cases/ acts of parliament

Question 1

Madzimbamuto V Lardner - Burke (1969) case Lord reid’s case

Answer 1

Lord reid’s case :
• It is often said that it would be unconstitutional for Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper …
But that does not mean that it is beyond the power of Parliament to do these things

Question 2

○ Burmah Oil V Lord Advocate AC 75 (1965)

Answer 2

parliament changed the law retrospectively then
- so the government promoted a bill that said no person shall receive compensation in respect to damages to or destruction from crown in contemplation or outbreak of war in the sovereign was or is engaged
○ The clause said whether before or after the passing of this Act, within or outside the United Kingdom .

Question 3

Parliament Act of 1911

Answer 3

• abolished HL power to veto legislation
  
  • replaced with power to delay for 2 year max (if theyre passed twice and rejected by HL then they can get it royal assent)

Question 4

statute of westminster - 1931

Answer 4

○ §s.4: ‘No Act of Parliament … shall extend … to a Dominion … unless … that Dominion has requested, and consented to, the enactment thereof’.
According to classical doctrine In theory that was a statement of political intent and could have no legal significance.
- Blackburn v A-G (1971) (Lord Denning MR): ‘Freedom once given cannot be taken away. Legal theory must give way to practical politics.’
○ Meaning : if a former colony has obtained its independence then any attempt by westminster to interfere with its legislation would be ignored because they’ve already obtained their independence and have their own system

Question 5

parliament act 1949

Answer 5

educed delaying power to 1 year

passed using Parliament Act 1911 procedur

Question 6

Lord steyn in jackson
‘The classic account given by Dicey, pure and absolute as it was, can now be seen to be out of place in the modern UK. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. The judges created this principle

Answer 6

• But Steyn is saying that the doctrine in law must have been invented by the judges ( contraversial because he is saying they created the principle ) so they should be able to modify or =the principle
  
  • They may wished to modify if the way in which parliamentary sovereignty is being used undermines the precepts of constituitionalism

Question 7

Lord Hope in Jackson

Answer 7

‘Our constitution is dominated by the sovereignty of Parliament. But parliamentary sovereignty is no longer’
The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based

Question 8

HRA 1998 -

Answer 8

• everyone is entitled to a fair and public hearing ‘an independent an impartial tribunal established by law’

Question 9

The CRA 2005

Answer 9

rule of law - section 1
- parliament was decreeing that rule of law was an existing constitutional principles with this constituitional reform act 2005

Question 10

Entick V carrington (1765)

Answer 10

• kings messengers trespassed on Enticks property and took his pamphlets . Their defence was : they were acting under a warrant issued by one of majesty’s ministers and no one had questioned this authority before. Lord Camden CJ said ‘if it is a law, it will be found in our books’ (as a statute clearly outlining majesty was able to do this) but nothing was found.
  v So the basic principle is public authorities must be able to identify the legal basis in which they are presuming to act

Question 11

v Lord Diplock in Duport steels v sits -

Answer 11

• ‘It cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interprets them’.
• Diplock is emphasising that the judiciary do not make laws they just interpret them and he is essentially reinforcing parliamentary sovereignty . It’s a formulation of the rule of law that bolsters the idea of parliamentary sovereignty

Question 12

Malone v MPC

Answer 12

• telephone tapping via post office permission and Malones defence was it was unlawful
  They rejected Malone and said it was ok.
• Megarry vice chancellor - “England is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden” - esssentially a formulation of diceys 3rd rule of law which is we are free to do what we want except that which is limited by law.
• v What this case reveals the limitations of the common law approach to the rule of ordinary rule applying equally to all including ministers
  he took it to european courts of human rights which said that it was a breach of art 8 of ECHR

Question 13

Burmah Oil V lord Advocate

Answer 13

• v Gov didnt like the ruling of HL in this case and simply passed AP to nullify the impact of that ruling
• illustrating the principle of parliamentary sovereignty but also highlights the limitations of both separation of powers and principle of the rule of law

Question 14

Town investment V sec of state for Environment (1978)

Answer 14

• v The act in dispute here was a rent control act and this act did not bind the crown but it was a provision to control rent.
  v CA held that the lease to the premises was held by the secretary of state as secretary of state and not as the crown
• ## Essentially the crown is a synonym for government

Question 15

M v Home office (1994)

Answer 15

• this case a failed asylum applicant was sent back to central Africa despite the judge had awarded an emergency injunction prohibiting the home secretary from doing so
• v The judge then issued a ruling finding the Home secretary in contempt
• v Diplock - crown is synonym for gov - so in this case if this logic is used then you can’t apply the injunction to the minister of the crown
  v But then court said you could apply it to the minister as an Individual but the minister was acting in official capacity

Question 16

In Northumbria Police authority case - an overlap of prerogative

Answer 16

v HS used prerogative to give plastic bullets to Northumbria when police authority refused to issue these bullets to NP
v Challenged by judicial review but court upheld the HS discretionary powers
v So still unclear

Question 17

Parliament Act 1911:

Answer 17

• abolished HL power to veto legislation
  
  • replaced with power to delay for 2 year max (if they’re passed twice and rejected by HL then they can get it royal assent)

