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Public Con And Ad Law Notes

GDL Law Notes > GDL Constitutional and Administrative Law Notes

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Public

PUBLIC LAW REVISION SUMMARY
Part I: Constitutional......................................................................2
Parliamentary Sovereignty......................................................................2
Challenges to the Orthodox Theory.....................................................4
Act of Union (1707)..............................................................................6
Europe and Parliament.........................................................................7
Rule of Law............................................................................................10
Ouster Clauses...................................................................................14
Judge Made Law.................................................................................15
Judicial Control of the Royal Prerogative..............................................17
Reviewability......................................................................................18
Part II: Administrative Law...........................................................22
Judicial Review......................................................................................22
Locus Standi..........................................................................................23
Amenability to Judicial Review (Public Bodies).....................................26
The Exclusivity Principle.......................................................................28
Illegality.................................................................................................30
Irrationality............................................................................................34
Procedural Impropriety.........................................................................35
Statutory Requirements.....................................................................35
Common Law Requirements..............................................................35
Rule Against Bias...............................................................................37
The Duty to Give Reasons..................................................................38
Part III: Human Rights.................................................................40
Background...........................................................................................40
S.2 - Strasbourg Jurisprudence.............................................................42
S.3 & S.4 - Interpretation of Legislation...............................................43
S.6 - Public Authorities.........................................................................46
Horizontal Effect................................................................................47
Constitutional (1 from 3); Administrative - (1 from 3); Human Rights (1 from 2)

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PART I: CONSTITUTIONAL


Colin Turpin: ''a body of rules, conventions and practices which regulate or qualify the organisation and operation of government in the United Kingdom"
Stanley de Smith: "a central, but not the sole feature, of the rules regulating the system of government"
Vernon Bogdanor: "a code of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government, and defines the relationship between these and the public"

PARLIAMENTARY SOVEREIGNTY

2 Madison in the Federalist Papers argued some values were too important for ordinary politics
Entrenchment

Procedural Entrenchment - procedurally protected law (e.g. a super majority required)
o Substantive Entrenchment - laws that cannot be repealed.
West Virginia on v Barnette US Supreme Court (1943)
o Justice Robert H. Jackson: forceful defence of free speech and constitutional rights generally as being placed "beyond the reach of majorities and officials."
US the the sovereign lawmaker is 'the people'
o The people are: 2/3 majority in Congress or 2/3 of States to propose and 3/4 of state legislatures to ratify
Sovereignty in the UK - four ideas:
o 1) The Crown (cf. James I)
o 2) Parliament (Parker - tripartite structure represents estates of the realm)
o 3) Common Law (Dr Bonham's Case (1610))
 Coke LJ "When an Act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it"
o 4) Natural Law
 Day v Savadge (1615) per Hobart CJ: "even an Act of
Parliament, made against natural equity, as to make a man judge in his own case, is void in itself"
Post 1688 there was a presumption that Parliament was sovereign lawmaker (Blackstone (mid C17) and Dicey (late C19))
o Civil War (1688) and Declaration of Right settled this dispute

Alleged James II had infringed upon liberties by levying taxes and suspending laws without Parliaments consent.
Implication people naturally possess these liberties.
o James was deposed and replaced by William of Orange and
Mary
 A condition of doing this was accepting that sovereign legal power lay with Parliament.
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3 Blackstone's Theory (1765)
o American revolutionary time - If [the legislature] will positively enact a thing to be done, the judges are not at liberty to reject it - Judges not above legislature

Bernard Bailyn argues Americans wanted to search for the seams along the fabric of
Diceyan Orthodoxy

Two elements to his statement of constitutional parliamentary sovereignty.
 1) The positive limb: Parliament can enact legislation on any subject matter whatsoever;
 2) The negative limb: no court possesses the legal power to overturn or refuse to apply an Act of
Parliament

Therefore
 There is no distinction in substantive terms between ordinary and fundamental laws enacted by Parliament
 There is no distinction in procedural terms between ordinary and fundamental laws enacted by Parliament

