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Constitutional - From: 1980 To: 1984

This page lists 41 cases, and was prepared on 20 May 2019.

 
Zainal bin Hashim v Government of Malaysia [1980] AC 734
1980
PC

Commonwealth, Constitutional
A statute should not be given a construction that would impair existing rights personal or in property unless the language in which it is couched requires such a construction. The court considered the presumption that vested rights are not affected without clear wording. The rule in Joseph Suche was to be restricted so that "for pending actions to be affected by retrospective legislation, the language of the enactment must be such that no other conclusion is possible than that that was the intention of the legislature." Since the potential injustice of interfering with the rights of parties to actual proceedings is particularly obvious, this narrower presumption will be that much harder to displace, but it was displaced in this case.
1 Cites

1 Citers



 
 Ong Ah Chuan v The Public Prosecutor; PC 1980 - [1981] AC 648; [1980] 3 WLR 855; [1981] Crim LR 245
 
Harrikissoon v Attorney-General of Trinidad and Tobago [1980] AC 265
1980
PC
Lord Diplock
Constitutional, Commonwealth
(Trinidad and Tobago) The appellant teacher alleged that he had been transferred from one school to another without proper notice and as punishment. The appellant instead of following a laid out procedure which would have eventually led to a decision by the Teaching Service Commission, sued under the Constitution of Trinidad and Tobago for a declaration of breach of his human rights. Held: The Board pointed out the danger of allowing the value of the right to apply to the High Court for redress for contravention of his fundamental rights and freedoms which is conferred upon the individual by section [14] of the Constitution of Trinidad and Tobago to become debased by failure by the courts to dispose summarily of applications that are plainly frivolous or vexatious or are otherwise an abuse of process of the court.
Lord Diplock said: "One of the grounds on which both the High Court and the Court of Appeal dismissed the appellant’s claim was because they regarded themselves as precluded from adjudicating upon it by section 102(4) of the Constitution which provides: "The question whether - (a) A Commission to which this section applies had validly performed any function vested in it by or under this Constitution . . shall not be inquired into in any court." The ouster of the court’s jurisdiction effected by this section is in terms absolute. In their Lordships’ view it is clearly wide enough to deprive all courts of jurisdiction to entertain a challenge to the validity of an order of transfer on either of the grounds alleged by the appellant in the instant case; and that is sufficient to support the dismissal of the appellant’s claim on this ground also.
In all the judgments below, however, there is considerable discussion of recent English cases dealing with "ouster of jurisdiction clauses" contained in Acts of Parliament. Section 102(4) does not form part of an Act of Parliament; it is part of the Constitution itself. Their Lordships do not think that the instant appeal provides an appropriate occasion for considering whether section 102(4) of the Constitution, despite its unqualified language, is nevertheless subject to the same limited kind of implicit exception as was held by the House of Lords in Anisminic Ltd. V. Foreign Compensation Commission [1969] 2 A.C. 147 to apply to an ouster of jurisdiction clause in very similar terms contained in an Act of Parliament. This question is best left to be decided in some future case if one should arise, in which the facts provide a concrete example of the kind of circumstances that were discussed in the judgments in the Anisminic case. The facts in the instant appeal do not. The appeal is dismissed with costs."
1 Citers



 
 Duport Steels Ltd v Sirs; HL 3-Jan-1980 - [1980] 1 WLR 142; [1980] 1 All ER 529; [1980] ICR 161; [1980] IRLR 116
 
South East Asia Fire Bricks Sdn. Bhd v Non-Metalic Mineral Products Manufacturing Employees Union and Others [1980] UKPC 21; [1980] 3 WLR 318; [1980] 2 All ER 689; [1981] AC 363
24 Jun 1980
PC
Lord Fraser of Tullybelton
Commonwealth, Constitutional
Malaysia - A subject's right of recourse to the courts is not to be taken away except by clear words. Where a statute provides that a decision is ‘final', it is ordinarily taken to preclude a right of appeal except in cases where the tribunal has acted without jurisdiction or otherwise such that its decision is a nullity.
Lord Fraser of Tullybelton said: "[T]he final words ‘quashed or called in question in any court of law' seemed to their Lordships to be clearly directed to certiorari. ‘Quashed' is the word ordinarily used to describe the result of an order of certiorari, and it is not commonly used in connection with other forms of procedure (except in the quite different sense of quashing a sentence after conviction on a criminal charge). If ‘quashed' were for some reason not enough, the expression ‘called in question in any court of law' is in their Lordships opinion amply wide enough to include certiorari procedure."
[ Bailii ]

