Parliamentary sovereignty and sep of powers - Cases only!

Question 1

In which case did Coke have a controversial thing to say about the status of the CL? What did he say?

Answer 1

Dr Bonham’s Case 1610
Coke said that is an act of Parliament was against common reason or repugnant or can’t be performed then the CL will control it. This suggests CL is sovereign!

Question 2

Which case would you use for Natural Law Theory. What is Natural Law Theory?

Answer 2

Day v Savadge

Natural Law Theory dictates that man can’t be a judge in his own case.

Question 3

Which case would you use to show that there were doubts on the Diceyan orthodoxy?

Answer 3

City if London v Wood
Holt CJ said what Coke said in Dr Bonham’s case was true, since an Act may ordain that a man be a judge in his own case (Parliament can do no wrong) so need CL to control it - so some sovereignty of CL advocates.

Question 4

Which case would you use as the authority for the fact that Parliamant may pass retrospective legislation?

Answer 4

Burmah Oil v Lord Advocate
War damages act 1965 - the passing of the act effectively overturned the decision in this case.
The Churchill govt destroyed Burma land, so the Wilson govt made the act retrospective since they were worried about the number of possible compensation claims.

Question 5

Can parliament create legislation in contravention of human rights?

Answer 5

Yes in theory. But must use express words to do this, can’t be vague!
Ex p Simms, per Lord Hoffmann.
This case was about a ban on prisoners speaking to journalists professionally. Ban was unlawful.
Constraints on Parliamentary sovereignty are political, not legal.

Question 6

Can parliament legislate beyond its jurisdiction? Case?

Answer 6

Yep, Parliament can do what it likes
Mortensen v Peters
Here parliament extended British territorial waters beyond the recognised international limits.

Question 7

Which two cases would you use to demonstrate procedural entrenchment?

Answer 7

AG for New South Wales v Trethowan (privy council) 1932
Colonial laws must comply with manner and form of domestic laws. The new act tried to abolish upper chamber but did so without a referendum (which was needed in accordance with manner and form). The majority ruled that the manner and form entrenchment provided in 7A was effective. Highly political judgment, hence not legally accurate.
Parl sov should dictate no entrenchment (I.e. No binding of future parliaments) so the law should’ve been repealed without the need for a referendum.

Harris v Minister of the interior
South African law. Need two thirds to pass bill removing voting rights on the basis of race. In 1951 the act was passed with a simple majority, thus not in line with procedural manner and form of the earlier act.
The voters ‘s act was invalid, so it allowed the entrenchment.

Question 8

Which two cases would you use as the authority for the Doctrine of Implied Repeal?

Answer 8

Vauxhall street estates v Liverpool corporation
Ellen street estates.
There was implied repeal despite no reference to the old act and provision in the old act disallowing implied repeal.

These two cases were about a less generous on compensation scheme impliedly repealing a more generous one.

Question 9

Which case for constitutional statutes?

Answer 9

Thorburn v Sunderland CC

Laws J said some statutes have constitutional status so cannot be impliedly repealed. Have to be expressly repealed.

Question 10

What was an act of the Union? What are they classed as? (2 cases)

Answer 10

Constitutional statutes.
They were a form of higher law which couldn’t be repealed - created by parliament of England and Scotland
McCormick v Lord Advocate

Gibson v Lord Advocate
The Irish Act of Union was successfully repealed.

Question 11

Can Parliament repeal the statute of Westminster?

Answer 11

Yes
Megarry VC said this in Manuel v AG
BUT Lord Denning in Blackburn v AG said it would be nearly impossible in practice

Question 12

What was Jackson about? What did each of the judges have to say?

Answer 12

Challenge to the hunting ban. Hunting Act 2003 and the use of the 1911 parliamentary procedure to pass it.

Lady Hale: no reason why Parliament can't redefine itself upwards and not downwards.
Lord Woolf: there are limits on parliamentary sovereignty - this is for the courts to define and uphold (he has since backtracked from this position)
Lord Steyn (obiter): the courts may have to qualify a principle established on a different hypothesis of constitutionalism (other than parliamentary sovereignty)
Lord Hope (obiter): parliamentary sovereignty is no longer, if it ever was absolute, thus courts must be prepared to challenge absolute parliamentary sovereignty - it has practical limitations.

