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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Constitutional - From: 1997 To: 1997

This page lists 12 cases, and was prepared on 20 May 2019.

 
Ha v State of New South Wales (1997) 189 CLR 465
1997


Commonwealth, Constitutional
(High Court of Australia) The court unanimously considered that 'it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law'. This would especially be so where 'non-compliance with a properly impugned statute exposes a person to criminal prosecution'. "This Court has no power to overrule cases prospectively. A hallmark of the judicial process has long been the making of binding decisions of rights and obligations arising from the operation of the law upon past events or conduct. The adjudication of existing rights and obligations as distinct from the creation of rights and obligations distinguishes the judicial power from non-judicial power. Prospective overruling is thus inconsistent with judicial power on the simple ground that the new regime that would be ushered in when the overruling took effect would alter existing rights and obligations. If an earlier case is erroneous and it is necessary to overrule it, it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law."
1 Citers



 
 Regina v Lord Chancellor ex parte John Witham; Admn 7-Mar-1997 - Times, 14 March 1997; [1997] EWHC Admin 237; [1998] QB 575
 
Commission v France [1997] ECR I-1489; C-197/96; [1997] EUECJ C-197/96
13 Mar 1997
ECJ

European, Constitutional
ECJ (Judgment) 1 Member States - Obligations - Failure to fulfil obligations - Retention of a national provision incompatible with Community law - Justification on the basis of administrative practices ensuring that the Treaty is applied - Not permissible
2 Acts of the institutions - Directives - Implementation by the Member States - Directive intended to confer rights on individuals - Transposition without legislative action - Not permissible
3 The incompatibility of national legislation with Community provisions, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty.
4 The provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the requirement of legal certainty, under which, in the case of a directive intended to confer rights on individuals, persons concerned must be enabled to ascertain the full extent of their rights.
That is not the case where, because a legislative provision incompatible with a provision in a directive has been retained, individuals are in a position of uncertainty as to their legal situation and exposed to unwarranted criminal proceedings. Neither the obligation for national courts to secure the full effect of Article 5 of the directive by not applying any contrary national provision, nor a ministerial answer to a parliamentary question can have the effect of amending a statutory provision.
[ Bailii ]
 
Barony of Moynihan Times, 28 March 1997
28 Mar 1997
HL

Human Rights, Constitutional
Blood Tests were admissible in Peerage claims. A right of peerage is not a possession.
Convention for the Protection of Human Rights and Fundamental Freedoms 1953 (1953 Cmd 8969)


 
 Attorney General v Danhai Williams and others; PC 12-May-1997 - [1997] UKPC 22
 
de Rijk v Commission C-153/96; [1997] EUECJ C-153/96P
29 May 1997
ECJ

Constitutional
(Judgment) 1 Appeals - Pleas in law - Only pleas in law supported by legal argument admissible
(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Art. 51; Rules of Procedure of the Court of Justice, Art. 112(1)(c)) 2 Appeals - Pleas in law - Inadequate reasoning - Principle of sound management - Sickness insurance - Sickness expenses - Supplementary sickness insurance scheme for officials posted outside the Community - Scope - Appeal dismissed
(Staff Regulations, Art. 72 and Annex X, Art. 24)
3 Pursuant to Article 168a of the Treaty and Article 51 of the Statute of the Court of Justice an appeal may be based only on pleas in law relating to an infringement of rules of law, to the exclusion of any issue challenging the facts as established by the Court of First Instance, and must, in accordance with Article 112(1)(c) of the Rules of Procedure of the Court of Justice, specify the pleas in law and the legal arguments relied upon in support of it. It follows from those provisions that an appeal must indicate precisely which elements of the contested judgment it challenges, and also the legal arguments which specifically support the appeal.
4 There is no inadequate or contradictory reasoning where a judgment of the Court of First Instance finds (i) that the application of the scheme provided for in Article 24 of Annex X to the Staff Regulations (which establishes a supplementary insurance scheme for officials posted outside the Community, their spouses, their children and other persons dependent on them to cover the difference between costs actually incurred and sickness benefits available under Article 72) is justified in the light of the principle of sound management when the costs incurred in a non-member country are no higher than they would be in the Community or when the costs have been incurred during a temporary stay in the Community, and (ii) that Article 24 is otiose unless and in so far as the specific disadvantages which led to its adoption exist.
The legislature made a legitimate choice in opting for a scheme not unduly complex and therefore easily manageable, on the ground that it would have been disproportionate to seek to establish for each country the actual costs of medical services or the level of health risks in view of the work that would require, the small number of countries in which the costs or health risks are no greater than in the Community, the few officials serving in those countries and the difficulty of comparing medical practice from one country to another.
Conversely, where the absence of the specific disadvantages connected with a posting outside the Community is the rule rather than the exception, that is to say, where residence in the Community is permanent, there is no reason to apply Article 24 of Annex X.
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 Regina v Burstow, Regina v Ireland; HL 24-Jul-1997 - [1997] UKHL 34; [1998] 1 Cr App Rep 177; [1998] AC 147; [1997] 4 All ER 225; [1997] 3 WLR 534
 