 
 In re Racal Communications Ltd; In Re a Company; HL 3-Jul-1980 - [1981] AC 374; [1980] UKHL 5; [1980] 2 All ER 634; [1980] 3 WLR 181

 
 Fothergill v Monarch Airlines Ltd; HL 10-Jul-1980 - [1980] 2 All ER 696; [1980] 3 WLR 209; [1981] AC 251; [1980] UKHL 6

 
 Buttes Gas and Oil Co v Hammer (No 3); HL 1981 - [1982] AC 888; [1981] 3 All ER 616; [1981] 3 WLR 787

 
 Frater v The Queen (Note); PC 1981 - [1981] 1 WLR 1468

 
 Fernandes v Secretary of State; CA 1981 - [1981] Imm AR 1

 
 Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd; HL 1981 - [1981] AC 909; [1981] 1 Lloyds Rep 253

 
 Royal College of Nursing of the United Kingdom v Department of Health and Social Security; HL 2-Jan-1981 - [1981] AC 800; [1981] 1 All ER 545 CA and HL(E); [1981] 2 WLR 279; [1980] UKHL 10
 
Spa Vinal v Spa Orbat R-46/80; [1981] EUECJ R-46/80; C-46/80
14 Jan 1981
ECJ

European, Taxes Management, Constitutional
ECJ 1. In its present stage of development community law does not restrict the freedom of each member state to lay down tax arrangements which differentiate between certain products on the basis of objective criteria, such as the nature of the raw materials used or the production processes employed. Such differentiation is compatible with community law if it pursues objectives of economic policy which are themselves compatible with the requirements of the treaty and its secondary law and if the detailed rules are such as to avoid any form of discrimination, direct or indirect in regard to imports from other member states or any form of protection of competing domestic products.
2. Tax arrangements which impose heavier charges on denatured synthetic alcohol than on denatured alcohol obtained by fermentation on the basis of the raw materials and the manufacturing processes employed for the two products are not at variance with the first paragraph of article 95 of the eec treaty if they are applied identically to the two categories of alcohol originating in other member states.
Such tax arrangements are justified even though the products in question, whilst derived from different raw materials, are capable of being put to the same uses and have the same practical application.

Where by reason of the taxation of synthetic alcohol, it has been impossible to develop profitable production of that type of alcohol on national territory, the application of such tax arrangements cannot be considered as constituting indirect protection of national production of alcohol obtained by fermentation within the meaning of the second paragraph of article 95 of the eec treaty on the sole ground that their consequence is that the product subject to the heavier taxation is in fact a product which is exclusively imported from other member states of the community.
[ Bailii ]
 
Buchholz v Germany 7759/77; [1981] ECHR 2; (1981) 3 EHRR 597
6 May 1981
ECHR

Human Rights, Constitutional
The ECHR did not apply to rights determined by a constitutional court because of their constitutional nature.
European Convention on Human Rights 6
1 Citers

[ Bailii ] - [ Bailii ]
 
Resolution to amend the Constitution [1981] 1 SCR 753; 34 Nfld and PEIR 1; 125 DLR (3d) 1; 1981 CanLII 25 (SCC); [1981] 6 WWR 1; 39 NR 1; [1981] SCJ No 58 (QL); 11 Man R (2d) 1; 1 CRR 59; 95 APR 1
28 Sep 1981

