Semester (1)

Question 1

McCormick v Lord Advocate 1953 SC 396

Treaties of Union

What’s clear from these words(the quote that I put) is that the court did not accept the Diceyan view of the constitution, and more, importantly, neither did the UK government’s own Scottish Law Officer. The UK Parliament can either do as it sees fit, in which case it is sovereign, or there are restrictions on it regarding Scotland, in which case, it is not. At the very least, in not expressly ruling out any challenge to parliamentary sovereignty the Court has left it open for a future Court to consider.

Answer 1

The Act of Union 1707 included no provisions regarding the numbering in monarchs’ titlesn so it’s up to the royal prerogative to decide upon one’s title. => no grounds on which to sue the Crown.
The court also noted that unlimited Parliamentary sovereignty = ‘distinctively English’ not Scottish => P cannot alter key aspects of the Act of Union 1707 + noticed an absence of authority on the matter

appeal dismissed

The claimant argued that there couldn’t be QE II of GB bc there has never been a QE in Scotland so breach of the Act of Union 1701. McCormick argued that it was a breach of the Treaty. The Scottish appeal court held that a new state was created, the parliaments were united, and it cannot be assumed that the new parliaments would inherit the characteristics of only one of the old parliaments and not the characteristic of the new parliament or the other old Parliament. We cannot assume that in 1707 when we create these documents, these legal constitutional texts, that English rule will continue to prevail.

Question 2

Gibson v Lord Advocate 1975 SC 136

Treaties of union

Answer 2

Lord Keith found that the question of whether a
particular Act of the Westminster Parliament conformed to the requirements of the Treaty
of Union in being “for the evident utility of the subjects within Scotland” was “a political
matter” and therefore “no part of the function of the Court” (page 144)

UK joined the EU in 1973 and surrendered sole authority of their fishing rights ( big Spanish factory boats could scoop up all the fish). Gibson (fisherman) argued that the European Community’s Act of 1973 by which the UK joined the EEC was unlawful bc it violated the article 18 of Treaty of Union.

Question 3

Re Allister [2023] UKSC 5

Article VI of the Acts of Union 1800 which made provision for the Union of Great Britain and Ireland states that the subjects of Great Britain and Ireland shall:

“…be entitled to the same privileges and be on the same footing, as to encouragements and bounties [the trade limb] … and that in all treaties made by [His] Majesty, his heirs, and successors, with any foreign power, [His Majesty’s subjects of Ireland shall have the same privileges and be on the same footing as [His] Majesty’s subjects of Great Britain [the treaty limb]”

Answer 3

The Court rejected the appeal.

[66] “The principle of parliament sovereignty is the most fundamental of the British C°.” They said that the PS was a “rule” of the British Constitution

The appellants contended the existence of a conflict between the Union with Ireland Act 1800 and Act of Union (Ireland) 1800 (Acts of Union 1800) and the Northern Ireland Protocol to the Withdrawal Agreement, given effect in UK law by the European Union (Withdrawal) Act 2018 (EU(W)A 2018). => incompatibility with certain ‘rights of a constitutional character’ contained in Article VI of the Acts of Union 1800.

Question 4

Thoburn v Sunderland City Council [2003] QB 151

supremacy of EU law / Parliamentary sovereignty

Answer 4

The court dismissed the appeals and found that the 1985 Act (in its original enactment) did not impliedly repeal Section 2(2) of the ECA 1972 as the ECA is a constitutional statute

Laws LJ tried to indentify a body of Constitutional statutes which can only be expressly repealed : the Magna Carta, the Bill of Rights 1689, the Acts of Union 1707, the Reform Acts, the Human Rights Act 1998, The Scotland Act 1998, the Government of Wales Act 1998 and the European Communities Act 1972 = any statute that ‘(a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights’ (at [62]).
- one Parliament may not use terms in legislation to bind the powers of a future Parliament. As such, Henry VIII clauses did not have the effect of binding future Parliaments since it was always open to them to stipulate that such clauses ‘are not to be touched by the Henry VIII power’ (at [51]). The same principle meant that it was also impossible for Parliament to prevent a future Parliament from repealing the 1972 Act, or any other Act of Parliament (at [59]): ‘The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty.’

While ordinary statutes are subject to implied repeal, constitutional statutes are not. They can only be repealed by express words that demonstrate ‘the legislature’s actual—not imputed, constructive or presumed—intention’

The Units of Measurements Regulations 1994 was introduced pursuant to Sections 2(2) and (4) of the European Communities Act 1972, which specified that the use of the pound as the primary metric would be deemed illegal. Weight and Measures Act 1985 recognition pounds and kilo as legally equals.
Steve Thoburn and the other appellants argued that the pound and the kilogram were seen to be equally legal units. WMA would thus operate as an implied repeal of Section 2(2) of the ECA 1972

NB: [69] “The fundamental legal basis of the United Kingdom’s relationship with the EU rests with the domestic, not the European, legal powers.”

