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Source: Judicial Decisions

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  • judicial role in developing constitutional principles: applying the common law and interpreting legislation
  • seen particularly in relation to decisions on meaning of European Communities Act 1972 and Human Rights Act 1998

Common Law

  • role in upholding principle of rule of law and importance of individual freedoms, especially from State interference

Legal Basis

  • those acting as agents of State must act lawfully, can only take actions which have a proper legal basis
  • established in common law and related to concept of rule of law

    Entick v Carrington (1765)

    • D had broke into P's premises and seized some papers
    • P brought an action for trespass
    • D argued he had acted on warrant authorised by Government Minister
    • Court decided warrant was illegal as Minister had exceeded his authority
    • Lord Camden: .. By the law of England, every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my property without my licence, but he is liable to an action though the damage be nothing...
    • illustrates how courts can provide a limitation to State power

Legal Disputes

  • disputes should be arbitrated by a court is another key element of the rule of law

    Case of Prohibitions (1607)

    • King James I placed himself in the position of judge for a dispute
    • court overturned the decision and found King had no power to make such a decision
    • held legal matters can only be properly heard by courts, subject to the rule of law

Judicial Review

  • courts have developed judicial review procedure to keep check on executive and legislative power
  • to ensure the rule of law, judges can review whether government ministers, local authorities and public bodies have acted within their powers
  • can also be used to ensure rules of procedural fairness are followed, linked to concept of natural justice
  • means decision makers must be free from bias and in a hearing needs to be an opportunity for each party to bput forward their case and dispute their opponent

Protection of Rights

  • premise of common law is that a citizen is free to do as he wants unless the law explicitly prohibits
  • Human Rights Act 1998 provides additional positive protection of rights

Habeas Corpus

  • procedure to challengelawfulness of an individual's detention in a court
  • right developed from a common law principle is now enshrined in legislation
  • article 5 (right to liberty and security of the person) of European Convention on Human Rights, incorporated into UK law by Human Rights Act 1998
    A and Others v Secretary of State for the Home Department [2005]
    • D detained several people, suspected of terrorist related activities, in Belmarsh Prison without charge
    • D was found in breach of Article 5
    • Baroness Hale: ..It is not for the executive to decide who should be locked up for any length of time, let alone indefinitely... executive detention is the antithesis of the right to liberty and security of the person...

Parliamentary Sovereignty

  • supremacy of Parliamentary is a common law doctrine developed by the courts

    Jackson v Attorney General [2005]

    • Lord Steyn: .. the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle...

Judicial Interpretation

  • historically doctrine of Parliamentary Supremacy meant not usually possible to challenge the legality of an Act of Parliament
  • situation been modified slightly by Human Rights Act 1998 which allows courts to declare Acts incompatibile with certain rights in the European Convention on Human Rights
  • courts main function is to interpret Acts of Parliament, in accordance with the idea of the separation of powers role to try to establish intention of Parliament in passing an Act and rule on that basis
  • despite courts being limited to the role of interpretation, decisions can still be constitutionally significant

    R v. Secretary of State for Transport ex parte Factortame Limited (No 2) [1991]

    • House of Lords suspended operation of provisions in Merchant Shipping Act 1988 which conflicted with EU law
    • because European Communities Act 1972 gave EU law primacy
    • Lord Bridge: .. whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary...
  • no formal distinction between constitutionally significant legislation and other statutes
  • suggested some should be considered constitutional statutes
  • courts should presume Parliament does not intend to repeal these Acts unless it does so expressly

    Thoburn v Sunderland City Council [2003]

    • classified European Communities Act 1972 as a constitutional Act
    • Lord Justice Laws: .. [constitutional Acts are those which] ( a) conditions the relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental rights...

Presumptions of Statutory Interpretation

  • in determining the meaning of statutes courts will make some general presumptions
  • separation of powers: taxation presumption (taxes must be authorised by Parliament) and access to court presumption (courtsdecide legal disputes)
  • rule of law: presumption against uncertain laws and retrospective penalties(no punishment except for a distinct breach of law)
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