Semester (1) Flashcards

Question

Ellen Street Estates v Minister of Health [1934] 1 KB 590 | Parliament sovereignty (unconstrained by future parliaments)

Answer 1

Court held: the Courts must take effect to most recent parliamentary statute. The 1919 Act is impliedly repealed to the extent of its inconsistency. Parliamentary Sovereignty is dynamic. Paradox: MP can seek to bind its successors, but future Parliaments are not effectively bound. Maugham LJ: “The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation” ## Footnote Litham purchased a sublease on property in Ellen Street and Berners Street, Stepney. At the time of purchase, he was unaware that this area was subject to a clearance order under the Housing Act 1921 to remove poor-quality housing. On the assumption that he would be compensated for the loss incurred, Litham made no objection upon becoming aware of the order. However, the arbitrator concluded ‘some five or six years later’ (Scrutton LJ, at 594) that he was owed no compensation under the Acquisition of Land (Assessment of Compensation) Act 1919. Given the delays, the local authority sought a fresh order under the Housing Act 1930. An inquiry followed, and the application was then approved by the Minister (see 590–1). Litham passed his interest to Ellen Street Estates, which contested the attempt to go ahead with the compulsory purchase on two grounds: first, that the order was out of time and ineffective because it had not been enforced, and that no further order could be made on the same houses (at 594–5); and second, that because the 1919 Act contained provisions regarding compensation that had to be followed by all subsequent Acts, changes made to the scheme in the Housing Act 1930 must be invalid (at 595–6). The decision on the second ground exemplifies the principle of parliamentary sovereignty that one parliament cannot legally bind anoth

Answer 2

The ECJ rules in favour of Smith approving Denning's dissent ## Footnote Ms Wendy Smith worked for Macarthys Ltd in their factory. She was paid £50 a week, but a man who had previously worked in the same job for the company had been paid £60 a week. Ms Smith claimed this was unlawful according either to the Equal Pay Act 1970, or the Treaty of the European Community article 119. The company argued she had no claim because the UK's Equal Pay Act 1970 did not allow comparisons with former colleagues. Ms Smith argued that, if this was true under UK law, then European Community law did allow such a comparison, and it would override the UK statute. She lost the case in the court of Appeal: Denning LJ dissenting: 'Thus far I have assumed that our Parliament, whenever it passes legislation, intends to fulfil its obligations under the Treaty. If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament.'

Answer 3

Held, on the reference back to the House of Lords, allowing the appeal, that s.6(4) ought to be construed to carry out the obligations of the EEC Treaty. Since the words were capable of bearing, without unduly straining their ordinary meaning, both the meanings attributed to them by the Employment Appeal Tribunal and the Court of Appeal, the former would be preferred as being consistent with Article 119. Diplock LJ ‘ We must apply EU Law unless Parliament shows intention (expressly or impliedly) not to be bound by it.' (Still inconsistent with EU law but this is the position until 1990’s) ## Footnote The provision by an employer (not under contractual obligation) of special travel facilities for male employees after retirement some of which female employees did not share was discriminatory within the Treaty of Rome 1957 Article 119 the provisions of which applied directly, and was unlawful within the Sex Discrimination Act 1975 s.6(4) . The employer operated a scheme under which employees were given concessionary travel permits for themselves and their families. After retirement, former employees enjoyed, not by contractual right, a continuation of these facilities for themselves, but only male employees continued to enjoy them for their families. G, a female clerical worker, complained that this was sex discrimination contrary to the Act of 1975 s.6(2). The industrial tribunal found that the scheme was a "provision in relation to . . . retirement" within s.6(4) and that G was prevented from claiming that the discrimination was unlawful, and dismissed the complaint. The appeal tribunal allowed her appeal on the ground that s.6(4) was not apt to include a privilege existing during employment which was allowed to continue, and was not part of a specific plan for retirement. The Court of Appeal reversed this decision on the ground that the wording was wide and included any provision about retirement. G then appealed to the House of Lords which referred to the European Court of Justice the questions whether the discrimination was contrary to Art.119 and whether that article was directly enforceable as to confer enforceable Community rights upon individuals. The European Court of Justice decided that it was discriminatory within the Treaty of Rome 1957 Art.119, and that the provisions applied directly where a national court, using the criteria of equal work and equal pay and without the operation of Community or national measures, was able to establish that it was discriminatory.