Question 5

R (HS2 Alliance) v SoS for transport [2014] UKSC 3

supremacy of EU law

Answer 5

The UKSC:
HS2 Action Alliance raises the question of what should happen where two constitutional statutes conflict (here, the European Communities Act 1972 and the Bill of Rights 1688), but declines to provide an answer (at [79], [116], [208]). The reasons for this require further exploration.

The Supreme Court circumvented the problem by treating the question as one concerning statutory interpretation (what was required to satisfy the EIA Directive?) rather than as one examining parliamentary process.

The SC deemed that using the Parliamentary procedure was compliant with the procedure. It was not for the courts to get involved otherwise breach of Article 9. Had there been a conflict between the requirements of EU Law and the requirements of domestic law= will be resolved by domestic constitutional law.

Reed LJ: reserves to UK the right to have the final say in UK constitutional issues.

‘If there is a conflict between a constitutional principle, such as that embodied in article 9 of the Bill of Rights, and EU law, that conflict has to be resolved by our courts as an issue arising under the constitutional law of the United Kingdom’.

circumvented the apparent tensions between PS and EU law supremacy

The UK Government wanted to build a high speed railway (HS2) network linking London to Manchester and Leeds via Birmingham
The Government issued two command papers (one in March 2010 and the second in January 2012) laying out the Government’s proposed strategy and plans in regards to building HS2. The second of these command papers was known as “the DNS” (Decisions and Next Steps) (name is relevant during case).
The claimants brought claims for judicial review on two grounds:
- The hybrid bill procedure which the Government wanted to use to deliver phase 1 of HS2 in Parliament was incompatible with the Environmental Impact Assessment Directive 2011/92/EU: article 6(2) of this Directive requires that the public be given “early and effective” opportunity to “express their opinion” about proposed development plans, however, the hybrid bill procedure passes an Act in much the same way as regular legislation, save an additional stage which allows objectors to petition against the bill. For this reason, it was considered by the claimants to provide insufficient public participation
- That because the DNS set a “framework” for whether future project development consent was granted, it fell under the Strategic Environmental Assessment Directive 2001/42/EC (SEA), meaning that there should have been a strategic environmental assessment conducted (which there was not)

Question 6

**R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5

Answer 6

The Court held that:
- Government lacks the authority, through use of prerogative powers, to bring about the removal of EU law as an independent source fundamental constitutional change
-EU law, by virtue of section 2 of the European Communities Act 1972, had become a source of domestic law, to give notice under Article 50 would entirely remove this source of domestic law, a significant constitutional change that requires the consent of Parliament

Wider questions: Sewel Convention: ‘But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’. The Court held that section 28 (sub 8) of the Scotland Act was only a convention so it can be ignored

reluctance recognizing Constitutional statutes as special status

Under the dualist legal system in the UK, the authority to enter and break treaties is a prerogative power exercised by ministers on behalf of the Crown and treaties only have effect in international law – to have effect in domestic law they must be implemented by an Act of Parliament
The EU Treaties including the TEU, however, are exceptions as they took effect in domestic law through the European Communities Act 1972, through s.2, which incorporated EU law and rulings from the European Court of Justice, into domestic law

In 2017, following the 2016 Brexit referendum, the UK Government announced its intention to trigger Article 50 of the Treaty on European Union (TEU) to withdraw from the EU
Miller and others sought in the High Court to bring an action for judicial review, claiming that the Government did not have the right to give the notice under article 50 without a vote in Parliament permitting it.
The High Court considered that the Government did not have the authority to issue the notice under article 50, but allowed appeal to the Supreme Court.
This was the first case to ever be heard en banc by the Supreme Court – i.e. with the full contingent of justices (11 in this case, with one vacancy).

Question 7

CCSU v Minister for Civil Service [1985] AC 374

Answer 7

The royal prerogative is subject to irrationality review; however, it is likely to be excluded due to the policy judgement involved
This case established the three traditional grounds of judicial review under common law: illegality, irrationality and procedural impropriety

appeal dismissed, the decison was justiciable but reasonable.

Margaret Thatcher, holding the office of Minister for the Civil Service, decided that employees of the British Intelligence Agency (GCHQ) would not be permitted to join trade unions on the grounds of national security
Thatcher relied on the royal prerogative power to regulate the terms of service, issuing the new rule through an Order in Council
CCSU applied for judicial review of the decision
In the Court of Appeal, the appeal was dismissed on the grounds that it would be inappropriate for the courts to intervene on matters of national security

NB: To qualify as a subject for judicial review, a decision must affect a person either by:
altering rights or obligations which are enforceable for or against him in private law; or
depriving him of a benefit or advantage which he had i) previously had or ii) legitimately expected to have: p. 408
There is no reason why because a decision-making (prerogative) power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review: p. 410, Diplock LJ

Question 8

Miller n°2

Answer 8

https://www.notion.so/The-Rule-of-Law-0f76cb36f93f494e842b14d150230c55

Question 9

Entick v Carrington (1765) 19 St Tr 1030

Answer 9

The state cannot interfere with my property, freedom except with legal authority (only Parliament can give the legal authority for granting a warrant) => fundamental principle.

