Public Law Cases

Jackson v AG

Hunting Act 2004 introduced using the Parliament Act 1949
1949 Act used to amend 1911 Act

Was the Parliament Act 1949 secondary legislation and therefore legal?

Yes, Parliament Acts could be considered 'enacted law'
Therefore the Hunting Act was legal

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Pickin v British Railway Board

Lord Simon: “the courts in this country have no power to declare enacted law to be invalid”
The House of Lords held that courts had to consider and apply Acts of Parliament
Thus, the validity of an Act could not be lawfully attacked by claiming that Parliament was misled (either by fraud or otherwise) during the course of the enacting of a piece of legislation

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Factortame

Merchant Shipping Act 1988 required most of a ship's owners to be of British nationality
This contradicted European Communities law
In the event of incompatibility between domestic and EC legislation, where the EC has competence, their laws shall have supremacy
Goes against the concept of Parliamentary sovereignty

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Thoburn v Sunderland City Council

“We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes”
Examples given by Laws LJ: The Magna Carta, European Communities Act 1972, etc.
Constitutional statutes are not assumed to be impliedly repealed
The idea of constitutional statues is one derived from the common law

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Miller

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Burmah Oil Co v Lord Advocate

The claimant, Burmah Oil Company, brought proceedings against the UK government seeking compensation for the destruction of oil fields in Burma by British forces in 1942 (during the Second World War)
The destruction had been considered necessary to prevent the installations from falling into the hands of the Japanese, which would have been devastating to the Allies' war effort.
The House of Lords held that 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
"The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute."

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BBC v Johns

"But it is 350 years and a civil war too late for the Queen's courts to broaden the prerogative.
"The limits within which the executive government may impose obligations or restraints upon citizens of the UK without any statutory authority are now well settled and incapable or extension."
No new prerogatives after 1689

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AG v De Keyser's Royal Hotel

Considered the circumstances in which statutes may operate to restrict prerogative powers
"there is no room for asserting an unrestricted prerogative right as existing alongside with the statutory powers authorising the Crown to acquire on certain terms."
Lord Parmoor: "the executive no longer derives its authority form the Royal Prerogative of the Crown but from Parliament"
Lord Dunedin: "if the whole ground of something which could be done by the prerogative is covered by the statute it is the statute that rules"

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Ex parte Fire Brigades Union

It is for Parliament, not the executive, to repeal legislation
Cannot reassert prerogative powers after being put into abeyance (suspension) by legislation
The constitutional history of this country is the history of prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body

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Laker Airways v Department of Trade

“Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any discretionary power which is vested in the Executive”
Provides that a prerogative could not be used to defeat a right granted under a statute

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CCSU v Minister for the Civil Service (GCHQ Case)

Prerogative powers such as treaties and going to war are not susceptible to judicial review because their nature and subject matter is such as not to be amenable to the judicial process

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Entick v Carrington

An individual has the right to prevent access to his land to anybody unless the access is granted by the law
It is only if the law permits an agent of the state to do something on the land of an individual that they will be able to do so
If the law is silent, any entry onto the land is a trespass
The state is therefore subject to the same position on trespass as would be the case for an individual
Any entry onto land without licence of the landowner is forbidden

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Brind v SSHD

Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speeches by representatives of proscribed terrorist organisations
Appellants argued that the restrictions were ‘unreasonable’ or irrational under the principles established by the British administrative law
Appellants also argued that they were a breach of Article 10 ECHR – freedom of expression
Lord Bridge: “… it is already well settled that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the convention, the courts will presume that Parliament intended to legislate in conformity with the convention, not in conflict with it.”

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Bellinger v Bellinger

A post-operative transgender woman challenged s11 of the Matrimonial Causes Act 1973 which stated that marriage is void is “the parties are not respectively male and female”
She argues that “female” should be interpreted as including her and other post-operative transsexuals
Claimed a breach of Article 8 ECHR (privacy and family life)
Section 4 declaration of incompatibility issued rather than section 3 used
“It may also be that there are circumstances where maintaining an offending law in operation for a reasonable period pending enactment of corrective legislation is justifiable.”

