LIST OF MAIN Cases IN Constitutional LAW PDF

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Leading Cases in constitutional andAdministrative LawNOTE: This list is not definitive – it is a list of some of the main cases that are worth examining. ICheney v Conn [1968] - Affirmed statutes could not be held illegal by the judiciary as this would challenge the principle of Parliamentary suprem...

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Leading Cases in constitutional and Administrative Law NOTE: This list is not definitive – it is a list of some of the main cases that are worth examining. I

Cheney v Conn [1968] - Affirmed statutes could not be held illegal by the judiciary as this would challenge the principle of Parliamentary supremacy. Case of Ship Money ( R. v Hampden (1637) – Defined scope of the royal prerogative. The case concerned whether the monarch could extend the application of ship money to peacetime and noncoastal areas without having the tax approved by Parliament. In an unusually narrow judgment, the Court found in favour of the Crown. The Court held that the monarch did indeed possess the legal power to impose the ship money tax on the population without Parliament’s approval, even in times of peace and in areas irrelevant for shipping purposes. The Court further state that the monarch had the power to make laws, to decide on peace and war, to be the ultimate appeal authority, to pardon offences and to impose tax without Parliamentary consent – among other rights. R( On the application of the Countryside Alliance and others) V Attorney General and Others [2008] - Ratio: The appellants said that the Hunting Act [2004] infringed their rights under Articles 8, 11 and 14 and Art 1 of protocol 1. Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion by state agents into the private sphere within which they expected to be left alone to pursue their personal affairs and live as they chose. Hunting was a very public activity and a ban did not infringe article 8. As to the complaints under European law. Lord Rodger interpreted article 8 as protecting from arbitrary interference many activities which a person chooses to pursue in his private life for enjoyment, and excluded hunting from protection because it was a public spectacle. Lord Bingham observed: ‘It is of course true that the existence of duly enacted legislation does not conclude the issue . . Here we are dealing with a law which is very recent and must . . be taken to reflect the conscience of a majority of the nation. The degree of respect to be shown to the considered judgment of a democratic assembly will vary according to the subject matter and the circumstances. But the present case seems to me pre-eminently one in which respect should be shown to what the House of Commons decided. The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament.’ Lord Hope said: ’60 As Lord Bingham of Cornhill said in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, para 13, expressions such as ‘ambit’ are not precise and exact in their meaning. As he put it ‘They denote a situation in which a substantive Convention right is not violated, but in which a personal interest close to the core of such a right is infringed.’ That will be so if, for example, the state, having set up an institution such as a school or other educational establishment in unilingual regions, takes discriminatory measures within the meaning of art 14 read with the right to education in art 2 of the First Protocol which are based on

differences in the language of children attending these schools: see Belgian Linguistic Case (No 2) (1968). Clift’s case provides another example closer to home. It was held that a scheme which had been set up by legislation which gave the right of early release of prisoners fell within the ambit of the right to liberty in art 5 of the Convention. Differential treatment of prisoners otherwise than on the merits gave rise to a potential complaint of discrimination under art 14.’

Entick v Carrington (1765) - Leading case in English law and UK constitutional law establishing the civil liberties of individuals and limiting the scope of executive power. The case has also been influential in other common law jurisdictions and was an important motivation for the Fourth Amendment to the United States Constitution. It is famous for the dictum of Lord Camden: "If it is law, it will be found in our books. If it not to be found there, it is not law."[2] On 11 November 1762, the King's Chief Messenger, Nathan Carrington, and three other King's messengers, James Watson, Thomas Ardran, and Robert Blackmore, broke into the home of the Grub Street writer, John Entick (1703?–1773) in the parish of St Dunstan, Stepney "with force and arms". Over the course of four hours, they broke open locks and doors and searched all of the rooms before taking away 100 charts and 100 pamphlets, causing £2,000 of damage (£413,906 in 2020). The King's messengers were acting on the orders of Lord Halifax, newly appointed Secretary of State for the Northern Department, "to make strict and diligent search for ... the author, or one concerned in the writing of several weekly very seditious papers intitled, The Monitor, or British Freeholder". Entick sued the messengers for trespassing on his land.

The trial took place in Westminster Hall presided over by Lord Camden, the Chief Justice of the Common Pleas. Carrington and his colleagues claimed that they acted on Halifax's warrant, which gave them legal authority to search Entick's home; they therefore could not be liable for the tort. However, Camden held that Halifax had no right under statute or under precedent to issue such a warrant and therefore found in Entick's favour. In the most famous passage Camden stated: The great end, for which men entered into society, was to secure their property.[3] That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.

Hence Lord Camden ruled, as later became viewed as a general principle, that the state may do nothing but that which is expressly authorised by law, while the individual may do anything but that which is forbidden by law. The judgment established the limits of executive power in English law: the state may act lawfully only in a manner prescribed by statute or common law. It was also part of the background to the Fourth Amendment to the United States Constitution and was described by the Supreme Court of the United States as "a 'great judgment', 'one of the landmarks of English liberty', 'one of the permanent monuments of the British Constitution', and a guide to an understanding of what the Framers meant in writing the Fourth Amendment".

