UK Constitution Key Cases

Question 1

Council for Civil Service Unions v Minister for Civil Service ‘GCHQ’: facts

Answer 1

• CCSU sought judicial review of decision by Thatcher’s government, made by an Order-in-Council and without consultation, to effect that terms of employment would be revised for GCHQ staff to prohibit membership of the trade union
• inter alia staff claimed minister had acted unfairly in removing their fundamental right to belong to a union without consultation
• they also claimed to have legitimate expectation that they could join a union

Question 2

Council for Civil Service Unions v Minister for Civil Service ‘GCHQ’: principle

Answer 2

• judicial review is available for exercise of prerogative power (as here)
• overriding factor in deciding its availability is justificiability of subject matter
• legitimate expectation can arise from past conduct
• administrative action can be subject to judicial review for illegality (if exercise power not possessed), irrationality or procedural impropriety where decision maker failed in duty to act fairly
• Lord Roskill cited circumstances where courts would not judicially review decisions: national security, prerogative of mercy (pardons), appointment of ministers, making of treaties (Miller), dissolution of Parliament, grants of honours
• evidence that national security was reason for decision was required
• once this was produced the right to judicial review was overriden
• the executive was the sole judge of what national security required

Question 3

Pickin v British Railways Board: facts

Answer 3

• land on which abandoned railway line stood due to vest in Pickin
• prevented by Act of Parliament
• Act stemmed from private member’s bill
• Pickin alleged it had only passed because BRB had misled Parliament about it

Question 4

Pickin v British Railways Board: principle

Answer 4

• along with ex parte Canon Selwyn, this case can be cited as authority for “enrolled bill rule”: once bill is on statute book it cannot be altered by anyone other than Parliament
• courts are not empowered to rule on procedure by which Parliament has passed act

Question 5

Thoburn: facts

Answer 5

• number of market holders (“metric martyrs”) convicted of offences relating to continued use of imperial rather than metric measurements
• this was proscribed under Weights and Measures Act 1985 but when Act originally passed its provisions identical to 1963 Act which allowed imperial measurements
• relevant provision of 1985 Act had been introduced wby subordinate legislation with intention of implementing relevant EU directives
• at issue was whether original (unamended) domestic legislation had impliedly repealed the ECA 1972 to extent that it empowered provision of subordinate legislation inconsistent with 1985 Act

Question 6

Thoburn: principle

Answer 6

• 1985 Act had not impliedly repealed any part of ECA 1972 so as to allow subordinate legislation inconsistent with it
• “law of constitution could not be botched by such random consequences”
• case proposed idea of “constitutional statutes”: statutes which could not be impliedly repealed, as they have a degree of entrenchment, ECA 1972 held to be such a statute

Question 7

AG v Cape: facts

Answer 7

• publisher, Cape, published diaries of Richard Crossman from his time as Cabinet minister, without permission of Cabinet
• this was in breach of constitutional convention
• AG applied for injunction; case was dismissed

Question 8

AG v Cape: principle

Answer 8

Conventions, though important, are not legally enforceable

Question 9

R v R: facts

Answer 9

• man charged with raping his wife after they had agreed to start divorce proceedings
• at time not legally possible for husband to rape his wife
• court convicted him for attempted rape and assault
• legislation reinterpreted by Lord Keith: “the common law is capable of evolving in the light of changing social, economic and cultural developments”

Question 10

R v R: principle

Answer 10

• court changed law by ruling that a word in the statute was essentially meaningless
• it was not prepared to infer irrevocable consent by women to intercourse with their husbands
• this case shows the UK constitution is flexible, with leeway to permit “judicial activism”, in this case, interpreting or modifying the criminal law
• such activism can progress law but may lead also to lack of clarity as to scope of criminal law which may itself impact adversely Rule of Law

Question 11

Reference Re Resolution to amend the Constitution (of Canada): facts

Answer 11

• at the time the UK Parliament was the only body legally entitled to amend the Canadian Constitution
• the Canadian Government wanted to petition Parliament to change this, but many of Canada’s provinces opposed it
• they referred a question to the Canadian Supreme Court: was the Canadian Government bound by a convention to seek consent from the provinces before changing the Constitution, as it had done before?

Question 12

Reference Re Resolution to amend the Constitution (of Canada): principle

Answer 12

• a convention cannot crystallise into law through use even where it has been consistently adhered to over a long period of time
• although there was a convention, the Gov were not legally bound by it and were entitled to unilaterally seek a Constitutional amendment
• it is not the role of the Courts to enforce conventions, although this does illustrate the importance of conventions in practice