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Ghaidan v Godin-Mendoza

On the death of a protected tenant, the surviving spouse (if then living in the house) becomes a statutory tenant by succession
Rent Act 2977 allowed a person living “as his or her wife or husband” to also succeed to a tenancy
Mendoza lived with his gay partner for 18 years in a stable, monogamous relationship
The landlord (Ghaidan) sought to evict Mendoza after the death of his partner on the ground that he was not entitled to the tenancy because he was not living with his partner “as his or her wife or husband”
Claimed a breach of Article 8 ECHR read in conjunction with Article 14 (prohibition of discrimination)
Housing Act 1998 provided that the spouse of a tenant would become the statutory tenant on the original tenant’s death provided that, immediately prior to the tenant’s death, they had been living with the tenant “as his or her wife or husband”.
In order to arrive at a Convention compliant meaning it was necessary effectively to treat the words “wife or husband”….as if they meant “partner”, so that single-sex couples would not suffer discrimination contrary to the Convention

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R v A (Complainant's Sexual History)

S41 Youth Justice and Criminal Evidence Act 1999 forbade any evidence to be given in a **** trial of the woman’s sexual history, including any previous sexual history with the alleged ******, save in very limited circumstances
Question raised as to the compatibility of these provisions with Article 6 ECHR (Right to a fair trial) and Article 6.3(d) (to examine witness)
HRA s3 used
The HoL somehow managed to read/reinterpret section 41 as to include a proviso (condition), that the prohibition on the introduction of such evidence was subject to the right to a fair trial
“A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so.”

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R (Anderson) v SSHD

Crime Sentences Act 1997 provides Home Secretary with the power to set minimum time which a mandatory life sentence prisoner must serve in prison before being eligible for parole
Claimant argued a breach Article 6 as the process did not amount to a hearing conducted ‘by an independent and impartial tribunal established by law’
Lord Bingham said that to seek to use section 3 of the HRA as a basis for conferring that function on judiciary [as required by Article 6 of the ECHR] would “not be judicial interpretation but judicial vandalism”. Hence a declaration of incompatibility was made
Section 4 declaration of incompatibility
Suggests courts are moving away from the expansive use of s3

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R (Nicklinson) v Ministry of Justice

S2 of the Suicide Act 1961: makes it a criminal offence for a person to assist or encourage the suicide of another Claimant suffered from physical disabilities but was of sound mind
The claimants sought declarations:
- That those who assisted them to die would not be subject to criminal proceedings
- That, alternatively, the law of murder/ assisted suicide was incompatible with Act 8 ECHR for rendering assisting/ encouraging suicide in the circumstances of a crime
Lady Hale and Lord Kerr (dissenting): Current law is incompatible with Article 8
Lord Neuberger: “It would be inappropriate to issue a declaration of incompatibility at the present time. There are a number of reasons which, when taken together, persuade me that it would be institutionally inappropriate at this juncture for a court to declare that s2 is incompatible with article 8, as opposed to giving Parliament the opportunity to consider the position without a declaration:
1. Question is a difficult, controversial and sensitive issue with moral and religious dimensions. It undoubtedly justifies a relatively cautious approach from the courts.
2. Incompatibility is not simple to identify and simple to cure. It would require much anxious consideration from the legislature. The courts should therefore also take matters slowly.
3. S2 has been considered on a number of occasions in Parliament. The legislature is actively considering the issue.”