Laskin C. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ
Constitutional
Supreme Court of Canada
The References in question were prompted by the opposition of eight provinces to a proposed Resolution, published on October 2, 1980. The proposed Resolution contained an address to be presented to Her Majesty The Queen in right of the United Kingdom and a statute, to which was appended another statute providing for the patriation of the B.N.A. Act, with an amending procedure, and a Charter of Rights and Freedoms. The proposed Resolution carried the approval of only two provinces, Ontario and New Brunswick. The opposition of the others, save Saskatchewan, was based on their assertion that both conventionally and legally the consent of all the provinces was required for the address to be forwarded to Her Majesty with the appended statutes. The proposed Resolution was adopted by the House of Commons and by the Senate on April 23 and 24, 1981.
Questions 1, 2 and 3 of the Manitoba and Newfoundland References submitted for answer and this Court's answers were as follows:
Question 1 - If the amendments to the Constitution of Canada sought in the "Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada", or any of them, were enacted, would federal-provincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments be affected and if so, in what respect or respects?
Answer - Yes.
Question 2 - Is it a constitutional convention that the House of Commons and Senate of Canada will not request Her Majesty the Queen to lay before the Parliament of the United Kingdom of Great Britain and Northern Ireland a measure to amend the Constitution of Canada affecting federal-provincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments without first obtaining the agreement of the provinces?
Answer - Yes.
The Chief Justice and Estey and McIntyre JJ. dissenting would answer "no".
Question 3 - Is the agreement of the provinces of Canada constitutionally required for amendment to the Constitution of Canada where such amendment affects federal-provincial relationships or alters the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments?
Answer -For the reasons stated in answer to Question 2, as a matter of constitutional convention, "yes". The Chief Justice and Estey and McIntyre JJ. dissenting would answer "no".
-As a matter of law, "no". Martland and Ritchie JJ. dissenting would answer "yes".
The Question 4 of the Newfoundland Reference submitted for answer and this Court's answer was as follows:
Question 4 - If Part V of the proposed resolution referred to in question 1 is enacted and proclaimed into force could
(a) the Terms of Union, including terms 2 and 17 thereof contained in the Schedule to the British North America Act, 1949 (12-13 George VI, c. 22 (UK)), or
(b) section 3 of the British North America Act, 1871 (34-35 Victoria, c. 28 (UK))
be amended directly or indirectly pursuant to Part V without the consent of the Government, Legislature or a majority of the people of the Province of Newfoundland voting in a referendum held pursuant to Part V?
Answer - As expressed in the reasons of the Newfoundland Court of Appeal, subject to the correction made in the reasons of this Court.
Questions A and B of the Quebec Reference submitted for answer and this Court's answers were as follows:
Question A - If the Canada Act and the Constitution Act, 1981 should come into force and if they should be valid in all respects in Canada would they affect:
(i) the legislative competence of the provincial legislatures in virtue of the Canadian Constitution?
(ii) the status or role of the provincial legislatures or governments within the Canadian Federation?
Answers -(i) Yes.
(ii) Yes.
Question B-Does the Canadian Constitution empower, whether by statute, convention or otherwise, the Senate and the House of Commons of Canada to cause the Canadian Constitution to be amended without the consent of the provinces and in spite of the objection of several of them, in such a manner as to affect:
(i) the legislative competence of the provincial legislatures in virtue of the Canadian Constitution?
(ii) the status or role of the provincial legislatures or governments within the Canadian Federation?
Answers -(i)
(a) by statute, no;
(b) by convention, no.
The Chief Justice and Estey and McIntyre JJ. would answer that there is no precluding convention.
(c) as a matter of law, yes.
Martland and Ritchie JJ. dissenting would answer "no".
(ii)
(a) by statute, no;
(b) by convention, no.
The Chief Justice and Estey and McIntyre JJ. would answer that there is no precluding convention.
(c) as a matter of law, yes.
Martland and Ritchie JJ. dissenting would answer "no".
Chief Justice (Laskin) and Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ stated: "The very nature of a convention, as political in inception and as depending on a consistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed over a considerable period of time is inconsistent with its legal enforcement."
Chief Justice and Estey and MacIntyre JJ (dissenting) considered the status of conventions: "[A] fundamental difference between the legal, that is the statutory and common law rules of the constitution, and the conventional rules is that, while a breach of the legal rules, whether of statutory or common law nature, has a legal consequence in that it will be restrained by the courts, no such sanction exists for breach or non-observance of the conventional rules. The observance of constitutional conventions depends upon the acceptance of the obligation of conformance by the actors deemed to be bound thereby. When this consideration is insufficient to compel observance no court may enforce the convention by legal action. The sanction for non-observance of a convention is political in that disregard of a convention may lead to political defeat, to loss of office, or to other political consequences, but will not engage the attention of the courts which are limited to matters of law alone. Courts, however, may recognise the existence of conventions . . "
Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer JJ agreed: "It is because the sanctions of convention rest with institutions of government other than courts . . or with public opinion and ultimately, with the electorate, that it is generally said that they are political."
1 Citers

[ Canlii ]

 
 Bromley London Borough Council v Greater London Council; HL 17-Dec-1981 - [1983] AC 768; [1982] 1 All ER 153; [1981] UKHL 7; [1982] 2 WLR 62
 
