Lord Thankerton said: ‘In this case, as in similar cases that have come before the Courts, Parliament has delegated its legislative function to a Minister of the Crown, but in this case Parliament has retained no specific control over the exercise of the function by the Minister, such as a condition that the order should be laid before Parliament and might be annulled by a resolution of either House within a limited period. In my opinion the true principle of construction of such delegation by Parliament of its legislative function is that it only confers a limited power on the Minister, and that, unless Parliament expressly excludes the jurisdiction of the Court, the Court has the right and duty to decide whether the Minister has acted within the limits of his delegated power.’
and: ‘Where, however, the power delegated to the Minister is a discretionary power, the exercise of that power within the limits of the discretion will not be open to challenge in a Court of law.’

Judges:

Lord Thankerton

Citations:

[1931] AC 494

Cited by:

Cited – McEldowney v Forde HL 18-Jun-1969
The House was asked whether the Magistrates had properly dismissed a charge of membership of an unlawful organisation, namely a Republican club. The Magistrates had found that an unlawful club would only be such if it supported the absorption of . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 11 May 2022; Ref: scu.546905

The court echoed the description of the rule against retrospectivity in an Act so as to remove existing right, quoting Maxwell ‘Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.’

Judges:

Scarman J

Citations:

[1964] 1 WLR 511

Jurisdiction:

England and Wales

Cited by:

Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 11 May 2022; Ref: scu.192182

(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.’

Judges:

Blackburn CJ

Citations:

(1983) 50 ACTR 1

Statutes:

Bill of Rights 1689 9

Jurisdiction:

Australia

Cited by:

Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Cited – Office of Government Commerce v Information Commissioner and Another Admn 11-Apr-2008
The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for . .
Cited – Dhir v Saddler QBD 6-Dec-2017
Slander damages reduced for conduct
Claim in slander. The defendant was said, at a church meeting to have accused the client of threatening to slit her throat. The defendant argued that the audience of 80 was not large enough.
Held: ‘the authorities demonstrate that it is the . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 10 May 2022; Ref: scu.266729

The court considered the ability to sever void sections of statutes from other sections.
Held: Griffiths CJ said: ‘It is contended, on the authority of decisions of the Supreme Court of the United States, which are entitled to the greatest respect, that the test is this, that if the court, on a consideration of the whole statute, and rejecting the parts held to be ultra vires, is unable to say that the legislature would have adopted the rest without them, the whole statute must be held invalid. With profound deference I venture to doubt the accuracy of this test. What a man would have done in a state of facts which never existed is a matter of mere speculation, which a man cannot certainly answer for himself, much less for another. I venture to think that a safer test is whether the statute with the invalid portions omitted would be substantially a different law as to the subject matter dealt with by what remains from what it would be with the omitted portions forming part of it.’
Isaacs J said: ‘If good and bad provisions are wrapped up in the same word or expression, the whole must fall. Separation is there from the nature of the case impossible, and as it is imperative to eject the bad – and this can only be done by condemning the word or phrase which contains it – the good must share the same fate.’

Judges:

Griffiths CJ, Isaacs J

Citations:

(1910) 11 CLR 1

Jurisdiction:

Australia

Citing:

Cited – The Employers’ Liability Cases 1908
(US Supreme Court) The court heard together two appeals regarding the range of federal jurisdiction to legislate for the regulation of interstate commerce. The true construction of the federal statute whose constitutionality was in issue was . .
Cited – Illinois Central Railroad Co v McKendree 1906
(US Supreme Court) An order of the Secretary of Agriculture purporting to fix a quarantine line under the Cattle Contagious Disease Act (1903), which applied in terms to all shipments, whether interstate or intrastate, was void, notwithstanding that . .

Cited by:

Cited – Director of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith HL 12-Jul-1990
Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 10 May 2022; Ref: scu.259760

(Supreme Court of Ireland) The Supreme Court held that certain taxation provisions were unconstitutional and void. The court rejected an argument that it was for the courts to say whether these statutory provisions should be held to be invalid prospectively or with only limited retrospective effect. The provisions were invalid from the date on which they were enacted. However, the court also held that the plaintiffs’ restitutionary right to recover amounts paid by way of taxes unconstitutionally imposed began with the first year in which they raised their objections. Further, unless other taxpayers had already made tax recovery claims, only the plaintiffs could maintain a claim pursuant to the court’s decision.