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Parochial Church Council of Aston Cantlow v Wallba

Wallbanks claimed a breach of Art 1 of Protocol 1 ECHR (respect for private property)

Court of Appeal:
- PCC was a public authority as possessed powers that private individuals did not have to determine how others should act
- Notice of Repair had statutory force under the Chancel Repairs Act 1932, so it was backed up by statute

House of Lords upon appeal:
- HL held unanimously that the PCC was not a core public authority and by a majority (Lord Scott dissenting) that it was not a hybrid public authority
- HL laid down 3 key features of ‘core public authorities’:
1. They are governmental bodies created and controlled to serve the public interest
2. They must comply with the Convention in everything they do, whether public or private activity
3. They have no Convention rights of their own and cannot therefore bring Convention-based claims in Strasbourg or in domestic law
A core public authority cannot be a victim

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Poplar Housing v Donoghue

Applicant challenged possession order as a violation of ECHR, to succeed needed to establish that Poplar HARCA was a hybrid public authority
Court of Appeal identified 7 factors that were relevant to its decision:
-      Would the body be regarded as subject to judicial review?

-      Primary public duty (to provide housing) remains with the local authority

-      Providing accommodation is not a public function

-      Poplar being a charity does not point towards this being a public function

-      Is there anything that imposes a ‘public character’ to the act?

-      The closeness of the relationship between the Council and Poplar Housing

-      The position of the tenant under the arrangement to transfer housing stock

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YL v Birmingham City Council

YL concerned a local authority which was required to arrange residential care and accommodation for the appellant, and 84-year-old Alzheimer’s patient
Contracted with Southern Cross Healthcare to provide accommodation on its behalf
Southern Cross then sought to exercise its contractual right to evict YL from the care home after complaints of disruptive behaviour from her family during visits
YL claimed a breach of Article 8 and her right to a home life
HL held by a bare majority that Southern Cross was not performing a public function under s6(3)(b) when providing care and accommodation
Lord Neuberger: The provision of care and accommodation would be a private function if performed pursuant to an ordinary contractual agreement.
He then reasoned that the nature of the function could not be altered by the mere fact that the services were paid for by the local authority
The function of providing care and accommodation should have been regarded as public under s 6(3)(b) because Parliament had assumed responsibility for caring for the elderly and vulnerable by creating a framework for doing so using the National Assistance Act 1948
Parliament subsequently passes s145 Health and Social Care Act 2008, superseded by s78 Care Act 2014

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Huang v Secretary of State for the Home Department

Lord Bingham:
"There will, in almost any case, be certain general considerations to bear in mind:
- The general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another;
- The damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory;
- The need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on…
The giving of weight to factors such as these is not, in our opinion, aptly described as deference"

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R (Pro-Life Alliance) v BBC

Pro-Life Alliance was a registered political party that sought to air a party election broadcast ("PEB") during the 2001 General Election
The BBC and other broadcasters refused to air the PEB, as they considered it to contravene the statutory prohibition against programmes which offended against ‘good taste and decency’
The PEB contained shocking and explicit footage of abortions being carried out
The Court of Appeal upheld the challenge, and the BBC appealed to the House of Lords
The House of Lords ruled as follows:
- Parliament had decided that the taste and decency standards should apply to PEBs;
- It was primarily for the BBC, as the expert body, to determine when those standards would be breached by a particular broadcast;
- The courts should defer to that judgment unless obviously wrong.
Court of Appeal overturned and the initial decision of the broadcasters was upheld
Criticism by Phillipson:
- House of Lords confused two separate questions:
- The level of offence that the broadcast was likely to cause (a factual assessment);
- and whether this level of offence justified an interference with the applicant’s Article 10 rights (a legal and normative consideration)
- Courts should only defer on the first question

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Belmarsh

Applicants detained indefinitely without trial under s23 Anti-terrorism Crime and Security Act 2001; the power applied only to non-British nationals
AG argued that the court should defer generally to the government as to the necessity of the act in issues of national security and on emergency powers
2 questions to be decided:
- Did a state of emergency exist ‘threatening the life of the nation’ under Article 15 ECHR?
- If so, were the measures taken ‘proportionate to the exigencies of the situation?
House of Lords (majority):
- Deferred widely on the question as to the existence of a state of emergency; however, they then proceeded to scrutinise closely the proportionality of the measures in question
- Question as to the existence of a state of emergency was considered to be one which the executive was best placed to evaluate
- The measures, however, were found to be not proportionate to the exigencies of the situation
- The discrimination between British and non-British nationals could not be considered to be ‘rationally connected to the objective’
- Result: HoL issued a section 4 declaration of incompatibility. Applicants were therefore not released but were detained until Parliament enacted the Prevention of Terrorism Act 2005 and introduced ‘control orders’

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Re E (A Child)

Issue:
- Whether police failed in their duty to protect the school children and their parents from “protests” and blockades attempting to prevent them from attending school
- Positive obligation under Article 3 ECHR on the state to prevent individuals from being subjected to inhuman and degrading treatment
- Should the courts defer to the Police’s assessment as to the adequacy of the measures provided?

