Parliamentary sovereignty and sep of powers - Cases only! Flashcards
In which case did Coke have a controversial thing to say about the status of the CL? What did he say?
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!
Which case would you use for Natural Law Theory. What is Natural Law Theory?
Day v Savadge
Natural Law Theory dictates that man can’t be a judge in his own case.
Which case would you use to show that there were doubts on the Diceyan orthodoxy?
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.
Which case would you use as the authority for the fact that Parliamant may pass retrospective legislation?
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.
Can parliament create legislation in contravention of human rights?
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.
Can parliament legislate beyond its jurisdiction? Case?
Yep, Parliament can do what it likes
Mortensen v Peters
Here parliament extended British territorial waters beyond the recognised international limits.
Which two cases would you use to demonstrate procedural entrenchment?
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Parl sov should dictate no entrenchment (I.e. No binding of future parliaments) so the law should’ve been repealed without the need for a referendum.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.
Which two cases would you use as the authority for the Doctrine of Implied Repeal?
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.
Which case for constitutional statutes?
Thorburn v Sunderland CC
Laws J said some statutes have constitutional status so cannot be impliedly repealed. Have to be expressly repealed.
What was an act of the Union? What are they classed as? (2 cases)
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.
Can Parliament repeal the statute of Westminster?
Yes
Megarry VC said this in Manuel v AG
BUT Lord Denning in Blackburn v AG said it would be nearly impossible in practice
What was Jackson about? What did each of the judges have to say?
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.
Which two cases state that you can’t challenge the procedure in which an act was passed?
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!
Can a court challenge the substance of an act?
No
Ex p Cannon Selwyn
Which case would you use to illustrate a purposive approach to interpretation in relation into the HRA?
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.
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)?
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.
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?
Garland v British Rail
For legislation passed post 1972 are courts prepared to distort the meaning of it?
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)
Which case was about the merchant shipping act and why is it important?
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.
Was Factortame a legal revolution?
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.
When will the courts be prepared to intervene?
Where the statute violates the rule of law.
AXA v Scottish Minister, per Lord Hope
Challenge to the negative limb of the Diecyan orthodoxy.
Where there is a conflict between law and convention what will the courts uphold? Case?
The law.
Madzimbamuto v Lardner Burke
What happened Entick v Carrington?
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
Which case was the origins of judicial review?
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