Broadcasting Corporation of New Zealand v Attorney General [1982] 1 NZLR 120
1982

Woodhouse P
Constitutional
(Court of Appeal of New Zealand) Woodhouse P said: "the principle of public access to the Courts is an essential element in our system. Nor are the reasons in the slightest degree difficult to find. The Judges speak and act on behalf of the community. They necessarily exercise great power in order to discharge heavy responsibilities. The fact that they do it under the eyes of their fellow citizens means that they must provide daily and public assurance that so far as they can manage it what they do is done efficiently if possible, with human understanding it may be hoped, but certainly by a fair and balanced application of the law to the facts as they really appear to be. Nor is it simply a matter of providing just answers for individual cases, important though that always will be. It is a matter as well of maintaining a system of justice which requires that the judiciary will be seen day by day attempting to grapple in the same even fashion with the whole generality of cases. To the extent that public confidence is then given in return so may the process may be regarded as fulfilling its purposes."
1 Citers



 
 Thomas v Attorney-General of Trinidad and Tobago; PC 1982 - [1982] AC 113; (1981) 32 WIR 375; [1981] 3 WLR 601
 
Regina v The Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta [1982] QB 892; [1982] 2 All ER 118
1982
CA
Lord Denning, Kerr LJ, May LJ
Constitutional
The court considered an application leave to request a judicial review seeking a declaration that treaty obligations entered into by the Crown to the Indian peoples of Canada were still owed by Her Majesty in right of Her government in the UK. Held: The claim failed. The Crown was not single and indivisible but separate in respect of each self-governing territory within the Commonwealth. After 1926 "the Crown was no longer single and indivisible. It was separate and divisible for each self-governing dominion or province or territory". This principle applied as much to a colony as to a dominion. Kerr LJ emphasised that whether the situs of rights and obligations of the Crown is to be found in right, or in respect of, the United Kingdom or of other governments within the Commonwealth of which Her Majesty is Head of State has nothing to do with whether those governments are independent or not: "Indeed, independence, or the degree of independence, is wholly irrelevant to the issue, because it is clear that rights and obligations of the Crown will arise exclusively in right or respect of any government outside the bounds of the United Kingdom as soon as soon as it can be seen that there is an established government of the Crown in the overseas territory in question."
Kerr LJ discussed the argument that Canada was not fully independent of the UK: "With respect, in my judgment this argument is wholly fallacious. As shown by the basic constitutional principles discussed at the beginning of this judgment, it is perfectly clear that the question whether the situs of rights and obligations of the Crown is to be found in right or respect of the United Kingdom, or of other governments within those parts of the Commonwealth of which Her Majesty is the ultimate sovereign, has nothing whatever to do with the question whether those governments are wholly independent or not. The situs of such rights and obligations rests with the overseas governments within the realm of the Crown, and not with the Crown in right or respect of the United Kingdom, even though the powers of such governments fall a very long way below the level of independence. Indeed, independence, or the degree of independence, is wholly irrelevant to the issue, because it is clear that rights and obligations of the Crown will arise exclusively in right or respect of any government outside the bounds of the United Kingdom as soon as it can be seen that there is an established government of the Crown in the overseas territory in question. In relation to Canada this had clearly happened by 1867."
Lord Denning MR said that the treaties having been entered into by the Crown when in law it was one and indivisible, and was the Crown of the United Kingdom. Then in the first quarter of the nineteenth century this law was changed, not by statute but by constitutional usage and practice, so that the Crown thereafter was separate and divisible for each self-governing territory of the Commonwealth. Thereupon the existing obligations of the Crown became obligations of the Crown in respect of the territories to which they related, binding on the Crown only in right of those territories and no longer in right of the United Kingdom.
May LJ said that any treaty or other obligation which the Crown had entered into with the Canadian Indians 'had become the responsibility of the government of Canada with the attainment of independence, at the latest with the Statute of Westminster 1931.'
Statute of Westminster 1931
1 Cites

1 Citers



 
 Murphy v Attorney General; 1982 - [1982] IR 241

 
 Regina v Foreign Secretary ex parte Indian Association of Alberta; CA 1982 - [1982] QB 892; [1982] 2 All ER 118; [1982] 2 WLR 641
 
