Constitutional cases

MacCormick v Lord Advocate [1953] - A case against Queen Elizabeth II being called 'Queen of Great Britain' as it implied that Queen Elizabeth I had also been. when she was only 'Queen of England'. Wanted to challenge the fact that the principle of the unlimited sovereignty of Parliament was a distinctively English principle that had no counterpart in Scotland.

Thoburn v Sunderland [2003] - D, a greengrocer, sold bananas by the pound, contrary to the Weights and Measures Act 1985. A provision known as a 'Henry VIII' clause was contained in the Weights and Measures Act 1963, s.8(2) which conferred power on a subordinate body to amend the statute itself. To sell by the pound was lawful under the Act, but it had been amended because of a European Directive which said that only metric units could be used. It was held that the WMA 1985 did not impliedly repeal s.2(2) of the ECA 1972. There was no inconsistency between a provision conferring a Henry VIII power to amend future legislation. Moreover, s.2(2) of the latter Act read with s.2(4) permitted Parliament to delegate the power to amend primary legislation and on its face allowed amendments of the kind made the 1985 Act.

Ridge v Baldwin [1964] - A person subject to disciplinary procedures has a right to contest the facts or present a defence - this is natural justice or procedural fairness.

Cooper v Wandsworth County Council [1863] - P built a house without consent, so D knocked it down -- "although...no positive words in statute...the justice of the common law will supply the omission of the legislature".

Entick v Carrington [1765] - Concerning the validity of a search and seizure document. There was no legal authority for this warrant to be issue to seize an individual's papers which spoke ill of the government. The government cannot make law to suit themselves, and the law that is made must be distinct from government interest or policy.

Customs & Excise Commissioners v Cure & Deeley Ltd [1962] - D was a company which owed purchase tax under the Financial Act 1940. The C&E had the power to enforce this Act in any which "appears to be necessary" (s.33(1)). They ruled that if a tax return was not filed, they themselves would declare how much tax they thought was due, which would then be deemed the 'correct' amount, regardless of the true figure. This was a breach of rule of law, as it overruled the tax guidelines set out in the statute - in this situation, they were acting as the legislature, executive and judiciary. If this sort of behaviour was upheld, it would seriously undermine the statutes, so government staff must be forced to act in line with them as set out by Parliament.

Congreve v Home Office [1976] - TV license charges were raised from £12 to £18. To avoid this, people took out a new license a few days before the price increased which annoyed the government. They relied on the Wireless Act to issue licenses as the minister "saw fit" and therefore tried to force people to pay to extra £6 by not sending out licenses that had 'beaten' the price change. However, there is a difference between Parliamentary legislation, and how government was trying to enforce it - governmental discretion has to be exercised in making a distinction between what Parliament has enacted and what government is trying to achieve. As such, this was an abuse of power and an illegal attempt to try and level money for the use of the Crown contrary to the Bill of Rights.

R v Secretary of State for the Home Department, ex p. Venables (the Bulger case) [1998] - The official sentence for a child murderer is indefinite detention at her Majesty's pleasure, but judges recommended a minimum sentence to be served to the Home Secretary. The term suggested was 10 years, but the Home Secretary increased this to 15 -- was it acceptable for him (a politician) to substitute his own term for the judges'? He explained that he had done this as a reflection of popular feeling. In the HoL, 2 judges agreed with him - he had been given this power by Parliament and therefore he should act like a government minister (sensitive to public opinion) (Parliamentary sovereignty is more important), but 3 disagreed - it was contrary to the rule of law and the separation of powers in that it was a judge-like power, but no judge would imagine that it was legal to take into account public feeling in regard to sentencing. Even though he was a government minister, he is in a judicial role in this context and therefore should act like one (the rule of law and the separation of powers are more important).

R v SSHD, ex p. Pierson [1998] - P was given two life-sentences for murdering his parents. Again the Home Secretary increased the judge's sentence because he claimed that as a pre-meditated murder he needed to up the minimum term. However, the case argued in court was never based on pre-meditation, but still the Home Secretary refused to reduce his term. It seemed as if the Home Secretary could arbitrarily increase a sentence, something a judge would never do.

