cases/ acts of parliament Flashcards
Madzimbamuto V Lardner - Burke (1969) case Lord reid’s case
Lord reid’s case :
• It is often said that it would be unconstitutional for Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper …
But that does not mean that it is beyond the power of Parliament to do these things
○ Burmah Oil V Lord Advocate AC 75 (1965)
parliament changed the law retrospectively then
- so the government promoted a bill that said no person shall receive compensation in respect to damages to or destruction from crown in contemplation or outbreak of war in the sovereign was or is engaged
○ The clause said whether before or after the passing of this Act, within or outside the United Kingdom .
Parliament Act of 1911
- abolished HL power to veto legislation
- replaced with power to delay for 2 year max (if theyre passed twice and rejected by HL then they can get it royal assent)
statute of westminster - 1931
○ §s.4: ‘No Act of Parliament … shall extend … to a Dominion … unless … that Dominion has requested, and consented to, the enactment thereof’.
According to classical doctrine In theory that was a statement of political intent and could have no legal significance.
- Blackburn v A-G (1971) (Lord Denning MR): ‘Freedom once given cannot be taken away. Legal theory must give way to practical politics.’
○ Meaning : if a former colony has obtained its independence then any attempt by westminster to interfere with its legislation would be ignored because they’ve already obtained their independence and have their own system
parliament act 1949
educed delaying power to 1 year
passed using Parliament Act 1911 procedur
Lord steyn in jackson
‘The classic account given by Dicey, pure and absolute as it was, can now be seen to be out of place in the modern UK. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. The judges created this principle
- But Steyn is saying that the doctrine in law must have been invented by the judges ( contraversial because he is saying they created the principle ) so they should be able to modify or =the principle
- They may wished to modify if the way in which parliamentary sovereignty is being used undermines the precepts of constituitionalism
Lord Hope in Jackson
‘Our constitution is dominated by the sovereignty of Parliament. But parliamentary sovereignty is no longer’
The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based
HRA 1998 -
- everyone is entitled to a fair and public hearing ‘an independent an impartial tribunal established by law’
The CRA 2005
rule of law - section 1
- parliament was decreeing that rule of law was an existing constitutional principles with this constituitional reform act 2005
Entick V carrington (1765)
- kings messengers trespassed on Enticks property and took his pamphlets . Their defence was : they were acting under a warrant issued by one of majesty’s ministers and no one had questioned this authority before. Lord Camden CJ said ‘if it is a law, it will be found in our books’ (as a statute clearly outlining majesty was able to do this) but nothing was found.
v So the basic principle is public authorities must be able to identify the legal basis in which they are presuming to act
v Lord Diplock in Duport steels v sits -
- ‘It cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interprets them’.
- Diplock is emphasising that the judiciary do not make laws they just interpret them and he is essentially reinforcing parliamentary sovereignty . It’s a formulation of the rule of law that bolsters the idea of parliamentary sovereignty
Malone v MPC
- telephone tapping via post office permission and Malones defence was it was unlawful
They rejected Malone and said it was ok. - Megarry vice chancellor - “England is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden” - esssentially a formulation of diceys 3rd rule of law which is we are free to do what we want except that which is limited by law.
- v What this case reveals the limitations of the common law approach to the rule of ordinary rule applying equally to all including ministers
he took it to european courts of human rights which said that it was a breach of art 8 of ECHR
Burmah Oil V lord Advocate
- v Gov didnt like the ruling of HL in this case and simply passed AP to nullify the impact of that ruling
- illustrating the principle of parliamentary sovereignty but also highlights the limitations of both separation of powers and principle of the rule of law
Town investment V sec of state for Environment (1978)
- v The act in dispute here was a rent control act and this act did not bind the crown but it was a provision to control rent.
v CA held that the lease to the premises was held by the secretary of state as secretary of state and not as the crown - ## Essentially the crown is a synonym for government
M v Home office (1994)
- this case a failed asylum applicant was sent back to central Africa despite the judge had awarded an emergency injunction prohibiting the home secretary from doing so
- v The judge then issued a ruling finding the Home secretary in contempt
- v Diplock - crown is synonym for gov - so in this case if this logic is used then you can’t apply the injunction to the minister of the crown
v But then court said you could apply it to the minister as an Individual but the minister was acting in official capacity
