Historical Law Flashcards
(37 cards)
Separation of Powers
Case of Prohibitions 1607
Independence of the Judiciary
- Royal prerogative of justice does not let the Crown (PM) adjudicate legal disputes - should be done by the courts.
**- King cannot be sole decider on any cases/control the judiciary process.
**
Separation of Powers
Case of Proclamations 1610
Independence of Parliament
- King cannot alter the law in any way on his own, must be done by Parliament.
Separation of Powers
R(Miller) v PM 2019
Parliamentary Accountability
- Prorogation of Parliament is unlawful if it has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its function.
Accountability
Parliamentary privilege…?
purpose and case
PP immunises parlaiment from legal accountability.
Five Members 1642 - affirmed parliamentary privilege into law.
Accountability
Bill of Rights Art 9
Immunised parliamentary proceedings - allows for freedom of speech as debates in parliament are free from legal consequences.
Accountability
R v Chaytor 2010
INFO
- Police sought to arrest MPs for false accounting - MPs said their parliamentary privilege protected them.
RULE
- Art 9 concerns debates and speech, not any and all behaviour in commons.
Accountability
Dr Bonham’s case
INFO
- College of Physicians, authority to punish malpratice, but Bonham was working without a license so was illicit pratice rather than malpratice.
RULE
- Court said important to interpret carefully - College could intervene for malpractice but not illicit practice.
- Cannot be a party in a case and the judge
Crown
AG v De Keyser Royal Hotel 1920
INFO
- Seized control of hotel for wartime efforts, hotel wanted compensation through Defence Act - govt tried to say they seized hotel through defence of the realm power so they would not have to pay.
RULE
- When prerogative power and statute both provide a basis for an action, the prerogative is placed into abeyance and the statute is preferred.
Crown
Laker Airways v Department of Trade 1977
- Cannot use the prerogative to frustrate the purpose/operation of statute.
Crown
R v Northumbia Police
INFO
- Home Office stored gear for police, who then had to purchase using local budget.
- Northumbria challenged the lawfulness saying that it conflicted with act that said local authorities must provide equipment for police.
RULE
- To place prerogative power into abeyance, you need explicit wording that causes this.
Crown
Bruma Oil v LA 1965
INFO
- British retreated Burma and scorched the earth with oil - company wanted compensation for this.
RULE
- Common law says entitled to compensation, but War Damages Act excludes compensation during war-time.
Crown
GCHQ 1984
There is scope for the prerogative powers to be held legally accountable - it is the government using this power, no longer the crown, so they can be held by the court.
Executive
Collective cabinet responsibility?
convention that cabinet settles on a collective view on an issue and all members are expected to old that position and not publicly disagree.
Executive
Carltona v Commissioner of Works 1943
Minister is responsible for the decisions made, but does not need to make every decision himself.
Executive
R v Adams 2020
If the consequences of the decision are severe enough, then this must be done by the minister personally.
- e.g. here was regarding custody of a terrorist.
Executive/No punishment without law
Entick v Carrington
SOURCES
- Established that the government must point to a source of authority for its actions, if it cannot find this then it has behaved unlawfully.
“If it is law it is to be found in our books, if it is not found there it is now law.”
RULE OF LAW
- Affirmed property rights in common law.
- Says the crown cannot immunise government ministers for the breach of common law.
Executive
R v ex parte C 2000
INFO
- Could government make a pre-emptive list for registry before the act allowing the registry was implemented?
RULE
- Authority for the fact that public bodies can only act under statutory authorisation that gives them power.
Executive
New College London v Home Sec 2013
INFO
- Govt imposed criteria for education to sponsor visas, NCL did not meet these, complained that govt had no authority to make these rules.
RULE
- Govt has general administrative powers for ordinary business of the government which are not prerogative or legislative.
- Need to be tied to the everyday business of the government.
Common Law
What is common law?
legal rules and principles that are recognised and enforced through individual cases
Common Law
Prerogative Writs
4
- Quashing order - essentially an appeal.
- Mandatory order - compel an official to perform a duty properly.
- Prohibiting order - cease doing something the law forbids.
- Habeas corpus - bringa prisoner to court to determine if detention is lawful - only one that must be followed.
Common Law
Somerset v Stewart 1772
- Somerset escaped slavery in UK, godparents used habeas corpus to assess whether his detention was fair.
- Slavery was so wicked that it is incompatible with the common law - needs legislation/positive law if it is to be allowed.
Rule of Law
No punishment without law - Shaw v DPP
Said that the law can be interpreted in general terms then applied to specific circumstances that have not been seen before without being considered ‘retroactive’.
Rule of Law
Rule of Law - 3 Principles
- no punishment without law - nulla poena.
- equality before the law.
- evolution through refinement.
Rule of Law
No punishment without law - ideas and presumptions
No man is punishable except for a distinct breach of law.
presumption of liberty - up to the courts to justify interference with that liberty, must point to legal authority.
preumption against retroactive criminal law - if it is not a crime at the time, then you should not be punished.