M v Home Office [1994] - A UK constitutional law case, concerning the rule of law.

Facts An action for judicial review of the Home Secretary was brought by M, a deported teacher from Zaire. The Home Secretary, Kenneth Baker, had been told by the High Court to return a Zaire teacher to the United Kingdom on refugee status, after being deported.

Judgment Court of Appeal Nolan LJ held that the teacher had to be returned and said the following. The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is.

House of Lords The House of Lords held that the Home Secretary acted in contempt of court and had to return the teacher. Lord Templeman said the following. For the purpose of enforcing the law against all persons and institutions ... the courts are armed with coercive powers exercisable in proceedings for contempt of court ... ... My Lords, the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War. For the reasons given by my noble and learned friend Lord Woolf and on principle, I am satisfied that injunctions and contempt proceedings may be brought against the minister in his official capacity and that in the present case the Home Office for which the Secretary of State was responsible was in contempt. I am also satisfied that Mr. Baker was throughout acting in

his official capacity, on advice which he was entitled to accept and under a mistaken view as to the law. In these circumstances I do not consider that Mr. Baker personally was guilty of contempt. I would therefore dismiss this appeal substituting the Secretary of State for Home Affairs as being the person against whom the finding of contempt was made.

R (Nicklinson) v Ministry of Justice [2014] – A 2014 judgment by the Supreme Court of the United Kingdom that considered the question of the right to die in English law.

Facts In 2005 Tony Nicklinson suffered a severe stroke and became paralysed from the neck down. He described his life following the stroke as a "living nightmare". Nicklinson wished to end his life but was unable to commit suicide without assistance. This presented a legal problem because assisting the suicide of another person is a criminal offence under section 2 of the Suicide Act 1961. As such Nicklinson applied to the High Court for a declaration that either: It would be legal for a doctor to assist in his suicide; or The present legal regime concerning assisted suicide is incompatible with Article 8 of the European Convention on Human Rights (Right to respect for private and family life) The second appeal in this case related to an individual using the pseudonym Martin who had suffered a brainstem stroke in 2008. Martin wished to end his life by travelling to the Dignitas clinic in Switzerland and sought an order for the Director of Public Prosecutions (DPP) to amend her 2010 'Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide' so that carers and other responsible individuals who are not family members will not be prosecuted for assisting in Martin's suicide.

Judgment High Court The High Court refused both of the declarations that Mr Nicklinson sought. He subsequently refused all food and died of pneumonia on 22 August 2012. His wife took up the case in the appeals to the Court of Appeal and Supreme Court. Martin's claim also failed in the High Court.

Court of Appeal The Court of Appeal dismissed Nicklinson's appeal on the basis that the defence of necessity should not be allowed to develop at common law so as to encompass murder in certain cases of euthanasia. Furthermore, a blanket ban on euthanasia was not incompatible with Article 8 of the European Convention on Human Rights. Such an approach was in line with the Debbie Purdy case. Martin's appeal was partially successful. The court held that the DPP's guidance was not sufficiently clear in respect of people who had no close relationship with the victim. Nicklinson and the DPP appealed to the Supreme Court. Martin cross-appealed.

Supreme Court In a dissenting opinion, Lady Hale and Lord Kerr would have made a declaration of incompatibility as requested by Nicklinson. Lady Hale stated: I have reached the firm conclusion that our law is not compatible with the Convention rights. Having reached that conclusion, I see little to be gained, and much to be lost, by refraining from making a declaration of incompatibility. Although the other seven justices would not have issued such a declaration it was unanimously held that the question of assisted suicide does fall within the United Kingdom's margin of appreciation and does engage Article 8 of the European Convention on Human Rights. A majority of five justices (Neuberger, Hale, Mance, Kerr, Wilson) held that the court does have the constitutional authority to make a declaration of incompatibility as regards the general prohibition of assisted suicide. Lord Neuberger concluded: [E]ven under our constitutional settlement, which acknowledges parliamentary supremacy and has no written constitution, it is, in principle, open to a domestic court to consider whether section 2 infringes article 8. The majority felt that the question is one that Parliament is in a much better position than the courts to assess.

The Supreme Court unanimously allowed the DPP's appeal and holds that: Any lack of clarity or precision does not arise from the terms of the Director’s published policy. It arises from the discretionary character of the Director’s decision, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case. All of these are proper and constitutionally necessary features of the system of prosecutorial discretion. The terms of the published policy reflect them. The document sets out the principal relevant factors for and against. It treats the professional character of an assister’s involvement as a factor tending in favour of prosecution. It is at least as clear as any sentencing guidelines for this offence could be. Given this conclusion Martin's cross-appeal did not arise.

