Module 1: The Conceptual Framework of Public Law

Includes: Structure of the UK Constitution Constitutions and Constitutionalism Codification, Supremacy, and Entrenchment Parliamentary Supremacy Constitutional Enforcement The Rule of Law

Marbury v Madison -1803

Facts: Adams appointed Marbury, but commission undelivered; Madison refused to deliver it

Question: Can SCOTUS issue writ of mandamus?

Answer: No

Ratio: Established judicial review: courts can strike down laws conflicting with the Constitution

European Communities Act 1972, s.2

Facts: Incorporated EU law into UK law; gave EU law supremacy over domestic law (Parliament consented to being governed by the EU law; enabled a "conduit pipe"; EU law supremacy)

Question: Can EU law override UK statutes?

Answer: Yes

Ratio: s.2(4) ECA: EU law takes precedence; Parliament limited by its own Act

Human Rights Act 1998

Facts: Incorporated ECHR into UK law; allows UK courts to hear human rights cases

Question: Can UK courts enforce ECHR rights?

Answer: Yes

Ratio: Public bodies must act compatibly with ECHR; courts can issue declarations of incompatibility

Jackson v Attorney General [2005] UKHL 56 (An Unusual Constitution)

Facts: Challenged validity of Hunting Act 2004 passed under Parliament Acts 1911 & 1949

Question: Can Parliament Act 1949 amend 1911 Act?

Answer: Yes

Ratio: Parliament Acts valid; courts hinted at limits to parliamentary sovereignty (rule of law)

Re Allister [2023] SC

Facts: Challenged NI Protocol as violating Acts of Union 1800

Question: Can constitutional statutes be overridden?

Answer: Yes

Ratio: Parliament is sovereign; later Acts override earlier ones, even if constitutional

Scotland Act 2016, s.1

Facts: Recognizes the permanence of the Scottish Parliament and Government

Question: Can the Scottish Parliament be abolished?

Answer: No

Ratio: s.1 affirms permanence; political commitment, not legally entrenched

AXA General Insurance v HM Advocate [2011] UKSC 46

Facts: Scottish Parliament passed asbestos law; insurers challenged it as irrational

Question: Can Acts of the Scottish Parliament be reviewed for irrationality?

Answer: No

Ratio: Not subject to ordinary judicial review; only for legality or competence

British Railways Board v Pickin 1974

Facts: Claimed Act was invalid due to procedural irregularities

Question: Can courts question validity of an Act of Parliament?

Answer: No

Ratio: Courts cannot question validity of Acts; parliamentary sovereignty

Cheney v Conn 1968

Facts: Argued Finance Act conflicted with international law

Question: Can domestic statutes be invalidated by international law?

Answer: No

Ratio: Parliamentary sovereignty prevails; International law yields to statute, even though intl. law is part of the law of the land; Conventions which are ratified, though not by Parliament, cannot prevail against a statute.

Factortame (No. 2) [1991] 1 AC 603

Facts: Spanish fishermen challenged UK law conflicting with EU law

Question: Can UK courts disapply domestic law conflicting with EU law?

Answer: Yes

Ratio: EU law supremacy under ECA 1972.

HS2 Case

Facts: Environmental challenge to HS2 project under EU law

Question: Can constitutional principles limit EU law application?

Answer: Yes

Ratio: Constitutional principles may override EU procedural requirements.

Jackson v Attorney General [2005] [2005] UKHL 56; [2006] 1 AC 262 (Constitutional Enforcement)

Facts: 🦊🔫 ban through an AP passed through 1949 Act

Question: Are Acts created through the 1911 and 1949 Acts equal to other Acts enacted by Parliament in the traditional sense?

Answer: Yes

Ratio: Parliament has the right to redefine itself how it sees fit; Parliament is supreme, not the constitution and so Parliament can override it.

Privacy International v Investigatory Powers Tribunal [2019] UKSC 22

Facts: Challenged ouster clause preventing review of IPT decisions

Question: Can courts review IPT decisions despite ouster clause?

Answer: Yes

Ratio: Rule of law requires judicial review unless Parliament is explicit.

R v Secretary of State, ex p Simms - 1999

Facts: Prisoners denied interviews with journalists

Question: Can fundamental rights be restricted by secondary legislation?

Answer: No

Ratio: Requires express language; fundamental rights protected.

Thoburn v Sunderland City Council [2002] - 2003\n\n

Facts: Conflict between EU and Domestic law

Question: Can UK domestic law impliedly repeal EU law?

Answer: No

Ratio: EU law cannot be implicitly displaced by the mere enactment of legislation which is inconsistent with it.

Regulation of Investigatory Powers Act 2000, s.67(8)

Facts: Constitutional Reform Act 2005 Reformed Lord Chancellor role; created Supreme Court

Question: Does it enhance judicial independence?

Answer: Yes

Ratio: Strengthens separation of powers and judicial independence.

Magna Carta -1215

Facts: Early charter limiting royal power

Question: Is it still relevant?

Answer: Yes

Ratio: Foundation of due process and rule of law.

Entick v Carrington - 1765

Facts: Unlawful search and seizure by state agents, national security defence

Question: Can government act without legal authority?

Answer: No

Ratio: Government must act within the law; the executive can do nothing without legal authority.

Malone v MPC - 1979

Facts: Phone tapping without legal basis

Question: Can privacy be infringed without law?

Answer: No

Ratio: Legal basis required for state interference.

R (Evans) v Attorney General [2015] UKSC 21

Facts: AG vetoed court order to release Prince Charles’ letters

Question: Can executive override judicial decision?

Answer: No

Ratio: Undermines rule of law and separation of powers.

Scott v Scott [1913] AC 417

Facts: Secret divorce proceedings

Question: Can courts sit in secret?

Answer: No

Ratio: Justice must be open and transparent.

Re FI Call Ltd R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs 2008

Ratio: The HRA 1998 changed the rule of law to be more substantive rather than procedural.

Secretary of State for the Home Department v Rehman [2001] 3 WLR 877

Ratio: What is conducive to the public good is a matter for the executive discretion of the Secreatary of State. The SoS is entitled to take an overall view. The interests of national security can be threatened not only by action against the UK but also indirectly by activities directed against other states. While any specific acts on which the SoS relies must be proved on the ordinary civil balance of probability, no particular standard of proof is appropriate to the formation of their executive judgement or assessment as to whether it is conduscive to the public good that a person be deported, which is a matter of reasonable and proportionate judgment

Fire Brigades Union [1995] All ER 244

Facts: Implementation of a scheme to provide compensation to the victims of violent crime

Question: Had the Home Secretary acted lawfully in implementation?

Answer: By announcing that the provisions in the Act would not now be implemented, the Secretary of State for the Home Department had acted unlawfully.

Ratio: The courts ensure that powers are lawfully exercised by those to whom they are entrusted.

R (Unison) v Lord Chancellor [2017] UKSC 51

Facts: Tribunal fees challenged as barrier to justice

Question: Was the imposition of fees for bringing claims before employment tribunals consistent with the rule of law?

Answer: No

Ratio: The court linked access to justice with the rule of law, asserting that without access to justice, the rule of law becomes meaningless.

Constitutional Reform Act 2005

Facts: Reformed Lord Chancellor role; created Supreme Court

Question: Does it enhance judicial independence?

Answer: Yes

Ratio: Strengthens separation of powers and judicial independence