In favour of the claimant

The case arose when John Entick, a writer, was accused of publishing seditious material in his newspaper, The Monitor. In order to gather evidence against him, government officials, including Nathan Carrington, broke into Entick’s home and seized his papers and books.

Entick sued Carrington for trespass and won the case. The court ruled that the government officials had acted unlawfully, as they did not have a warrant or any legal authority to search Entick’s home. The case established the principle that the government cannot search or seize a person’s property without a warrant, and that individuals have the right to be secure in their homes.

Question 10

Beatty v Gillbanks (1882) 9 QBD 308

Rule of Law

Answer 10

The divisional court argued that the Salvation Army’s march was lawful =Therefore to stoping them marching would be to punish a person doing a lawful act on the grounds that it would lead to another doing an unlawful act.
=> new principle: ppl are free to do whatever they like unless it’s unlawful (violation of rights of others)

In favour of the Salvation army

Members of the Salvation Army in Weston-super-Mare marched on Sundays, attracting hostile crowds (including the so-called skeleton army). They were bound over to keep the peace, having been convicted of unlawful assembly.

Question 11

Jackson v Attorney General [2005] UKHL 56 4

contained the first express support from judges acting in their official capacity for the proposition that courts might have the authority to strike down an Act of Parliament if it violated fundamental constitutional principles (albeit obiter)

Answer 11

appeal dismissed : PA 1949 + HA 2004 are lawful

NB: In obiter comments made in the judgment, Lord Steyn, Lord Hope and Baroness Hale suggested that there might be limits to parliamentary sovereignty (although Lord Bingham and Lord Carswell implicitly supported the orthodox view that there are no limits to parliamentary sovereignty) = ‘The courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear. The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny’ [159]

The Parliament Act 1949 was passed using the procedure in the 1911 Act, this meant the 1911 Act was effectively being used to amend itself
The Hunting Act 2004 had been passed to make unlawful the use of dogs to hunt wild animals
The HL would not accept the Hunting Act 2004, and so it had been passed using the procedure under the Parliament Acts of 1911 and 1949
The appellants challenged the validity of the Hunting Act 2004 on the ground that the Parliament Act 1949 was invalid, and that because the Hunting Act 2004 had been passed using the procedure under that Act, it was also invalid
The argument was that any legislation passed under the procedure in the 1911 Act was effectively secondary legislation, and since the 1949 Act would thus be secondary legislation, it could not amend its parent legislation, the 1911 Act

Question 12

Madzimbamuto v Lardner Burke [1969] 1 AC 645

Constitutional conventions

Answer 12

The conduct of the BP was unconstitutional, but it doesn’t make it unlawful

nb: This case recognizes the constitutional status of conventions but also recognizes that there is no legal remedy in case of the breach of these conventions. The convention that the United Kingdom Parliament does not legislate on matters within the competence of the Legislative Assembly without the agreement of the Government of Southern Rhodesia is not legally enforceable

Southern Rhodesia became a self-governing British colony in 1923.
On November 5, 1965 under a state of emergency in Southern Rhodesia, the respondent Minister of Justice made an order to detain the appellant’s husband, M
On November 11 of the same year, the Prime Minister and his colleagues issued a Declaration of Independence
On November 16, the Westminster Parliament passed the Southern Rhodesia Act 1965 which declared that Southern Rhodesia remained a colony, and provided for the Queen to exercise her legislative powers by Order in Council
Subsequently, the Southern Rhodesia (Constitution) Order 1965 was made; s.2(1) declared the new 1965 Constitution void, whilst s.3(1) temporarily suspended the power of the Legislative Assembly
The Prime Minister and the Legislative Assembly nonetheless established an illegal regime under the 1965 Constitution, whereby M’s detention was extended under emergency regulations
In the Appellate Division of the High Court of Southern Rhodesia, it was held that the section of the emergency regulations used to detain M were ultra vires; Hence, the appeal was allowed
Soon after, a new order was made to keep M detained and this was determined as being legally valid
M appealed to the Privy Council

Question 13

Carltona v Commissioner of Works [1943] 2 All ER 560

Answer 13

The court held that: power has been given to the minster and the people selected by the minister to exercise this power on their behalf.

Factory requisitioned by the ministry of Works. Signature of a civil servant not a minister. The company sued on the grounds that a minister should sign the warrant.