Question 13

Which two cases state that you can’t challenge the procedure in which an act was passed?

Answer 13

Pickin v British Railways Board
Supported the Diceyan orthodoxy, said can’t challenge or override parliamentary procedure, have to assume that an Act was passed using the correct procedure.

Edinburgh v Wauchope - must assume that an act was passed in the proper way even if it wasn’t!

Question 14

Can a court challenge the substance of an act?

Answer 14

No

Ex p Cannon Selwyn

Question 15

Which case would you use to illustrate a purposive approach to interpretation in relation into the HRA?

Answer 15

R v A
Legislation may be interpreted as far as possible to be in line with community law even where the legislation is effectively re-written. Purposive approach used in this case.

Question 16

In which case was it said that the ECA 1972 practically imposes the use of purposive interpretation on the courts (since the ECA is a constitutional statute)?

Answer 16

Macarthy’s v Smith
Lord Denning said that if parliament deliberately (expressly) passed an Act with the intention of repudiating the Treaty the courts would be bound to uphold it.
The ratio of this case was that the ECA imposes the unorthodox principle of purposive interpretation on the courts (as they must read domestic law in line with European Treaty articles)
It was said obiter that this case effectively abolishes the doctrine of implied repeal in respect of directly effective EC law - therefore recognising weak manner and form entrenchment. So weakening parliamentary sovereignty.

Question 17

In which case did Lord Diplock say that a purposive approach to UK legislation may be used to give effect to community law even where there is a departure from the primal face meaning of the provision?

Answer 17

Garland v British Rail

Question 18

For legislation passed post 1972 are courts prepared to distort the meaning of it?

Answer 18

Yes
Pickstone v Freeman
So giving effect to Lord Denning’s abolition of the doctrine of implied repeal in respect of directly effective EC law (Macarthy’s v Smith)

Question 19

Which case was about the merchant shipping act and why is it important?

Answer 19

Factortame
Important because it was. The first case to say that where there is a clash of EU and UK law then the court may disapply domestic law.

Question 20

Was Factortame a legal revolution?

Answer 20

Wade: yes since it was a new rule of recognition
Craig: no, it was merely a development of existing CL rules of interpretation. The orthodox theory was correct.
Allan: no, merely a development of the existing CL rules of interpretation. The orthodox theory was always wrong.

So probably wasn’t a legal revolution.

Question 21

When will the courts be prepared to intervene?

Answer 21

Where the statute violates the rule of law.
AXA v Scottish Minister, per Lord Hope

Challenge to the negative limb of the Diecyan orthodoxy.

Question 22

Where there is a conflict between law and convention what will the courts uphold? Case?

Answer 22

The law.

Madzimbamuto v Lardner Burke

Question 23

What happened Entick v Carrington?

Answer 23

There is no CL or statutory source for power to issue a warrant.
The executive has no law-making power of its own. It must find CL or statutory authority for its actions.
The action was held to be unlawful; Entick won

The exception to this = royal prerogative

Question 24

Which case was the origins of judicial review?

Answer 24

Bagg’s case 1615

Origins of judicial review. Coke.
There is a presumption in CL that any act of misgovernance is open to correction through the courts

Plus need to mention Wednesbury - test for unreasonableness

Question 25

Which case would you use as the authority for the Literal Rule?

Answer 25

R v Judge of City of London Court.

Question 26

Which case would you use as the authority for the purposive or teleological reasoning?
What were the opposing views of their lordships in this case?

Answer 26

Magor and St Mellons 1950
Lord Denning: pro-purposive reasoning
Lord Simonds: anti-purposive reasoning - “a naked usurpation of the legislative function under the thin guise of interpretation”
Simonds thought they should use the act to close the gap, not interpretation.

Question 27

What happened in Liversidge v Anderson 1942?

Answer 27

If the home sec believed (subjective) any person to be of hostile origin then he may order their detention.

