Saturday, April 30, 2011

Updated Case List (UP TO UK/EU Law)

Cases – Public Law Class
Please note that this list is not exhaustive, and merely provides the barest minimum number of the cases you need for the class.

1.             Sources of Constitutional Law:

State the statutory and common law sources of the UK Constitution

Identify the non-legal sources of the UK constitution

Identify the European sources of the UK Constitution

What are conventions? Give a few examples.

2.             The Separation of Powers

·         To what extent is there separation of Powers in the UK Constitution?

·         McGonnell v UK (2000) an unsuccessful party to a law case involving a public authority may be able to claim that he has not had a fair trial if he can show that the judge, in addition to his duties as a judge, also has functions in connection with the executive and the legislature (regardless of whether there was actual bias).

What are the major institutions of the British State?

Understand the relationship between the major institutions of the British state as outlined in the following cases:

Executive & Judiciary Relationship:
·                     M v Home Office (1994)

·                     Council of Civil Service Unions v Minister for Civil Service (1985) (the GCHQ Case)

Legislature/Judiciary Relationship

Pickin v British Railway Board (1974) on the power of judges to question the validity of legislation

Magor and St. Mellons RDC v Newport Corporation (1952) Power of judges to “make laws”
See also –
On the power of parliament to pass retrospective legislation

·                     Burmah Oil Co Ltd. V Lord Advocate (1965)

·                     R v R (1992)

·                     Waddington v Miah (1974)

3.             The Rule of Law

- Definition of Rule of Law:

- Dicey and the rule of law: (Especially Dicey’s Rule 1)

·                     R v R (1992)

·                     Waddington v Miah (1974)

Practical Manifestations of the rule of law:

·                     Entick v Carrington (1765)

·                     The Rossminster Case (1980)

·                     Malone v Metropolitan Police Commissioner (1979)

·                     Malone v United Kingdom (1984)

·                     In Re M (1993)

·                     A v Secretary of State for the Home Department (2004)

The Principles of Natural Justice: “No man shall be a judge in his own cause”

·                     Dimes v Grand Junction Canal Proprietors (1852)

·                     R v Bow Street Stipendiary Magistrate, Ex Parte Pinochet (1999)

4.             The Royal Prerogative
Define Royal Prerogative, give examples, relationship between prerogative and statutes, assess whether prerogative is adequately controlled by parliament (and how) and by courts. Make arguments as to whether or not it should be codified.
Defining the Prerogative

The power of the courts over the operation of the Prerogative

·                     The Case of Prohibitions (1607)
·                     BBC v Johns (1965) – Courts decide if Prerogative Exists
·                     Attorney-General v de Keysers Royal Hotel (1920)- Act of Parliament overrides prerogative (also the Laker Airways Case)
·                     R v Secretary of State ex parte Fire Brigades Union (1985)
·                     R v Secretary of State for Foreign and Commonwealth Affairs, Ex Parte Everett (prerogative to issue passports is renewable)
·                     R v SSHD, Ex Parte Bentley – Prerogative of mercy is renewable
·                     Ex Parte Rees-Mogg – Prerogative to pass treaties challenged

Should the Prerogative be codified?
R v SSHD, Ex Parte Northumbria Police Authority – on the broad kinds of power that the prerogative can give a public authority

5.             Parliamentary Sovereignty
·         Difference between political and legal sovereignty
·         Origins, meaning scope of parliamentary sovereignty
·         What does being a member of the EU, the HRA and the Acts of Union do to the concept of Sovereignty?

Dicey on Sovereignty:
·         Parliament can legislate on any subject matter:
 Madzimbabuto v Lardner-Burke dicta of Lord Reid, especially “It is often said that it would be unconstitutional for the UK parliament to do certain things, meaning the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if parliament did those things….

Burmah v Lord Advocate (1965) Parliament can legislate with retrospective effect

See also – Hijacking Act 1972 (criminalize acts beyond the borders of the UK)
·         No Parliament can be bound by its predecessor nor bind its successor!!!!!!! (this is the most controversial of the three)
Doctrine of Implied Repeal – Vauxhall Estates v Liverpool Corporation (1932)
Ellen Street Estates v Minister if Health (1932) Compensation Schemes under more recent or older acts – which should apply? Held that the more recent Act’s compensation scheme impliedly repealed the older Acts compensation scheme
Grants of Independence – British Coal Corporation v The King - Acts granting independence can be repealed, but “legal theory must march alongside practical reality”Acts of Union with Scotland and Ireland and Parliamentary Sov’ty: MacCormick v Lord Advocate (1953) “the principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law”…the Parliament of Great Britain ‘could not’ repeal or alter [certain] ‘fundamental and essential’ conditions” of the Act of Union (MacCormick v Lord Advocate1953 SC 396 at page 411)
Does the Act of Union have a special status among statutes? Dicey says no. Everyone else says yes!
Manner & Form AG for New South Wales v Trewothan

·         Nobody can challenge the validity of an Act of Parliament – including the courts:

·                     Jackson v Attorney-General (2006)

·                     Pickin v British Railways Board (1974) on the “enrolled bill” rule.- Bill is valid even where there is evidence that parliament was misled into passing it.