R v SSHD, ex p. Hindley (the Moors' murderer) [2000] - As H was coming close to release, the Home Secretary kept increasing his original tariff so that each time she came close to the minimum term, he would extend it. He was able to do this by exploiting the fact that she was never told what her minimum term was - something which, if it had been done, he would not have been able to increase it. Still, it was established by PIERSON, that an individual had a right to be told what their minimum term was. There were also publicity issues weighing on the Home Secretary - he would have had to face great public wrath if he had allowed her to be released.

Anisminic Ltd v Foreign Compensation Commission [1969] - The FCC was a tribunal created under the Foreign Compensation Act 1950. It had rejected a claim by A, a British company, under a scheme for compensating British subjects who had lost property in Egypt during the Suez affair in 1956. However, A's claim was rejected on the Commission's interpretation of the relevant Order in Council - it was fatal to A that their assets in Egypt had, after 1956, been acquired by an Egyptian company, since the order required that any 'successors in title' to the British claimant had to be of British nationality. In the absence of a right to appeal, A had to establish not only that the commission's interpretation of the Order was wrong, but that their decision in rejecting the claim was null, since the 1950 Act excluded the power of the High Court to review errors of law made within the jurisdiction of the commission.
The HoL ruled that the interpretation was wrong (since the Egyptian company was not A's 'successor in title' and there had been an error in law in construing this term under the subordinate legislation) - this error had caused the Commission to take into account a factor (the nationality of the Egyptian company) which was irrelevant. As such, they had exceeded the limits of their jurisdiction, and the decision rejecting the claim was null. Therefore, the Act did not preclude the court from inquiring as to whether the tribunal's decision was incorrect. Any and all errors of law made by a public body will make its decision null, and for the the body to have exceeded its jurisdiction, and that a statutory exclusion clause does not deprive the courts from their jurisdiction in judicial review unless explicitly stated.

Foster v British Gas [1990] - The ECJ said that British Gas could be sued under an enforced directive via the three stage test:
1. Were they responsible for a public service?
2. Were they State-owned?
3. Did they have special legal powers, such as being able to enter land to lay pipes?

National Union of Teachers v Governing Body of St Mary's Church of England (Aided) Junior School [1997] - The test were not absolute, they were only guidelines, so therefore it did not matter if not all of them were passed. As the principle members of this school were public seeing as they fitted 1 and were under the Department of Education.

Van Colson - A woman was unlawful discriminated against under the Equal Treatment directive; however, she only got a very small award of damages as the Directive said they only had to be 'adequate' and this was how it was interpreted under her State's law. When she appealed to the ECJ, they said that whenever States interpret national law, they must do it in line with the EU, and therefore stretch the national law to come as close as possible to the Directive's meaning.

Marleasing [1990] - National courts are under a strong formulation to find domestic law compatible with all EC law whenever possible.

Pfeiffer [2005] - There is a duty to 'have regard to the whole body of rules of national law' to ensure that the directive in question is fully effective.

CIA Security SA v Signalson SA and Securitel SPRL [1996] - There were two Belgian companies where B had issued a claim against A's product, saying that it was not properly compliant with Belgian law. However, A then said that this was true, but that that particular law was illegal as there was an unimplemented directive. A won in Belgium, and the ECJ said that a failure to comply with legislation meant that B could not enforce Belgian law against A. Here, B is not directly enforcing the directive against A, nor vice-versa, but the directive is crucial to the case.

Francovich v Italian Republic [1991] - F worked for a private company at a time when Italy had not enforced a directive passed by the EU to protect employees from their employer's insolvency. When F's employer went bust, F sued Italy for damages for loss of a cause of action and won. The ECJ said that state liability was inherent in treaty (not explicit) and that it is a substitute for direct effect when you would otherwise have no remedy for not being able to sue under a directive.

Mangold v Helm [2006] - In 1999, the EU passed a directive to protect the rights of fixed term workers, it required that fixed term contracts were objectively justified before they were issued. Could M force H to follow the unimplemented directive? Germany had negotiated a 7 year implementation period instead of 2, but in these situations it is subject to a 'stand still', i.e. they should only change the law to move closer to the directive, rather than away from it. However, Germany did this, but made exceptions for fixed term workers over the age of 52. The ECJ said that M couldn't sue H, but one of the general principles of EU law was non-discrimination on the basis of age, so that could be reictly enforced. There are still many question around this case though!



