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21 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Case of Prohibitions (1607) |
James I has set himself as judge in a land dispute. Sir Edward Coke rejected the authority of the King to preside as judge as he had no legal training. - Placed restrictions on monarch; subject to no man but subject to the law - Power of courts over the monarch |
Courts power over monarch Example of Courts (Coke) restricting PR |
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Case of Proclamations (1611) |
King wanted to impose controls on new buildings and sale of wheat and attach criminal penalties to a breach. Coke restricted PR power of King by stating that the monarch could not create new powers or new offences but could only use those already set down in common law. "The King hath no prerogative but that which the law of the land allows him"
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Example of Courts (Coke) restricting PR |
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Case of Impositions (1610)/Bate's Case |
Bate refused to pay tax on currants raised by the K as K could not raise tax w/o consent of P. K argued that it was to regulate foreign trade not to raise money. Court agreed. |
Example of courts agreeing to free interpretation of PR. |
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Ship Money; R v Hampden (1637) |
Charles I used RP to compell coastal areas to provide ships in time of nat. emerg. but in form of tax. Hampden refused to pay, rejecting that there was a nat. emerg. Courts found for King; arguing that only the K could say if there was a nat. emerg. K subsequentally backed down. |
Example of courts agreeing to free interpretation of PR. Struggle between courts; K & P. |
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A-G v de Keyser's Royal Hotel (1920) |
Could gov requisition hotel w/o paying comp? Hotel was not needed for defence from invasion and no case law could be found of PR being used in this way - courts would not create a new PR. Defence of the Realm Act (1914) = comp. must be paid. |
Superiority of statute over contradictory PR. Gov. wanted to use PR rather than statue to avoid comp - courts held that statute overruled PR. |
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Re Petition of Rights (1915) |
Gov. seized an airfield for military use. Owners argued that PR to seize w/o compensation only existed in invasion circs. Courts held that meaning of 'invasion' could be updated to mean by air, etc. |
PR as 'always speaking' - can be updated to represent modern times. |
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Laker Airways v Department for Trade (1977) |
Airline needed permission from statutory and PR (Treaty) source to operate. Gov tried to use PR powers to revoke licence. Court held that gov action was unlawful. |
Superiority of statue over interlocking PR. PR should be used to compliment not obstruct statue. |
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R v Sec State for the Home Dept, ex parte Fire Brigades Union (1995) |
Criminal Justice Act 1988 gave Home Sec power to implement Criminal Injuries Compensation scheme 1964 at his discretion. Sec of State tried to repeal expensive scheme with PR power. FBU challenged this. Court agreed that P had made its intention clear so gov would need P to repeal those sections - they were not "writ in water" Lord Lloyd. |
Intention of P in statute can restrict PR power. |
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R v Sec State for the Home Dept, ex parte Northumbria Polic Authority (1988) |
Sec of State distributed equipment directly to Chief Constables and not through local police authorities. Police argued that Police Act 1964 did not give SS power to do this and there was no RP power to keep the peace by arming police. Courts argued that there was no evidence that RP didn't exist and that Police Act did not exclude SS from distributing; therefore both could be true. ( and post GCHQ either method can be JRed) |
Co-existence of PR & statute; does statute nullify PR? |
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BBC v Johns (1965) |
BBC tried to argue that as a monopoly created by PR they should be exempt from tax as the Crown was.
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No new PR can be made |
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Entick v Carrington (1765) |
No PR existed to authorise search of house. |
Courts wiling to review legality and scope of PR but not irrationality or procedural unfairness. |
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R v Criminal Injuries Compensation Board, ex parte Lain (1967) |
CICB was set up y PR. Court argued that they could review fairness of compensation because board was performing a judicial function which courts were equipped to make decisions on. |
Courts begin to review fairness of PR power use. |
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Hanratty v Lord Butler of Safron-Walden (1971) & Laker Airways (1977) |
Hanratty - Denning unwilling to enquire into excercise of PR of mercy. Laker - Denning enquires based on 'PR is discretionary power used for public good and should be reviewed like any other discret. power" |
Denning contradictions on PR review- Mercy v Treaty? Depends on nature of PR? |
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Gouriet v Union of Post Office Workers (1978) |
Union boycotted mail to SA in protest over apartheid. Mr Gouriet requested AG to use PR power of relator (bringing civil case in public interest) but he refused. Denning (CoA) argued refusal to was reviewable; HoL argued that it was not - perhaps based more on politically sensitive nature of decision. |
Judicial indecision on review of PR. Political considerations of courts re review. |
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Council of Civil Service Unions v Minister for the Civil Service (1983) GCHQ |
Minister changed working regs for GCHQ employees w/o consulting union. Union asked courts to review this. Gov argued that decision was made using PR so unreviewable and it was an issue of national security. Courts dismissed 1st but agreed with 2nd. Lord Roskill; statute or PR both are "act of the executive" and to say one is power of sovereign "savours of the archaism of past centuries". OBITER:- Nonreviewable: treaties, defence of the realm, mercy, honours, dissolution of P, app. of Ministers. - nature not amenable to judicial process. |
Nature and not source of power is reviewed |
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R v SoS for the FCO, ex parte Everett (1989) |
Courts held that PR to grant passports was reviewable (although in this case refusal to grant a passport was justifiable) |
Review of granting of passports |
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R v MOD, ex parte Smith (1996) |
Policy of no gays in the army was reviewable as it was not directly to do with national security but individual rights. But it was an issue for P and not courts. |
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R (on application of Abassi) v SoS FCO (2002) |
Mother of Guantanamo Bay prisoner asked courts to review FCO action. Court agreed this could be reviewed but that SoS still had command over decisions. |
Review of PR of international treaties but courts unwilling to tell gov what to do. |
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R v SoS HD, ex parte Bentley (1993) |
Sister asked for pardon of hanged man. Gov argued that mercy was nonreviewable and that full pardon must be moral and technical. Court argued that Roskill comments on mercy in GCHQ were only obiter and that decision not to review conditional pardon was reviewable |
Courts review mercy |
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1. Chandler v DPP (1964) 2. R (Bancoult) v SoS FCO (2008) 3. R (CND) v Prie Minister (2002) |
1. Anti-nuclear weapons demonstrator arrested for sitting on runway. 2. Chagos Islanders |
Courts avoid reviewing national security issues. Do not require much evidence from gov that nat security is at risk - affirmation will do. |
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Smith, Ellis & Albutt v MOD (2013) |
Combat immunity should be narrowly defined and should not apply to failing away from pressures and uncertainties of the battlefield. |
PR of defence of the realm may be questioned |
