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 that the notice could be given under the Crown Prerogative.
Held: The appeal failed (Majority 8 to 3). Leaving the EU would inevitably involve alteration of citizens’ statutory rights, and as such parliamentary approval was required, and the government could not rely solely on use of the Crown Prerogative to issue the notice. The giving of the notice would lead to an inevitable conclusion.
‘although the 1972 Act gives effect to EU law, it is not itself the originating source of that law. It is . . echoing the illuminating analysis of Professor Finnis, the ‘conduit pipe’ by which EU law is introduced into UK domestic law. So long as the 1972 Act remains in force, its effect is to constitute EU law an independent and overriding source of domestic law.’
. . And: ‘ the fact that EU law will no longer be part of UK domestic law if the United Kingdom withdraws from the EU Treaties does not mean that Parliament contemplated or intended that ministers could cause the United Kingdom to withdraw from the EU Treaties without prior Parliamentary approval. There is a vital difference between changes in domestic law resulting from variations in the content of EU law arising from new EU legislation, and changes in domestic law resulting from withdrawal by the United Kingdom from the European Union. The former involves changes in EU law, which are then brought into domestic law through section 2 of the 1972 Act. The latter involves a unilateral action by the relevant constitutional bodies which effects a fundamental change in the constitutional arrangements of the United Kingdom.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hughes, Lord Hodge
 UKSC 5,  2 WLR 583,  WLR(D) 53, UKSC 2016/0196,  NI 141,  AC 61,  HRLR 2,  1 All ER 593,  2 CMLR 15
Bailii, Bailii Summary, WLRD, SC, SC Summary, Vid 0512am, Vid 0512pm, Vid 0612am, Vid 0612pm, Vid 0712am, Vid 0712pm, Vid 0812am, Vid 0812pm, SC Vid ummary
European Union Act 2011, European Parliamentary Elections Act 2002 1, European Communities Act 1972, European Communities (Amendment) Act 2002, Treaty on the Functioning of the European Union, Bill of Rights 1688 1 2, Claim of Right Act 1689
England and Wales
Cited – Proclamations, Case of KBD 1-Nov-1610
The King, as the executive government, sought to govern by making proclamations. In particular the court rejected the proposition that ‘the King by his proclamation may prohibit new buildings in and about London’
Held: The monarch had no power . .
Cited – Secretary of State in Council of India v Kamachee Boye Sahab PC 9-Jul-1859
‘The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may . .
Cited – Rustomjee v The Queen QBD 1876
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 . .
Cited – The Zamora PC 1916
Lord Parker said: ‘The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by the Courts of law in this country is out of harmony with the principles of our Constitution. . .
Cited – Attorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
Cited – Joyce v Director of Public Prosecutions HL 1948
The defendant was an American citizen but held a British passport. After the outbreak of war between Great Britain and Germany in 1939, he delivered from German territory broadcast talks in English hostile to Great Britain.
Held: His . .
Cited – 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 . .
Appeal from – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Appeal from – McCord, Re Judicial Review QBNI 28-Oct-2016
The claimant made application for judicial review of the stated intention of the Government of the UK to issue an article 50 notice to leave the EU, by means of the use of the royal Prerogative. They said that any use of the royal prerogative had . .
Cited – Post Office v Estuary Radio Ltd CA 1968
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 . .
Cited – Laker Airways v Department of Trade CA 15-Dec-1976
Policy guidance issued by the respondent was unlawful because it was contrary to the statutory objectives laid down for the Civil Aviation Authority by section 3 of the 1971 Act. The court discussed the status of guidance issued by the respondent: . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
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 . .
Cited – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Regina v Secretary of State for the Home Department ex parte Fire Brigades Union HL 5-Apr-1995
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The . .
Cited – Brasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
Cited – Thoburn v Northumberland County Council CA 19-Jan-1999
The claimant alleged that the defendant by allowing a flood across a road not to be cleared was in breach of their statutory duty under the 1980 Act.
Held: Though the blockage was not entirely on the Highway, the nature and extent of it was . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg Admn 30-Jul-1993
The applicant, a former editor of the Times, sought judicial review of the decision by the respondent to ratify the EU Treaty (Maastricht), saying that it would increase the powers of the European Parliament without it having been approved by . .
