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?

·         Findlay v UK (1997) http://www.hrcr.org/safrica/administrative_justice/findlay_uk.html

·         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

GCHQ Case

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.

Devolution

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

Also:

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. 

Schedule for Tutorials & Mock Exam

Tuesday 25th - 6-30- 8:30 learning aides, overview, general review, sample question from first part of the syllabus:-i.e. sources of law, separation of powers, rule of law, royal prerogative, parliamentary sovereignty

Thursday 27th - Structure of government, the House of Commons, House of Lords, Electoral Laws, Parliamentary Privilege

Saturday 30 - EU/EC and Council of Europe

Monday - 6:30 - 8:30 - Human Rights -

Tuesday May 3 - Judicial Review

Thursday May 5th - Mock Exam

Saturday - Overview of Mock Exam
 

Lecture 21 – Notes

The Security Services;

• MI5 – Internal Service “the defense of the realm as a whole from external and internal dangers arising from attempts at espionage and sabotage”
• MI6 – Secret Intelligence Service
• SOCA - Serious Organised Crime Agency
• GCHQ – Government Communications Headquarters

Judicial attitudes towards national security – national security governed by Royal Prerogative – so courts very reluctant to review decisions taken on National Security issues – see also Liversidge v Andersen (1942) Powers of Defence of the Realm Act. Authorized detention of anyone considered to be “of hostile origin or association and in need of subjection to preventative control”.

The Legal Regime

Was governed by the Royal Prerogative – See GCHQ Case:

Series of statutes passed to govern the sector from the late 1980’s

• Security Services Act 1989
• Regulation of Investigatory Powers Act (RIPA) 2000
• The Intelligence Services Act 1989
• The Serious and Organized Crime Act 2005
• The Police Act 2005

This has created among other things –

The services are governed by the Home Secretary & Foreign Secretary: Oversight by:

• Prime Minister
• Joint Intelligence Committee – reports to the cabinet secretary, and through him to the PM. Includes the heads of all security agencies. Coordinates activities between security agencies in the UK, and also between UK and foreign security agencies.
• Parliamentary Committee on Intelligence and Security

1. Terrorism

Definition;

Terrorism: interpretation

(1) In this Act ‘terrorism’ means the use or threat of action

where -

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it –

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person’s life, other than that of the  person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

Act created a list of proscribed organizations. Subsequent statutes were passed in 2005 in response to the London Bombings and also in 2006 – the acts have all sought to do a few things:

Create a list of proscribed (banned) organizations. The Act provides a list of organizations involved in terrorism, two kinds of organizations: Northern Ireland Related & Islamic The Irish Republican Army.

Cumann na mBan.

Fianna na hEireann.

The Red Hand Commando.

Saor Eire.

The Ulster Freedom Fighters.

The Ulster Volunteer Force.

The Irish National Liberation Army.

The Irish People’s Liberation Organisation.

The Ulster Defence Association.

The Loyalist Volunteer Force.

The Continuity Army Council.

The Orange Volunteers.

The Red Hand Defenders.

Al-Qa’ida

Egyptian Islamic Jihad

Al-Gama’at al-Islamiya

Armed Islamic Group (Groupe Islamique Armée) (GIA)

Salafist Group for Call and Combat (Groupe Salafiste pour la Prédication et le Combat) (GSPC)

Babbar Khalsa

International Sikh Youth Federation

Harakat Mujahideen

Jaish e Mohammed

Lashkar e Tayyaba

Liberation Tigers of Tamil Eelam (LTTE)

-          The act however provides a procedure whereby one can appeal to taken of the list.

-          Creates criminal offences related to terrorism – e.g. belonging to a proscribed organization, soliciting funding for a proscribed organization. Money laundering, expanded search and seizure powers, Wearing the uniform of a proscribed organization.

-          Permits the seizure of property belonging to a proscribed organization.

-          Permits the detention without charge of members of proscribed organizations

First sign of push back comes with:

A v SSHD (2001)

The Anti-Terrorism, Crime and Security Act was created as a response to 911 threat. The case began with 10 men who challenged a decision of the Special Immigration Appeals Commission to eject them from the country on the basis that there was evidence of them being a threat to national security.

Of the 10 appellants, all except 2 were detained in December 2001; the others were detained in February and April 2002 respectively. All were detained under the Anti-terrorism, Crime and Security Act 2001.  Part 4 of the Act allowed this procedure and their deportation only for non-British nationals. Under section 25 of this Act, they had the legal right to appeal to the Special Immigration Appeals Commission against their detention.

“This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community”.

I would allow the appeals.  There will be a quashing order in respect of the Human Rights Act 1998 (Designated Derogation) Order 2001.  There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status.  The Secretary of State must pay the appellants’ costs in the House and below.