Prest v Secretary of State for Wales (1982) 81 LGR 193
1982
CA
Lord Denning MR
Land, Constitutional
Lord Denning MR said: "I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressly authorised by Parliament and the public interest decisively so demands . ."
Watkins LJ said: "The taking of a person's land against his will is a serious invasion of his proprietary rights. The use of statutory authority for the destruction of those rights requires to be most carefully scrutinised. The courts must be vigilant to see to it that that authority is not abused. It must not be used unless it is clear that the Secretary of State has allowed those rights to be violated by a decision based upon the right legal principles, adequate evidence and proper consideration of the factor which sways his mind into confirmation of the order sought."
1 Citers


 
Becker v Finanzamt Muenster-Innenstadt C-8/81; R-8/81; [1982] EUECJ R-8/81; [1982] ECR 53
19 Jan 1982
ECJ

European, Constitutional
ECJ It would be incompatible with the binding effect which article 189 of the EEC treaty ascribes to directives to exclude in principle the possibility of the obligation imposed by it being relied upon by persons concerned. Particularly in cases in which the community authorities have, by means of a directive, placed member states under a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of community law. Consequently, a member state which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails. Thus, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the state.
Whilst the sixth council directive 77/388 on the harmonization of the laws of the member states relating to turnover taxes undoubtedly confers upon the member states varying degrees of discretion as regards implementing certain of its provisions, individuals may not for that reason be denied the right to rely on any provisions which owing to their particular subject-matter are capable of being severed from the general body of provisions and applied separately. This minimum guarantee for persons adversely affected by the failure to implement the directive is a consequence of the binding nature of the obligation imposed on the member states by the third paragraph of article 189 of the eec treaty. That obligation would be rendered totally ineffectual if the member states were permitted to annul, as the result of their inactivity, even those effects which certain provisions of a directive are capable of producing by virtue of their subject-matter.
Article 13 c of directive 77/388 does not in any way confer upon the member states the right to place conditions on or to restrict in any manner whatsoever the exemptions provided for by part b. It merely reserves the right to the member states to allow, to a greater or lesser degree, persons entitled to those exemptions to opt for taxation themselves, if they consider that it is in their interest to do so.
The scheme of directive 77/388 is such that on the one hand, by availing themselves of an exemption, persons entitled thereto necessarily waive the right to claim a deduction in respect of input tax and on the other hand, having been exempted from the tax, they are unable to pass on any charge whatsoever to the person following them in the chain of supply, with the result that the rights of third parties in principle cannot be affected.
As from 1 january 1979 it was possible for the provision concerning the exemption from turnover tax of transactions consisting of the negotiation of credit contained in article 13b(d) 1 of directive 77/388 to be relied upon, in the absence of the implementation of that directive, by a credit negotiator where he had refrained from passing that tax on to persons following him in the chain of supply, and the state could not claim, as against him, that it had failed to implement the directive.
1 Citers

[ Bailii ]

 
 Adam v Commission; ECJ 4-Feb-1982 - C-828/79; [1982] EUECJ C-828/79
 
Reference re : Amendment to the Canadian Constitution [1982] 2 SCR 791; 1982 CanLII 218 (SCC)
9 Feb 1982


Commonwealth, Constitutional
Supreme Court of Canada - Application for leave to appeal from a decision of the Court of Appeal of Quebec dismissing applicant's application to intervene relating to a reference ordered by the Government of Quebec. Application dismisse
[ Canlii ]

 
 Home Office v Hariette Harman; HL 11-Feb-1982 - [1983] 1 AC 280; [1982] 2 WLR 338; [1982] 1 All ER 532; (1982) 126 SJ 136
 
Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General [1983] Ch 77; [1982] 3 All ER 786
7 May 1982
ChD
Sir Robert Megarry V-C
Constitutional, Administrative
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical treaties. The Attorney General sought the strike out of the claims. Held: The application for a strike out succeeded. The Act recited that it had been passed at the request of the Canadian Parliament. A British Court could not refuse to obey or question the validity of an Act of Parliament: 'The Canada Act 1982 is an Act of Parliament, and sitting as a judge in an English court, I owe full and dutiful obedience to that Act.' Declaratory relief was not available as against a party not before the court.
Sir Robert Megarry V-C: "A motion to strike out a pleading should not be treated as being the trial of a demurrer or a preliminary point of law, to be determined one way or the other even if the judge is beset by hesitations and doubts. He who moves such a motion must make out a case that is clear beyond doubt. At the same time, one must beware of any assumption that because a case takes a long time to argue, the points at issue must be doubtful. Arguments must be assessed on their quality rather than on their duration, and sometimes the weaker the case the greater the profusion of ingenuity in supporting it." and
"I have grave doubts about the theory of the transfer of sovereignty as affecting the competence of Parliament. In my view, it is a fundamental of the English constitution that Parliament is supreme. As a matter of law the courts of England recognise Parliament as being omnipotent in all save the power to destroy its own omnipotence. Under the authority of Parliament the courts of a territory may be released from their legal duty to obey Parliament, but that does not trench on the acceptance by the English courts of all that Parliament does. Nor must validity in law be confused with practical enforceability."
Canada Act 1982 - Statute of Westminster 1931 - British North America Act 1930 - British North America Act 1867
1 Cites