Liversidge v Anderson [1942] - L was detained without trial as an enemy alien under the Defence Act as the Secretary of State was allowed to do this to anyone "under reasonable cause of being of hostile origin". However, L was just a foreigner, and there was no reasonable cause to see him as a threat. At the time, the HoL agreed with the Secretary of State - the majority held that the legislation should be interpreted so as to make effective in the way parliament intended, even if that meant adding to the words to give that effect, and they were also concerned with the fact that they were dealing with a matter of natinal security. Atkins dissented.

R v Inland Revenue Commissioners, ex p. Rossminster [1980] - Lord Diplock thought that "the time has come to acknowledge openly that the majority of this House in Liversidge v Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right".

Khawaja v SSHD [1984] - K lied to immigration staff over whether he was married, but then denied having done this. HoL said that although the Secretary of State was to have some discretion that depended upon whether K was an illegal entrant or not, they still rejected LIVERSIDGE in that the court had to decide this, not just the minister himself.

A v SSHD [2004] - Allowed government to detain without trial suspected terrotists who were not British citizens, but could not be deported. ECHR says this because you cannot deport people to countries where they may be tortured. Liberty under RoL threatened and so they were detained without trial. EC says convention must just be in light of trial within a reasonable time. Government decided to derogate from ECHR because of public feeling. A special nine judge court was convened, and the majority accepted why the government had done this, but that they had made an unfair distinction between British national suspects and foreign people which was ultimately arbitrary, as why was one group detained and not another? The principle of equality here was not just Dicey's level of formality, but an actual distinction that had to be made.

R v SSHD, ex p. Fire Brigades Union [1995] - Criminal Justice Act said that people had a right to full compensation, but the Act had not yet come into force unti the government minister approved it. However, as this would be very expensive, the government planned to never allow this, and at some time they would repeal it. The government was taking Parliament's will for granted. The majority in the HoL said that the government can't just decide to get rid of legislation, even though it was not active; it was wrong to say it would never be brought into force, and introduce a contradictory scheme. An attempt on Parliament to legislate - was this a legal matter, as the executive was flounting the will of Parliament? Mustill, who dissented, said that this was not a matter courts should intervene in, as the minister could be brought up in front of Parliament.
In this case, they were using prerogative as there were no statutory rights in place and so therefore they could change them if they wanted - prerogative was being used in the legal sense. However, the government's legislative powers under prerogative are now very narrowly confined (i.e. they cannot change the ordinary law that applies to the public - the rules government issues cannot contra what is in statute).

Attoney General v de Keyser's Royal Hotel [1930] - DK was seized by the government as a place to billet troops under a prerogative to defend the realm in the time of war (justification for taking it). Also, as they were doing this under prerogative powers, no compensation was due to the owner. DK protested this, as theere was a statute under which they could act which would mean that compensation should be paid. Could the government escape the statute by claiming that they acted under prerogative? HoL said that this was unlawful as their acting under prerogative was 1. an afterthought, and 2. where a statute covers the same grounds, the government must act under statute (and cannot act under prerogative just to avoid compensation).

R v SSHD ex p. Northumbria Police Authority [1989] - Not for the Home Secretary (central government to police) to supply equipment, but rather that this should be done from the local police. The Police Act said that equipment could be provided by local police authority, but the Home Secretary said it didn't say that he couldn't. Even if the statute had forbidden it, then prerogative would have stepped in (internal application of 'protecting the realm'). Court decided that the government was correct here; both statute and prerogative could run in tandem.
Unlike DE KEYSER, where statute overrode prerogative, the reason why it was different here is because it was not restricting people's rights, but adding a further source of protection. When it came to individual or democratic rights, it was within the jurisdiction of the police authority, and therefore the people's freedom to vote in someone who was opposed to the use of prerogative. As such, in DE KEYSER, the decision was between statute and prerogative, but here, both could remain.

