Term
| Thoburn v Sunderland City Council [2003] (OBITER DICTUM – re: identifying constitutional Acts) |
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Definition
C was a campaigner against the imposition of metric measurement system
C claimed that the Act which banned the use of imperial measures was done under powers granted by the 1972 EEC Act, however, C claimed that the 1972 EEC Act had been impliedly revoked by an Act in 1985
Therefore, C argued, the Act banning the use of the imperial system was invalid
Judge ruled against C |
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Term
| R v Chaytor and Others [2010] |
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Definition
| Example of Judiciary being involved in determining scope of a Parliamentary custom |
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Term
| Stockdale v Hansard [1839] |
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Definition
C sued for libel in respect of the contents of an official parliamentary report
D claimed Parliamentary privilege
Court ruled in favour of C
CONSTITUTIONAL DECISION – PARLIAMENT CAN LIBEL AN INDIVIDUAL (CONCERNS THE POWER OF PARLIAMENT) |
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Term
| Council of Civil Service Unions v Minister for the Civil Service [1985] |
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Definition
Margaret Thatcher issued a rule which would effectively ban Civil Servants from being members of a Trade Union
The CCSU brought a case, and the key issue became... ‘can the courts review/question the exercise of prerogative power
Landmark decision... the courts CAN question the exercise of prerogative power (subject to some exceptions)
CONSTITUTIONAL – individuals, through the court system, can challenge prerogative power... swing of power to individuals v the state |
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Term
| R v Secretary of State for Transport ex p Factortame (No.2) [1990] |
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Definition
UK provisions for the registering of fishing vessels within British territory changed, resulting in a group of predominantly Spanish Managed & Manned vessels being put at a disadvantage
Spanish vessels brought an action that this was in contravention with EU law
While the UK Courts were deciding the case, the Court of Appeal and the Supreme court decided not to offer the ‘Spanish’ vessels any interim relief
Question as to whether EU law obliged national courts to provide interim relief was forwarded to ECJ, who ruled that... ‘in a case concerning EU law, if a national court considered that the only obstacle which precluded it from granting an application of interim relied was a rule of national law, that law [the rule of national law] should be set aside’
Debate within UK as to whether ECJ ruling could overturn UK law...
RULING (made in UK by a Br judge)– The UK had voluntarily limited some of its sovereignty in passing the ECA 1972 |
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Term
| A and others v Secretary of State for the Home Department [2004] |
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Definition
UK passed an Act allowing for the detention of suspected international terrorists without charge or trial
S23 of this Act was in contravention with Art5 of the ECHR (and under HRA 1998 could be ‘picked-up-on’ by the courts)
UK issued a derogation from Art5, in order to allow the Act to pass
House of Lords (Supreme Court) ruled that the derogation did not satisfy the criteria for such a derogation to be issued
Derogation order was quashed, allowing the Courts to issue a declaration of incompatibility between s23 of the Act and the ECHR |
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Term
| Liversidge v Anderson [1942] |
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Definition
| Further example of courts recognising & considering conventions (allowing them quasi-legal status), but not identifying them as legally enforceable in themselves (Attorney-General v Jonothan Cape + Constitution of Canada) |
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Term
| Carltona v Commissioner of Works [1943] |
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Definition
| Further example of courts recognising & considering conventions (allowing them quasi-legal status), but not identifying them as legally enforceable in themselves |
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Term
| Attorney-General v Jonothan Cape Ltd. And Others [1976] |
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Definition
SUGGESTION THAT CONVENTIONS MAY BE GIVEN A QUASI-LEGAL EFFECT (THROUGH BEING BOURN IN MIND WHEN MAKING JUDGEMENTS)
Former Cabinet Minister (Crossland) died and appointed a number of literary executors to publish a book he had written – book contained information from confidential Cabinet meetings
Some of the literary executors (+ other parties e.g. Attorney-General) did not want to publish the book, because it broke a convention (derived from the conventions of Collective ministerial responsibility) that certain confidential information from Cabinet meeting should not be published until it became ‘historical’, otherwise it would undermine the convention of ministerial responsibility
D argued that whilst the convention the C’s were basing their claim on was true/existed, there was no obligation enforceable in law to prevent the publication of Crossland’s memoirs... ‘the publication of these Diaries is not capable of control by any order of the court’
Judge ruled against the C... however...
Whilst the judge stated that he could not use the convention in its own right, he did feel able to use its existence to assist in the development of the common law duty of confidence (in particular, the judge considered the reason for the convention)
This seems to suggest that a convention could be given a quasi-legal effect, where the claimant can find an existing ‘cause of action’ that can be enlarged or developed to incorporate the convention rule |
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Term
| Reference re Questions Concerning Amendment of Constitution of Canada |
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Definition
Conventions cannot be crystallized into law
A convention had developed which stated that if the federal government of Canada wanted to enact legislation that amended the power balance between federal and provincial governments in Canada, it would have to seek the consent of the provincial governments first
(the procedure in Canada was that federal governments would forward proposed Bills to Westminster & they would debate its enactment – so when I say ‘Canada wanted to enact’, I mean ‘Canada wanted to enact through forwarding a proposal to Westminster’
CASE ISSUE = Canadian federal government wanted to enact such a bill, but had not acquired the consent of provincial governments...
Provincial governments put forward the argument that – ‘#a convention may crystallize in to law’ – and thus, the convention concerning their consent was enforceable in law
JUDGE RULING RE: CONVENTIONS CRYSTALLIZING IN TO LAW – ‘In our view, this is not so. No instance of an explicit recognition of a convention as having matured into a rule of law was produced. The very nature of a convention, as political in inception... is inconsistent with its legal enforcement’ |
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