Citations:

[1982] IR 241

Jurisdiction:

England and Wales

Cited by:

Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 09 May 2022; Ref: scu.228292

(High Court of Australia) An Act was proposed to be introduced by the legislature to amend the constitution of New South Wales by abolishing the Legislative Council. There would be required first a vote in favour of that in a referendum. The proposed Act was to be passed under a procedure in s.5B of the New South Wales Constitution Act 1902-1956, whereby legislation could be enacted ultimately without the consent of the Legislative Council. S.5B had been introduced into the New South Wales Constitution by an enactment of the New South Wales legislature under s.5 of the Constitution Act which went: ‘The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever.’
Held: The Act was effective.

Judges:

Dixon CJ, McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ

Citations:

(1960) 105 CLR 214, [1960] HCA 92

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 09 May 2022; Ref: scu.222726

(High Court of Australia) The 1908 Act provided that, when a bill passed by the Legislative Assembly in two successive sessions had in the same two sessions been rejected by the Legislative Council, it might be submitted by referendum to the electors, and, if affirmed by them, should be presented to the Governor for His Majesty’s assent. Upon receiving such assent, the Bill was to become an Act of Parliament in the same manner as if passed by both Houses of Parliament, and notwithstanding any law to the contrary.
Held: This was a valid and effective Act of Parliament by virtue of the power conferred upon the Legislature of Queensland by S.5 of the Colonial Laws Validity Act of 1865. It was further held that there was power to abolish the Legislative Council of Queensland by an Act passed by the Legislative Assembly and affirmed by the electors in accordance with the provisions of the 1908 Act. Barton J ‘The Constitution Act of 1867 provided for all laws passed under it to be enacted ‘by Her Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly in Parliament assembled’, and that the constitution did not recognise the making of laws by any other authority: ‘It is also true that in general the legislation of a body created by and acting under a written charter or constitution is valid only so far as it conforms to the authority conferred by that instrument of government, and that therefore attempted legislation, merely at variance with the charter or constitution, cannot be held an effective law on the ground that the authority conferred by that instrument includes a power to alter or repeal any part of it, if the legislation questioned has to be preceded by a good exercise of such power; that is, if the charter or constitution has not antecedently been so altered within the authority given by that document itself. . . Normally, therefore, in the absence of such a provision as s.5 of the Imperial Act, I should have been prepared to hold that the [1908 Act], which, though it professed to be an amendment of the Constitution Act of 1867, was merely, in view of its provisions, an Act at variance with the constitution, not preceded by a valid extension of the constitutional power, was therefore itself, as it stood, invalid. But in the present case the Imperial provision seems to me to take away the application of the principle I have stated to legislation of the kind which it authorises.’

Judges:

Barton J, Isaacs, Gavan Duffy, Rich and Powers JJ

Citations:

(1917) 23 CLR 457, [1917] HCA 31

Links:

Austlii

Statutes:

Queensland Parliamentary Bills Referendum Act of 1908

Jurisdiction:

Australia

Cited by:

Cited – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 09 May 2022; Ref: scu.222718

The court traced the transformation of the doctrine of the indivisibility of the crown to the modern docrtrine of divisibility. May LJ: ‘Although at one time it was correct to describe the Crown as one and indivisible, with the development of the Commonwealth this is no longer so. Although there is only one person who is the Sovereign within the British Commonwealth, it is now a truism that in matters of law and government the Queen of the United Kingdom, for example, is entirely independent and distinct from the Queen of Canada. Further, the Crown is a constitutional monarchy and thus when one speaks today, and as was frequently done in the course of the argument on this application, of the Crown ‘in right of Canada’ or of some other territory within the Commonwealth, this is only a short way of referring to the Crown acting through and on the advice of Her Ministers in Canada or in that other territory within the Commonwealth.’

Judges:

May LJ

Citations:

[1982] QB 892, [1982] 2 All ER 118, [1982] 2 WLR 641

Jurisdiction:

England and Wales

Cited by:

Cited – Fitzgibbon v HM Attorney General ChD 9-Feb-2005
The claimant sought declarations that the government of Australia was not being conducted in accordance with the 1900 Act as it should be.
Held: Though the Act was an English Act, the Courts of England now have no jurisdiction over Australia: . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 09 May 2022; Ref: scu.222626

Citations:

[2002] NICA 43

Links:

Bailii

Jurisdiction:

Northern Ireland

Constitutional

Updated: 09 May 2022; Ref: scu.201991

(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.’

