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Year 1- Public Law Cases
Terms in this set (34)
Ratio- UK constitution as EU law takes precedence over UK law so thus, need an A of P to remove (PP can not be used to alter domestic law, Crown cannot change domestic or common law as Parliament's job)- "The Bullet has left the pistol" --> Part of the reason why TM couldn't be allowed to use PP to trigger article 50 as makes EU law completely obsolete and some domesticated laws would cease (HRA 1998) + affecting rights of EU and UK citizens- NEED PARLIAMENTS CONSENT
1. Executive vs Legislature, SOP, Devolution (Scots + Welsh Involved- Example of override as under Scotland Act, cannot completely ignore Scottish Parliament)
2. Scope of RP remains good law, affects rights of British people living in EU and vice versa and thus, too sensitive not too be passed through Parliament
3. If Courts agreed PM could trigger article 50, would annul legal argument as goes against PS
4. Judges (Jackson argues that Judges came up with PS) v Parliament (Miller argues Parliament came up with PS through Bill of Rights, Acts of Settlement 1701)
--> WHOLE CASE: Tension between DD & RD (=Any act of Parliament which makes... will be obeyed by the Courts)
Entick v Carrington
State cannot invade property without a warrant
Liversidge v Anderton
Detention under emergency power
AG v Jackson
Fox hunting Case, didn't receive support of the HL but used Parliament Act 1949 was used to counter the House of Lords' ability to delay the bill, and so it received royal assent. Was it unlawful? Lord Bingham, delivering the leading judgment, stated that the Parliament Acts could indeed be considered 'enacted law' and as the Hunting Act 2004 was lawfully passed it was valid law. Secondly that whilst legislative matters ought usually fall in Parliament's jurisdiction, as Parliament could not respond to the question in the instant case, it fell to the judiciary to provide an answer and Parliaments can be bound by the procedural requirements placed upon them by previous Parliaments.
Hirst v UK
Indefinite detention case (No harmony between SC + Rest of Parliament) + Example of negative law
Belmarsh Prison Case
HL held: Factual scenario in UK= YES public emergency but PE is a matter for the executive (line drawn between legal and political power) --> BUT judicial scrutiny is allowed to determine that:
-Detention= discriminatory + disproportionate (ONLY applied to non-UK nationals) —> Court: DOI (Art 5 ECHR) + Quashed derogation order
- SOP&RoL: Parl, Exec & Courts= different functions BUT independent judges are feature of mod demo state and cornerstone of RoL
- The holding of a person without trial must require the strongest justification. Article 5 of the Convention does not permit internment on security grounds. The derogation was not proportionate. .
Courts&Demo: AG= fully entitled to insist on proper limits of judicial authority BUT wrong to suggest judicial law making is undemo—> Overriding the sovereign legislative authority of the Queen in Parl
MSA 1988- UK giving away some sovereignty to EU (EU law takes precedence over UK law)
Ghaidan v Godin-Mendoza
UK Parliament under HRA 1998 can update statutes to comply with EU law- Rent Act 1977- Protected tenancy for those 'living as [if they are] husband and wife'(Landlord decided didn't apply because same-sex couple, but HRA 1998 empowered courts to update Statute to include same-sex couples.)
Pickin v British Railways Board
Relevant act been passed by fraudulent deception and thus, unlawful but court held wasn't there role to look into parl process
Burmah Oil v Lord Advocate
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. Any act of requisition was done for the good of the public, at the expense of the individual proprietor, and for that reason, the proprietor should be compensated from public funds.
R v Allen
RP- 2nd stage of development: Courts can comment if PP exits + establish limits on these powers
Facts: Minister decided without consultation that GCHQ staff no longer permitted to join/form trade unions using Order in Council via RP
Held: Legitimate expectation can be established by taking into consideration past practice, promises, or representations. Here, the fact that their right to union membership was revoked after many years of exercising that right was enough to warrant a reasonable expectation. These expectations cannot conflict with statute and must be clear/unequivocal.
--> Prerogative powers/executive decisions are not immune to review
Unless in matters of national security, it is a reasonable expectation to be consulted before the decision of this nature and as such, if they are not, they are entitled to a judicial review.
