Public Law - Sources of UK Constitution III - Case Law I (Common Law)

  • Created by: Alasdair
  • Created on: 12-11-20 20:20
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  • Sources of UK Constitution III - Case Law I (Common Law)
    • Actions of the State must have legal authority
      • Established through common law actions taken by state officials (such as police officers) must have legal basis if they are to be lawful
        • Links to principle of rule of law
      • Entick v Carrington [1765] 19 St TR 1030
        • Secretary of State issued general warrant for arrest and search of Entick
          • Entick allegedly publishing seditious material
        • Court found no legal authority enabling Secretary of State to issue such general warrants and any authority for lawful exercise of power by state had to be found 'in the [law] books. If it not to be found here, it is not law'.
        • Case established
          • principle state officials could not act in an arbitrary manner and exercise of power by state had to have clear legal authority.
          • Law did not provide state officials with any form of exemption or 'get out' from legal accountability for  their actions.
    • Legal disputes should be resolved by judiciary
      • Case of Prohibitions (Prohibitions del Roy) (1607) 12 Co Rep 63
        • Early example of common law setting out constitutionally important principle
        • Concerned dispute over land which King sought to settle by making ruling
        • Court held monarch had no power  to decide legal matters by way of arbitrary rulings
          • Legal disputes should properly by resolved by Courts
        • Lord Coke ruled
          • King couldn't judge any case
          • Court must deterine cases
      • Another aspect of rule of law
    • Habeas corpus and individual liberty
      • Remedy of habeas corpus
        • individual who has been detained by state has right to have legality of detention tested before court
        • developed originally through common law
      • A and others v Secretary of State for the Home Department [2005] 2 AC 68
        • Example of case law setting out principles of constitutional importance
        • Belmarsh
        • Provisions in Anti-terrorism, Crime and Security Act 2001 challenged
          • Act permitted foreign nationals suspected of being involved in terrorist activities (but against whom there was insufficient evidence to bring criminal proceedings) to be detained indefinitely without trial.
        • House of Lords held such detention was unlawful and breach of ECHR
    • Right to fair hearing
      • Courts have repeatedly stressed importance of right as fundamental constitutional principle
      • Important part of rule of law
      • Also contained in Article 6 of ECHR
        • Now forms part of UK Law following Human Rights Act 1998
    • Parliamentary supremacy
      • Common Law doctrine accepted by judiciary
      • Edinburgh and Dalkeith Railway Co v Wauchope and Pickin v British Railways Board
        • Developed and applied common law 'Enrolled Act' rule at centre of Parliamentary supremacy
          • States once Act of Parliament has entered onto Parliamentary roll, courts will not question validity of Act or hold Act to be void.


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