Judges:

Woodhouse P

Citations:

[1982] 1 NZLR 120

Jurisdiction:

England and Wales

Cited by:

Cited – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 08 May 2022; Ref: scu.452491

The House treated words as surplusage in a statute which contained criminal sanctions in order to avoid the substantial frustration of the object of the Act. Words in an Act are not to be rendered ‘insensible, absurd or ineffective to achieve its evident purpose.’
Lord Bridge said: ‘It is a canon of construction that, if it be possible, effect must be given to every word of an Act of Parliament or other document; but that, if there be a word or a phrase therein to which no sensible meaning can be given, it must be eliminated.’
and ‘I recognise that this is a strong course to take in construing a statute and one which imputes an unusual degree of ineptitude to the draftsman . . the presumption that every word in a statute must be given some effective meaning is a strong one, but the courts have on occasion been driven to disregard particular words or phrases when, by giving effect to them, the operation of the statute would be rendered insensible, absurd or ineffective to achieve its evident purpose.’

Judges:

Lord Bridge

Citations:

[1990] 2 AC 716, [1990] 1 All ER 993

Statutes:

Local Government (Miscellaneous Provisions) Act 1982 Sch 3

Jurisdiction:

England and Wales

Citing:

Cited – Stone v Yeovil Corporation 1876
Brett J said: ‘It is a canon of construction that, if it be possible, effect must be given to every word of an Act of Parliament or other document; but that, if there be a word or phrase therein to which no sensible meaning can be given, it must be . .

Cited by:

Cited – Haw, Regina (on the Application of) v Secretary of State for the Home Department and Another CA 8-May-2006
The applicant had demonstrated continuously against the war in Iraq from the pavement outside the House of Commons. The respondent sought an order for his removal under the law preventing demonstrations near Parliament without consent which was . .
Cited – Barratt Homes Ltd v Dwr Cymru Cyfyngedig (Welsh Water) SC 9-Dec-2009
The developers wanted to construct their private sewer to the public sewer at a point convenient to them. The water company said a connection at the point proposed would overload the sewer, and refused. The developer claimed that it had the right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 07 May 2022; Ref: scu.242611

The House considered the effect on the Irish Free State of a liability undertaken by the United Kingdom Government before the formation of the Irish Free State.
Held: No suit can be maintained against the Crown in right of Great Britain or of a dominion or colony in respect of a liability unless it is to be satisfied out of the British exchequer or the treasury of that dominion or colony. The question whether a suit against the Crown should be brought against it in right of one Dominion, Possession, or jurisdiction rather than another depends upon the exchequer or treasury out of which the liability or claim put in suit would be discharged or satisfied. The responsibility of producing the fund out of which the obligation can be met, depends upon provision being made by the Parliaments of the States, if they choose-and only if they choose-so to provide.

Judges:

Viscount Haldane, Lord Phillimore

Citations:

[1925] AC 754

Jurisdiction:

England and Wales

Cited by:

Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
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 . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 07 May 2022; Ref: scu.241377

Lord Donaldson of Lyminton MR said: ‘Chapters 39 and 40 of Magna Carta provide:
No freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any way destroyed, neither will we set forth against him or send against him, except by the lawful judgment of his peers and by the law of the land.
To no one will we sell, to no one will we refuse or delay right or justice.
The duty of the courts is to uphold this classic statement of the rule of law and if, in particular circumstances, a writ of habeas corpus is the appropriate procedure for doing so, it is wholly immaterial that the practical effect may be the same as enjoining the Crown.’
and ‘The great writ of habeas corpus has over the centuries been a flexible remedy adaptable to changing circumstances.’

Judges:

Lord Donaldson of Lyminton MR

Citations:

[1992] 2 QB 244

Statutes:

Magna Carta

Constitutional

Updated: 06 May 2022; Ref: scu.470606

In cases of the King’s patents with non obstante for the shrievalty of any county, in fee, tail, or for life ; or for the exportation of wool, or for homicide ; although there are statutes which ordain such patents to be void, yet, with a clause of non obstante they are good, and to be allowed : and although the statutes say that such patents shall be void, although they have a clause with non obstante ; yet a patent of such things with words of non obstante any clause derogating from the non obstante will make the patent good. The reason of the law is, the King, by his royalty is trusted with the government, pardons and publick business: particular cases may happen which deserve remission, upon consideration of circumstances.

