Main cases

Question 1

Animal Defenders (in UK)

Answer 1

UK COURTS:
2006 - application refused because P are more qualified to make these decisions
2008 - HL also decided that P are better qualified and there was lots of pre legislative scrutiny

Lady hale justified the decision by looking at USA where most money = wins elections

• restriction of free speech to protect democratic process
• democratically elected gov safeguarding democracy
• P’s political judgement is best

Question 2

Animal Defenders (at EU)

Answer 2

Grand chamber (9:8 majority)

• VGT not well reasoned
• this ban had legitimate objective
• ban was proportionate to prevent distortion of democratic process by paid political advertising
• P carefully considered = great deference to P

(minority)
- disproportionate (consider NGOs)
- growing trend away from general bans
- allowing near elections eases it but doesn’t help NGOs with alternative
- margin of appreciation for art.10 in public interest is usually very low
- against VGT

Question 3

Al-Khawaja v UK

Answer 3

There will be situations where ECHR is applied differently in member states

• margin of appreciation
• particularities of law and culture vary

Question 4

R(Chester)

Answer 4

there must be a fundamental misunderstanding of domestic law before Supreme Court choose not to follow Grand Chamber decisions

Question 5

Anisminic

Answer 5

Ouster Clause was ultra vires

• Didn’t over rule, but found a way around it
• Didn’t strike it down but HL breathed new life into judicial review
• Lord Reed’s ultra vires principle
• made a decision that they shouldn’t
• listed a lot of reasons where C may intervene
• made it clear that Court’s role of protecting individuals of the state should be taken more seriously

Question 6

Antony Lester

Answer 6

s.3 of HRA is pivotal

Question 7

Lord Bingham (in S(Children))

Answer 7

s.3 is judicial interpretation, not judicial vandalism

Question 8

Buckley v UK

Answer 8

ECtHR recognises that UK courts by reason of their direct and continuous contact with the vital forces of their countries are better in principle to evaluate local needs and conditions

Question 9

Ex. p. Brind

Answer 9

Didn’t use proportionality

• HRA was not yet passed
• used Wednesbury

Lord Ackner - JR is supervisory, not appellant jurisdiction; “wrongful usurpation of power”

Lord Bridge - said that “fundamental human rights” are at stake so “start form the premise that any restrictions requires justification” (sounds like proportionality)

Question 10

R(Cornerhouse)

Answer 10

ROL is set aside for national security

• HL said it was fine to discontinue investigation of the arms trade
• law is not being equally applied
• divisional courts: can’t have a justice system bowing to threats
• where is the line?

Question 11

Cheney v Conn

Answer 11

UK law is the highest form of law

• statute cannot be unlawful
• not for the courts to say that a parliamentary enactment is illegal

Question 12

R(Daly)

Answer 12

Decisive move to allow arguments of proportionality at domestic courts
- Lord Steyn argues for Wednesbury but realises it’s near its death

Question 13

Derbyshire CC v The Times

Answer 13

Freedom of speech

• public body couldn’t sue for libel because common law constitutional right to freedom of speech
• no need to resort to art.10

Question 14

DPP v Jones

Answer 14

common law constitutional right to peaceful assembly

Question 15

ex. p. Doody

Answer 15

“What fairness demands is dependant on the context of the decision, and this is to be taken into account in all its aspects”

• Lord Mustill’s rules for fair hearing
• most important is representation and can’t do that without a case to answer
• each individual will be dealt with better without blanket fairness
• violates ROL without fair hearing
• would this lead to random results?

Question 16

Factortame (no.2)

Answer 16

injunction against statute

• EU law is now the highest form of law?
• Subsequent domestic law struck down
• ECA binds even future acts! undermines PSOV
• Not really (PA 1911, 1949)

Justified it saying P lent its sovereignty
- now final call of matters is of EU competence

Question 17

GCHQ

Answer 17

JR for Prerogative powers is now allowed

- consider “irrationality, illegality and procedural impropriety”

Question 18

HS2

Answer 18

Like in Thoburn, cannot impliedly repeal a constitutional act

• hierarchy of constitutional acts
• Bill of Rights art.9 cannot be impliedly repealed by ECA

obiter

• does that mean if ECJ expressly states that courts are obliged to scrutinise then it must?
• Reed rejects this and reinforces ideas in Thoburn - domestic interpretation of EU acts in the UK

Question 19

ex.p. leech

Answer 19

preventing letter from leaving the prison is against freedom of access to courts
- lord Steyn - ROL gives power

Question 20

ex. p. Witham

Answer 20

setting court fees high prevents people from accessing courts
- against ROL and constitutional rights

Question 21

Ridge v Baldwin

Answer 21

Fair hearing

• default position is that due process across the board in decision making
• due process requirements vary in each context

Question 22

Thoburn

Answer 22

if mere inconsistency, constitutional statutes are more protected and can only be expressly repealed

• justified by: domestic acceptance of ECA
• still through P
• relationship is decided in common law in light of ECA, not by EU law directly
• so domestic interpretation
• PSOV remains
• constitutional statutes are those that “condition the legal relationship between citizen and state in a general, overarching manner”

COURTS ENTRENCHING FORM?? P CAN ONLY REPEAL WITH CLEAR WORDS?

Question 23

Jackson

Answer 23

Courts have power to determine validity of acts if:
- P prescribed certain rules for enactment and failed to comply with procedural steps

Lord Wolf: if P did the unthinkable, I would think Courts would be required to act

Lord Hope: PSOV is no longer, if it ever was, absolute

Lady Hale: The courts will decline to hold P has intervened with fundamental rights unless it has made its intentions crystal clear

Dicta goes further than any judicial pronouncement to date and suggests absolute authority of P is unacceptable (Jowell)

Question 24

R(Litvienko)

Answer 24

Home sec refused to do open inquest
- reasons weren’t good enough

LJ Richards - the deficiencies in the reasons are so substantial that the decision cannot stand

Question 25

McArthys v Smith

Answer 25

Domestic law stretched well beyond its ambit

• EU law says look at historical comparisons
• P never intended to allow people to refer to the fact that previously there were men

PSOV undermined?

• transfer of sovereignty to the EU
• claimed “accession involves no loss of sovereignty”

Question 26

Osbourne v Parole Board

Answer 26

Fairness = paramount

• requires an oral hearing, so should not assume paper decision is correct
• convention rights = general
• domestic law may not live up so P must legislate
• and then domestic interpretation of the statute
• HRA is a safety net not first port of call

Question 27

Padfield v Minister for Agriculture

Answer 27

revisited JR after a long period of quiescence - precedent for more penetrative scrutiny

• fettered by irrelevant considerations
• some restraint, because still about way the decision was reached, not just that judgement was bad

Question 28

ex. p. Simms

Answer 28

PSOV means P can enact against HRA but must do so expressly

Question 29

World Development Movement

Answer 29

High point of judicial activism

- read “sound” into statute

Question 30

Lord Sumption on World Development

Answer 30

Courts had no power to do that

- nothing in act that limits the powers; he is entitled to use political reasons rather than economic reasons