ws3 Flashcards
Edinburgh & Dalkeith Railway Co v Wauchope (1842)
‘Enrolled Act’ - once an Act of Parliament has been entered onto the Parliamentary roll, the courts will not question its validity.
Pickin v British Railways Board [1974]
Confirmed that the courts had no power to disregard an Act of Parliament, or to investigate proceedings which had taken place in Parliament to determine whether there had been any irregularity of procedure or fraud.
R (on the application of Jackson and others) v HM Attorney-General [2005]
House of Lords was prepared to consider the validity of the Parliament Act 1949, which seemingly conflicted with the ‘Enrolled Act’ rule.
Lord Hope: ‘The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based’
Lord Bingham: ‘the bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament’.
Cheney v Conn [1968]
Statute may override international law.
Madzimbamuto v Lardner-Burke [1969]
Statute may override constitutional convention.
Burmah Oil Co v Lord Advocate [1965]
Statute may operate retrospectively.
Attorney-General v De Keyser’s Royal Hotel [1920]
Statute may abolish or curtail aspects of the Royal Prerogative
In this case, Act curtailed the power of Crown to requisition land without having to pay compensation (in this case had to pay)
Ellen Street Estates v Minister of Health [1934]
A later Act of Parliament will impliedly repeal the provisions of an earlier Act to the extent of any inconsistency between the two Acts.
Thoburn v Sunderland City Council [2002]
In obiter, Laws LJ stated that constitutional statutes could not be impliedly repealed as they are of increased significance. He suggested a test to determine whether a statute was ‘constitutional’ or not:
a. Must condition the legal relationship between citizen and state in some general, overarching manner; or
b. The statute must change the scope of fundamental constitutional rights.
He had in mind a very limited number of statutes of being sufficiently important to satisfy this test.
H v Lord Advocate [2012]
In obiter, Lord Hope noted that, the Scotland Act would not have been altered through implied repeal due to its ‘fundamental constitutional nature’.
The ‘HS2’ Case [2014]
Potential conflict between two constitutional instruments - EU Directive and Parliamentary Supremacy (in e.g. Bill of Rights) - suggestions in obiter that there may be a hierarchy of constitutional statutes.
Brynmawr [2011]
When a constitutionally significant stature is passed, the presumption of consistency - when you interpret statute in line with previous statute to avoid conflict - is rebutted.
A.G for New South Wales v Trethowan [1932]
Privy Council ruled that the failure of Australian Parliament for failing to hold a referendum over an Act which stated it needed one, meant the repeal was invalid.
Pickstone v Freemans plc [1988]
‘shall be construed’ s 2(4) of ECA 1972
Example of where the House of Lords used the ‘purposive approach’ to follow an EU regulation
R v SoS for Transport ex p Factortame (No 2)
‘shall take effect’ s 2(4) ECA 1972
Where national law conflicted with Directly Effective EU Law - House of Lords effectively suspended the Act
McCarthys Ltd v Smith [1979]
Whilst the ruling in Factortame made it clear that Parliament cannot impliedly repeal EU law, Parliament can still expressly repeal EU law.
Lord Denning commented that if Parliament expressly repeals the TFEU, ‘then I should have thought it would be the duty of the courts to follow the statute of our Parliament’.
Ghaidan v Godin-Mendoza [2004]
Courts have utilised interpretation - ‘as far as it is possible to do so’ s3 of HRA 1998 liberally
In this case, took the provisions beyond its literal meaning - extending housing rights to same-sex couples
R (on the application of Anderson) v Secretary of State for the Home Department [2002] -
Whilst courts can only make a declaration of incompatibility with the HRA, this does create huge political pressure on the Government to repeal/amend.
In this case, Government abolished judicial of Home Secretary from Crime Act 1997
Hirst v United Kingdom (no 2) [2005]
Example of declaration of incompatibility not leading to repeal or amendment - government instead reached a compromise with ECtHR
