Public Law A: Flashcards | Quizlet
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Public Law A:

Terms in this set (50)

Entick v Carrington (1765)
Highlights that the state may only do things that are provided by the law, whereas the individual can do anything that is not forbidden by the law.
*This case is an example of a constitutionally significant decision. It can also be seen to highlight the principle of the rule of law, as well as the limitations on the prerogative powers of the crown.
M v Home Office (1994)
This case is another example of a decision with constitutional significance. It highlights that the state is not immune from the decisions of the court and must follow court orders. They do not have the same benefit as the queen in this regard.
Characteristics of the UK constitution
1. Flexible
2. Evolutionary
3. Political
Sources of the UK constitution
1. Statute
2. Common law
3. Constitutional convention
4. Custom
Montesquieu's interpretation of the separation of powers
The separation of powers is designed to facilitate liberty - allowing one individual or group to have all three functions would lead to authoritarian rule.
R v Home Secretary, ex p Fire Brigades Union (1995) (Lord Mustill)
Shows a modern definition to what we refer to as the separation of powers:
1. The legislative function should be under the control of one group.
2. The judicial function should be the responsibility of one group
3. The executive function should be the responsibility of one group.
Allan
Places significant emphasis on the importance of maintaining an independent judiciary. He believes that this is important not only to maintain liberty (in line with Montesquieu's conceptualisation, but also believes it significant in order to maintain the accountability of government.
Example of where the three functions of power have not bee separated
Lord Chancellor - had powers within all three areas - he was a judge, he was a member of the cabinet as well as a member of the house of lords. This was changed by the Constitutional Reform Act 2005, which removed the judicial function of the LC.

Henry VIII clauses - which allow ministers to repeal, using prerogative powers certain pieces of legislation - this gives ministers (a member of the executive) legislative powers which can be used with discretion.

Members of the House of Lords - the HL was both the highest court of the land, as well as one of the houses in Parliament. This meant that some members of the House of Lords had both legislative and judicial functions.
Examples of where the separation of powers has not been adhered to in this country
Cabinet ministers are members of the House of Commons - giving them both executive and legislative functions.

Henry VIII clauses - which allow ministers to repeal, using prerogative powers certain pieces of legislation - this gives ministers (a member of the executive) legislative powers which can be used with discretion. (the name derives from the statute of proclamation 1539 - which gave Henry VIII the power to legislate by proclamation).
Aristotle and the rule of law
"The rule of law, not of men" - highlights one of the earliest known conceptualisations of the rule of law - he highlights that the written law is to have predominance over the arbitrary rules of men (i.e. prerogative powers).
Constitutional Reform Act 2005, s1
Identifies the rule of law as being significant to maintain - highlights that none of the constitutional changes that were made by the act would change the importance or vitiate the concept of the rule of law in any way - therefore it cannot be said that the rule of law is found in statutes - but the concept is respected in legislation.
A.V Dicey's conceptualisation of the rule of law
1. The absolute supremacy of the regular law over arbitrary power
2. No man is above the law (also known as saying that there is equality before the law - however, this is a debated issue because they are not explicitly saying the same thing).
3. Rights of individual are secured by the ordinary common law - there is no need for codification of rights.
Malone v Metropolitan Police Commissioner (Megarry V.C)
Encapsulates Dicey's third point in regards to the rule of law - 'England... is a country where everything is permitted except that which is expressly forbidden' - highlights that we are not granted rights by the law but the law is there to protect rights that we have had all along - this is in line with dicey's view and the law should look to protect the rights of the individual not limit them through codification.
J. Raz's conceptualisation of the rule of law
Suggests that the rule of law is a negative value that is designed to limit the harm to freedom that the law can sometimes cause. Therefore the rule of law is not a concept that guarantees those freedoms, but looks to reduce the negative impact the law may cause these freedoms.
"Middle ground of the rule of law today" -
1. The law should be prospective
2. The law should be clear and stable.
3. Independence of the judiciary should be guaranteed
4. Principles of natural justice should be observed
5. Discretion of the crime prevention bodies should not pervert the law.
Allan (1999) - conceptualisation of the rule of law
Rule of law promotes ideas of fairness equality and proportionality.
R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet
Suggests that there cannot be the rule of law in a military dictatorship of there is to be immunity for those in power - this is because there is not equality before the law/not everyone is below the law.
Golder v UK (1975)
ECHR holds the rule of law as something that it seeks to protect - highlights how international instruments have been used to uphold the rule of law
Sunday Times v UK (1979)
Highlights a long established rule that public authorities can do what they please, as long as it does not interfere with the freedoms of the individual.
Lord Diplock (1975) - speaking extra-judicially
Part of the concept of the rule of law is that the individual is aware of what the law is in advance of any act undertaken.
Dicey - prerogative powers
The discretionary or arbitrary power which may at any time be left in the hands of the executive.
Blackstone - prerogative powers
Highlights that they are powers enjoyed by the executive alone - these are powers that are not shared with any other their subjects (ordinary people).
The case of prohibitions (1670)
Coke overturned a decision of the King - this case took power away from the monarch in favour of the courts.
The case of impositions (1606)
Highlighted (pre-Glorious Revolution) That the King had the power to impose any import duty he saw fit, without the consent of Parliament, this is because Parliament could be disbanded at any time.
The case of Proclamations (1610)
Imposed restrictions on the exercise of the prerogative powers of the crown - the courts could determine:
1. Whether a prerogative power exists
2. Whether the prerogative power had bee limited by statute
3. Whether there was a requirement that the Crown would have to compensate after the use of the power.