Question 14

Attorney General v Jonathan Cape v [1976] QB 752

Cabinet responsibility

Answer 14

Both actions were dismissed; The court was not authorised to restrain the publication of information that was from as far as 10 years prior and as such, had lost its confidential character and would no longer undermine the doctrine of collective Cabinet responsibility.

The diaries of Richard Crossman ( minster of Labor Party government) gave an account of public. Published by Jonathan Cape. The AG injunction : what they reveal is breach of confidence, so it is unlawful. Breach the principle of collective and collective responsibility (two important conventions of the constitution). On the other hand: arguments on the freedom of speech. Conversely, the defendants argued that, by its nature as a convention, ‘there is no obligation enforceable at law to prevent the publication of Cabinet papers and proceedings, except in extreme cases where national security is involved’ (at 765).

Question 15

Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223:

Rule of Law

Answer 15

Court held that: the granting of discretion is okay, but the exercise of that discretion must not be done in an arbitrary wa, and they will police the way in which these powers are exercised to ensure that it is reasonable.

Appeal dismissed = decision reasonable based on the Wednesbury test

Act of parliament authorising local authorities to issue licenses for the showing films (conditions as they see fit). In this case, not an unfettered discretion, need for discretion to be exercised lawfully – for the purpose for which intended. To avoid arbitrariness of discretion, it must be exercised in accordance with the law.

Question 16

R (UNISON) v Lord Chancellor [2017] UKSC 51

The Rule of Law

Answer 16

the Supreme Court quashed the Fees Order and declaring it to be an unlawful interference with the common law right of access to justice.

Employment tribunal fees were introduced during July 2013 by the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893). Prior to that, since the creation of the employment tribunal system, claimants were not required to pay fees to bring their claims. Since their introduction, tribunal fees were the subject of repeated judicial review proceedings both in England and Wales, and in Scotland. Until the matter reached the Supreme Court, those challenges failed.

Question 17

Chester v Bateson [1920] 1 KB 829

Answer 17

The regulations overstepped their authority (were ultra vires) since they had the effect of denying citizens legal remedies and recourse

The claimant won the case

Regulations made under the Defence of the Realm Act 1914 made it an offence for any person to take proceedings to bring a complaint to a tenant without the consent of the Minister of Munitions. P sought to evict a tenant.

Question 18

R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60; [2009] 1 AC 756

Rule of Law

Answer 18

to suspend investigations on the ground of threats from a foreign government is within the scope of discretion of the Director of the Serious Fraud Office to investigation corruption under s1(3) Criminal Justice Act 1987

appeal allowed the decison of the Director was lawful

The Director as authorised under s1(3) Criminal Justice Act 1987, had been investigating allegations of corruption against a UK company which had been the main contractor for a valuable arms deal between the Government of the UK and the Kingdom of Saudi Arabia
The Director proposed to investigate certain Swiss bank accounts for evidence of untoward payments to Saudi officials
The Saudi authorities threatened that if the investigation was carried out, they would pull out of their counter-terrorism co-operation arrangements with the UK, thus risking “British lives on British streets”
After meeting with the ambassador to Saudi Arabia to discuss the threats, the Director decided to halt the investigation
Corner House sought judicial review of this decision on the basis that it was unlawful for such a threat to influence his decision
The Divisional Court quashed the decision, holding that:
- The Director had not independently exercised the powers under the 1987 Act and
- The Director had not sufficiently appreciated the damage to the rule of law by submitting to the threat
- The Director can only submit to such threats if left with no other choice

Question 19

Malone v Metropolitan Police Commissioner [1979] Ch 344:

Answer 19

Held: Tapping of the phone was a breach of a convention (ECHR)n. Requires the govt to have formal express authority to violate the rights of an individual.
Interception of Communications act 1985

Malone accused of crime of dishonesty, but evidence was based on phone-tapping: evidence against him used improperly => no authority for tapping his telephone.

But no violations of property rights or of his confidentiality. At that time, the ECHR not implemented in domestic courts => Court: The State is free to do that provided it is lawful.

Malone brings case to the ECHR (paragraph 2 of Article 8): Private life protection: correspondence (which includes the phone) but permissible to impose restrictions when it is in accordance with law and for the protection of crime.