Lord Carswell on the expertise of the police:
- The police had such responsibility and were uniquely placed through their experience and intelligence to make a judgment on the wisest course to take in all the circumstances
- They had long and hard experience of the problems encountered in dealing with riotous situations in urban areas in Northern Ireland
- The difficulty of catching and arresting malefactors who had means of retreat available through paths and gardens are self-evident
- The police had available to them sources of information about what was happening in the community and what was likely to happen if they took certain courses of action, which they were experienced in assessing
- In my judgment the evidence supports the overall wisdom of the course which they adopted

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The 'Fleet Street Casuals' Case

This case significantly liberalised the law on standing, establishing the following:
- 1) The question of standing is a ‘live’ issue both at the preliminary stage (the leave stage), and at the full hearing where entitlement to a particular remedy is at issue
- 2) Standing is not limited to a person whose legal rights are impacted upon by the act or decision in question
- 3) (According to the majority) ‘sufficient interest’ depends on the nature of the interests relevant to the law under which the act is performed/the decision is made

In this case the applicants failed as they were challenging a tax-related decision by the Inland Revenue, and the Court considered that a taxpayer’s affairs are confidential and not the concern of other taxpayers

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Ex Parte Rose Theatre Trust

Claimant company was formed for the purpose of preserving the remains of Shakespeare's Rose Theatre and sought judicial review of the government's refusal to put the remains on protected status
Although permission was granted to it, it was then found to lack standing in the subsequent hearing
Schiemann J: "It would be absurd if two people, neither of whom had standing... incorporated themselves into a company which thereby obtained standing"

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Ex Parte Greenpeace (No.2)

Greenpeace sought to challenge a decision to allow a nuclear reprocessing plant to open in spite of safety concerns
Greenpeace was found to have associational standing
The court was swayed by the fact that 2500 of Greenpeace's supporters came from afflicted areas which claimed a danger to health on account of the proposed disposal of radioactive waste
The court noted Greenpeace's 'experience in environmental factors' and its 'access to experts in the relevant realms of science and technology (not to mention the law)', which entailed that it was 'able to mount a carefully selected, focused, relevant and well-argued challenge'

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Ex Parte World Development Movement

Issue concerned aid money being given for the development of the Pergau Dam in Malaysia
The court found that WDM had standing - they adopted flexible analysis, taking into account factors including:
- The importance of vindicating the rule of law
- The importance of the issue raised
- The likely unavailability of any other reasonable challenger
- The nature of the breach of duty against which relief is sought
- The prominent role and expertise of WDM in providing advice, guidance and assistance with regard to aid

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Lees v Secretary of State for Social Services

Persons entitled to a mobility allowance were those who "were unable to walk or virtually unable to walk"
This does not mention persons "who are unable to walk unaided"
Blind appellant denied appeal due to fact that they would still walk, even if they needed assistance doing so

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Ex Parte Shine

"Householder... directly responsible for household necessities and rent"
"It is plain that Parliament intended that the Supplementary Benefits Act 1996 should be administered with as little technicality as possible."
"It should not become the hunting ground of lawyers"
"The courts should not enter into a meticulous discussion of the meaning of this or that word of the Act.
"They should interpret... the Act in a broad and reasonable way according to the spirit and not to the letter"