Cited – Regina v Mayor and Burgesses of London Borough of Southwark ex parte Campisi CA 9-Jul-1998
The claimant had made more than one application for emergency housing.
Held: ‘Clearly the mere assertion that an applicant’s claim ought to be considered cannot impose upon the local authority the onerous duty of making inquiries and . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – The Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame Ltd and others (No 5) HL 28-Oct-1999
A member state’s breach of European Law, where the law was clear and the national legislation had the effect of discriminating unlawfully against citizens of other members states, was sufficiently serious to justify an award of damages against that . .
Cited – Higgs and Mitchell v The Minister of National Security and others PC 14-Dec-1999
(Bahamas) The applicants appealed against sentences of death, saying that the executions would be unlawful while there was a pending appeal to the OAS.
Held: The appeals failed. The Bahamas was a member of the Organisation of American States, . .
Cited – Thoburn v Sunderland City Council etc Admn 18-Feb-2002
Various shopkeepers appealed convictions for breach of regulations requiring food sold by weight to be described in metric amounts. They claimed that the Regulations made under the 1985 Act, to the extent that they were inconsistent with it . .
Cited – Kobler v Republik Osterreich ECJ 30-Sep-2003
The claimant’s claim had been presented to the Supreme Administrative Court in Austria, who had referred a question to the ECJ. Following the Schoning decision, the court withdrew the referral, and dismissed the claim. He now claimed damages from . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Van Gend En Loos v Administratie Der Belastingen ECJ 5-Feb-1963
LMA The Dutch customs authorities had introduced an import charge in breach of Art.12 [Art.25] EC. This Article prohibits MS from introducing between themselves any new customs duties on imports or exports or any . .
Cited – HS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .
Cited – Flaminio Costa v ENEL (Procedure) ECJ 15-Jul-1964
‘The transfer by the states from their domestic legal system to the Community legal system of their rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent . .
Cited – Blackburn v Attorney-General CA 10-May-1971
The complainant sought to argue that entry to Europe would be unlawful in that it involved surrender of the sovereignty of the Queen in Parliament. The respondent accepted that the Bill would involve some surrender of power, but that it was a lawful . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – HS2 Action Alliance and Another, Regina (on The Application of) v The Secretary of State for Transport and Another CA 11-Mar-2015
Cited – Pham v Secretary of State for The Home Department SC 25-Mar-2015
The court was asked: ‘whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within . .
Cited – JR65, Re Judicial Review CANI 16-Mar-2016
The appellant challenged the absolute prohibition within the province of the giving of blood by any male who had had sex with another male, saying that the ban was incompatible with European law.
Held: The request for review was refused, but . .
Cited – Shindler and Another v Chancellor of The Duchy of Lancaster and Another CA 20-May-2016
UK free to disenfranchise citizens resident abroad
The claimants appealed against rejection of their challenges to the 2015 Act. As British citizens who had lived abroad for more than fifteen years, they were not to be allowed to vote.
Held: The claim failed. The Act was not in breach of . .
Cited – Madzimbamuto v Lardner-Burke PC 23-Jul-1968
(Southern Rhodesia) The Board considered a submission that legal effect should be given to a convention that the UK Parliament would not legislate without the consent of the government of Southern Rhodesia on matters within the competence of the . .
Cited – Attorney-General v Jonathan Cape Ltd 1976
The Attorney-General sought restraint on the publication of certain materials in the diary of Richard Crossman, a former cabinet minister, submitting that the protection from disclosure of Cabinet papers was based on collective responsibility.
Cited – Resolution to amend the Constitution 28-Sep-1981
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 . .
Cited – Imperial Tobacco Ltd v The Lord Advocate As Representing The Scottish Ministers SCS 2-Feb-2012
The company sought a reclaiming motion after dismissal of their request for judicial review of the 2010 Act of the Scottish Parliament.
Held: The appeal against the Lord Ordinary’s interlocutor was refused.
Lord Reed said that the nature . .
Cited – Attorney-General, ex rel McWhirter v Independent Broadcasting Authority CA 1972
The court should not interfere in decisions made by broadcasting companies allocating television time to parties before elections unless it is of the view that they were irrational in not giving enough weight to those matters in allocating it only . .
See Also – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Cited – Cherry, Joanna Cherry QC Mp and Others for Judicial Review SCS 4-Sep-2019
(Outer House) . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 November 2021; Ref: scu.573344