Constitutional Law

Question 1

Stockdale v Hansard

Answer 1

Control on how laws may be made: only Acts of parliament are supreme

Question 2

Entick v Carrington

Answer 2

the need for a legal basis for all governmental action

Question 3

Re M

Answer 3

Emphasises separation of powers - ‘parliament makes the law, the executive carry the law into effect and the judiciary enforce the law’

Question 4

Madzimbamuto v Lardner burke

Answer 4

Traditionally there are no substantive limitations on the content of laws. Constitutional conventions are not enforceable in the courts

Question 5

Ex parte Witham

Answer 5

Parliament cannot restrict the exercise of what the court sees as a fundamental right unless they do so using express words.

Question 6

Ex parte Simms and Another

Answer 6

Lord Hoffman: Courts ‘presume that even the most general words were intended to be subject to the basic right of individual’

Question 7

BBC v Johns

Answer 7

‘It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative’.

Question 8

Mortensen v peters

Answer 8

Emphasises that UK is a dualist system therefore treaties and other sources of international law do not automatically form part of domestic law.

Question 9

R (Southall)

Answer 9

Stresses that conventions will not be enforced by the courts. Opponent of extension of EU competence to make laws applicable within the UK asked the court to recognise that a constitutional convention existed which would require a referendum for such a change. C of A refused to get involved in a political dispute.

Question 10

Manual v Attorney General

Answer 10

Refused to develop a rule of interpretation that statutes should be interpreted, where possible, in line with established conventions.

Question 11

Attorney general v Jonathan Cape

Answer 11

Developed legal doctrine of breach of confidence - influenced by the convention of collective responsibility. Convention persuaded the court that the info had a confidential nature and was potentially in the public interest to protect.

Question 12

Black Spider Mesmos Case

Answer 12

Journalist requested disclosure of letters between Prince Charles and various govt departments under Freedom of `Info Act. Had to decide scope and meaning of education convention and decided that it did not cover advocacy correspondence. Therefore public interest favoured disclosure of the letters.

Question 13

Miller

Answer 13

Even though the Sewel Convention is in statutory form, this does not mean it can be enforced by the courts. It is still a political convention, not a legal rule.

Question 14

Magna Carta 1215

Answer 14

Required that the monarch show lawful authority for his actions, permit trial by jury and ensure that justice was impartially administered in the courts.

Question 15

Bill of Rights 1689

Answer 15

Reaffirmed some of the provisions of Magna Carta stated that the power to make/ repeal laws in England rested with Parliament not the monarch. As a result of parliament establishing its supremacy, no new prerogative can be created.

Question 16

Equality Act 2010

Answer 16

Merged Sex Discrimination Act , Race relations Act and Disability Discrimination Act. Emphasises the important of the constitutional principle of equal treatment.

Question 17

Irish Free state (constitution) Act 1922 and Ireland Act 1949.

Answer 17

Marked the boundaries still in existence today.

Question 18

Henry VIII clauses

Answer 18

all ministers exercising statutory powers must respect court orders as a matter of necessity not as a matter of grace.

Question 19

Salisbury Convention

Answer 19

House of Lords should not reject outright a bill that was promised in the governing party’s election manifesto.

Question 20

Locke

Answer 20

it is tantamount to creating a dictatorship to give only 1 body all of the power.

Question 21

Barendt

Answer 21

The avoidance of concentrations of power is arguably the key purpose of the separation of powers doctrine.

Question 22

Montesquieu

Answer 22

there can be no liberty if all the power is vested in one body

Question 23

Saunders

Answer 23

complete separation of powers is impossible.

Question 24

Dupport Steel v Sirs

Answer 24

Lord Diplock: It cannot be too strongly emphasised that the British constitution, through largely unwritten, is firmly based on the separation of powers.

Question 25

Ahmed v HM Treasury

Answer 25

Degree of parliamentary oversight on delegated legislation. Emphasised that only Parliament could authorise grave interferences with individual rights, not the executive.

Question 26

Shaw v DPP

Answer 26

Accused had published a magazine containing the names and addresses of the prostitutes and a description of their services. Held that this was illegal under a common law offence called ‘conspiracy to corrupt public moral’. Judicial exercise of legislative powers?

Question 27

Ghaidan v Mendoza

Answer 27

Under s 3 of the HRA a court can read in words which change the meaning of the legislation

Question 28

McDonnell v UK

Answer 28

Guernsey flower grower was refused planning permission to turn his flower- packing shed into a home. Decision was made by a judge who also presided over the island’s legislature. ECtHR found breach of Article 6 - the judge was judging on the very laws he had helped to bring into effect.

Question 29

Jowell

Answer 29

the reach of formal equality is limited because its primary concern is not with the content of the law but with its enforcement and application alone.

Question 30

Pedro v Diss

Answer 30

Pedro standing in street. Constable Diss told him to move on. Pedro refused and Diss grabbed him by the arm. Pedro punched Diss. Had Pedro committed a criminal assault? An individual is entitled to defend themselves whether against an ordinary person or a police officer with no legal excuse for his actions = equality before the law.

Question 31

Ex parte Rossminster ltd

Answer 31

statute said that if any offence relating to tax fraud is reasonably suspected search warrants may be issued which allow tax officers to enter private property by force and seize and remove anything found there which they believe may be required as evidence of tax frauds. H of L upheld the warrants but Lord Scarman described it as a ‘breathtaking inroad upon the individual’s rights of privacy and right of property’

Question 32

Malone v UK

Answer 32

Made clear the strong presumption of the courts that parliament does not intend to infringe the rule of law by penalising people retrospectively

Question 33

ex parte Northumbria Police Authority

Answer 33

Established that orders in council are subject to judicial review. UK govt decided to remove population of the Chagos Island. Under a British-American accord, Britain permitted the USA to establish defence facilities on the islands and undertook to evacuate the population. The evacuation was done under a prerogative Order in Council which gave the Crown a general power to legislate in the territory for its ‘peace, order and good govt’, Couple of years later the govt made 2 fresh orders in council which effectively exiled the population permanently.