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Pepper v Hart

The House of Lords relaxed the general rule which precluded reference by the courts to statements made by Parliament for the purpose of construing a statutory provision
Only permissible if all of the following are satisfied:
- a) The legislation was ambiguous/obscure/lead to an absurdity; and
- b) The material relied upon consisted of one or more statements by a minister or other promoter of the Bill together, if necessary, with other such parliamentary material as might be necessary to understand such statements and their effect; and
- c) The effect of such statement(s) was clear

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Ex Parte Zamir

Concerned immigration power to detain and remove Zamir from the UK
Needed statutory basis for this, which depended on Zamir being an illegal immigrant to the UK
- Depended upon the allegation that Zamir had gained entry to the UK through fraud
The approach adopted here to deciding whether the fact that a person was an "illegal immigrant" was indeed a precedent fact, involves looking at the practicalities of the court carrying out the role of assessing the factual matrix in question, rather than a close examination of the statute itself
Lord Wilberforce's conclusion that all the court could do was decide whether there was evidence reasonably to arrive at the decision, is simply a restatement of something which always applied to factual determinations, that is to say that they are not unreasonable, or based on no evidence

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Ex Parte Khawaja

Overturned decision made in ex parte Zamir
The fact that power triggered involved a deprivation of liberty meant the court must inquire into the correctness of the factual circumstances which gave rise to the authority to exercise the power

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Ex Parte Fewings

There are three categories of consideration:
- 1. Those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard should be had
- 2. The equally clearly identifies by the statute as considerations to which regard must not be had
- 3. Those to which the decision-maker may have regard if in his judgement and discretion he thinks it right to do so

There is, in short, a margin of appreciation within which the decision-maker may decide just what considerations should play a part in his reasoning

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Associated Provincial Picture Houses v Wednesbury

Lord Green: "Decisions which are so unreasonable that no reasonable authority could possibly have come to it"
Lord Green: “It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming…"

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R (Daly) v SSHD

The doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within range of rational or reasonable decisions
The proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations
Even the heightened scrutiny test in ex parte Smith is not necessarily appropriate to the protection of human rights

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Ex Parte Smith

The case concerned gay woman in air force being intimately questioned about her private life
"When the most fundamental rights are threatened, the Court will not, for example, be inclined to overlook some perhaps minor flaw in the decision-making process or adopt a particularly benevolent view of the Minister's evidence or exercise its discretion to withhold relief."
Therefore declared Wednesbury unreasonable and overturned

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Lingens v Austria

Lingens was fined for publishing in a Vienna magazine comments about the behaviour of the Austrian Chancellor, such as 'basest opportunism', 'immoral' and 'undignified'
Under the Austrian criminal code, the only defence was proof of the truth of these statements
Lingens could not prove the truth of these value judgments
The Court concluded that this post-publication action did constitute interference with the right to freedom of expression as the imposition of the penalty was a form of censure, which would be likely to discourage Lingens from making criticisms of that kind again in the future

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Sunday Times v United Kingdom

Sunday Times appealed against an injunction to cut an article out of their newspaper
They argued that it violated their freedom of expression
In this case, the court explained that applying the necessary in a democratic society test does not involve “a choice between two conflicting principles but [rather there is] a principle of Freedom of Expression that is subject to a number of exceptions which must be narrowly interpreted”
The following terms are the two requirements for the expression "prescribed by law":
- Accessibility
- Precision and clarity

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Re S and Re W (Minors)

Reversed the decision of the Court of Appeal in Re W and B (Children: Care Plan)
Question as to whether the Court of Appeal was correct in reading into the Children Act 1989 the power to makes ‘starred’ care plans using s3 HRA so as to make the Children Act 1989 compliant with Article 6 (fair trial) and Article 9 ECHR (right to privacy and family life)
Court of Appeal overturned; no breach of Article 6 or 8 was found

Children Act 1989 approved of care orders in relation to 'at risk' children
It was an essential feature of the scheme that, once the order had been approved by the Court, the Local Authority was responsible for its implementation
There was no facility for the Court to carry out ongoing supervision of the implementation of the order once it had approved the order itself
Lord Nicholls: “a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.”

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