BBC v Johns
'350 years and a civil war too late for the Queen's Courts to broaden the prerogative' Too entrenched in a political and legal systems for us to try and reform them (Would affect all branches of UK Executive, Judiciary and Legislature + PP cover wide range of situations)
Northumbria Police Authority
Court held Act did empower the Home Secretary (Neither S4(4) of Act nor any statutory provision gave police authorities exclusive right to provide equipment required for police purposes)+ there was prerogative power had existed and not displaced by the Act, so even if Act did not empower the Home Sec's actions, would have been empowered under royal prerogative. Meant that the 1964 Act permits the establishment of a central store and direct supply of this equipment to chief constables (This power has not been removed by statute) + 'Grave emergency idea'= a PP empowering the Home Sec --> Has both PP and Statutory Powers (Statute always take precedent over PP)
JR + Legitimate Expectation: HL held on majority that promise by Government was not clear vs Dissenting: Promise established legitimate expectation—> HIGHLY SUBJECTIVE re whether legitimate expectation existed) Undermines effectiveness of this ground of review as conflicting case law applications (Also undermines RoL)- Court of Appeal held that it was time to recognise that this principle applies to all exercises of the royal prerogative, including Order in Council
Thoburn v Sunderland City Council
- Gave us the idea that despite all UK Parliamentary statutes being treated the same (same process), have other class of Statutes (Constitutional Statutes) which are treated differently
- Examples of Constitutional Statute: HRA 1998 (Domesticates rights in UK from ECHR), ECA 1972, Union Act, Devolution Acts (allocation of power between countries and relationship between the Westminster Parliament and Welsh Assembly, Scottish Parliament and NI Assembly), CRA 2005 (relationship between legislature and judiciary + LC's role= only part of executive now)
Cadder v HM Advocate
Issues as Scotland has own legal system can only appeal Civil and not criminal cases to UK SC
Facts: 7 hours containment- First instance + CA: Article 5 deprived but justified due to being proportionate and in interest of maintaining public order
Ratio: Only a restriction of liberty as opposed to a violation/deprivation
--> ECHR can be breached but only when...
The actions are not arbitrary
It was in good faith
It was proportional
It was necessary
(it was in the interest of public order)
The specific situation and context is to be taken into account when establishing these categories
--> Didn't follow normal 4 step protocol as freedom of movement under Protocol 4 (Freedom of movement) has not be ratified by UK so citizens have to rely upon Article 5 (Limited Rights.)
Facts: Two demonstrations, one got violent and so second was contained. At HC held to be unlawful as threat not imminent and other actions more appropriate that could have being taken despite one chosen being in good faith
Held: Containment was lawful. CA wrongly formed its own assessment rather than considering the reasonableness of the apprehension of the police of an imminent breach of peace at the time without the court's hindsight.Was actually the least invasive/extreme action to take in light of what the police reasonably believed at the time
--> Can be breached so long as necessary and the least extreme in that situation
Whether it is necessary is decided from what was believed at the time, not using hindsight
Ex Parte Greenpeace
Facts: Did GP have Locus Standi given that they were not directly affected?
Held: Did have standing but claim failed on lack of legal merit.
When deciding the standing of a claimant for judicial review, the following should be considered:
Nature of the applicant
Interests in the issues raised
The remedy sought to achieve
The nature of the relief sought
Found that they did have standing due to the fact that those 2,500 supporters who were directly affected did not have any other way of achieving their goal without the organisation and legal expertise of an organisation like Greenpeace. Moreover, it could be concluded that Greenpeace did indeed have a genuine interest in the outcome of the case rather than being mere meddlers.Despite this, the application was however dismissed based on the fact that the respondent was indeed acting lawfully
--> No longer necessary for the claimant to be directly related to the case so long as they are acting on behalf of individuals who, without them, would have no method of claiming themselves.
South African trip during apartheid. Council banned club from their training ground. CA dismissed the appeal. HL: Appeal granted.The local authority did have the power under the race relations act to consider the best interest of race relations when managing their training grounds but since the club did not act illegally or improperly, their penalisation was unreasonable and a breach of the authority's duty to act fairly. Their use of their power crossed into the realm of pressure which can amount to procedural impropriety.Ordered to quash the ban
--> Irrational to punish when a body has not acted improperly.
Discretionary power still has the limits of procedural impropriety, rationality and legality.
