Main cases Flashcards
(30 cards)
Animal Defenders (in UK)
UK COURTS:
2006 - application refused because P are more qualified to make these decisions
2008 - HL also decided that P are better qualified and there was lots of pre legislative scrutiny
Lady hale justified the decision by looking at USA where most money = wins elections
- restriction of free speech to protect democratic process
- democratically elected gov safeguarding democracy
- P’s political judgement is best
Animal Defenders (at EU)
Grand chamber (9:8 majority)
- VGT not well reasoned
- this ban had legitimate objective
- ban was proportionate to prevent distortion of democratic process by paid political advertising
- P carefully considered = great deference to P
(minority)
- disproportionate (consider NGOs)
- growing trend away from general bans
- allowing near elections eases it but doesn’t help NGOs with alternative
- margin of appreciation for art.10 in public interest is usually very low
- against VGT
Al-Khawaja v UK
There will be situations where ECHR is applied differently in member states
- margin of appreciation
- particularities of law and culture vary
R(Chester)
there must be a fundamental misunderstanding of domestic law before Supreme Court choose not to follow Grand Chamber decisions
Anisminic
Ouster Clause was ultra vires
- Didn’t over rule, but found a way around it
- Didn’t strike it down but HL breathed new life into judicial review
- Lord Reed’s ultra vires principle
- made a decision that they shouldn’t
- listed a lot of reasons where C may intervene
- made it clear that Court’s role of protecting individuals of the state should be taken more seriously
Antony Lester
s.3 of HRA is pivotal
Lord Bingham (in S(Children))
s.3 is judicial interpretation, not judicial vandalism
Buckley v UK
ECtHR recognises that UK courts by reason of their direct and continuous contact with the vital forces of their countries are better in principle to evaluate local needs and conditions
Ex. p. Brind
Didn’t use proportionality
- HRA was not yet passed
- used Wednesbury
Lord Ackner - JR is supervisory, not appellant jurisdiction; “wrongful usurpation of power”
Lord Bridge - said that “fundamental human rights” are at stake so “start form the premise that any restrictions requires justification” (sounds like proportionality)
R(Cornerhouse)
ROL is set aside for national security
- HL said it was fine to discontinue investigation of the arms trade
- law is not being equally applied
- divisional courts: can’t have a justice system bowing to threats
- where is the line?
Cheney v Conn
UK law is the highest form of law
- statute cannot be unlawful
- not for the courts to say that a parliamentary enactment is illegal
R(Daly)
Decisive move to allow arguments of proportionality at domestic courts
- Lord Steyn argues for Wednesbury but realises it’s near its death
Derbyshire CC v The Times
Freedom of speech
- public body couldn’t sue for libel because common law constitutional right to freedom of speech
- no need to resort to art.10
DPP v Jones
common law constitutional right to peaceful assembly
ex. p. Doody
“What fairness demands is dependant on the context of the decision, and this is to be taken into account in all its aspects”
- Lord Mustill’s rules for fair hearing
- most important is representation and can’t do that without a case to answer
- each individual will be dealt with better without blanket fairness
- violates ROL without fair hearing
- would this lead to random results?
Factortame (no.2)
injunction against statute
- EU law is now the highest form of law?
- Subsequent domestic law struck down
- ECA binds even future acts! undermines PSOV
- Not really (PA 1911, 1949)
Justified it saying P lent its sovereignty
- now final call of matters is of EU competence
GCHQ
JR for Prerogative powers is now allowed
- consider “irrationality, illegality and procedural impropriety”
HS2
Like in Thoburn, cannot impliedly repeal a constitutional act
- hierarchy of constitutional acts
- Bill of Rights art.9 cannot be impliedly repealed by ECA
obiter
- does that mean if ECJ expressly states that courts are obliged to scrutinise then it must?
- Reed rejects this and reinforces ideas in Thoburn - domestic interpretation of EU acts in the UK
ex.p. leech
preventing letter from leaving the prison is against freedom of access to courts
- lord Steyn - ROL gives power
ex. p. Witham
setting court fees high prevents people from accessing courts
- against ROL and constitutional rights
Ridge v Baldwin
Fair hearing
- default position is that due process across the board in decision making
- due process requirements vary in each context
Thoburn
if mere inconsistency, constitutional statutes are more protected and can only be expressly repealed
- justified by: domestic acceptance of ECA
- still through P
- relationship is decided in common law in light of ECA, not by EU law directly
- so domestic interpretation
- PSOV remains
- constitutional statutes are those that “condition the legal relationship between citizen and state in a general, overarching manner”
COURTS ENTRENCHING FORM?? P CAN ONLY REPEAL WITH CLEAR WORDS?
Jackson
Courts have power to determine validity of acts if:
- P prescribed certain rules for enactment and failed to comply with procedural steps
Lord Wolf: if P did the unthinkable, I would think Courts would be required to act
Lord Hope: PSOV is no longer, if it ever was, absolute
Lady Hale: The courts will decline to hold P has intervened with fundamental rights unless it has made its intentions crystal clear
Dicta goes further than any judicial pronouncement to date and suggests absolute authority of P is unacceptable (Jowell)
R(Litvienko)
Home sec refused to do open inquest
- reasons weren’t good enough
LJ Richards - the deficiencies in the reasons are so substantial that the decision cannot stand