Question 20

AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46

Rule of Law

Answer 20

Acts of the Scottish Parliament, and by extension the primary legislation of the other two devolved legislatures, are not subject to the ordinary principles of judicial review such as irrationality (ratio) but can be subject to judicial review for being contrary to the rule of law (obiter)
When reviewing the compatibility of legislation and executive actions that deal with social, economic and political issues with Convention rights, courts will grant the government and legislature a discretionary area of judgment in which less exacting proportionality test will be applied

The Scottish case Rothwell had held that asymptomatic pleural plaques did not constitute an injury capable of giving rise to a damages claim
In response, the Scottish Parliament passed the Damages (Asbestos-related Conditions) (Scotland) Act 2009, which gave individuals a right to a cause of action in damages if they had suffered asbestos-related conditions as a result of exposure to asbestos due to a negligent employer
It was evident that insurers would bear the burden of the cost of damages, which is why they wanted to invalidate the Act
Under section 29(2) Scotland Act 1998, an Act of the Scottish Parliament is outside of its legislative competence if it is incompatible with any Convention rights
AXA and several other insurance companies challenged the validity of the Act on two grounds:
- it was outside the legislative competence of the Scottish Parliament because it was contrary to their (the insurers’) right to property (the insurance companies’ right to profits/revenue) under Article 1 of Protocol 1 of the European Convention on Human Rights (A1P1, ECHR), and
- it was an irrational exercise of legislative authority which could be subject to judicial review at common law

Question 21

British Railways Board v Pickin [1974] AC 765

Parliamentary Sovereignty ; separation of powers

Answer 21

Courts do not have the power to examine proceedings in Parliament and to nullify the effects an Act of Parliament where it has been enacted fraudulently: “The function of the court is to construe and apply the enactments of Parliament. The court has no concern with the manner in which Parliament or its officers carrying out its Standing Orders perform these functions” Lord Reid [p. 787]

Pickin Lost

The original legislation (19th century) said that when the land was no longer needed for the purpose of the railway, it would revert to its owners. British Railway Board sponsored an Act of Parliament ( British railway Act 1968 introduced as a private act of P) which would overturn the old legislation. Pickin challenged the Act claiming that by bringing this Bill, the company had misled parliament. The legislation was passed on a Fraud.

Question 22

Case of Proclamations (1611) 12 Co Rep 74

Parliamentary Sovereignty

referred to in Miller n°1 and also in Miller n°2

Answer 22

the King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament. => The “the King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament.” Lord Coke

Beginning of the principle of Parliamentary Sovereignty

King wanted to prohibit erection of new buildings in London and create new taxation by proclamation (using the royal prerogative)

Question 23

Mortensen v Peters (1906) 8 F (J) 93:

Parliamentary sovereignty (unconstrained by international law)

Answer 23

The Court held: that they were obliged to give effect to the laws passed by P even if they don’t comply with int’l law.

Norwegian fishing vessel caught fishing in the moray firth (Breach of the herring fishery act 1899 which included British Coastal water & International water). Mortseen claimed that it was international water hence he could not be prosecuted under British law.

Question 24

Cheney v Conn [1968] 1 All ER 779:

Parliamentary sovereignty ( unconstrained by international law)

Answer 24

Statutes cannot be deemed in breach of law as they are the supreme legislaytive document => so he has to pay his taxes because the validdity of the statute itself

Income tax Act, 2007 : Farmer didn’t pay his income tax bc govt is going to use it to build nuclear weapons in breach of international law (Geneva Convention) => contended that teh statute was illegal

Question 25

Ellen Street Estates v Minister of Health [1934] 1 KB 590

Parliament sovereignty (unconstrained by future parliaments)

Answer 25

Court held: the Courts must take effect to most recent parliamentary statute. The 1919 Act is impliedly repealed to the extent of its inconsistency. Parliamentary Sovereignty is dynamic.

Paradox: MP can seek to bind its successors, but future Parliaments are not effectively bound.

Maugham LJ:
“The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation”

Litham purchased a sublease on property in Ellen Street and Berners Street, Stepney. At the time of purchase, he was unaware that this area was subject to a clearance order under the Housing Act 1921 to remove poor-quality housing. On the assumption that he would be compensated for the loss incurred, Litham made no objection upon becoming aware of the order. However, the arbitrator concluded ‘some five or six years later’ (Scrutton LJ, at 594) that he was owed no compensation under the Acquisition of Land (Assessment of Compensation) Act 1919. Given the delays, the local authority sought a fresh order under the Housing Act 1930. An inquiry followed, and the application was then approved by the Minister (see 590–1).

Litham passed his interest to Ellen Street Estates, which contested the attempt to go ahead with the compulsory purchase on two grounds: first, that the order was out of time and ineffective because it had not been enforced, and that no further order could be made on the same houses (at 594–5); and second, that because the 1919 Act contained provisions regarding compensation that had to be followed by all subsequent Acts, changes made to the scheme in the Housing Act 1930 must be invalid (at 595–6). The decision on the second ground exemplifies the principle of parliamentary sovereignty that one parliament cannot legally bind anoth

Question 26

Felixstowe v British Transport. Board

Question 27

Macarthys Ltd v Smith [1979] Case 129/79

EU law supremacy and Parliament sovereignty

Answer 27

The ECJ rules in favour of Smith approving Denning’s dissent

Ms Wendy Smith worked for Macarthys Ltd in their factory. She was paid £50 a week, but a man who had previously worked in the same job for the company had been paid £60 a week. Ms Smith claimed this was unlawful according either to the Equal Pay Act 1970, or the Treaty of the European Community article 119. The company argued she had no claim because the UK’s Equal Pay Act 1970 did not allow comparisons with former colleagues. Ms Smith argued that, if this was true under UK law, then European Community law did allow such a comparison, and it would override the UK statute.
She lost the case in the court of Appeal: Denning LJ dissenting: ‘Thus far I have assumed that our Parliament, whenever it passes legislation, intends to fulfil its obligations under the Treaty. If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament.’