1 Citers



 
 Manuel and Others v HM Attorney General; CA 30-Jul-1982 - [1982] 3 All ER 822; [1982] EWCA Civ 4; [1983] Ch 77

 
 Srl CILFIT v Ministero Della Sanita; ECJ 6-Oct-1982 - C-283/81; [1982] ECR I-03415; [1983] 1 CMLR 472; [1982] EUECJ R-283/81; [1982] ECR 3415
 
Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553; [1982] 3 All ER 833; [1982] 3 WLR 1026
7 Oct 1982
PC
Lord Brightman, Lord Fraser of Tulleybelton, Lord Scarman, Kord Kwry, Lord Bridge of Harwich
Constitutional, Limitation, Commonwealth
(Malaysia) In 1972 the appellants were injured by the respondent's bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue under the 1974 Act. Held: The claim was time barred. The respondent's right to rely upon entitlement to plead the twelve-month time bar constituted an accrued right, and the Act was not to be construed retrospectively depriving it of its defence unless such a construction was unavoidable, which it was not.
Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past. Whether a statute is to be construed in a retrospective sense, and if so to what extent, depends on the intention of the legislature as expressed in the wording of the statute, having regard to the normal canons of construction and to the relevant provisions of any interpretation statute.
Lord Brightman said: "Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past." As to whether a right to rely upon a statutory limitation provision of that type was a vested right he answered "yes", citing Maxwell v Murphy. The respondent had acquired an "accrued right" on the failure by the appellants to commence an action within the specified period. The proper approach to the construction of the 1948 Ordinance was to see whether the statute, if applied retrospectively, would impair existing rights and obligations. An accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an Act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable."
He concluded: "In the opinion of their Lordships an accrued entitlement on the part of a person to plead the lapse of a limitation period as an answer to the future institution of proceedings is just as much a 'right' as any other statutory or contractual provision against a future suit."
1 Cites

1 Citers


 
Lutchmeeparsad Badry v The Director of Public Prosecutions [1982] UKPC 1; [1983] 2 AC 297; (Appeals Nos 4, 5 and 6 of 1981)
15 Nov 1982
PC
The Lord Chancellor (Lord Hailsham of St. Marylebone), Lord Scarman, Lord Roskill, Lord Brandon of Oakbrook, Lord Templeman
Constitutional, Commonwealth, Contempt of Court
(Mauritius) The applicant appealed three counts of contempt of court, arising from speeches made by him in the political debate. He had been a minister, but was subject to investigation for fraud. To found a appeal he had to show some blatant or significant disregard or breach of legal process, or injustice. The board do not sit as a criminal appeal court. Held: It was not possible to take any interpretation of some of the words used which did not amount to an attack on the integrity of the judicial system, but other charges were not such an attack.
1 Cites

1 Citers

[ Bailii ] - [ PC ] - [ PC ]
 
Wills v Bowley [1983] 1 AC 57
1983
HL
Lord Bridge of Harwich
Constitutional, Police
The section required a constable to “take into custody without warrant, and forthwith convey before a Justice, any person who in his view” commits a range of offences. Held: It was to be construed in such a way as not unduly to narrow the police's powers of arrest. Proper consideration should be had to the maintenance of public order and other aspects of the public interest and powers conferred by Parliament should not lightly be rendered ineffective. Lord Bridge of Harwich: “If a power of arrest in flagrante delicto is to be effective at all, the person who exercises it needs protection,....so far as the law can give it”. Section 28 of the 1847 Act protected the police, if they honestly if mistakenly believed on reasonable grounds that they have seen an offence being committed. (Majority decision)
Town Police Clauses Act l847 47
1 Citers