Citations:

[1220] EngR 267, (1220-1623) Jenk 173, (1220) 145 ER 113 (E)

Links:

Commonlii

Jurisdiction:

England and Wales

Constitutional

Updated: 06 May 2022; Ref: scu.461179

Citations:

[1812] EngR 191, (1812) 4 Taunt 401, (1812) 128 ER 384

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Appeal from – Sir Francis Burdett, Bart v The Right Hon Charles Abbot KBD 1811
Speaker’s Powers to Arrest House Members
To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking . .

Cited by:

Appeal from – Burdett (Bart) v Abbot (Speaker, House of Commons); And Burdett (Bart) Colman (Sergeant At Arms) PC 2-Jul-1817
To an action of trespass against the Speaker of the House of Commons forcibly and with the assistance of armed soldiers, breaking into the messuage of the Plainttiff (the outer door being shut and fastened), and arresting him there, and taking him . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 May 2022; Ref: scu.338677

Sir James Parke, a distinguished judge of the Court of the Exchequer, was created a Life Peer but the House of Lords refused to allow him to sit and vote in the House because, they decided, that as the law then stood, the creation of Life Peers was not within the Crown’s prerogative powers.

Citations:

[1856] EngR 294, (1856) 5 HLC 958, (1856) 10 ER 1181

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Viscountess Rhondda’s Claim HL 1922
(Committee of Privileges of the House of Lords) Viscountess Rhondda asserted a right to sit in the House of Lords as a member, relying on the 1919 Act.
Held: It is incorrect for a court to draw conclusions from such elements of the . .
Cited – Mereworth v Ministry of Justice ChD 23-May-2011
The claimant’s father had been granted the hereditary title of Baron of Mereworth. The claimant having inherited the title objected to the refusal to issue to him a writ of summons to sit in the House of Lords.
Held: The claim was struck out . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 May 2022; Ref: scu.291049

To an action of trespass against the Speaker of the House of Commons forcibly and with the assistance of armed soldiers, breaking into the messuage of the Plainttiff (the outer door being shut and fastened), and arresting him there, and taking him to the Tower of London, and imprisoning there : it is a legal justification to plead that a Parliament was held which was sitting during the period of the trespasses complained of : that the Plaintiff was a member of the House of Commons : and that the House having resolved, ‘that a certain letter, etc. in Cobbett’s Weekly Register was a libellous and scandalous paper, reflecting on the just rights and privileges of the House, and that the Plaintiff, who had admitted that the said Ietter, etc. was printed by his authority, had been thereby guilty of a breach of the privileges of that House ; and having ordered that, for his said offence, he should be committed to the Tower, and that the Speaker should issue his warrant accordingly ; the Defendant as Speaker, in execution of the said order, issued his warrant to the Serjeant at Arms, to
whom the execution of such warrant belonged, to arrest the plaintiff and to commit him to the custody of the Lieutenant of the Tower : and issued another warrant to the Lieutenant of the Tower to receive and detain the Plaintiff in custody during the pleasure of the House ; by virtue of which first warrant the Serjeant at Arms went to the messuage of the Plaintiff,
where he then was, to execute it; and because the outer door was fastened, and he could not enter, after audible notification of his purpose and demand made of admission, he, by the assistance of the said soldiers, broke and entered the Plaintiff’s messuage, and arrested and conveyed him to the Tower, where he was received and detained in custody under the other warrant by the Lieutenant of the Tower. And to a similar action against the Serjeant at Arms, a similar plea, with variations, however, adapted to his situation, is a legal justification.
The Lord Chancellor considering it as clear in law that the House of Commons have the power of committing for contempt, and that this was a commitment for contempt. Lord Erskine concurring.