Question 28

Garland v British Rail Engineering Ltd [1982] 2 All ER 402

Supremacy of EU law and Parliament sovereignty

Answer 28

Held, on the reference back to the House of Lords, allowing the appeal, that s.6(4) ought to be construed to carry out the obligations of the EEC Treaty. Since the words were capable of bearing, without unduly straining their ordinary meaning, both the meanings attributed to them by the Employment Appeal Tribunal and the Court of Appeal, the former would be preferred as being consistent with Article 119.
Diplock LJ ‘ We must apply EU Law unless Parliament shows intention (expressly or impliedly) not to be bound by it.’ (Still inconsistent with EU law but this is the position until 1990’s)

The provision by an employer (not under contractual obligation) of special travel facilities for male employees after retirement some of which female employees did not share was discriminatory within the Treaty of Rome 1957 Article 119 the provisions of which applied directly, and was unlawful within the Sex Discrimination Act 1975 s.6(4) . The employer operated a scheme under which employees were given concessionary travel permits for themselves and their families. After retirement, former employees enjoyed, not by contractual right, a continuation of these facilities for themselves, but only male employees continued to enjoy them for their families. G, a female clerical worker, complained that this was sex discrimination contrary to the Act of 1975 s.6(2). The industrial tribunal found that the scheme was a “provision in relation to . . . retirement” within s.6(4) and that G was prevented from claiming that the discrimination was unlawful, and dismissed the complaint. The appeal tribunal allowed her appeal on the ground that s.6(4) was not apt to include a privilege existing during employment which was allowed to continue, and was not part of a specific plan for retirement. The Court of Appeal reversed this decision on the ground that the wording was wide and included any provision about retirement. G then appealed to the House of Lords which referred to the European Court of Justice the questions whether the discrimination was contrary to Art.119 and whether that article was directly enforceable as to confer enforceable Community rights upon individuals. The European Court of Justice decided that it was discriminatory within the Treaty of Rome 1957 Art.119, and that the provisions applied directly where a national court, using the criteria of equal work and equal pay and without the operation of Community or national measures, was able to establish that it was discriminatory.

Question 29

Burmah Oil Company v Lord Advocate [1965] AC 75

Parliamentary sovereignty

Answer 29

The House of Lords held by a majority of 3 to 2 that although the damage was within the executive’s prerogative powers and was therefore lawful, the power in question required the payment of compensation as it was equivalent to requisitioning the property => compensation

WW2 : Japanese troops advancing Myanmar. British troops commanded to retreated and destroyed oil fields of a company.

NB: War Damages Act 1965 overruled the decision in that case;

Question 30

R v Transport Secretary, ex parte Factortame (No 1) [1990] 2 AC 85:

Supremacy of EU law + Parliamentary Sovereignty

Answer 30

The ECJ: there is a duty to disapply any rule of domestic law in order to ensure full compliance with EU obligations

the High Court and then the House of Lords (as Supreme Court) both made a reference to the European Court of Justice on the legality of the Merchant Shipping Act 1988’s requirement for UK fishing vessels to be 75% UK owned. After the ECJ confirmed the incompatibility of the Act with EU law, Factortame saw the House of Lords confirm the primacy of EU law over national law in the areas where the EU has competence because of the UK acceding to the EU treaties

Merchant shipping Act 1988 (only ‘British owned vessels’ in their coastal waters) => stop the factory fishing boats. Factortame (Spanish co) claimed that the legislation was a violation of Freedom of movement and non-discrimination against EEC nationals. Went to the British courts and makes it to the HoL : the English Courts have no power to disapply the operation of an act of Parliament.

Question 31

Bowles v Bank of England [1913] 1 Ch 57

Parliamentary sovereignty

Answer 31

Court held: Acting by resolution is not sufficient, to be sovereign the Parliament must pass an Act.

Chancellor of the Exchequer introduced the budget to pass taxes, Parliament issued a resolution. Mr.Bowles complained because he was not liable to pay bc it was implemented by a resolution not an act.

Question 32

Stockdale v Hansard [1839] 9 Ad & E1

Parliamentary Sovereignty

Answer 32

The court held that an individual house of Parliament cannot make resolutions which are not subject to the authority of the courts. This is an authority reserved for the Crown in Parliament. In addition, the courts will in any event have the power to interpret the nature.