Laker Airways Ltd v Department of Trade [1977] - For L to run his airservice from England to New York, he needed permission from the Prime Minister and from America. However, just before he gained this, the government changed, and so he was refused. He went to the CoA which agreed that the government shouldn't try and keep a monopoly on British Airways, and it also wasn't the government's decision to cancel L's license. Government said that even if they had been unlawful, they could just tell the US President under treaty not to allow it on his side. The court realised that if the government was allowed to use prerogative to get around statute, this is setting an unfair standard. Here statute indirectly curtailed use of prerogative, as it was an abuse of prerogative power.
Denning's judgement here was quite shocking as he said the courts could quash the government's power - this was not just establishing whether there was one or not, but rather that they could determine whether they would actually allow one as in was it being used fairly.

Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) [1985] - This case was very damaging to national security, as when the workers went on strike, intelligence was missed which could not be recovered. The government removed trade union rights from them to prevent GCHQ workers from joining a union in the future - they could only belong to an internal association, not a national union. This was seen as a failure of consultation, even though Civil Service employment is at 'the pleasure of the Crown' therefore an employee can be dismissed for whatever reason on protection of the public. However, there was a long history of consultation with these matters and the employees had had a legitimate expectation of this happening. As such, was the prerogative renewable by the courts on the grounds of fairness?
If this was a statutory power, it would need to be sent for judicial review, but this should also apply to prerogative. However, the government said that if they had tried to consult this could have precipitated legal action anyway due to the rule of prerogative under the rule of law. The HoL said that prerogative should be used fairly and should be open to judicial review. However this was only if it was justiciable (suitable for court scrutiny) and most were deemed not to be. The court agreed it was not qualified to decide certain things, such as the dissolving of Parliament, declaring war etc - these are innately executive powers which cannot be decided upon by judges.

Lewis v Attorney-General of Jamaica [2001] - Appeal for mercy under claim of natural justice. However, the Jamaican Privy Council said that this was not possible, but the CoA said that L should be allowed as this concerned their right to life. Here there is the possibility to read in natural law to a constitution; when there is a specification that certain documents must be looked at, there is not a rule which says others can't be introduced.

Abbasi v Secretary of State for Foreign and Commonwealth Affairs [2002] - A was a British citizen who was captured in Afghanistan by the US was held in Guantanamo with definite no length of stay or right to a trial. Was there anything the government could do? Under the prerogative, people normally have diplomatic protection, but this was not used. There were legitimate exceptions or unacceptable behaviour, but this was not seen here. However, the courts said that they could not interfere as the UK government was negotiating with the US. As such, courts will say this is an illegal situation, but they will not intervene if it may jeopardise negotiations.

CND v Prime Minister [2002] - Concerning the legality of the Iraq War. CND wanted the court to clarify whether it would be lawful for the government to wage war on Iraq based on presently existing Security Council resolutions (1441 told Iraq to declare its weapons). However, why should a domestic court interfere with international law (interpretation of a resolution)? This highlighted another non-justiciable area, but again, a lot depended on the circumstances.

R v SSHD, ex p. Bentley [1994] - B killed a police officer, but did not actually fire the shot, rather he egged on his younger accomplice to do so. The latter went to prison, but B was sentenced to be hanged. The jury suggested consideration for mercy but the Home Secretary turned this down. A new Home Secretary was asked to grant a posthumous pardon, but he refused until evidence could be established that B was innocent. The Home Secretary did not seem to realise that it would have been more appropriate to execute a life sentence rather than death (B had had learning disabilities amongst other things).

de Freitas v Benny [1976] - The government general's refusal to grant mercy was unlawful as he had not listened to anything in the man's favour (lack of natural justice). Even though mercy is a purely discretionary, non-legal act, this was still a breach of rule of law.

Attorney-General v Jonathan Cape [1976] - JC attempted to publicise his government memoirs, AG said that this was private. Normally correct in that all the ministers are supposed to tow the party line but this can only be achieved through debate. AG sought an injunction - "an equitable doctrine of legal confidence", and also looked at using the Trade Secrets Act to protect confidentiality. However, the judge could not see any damage that would be done by publishing about a decade old government. The issue here was freedom of speech vs. confidentiality. If it had been newer, the court may have passed an injunction, meaning that one cannot easily separate legislation from constitutional convention. Is the opposite argument (not enforcing convention, but just recognising it) true though? Can you do this?