Citations:

[1817] EngR 614, (1817) 5 Dow PC 165, (1817) 3 ER 1289

Links:

Commonlii

Citing:

At Kings Bench – Sir Francis Burdett, Bart v The Right Hon Charles Abbot KBD 1811
Speaker’s Powers to Arrest House Members
To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking . .
Appeal from – Burdett, Bart v The Right Honourable Charles Abbot CA 22-Apr-1812
. .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 05 May 2022; Ref: scu.333464

The Commander of a Queen’s ship, employed in the suppression of the slave trade on the coast of Africa, seized a schooner belonging to the suppliant, which he suspected of being engaged in slave traffic. It being inconvenient to take the ship to port for condemnation in a Vice-Admiralty Court, the Commander caused the ship to be burned. The shipowners proceeded by Petition of Right. The supplicant-petitioners claimed to have sustained damages to the amount of andpound;10,000 and humbly prayed that Her Majesty would be pleased to do what was right and just in the premises and to cause her suppliants to be reimbursed and compensated for the losses, damages and injuries so sustained. The Attorney General, on demurrer, argued that if wrong had been done the remedy was against the Commander as the person who did it and, secondly, that the Crown was not responsible for acts such as those detailed in the petition. In the course of a long argument on behalf of the petitioner Sir Hugh Cairns drew attention to Blackstone’s Commentaries – 3 BL Comm 254: ‘That the King can do no wrong, is a necessary and fundamental principle of the English Constitution: meaning that, in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the King, nor is he, but his ministers, accountable for it to the people; and, second, that the prerogative of the Crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exerted to their prejudice. Whenever, therefore, it happens that that, by misinformation or inadvertence, the Crown hath been induced to invade the private rights of any of its subjects, though no action will lie against the sovereign (for, who shall command the King?), yet the law hath furnished the subject with a decent and respectful mode of removing that invasion, by informing the King of the true state of the matter in dispute: and, as it presumes, that, to know of any injury and to redress it are inseparable in the Royal Breast, it then issues as of course, in the King’s own name, his orders to his judges to do justice to the party aggrieved.’
Held: Erle CJ said: ‘The maxim that the King can do no wrong is true in the sense that he is not liable to be sued civilly or criminally for a supposed wrong. That which the sovereign does personally, the law presumes will not be wrong: that which the sovereign does by command to his servants, cannot be a wrong in the sovereign, because, if the command is unlawful, it is in law no command, and the servant is responsible for the unlawful act, the same as if there had been no command.’ He referred to 3 BL Comm: ‘The King can do no wrong; which antient and fundamental maxim is not to be understood as if everything transacted by the government was of course just and lawful, but means only two things, – first, whatever is exceptionable in the conduct of public affairs is not to be imputed to the King, nor he is answerable for it personally to his people; for, this doctrine would destroy the constitutional independence of the Crown, – and, secondly, that the prerogative of the Crown extends not to do any injury.’
That maxim, said the Chief Justice, had been constantly recognised and he rejected that the King could be responsible in damages for a supposed wrong. He then turned to the use and abuse of petitions of right. The court held that such petitions did not enable an award of damages to be made against the King; if damages were sought, they were to be obtained, if at all, from the officer who did the wrong.

Judges:

Erle CJ

Citations:

(1864) 16 CB (NS) 310

Cited by:

Cited – Feather v The Queen 1865
Mr Feather had invented way of protecting ships against shot and obtained an exclusive patent. The Crown then had a ship constructed in a way that infringed the patent. As patentee Mr Feather asked for recompense; by petition of right he asked for . .
Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 05 May 2022; Ref: scu.267401

A court is not prevented from interpreting the common law by an Act of parliament being based upon a different view.

Citations:

[1952] AC 401

Jurisdiction:

England and Wales

Cited by:

Cited – West Midland Baptist (Trust) Association (Inc) v Birmingham Corporation HL 1970
The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the . .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 05 May 2022; Ref: scu.182110

A provision of the Constitution of Malaysia allowed the Federal Government to deprive a person of his citizenship ‘if satisfied that he has shown himself by act or speech to be disloyal or disaffected towards the Federation’. The allegations against the appellant were based on what he had said and done after August 1957, when he was treated as a citizen by registration under the Constitution. He had become a citizen of the Federation of Malaya in 1951.
Held: The provision applied only to acts done or speeches made after registration. A complaint made was that the particulars provided of the conduct relied on against him were inadequate. The Board found that the notice would be valid even if no particulars were provided, since the ground was that the appellant had shown himself to be disloyal and disaffected towards the Federation of Malaysia.

