Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
12 Cards in this Set
- Front
- Back
- 3rd side (hint)
|
Malone v Metropolitan Police Commissioner (1979) |
This case is an example of a “third source” of authority (Ram doctrine). During Malone’s trial for handling stolen goods, it emerged that police had, with a warrant obtained from Home Secretary, secretly monitored and recorded his telephone conversations. Malone unsuccessfully sought a declaration that this covert tapping was unlawful. At the time, no statute expressly authorized telephone tapping nor did police or Home Secretary claim to have any specific legal power under prerogative to authorize tapping. Judge in CA (Ch) held that tapping was lawful. “It does not require any statutory or common law power to justify it: it can lawfully be done simply because there is nothing to make it unlawful.” Following a successful application to ECHR, law on telephone tapping was altered by Interception of Telecommunications Act 1985, which gave Home Secretary specific statutory powers to authorize tapping in defined circumstances. |
Telephone tapping by police |
|
|
R (on the application of Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29 |
This case is an example of a “third source” of authority (Ram doctrine) and makes a decision on discretionary benefits payments to widowers. Under the Social Security Contributions and Benefits Act 1992, women whose husbands die are eligible for a welfare benefit; until recently, however, there was no corresponding benefit for men whose wives die. government accepted that this inequality was wrong and agreed to change law. While plans were being made to do so, a group of widowers campaigned for discretionary payments to be made to them equivalent to those paid to women. One of issues was whether government had power to make these payments. Although there is no specific prerogative power to make such payments, it accepted that there was a common law power to make ex gratia payments. However it successfully argued that failure to make the payments was not unlawful because it was justified by legislation. => While the case may offer implicit support for existence of ‘third source’ powers, none of judges expressly indicated that government could use these ‘common law’ powers to make payments to widowers. CA rejected this; in HL Lord Nicholls was very cautious saying only that ‘Whether the Crown, in exercise of its common law powers, could lawfully have made [. . .] payments to widowers is a difficult question with far-reaching constitutional implications. => Third source of authority has not been universally recognized by UK courts, although its existence ‘appears to have been given implicit support’ by this decision. |
|
|
|
R (on application of Shrewsbury and Atcham BC) v SoS for Communities and Local Government (CA) |
This case is an example of a “third source” of authority (Ram doctrine). Minister published a white paper setting out her proposals for reorganizing local government in Shropshire without using a statutory consultation scheme. This would involve abolishing some smaller councils. A statutory framework for consulting about such proposals existed under Local Government Act 1992. minister decided not to use the statutory consultation scheme, because she already had plans to introduce a bill to Parliament to replace that framework. Her department published a White Paper setting out government’s proposals for Shropshire. A local authority that was under threat of abolition challenged legality of this way of proceeding. Held: All three Lords Justices agreed that claimant’s appeal should be dismissed (for reasons not relevant here), but they expressed differing views on scope and significance of concept of a ‘third source’ of power, beyond statutory and prerogative powers. Carnwath LJ held that it was ‘a constitutional principle of some importance that local authorities should be able to rely on the safeguards of a statutory framework for the processes leading to decisions of this importance’; it was, however, impossible to avoid the conclusion that Parliament has (if only retrospectively) given its stamp of approval to the procedure in this case’, because by the time the judicial review had been heard, a new statutory scheme for consulting on local government reorganization had been enacted. Richard LJ held that it would be wrong to introduce qualifications to their exercise such as that the powers are only ‘for the public benefit’ or for ‘identifiably “governmental” purposes’; ‘any limiting principle would have to be so wide as to be of no practical utility or would risk imposing an artificial and inappropriate restriction upon the work of government’. Waller LJ said that he instinctively favoured ‘some constraint on the powers by reference to the duty to act only for the public benefit’. |
|
|
|
Council for Civil Service Unions v Minister for Civil Service (GCHQ case) (HL) |
This case deals with the judicial review of prerogative power. In 1984, government of Margaret Thatcher banned employees of Government Communications Headquarters (GCHQ) from joining any trade union for "national security" reasons by an Order in Council using the Royal Prerogative. Council of Civil Service Unions claimed in judicial review that defeated their legitimate expectations, to collectively bargain for fair wages. High Court of Justice held Order in Council was invalid. CA held national security concerns meant that judicial review was impossible. HL held that exercises of the Royal Prerogative were subject to judicial review, but there were exceptions, including for matters of national security. This was a significant break from the previous law, which held that prerogative powers were not in any way subject to judicial review. GCHQ case established that judicial review depends on nature of the government's powers, not their source. => key result of the case remains that courts will, in principle, be prepared to grant a judicial review of exercise of prerogative power |
Terms and conditions on which civil servants work |
|
|
Burmah Oil Company Ltd v Lord Advocate [1965] AC 75 |