Answer 4

The House of Lords held by a majority of 3 to 2 that although the damage was within the executive’s prerogative powers and was therefore lawful, the power in question required the payment of compensation as it was equivalent to requisitioning the property => compensation ## Footnote WW2 : Japanese troops advancing Myanmar. British troops commanded to retreated and destroyed oil fields of a company. NB: War Damages Act 1965 overruled the decision in that case;

Answer 5

The ECJ: there is a duty to disapply any rule of domestic law in order to ensure full compliance with EU obligations the High Court and then the House of Lords (as Supreme Court) both made a reference to the European Court of Justice on the legality of the Merchant Shipping Act 1988's requirement for UK fishing vessels to be 75% UK owned. After the ECJ confirmed the incompatibility of the Act with EU law, Factortame saw the House of Lords confirm the primacy of EU law over national law in the areas where the EU has competence because of the UK acceding to the EU treaties ## Footnote Merchant shipping Act 1988 (only ‘British owned vessels’ in their coastal waters) => stop the factory fishing boats. Factortame (Spanish co) claimed that the legislation was a violation of Freedom of movement and non-discrimination against EEC nationals. Went to the British courts and makes it to the HoL : the English Courts have no power to disapply the operation of an act of Parliament.

Answer 6

Court held: Acting by resolution is not sufficient, to be sovereign the Parliament must pass an Act. ## Footnote Chancellor of the Exchequer introduced the budget to pass taxes, Parliament issued a resolution. Mr.Bowles complained because he was not liable to pay bc it was implemented by a resolution not an act.

Answer 7

The court held that an individual house of Parliament cannot make resolutions which are not subject to the authority of the courts. This is an authority reserved for the Crown in Parliament. In addition, the courts will in any event have the power to interpret the nature. ## Footnote Suspicions that obscene materials were circulated in Newgate prison. A report of Parliament deemed a book obscene. The publisher of the book (Stockdale) contended that: mischaracterization of his work (libel) then sued Hansard (Parliamentary printer). Hargued that they weer protected by parliamentary priviledge => he just gave effect to the wishes of P.

Answer 8

Held, making a declaration of incompatibility, that (1) s.3(1) would not be "read down" in the manner proposed where it clearly provided for a blanket ban on voting which applied to all convicted prisoners serving custodial sentences, there was no "grain of the legislation" which could properly serve as a starting point for any interpretation designed to clothe some of the prisoners with voting rights, and to read down the section would depart substantially from a fundamental feature of the legislation. (2) It was competent for the court to make a declaration of incompatibility | Appeal dismissed ## Footnote S, a person who wished to be placed on the electoral register, applied to his local electoral registration officer who, on receipt of the information that the applicant was a convicted prisoner, acted in terms of the Representation of the People Act 1983 s.3(1) and refused to include his name in the Register of Electors. S appealed to the sheriff on the basis that the decision breached his human rights. The sheriff refused the appeal. S appealed and the sheriff stated a case, asking whether it was correct to refuse S's appeal and esto it was, whether it was correct not to grant a declarator that the terms of s.3(1) Act were incompatible with the applicant's rights under the Human Rights Act 1998 Sch.1 Part II Art.3, whether by virtue of s.4 of the 1998 Act or at common law. The secretary of state was joined as a party to the proceedings, who fully accepted both the decision in Hirst v United Kingdom (74025/01) (2006) 42 E.H.R.R. 41, [2005] 10 WLUK 84, and that the Scottish Parliament was a legislature for the purposes of Art.3. S submitted that (1) if there was some "possible" interpretation of s.3(1) which would remove the incompatibility identified in Hirst, the court should adopt it and allow the appeal which was possible, with the principles enunciated by the House of Lords in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 A.C. 557, [2004] 6 WLUK 427 in mind; (2) if reading down was not possible, the appeal would be refused but the court should make a declaration of incompatibility; (3) if the court did not take that course, it should give such remedy as was open to it within its powers at common law or under any statute. X, the secretary of state, submitted that (1) it was not possible for s.3(1) to be read down; (2) it was not competent for the court to make a declaration of incompatibility, and in any event, the court should not exercise its discretion to do so; (3) it was not competent for the court to grant declarator at common law that s.3(1) was incompatible with the Convention.

Answer 9

= an attempt to question the validity of the Act was found to be non-justiciable. In 1922 the Irish Free State (Agreement) Act gave effect to the political settlement which brought to an end ‘The Troubles’ or Irish War of Independence 1919–21. The 26 southern counties were given dominion status and the Union, at least as envisaged in 1800, was effectively brought to an end. The Irish constitution of 1937 asserted that the country was a sovereign independent state. Its status as a republic was recognised by the Ireland Act 1949.

Answer 10

the case went back to domestic courts: House of Lords gives effect to the decision of the ECJ. Prepare an injunction to disapply temporarily this act of Parliament. The HoL reasoning: - Parliament entered the EU Arrangement voluntarily - Parliament has faithfully given effect to EU law - Not novel to follow and give overriding supremacy EU law - The Courts must not be inhibited by domestic law from doing the same (giving effect to overriding EU law) | Parliament has successfully bound its sucessors ? ## Footnote the ECJ held that the provisions of the MSA were required to be disapplied by the UK courts if they contravened EU law.