Question 34

De Keyser’s Royal Hotel

Answer 34

The Crown cannot disregard a statute in the same area as a prerogative and do as it pleases using the prerogative power. The Crown can only do that particular thing under and in accordance with statutory provisions.

Question 35

Laker Airways v Department of trade

Answer 35

Denning: prerogative power is a discretionary power to be exercise for the public good therefore its exercise can be examined by the the courts just as a any other discretionary power which is vested in the executive.

Question 36

GCHQ case (dicta)

Answer 36

There are subject matters qualifications over what prerogatives can undergo JR. Excluded categories: making of treaties, disposal of armed forces, defence of the realm, dissolution of parliament, prerogative of mercy and the appointment of ministers.

Question 37

GCHQ case (facts)

Answer 37

H of L considered challenged to an instruction made under Order in Council by PM with prevented staff at GCHQ belonging to national trade unions. Applied for JR on the ground that the PM had been under a duty to act fairly by consulting those concerned before issuing it. Held that the decision making process had been unfair but that national security considerations outweighed the duty to act fairly.

Question 38

Ex parte Rees Mogg

Answer 38

Confirmed that the courts would not entertain challenges to the prerogative power to conclude treaties (in this case the Treaty of Maastricht)

Question 39

Ex parte Everett

Answer 39

courts are competent to review the exercise of the prerogative power of the secretary of State to issue passports.

Question 40

Ex Parte Smith and others

Answer 40

Simon Brow LJ: only the rarest cases would be non-justiciable i.e those which involved national security properly so called and where the courts in addition lack the expertise or material to form a judgement on the issue, Concerned challenge by homosexual servicemen and women to the policy to completely exclude them from service. Subject to JR - it touched on the defence of the realm but was not specifically related. still rejected however -more suitable for Parliament to take a stance (issue of morals involved)

Question 41

Ex parte Bentley

Answer 41

Prerogative of mercy was reviewable, though on rather limited grounds - plainly against dicta in GCHQ which was dismissed as obiter. Issue was whether the HS’ refusal to recommend a prosthumous pardon was subject to JR. Held that HS had wrongly considered that the only option was a full pardon - should have considered lesser action. Cautious with remedies - formally ‘invited’ HS to reconsider his decision.

Question 42

R (Abbasi)

Answer 42

The mere fact that the prerogative in relation to foreign affairs was in issue was not enough to oust the jurisdiction of the court. Foreign office had considered the issue but court held that if they had refused to even consider making representations then it would be appropriate to make a mandatory order to give due consideration ( ordering more than this will depend on fact).

Question 43

Bel marsh

Answer 43

Substantial example of the upholding of the rule of law by courts. There has to be wholly exceptional circumstances before the extreme step of indefinite imprisonment without charge or trial can be justified in a country which observes the rule of the law.

Question 44

Academic viewpoints on Bancoult

Answer 44

An important and disappointing statement of contemporary attitudes to the prerogative.

Question 45

Phillipson on ex parte

Northumbria Police Authority

Answer 45

Shows that courts have required clear evidence of parliamentary intention to abridge the prerogative

Question 46

Fire Brigades Union

Answer 46

Prerogative cannot be used to frustrate parliament’s will. S of S decided not to bring legislative scheme into force, but instead to introduce a cheaper system under the prerogative. Can’t use PP in this way - S of S essentially abusing his power.

Question 47

R ( Corner House Research and another)

Answer 47

Investigation commenced over allegations of corruption against UK’s largest arms company. Provoked threat by Saudi Arabia that it would withdraw from the counter terrorism arrangements and end negotiation for the purchase of British Typhoon fighter jets. Director stopped investigation. H of L held that he acted lawfully in a difficult situation 0 he was still acting within the discretion given to him. Court’s job is not to 2nd guess his decision.

Question 48

Jowell’s criticism of R (Corner House Research and another)

Answer 48

threat to the fundamental feature of the rule of law that there is equality before the law (and thus public officials must obey the law. Example of wide discretions challenging this).

Question 49

Gillan v UK

Answer 49

Law permitted searches without reasonable suspicion of persons involved. ECtHR held that to allow such arbitrary and unconstrained use of the power to stop and search could not be deemed in accordance with law.

Question 50

Burmah Oil Company v Lord Advocate

Answer 50

Acting under its prerogative powers the govt ordered its army to destroy one Burmah’s oil refineries during WW2. After the war Burmah sued the govt. Govt introduced act which reversed the result of the judgment. Example of retrospective.

Question 51

Nicklinson

Answer 51

Argued that there was not enough clarity in the guidelines for assisted suicide. Sc made it clear that there were limits to how much that there were limits to how much the DPP was required to release. Can’t pursue clarity to the extent that it undermines the R of L - giving too much info the DPP has the statute by including things which aren’t there.

Question 52

R v R

Answer 52

Wife moving into her parent’s home and made it clear that she thought the marriage was over. Husband entered house unlawfully and raped her. Husbands couldn’t rape their wives but was convicted of rape. Applied to ECtHR under Article 7 (on basis of non - retroactivity) but no breach found.

Question 53

Jackson v AG

Answer 53

Rule of law is the ultimate controlling factor on which our constitution is based. Courts have a part to play in defining the limits of parliament’s legislative supremacy. Lady Hale: courts will treats with particular suspicion (and might even reject) any attempt to subvert the R of L by removing government action affecting the right of the individual from all judiciary scrutiny.