatible with the ECHR, so a declaration of incompatibility was issued.

    The govt. subsequently adopted the Criminal Justice Act 2003 to abolish the Home Secretary's powers.
  11. Case of Proclamations
    New royal prerogative powers may not be created or the scope of existing power extended.
  12. BBC v Johns
    Attempted to extend Royal prerogative (of exemption from income tax) to BBC's Royal Charter. This was rejected, the prerogative may not be extended.
  13. Blackburn v A-G
    The power to sign an international treaty was part of the Royal Prerogative and therefore immune from judicial review.
  14. CCSU v Minister for Civil Service
    Lord Roskill retreated from the position in Blackburn and said that the exercise of Royal Prerogative was not automatically immune from judicial review process, unless the power was 'non-justiciable':

    • making international treaties
    • control of the armed forces
    • defence of the realm
    • prerogative of mercy (removed in Bentley)
    • granting public honours.
  15. Bill of Rights 1689
    Article 9- Guarantees freedom of speech in Parliament by stating that Members of Parliament cannot be made subject of legal sanction by the courts for comment made in Parliament.
  16. Burmah Oil/ War Damage Act 1965
    HofL awarded compensation to Burmah Oil for financial losses sustained during WWII. War Damage Act overruled HofL decision and provided that compensation was not payable.

    Also, Parliament may act retrospectively. The 1965 prevented C's from receiving compensation.
  17. Parliament Acts 1911/ 1949
    1911 Act: abolished HofLs right to reject money bills that had been passed by the Commons (only delay up to two years).

    1949 Act: reduced power of delay to one year, taking effect under 1911 Act.
  18. Cheney v Conn
    Statute may override international law. In this case a tax (which was used to finance the manufacture of nuclear weapons) was challenged on the basis it contravened the Geneva Convention. The challenge failed.
  19. European Communities Act 1972
    Confirmed that stature may alter the constitution.
  20. Ellen Street Estates
    The doctrine of implied repeal.

    Maugham LJ said 'the legislature cannot according to our constitution bind itself as to the form of subsequent legislation' and may not bind itself by stating that there may be no implied repeal.

    Therefore, a later Act of Parliament will impliedly repeal the provisions of an earlier Act to the extent of any contradiction between the two.
  21. Thoburn v Sunderland City Council
    Laws LJ 'Statutes that are 'constitutional' are of such significance that the courts would require actual intention from Parliament to change them, not an implied repeal.'

    Therefore ordinary statutes may be repealed, constitutional statures may not.

    Example of 'constitutional statutes' include HRA, ECA and Magna Carta.
  22. A-G for New South Wales v Trethowan
    Argument in favour of the 'manner and form' theory (that Parliament may bind its successors as to the procedure to be adopted when repealing legislation enacted by that earlier Parliament).

    A-G found that the repeal of the law was invalid because a referendum should have taken place.
  23. Pickstone v Freemans
    s2(4) ECA 1972 requires any enactment passed or to be passed to be 'construed' subject to EU law.

    Therefore, HofL adopted a 'purposive' interpretation of the Equal Pay Act 1970 and 1983 Regulations. (equal work interpreted as equal value work)
  24. Lister v Forth Dry Dock
    s2(4) ECA 1972 requires any enactment passed or to be passed to be 'construed' subject to EU law.

    Here, the HofL interpreted the Transfer of Undertakings Regulations 1981 contrary to their literal meaning on order to achieve a result compatible with EU law.
  25. Webb v EMO
    s2(4) ECA 1972 requires any enactment passed or to be passed to be 'construed' subject to EU law.

    This is an example of the Sex Discrimination Act 1975 being construed in accordance with the ruling from the ECJ.
  26. Factortame (No 2)
    Merchant Shipping Act 1988 contravened provisions on the freedom of establishment in the TFEU.

    After consulting the ECJ, the HofL granted an interim injunction, effectively suspending the operation of an Act of Parliament.

    (Doctrine of implied repeal will not take effect with constitutional Acts of Parliament such as ECA 1972)
  27. EOC
    HofL granted a declaration to the effect that national law was incompatible with EU law.

    Their lordships agreed that domestic employment legislation was incompatible with EU law as it discriminated against women.
  28. McCathys v Smith
    Lord Denning said that there was no reason why the Parliament should not pass an Act explicitly repudiating the TFEU or any provisions within it. It would be then be the duty of the courts to follow the statute of Parliament.
  29. European Unions Act 2011
    In future, 'signifcant' EU treaties (or amendments to treaties) must be approved by a referendum of UK voters in addition to being approved by Parliament.
  30. R v A (No 2)
    Section 3 HRA 1998 provides that primary and secondary legislation must be interpreted in accordance with Convention rights 'so far as it is possible to do so.'

    Under the Youth Justice and Criminal Evidence Act 1999, a D charged with rape was not permitted to adduce at his trial evidence of his alleged victim's previous sexual history, which may have infringed his right to a fair trial.

    However, the HofL effectively read extra words into the Act to read the provisions in such a way as to prevent D adducing such evidence in so far as it did not breach his right to a trial.

    Lord Steyn conceded that this had required the court to 'adopt an interpretation which may appear linguistically strained'.

    s3 imposed a duty to 'strive to find a possible interpretation compatible with Convention rights.
  31. Ghaidan v Godin-Mendoza
    Section 3 HRA 1998 provides that primary and secondary legislation must  be interpreted in accordance with Convention rights 'so far as it is possible to do so.'

    Housing legislation interpreted literally treated homosexual couples less favourably. HofL therefore stretched the literal meaning to cover homosexual couples.

    Lord Steyn said 's3 requires a broad appraoch concentrating.. in a purposive way on the importance of the fundamental rights involved.'
  32. The 'Belmarsh' case
    The Anti-terrorism, Crime and Security Act 2001 was challenged under the on the basis that indefinite imprisonments were in breach of the ECHR. The HofL issued a declaration of incompatibility and and within 3 months the offending legislation was appealed.