Answer 11

Lord Denning delivered a characteristically dramatic judgment. He thought it a ‘bright idea’ (at 647) on the part of those paying the licence fee—‘the overlappers’ (at 647)—to recognize the possibility of holding two licences concurrently. It was one that made the Home Office ‘furious’ (at 647) and so led it to threaten those fee-payers with revocation, to which threat ‘a lot of the timid ones succumbed’, although ‘the strong-minded ones did not’ (at 648). Lord Denning observed that the differential treatment argued for by the Home Office between new and existing licence holders was neither lawful nor logical. A ‘newcomer’ (at 650) could purchase a licence at the lower price, while an existing holder could not purchase a second (at 649–50). Roskill LJ concurred, finding that the legislation did not recognize a concept of ‘renewal’ because each licence issued was, in fact, a new licence, not a renewal of an existing one (at 654). The Court’s view was that there was nothing in the legislation that prevented a person from holding overlapping licences (at 650–1; see also Roskill LJ, at 656–7). Similarly, there was nothing in the legislation permitting revocation ‘if the licensee had done nothing wrong’ (at 651). ## Footnote In the United Kingdom, anyone using a television is required to hold a valid television licence. This case concerned the legality of a decision by the Home Secretary to revoke television licences where a second licence was purchased to run concurrently with an existing one. By this means, licence holders could avoid paying a higher licence fee at a later date. On 29 January 1975, a 50 per cent price increase for television licences was announced—from £12 to £18. The new fee would take effect from 1 April 1975. All Post Office staff (the Post Office being the sole dispenser of licences) were given instructions to direct anyone requesting to renew a licence that did not expire until 31 March 1975 or later to return on or after 1 April. Congreve’s licence was not due to expire until 31 March, but he managed to purchase a new licence on 26 March at the lower price. The Home Office wrote to everyone who had purchased overlapping licences requiring the additional £6 to be paid to avoid their new licence being revoked. A subsequent letter directed to those who had not paid said that the concurrent licence holders would have their licences revoked, and may then be liable to prosecution if they did not buy a new £18-licence.

Answer 12

à compléter

Answer 13

- UKSC holds that the Attorney General had acted unlawfully, meaning that the veto he had sought to exercise was legally ineffective. - The Upper Tribunal’s decision notice therefore stood, and the memos had to be released in accordance with that decision notice. ## Footnote The UK Supreme Court’s judgment in R (Evans) v Attorney General [2015] UKSC 21 formed the conclusion to a lengthy saga that began with a series of requests under the Freedom of Information Act 2000 for disclosure by Government Departments of the so-called ‘black spider memos’ sent to them by Prince Charles. The Government refused to disclose this correspondence, but a judicial body, the Upper Tribunal, later concluded that the public interest favoured the release of the black-spider memos under the Freedom of Information Act and issued a ‘decision notice’ ordering their disclosure. Once a court or tribunal has issued a judgment, that is normally the end of the matter (unless a right of appeal to a higher court or tribunal is exercised). Unusually, however, section 53 of the Freedom of Information Act enables Government Ministers in certain circumstances to override or veto decision notices issued under the Act. In Evans, a Minister — the Attorney General — exercised the section 53 ‘veto power’. This had the effect of setting aside the Upper Tribunal’s decision notice, thus relieving the Government of any obligation to release Prince Charles’s letters.

Answer 14

The scope of parliamentary privilege is defined by the common law In this case the court held that MPs’ expenses claims do not enjoy parliamentary privilege 'Lord Phillips dealt with the art. 9 and exclusive cognizance limbs of the argument separately. He began by explaining that ‘the extent of parliamentary privilege is ultimately a matter for the court’, notwithstanding that a degree of deference will be paid to views expressed within Parliament' ## Footnote MPs sought to evade criminal proceedings on the basisi of article 9 of the Bill of Rights ( paradoxical to use that instrument as a way to escape the rule of law).

Answer 15

Appeal allowed s67(8) of the 2000 Act does not oust the supervisory jurisdiction of the High Court for errors of law => now superseded by the CHIS act ## Footnote Section 67(8) of the Regulation of Investigatory Powers Act 2000 purported to exclude from challenge or appeal any decision of the Investigatory Powers Tribunal (IPT). The Tribunal ruled against an application by Privacy International relating to the proper construction of a section of the Intelligence Services Act 1994. Privacy International sought judicial review of the IPT's decision. It lost in both the High Court (Sir Brian Leveson P and Leggatt J) and in the Court of Appeal

Semester (1) Flashcards

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