European Court of Human Rights In December 2014 Tony Nicklinson's wife, Jane, applied to bring a case before the European Court of Human Rights. On 23 June 2015 the court decided that the question of assisted suicide falls within a state's margin of appreciation. It concluded that: If the domestic courts were to be required to give a judgment on the merits of such a complaint this could have the effect of forcing upon them an institutional role not envisaged by the domestic constitutional order. Further, it would be odd to deny domestic courts charged with examining the compatibility of primary legislation with the Convention the possibility of concluding, like this Court, that Parliament is best placed to take a decision on the issue in question in light of the sensitive issues, notably ethical, philosophical and social, which arise. As such Nicklinson's application was "manifestly ill-founded" and therefore declared inadmissible.

Bellinger (FC) (Appellant) v. Bellinger [2003] - The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible with the claimant’s human rights.

Held: Mrs B, a trans-sexual female who had been born and registered as a male at birth, could not validly contract a marriage with another male. Trans-sexual people are to be distinguished from inter-sexual people. Society and the law had moved on since the case of Corbett, and the case of Goodwin had superceded the CA decision in this case. However, though the law needed to be changed, it was not for the House to do so. That would require wide ranging changes, involving matters which were quite outside the court’s powers. The court granted a declaration of incompatibility for section 11(c) but no more. Lord Nicholls said: ‘It may also be that there are circumstances where maintaining an offending law in operation for a reasonable period pending enactment of corrective legislation is justifiable. An individual may not then be able, during the transitional period, to complain that his rights have been violated. The admissibility decision of the court in Walden v Liechtenstein (Application no 33916/96) (unreported) 16 March 2000 is an example of this pragmatic approach to the practicalities of government.’

Ghaidan (Appellant) v. Godin-Mendoza (FC) (Respondent) [2004] -

Facts From 1983, the defendant, Juan Godin-Mendoza (JGM) and his homosexual partner Hugh Wallwyn-James (HWJ) shared a flat which was subject to a statutory tenancy granted upon HWJ under the Rent Act 1977 (RA). On HWJ’s death in 2001, the landlord, Ahmad Ghaidan brought proceedings against JGM in the County Court, claiming possession of the flat.

History JGM claimed that he had succeeded to the statutory tenancy as spouse of the deceased, under the provisions of Schedule 1, para 2 of the RA 1977. The County Court judge, basing his decision on Fitzpatrick v Sterling Housing Association Ltd [1999] stated that a same-sex relationship was not equivalent to a spousal relationship. The defendant, JGM appealed, contending that he was precluded by Fitzpatrick to be awarded a statutory tenancy, and stating that the decision in Fitzpatrick had to be reconsidered in light of the Human Rights Act 1998 (HRA). The Court of Appeal (CA) stated that although the facts of the case were not dissimilar to those in Fitzpatrick, the HRA imposed on the Court an obligation to interpret the RA 1977 to

be compatible with the European Convention on Human Rights (ECHR) and the HRA. Therefore it was important to determine if Fitzpatrick secured freedom from discrimination under Article 14. The CA was bound by the decision on the application of Article 14 in Wandsworth London BC v Michalak [2002], to find a comparator who had been treated differently from JGM; here, the comparator was a heterosexual couple. A further question was if in order to invoke Article 14 it was necessary that other Convention rights were also engaged. In Petrovic v Austria (2001) the Strasbourg Court stated that Article 14 comes into play if the subject-matter of the disadvantage is linked to a guaranteed right. As such, the ambit of Article 14 is wide and can be engaged by infringement of Article 8. The landlord claimed that Article 8 was not engaged; it was concerned with interference with a home by the State, and it did not apply to a case between private litigants. Furthermore, JGM was allowed to stay in the property albeit as an assured tenant, not a statutory tenant. The CA stated that Article 8 imposed positive obligations on public authorities to protect a person’s rights in respect of home and family life. The CA was a public authority and the case fell, therefore, within the ambit of Article 8. Furthermore, the Strasbourg Court had ruled in Inze v Austria (1987) 10 EHRR 394 that Article 14 is engaged also in respect of future interests. The CA stated that Parliament had extended the protection afforded to family life and home under para 2 of the RA to unmarried and childless couples. The House of Lords in Fitzpatrick followed the wishes of Parliament but failed to recognise that Parliament did not state that the legislation excluded homosexual couples. The landlord claimed that at Union level, extension of rights to homosexual couples had been denied in Grant v South-West Trains Ltd (C-249/96) [1998] and the European Court (ECJ) had ruled that denying this extension was not discriminatory because as far as the European Commission on Human Rights was concerned, national provisions for the protection of the family can afford more favourable treatment to married people or people of the opposite sex living together. Consequently, it is not required under Union law to treat a relationship between people of the same sex equally to one between people of the opposite sex. The CA stated that discrimination on grounds of sexu...