• Response – terrorism acts of 2005 – permits the issue of control orders where there: reasonable grounds for suspecting the person is a terrorist.
• Permits extended periods of detention. Up to six months. Place restrictions on certain kinds of persons. Stay in a particular place.

• ECtHR – legality depends on the extent of controls

SSHD v JJ 2007

SSHD v AF 2007

Terrorist Act of 2006 – in response to the London Bombings – included chemical weapons, extends detention period to 28 days.

Interception of Communications

Until the case of Malone v Metropolitan Commissioner of Police 1979, there was no statutory basis for granting warrants. This was recognized as a significant gap in the UK legal system by the court in Malone.

Government passed the Interpretation of Communications Act 1985 as a response to the Malone ruling in the HL. This was amended by the RIPA Act: As a response to cases challenging the validity of ICA & technological advances. Cases challenging validity of ICA 1985, using section 8 of the HR Act.

Khan v UK –

In Khan v. United Kingdom [2010] ECHR 47486/06, judgment delivered January 12, the applicant, a Pakistani national, entered the United Kingdom at the age of three. He was granted indefinite leave to remain. In 1993, at which time the applicant was either approaching 18 or had reached that age, a court found the applicant guilty of the theft of an insurance document.

In 1998, he was fined following a conviction for the use of a forged banker’s draft. In 2003, the applicant was convicted of involvement in the importation of a Class A drug, namely heroin. The conviction attracted a sentence of seven years’ imprisonment. Then, in May 2006, the Home Secretary served on the applicant a notice of decision to make a deportation order pursuant to s.3(5) of the Immigration Act 1971. Various appeals were brought, but unsuccessfully. In September 2008, the Home Secretary advised that he would not be considering new representations, which had been made by the applicant’s representative in August 2008, as a fresh claim for asylum.

The applicant complained to the European Court of Human Rights that the decision to deport him violated his right to respect for his family and private life under art.8 of the European Convention on Human Rights. The United Kingdom Government contested that argument.

The court ruled that it was to be accepted that the measures complained of interfered with both the applicant’s “private life” and “family life”. It was further not in dispute, for the purposes of art.8(2), that the impugned measure had a basis in domestic law, namely, s.3(5) of the 1971 Act, and that the interference served a legitimate aim, namely, the “prevention of disorder and crime” and the “protection of health or morals”.

The principal issue was whether the interference was “necessary in a democratic society”. The offence of involvement in the importation of heroin was particularly serious. Nevertheless, it was to be noted that the applicant had not committed any offence following his release from prison in respect of the sentence imposed for the 2003 conviction.

Further, having regard to the length of time which the applicant had been in the UK and his very young age at the time of his entry, the lack of continuing ties to Pakistan, and the strength of his ties with the UK, the applicant’s deportation from the UK could not be proportionate to the legitimate aim pursued and would therefore not be necessary in a democratic society. Accordingly, there had been a violation of art.8 of the Convention.

Halford v. United Kingdom , (20605/92) [1997] ECHR 32 (25 June 1997)

Ms Halford was appointed to the rank of Assistant Chief Constable with the Merseyside Police. Following a refusal to promote her, Ms Halford commenced proceedings in the Industrial Tribunal claiming that she had been discriminated against on grounds of sex. Ms Halford alleges that certain members of the Merseyside Police Authority launched a 'campaign' against her in response to her complaint to the Industrial Tribunal. This took the form of leaks to the press and interception of her telephone calls.She alleges that calls made from her home and her office telephones were intercepted for the purposes of obtaining information to be used against her in the discrimination proceedings. She claims a breach of Article 8 of the Convention.

Held: The ECHR held that conversations made on the telephones in Ms Halford's office at Merseyside Police Headquarters fell within the scope of "private life" and "correspondence" in Article 8 � 1, since the Court in its case-law had adopted a broad construction of these expressions (see Niemietz v. F.R.G and Chappell v. U.K). However it did not find a violation of Article 8.

Reasoning: With respect to Article 8 the Court observed that telephone calls made from business premises may be covered by notions of 'private life' and 'correspondence'. The telephone conversations made by Ms Halford on her office telephones fell within the scope of the notions of 'private life' and 'correspondence' and that Article 8 was therefore applicable to this part of the complaint. The Court did not find that there was an interference with Ms Halford's rights to respect for her private life and correspondence in relation to her home telephone. Accordingly, the Court did not find a violation of Article 8 of the Convention with regard to telephone calls made from Ms Halford's home.

Review the RIPA Act and what it says on Communications

• Interception would be lawful under UK regulations if they are made with the consent of the sender and recipient of the communications.
• Warrant can be issued to intercept communications
• in the interest of national securtity,
• the detection of a crime and
• the safeguarding of the economic well being if the UK