Refce re Amendment of the Constitution of Canada [1982] - C requested amendment of constitutional change by the government of Westminster; however, the provinces objected as they would lose some of their protection which was drawn from the general government, and lose legislative power. In an ideal situation, the central C government was not supposed to proceed unless the provinces agreed, but this was not in law. However, it was still ruled as a breach of convention, and something that if it was allowed to go ahead would see C become a unitary state. As such, this was an extremely important convention which protected the federacy of the Canadian constitution.

Madzimbamuto v Lardner-Burke [1969] - Concerning an illegal seizure of power in Rhodesia (Zimbabwe) and the rejection of British supremacy. Was this new regime unlawful compared to the old British-run one? The Southern Rhodesia Act 1965 stripped R of legislative power so that it was all exercised from London; however, there was a convention that L would only legislate for R on their consent. As such, the argument here was that the Act did not apply. Lord Reid held that even if it would be unconstitutional, one cannot go beyond a statute (in this context it was due to the illegality of R's actions).

Ellen Street Estates v Minister of Health [1934] - The incompatibility of one act with another - the older act stated that it should override the newer one, but did Parliament's legislation explicitly need to state precedence over this, or was it enough for it just to be the opposite or impliedly so to the earlier one? The latter is true; statutes cannot be entrenched.

Manuel v Attorney-General [1982] - Patriation of the remaining constitution - further challenge of the New Canada Act from the Canadian Indians, as they claimed they had treaties to their rights with England. If this power was given to Canada, they would become vulnerable. s.4 said that every act since the Statute of Westminster had to be consented to by dominions under the UK's power. As such, the Indians were also required to give their consent, which they were withholding. Sir Megarry said that Parliament can give power away, and as far as those countries are concerned, that is effective, but in English law it would not effect the Act. Once Parliament has given the power away, it cannot then continue to extend over those jurisdictions (i.e. Parliament relinquishes power to State X, they then cannot insist on implementing a rule there).

Macarthys v Smith [1981] - A company was not paying equal rates to a man and a woman - could the female compare herself to a previous employee of the company, or to a current one? Allowed her to do so with both, but majority of CoA thought that English statute was more restrictive, as such they allowed EC rules to take precedent.

Attorney-General for New South Wales v Trethowan [1932] - An attempt to prevent the abolishment of the upper house -- in the future there would have to be a referendum before this could be done, similarly the requirement for a referendum could not be repealed unless you held one! Whilst Parliament has power, it must operate within the rules currently laid down for this purpose -- therefore the actions of bills trying to repeal the upper house and referendum procedure were unlawful. However, because Parliament can change the rules, it can achieve a modicum of entrenchment -- NSW was bound by Parliamentary statute (Colonial Law Solidity Act), therein any constitutional reforms must be made via legislation currently existing.

R (Jackson) v Attorney-General [2005] - J argued that the Hunting Act 2004 was not a valid act of Parliament as the Parliament Act 1911 could not be used to lawfully amend itself as it was in the Parliament Act 1949 (if you have delegated legislation, you cannot use this to expand your powers). HoL consented that it could only be dispensed with according to the terms of the 1911 Act. The appellants in the case also argued that legislation passed under the 1911 Act was delegated legislation which could therefore be challenged in a way which primary legislation may not. However, HoL said that it was wrong to call Acts under the amended procedure 'delegated legislation' as it was specified under the 1911 Act that any passed under the 1949 one would be Acts of Parliament. Still, this procedure cannot be used 1) to eliminate the restriction on the life of the Commons or 2) pass a new bill to extend the life of the Commons. But, if by using this procedure, Parliament couldn't change its own life, then why could it amend the part over the passing of the bill?
Steyn and Hale accepted Houston's 'new view' - if they could change the rules to make it easier to pass an Act of Parliament, then they could also make it harder. However, why doesn't Parliament entrench more Acts? Here, the judges do not seem to be aware that they are being asked to choose between the two views, as they do not acknowledge their choices.

R v SSHD, ex p. Simms [1999] - Concerning a lost appeal against conviction for murder. Prison rules on governing contact with journalists were made by the Home Secretary and journalists were only allowed to speak to prisoners if they could promise not to publish what they learnt. Was this right to have such onerous burdens? HoL applied common law right of freedom of speech. These rules derived from the Prison Act 1952, therefore Parliament had given the Home Secretary the power to restrict important rights. It forced politicians to take responsibility for infringing those rights.