Sovereignty and the EU
·         R v SS for Transport, Ex Parte Factortame – on the impact of 2(4) of the ECA 1972 on the concept of Parliamentary Sovereignty – also the Thoburn Case: Key question here is? Is this a curtailment of Parliamentary Sovereignty, or does the fact that the ECA was passed by Parliament mean (and can be repealed by Parliament) mean that the doctrine of parliamentary sovereignty is still in tact.
MacCormack Case
Are there “constitutional Acts” see Laws LJ in Thoburn v Sunderland City Council (2002) - in which Laws LJ makes a case for certain kinds of statutes e.g. the HRA 1998, or the ECA 1972 as having constitutional importance – and as a result cannot be impliedly repealed.
Structure of Government & Governmental Institutions ( House of Lords, Commons, etc – very few cases here, but please be aware of the basic functions and theories behind the operation of all relevant institutions.
Don’t forget these institutions – be sure you understand their basic functions and roles:
  • Crown – (look at Royal Prerogative to see what Crown’s Powers are – also Conventions.
  • Privy Council – Function, membership, justification
  • Civil Service – especially the four principles, what they are, why they are necessary
Prime Minister, Cabinet and Ministerial Responsibilty
AG v Jonathan Cape 1976 (publication of diaries of Cabinet Member)
House of Lords/House of Commons Relationship –
Jackson v AG
  • The Electoral System –
The Franchise
R (Pearson) v SSHD (2001) – prisoners and the franchise; compare with >Hirst v United Kingdom – prisoners and the right to vote
Fox v Stirk (1970) on multiple eligibility
Constituency Boundaries – Challenges
R v Boundary Commission, Ex Parte Foote
Conduct of Elections
Corruption AG v Jones (2000) – Corrupt practices during elections may lead to dismissal from Parliament
Expenditure – Challenges to expenditure rules R v Tronoh Mines (1952), DPP v Luft (1977) Grieve v Douglas-Home (1965) – on when public activities, newspaper publications against a particular candidate, or TV appearances violate these spending rules.
Broadcasting – R v Broadcasting Complaints Commission, Ex Parte Owen – former head of the LibDems whining about the unfairness in the manner in which BBC allocates its broadcasting time. Did not succeed.
Election Challenges – dismissals due to irregularities In Re Parliamentary Candidate for Bristol South Seat (1964)
Parliamentary Privilege – what it is, definition from Erskine May
Stockdale v Hansard (1839) -  the house should have exclusive jurisdiction to regulate the course of its own proceedings and animadvert upon any conduct there in violation of its rules or in derogation from its dignity, stands upon the clearest grounds of necessity
Individual Immunities –
Freedom of Speech for Parliamentary Proceedings
  • Rivlin v Bilainkin (1953)
  • R v Rule 1937 (KB
  • Buchanan v Jennings (2004
  • A v UK (2002) ECHR – the application of this rule in Europe.

Parliamentary Privileges and the courts – NB the rule in British Railway Board v Pickin -
Rost v Edwards  (1990) – contrast with> Pepper v Hart (1993)

Outside Interests of MPs
-          See recent developments in VLE
-          Also - Hamilton v Al Fayed; and R v Commissioner for Standards and Privileges, Ex Parte Al Fayed

EU Law and the UK
Creation – rationale and impact:
Costa v Enel
“By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.
Internationale Handelsgesellschaft v. Einfuhr (1970)The Court made clear that the legal status of a conflicting national measure was not relevant to the question whether Community law should take precedence: not even a fundamental rule of national constitutional law could, of itself, be invoked to challenge the supremacy of a directly applicable EC law
Interpretive duty of ECJ to ensure that objects of Treaty are being Centrosteel v Adipol GmBh (2000) – purposive interpretation by EC – See also (indirect effect)
Sources of EU Law – Regulations, Directives, etc
-          Van Gend Loos NV v Nederlandse Administratie der Belastigen.- direct effect- EC regulations are binding
-          Van Duyn v Home Office (1975) – Directives are also in certain circumstances, binding
-          Defrenne v Sabena (1978) - Regulations have horizontal applicability,
-          Marshall v Southampton and South West Hampshire Area Health Authority (1986) - directives don’t have horizontal applicability.
-          Foster v British Gas 1991, the factors which the court looked at in determining whether or not an entity was an “emanation” of the state
-          Griffin v South West Water Services (1995) - private water company was an emanation of the state.
-          National Union of Teachers v Governing body of Saint Mary’s Church of England Junior School - governing body of the school was an emanation of the state as education was a public service.
-          Von Colson and Kamann v Land Nordrhein-Westfalen (1984) the duty of purposive interpretation – is based on Article 10 of the EC Treaty. – even where no EU directive.
-          Marleasing SA v La Commercial Internacional Alimentacion SA (1990) Here it was held that whether or not the provisions in question were adopted before or after the directive, the national court was called upon to interpret the provision, as far as possible, in the light of EU statute.  This means that national laws which were enacted many years previously, must now be interpreted in the light of current EU directives.
-          Adender v Ellinkos Organisonos Galaktoes (2006) time in which a directive is indirectly applicable
-          Francovich and Bonifaci v Italy (1993) – damages for breaches of EU law – also Factortame Case
UK Law and EU Law:
-          Blackburn v Attorney-General
-          R v Home Secretary, Ex Parte McWhirter – both on dualism of UK Constitution
-          Mcarthys v Smith – impact of ECA 1972 – an “overriding force”. See also Thoburn Case (Laws LJ) in parliamentary sov’ty
-          R v Secretary of State for Transport, Ex Parte Factortame, also R v HM Treasury, ex Parte BT (1993); R v SS for Employment, Ex Pare Equal Opportunities Commission
-          Webb v EMO Cargo
-          Garland v British Rail Engineering - where it was held that the words of the English Sex Discrimination Act of 1975 should be construed in light of the EC treaty – even if the means straining the literal words used in the Act.
-          Pickstones v freemans (1989) and in Lister v Forth Dry Dock and Engineering in both cases, the HL was prepared to adopt the interpretive obligation formulated by the ECJ in the von Colson case to interpret domestic laws. 

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