Prison search case
Held: Appeal allowed since the infringement was greater than necessary or justification. Though individuals with a history of violence or a suggestion of such behaviour could be mandatorily absent, the blanket ban of all prisoners regardless of cause constituted a human rights breach.The intrusion into protected client/lawyer correspondence was excessive and greater than necessary to maintain security, order and discipline. The actions taken, though effective, were not proportional to achieve the goal of high levels of security
--> Human rights can be compromised with just cause but a blanket exercise of such discretion is unjustified and goes too far.
Any compromise must be proportional to the weight of the desired outcome.
R v Oakes
Proportionality: three component parts of proportionality, in brief these are:
1. Measure must be carefully designed to achieve objective
2. Impair as little as possible on the right or freedom.
3. There must be a proportionate link between effects of measure and the objective sought.
1. Legislative objective is sufficiently important to justify limiting the right
2. Measures designed to meet the legislative objective are rationally connected to it
3. Means used to impair freedom no more than is necessary to achieve the objective
Illegality grounds: Error of law (Public body has fundamentally misdirected itself) + Jurisdiction
IRC v National Federation of Self Employed and Small Businesses
RE tax company (IRC) getting tax as workers signing in using false names to avoid tax. IRC agreed amnesty with workers that if they signed on accurately going forward. Fed of SE & SB ltd wanted hearing RE actions of IRC. Issue: Did National federation have sufficient interest? HL held they didn't have sufficient interest= NO standing Sufficient interest test applied at the preliminary stage (the permission stage). It is for the full hearing to consider the issue of standing in detail --> Factors judge should take into account under this case 1. What exactly statute designates 2. Party who has weak connection may establish standing if is important misdemeanour of government 3. Strength of case 4. Public interests 5. Prior involvement in matter in question
AG v Fulham
Illegality ground: Must not use its power for improper purpose- Legislation allowed local authority to use taxpayers money to build washing facilities and FC could be paid to wash their clothes. Held that local authority was allowed only to provide washing facilities and not pay other companies to do it for them
Porter v Magill
Illegality ground: Must not use its power for improper purpose- Power to sell of social housing (Thatcher Government), Porter (Westminster Council) drew up map of constituency and targeted all of the marginal seats to sell off properties on basis that they would vote conservative. Was selling properties under this method improper purpose? Held: Yes) + PI: Current Test-Fair minded and informed observer would conclude that there was a real possibility that the Tribunal was biased.
Ex parte Vennebals
Illegality ground: Must taken into account relevant considerations and exclude irrelevant considerations- Home Sec had power to review sentence and wanted to increase it. Challenged on basis that taken into account irrelevant factor (Sun Poll.) Upheld this was an irrelevant factor)
Metropolitan Properties v Lannon
PI- Rule Against Bias: ent Assessment Committee (Lannon sat as Chairman who held case by MP, Rent Assessment Committee lowered rent below what tenant/Rent Assessment Officer had asked for- Was Lannon bias? Chairman of bias, lived with parents, father lived in property with same landlord group being challenged in this case + Lannon acted as Solicitor for other people. Held: No assumption he was bias, but there was a suspicion of bias Questionable as surely clear cut case of bias?!)
GCHQ + Irrationality
Lord Diplock said: rationality applies to "a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
Mr P & Electoral Commission
Mr P complained that EC at fault for maladministration regarding political funding complaint
--> Ombudsman upheld Mr P's complaint + found maladministration in way Commission handled matter
"The Commission, in the course of discharging its statutory responsibility to monitor whether the rules on party and election finance had been followed, did not make adequate enquiries of the Party and that its failure to do so was maladministration." (Ombudsman's Report)Commissions role
Ombudsman made recommendation to remedy injustice to Mr P following maladministration by the Commission
Debt of Honour Case
Ombudsman- " MoD has agreed to all my recommendations and the response I have received from the Permanent Under-Secretary of State and her officials to redress these serious failings has been heartening. Of course, the real test will be in how well the MoD learns lessons from its mistakes and applies them to prevent anyone else suffering in the way that Mr A and his siblings have done."
R v North & East Devonshire Authority, ex parte Coughlan
Legitimate Expectation: accepted substantive legitimate expectations may be generated by public bodies and these must be respected unless overriding public interest in allowing body to go back on its work
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