R v Lord Chancellor, ex p. Witham [1997] - C wanted to bring a defamation action, but could not afford court fees. The Home Secretary under a power granted to him by Parliament had increased them, and abolished the exemption for claimants on income support. This was unlawful, as even if the Home Secretary had very broad general powers, it was wrong to bar someone from their right to justice.

Raymond v Honey [1982] - R was a prisoner who had written to his legal advisor. The prison governor was allowed to read all his letters and stop them for any reason. R claimed that this was in breach of his right to a fair trial. He said it was in contempt of court to do so, and the governor then stopped this letter from getting out! This was then held to be in contempt and something that could not be authorised by the Prison Act.

R v Home Secretary, ex p. Leech [1993] - RAYMOND was applied here: L was a highly litigious prisoner who objected to the government reading his legal correspondance. CoA agreed that right of access to the courts was important, and that there was no right for the governor to read his mail, and subsequently veto this. A prisoner's unimpeded access to his solicitor was an inseparable part of right to access to court. As such, Parliament could enact this, but it would have to be in explicit language. However, was there a limit on him purely because he was a prisoner? The prison staff were entitled to check his correspondance to make sure that it was purely legal, therefore Parliament has to clearly issue with express authority to curtail these rights.

R (ProLife Alliance) v BBC [2002] - PL were entitled to one free party broadcast in the 2001 general elections. They wanted to use pictures of abortions as they claimed these were factual and not just sensational. The BBC and other broadcasters prevented this under their obligations not to show offensive imagery. Was this a lawful restriction by the broadcasters or what the PLA was entitled to transmit? CoA decided this was an improper invasion of free speech by using censoship, but they had to decide whether allowing them to show it would be contrary to good taste. Because of the election contest and a prior warning before the advert would be shown, they ruled that this was illegitimate censorship. However, the HoL took the opposite view, the broadcasters were simply applying statutory requirements, as Parliament had decided that free speech could be overriden by this. As such, this was an attempt to attack the statute by PL.
However, was this really all that statutory? Was there no discretion by the broadcasters? The dissenting said that there were different level of offensiveness that come with different types of programme. As such, surely there was some degree of discretion. Therefore, do the words of the statute require people to keep in mind what constitutes good taste, or do they dictate to them what it is? There was plenty of scope here to investigate discretion without attacking the statute.

R v Ministry of Defence, ex p. Smith [1995] - Homosexual soldiers were dismissed from the army - was this a lawful policy to adopt? The High Court and the CoA were sceptical as it obviously invaded privacy, but arguments from the Army said that it was an important point in protecting morale of the troops. However, the ECtHR said that this was a breach under Article 8 as the courts had not checked whether it was truly necessary to limit these individuals' rights. In applying apportionment, they thought that the government could have applied a behavioural code instead.

R (Daly) v SSHD [2001] - D, a prisoner, objected to a routine search of his cell in which officers looked through his legal correspondance, even though the authorities' said that all correspondance had to be checked. However, D's issue was that he was excluded from his cell whilst the search was going on, on the grounds that the prison service did not want the prisoner to interfere with anything. The court said that persistent troublemakers could be excluded, but that others should be allowed to stay. As such, this was a nuanced test of legality, and was not implementing a general policy of automatic exclusion.

R (Munjaz) v Mersey Care NHS Trust [2005] - MHA must have a code of practice to guide doctors and hospitals. Did a hospital act unlawfully by disregarding this? The issue was with seclusion (locking someone in their room) and there was a detailed protocol for this to make sure that the patients' welfare was not prejudiced. Ashworth Hospital adopted a policy different from the code - as they had so many mental health patients they could not adhere to it as they did not have enough staff.
Lord Bingham said that the code was not law, merely good practice, so if there was good reason to depart from it, then that was alright. However, Lord Steyn said that it was a 'special type of soft law' as in that in all but the most exceptional circumstances would departure from it be lawful. In not abiding by it, they were undermining it. However, Parliament had not bothered to say what would happen if it were breached.

Salid v SSHD [2003] - An asylum policy must be published and the same argument can apply to some delegated legislation.