Question 18

Parliament Act 1949:

Answer 18

• reduced delaying power to 1 year

* passed using Parliament Act 1911 procedure

Question 19

R (simms) V secretary of state for the home department – Lord Hoffman –

Answer 19

“PS means that parliament can, if it chooses, legislate contrary to fundamental principles of HR …the constraints upon its exercise are ultimately political not legal”

Question 20

constituitional reform act - sop and rol

Answer 20

recognised rol as existing constituitional principle in s1

changed the function of lord chancellor to just judicial function rather than executive,legislative and judiciary

Question 21

entick V carrington - supports ROL

Answer 21

case facts - trespass - pamphlets - kings messengers argue its always been done
Lord Camden - d ‘if it is a law, it will be found in our books’
i.e legal basis must be found for their actions

Established: that the government is not above the law - ROL 2) equality before the law

Question 22

ex p pierson - supports rol and sop

Answer 22

home secretary fixing penal sentences - They held it unlawful for home secretary to suddenly increase sentences in the period of incarceration to release

• This is because the sentencing is part of having fair criminal proceedings
• Doesn’t allow the executive to do whatever it wants (equality before the law)

significance : You can look at this as the working of the separation of powers or it can also be said that this is a vindication(proof) of the rule of law

Question 23

criminal justice act 2003 - vindication of rol and working of SOP

Answer 23

got rid of this unlawful procedure (of allowing executive officer to decide sentences and allows trial judge to do this)

Question 24

M V home office - crown

Answer 24

• Deportation case
• Home secretary ignored injunction by king
• erroneous mandatory order against the crown which was not allowed because king and crown (public body of king) were exempt from legal process.

court held - Essentially the court ruled that this was now allowed

Question 25

IRC V Rossminster - warrant case - limitation to ROL

Answer 25

this warrant is authorised by 1970 taxes management act which allows tax officials to seize anything believed to be evidence of tax fraud
CA hold: unlawful they cant do this
HOL overrule and say there’s nothing in the statute requires the particulars of the offence to be stated in the warrant . No violation of principle laid down in Entick

deny the equality before the law but technically abide by general statements rule of law because it was a statute written down court were just applying the statute according to wording

Question 26

Malone

Answer 26

phone tapping case
they rejected Malone and said it was ok. Megarry vice chancellor “England is.. a country where everything is permitted except what is expressly forbidden
- essentially a formulation of Dicey’s 3rd rule of law which is we are free to do what we want except that which is limited by law. (good principle of civil liberty applying to ordinary individuals but its deficient when it’s a principle applied to public officials because they have special powers to do things normal people can’t)
- What this case reveals the limitations of the common law approach to the rule of ordinary rule applying equally to all including ministers

Question 27

ex p Bennet - boarder embrace of ROL

Answer 27

NZ deportation
Bennett brings an action of a judicial review challenging the legality of the prosecution process
• CA held that all they can do is determine whether he is able to have a fair trial and if that’s ayes then the circumstances don’t matter
• HL overturned the CA ruling - which asserting the fundamental importance of the principle of the rule of law and the maintenance of it which they said was
“the judiciary accept responsibility for maintenance of the rule of law;” and that includes “and to refuse to countenance behaviour that threatens either basic human rights or the rule of law”
significance :- Mark of a broader embrace of the rule of law in this case

Question 28

arms to Iraq affair

Answer 28

embargo on arms during war with iraq and iran

• it was discovered junior ministers changed guidelines of dual supply of arms but ministers didnt notfiy parliament of this change
• during the prosecution of matrix Churchill they found out
• gov tried to stop information going out by issuing a public interest immunity certifcate
• court reviewed it and overruled crown immunity
• following the case there was a scotts report on the matter which revealed a lot about public decision making and how ministers used the pii certificate for getting away with criminal trials and , and hwo minsters lied to the HOC and covertly altered guideline s on exports
• matter put vote in parliament but gov won by one vote and no miinsiter resigned
  significance: • Revealing the limitation of parliamentary process when gov possesses majority in commons

Question 29

R (evans) V AG

Answer 29

• Guardian newspaper made FOI requests to & govt dept. for disclosure of memos sent to them by prince Charles
• Prince Charles is regularly writing to govt and is giving opinion about govt matters
- gov refuses Guardian appeals to information commisioner
- gov view is upheld because royal family is one of the exemptions
- upper tribunal reverses decision says should be disclosed to evans
- AG uses s53 veto power to try and overule decision
guardian challenges this veto power
-
• Divisional court holds that the ag acted lawfully but COA (so does the SC) overturns their ruling by saying the AG didn’t have the power to issue the notice at that point and he was acting unlawfully
- • Court was saying minister could exercise veto against ic (public servant )but if the ruling of ic is appealed to tribunal then veto power is abolished
SIGNIFICANCE Sc is saying the principle of ROL or SOP the consitutitonal principles basically make it clear that one can’t have an executive override of a judicial ruling
AND
• Once again we see the courts actively making use of these constitutional principles of sop and rol to vindicate these principles against the principle of PS. Faithfully following the literal interpretation of and act of parliament