Suspicions that obscene materials were circulated in Newgate prison. A report of Parliament deemed a book obscene. The publisher of the book (Stockdale) contended that: mischaracterization of his work (libel) then sued Hansard (Parliamentary printer).

Hargued that they weer protected by parliamentary priviledge => he just gave effect to the wishes of P.

Question 33

Smith v Scott [2007] CSIH 9

Parliamentary sovereignty (unconstrained by human rights)

Answer 33

Held, making a declaration of incompatibility, that (1) s.3(1) would not be “read down” in the manner proposed where it clearly provided for a blanket ban on voting which applied to all convicted prisoners serving custodial sentences, there was no “grain of the legislation” which could properly serve as a starting point for any interpretation designed to clothe some of the prisoners with voting rights, and to read down the section would depart substantially from a fundamental feature of the legislation. (2) It was competent for the court to make a declaration of incompatibility

Appeal dismissed

S, a person who wished to be placed on the electoral register, applied to his local electoral registration officer who, on receipt of the information that the applicant was a convicted prisoner, acted in terms of the Representation of the People Act 1983 s.3(1) and refused to include his name in the Register of Electors.
S appealed to the sheriff on the basis that the decision breached his human rights. The sheriff refused the appeal. S appealed and the sheriff stated a case, asking whether it was correct to refuse S’s appeal and esto it was, whether it was correct not to grant a declarator that the terms of s.3(1) Act were incompatible with the applicant’s rights under the Human Rights Act 1998 Sch.1 Part II Art.3, whether by virtue of s.4 of the 1998 Act or at common law. The secretary of state was joined as a party to the proceedings, who fully accepted both the decision in Hirst v United Kingdom (74025/01) (2006) 42 E.H.R.R. 41, [2005] 10 WLUK 84, and that the Scottish Parliament was a legislature for the purposes of Art.3. S submitted that (1) if there was some “possible” interpretation of s.3(1) which would remove the incompatibility identified in Hirst, the court should adopt it and allow the appeal which was possible, with the principles enunciated by the House of Lords in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 A.C. 557, [2004] 6 WLUK 427 in mind; (2) if reading down was not possible, the appeal would be refused but the court should make a declaration of incompatibility; (3) if the court did not take that course, it should give such remedy as was open to it within its powers at common law or under any statute. X, the secretary of state, submitted that (1) it was not possible for s.3(1) to be read down; (2) it was not competent for the court to make a declaration of incompatibility, and in any event, the court should not exercise its discretion to do so; (3) it was not competent for the court to grant declarator at common law that s.3(1) was incompatible with the Convention.

Question 34

Ex parte
Canon Selwyn (1872) 36 JP 54

Parliamenet sovereignty (Unconstrained by foundational texts)

Answer 34

= an attempt to question the validity of the Act was found
to be non-justiciable. In 1922 the Irish Free State (Agreement) Act gave effect to the
political settlement which brought to an end ‘The Troubles’ or Irish War of Independence
1919–21. The 26 southern counties were given dominion status and the Union, at least
as envisaged in 1800, was effectively brought to an end. The Irish constitution of 1937
asserted that the country was a sovereign independent state. Its status as a republic was
recognised by the Ireland Act 1949.

Question 35

R v Transport Secretary, ex parte Factortame (No 2) [1991] AC 603

Parliamentary sovereignty

Answer 35

the case went back to domestic courts: House of Lords gives effect to the decision of the ECJ. Prepare an injunction to disapply temporarily this act of Parliament. The HoL reasoning:

• Parliament entered the EU Arrangement voluntarily
• Parliament has faithfully given effect to EU law
• Not novel to follow and give overriding supremacy EU law
• The Courts must not be inhibited by domestic law from doing the same (giving effect to overriding EU law)

Parliament has successfully bound its sucessors ?

the ECJ held that the provisions of the MSA were required to be disapplied by the UK courts if they contravened EU law.

Question 36

Congreve v Home Office [1976] QB 629, Court of Appeal (Civil Division)

Institutions (Parliament)

Answer 36

Lord Denning delivered a characteristically dramatic judgment. He thought it a ‘bright idea’ (at 647) on the part of those paying the licence fee—‘the overlappers’ (at 647)—to recognize the possibility of holding two licences concurrently. It was one that made the Home Office ‘furious’ (at 647) and so led it to threaten those fee-payers with revocation, to which threat ‘a lot of the timid ones succumbed’, although ‘the strong-minded ones did not’ (at 648).