R (Anufrijeva) v SSHD [2003] - As soon as a decision has been made on an asylum seeker's application, their rights to benefit would stop. HoL said that the decision had to be communicated as there was a 'right to know' of decisions that affected their personal interests.

Costa v ENEL [1964] - EC law takes priority over any national law (even if the latter is more recent than the former). If implied repeal was allowed, the system would break down.

Simenthal [1978] - Concerning a meat import company to Itality. Under Italian law it says that you must pay for health checks at the border. S said that this was contrary to EU law as it was not this way anywhere else. As EU law is meant to make all member countries like one big country, as you would not have heath checks when moving food within Italy, you do not have them when moving it into Italy either. Italian court agreed and ordered repayment of the health check fees. However, the Italian government said that they could not have any court disapplying national law and therefore to wait for the case to get to the constitutional court. S made a reference to the ECJ under Art. 234. The ECJ ruled that the national court was correct and that the EC law was the source of rights for individuals.

Internationale Handelsgesellschaft [1970] - Did the German court have to concede to the EC even if it was contrary to the constitution? The ECJ said that they did, as the EC was supreme to everything. However, the ECJ had anticipated people being upset at having their rights trampled, so they only had as much power as was derived from the treaty between them and Germany (similar to Scotland's devolved Parliament and Westminster). It was held that if the EU made law that was not valid with human rights then it would not be valid, but it was never specified as to which human rights standards the EU has to adhere.

Van Duyn v Home Office (No. 2) [1974] - UK policy is not to allow foreign nationals who are scientologists into the country. However, VD was also a member of an EU State, and therefore entitled to free movement under Art. 39. Nonetheless, it was lawful to restrict her on the grounds of public policy and security, but a Directive had been passed earlier to say that someone could only be refused if there were issues with the personal conduct of the individual. The UK had not enforced this directive though. The ECJ said that an unimplemented directive could be enforced (contradiction of saying that they don't have diect effect), but only if they fulfil the below criteria:
1. Directive must be clear
2. Date to implement directive must have passed
3. Can only be enforced vertically not horizontally

Marshall v Southampton Area Health Authority [1984] - M was dismissed at 60, as the SAHA's policy was that men retired at 65 and women at 60. However, the UK Sex Discrimination Act 1975 was of no use. M wanted to argue that the Equal Treatment Directive 1976 had been breached. It was held that she could sue, but only because she had been working for a state body; if she had been employed by an independent or private hospital, she would not have been allowed.

Bribery Commission v Ranasinghe [1965] - Ceylon constitutional Order was made in London for Ceylon (Sri Lanka). s.55 said that judicial appointments could onyl be made by an independent body called the JSC. s.29 said that the Ceylon Parliament could make law (i.e. change appointment procedure for judges) but there must be a 2/3 majority for this to happen. However, the Ceylon Parliament passed a 1948 Act saying that judges could be appointed by the Governor General. However, this did not comply with s.55. Their act was ovverruled as the manner and form restriction from London was legitimate.
However, is this an inappropriate analogy? This was a subordinate power given by a superior one, hence once they went outside their powers given to them, what they had enacted was void. Therefore, in a vertical situation, this is binding. However, in a horizontal situation, (Parliament on future Parliament) would this work? We do not know.

Garland v British Rail Engineering [1983] - Finding an interpretative way around conflicts.

McCarthy v Smith - A recognition that sometimes courts may have to choose between UK and EU law. M was prosecuted for using imperial units, something which was prohibited under UK law from EU directives, as metric must be used, with imperial only as a supplementary measure allowed until December 2009. M's argument was that they were not guilty as the law did not exist.
The WMA 1985 determined what units could be used and it permitted both imperial and metric. This had to be amended to suit the EU directive, and two amendments were made - a 1994 order under a Henry VIII power from the WMA, and 1994 regulations made under a Henry VIII power from the ECA 1972. As this Henry VIII power from from an older act to modify a newer one, the defendants argued that once the 1985 Act had been passed, this removed any power from the 1972 one. This issue here was was the ECA vulnerable to implied repeal or was it a constitutional statute?
The orthodox view sees all legislation as equal and therefore all are vulnerable to implied repeal; the THOBURN view says that all legislation is not equal, as courts draw a line between normal laws/statutes and constitutional ones which can only be appealed expressly.
Here, the court decided that the ECA was definitely the latter, and because the 1985 Act was only 'normal', it could not impliedly repeal the ECA.