Citations:

[1964] 1 WLR 554

Jurisdiction:

Commonwealth

Cited by:

Cited – Hicks, Regina (on the Application of) v Secretary of State for the Home Department Admn 13-Dec-2005
The claimant, an Australian, presently held by the US as a suspected terrorist in Guantanamo Bay sought to be registered as a British Citizen, saying he was entitled to registration as of right.
Held: The past behaviour of an applicant was not . .
Cited – Secretary of State for the Home Department v Hicks CA 12-Apr-2006
The claimant was held as a suspected terrorist by the US government in Guantanamo Bay. He had Australian citizenship but qualified also for British citizenship. He had sought that citizenship and protection. The secretary of state appealed an order . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 04 May 2022; Ref: scu.237552

The court considered a challenge to the appropriation of a colliery. The minister was given power under the 1939 Regulations: ‘if it appeared to him that in the interests of the public safety, the defence of the Realm, or the efficient prosecution of the war it was necessary to take control ‘ of property.
Held: The argument was rejected. There was no jurisdiction to interfere with the exercise of an executive power within his delegated authority.
Lord Greene MR said: ‘It is a settled principle, in dealing with documents of this kind, that the rule of omnia rite esse acta is to be applied, and, therefore, when it is stated by the Ministry in the proper way that it appears to the Minister of Fuel and Power that certain things are so, it is to be taken that that is an accurate statement unless and until the contrary is proved.’ and ‘If one thing is settled beyond the possibility of dispute, it is that, in construing regulations of this character expressed in this particular form of language, it is for the competent authority . . to decide as to whether or not a case for the exercise authority to judge of the adequacy of the evidence before it. It is for the competent authority to judge whether or not it is desirable or necessary to make further investigations before taking action. It is for the competent authority to decide whether the situation requires an immediate step, or whether some delay may be allowed for further investigation and perhaps negotiation . . One thing is certain and that is that those matters are not within the competence of this Court. It is the competent authority that is selected to come to the decision. and, if that decision is come to in good faith, this Court has no power to interfere provided, of course, that the action is one within the four corners of the authority . .’

Judges:

Lord Greene MR

Citations:

[1943] 2 All ER 546

Statutes:

Defence (General) Regulations 1939

Constitutional

Updated: 04 May 2022; Ref: scu.546906

Charles I demanded that Darnel and at least four others lend him money. Upon their refusal, they were imprisoned. The court refused to order the release of nobles who were being detained under executive warrant by the special command of Charles I, who asserted absolute authority over the parliament (based on the doctrine of divine right).
Hyde CJ said: ‘Whether the commitment be by the King or others, this Court is a place where the King doth sit in person, and we have power to examine it, and if it appears that any man hath injury or wrong by his imprisonment, we have power to deliver and discharge him, if otherwise, he is to be remanded by us to prison.’

Judges:

Hyde CJ

Citations:

(1627) 3 St Tr 1, 59 (KB 1627

Constitutional

Updated: 04 May 2022; Ref: scu.470607

Notes of cases sent for prohibition

Citations:

[1683] EngR 28, (1683) Burrell 260, (1683) 167 ER 563 (D)

Links:

Commonlii

Constitutional

Updated: 02 May 2022; Ref: scu.401039

(Supreme Court of Fiji) The court considered the nature of judicial control (if any) over decisions by authorities to commence prosecutions and said: ‘the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits’.

Citations:

[2003] 4 LRC 712

Jurisdiction:

Commonwealth

Cited by:

Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Cited – Lord Carlile and Others v Secretary of State for The Home Department Admn 16-Mar-2012
The claimant had invited an Iranian dissident to speak in Parliament, and now challenged the decision of the Home Secretary to refuse her a visa on the basis that her exclusion was not conducive to the public good. She was a member of an . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 May 2022; Ref: scu.276256

Malta by itself had ceded and taken authority for themselves in the Napoleonic wars.
Held: The action was possible and lawful.

Citations:

[1938] AC 678

Cited by:

Cited – Christian and others v The Queen PC 30-Oct-2006
(The Pitcairn Islands) The defendants appealed convictions for assorted sexual offences against underage girls. They denied that the laws under which they were convicted had applied to the Pitcairn Islands.
Held: The appeals against conviction . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 May 2022; Ref: scu.245766

(High Court of Australia) The court considered the power to create laws for the colonies: ‘The correct general principle is . . whether the law in question can be truly described as being for the peace, order and good government of the Dominion concerned . . The judgment of Lord Macmillan [in Croft v Dunphy [1933] AC 156] affirms the broad principle that the powers possessed are to be treated as analogous to those of ‘a fully sovereign state’, so long as they answer the description of laws for the peace, order, and good government of the constitutional unit in question . .’