This case is an example of (executive) prerogative power of Crown and was raised in Scotland, and decided in HL. It is an important decision in British constitutional law and had unusual legal repercussions at the time. It concerned destruction of oil fields in Burma by British forces in 1942, during Second World War. destruction was ordered (decided by British war cabinet) in order to prevent installations from falling into hands of advancing Imperial Japanese Army. It affected the Burmah Oil Company which brought an action against UK government, represented by Lord Advocate. In Outer House of Court of Session, Lord Kilbrandon found in favour of Burmah Oil. Crown appealed, and First Division of Inner House of Court of Session unanimously reversed decision below. Burmah Oil then appealed to HL. HL held by a 3–2 majority that although damage was lawful (prerogative power of Crown), it was equivalent of requisitioning the property. Any act of requisition was done for good of public, at expense of individual proprietor, and for that reason, proprietor should be compensated from public funds. Viscount Radcliffe and Lord Hodson dissented. |
Burma oil plant WW2 |
|
|
Ram doctrine |
This doctrine asserts that Governments have the power to do anything which is not prohibited by statute or the common law. |
|
|
|
Chandler v Director of Public Prosecutions (1964) |
The appellants had been convicted under s.1 of Official Secrets Act 1911 following a protest against nuclear weapons at US air force base. Lord Reid summarised generally deferential approach taken by courts in relation to the armed forces: “It is in my opinion clear that the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such discretion has been wrongly exercised.” |
protest against nuclear weapons at US air force base |
|
|
R v Jones (2006) |
protesters against Iraq War were prosecuted for breaking into military bases. They used, as a defence, argument that they were legally justified in their actions because they were attempting to prevent crime of aggression under international law. Their appeals were rejected by HL. Lord Hoffmann emphasised discretionary nature of prerogative power to make war and deploy troops abroad: “It is of course open to the court to say that the act in question falls wholly outside the ambit of the discretionary power. But that is not the case here. The decision to go to war, whether one thinks it was right or wrong, fell squarely within the discretionary powers of the Crown to defend the realm and conduct its foreign affairs.” |
protesters against Iraq War |
|
|
A-G v De Keyser’s Royal Hotel (1920) |
A hotel had been requisitioned during the First World War. Requisitioning under prerogative power would not have required government to pay compensation but there was also a statute applying to this situation which provided that compensation should be provided. HL held that government was obliged to follow the statute and pay compensation. Lord Dunedin stated: “I think that the observation of the learned Master of the Rolls [in the Court of Appeal] is unanswerable. He says ‘What use would there be in imposing limitations if the Crown could, at its pleasure, disregard them and fall back on prerogative?’” => Where overlap between prerogative power and statute is less clear-cut, courts may take a different approach. |
|
|
|
R v Secretary of State for the Home Department, ex p Northumbria Police Authority (1989) |
In this case prerogative power to keep Queen’s peace within realm was discussed. government had established a central store of rubber bullets and CS gas (controversial riot control equipment) to which chief constables of police forces would have access without requiring approval of their police authorities (local bodies established to hold police forces accountable). Section 4(4) of Police Act 1964 stated: “The police authority for any such police area may ... provide and maintain such vehicles, apparatus, clothing and other equipment as may be required for police purposes of the area.” In CA, Croom-Johnson LJ stated that s.4 did not give police authority a ‘monopoly’ on supplying equipment to police in their area. Therefore government could use prerogative power as well. |
central store of rubber bullets and CS gas (controversial riot control equipment) |
|
|
R v Secretary of State for the Home Department, ex p the Fire Brigades Union (1995) |
In this case issue related to whether or not government could use its prerogative powers in a way that would mean that an Act of Parliament would not be ‘brought into force’. Criminal Injuries Compensation Scheme had been introduced under prerogative powers. The Criminal Justice Act 1988 had provided for a replacement (more generous) statutory scheme, but had not been brought into force. ‘Commencement’ section of the Act had given the Secretary of State the power to bring the Act into force, but in 1994 he announced that he would not do so and would propose legislation to repeal the relevant sections and amend existing scheme. HL held that Secretary of State did not have an unchecked power as to whether or not to bring relevant sections of Act into force. =>Despite this judgment, it remains the case that significant changes in the law passed in a number of statutes have not been brought into force by relevant Secretaries of State; in some cases sections are repealed without ever having been brought into force. |
Criminal Injuries Compensation Scheme |
|
|
R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (2001) |
two Orders in Council relating to troubled history of the Chagos Islands in Indian Ocean were challenged. inhabitants of these islands, part of British Indian Ocean Territory colony, were forcibly removed in 1971 when main island, Diego Garcia, was leased to USA as a military base. Although compensation was later paid, exiled inhabitants continued to challenge prerogative Orders in Council in a number of different legal challenges. In HL basic right to judicial review of Orders in Council themselves (rather than merely executive action under them, as in the GCHQ case) was accepted. Lord Hoffmann said: “I see no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action.” Nonetheless HL rejected applicants’ claim. It held that inhabitants’ right of abode was not sufficiently fundamental that it could not be touched by Crown’s prerogative powers. In legislating for a colony, Crown did not have to have regard only, or even predominantly, for immediate interests of inhabitants. There had been no clear and unambiguous promise that Chagossians would be allowed to return and therefore no legitimate expectation had been created. =>In the end, as in GCHQ case, HL decisions of Crown, in this case in relation to foreign affairs, prevailed. => Compensation was paid but rehabilitation in Mauritius was very badly done and Chagossians lived and still live in terrible conditions. => meanwhile Chagossians were granted British passports though |
Forced removal of Chagossians to Mauritius |