 
 Regina v Government of Holloway Prison, Ex parte Jennings; HL 1983 - [1982] 3 All ER 104; [1983] RTR 1; (1982) 75 Cr App R 367; [1983] 1 AC 624; [1982] 3 WLR 450; (1982) 146 JP 396

 
 Air Canada v Secretary of State for Trade; HL 1983 - [1983] 2 AC 394; [1983] 1 All ER 161; [1983] 2 WLR 494
 
Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1
1983

Blackburn CJ
Constitutional
(Supreme Court of the Australian Capital Territory) Hansard was admissible to show what had been said in the Queensland Parliament as a matter of fact, without the need for the consent of Parliament. Blackburn CJ added: "I think that the way in which the court complies with Article 9 of the Bill of Rights 1689, and with the law of the privileges of Parliament, is not by refusing to admit evidence of what was said in Parliament, but by refusing to allow the substance of what was said in Parliament to be the subject of any submission or inference."
Bill of Rights 1689 9
1 Citers



 
 Regina v Boundary Commission for England, ex part Gateshead Borough Council; CA 25-Jan-1983 - [1983] 1 QB 600; [1983] EWCA Civ 10

 
 Attorney General of Hong Kong v Ng Yuen Shiu; PC 21-Feb-1983 - [1983] 2 AC 629; [1983] UKPC 2; [1983] UKPC 7; [1983] 2 All ER 346; [1983] 2 WLR 735
 
Attorney-General v Momodou Jobe [1984] AC 689; [1984] UKPC 10
26 Mar 1984
PC
Lord Diplock
Constitutional
(Gambia) A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction. In the construction of statutory provisions which contravene human rights and freedoms there is a presumption of constitutionality. The presumption of constitutionality is "but a particular application of the canon of construction embodied in the Latin maxim magis est ut res valeat quam pereat which is an aid to the resolution of any ambiguities or obscurities in the actual words used in any document that is manifestly intended by its makers to create legal rights or obligations."
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[ Bailii ]
 
University of Wollongong v Merwally (1984) 158 CLR 447
22 Nov 1984

Deane J
Commonwealth, Constitutional
(High Court of Australia) Deane J said: "A parliament may legislate that, for the purposes of the law which it controls, past facts or past laws are to be deemed and treated as having been different to what they were. It cannot however objectively expunge the past or alter the facts of history."
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[ Austlii ]
 
Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374; [1985] ICR 14; [1984] 3 All ER 935; [1983] UKHL 6; [1984] 3 WLR 1174; [1985] IRLR 28; [1984] UKHL 9; [1985] AC 374
22 Nov 1984
HL
Lord Scarman, Lord Diplock, Lord Fraser of Tullybelton
Judicial Review, Administrative, Constitutional
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions. Held: The exercise of a prerogative power of a public nature may be, subject to constraints of national security and the like, as susceptible to review as that of a statutory power. The controlling factor in determining whether the exercise of a power by a body is subject to judicial review is not in its source but its subject matter. Challenges to the lawfulness of subordinate legislation or administrative decisions and acts may take under the headings of illegality, procedural impropriety and irrationality.
Though it was unfair for the government to decide to deprive a civil servant of his right to belong to a trade union without first consulting the civil servant or his union but for the overriding interests of national security which justified the government's decision.
Lord Diplock said: "A legitimate expectation may arise from an express promise "given on behalf of a public authority", and "some benefit or advantage which . . [the applicant] had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment." and "To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision - maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been committed to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn."
and "Many of the most important prerogative powers concerned with the control of the armed forces and with foreign policy and with matters which are unsuitable for discussion or review in the Law Court . . Such decisions will generally involve the application of Government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the Executive discretion is to be wisely exercised, need to be weighed against one another - a balancing exercise which judges by their upbringing and experience are ill-qualified to perform."
Lord Diplock summarised the grounds of judicial review: "By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' . . It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
Lord Fraser said: "The question is one of evidence. The decision on whether the requirements of national security outweigh the duty of fairness in any particular case is for the Government and not for the courts; the Government alone has access to the information, and in any event the judicial process is unsuitable for reaching decisions on national security. But if the decision is successfully challenged, on the ground that it has been reached by a process which is unfair, then the Government is under an obligation to produce evidence that the decision was in fact based on grounds of national security."
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 Regina v Her Majesty's Treasury, Ex parte Smedley; CA 19-Dec-1984 - [1985] 1 QB 657; [1984] EWCA Civ 7
 
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