City of London v Wood [1701]
 "an Act of Parliament can do no wrong, though it may do several things that look pretty odd".
The Enrolled Bill Rule (Wachope; Lee v Bude and Pickin)
o Edinburgh Railway v Wauchope (1842)
 Landowner affected by a private Act of Parliament authorising compulsory purchase of land for the construction of a railway, tried to argue court should declare act void for failing to give sufficient notice.
 Lord Campbell thought that judging the constitutional adequacy of proceedings in either the Commons or the
Lords was entirely beyond the court's powers.
o Lee v Bude and Torrington Railway (1871)
 Wile J: "if an Act of Parliament has been obtained improperly it is for the legislature to correct it by repealing it: but so long as it exists as law, the Courts are bound to obey it"
o British Railways Board v Pickin.
 Mr Pickin alleged that British Rail had steered a private
Bill through Parliament without giving the necessary notices to affected landowners.
 Lord Reid explicitly denied that the courts had any power to question the legality of a Bill's passage through Parliament.
 Enrolled bill Rule: once a bill is on the statute books it cannot be altered by anyone other than parliament.
The Doctrine of Implied Repeal

Vauxhall Estates Ltd v Liverpool Corpn [1934] and Ellen
Street Estates Ltd v Minister of Health [1934]
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Acquisition of Land Act 1919 s.7
The landowners affected sought to have compensation assessed on the basis used in the 1919 Act.
 Housing Acts of 1925 and 1930 made these provisions less generous.
 Cannot procedurally entrench act - 1919 Act: "as inconsistent with this Act those provisions shall cease or shall not have effect"
 Distinguished express and implied repeal 'functionalist' approaches to parliamentary sovereignty
 Summarily rejected at appeal: the judges adopted instead a formalist approach that the courts unquestioningly obey the most recent Act of
Parliament.
o Ellen Street Estates Ltd v Minister of Health [1934] 1 KB

590  Scrutton LJ: "Parliament can alter an Act previously passed…by enacting a provision which is clearly inconsistent with the previous Act"
 Thus Parliament can impliedly repeal any previous act - it is the latest statement that prevails in court, Parliament can bind itself.
 Maugham LJ: "The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation"
Relationship with International Law

Mortensen v Peters [1906]
 1889, the British Parliament passed the Herring
Fishery (Scotland) Act, made it an offence to catch herring in the Moray Firth without a licence.
 Mortensen was a Danish captain of a Norwegian
Trawler breached these laws, argued that this breached international law which limited jurisdiction to three miles off coast.
 Lord Salvesen: "In this court we have nothing to do with...whether an Act of the legislature is ultra vires …
For us, an Act of Parliament…is supreme and we are bound to give effect to its terms"
o Treaties are negotiated and formally entered into by the
Crown (or 'the government') through its prerogative powers,
not by Parliament.
 Treaty signed by the British government can only have legal effect in Britain if it is incorporated into British law by an Act of Parliament.
o Cheney v Conn [1968] 1 WLR 242
 Cheney claimed that some of his tax money was being used to build nuclear weapons, contrary to the principles of the Geneva Convention, a treaty the
British government had signed.

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CHALLENGES


5 Argued illegal for Parliament to enact a statute that raised money so that such weapons could be built.
His case rested on sections of the Treaty that remained unincorporated.
Ungoed-Thomas J: "[W]hat the statute itself enacts cannot be unlawful, because what the statute says is itself the law, and the highest form of law that is known to this country.

TO THE

ORTHODOX THEORY

Jennings Thesis: we cannot find the doctrine of parliamentary sovereignty laid down in a statute.
Distinguishes between continuing and self-embracing theories of parliamentary sovereignty.
o Continuing theory maintains that the sovereign Parliament is a perpetual institution, Parliament need pay no heed at all to what its predecessors have done. (Diceyan)
o Self-embracing theory holds that Parliament's sovereignty includes the power to bind itself and its successors.
'Rule of Recognition' - why do the courts recognise statute as the highest form of law?
Three steps to Jenning's thesis

1) The rule of recognition is a common law concept.
o 2) Statute is legally superior to the common law.
o 3) Parliament can therefore enact legislation changing the rule of recognition and requiring the courts to accept that some Acts are protected from repeal by a simple majority vote.
Manner and Form Entrenchment

