Constitutional Law Flashcards
Marbury v Madison
Possibility for US Supreme Court to invalidate laws which contradict the constitution
Thoburn v Sunderland CC
Laws - constitutional hierarchy of statute - some statutes should not be subject to implied repeal
Reference to the Amendment to the Constitution of Canada
While the court will recognise the existence of conventions, they are not subject to their jurisdiction and cannot be enforced
Madzimbamuto v Lardner-Burke
Although UK Parliament could legally legislate for Rhodesia, it would contradict conention
AG v Jonathan Cape (Crossman Diaries)
Court will discuss conventions as potential interpretive aids but will not enforce them like laws
Crichel Downs
Four categories of accountability to government
1) Explicit order made by minister - must protect civil servant (responsible)
2) Civil servant acts in accordance with minister’s policies (responsible - resign)
3) Official makes a mistake or delay, but not on an important issue (accountable)
4) Official has taken reprehensible action of which minister disapproves and has no knowledge (accountable)
McGonnell v UK
Judiciary must be independent from administrative body that made the decision
Duport Steels v Sirs
Diplock - it cannot be too strongly emphasised that the British Constitution is firmly based on the separation of powers: Parliament makes the laws, the judiciary interprets them
Burmah Oil v Lord Advocate
If courts go too far in their interpretive duty, Parliament can always legislate to reduce impact
Magor and St Mellons v Newport Corporation
Judicial activism ‘fills in the gaps’ vs ‘naked usurpation of the parliamentary role’
R v R
Court ‘restated the old law correctly’ by making marital rape a crime
Airedale NHS Trust v Bland
Courts intervened to allow the victim’s life support to be switched off - Parliament would have taken too long
Malone v MPC
Judicial deference - courts were unwilling to create new categories of privacy rights
R (Nicklinson) v MoJ
Courts reluctant to rule on assisted suicide - matter for elected body
Sirros v Moore
Judges are immune from suit in regards to their judgement
Ex parte Venables v Thompson
Certain judicial roles can be exercised by Home Secretary - must act objectively and fairly
R (Evans) v AG
A decision of a court is binding and cannot be ignored or set aside by anyone, including the executive
R (Anderson) v SoSHD
Reduction in judicial power of Home Secretary
M v Home Office
Home Secretary criticised for ignoring a court order - equally binding on the executive
R (Jackson) v AG
Hope - Step by step the English principle of the absolute legislative sovereignty of Parliament is being qualified. The rule of law enforced in courts is the ultimate controlling factor of our constitution
Steyn - Parliamentary sovereignty should not be uncontrolled force within the constitution - courts may have to intervene in cases of conflict between PS and RoL
R (Corner House Research) v SFO
Bingham - all persons are bound by and entitled to the benefit of laws publicly made, generally taking effect in the future and publicly administered by the courts
IRC v Rossminster
Denning advocated that laws should be inherently moral to be legal
Wilberforce - inviolability of implemented laws
Entick v Carrington
There must be clear legal basis for government action
Ex parte Fewings
Local authorities must act intra vires and within proper purpose of the statute
Ex parte Simms
Freedom of speech as lifeblood of democracy - fundamental rights cannot be overridden by general or ambiguous words - interpretive duty
Sunday Times v UK
Law must be sufficiently clear
Liversidge v Anderson
Courts deferred to Government due to national emergency
Atkins (minority view) - more executive minded than the executive
Ex parte Cheblak
Home Secretary’s decision to deport was not questioned due to Gulf War
Ex parte Hosenball
Home Secretary’s decision to deport American journalist not questioned by courts on grounds of national security
Ex parte Gallagher
Judicial deference to executive during times of war where disclosure of classified information could interfere with national security
Bancoult v SoSHD
Unwilling to interfere in decision due to issues of international diplomacy and treaty obligations
A & Others
Distinguished from LvA - courts did not automatically defer to executive in determining emergency situation due to the significant restrictions on liberty involved - relative institutional competency
Ahmed v HM Treasury
Challenge to freezing order upheld as he had no opportunity to address the charges (unfairness)
Osborn v Parole Board
Common law as a deposit for fundamental rights and values
Vauxhall Estates, Ellen St Estates
A later act impliedly repeals an earlier act which legislate on the same area
AG for NSW v Trethowan
A non-sovereign Parliament (e.g. devolved) can be bound by entrenchment clauses, UK parliament (sovereign) cannot
Edinburgh & Dalkeith Railway v Wauchope
Act could not be questioned despite not having received a full debate in Parliament
Pickin v BRB
Enrolled bill role (Morris)
Van Gend en Loos
EC constitutes a new legal order of international law
Costa v ENEL
EC law is supreme to domestic law
Bulmer v Bollinger
Incoming tide of EU law
Felixstowe Docks
Denning - reluctance to embrace EC supremacy principle
Garland v BREL
Diplock - the words of the statute are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation
Factortame
Where statute cannot be interpreted in accordance with EU law, it must be disapplied in so far as to make it compatible
Bridge - interpretation that Parliament never intended to legislate in an incompatible manner
Axa Insurance v Lord Advocate
Acts of Scottish Parliament do not have immunity from judicial review
R (HS2 Alliance) v SoS Transport
Argued that bill did not allow for full participation for those affected
Neuberger - EU law ill not necessarily take precedence over other constitutional statutes
BBC v Johns
Diplock - it is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative
AG v De Keyser’s Hotel
Statute prevails over prerogative powers where they act on the same area - prerogative is in ‘abeyance’ until statute is repealed
Ex parte Fire Brigades Union
Home Secretary tried to use prerogative powers to amend statutory compensation scheme -criticised by courts for ignoring Parliamentary intention
R (Miller) v SoS for Exiting the EU
Government does not have prerogative power to deprive citizens of rights
Case of Proclamations
Monarch could only act under prerogative powers already established
GCHQ
There is no logical reason why the fact that the source of power is the prerogative and not statute should deprive the citizen of the right to challenge the manner of its exercise (Roskill)
Roskill’s list of inherently non-justiciable matters: defence of the realm, treaties, mercy, honours, appointing ministers and dissolution of Parliament
Ex parte Bentley
Courts felt able to review the Home Secretary’s decision not to grant an initial pardon to an accused murdere hanged in controversial circumstances
Ex parte Everett
Passport decisions are reviewable
Ex parte Abbasi
Low intensity of review when interfering with foreign policy
Ex parte Rees-Mogg
Low intensity of review (diplomatic implications) - only if irrational or in bad faith