Lord Denning observed that the differential treatment argued for by the Home Office between new and existing licence holders was neither lawful nor logical. A ‘newcomer’ (at 650) could purchase a licence at the lower price, while an existing holder could not purchase a second (at 649–50). Roskill LJ concurred, finding that the legislation did not recognize a concept of ‘renewal’ because each licence issued was, in fact, a new licence, not a renewal of an existing one (at 654). The Court’s view was that there was nothing in the legislation that prevented a person from holding overlapping licences (at 650–1; see also Roskill LJ, at 656–7). Similarly, there was nothing in the legislation permitting revocation ‘if the licensee had done nothing wrong’ (at 651).

In the United Kingdom, anyone using a television is required to hold a valid television licence. This case concerned the legality of a decision by the Home Secretary to revoke television licences where a second licence was purchased to run concurrently with an existing one. By this means, licence holders could avoid paying a higher licence fee at a later date.

On 29 January 1975, a 50 per cent price increase for television licences was announced—from £12 to £18. The new fee would take effect from 1 April 1975. All Post Office staff (the Post Office being the sole dispenser of licences) were given instructions to direct anyone requesting to renew a licence that did not expire until 31 March 1975 or later to return on or after 1 April. Congreve’s licence was not due to expire until 31 March, but he managed to purchase a new licence on 26 March at the lower price.

The Home Office wrote to everyone who had purchased overlapping licences requiring the additional £6 to be paid to avoid their new licence being revoked. A subsequent letter directed to those who had not paid said that the concurrent licence holders would have their licences revoked, and may then be liable to prosecution if they did not buy a new £18-licence.

Question 37

R (AAA and others) v Secretary of State

Rwanda Bill

Answer 37

à compléter

Question 38

R (on the application of Evans and another v Her Majesty’s Attorney General [2015] UKSC 21

Answer 38

• UKSC holds that the Attorney General had acted unlawfully, meaning that the veto he had sought to exercise was legally ineffective.
• The Upper Tribunal’s decision notice therefore stood, and the memos had to be released in accordance with that decision notice.

The UK Supreme Court’s judgment in R (Evans) v Attorney General [2015] UKSC 21 formed the conclusion to a lengthy saga that began with a series of requests under the Freedom of Information Act 2000 for disclosure by Government Departments of the so-called ‘black spider memos’ sent to them by Prince Charles. The Government refused to disclose this correspondence, but a judicial body, the Upper Tribunal, later concluded that the public interest favoured the release of the black-spider memos under the Freedom of Information Act and issued a ‘decision notice’ ordering their disclosure.

Once a court or tribunal has issued a judgment, that is normally the end of the matter (unless a right of appeal to a higher court or tribunal is exercised). Unusually, however, section 53 of the Freedom of Information Act enables Government Ministers in certain circumstances to override or veto decision notices issued under the Act. In Evans, a Minister — the Attorney General — exercised the section 53 ‘veto power’. This had the effect of setting aside the Upper Tribunal’s decision notice, thus relieving the Government of any obligation to release Prince Charles’s letters.

Question 39

R v Chaytor

parliamentary sovereignty - rule of law

Answer 39

The scope of parliamentary privilege is defined by the common law
In this case the court held that MPs’ expenses claims do not enjoy parliamentary privilege

‘Lord Phillips dealt with the art. 9 and exclusive cognizance limbs of the argument separately. He began by explaining that ‘the extent of parliamentary privilege is ultimately a matter for the court’, notwithstanding that a degree of deference will be paid to views expressed within Parliament’

MPs sought to evade criminal proceedings on the basisi of article 9 of the Bill of Rights ( paradoxical to use that instrument as a way to escape the rule of law).

Question 40

R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22

rule of law

controversial

• It is also clear that there are serious concerns regarding the conceptual coherence of the Court of Appeal’s reasoning. For example, Hooper (UKCLA blog, 26 April 2021) is critical, inter alia, of the account of legality offered by the Court. As regards principle, Hooper argues that the Court approached the concept of legality elucidated in Simms [1999] UKHL 33 (see note in this collection) in an ‘unhelpful way’. The Court ignored that both the capacity of Simms-legality to evaluate the quality of statute through common law principles and its nature as a facet of the rule of law are essential components to legality. They cannot, Hooper argues, be ‘crudely traded off’ against one another
• Richard Ekins said the ruling “undermines the rule of law and violates the sovereignty of Parliament”

Answer 40

Appeal allowed s67(8) of the 2000 Act does not oust the supervisory jurisdiction of the High Court for errors of law
=> now superseded by the CHIS act

Section 67(8) of the Regulation of Investigatory Powers Act 2000 purported to exclude from challenge or appeal any decision of the Investigatory Powers Tribunal (IPT). The Tribunal ruled against an application by Privacy International relating to the proper construction of a section of the Intelligence Services Act 1994.

Privacy International sought judicial review of the IPT’s decision. It lost in both the High Court (Sir Brian Leveson P and Leggatt J) and in the Court of Appeal