Trethowan v Attorney-General for New South Wales
(1932)
 New South Wales Parliament was created by a British statute; 'The Constitution Statute 1855'.
 5 of British statute, the Colonial Laws Validity Act 1865, statutes enacted by certain colonies that sought to alter their own 'constitution, powers or procedures'
would have legal effect only if passed 'in such manner or form' as the law then in force in the colony demanded.
 New government argued that successive New South
Wales Parliaments, just like the British Parliament,
were not bound by any legislation passed by their predecessors
 Trethowan argued that this must comply with the manner and form requirement.
 Court held in T's favour.
o Harris v Donges (No.1) (Minister of the Interior South
Africa) (1952)

Hugh Rowan Public 1909 the British Parliament passed the South Africa
Act, s.152 - Removal of voting rights on grounds of race requires 2/3 majority of 2 houses sitting together
 Nationalist government: The Separate Representation of Voters Act 1951
 Harris argues that this is an invalid law under 1909
South Africa Act, South African Parliament takes a
Diceyan position.
 Judgment hinges on two presumptions
 1) sovereign country need not have a sovereign legislature (e.g. US withholds some power from its legistlature)
 2) country can have a sovereign Parliament without according sovereignty to a simple majority procedure.
After Harris (No.1) South African government created a new governmental institution to hear appeals from the
Appellate Division brought by the government only. Only appellee could appear before the court.
Harris (No.2) court held that any legislation dealing with procedurally entrenched clauses must be reviewed by a
'court'. The new High Court of Praliament was not a 'court'
as it was neither independent nor staffed by legally qualified judges.
 Parliament responded with two acts: one increased the size of the appellate court (filling it with a majority of gov. supporters) and one increased the size of the
Senate (filling it with government supproters)
Collins (Harris No.3) Harris gives up but co-plantiff collins continues.
 The new court (including 4 of the original judges)
uphold each Act
 One dissentient - Oliver Schreiner - invalidates them all as part of a 'scheme' to subvert the entrenched clauses.
Wade: if one transposes these cases to the British context,
they are revealed simply as instances of statutory bodies created by Parliament acting beyond the confines of the authority Parliament has bestowed upon them.

o

o

o

o


6 Hart on Parliamentary Sovereignty

Followed Jennings in self embracing theory.
Wade argued sovereignty is continuing.
o Parliament acquired its power in 1688 via revolution.
o Therefore power derives from 'political fact' not legal fact,
thus it cannot undo itself.
o Rule of Recognition is the ultimate political fact.
o ECA 1972 is a constitutional revolution!
Elliot

Disagrees with Wade.
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ACT


7 o Wade's argument is purely an historical explanation.
o Also incoherent; just because sovereignty is derived rule of recognition does not mean it cannot be legislated upon by law.
o Parliament cannot bind itself but seems to have done so.
Substantive vs Procedural Entrenchmet

Substantive entrenchment: entails acceptance of the principle that Parliament cannot legislate at all about specific subjects.
o Procedural entrenchment would not necessarily produce a rigid constitution—it lends a relative rather than absolute degree of permanence to certain laws.
OF

UNION (1707)

A legal source for the powers of the British parliament? Mostly found in Scottish law schools, Distinguish English and British parliaments.
o Previously independent states of England and Scotland in some fashion created the new nation state of Britain.
o These appear to contain some entrenches clauses
From a Diceyan perspective all that happened was the English parliament swallowed the Scots Parliament up and its constitution
McCormick v Lord Advocate (1953)
o Queen Elizabeth I vs QEII
o Scots Court of Session
 "I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English
Parliament but none of the Scottish Parliament"
o It is therefore unconstitutional for parliament to do certain things - this is yet to be put to the test.
Gibson v Lord Advocate 1975

Owner of a Scottish fishing vessel sought to argue that the
European Communities Act 1972 was invalid because the opening up of Scottish waters to vessels from other Member
States would cause economic hardship to Scottish fishermen

Not for the evident utility of the Scottish people (contra Act of Union s.16).
o Lord Keith in the Outer House of the Court of Session rejected the claim primarily on the basis that fishing rights were matters of public right rather than private rights.
 the question whether a particular Act of the United
Kingdom Parliament altering a particular aspect of
Scots private law is or is not "for the evident utility" of the subjects within Scotland is not a justiciable issue in this Court.
Madzimbamuto v Lardner- Burke (1969)

Hugh Rowan

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