Judges:

Evatt J

Citations:

(1933) 49 CLR 220

Jurisdiction:

Australia

Cited by:

Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 May 2022; Ref: scu.242141

Orders in Council were made by the Governor in Canada under the authority of The War Measures Act. One authorised the Minister of Labour to make orders for the deportation to Japan of a specified group of persons aged 16 or over who were resident in Canada and who had made a request for repatriation. The Order also provided that the wife and children under 16 years of age of any person for whom the Minister made an order for deportation to Japan, might be included in such an order and deported with such a person. The effect was that a wife of a person within the specified groups could be returned without her consent even though she may have had no links by birth, race or nationality to Japan.
Held: The appeal agaiinst the upholding of the orders failed. The statute was interpreted to authorise removal from Canada not merely of persons of Japanese origin who requested repatriation, but also of their wives and children under 16 who resisted their own removal.
Lord Wright summarised part of the argument for the appellants: ‘The order . . not only does not show that by reason of the existence of real or apprehended war it was thought necessary for the security, peace, order, defence or welfare of Canada to make provision for their deportation but, when considered in substance, shows that these matters were not taken into consideration.’ He asked whether there was: ‘any matter which justifies the judiciary in coming to the conclusion that the power was in fact exercised for an unauthorised purpose.’ He answered: ‘In their Lordships’ opinion there is not. The first three sub-sections of section S.2 no doubt deal with the matter which primarily engaged the attention of the Governor in Council [i.e. the sub-sections dealing with the removal of the specified group] but it is not in their Lordships’ view a proper inference from the terms of those sub-sections that the Governor in Council did not also deem it necessary or advisable for the security, defence, peace, order and welfare of Canada that the wives and children under 16 of deportees should, against their will, also be liable to deportation. The making of a Deportation Order as respects the husband or father might create a situation with which, with a view to forwarding this specified purpose, it was proper to deal. Beyond that it is not necessary to go.’

Judges:

Wright L

Citations:

[1947] AC 87

Jurisdiction:

Canada

Cited by:

Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 May 2022; Ref: scu.242142

The 1965 Act was to be construed restrictively, lest ‘what was intended as a reasonable protection for a public authority would become an engine of oppression.’

Judges:

Lord President Clyde

Citations:

1963 SC 410

Statutes:

War Damage Act 1965

Jurisdiction:

Scotland

Cited by:

Appeal from – Burmah Oil Company (Burma Trading) Limited v Lord Advocate HL 21-Apr-1964
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 May 2022; Ref: scu.241354

The Sovereign acts ‘throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own courts’

Judges:

Lord Coleridge CJ

Citations:

(1876) 2 QBD 69

Jurisdiction:

England and Wales

Cited by:

Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Cited – Maclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 30 April 2022; Ref: scu.230262

On the proper inerpretation of the legislation, the extent of application of the legislative regime is determined by reference to the concept of the UK’s territorial waters as defined from time to time by the Crown. When the exercise of the Royal Prerogative directly effects an extension or contraction of the jurisdiction without the constitutional need for internal legislation, the court may not only be empowered but required to adjudicate upon the meaning or scope of the terms of an international treaty.
Diplock LJ said: ‘there is a presumption that the Crown did not intend to break an international treaty (see Salomon v Commissioners of Customs and Excise), and if there is any ambiguity in the Order in Council, it should be resolved so as to accord with the provisions of the Convention in so far as that is a plausible meaning of the express words of the order.’
. . And ‘It still lies within the prerogative power of the Crown to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised sovereignty or jurisdiction. For such extension, the authority of Parliament is not required.’

Judges:

Diplock LJ

Citations:

[1968] 2 QB 740, [1967] 3 All ER 622

Jurisdiction:

England and Wales

Cited by:

Cited – Maclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 30 April 2022; Ref: scu.230263

(Saskatchewan Court of Appeal) The court rejected the idea of making rulings of prospective effect only. Prospective overruling would be a ‘dramatic deviation from the norm in both Canada and England’. Bayda CJS said ‘the most cogent reason for rejecting this technique is the necessity for our courts to maintain their independent, neutral and non-legislative role’. He approved comments that prospective overruling ‘would distort our expectations of the judicial role’ and that ‘confidence may recede at the point where the courts are not seen as adjudicative agencies but as legislators’

Citations:

(1987) 39 DLR (4th) 654

Jurisdiction:

Canada

Cited by:

Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 30 April 2022; Ref: scu.228293