Key Cases: Constitutional and Administrative Law

Joanne Coles

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781444171662
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Key Cases is the essential series for anyone studying law, including A Level, LLB, ILEX and post-graduate conversion courses. Understanding and memorising leading cases fully is a vital part of the study of law - the clear format, style and explanations of Key Cases will ensure you achieve this. Key Cases provides the simplest and most effective way for you to memorise and absorb the essential cases needed to pass your exams. Key Features:
* All essential and leading cases explained
* User-friendly layout and style
* Cases broken down into key components by use of a clear symbol system Additional high-quality revision material is provided on the interactive website:
www.unlockingthelaw.co.uk

Chapter 1

The Sources of Constitutional Law –

Statute, Common Law and Conventions

Note: for the Royal Prerogative, see Chapter 5

1.1 The Relationship between Statute and Common Law

HL	Burmah Oil v Lord Advocate [1965] AC 75 HL

	In 1942, British forces destroyed the company’s oil installations in Rangoon to prevent advancing Japanese forces from gaining control of them. The British Government made an ex gratia payment of £4 million to the company in compensation. The company sued the government for £31 million in compensation.
	The House of Lords held that compensation was payable by the Crown for the destruction of property caused by exercise of the royal prerogative in relation to war (see Chapter 5).
	The Government immediately introduced the War Damages Act 1965. This statute retrospectively nullified the effect of the decision. This case therefore clearly demonstrates the subordination of the judiciary to Parliament because of the doctrine of parliamentary supremacy – statute overrides common law and Parliament has such legislative competence it can legislate retrospectively (see Chapter 3).
	See Phillips v Eyre (1870) LR 6 QB 1 in Chapter 2 at 2.1.

1.2 Ordinary Statutes and Constitutional Statutes

CA	Thoburn v Sunderland City Council [2002] 1 CMLR 50

The Weights and Measures Act 1985 authorised the use of both metric and imperial measures for the purposes of trade. Subsequent regulations made under s 2(2) of the European Communities Act 1972 prohibited the use of both and gave priority to the metric system. It was argued that the 1985 Act had impliedly repealed s 2(2) of the 1972 Act and should therefore take precedence (for Key Cases on implied repeal, see Chapter 3).

The court held that there was no inconsistency between the 1985 and 1972 Acts, so there was no need to discuss the doctrine of implied repeal. However, Laws LJ stated that there should be recognition of a hierarchy of statutes with there being two types – ordinary and constitutional statutes. A constitutional statute would affect the legal relationship between the individual and the State in some general, overarching manner or would enlarge or diminish the scope of fundamental constitutional rights. In his opinion, Laws LJ considered the following as examples of constitutional statutes: Magna Carta 1215, the Bill of Rights 1688, the Act of Union, the Reform Acts extending the franchise, the Human Rights Act 1998, the Scotland Act 1998, the Government of Wales Act 1998 and the European Communities Act 1972.

Constitutional statutes, according to Laws LJ, should not be subject to implied repeal because they protect the special status of constitutional rights. Instead, such statutes are subject only to express repeal.

Laws LJ

‘We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.’

‘Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statutes, the court would apply this test: is it shown that the legislature’s actual … intention was to effect the repeal or abrogation? I think that this could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes.’

Traditionally, the UK’s uncodified constitutional system has not recognised any distinction between different statutes – each is passed using the same process, so no Act of Parliament has any formal special status. In traditional constitutional terms, no Act can be entrenched in that all Acts are subject to implied repeal. However, the courts have for some time considered the European Communities Act 1972 as having a special legal status in that implied repeal does not apply to it (see Chapter 7). The passing of the significant Human Rights Act 1998 has opened up the debate as to whether other statutes are so constitutionally significant that they cannot be impliedly repealed. The comments of Laws LJ in this case support this conclusion; however, this is yet to be commented on by the House of Lords.

For Key Cases on parliamentary supremacy and implied repeal, see Chapter 3.

For Key Cases on the special legal status of the European Communities Act 1972, see Chapter 7.

1.3 Conventions

QBD	AG v Jonathan Cape Ltd [1976] QB 752

The executors of Richard Crossman’s (a former Cabinet Minister’s) estate wished to publish his diaries. The diaries included Cabinet discussions. Under the convention of collective ministerial responsibility, such matters are confidential ...