McGuinness, Re Application for Judicial Review [1997] NIQB 2; [1997] NI 359
3 Oct 1997
QBNI
Kerr J
Northern Ireland, Constitutional
The claimant was an MP from Northern Ireland. As an MP he had been required to swear allegiance to the Crown, but he had refused to do so for his belief in an independent Ireland. He challenged the decision of the Speaker of the House to refuse him his expenses due as an MP. Held: There was no human rights breach, but the allegation related to a matter within the area of exclusive jurisdiction that the House enjoyed over its own business. The Speaker's decision "could not be challenged by way of judicial review". The Speaker's announcement in the House of Commons of action taken by her on behalf of the House to regulate the use by members of services which are ancillary to their work within the Chamber was a proceeding in Parliament and immune from judicial intervention. By virtue of article 9 "control of its own internal arrangements has long been recognised as falling uniquely within Parliament's domain and superintendence from which the court's intervention is excluded".
Parliamentary Oaths Act 1866 - Bill of Rights 1689 9
1 Citers

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 De Morgan and Another v Director-General of Social Welfare; PC 7-Oct-1997 - Times, 04 November 1997; [1997] UKPC 46; [1998] AC 275
 
Alleyne-Forte v The Attorney General of Trinidad and Tobago and others [1997] UKPC 49
20 Oct 1997
PC
Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Clyde, Lord Hutton
Constitutional, Crime
(Trinidad and Tobago) The appellant had parked his car away from the kerb, and it had been towed away under the regulations. He challenged the validity of the regulations, which charged a high fee for storage and restoration, claiming that this dedprived him of his right to a fair hearing. Held: The removal of a car parked illegally, and the temporary loss of use of the car, cannot be regarded as a constitutional infringement. Nor can the obligation to pay a reasonable, statutorily-prescribed sum by way of removal and custody charges. The board complained that such a matter might be allowed to get this far.
1 Cites

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Electrotec Services Limited v Issa Nicholas (Grenada) Limited [1997] UKPC 50; [1998] 1 WLR 202
27 Oct 1997
PC
Lord Hoffmann
Commonwealth, Costs, Constitutional
(Grenada) The Court of Appeal of Grenada in granting leave to appeal to the Judicial Committee had imposed a condition requiring security of £500. The respondent then applied to the Judicial Committee for an order under its inherent jurisdiction that the appellant pay into court the sum of £130,000 as security for costs, Held: the Committee refused to make such an order. Rule 2 of the 1982 Rules which provides that an appeal shall be either with the leave of the court appealed from or with special leave granted by Her Majesty in Council. "It follows that notwithstanding that the case may be one in which an appeal lies as of right, the leave of the Court of Appeal must be obtained. Such leave is not, however, a matter of discretion for that court." and "It would therefore appear that the function of the Court of Appeal upon an application for leave is to satisfy itself that the case is one in which, under the Constitution of Grenada, a right of appeal exists and, if so satisfied, to consider the exercise of the power to impose conditions conferred by article 5. Leave is granted "in the first instance" subject to compliance with those conditions and final leave is granted when the conditions have been complied with."
West Indies Associated States (Appeals to Privy Council) (Grenada) Order 1967 (SI 1967/224) 5 - Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 (SI 1982/1676) 2
1 Citers

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Regina v Parliamentary Commissioner for Standards Ex Parte Al-Fayed Gazette, 05 November 1997; [1997] EWCA Civ 2488; [1997] EWHC Admin 409; [1998] 1 WLR 669
5 Nov 1997
CA
Lord Woolf MR
Judicial Review, Constitutional
The Parliamentary Commissioner for Standards had published a report relating to a complaint by the applicant against a Member of Parliament. Held: The applicant sought permission to challenge this by judicial review. The applicant's appeal failed. No judicial review was possible of the workings of the Parliamentary Commissioner for Standards despite the absence of any Appeal from his findings. To allow a judicial review would be to impugn the House of Commons. Lord Woolf MR said: "Activities of government are the basic fare of judicial review. Activities of Parliament are not the basic fare of judicial review. Indeed activities of Parliament are accepted in general by Mr. Pannick to be not subject to judicial review. If I may put it this way, if what was being sought here was judicial review of the Standing Committee responsible for supervising the activities of the Parliamentary Commissioner for Standards, Mr. Pannick would accept that judicial review was not available." and "The focus of the Parliamentary Commissioner for Standards is on the propriety of the workings and the activities of those engaged within Parliament. He is one of the means by which the select committee set up by the House carries out its functions, which are accepted to be part of the proceedings of the House. This being the role of the Parliamentary Commissioner for Standards, it would be inappropriate for this court to use its supervisory powers to control what the Parliamentary Commissioner for Standards does in relation to an investigation of this sort. The responsibility for supervising the Parliamentary Commissioner for Standards is placed by Parliament, through its standing orders, on the Committee of Standards and Privileges of the House, and it is for that body to perform that role and not the courts."
1 Citers

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