Majority saw no problem with this, said the home sec did not need to adduce evidence for this belief, thus no outsider’s opinion may be sought and the issue is not within the court’s competence

Atkin dissent: ‘any reasonable belief’ needs some plausible evidence. He took a purposive view to avoid manifest absurdity. Atkin used the MISCHIEF rule.

Reason for majority’s view = wartime so afforded the home sec more power than he should really be allowed.
Lord Macmillan said they had to interpret emergency legislation to promote, not defeat, the efficacy for the defence of the realm. Distinguish the decision on this basis.

Question 28

Which case was about the Tax Management Act? What were the differing views given in CoA vs HoL?

Answer 28

Rossminster
Search warrant - if can convince the board and the judge of tax fraud suspicion then can search someone’s house for evidence.

Denning in CoA took a teleological approach - said should use purposive interpretation to protect the liberty of the individual.

Lord Wilberforce in the HoL took a Literal Approach - he agreed with Denning and called for Parliament to take a fresh look at the legislation but stopped short of rewording it,mince it is not for the court to impede the working of legislation. Parl sov upheld. So overturned Denning’s CoA judgment.

Question 29

What are the two main cases on ouster clauses?

Answer 29

Gilmore v Medical Appeal Tribunal

Anisminic

Question 30

What did Denning say about ouster clauses in the Gilmore v Medical Appeal Tribunal?

Answer 30

That they are ok so long as express and unambiguous, however they will never be manner and form entrenched. Can only undo expressly
In the case the words were pretty unambiguous but Denning protected individuals’ right to appeal and therefore orthodox view of the rule of law. Dicey. Legal certainty.

Problem with this view is that the appeal was a statutory jurisdiction, so was available only if created by parliament!

Question 31

What happened in Anisminic?
What were the differing opinions in the HoL?
What were the opinions in the decision?

Answer 31

Ouster clause in statute outlying in the commission’s determinations shall not be called in question in any court of law. Clear and unambiguous couldn’t get round it as Denning had in Gilmore.
Majority inc Lord Reid took a literalist view - said could review since it wasn’t a determination, but a purported determination - the clause didn’t mention these so it was ok to review.

Many said this was an abuse of the court?s power and was disrespectful of parl sov.
Wade was in favour since it protects the rule of law.

The govt could’ve responded to include purported determinations in the clause. But this wouldn’t nec work, the court could just change the phrasing and away it isn’t a purported determination.
Power here is with Dicey and the rule of law.

Question 32

What are the cases on rape at retrospectivity at CL?

Answer 32

RvR 1991 - outlawed marital rape

RvC 2004 retrospective CL judgment. Rape happened in 1970. RvR law applied retrospectively.

Question 33

Which case was about a ladies’ directory and a conspiracy to corrupt public morals?

Answer 33

Shaw v DPP
Clarification of law vs making the law

Judiciary declares rather than makes law = old orthodoxy
Majority view: CAN create new rules of CL. This was said before the 1966 practice statement (this statement said the HoL can depart from binding precedent where it is appropriate to do so)
Lord Reid dissented: said the old orthodoxy should prevail. To protect legal certainty, so hold the be able to create rules in CL.

Question 34

Who said that when an earlier decision is overruled the law is not changed, but the true nature is merely revealed, having existed in that form all along? In which case was this?

Answer 34

Lord Browne-Wilkinson in Kleinwort-Benson
This supports the retrospective CL view (since it existed in that form all along.
But note that parliament can undo at any time through the use of statute.

Question 35

What happened in Malone?

Answer 35

Police were tapping Malone’s phone. There was no trespass in the Entick v Carrington sense since it wasn’t physical.

Megarry VC said that the right to privacy encompasses such a wide range of issues that only Parliament may legislate in this area, so it is outside the CL jurisdiction.

Question 36

What would happen if you applied Denning’s approach in Rossminster to Malone? What was Denning’s approach in Rossminster?

What other view would accord with this?

Answer 36

The approach was teleological or purposive interpretation.

Then could’ve created new law.
This would’ve been a very political move for the courts to make, hence why they refrained from doing so.

DPP V Shaw would lead to the same result - this case was about public morals, however Malone was about the right to privacy, thus it encompasses much wider policy implications. Much more political, hence Megarry was right to refrain from inventing new law at CL.