Also highlighted that the Crown did not have the power to create new laws by proclamations - this had to be achieved through acts of Parliament.
Godden v Hales (1686)
Highlights how the rule of law was not respected in a case where statute and the prerogative powers of the crown conflicted - in this case the court allowed the King to avoid the statute and use the prerogative powers of the Crown.
Bill of Rights (1689)
Pretended power of suspending laws or the execution of laws by a regal power without the consent of Parliament is illegal.
Established that the consent of parliament - and thus an act of parliament was needed in order to create a new law.
Attorney-General v De Keyser's Royal Hotel (1920)
Highlights that in cases where the prerogative powers and the word of statute conflict, statute is supreme

This decision makes sense because acts of Parliament have legitimacy - as those who have made the law are the democratic representatives of the people.
Council of the Civil Service Unions v Minister of the Civil Service (1983)
Highlights that the prerogative powers of the crown are challengeable via judicial review, however, in this case, it was decided that matters of national security were beyond the judicial powers
R v secretary of State for Foreign Affairs, ex p Everett (1989)
Affirms the decision in the GCHQ case that the prerogative powers of the Crown are challengeable under judicial review.
Dr Bonham's Case (1610)
Suggested that the courts had the power to render an Act of Parliament void if they believed that it was contrary to the natural law. Some rules were so important that they could not be changed by an Act of Parliament.
R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (no2) (2008)
Highlights the principle of parliamentary sovereignty - states that this is founded upon the legitimacy and authority of parliament due to their representative character.
Dicey - the law of the constitution (1885)
1. Positive Limb - parliament have the power to make or unmake any law that they see fit.
2. Negative Limb - No other source of law can challenge the legality of an Act of Parliament other than a subsequent act of parliament.
3. Parliament cannot bind their successors
Madzimbamuto v Lardner-Burke (1969)
Lord Reid - parliament can do things that are moral, politically and constitutionally wrong, however it is not beyond their power to do it.
R v Secretary of State for the Environment, ex p Hammersmith and Fulham LBC (1991)
Highlights what is to be considered an Act of Parliament and that this will be supreme - an act that has gone through the debate and decision in both readings, as well as the committee, report, third reading and royal assent.
Stickdale v Hansard (1839)
Highlights how the HoC is only a component element of Parliament.
Jackson v Attorney General (2005)
Highlights that we have an alternative legislative process:
Parliament Act 1911 - allowed acts to be passed without the HL.
Parliament Act 1949 - passed through the use of the Parliament Act 1911 - this act further reduced the amount of time that the HL could delay an Act before the HC could pass without their assent.
There was contention whether the Hunting Act could be passed using the 1949 Act - it was held that they could.
Burmah Oil Company v Lord Advocate (1965)
Highlights how PS can sometimes be used immorally - this case stated that the government would have to pay compensation for damage done during the war. However, the Government frustrated this by passing retrospective legislation in the form of the War Damages Act 1965 which stated that they did not have to pay any compensation for anything done during the war.
Chney v Conn (1968)
Highlights he view that it did not matter what the act of parliament conflicted with - it would have to be applied in this country.
R v Lyons (2002)
Highlights that if an Act of parliament conflicted with international law, the courts would still have to apply it
Statute of Westminster 1931
This statute gave independence to the Dominions - this could, in theory, be repealed, however, there are too many political and moral objections that this would be virtually impossible.
Blackburn v Attorney-General (1971)
Highlighted that although granted power to the Dominions and meant that acts of Westminster did not apply (in contravention with Dicey's 3rd limb) this could, in theory, be revoked by a subsequent Act of Parliament. Denning in his dissent highlights that in the real world PS doesn't really work because there are practical obstacles that mean parliament can be bound - they can't politically and morally repeal the Westminster Act but theoretically, it is not beyond their power.
Vauxhall Estates v Liverpool Corporation (1932)
Highlights the principle of implied repeal - the Aquisition of Land Act was impliedly repealed by the Land Act 1925 - held that there was an implied repeal of the conflicting provision.
Ellen Street Estates v Minister of Health (1934)
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Vauxhall Estates v Liverpool Corporation (1932)
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R v Lyons (2002)
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The case of prohibitions (1670)
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Lord Diplock (1975) - speaking extra-judicially
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Lord Diplock (1975) - speaking extra-judicially
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Lord Diplock (1975) - speaking extra-judicially
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