Aston Cantlow and Wilmcote w/ Billesley Parochial Church Council v Wallbank [2003] - A farm was a 'rectorial property' (people who owned it must pay money to the church if the latter was to request it). However, the people who had purchased this farm had not known of this at the time, and so appealed against it saying that it was in breach of P1(1) of the ECHR. Could this be enforced against the claimant as they were a public authority? The HoL distinguished between core public authorities who were:
- Always bound by ECHR
- Don't need to ask if their Acts are public (i.e. police, central local government)
or if:
A) had special legal powers
B) was democratically accountable
C) was publically funded
D) derived power from statute
The church council was therefore not, but was it hybrid?
- Not always bound by ECHR
- Question to be asked if the function is public or private
HoL did not feel that the church seeking to enforce this was a public act as it was just a landowner holding a contract against a tenant. It can often be difficult to distinguish between the two. Does the body have to be public, or just the Act?

Hampshire County Council v Beer [2003] - HCC set up a farmers' market and established a company (HFML) to run this for them. HFML then denied B a license so B sought to sue. Was HFML a hybrid public authority? What did it do (function test) and what was its relationship with HCC (institutional test)?

YL v Birmingham City Council [2007] - BCC was under a statutory duty to arrange for the provision of care and accommodation for certain vulnerable people. As a local authority, it was allowed to contract this duty out, and did - was the company it contracted out to now a public authority, and as such, now bound by the HRA? The majority thought that it was not as it was not a governmental function to look after these people. The minority disagreed, as in the abstract nothing is inherently public or private (it is dependant on time and pace) so the question was instead whether the government at this time and place had taken on the responsibility. They had, and so anyone carrying out this duty for them had also.

A v Home Secretary - Concerning the Anti-Terrorism Act. The detention regime was incompatible with Art 5 of the ECHR. The government had realised that this Act did not work with ECHR. HRA s.1 says that Art 5 is an 'operative convention right', however it allows for a designated derogation order. Government had done this to Art 5 (right to liberty) and as such it was removed from the HRA and the category of operative convention rights. However, Art 5 was only inoperative if this action was valid. Had the conditions in Art 15 ECHR been met (allows for derogation strictly required for a war or public emergency)?
A special 9 member HoL was convened and 8 agreed there was a public emergency. They then looked at whether what had been done was strictly required. In examining the scale of the infringement, they said that the executive had no right to imprison people without trial. This was quite extreme as the court was actually challenging Parliament's ruling. They asked whether the objectives could not have been achieved by less intrusive means as the government had not even bothered to argue the point of other methods as they had been so confident of the court ruling in their favour.
The application only to non-nationals implied that the detention was not strictly necessary as the judges felt that threats by national terrorists must be able to be dealt with in a less radical way. As such, HoL takes a tough approach to national security. They struck down the order that removed Art 5, which then allowed them to say that the Anti-Terrorism Act was incompatible with the HRA, so they could issue a declaration of incompatibility. However, this did not release those people already imprisoned.
A lot of people expected Parliament to ignore the court as the judges knew nothing about national security. However, Charles Clarke, the Home Secretary, actually repealed s.4 on their ruling. As such, even in these difficult circumstances, where a lot of people were on their side, Parliament followed human rights, therefore, in some ways the ECHR and the HRA have achieved some degree of entrenchment.

07/07 Bombings - Blair was determined that Art 3 should not get in the way of national security. There was a willingness to amend the HRA 1998 if that was necessary. The government had to make a choice between rights and security, and the latter won. As such, it all depends on the circumstances. However, in the absence of something really extreme, the HRA is the boundary for government, unless they feel so pressed as to try and change it.

Burden v UK [2008] - B wished to challenge the UK's inheritance tax rules with the ECHR, but did they first have to mount a challenge in the UK's courts (normally you must exhaust domestic remedies before coming to Strasbourg)? The government pointed to declarations of incompatibility, but Strasbourg said that the UK courts were not competent to set aside Acts under the HRA. However, they said that in the future Parliament must be able to deal with these cases.